# Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE9-10337 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 6, 2009 - **Citation:** 74 FR 21194 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 0808061071-9666-02] RIN 0648-AX17 Pacific Halibut Fisheries; Guided Sport Charter Vessel Fishery for Halibut AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS implements regulations to limit the harvest of Pacific halibut by guided sport charter vessel anglers in International Pacific Halibut Commission (IPHC) Regulatory Area 2C (Area 2C) of Southeast Alaska to one halibut per day. This action is necessary to reduce the halibut harvest in the guided sport charter vessel (guided) sector. The intended effect of this action is to manage the harvest of halibut in Area 2C consistent with an allocation strategy recommended by the North Pacific Fishery Management Council for the guided fishery and the commercial fishery. This final rule implements three restrictions for the guided fishery for halibut in Area 2C: a one-fish daily bag limit, no harvest by the charter vessel guide and crew, and a line limit equal to the number of charter vessel anglers onboard, not to exceed six lines. DATES: Effective June 5, 2009. ADDRESSES: Copies of the Environmental Assessment (EA), Regulatory Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) prepared for this action may be obtained from NMFS Alaska Region, P.O. Box 21668, Juneau, Alaska 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov. Written comments regarding the burden-hour estimates or other aspects of the collection of information requirements contained in this rule may be submitted to NMFS at the above address, and by e-mail to David_Rostker@omb.eop.gov or by fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Sue Salveson or Jay Ginter, 907-586-7228. SUPPLEMENTARY INFORMATION: The IPHC and NMFS manage fishing for Pacific halibut ( Hippoglossus stenolepis ) through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention). The IPHC's regulations are subject to acceptance by the Secretary of State with concurrence by the Secretary of Commerce (Secretary). After acceptance by the Secretaries of State and Commerce, the IPHC regulations are published in the Federal Register as annual management measures pursuant to 50 CFR 300.62. The annual management measures for 2009 were published on March 19, 2009 (74 FR 11681). The Halibut Act also provides the North Pacific Fishery Management Council (Council) with authority to recommend regulations to the Secretary to allocate harvesting privileges among U.S. fishermen. The Council, under 16 U.S.C. 773c(c), may develop regulations applicable to U.S. nationals or vessels, which are in addition to, and not in conflict with, regulations adopted by the IPHC. Regulations developed by the Council shall be implemented only with the approval of the Secretary, and must meet criteria outlined in section 773c(c). The Secretary, under 16 U.S.C. 773c(a) and (b) has general responsibility to carry out the Convention and Halibut Act. According to section 773c(b), In fulfilling this responsibility, the Secretary shall, in consultation with the Secretary of the department in which the Coast Guard is operating, adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and [the Halibut Act]. The Secretary's authority to take action under the Halibut Act has been delegated to NMFS. NMFS takes this action under section 773c(b) to adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act. This action implements, among other measures, a one-halibut daily bag limit on charter vessel anglers in IPHC Area 2C. This bag limit originally was recommended by the Council in June 2007 and implemented by NMFS by final rule on May 28, 2008, with an effective date of June 1, 2008 (73 FR 30504). The June 1, 2008 rule was withdrawn following a legal challenge as described in the preamble to the proposed rule for this action published on December 22, 2008 (73 FR 78276). Background and Need for Action The respective roles of the IPHC and the Council in managing the commercial, sport and subsistence fisheries for halibut are described in the preamble to the proposed rule for this action (73 FR 78276, December 22, 2008). Each year, the IPHC establishes an annual total Constant Exploitation Yield (Total CEY) for Pacific halibut based on the most recent estimates of the overall halibut biomass. The IPHC then subtracts estimates of all noncommercial removals (sport, subsistence, bycatch, and wastage) from the Total CEY. The remainder, after the noncommercial removals are subtracted, is the Fishery CEY for an area's directed commercial fishery. Any increases in non-commercial removals of halibut will necessarily decrease the portion of the Total CEY available as Fishery CEY for use by the commercial sector. The IPHC annually sets a catch limit for the commercial longline fishery in each regulatory area in and