[Federal Register Volume 75, Number 180 (Friday, September 17, 2010)]
[Rules and Regulations]
[Pages 56903-56910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23267]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 100503209-0430-02]
RIN 0648-AY85


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

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

ACTION: Final rule.

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SUMMARY: NMFS issues regulations amending the limited access program 
for charter vessels in the guided sport fishery for Pacific halibut in 
the waters of International Pacific Halibut Commission Regulatory Area 
2C (Southeast Alaska) and Area 3A (Central Gulf of Alaska). These 
regulations revise the method of assigning angler endorsements to 
charter halibut permits to more closely align each endorsement

[[Page 56904]]

with the greatest number of charter vessel anglers reported for each 
vessel that a charter business used to qualify for a charter halibut 
permit. This action is necessary to achieve the halibut fishery 
management goals of the North Pacific Fishery Management Council.

DATES: Effective October 18, 2010.

ADDRESSES:  Electronic copies of the Categorical Exclusion, the 
Regulatory Impact Review (RIR), the Initial Regulatory Flexibility 
Analysis (IRFA), and the Final Regulatory Flexibility Analysis (FRFA) 
prepared for this action are available from http://www.regulations.gov 
or from the NMFS Alaska Region website at http://alaskafisheries.noaa.gov. The Environmental Assessment, RIR, and FRFA 
for the charter halibut limited access program are available from the 
NMFS Alaska Region website at http://alaskafisheries.noaa.gov.

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

SUPPLEMENTARY INFORMATION: The International Pacific Halibut Commission 
(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 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 18, 2010 (75 FR 
13024). IPHC regulations affecting sport fishing for halibut and 
charter vessels in IPHC Areas 2C and 3A may be found in sections 3, 25, 
and 28 of the March 18 final rule.
    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.
    Section 773c(c) of the Halibut Act also authorizes the North 
Pacific Fishery Management Council (Council) 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 commercial fishery Individual Fishing Quota Program, 
codified at 50 CFR part 679, subsistence halibut fishery management 
measures, codified at 50 CFR 300.65, and the limited access program for 
charter vessels in the guided sport fishery, codified at 50 CFR 300.67. 
This action is consistent with the Council's authority under section 
773(c) of the Halibut Act.

Charter Halibut Limited Access Program

    In March 2007, the Council recommended a limited access program for 
charter vessels in IPHC Areas 2C and 3A. The intent of the program was 
to curtail growth of fishing capacity in the charter sector by limiting 
the number of charter vessels that may participate in the guided sport 
fishery for halibut in Areas 2C and 3A. NMFS published a final rule 
implementing the program on January 5, 2010 (75 FR 554). Under the 
program, NMFS will issue a charter halibut permit to a licensed charter 
fishing business owner based on his or her past participation in the 
charter halibut fishery. Portions of the limited access program final 
rule that related to eligibility criteria, the permit application 
process, and other administrative procedures became effective on 
February 4, 2010. The requirement to have a charter halibut permit on 
board a charter vessel fishing for halibut will become effective on 
February 1, 2011.

Qualifications for Charter Halibut Permit

    An applicant must demonstrate participation in the charter halibut 
fishery during a historic qualifying period and during a recent 
participation period to receive an initial allocation of a charter 
halibut permit. The two historic qualifying periods are the sport 
fishing seasons established by the IPHC in 2004 and 2005 (February 1 
through December 31). Applicants need to demonstrate participation only 
in one of these years-2004 or 2005. The recent participation period is 
the sport fishing season established by the IPHC in 2008 (February 1 
through December 31). This year was selected as the recent 
participation period because, at the time of program implementation, it 
was the most recent year for which NMFS had a complete record of 
saltwater charter vessel logbook data from the Alaska Department of 
Fish and Game (ADF&G).
    The basic unit of participation for receiving a charter halibut 
permit is a logbook fishing trip. A logbook fishing trip is an event 
that was reported to ADF&G in a saltwater charter vessel logbook within 
the requisite time limit in effect when the trip was made.
    The minimum participation qualifications include documentation of 
at least five logbook fishing trips during one of the qualifying years-
2004 or 2005-and at least five logbook fishing trips during 2008. 
Meeting the minimum participation qualifications could qualify an 
applicant for a non-transferable charter halibut permit. The minimum 
participation qualifications for a transferable charter halibut permit 
include documentation of at least 15 logbook fishing trips during one 
of the qualifying years-2004 or 2005-and at least 15 logbook fishing 
trips during 2008.

