Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut, 21194-21228 [E9-10337]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 86 (Wednesday, May 6, 2009)]
[Rules and Regulations]
[Pages 21194-21228]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10337]



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Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 300



 Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for 
Halibut; Final Rule

Federal Register / Vol. 74, No. 86 / Wednesday, May 6, 2009 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 0808061071-9666-02]
RIN 0648-AX17


Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery 
for Halibut

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

ACTION: Final rule.

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SUMMARY: NMFS implements regulations to limit the harvest of Pacific 
halibut by guided sport charter vessel anglers in International Pacific 
Halibut Commission (IPHC) Regulatory Area 2C (Area 2C) of Southeast 
Alaska to one halibut per day. This action is necessary to reduce the 
halibut harvest in the guided sport charter vessel (guided) sector. The 
intended effect of this action is to manage the harvest of halibut in 
Area 2C consistent with an allocation strategy recommended by the North 
Pacific Fishery Management Council for the guided fishery and the 
commercial fishery. This final rule implements three restrictions for 
the guided 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 5, 2009.

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 NMFS Alaska Region, P.O. 
Box 21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS 
Alaska Region Web site at https://www.alaskafisheries.noaa.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 or Jay Ginter, 907-586-
7228.

SUPPLEMENTARY INFORMATION: The IPHC and NMFS manage fishing for Pacific 
halibut (Hippoglossus stenolepis) through regulations established under 
the authority of the Northern Pacific Halibut Act of 1982 (Halibut 
Act). The IPHC promulgates regulations governing the 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 
acceptance by the Secretary of State with concurrence by the Secretary 
of Commerce (Secretary). After acceptance 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 2009 were published on March 19, 2009 
(74 FR 11681).
    The Halibut Act also provides the North Pacific Fishery Management 
Council (Council) with authority to recommend regulations to the 
Secretary to allocate harvesting privileges among U.S. fishermen. The 
Council, under 16 U.S.C. 773c(c), may develop regulations applicable to 
U.S. nationals or vessels, which are in addition to, and not in 
conflict with, regulations adopted by the IPHC. Regulations developed 
by the Council shall be implemented only with the approval of the 
Secretary, and must meet criteria outlined in section 773c(c).
    The Secretary, under 16 U.S.C. 773c(a) and (b) has general 
responsibility to carry out the Convention and Halibut Act. According 
to section 773c(b),

    In fulfilling this responsibility, the Secretary shall, in 
consultation with the Secretary of the department in which the Coast 
Guard is operating, adopt such regulations as may be necessary to 
carry out the purposes and objectives of the Convention and [the 
Halibut Act].

    The Secretary's authority to take action under the Halibut Act has 
been delegated to NMFS. NMFS takes this action under section 773c(b) to 
adopt such regulations as may be necessary to carry out the purposes 
and objectives of the Convention and the Halibut Act. This action 
implements, among other measures, a one-halibut daily bag limit on 
charter vessel anglers in IPHC Area 2C. This bag limit originally was 
recommended by the Council in June 2007 and implemented by NMFS by 
final rule on May 28, 2008, with an effective date of June 1, 2008 (73 
FR 30504). The June 1, 2008 rule was withdrawn following a legal 
challenge as described in the preamble to the proposed rule for this 
action published on December 22, 2008 (73 FR 78276).

Background and Need for Action

    The respective roles of the IPHC and the Council in managing the 
commercial, sport and subsistence fisheries for halibut are described 
in the preamble to the proposed rule for this action (73 FR 78276, 
December 22, 2008).
    Each year, the IPHC establishes an annual total Constant 
Exploitation Yield (Total CEY) for Pacific halibut based on the most 
recent estimates of the overall halibut biomass. The IPHC then 
subtracts estimates of all noncommercial removals (sport, subsistence, 
bycatch, and wastage) from the Total CEY. The remainder, after the 
noncommercial removals are subtracted, is the Fishery CEY for an area's 
directed commercial fishery. Any increases in non-commercial removals 
of halibut will necessarily decrease the portion of the Total CEY 
available as Fishery CEY for use by the commercial sector. The IPHC 
annually sets a catch limit for the commercial longline fishery in each 
regulatory area in and off Alaska that is based on the Fishery CEY but 
not necessarily limited to the Fishery CEY.
    In 2003, NMFS approved and established (at 50 CFR 300.65(c)(1)) the 
Council's recommended guideline harvest level (GHL) policy to serve as 
a benchmark for monitoring the charter vessel fishery's harvests of 
Pacific halibut. The GHL does not limit harvests by charter vessel 
anglers, however. Subsequent regulatory action, such as this action, is 
necessary to control the charter vessel fishery's harvests to the GHL. 
Harvests by charter vessel anglers exceeded the GHL in Area 2C each 
year from 2004 to 2007, and the best available estimates indicate that 
the 2008 GHL also was exceeded (Table 1 and Figure 1 of this preamble). 
Harvests of halibut by the charter sector above its GHL reduce the 
Fishery CEY. By reducing the amount of fish available to the commercial 
sector, the charter harvests create an allocation concern. Charter 
removals should be close to the GHL or the methodology used by the IPHC 
to determine the Fishery CEY is undermined and results in a de facto 
reallocation from the commercial sector in subsequent years.
    Charter vessel harvests in excess of the GHL also create a 
conservation concern by compromising the overall harvest strategy 
developed by the IPHC to conserve the halibut resource. The Total CEY 
and the Fishery CEY have decreased each year since 2004 reflecting 
declines in the estimated halibut biomass. As the Total CEY decreases, 
harvests of halibut should decrease to help conserve the resource. 
Hence, the GHL is linked to the Total CEY so that the GHL decreases in 
a stepwise fashion as the Total CEY decreases. Despite a decrease in 
Total CEY and the GHL in recent years,

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charter vessel harvests have remained high and in excess of the GHL. As 
conservation of the halibut resource is the overarching goal of the 
IPHC, the magnitude of charter vessel harvests over the GHL in Area 2C 
has raised concern that such overharvesting by the charter sector poses 
a conservation risk, with the potential to undermine the IPHC's 
conservation and management goals for the overall halibut stock. 
Therefore, restraining charter sector harvests to approximately the GHL 
would contribute to the conservation of the halibut resource.

