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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

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


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

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

ACTION: Proposed rule; request for comments.

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

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

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments identified by 0648-AW92 
by any one of the following methods:
    <bullet> Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
    <bullet> Mail: P.O. Box 21668, Juneau, AK 99802-1668.
    <bullet> Fax: 907-586-7557.
    <bullet> Hand delivery: 709 West 9\th\ Street, Room 420A, Juneau, 
AK.
    All comments received are part of the public record and will be 
posted to http://www.regulations.gov without change. All personal 
identifying information (such as name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file format only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS at the above address and by e-
mail to <a href="/cdn-cgi/l/email-protection#e6a287908f82b9b48995928d8394a6898b84c8838996c8818990"><span class="__cf_email__" data-cfemail="470326312e2318152834332c223507282a256922283769202831">[email protected]</span></a> or fax to 202-395-7285.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis prepared for this action may be 
obtained from the Alaska Region, NMFS at the address above or from the 
Alaska Region website at http://www.fakr.noaa.gov/.

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

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

[[Page 18179]]

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

Management of the Halibut Fisheries

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

History of Charter Vessel Fishery Management

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

[[Page 18180]]

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

[[Page 18181]]

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

Limited Access Management for the Charter Vessel Fishery

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

[[Page 18182]]

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

The Proposed Action

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

Qualifications for Charter Halibut Permit

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

[[Page 18183]]

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

[[Page 18184]]

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

Standards for Initial Allocation

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

[[Page 18185]]

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

[[Page 18186]]

Application and Issuance Process

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

[[Page 18187]]

the applicant's duties as personal representative, should receive those 
permits.
    If a non-individual entity, such as a corporation or partnership, 
met the requirements for a permit but that entity has dissolved, the 
successors-in-interest to the entity may apply for that permit or 
permits. The applicant who is applying as a successor-in-interest to a 
corporation or partnership or other dissolved entity must provide 
documentation that the entity has dissolved and that the applicant is a 
successor-in-interest to the dissolved entity. If more than one 
applicant proves that he or she is a successor-in-interest to the 
dissolved entity, NMFS would issue the permits for which the dissolved 
entity qualifies in the names of all applicants that submit timely 
applications and that prove they are successors-in-interest. For 
example, a partnership has dissolved and two former partners submit 
separate and timely applications. If each applicant proves that they 
are a successor-in-interest to the partnership, NMFS would award the 
permits in the names of the two successors-in-interest that applied. 
Similarly, if a corporation qualifies for permits but has dissolved and 
three former shareholders of the corporation submit timely 
applications, each proving that they are a successor-in-interest to the 
corporation; NMFS would award the permits in the names of the three 
former shareholders. If only two of the three former shareholders 
submit timely applications, however, NMFS would award the permits in 
the names of the two former shareholders that submitted timely 
applications.
    NMFS would 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.
    The proposed rule makes explicit a guiding principle NMFS would 
apply 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 described above, when 
NMFS might award a permit in the name of several persons who are 
successors-in-interest to a dissolved entity. Even then, NMFS would not 
issue multiple permits, but only issue permits in the names of several 
persons the number of permits for which the dissolved entity qualified. 
Subject to that exception, the proposed rule prohibits NMFS from 
crediting the same logbook fishing trip to more than one applicant, 
from crediting logbook fishing trips made pursuant to the same ADF&G 
Business Owners License to more than one applicant, and from allowing 
participation by one person in the charter halibut fishing business to 
support issuance of permits to more than one applicant.

Unavoidable Circumstances

    The Council and NMFS recognize that certain unavoidable 
circumstances could prevent 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 (LLP) for 
groundfish and crab fisheries at 50 CFR 679.4(k). This action proposes 
similar criteria for an unavoidable circumstance as used in the LLP 
regulations (50 CFR 679.4(k)(8) and (9)). Basically, an applicant must 
demonstrate that:
    <bullet> It participated during either the qualifying period or the 
recent participation period;
    <bullet> It had a specific intent to participate in the period, 
either the qualifying period or the recent participation period, that 
the applicant missed;
    <bullet> The circumstance that thwarted the intended participation 
was (a) unavoidable, (b) unique to the applicant, (c) unforeseen and 
unforeseeable;
    <bullet> The applicant took all reasonable steps to overcome the 
problem; and
    <bullet> The unavoidable circumstance actually occurred.
    Missed recent participation period. An applicant who meets the 
participation requirements for the qualifying period (2004 and 2005) 
may claim that it did not meet the participation requirement in the 
recent participation period year due to an unavoidable circumstance. 
Assuming the applicant is able to successfully demonstrate that it 
meets the criteria for an unavoidable circumstance, NMFS proposes to 
award the applicant the number and type of permits that the applicant 
would have received if its participation during the recent 
participation period had been the same as its participation during the 
qualifying period. The Council did not address this issue. However, 
NMFS determined that substituting the qualifying period participation 
for actual participation during the recent participation period best 
reflects what the Council was trying to achieve by recommending that an 
unavoidable circumstance exception be included in this program.
    Missed qualifying period participation. Similarly, an applicant who 
met the recent participation requirement may claim that it did not meet 
the qualifying period (2004 or 2005) participation requirement because 
of an unavoidable circumstance. Assuming the applicant is able to 
successfully demonstrate that it meets the criteria for an unavoidable 
circumstance, NMFS could not use logbook data from the qualifying 
period to determine the applicant's number of permits, whether the 
permits would be transferable, or the area and the angler endorsements 
on the permits, because the applicant would have either no logbook data 
from the qualifying period or insufficient logbook trips to receive any 
permits. NMFS proposes that the applicant who proves an unavoidable 
circumstance in the qualifying period would receive one non-
transferable permit with an angler endorsement of four, unless the 
applicant demonstrates that it likely would have met the participation 
requirements for more permits, one or more transferable permits, or a 
higher angler endorsement. In that case, the applicant would receive 
the number and type of permits, and the angler endorsement on those 
permits, that result from the level of participation that the applicant 
demonstrates that it likely would have attained.
    The proposed rule, in essence, adopts a default provision for an 
applicant that successfully demonstrates that it meets the criteria for 
unavoidable circumstances, namely a non-transferable permit with an 
angler endorsement of four. This provision, at a minimum, would allow 
an applicant to participate in the fishery. This provision also would 
allow an applicant to receive more permits, or transferable permits, or 
an angler endorsement greater than four, only if the applicant shows 
that it likely would have participated at that higher level but for the 
unavoidable circumstance.
    For example, if an applicant states that it should receive one 
transferable charter halibut permit with an angler endorsement of six, 
then the applicant must show that the applicant likely would have 
reported at least 15 logbook fishing trips with a vessel in 2004 or 
2005 and would have taken six anglers on one of those trips. The 
applicant would be required to show this by a preponderance of the 
evidence. This means that the applicant must show that it is more 
likely than not that it would have met that participation requirement, 
were it not for the unavoidable