off Alaska that is based on the Fishery CEY but not necessarily limited to the Fishery CEY. In 2003, NMFS approved and established (at 50 CFR 300.65(c)(1)) the Council's recommended guideline harvest level (GHL) policy to serve as a benchmark for monitoring the charter vessel fishery's harvests of Pacific halibut. The GHL does not limit harvests by charter vessel anglers, however. Subsequent regulatory action, such as this action, is necessary to control the charter vessel fishery's harvests to the GHL. Harvests by charter vessel anglers exceeded the GHL in Area 2C each year from 2004 to 2007, and the best available estimates indicate that the 2008 GHL also was exceeded (Table 1 and Figure 1 of this preamble). Harvests of halibut by the charter sector above its GHL reduce the Fishery CEY. By reducing the amount of fish available to the commercial sector, the charter harvests create an allocation concern. Charter removals should be close to the GHL or the methodology used by the IPHC to determine the Fishery CEY is undermined and results in a de facto reallocation from the commercial sector in subsequent years. Charter vessel harvests in excess of the GHL also create a conservation concern by compromising the overall harvest strategy developed by the IPHC to conserve the halibut resource. The Total CEY and the Fishery CEY have decreased each year since 2004 reflecting declines in the estimated halibut biomass. As the Total CEY decreases, harvests of halibut should decrease to help conserve the resource. Hence, the GHL is linked to the Total CEY so that the GHL decreases in a stepwise fashion as the Total CEY decreases. Despite a decrease in Total CEY and the GHL in recent years, charter vessel harvests have remained high and in excess of the GHL. As conservation of the halibut resource is the overarching goal of the IPHC, the magnitude of charter vessel harvests over the GHL in Area 2C has raised concern that such overharvesting by the charter sector poses a conservation risk, with the potential to undermine the IPHC's conservation and management goals for the overall halibut stock. Therefore, restraining charter sector harvests to approximately the GHL would contribute to the conservation of the halibut resource. Objective of This Action As indicated in the proposed rule for this action (73 FR 78276, December 22, 2008), NMFS is implementing a one-halibut daily bag limit in Area 2C to give effect to the Council's intent to keep the harvest of charter vessel anglers to approximately the GHL. In the years 2003 through 2007, the GHL was 1,432,000 lbs (649.5 mt). In 2008, the GHL was reduced to 931,000 lbs (422.3 mt), and in 2009, the GHL was further reduced to 788,000 lbs (357.4 mt). Harvests by charter vessel anglers were below the GHL in 2003 and above the GHL in 2004 through 2008. Table 1 provides the GHL for each year, the specific amounts of charter vessel angler harvest, and the percentages of those amounts compared to the GHL. Figure 1 provides a graphical representation of the GHL and the specific amounts harvested. Table 7 in the analysis (see ADDRESSES ) shows that implementation of a one-halibut daily bag limit would reduce charter vessel angler catch to a range of 1,495,000 lbs (678.1 mt) to 602,000 lbs (310.7 mt), depending on various average weight scenarios and assumptions about reductions in demand. NMFS determined that the one-halibut daily bag limit was the best alternative to bring charter vessel angler harvest close to the 931,000 lb (422.3 mt) level, after comparing it with other options and reviewing the range of potential harvests under the one-halibut daily bag limit based on various weight scenarios and demand reduction assumptions. Taking this action is consistent with the action proposed at 73 FR 78276. Also, it will bring the harvest of halibut by charter vessel anglers in Area 2C closer to the 788,000 lb (357.4 mt) level than will the status quo, consistent with the Council's intent. From 2003 to 2007, the GHL for Area 2C was 1,432,000 lbs (649.6 mt). In 2008, the IPHC reduced the Total CEY to 6,500,000 lbs (2,948.4 mt) from the 2007 Total CEY of 10,800,000 lbs (4,899.0 mt). This was a reduction of 4,300,000 lbs (1,950.5 mt) from the 2007 Total CEY. The reduction in the Total CEY triggered a reduction of the GHL for Area 2C from 1,432,000 lbs (649.6 mt) to 931,000 lbs (422.3 mt) for 2008. In 2009, the IPHC again reduced the Total CEY to 5,570,000 lbs (2,526.5 mt), which again triggered a reduction of the Area 2C GHL from 931,000 lbs (422.3 mt) to 788,000 lbs (357.4 mt) for 2009. As shown in Table 1 and Figure 1, the average charter vessel angler harvest in Area 2C for the four years 2004 through 2007 was 1,856,000 lbs (841.9 mt). Table 1—Guided and Unguided Sport Harvest by Year in Area 2C Year GHL (million pounds) Unguided sport harvest (million pounds) Charter harvest (million pounds) Total sport harvest (million pounds) Charter harvest