Objective of This Action

    As indicated in the proposed rule for this action (73 FR 78276, 
December 22, 2008), NMFS is implementing a one-halibut daily bag limit 
in Area 2C to give effect to the Council's intent to keep the harvest 
of charter vessel anglers to approximately the GHL. In the years 2003 
through 2007, the GHL was 1,432,000 lbs (649.5 mt). In 2008, the GHL 
was reduced to 931,000 lbs (422.3 mt), and in 2009, the GHL was further 
reduced to 788,000 lbs (357.4 mt). Harvests by charter vessel anglers 
were below the GHL in 2003 and above the GHL in 2004 through 2008. 
Table 1 provides the GHL for each year, the specific amounts of charter 
vessel angler harvest, and the percentages of those amounts compared to 
the GHL. Figure 1 provides a graphical representation of the GHL and 
the specific amounts harvested. Table 7 in the analysis (see ADDRESSES) 
shows that implementation of a one-halibut daily bag limit would reduce 
charter vessel angler catch to a range of 1,495,000 lbs (678.1 mt) to 
602,000 lbs (310.7 mt), depending on various average weight scenarios 
and assumptions about reductions in demand. NMFS determined that the 
one-halibut daily bag limit was the best alternative to bring charter 
vessel angler harvest close to the 931,000 lb (422.3 mt) level, after 
comparing it with other options and reviewing the range of potential 
harvests under the one-halibut daily bag limit based on various weight 
scenarios and demand reduction assumptions. Taking this action is 
consistent with the action proposed at 73 FR 78276. Also, it will bring 
the harvest of halibut by charter vessel anglers in Area 2C closer to 
the 788,000 lb (357.4 mt) level than will the status quo, consistent 
with the Council's intent.
    From 2003 to 2007, the GHL for Area 2C was 1,432,000 lbs (649.6 
mt). In 2008, the IPHC reduced the Total CEY to 6,500,000 lbs (2,948.4 
mt) from the 2007 Total CEY of 10,800,000 lbs (4,899.0 mt). This was a 
reduction of 4,300,000 lbs (1,950.5 mt) from the 2007 Total CEY. The 
reduction in the Total CEY triggered a reduction of the GHL for Area 2C 
from 1,432,000 lbs (649.6 mt) to 931,000 lbs (422.3 mt) for 2008. In 
2009, the IPHC again reduced the Total CEY to 5,570,000 lbs (2,526.5 
mt), which again triggered a reduction of the Area 2C GHL from 931,000 
lbs (422.3 mt) to 788,000 lbs (357.4 mt) for 2009. As shown in Table 1 
and Figure 1, the average charter vessel angler harvest in Area 2C for 
the four years 2004 through 2007 was 1,856,000 lbs (841.9 mt).

                                              Table 1--Guided and Unguided Sport Harvest by Year in Area 2C
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                                                                                                                                              Charter
                                                                          Unguided sport      Charter       Total sport       Charter       harvest as
                          Year                             GHL (million       harvest         harvest         harvest       harvest as     percentage of
                                                              pounds)        (million        (million        (million      percentage of    total sport
                                                                              pounds)         pounds)         pounds)           GHL           harvest
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2002....................................................             n/a           0.814           1.275           2.089             n/a            61.0
2003....................................................           1.432           0.846           1.412           2.258            98.6            62.5
2004....................................................           1.432           1.187           1.750           2.937           122.2            59.6
2005....................................................           1.432           0.845           1.952           2.797           136.3            69.8
2006....................................................           1.432           0.723           1.804           2.527           126.0            71.4
2007....................................................           1.432           1.131           1.918           3.049           133.9            62.9
2008....................................................           0.931             n/a         * 1.914             n/a         * 205.6             n/a
2009....................................................           0.788             n/a             n/a             n/a             n/a             n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
n/a = not available.
* Harvest estimates are the best available.


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[GRAPHIC] [TIFF OMITTED] TR06MY09.072

    NMFS proposed this action on December 22, 2008 (73 FR 78276). 
Public comments were invited on the proposed rule for a period of 30 
days ending on January 21, 2009. NMFS received 179 public submissions 
containing 141 unique comments. These comments are grouped into topical 
areas, summarized, and responded to below.

Comments and Responses

Conservation Concerns

    Comment 1: The proposed rule is an allocation measure and does not 
have a conservation objective.
    Response: This action addresses conservation of the halibut 
resource by constraining overall harvest to meet yield. In the presence 
of multiple user groups, conservation and allocation cannot be 
separated. Instead conservation objectives are advanced by 
conservation-sensitive allocation procedures. By reducing harvest in 
the Area 2C charter vessel fishery more than it would be without this 
rule, the fleet can contribute to achievement of the overall target 
exploitation rate for halibut in Area 2C and bring the charter vessel 
fishery closer to its GHL in this area.
    In recent years, the Total CEY for Area 2C halibut has been 
declining. In response, it is important that the harvests of the 
principal user groups also decline to control the yield from the 
fisheries for conservation purposes. In the evaluation of these 
fisheries, different mechanisms have been created to limit the harvests 
of different user groups. Some user groups, such as subsistence and 
unguided sport users, are not currently subject to measures designed to 
control aggregate harvests. A major user group, the commercial setline 
fishery, has a strictly managed annual catch limit, however. This catch 
limit is set by the IPHC based on the Fishery CEY and distributed to 
the commercial harvesters through the individual fishing quota (IFQ) 
system. The commercial catch limit has been cut by just over 50 percent 
between 2005 and 2009.
    Harvest controls also have been created for the guided component of 
the sport fishery. This operates through the Council and Secretarial 
GHL system and regulatory measures implemented to limit guided harvests 
to the GHL. The guided sport fishery has exceeded its GHL since 2004 
and the best available harvest estimates in 2008 indicate that the 
fishery exceeded its GHL 100 percent. A size limit on one of the two 
halibut in the bag limit in 2007 did not substantially constrain the 
charter vessel angler harvest in 2007. To control harvest to 
approximately the GHL in 2009, NMFS is implementing a one-halibut daily 
bag limit.
    Comment 2: IPHC statements demonstrate there is no conservation 
concern. In 2008, the IPHC said the halibut stocks in Area 2C are 
``well above a level of concern'' and there is no cause for ``undue 
alarm.'' The IPHC has projected increases in the available harvestable 
biomass over the next 10 years. The IPHC has stated the proposed 
alternatives are not expected to have a significant impact on the 
halibut stocks or affect the overall harvest determined by the IPHC.
    Response: The statements attributed to the IPHC in the first 
sentence are not presented in context. The comment concerning ``well 
above a level of concern'' was made on page 83 of the IPHC 2008 Annual 
Meeting Bluebook and referred to the ``coastwide'' biomass of halibut, 
not the biomass of halibut in Area 2C. The complete statement was: 
``The coastwide assessment indicates a declining spawning biomass but 
one that is still well above a level of concern or anything close to a 
historic minimum.''
    The second statement concerning no cause for ``undue alarm'' is 
also taken out of context. The complete statement is on page 84 of the 
IPHC 2008 Annual Meeting Bluebook and states, ``Taken together, the 
decline in exploitable biomass in Area 2 is understandable and is not 
cause for undue alarm. However, under a constant exploitation harvest 
strategy, removals by the fishery must come down as the biomass 
declines. Our present view of Area 2 is that harvest rates have been 
much higher than the target harvest rate of 0.20 over the past 
decade.''
    The coastwide biomass of halibut is projected to increase, as the 
comment notes, but only if harvests are restrained within the target 
harvest rates of 0.20 for Areas 2 and 3, and 0.15 for Area 4. Such 
projections do not incorporate the much higher harvests taken in Area 2 
over the past decade.
    The statement that the proposed alternatives are not expected to 
have a significant impact on the halibut stocks or affect the overall 
harvest determined by the IPHC was not made by the IPHC. That comment 
appears to be based on language in the executive summary of the 
analysis (see ADDRESSES) supporting the proposed rule. The commenter's

