Pacific Halibut Fisheries; Catch Sharing Plan for Guided Sport and Commercial Fisheries in Alaska

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 300 and 679

[Docket No. 101027534-3999-02]

RIN 0648-BA37

Pacific Halibut Fisheries; Catch Sharing Plan for Guided Sport and Commercial Fisheries in Alaska

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to implement a catch sharing plan for the guided sport (charter) and commercial fisheries for Pacific halibut in waters of International Pacific Halibut Commission Regulatory Areas 2C (Southeast Alaska) and 3A (Central Gulf of Alaska). This catch sharing plan replaces the Guideline Harvest Level program, defines an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A, and establishes allocations for each fishery. The commercial fishery will continue to be managed under the Individual Fishing Quota system. To allow flexibility for individual commercial and charter fishery participants, the catch sharing plan also authorizes annual transfers of commercial halibut quota to charter halibut permit holders for harvest in the charter fishery. This action is necessary to achieve the halibut fishery management goals of the North Pacific Fishery Management Council.

DATES:

Effective January 13, 2014.

ADDRESSES:

Electronic copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (Analysis) prepared for this action are available from

http://www.regulations.gov

or from the NMFS Alaska Region Web site at

http://alaskafisheries.noaa.gov.

A Final Regulatory Flexibility Analysis (FRFA) was prepared and is included in the Classification section of this final rule.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99082-1668, Attn: Ellen Sebastian, Records Officer, in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; and by email to

OIRA_Submission@omb.eop.gov,

or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:

Julie Scheurer, 907-586-7228.

SUPPLEMENTARY INFORMATION:

This final rule implements the catch sharing plan for the halibut fisheries for International Pacific Halibut Commission regulatory areas 2C and 3A in Alaska. NMFS published a proposed rule in the

Federal Register

on June 28, 2013 (78 FR 39122) with comments invited through August 12, 2013. The comment period was extended to August 26, 2013 (78 FR 44920, July 25, 2013).

Table of Contents

I. Regulatory Authority

II. Catch Sharing Plan for Area 2C and Area 3A

A. Need for Action

B. General

C. Specification of the Annual Combined Catch Limits

D. Calculation of Annual Commercial Fishery and Charter Fishery Allocations and Catch Limits

E. Annual Process for Setting Charter Management Measures

F. Other Restrictions Under the CSP

G. Guided Angler Fish (GAF)

III. Other Regulatory Changes

IV. Changes From the Proposed Rule

V. Comments and Responses

VI. OMB Revisions to Paperwork Reduction Act References in 15 CFR 902.1(b)

VII. Classification

I. Regulatory Authority

A comprehensive history of management of the charter fishery for halibut was published in the proposed rule for this action (78 FR 39122, June 28, 2013).

The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (

Hippoglossus stenolepis

) through regulations implementing the Northern Pacific Halibut Act of 1982 (Halibut Act) (16 U.S.C. 773-773k). The IPHC adopts regulations governing the Pacific halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). For the United States, regulations developed by the IPHC are subject to acceptance by the Secretary of State with concurrence from the Secretary of Commerce. After acceptance, NMFS publishes the IPHC regulations in the

Federal Register

as annual management measures pursuant to 50 CFR 300.62. The final rule implementing IPHC regulations for the 2013 fishing season was published March 15, 2013 (78 FR 16423). IPHC regulations affecting sport fishing for halibut and vessels in the charter fishery in Areas 2C and 3A may be found in sections 3, 25, and 28 of that final rule.

The Halibut Act, at sections 773c(a) and (b), provides the Secretary of Commerce 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 of Commerce is directed to consult with the Secretary of the department in which the U.S. Coast Guard is operating (currently the Department of Homeland Security).

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. Regulations developed by the Council may be implemented by NMFS only after approval by the Secretary of Commerce. The Council has exercised this authority in the development of subsistence halibut fishery management measures and the guideline harvest level (GHL) program, codified at 50 CFR 300.65, and the limited access program for charter operators in the charter fishery, codified at 50 CFR 300.67. The Council also developed the Individual Fishing Quota (IFQ) Program for the commercial halibut and sablefish fisheries, codified at 50 CFR part 679, under the authority of section 773c(c) of the Halibut Act and section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801

et seq.

).

The Council developed the regulations to implement this catch sharing plan pursuant to section 773c(c) of the Halibut Act.

II. Catch Sharing Plan for Area 2C and Area 3A

The following paragraphs summarize the catch sharing plan (CSP) implemented by this final rule. Additional information is provided in the preamble to the proposed rule.

A. Need for Action

The Council developed the CSP in IPHC Regulatory Areas 2C and 3A to address the ongoing allocation conflict between the commercial and charter halibut fisheries. The commercial halibut fishery is subject to defined allocations of individual harvest shares that generally rise and fall with changes

in halibut abundance, while the allocations to the charter halibut fishery, which experienced many years of sustained annual growth in Areas 2C and 3A, were not increased or decreased in direct relationship with changes in fishery abundance. The commercial IFQ and charter halibut fishery are harvesting a fully utilized resource. The primary objectives of the CSP are to define an annual process for allocating halibut between the charter and commercial halibut fisheries in Area 2C and Area 3A, establish by regulation sector allocations that vary in proportion with changing levels of annual halibut abundance and that balance the differing needs of the charter and commercial halibut fisheries over a wide range of halibut abundance in each area, and describe a public process by which the Council may develop recommendations to the IPHC for charter angler harvest restrictions that are intended to limit harvest to the annual charter halibut fishery catch limit in each area.

B. General

The CSP allocations will replace the GHL with a percentage allocation of the annual combined (commercial and charter) catch limit to the charter halibut fishery, with the remainder allocated to the commercial halibut fishery. The Council intends to continue the process it used in 2011 and 2012 to recommend to the IPHC annual management measures for the charter halibut fishery prior to the upcoming fishing season based on projected harvests and charter catch limits.

The annual CSP catch limits for the commercial and charter halibut fisheries will be determined by a predictable and standardized process by which the IPHC develops and adopts its annual management measures for the halibut fisheries. This rule establishes a regulatory formula for determining the commercial and charter halibut fisheries' catch limits for each area. The IPHC's annual combined catch limits for 2C and 3A will be apportioned between the annual charter catch limit and annual commercial catch limit in each area in accordance with the CSP's sector allocation formula published in this final rule. At its annual meeting in January, the IPHC will consider the Council's recommendations designed to constrain the charter halibut fisheries in 2C and 3A to their allocated annual catch limits, and will consider the advice of IPHC staff, advisors, and the public. The IPHC will be expected to adopt the catch limits and appropriate management measures necessary to maintain the sectors' harvest within those catch limits as part of the IPHC's halibut fishery conservation and management regulations. Should the Secretary of State accept the IPHC regulations, with concurrence of the Secretary of Commerce, the approved IPHC regulations will be published in the

Federal Register

as specified by regulations at 50 CFR 300.62.

The IPHC annual management measures remain in effect until superseded. In most years, the effective date of the IPHC annual management measures has been around March 15. Thus, the period between the February 1 opening of the sport season and the mid-March effective date of the superseding annual management measures has been subject to the previous year's IPHC regulations. This schedule will continue unless the IPHC changes the February 1 opening for the sport fishing season. However, implementation of the annual management measures in March likely does not impact the charter halibut fishery because there has historically been little or no charter halibut harvest from February 1 through mid-March.

Alaska Department of Fish and Game (ADF&G) saltwater charter logbooks will be used as the primary data source to estimate the number of halibut harvested in the charter halibut fishery following each charter halibut fishing season and to project the number of halibut harvested in the charter fishery in the following year. The ADF&G saltwater charter logbook is the primary reporting requirement for operators in the charter fisheries for all species harvested in saltwater in Areas 2C and 3A.

In order to provide flexibility for individual commercial and charter halibut fishery participants, the CSP authorizes annual transfers of commercial halibut IFQ as guided angler fish (GAF) to charter halibut permit holders for harvest in the charter halibut fishery. GAF offers charter halibut permit holders in Area 2C or Area 3A an opportunity to lease a limited amount of IFQ from commercial quota share (QS) holders to allow charter clients to harvest halibut in addition to, or instead of, the halibut harvested under the daily bag limit for charter anglers. Charter anglers using GAF are subject to the harvest limits in place for unguided sport anglers in that area. Currently, there is a two-fish of any size daily bag limit for unguided sport anglers in Areas 2C and 3A. GAF harvested in the charter halibut fishery will be accounted for as commercial halibut IFQ harvest.

Except for authorizing commercial halibut QS holders to transfer IFQ as GAF to charter halibut permit holders, the CSP does not change the management of the commercial halibut fisheries in Area 2C and Area 3A. The directed commercial halibut fisheries in Area 2C and Area 3A are managed under the IFQ Program pursuant to regulations at 50 CFR 679 subparts A through E. This rule amends only sections of the IFQ Program's regulations to authorize transfers between IFQ and GAF and establish the requirements for using GAF.

C. Specification of the Annual Combined Catch Limits

Under the CSP, the IPHC is expected to specify an annual combined catch limit for Area 2C and for Area 3A at its annual meeting in January. Each area's annual combined catch limit in net pounds will be the total allowable halibut harvest for the directed commercial halibut fishery plus the total allowable halibut harvest for the charter halibut fishery under the CSP.

The IPHC process for determining the annual combined catch limit under the CSP will be similar to the process it has typically used in the past for determining annual commercial catch limits. A notable exception is how each fishery's wastage will be deducted from the combined catch limit (described further below). This process was explained in detail in the proposed rule and in Figure 1 below.

BILLING CODE 3510-22-P

ER12DE13.034

D. Calculation of Annual Commercial Fishery and Charter Fishery Allocations and Catch Limits

The CSP contemplates that the IPHC will divide the annual combined catch limits (CCLs) into separate annual catch limits for the commercial and charter halibut fisheries pursuant to the CSP's allocation formulas. The IPHC will multiply the CSP allocation percentages for each area by the annual CCL to calculate the commercial and charter halibut allocations in net pounds. Fishery-specific catch limits will be calculated by deducting separate estimates of wastage from the commercial and charter halibut

allocations, as described in the following section. NMFS will publish the CCLs and associated allocations for the charter and commercial halibut fisheries in the

Federal Register

as part of the IPHC annual management measures pursuant to 50 CFR 300.62. This is similar to the process by which the IPHC allocates its combined catch limit for halibut for Areas 4C-4D-4E among each of those three subareas pursuant to the Council's Area 4 Catch Sharing Plan (

http://alaskafisheries.noaa.gov/npfmc/PDFdocuments/halibut/Area4CSP605.pdf

).

The CSP establishes three allocation tiers for Area 2C as shown in Table 1 and Figure 2 below.

Table 1—Area 2C Catch Sharing Plan (CSP) Allocations to the Charter and Commercial Halibut Fisheries Relative to the Annual Combined Catch Limit (CCL)

Area 2C annual combined catch limit for halibut in net pounds (lb)

Charter halibut fishery

CSP allocation

(% of annual combined catch limit)

Commercial halibut fishery

CSP allocation

(% of annual combined catch limit)

0 to 4,999,999 lb

18.3%

81.7%.

5,000,000 to 5,755,000 lb

915,000 lb

Area 2C CCL minus 915,000 lb.

5,755,001 lb and up

15.9%

84.1%.

ER12DE13.035

When the IPHC sets an annual CCL of less than 5,000,000 lb (2,268 mt) in Area 2C, the commercial halibut fishery allocation will be 81.7 percent and the charter halibut fishery allocation will be 18.3 percent of the annual CCL. When the IPHC sets the annual CCLs at the second tier, between 5,000,000 lb and 5,755,000 lb (2,610.4 mt), the allocation to the charter halibut fishery will be a fixed 915,000 lb (405 mt), to smooth the vertical drop in the poundage allocation that would occur without this adjustment. The rationale for this fixed poundage adjustment is described in the preamble to the proposed rule on page 39131. The commercial halibut fishery will be allocated the Area 2C CCL minus the 915,000 lb fixed allocation to the charter halibut fishery. When the IPHC sets the annual CCL at the third tier, greater than 5,755,000 lb (2,610.4 mt), in Area 2C, the commercial halibut fishery allocation will be 84.1 percent and the charter halibut fishery allocation will be 15.9 percent of the Area 2C annual CCL.

The CSP establishes five allocation tiers in Area 3A as shown in Table 2 and Figure 3 below.

Table 2—Area 3A Catch Sharing Plan (CSP) Allocations to the Charter and Commercial Halibut Fisheries Relative to the Annual Combined Catch Limit (CCL)

Area 3A annual combined catch limit for halibut in net pounds (lb)

Charter halibut fishery

CSP allocation

(% of annual combined catch limit)

Commercial halibut fishery

CSP allocation

(% of annual combined catch limit)

0 to 9,999,999 lb

18.9%

81.1%.

10,000,000 to 10,800,000 lb

1,890,000 lb

Area 3A CCL minus 1,890,000 lb.

10,800,001 to 20,000,000 lb

17.5%

82.5%.

20,000,001 to 25,000,000 lb

3,500,000 lb

Area 3A CCL minus 3,500,000 lb.

25,000,001 lb and up

14.0%

86.0%.

ER12DE13.036

For Area 3A, when the IPHC sets the annual CCLs at the first tier, less than 10,000,000 lb (4,535.9 mt), the commercial halibut fishery allocation will be 81.1 percent and the charter halibut fishery allocation will be 18.9 percent of the Area 3A annual CCL. For Area 3A annual CCLs between 10,000,000 lb and 10,800,000 lb (4,898.8 mt), the allocation to the charter halibut fishery will be 1,890,000 lb (857.3 mt). The commercial halibut fishery will be allocated the Area 3A CCL minus the 1,890,000 lb fixed allocation to the charter halibut fishery. When the CCL is greater than 10,800,000 lb and less than 20,000,000 lb, the commercial halibut fishery will be allocated 82.5 percent and the charter fishery will be allocated 17.5 percent. When the CCL for Area 3A is set at greater than 20,000,000 lb and less than or equal to 25,000,000 lb (11,339.8 mt), the charter halibut fishery will receive a fixed 3,500,000 lb allocation. The commercial halibut fishery allocation will equal the CCL minus 3,500,000 lb. Finally, at CCLs greater than 25,000,000 lb, the commercial halibut fishery allocation will be 86 percent and the charter halibut fishery allocation will be 14 percent of the Area 3A annual CCL.

Under the CSP, the commercial and charter halibut fisheries are separately accountable for their discard mortality or “wastage,” such that each fishery's wastage will be deducted from its respective allocation to obtain its catch limit (see Figure 1).

E. Annual Process for Setting Charter Management Measures

Charter halibut annual management measures in Area 2C and 3A will be set according to the annual process described in the proposed rule for this action. In short, each year the Council will review an analysis of potential charter management measures for the Area 2C and Area 3A charter halibut fisheries for the upcoming fishing year. This will allow the Council and public to engage in a transparent process for considering both stakeholder input and the most current information regarding the charter fishery and its management. After reviewing the analysis and considering public testimony, the Council will identify the charter halibut

management measures to recommend to the IPHC that will most likely constrain charter halibut harvest for each area within its allocation, while considering impacts on charter operations. The IPHC will consider the Council recommendations and input from its stakeholders and staff and then will adopt either the Council's recommendation or alternative charter halibut management measures designed to keep charter harvest in Area 2C and Area 3A to the allocations specified by this final rule. These measures will be necessary to limit the combined commercial and charter harvest in Area 2C and 3A within each area's combined catch limit. NMFS will publish in the

Federal Register

the charter halibut management measures for each area as part of the IPHC annual management measures accepted by the Secretary of State with the concurrence of the Secretary of Commerce.

The Council, its Scientific and Statistical Committee, the IPHC, and NMFS will continue to assess effectiveness of this method of recommending and implementing charter management measures after the CSP is implemented.