Angler Endorsements

    Each charter halibut permit will have an angler endorsement number. 
The angler endorsement number on the permit is the maximum number of 
charter vessel anglers that may catch and retain halibut onboard the 
vessel during a charter vessel fishing trip. The term ``charter vessel 
angler'' is defined by regulation at 50 CFR 300.61 to include all 
persons, paying or non-paying, who use the services of the charter 
vessel guide onboard the vessel. The angler endorsement assigned to a 
charter halibut permit limits the number of persons onboard that may 
catch and retain halibut.
    Under the final rule implementing the limited access program (75 FR 
554, January 5, 2010), the angler endorsement assigned to a charter 
halibut permit for all qualified businesses would be equal to the 
greatest number of anglers reported for any vessel the business used 
for at least one logbook fishing trip in the qualifying period (2004 
and 2005). The minimum angler endorsement would be four. All permits 
issued to an applicant would have the same angler endorsement.
    In February 2010, the Council reviewed the method described in the 
January 5, 2010, final rule for assigning angler endorsements to the 
second and subsequent charter halibut permits issued to business owners 
receiving

[[Page 56905]]

more than one permit for an area. The Council noted that in some cases, 
the greatest number of charter vessel anglers reported for one vessel 
could be greater than the number of anglers reported on other vessels 
the business used to qualify for charter halibut permits. For example, 
if an applicant used three vessels to qualify for three permits, and 
reported a maximum of six charter vessel anglers for the first vessel's 
trips, a maximum of four charter vessel anglers for the second vessel, 
and a maximum of three charter vessel anglers for the third vessel in 
the qualifying period, under the limited access program final rule the 
applicant would be issued three charter halibut permits, each with an 
angler endorsement of six. The Council was concerned about this method 
of assigning angler endorsements because the total number of angler 
endorsements the applicant would receive on all permits combined could 
be greater than the total number of charter vessel anglers the business 
reported for all of the vessels it used in the qualifying period. The 
Council also was concerned that the method of assigning angler 
endorsements under the January 5, 2010, final rule could result in an 
increase in fishing capacity the Council did not intend. The total 
number of angler endorsements that would be assigned to permits under 
the final rule potentially could enable a greater number of charter 
vessel anglers to catch and retain halibut under the limited access 
program than qualifying charter operators reported during the 
qualifying period.
    The Council initiated this action to more closely align angler 
endorsements assigned to the second and subsequent permits issued to a 
business owner with the permit recipient's vessel-specific activity 
during the qualifying period. Using the previous example in which the 
applicant would receive three charter halibut permits, under this 
action, each permit's angler endorsement would be derived from the 
number of charter vessel anglers reported for each vessel the applicant 
used in the qualifying period, with a minimum endorsement of four. The 
applicant would receive one permit with an angler endorsement of six, 
and two permits with an angler endorsement of four. The Council 
reviewed the RIR/IRFA (see ADDRESSES) prepared for this action in April 
2010, and selected a preferred alternative to revise the method of 
assigning angler endorsements to charter halibut permits issued to 
businesses receiving more than one permit for each area, Area 2C or 
Area 3A.
Angler Endorsements Under This Action
    For applicants that qualify for more than one charter halibut 
permit, NMFS will determine the greatest number of charter vessel 
anglers the applicant reported for each vessel the applicant used in 
the qualifying period (2004 and 2005) for an area. Each of these 
numbers will equal a vessel-specific angler endorsement number that 
will be assigned to a transferable or non-transferable charter halibut 
permit issued to the applicant for that area. NMFS will assign a 
vessel-specific angler endorsement of four if the applicant's greatest 
number of reported anglers was fewer than four on that vessel in the 
qualifying period. A vessel-specific angler endorsement number will be 
used only once to assign an angler endorsement to a charter halibut 
permit for an area.
    For each applicant that is issued more than one charter halibut 
permit for an area, NMFS will assign the vessel-specific angler 
endorsement numbers for that area to a permit in descending order, from 
the largest to the smallest number, beginning with transferable 
permits, if any. The greatest vessel-specific angler endorsement number 
derived from any vessel the applicant used in that area in the 
qualifying period will be assigned to the first permit the applicant 
receives for that area. Once this vessel-specific angler endorsement 
number is assigned to a charter halibut permit, that vessel-specific 
number will not be assigned to any additional charter halibut permits 
issued to the applicant for that area. The next greatest vessel-
specific angler endorsement number will be assigned to the second 
permit the applicant receives for that area, and this process of 
assigning endorsement numbers to permits will continue until all 
permits an applicant receives in that area are assigned an angler 
endorsement. If the applicant receives charter halibut permits for both 
Area 2C and Area 3A, this process will be used to assign the vessel-
specific angler endorsement to a charter halibut permit for each area.

