18178 Federal Register / Vol. 74, No. 75 / Tuesday, April 21, 2009 / Proposed Rules 

the requirements of the Clean Air Act 

(Act). 

DATES: Comments must be received on 

or before May 21, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2007–1045, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: mooney.john@epa.gov. 

3. Fax: (312) 886–5824. 

4. Mail: John M. Mooney, Chief, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: John M. Mooney, 

Chief, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Such deliveries are only 

accepted during the Regional Office 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

8:30 a.m. to 4:30 p.m. excluding Federal 

holidays. 

Please see the direct final rule which 

is located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Christos Panos, Environmental 

Engineer, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–8328, 

panos.christos@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Rules section of this Federal Register, 

EPA is approving the State’s SIP 

submittal as a direct final rule without 

prior proposal because the Agency 

views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this rule, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. For additional information, 

see the direct final rule which is located 

in the Rules section of this Federal 

Register. 

Dated: March 30, 2009. 

Walter W Kovalick Jr., 

Acting Regional Administrator, Region 5. 

[FR Doc. E9–9043 Filed 4–20–09; 8:45 am] 

BILLING CODE P 

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. 

SUMMARY: NMFS proposes regulations 

that would implement a limited access 

system for charter vessels in the guided 

sport fishery for Pacific halibut in 

waters of International Pacific Halibut 

Commission (IPHC) Regulatory Areas 2C 

(Southeast Alaska) and 3A (Central Gulf 

of Alaska). If approved, this limited 

access system would limit the number 

of charter vessels that may participate in 

the guided sport fishery for halibut in 

these areas. NMFS would issue a charter 

halibut permit to a licensed charter 

fishing business owner based on his or 

her past participation in the charter 

halibut fishery for halibut and to a 

Community Quota Entity representing 

specific rural communities. All charter 

halibut permit holders would be subject 

to limits on the number of permits they 

could hold and on the number of charter 

vessel anglers who could catch and 

retain halibut on their charter vessels. 

This action is necessary to achieve the 

halibut fishery management goals of the 

North Pacific Fishery Management 

Council. The intended effect is to curtail 

growth of fishing capacity in the guided 

sport fishery for halibut. 

DATES: Written comments must be 

received by June 5, 2009. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments identified by 0648–AW92 by 

any one of the following methods: 

• Electronic submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal website at 

http://www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802–1668. 

• Fax: 907–586–7557. 

• Hand delivery: 709 West 9th 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 

DavidlRostker@omb.eop.gov or fax to 

202–395–7285. 

Copies of the Environmental 

Assessment/Regulatory Impact Review/ 

Initial Regulatory Flexibility Analysis 

prepared for this action may be obtained 

from the Alaska Region, NMFS at the 

address above or from the Alaska Region 

website at 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 


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State with concurrence from the 

Secretary of Commerce (Secretary). 

After approval by the Secretary of State 

and the Secretary, the IPHC regulations 

are published in the Federal Register as 

annual management measures pursuant 

to 50 CFR 300.62. The most recent IPHC 

regulations were published March 7, 

2008 at 73 FR 12280. IPHC regulations 

affecting sport fishing for halibut and 

charter vessels in Areas 2C and 3A may 

be found in sections 3, 25, and 28 (73 

FR 12280, March 7, 2008). 

The Halibut Act, at Sections 773c(a) 

and (b), provides the Secretary with 

general responsibility to carry out the 

Convention and the Halibut Act. In 

adopting regulations that may be 

necessary to carry out the purposes and 

objectives of the Convention and the 

Halibut Act, the Secretary is directed to 

consult with the Secretary of the 

department in which the U.S. Coast 

Guard is operating. 

The Halibut Act at, Section 773c(c), 

also provides the North Pacific Fishery 

Management Council (Council) with 

authority to develop regulations, 

including limited access regulations, 

that are in addition to, and not in 

conflict with, approved IPHC 

regulations. Such Council–developed 

regulations may be implemented by 

NMFS only after approval by the 

Secretary. The Council has exercised 

this authority most notably in the 

development of its Individual Fishing 

Quota (IFQ) Program, codified at 50 CFR 

part 679, and subsistence halibut fishery 

management measures, codified at 50 

CFR 300.65. The Council also has been 

developing a regulatory program to 

manage the guided sport charter vessel 

fishery for halibut. This action is 

proposed as a step in the development 

of that regulatory program. 