[[Page 18188]]

circumstance. In the example, if the applicant experienced an 
unavoidable circumstance in 2004, the applicant could introduce 
evidence of its participation in 2003. Or if the applicant already had 
bookings in 2004, it could introduce evidence of those bookings. These 
are just examples and are not intended to indicate that any of these 
submissions would be sufficient to demonstrate unavoidable 
circumstances.
    Limitation on unavoidable circumstance provision. NMFS is proposing 
that the unavoidable circumstance exception be limited to persons who 
would be excluded from the fishery entirely unless their unavoidable 
circumstance was recognized. The unavoidable circumstance exception is 
not intended to upgrade the number or type of permits an applicant 
could receive. For example, NMFS would 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 concluded that the proposed unavoidable 
circumstance exception should be narrow, and that, if an applicant 
could get any charter halibut permit based on the applicant's actual 
participation, the applicant would be limited to that permit.
    Military exemption. This action proposes a military exemption from 
the participation requirement during the qualifying period. This 
exception is designed to benefit persons assigned to active military 
duty in the qualifying period. An applicant for the military exception 
would have to meet the recent participation requirement, i.e., at least 
five halibut logbook trips in the recent participation period.
    To qualify for a military exemption, a person would have had to be 
assigned to active military duty as a member of the National Guard or a 
reserve component. This limitation stems from public testimony to the 
Council about the need for a military exemption for persons called up 
to serve during the qualifying period as a member of the National Guard 
or a reserve component. This exemption would not apply to persons in 
the regular armed forces. The rational for not including persons in the 
regular armed forces is that a person's decision to enlist in the 
regular armed services is a voluntary career choice and is not 
unavoidable. Hence, such a person serving during the qualifying period 
chose a military occupation in lieu of a charter vessel occupation. 
NMFS recently considered a similar issue in the context of allowing a 
temporary military transfer of IFQ Quota Share and, for similar 
reasons, only allowed such a transfer by a member of the National Guard 
or a member of a reserve component (73 FR 28733, May 19, 2008).
    In addition, to receive a military exemption, an applicant would 
have to demonstrate that the applicant intended to participate in the 
charter halibut fishery and that the applicant's intent was thwarted by 
the applicant's order to report for military service. The Council 
motion stated that a military service applicant would have to show 
intent to participate before the qualifying period. NMFS concludes, 
however, that the Council did not intend to exclude a military 
applicant who could show an intent to participate during the qualifying 
period. Therefore, NMFS would treat an applicant who can show an intent 
to participate during the qualifying period the same as it would treat 
an applicant who could show an intent to participate before the 
qualifying period, as requested by the Council, as long as an applicant 
could demonstrate their intent to participate was thwarted by their 
order to report for military service.
    The military exemption is designed to benefit persons who would 
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 could 
receive any permits based on the applicant's actual participation in 
the qualifying period, the applicant would be limited to that number 
and type of permits and could not 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 proposed rule adopts the Council recommendation that an 
applicant receiving a permit under the military service exemption 
receive a charter halibut permit with an angler endorsement of six. The 
Council was silent, however, as to whether the permit should be 
transferable or non-transferable. This action proposes to treat a 
military exemption applicant the same as other unavoidable circumstance 
applicants. The military exemption applicant would receive one non-
transferable permit with an angler endorsement of six unless the 
applicant could demonstrate that it likely would have met participation 
requirements for a transferable permit or a higher angler endorsement.

Transfers

    After charter halibut permits are initially distributed by NMFS, a 
person holding a transferable permit could transfer the permit to 
another individual or non-individual entity with certain limitations. 
Transferability of permits would allow limited new entry into the 
charter vessel sector while the limited access program generally would 
prevent an uncontrolled expansion of the charter vessel fishing sector 
and provide for some consolidation in the sector. However, limits would 
be placed on consolidation to prevent any one person from holding an 
excessive share of charter vessel privileges.
    To enforce limitations on the transfer of charter halibut permits, 
no transfer of a permit would be effective unless it is first approved 
by NMFS. NMFS would provide a transfer application to the person 
transferring and the person receiving the transferred permit. 
Completion of the transfer application would be required. Generally, 
NMFS would approve any transfer that is consistent with the following 
standards.
    Transferable permit. NMFS would approve the transfer of only 
transferable charter halibut permits. Nontransferable permits could not 
be transferred to any entity different from the one to which it is 
initially issued. Hence, a nontransferable permit could not be 
transferred from the name of the individual once the individual dies. A 
nontransferable permit could not be transferred from a non-individual 
permit holder (a corporation, partnership or other entity) if the non-
individual permit holder dissolves or changes. The proposed regulation 
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.''
    Citizenship. The Council recommended that the charter vessel 
fishery under limited access should be primarily owned and controlled 
by United States citizens. The Council's authority under the Halibut 
Act at section 773c(c), however, is limited to developing regulations 
``...applicable to nationals or vessels of the United States....'' 
Hence, the development of regulations that include non-citizens of

[[Page 18189]]

the U.S. 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 
proposing the citizenship requirements recommended by the Council.
    Based on the Council's recommendation, the Secretary is proposing 
two different eligibility standards. First, for initial allocation of 
charter halibut permits, this action proposes no distinction between 
U.S. citizens and nationals of other countries. Any person that meets 
the standards for initial allocation described above would be issued a 
charter halibut permit or permits according to those standards. No 
citizenship standards would apply to the initial allocation of charter 
halibut permits to avoid excluding persons who had legitimately 
participated in the charter vessel fishery during the qualifying and 
recent participation years. Second, for transfers of charter halibut 
permits, this action proposes to allow transfers only to U.S. citizens. 
That is, a transfer to an individual would be approved only if the 
individual is a U.S. citizen, and a transfer to a corporate entity 
would be approved only if it is a U.S. business with at least 75 
percent U.S. citizen ownership of the business. This proposal 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. Hence, as non-U.S. citizens leave the fishery 
their charter halibut permits either would cease to exist (if the 
permits were nontransferable) or they would be replaced by U.S. 
citizens or U.S. businesses.
    Excessive share limit. Although the proposed limited access system 
would allow for some consolidation in the charter vessel sector, a 
concern about too much consolidation caused the Council to recommend 
that a person should be prevented from holding more than five permits 
by transfer. Hence, five permits would be the excessive share limit and 
NMFS would not approve a transfer that would result in the person 
receiving the transferred permit holding more than five permits.
    Two important exceptions to this excessive share limit, however, 
would allow a person to hold more than five permits. First, a person 
that is the initial recipient of more than five permits would be able 
to continue to hold all of the permits for which the person initially 
qualified. No approval would be granted for additional permits to be 
transferred to a person holding more than five permits under this 
exception. Also, this exception would 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 would 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 would not apply to the new entity.
    Under the second exception, NMFS would approve a transfer that 
resulted in the person receiving the transfer holding more than five 
permits if the person were to meet the following three conditions:
    <bullet> The existing permit holder that holds more than five 
permits under the first exception would be transferring all of the 
transferable permits that were initially issued;
    <bullet> The existing permit holder would be transferring all 
assets--such as vessels owned by the business, lodges, fishing 
equipment, etc.--of its charter vessel fishing business along with the 
permits; and
    <bullet> The person that would receive the permits in excess of the 
excessive share limit does not hold any permits at the time of the 
proposed transfer.
    In making this recommendation, the Council reasoned that these 
exceptions would not increase the number of charter vessel businesses 
beyond those existing at the start of the limited access program. 
Allowing the transfer of a group of permits in excess of the excessive 
share limit along with an entire business would be simply substituting 
one business for another one and would not add to the overall charter 
fishing sector. These exceptions essentially ``grandfather'' businesses 
that would receive more permits, at the initial allocation of permits, 
than the excessive share limit would otherwise allow. Further, these 
exceptions allow the transfer of this grandfather right to a new 
business. A transfer of anything less than all the permits and assets, 
however, would end the grandfather right.
    The Council and NMFS recognize that a corporate entity at the 
excessive share limit of five permits may be closely affiliated with 
another corporate entity that is under the limit and could apply to 
receive a transferred permit. To prevent a permit holder from exceeding 
the limit by affiliation, this action proposes to apply the 10 percent 
ownership criterion used for implementing the American Fisheries Act 
and defined at 50 CFR 679.2. Under this definition, two entities are 
considered the same entity if one entity owns or controls 10 percent or 
more interest in the other entity.
    Owed penalties. Finally, this action proposes to prevent the 
transfer of a charter halibut permit to or from any person that owes 
NMFS any fines, civil penalties, or other payments. In addition, a 
transfer of a permit would not be approved if it would be inconsistent 
with any sanctions resulting from federal fishing violations. NMFS 
concluded that this was a reasonable way to enforce fishing sanctions 
and payment of fines, penalties, and payments owed to NMFS by parties 
to a proposed transfer.