Two restrictions are removed from Federal regulations: the one-fish daily bag limit for Area 2C at § 300.65(d)(2)(i); and the line limit at § 300.65(d)(2)(iii). Instead, daily charter halibut fishery bag limits will be established in the IPHC annual management measures.

F. Other Restrictions Under the CSP

NMFS is implementing five additional restrictions under the CSP. First, the prohibition on retention of halibut by skipper and crew on a charter vessel fishing trip in Area 2C is extended to also include Area 3A. Second, individuals who hold both a charter halibut permit and commercial halibut IFQ will be prohibited from fishing for commercial and charter halibut on the same vessel during the same day in Area 2C and Area 3A. Third, individuals who hold both a charter halibut permit and a Subsistence Halibut Registration Certificate will be prohibited from using both permits to harvest halibut on the same vessel during the same day in Area 2C and Area 3A. Fourth, charter vessel operators will be required to indicate the date of a charter vessel fishing trip in the saltwater charter logbook and to complete all of the required fields in the logbook before the halibut are offloaded. And finally, the logbook signature requirement for charter anglers in Area 2C will be extended to include charter anglers in Area 3A.

G. Guided Angler Fish (GAF)

The CSP authorizes supplemental individual transfers of commercial halibut IFQ as GAF to qualified charter halibut permit holders for harvest by charter vessel anglers in Areas 2C and 3A. Using GAF, qualified charter halibut permit holders may offer charter vessel anglers the opportunity to retain halibut up to the limit for unguided anglers when the charter management measure in place limits charter vessel anglers to a more restrictive harvest limit.

An IFQ holder is eligible to transfer halibut IFQ as GAF if he or she holds at least one unit of halibut QS and has received an annual IFQ permit authorizing harvest of IFQ in either the Area 2C and Area 3A commercial halibut fishery. A charter halibut permit holder is eligible to receive IFQ as GAF if he or she holds one or more charter halibut permits in the management area that corresponds to the IFQ permit area from which the IFQ would be transferred. Holders of military charter halibut permits and Community Quota Entities holding community charter halibut permits will also be eligible to receive IFQ as GAF. No changes to the eligibility criteria were made from the proposed rule.

For transfers between IFQ and GAF, the IFQ holder and charter halibut permit holder receiving GAF will be required to submit an application to NMFS. Application forms and instructions will be available on the NMFS Alaska Region Web site at

http://alaskafisheries.noaa.gov.

NMFS will issue GAF in numbers of halibut. NMFS will post the conversion from IFQ pounds to a GAF for Area 2C and Area 3A for each fishing year on the NMFS Alaska Region Web site at

http://alaskafisheries.noaa.gov

. NMFS will post the conversion factor for the current fishing year before the beginning of the commercial halibut fishing season each year. The methods for calculating the conversion factors were described in the preamble to the proposed rule and are not repeated here.

Upon completion of the transfer between IFQ and GAF, NMFS will issue a GAF permit to the holder of a charter halibut permit. The GAF permit will be assigned to the charter halibut permit specified by the GAF permit holder at the time of application. The GAF permit holder may offer GAF for harvest by charter vessel anglers on board the vessel on which the operator's GAF permit and the assigned charter halibut permit are used.

Charter operators will be required to possess GAF in their GAF permit accounts prior to allowing charter vessel anglers to retain halibut as GAF. Transfers cannot occur after the fish have been caught. The GAF permit holder also will be required to have the GAF permit and the assigned charter halibut permit on board the vessel on which charter vessel anglers retain GAF, and to present the permits if requested by an authorized enforcement officer. GAF permit holders will be required to retain all GAF permits and GAF permit logs for two years after the date of issuance and to make them available for inspection upon request of an authorized enforcement officer.

NMFS will issue a revised GAF permit to the GAF permit holder each time during the year that it approves a transfer between IFQ and GAF for that GAF permit. Each GAF permit will be assigned to only one charter halibut permit in Area 2C or Area 3A, specified on the application for transfer between IFQ and GAF. That assignment cannot be changed during the year. Once GAF is transferred to a charter halibut permit holder and assigned to a specified charter halibut permit, it may not be transferred to another charter halibut permit holder.

Unused GAF may be returned to the IFQ holder by two methods: a voluntary return that can be requested in August and that will be completed on or after September 1, and an automatic return 15 days before the end of the commercial halibut fishing season. On and after the automatic return date, unused GAF will no longer be authorized for use in the charter fishery in the current year. Applications for transfer of IFQ to GAF will not be accepted during the one month prior to the automatic return date, to ensure that all GAF transactions are completed before the automatic return date. No application is required for the automatic return of unused GAF. NMFS will return any remaining unharvested GAF to the IFQ holder from whom it was derived. On or as soon as possible after the voluntary or automatic GAF return dates, NMFS will convert GAF in number of fish to IFQ in net pounds using the conversion factor for that year and return the converted IFQ to the IFQ holder's account.

This rule includes three restrictions on GAF transfers. First, IFQ holders in Area 2C will be limited to transferring up to 1,500 lb (680.4 kg) or 10 percent, whichever is greater, of their initially issued annual halibut IFQ for use as GAF. In Area 3A, IFQ holders may transfer up to 1,500 lb or 15 percent, whichever is greater, of their initially issued annual halibut IFQ for use as GAF. Second, no more than a total of 400 GAF will be assigned during one

year to a GAF permit assigned to a charter halibut permit that is endorsed for six or fewer anglers. And third, no more than a total of 600 GAF will be assigned during one year to a GAF permit assigned to a charter halibut permit endorsed for more than six anglers. This rule does not limit the amount of GAF transfers for military charter halibut permits. Community Quota Entities (CQEs) that hold quota share are allowed to transfer IFQ as GAF. The limits on these transfers depend on whether the GAF permit holder is a CQE, an eligible community resident, or a non-resident. GAF transfer restrictions were described in more detail on pages 39140-39141 of the proposed rule for this action and are not repeated here.

This rule implements new recordkeeping and reporting requirements for GAF in the ADF&G saltwater charter logbooks, in addition to saltwater charter logbook reporting requirements currently specified at § 300.65(d). The ADF&G saltwater charter logbook will continue to be used as the primary reporting method for operators in the charter halibut fishery. The person to whom ADF&G issued a saltwater charter logbook is required to retain and make available for inspection by authorized enforcement personnel the completed original logbooks for two years following the charter vessel fishing trip. This rule also will require GAF permit holders to record information on the GAF permit; separately report retained GAF by 11:59 p.m. (Alaska local time) on the last day of the fishing trip in which GAF were retained using a NMFS-approved electronic reporting system; record the electronic reporting confirmation number on the GAF permit log; and retain the GAF permits and GAF permit logs for two years.

Charter guides will be required to mark retained GAF by removing the tips of the upper and lower lobes of the caudal (tail) fin. Additionally, the charter vessel guide will be required to retain the carcass showing caudal fin clips until the halibut fillets are offloaded so that enforcement can verify the length and that the fish was retained as GAF. For each halibut retained as GAF, charter vessel guides will immediately record on the GAF permit log the date and total halibut length in inches.

GAF permit holders landing GAF on private property will be required to allow enforcement personnel access to the point of landing.

Commercial IFQ holders will be responsible for all cost recovery fees on IFQ equivalent pounds harvested for their IFQ permit(s) and also for net pounds transferred and harvested as GAF that originated from their IFQ account(s). NMFS will levy IFQ cost recovery fees on all net pounds of halibut harvested as IFQ in the commercial fishery and as GAF in the charter fishery. Cost recovery fees for GAF were discussed in further detail in the proposed rule for this action and are not repeated here.

III. Other Regulatory Changes

This action makes four additional regulatory changes that were explained in detail in the preamble to the proposed rule. These are minor changes that clarify existing regulations, but do not substantively change how the halibut fishery is managed. The first change clarifies the regulations to describe the current process by which the IPHC Area 4 catch sharing plan is promulgated in § 300.65(b). The second change updates instructions in regulations at § 679.5(l)(7) for Registered Buyers to complete and submit the IFQ Registered Buyer Ex-vessel Value and Volume Report form. The third change clarifies regulations at § 679.40 to describe the separate processes for allocating halibut IFQ and sablefish IFQ, and clarifies that commercial halibut fishery overage adjustments from the previous year will be subtracted from a person's IFQ, and commercial halibut fishery underage adjustments from the previous year will be added to a person's IFQ. The fourth change revises regulations at § 679.45(a)(4) to update instructions for IFQ permit holders for submitting cost recovery fee payments to NMFS and update the fee payment form and instructions to incorporate GAF in the calculation of an IFQ permit holder's cost recovery fee liability. NMFS received no comments on these changes.

IV. Changes From the Proposed Rule

This action was proposed and public comments were solicited for 45 days beginning on June 28, 2013 (78 FR 39122), and ending on August 12, 2013. At public request, a 14-day extension of the comment period was granted prior to the end of the public comment period (78 FR 44920, July 25, 2013). The extended public comment period ended on August 26, 2013. By the end of the public comment period, 4,740 submissions were received. Unique issues raised in those comments received by the end of the comment period are summarized and responded to below under the heading “V. Comments and Responses.” The following 21 changes are made from the proposed rule in this final rule. Changes 3, 8 through 10, 12 through 14, 16, 18, 19, and 21 below were made in response to public comments. The remainder of the changes correct incorrect cross-references to other paragraphs or make minor clarifications to the text.

Definitions § 300.61

1. In developing the final rule, NMFS noted that six definitions pertaining to the charter halibut fishery contained an incorrect cross-reference. The proposed definitions for “charter vessel angler,” “charter vessel fishing trip,” “charter vessel guide,” “charter vessel operator,” “crew member,” and “sport fishing guide services” all stated, “for purposes of §§ 300.65(d) . . .” Regulatory text implementing the CSP replaces the GHL regulatory text at § 300.65(c), so the definitions need to apply to paragraph (c) as well. NMFS changed these six definitions so they apply to all of § 300.65.

Implementation § 300.65(c)(2)

2. In the proposed rule, paragraph § 300.65(c)(2) stated that the “CSP annual allocations and guided sport catch limits are adopted by the Commission as annual management measures and published by NMFS in the

Federal Register

as required in § 300.62.” The IPHC will adopt and NMFS will publish the annual CCL, the annual commercial catch limit, and the annual guided sport catch limit, but not necessarily the CSP allocation percentages that were applied to the CCL to obtain the sector catch limits. The text of this paragraph has been revised to reflect this change.

Transfer Between IFQ and GAF § 300.65(c)(5)(ii)

3. In the proposed rule at paragraph § 300.65(c)(5)(ii)(B)(

2

), NMFS proposed October 15 as the last day that applications could be submitted to transfer IFQ to GAF. Two commenters noted that the GAF automatic return date is 15 days before the close of the commercial fishing season, which varies annually. In some years, the commercial fishery closes in early November. In those years, a GAF permit holder requesting a transfer of IFQ to GAF near the proposed deadline of October 15 may not have enough time to harvest that GAF before the automatic return date. NMFS agrees with the comment and has changed the deadline for transfer applications to one month prior to the closing date of the commercial fishery so the application deadline will adjust with the season dates. This change will ensure that GAF permit holders will have a minimum of two

weeks to harvest their GAF before the automatic return date.

4. NMFS proposed regulations at § 300.65(c)(5)(ii)(D(4)(iv) requiring a CQE to submit a complete annual report to NMFS as specified in § 679.5(l)(8) to receive GAF by transfer. NMFS published a final rule on June 4, 2013 (78 FR 33243), to consolidate reporting regulations and specify additional requirements for a CQE to submit a complete annual report at § 679.5(t). NMFS has revised this final rule at § 300.65(c)(5)(ii)(D)(4)(iv) to cross-reference the revised CQE reporting requirements at § 679.5(t).

5. Paragraph § 300.65(c)(5)(ii)(E)(

2

) of the proposed rule stated, “If no GAF were harvested in a year, the conversion factor would be calculated using the same method as for the first calendar year after the effective date of this rule.” NMFS changed the word “would” to “will” in this sentence to read, “If no GAF were harvested in a year, the conversion factor will be calculated . . .” This change is to clarify that this process will occur and is not discretionary.

Guided Angler Fish Permit § 300.65(c)(5)(iii)

6. NMFS has changed the wording of paragraph § 300.65(c)(5)(iii)(A)(

7

) describing GAF permit retention requirements. The proposed requirement states, “GAF permit holders must retain GAF permit(s) for two years after the end of the fishing year . . .” The back of the GAF permit contains the “GAF permit log” where guides must record dates, lengths, and electronic reporting confirmation numbers for harvested GAF. GAF transfer limits allow up to 600 GAF to be transferred to a charter halibut permit (CHP) on a GAF permit. The GAF permit log on the back of the permit may not have sufficient room to record all of the GAF harvested under that GAF permit. Supplemental GAF permit log pages will be available to download from the NMFS Web site at

http://alaskafisheries.noaa.gov/.

NMFS changed the wording of this requirement to specify that all GAF permits and all associated GAF permit logs must be retained for two years after the end of the fishing year.

GAF Use Restrictions § 300.65(c)(5)(iv)

7. On page 39142 of the proposed rule, NMFS stated that in addition to clipping the tails of retained GAF, the charter vessel guide would be required to “retain the carcass showing caudal fin clips until the halibut fillets were offloaded so that enforcement could verify the length and that the fish was retained as GAF.” The requirement to mark GAF by clipping the tail fin was proposed at § 300.65(c)(5)(iv)(G), but this paragraph did not specify the carcass retention requirement. Paragraph (G) has been revised to reflect this requirement.

8. The Council did not specify, and NMFS did not propose, GAF transfer limits for military charter halibut permits. NMFS received a comment that, to avoid confusion, the regulatory text at § 300.65(c)(5)(iv)(H) should explicitly state that the GAF transfer limits do not apply to military charter halibut permits. NMFS agrees and has changed the text accordingly.

Retention and Inspection of Logbook Requirements § 300.65(d)(2)

9. The proposed logbook retention requirement at § 300.65(d)(2) proposed a number of requirements that would have applied to “the person to whom the Alaska Department of Fish and Game issues the Saltwater Sport Fishing Charter Trip Logbook and who retains halibut.” Comments received from ADF&G noted that anyone can be issued a logbook that is assigned to a business for use on a particular vessel and ADF&G does not record the name of the person to which the logbook is issued. ADF&G assumed that NMFS was proposing to impose the requirements of § 300.65(d) to owners of the business to which a logbook is assigned, and suggested the language should be clarified as such. NMFS agrees with this comment and has changed § 300.65(d)(1) and (2) to impose the requirements to any “person whose business was assigned an Alaska Department of Fish and Game Saltwater Sport Fishing Charter Trip Logbook.” Second, ADF&G noted that charter vessel anglers are the persons who retain halibut. Businesses, guides, and deckhands are prohibited from retaining halibut under the CSP; therefore, the phrase “and who retains halibut” in § 300.65(d)(2) should actually refer to charter vessel anglers who retain halibut. NMFS agrees with this comment and has changed § 300.65(d)(2) clarify that the requirements apply to any “person who is required to provide information pursuant to paragraph (d)(4) of this section, or whose business was assigned an Alaska Department of Fish and Game Saltwater Sport Fishing Charter Trip Logbook and whose charter vessel anglers retain halibut.”

10. Proposed paragraph § 300.65(d)(2)(i) stated that a person whose business was assigned a saltwater charter logbook must “retain the logbook for 2 years after the end of the fishing year for which the logbook was issued . . .” A comment from ADF&G noted that because data pages may be removed from a logbook, the language should be clarified to ensure that halibut logbook data pages are retained during the specified period. NMFS agrees and has revised paragraph (i) as suggested to read, “Retain all logbook data pages showing halibut harvest for 2 years after the end of the fishing year for which the logbook was issued . . .”

Recordkeeping and Reporting Requirements § 300.65(d)(4)

11. NMFS proposed general recordkeeping and reporting requirements at § 300.65(d)(4)(i). These instructions contained an incorrect cross-reference to paragraph (d)(4)(ii)(C) for an exception from the recordkeeping and reporting requirements. NMFS has corrected the cross-reference to paragraph (d)(4)(iii)(C) in this final rule.