Management of the Halibut Fisheries 

The harvest of halibut occurs in three 

basic fisheries—the commercial, sport, 

and subsistence fisheries. Additional 

fishing mortality occurs as bycatch or 

incidental catch while targeting other 

species and wastage of halibut that are 

caught but cannot be used for human 

food. 

The IPHC annually determines the 

amount of halibut that may be removed 

from the resource without causing 

biological conservation problems on an 

area–by–area basis in all areas of 

Convention waters. It imposes catch 

limits, however, only on the commercial 

sector in areas in and off of Alaska. The 

IPHC estimates the exploitable biomass 

of halibut using a combination of 

harvest data from the commercial, 

recreational, subsistence fisheries, and 

information collected during scientific 

surveys and sampling of bycatch in 

other fisheries. The target amount of 

allowable harvest for a given area is 

calculated by multiplying a fixed 

harvest rate by the estimate of 

exploitable biomass. This target level is 

called the total constant exploitation 

yield (CEY) as it represents the target 

level for total removals (in net pounds) 

for that area in the coming year. The 

IPHC subtracts estimates of all non– 

commercial removals (sport, 

subsistence, bycatch, and wastage) from 

the total CEY. The remaining CEY, after 

the removals are subtracted, is the 

maximum catch or ‘‘fishery CEY’’ for an 

area’s directed commercial fixed gear 

fishery. 

This method of determining the 

commercial fishery’s catch limit in an 

area results in a decrease in the 

commercial fishery’s use of the resource 

as other non–commercial users increase 

their proportion of the total CEY. As 

conservation of the halibut resource is 

the overarching goal of the IPHC, it 

attempts to include all sources of fishing 

mortality of halibut within the total 

CEY. This method for determining the 

limit for the commercial use of halibut 

has worked well for many years to 

conserve the halibut resource, provided 

that the other non–commercial uses of 

the resource have remained relatively 

stable and small. Although most of the 

non–commercial uses of halibut have 

been relatively stable, growth in the 

guided sport charter vessel fishery in 

recent years has resulted in this fishery 

harvesting a larger amount of halibut 

than it did in earlier years. Increases in 

the halibut harvest of any non– 

commercial fishery reduce the amount 

available to the commercial fishery. 

History of Charter Vessel Fishery 

Management 

Until 2007, guided sport fishing for 

halibut on charter vessels was governed 

only by regulations developed by the 

IPHC that were applicable to all halibut 

sport fishing. Current IPHC sport fishing 

regulations may be found in the annual 

management measures referenced above 

(at in sections 3, 25, and 28 (73 FR 

12280, March 7, 2008)). In summary, the 

basic IPHC sport fishing rules for Alaska 

stipulate the following: 

• A single line with no more than two 

hooks attached or a spear; 

• A daily bag limit of two halibut of 

any size (except for charter vessel 

anglers in Area 2C, as explained below); 

• A possession limit of two daily bag 

limits; 

• A sport fishing season of February 1 

through December 31; 

• A prohibition on sale, trade, or 

barter of sport–caught halibut; and 

• A prohibition on filleting, 

mutilating, or otherwise disfiguring 

halibut on board a fishing vessel except 

that each halibut may be cut into no 

more than two ventral, two dorsal 

pieces and two cheeks with skin on. 

The IPHC first adopted sport halibut 

fishing rules in 1973, in response to 

Federal, state, and provincial agencies 

seeking consistency and uniformity in 

sport fishing regulations in all IPHC 

areas. The IPHC bag limit rule was first 

established as three fish per day per 

person in 1973, was reduced to one fish 

per day in 1974, and raised to two fish 

per day in 1975, where it has remained 

until present. Similarly, the IPHC 

established the sport fishing season for 

halibut originally from March 1 through 

October 31 in 1973, and changed it for 

several years until the current 11-month 

season was set in 1986. Finally, during 

the years 1984 through 1997, the IPHC 

required sport charter vessels to have 

IPHC licenses. 

