Pacific Halibut Fisheries; Limited Access for Guided Sport Charter Vessels in Alaska, 554-604 [E9-30662]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Rules and Regulations]
[Pages 554-604]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30662]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 902; 50 CFR Parts 300 and 679



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

Federal Register / Vol. 75 , No. 2 / Tuesday, January 5, 2010 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 300 and 679

[Docket No. 080630798-91430-02]
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: Final rule.

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SUMMARY: NMFS issues regulations creating a limited access system for 
charter vessels in the guided sport fishery for Pacific halibut in 
waters of International Pacific Halibut Commission Regulatory Areas 2C 
(Southeast Alaska) and 3A (Central Gulf of Alaska). This limited access 
system limits the number of charter vessels that may participate in the 
guided sport fishery for halibut in these areas. NMFS will issue a 
charter halibut permit to a licensed charter fishing business owner 
based on his or her past participation in the charter halibut fishery 
and to a Community Quota Entity representing specific rural 
communities. All charter halibut permit holders are subject to limits 
on the number of permits they may hold and on the number of charter 
vessel anglers who may catch and retain halibut on permitted charter 
vessels. This action is necessary to achieve the approved 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: February 4, 2010, except for Sec.  300.66(b), (i), and (o), and 
Sec.  300.66(r) through (v), and Sec.  300.67(a), which will be 
effective on February 1, 2011.

ADDRESSES: Electronic copies of the Environmental Assessment (EA), 
Regulatory Impact Review (RIR), and Final Regulatory Flexibility 
Analysis (FRFA) (collectively, Analysis) prepared for this action may 
be obtained from https://www.Regulations.gov or from the Alaska Region, 
NMFS on the 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 
proposed rule may be submitted by mail to NMFS, Alaska Region, P.O. Box 
21668, Juneau, AK, 99802-1668, Attn: Ellen Sebastian, Records Officer; 
in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, 
Juneau, AK; and by e-mail to David_Rostker@omb.eop.gov or fax to 202-
395-7285.

FOR FURTHER INFORMATION CONTACT: Rachel Baker, 907-586-7228.

SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission 
(IPHC) and National Marine Fisheries Service (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, DC, on March 29, 1979). Regulations developed by the IPHC 
are subject to approval by the Secretary of 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 19, 2009, 
at 74 FR 11681. IPHC regulations affecting sport fishing for halibut 
and charter vessels in Areas 2C (Southeast Alaska) and 3A (Central Gulf 
of Alaska) may be found in sections 3, 25, and 28 (74 FR 11681, March 
19, 2009).
    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 (USCG) 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 a step in the development of 
that regulatory program and has been approved by the Secretary pursuant 
to section 773c(c).

Background and Need for Action

    A comprehensive history of management of the guided sport fishery 
for halibut was presented in the proposed rule for this action 
published April 21, 2009 (74 FR 18178). This description focused on the 
history and rationale leading to the Council's development of limited 
access management for the charter vessel fishery and its recommendation 
of this limited access system in 2007. In brief, the principal concern 
was overcrowding of productive halibut grounds due to the growth of the 
charter vessel sector. The Council found that the charter vessel sector 
was the only halibut harvesting sector that was exhibiting growth in 
IPHC Areas 2C and 3A. Other harvesting sectors have specified catch 
limits that cause fishery closures when reached or are relatively 
stable over time. The Council recommended this limited access system to 
provide stability for the guided sport halibut fishery and decrease the 
need for regulatory adjustments affecting charter vessel anglers while 
the Council continues to develop a long-term policy of allocation 
between the commercial and charter vessel sectors.
    The Council adopted its limited access policy on March 31, 2007, 
and submitted it for review to the Secretary pursuant to section 
773c(c). By publishing this rule, NMFS announces Secretarial approval 
of this Council recommendation. A proposed rule for the recommended 
limited access system was published April 21, 2009 (74 FR 18178) 
soliciting public comments on the proposal until June 5, 2009. All 
comments received during this comment period are summarized and 
responded to below. Some changes from the proposed rule are made as a 
logical outgrowth from the proposed rule. These changes also are 
described below.
    Following is a summary description of the charter halibut limited 
access system and how it is designed to operate. A more thorough 
description of the action is presented in the preamble to the proposed 
rule published April 21, 2009 (74 FR 18178). Additional detail is 
presented in responses to comments below.

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Charter Halibut Limited Access System--Operational Aspects

General

    This action limits the entry of charter vessels into the guided 
sport fishery for halibut in waters of IPHC Regulatory Areas 2C 
(Southeast Alaska) and 3A (Central Gulf of Alaska). After the effective 
date of this rule (see DATES), any person operating a charter vessel 
engaged in halibut fishing in Areas 2C or 3A is required to have on 
board the vessel a charter halibut permit designated for that area. 
Qualifications for a charter halibut permit in each area are determined 
independently. A charter halibut permit can be either transferable or 
non-transferable depending on the qualifications of permit applicants. 
Each permit will 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. In 
addition, this action provides for two special permits--a community 
charter halibut permit and a military charter halibut permit.

Qualifications for Charter Halibut Permit

    To receive an initial allocation of a charter halibut permit, an 
applicant must demonstrate participation in the charter halibut fishery 
during an historic qualifying period and during a recent participation 
period. The historic qualifying period is 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. Minimum 
participation criteria need be met in only one of these years--2004 or 
2005. The recent participation period is the sport fishing season 
established by the IPHC in 2008. This year was selected as the recent 
participation period because it is the most recent year for which NMFS 
has a complete record of saltwater charter vessel logbook data from the 
State of Alaska Department of Fish and Game (ADF&G).
    The minimum participation qualifications include documentation of 
at least five logbook fishing trips during one of the qualifying 
years--2004 or 2005--and at least five logbook fishing trips during 
2008. Meeting these minimum participation qualifications could qualify 
an applicant for a non-transferable charter halibut permit. The minimum 
participation qualifications for a transferable charter halibut permit 
include at least 15 logbook fishing trips during one of the qualifying 
years--2004 or 2005--and at least 15 logbook fishing trips during 2008.
    The basic unit of participation for receiving a charter halibut 
permit will be a logbook fishing trip. A ``logbook fishing trip'' is a 
bottomfish logbook fishing trip during the qualifying years, 2004 and 
2005, and as a halibut logbook fishing trip in 2008. A logbook fishing 
trip is 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.