Special Permits

    In developing its charter vessel limited access policy, the Council 
was faced with a goal of constraining development of the charter vessel 
fishery for halibut on one hand while on the other hand recognizing the 
potential importance of this fishery to the economic development of 
some rural communities. The Council recommended providing a special 
permit to allow development of a charter vessel fishery in certain 
rural communities. In addition, the Council recognized charter vessels 
operated by the U.S. Military's Morale, Welfare and Recreational (MWR) 
programs for recreational use by service members, and recommended no 
limited access limitations on these military charter vessels. Hence, 
two types of special permits are proposed--one for community 
development and one for military use.
    Community charter halibut permit. The Council recommended and this 
action proposes to allow for a special community charter halibut permit 
that would be awarded, at no cost, to Community Quota Entities (CQEs) 
representing communities that do not currently have a fully developed 
charter halibut fleet. The CQE provision 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). In that context, CQEs are already defined at 50 CFR 679.2. The 
Council recommended that existing or future CQEs could serve a similar 
purpose in developing the charter vessel sector in certain rural 
communities.
    This action proposes that a CQE representing a community or 
communities in Area 2C could receive a maximum of four community 
charter

[[Page 18190]]

halibut permits for each eligible community the CQE represents. A CQE 
representing a community or communities in Area 3A could receive a 
maximum of seven community charter halibut permits for each eligible 
community it represents. The larger number of community permits that 
would be allowed in Area 3A reflects the larger resource base in that 
area. A community charter halibut permit would have an angler 
endorsement of six and would be non-transferable.
    This action proposes to limit the communities eligible for 
community charter halibut permits based on the Council's rationale that 
eligible communities should be those that have an emerging but not a 
fully developed charter vessel fleet because they could most benefit 
from the permits and from the economic benefits of new charter 
businesses. The Council recommended that eligible communities are those 
CQE communities (listed in Table 21 to part 679) in which 10 or fewer 
``active'' charter vessel businesses terminated charter vessel trips in 
the community in each of the qualifying years (2004 and 2005). The term 
``active'' means at least five logbook fishing trips per year. The 
five-trip criterion is based on the basic qualification proposed for a 
charter halibut permit of five logbook trips in each of two years. 
Communities with more than 10 active charter vessel businesses were 
considered developed enough to not require the benefit of the community 
permit program. Communities with no active charter vessel businesses 
were not considered likely prospects for developing future charter 
vessel businesses. In addition, the Council specifically named the 
communities that would meet these criteria. Therefore, this action 
proposes eligibility of the specific communities named by the Council. 
To add or subtract a community from the proposed list would require 
separate Council action and a regulatory amendment.
    The list of communities proposed to be eligible for community 
charter halibut permits under a CQE are a subset of those listed in 
Table 21 to part 679. In Area 2C, the following 18 communities would be 
eligible for a community charter halibut permit: Angoon, Coffman Cove, 
Edna Bay, Hollis, Hoonah, Hydaburg, Kake, Kassan, Klawock, Metlakatla, 
Meyers Chuck, Pelican, Point Baker, Port Alexander, Port Protection, 
Tenakee, Thorne Bay and Whale Pass. In Area 3A, the following 14 
communities would be eligible for a community charter halibut permit: 
Akhiok, Chenega, Halibut Cove, Karluk, Larsen Bay, Nanwalek, Old 
Harbor, Ouzinkie, Port Graham, Port Lions, Seldovia, Tatitlek, Tyonek, 
and Yakutat.
    In addition to the community charter halibut permits available to a 
CQE under this proposed action, a CQE could acquire other charter 
halibut permits through transfer as described above. Therefore, this 
action proposes a unique excessive share limitation recommended by the 
Council to apply specifically to CQEs as potential permit holders. The 
limitation for a CQE representing Area 2C communities would be four 
community charter halibut permits per eligible community. Additional 
permits that the CQE may acquire by transfer would be limited to an 
additional four per eligible community for Area 2C. Hence, the overall 
limit of permits that such a CQE may hold would be eight per eligible 
community for Area 2C. This overall area-wide limit would apply to all 
community charter halibut permits issued to a CQE or to community 
charter halibut permits in combination with charter halibut permits 
acquired through transfer. For example, a CQE representing two eligible 
communities in Area 2C could request and receive four community charter 
halibut permits for one community and four community charter halibut 
permits for the other community. The CQE could receive an additional 
four charter halibut permits acquired by transfer for each community. 
The total number of permits--eight community charter halibut permits 
plus eight acquired charter halibut permits by transfer--would be the 
limit for the CQE to hold in Area 2C. However, if the CQE subsequently 
represents another community in Area 2C, the limit would change based 
on the number of communities that the CQE represents in that area.
    A similar excessive share limitation would apply also to a CQE 
representing communities in Area 3A. The overall limit on the number of 
permits that a CQE representing eligible communities in Area 3A may 
hold would be 14 per eligible community the CQE represents in that 
area. Hence, the overall limit for any one CQE in any area would be two 
times the number of community charter halibut permits it may hold per 
eligible community.
    The proposed limit on the number of community charter halibut 
permits that can be held by a CQE is intended to assist the development 
of an emerging charter halibut fishery in eligible communities without 
undermining the purpose of the limited access system proposed by this 
action. Also, the Council recommended that a charter vessel fishing 
trip for halibut that is authorized by a community charter halibut 
permit would be required to either begin or end within the community 
designated on the community charter halibut permit. The purpose of this 
requirement is to assure that the charter vessel anglers on such a 
fishing trip have an opportunity to use the goods and services of the 
community. This requirement would apply only to community charter 
halibut permits and not to any additional charter halibut permits that 
a CQE may acquire by transfer.
    Military charter halibut permit. The proposed action would grant 
permits for charter vessels operated by any U.S. Military Morale, 
Welfare, and Recreation (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 special military charter halibut permit by application to 
NMFS. Each military charter halibut permit would be non-transferable 
and valid only in the regulatory area designated on the permit.

Prohibitions

    This action proposes eight prohibitions. Six prohibitions mirror 
the requirements of the rule and need not be discussed separately. 
These six are prohibitions against:
    <bullet> Fishing for halibut in violation of this program;
    <bullet> Failing to comply with the requirements of this program;
    <bullet> Failing to submit or submitting inaccurate information 
that is required to be submitted;
    <bullet> A charter vessel operating with charter vessel anglers on 
board the vessel that are catching and retaining halibut in Area 2C or 
Area 3A without a charter halibut permit designated for that area;
    <bullet> Having a number of anglers on board a charter vessel that 
exceeds the total angler endorsement number on the permit or permits 
that are on board the vessel; and
    <bullet> Having a number of anglers on board a charter vessel that 
exceeds the total angler endorsement number on the community permit or 
permits that are on board the vessel.
    Two additional prohibitions are proposed. First, a charter vessel 
operator would be prohibited from operating a charter vessel in Area 2C 
and Area 3A during a single charter vessel trip. The Council 
recommended this limitation on the use of permits. The analysis