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statement about a lack of significant impact on halibut stocks 
correctly characterizes the conclusions of the analysis. However, the 
statement about not affecting the overall harvest does not. The 
analysis indicated that harvest rates might be exceeded in the short 
run, but that the IPHC had the ability to offset these by reduced catch 
limits in the longer term. See response to Comment 7 for further 
discussion of this issue. The executive summary of the analysis has 
been revised to more accurately reflect the conclusions of the 
analysis.
    Comment 3: The IPHC's action in basing the 2008 and 2009 commercial 
catch limits on the GHL, rather than on a scientific projection of 
guided harvests in the coming year is evidence that there is no 
conservation concern. In 2008 and 2009, the IPHC deviated from its past 
approach to estimating guided sport harvests for the coming year, and 
based its estimates on the GHL. Because the GHL is likely to be smaller 
than actual harvests, this tends to increase the IPHC's Fishery 
Constant Exploitation Yield (Fishery CEY), on which the longline 
fishery's catch limit is based. The IPHC essentially gave Area 2C 
longline IFQ holders millions of additional pounds of halibut through 
its manipulation of the Fishery CEY formula by using the much lower 
charter halibut GHL number rather than the best available estimate of 
charter catch.
    Response: Through 2007, the IPHC made its allocation decisions 
using a formula that deducted estimated non-commercial user harvests 
for the year, including the guided sport sector harvests, from an 
overall Total CEY. The residual (the Fishery CEY) then formed the basis 
for determining the amount of halibut to allocate to the commercial 
longline fishermen as a catch limit. The catch limit could be greater 
than or less than the residual, depending on whether the stock was 
increasing or decreasing and on the speed with which the IPHC proposed 
to adjust the catch limit to this residual. In 2008, the IPHC used the 
GHL to project charter vessel angler harvests, following a commitment 
by NMFS to implement a one-fish bag limit for the 2008 Area 2C charter 
fishery. NMFS issued a final rule implementing the one-fish bag limit, 
but that rule was enjoined by a court order and was subsequently 
withdrawn. In 2009, the IPHC, assuming that NMFS would implement 
management measures to limit harvest to approximately the GHL, again 
used the GHL to project the guided sport harvest.
    At its 2009 Annual Meeting, the IPHC stated ``* * *national parties 
are cautioned that any departure from these assumed levels of removal 
by the recreational sector will compromise achievement of IPHC harvest 
targets for 2009'' (IPHC 2009 Annual Meeting Bluebook page 138). The 
IPHC use of the GHL as the assumed level of removal for the guided 
fishery reflects the Council's and NMFS' intent to limit the guided 
sport fishery harvest of halibut to a level consistent with GHL trends.
    The concept that using the GHL rather than actual halibut harvests 
increases the amount of fish available to commercial fishermen is 
misleading. The correct context of this result is that when charter 
vessel harvests are close to the GHL, the commercial fishery is not 
penalized through a reduction caused by charter vessel harvests in 
excess of the GHL. This issue is further discussed in the response to 
Comment 9.
    Comment 4: The IPHC's use of its ``Slow Up/Fast Down'' (SUFD) 
policy is evidence that there is no conservation concern. One commenter 
notes that in the last four years through its SUFD policy the IPHC has 
intentionally exceeded the Fishery CEY to the direct benefit of the 
longline fleet by 300,000 lbs in 2006, 900,000 lbs in 2007, and 
2,300,000 lbs in 2008; and has approved another 2,210,000 lbs in 2009. 
The total excess over the Fishery CEY over this period exceeds 
5,680,000 lbs. How can the IPHC and NMFS express a conservation concern 
with a charter vessel catch exceeding a non-binding GHL by 500,000 lbs, 
while at the same time promote harvest by the longline fleet in excess 
of its Fishery CEY by more than 2,000,000 lbs? If this level of overage 
is not considered a conservation issue, how can the 1,400,000 lbs 
allocated to the recreational fishery be considered a conservation 
issue?
    Response: The SUFD policy is an integral part of the IPHC's 
management regime. If the Fishery CEY is bigger than the previous 
year's catch limit, then the IPHC staff's recommended catch limit 
increases by only 33 percent of the difference. If the Fishery CEY is 
less than the previous year's catch limit, the recommended catch limit 
reduction is limited to 50 percent of the difference, as illustrated in 
Figure 2. The commercial catch limit increases and decreases with 
changes in biomass, even with a static GHL, whereas changes to the 
charter sector's GHL occur in a stepwise manner only when specific 
Fishery CEY levels are established by the IPHC (see 50 CFR 
300.65(c)(1)).

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[GRAPHIC] [TIFF OMITTED] TR06MY09.073