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 will determine how many permits the applicant 
will receive and how many of those, if any, will be transferable 
permits. If an applicant qualifies for any permits, NMFS will issue to 
the applicant the number of permits equal to (a) the applicant's total 
number of bottomfish 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 applicant will select which year in the 
qualifying period--2004 or 2005--NMFS will use in making this 
calculation.
    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 rule, NMFS will calculate 23 / 5 = 4.6 which will be rounded down 
to four. But this number of permits will be limited by the number of 
vessels that made all the logbook trips in the applicant-selected year 
which was three. Hence, the applicant will be awarded three permits.

Transferable Permits

    After determining the total number of permits, NMFS will determine 
which permits are transferable and which are nontransferable. An 
applicant will receive a transferable permit for each vessel that made 
at least 15 trips in the applicant-selected year (2004 or 2005) and at 
least 15 trips in the recent participation year (2008). The same vessel 
must have made all the trips within a year; however, the same vessel 
did not have to be used in the qualifying year and the recent 
participation year. The rest of the applicant's permits, if any, will 
be non-transferable permits. Applicants that do not have the minimum of 
15 logbook fishing trips from the same vessel in each period but 
qualify for one or more permit(s) with a minimum of five logbook 
fishing trips, will receive only non-transferable permit(s). Hence, in 
the example above of an applicant with 23 logbook trips using three 
vessels, that applicant will receive three permits. Based on the 15-
trip minimum criterion, however, this applicant will receive only one 
transferable permit and the other two permits will be non-transferable.

Angler Endorsements

    Each charter halibut permit will have an angler endorsement number. 
The angler endorsement number on the permit is the maximum number of 
charter vessel anglers that may catch and retain halibut on board the 
vessel. The angler endorsement does not limit the number of passengers 
that an operator may carry, only the number that may catch and retain 
halibut. The angler endorsement will be equal to the highest number of 
anglers that the applicant reported on any logbook fishing trip in 2004 
or 2005, subject to a minimum endorsement of four.
    The term ``charter vessel angler'' is defined by this action to 
include all persons, paying or non-paying, who use the services of the 
charter vessel guide. The charter halibut permit, once issued with its 
angler endorsement, will limit the number of charter vessel anglers 
authorized to catch and retain halibut on the permitted vessel.
    A vessel operator will be able to stack permits to increase the 
number of charter vessel anglers on board. 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 can 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 for-hire operation regulations, prevent 10 
anglers from being on board the vessel, the charter halibut permits 
will not authorize the vessel operator to violate those provisions of 
law.

Initial Allocation Process

    Several basic standards are required to initially receive a charter 
halibut permit. These standards include (1) timely application for a 
permit, (2) documentation of participation in the charter vessel 
fishery during the qualifying and recent participation periods by ADF&G 
logbooks, and (3) ownership of a business that was licensed by the 
State of Alaska to conduct the guided sport fishing reported in the 
logbooks.

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    Timely application. To be an initial recipient of a charter halibut 
permit, an applicant must apply for the permit during the application 
period. An application period of no less than 60 days will be announced 
in the Federal Register. Applications submitted by mail, hand delivery, 
or facsimile will be accepted if postmarked, hand delivered, or 
received by fax no later than the last day of the application period. 
Electronic submissions other than facsimile will not be acceptable. 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 will not credit the same logbook 
fishing trip to more than one applicant and will not allow the 
participation history of one business owner to support issuance of a 
permit(s) to more than one applicant.
    Application forms will 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 
will not be acceptable, however, because a signature on the application 
will be required. The application form will 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.
    Documentation of participation. The principal documentation 
necessary to prove qualifying participation in the charter halibut 
fishery will 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. 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 the Council's Analysis of alternatives and 
on subsequent ADF&G charter vessel logbook data to approve this action.
    As stated above, the basic unit of participation for receiving a 
charter halibut permit will be a logbook fishing trip, which is a trip 
that was reported to ADF&G in a saltwater charter logbook in accordance 
with the time limit required for reporting such a trip that was in 
effect at the time of the trip. If a trip was not reported within those 
time limits, NMFS will not consider it a logbook fishing trip for 
purposes of a charter halibut permit application.
    NMFS will use the same method of counting logbook fishing trips 
that was used by the Council in developing its recommendation for this 
action. Each trip in a multi-trip day will count as one logbook fishing 
trip, and each day on a multi-day trip will count as one logbook 
fishing trip. For example, if an operator documented two trips in one 
day, NMFS will consider that as two logbook fishing trips. Another 
operator that documented a trip that lasted two days also will be 
considered to have made two logbook fishing trips. This accounting of 
trips deviates from the ADF&G method of counting logbook trips when 
fishing continues over multiple days. The same issue does not exist for 
half-day trips. Consistent with ADF&G logbook data and the Council's 
Analysis, NMFS will consider a half day trip as one trip.
    A halibut logbook fishing trip also can be a logbook fishing trip 
where the business owner, within ADF&G time limits, reported ``boat 
hours that the vessel engaged in bottomfish fishing.'' An applicant may 
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 bottomfish would capture trips where charter 
vessel anglers were targeting halibut but did not catch any. Hence, 
this action defines 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.
    Documentation of participation will be recorded in the official 
record of charter vessel participation in Areas 2C and 3A during the 
qualifying and recent participation years. The official record will be 
based on data from ADF&G and will 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 will 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 will compare all timely applications to the official record. 
If an applicant submits a claim that is not consistent with the 
official record, NMFS will 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 will 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 will 
issue an initial administrative determination (IAD). The IAD will 
describe why NMFS is initially denying some or all of an applicant's 
claim and will provide instructions on how to appeal the IAD.
    An applicant may appeal the IAD to the Office of Administrative 
Appeals (OAA) pursuant to 50 CFR 679.43. NMFS will issue interim 
permits to applicants that filed timely applications and whose appeal 
is accepted by OAA. NMFS will 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. All permits issued during an 
appeal will be interim, non-transferable permits. Until NMFS makes a 
final decision on the appeal, the permit holder will not be able to 
transfer any permits.
    Licensed business owners. Charter halibut permits will 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). Hence, on successful 
application, NMFS will 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 has no obligation to 
determine the owners of a corporation or members of a partnership that 
successfully applied for a permit. NMFS will 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 
permits will be the same entity that held the ADF&G Business Owner 
License that authorized the trips that met the participation