12. NMFS' proposed instructions for completing the saltwater charter logbook at § 300.65(d)(4)(ii)(B)(

5

) would have required that charter vessel guides record the six-digit statistical area code in which halibut were caught and retained. A comment from ADF&G noted that in the Kodiak management area, ADF&G requires charter guides to record five-digit salmon statistical areas when targeting salmon, even if halibut are caught incidentally and retained. ADF&G suggested removing the words “six-digit” so the instruction could apply to either type of statistical area, as necessary. NMFS agrees and has made the requested change. ADF&G will also update the instructions printed in the saltwater charter logbook to reflect this change.

13. ADF&G noted a typographical error in proposed paragraph § 300.65(d)(4)(ii)(B)(

6

). The proposed first sentence of that paragraph read, “Before a charter vessel fishing trip begins, record

for

the first and last name of each paying or non-paying charter vessel angler . . .” NMFS has removed the word “for” from this sentence.

14. In response to a comment from ADF&G, NMFS changed language under GAF reporting requirements at § 300.65(d)(4)(iii)(A)(

1

) to specify where on the GAF permit the date and GAF length must be recorded. The proposed language stated only that the required information must be recorded on the GAF permit. The revised language clarifies that the required information must be recorded “on the GAF permit log (on the back of the GAF permit) . . . NMFS noted the need for this change after the proposed rule was published as NMFS developed the GAF permit and

GAF permit log for implementation of this final rule.

15. NMFS has made minor changes to the introductory text for GAF electronic reporting at § 300.65(d)(4)(iii)(D). The proposed paragraph would have required the GAF permit holder to electronically report specific information “for each GAF retained.” Since the proposed rule was published, NMFS has further developed the GAF electronic reporting system such that most of the data elements in the following paragraphs (

1

) through (

9

) will need to be entered only once for each fishing trip, rather than for each GAF retained. This change reduces the reporting burden for charter vessel guides. The introductory text in paragraph (D) has been changed accordingly.

16. In response to a comment, NMFS is adding a requirement to record the date GAF were caught and retained to the electronic reporting data elements for GAF at § 300.65(d)(4)(iii)(D). When preparing the proposed rule, NMFS anticipated that because electronic reports are due by 11:59 p.m. on the day a charter vessel angler retains GAF, the date could be automatically filled by the online reporting system as the same date that the data were reported. NMFS received a comment noting that for multi-day trips, the GAF permit holder is not required to submit the electronic report until 11:59 p.m. on the last day of the charter vessel fishing trip. In the case of multi-day trips, GAF permit holders may report GAF harvested on more than one day and corresponding to multiple pages in the ADF&G saltwater charter logbook in a single electronic report. Therefore, for proper accounting and to facilitate enforcement, NMFS must require GAF permit holders to also enter the date. NMFS agrees with the comment, so the date requirement was added as paragraph (d)(4)(iii)(D)(

5

) and subsequent paragraphs were renumbered.

17. The proposed rule at § 300.65(d)(4)(iii)(D)(

6

) would have required that charter vessel guides report the “length of GAF caught and retained” in the electronic report. NMFS has reworded this requirement to clarify that guides must report the “length of each GAF caught and retained.” NMFS has also renumbered this paragraph as (d)(4)(iii)(D)(

7

).

18. NMFS reworded paragraph § 300.65(d)(4)(iii)(E)(

1

) under GAF reporting requirements in response to a public comment that it was not clear who was responsible for compliance with this requirement. The reworded paragraph specifies that the GAF permit holder is responsible for ensuring that all GAF harvested on board a vessel are debited from the GAF permit holder's account under which the GAF were retained.

19. The paragraph at § 300.65(d)(4)(iii)(E)(

2

) under proposed GAF reporting requirements was reworded in response to a public comment to specify where the GAF electronic reporting confirmation number should be recorded and by whom. The reworded paragraph specifies that the GAF electronic confirmation number shall be recorded on the GAF permit log by the GAF permit holder.

20. Based on the public comment resulting in changes 17 and 18 above, NMFS further clarified the instructions for a properly reported GAF landing by adding paragraph § 300.65(d)(4)(iii)(E)(

3

). This paragraph provides a cross-reference to paragraph (d)(4)(iii)(A)(

4

), which describes how to correct a submitted GAF landing electronic report.

Prohibitions § 300.66

21. On page 39136 of the proposed rule, NMFS discussed the Council's intent to prohibit individuals who hold both a charter halibut permit and commercial halibut IFQ from fishing for commercial and charter halibut on the same vessel during the same day in Area 2C and 3A. Consistent with the recommendation, NMFS proposed prohibiting individuals who hold both a charter halibut permit and a Subsistence Halibut Registration Certificate from using both permits to harvest halibut on the same vessel during the same day in Area 2C and Area 3A. NMFS intended to include both of these prohibitions at § 300.66(h). NMFS received a comment noting that the prohibition at paragraph (h) was incorrect and only prohibited subsistence and commercial fishing for halibut on the same vessel during the same day. NMFS agrees with the comment and has corrected paragraph (h) to prohibit, with some exceptions, individuals from conducting subsistence fishing for halibut while commercial fishing or sport fishing for halibut, as defined in § 300.61, from the same vessel on the same calendar day.

V. Comments and Responses

The proposed rule for this action was published on June 28, 2013 (78 FR 39122), and public comments on it were accepted until August 26, 2013. NMFS received approximately 4,740 comment submissions raising 153 unique issues within the scope of this action. Comments that resulted in changes from the proposed rule were addressed in the previous section. The remaining comments were reviewed, organized into nine topical categories, and responded to as follows:

Allocation

Comment 1:

The CSP allocations to the charter sector would result in catch limits that are lower than the GHL at current halibut stock levels. This change to the allocation is unjustified.

Response:

NMFS disagrees that the change is unjustified. One of the objectives of the CSP is to establish Area 2C and Area 3A sector allocations that balance the differing needs of the charter and commercial sectors over a wide range of halibut abundance, and that increase or decrease (“float”) with varying levels of halibut abundance. To accomplish this objective, the Council and NMFS replaced the GHL with sector allocations that vary directly with halibut abundance. A fixed percentage of the annual CCL will be allocated to each sector across a wide range of potential CCLs. The allocation to each sector will vary with halibut abundance, with higher allocations inuring to the charter halibut fishery at lower levels of abundance. A detailed description of the allocations to the charter sector under the CSP is included in the proposed rule and in the Analysis. The Council determined that use of a fixed percentage allocation of the CCL to each fishery under the CSP will result in both the commercial and charter halibut fishery allocations adjusting directly up and down more directly proportionate to changes in halibut abundance.

As described in section 1.1.1 of the Analysis and in the proposed rule for this action, the GHL is not as directly responsive as the CSP to changes in halibut abundance. Fixed GHLs for Areas 2C and 3A were established annually, in pounds, and did not fluctuate directly with halibut stock abundance, while commercial catch limits do fluctuate directly with stock abundance. The GHL has five poundage levels in relation to the allowable removals of halibut from all sources (Total CEY). The GHLs were reduced if the area-specific Total CEY declined by at least 15 percent below the average 1999 through 2000 Total CEY, as determined by the IPHC. For example, if the Total CEY in Area 2C fell by between 15 percent and 24 percent below its 1999 through 2000 average, then the GHL would have been reduced from 1,432,000 lb to 1,217,000 lb. If the Total CEY declined by between 25 percent and 34 percent, then the GHL would have been reduced from 1,432,000 lb to 1,074,000 lb. If the Total CEY continued to decline by at least 10 percent, the GHL would have been

reduced from 1,074,000 lb by an additional 10 percent to 931,000 lb. If the Total CEY declined by an additional 10 percent or more, the GHL would have been reduced by an additional 10 percent from 931,000 lb to the baseline level of 788,000 lb. The Area 2C GHL would not be reduced below 788,000 lb. If the Area halibut biomass increased, the GHL could be increased only to its initial level of 1,432,000 lb, but no higher.

The proposed rule describes the effects of the GHL in the Area 2C and Area 3A charter halibut fisheries in circumstances when Total CEY declines did not trigger a GHL reduction. During some years of declining Total CEY under the GHL, the commercial halibut fishery IFQ allocations were reduced, but there was no change in the charter halibut fishery GHLs. Conversely, in years when the Total CEY increased, the GHL did not allow the charter halibut fishery to fully benefit from this increase.

Section 2.5.10 of the Analysis describes that under the GHL program, the proportion of total halibut harvested in the Area 2C and Area 3A commercial halibut fishery has declined and the proportion harvested in the charter halibut fishery has increased. From 2008 through 2012, the Area 2C commercial halibut fishery harvest declined from 60.2 percent to 43.1 percent of the Total CEY, and charter halibut fishery harvest increased from 14.3 percent to 15.9 percent of the Total CEY over the same time period. In Area 3A, commercial halibut fishery harvest decreased from 76.8 percent to 60.3 percent of the Total CEY, and charter halibut fishery harvest increased from 12.6 percent to 15.7 percent of the Total CEY from 2008 through 2012. Thus, while both the GHL and commercial halibut fishery catch limits have declined in recent years, the commercial halibut fisheries have borne larger poundage and proportional reductions under the current allocation system. This resulted in negative economic impacts on commercial halibut fishery participants from reduced catch limits, which contributed to the instability and conflict between user groups that the Council intended to address with the CSP.

It is true that at moderate to low levels of halibut abundance, the CSP would provide the charter halibut fishery with a smaller poundage allocation than the guideline limits established under the GHL program. The Council and NMFS took this into consideration in its evaluation of the CSP and the GHL. Section 2.5 of the Analysis shows that at CCLs of less than 9.5 million lb in Area 2C and 26 million lb in Area 3A, the CSP poundage allocation to the charter sector would be lower than the GHL. Conversely, at CCLs of greater than 9.5 million lb in Area 2C and 26 million lb in Area 3A, the CSP would provide the charter halibut fishery with a larger poundage allocation than the guideline limits established under the GHL program. The Council and NMFS considered the differences in the estimated CSP poundage allocations compared to the GHL for recent years. Section 2.8 of the Analysis estimates that if the CSP had been in place in recent years, the charter sector poundage allocation likely would have been less than the GHL from 2008 through 2012 in Area 2C and from 2009 through 2012 in Area 3A.

Moreover, the Council and NMFS have taken into account the capability of vessels used in the commercial and charter fisheries for halibut to engage in other fisheries and economic endeavors. The charter halibut industry provides marine transportation and sport fishing guide services to anglers wishing to catch halibut. Charter vessel businesses provide these services also to anglers wishing to catch salmon, rockfish, lingcod, and other bottomfish. In addition, charter vessel businesses in Areas 2C and 3A may provide marine transportation for bird watching, whale watching, and general sightseeing. Passengers using these services may be independent tourists, guests at lodges, or travelers on cruise ships. Charter vessel businesses may focus their business plan on sport anglers wishing to catch halibut, but other business plans are possible given the variety of reasons why an individual may want to engage the services of a charter vessel.

Having conducted a comprehensive analysis of the GHL and the CSP, the Council and NMFS have determined that the CSP allocations implemented by this final rule provide a clear, transparent, and equitable allocation between the two sectors.

Comment 2:

In November 2009, a U.S. District Court determined that the GHL is a fair and equitable allocation (

VanValin

v.

Locke

(671 F. Supp 2d 1 D.D.C. 2009)). Because the CSP reduces the allocation to the charter sector from the status quo GHL, it cannot be fair and equitable. Therefore, the charter fishery should continue to be managed to its GHL allocations.

Response: VanValin

v.

Locke

involved a legal challenge to the GHL. That case does not preclude the subsequent consideration and implementation of alternative allocations between the commercial and charter sectors that differ from the GHL. Pursuant to section 773c(c) of the Halibut Act, where the Council develops regulations that allocate halibut fishing privileges among United States fishermen, such allocation “must be fair and equitable to all fishermen.” This language is adopted directly from National Standard 4 of the Magnuson-Stevens Act (16 U.S.C. 1851(a)(4)). The terms “fairness and equity” have been interpreted in NOAA Fisheries' National Standard Guidelines (the Guidelines) (see 50 CFR 600.325(c)(3)(i)(A)). The Guidelines provide that there should be a rational relationship between an allocation of fishing privileges and the furtherance of a legitimate fishery management objective. The Guidelines further provide that “inherent in an allocation is the advantaging of one group to the detriment of another.” The Council may develop, and the Secretary of Commerce may implement, regulations allocating fishing privileges that result in hardship to one group if such burdens are outweighed by the total benefits received by another group. “An allocation need not preserve the status quo in the fishery to qualify as `fair and equitable,' if a restructuring of fishing privileges would maximize overall benefits” (see 50 CFR 600.325(c)(3)(i)(B)).

The CSP allocations are fair and equitable. As described in the Analysis and in the proposed rule for this action, the Council and NMFS decided to replace the GHL with sector allocations that balance the differing needs of the charter and commercial sectors, and that float with varying levels of halibut abundance. See also the response to Comment 1. The GHL is not as responsive or adaptable to changes in halibut abundance. While both the GHL and commercial fishery catch limits have declined in recent years, the commercial halibut fisheries have borne larger poundage and proportional reductions under the current allocation system. The Council noted that the absence of a hard allocation between the commercial and the charter halibut sectors has resulted in conflicts between sectors and tensions in coastal communities dependent on the halibut resource.

The CSP allocations to the commercial and charter sectors will result in both fishery allocations adjusting directly with changes in halibut exploitable biomass. This will stabilize the proportions of harvestable halibut available to the commercial and charter fisheries at all levels of halibut abundance, allowing both the commercial and charter sectors to share in the benefits and costs of managing the halibut resource and providing a

more equitable management response to changes in halibut biomass compared to the GHL policy. Also see the response to Comment 6.

Comment 3:

The CSP allocations to the charter sector are demonstrably fair and equitable. The Area 2C charter allocation includes as baseline years for calculating the allocation percentage two years when charter harvest exceeded the GHL, 2004 and 2005, which rewards the charter sector for exceeding the GHL. The Council chose not to use more recent years in which charter harvests were even higher in consideration of the effects on commercial halibut fishery participants. The commenter notes that in

Van Valin

v.

Locke

the court ruled that charter operators should not be rewarded for exceeding the GHL. The court stated that where overfishing by one group in recent years is the precise concern that the regulation intends to address, it makes sense to disregard the most recent participation data (Id. at 11). If the CSP errs at all relative to allocation equity, it errs in awarding too large a percentage of the halibut resource to the charter sector.

Response:

NMFS acknowledges the comment and notes that the preamble to the proposed rule and section 1.6.7 of the Analysis describe the Council's rationale for recommending the CSP allocations to the commercial and charter sectors. Also see the response to Comment 26.

Comment 4:

A court found the GHL to be fair and equitable, but that is not the only allocation that could be fair and equitable. The Council has the authority to recommend a different allocation that could also be fair and equitable.

Response:

As described in the response to Comment 2, the Council and NMFS have articulated a legitimate objective for establishing the CSP in Area 2C and Area 3A. To accomplish this objective, the Council and NMFS properly determined to replace the GHL with sector allocations that vary directly with halibut abundance. The Secretary of Commerce has determined that this final rule is consistent with the Halibut Act requirement that allocation of fishing privileges be fair and equitable to halibut fishermen.

Comment 5:

The proposed rule states that the problem is uncompensated reallocation of the halibut from the commercial to the charter sector. The percentage of the CCL allocated to the charter sector decreases at high levels of abundance. How are guided anglers compensated for this reallocation of fish to the commercial sector at high levels of abundance?