[[Page 18191]]

indicated that few vessels operate in both areas. The prohibition 
therefore would not significantly undermine existing business 
operations in the charter fishery. This prohibition would aid in 
collection of harvest and logbook data and simplify compliance 
monitoring. Further, because each permit would have its own angler 
endorsement number, this prohibition would facilitate enforcement of 
the maximum angler endorsement designation on the permit.
    Second, a charter vessel operator would be prohibited from 
operating a charter vessel where anglers are catching and retaining 
halibut, without having on board the vessel a State of Alaska Saltwater 
Charter Vessel Logbook issued to the person named on the charter 
halibut permit or permits on board the vessel. The Council recommended 
this prohibition. This prohibition would not conflict with any State of 
Alaska logbook requirement and it would likely promote involvement by 
the permit holder with the operation of the charter halibut fishing 
operation and with the collection of accurate logbook data.
    The proposed rule does not have a prohibition against leasing 
although the Council recommended a prohibition against leasing. The 
proposed rule does not contain a comprehensive prohibition on leasing 
because such a prohibition would not lead to a permit holder being on 
board the vessel or having any direct connection with the charter 
operation. Under the proposed rule, a permit holder would not have to 
own a vessel or operate a vessel. A permit holder could legitimately 
allow a vessel operator to use the permit holder's permit as authority 
for the vessel operator to take anglers out charter halibut fishing, 
even though the permit holder does not own or operate the vessel and 
has nothing directly to do with the charter vessel fishing operation. 
The vessel operator may pay the permit holder for the right to use the 
permit or the permit holder may pay the vessel operator to take out 
anglers organized by the permit holder. The charter industry has a 
variety of business models and the way some of these business models 
function is substantially similar to a lease between the permit holder 
and the vessel operator.
    Further, it would be difficult to enforce a prohibition on leasing. 
NMFS would have to collect additional information attendant to a 
transfer. Simply prohibiting a transfer called ``a lease'' would result 
in the prohibition being enforced only against legally unsophisticated 
persons who did not draft their document to avoid such a term. For NMFS 
to examine the substance of any transaction would be difficult, time-
consuming and undermine the principle that the permits are relatively 
freely transferable. In light of this difficulty, the Council 
recommended three specific measures to discourage leasing:
    <bullet> Prohibit the charter halibut permit from being used on 
board a vessel unless that vessel is identified in an ADF&G Saltwater 
Charter Logbook;
    <bullet> Require that a charter vessel operator have on board the 
vessel an ADF&G Saltwater Charter Logbook issued in the name of the 
charter halibut permit holder; and
    <bullet> Require the authorizing charter halibut permit number to 
be recorded in the ADF&G Saltwater Charter Logbook for each trip.
    This action proposes all of these Council recommendations as part 
of the requirement to have the Saltwater Charter Logbook on board. The 
requirement to identify the vessel in the logbook is intended to be 
consistent with an existing State of Alaska requirement that a charter 
vessel operator have on board the vessel an ADF&G Saltwater Charter 
Logbook. This logbook must be specific to the vessel on which it is 
used.

Technical Regulatory Change

    This action proposes a technical change relevant to the definition 
of the term ``charter vessel'' at 50 CFR 300.61. The definition for 
this term was revised by 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 proposes to integrate 
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 to all other regulations. The universal definition of 
charter vessel would continue to be that used by the IPHC and appearing 
in the annual management measures required by 50 CFR 300.62. The most 
recent annual management measures were published March 7, 2008 (73 FR 
12280).

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is necessary for the conservation and management of the halibut 
fishery and that it is consistent with the Halibut Act and other 
applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. This proposed rule also complies 
with the Secretary's authority under the Halibut Act to implement 
management measures for the halibut fishery.
    An initial regulatory flexibility analysis (IRFA) was prepared as 
required by section 603 of the Regulatory Flexibility Act. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action may be found at the 
beginning of this preamble. A summary of the IRFA follows. Copies of 
the IRFA are available from the Council or NMFS (see ADDRESSES).
    The number of businesses that submitted ADF&G logbooks for 
bottomfish activity in IPHC Area 2C between 1999 and 2005, and that may 
be directly regulated by this action, ranged from 412 in 2000 to 352 in 
2002. The number of businesses over the same time in IPHC Area 3A 
period ranged from 455 in 2000 to 402 in 2003. The proposed limited 
access program (Alternative 2) would issue permits based on whether a 
business achieved a specified level of participation during 2004 or 
2005, and in the year prior to implementation of the program. The 
Council's preferred alternative would issue an estimated maximum of 689 
permits to 380 businesses in Area 2C and 611 permits to 471 businesses 
in Area 3A. These represent maximum estimates because a business also 
would have to meet the qualifying criteria in the recent participation 
period year, which is likely 2007 or 2008. Thus, the exact number of 
businesses that may qualify for a permit cannot be determined until the 
implementation of the program.
    The SBA specifies that for marinas and charter/party boats, a small 
business is one with annual receipts less than $6.0 million. The 
largest of these charter operations, which are lodges, may be 
considered large entities under SBA standards, but that cannot be 
confirmed because NMFS does not collect economic data on lodges. All of 
the other 800-plus charter operations would likely be considered small 
entities, based on SBA criteria, because they would be expected to have 
gross revenues of less than $6.0 million on an annual basis.
    Regulations that directly regulate communities are included in the 
permit allotment part of this action. That part seeks to help small, 
remote communities in Areas 2C and 3A to develop charter businesses by 
mitigating the economic barrier associated with purchasing a charter 
halibut permit and

[[Page 18192]]

creating a number of non-transferable permits that can only be held by 
the non-profit entity representing the eligible community. Under the 
preferred alternative, 18 Area 2C communities could be eligible to each 
receive up to 4 halibut charter permits at no cost; 14 Area 3A 
communities could be eligible to each receive up to 7 halibut charter 
permits at no cost. Note that their eligibility is also conditioned on 
the fact that they must form an approved non-profit community quota 
entity through NMFS; thus, the permits available for eligible 
communities at no cost are maximum estimates. All of these communities 
would be considered small entities under the SBA definitions.
    This action would impose new recordkeeping requirements. Permit 
applications would be required to be submitted before the start of the 
program. The application would require information about the business 
applying for the permit including the ownership structure of the 
business and information on the charter activities of the business. 
After submitting the initial permit application, additional 
applications would not be required. NMFS would require additional 
reports only when the structure of the business owning the permit 
changes or the permit is transferred. NMFS also may require some 
additional reports, depending on how well the current ADF&G logbooks 
meet their management and enforcement needs and the level of access 
NMFS has to those data. In addition, communities eligible to receive 
permits at no cost would be required to submit information to NMFS: (1) 
on application for a charter halibut permit, and (2) on the use of the 
permit on an annual basis. In and of itself, the proposed recordkeeping 
and reporting requirements would not likely represent a ``significant'' 
economic burden on the small entities operating in this fishery.
    NMFS has not identified other Federal rules that may duplicate, 
overlap, or conflict with the proposed rule.
    An IRFA is required to describe significant alternatives to the 
proposed rule that accomplish the stated objectives of the Magnuson-
Stevens Act and other applicable statutes and that would minimize any 
significant economic impact of the proposed rule on small entities.
    The status quo alternative specifies the GHL as a target amount of 
halibut that the charter fleet can harvest, but the number of charter 
vessels that can enter the fishery is not limited. NMFS is authorized 
to implement management measures to keep the charter fleet to 
approximately the GHL. Absent decreases in demand for charter fishing 
created by restrictions on harvest, increases in the charter fleet 
could undermine these restrictions and prevent long-term stability of 
the charter sector and continue the need for further restrictions on 
harvest.
    The Council considered options to the preferred alternative that 
presented a range for various aspects of the program. In particular, 
ten options for minimum qualification requirements for receipt of a 
permit under the program were considered in each area. These options 
varied depending on the number of trips needed to qualify for a permit, 
and whether the trips for boats in a multi-boat operation had to be 
considered individually, or whether the business's total trips could be 
averaged over vessels. The Council chose the option that distributed 
the second largest number of permits possible among the range of 
options. One option, a one trip threshold for permit issuance would 
have distributed more permits; seven options would have distributed 
fewer permits in each area. The analysis noted that it was unlikely 
that a one-trip minimum qualification requirement would reduce the 
number of permits to 2005 participation levels. Additional numbers of 
permits would make it harder to meet the objectives of this action to 
stabilize this fleet and its fishing capacity. Hence, the Council chose 
the option that best met its objectives with the least impact to 
affected entities.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement has been submitted to OMB for approval. Public 
reporting burden estimates per response for these requirements are: Two 
hours for charter halibut permit application; two hours for community 
charter halibut permit application; two hours for military charter 
halibut permit application; two hours for transfer of a charter halibut 
permit; and four hours for appeal of permit denial. These estimates 
include the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection-of-information.
    Public comment is sought regarding: whether this proposed 
collection-of-information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS at 
the ADDRESSES above, and e-mail to <a href="/cdn-cgi/l/email-protection#c783a6b1aea39895a8b4b3aca2b587a8aaa5e9a2a8b7e9a0a8b1"><span class="__cf_email__" data-cfemail="cb8faabda2af9499a4b8bfa0aeb98ba4a6a9e5aea4bbe5aca4bd">[email protected]</span></a>, or fax 
to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This proposed rule is consistent with Executive Order 12962 as 
amended September 26, 2008, which required Federal agencies to ensure 
that recreational fishing is managed as a sustainable activity and is 
consistent with existing law.