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requirements in the qualifying period and in the recent participation 
period. The only exception to this requirement is if the entity that 
held these licenses is an individual who has died, or a non-individual 
entity, such as a corporation or partnership, that has dissolved.
    NMFS will not determine percentage of ownership of a dissolved 
partnership or corporation. If a dispute exists among former partners 
or shareholders as to how they should share ownership of a permit or 
permits, that dispute is properly resolved as a civil matter by a 
court.
    NMFS will apply a guiding principle in evaluating applications for 
charter halibut permits; the logbook fishing trip activity of one 
person that is used for permit qualification cannot lead to more than 
one person receiving a charter halibut permit. The only possible 
exception is when NMFS might award a permit to successors-in-interest 
to a dissolved entity. Even then, NMFS will not issue a permit to each 
successor-in-interest, but will issue the number of permits for which 
the dissolved entity qualified in the names of all successors-in-
interest. Subject to that exception, this guiding principle prohibits 
NMFS from crediting more than one applicant for the same logbook 
fishing trip, from crediting more than one applicant for logbook 
fishing trips made pursuant to the same ADF&G Business Owners License, 
and from issuing permits to more than one applicant for participation 
by one person in the charter halibut fishing business.
    Unavoidable circumstances. NMFS recognizes that certain unavoidable 
circumstances could have prevented an applicant from participating in 
either the qualifying period or recent participation period despite the 
applicant's intention. In developing a limited exception to allow for 
unavoidable circumstances, NMFS was guided in part by the unavoidable 
circumstance provisions in the License Limitation Program for 
groundfish and crab fisheries at 50 CFR 679.4(k). Basically, an 
applicant must demonstrate that--
     It participated during either the qualifying period or the 
recent participation period;
     It had a specific intent to participate in the period, 
either the qualifying period or the recent participation period, that 
the applicant missed;
     The circumstance that thwarted the intended participation 
was (a) unavoidable, (b) unique to the applicant, (c) unforeseen and 
unforeseeable;
     The applicant took all reasonable steps to overcome the 
problem; and
     The unavoidable circumstance actually occurred.
    The unavoidable circumstance exception will be limited to persons 
that will be excluded from the fishery entirely unless their 
unavoidable circumstance is recognized. The unavoidable circumstance 
exception is not intended to upgrade the number or type of permits an 
applicant could receive. For example, NMFS will not accept an 
unavoidable circumstance claim to upgrade a non-transferable permit to 
a transferable permit based on an anticipated 15 logbook trips in 2005 
that did not occur. NMFS intends a narrow interpretation of the 
unavoidable circumstance exception, and that, if an applicant can get 
any charter halibut permit based on the applicant's actual 
participation, then the applicant will be limited to that permit.
    This rule also recognizes a particular type of unavoidable 
circumstance, military service. The military exemption is designed to 
benefit persons that will otherwise be completely excluded from 
receiving any charter halibut permits despite their intention to meet 
the participation requirement during the qualifying period. If a 
military exemption applicant can receive any permits based on the 
applicant's actual participation in the qualifying period, the 
applicant will be limited to that number and type of permits and cannot 
use the military exemption. An applicant may not claim a military 
exemption to excuse lack of participation in the qualifying period and 
an unavoidable circumstance to excuse a lack of participation in the 
recent participation period. The successful military exemption 
applicant will receive one non-transferable permit with an angler 
endorsement of six unless the applicant can demonstrate that it likely 
would have met participation requirements for a transferable permit or 
a higher angler endorsement.