Effects of This Action

    The following briefly describes the effects of revising the method 
used to assign angler endorsements to charter halibut permits. 
Additional discussion of the rationale for and effects of this action 
is provided in the preamble to the proposed rule published on July 6, 
2010 (75 FR 38758), and is not repeated here.
    This action affects the number of angler endorsements that are 
assigned to charter halibut permits initially issued to applicants that 
receive more than one permit in an area. It will not affect the number 
of transferable and non-transferable charter halibut permits that are 
initially issued by NMFS under the limited access program prior to the 
start of the 2011 fishing season. The RIR prepared for this action (see 
ADDRESSES) estimates that approximately 89 qualified charter businesses 
would receive more than one charter halibut permit in Area 2C, which is 
approximately 39 percent of the 229 charter businesses that apparently 
qualify for one or more permit in that area. In Area 3A, approximately 
69 apparently qualified charter businesses qualify for more than one 
charter halibut permit in Area 3A, which is approximately 24 percent of 
the 291 charter businesses that apparently qualify for one or more 
permits in that area. This final rule will result in approximately 
2,618 angler endorsements assigned to 501 permits in Area 2C. This will 
be a reduction of approximately 13 percent from the 3,001 angler 
endorsements estimated to be assigned to charter halibut permits under 
the method used to assign angler endorsements under the former 
regulations. In Area 3A, this final rule will result in approximately 
3,122 angler endorsements assigned to 410 permits. This will be a 
reduction of approximately 11 percent from the 3,524 endorsements 
estimated to be assigned to permits under the former regulations.
    This action will reduce the angler endorsement numbers assigned to 
some charter halibut permits, while leaving other angler endorsement 
numbers unchanged from the status quo. A permit with fewer angler 
endorsements will authorize fewer charter vessel anglers to catch and 
retain halibut on a fishing trip. In general, this could reduce the 
revenue the charter halibut permit holder receives from using that 
permit. Transferable charter halibut permits with a reduced number of 
angler endorsements resulting from this action also likely will 
transfer for a lower value. Therefore, this action likely will 
adversely impact a charter halibut permit applicant receiving one or 
more charter halibut permits with a reduced number of angler 
endorsements relative to the status quo. However, as described in the 
RIR/FRFA (see ADDRESSES) prepared for this action, these impacts on 
affected operators are likely not significant. Charter vessel operators 
that receive a reduced number of angler endorsements under this action 
could mitigate the effect of this reduction by

[[Page 56906]]

increasing the average number of anglers on a charter vessel fishing 
trip, or by increasing the average number of charter vessel fishing 
trips associated with an individual permit. Changes in the average 
number of anglers on an individual charter vessel fishing trip likely 
would not significantly change the operator's costs and revenues for 
the trip, and on balance, are unlikely to have a significant economic 
impact on an individual charter vessel operator. Additionally, although 
applicants that are initially issued transferable charter halibut 
permits with a reduced number of angler endorsements resulting from 
this action likely would receive a lower price for the permit upon 
transfer, future holders of these charter halibut permits should not be 
affected. While these future permit holders may be able to generate 
less gross revenue from using the permit than they otherwise would have 
from a greater number of angler endorsements, they also should have to 
pay less for the permit. Overall, the reduced permit value likely will 
be balanced by the reduced purchase costs of affected permits.
    Although this action will have distributional impacts on individual 
charter business owners, revising the method of assigning angler 
endorsements to charter halibut permits likely will not impact current 
charter industry capacity and the sector's ability to meet angler 
demand. The RIR (see ADDRESSES) determined that the number of angler 
endorsements that will be issued under this action likely will provide 
sufficient charter capacity to meet current angler demand, and even 
potentially some increase in demand. Similarly, this action is not 
expected to have a large impact on angler demand for charter vessel 
trips or the harvest of halibut by charter vessel anglers because of 
the action's limited impact on capacity in the charter vessel sector.
    The Council intended for NMFS to revise angler endorsements before 
initially issuing charter halibut permits prior to the 2011 charter 
fishing season. This final rule will increase administrative costs for 
NMFS because it will require an appeals process (see Implementation of 
the This Action section below), in addition to the process established 
for charter halibut permits under the limited access program final rule 
(75 FR 554, January 5, 2010). This appeals process will result in NMFS 
initially issuing charter halibut permits closer to the anticipated 
start of the 2011 charter season on February 1 than it intended under 
the status quo. This later permit issuance schedule could create some 
uncertainty for affected charter halibut permit applicants with respect 
to planning for the 2011 season, particularly for those applicants who 
already have indicated they accepted the angler endorsement numbers 
assigned to their permits under the previous regulations.