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: April 15, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 300, subpart E as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    1. The authority citation for part 300, subpart E continues to read 
as follows:

    Authority: 16 U.S.C. 773-773k.

    2. In Sec.  300.61, as proposed to be amended on December 22, 2008, 
at 73 FR 78282 is further amended by:
    A. Removing the definition for ``Charter vessel''.
    B. Revising definitions for ``Charter vessel angler'', ``Charter 
vessel fishing trip'', ``Charter vessel guide'', ``Charter vessel 
operator'', ``Crew member'', and ``Sport fishing guide services''.
    C. Adding definitions for ``Charter halibut permit'', ``Community 
charter halibut permit'', and ``Military charter halibut permit'' in 
alphabetical order.

    The revisions and additions read as follows:


Sec.  300.61  Definitions.

* * * * *
    Charter halibut permit means a permit issued by the National Marine 
Fisheries Service pursuant to Sec.  300.67.

[[Page 18193]]

    Charter vessel angler, for purposes of Sec. Sec.  300.66, and 
300.67, means a person, paying or non-paying, using the services of a 
charter vessel guide.
    Charter vessel fishing trip, for purposes of Sec. Sec.  300.65(d), 
300.66, and 300.67, means the time period between the first deployment 
of fishing gear into the water from a vessel after any charter vessel 
angler is onboard and the offloading of one or more charter vessel 
anglers or any halibut from that vessel.
    Charter vessel guide, for purposes of Sec. Sec.  300.65(d), 300.66 
and 300.67, means a person who holds an annual sport guide license 
issued by the Alaska Department of Fish and Game, or a person who 
provides sport fishing guide services.
    Charter vessel operator, for purposes of Sec. Sec.  300.65(d), and 
300.67, means the person in control of the vessel during a charter 
vessel fishing trip.
* * * * *
    Community charter halibut permit means a permit issued by NMFS to a 
Community Quota Entity pursuant to Sec.  300.67.
    Crew member, for purposes of Sec. Sec.  300.65(d), and 300.67, 
means an assistant, deckhand, or similar person who works directly 
under the supervision of, and on the same vessel as, a charter vessel 
guide or charter vessel operator.
* * * * *
    Military charter halibut permit means a permit issued by NMFS to a 
United States Military Morale, Welfare and Recreation Program pursuant 
to Sec.  300.67.
* * * * *
    Sport fishing guide services, for purposes of Sec. Sec.  300.65(d) 
and 300.67, means assistance, for compensation, to a person who is 
sport fishing, to take or attempt to take fish by being onboard a 
vessel with such person during any part of a charter vessel fishing 
trip. Sport fishing guide services do not include services provided by 
a crew member.
* * * * *
    3. In Sec.  300.66, as proposed to be amended on December 22, 2008, 
at 73 FR 78283 is further amended by:
    A. Revising paragraphs (b), (i), (o), and (p).
    B. Adding paragraphs (r), (s), (t), (u), (v), and (w).
    The revisions and additions read as follows:


Sec.  300.66  Prohibitions.

* * * * *
    (b) Fish for halibut except in accordance with the catch sharing 
plans and domestic management measures implemented under Sec. Sec.  
300.63, 300.65, and 300.67.
* * * * *
    (i) Fish for subsistence halibut from a charter vessel or retain 
subsistence halibut onboard a charter vessel if anyone other than the 
owner of record, as indicated on the State of Alaska vessel 
registration, or the owner's immediate family is aboard the charter 
vessel and unless each person engaging in subsistence fishing onboard 
the charter vessel holds a subsistence halibut registration certificate 
in the person's name pursuant to Sec.  300.65(i) and complies with the 
gear and harvest restrictions found at Sec.  300.65(h). For purposes of 
this paragraph (i), the term ``charter vessel'' means a vessel that is 
registered, or that should be registered, as a sport fishing guide 
vessel with the Alaska Department of Fish and Game.
* * * * *
    (o) Fail to comply with the requirements of Sec. Sec.  300.65 and 
300.67.
    (p) Fail to submit or submit inaccurate information on any report, 
license, catch card, application or statement required or submitted 
under Sec. Sec.  300.65 and 300.67.
* * * * *
    (r) Operate a vessel with one or more charter vessel anglers on 
board that are catching and retaining halibut without a valid charter 
halibut permit for the regulatory area in which the vessel is 
operating.
    (s) Operate a vessel with more charter vessel anglers on board 
catching and retaining halibut than the total angler endorsement number 
specified on the charter halibut permit or permits on board the vessel.
    (t) Operate a vessel with more charter vessel anglers on board 
catching and retaining halibut than the angler endorsement number 
specified on the community charter halibut permit or permits on board 
the vessel.
    (u) Operate a vessel in Area 2C and Area 3A during one charter 
vessel fishing trip.
    (v) Operate a vessel in Area 2C or Area 3A with one or more charter 
vessel anglers on board that are catching and retaining halibut without 
having on board the vessel a State of Alaska Department of Fish and 
Game Saltwater Charter Logbook that specifies the following:
    (1) The person named on the charter halibut permit or permits being 
used on board the vessel;
    (2) The charter halibut permit or permits number(s) being used on 
board the vessel; and
    (3) The name and state issued boat registration (AK number) or U.S. 
Coast Guard documentation number of the vessel.
    (w) Operate a vessel with one or more charter vessel anglers on 
board that are catching and retaining halibut without the full 
compliance of the crew member(s) on the vessel with requirements of 
Sec. Sec.  300.65 and 300.67.
    4. Add Sec.  300.67 to subpart E to read as follows:


Sec.  300.67  Charter Halibut Limited Access Program.