Transfers

    A person holding a transferable charter halibut permit may transfer 
the permit to another person (individual or non-individual entity) with 
certain limitations. Non-transferable charter halibut permits may not 
be transferred. Transferability of permits will allow limited new entry 
into the charter halibut fishery while preventing an uncontrolled 
expansion of the charter halibut fishery.
    NMFS expects consolidation in the charter halibut fishery as 
holders of non-transferable permits leave the fishery and as charter 
halibut operators acquire multiple permits by transfer. Excessive 
consolidation will be prevented by imposing an excessive share limit of 
five charter halibut permits.
    Two important exceptions to this excessive share limit, however, 
will allow a person to hold more than five permits. First, a person 
that is the initial recipient of more than five permits will be able to 
continue to hold all of the permits for which the person initially 
qualified. Such a person will be prevented from receiving transfers of 
additional permits. This exception will not apply if an individual 
permit holder dies or a corporate permit holder dissolves or changes 
its ownership by adding one or more new owner(s) or partner(s). In this 
event, NMFS will consider a successor-in-interest or a changed 
corporate structure to be a different entity from the one that was the 
initial recipient of the permits and the exception to the excessive 
share limit will not apply to the new entity. Upon notification of a 
change, NMFS would (1) invalidate transferable charter halibut permits 
held by the permit holder and provide notification that the permit 
holder must divest themselves of the permit; and (2) revoke non-
transferable charter halibut permits held by the permit holder.
    The second exception will allow a transfer that results in the 
person receiving the transfer holding more than five permits if the 
person meets the following three conditions:
     The existing permit holder that holds more than five 
permits under the first exception will be transferring all of the 
transferable permits that were initially issued;
     The existing permit holder will be transferring all 
assets--such as vessels owned by the business, lodges, and fishing 
equipment--of its charter vessel fishing business along with the 
permits; and
     The person that will receive the permits in excess of the 
excessive share limit does not hold any permits at the time of the 
proposed transfer.
    Although no citizenship standards will apply to the initial 
allocation of charter halibut permits, a person receiving a charter 
halibut permit by transfer must be a United States (U.S.) citizen. 
Issuance of charter halibut permits to non-U.S. citizens is not 
authorized by section 773c(c) of the Halibut Act. The Secretary, 
however, has general responsibility and authority to adopt regulations 
as may be necessary under section 773c(a) and (b) of the Halibut Act. 
Therefore, the Secretary is exercising this authority in not applying 
citizenship standards for the initial allocation of charter halibut 
permits. A

[[Page 558]]

transfer to an individual will be approved only if the individual is a 
U.S. citizen, and a transfer to a corporate entity will be approved 
only if it is a U.S. business with at least 75 percent U.S. citizen 
ownership of the business. This rule adopts the 75 percent U.S. 
ownership criterion for a U.S. business from the American Fisheries Act 
(111 Stat. 2681, Oct. 21, 1998), which is a key piece of Federal 
legislation designed to Americanize the fleet fishing off American 
waters.
    A nontransferable permit cannot be transferred from the name of the 
individual once the individual dies. A nontransferable permit cannot be 
transferred from a non-individual permit holder (a corporation, 
partnership, or other entity) if the non-individual permit holder 
dissolves or changes. This rule incorporates the definition of 
``change'' in a corporation or partnership from the IFQ program at 50 
CFR 679.42(j)(4)(i). This paragraph in the IFQ regulations defines ``a 
change'' for corporations, partnerships, or other non-individual entity 
to mean ``the addition of any new shareholder(s) or partner(s), except 
that a court appointed trustee to act on behalf of a shareholder or 
partner who becomes incapacitated is not a change in the corporation, 
partnership, association, or other non-individual entity.''
    These limitations on the transfer of charter halibut permits will 
be made effective by a requirement for NMFS approval for all transfers. 
No transfer of a permit will be effective unless it is first approved 
by NMFS. A transfer application provided by NMFS is required to be 
completed by the person transferring and the person receiving the 
transferred permit. Completion of the transfer application and 
examination of it by NMFS will assure that the excessive share and 
citizenship requirements of this rule are maintained, and that non-
transferable permits are dissolved on the death or change of the permit 
holder and will not be transferred to a new entity.

Special Permits

    Two types of special permits are provided by this action for 
limited guided sport fishing for halibut outside of the requirements 
for charter halibut permits. First, community charter halibut permits 
are intended to allow development of a charter vessel fishery in 
certain rural communities that do not have a developed charter vessel 
industry. Second, a military charter halibut permit will exempt from 
this limited access system charter vessels operated by the U.S. 
Military's Morale, Welfare and Recreation (MWR) programs for 
recreational use by service members.
    Community charter halibut permit. One or more community charter 
halibut permits may be issued to Community Quota Entities (CQEs) 
representing specified communities that do not currently have a fully 
developed charter halibut fleet. The CQE concept was developed by the 
Council originally to help rural communities become more involved in 
the commercial fisheries for halibut and sablefish (84 FR 23681, April 
30, 2004). CQEs are defined in existing regulations at 50 CFR 679.2.
    A CQE representing a community or communities in Area 2C can 
receive a maximum of four community charter halibut permits for each 
eligible community the CQE represents. A CQE representing a community 
or communities in Area 3A can receive a maximum of seven community 
charter halibut permits for each eligible community it represents. The 
larger number of community permits allowed in Area 3A reflects the 
larger resource base in that area. A community charter halibut permit 
will have an angler endorsement of six and will be non-transferable.
    In addition to community charter halibut permits, a CQE may acquire 
charter halibut permits by transfer. A unique excessive share limit 
will apply to each CQE in Area 2C of a maximum of four charter halibut 
permits for each eligible community the CQE represents in that area. 
The combined permit limit for a CQE in Area 2C is four community 
charter halibut permits plus four charter halibut permits for an 
overall limit of eight permits per eligible community. Similarly, the 
excessive share limit for a CQE in Area 3A is a combined permit limit 
of seven community charter halibut permits plus seven charter halibut 
permits for an overall limit of 14 permits per eligible community.
    A charter vessel fishing trip for halibut that is authorized by a 
community charter halibut permit is required to either begin or end 
within the community designated on the community charter halibut 
permit. This requirement will apply only to community charter halibut 
permits and not to any additional charter halibut permits that a CQE 
may acquire by transfer.
    The Council intended to limit the benefits of community charter 
halibut permits to rural communities that have an emerging but not a 
fully developed charter vessel fleet. Instead of listing in regulations 
the criteria used by the Council in selecting community eligibility, 
this rule simply specifies those communities in Areas 2C and 3A (see 
Table 21 to part 679) that meet the Council's criteria and will qualify 
for community charter halibut permits issued to CQE(s) representing 
them. To add or subtract a community from the proposed list will 
require separate Council action and a regulatory amendment.
    Military charter halibut permit. This action provides for special 
permits for charter vessels operated by any U.S. Military MWR program 
in Alaska. The only MWR program in Alaska that currently offers 
recreational charter halibut fishing to service members is the Seward 
Resort based at Fort Richardson in Anchorage, Alaska. To operate a 
charter vessel, the MWR program must obtain a military charter halibut 
permit by application to NMFS. Each military charter halibut permit 
will be non-transferable and valid only in the regulatory area 
designated on the permit. NMFS reserves the right to limit the number 
of these permits.