    The SUFD component of the IPHC's management regime was not designed 
to advantage the commercial sector. It is designed to ameliorate the 
impacts of large changes in biomass.
    The IPHC's management decisions on annual catch limits are based on 
the underlying stock assessment and the application of its harvest 
management policies to the identified biomass levels in that 
assessment. Accordingly, the Fishery CEY levels of the assessment are 
only one component of the process to determine catch limits and 
conservation targets. The Fishery CEY levels are further modified by 
harvest policy considerations (e.g., the SUFD harvest control rule) in 
deciding on final catch limits. For regulatory areas with Catch Sharing 
Plans, all directed fisheries are affected by these additional policy 
considerations, but this is not the case for GHL-governed fisheries in 
the absence of a Catch Sharing Plan. Notably, the Council's proposed 
Catch Sharing Plan for Areas 2C and 3A charter vessel fisheries could 
bring the charter fisheries under such policy adjustments. Also see 
responses to Comments 10 and 111.
    The Fishery CEY is only one component of the IPHC's harvest 
strategy. The overall harvest rate and the harvest control rules, such 
as SUFD, also are part of the harvest strategy. The IPHC establishes 
its annual conservation targets by considering the underlying stock 
assessment, the harvest rate, and the harvest control rules. The IPHC 
staff has evaluated the impacts of the harvest control rules and the 
application of these rules to establish annual conservation limits to 
ensure that the stock is not compromised by their application. This 
approach has been endorsed by the IPHC. The important part of this 
approach is that it is based on the achievement of the identified 
conservation targets. If these targets are exceeded, the length of time 
that the stock is projected to be below threshold reference points 
increases. This creates a conservation concern and requires reductions 
in the harvest rate. In the case of regulatory areas with Catch Sharing 
Plans, such concerns have not existed because the conservation targets 
for those directed fisheries have not been exceeded.
    The IPHC's mandate under the Convention requires that it enact 
measures to conserve halibut stocks. The IPHC therefore has taken 
strong actions to decrease the catch limits for Area 2C in order to 
lower the realized harvest rate on the exploitable biomass. Catch 
limits adopted by the IPHC for Area 2C over the 2005 to 2009 period 
have decreased by 54 percent. Despite the establishment of the GHL for 
Area 2C guided sport fishery, the benefits of protecting the stock 
biomass have not been realized by the lack of sufficient restrictions 
on the guided sport fishery.
    The 2009 commercial catch limit exceeds the Fishery CEY by about 
2,300,000 lbs, while the best available harvest information indicates 
the charter vessel fishery exceeded the 2008 GHL by almost one million 
pounds. Overages of this magnitude raise conservation concerns. The 
IPHC, the Council, and NMFS, have been attempting to address each 
fishery within the regulatory structure created for it. The Fishery CEY 
and the GHL are different concepts, and different mechanisms are 
available for setting them and for reducing catches to them. The IPHC 
reduced the catch limit by 54 percent between 2005 and 2009. If the 
Fishery CEY remains low, the catch limit would continue to decrease in 
coming years until it became equal to the Fishery CEY. The Council and 
NMFS tried, with the 32-inch size limit in 2007, and with a one-fish 
daily bag limit in 2008, to reduce charter vessel harvests to 
approximately the GHL. The present action imposing a one-fish daily bag 
limit is one part of the effort to reduce overall harvests.
    NMFS notes that the measured response to changing stock conditions 
incorporated in the SUFD policy is similar to the way the charter 
vessel fishery has been managed in practice. The GHL allows for 
moderate reductions in Total CEY without triggering harvest reductions 
for the charter vessel fishery.
    Comment 5: The IPHC Commissioners increased the allocation to the 
commercial sector beyond the amount recommended by IPHC staff by 
reducing the recommended commercial allocations for other regulatory 
areas to increase the allocations for all of Area 2, including Area 2C. 
This is evidence that there is no conservation concern.

[[Page 21199]]

    Response: Biological issues in different management areas are 
related since there is a single coastwide stock of halibut. However, 
IPHC determinations about Area 2C commercial catch limits were made 
independently of determinations about commercial catch limits in other 
areas.
    The IPHC staff recommended commercial catch limit for Area 2C for 
2009 was 4,540,000 lbs (2,059.3 mt) and the IPHC adopted a catch limit 
of 5,020,000 lbs (2,277.0 mt) a difference of 480,000 lbs (217.7 mt). 
The staff recommendation was based on the assessment and application of 
harvest control rules as described in the response to Comment 4. The 
IPHC's adoption of the 5,020,000 lbs (2,277.0 mt) commercial catch 
limit was a reduction of 1,190,000 lbs (539.8 mt or 19 percent) from 
the 2008 commercial catch limit for Area 2C. By adopting a catch limit 
that is higher than its staff's recommendation but lower than last 
year's catch limit, the IPHC was choosing a more gradual reduction than 
that proposed by the staff.
    Comment 6: The IPHC decision to shift from a closed area assessment 
model to the coastwide model is responsible for a decrease in the 
amount of halibut available for harvest in Area 2C. This decision moved 
12 percent of traditional harvest from coastal areas to western Alaska 
where it will be harvested primarily by boats from Seattle. The shift 
in models did not fare well in peer review and is contrary to 76 years 
of halibut management experience. It causes hardship to fishing 
operations in Southeast Alaska, while benefitting large vessel owners 
based far from the resource. Do not adopt a one-fish bag limit at this 
time, and request the IPHC to reinstate the closed area assessment 
model. Doing so would allow continuation of the two-fish daily bag 
limit, and the proposed limited entry and current economic reality 
would reduce charter vessel effort to bring down guided sport halibut 
harvest numbers.
    Response: IPHC shifted from a closed-area to a coastwide approach 
for area-specific biomass determination beginning with the assessment 
for 2007. This has resulted in lower estimates of biomass for Area 2C. 
Growing concerns about net migration from the western to the eastern 
Gulf of Alaska led the IPHC to doubt the accuracy of the closed-area 
biomass assessments that had been done for many years. In 2006, the 
IPHC staff changed the orientation of its stock assessment because new 
scientific information conflicted with previous model assumptions about 
migration between regulatory areas. The new assessment approach 
considered tagging data and mortality rates that suggested that a 
larger fraction of halibut beyond eight years of age continue to 
migrate eastward than previously assumed. The IPHC staff submitted its 
revised stock assessment to independent scientific peer review and the 
IPHC Commissioners were satisfied with the results of the peer review.
    Comment 7: The analysis (see ADDRESSES) for this action says that 
there is no conservation concern. One commenter quoted from sections of 
the analysis at pages xiv, 29, 56, and 57, that state the action will 
not have significant impacts, that the objective of the action is 
distributive, and that no adverse impacts are expected because the IPHC 
takes account all significant resource removals.
    Response: The analysis finds that the action would not have 
significant environmental impacts. The purpose of an analysis is to 
determine whether an action of the federal government will have a 
significant impact on the human environment, and whether an 
environmental impact statement is necessary. The draft analysis for 
this action evaluated the environmental impacts of the action and found 
that it would not have a significant environmental impact. This 
conclusion is not the same as a statement that an action does not have 
a management or conservation purpose.
    As noted in the response to Comment 1, when multiple user groups 
must operate within a shared overall harvest, distribution and 
conservation questions are inseparable. Any conservation mandated 
increase or decrease in the shared overall harvest must be shared among 
the different user groups. If one group exceeds its allocation, either 
the conservation limit will be exceeded, or another user group must 
find its share of the harvest reduced.
    No adverse impacts are expected because the IPHC takes account of 
resource removals, but as the analysis goes on to state, there is a 
potential for exploitation rates to be exceeded in the short run under 
the status quo, and that the IPHC can address this in the longer run 
with offsetting policy measures. This consideration reflects the issues 
raised when multiple user groups fish against a common overall harvest 
objective that were discussed in the second paragraph of this response.
    Finally, NMFS has new information at this time that was not 
available at the time the analysis was completed. This new information 
includes the best available logbook-based information on the 2008 
guided angler harvest from ADF&G in November 2008, the Area 2C Total 
CEY, Fishery CEY, and catch limit determinations made by the IPHC in 
January 2009, and the new GHL published February 24, 2009 (74 FR 8232). 
The best available 2008 harvest information indicating that the GHL was 
exceeded again in 2008 and that the 32-inch maximum size limit on one 
fish was not effective in 2008, and the continued declines of the Total 
CEY, Fishery CEY, and GHL in 2009, heighten management and conservation 
concerns.
    Comment 8: The proposed rule does not identify a conservation 
objective.
    Response: The preamble to the proposed rule clearly identified the 
following conservation objective:

    This action addresses conservation of the resource, by 
restricting catch to approximately the GHL, so that the IPHC's 
projected harvest of halibut by guided anglers, which is assumed by 
the IPHC to equal the GHL, adequately reflects actual catches for 
purposes of managing sustainable removals of the halibut resource. 
This action also addresses an allocation of halibut fishing 
privileges among various U.S. fishermen, by giving effect to a 
Council recommendation on how to assign such privileges consistent 
with the criteria found in section 773c(c) of the Halibut Act.