Implementation of This Action

    To implement this action, NMFS will create an official record of 
charter business participation in Areas 2C and 3A during the qualifying 
period and the recent participation period. The official record will be 
based on data from ADF&G, and will link each logbook fishing trip to an 
ADF&G Business Owner License and to the person-individual, corporation, 
partnership, or other entity-that obtained the license. Thus, the 
official record will include information from ADF&G on the person(s) 
who 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. This is the same method that NMFS 
used to create an official record of charter business participation 
under the January 5, 2010, final rule implementing the limited access 
program. The official record also will include the angler endorsement 
assigned to each charter halibut permit using the method implemented by 
this final rule.
    NMFS will notify all affected business owners of the revised angler 
endorsement(s) assigned to the charter halibut permit(s) they will be 
issued after the effective date of the rule. Affected business owners 
will have 30 days to challenge NMFS' determination. Charter business 
owners are allowed to submit documentation or further evidence in 
support of their claim during this 30-day evidentiary period. If NMFS 
accepts the business owner's documentation as sufficient to change the 
agency determination, NMFS will change the official record and issue a 
charter halibut permit with a revised angler endorsement accordingly. 
If NMFS does not agree that the further evidence supports the 
participant's claim, NMFS will issue an initial administrative 
determination (IAD) denying the participant's claim, and issue the 
participant's charter halibut permit(s) consistent with the official 
record. The IAD will describe why NMFS is initially denying some or all 
of an applicant's claim and will provide instructions on how to appeal 
the IAD. In such cases, the applicant may not transfer any of the 
issued permits, even if a permit is otherwise transferable, until NMFS 
takes Final Agency Action on the applicant's claims. Unless the 
applicant appeals the IAD, the IAD becomes Final Agency Action 30 days 
after the IAD is issued.
    Charter business owners will be able to appeal an IAD through the 
NOAA Office of Administrative Appeals (OAA). The OAA is a separate unit 
within the office of the Regional Administrator for the Alaska Region 
of NMFS. The OAA is charged with developing a record and preparing a 
formal decision on all appeals. The OAA decision is subject to review 
by the Regional Administrator. If the Regional Administrator does not 
intervene, the OAA decision becomes the Final Agency Action 30 days 
after the decision is issued. If the Regional Administrator affirms, 
reverses, or modifies the OAA decision within 30 days from the date the 
decision is issued, the Regional Administrator's decision is the Final 
Agency Action. An applicant who is aggrieved by the Final Agency Action 
may then appeal to the U.S. District Court. Regulations at 50 CFR 
679.43 provide a regulatory description of the existing appeals 
process. NMFS will issue interim permits to applicants who filed timely 
applications and whose appeal is accepted by NOAA. These interim 
permits would be effective until Final Agency Action.

Proposed Rule

    NMFS published a proposed rule to revise the method of assigning 
angler endorsements to charter halibut permits on July 6, 2010 (75 FR 
38758). The comment period on the proposed rule ended on August 5, 
2010. NMFS received five comments from two individuals and two 
organizations regarding the proposed rule. One comment was not directly 
related to the action. Two comments discussed specific technical 
aspects of the regulation, one comment addressed the impact of the 
regulation on affected entities, and one comment contained suggestions 
to NMFS for improving the process of developing fisheries management 
regulations. These comments did not raise new issues or concerns that 
have not been addressed in the RIR/FRFA prepared to support this 
action, the preamble to the proposed rule, or the EA/RIR/FRFA prepared 
to support the charter halibut limited access program (see ADDRESSES).