Consistency With Halibut Act

    As described at the beginning of this preamble, this action is 
authorized by the Halibut Act at section 773c. Section 773c(c) 
specifically authorizes the Council to develop and the Secretary to 
approve limited access regulations applicable to nationals or vessels 
of the United States or both. Such regulations are required by this 
section of the Halibut Act to be consistent with four basic standards. 
The following discussion summarizes these statutory standards and the 
rationale used by the Secretary in approving the Council's 
recommendation and this rule implementing a limited access system for 
charter vessels in the guided sport fishery for halibut in IPHC 
regulatory Areas 2C and 3A.
    Section 773c(c) of the Halibut Act requires limited access 
regulations to be--
     In addition to and not in conflict with regulations 
adopted by the IPHC;
     Non-discriminatory between residents of different States;
     Consistent with the limited entry criteria set forth in 16 
U.S.C 1853(b); and
     Fair and equitable to all fishermen, based on the rights 
and obligations in Federal law, reasonably calculated to promote 
conservation, and carried out in such a manner that no particular 
individual, corporation, or other entity acquires an excessive share of 
halibut fishing privileges.

No Conflict With IPHC Regulations

    Regulations governing halibut fisheries that are recommended by the 
IPHC are accepted or rejected on behalf

[[Page 559]]

of the United States by the Secretary of State, with the concurrence of 
the Secretary, pursuant to section 773b of the Halibut Act. Accepted 
IPHC regulations are published as annual management measures pursuant 
to 50 CFR 300.62. The current annual management measures were published 
in the Federal Register on March 19, 2009 (74 FR 11681). IPHC 
regulations affecting sport fishing for halibut and charter vessels in 
Areas 2C and 3A may be found in sections 3, 25, and 28 of the IPHC 
regulations (74 FR 11681, March 19, 2009).
    The IPHC regulations at section 3 of the annual management measures 
include definitions of terms, some of which are related to this action, 
such as ``charter vessel'' and ``sport fishing.'' This action removes a 
different definition of ``charter vessel'' from 50 CFR 300.61 that 
could have raised a conflict question. The definition of the term 
``charter vessel'' at 50 CFR 300.61 resulted from a final rule 
published September 24, 2008 (73 FR 54932), for purposes of a 
prohibition against using a charter vessel for subsistence fishing for 
halibut. This action integrates the definition into the prohibition 
language to which it directly applies at 50 CFR 300.66(i) to clarify 
that the definition does not apply universally. The universal 
definition of ``charter vessel'' will continue to be that used by the 
IPHC and appearing in the annual management measures. Hence, no 
conflict is found between this action and the IPHC regulations 
concerning this definition.
    The IPHC regulations at section 25 of the annual management 
measures specify the legal gear for sport fishing for halibut, specify 
which halibut count toward the daily bag limit, and prohibit possession 
of halibut on board a vessel while fishing in a closed area and when 
other fish or shellfish on board the vessel are intended for commercial 
use. Section 25 also prohibits halibut caught by sport fishing from 
being offered for sale, sold, traded, or bartered. Finally, section 25 
makes an operator of a charter vessel liable for any violation of the 
IPHC regulations by a passenger on board the vessel. Regulations in 
this action are in addition to, and not in conflict with, the IPHC 
regulations at section 25.
    The IPHC regulations at section 28 of the annual management 
measures establish sport fishing rules specific to Convention waters in 
and off of Alaska. Specifically, these regulations specify the sport 
fishing season, daily bag limit of halibut per person, the possession 
limit, and a prohibition against filleting halibut to support 
enforcement of the daily bag and possession limits. Exceptions to the 
filleting prohibition also are provided at section 28. Regulations in 
this action are in addition to, and not in conflict with, the IPHC 
regulations at section 28.

No Discrimination Between Residents of Different States

    Regulations in this action do not discriminate between residents of 
different states. All charter business owners are treated the same 
regardless of their residency with respect to their eligibility to 
receive an initial allocation of a charter halibut permit or a transfer 
of a charter halibut permit. Likewise, neither the community charter 
halibut permit nor the military charter halibut permit is restricted in 
terms of the State of residency of the person who will use the permit. 
Charter vessel anglers who receive sport fishing guide services from 
businesses affected by this rule also are not discriminated against in 
terms of the State of their residence. Such anglers will have the same 
opportunity to contract with businesses that possess charter halibut 
permits regardless of the location of the angler's residence.

Consistency With Limited Entry Criteria

    The limited entry criteria referred to in section 773c(c) of the 
Halibut Act appear at section 303(b)(6) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act, 16 U.S.C. 1801 
et seq.). These criteria appear under the heading of discretionary 
provisions for the Council and Secretary, and they read, and are 
discussed in turn, as follows:)

    (b) Discretionary provisions. [The Council or Secretary] with 
respect to any fishery, may--
    (6) Establish a limited access system for the fishery in order 
to achieve optimum yield if, in developing such a system, the 
Council and the Secretary take into account--
    (A) Present participation in the fishery;
    (B) Historical fishing practices in, and dependence on, the 
fishery;
    (C) The economics of the fishery;
    (D) The cultural and social framework relevant to the fishery 
and any affected fishing communities;
    (F) The fair and equitable distribution of access privileges in 
the fishery; and
    (G) Any other relevant considerations.