    These criteria include expectations for harvest limits that are 
reasonably calculated to promote conservation.
    Comment 9: The rule would not leave any more fish in the water as a 
result of the one-fish limit. Any charter vessel reduction simply 
increases the longline harvest.
    Response: The objective of this action is explained above under the 
heading ``objective of this action.'' This action should reduce the 
overall harvest rate from all fisheries in Area 2C to a level closer to 
the 20 percent harvest rate target set by the IPHC for conservation of 
the resource. If successful, a reduction in the charter vessel harvest 
should leave more halibut in the water to the benefit of all fisheries 
now and in future years, as well as benefit the health and reproductive 
potential of the resource.
    Comment 10: If this is a conservation issue, why is it going to be 
all right for the charter business to buy guided angler fish from the 
longline sector for that second fish?
    Response: The term ``guided angler fish'' refers to part of a Catch 
Sharing Plan proposed by the Council in October 2008, for resolving 
halibut resource allocation issues between the commercial and charter 
vessel fisheries. The proposed Catch Sharing Plan has not been 
submitted to NMFS for review and is outside the scope of this final 
rule. Once the Catch Sharing Plan is submitted, NMFS will publish a

[[Page 21200]]

proposed rule in the Federal Register for public review and comment.
    Comment 11: In an editorial in the Juneau Empire dated September 
21, 2008, the Deputy Director of the Council stated that no stock of 
groundfish off Alaska is overfished or subject to overfishing.
    Response: NMFS notes that the reference to groundfish is to the 
species managed under the Council's two groundfish fishery management 
plans. Pacific halibut is not a ``groundfish'' as that term is defined 
in those plans or in their implementing regulations.
    Comment 12: Because the 32-inch rule in 2008 applied to charter 
boats only, the implication is that the action was not designed to 
protect resources, but rather to target charter boats.
    Response: The 32-inch rule in 2008 applicable to charter vessel 
anglers in Area 2C was first implemented in 2007 (72 FR 30714, June 4, 
2007). That rule allowed a daily bag limit of two halibut but required 
at least one of the two fish to be no more than 32 inches (81.3 cm) in 
length. This rule was applied to charter vessel anglers in Area 2C 
because the number of guided vessels participating in the charter 
fishery was increasing rapidly and the charter vessel sector (about 67 
percent of the combined charter and non-charter sport harvest), had 
exceeded its GHL in Area 2C in 2004, 2005, and 2006.
    The 32-inch rule was designed to maintain a two-halibut bag limit 
and reduce the halibut harvest by the charter vessel sector in Area 2C 
to a level comparable to the seasonal one-halibut bag limit proposed 
that year by the IPHC. The 32-inch rule did not appear to have its 
intended effect. The charter vessel harvest in 2007 actually increased 
about six percent compared to the charter vessel harvest in 2006. 
Because the 32-inch rule proved ineffective at reducing the Area 2C 
charter vessel harvest to a level consistent with GHL trends while 
maintaining a two-halibut daily bag limit, more restrictive measures 
are warranted.
    Comment 13: In the responses to several comments in the final rule 
that implemented a one-fish halibut bag limit in 2008 (73 FR 30504, May 
28, 2008), NMFS asserted that there was no conservation rationale in 
its defense of the 2008 one-fish limit. In the response to Comment 79, 
NMFS agreed that the rule dealt with a pure allocation issue and did 
not present any resource conservation questions. NMFS went on to say, 
``* * * the healthy status of the halibut resource is evidence that 
IPHC policies are conservative and successful.'' In the response to 
Comment 81, NMFS said, ``The best available evidence indicates that the 
Area 2C stock is not over fished and the IPHC has not made that 
determination.'' In the response to Comment 82, NMFS said, ``* * * the 
environmental analysis prepared for this rule did not find that failure 
to limit the guided sport charter vessel halibut harvest to the GHL 
would cause significant environmental impacts on the resource.'' Thus, 
there is no conservation concern.
    Response: As noted in the response to Comment 1, conservation 
issues are inherent when the harvests of multiple user groups are being 
constrained to stay within an overall aggregate harvest limit.
    The essence of last year's Comment 79 was that conservation of the 
halibut resource is an objective of the IPHC's policies and the need 
for restrictions on the charter vessel sector is primarily one of 
allocation. NMFS acknowledged the long history of the IPHC in 
maintaining a relatively healthy halibut resource coastwide. This final 
rule thus supports the appropriateness of the IPHC's caution that 
departures from assumed levels of harvest, such as the GHL, will 
compromise the IPHC's ability to achieve its overall harvest strategy. 
NMFS would modify that response now in light of recent information 
indicating the effects of several previous years of excessively high 
harvest rates in Area 2C. Hence, this action has a conservation effect 
of helping to reduce the overall harvest rate in Area 2C while also 
serving an allocation purpose.
    Comment 81 did not say that the rule does not have a conservation 
objective. It says that the fishery was not over fished at the time of 
the publication of the final rule (May 2008). An action may have a 
conservation objective under those circumstances. Both Comment 81 and 
Comment 82 discuss the role of the one-fish bag limit in helping the 
IPHC achieve its exploitation yield objectives for the fishery.
    Comment 82 referred to the significance determination made in the 
environmental assessment for the 2008 action. A NEPA analysis is meant 
to determine whether or not the action would have a significant impact 
on the human environment in order to determine whether or not an EIS 
would be necessary, but does not preclude an action from having a 
conservation objective. The analysis concluded that the action would 
not have a significant impact on the human environment. This is not the 
same thing as determining that the action would have no impact on the 
halibut resource or on resource management.
    Comment 14: The final rule should provide a clearer explanation of 
the conservation rationale. The proposed rule does not fully explain 
the conservation imperative for holding the charter harvest to the 2009 
GHL. The rule must be corrected to explain the conservation basis, 
including area-wide and local depletion issues, and the imperative 
conservation mandate to restrict charter harvest to the GHL given the 
status of the Area 2C halibut resource.
    Response: The response to Comment 1 describes the conservation 
rationale for this action. As explained in the response to Comment 65, 
NMFS does not have scientific information to characterize localized 
depletion or attribute it to a particular gear group. This action was 
not intended to address localized depletion of the halibut resource.
    Comment 15: According to the 2008 IPHC Annual Report, North Pacific 
halibut stocks have declined fishery wide by 10 percent from 2007 
levels. The Area 2C exploitable biomass of halibut has declined by an 
estimated 58 percent over the past three years and is near historic low 
levels. Halibut catch rates, or the amount of fish caught per hook set 
or hours fished, have declined in all Area 2C sectors including the 
catch rates of charter halibut anglers. This drop in catch rates is 
evidence that all fishermen are working harder to catch halibut because 
there are less halibut to catch. The IPHC now understands that 
assessment models used before 2008 overestimated abundance in Area 2 
(which includes the Pacific Northwest (2A), British Columbia (2B), and 
Southeast Alaska (2C)). In a summary of the 2007 stock assessment, IPHC 
staff said that a disproportionate share of the halibut catch has been 
coming from Area 2. Other resource considerations, such as slowed 
growth rates and the overharvest of older, more fecund fish from the 
population also indicate the need for caution and reduced harvest.
    Response: NMFS agrees with the comment that the overall harvest 
rate from all sources of fishing mortality in Area 2 should be reduced. 
This action will contribute to that goal by reducing the harvest of 
charter vessel anglers in Area 2C and will work in concert with actions 
taken by the IPHC to reduce the overall exploitation rate in Area 2C.
    Comment 16: The IPHC has expressed concern about the Area 2C 
halibut stocks and has emphasized the need to reduce Area 2C 
exploitation rates for conservation reasons. The IPHC has stated that 
failure to control the charter sector harvests in Area 2C exacerbates