as percentage of GHL Charter harvest as percentage of total sport harvest 2002 n/a 0.814 1.275 2.089 n/a 61.0 2003 1.432 0.846 1.412 2.258 98.6 62.5 2004 1.432 1.187 1.750 2.937 122.2 59.6 2005 1.432 0.845 1.952 2.797 136.3 69.8 2006 1.432 0.723 1.804 2.527 126.0 71.4 2007 1.432 1.131 1.918 3.049 133.9 62.9 2008 0.931 n/a * 1.914 n/a * 205.6 n/a 2009 0.788 n/a n/a n/a n/a n/a n/a = not available. * Harvest estimates are the best available. ER06MY09.072 NMFS proposed this action on December 22, 2008 (73 FR 78276). Public comments were invited on the proposed rule for a period of 30 days ending on January 21, 2009. NMFS received 179 public submissions containing 141 unique comments. These comments are grouped into topical areas, summarized, and responded to below. Comments and Responses Conservation Concerns Comment 1: The proposed rule is an allocation measure and does not have a conservation objective. Response: This action addresses conservation of the halibut resource by constraining overall harvest to meet yield. In the presence of multiple user groups, conservation and allocation cannot be separated. Instead conservation objectives are advanced by conservation-sensitive allocation procedures. By reducing harvest in the Area 2C charter vessel fishery more than it would be without this rule, the fleet can contribute to achievement of the overall target exploitation rate for halibut in Area 2C and bring the charter vessel fishery closer to its GHL in this area. In recent years, the Total CEY for Area 2C halibut has been declining. In response, it is important that the harvests of the principal user groups also decline to control the yield from the fisheries for conservation purposes. In the evaluation of these fisheries, different mechanisms have been created to limit the harvests of different user groups. Some user groups, such as subsistence and unguided sport users, are not currently subject to measures designed to control aggregate harvests. A major user group, the commercial setline fishery, has a strictly managed annual catch limit, however. This catch limit is set by the IPHC based on the Fishery CEY and distributed to the commercial harvesters through the individual fishing quota (IFQ) system. The commercial catch limit has been cut by just over 50 percent between 2005 and 2009. Harvest controls also have been created for the guided component of the sport fishery. This operates through the Council and Secretarial GHL system and regulatory measures implemented to limit guided harvests to the GHL. The guided sport fishery has exceeded its GHL since 2004 and the best available harvest estimates in 2008 indicate that the fishery exceeded its GHL 100 percent. A size limit on one of the two halibut in the bag limit in 2007 did not substantially constrain the charter vessel angler harvest in 2007. To control harvest to approximately the GHL in 2009, NMFS is implementing a one-halibut daily bag limit. Comment 2: IPHC statements demonstrate there is no conservation concern. In 2008, the IPHC said the halibut stocks in Area 2C are “well above a level of concern” and there is no cause for “undue alarm.” The IPHC has projected increases in the available harvestable biomass over the next 10 years. The IPHC has stated the proposed alternatives are not expected to have a significant impact on the halibut stocks or affect the overall harvest determined by the IPHC. Response: The statements attributed to the IPHC in the first sentence are not presented in context. The comment concerning “well above a level of concern” was made on page 83 of the IPHC 2008 Annual Meeting Bluebook and referred to the “coastwide” biomass of halibut, not the biomass of halibut in Area 2C. The complete statement was: “The coastwide assessment indicates a declining spawning biomass but one that is still well above a level of concern or anything close to a historic minimum.” The second statement concerning no cause for “undue alarm” is also taken out of context. The complete statement is on page 84 of the IPHC 2008 Annual Meeting Bluebook and states, “Taken together, the decline in exploitable biomass in Area 2 is understandable and is not cause for undue alarm. However, under a constant exploitation harvest strategy, removals by the fishery must come down as the biomass declines. Our present view of Area 2 is that harvest rates have been much higher than the target harvest rate of 0.20 over the past decade.” The coastwide biomass of halibut is projected to increase, as the comment notes, but only if harvests are restrained within the target harvest rates of 0.20 for Areas 2 and 3, and 0.15 for Area 4. Such projections do not incorporate the much higher harvests taken in Area 2 over the past decade. The statement that the proposed alternatives are not expected to have a significant impact on the halibut stocks or affect the overall harvest determined by the IPHC was not made by the IPHC. That