    Optimum yield. This term is defined in the Magnuson-Stevens Act at 
section 3(33) in terms of providing the greatest overall benefit to the 
Nation, and prescribed on the basis of maximum sustainable yield as 
reduced by any relevant economic, social, or ecological factor. Also, 
at section 301(a)(1), the Magnuson-Stevens Act states that conservation 
and management measures must prevent overfishing while achieving 
optimum yield. This is one of ten national standards established by the 
Magnuson-Stevens Act with which any fishery management plan (FMP) or 
regulation implementing an FMP must be consistent.
    The U.S. halibut fisheries are not managed under an FMP because the 
halibut fisheries are governed under the authority of the Halibut Act, 
not the Magnuson-Stevens Act. The Halibut Act does not require the U.S. 
halibut fisheries to be managed under an FMP. Therefore, specification 
of optimum yield for halibut is not required by statute and has not 
been determined. Nevertheless, the IPHC takes a conservative approach 
in setting the commercial fishery catch limits for the areas in and off 
Alaska while leaving economic and social balance questions to the 
Council. In essence, IPHC biologists determine a biologically 
acceptable level of harvest from all sources of halibut mortality, 
estimate the anticipated harvest from all non-commercial sources of 
fishing mortality, subtract the latter from the former, and set a 
commercial fishery catch limit based on the remainder. The overall 
harvest rate targeted by the IPHC is 20 percent of the exploitable 
biomass. The realized rate in recent years, however, has been 
substantially above the targeted harvest rate. Therefore, to the extent 
that the limited access system established by this rule can stabilize 
the halibut harvest by the charter halibut fishery, it will contribute 
to the achievement of the overall target harvest rate of halibut.
    Present participation. The Council took into account present 
participation in the charter halibut fisheries as it considered 
alternative participation criteria. The Council took its action to 
recommend this rule to the Secretary on March 31, 2007. At that time, 
the most recent information on participation in these fisheries was 
from 2004 and 2005 ADF&G saltwater charter vessel logbooks. Logbook 
data from participation in 2006 was not yet available for the Council's 
Analysis (see ADDRESSES). In addition, the ADF&G logbook data were not 
specific to charter vessel fishing trips targeting halibut, per se, but 
indicated ``bottomfish'' fishing instead. However, the predominate 
bottomfish targeted in Alaska saltwater sport fisheries is halibut. 
Hence, bottomfish was assumed to be a reasonable proxy for halibut 
fishing. Further, the Council chose to accept any ADF&G saltwater 
logbook entry indicating a bottomfish statistical area, rods, or boat 
hours as evidence of participation during 2004 and 2005. The

[[Page 560]]

Council was aware that this would result in a liberal estimate of 
participation in the charter halibut fisheries, but this decision was 
reasonably based on the best available information. With this 
understanding, the Council proceeded to consider alternative levels of 
participation, in terms of numbers of logbook fishing trips ranging 
from 1 to 20 trips or more, as an indication of participation during 
2004 and 2005.
    The Council has recommended, and the Secretary has approved, 
several other limited access systems before this action, and the 
Council knew that two or three years could pass before its 
recommendation for this limited access system was fully reviewed, 
approved, and implemented. In developing this limited access system, 
the Council addressed the potential of a rush of new entrants into the 
charter halibut fishery during the period of time the Council and the 
Secretary worked to develop and implement the system by specifying a 
minimum participation criterion in a recent participation period. The 
Council referred to this recent participation period as the ``year 
prior to implementation.'' In 2007, the year of Council action, the 
year prior to implementation was an unknown year in the future. In the 
proposed rule (April 21, 2009, 74 FR 18178), NMFS interpreted the 
``year prior to implementation'' for practical purposes to mean the 
most recent year for which participation data are available. The most 
recent year for which ADF&G saltwater log book data are available now 
is 2008. Therefore, the Council's original Analysis of participation 
patterns was supplemented with 2008 logbook data indicating 
participation in the most recent year. This is currently the best 
information available on present participation in the charter halibut 
fisheries in IPHC Areas 2C and 3A.
    The Council's policy recommendation to grant charter halibut 
permits based in part on participation in at least two years--one of 
the qualifying years, 2004 or 2005, and the recent participation year, 
2008--served several purposes. One was to comply with the Magnuson-
Stevens Act 303(b)(6) criteria of taking into account present and 
historical participation.
    The second purpose was to stabilize growth in the charter halibut 
fisheries, a long-term objective of this limited access system. Due to 
the length of time needed to develop a limited access policy, conduct 
analyses of alternative policies, consider public comments, review and 
approve (or disapprove) a Council recommendation, and (if approved) 
implement the recommendation with Federal regulations, the entry of new 
charter halibut fishing effort during this time could significantly 
change the halibut harvesting capacity from when the Council's policy 
decision was made in March 2007. Specifying minimum participation 
criteria in a recent participation year in addition to a qualifying 
year served the purpose of discouraging new entry into the affected 
charter halibut fisheries during the intervening years.
    The Council and the Secretary provided further public notice to 
discourage prospective new entry into the charter halibut fisheries 
when the Council acted to establish a control date of December 9, 2005. 
The Council determined that anyone entering the charter halibut fishery 
in and off Alaska after this date would not be assured of future access 
to that fishery if a limited access system of management was developed 
and implemented under authority of the Halibut Act. In addition to 
public announcement of this action at its meeting in December 2005, the 
Council also published this date in its December 2005 and February 2006 
newsletters (https://www.alaskafisheries.noaa.gov/npfmc/newsletters/newsletters.htm). The Secretary also published a notice of this date in 
the Federal Register on February 8, 2006 (71 FR 6442).
    The third purpose served by the Council's choice of present and 
historical participation years to qualify for an initial allocation of 
a charter halibut permit is to establish an objective and measurable 
indicator of dependence on the fishery. The Council reasoned in 
developing this and several other limited access systems that 
participation is a good indication of dependence on the fishery. 
Fishermen with a relatively greater participation in a fishery likely 
have a relatively greater dependence on the fishery for their 
livelihood than do other fishermen with relatively less participation. 
The difficult policy choice for the Council and Secretary is to 
determine where on the range, from little to large amount of 
participation, a decision should be made affecting future participation 
in the fishery. The Analysis of the potential effects of alternative 
decisions supports the ultimate policy choice (see ADDRESSES).
    For commercial fisheries, participation is often measured in pounds 
of the targeted fish species landed. Charter vessel businesses, 
however, primarily market a sport fishing experience rather than pounds 
of fish caught. Logbook fishing trips are a better measure of 
participation in the charter halibut fisheries than are pounds of 
halibut caught and retained. Hence, the Council used logbook fishing 
trips as a measure of participation in the charter halibut fisheries.
    Further, the Council determined the level of minimum participation 
in both years--the historical, 2004 or 2005, and present participation, 
2008--indicated a reasonable dependence on the charter halibut fishery. 
Using participation in a past and a recent year together demonstrates 
dependence on the fishery to a greater extent than using only one year 
of participation as a qualifying criterion. A charter halibut business 
with a record of at least minimal participation in both years likely 
participated also in the intervening years, and likely continues to 
participate now. Therefore, these are the businesses that the Council 
decided should receive an initial allocation of charter halibut 
permits. On the other hand, charter halibut businesses that 
participated only in the historical period but not in the recent 
participation period likely exited the charter halibut industry before 
the recent participation period and, therefore, are no longer dependent 
on the fishery. Conversely, charter halibut businesses that 
participated only in the recent period but not in the historical period 
likely entered the fishery after the control date. These businesses 
comprise a group of charter halibut participants that the Council and 
Secretary specifically discouraged from entry by announcing that their 
participation would not necessarily be recognized (71 FR 6442, February 
8, 2006).
    The Secretary has approved and adopted this rational basis for 
taking into account present participation.
    Historical fishing practices. The Analysis took into account 
historical fishing practices in and dependence on the charter halibut 
fisheries (see ADDRESSES). The Council examined the potential effects 
of several alternative minimum qualifying logbook trips during this 
period before making its recommendation. As explained above, the choice 
of minimum qualifying logbook trips during this historical 
participation period in combination with those during the recent 
participation period (2008) was critical to a determination of 
dependence on the charter halibut fishery. Those charter halibut 
businesses that met the minimum logbook trip criteria were determined 
to be sufficiently dependent on the charter halibut industry to warrant 
them receiving an initial allocation of one or more charter halibut