[[Page 21201]]

conservation concerns for halibut in that area.
    Response: Reducing charter vessel angler harvests in Area 2C likely 
would have conservation benefits by reducing the overall harvest rate 
in this area. This action is intended to have this effect. Also see 
response to Comment 14.
    Comment 17: The IPHC has taken action to address conservation in 
Area 2C by reducing the commercial fishery catch limits. Area 2C 
longline catch limits have been reduced by an unprecedented amount, 
totaling 53 percent over the past three years.
    Response: NMFS agrees that the commercial halibut fishery in Area 
2C has faced large reductions in its catch limits in recent years.
    Comment 18: Catch limits must be adhered to for protection of the 
resource. In the absence of a one-halibut daily limit, the Area 2C 
charter industry can be reasonably expected to once again double its 
GHL because status quo management resulted in a 2008 charter vessel 
harvest of 1,900,000 lbs in Area 2C. This 2008 harvest marked the fifth 
consecutive year in which the Area 2C harvest of halibut by the charter 
sector exceeded the conservation target established for the sector by 
the IPHC. Quoting again from an IPHC statement in May, 2008, 
``Exceeding the GHL specified for 2008 in Area 2C will mean that the 
combined removals by all sectors in 2008 will exceed the IPHC's 
conservation targets, which have been accepted by the U.S. government, 
to the detriment of the halibut stock in this area.''
    Response: The premise of this comment is that the overall harvest 
rate target that the IPHC has for Area 2C can not be achieved without 
all sources of fishing mortality staying at about the level that the 
IPHC uses as the best available estimate of harvest. The best available 
estimate of 2008 charter vessel harvest for Area 2C is based on ADF&G 
logbook and creel survey information. The ADF&G estimated a charter 
vessel harvest of 1,914,000 lbs for 2008. The Council, the public, and 
NMFS will likely receive the final 2008 charter vessel harvest 
estimate, based on the statewide postal survey, in November or December 
2009.
    However, the best available estimates indicate that the 2008 GHL of 
931,000 lbs was exceeded. The GHL is not a conservation target 
established by the IPHC. The Council developed the GHL as a level of 
harvest to target for the guided sector, and NMFS implemented it as 
such. Nevertheless, exceeding the GHL likely would contribute to 
exceeding the overall harvest rate target estimated by the IPHC for 
Area 2C for conservation purposes.
    The overall target harvest rate set by the IPHC for Area 2C would 
be undermined in the absence of controls on fisheries that take 
significant amounts of halibut. Without knowledge of the economic 
demand for charter vessel fishing trips in Area 2C and other factors 
that are difficult or impossible to forecast, NMFS can not estimate 
what the charter vessel fishery would harvest in the absence of this 
action. NMFS can say, however, that without this action, the Area 2C 
charter vessel fishery would likely substantially exceed its GHL. 
Further, harvest controls implemented in 2007 (two-halibut daily bag 
limit if one is no more than 32 inches) did not appear to reduce the 
guided harvest as intended. In fact, guided harvest increased from 2006 
to 2007. This experience indicates a need for the more restrictive 
controls implemented by this action.
    Comment 19: Until 2007, increased charter harvest resulted in a 
direct reallocation of halibut from the longline to the charter sector. 
This occurred as a result of the IPHC quota setting process, which 
subtracts from the total area CEY the estimated sport, subsistence, 
charter, bycatch and wastage removals of halibut, then establishes the 
remainder as the Fishery CEY, or longline catch limit. Longline 
fishermen expected the reallocation to end when the GHL was 
established. However, because charter harvest control measures were not 
in place in 2005 and 2006, the IPHC used projected catch, instead of 
the GHL, to estimate charter harvest, and charter GHL overages were 
deducted from the longline quota in an effort to constrain total 
harvest to the area CEY. In other words, the charter sector's overages, 
totaling over one million pounds, continued to be deducted from the 
IFQs of longline fishermen even after the GHL was implemented, despite 
the substantial investments longline fishermen have made in those quota 
shares under the IFQ program, and the adherence of longline fishermen 
to IPHC catch limits. It is unfair and inequitable to punish fishermen 
who are living within restrictive catch limits for the excess harvest 
of a sector that ignores resource constraints and consistently 
overfishes.
    Response: The GHL for Area 2C was established in 2003 (August 8, 
2003, 68 FR 47256). As stated in that action, the GHL is an acceptable 
amount of halibut harvest by charter vessel anglers during a year in an 
area. By itself, it does not impose any restriction on the charter 
vessel fleet. Hence, an expectation by longline fishermen that the GHL 
would automatically limit the charter vessel fishery to the GHL was 
mistaken.
    The Council has the authority to develop regulations that would 
restrict the charter vessel fishery to the GHL if that is determined by 
the Council to be necessary. In June 2007, the Council took final 
action to limit guided harvest to approximately the GHL. It was that 
June 2007 final action that led to this final rule.
    Policy making, including data collection, analysis, and rulemaking, 
is a time-consuming process. NMFS will act as promptly as it can with 
the best information available to give effect to Council action. NMFS 
understands the frustration of IFQ fishermen who have seen their shares 
eroded by increasing harvests above the GHL by the guided sector. This 
action is designed in part to remedy this situation.
    Comment 20: The IPHC recommended a one-halibut daily limit for 
charter vessel anglers in Area 2C and, assuming the management measure 
would be implemented, did not subtract charter halibut overages from 
the longline catch limit for 2007. In 2008, the IPHC again assumed the 
one-halibut daily limit would be in place to prevent GHL overages, and 
established the longline catch limit accordingly. For this reason, the 
lawsuit filed by Southeast charter operators that stayed implementation 
of the one-halibut daily limit resulted in an unaccounted-for overage 
of the Southeast Total CEY in 2008.
    Response: NMFS acknowledges the comment. If the IPHC bases its 
estimate of the Fishery CEY and the catch limit on the assumption that 
charter vessel anglers will harvest the GHL, the Total CEY will be 
exceeded if charter vessel anglers exceed the GHL, the commercial 
fishery harvests its catch limit, and other user groups take the 
harvests the IPHC expected they would.
    Comment 21: Because NMFS published the one-halibut daily limit 
proposed rule on December 22, 2008, the IPHC assumed that the 2009 
charter harvest would be restricted to the Area 2C GHL and recommended 
longline catch limits accordingly. Failure to implement the rule will, 
in the short-term, result in overharvest of the Area 2C resource.
    Response: NMFS acknowledges the IPHC's assumption of timely 
implementation of the one-fish bag limit rule for the 2009 guided 
fishery season. Although this final rule will contribute to the 
conservation of halibut in Area 2C, by itself, a one-fish bag limit may 
not prevent the total halibut harvest in Area 2C from exceeding the 
harvest rate target set for this area by the IPHC.