Response:

NMFS disagrees with the commenter's characterization of the proposed rule. Page 39123 of the proposed rule noted that “[t]he commercial IFQ halibut fishery therefore views charter harvests in excess of established policies or goals as uncompensated reallocations of fishing privileges.” This statement follows a description of the IPHC process for determining commercial catch limits under the GHL program, and was included in the proposed rule preamble to express the view of commercial halibut fishery participants that consider charter harvests in excess of established harvest policies (the GHL from 2004 through 2013), as uncompensated reallocation of halibut from the commercial to the charter sector. The purpose and need for the CSP is described in section 1.2 of the Analysis and the proposed rule (see the “III. Proposed Catch Sharing Plan (CSP) for Area 2C and Area 3A” section beginning on page 39125). The CSP also would allow the charter sector to increase its allocation by leasing IFQ from the commercial sector. The proposed sector allocations are intended to fluctuate proportionately with halibut abundance. In recommending the CSP, the Council balanced its objective to establish an allocation to the Area 2C and Area 3A commercial and charter sectors that varies proportionately with halibut abundance while maintaining this historical charter season length with no inseason changes to harvest restrictions. Also see the response to Comment 6.

NMFS agrees that under the CSP, the proportion of the CCL allocated to the charter sector at relatively higher levels of abundance is less than the proportion allocated to the charter sector at relatively lower levels of abundance. The proposed rule for CSP describes the rationale for the allocations to the commercial and charter sectors in Area 2C and Area 3A.

NMFS disagrees that the CSP allocation to the charter sector at higher levels of halibut abundance results in a reallocation of halibut to the commercial sector. As described in the proposed rule for the CSP, the Council balanced its objective to establish clear allocation to sectors that varies in proportion with halibut abundance with the needs of the charter and commercial fisheries at all levels of halibut abundance.

Comment 6:

The Problem Statement says that the absence of a hard allocation between the longline and the charter halibut sectors has resulted in conflicts between sectors and tensions in coastal communities dependent on the halibut resource. What is a hard allocation? Is the GHL a hard allocation? What makes the CSP allocation any more of a hard allocation than the GHL?

Response:

NMFS interprets the Council's reference to a hard allocation in its problem statement to mean an allocation between the directed commercial halibut fishery and the charter fishery that is clear, transparent, and varies in proportion to changes in halibut abundance. The Council intended for the CSP to be a comprehensive management program for the charter halibut fisheries in Areas 2C and 3A, with sector allocations that balance the differing needs of the charter and commercial sectors over the range of halibut abundance, that float with varying levels of annual halibut abundance, and that include a public process for developing management measures intended to limit the charter sector to its allocation.

As described in the response to Comment 1, management of the charter fishery under the GHL program resulted in the commercial fishery bearing a disproportionate amount of the declines in halibut exploitable biomass relative to the charter sector. This changing proportional allocation of a fully utilized halibut resource between the sectors under the GHL program created instability between user groups that the Council sought to address with the commercial and charter sector halibut allocations implemented by this final rule. This action is intended to maintain stability, economic viability, and diversity of halibut user groups by addressing allocation conflicts between participants in the commercial and charter halibut fisheries. The Secretary of Commerce has determined that the CSP allocations are consistent with the Council's objectives as described in its problem statement and the purpose and need for the CSP described in section 1.2 of the Analysis.

Comment 7:

The Problem Statement says that unless a mechanism for transfer between sectors is established, the existing environment of instability and conflict will continue. The Council seeks to address this instability while balancing the needs of all who depend on the halibut resource for food, sport, or livelihood. Does NMFS believe that a plan that reallocates without compensation 30 percent or more of the current allocation to commercial fishermen while allowing guided anglers to rent those same fish back is going to address the existing environment of instability and conflict? How are guided anglers compensated for this reallocation from the GHL?

Response:

As discussed in the response to Comment 1, this final rule establishes an allocation in which both the commercial and charter halibut fisheries share in the benefits and costs of managing the resource for long-term sustainability. The Council anticipated, and NMFS agrees, that stabilizing the method of allocating halibut between the sectors will alleviate allocation conflicts between halibut user groups in Areas 2C and 3A. As described in the proposed rule for this action, the Council faced the challenge of balancing historical halibut harvests, economic impacts to the commercial and charter sectors, and the recent decline in halibut abundance in both areas as it developed its recommendation. As a result, it is not possible for any allocation consistent with the Council's objectives to make participants in both fisheries “whole” economically given current halibut abundance levels.

In recognition that allocations under the CSP to the charter sector may be constraining at current low levels of halibut abundance, the Council recommended the GAF program to meet the needs of the charter halibut fisheries in Areas 2C and 3A and provide flexibility for participants in both sectors. The GAF program was not intended to provide a mechanism to replace reductions in the charter allocation relative to current or historical harvest levels. GAF will provide a voluntary, market-based mechanism for transferring halibut allocation from the commercial sector to the charter sector in order for the charter sector to access additional halibut under a potentially constraining allocation. It provides flexibility for operators in both the commercial and charter sectors. Individual charter and commercial operators will be able to consider current halibut catch limits in relation to their operational needs when determining whether to use the GAF program. The Council and NMFS anticipate that GAF may be used by charter anglers particularly in years of low halibut abundance, when charter catch limits under the CSP may be constraining.

Comment 8:

Optimum yield for the halibut fisheries has changed. The charter fishery harvest increased during the 1990s and early 2000s in response to shifting optimum utilization. The increased economic benefits from the charter sector and indirect support services are being ignored by the IPHC. The IPHC continues to consider the commercial fishery to be the optimal use of the resource.

Response:

NMFS agrees that charter fishery harvest increased during the 1990s and early 2000s. The resulting reallocation of harvest from the commercial sector has resulted in conflicts between sectors and tensions in coastal communities that are dependent on the halibut resource. The Council, not the IPHC, developed the CSP to address this instability while balancing the needs of all who depend on the halibut resource for food, sport, or livelihood. Specification of optimum yield for halibut fisheries is not required by the Halibut Act and has not been determined. See

Charter Operators of Alaska

v.

Blank,

11-cv-00664 (RCL) (D.D.C., February 24, 2012). As described in the response to Comment 120, the Council and NMFS considered the anticipated effects of the allocation to the charter sector at all levels of abundance as analyzed in section 2.5 of the Analysis, and the potential impacts on the charter sector in section 2.6 of the Analysis.

Comment 9:

The commercial IFQ halibut sector perceives that charter harvests in excess of established policies or goals as uncompensated reallocations of fishing privileges from the commercial sector to the charter sector. This is the problem the CSP is intended to remedy; however, this is an erroneous objective. Pursuant to Article III of the Halibut Convention, the IPHC must develop and maintain halibut stocks to levels that will permit the optimum yield for the halibut fisheries. The harvest of halibut in Alaska occurs in three fisheries: the commercial, sport, and subsistence fisheries. The optimum yield for the sport fishery will be adversely impacted by the proposed changes. The IPHC fails in its duty to protect the current allocation if it implements the proposed changes.

Response:

The commenter mischaracterizes the problem the Council intended to address with the CSP. The Council's problem statement provides that “[t]he absence of a hard allocation between the commercial longline and charter halibut sectors has resulted in conflicts between sectors, and tensions in coastal communities that are dependent on the halibut resource. Unless a mechanism for transfer between sectors is established, the existing environment of instability and conflict will continue. The Council seeks to address this instability, while balancing the needs of all who depend on the halibut resource for food, sport, or livelihood.” The CSP addresses this problem statement by establishing allocations for both sectors that fluctuate with halibut abundance, and by establishing a mechanism to transfer halibut between the sectors (GAF).

Second, the commenter mischaracterizes Article III of the Convention. “Developing the stocks of halibut of the Northern Pacific Ocean and Bering Sea to levels which will permit the optimum yield from that fishery and . . . maintaining the stocks at those levels” does not require the IPHC to maintain a current allocation. Nothing in the Convention obligates the IPHC to maintain the GHL as the allocation between charter and commercial sectors to achieve the optimum yield from the sport sector or from any specific sector of the halibut fishery. The Council and NMFS have developed and implemented the CSP pursuant to the Halibut Act as the appropriate allocation between the commercial sector and charter sector.

Comment 10:

The CSP does not reflect current management practices nor present participation in the fishery. For example, present participation in the commercial halibut fishery has changed significantly through a reduction in the number of quota share holders. Additionally, the Council ignored 2011 data on commercial and charter catch to favor commercial IFQ holders.

Response:

The Council considered present and historical management and participation in the fishery when developing the CSP. The Analysis takes into account present participation in the commercial and charter halibut fisheries and considered alternative sector allocations under the CSP. Specifically, the Analysis includes information on harvests and participation in the commercial and charter halibut fisheries through 2011, the most recent year for which information was available regarding participation in the charter halibut fisheries in Areas 2C and 3A when the Council recommended its preferred alternative in October 2012. The 2011 charter fishery was the first full year in which the charter halibut limited access program was in effect in Areas 2C and 3A. As discussed in the proposed rule for this action, the charter halibut limited access program capped the number of charter businesses that could operate in Areas 2C and 3A to limit further expansion of the industry.

The Council's consideration of each sector's recent participation and halibut harvest levels were particularly important in developing its recommendation of sector allocations under the Area 2C and Area 3A CSP because halibut abundance levels have declined in those areas in recent years. The Analysis described the effects of changing the method of allocating halibut between the commercial and charter sectors under the alternatives considered by the Council. The Analysis

estimated the CSP allocations to the commercial and charter sectors that would have been specified from 2008 through 2012 if the CSP had been in place. Section 2.8 of the Analysis, which shows that the catch sharing allocations could constrain charter harvests compared to the status quo when halibut abundance is low, as it has been in recent years. However, the Council and the Secretary of Commerce also considered the disproportionate impact of halibut abundance declines on the commercial sector catch limits under the GHL program, and determined that the CSP allocations implemented by this final rule meet the management objective of establishing sector allocations that vary directly with halibut abundance while balancing the halibut needs of the commercial and charter sectors with respect to recent participation.

The Analysis also took into account historical fishing practices in and dependence on the charter halibut fisheries as it considered alternative allocations to the commercial and charter halibut fisheries for the CSP. The Analysis included information on harvests and participation in the commercial and charter halibut fisheries from 1995 through 2011. The Council's preferred alternative for allocations to the commercial and charter fishery was based on each sector's harvest as percentage of the combined commercial and charter halibut harvest for several sets of years ranging from 1995 through 2005. In considering these data, the Council also considered estimates of revenues from participation in the commercial and charter halibut fisheries to evaluate historical fishing practices in and dependence on the charter halibut fisheries for both sectors.

As described in the Analysis, fishery participation is often measured in pounds of the targeted fish species landed. Charter vessel businesses, however, primarily market a sport fishing experience rather than pounds of fish caught. Thus, while it is not possible to quantify or directly compare dependence on the halibut resource by participants in the commercial and charter halibut fisheries using available information, the Analysis presented the Council and the Secretary of Commerce with sufficient information to take into account dependence on the halibut fisheries by participants in both sectors when recommending sector allocations under the CSP. The evaluation of the potential effects of the alternatives in sections 2.5 and 2.6 of the Analysis informed the Council during its development of this action and the Secretary of Commerce's decision to approve it.

Finally, the Council also took into account historical fishing practices in the charter halibut fisheries by continuing to avoid in-season changes to charter harvest restrictions and maintain a traditional charter halibut season length. The charter halibut fisheries have traditionally been managed with pre-season specifications of harvest restrictions without in-season adjustments or closures during the charter fishing season. The CSP recommended by the Council and approved by the Secretary of Commerce maintains this approach to managing the charter halibut fisheries in Areas 2C and 3A.

Comment 11:

The CSP likely will promote strong industry desire for the charter sector to stay within its allocation because overages will roll over into the following season and reduce the successive season's charter catch limit.

Response:

Halibut harvest in the Area 2C or Area 3A charter fishery that exceeds the charter allocation in any one year, also called an overage, will not be deducted from the charter allocation in the following year. The CSP allocations to the Area 2C and Area 3A commercial and charter halibut fisheries will not change annually. See the response to Comment 1.

Comment 12:

The CSP allocations are generous to the charter sector, but it is time to settle the allocation debate and implement the CSP, even though it comes at a cost to the commercial sector and consumers.

Response:

NMFS acknowledges the comment. As described in the response to Comment 1, one of the Council's primary objectives for the CSP is to establish a comprehensive management program for the charter halibut fisheries in Area 2C and Area 3A, with sector allocations that balance the differing needs of the charter and commercial sectors over the range of abundance and that float with varying levels of halibut abundance.

Comment 13:

I support the allocations proposed in the Council's 2008 CSP recommendation. I am opposed to any increases to the charter sector from that allocation.

Response:

NMFS acknowledges the comment. As described in the proposed rule, the Council adopted a motion in 2008 to recommend a CSP for the charter and commercial halibut fisheries in Areas 2C and 3A to NMFS. In July 2011, NMFS published a proposed rule for that CSP based on the Council's 2008 preferred alternative (76 FR 44156, July 22, 2011) and received more than 4,000 public comments. The majority of the comments addressed the proposed allocation percentages and the matrix of charter halibut fishery harvest restrictions that would have been automatically triggered by changes in the Area 2C and Area 3A annual CCLs supported by halibut exploitable biomass. In October 2011, in part due to questions raised in the public comments on the proposed rule, NMFS and the Council decided that further analysis and clarification of provisions of the proposed 2011 CSP were required. In December 2011, the Council requested a supplemental analysis of new information since its 2008 preferred alternative. This included an evaluation of the management implications and economic impacts of the proposed CSP at varying levels of halibut abundance. Based on this new evaluation and additional public input, the Council recommended a revised preferred alternative for the CSP in October 2012, which included the recommendations for allocations to the commercial and charter sectors that float with changes in halibut abundance. See section 2.5.7 of the Analysis for a review of the CSP allocations based on the Council's 2008 recommendation. Also see the response to Comment 7.

Comment 14:

The CSP allocations demonstrate the Council's careful consideration of the potential impacts to the charter sector while tasked with developing a functional management plan for a fully allocated resource.

Response:

NMFS agrees. Also see the response to Comment 7.

Comment 15:

Under the CSP, both the commercial sector and the charter sector are tied to the same IPHC metric of stock status with clear, defined allocations.

Response:

As described in the proposed rule for the CSP and in section 1.6.7 of the Analysis, the Council and NMFS recognize that one of the advantages of the CSP over the GHL program is that it uses the same method to establish commercial and charter halibut fishery allocations. The Council and the Secretary of Commerce have determined that the allocation to the commercial and charter halibut fisheries under the CSP provides a more transparent and equitable management response than the GHL program.

Comment 16:

We hope NMFS will avoid the use of words such as “benchmark” to describe the CSP allocations. Such terms used for the GHL invited multiple lawsuits that were costly to the industry, the public, and the resource. The CSP sets clear allocations for the charter sector and a process to prevent allocation overages

before they occur. This must be reflected in the final rule.

Response:

NMFS acknowledges the comment and notes that regulations implementing this final rule specify the determination of Area 2C and Area 3A annual charter halibut allocations from the annual CCL (see Tables 3 and 4 to subpart E of part 300).

Comment 17:

The CSP's allocations to the charter sector are reduced from those proposed in 2011. For example, the 2013 Area 2C CSP allocations are less than the 2008 proposed CSP allocations after the calculations are adjusted for changes in accounting methods and sector accountability are considered.

Response:

If the 2011 proposed rule for a CSP had been implemented, it would have allocated the charter sector 17.3 percent of the Area 2C combined catch limit (CCL) below 5 million lb, and 15.1 percent of the CCL above 5 million lb. The CSP implemented by this final rule establishes allocations to the charter sector in Area 2C of 18.3 percent and 15.9 percent of the CCL at low and high abundance, respectively. In Area 3A, the 2011 proposed rule for a CSP would have allocated the charter sector 15.4 percent of the CCL at low abundance and 14.0 percent at high abundance. The CSP implemented by this final rule establishes allocations to the Area 3A charter sector of 18.9 percent at low abundance, 17.5 percent at moderate abundance, and 14.0 percent at high abundance. Additionally, for Areas 2C and 3A the CSP includes fixed poundage allocations between percentage tiers to remove the “vertical drops” in allocation that would have occurred under the 2011 CSP (see Comment 20). Overall, the allocations provided to the charter sector in this rule are greater than the allocations contemplated in the 2011 proposed rule.