[[Page 561]]

permits. The Secretary has approved and adopted the Council's rational 
basis for taking into account historical fishing practices in and 
dependence on the charter halibut fisheries.
    Economics. The Council and the Secretary have taken into account 
the economics of the charter halibut fishery. The Analysis prepared by 
the Council and supplemented and approved by the Secretary includes a 
Regulatory Impact Review (RIR) and Final Regulatory Flexibility 
Analysis (FRFA) (see ADDRESSES). These documents respectively include 
analysis of potential costs and benefits and analysis of potential 
impacts on small entities as defined by the Regulatory Flexibility Act. 
This Analysis contains information describing the principal sectors 
that fish for halibut and incorporates earlier descriptions by 
reference. Each of the components of the preferred alternative is 
analyzed separately in the RIR. The impacts of the preferred 
alternative, and two other significant alternatives, on user industry 
and consumer groups in the commercial and charter halibut fisheries are 
compared in the RIR. A FRFA provides an analysis of the impacts of the 
preferred alternative on small entities. The Council accepted testimony 
from the public, much of which addressed economic concerns. NMFS has 
supplemented the Analysis, prepared for the Council's decision-making 
and to accompany the publication of the proposed rule, with an updated 
analysis of the impacts of the preferred alternative in light of 
specification of the recent participation period (see ADDRESSES). This 
information was not previously available. NMFS accepted and evaluated 
comments on the proposed rule, many of which raised economic issues. 
The summary of public comments and NMFS's responses to them may be 
found below.
    Capability to engage in other fisheries. The Council and the 
Secretary have taken into account the capability of vessels used in the 
guided sport fishery for halibut to engage in other fisheries. The 
Analysis prepared by the Council, supplemented and approved by the 
Secretary, includes a description of the affected fleet and industry. 
In brief, the charter halibut industry provides marine transportation 
and sport fishing guide services to anglers wishing to catch halibut. 
Charter vessel businesses provide these services also to anglers 
wishing to catch salmon, rockfish, lingcod, and other bottomfish. In 
addition, charter vessel businesses may provide marine transportation 
for bird watching, whale watching, and general sightseeing. Passengers 
using these services may be independent tourists, guests at lodges, or 
travelers on cruise ships. Charter vessel businesses may focus their 
business plan on sport anglers wishing to catch halibut, but other 
business plans are possible given the variety of reasons why an 
individual may want to engage the services of a charter vessel.
    Cultural and social framework. The Council and the Secretary have 
taken into account the cultural and social framework relevant to the 
charter halibut fishery and affected fishing communities. The Council 
received substantial public testimony during the early development of 
this rule which influenced the design of elements included for 
Secretarial consideration. The Secretary in turn has received public 
comments on cultural and socioeconomic aspects of this rule, has 
considered these comments and responded to them below. The Analysis of 
alternatives (see ADDRESSES) reflects this consideration by finding 
numerous communities with little charter vessel activity while a few 
communities have a well-established charter vessel industry, as 
indicated by the numbers of vessels that terminated charter vessel 
trips in coastal communities during the qualifying years. Hence, this 
action supports limited development of a charter halibut fishery in 
specific rural communities through a special community charter halibut 
permit program.
    Community charter halibut permits will be issued under this rule at 
no cost to CQEs representing communities that do not currently have a 
fully developed charter halibut fleet. The CQE provision was previously 
developed by the Council for the IFQ program to help certain rural 
communities become more involved in the commercial fisheries for 
halibut and sablefish. In this action, the CQE provision serves the 
same purpose for the development of the charter vessel industry based 
in any of 18 rural communities in Area 2C and 14 rural communities in 
Area 3A. The purpose and design of the CQE provision is more fully 
described in the proposed rule published April 21, 2009 (74 FR 18178).
    The Council also recommended, and the Secretary approved, another 
special permit for military recreation purposes. This took into account 
the existence of morale, welfare, and recreation (MWR) programs 
operated by the U.S. military and their importance to the recreational 
opportunities afforded to military services.
    The Council and Secretary also have taken into account unique 
social and cultural aspects of the charter halibut fishery by providing 
for certain hardships or unavoidable circumstances in qualifying for a 
charter halibut permit. The design and conditions for a charter halibut 
permit based on unavoidable circumstances are fully described in the 
proposed rule published April 21, 2009 (74 FR 18178).
    Fair and equitable distribution of access privileges. The Council 
and the Secretary have taken into account the fair and equitable 
distribution of access privileges to the halibut resource. Although 