    This section establishes limitations on using a vessel on which 
charter vessel anglers catch and retain Pacific halibut in 
International Pacific Halibut Commission (IPHC) regulatory areas 2C and 
3A.
    (a) General permit requirements. (1) In addition to other 
applicable permit and licensing requirements, any charter vessel 
operator with one or more charter vessel anglers catching and retaining 
Pacific halibut on board a vessel must have on board the vessel a valid 
charter halibut permit or permits endorsed for the regulatory area in 
which the vessel is operating and endorsed for the number of charter 
vessel anglers who are catching and retaining Pacific halibut.
    (2) Area endorsement. A charter halibut permit is valid only in the 
International Pacific Halibut Commission regulatory area for which it 
is endorsed. Regulatory areas are defined in the annual management 
measures published pursuant to Sec.  300.62.
    (3) Charter vessel angler endorsement. A charter halibut permit is 
valid only for the maximum number of charter vessel anglers for which 
the charter halibut permit is endorsed.
    (b) Qualifications for a charter halibut permit. A charter halibut 
permit for IPHC regulatory area 2C must be based on meeting 
participation requirements in area 2C. A charter halibut permit for 
IPHC regulatory area 3A must be based on meeting participation 
requirements in area 3A. Qualifications for a charter halibut permit in 
each area must be determined separately and must not be combined.
    (1) Non-transferable permit. NMFS will issue a non-transferable 
charter halibut permit to a person that:
    (i) Is the person to which the State of Alaska Department of Fish 
and Game (ADF&G) issued the ADF&G Business Owner Licenses that 
authorized logbook fishing trips during the time periods in paragraphs 
(b)(1)(ii) and (iii) of this section;
    (ii) Reported five (5) bottomfish logbook fishing trips or more 
during one year of the qualifying period; and

[[Page 18194]]

    (iii) Reported five (5) halibut logbook fishing trips or more 
during the recent participation period.
    (2) Transferable permit. NMFS will issue a transferable charter 
halibut permit to a person that:
    (i) Is the person to which the ADF&G issued one or more ADF&G 
Business Owner Licenses that authorized logbook fishing trips during 
the time periods in paragraphs (b)(2)(ii) and (iii) of this section;
    (ii) Reported fifteen (15) bottomfish logbook fishing trips or more 
from the same vessel during one year of the qualifying period; and
    (iii) Reported fifteen (15) halibut logbook fishing trips or more 
from the same vessel during the recent participation period.
    (3) NMFS will issue a charter halibut permit to a person who meets 
the following requirements:
    (i) The person applies for a charter halibut permit within the 
application period specified in the Federal Register and completes the 
application process pursuant to paragraph (h) of this section.
    (ii) The person is the individual or non-individual entity to which 
ADF&G issued Business Owner Licenses that authorized logbook fishing 
trips that meet the participation requirements described in paragraphs 
(b)(1) and (b)(2) of this section for one or more charter halibut 
permits, unless the person is applying as a successor-in-interest.
    (iii) If the person is applying as a successor-in-interest to the 
person to which ADF&G issued the Business Owner Licenses that 
authorized logbook fishing trips that meet the participation 
requirements described in paragraphs (b)(1) and (b)(2) of this section 
for one or more charter halibut permits, NMFS will require the 
following written documentation:
    (A) If the applicant is applying on behalf of a deceased 
individual, the applicant must document that the individual is 
deceased, that the applicant is the personal representative of the 
deceased's estate appointed by a court and that the applicant specifies 
who, pursuant to the applicant's personal representative duties, should 
receive the permit(s) for which application is made; or
    (B) If the applicant is applying as a successor-in-interest to an 
entity that is not an individual, the applicant must document that the 
entity has been dissolved and that the applicant is the successor-in-
interest to the dissolved entity.
    (4) If more than one applicant claims that they are the successor-
in-interest to a dissolved entity, NMFS will award the permit or 
permits for which the dissolved entity qualified in the name(s) of the 
applicants that submitted a timely application and proved that they are 
a successor-in-interest to the dissolved entity.
    (5) Notwithstanding any other provision in this subpart, and except 
as provided in paragraph (b)(4) of this section,
    (i) One logbook fishing trip shall not be credited to more than one 
applicant;
    (ii) One logbook fishing trip made pursuant to the one ADF&G 
Business Owners License shall not be credited to more than one 
applicant; and
    (iii) Participation by one charter halibut fishing business shall 
not be allowed to support issuance of permits to more than one 
applicant.
    (c) Number of charter halibut permits. An applicant that meets the 
participation requirements in paragraph (b) of this section will be 
issued the number of charter halibut permits equal to the lesser of the 
number of permits determined by paragraphs (c)(1) or (c)(2) of this 
section as follows:
    (1) The total number of bottomfish logbook fishing trips made 
pursuant to the applicant's ADF&G Business License in the applicant-
selected year divided by five, and rounded down to a whole number; or
    (2) The number of vessels that made the bottomfish logbook fishing 
trips in the applicant-selected year.
    (d) Designation of transferability. Each permit issued under 
paragraph (c) of this section will be designated as transferable or 
non-transferable. The number of transferable charter halibut permits 
issued to an applicant will be equal to the number of vessels that made 
15 bottomfish logbook fishing trips or more in the applicant-selected 
year. If the applicant qualifies for additional charter halibut 
permits, they will be issued as non-transferable permits.
    (e) Angler endorsement. A charter halibut permit will be endorsed 
for the highest number of charter vessel anglers reported on any 
logbook fishing trip in the qualifying period except that:
    (1) The angler endorsement number will be four (4) if the highest 
number of charter vessel anglers reported on any logbook fishing trip 
in the qualifying period is less than four (4) or no charter vessel 
anglers were reported on any of the applicant's logbook fishing trips 
in the applicant-selected year; and
    (2) The angler endorsement number will be six (6) on a charter 
halibut permit issued pursuant to military service under paragraph 
(g)(3) of this section.
    (f) For purposes of this section, the following terms are defined 
as follows:
    (1) Applicant-selected year means the year in the qualifying 
period, 2004 or 2005, selected by the applicant for NMFS to use in 
determining the applicant's number of transferable and nontransferable 
permits.
    (2) Bottomfish logbook fishing trip means a logbook fishing trip in 
the qualifying period that was reported to the State of Alaska in a 
Saltwater Charter Logbook with one of the following pieces of 
information: the statistical area(s) where bottomfish fishing occurred, 
the boat hours that the vessel engaged in bottomfish fishing, or the 
number of rods used from the vessel in bottomfish fishing.
    (3) Halibut logbook fishing trip means a logbook fishing trip in 
the recent participation period that was reported to the State of 
Alaska in a Saltwater Charter Logbook within the time limit for 
reporting the trip in effect at the time of the trip with one of the 
following pieces of information: the number of halibut that was kept, 
the number of halibut that was released, or the boat hours that the 
vessel engaged in bottomfish fishing.
    (4) Logbook fishing trip means a bottomfish logbook fishing trip or 
a halibut logbook fishing trip that was reported as a trip to the State 
of Alaska in a Saltwater Charter Logbook within the time limits for 
reporting the trip in effect at the time of the trip, except that for 
multi-day trips, the number of trips will be equal to the number of 
days of the multi-day trip, e.g., a two day trip will be counted as two 
trips.
    (5) Official charter halibut record means the information prepared 
by NMFS on participation in charter halibut fishing in Area 2C and Area 
3A that NMFS will use to implement the Charter Halibut Limited Access 
Program and evaluate applications for charter halibut permits.
    (6) Qualifying period means the sport fishing season established by 
the International Pacific Halibut Commission (February 1 through 
December 31) in 2004 and 2005.
    (7) Recent participation period means the sport fishing season 
established by the International Pacific Halibut Commission (February 1 
through December 31) in [insert the recent participation year].
    (g) Unavoidable circumstance--(1) Recent participation period. An 
applicant for a charter halibut permit that meets the participation 
requirement for the qualifying period, but does not meet the 
participation requirement for the recent participation period, may 
receive one or more charter halibut