comment appears to be based on language in the executive summary of the analysis (see ADDRESSES ) supporting the proposed rule. The commenter's statement about a lack of significant impact on halibut stocks correctly characterizes the conclusions of the analysis. However, the statement about not affecting the overall harvest does not. The analysis indicated that harvest rates might be exceeded in the short run, but that the IPHC had the ability to offset these by reduced catch limits in the longer term. See response to Comment 7 for further discussion of this issue. The executive summary of the analysis has been revised to more accurately reflect the conclusions of the analysis. Comment 3: The IPHC's action in basing the 2008 and 2009 commercial catch limits on the GHL, rather than on a scientific projection of guided harvests in the coming year is evidence that there is no conservation concern. In 2008 and 2009, the IPHC deviated from its past approach to estimating guided sport harvests for the coming year, and based its estimates on the GHL. Because the GHL is likely to be smaller than actual harvests, this tends to increase the IPHC's Fishery Constant Exploitation Yield (Fishery CEY), on which the longline fishery's catch limit is based. The IPHC essentially gave Area 2C longline IFQ holders millions of additional pounds of halibut through its manipulation of the Fishery CEY formula by using the much lower charter halibut GHL number rather than the best available estimate of charter catch. Response: Through 2007, the IPHC made its allocation decisions using a formula that deducted estimated non-commercial user harvests for the year, including the guided sport sector harvests, from an overall Total CEY. The residual (the Fishery CEY) then formed the basis for determining the amount of halibut to allocate to the commercial longline fishermen as a catch limit. The catch limit could be greater than or less than the residual, depending on whether the stock was increasing or decreasing and on the speed with which the IPHC proposed to adjust the catch limit to this residual. In 2008, the IPHC used the GHL to project charter vessel angler harvests, following a commitment by NMFS to implement a one-fish bag limit for the 2008 Area 2C charter fishery. NMFS issued a final rule implementing the one-fish bag limit, but that rule was enjoined by a court order and was subsequently withdrawn. In 2009, the IPHC, assuming that NMFS would implement management measures to limit harvest to approximately the GHL, again used the GHL to project the guided sport harvest. At its 2009 Annual Meeting, the IPHC stated “* * *national parties are cautioned that any departure from these assumed levels of removal by the recreational sector will compromise achievement of IPHC harvest targets for 2009” (IPHC 2009 Annual Meeting Bluebook page 138). The IPHC use of the GHL as the assumed level of removal for the guided fishery reflects the Council's and NMFS' intent to limit the guided sport fishery harvest of halibut to a level consistent with GHL trends. The concept that using the GHL rather than actual halibut harvests increases the amount of fish available to commercial fishermen is misleading. The correct context of this result is that when charter vessel harvests are close to the GHL, the commercial fishery is not penalized through a reduction caused by charter vessel harvests in excess of the GHL. This issue is further discussed in the response to Comment 9. Comment 4: The IPHC's use of its “Slow Up/Fast Down” (SUFD) policy is evidence that there is no conservation concern. One commenter notes that in the last four years through its SUFD policy the IPHC has intentionally exceeded the Fishery CEY to the direct benefit of the longline fleet by 300,000 lbs in 2006, 900,000 lbs in 2007, and 2,300,000 lbs in 2008; and has approved another 2,210,000 lbs in 2009. The total excess over the Fishery CEY over this period exceeds 5,680,000 lbs. How can the IPHC and NMFS express a conservation concern with a charter vessel catch exceeding a non-binding GHL by 500,000 lbs, while at the same time promote harvest by the longline fleet in excess of its Fishery CEY by more than 2,000,000 lbs? If this level of overage is not considered a conservation issue, how can the 1,400,000 lbs allocated to the recreational fishery be considered a conservation issue? Response: The SUFD policy is an integral part of the IPHC's management regime. If the Fishery CEY is bigger than the previous year's catch limit, then the IPHC staff's recommended catch limit increases by only 33 percent of the difference. If the Fishery CEY is less than the previous year's catch limit, the recommended catch limit reduction is limited to 50 percent of the difference, as illustrated in Figure 2. The commercial catch limit increases and decreases with changes in biomass, even with a static GHL, whereas changes to the charter sector's