Response to Public Comments

    Comment 1: The commenter raises general concerns about NMFS' 
management of fisheries, asserting that

[[Page 56907]]

fishery policies have not benefited American citizens. The commenter 
also asserts that NMFS is biased and should not be allowed to manage 
fisheries.
    Response: This comment is not specifically related to the proposed 
rule. The comment recommends broad changes to fisheries management and 
provides opinions of the Federal Government's general management of 
marine resources that are outside of the scope of this action. The 
comment did not raise new relevant issues or concerns that have not 
been addressed in the RIR/FRFA prepared to support this action or the 
preamble to the proposed rule.
    Comment 2: We understand that under the final rule implementing the 
limited access program that some angler endorsements included skipper 
and crew participation recorded in the logbooks. The skipper and crew 
were providing services to charter vessel anglers and should not be 
counted toward the history of the vessel for determining angler 
endorsements.
    Response: NMFS used the ``total clients'' field in the logbook data 
received from ADF&G to determine the angler endorsement on a charter 
halibut permit under the former regulations. NMFS will continue to use 
the ``total clients'' field to determine the number of angler 
endorsements assigned to a charter halibut permit under this final 
rule. The 2004 and 2005 logbooks contained a ``total crew'' field for 
charter operators to record the number of crew fishing, and the logbook 
instructions directed operators not to combine client and crew 
information. NMFS did not use the ``total crew'' field for determining 
angler endorsements.
    Comment 3: Two commenters supported the intent of the proposed rule 
to change the method of assigning angler endorsements under the former 
regulations. However, the commenters suggested that NMFS should change 
the method of assigning angler endorsements prior to initially issuing 
charter halibut permits to ensure that an angler endorsement number 
does not exceed the number of passengers that were allowed by U.S. 
Coast Guard (USCG) regulations on the vessel used to qualify for the 
charter halibut permit during the qualifying period (2004 and 2005).
    One of the commenters also suggested that NMFS should not assign an 
applicant's greatest vessel-specific angler endorsement number to 
charter halibut permits beginning with transferable permits as 
described in the proposed rule. This commenter also indicated that 
these suggested changes should be reflected in the final rule for this 
action and implemented before permits are initially issued.
    Response: No changes are made to the proposed rule. The March 2007 
Council motion for the charter halibut permit program directed NMFS to 
use ADF&G logbook data to determine the angler endorsement number 
assigned to a charter halibut permit. The Council recommended that the 
angler endorsement number be equal to the number of charter vessel 
anglers the applicant reported on a logbook fishing trip in 2004 or 
2005, subject to a minimum endorsement of four. The EA/RIR/FRFA 
prepared for the charter halibut permit program (see ADDRESSES) 
discusses this issue in section 2.5.12.4. This analysis, along with the 
final rule implementing the charter halibut limited access program (75 
FR 554, January 5, 2010), and the RIR/FRFA prepared for this action 
(see ADDRESSES), also noted that the angler endorsement on a charter 
halibut permit would not supersede USCG licensing or other safety rules 
or regulations.
    The proposed rule for this action is consistent with the Council's 
recommendation to use ADF&G logbook data as evidence of applicant 
participation for purposes of implementing the limited access program, 
including assigning angler endorsements to charter halibut permits. In 
the final rule implementing the limited access program (75 FR 554, 
January 5, 2010), NMFS also implemented the Council's recommendation 
that charter halibut permit applicants sign an affidavit attesting that 
all legal requirements were met. During the charter halibut permit 
application period (February 4, 2010, through April 5, 2010), NMFS 
required applicants to attest by signature on the permit application 
that ``[t]he applicant complied with all legal requirements that 
pertained to the bottomfish logbook fishing trips in 2004 and 2005 and 
the halibut logbook fishing trips in 2008 that were reported under the 
applicant's ADF&G Business License.''
    Finally, at the April 2010 Council meeting, NMFS described its 
proposed method for assigning angler endorsements under this action to 
the Council. Specifically, NMFS proposed to assign an applicant's 
greatest vessel-specific angler endorsement number to charter halibut 
permits in descending order, from the largest to the smallest number, 
beginning with the first transferable permit the applicant would 
receive. NMFS proposed to assign the next greatest vessel-specific 
angler endorsement to the second transferable permit the applicant 
would receive, and continue this process until all transferable and 
non-transferable permits for an applicant were assigned an angler 
endorsement. The method also was described in section 1.6.3 of the RIR/
IRFA (see ADDRESSES) prepared for this action.
    Comment 4: The proposed rule states this action would adversely 
impact applicants who receive a reduced number of angler endorsements. 
Although this reduced number of angler endorsements is a reduction when 
compared to the status quo, i.e., the number of angler endorsements an 
applicant would receive under the current regulations, it is not an 
actual reduction when compared to historical practices.
    Response: NMFS agrees that the impact of a reduced number of angler 
endorsements on charter halibut permits issued to affected applicants 
under this action, as discussed in the proposed rule (75 FR 38758, July 
6, 2010) and the RIR/FRFA (see ADDRESSES), is relative to the status 
quo. NMFS notes that under both the status quo and this final rule, an 
angler endorsement number is determined by the applicant's past 
participation in the charter halibut fishery as reported in ADF&G 
logbooks, as recommended by the Council.
    The proposed rule and the RIR/IRFA noted that this action likely 
would not have a significant adverse economic impact on applicants 
receiving a reduced number of angler endorsements, relative to the 
status quo. First, charter vessel operators receiving a reduced number 
of angler endorsements under this action may receive less revenue per 
charter vessel fishing trip relative to the status quo, because fewer 
anglers would be authorized to catch and retain halibut on each trip. 
Second, transferable permits with a reduced number of angler 
endorsements likely will transfer for a lower value relative to the 
status quo. The proposed rule and the RIR/IRFA also discussed that 
these impacts likely would not be significant because affected charter 
vessel operators could mitigate the reduction in angler endorsements by 
increasing the average number of anglers on a charter vessel fishing 
trip, or by increasing the average number of charter vessel fishing 
trips associated with an individual permit, without significantly 
affecting operating costs or revenues. Additionally, although 
applicants that are initially issued transferable charter halibut 
permits with a reduced number of angler endorsements resulting from 
this action likely would receive a lower price for the permit upon 
transfer, future holders of these charter halibut permits should not be 
affected. While