[[Page 18195]]

permits if the applicant proves paragraphs (g)(1)(i) through (iv) of 
this section as follows:
    (i) The applicant had a specific intent to operate a charter 
halibut fishing business in the recent participation period;
    (ii) The applicant's specific intent was thwarted by a circumstance 
that was:
    (A) Unavoidable;
    (B) Unique to the owner of the charter halibut fishing business; 
and
    (C) Unforeseen and reasonably unforeseeable by the owner of the 
charter halibut fishing business;
    (iii) The circumstance that prevented the applicant from operating 
a charter halibut fishing business actually occurred; and
    (iv) The applicant took all reasonable steps to overcome the 
circumstance that prevented the applicant from operating a charter 
halibut fishing business in the recent participation period.
    (v) If the applicant proves the foregoing (see paragraphs (g)(1)(i) 
through (iv) of this section), the applicant will receive the number of 
transferable and non-transferable permits and the angler endorsements 
on these permits that result from the application of criteria in 
paragraphs (b), (c), (d), (e), and (f) of this section.
    (2) Qualifying period. An applicant for a charter halibut permit 
that meets the participation requirement for the recent participation 
period but does not meet the participation requirement for the 
qualifying period, may receive one or more permits if the applicant 
proves paragraphs (g)(2)(i) through (iv) of this section as follows:
    (i) The applicant had a specific intent to operate a charter 
halibut fishing business in at least one year of the qualifying period;
    (ii) The applicant's specific intent was thwarted by a circumstance 
that was:
    (A) Unavoidable;
    (B) Unique to the owner of the charter halibut fishing business; 
and
    (C) Unforeseen and reasonably unforeseeable by the owner of the 
charter halibut fishing business;
    (iii) The circumstance that prevented the applicant from operating 
a charter halibut fishing business actually occurred; and
    (iv) The applicant took all reasonable steps to overcome the 
circumstance that prevented the applicant from operating a charter 
halibut fishing business in at least one year of the qualifying period.
    (v) If the applicant proves the foregoing (see paragraphs (g)(2)(i) 
through (iv) of this section), the applicant will receive either:
    (A) One non-transferable permit with an angler endorsement of four 
(4); or
    (B) The number of transferable and non-transferable permits, and 
the angler endorsement on those permits, that result from the logbook 
fishing trips that the applicant proves likely would have taken by the 
applicant but for the circumstance that thwarted the applicant's 
specific intent to operate a charter halibut fishing business in one 
year of the qualifying period and the applicant did not participate 
during the other year of the qualifying period.
    (3) Military service. An applicant for a charter halibut permit 
that meets the participation requirement in the recent participation 
period, but does not meet the participation requirement for the 
qualifying period, may receive one or more permits if the applicant 
proves the following:
    (i) The applicant was ordered to report for military service as a 
member of a branch of the National Guard or military reserve during the 
qualifying period; and
    (ii) The applicant had a specific intent to operate a charter 
halibut fishing business that was thwarted by the applicant's order to 
report for military service.
    (h) Application for a charter halibut permit. (1) An application 
period of no less than 60 days will be specified by notice in the 
Federal Register during which any person may apply for a charter 
halibut permit. Any application that is submitted by mail and 
postmarked, or submitted by hand delivery or facsimile, after the last 
day of the application period will be denied. Electronic submission 
other than by facsimile will be denied. Applications must be submitted 
to the address given in the Federal Register notice of the application 
period.
    (2) Charter halibut permit. To be complete, a charter halibut 
permit application must be signed and dated by the applicant, and the 
applicant must attest that, to the best of the applicant's knowledge, 
all statements in the application are true and the applicant complied 
with all legal requirements for logbook fishing trips in the qualifying 
period and recent participation period that were reported under the 
applicant's ADF&G Business Owner Licenses. An application for a charter 
halibut permit will be made available by NMFS. Completed applications 
may be submitted by mail, hand delivery, or facsimile at any time 
during the application period announced in the Federal Register notice 
of the application period described at paragraph (h)(1) of this 
section.
    (3) Application procedure. NMFS will create the official charter 
halibut record and will accept all application claims that are 
consistent with the official charter halibut record. If an applicant's 
claim is not consistent with the official charter halibut record, NMFS 
will respond to the applicant by letter specifying a 30-day evidentiary 
period during which the applicant may provide additional information or 
argument to support the applicant's claim. Limits on the 30-day 
evidentiary period are as follows:
    (i) An applicant shall be limited to one 30-day evidentiary period; 
and
    (ii) Additional information received after the 30-day evidentiary 
period has expired will not be considered for purposes of the initial 
administrative determination.
    (4) After NMFS evaluates the additional information submitted by 
the applicant during the 30-day evidentiary period, it will take one of 
the following two actions.
    (i) If NMFS determines that the applicant has met its burden of 
proving that the official charter halibut record is incorrect, NMFS 
will amend the official charter halibut record and use the official 
charter halibut record, as amended, to determine whether the applicant 
is eligible to receive one or more charter halibut permits, the nature 
of those permits and the angler and area endorsements on those permits; 
or
    (ii) If NMFS determines that the applicant has not met its burden 
of proving that the official charter halibut record is incorrect, NMFS 
will notify the applicant by an initial administration determination, 
pursuant to paragraph (h)(5) of this section.
    (5) Initial Administration Determination (IAD). NMFS will send an 
IAD to the applicant following the expiration of the 30-day evidentiary 
period if NMFS determines that the applicant has not met its burden of 
proving that the official charter halibut record is incorrect or that 
other reasons exist to initially deny the application. The IAD will 
indicate the deficiencies in the application and the deficiencies with 
the information submitted by the applicant in support of its claim.
    (6) Appeal. An applicant that receives an IAD may appeal to the 
Office of Administrative Appeals (OAA) pursuant to Sec.  679.43 of this 
title.
    (i) If the applicant does not apply for a charter halibut permit 
within the application period specified in the Federal Register, the 
applicant will not receive any interim permits pending final agency 
action on the application.
    (ii) If the applicant applies for a permit within the specified 
application period and OAA accepts the applicant's appeal, the 
applicant will receive the number and kind of interim permits

[[Page 18196]]