Comment 18:

Why was Alternative 3 chosen as the allocation option for Area 2C? It appears to be a punitive response to the 2C charter sector for exceeding the GHL due to inadequate and inappropriate management measures. Previous overharvests were a result of poor management, not as a result of illegal fishing practices.

Response:

NMFS agrees that charter harvests did not exceed the GHL due to illegal fishing practices. The GHL was exceeded in some years in part due to the rapid growth in the charter halibut industry in Area 2C, combined with the delay in promulgating charter harvest restrictions. These factors made it difficult for managers to set harvest restrictions to avoid exceeding the GHL, while meeting the Council's objectives of avoiding in-season changes to harvest restrictions and maintaining a traditional season length. Until 2011, new charter halibut harvest restrictions were not implemented in time to prevent charter harvests from exceeding the GHL. As a result, the charter halibut fishery in Area 2C exceeded its GHL each year from 2004 through 2010. The CSP is not a punitive response to charter overharvest in Area 2C. The Council's rationale for the allocations for Area 2C is described in the preamble to the proposed rule and in section 1.6.7 of the Analysis.

Comment 19:

Where in the analysis can we find graphical comparisons of the CSP and GHL allocations across their full range? Add a graphical comparison of the CSP and GHL, using the common measuring stick of logbook pounds, across the range of the CSP and GHL allocations, to show how much less the CSP allocation is than the GHL.

Response:

NMFS has added a graphical comparison of the estimated CSP allocations to the GHL to section 2.5 of the Analysis as suggested by the commenter. Table 2-71 in section 2.8 of the Analysis presents estimates of charter and commercial catch limits if the CSP had been in place from 2008 through 2012. Based on the information in this table, the Area 2C CSP allocation to the charter sector would have averaged 662,000 lb and the GHL in these years averaged 845,000 lb. The Analysis estimates that the CSP allocation to the Area 2C charter sector would have averaged approximately 22 percent less than the GHL from 2008 through 2012. For Area 3A, the estimated CSP allocation to the charter sector would have averaged 3.3 million lb from 2008 through 2012 and the GHL in these years averaged 3.5 million lb. The Analysis estimates that the CSP allocation to the Area 3A charter sector would have averaged approximately 6 percent less than the GHL from 2008 through 2012. While this information was included in the Analysis that was available for public review before the proposed rule was published and was available for public comment during the comment period on the proposed rule, NMFS agrees with the commenter that a graphical representation of this information is useful to further illustrate the anticipated impacts of the CSP allocations. NMFS notes that section 2.5 of the Analysis presents a thorough comparison of the GHL with all of the allocation alternatives considered by the Council as it developed the CSP.

Comment 20:

If the goal was allocations that float with abundance, how do you explain the flat spot in the Area 3A allocation between CCLs of 20 and 25 million lb?

Response:

The “flat spots” or fixed poundage allocations will remove the vertical drops that would have occurred between allocation percentage tiers. The rationale for these allocation tiers is described in section 2.5.11 of the Analysis and the section entitled “C. Annual Commercial Fishery and Charter Fishery Allocations” of the proposed rule. Without this adjustment, a 1 lb increase in CCL could trigger a significant drop in the poundage allocated to the charter halibut fishery. For example, without the fixed poundage allocation between 20 and 25 million lb, if the Area 3A CCL were set at 19.9 million lb, the charter allocation would be 17.5 percent, or 3.5 million lb. If the CCL increased to 20 million lb, the charter allocation percentage would be 14.0 percent, or 2.8 million lb. By adding the fixed poundage allocation to the CSP, the vertical drop in charter sector allocation is removed. The Area 3A charter allocation would be fixed at 3.5 million lb until the CCL increases to the point where the charter allocation percentage at higher abundance levels would not result in a decrease in poundage allocated to the charter sector, in this example, at 25 million lb (see Figure 3 of this preamble).

The fixed poundage allocations were added in response to public comment on the CSP proposed rule published in 2011 (76 FR 44156, July 22, 2011), which noted the effects of the vertical drop resulting from the change in percentage allocations to the charter sector under the CSP. The Council also received testimony requesting revised CSP allocations that addressed the vertical drop in charter allocations. The fixed poundage allocations will benefit the charter sector by ensuring that the poundage allocation to the sector does not decrease over a specified range of CCLs.

Comment 21:

What happens if the charter halibut harvest exceeds the CSP allocation? Where and how are overages in charter harvest accounted for?

Response:

An overage by any sector in any given year does not affect other sectors in that same year. An overage by any sector affects all users in the subsequent year by increasing fishery removals that result in a lower estimated initial biomass. The IPHC assessment considers an overage as a removal higher than that fishery's catch limit. That higher removal in a fishing year means that biomass is incrementally lower at the end of that year than it would be otherwise. Underages have a similar effect on biomass but in the opposite direction,

i.e., biomass estimation for the subsequent year begins at a higher level than it would otherwise, and all sectors will benefit from this.

Comment 22:

The lower tiers of the new Area 3A CSP allocation are based on adding 3.5 percent of the CCLs to the 2011 CSP alternative. Why was 3.5 percent of the CCLs not added to the entire 2011 3A CSP alternative?

Response:

As described in the response to Comment 5, in Area 3A, the percentage allocation to the charter sector at higher levels of abundance is based on the same formula used to calculate the GHL. While the Council considered increasing this allocation percentage to provide the Area 3A charter sector with a larger poundage allocation, the Council ultimately determined that a larger allocation would give more halibut to the charter fishery than it could harvest based on historical catch estimates and information on charter business operations received during the development of the CSP. The Council felt it was inappropriate to recommend a higher charter sector allocation that would likely not be harvested in the charter fishery.

Comment 23:

As more fish are caught the CSP allocations for charter fisheries go down and the allocations for commercial fisheries go up. To shift the allocation away from the charter sector, which has only a small percentage of bycatch, to the commercial sector, which has higher rates of bycatch is not a sustainable solution. The allocation for both fisheries should go down as the amount of fish caught goes up.

Response:

The allocations to the commercial and charter halibut sectors are not based on the amount of halibut caught. They result from apportionment of the CCL determined by the IPHC, after estimating the exploitable biomass, multiplying by a target harvest rate, and deducting other removals (e.g., unguided sport harvest, subsistence harvest). Figure 1 depicts how the CCLs and allocations will be calculated under the CSP.

As the CCL increases, the percentage allocated to the charter sector may decrease, but the pounds allocated to the charter sector will continue to increase. The Council determined that allocating a larger percentage to the charter halibut fishery at high abundances would allocate more pounds of halibut to the charter halibut fishery than they could harvest, based on available historic harvest data and information on charter business operations received during the development of the CSP (see section 1.6.7 of the Analysis for additional detail).

Comment 24:

The current recommendation to give the underages of the charter fishing industry to the commercial fishing industry is unfair.

Response:

The CSP does not allocate underages in the charter halibut fishery to the commercial halibut fishery. See Comment 21 for a description of how the IPHC accounts for underages and overages in the charter halibut fishery.

Comment 25:

Underages in charter sector harvests should be available to be caught and sold by the charter fleet the same as commercial IFQ fish or added back to the allowable harvest for the following year.

Response:

Commercial halibut fisheries are managed under the IFQ Program with individual allocations. IFQ management allows for underages of individual IFQ accounts to be carried forward to the QS holder's account in the following year, up to specified limits (see regulations at § 679.41). The charter fishery is not managed with individual allocations, so there is no mechanism to carry forward underages in that fishery as there is in the commercial fishery. As described in the response to Comment 21, underages will result in the halibut biomass estimation for the subsequent year beginning at a higher level, and all sectors will benefit from this.

Comment 26:

The halibut resource should be split 50:50 between the commercial and sport sectors.

Response:

The proposed rule for this action and section 1.6.7 of the Analysis describe the rationale for the allocations to the charter and commercial sectors under the CSP. The Council reviewed historical harvests as a proportion of estimated commercial and charter CCLs as well as recent harvests by each sector to establish the allocations under the CSP. NMFS notes that allocations among fishery user groups are commonly based on historical and recent harvests by each sector. NMFS has determined that the Council's decision to use historical and recent harvests in the Area 2C and 3A commercial and charter halibut fisheries provides a reasonable and logical basis for the CSP allocations implemented by this final rule. The commenter could propose different allocations to the commercial and charter sectors to the Council for future consideration.

Comment 27:

The commercial halibut longliners were given more fish nearly every year than their initial allocation in 1995, while the GHL and daily bag limits were not increased for charter anglers.

Response:

NMFS agrees that commercial catch limits in Area 2C and Area 3A have fluctuated relative to the catch limits established for 1995, the first year of the IFQ Program. However, since the implementation of the IFQ Program, the overall proportion of total halibut harvested in the Area 2C and Area 3A commercial halibut fishery has declined and the proportion harvested in the charter halibut fishery has increased. NMFS also agrees that the GHL was not responsive to changes in halibut abundance. As described in the response to Comment 1, one of the Council's primary objectives for the CSP is establish a comprehensive management program for the charter halibut fisheries in Area 2C and Area 3A, with sector allocations that balance the differing needs of the charter and commercial sectors over a wide range of halibut abundance and that also float with varying levels of halibut abundance. This final rule furthers that objective by establishing CSP allocations for the Area 2C and 3A commercial and charter halibut fisheries that vary with halibut abundance.

Comment 28:

The real reason that commercial catch limits have been reduced in Areas 2C and 3A is the IPHC's switch to using a coastwide model in the stock assessment, not harvest overages by the charter sector.

Response:

Overall, commercial catch limits have decreased with decreasing exploitable biomass. The Pacific halibut stock has been declining continuously over much of the last decade as a result of a number of factors, including decreasing size-at-age and poor recruitment strengths. This decline in abundance has been apparent coastwide in varying severity. Although the IPHC has shifted from area-specific stock assessments to a coastwide assessment, the mere shift in stock modeling does not account for the decreasing size-at-age and poor recruitment strengths. Catch overages by the charter fishery sector can result in a lower estimated initial biomass for all users and are incorporated into stock assessments, but are not the sole reason for reduced exploitable biomass and reduced commercial catch limits in Areas 2C and 3A.

Comment 29:

The Council's Scientific and Statistical Committee in the analysis of the CSP said it believes that the magnitude and range of uncertainties concerning projections of charter harvests will prevent the charter harvest forecast accuracy from being within a range of 3.5 percent of the target allocation.

Response:

This comment refers to the 3.5 percent target range proposed around the allocations in the 2011 proposed CSP. This target range was not

included in the CSP implemented in this final rule and the comment is no longer applicable. The processes for projecting charter harvests and recommending any necessary management measures are described in the “Catch Sharing Plan for Area 2C and Area 3A” section of this preamble.

Comment 30:

The proposed rule does not show a summary of the catch records for Charter Halibut Permits. Such data by area and how it compares to the commercial catch for each area would aid in setting the allocation for sport fishing.

Response:

The Council considered historical and recent halibut catch data for the commercial and charter sectors in Areas 2C and 3A in its recommendation for the CSP (see sections 1.7.1.2 and 2.3.2.2 of the Analysis; see also the response to Comment 10).

Separate Accountability

Comment 31:

Separate accountability is not needed for the charter halibut fishery because there is no halibut wastage in charter fishing.

Response:

NMFS disagrees with the commenter's assertion that there is no halibut wastage (discard mortality) associated with the charter halibut fishery. As discussed on page 39135 of the proposed rule, wastage occurs in the charter halibut fishery as a result of stress or injuries sustained from hooking, hook removal, and handling of released fish. Wastage is the product of the number of fish released, the discard mortality rate, and the average weight of the released fish. Management measures, such as size limits, can affect the number and average weight of released fish and the resulting number of pounds of discard mortality. Separate accountability, the process of deducting wastage from each fishery sector's allocation, is described in the “D. Calculation of Annual Fishery Catch Limits” section of the preamble to the proposed rule.

Comment 32:

The IFQ Program allows the commercial sector to highgrade (discard fish below a desired size) to deliver only most valuable fish to market. Legal size halibut caught early in the season are discarded to highgrade for larger fish that fetch a higher price. When the commercial fishery operated under the old derby system prior to the IFQ Program, all halibut caught went to market, resulting in less waste. The commercial sector should pay for all halibut it wastes.

Response:

Federal regulations at § 679.7(f)(11) require that all legal-size halibut caught in the commercial fishery be retained until an individual's quota is reached. The extent to which highgrading may occur in the commercial fishery is unknown currently. Data from the recently implemented restructured observer program (77 FR 70062, November 21, 2012) may provide additional information in future years. Certain circumstances may encourage highgrading; however, the benefits of receiving a higher price by highgrading may not offset the added expense of fishing longer or taking additional trips to fully harvest one's halibut IFQ. The IPHC will use the best available information to estimate wastage by the commercial fishery and may incorporate data from the restructured observer program as they become available. Under the CSP, the commercial allocation will be reduced by an estimate of its wastage to obtain the annual commercial catch limit. Separate accountability for wastage promotes conservation by providing an incentive for commercial and charter sectors to reduce wastage, as wastage is deducted from each sector's allocations.

Comment 33:

NMFS should address bycatch and wastage of the commercial fleet instead of limiting the charter fleet.

Response:

As described in the proposed rule for the CSP and in section 2.5.5 of the Analysis, the commercial and charter halibut fisheries will be separately accountable for their discard mortality or “wastage” under the CSP. See also the response to Comment 32.

Comment 34:

The CSP proposed rule provides for sector accountability of discard mortality (wastage) by deducting the projected wastage after each sector's allocation has been determined from the CCL. The IPHC endorses this approach and believes it is more equitable and appropriate than previous procedures. However, Figure 1 omits any mention of wastage by the unguided sport fishery. While outside the CSP, the IPHC will be looking to include an estimate of discard mortality for this sector, in addition to its estimated harvest, as part of “Other Removals” deducted from the Total CEY. The IPHC also concurs with the expectation that ADF&G will provide estimates of charter fishery wastage for each area.

Response:

NMFS acknowledges the comment and the IPHC's plan to, in the future, include an estimate of unguided sport wastage in “Other Removals.”

Comment 35:

The Analysis on page 160, Table 2-32, uses proxy data for charter waste. Subsequent tables use the proxy data to estimate charter and commercial allocations under separate accountability. How can proxy data be used to incorporate separate accountability into the allocation decision? How did the Council factor separate accountability into the allocation decision without data on guided wastage and only partial data for commercial wastage?

Response:

Proxy data were used in a modeling exercise to examine the effects on the commercial and charter catch limits of incorporating separate accountability into the allocations. Proxy data were used for the charter estimates of wastage because an estimate of wastage for that sector was not yet available. The use of proxy data allowed the Analysis to show the direction and approximate magnitude of changes in charter and commercial catch limits under separate accountability (Tables 2-33 and 2-34 of the Analysis). NMFS determined that the Council's decision to include separate accountability in the CSP is consistent with its program objectives and promotes conservation because it would encourage better handling of discarded fish to reduce the discard mortality rates and thus increase fishery catch limits.

Comment 36:

Under separate accountability there will be a direct incentive to increase sector catches by decreasing sector discard mortality (wastage). Both sectors will want their reduced wastage to be assessed and incorporated into the calculations of catch limits. Are ongoing wastage surveys planned? We suggest managers consider options for achieving this goal.

Response:

NMFS agrees that separate accountability will provide an incentive to reduce sector wastage to increase catch limits. Wastage estimates for each sector will be based upon the best available information. The IPHC estimates wastage in the commercial fishery from data gathered during its fishery surveys. The IPHC may incorporate observer data to improve this estimate in future years. Estimates of charter sector wastage will, in part, depend on the management measures in place. As noted in section 2.5.5 of the Analysis, implementation of size limits may have an effect on discard mortality estimates for the charter sector because wastage in the charter fishery is a function of the number of fish released. Additional fishery surveys or research on wastage in the commercial and charter sector may be developed after reviewing current data, and forthcoming data from the restructured observer program.