[[Page 56908]]

these future permit holders may generate less gross revenue from using 
the permit than they otherwise would have from a greater number of 
angler endorsements, they also should have to pay less for the permit. 
Overall, the reduced permit value likely will be balanced by the 
reduced purchase costs of affected permits.
    Comment 5: One commenter suggested that NMFS implement an effective 
peer review process for developing proposed and final rules and 
implementing fishery management programs such as the charter halibut 
permit program. This review process should include a comparison of the 
rule to the requirements specified in the Council motion. This process 
also should include review of regulations by subject matter experts 
such as Council staff, ADF&G staff, and Council advisory committees.
    Response: NMFS agrees that a robust review process is an important 
component of developing effective fisheries management regulations. 
NMFS, Alaska Region worked with the Council during the development of 
this action and considers the Council's recommendations during all 
stages of a rule's development. NMFS, Alaska Region also considers 
input by other relevant agency staff, affected stakeholders, and the 
public when promulgating a final rule. NMFS appreciates the commenter's 
suggestion for peer review of proposed and final rules and will 
consider how it might be incorporated in the existing process.

Changes From the Proposed Rule

    NMFS did not make any changes from the proposed rule, published on 
July 6, 2010 (75 FR 38758), to the final rule.

Classification

    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the IPHC, the Pacific Fishery Management Council, the 
Council, and the Secretary. Section 773c(c) of the Northern Pacific 
Halibut Act of 1982 (16 U.S.C. 773c) allows the Regional Council having 
authority for a particular geographical area to develop regulations 
governing the allocation and catch of halibut in U.S. Convention 
waters, as long as those regulations do not conflict with IPHC 
regulations. This action is consistent with the Council's authority to 
allocate halibut catches among fishery participants in the waters in 
and off Alaska.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Executive Order 12962

    This final rule is consistent with Executive Order 12962 as amended 
September 26, 2008, which requires federal agencies to ensure that 
recreational fishing is managed as a sustainable activity, and is 
consistent with existing law.