which are not in dispute, according to the information in the official 
charter halibut record.
    (iii) If the applicant applies for a permit within the specified 
application period and OAA accepts the applicant's appeal, but 
according to the information in the official charter halibut record, 
the applicant would not be issued any permits, the applicant will 
receive one interim permit with an angler endorsement of four (4).
    (iv) All interim permits will be non-transferable and will expire 
when NMFS takes final agency action on the application.
    (i) Transfer of a charter halibut permit--(1) General. A transfer 
of a charter halibut permit is valid only if it is approved by NMFS. 
NMFS will approve a transfer of a charter halibut permit if the permit 
to be transferred is a transferable permit issued under paragraph 
(b)(2) of this section, if a complete transfer application is 
submitted, and if the transfer application meets the standards for 
approval in paragraph (i)(2) of this section.
    (2) Standards for approval of transfers. NMFS will transfer a 
transferable charter halibut permit to a person designated by the 
charter halibut permit holder if, at the time of the transfer the 
following standards are met:
    (i) The person designated to receive the transferred permit is a 
U.S. citizen or a U.S. business with a minimum of 75 percent U.S. 
ownership;
    (ii) The parties to the transfer do not owe NMFS any fines, civil 
penalties or any other payments;
    (iii) The transfer is not inconsistent with any sanctions resulting 
from Federal fishing violations;
    (iv) The transfer will not cause the designated recipient of the 
permit to exceed the permit limit at paragraph (j) of this section, 
unless an exception to that limit applies;
    (v) A transfer application is completed and approved by NMFS; and
    (vi) The transfer does not violate any other provision in this 
part.
    (3) For purposes of paragraph (i)(2) of this section, a U.S. 
business with a minimum of 75 percent U.S. ownership means a 
corporation, partnership, association, trust, joint venture, limited 
liability company, limited liability partnership, or any other entity 
where at least 75 percent of the interest in such entity, at each tier 
of ownership of such entity and in the aggregate, is owned and 
controlled by citizens of the United States.
    (4) Application to transfer a charter halibut permit. To be 
complete, a charter halibut permit transfer application must have 
notarized and dated signatures of the applicants, and the applicants 
must attest that, to the best of the applicants' knowledge, all 
statements in the application are true. An application to transfer a 
charter halibut permit will be made available by NMFS. Completed 
transfer applications may be submitted by mail or hand delivery at any 
time to the addresses listed on the application. Electronic or 
facsimile deliveries will not be accepted.
    (5) Denied transfer applications. If NMFS does not approve a 
charter halibut permit transfer application, NMFS will inform the 
applicant of the basis for its disapproval.
    (6) Transfer due to court order, operation of law or as part of a 
security agreement. NMFS will transfer a charter halibut permit based 
on a court order, operation of law or a security agreement, if NMFS 
determines that a transfer application is complete and the transfer 
will not violate an eligibility criterion for transfers.
    (j) Charter halibut permit limitations--(1) General. A person may 
not own, hold, or control more than five (5) charter halibut permits 
except as provided by paragraph (j)(4) of this section. NMFS will not 
approve a transfer application that would result in the applicant that 
would receive the transferred permit holding more than five (5) charter 
halibut permits except as provided by paragraph (j)(6) of this section.
    (2) Ten percent ownership criterion. In determining whether two or 
more persons are the same person for purposes of paragraph (j)(1) of 
this section, NMFS will apply the definition of an ``affiliation for 
the purpose of defining AFA entities'' at Sec.  679.2 of this title.
    (3) A permit will cease to be a valid permit if the permit holder 
is:
    (i) An individual and the individual dies; or
    (ii) A non-individual (e.g., corporation or partnership) and 
dissolves or changes as defined at paragraph (j)(5) of this section.
    (iii) A transferable permit may be made valid by transfer to an 
eligible recipient.
    (4) Exception for initial recipients of permits. Notwithstanding 
the limitation at paragraph (j)(1) of this section, NMFS may issue more 
than five (5) charter halibut permits to an initial recipient that 
meets the requirements described in paragraphs (b), (d), and (e) of 
this section for more than five (5) charter halibut permits, subject to 
the following limitations:
    (i) This exception applies only to an initial recipient as the 
recipient exists at the time that it is initially issued the permits;
    (ii) If an initial recipient of transferable permit(s) who is an 
individual dies, the individual's successor-in-interest may not hold 
more than five (5) charter halibut permits;
    (iii) If an initial recipient permit holder that is a non-
individual, such as a corporation or a partnership, dissolves or 
changes, NMFS will consider the new entity a new permit holder and the 
new permit holder may not hold more than five (5) charter halibut 
permits.
    (5) For purposes of this paragraph (j), a ``change'' means:
    (i) For an individual, the individual has died, in which case NMFS 
must be notified within 30 days of the individual's death; and
    (ii) For a non-individual entity, the same as defined at Sec.  
679.42(j)(4)(i) of this title in which case the permit holder must 
notify NMFS within 15 days of the effective date of the change as 
required at Sec.  679.42(j)(5) of this title.
    (6) Exception for transfer of permits. Notwithstanding the 
limitation at paragraph (j)(1) of this section, NMFS may approve a 
permit transfer application that would result in the person that would 
receive the transferred permit(s) holding more than five (5) 
transferable charter halibut permits if the parties to the transfer 
meet the following conditions:
    (i) The designated person that would receive the transferred 
permits does not hold any charter halibut permits;
    (ii) All permits that would be transferred are transferable 
permits;
    (iii) The permits that would be transferred are all of the 
transferable permits that were awarded to an initial recipient who 
exceeded the permit limitation of five (5) permits; and
    (iv) The person transferring its permits also is transferring its 
entire charter vessel fishing business, including all the assets of 
that business, to the designated person that would receive the 
transferred permits.
    (k) Community charter halibut permit--(1) General. A Community 
Quota Entity (CQE), as defined in Sec.  679.2 of this title, 
representing an eligible community listed in paragraph (k)(2) of this 
section, may receive one or more community charter halibut permits. A 
community charter halibut permit issued to a CQE will be designated for 
area 2C or area 3A, will be non-transferable, and will have an angler 
endorsement of six (6).
    (2) Eligible communities. Each community charter halibut permit

[[Page 18197]]

issued to a CQE under paragraph (k)(1) of this section will specify the 
name of an eligible community on the permit. Only the following 
communities are eligible to receive community charter halibut permits:
    (i) For Area 2C: Angoon, Coffman Cove, Edna Bay, Hollis, Hoonah, 
Hydaburg, Kake, Kassan, Klawock, Metlakatla, Meyers Chuck, Pelican, 
Point Baker, Port Alexander, Port Protection, Tenakee, Thorne Bay, 
Whale Pass.
    (ii) For Area 3A: Akhiok, Chenega Bay, Halibut Cove, Karluk, Larsen 
Bay, Nanwalek, Old Harbor, Ouzinkie, Port Graham, Port Lyons, Seldovia, 
Tatitlek, Tyonek, Yakutat.
    (3) Limitations. The maximum number of community charter halibut 
permits that may be issued to a CQE for each eligible community the CQE 
represents is as follows:
    (i) A CQE representing an eligible community or communities in 
regulatory area 2C may receive a maximum of four (4) community charter 
halibut permits per eligible community designated for Area 2C.
    (ii) A CQE representing an eligible community or communities in 
regulatory area 3A may receive a maximum of seven (7) community charter 
halibut permits per eligible community designated for Area 3A.
    (4) NMFS will not approve a transfer that will cause a CQE 
representing a community or communities to hold more than the following 
total number of permits, per community, including community charter 
halibut permits granted to the CQE under this paragraph (k) and any 
charter halibut permits acquired by the CQE by transfer under paragraph 
(i) of this section.
    (i) The maximum number of charter halibut and community charter 
halibut permits that may be held by a CQE per community represented by 
the CQE in regulatory area 2C is eight (8).
    (ii) The maximum number of charter halibut and community charter 
halibut permits that may be held by a CQE per community represented by 
the CQE in regulatory area 3A is fourteen (14).
    (5) Limitation on use of permits. The following limitations apply 
to community charter halibut permits issued to a CQE under paragraph 
(k)(1) of this section.
    (i) Every charter vessel fishing trip authorized by such a permit 
and on which halibut are caught and retained must begin or end at a 
location(s) specified on the application for a community charter 
halibut permit and that is within the boundaries of the eligible 
community designated on the permit. The geographic boundaries of the 
eligible community will be those defined by the United States Census 
Bureau.
    (ii) Community charter halibut permits may be used only within the 
regulatory area for which they are designated to catch and retain 
halibut.
    (6) Application procedure. To be complete, a community charter 
halibut permit application must be signed and dated by the applicant, 
and the applicant must attest that, to the best of the applicants' 
knowledge, all statements in the application are true and complete. An 
application for a community charter halibut permit will be made 
available by NMFS and may be submitted by mail, hand delivery, or 
facsimile at any time to the address(s) listed on the application. 
Electronic deliveries other than facsimile will not be accepted.
    (l) Military charter halibut permit. NMFS will issue a military 
charter halibut permit without an angler endorsement to an applicant 
provided that the applicant is a Morale, Welfare and Recreation Program 
of the United States Armed Services.
    (1) Limitations. A military charter halibut permit is non-
transferable and may be used only in the regulatory area (2C or 3A) 
designated on the permit.
    (2) Application procedure. An applicant may apply for a military 
charter halibut permit at any time. To be complete, a military charter 
halibut permit application must be signed and dated by the applicant, 
and the applicant must attest that, to the best of the applicants' 
knowledge, all statements in the application are true and complete. An 
application for a military charter halibut permit will be made 
available by NMFS and may be submitted by mail, hand delivery, or 
facsimile at any time to the address(s) listed on the application. 
Electronic deliveries other than facsimile will not be accepted.
[FR Doc. E9-9110 Filed 4-20-09; 8:45 am]
BILLING CODE 3510-22-S


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