this action may cause some restructuring within the charter vessel 
industry, no individual sport angler will be prevented from having 
access to the halibut resource for sport fishing. Sport fishermen 
wishing to fish for halibut on a charter vessel likely will be able to 
hire an operator or guide with a charter halibut permit as easily after 
the implementation of this rule as was done before that time.
    Further, persons wishing to enter the charter vessel industry will 
be able to do so. This rule does not prevent any person from entering 
the charter vessel industry or becoming an operator of a charter 
vessel. An operator or business with a halibut fishing clientele, but 
that does not qualify for an initial allocation of one or more charter 
halibut permits, would have to obtain a transferable charter halibut 
permit by transfer. Alternatively, a charter vessel business that had 
such minimal participation that it does not qualify for a charter 
halibut permit under the Council's qualification criteria could change 
its business model to one that does not involve fishing for halibut. 
Although this rule does not prevent most persons from entering the 
charter halibut fishery, those persons that receive an initial 
allocation of charter halibut permits will have a competitive advantage 
over those that will have to pay for transfer of these permits. The 
rationale for making a distinction between these two groups is to end 
the opportunities for unlimited growth in charter vessel operations 
that may fish for halibut by establishing a finite number of charter 
vessels authorized for guided sport halibut fishing based on the 
historical and present participation criteria outlined above. This 
action is intended to support the Council's approved policy of 
allocating the halibut resource among all fishing sectors and providing 
continued participation by those operations most dependent on the 
halibut resource.
    Other relevant considerations. The Council and the Secretary have 
taken into account other factors to allow limited additional 
participation in the charter halibut fisheries than would otherwise be 
allowed without certain

[[Page 562]]

exceptions to the qualifying criteria. First, an initial allocation of 
non-transferable charter halibut permits will be allocated to persons 
with a low level of participation. The minimum number of logbook 
fishing trips in one of the qualifying years--2004 or 2005--and in the 
recent participation year--2008--is five. Dependence on the halibut 
resource will be difficult to demonstrate for charter vessel businesses 
that made only 5 to 14 logbook fishing trips, relative to those 
businesses that made 15 or more trips. These low-participation charter 
businesses likely are small and operate part time, but together they 
supply a significant market for charter vessel anglers. Excluding the 
low-participation charter businesses from initial allocation of charter 
halibut permits could have constrained charter vessel angler 
opportunities. Allowing low-participation charter businesses to qualify 
for transferable charter halibut permits, however, would have created a 
large latent capacity to expand charter vessel angler opportunities. 
Hence, these low-participation charter businesses are allowed to 
qualify for non-transferable charter halibut permits to continue their 
current operations but not provide a source for significant expansion 
of charter halibut fishing in the future.
    Second, consideration of unavoidable circumstances is specifically 
recognized by the Council and the Secretary. Such circumstances must 
have been unique to a particular person, unforeseen and unavoidable, 
and must have prevented a potential participant in the charter halibut 
fishery from participation as intended during either the qualifying or 
recent participation years. This hardship provision allows for an 
appeals process that may result in the potential allocation of non-
transferable or transferable charter halibut permits that would 
otherwise be denied. A special military service hardship provision was 
included for a charter halibut permit applicant that meets the 
participation requirement during the recent participation period but 
not during the qualifying period due to U.S. military service.
    Finally, the Council and Secretary allowed an exemption for charter 
vessels operated by any U.S. Military MWR program in Alaska. A special 
non-transferable military charter halibut permit will be issued to a 
MWR program without regard for previous participation in the charter 
halibut fisheries. NMFS reserves the right to limit the number of these 
permits.

Fair and Equitable, Promotes Conservation, and Avoids Excessive Share

    The Halibut Act at 16 U.S.C. 773c(c) states the following:

    If it becomes necessary to allocate or assign halibut fishing 
privileges among various United States fishermen, such allocation 
shall be fair and equitable to all such fishermen, based upon the 
rights and obligations in Federal law, reasonably calculated to 
promote conservation, and carried out in such a manner that no 
particular individual, corporation, or other entity acquires an 
excessive share of halibut fishing privileges.

    The following discusses the consistency of this action with each of 
these three standards.
    Fair and equitable. The ``fair and equitable'' requirement in the 
Halibut Act quoted above is substantially the same as the ``fair and 
equitable'' requirement found at 16 U.S.C. 1851(a)(4), i.e., Natio