Regulatory Flexibility Act

    A FRFA was prepared as required by section 603 of the Regulatory 
Flexibility Act. The FRFA describes the economic impact this final rule 
will have on small entities. The RIR/FRFA prepared for this final rule 
is available from NMFS (see ADDRESSES). The FRFA for this action 
explains the need for, and objectives of, the rule; summarizes the 
public comments on the initial regulatory flexibility analysis and 
agency responses; describes and estimates the number of small entities 
to which the rule will apply; describes projected reporting, 
recordkeeping, and other compliance requirements of the rule; and 
describes the steps the agency has taken to minimize the significant 
economic impact on small entities, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency that affect the 
impact on small entities was rejected. The need for and objectives of 
this action; a summary of the comments and responses; a description of 
the action, its purpose, and its legal basis; and a statement of the 
factual, policy, and legal reasons for selecting the alternative 
implemented by this action are described elsewhere in this preamble and 
are not repeated here.
    The proposed rule was published in the Federal Register on July 6, 
2010 (75 FR 38758). An IRFA was prepared and described in the 
classification section of the preamble to the rule. The public comment 
period ended on August 5, 2010. NMFS received five comments from two 
individuals and two organizations. Although none of the comments 
directly addressed the IRFA, Comment 4 discussed the economic impact of 
this regulation on affected entities.
    The entities directly regulated by this action are guided charter 
businesses that qualify to receive more than one charter halibut permit 
in IPHC Areas 2C and 3A. NMFS estimates that under the status quo, 89 
firms qualify to receive more than one charter halibut permit in Area 
2C, and 69 firms qualify to receive more than one charter halibut 
permit in Area 3A. While quantitative information on individual charter 
business revenues is lacking, almost all of these firms are believed to 
be small entities under the terms of the Regulatory Flexibility Act. 
The only exceptions may be some lodge-based operations in Southeast 
Alaska.
    The Small Business Administration (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 other charter operations likely are 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.
    The RIR/FRFA (see ADDRESSES) prepared for this action did not 
identify any new projected reporting, recordkeeping, and other 
compliance requirements on directly regulated entities. Under this 
final rule, NMFS will notify affected applicants of the change to the 
angler endorsement assigned to a charter halibut permit that will be 
issued to an applicant.
    NMFS has not identified other Federal rules that may duplicate, 
overlap, or conflict with this final rule.
    The objective of this action is to more closely align angler 
endorsements assigned to the second and subsequent charter halibut 
permits issued to a business with the actual greatest number of anglers 
reported for each vessel that a business used to qualify for charter 
halibut permits. The Council's preferred alternative for this action, 
as implemented by this final rule, will reduce the total number of 
angler endorsements assigned to charter halibut permits from the number 
of endorsements that would be assigned under the status quo 
alternative.
    As noted above, all or most of the entities that are directly 
impacted by this regulation are small entities. This action likely will 
not have a significant adverse impact on some of these entities 
relative to the status quo alternative. Generally, a reduction in the 
number of angler endorsements assigned to a charter halibut permit 
reduces the potential for profit from that permit, because a permit 
with fewer endorsements will authorize fewer charter vessel anglers on 
any given fishing trip. However, the RIR/FRFA (see ADDRESSES) prepared 
for this action notes that individual charter halibut permits could be 
used more or less intensively by charter vessel operators to meet 
angler demand. Charter vessel operators that receive a reduced number

[[Page 56909]]