[[Page 21202]]

    Comment 22: In the absence of this action, the cuts to the longline 
fleet will have no effect on helping the halibut stocks recover. 
Continuing to allow the charter vessel sector to exceed its GHL 
compromises the halibut resource and undermines the IPHC's effort to 
rebuild the stocks.
    Response: NMFS disagrees. Even in the absence of this action, cuts 
to commercial catch limits would help constrain harvest in Area 2C and 
contribute to the achievement of exploitation yield targets. Also see 
responses to Comments 1 and 19.
    Comment 23: The commercial halibut fishery is under stress because 
of overfishing by charter and sports sectors. The charter sector has 
exceeded GHL for several years.
    Response: NMFS agrees that guided harvest in excess of the GHL for 
several years in Area 2C is a contributing factor to harvests in this 
area exceeding harvest targets set by the IPHC.
    Comment 24: It is important to the IPHC goal of lowering the 
historical harvest rate in Area 2C that the schedule of annual catch 
limits and harvest rates adopted by the IPHC be met. Uncontrolled 
harvest by the charter vessel fishery or harvests in excess of 
established GHL levels that formed part of the IPHC's decision on 
commercial annual catch limits will result in negative impacts on the 
IPHC's ability to achieve its stock management goal. Not implementing a 
one-halibut daily limit for the charter vessel fishery in 2009 could 
result in a harvest rate approximately 15 percent higher than that 
assumed for the IPHC's commercial catch limit. The impact of a 
consistent overage of this level puts at risk various stock metrics of 
production, including potentially falling below the threshold reference 
point for this stock at which the harvest rate must be decreased 
linearly with biomass. Ultimately, the associated harvest rate could 
fall to zero (no directed fishery) if the spawning biomass falls to the 
limit reference point.
    Response: NMFS agrees that the target exploitation rate of 20 
percent set by the IPHC for Area 2C would be undermined to the extent 
that the amount of halibut harvested by charter vessel anglers exceeds 
the GHL for Area 2C.
    Comment 25: The halibut harvests by charter vessel anglers are 
overestimated. The charter vessels are not even close to taking the GHL 
on a yearly basis.
    Response: The best scientific information available on the harvests 
of halibut in Area 2C comes from the ADF&G's postal survey, logbook, 
and creel survey programs. This information indicates a steady increase 
in halibut harvest by charter vessel anglers starting from 1999 to 
2005. In 1999, the guided harvest in Area 2C was estimated at 939,000 
lbs (425.9 mt). The guided harvest increased annually to a peak in 2005 
of 1,952,000 lbs (885.4 mt). In 2006 the charter harvest declined 
slightly to 1,804,000 lbs (818.3 mt) but increased again in 2007 to 
1,918,000 lbs (870.0 mt). The charter harvest in 2004 through 2007 was 
consistently above the GHL as indicated in Table 1 of this preamble. 
The final estimate of guided harvest in 2008 has not been developed by 
ADF&G, but the best available estimates indicate that the harvest 
exceeded the GHL.
    Comment 26: The halibut harvests by charter vessel anglers are 
underestimated. One commenter has seen suspiciously large volumes of 
halibut being shipped out of Wrangell. One charter operator shipped 428 
lbs of halibut for one client and said that there were no weight limits 
on charter halibut. Once, two fishermen left Wrangell with 28 boxes of 
fish or about 1,900 lbs. Overfishing is not rare. Therefore, the 
commenter supports the one-fish daily bag limit.
    Response: NMFS appreciates the commenter's notes and regards 
potential retention violations as an enforcement issue. Halibut can 
grow quite large. It is possible that charter vessel anglers could 
harvest hundreds of pounds of halibut and other fish in full compliance 
with existing daily bag limits. The charter operator is correct in that 
there are no poundage limits on sport charter halibut catch. Limits on 
the sport harvest of halibut are on the number of fish caught and 
retained, not on the total pounds of halibut harvested as the 
commercial fishery is regulated. Nevertheless, information regarding 
illegal halibut harvests should be reported to the NOAA Office of Law 
Enforcement.
    Comment 27: Because the charter vessel fleet's catching capacity 
has outgrown monitoring and accounting systems, impacts of charter 
catch on the halibut resource likely are underestimated. A 2008 report 
prepared by ADF&G states that existing catch accounting systems for the 
charter harvest of halibut in Southeast Alaska may underestimate that 
harvest by 20 percent. Hence, the actual GHL overages in recent years 
may be far greater than reported and are a significant cause of the 
rapid decline of the Area 2C halibut stocks.
    Response: The comment refers to a study of logbook and Statewide 
Harvest Survey data prepared by ADF&G in 2008. The study reported that 
estimates of numbers of charter halibut derived from logbook 
information and creel census information were 23 percent greater than 
similar estimates derived from the Statewide Harvest Survey, and that 
estimates of halibut weight were 16 percent greater. The report, 
however, did not say that catch accounting systems may underestimate 
harvest. ADF&G is scheduled to present an expanded report to the 
Council in late 2009 that compares additional years of data to better 
assess the comparison between logbook and Statewide Harvest Survey 
estimates of halibut harvest by anglers on board charter vessels. Until 
this study is completed, ADF&G has indicated that it will continue to 
rely on the estimates of harvest derived from the survey as best 
representing charter vessel fishery harvests.