The Council has discussed the 

expansion of the guided sport charter 

vessel fishery for halibut, and the need 

to manage it, since 1993. A guideline 

harvest level (GHL) for Area 2C and a 

separate GHL for Area 3A were adopted 

by the Council in 1997. The GHLs by 

themselves do not limit the charter 

vessel fisheries. Although the Council’s 

policy is that the charter vessel fisheries 

should not exceed the GHLs, no 

constraints were initially recommended 

by the Council or imposed on the 

charter vessel fisheries for exceeding a 

GHL. The Council stated its intent to 

maintain a stable charter vessel fishing 

season without a mid–season closure. 

The Council envisioned ‘‘framework’’ 

regulations of increasing restrictiveness 

depending on the extent to which a GHL 

was exceeded. Proposed framework 

regulations were published in 2002 

(January 28, 2002; 67 FR 3867); 

however, NMFS informed the Council 

later that year that its framework 

regulations could not be implemented 

as envisioned. Hence, proposed and 

final rule notices were published 

(January 28, 2002, 67 FR 3867 and 

August 8, 2003, 68 FR 47256, 

respectively) establishing the GHLs 

without restrictive regulations and 

codified at 50 CFR 300.65(c). 

The GHLs represent a pre–season 

specification of acceptable annual 

halibut harvests in the charter vessel 

fisheries in Areas 2C and 3A. To 

accommodate some growth in the 

charter vessel sector while 

approximating historical harvest levels, 

the Council recommended GHLs based 

on 125 percent of the average 1995 

through 1999 charter vessel harvest. For 

Area 2C the GHL was set at 1,432,000 


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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 


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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 


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18182 Federal Register / Vol. 74, No. 75 / Tuesday, April 21, 2009 / Proposed Rules 

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/ 

currentlissues/halibutlissues/ 

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 


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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 


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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 


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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 halfday 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. 


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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 


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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: 

• It participated during either the 

qualifying period or the recent 

participation period; 

• It had a specific intent to participate 

in the period, either the qualifying 

period or the recent participation 

period, that the applicant missed; 

•The circumstance that thwarted the 

intended participation was (a) 

unavoidable, (b) unique to the 

applicant, (c) unforeseen and 

unforeseeable; 

•The applicant took all reasonable 

steps to overcome the problem; and 

•The unavoidable circumstance 

actually occurred. 

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 


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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 


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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: 

•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; 

•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 

•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 


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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: 

• Fishing for halibut in violation of 

this program; 

• Failing to comply with the 

requirements of this program; 

• Failing to submit or submitting 

inaccurate information that is required 

to be submitted; 

• 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; 

• 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 

• 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 


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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: 

• Prohibit the charter halibut permit 

from being used on board a vessel 

unless that vessel is identified in an 

ADF&G Saltwater Charter Logbook; 

•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 

•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 


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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 

DavidlRostker@omb.eop.gov, 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 § 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: 

§ 300.61 Definitions. 

* * * * * 

Charter halibut permit means a permit 

issued by the National Marine Fisheries 

Service pursuant to § 300.67. 


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Charter vessel angler, for purposes of 

§§ 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 §§ 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 

§§ 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 §§ 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 

§ 300.67. 

Crew member, for purposes of 

§§ 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 

§ 300.67. 

* * * * * 

Sport fishing guide services, for 

purposes of §§ 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 § 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: 

§ 300.66 Prohibitions. 

* * * * * 

(b) Fish for halibut except in 

accordance with the catch sharing plans 

and domestic management measures 

implemented under §§ 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 § 300.65(i) 

and complies with the gear and harvest 

restrictions found at § 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 §§ 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 §§ 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 §§ 300.65 and 300.67. 

4. Add § 300.67 to subpart E to read 

as follows: 

§ 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 

§ 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 


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(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 


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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 § 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 


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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 § 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 § 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 § 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 

§ 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 


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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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