Comment 37:

The final rule should broaden the responsibility for wastage estimates so that ADF&G, the IPHC, or NMFS could provide them.

Response:

The Council recommended that the IPHC deduct an estimate of wastage for each sector's allocation to calculate their annual catch limits. The CSP does not specify who will estimate wastage or how it will be estimated. The IPHC currently estimates wastage for the commercial fishery. NMFS anticipates that ADF&G will provide wastage estimates for the charter fishery because ADF&G has been collecting data on the numbers of halibut kept and released through their saltwater charter logbooks, statewide harvest survey, and creel surveys.

Comment 38:

The only study of released fish mortality of Pacific halibut was conducted in 1958-1960 and used only J-hooks. This study estimated the release mortality of halibut at 3.8 percent; however, guided and commercial wastage depend on a variety of factors such as hook type, abundance, harvest rules, and weather.

Response:

NMFS believes that the comment refers to a 1969 report to the IPHC by G. J. Peltonen on the viability of tagged Pacific halibut (

www.iphc.int/publications/scirep/Report0052.pdf

). This study demonstrates the difficulties in determining mortality in large species like Pacific halibut because the captured fish are usually held for long periods to determine survival, and the conditions in the unnatural environment in which the fish are held confound the results. The report concluded that there is a mortality rate of 2 to 5 percent for fish released in excellent condition. The midpoint of this range (3.5 percent) is the basis of the discard mortality rate that the IPHC currently applies to commercially caught halibut released in excellent condition.

NMFS agrees that discard mortality rates are influenced by a variety of factors and notes that the IPHC uses the best available information from studies on halibut and other species to develop discard mortality rates. The IPHC considers the findings of several studies, including mark-recapture studies, that examine mortality rates associated with a variety of factors such as hook type and size, handling, water temperature, and longline soak times, to develop discard mortality rates for halibut released with minor, moderate, or severe injuries. Similarly, estimates of discard mortality in the charter fishery will be based on the best available information. See Meyer (2007) for a discussion of some of the factors that may be incorporated into wastage estimates for the charter fishery (

http://alaskafisheries.noaa.gov/npfmc/PDFdocuments/halibut/HalibutDiscards907.pdf

).

Comment 39:

How is separate accountability for GAF calculated and from which sector's allocation will this wastage be deducted?

Response:

ADF&G requires that charter vessel guides record the number of halibut kept and the number released in the saltwater charter logbook. Under the CSP, guides will also be required to record in the logbook the number of GAF harvested. The number of halibut released in pursuit of GAF will not be differentiated from the number of halibut released in pursuit of non-GAF halibut kept by charter vessel anglers. Therefore, there will not be a wastage estimate specifically for GAF; only a single wastage estimate for all halibut kept and released in the charter halibut fishery. Charter halibut wastage will be deducted from the charter sector's allocation to obtain the charter catch limit.

Guided Angler Fish (GAF)

Comment 40:

GAF will not work with most charter fishing business models. Charter anglers will not want to purchase GAF and commercial QS holders will not lease IFQ as GAF at a reasonable price. There are too many problems with the proposed GAF program for implementation at this time.

Response:

The Council recommended GAF as part of the CSP to provide an opportunity for the charter halibut fisheries in Area 2C and Area 3A to increase fishing opportunities when the charter allocation may be constraining. The Council recommended GAF after considering a number of alternative mechanisms for transferring halibut allocation from the commercial sector to the charter sector. The Council also recognized that some charter operators may choose not to use the GAF provision as part of their business plans (see sections 1.6.7 and 1.6.8 of the Analysis).

The Council's Charter Halibut Stakeholder Committee recommended GAF as its preferred method for providing the charter sector with access to additional halibut under a potentially constraining CSP allocation. During development of the CSP, the Council received public testimony in support of the GAF Program from stakeholders who participate in the commercial and charter halibut fisheries. The Council also received testimony from charter sector representatives expressing concern regarding the commercial sector's willingness to lease halibut IFQ to charter operators. They noted a variety of reasons for their concern, including tensions that exist between the participants in the commercial and charter sectors in Areas 2C and 3A, potentially insufficient halibut IFQ available for lease, potentially insufficient capital among smaller charter operations to lease IFQ, and uncertainty regarding the willingness of clients to pay for the opportunity to retain GAF. The Council also heard testimony from several commercial halibut QS holders indicating that they would be willing to lease halibut IFQ to the charter sector (see section 2.5.12 of the Analysis and the response to Comment 54). Finally, NMFS notes that charter businesses in Area 2C have expressed an interest in leasing GAF to augment the one-fish bag limit currently in place for guided anglers. Based on this information, the Council determined, and NMFS agrees, it is likely that some IFQ will be made available for lease to charter operators under the GAF program.

NMFS anticipates the Council will review the GAF program in the future to assess its effectiveness at providing anglers with additional opportunities for retaining halibut in the charter fisheries. This review likely will be based on data NMFS collects on transfers of IFQ to GAF and on returns of unused GAF to halibut IFQ holders. NMFS also anticipates that the Council will receive feedback from commercial and charter halibut fishery participants who use GAF. The Council may consider revisions to the GAF program based on its review of GAF use and on input from stakeholders.

Comment 41:

I support GAF. It is a first step towards a fair compensated market-based reallocation between sectors.

Response:

NMFS acknowledges the comment. See also response to Comment 7.

Comment 42:

The CSP is punitive as it forces recreational anglers to purchase additional halibut from quota already assigned to the commercial sector. It is not fair to require recreational anglers to buy the right to catch additional fish from the commercial sector.

Response:

Charter vessel anglers are not required to purchase GAF, nor is the GAF program punitive. Use of GAF is optional for charter vessel anglers who wish to retain more fish than allowed under the bag limit in effect for charter vessel anglers, up to the limit in place for unguided anglers. The GAF program is an authorized additional use of halibut IFQ that will provide IFQ holders, charter guides, and charter anglers more flexibility, while maintaining total harvests within the targets set by the IPHC. See also response to Comment 2, Comment 7, and Comment 40.

Comment 43:

Instead of GAF, why not just allocate more halibut to the charter sector?

Response:

The GAF provision was intended to provide charter vessel anglers additional harvest opportunities during years of low abundance when guided anglers are limited to fewer or smaller fish than unguided anglers under the CSP allocation of halibut to the charter sector (see response to Comment 7). The rationale for the specific allocation provided to the charter and commercial sectors is described in detail in the preamble to the proposed rule and summarized in the preamble for this final rule.

Comment 44:

Is GAF a fish or a fishing opportunity? A GAF will be sold if and only if a fish is landed; at that point it is a fish. Why would a charter operator sell a GAF if no fish was harvested? Why would a guided angler buy a GAF if no fish is landed?

Response:

A GAF is a fish. Regulations at § 300.61 of this final rule define GAF as halibut transferred within a year from an Area 2C or Area 3A IFQ permit holder to a GAF permit that is issued to a person holding a charter halibut permit for the corresponding IPHC regulatory area. A GAF permit authorizes a charter vessel angler to retain GAF in the IPHC regulatory area specified on a GAF permit during a charter vessel fishing trip authorized by the charter halibut permit. GAF are not debited from a GAF permit holder's account unless a halibut is caught, retained, marked, measured, recorded, and electronically reported as required by regulations at § 300.65(c)(5) and § 300.65(d).

NMFS agrees that the market-based nature of IFQ to GAF transfers makes it likely that some or all of the cost of obtaining GAF will be borne by the charter vessel anglers using GAF. The GAF permit holder decides how he or she would like to offer charter vessel anglers the opportunity to retain GAF. A charter fishing trip is an opportunity to catch fish, but not a guarantee that a certain number or size of fish will be caught, and anglers do not always catch their bag limit on every trip. The GAF permit holder and charter vessel anglers will be able to decide how to distribute the cost and opportunity for using GAF. Although some charter operators may offer GAF to an individual charter vessel angler at the time a halibut is caught, NMFS anticipates that some charter operators may choose to spread the cost of leasing GAF from IFQ holders across all charter vessel anglers who use their services. If this is the GAF permit holder's business model, then the cost of charter vessel fishing trip with that operator may increase for all anglers, including those who do not retain GAF. See also response to Comment 63.

Comment 45:

How much GAF will cost and will the cost vary among charter operators? What is the basis for GAF prices and will the price for GAF vary annually?

Response:

Section 2.5.12 of the Analysis notes that the number of GAF transactions and the prices for those transactions will be determined by the supply of and demand for GAF. Because the market price for GAF will be determined by the value of halibut in the directed commercial fishery and charter vessel anglers' willingness to pay higher prices for trips that allow greater harvest flexibility by using GAF, it is not possible to estimate the cost of GAF to charter vessel anglers in Area 2C or Area 3A. NMFS anticipates that because there are a number of different types of charter operations in Areas 2C and 3A, the demand for, and cost of, leasing IFQ as GAF will vary among charter operators. NMFS also anticipates that the cost of GAF to charter vessel anglers will vary annually because it will depend on a number of factors, including the supply of halibut IFQ for lease as GAF, the demand for GAF, the average weight of GAF used to convert pounds of IFQ to number of GAF, and the charter harvest management measures in place that year.

In determining whether to lease IFQ as GAF, most individual charter operations will need to consider whether anglers using its services are willing to pay increased prices for using GAF. Charter operations attracting anglers willing to pay an increased cost for the experience of harvesting more or larger fish will be more likely to utilize GAF. Those charter operations that do not attract such anglers will be less likely to participate in the GAF program. In the same way, charter vessel anglers will need to determine if the opportunity to harvest more or larger halibut is worth the increased cost.

Comment 46:

How much will it cost to lease GAF? How will CHP holders find IFQ to lease as GAF? Is it possible that some charter businesses will be discriminated against and denied the opportunity to lease GAF?

Response:

Section 2.5.12 of the Analysis describes that the lack of cost data associated with the commercial and charter operations and the difficulty of projecting GAF supply and demand limits the Council and NMFS' ability to provide detailed estimates of the quantity and lease price for transfers between IFQ and GAF. The Analysis provides a discussion of the factors affecting the supply of GAF and a qualitative assessment of which types of IFQ holders may be more likely to lease IFQ as GAF. An IFQ holder's willingness to lease IFQ as GAF could be affected by factors such as quantity and distribution of IFQ holdings across regulatory areas, costs associated with harvesting their IFQ holdings in the commercial fishery, relationships with participants in the charter sector, agreements with processors, or enjoyment derived from fishing. NMFS anticipates that each IFQ holder will employ his or her own criteria when determining whether to lease some or all of available IFQ to the charter sector.

NMFS expects that halibut IFQ will be available for lease as GAF to charter operators in a variety of ways. Some CHP holders hold or may be eligible to purchase their own halibut QS, which yields annual IFQ that they may transfer and use in the charter fishery. Transfers of IFQ to GAF may be agreed upon directly between halibut QS holders and CHP holders, or brokers who currently facilitate transfers of halibut IFQ and charter halibut permits may act as intermediaries in transactions. Brokers may also help willing QS holders find CHP holders, and vice-versa.

Given the market-based nature of the GAF program, the Council and NMFS cannot guarantee that a charter operator seeking to lease IFQ as GAF will be able to enter into an agreement with one or more IFQ holders to obtain the amount of GAF he or she would like to use. However, section 2.5.12 of the Analysis notes that a mutually beneficial agreement must be reached before a lease from IFQ to GAF will occur; therefore, the Council and NMFS believe that neither the charter operator nor the IFQ holder possesses sufficient market power to force the other into a lease agreement. As described in the response to Comment 7, the GAF program was not intended to provide a mechanism to replace reductions in the charter allocation relative to current or historical harvest levels. See also response to Comment 50.

Comment 47:

The uncertainty in how many GAF will be available each year will make it difficult for charter businesses to develop business and marketing plans.

Response:

NMFS agrees that there will be some uncertainty in how many GAF will be available for lease each year and how much demand there will be for GAF. Whether IFQ is leased to members of the charter sector depends on several factors. As discussed in the response to Comment 45 and Comment 46, these factors occur on both the demand side (CHP holders' ability to forecast angler

demand, the charter management measures in place for that year, and angler willingness to purchase GAF) and on the supply side (IFQ holders' willingness to lease their halibut IFQ holdings as GAF). Both the supply and demand sides are equally important, because a mutually beneficial agreement must be reached before a lease will occur. Additional factors affecting the supply of and demand for GAF are discussed in the Analysis in sections 2.5.12.2 and 2.5.12.3, respectively.

While NMFS acknowledges that there will be some uncertainty from year to year regarding the supply of and demand for GAF, annual charter management measures under the CSP will be established the beginning of the year and are not changed for the remainder of that fishing year. Therefore, CHP holders and halibut IFQ holders will know early in the fishing season if there is a need for charter operators to lease GAF to provide anglers with additional opportunities to harvest halibut in the charter fishery.

Comment 48:

Just as commercial halibut fishermen have invested in quota shares, charter halibut permit holders may invest in commercial halibut QS to offer their clients as GAF.

Response:

NMFS agrees that one way in which some charter halibut permit holders may control the cost of using GAF for charter vessel anglers is to purchase commercial QS and transfer the IFQ resulting from that QS for use as GAF. Some charter halibut permit holders already hold commercial halibut QS and could use this method for obtaining GAF. However, NMFS notes that some charter operators in Area 2C and Area 3A would still need to meet all requirements to be eligible to hold halibut QS. For example, regulations at § 679.41(d) generally specify that only persons with 150 days or more of experience working as an IFQ crewmember are eligible to hold halibut QS.

Comment 49:

Commercial fishermen are allowed to carry over to the following season up to 10 percent of their annual allocation. One way that commercial and charter operators could structure GAF contractual agreements is to allow this 10 percent to be contractually held in reserve for a charter operator to use as needed over the course of the season. Any unused portion will be automatically returned to the IFQ holder by NMFS at the end of the season, and any used portion will be paid for at an agreed upon rate.

Response:

NMFS acknowledges the comment and expects that commercial and charter operators will develop a variety of arrangements, possibly including the one described by this commenter, when negotiating contracts for the lease of IFQ as GAF. NMFS notes that there are commercial quota share holders who will likely be willing to lease IFQ as GAF. See also response to Comment 46.

Comment 50:

Current “hired skipper” and leasing arrangements in the IFQ fishery suggest that the likely GAF lease rate will be approximately 50 percent of the ex-vessel per pound value of the QS from which the IFQ is derived. Since the average size halibut in the charter fishery is 20 lb and the current average ex-vessel price is $4.50/lb, a charter operator could expect to pay approximately $45 per GAF.

Response:

NMFS acknowledges the comment. NMFS received numerous comments on the CSP proposed rule estimating that GAF will cost between $100 and $200, and expressing concerns that GAF will be cost prohibitive for many charter businesses and anglers. Predicting the specific cost for GAF in Area 2C or 3A is not possible as described in response to Comment 46. NMFS notes that a price closer to $45 per GAF could make GAF use more affordable and desirable for charter operators and charter vessel anglers.

Comment 51:

The GAF program conflicts with the prohibition on leasing in IFQ regulations and works against the IFQ Program's goal of having an owner-onboard fishery. The option to lease IFQ as GAF will encourage absentee IFQ holders in the commercial fleet.

Response:

The response to Comment 7 describes the Council's rationale for recommending the GAF program to provide a mechanism for transfer between the commercial and charter halibut sectors in Areas 2C and 3A. As discussed in the “D. GAF Transfer Restrictions” section of the preamble to the proposed rule, the Council intended for the GAF program to provide IFQ holders some flexibility in how they use their IFQ, with limitations. In recommending the restrictions on the amount of IFQ that an IFQ holder may transfer as GAF, the Council considered IFQ Program objectives to promote an owner-onboard fishery for certain types of halibut QS holdings. NMFS believes that the GAF transfer restrictions implemented by this final rule appropriately balance the Council's objective to provide the charter sector with access to additional halibut under a potentially constraining CSP allocation with its objectives for the IFQ Program.