Guideline Harvest Level

    Comment 28: The GHL is a guideline, advisory in nature, and was not 
meant to constrain overall guided sport harvests. It is not a hard cap, 
either in the sense that the fishery would be closed within a year if 
it were reached, or in the sense that the guided fishing must be more 
heavily regulated so as to keep overall guided harvests within it if it 
has been or is likely to be exceeded. It represents a non-binding 
random political reference number. According to the December 31, 2007 
proposed rule to limit charter vessel anglers to one halibut per day 
(72 FR 74258), the GHL is not supposed to restrict or limit in any way 
angler harvests from charter vessels.
    Response: The Area 2C GHL was established in 2003 as a benchmark 
for a level of guided harvest (August 8, 2003, 68 FR 47256). By itself, 
the GHL does not restrict or limit charter vessel anglers, as 
demonstrated by the fact that charter vessel harvest exceeded the Area 
2C GHL in four consecutive years, 2004 through 2007.
    The GHL is not a limit above which further fishing is prohibited, 
which is often referred to as a ``hard cap.'' NMFS normally manages 
commercial fisheries for groundfish off Alaska in this manner, closing 
a fishery when it reaches its specified catch limit regardless of 
whether time remains in the fishing season. In recommending the GHL, 
however, the Council's intent was that guided harvests would not lead 
to a mid-season closure of the fishery because of the nature of guided 
businesses. Hence, the GHL is a benchmark and not a limit like a hard 
cap.
    The GHL was developed by the Council and approved by NMFS as an 
allowable level of harvest for the charter vessel fishery that is 
linked to halibut

[[Page 21203]]

abundance. Hence, this allowable level of harvest decreases in stepwise 
increments as the abundance of halibut decreases. Further, the Council 
and NMFS have the authority to take subsequent regulatory action to 
control the harvest of the charter vessel fishery as necessary to stay 
within its GHL. Thus, this regulatory action to reduce the harvest of 
halibut by charter vessel anglers in Area 2C is completely within the 
authority of NMFS, and is being implemented to meet the policy of the 
Council when it recommended the GHL.
    The citation from 72 FR 74258 does not provide the full context of 
the remark, which reads,

    The GHLs serve as benchmarks for monitoring the charter vessel 
fishery relative to the commercial fishery and other sources of 
fishing mortality. The GHLs do not limit the charter vessel 
fisheries. Although it is the Council's policy that the charter 
vessel fisheries should not exceed the GHLs, no constraints have 
been imposed on the charter vessel fisheries for GHLs that have been 
exceeded in the past.

    The text states that the GHLs themselves do not constrain harvest, 
but that the Council policy is that the guided sector should not exceed 
the GHLs. More details on the Council's policy response to GHL overages 
may be found in the responses to Comments 19 and 29.
    Comment 29: The final rule implementing the GHL states that the GHL 
is the ``level of allowable harvest by the charter vessel fishery'' (68 
FR 47256, 47257). The GHL is not a benchmark but is meant to be a 
maximum harvest amount. The Council intended that the GHLs would not 
close the fishery in season but would instead trigger other management 
measures in years following attainment of the GHL (68 FR 47259). In 
October 2008, the Council stated its intent to maintain the GHL and 
manage halibut charter vessel harvest to their allocation limits. Each 
year since the GHL was implemented the charter fleet has exceeded their 
allowable harvest. The charter fleet is still growing with an increased 
number of anglers served, fishing trips, and active vessels. NMFS 
should not use the words ``benchmark'' or ``approximately to the GHL'' 
in the final rule.
    Response: No changes from the proposed rule are made in the final 
rule. As noted in our response to Comment 28 above, the Area 2C GHL was 
established in 2003 as a benchmark for a level of guided harvest, and 
the approved GHL policy contemplates that the Council and NMFS would 
take subsequent regulatory action to control the harvest of the charter 
vessel fishery as necessary to stay within its GHL. NMFS uses the term 
``approximately to the GHL'' because it does not have tools to manage 
guided harvest to precisely the GHL.
    Comment 30: There is no analysis of the interaction between 
removals in excess of the Total CEY and the GHL, and this is not 
covered in the proposed rule.
    Response: The IPHC takes all sources of halibut fishing mortality 
into account when setting the Total CEY. Hence, to the extent that 
harvests of halibut by charter vessel anglers in Area 2C can be 
reduced, any removals in excess of the Total CEY for this area also 
should be reduced.
    Comment 31: The IPHC substituted the GHL for the best estimate of 
guided recreational harvest in its calculation of Area 2C and 3A 
directed fisheries and set a GHL of 931,000 lbs instead of a more 
realistic harvest estimate of 1,900,000 lbs. This policy resulted in 
the Fishery CEY being inflated by approximately one million pounds and 
the subsequent overharvest of the total CEY by the same amount. It is 
obvious that an allocation scheme, which allocates millions of pounds 
of fish in excess of the Fishery CEY to commercial fishermen at the 
expense of the GHL in following years, is neither fair nor equitable.
    Response: NMFS disagrees. The IPHC's use of the GHL in the 
calculation of catch limits reflects the stated intent of NMFS and the 
Council to manage charter fisheries to stay within its GHL (see the 
response to Comment 28). The statement that the policy would result in 
an ``* * * overharvest of the total CEY by the same amount [one million 
pounds]'' is based on a conclusion that the charter fishery will not be 
managed to its GHL in 2009. This is counter to the Council's intent and 
the NMFS's management goals for 2009.
    Comment 32: NMFS and the Secretary have failed to validate the need 
for the arbitrary and capricious GHL allocation. The charter fishery 
has only grown one percent a year since 1993 and only accounts for 
seven percent of the removals in Alaska, while the commercial industry 
removes 90 percent. Although GHL policy recognized a 25 percent growth 
in the charter fishery from the 1995 to 1999 catch, it did not provide 
for a fair and equitable allowance considering the 100 percent free 
increase in commercial quota shares during 1997 and 1998. Moreover, it 
is not fair and equitable to impose the one-fish bag limit on the 
guided halibut anglers when the longline fishermen already enjoy a 
disproportionate share of the resource. Some commenters characterized 
the large longline share as an excessive share.
    Response: The GHL for Area 2C was determined to be consistent with 
the Halibut Act and other applicable federal law when it was 
implemented in 2003 (August 8, 2003, 68 FR 47256).
    Growth in the halibut harvests by the charter vessel fishery may be 
slight on an Alaska-wide basis; however, this action is focused on 
reducing harvests only in Area 2C. In this area, charter vessel fishery 
harvests increased from 939,000 lbs (425.9 mt) in 1999 to 1,952,000 lbs 
(885.4 mt) in 2005. This is an increase of 1,013,000 lbs (459.5 mt) or 
107 percent over six years. In 2006 and 2007, charter vessel anglers in 
Area 2C did not increase their halibut harvest above the record high 
harvest in 2005; however, the harvest in 2007 (the most recent year for 
which final sport harvest estimates are available) remained slightly 
more than 100 percent above the harvest in 1999. The percentage of the 
sport harvest generally and charter vessel harvest in particular also 
is much higher in Area 2C than in other areas of Alaska. In 2007, total 
removals