of angler endorsements under this action could lessen the effect of 
this reduction by increasing the average number of anglers on a charter 
vessel fishing trip, or by increasing the average number of charter 
vessel fishing trips associated with an individual permit. Changes in 
the average number of anglers on an individual charter vessel fishing 
trip likely would produce relatively modest changes in the operator's 
costs and revenues for the trip. On balance, these changes are not 
likely to have a significant economic impact on an individual charter 
vessel operator.
    The Council and NMFS considered two alternatives for this action. 
Alternative 1 was the status quo alternative, which was rejected 
because it did not achieve the Council's objectives for determining the 
number of angler endorsements assigned to charter halibut permits. 
Alternative 2 was the Council and NMFS' preferred alternative. The 
Council and NMFS considered three options for Alternative 2. Option 1 
would have determined a vessel-specific angler endorsement for 
businesses receiving more than one charter halibut permit for all 
vessels used in one year of the qualifying period, rather than 
considering all vessel activity in both 2004 and 2005. Option 2 would 
have used the same one-year restriction for determining angler 
endorsements, but applied the action to all businesses that would 
qualify to receive charter halibut permits, rather than limiting the 
action only to charter businesses that would qualify to receive more 
than one charter halibut permit. The Council and NMFS rejected Options 
1 and 2 because they would result in changes to the status quo method 
of assigning angler endorsements to the first charter halibut permit 
issued to affected businesses, in addition to changing the status quo 
method of assigning angler endorsements to the second and subsequent 
charter halibut permit issued to affected businesses. In recommending 
the preferred alternative (Alternative 2, Option 3), which is the 
alternative implemented by the rule, the Council clarified that it 
intended to revise the status quo method of assigning an angler 
endorsement only to the second and subsequent charter halibut permits 
received by a business receiving more than one permit. The Council did 
not intend to revise the status quo method of assigning an angler 
endorsement to the first charter halibut permit received by any 
qualifying business. Therefore, the preferred alternative, Alternative 
2, Option 3, as implemented by this final rule, accomplishes the 
distributional objectives of the Council with the least adverse impact 
on directly regulated entities.
    Data on cost structure, affiliation, and operational procedures and 
strategies in the halibut charter vessel sector are unavailable, and 
NMFS is unable to quantify the economic impacts of this action on 
affected small entities for any of the options analyzed. The 
qualitative analysis in the RIR/FRFA (see ADDRESSES) estimates that 
none of the options considered under this action are expected to have a 
significant impact on small entities. While there may be some costs 
imposed on small entities through impacts on permit flexibility and 
implementation expenses, these impacts are likely to be small, because 
of the limited impact of this action on the operational efficiency of 
an individual charter operator.

Collection of Information

    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA), which has been approved by the 
Office of Management and Budget (OMB) under Control Number 0648-0592. 
Public reporting burden estimate per response for the charter halibut 
permit application is two hours. This estimate includes the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection-of-information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to <a href="/cdn-cgi/l/email-protection#c58a8c97849a96b0a7a8acb6b6acaaab85aaa8a7eba0aab5eba2aab3"><span class="__cf_email__" data-cfemail="551a1c07140a062037383c26263c3a3b153a38377b303a257b323a23">[email protected]</span></a>, or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Reporting and recordkeeping requirements, 
Treaties.

    Dated: September 13, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 300, 
subpart E as follows:

PART 300-INTERNATIONAL FISHERIES REGULATIONS

0
1. The authority citation for part 300, subpart E continues to read as 
follows:

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

0
2. In Sec.  300.67:
0
a. Redesignate paragraphs (e)(1) and (e)(2) as paragraphs (e)(5) and 
(e)(6), respectively;
0
b. Revise paragraph (e) introductory text;
0
c. Add paragraphs (e)(1) through (e)(4); and
0
d. Revise newly redesignated paragraph (e)(5) to read as follows:


Sec.  300.67  Charter halibut limited access program.

* * * * *
    (e) Angler endorsement. A charter halibut permit will be endorsed 
as follows:
    (1) The angler endorsement number for the first transferable permit 
for an area issued to an applicant will be the greatest number of 
charter vessel anglers reported on any logbook trip in the qualifying 
period in that area.
    (2) The angler endorsement number for each subsequent transferable 
permit issued to the same applicant for the same area will be the 
greatest number of charter vessel anglers reported by the applicant on 
any logbook trip in the qualifying period for a vessel not already used 
in that area to determine an angler endorsement, until all transferable 
permits issued to the applicant are assigned an angler endorsement.
    (3) The angler endorsement number for the first non-transferable 
permit for an area issued to an applicant will be the greatest number 
of charter vessel anglers reported on any logbook trip in the 
qualifying period for a vessel not already used to determine an angler 
endorsement in that area.
    (4) The angler endorsement number for each subsequent non-
transferable permit issued to the same applicant for the same area will 
be the greatest number of charter vessel anglers reported by the 
applicant on any logbook trip in the qualifying period for a vessel not 
already used in that area to determine an angler endorsement, until all 
non-transferable permits issued to the applicant are assigned an angler 
endorsement.
    (5) The angler endorsement number will be four (4) if the greatest 
number of charter vessel anglers reported on any logbook fishing trip 
for an area in the qualifying period is less than four (4), or no 
charter vessel anglers were reported

[[Page 56910]]

on any of the applicant's logbook fishing trips in the applicant-
selected year.
* * * * *
[FR Doc. 2010-23267 Filed 9-16-10; 8:45 am]
BILLING CODE 3510-22-S


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