Comment 52:

The charter fishery representatives who initially proposed the GAF program insisted that GAF be for lease only.

Response:

Section 1.6.8 of the Analysis describes that in developing the CSP, the Council also considered and rejected an alternative that would have allowed CHP holders to transfer (i.e., purchase) commercial halibut QS, rather than leasing IFQ, because the proposal was not supported by the charter halibut sector. As described in the response to Comment 40, the Council's Charter Halibut Stakeholder Committee recommended GAF as its preferred method for providing the charter sector with access to additional halibut under a potentially constraining CSP allocation. The final proposal from the committee to the Council only contained an annual transfer of IFQ (lease) option, not an option for charter operators to purchase QS for permanent use in the charter fishery. However, as noted in the response to Comment 48, charter operators who are eligible to receive QS by transfer may purchase QS for Areas 2C and 3A and use the resulting IFQ for GAF.

Comment 53:

Any transfer of IFQ from the commercial sector to the charter sector should be accommodated through an arrangement that allows the charter fleet to purchase QS, not lease, IFQ for use in a common pool to permanently supplement the baseline charter allocation.

Response:

The option for the charter sector to purchase quota share to augment the charter allocation was not among the alternatives considered by the Council. See response to Comment 52 and Comment 152.

Comment 54:

Some commercial operators in support of the GAF program would prefer that sector allocations be allowed to be transferred both ways. They note that no charter operator or angler will be forced to use GAF, and that their association has members who are willing to work with local charter operators to use the GAF program.

Response:

NMFS notes the support for the GAF program and willingness to participate by some commercial IFQ holders. As discussed in the response to Comment 40, NMFS anticipates the Council will review the GAF program in the future and may consider revising the program based on its use and on input from stakeholders.

Comment 55:

What measures will determine the success or failure of the GAF provision?

Response:

The Council and NMFS will review a range of factors such as amount of use, cost, and input from commercial and charter operators when reviewing the use of GAF and any potential revisions. The responses to Comment 45 and Comment 46 describe

that the quantity and cost of GAF used will depend on a number of factors that affect the supply of and demand for GAF. While the Council and NMFS cannot estimate how much GAF will be used in the charter halibut fisheries with available information, input from fishery participants to the Council during development of the CSP and in comments received on the CSP proposed rule indicate that some IFQ will be leased as GAF and used in the charter halibut fisheries.

Comment 56:

Does NMFS expect anglers who harvest smaller than average GAF to pay for those who harvest larger than average GAF?

Response:

The proposed rule for the CSP describes that NMFS issues halibut IFQ in pounds and will issue GAF in numbers of fish. The conversion factor from IFQ pounds to number of fish for GAF will be based on the average weight of GAF from the previous year as estimated from GAF length data reported to NMFS through the electronic GAF reporting system (see “F. GAF Reporting Requirements” section of the proposed rule and regulations at § 300.65(c)(5)(ii)(E)) implemented by this final rule. For example, if a charter permit holder requested, and NMFS approved, a transfer of 5 GAF and the conversion factor for that area was 20.7 lb (9.4 kg), then 104 lb (47.2 kg) of IFQ would be debited from the IFQ holder's account for that area as follows: 5 GAF × 20.7 lb = 103.5 lb (46.9 kg) and rounded up to 104 lb (47.2 kg).

NMFS acknowledges that the sizes of retained GAF will vary around the average weight estimate for GAF in each area. Section 2.5.12.1 of the analysis describes that charter vessel anglers who harvest GAF that are larger than the average GAF weight used to convert IFQ to GAF may benefit relative to anglers who harvest smaller than the average GAF weight. The Council and NMFS considered this information and determined that using the average weight of GAF from the previous year as reported to NMFS to convert IFQ pounds to number of GAF is consistent with the Council's objective to provide an effective mechanism for transferring halibut from the commercial to the charter sector. This approach minimizes changes to operating practices in each fishery and to the existing recordkeeping and reporting system for the IFQ Program.

The Council considered issuing GAF in pounds rather than fish, but CHP holders would then be limited by GAF transfer restrictions to different numbers of GAF based on their area, fishing practices, and results. Section 2.5.12.1 of the Analysis describes the effects of issuing GAF in pounds rather than in numbers of fish. In 2010 ADF&G estimated the average weight of sport caught halibut landed at the Prince of Wales Island port to be 14.8 lb, while sport caught halibut landed at the Glacier Bay port averaged 47.4 lb. If GAF were issued in pounds, a CHP operator in the Prince of Wales Island area would be eligible under GAF transfer restrictions to lease GAF to harvest 3.2 times as many fish as the person operating in Glacier Bay. Additionally, charter operators offer charter vessel anglers the opportunity to harvest a certain number of fish, not a certain poundage of fish. Issuing GAF in pounds would require charter operators wishing to lease IFQ as GAF to estimate the number of pounds of halibut to lease rather than the number of halibut, which could potentially be challenging to determine in advance. For these reasons, NMFS and the Council determined that numbers of fish was the more appropriate unit in which to issue GAF.

NMFS will not participate in price negotiations for GAF, as NMFS considers those negotiations to be private, voluntary, market-based transactions between charter operators who hold GAF and charter vessel anglers using their services. NFMS anticipates that charter operators could use different pricing methods to accommodate different sizes of retained GAF. Some operators may choose to charge anglers per GAF, and could adjust the price depending on the size of the GAF. Some charter operators may choose to spread the cost of leasing GAF from IFQ holders across all charter vessel anglers, particularly those operators affiliated with lodges that offer charter vessel fishing trips as part of an overall package of services.

Comment 57:

The CSP uses the previous year's estimate of GAF average weight to convert IFQ pounds to numbers of GAF. GAF harvest (in pounds) is counted toward the individual quota of the IFQ holder that leased the fish. The weight of each GAF harvested by charter clients can be estimated from length data reported in the electronic reporting system as described on page 39150 of the proposed rule. If the estimated average weight of GAF harvest exceeds or is less than the previous year's average weight used to convert IFQ to GAF, the actual harvest will represent an overage or underage of IFQ. Since the actual weight can be estimated, we suggest NMFS provide estimates of the actual weights of GAF to the IPHC for stock assessment purposes (e.g., accounting for annual removals).

Response:

NMFS agrees and will provide these data to the IPHC to incorporate into its annual stock assessments.

Comment 58:

In any given year, if the actual GAF poundage harvested exceeds the IFQ poundage converted to GAF, who pays for the excess harvest? In other words, how is GAF overharvest accounted for?

Response:

The factor for converting IFQ pounds to number of GAF is the average weight of GAF from the previous year reported by charter operators in the GAF electronic reporting system. NMFS anticipates that the estimated weight in pounds of all GAF retained and reported in the electronic reporting system will not vary significantly from the number of pounds converted from IFQ to GAF for that year and deducted from IFQ account holders because some GAF will be larger and some will be smaller than the average GAF weight used as the conversion factor. Nevertheless, as described in the response to Comment 57, NMFS intends to annually provide the IPHC with estimates of GAF weights for Area 2C and Area 3A based on reported GAF length. NMFS anticipates the IPHC will use these data in its stock assessment for the following year to account for any differences between converted GAF weight deducted from IFQ accounts and estimated GAF weight reported to NMFS in the previous year. Such differences will affect the halibut biomass estimate for the next year, but will not be explicitly added or subtracted from the next year's catch limits for either sector. This is the same approach the IPHC will use to account for charter harvests that exceed or are less than the charter sector's catch limits under the CSP (see response to Comment 21).

Comment 59:

“IFQ pounds” for halibut is defined as net weight, i.e., without gills and entrails, head-off, washed, and without ice and slime. It would make the CSP more consistent with other halibut regulations if the definition of “net weight” was included. In the description for the transfer between IFQ and GAF (page 39138 of the proposed rule) the text is somewhat confusing, as it states “the equivalent number of net pounds of halibut rounded up to the nearest whole net pound.”

Response:

No change was made from the proposed rule. “Net weight” is defined at § 679.2 to mean the weight of a halibut that is gutted, head-off, and washed or ice and slime deducted. The method of rounding net weights to the nearest whole pound results in the fewest conversion errors when GAF are

converted back to IFQ, as explained in the proposed rule and section 2.5.12.4 of the Analysis.

Comment 60:

What prevents someone who holds both commercial QS and a charter halibut permit (CHP) from transferring IFQ to GAF on his CHP and then selling GAF, which when harvested greatly exceed the average poundage used to create the GAF? The above example would amount to NMFS-sanctioned overharvest of the holder's IFQ. Where is the individual accountability in the above example?

Response:

NMFS expects that the average size of harvested GAF will be close to the average used for the conversion factor to convert from pounds of IFQ to number of GAF. The GAF conversion factor will be recalculated annually based on the average size of GAF retained and reported to NMFS during the previous season. Quota share holders who also hold CHPs will be subject to the same reporting requirements and transfer limits as other halibut QS and CHP holders. NMFS will report the lengths and estimated weights of GAF harvested to the IPHC so any differences between converted GAF weight deducted from IFQ accounts and estimated GAF weight reported to NMFS may be incorporated into the following year's stock assessment (see also response to Comment 57).

Comment 61:

The average weight of a charter-caught halibut in Area 3A was 15.2 lb in 2011. The average size in the Glacier Bay subarea of Area 3A was 35.9 lb. If GAF are created using the average fish size, it is much more likely that they will be used in subareas with larger than average fish sizes like Glacier Bay and Yakutat to maximize GAF “bang for the buck.”

Response:

According to the report cited by the commenter (

http://alaskafisheries.noaa.gov/npfmc/pdfdocuments/halibut/2c3a_adfg2011estimates0912.pdf

), of the 184,293 fish harvested by charter vessel anglers in Area 3A in 2011, only 601 of those fish (0.3 percent) were harvested in the Glacier Bay subarea. The Yakutat subarea is the subarea closest to Glacier Bay in Area 3A. Combining the Glacier Bay and Yakutat subareas only accounts for 2 percent of the total number of fish harvested in Area 3A. GAF may be used in these areas, but its use is likely limited given the relatively small amount of harvests in these areas. The Glacier Bay and Yakutat subareas are far removed from the main charter fishing communities of the Kenai Peninsula and Prince William Sound. It is unlikely that charter operators would travel hundreds of miles from the northern Gulf of Alaska to Glacier Bay or Yakutat to maximize the size of fish harvested for each GAF given the costs of fuel, time required for transit, and difficulty in obtaining clientele in those locations. Charter operators using GAF in Glacier Bay and Yakutat could benefit from the use of average weight in Area 3A when determining the amount of IFQ required for each GAF. The use of average weight by IPHC regulatory area for GAF could be reviewed by the Council and NMFS, and revisions could be incorporated in a future action, if warranted.

Comment 62:

A charter vessel angler should be able to buy as many GAF as he or she would like to catch if the angler is willing and able to pay for GAF.

Response:

See the response to Comment 64 for a description of the limits on GAF use for guided anglers. GAF is intended to allow CHP holders to provide charter vessel anglers with halibut harvest opportunities that are equivalent to, but not more than, those provided to unguided anglers (see section 2.5.12.7 of Analysis). In recommending GAF use limits, the Council balanced its objective to provide an opportunity for the charter halibut fisheries in Area 2C and Area 3A to increase fishing opportunities when the charter allocation may be constrained with its objective to stabilize the proportions of harvestable halibut available to the commercial and charter fisheries at all levels of halibut abundance.

NMFS notes that the Council's recommendation of GAF use limits for charter vessel anglers is also consistent with the Halibut Act requirement that allocations of fishing privileges must be carried out in such a manner that no particular individual, corporation, or other entity acquires an excessive share of halibut fishing privileges (Halibut Act, at 16 U.S.C. 773c(c)). A charter vessel angler may purchase GAF for use over several days if he or she wishes to retain multiple daily bag limits.

Comment 63:

When does a GAF become a sport caught fish, before or after it has been landed? Selling or purchasing sport caught fish is illegal.

Response:

Halibut IFQ becomes GAF when NMFS approves a transfer between an IFQ permit holder and a charter halibut permit holder. As described in the response to Comment 44, regulations at § 300.61 of this final rule define GAF as halibut transferred within a year from an Area 2C or Area 3A IFQ permit holder to a GAF permit that is issued to a person holding a charter halibut permit for the corresponding area. A GAF permit authorizes a charter vessel angler to retain GAF in the IPHC regulatory area specified on a GAF permit during a charter vessel fishing trip authorized by the charter halibut permit. When a GAF is retained by a charter vessel angler, it will be recorded in the saltwater charter logbook and on the GAF permit log as GAF harvested, but will not accrue toward charter harvest because GAF is a use of IFQ and has been deducted from the IFQ permit holder's account. However, because GAF is harvested in the charter halibut fishery, the charter vessel angler harvesting GAF must comply with all applicable sport fishing regulations. When a charter vessel angler retains GAF, the angler is not buying a sport-caught fish from the charter operator because it was never the charter operator's fish to sell. The charter vessel angler is allowed to retain GAF under authority of the charter halibut permit holder's GAF permit, as long as all applicable reporting and marking requirements are met (see regulations at § 300.65(c)(5) and § 300.65(d)). NMFS acknowledges that charter operators are likely to charge charter vessel anglers retaining GAF a fee in order to recover the costs of leasing GAF from halibut QS holders (see response to Comment 44). Any fee paid to the charter operator by the charter vessel angler represents purchase of a federally authorized privilege of retaining a sport-caught halibut in addition to that allowed under charter size or bag limit restrictions in place at the time. Current prohibitions on selling sport-caught fish are not modified by this final rule. Sale, trade, or barter of all sport-caught halibut by a charter vessel angler is prohibited under State of Alaska regulations and section 25(6) of the IPHC annual management measures.

Comment 64:

If I am fishing in an area that has a one-fish bag limit with a reverse slot limit (e.g., Area 2C), does the second fish have to meet the regulations of the one-fish bag limit, or can the second fish be of any size? If I am fishing in an area that has a limit for charter vessel anglers of two fish per day with a size limit on one of those fish, would GAF be required if the first fish caught was over the limit and the second fish was under the size limit? In this same scenario, what would prevent trading of fish on the deck of the charter vessel to circumvent restrictions on the second fish? And what is to stop anglers from swapping fish to make sure GAF provisions are not needed for any of the anglers on the boat?

Response:

As stated on page 39136 of the proposed rule, charter vessel anglers may use GAF to retain halibut up to the limit for unguided anglers when the

charter management measure in place would limit charter vessel anglers to a more restrictive harvest limit. In other words, a charter vessel angler may retain a halibut as GAF that exceeds the daily bag limit and length restrictions in place for charter anglers only to the extent that the angler's halibut retained under the charter halibut management measure plus halibut retained as GAF do not exceed daily bag limit and length restrictions imposed on unguided anglers. How GAF may be used depends on the charter management measures and the measures in place for unguided anglers.

In the first scenario above and assuming an unguided daily bag limit of two fish of any size, a charter vessel angler could keep one halibut under the reverse slot limit and use one GAF to keep a second halibut of any size, or could use two GAF to keep two halibut of any size in a day. In the second scenario, the angler would not need to use GAF. If the charter vessel angler wanted to keep two fish over the size limit, one GAF could be used. Table 5 of the proposed rule gives additional examples of potential GAF uses.

Trading fish among anglers on the deck of a charter vessel to circumvent bag limits and GAF use requirements would be a violation of IPHC annual management measures. Paragraph 25(3) states that “any halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the halibut” (78 FR 16423, March 15, 2013). Plainly stated, a fish belongs to the person who caught it and applies toward that person's daily bag limit.

Comment 65:

Suppose a charter operator buys a large vessel, stacks multiple CHPs on it, and buys GAF for resale to customers. With GAF assigned to individual CHPs, he could easily find himself holding plenty of GAF but unable to sell it because the angler wanting to buy the GAF is fishing on a stacked CHP with no associated GAF. How is this situation handled under the CSP? It would make sense to assign GAF to a CHP holder that can be used on any CHP the holder may control.

Response:

The comment refers to § 300.65(c)(5)(iii)(A)(

4

) of this final rule, which specifies that a GAF permit is assigned to only one CHP held by the GAF permit holder. Charter halibut permit holders requesting GAF will be required to specify the CHP to which the GAF permit would be assigned on the application for transfer between IFQ and GAF. The assignment between a GAF permit and a CHP could not be changed during the year. NMFS is implementing this requirement to facilitate enforcement and recordkeeping and reporting for GAF.

As described in the proposed rule for the CSP, GAF permit holders will be required to hold a sufficient number of GAF for charter vessel anglers to retain halibut in excess of the charter angler limit and up to limits in place for the unguided sport halibut fishery for that area. In other words, charter operators will be required to already possess the GAF prior to the fish being caught. GAF could not be obtained after the angler retained a fish. GAF permit holders who do not hold sufficient GAF to cover retained halibut by charter vessel anglers in excess of the CSP restriction may not allow anglers to retain those GAF. The charter operator will be required to have the GAF permit and the CHP to which it is assigned on board the vessel on which a charter vessel angler retains GAF, and to present the permits if requested by an authorized enforcement officer (see regulations at § 300.65(c)(5)(iv)(A) and (B) and § 300.65(c)(5)(iii)(A)(

5

)). NMFS believes that these requirements are necessary to enable enforcement personnel to verify that all charter anglers on board catching and retaining halibut are authorized to do so by the CHP and GAF permits on board the vessel.

Allowing CHP holders to use a GAF permit in conjunction with any CHP on board the vessel, as suggested by the commenter, could make it difficult for enforcement officers to verify that the CHP and GAF permits are valid and all anglers are authorized to retain the halibut included in their daily bag limit. This is particularly likely if multiple CHPs are used on the same vessel or if the vessel operator is not the CHP holder. NMFS also believes that requiring a GAF permit to be assigned to only one CHP held by the GAF permit holder will facilitate GAF recordkeeping and reporting for CHP and GAF permit holders. Because GAF permit holders must have sufficient GAF on their permit prior to the charter vessel fishing trip to cover GAF retained, assigning one GAF permit per CHP will assist the holder with GAF account tracking and reporting in the ADF&G saltwater charter logbook and in the GAF electronic reporting system (see regulations at § 300.65(d)(4)(ii)(B) and § 300.65(d)(4)(iii)). It will be up to the CHP holder to decide how best to distribute GAF and charter vessel anglers among permits to ensure that GAF is available when necessary.

Comment 66:

Why are GAF assigned to an individual charter halibut permit and not to the person who holds the CHP? How can someone who rents a CHP use GAF on the rented CHP?

Response:

GAF are assigned to an individual CHP and not the CHP holder because the CHP holder is not necessarily the guide on board the charter vessel using the CHP. A person may hold multiple CHPs that are used on more than one vessel. Just as a CHP holder may allow someone else to use their CHP on a charter vessel fishing trip, he or she may receive a transfer of IFQ as GAF and also let the person using the CHP use the GAF permit assigned to that CHP. See also response to Comment 65.

Comment 67:

GAF benefits larger charter operations who can amortize the expense of leased halibut over a large customer base to gain a competitive advantage over smaller operators whose small client base does not support such expenditure.

Response:

The Council recommended, and this final rule implements, GAF transfer limits (also called “use caps”) on the number of GAF that a CHP holder may receive as well as the amount of IFQ that a halibut QS holder may transfer as GAF. The Council recommended different GAF limits for CHPs with different numbers of angler endorsements to balance the GAF needs of different types of charter operations with its objective to maximize the opportunity for all charter operators to acquire GAF. Because holders of CHPs endorsed for more than six anglers are likely to be larger charter operations, the Council was concerned that these larger charter operations would have more financial resources to acquire GAF than smaller operations unless limits were established. These transfer limits are intended to prevent an entity from obtaining an excessive share of the GAF fishing privileges.

IFQ holders in Area 2C will be limited to transferring up to 1,500 lb (680.4 kg) or 10 percent, whichever is greater, of their initially issued annual halibut IFQ for use as GAF. In Area 3A, IFQ holders can transfer up to 1,500 lb or 15 percent, whichever is greater, of their initially issued annual halibut IFQ for use as GAF. Because IFQ holdings are generally larger in Area 3A than in Area 2C, IFQ holders in Area 3A will be able to transfer up to 15 percent of the IFQ as GAF. Restricting Area 3A IFQ holders to leasing up to 10 percent of their IFQ holdings could limit the amount of IFQ available for lease as GAF (section 2.5.12.2 of the Analysis). Allowing Area 3A IFQ holders to lease 15 percent of their IFQ holdings as GAF would provide Area 3A IFQ holders more flexibility in determining whether to lease IFQ as GAF and could provide

more GAF to the Area 3A charter halibut fishery.

Under the CSP no more than a total of 400 GAF will be assigned during one year to a GAF permit assigned to a charter halibut permit that is endorsed for six or fewer anglers. No more than a total of 600 GAF will be assigned during one year to a GAF permit assigned to a charter halibut permit endorsed for more than six anglers. A person who holds both halibut IFQ and a charter halibut permit and would like to transfer that IFQ to GAF will be subject to the same transfer restrictions. The Council recommended different GAF limits for charter halibut permits to balance the GAF needs of different types of charter operations with its objective to maximize the opportunity for all charter operators to acquire GAF. Because holders of charter halibut permits endorsed for more than six anglers are likely to be larger charter operations, the Council was concerned these larger charter operations would have more financial resources to acquire GAF than smaller operations unless a limit was placed on the number of GAF that could be assigned to a charter halibut permit. NMFS agrees that the limit for assigning GAF to charter halibut permits accommodates the GAF needs of different charter operation types and promotes the Council's objective to offer all charter businesses the opportunity to lease IFQ as GAF.

Finally, as noted in Comment 68, smaller charter operations with fewer angler endorsements are actually entitled to more GAF per angler endorsement than larger operations with more angler endorsements per CHP.

Comment 68:

The limits on GAF transfers discriminate against larger charter operations with more angler endorsements. Whereas a CHP endorsed for six anglers may lease up to 400 GAF in a season (67 GAF per angler endorsement), a CHP endorsed for 12 anglers is limited to only 600 GAF (50 GAF per angler endorsement). It would be fairer to limit CHP holders to a fixed number of GAF per angler endorsement.

Response:

See response to Comment 67. The Council chose GAF transfer limits to prevent any business from obtaining an excessive share of GAF fishing privileges and to maximize the opportunity for all charter operations to acquire GAF. Revisions to these GAF transfer limits would need to be approved by the Council after the GAF program has been implemented.

Comment 69:

How does a charter angler know that the charter guide is authorized to allow anglers to retain GAF? If the guide does not have GAF, and a charter angler retains a fish as GAF, who would be held responsible?

Response:

The charter vessel guide and the charter vessel angler are both responsible for ensuring that sufficient GAF are available on the GAF permit for harvest. Current regulations at § 300.66(b) provide that it is unlawful for any person to fish for halibut except in accordance with the catch sharing plans and domestic management measures implemented under §§ 300.63, 300.65, and 300.67. This applies to “any” person, including a charter vessel angler. The GAF use restrictions at § 300.65(c)(5)(iv)(F) in the final rule state, “the charter vessel guide must ensure that each charter vessel angler complies with (c)(5)(iv)(A) through (E) of this section.” Paragraph § 300.65(c)(5)(iv)(B) specifies that the number of GAF retained on board a vessel cannot exceed the number of unharvested GAF in the GAF permit holder's GAF account at the time of harvest. The charter vessel guide is also responsible for ensuring that clients do not exceed the sport fishing daily bag limit in effect for unguided anglers or the daily possession limits, among other requirements. GAF use restrictions and GAF reporting requirements are described in detail in the preamble to the proposed rule under the section entitled “IV. Guided Angler Fish (GAF).”

Comment 70:

How will NMFS track transfers of IFQ and GAF and what will happen to unused GAF?

Response:

NMFS described in detail in the preamble to the proposed rule under the section entitled “IV. Guided Angler Fish (GAF)” how transfers of IFQ and GAF will be tracked. In summary, the system currently in place for tracking halibut IFQ transfers will be modified to include GAF. Voluntary and automatic returns of GAF to IFQ were also explained in the proposed rule. Unused GAF may be voluntarily returned to the IFQ holder in August each year, or it will be automatically returned 15 days before the end of the commercial halibut fishing season (see regulations at § 300.65(c)(5)(i)(C) and § 300.65(c)(5)(ii)(B)(

5

)(

i

)).

Comment 71:

How will GAF be monitored? What checks and balances will be in place to insure the rules are followed? Will auditors be hired to oversee the GAF program? Who is going to do the GAF enforcement? Where in the analysis can we find estimates of the cost of GAF enforcement? Are funds budgeted for GAF enforcement?

Response:

A detailed description of how GAF will be monitored and the checks and balances that will be put in place to allow adequate enforcement was given in the preamble to the proposed rule under the section entitled “IV. Guided Angler Fish (GAF)” and is not repeated here.

As stated in section 2.5.12.2 of the Analysis, it is not possible to predict the number of GAF that will be made available for lease each year; therefore, it is difficult to predict how much GAF administration and enforcement will cost. NMFS does not anticipate needing to hire additional staff to administer and enforce the GAF program. NMFS Restricted Access Management Program will administer the GAF program; handling transfers of IFQ, issuing permits, and managing the electronic data submitted by GAF permit holders. The NOAA Office of Law Enforcement will be primarily responsible for enforcing the GAF program. Funds are not explicitly budgeted for GAF administration and enforcement, but costs incurred by NMFS related to the GAF program will be subject to cost recovery for the halibut and sablefish IFQ Program, as described on page 39143 of the proposed rule and in regulations at § 679.45.

Because GAF is a use of IFQ, the existing reporting system for the Halibut IFQ Program administered by NMFS Restricted Access Management Program will be modified to allow tracking of IFQ transfers and reporting of GAF. There are some costs associated with developing the regulations to implement and enforce GAF and the software needed to issue GAF permits and electronically report GAF. These costs will be recovered through IFQ cost recovery fees, i.e., fees assessed and collected on IFQ equivalent pounds harvested and paid by the IFQ holder. The fee percentage has rarely exceeded 2 percent and may not exceed 3 percent of the ex-vessel value of halibut landings. Additional information about cost recovery for GAF was given in the preamble to the proposed rule in the section entitled, “G. Cost Recovery for GAF.”

Comment 72:

Areas 2C and 3A are adjacent to one another at the south end of Alaskan IPHC regulatory areas. Why should halibut and sablefish QS holders in areas west of 2C and 3A pay for GAF enforcement if they are never going to receive any benefit from it? Can NMFS separately track GAF enforcement costs?

Response:

Section 2.6.1.2 of the Analysis describes how NMFS will incorporate GAF into the existing cost recovery program for the halibut and sablefish IFQ fisheries. Under the current program, IFQ permit holders incur a cost recovery fee liability for every pound of IFQ halibut and sablefish that is landed under his or her

IFQ permit(s). This final rule implements regulations at § 679.45 specifying that an IFQ permit holder is responsible for cost recovery fees for landings of his or her IFQ halibut and sablefish, including any halibut landed as GAF that are derived from his or her IFQ accounts. The costs of administering and enforcing GAF that will be recoverable by NMFS were discussed in the response to Comment 71 and in the proposed rule for the CSP. For each IFQ permit, NMFS will determine the dollar amount of the fee due by multiplying the annual IFQ fee percentage (3 percent or less) by the value of all landed IFQ and GAF derived from the permit holder's IFQ permit(s). If the permit holder has more than one IFQ permit, the total amounts of each permit are summed to determine his or her total cost recovery fee.

The cost recovery fee is paid by both halibut and sablefish IFQ permit holders. The structure of the IFQ cost recovery program does not facilitate applying different fee percentages to IFQ holders in different areas, nor does it allow halibut and sablefish IFQ permit holders to be charged different fee percentages. Any increase in the cost recovery fees from implementation of the GAF program will be borne by all halibut and sablefish IFQ permit holders.

Halibut and sablefish IFQ permit holders pay the same IFQ fee percentage because typically halibut and sablefish are harvested by the same vessels and IFQ permit holders. NMFS does not divide costs of administering and enforcing the IFQ Program at a species or area level. For example, NMFS does not track the time spent answering questions about the IFQ Program from people holding Area 2C QS, versus people holding Area 3B QS. Establishing separate costs for halibut and sablefish IFQ holders for each area and species would result in higher overall costs for all IFQ holders because it would require more costly, inefficient, and administratively burdensome tracking and monitoring provisions. Following implementation of the GAF program, NMFS will calculate the overall enforcement and management costs of the IFQ and GAF programs combined, but will not differentiate costs by species or area.

As discussed throughout the Analysis and in the response to Comment 1, NMFS expects that the CSP will benefit halibut IFQ permit holders in Areas 2C and 3A by stabilizing the proportions of harvestable halibut available to the commercial and charter fisheries at all levels of halibut abundance and base both fishery allocations on the annual CCL. Halibut IFQ permit holders in Areas 2C and 3A will also have the opportunity to lease halibut IFQ as GAF to CHP holders. While the Council and NMFS cannot project how much IFQ will be leased by the charter sector, the ability to lease IFQ as GAF to CHP holders is expected to benefit IFQ holders in those areas, by allowing them additional flexibility when developing their annual harvest strategies.

NMFS acknowledges that QS halibut holders in areas west of Areas 2C and 3A (Areas 3B and 4) and sablefish QS holders will realize an incremental increase in cost recovery fees following implementation of the GAF program, but will not benefit from leasing IFQ to the charter sector. NMFS anticipates that the cost recovery fee for these QS holders will increase by a relatively small amount because the additional costs of administering and enforcing GAF are expected to be a relatively small portion of the total costs to NMFS of administering and enforcing the IFQ and GAF programs. NMFS received no comments from halibut QS holders in Areas 3B and 4 or sablefish QS holders opposing NMFS' proposed method for recovering fees associated with administering and enforcing GAF.

Comment 73:

Why should any quota share holder who does not rent out GAF pay for GAF enforcement? At year's end NMFS will know exactly which QS holders leased GAF and how much it cost to enforce GAF. Why not require the QS holders who rent GAF pay for its enforcement?

Response:

As described in the response to Comment 72, NMFS does not expect a substantial increase in fees to QS holders as a result of the GAF program. The method of assessing cost recovery fees proposed by the commenter would require a substantial change to the NMFS' current method of tracking management and enforcement costs for the IFQ Program and would result in higher cost recovery fees for QS holders than the method implemented by this final rule. Additionally, NMFS did not receive comments from QS holders in opposition to NMFS' proposed method for incorporating GAF into the existing cost recovery program for the IFQ fisheries. See Comment 71 for a description of how fees are tracked and assessed for the IFQ Program.

Comment 74:

On page 39142 of the proposed rule, in the section describing GAF reporting requirements, NMFS notes that the Council recommended that GAF permit holders be required to allow ADF&G and IPHC sampling personnel access to landed halibut on private property for scientific sampling. The IPHC supports the intent of sampling GAF at all locations, because of the strong likelihood that GAF will have a different size distribution than the non-GAF harvest, and scientific sampling is the best method to collect those data. The proposed rule preamble notes that the impacts of requiring such access are unknown and that it is not currently being proposed. The IPHC staff encourages an expedient resolution of the issue and the inclusion of the necessary access provisions, so as to have an acceptable vehicle for collecting size distribution data on the exchange of halibut between the sectors.

Response:

NMFS acknowledges the comment. NMFS is still considering how to best implement the scientific sampling aspect of the CSP while providing the public with predictability regarding the scope of inspections by sampling personnel. NMFS anticipates proposing this requirement in a separ

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