GHL occur in a stepwise manner only when specific Fishery CEY levels are established by the IPHC (see 50 CFR 300.65(c)(1)). ER06MY09.073 The SUFD component of the IPHC's management regime was not designed to advantage the commercial sector. It is designed to ameliorate the impacts of large changes in biomass. The IPHC's management decisions on annual catch limits are based on the underlying stock assessment and the application of its harvest management policies to the identified biomass levels in that assessment. Accordingly, the Fishery CEY levels of the assessment are only one component of the process to determine catch limits and conservation targets. The Fishery CEY levels are further modified by harvest policy considerations (e.g., the SUFD harvest control rule) in deciding on final catch limits. For regulatory areas with Catch Sharing Plans, all directed fisheries are affected by these additional policy considerations, but this is not the case for GHL-governed fisheries in the absence of a Catch Sharing Plan. Notably, the Council's proposed Catch Sharing Plan for Areas 2C and 3A charter vessel fisheries could bring the charter fisheries under such policy adjustments. Also see responses to Comments 10 and 111. The Fishery CEY is only one component of the IPHC's harvest strategy. The overall harvest rate and the harvest control rules, such as SUFD, also are part of the harvest strategy. The IPHC establishes its annual conservation targets by considering the underlying stock assessment, the harvest rate, and the harvest control rules. The IPHC staff has evaluated the impacts of the harvest control rules and the application of these rules to establish annual conservation limits to ensure that the stock is not compromised by their application. This approach has been endorsed by the IPHC. The important part of this approach is that it is based on the achievement of the identified conservation targets. If these targets are exceeded, the length of time that the stock is projected to be below threshold reference points increases. This creates a conservation concern and requires reductions in the harvest rate. In the case of regulatory areas with Catch Sharing Plans, such concerns have not existed because the conservation targets for those directed fisheries have not been exceeded. The IPHC's mandate under the Convention requires that it enact measures to conserve halibut stocks. The IPHC therefore has taken strong actions to decrease the catch limits for Area 2C in order to lower the realized harvest rate on the exploitable biomass. Catch limits adopted by the IPHC for Area 2C over the 2005 to 2009 period have decreased by 54 percent. Despite the establishment of the GHL for Area 2C guided sport fishery, the benefits of protecting the stock biomass have not been realized by the lack of sufficient restrictions on the guided sport fishery. The 2009 commercial catch limit exceeds the Fishery CEY by about 2,300,000 lbs, while the best available harvest information indicates the charter vessel fishery exceeded the 2008 GHL by almost one million pounds. Overages of this magnitude raise conservation concerns. The IPHC, the Council, and NMFS, have been attempting to address each fishery within the regulatory structure created for it. The Fishery CEY and the GHL are different concepts, and different mechanisms are available for setting them and for reducing catches to them. The IPHC reduced the catch limit by 54 percent between 2005 and 2009. If the Fishery CEY remains low, the catch limit would continue to decrease in coming years until it became equal to the Fishery CEY. The Council and NMFS tried, with the 32-inch size limit in 2007, and with a one-fish daily bag limit in 2008, to reduce charter vessel harvests to approximately the GHL. The present action imposing a one-fish daily bag limit is one part of the effort to reduce overall harvests. NMFS notes that the measured response to changing stock conditions incorporated in the SUFD policy is similar to the way the charter vessel fishery has been managed in practice. The GHL allows for moderate reductions in Total CEY without triggering harvest reductions for the charter vessel fishery. Comment 5: The IPHC Commissioners increased the allocation to the commercial sector beyond the amount recommended by IPHC staff by reducing the recommended commercial allocations for other regulatory areas to increase the allocations for all of Area 2, including Area 2C. This is evidence that there is no conservation concern. Response: Biological issues in different management areas are related since there is a single coastwide stock of halibut. However, IPHC determinations about Area 2C commercial catch limits were made independently of determinations about commercial catch limits in other areas. The IPHC staff recommended commercial catch limit for Area 2C for 2009 was 4,540,000 lbs (2,059.3 mt) and the IPHC adopted a catch limit of 5,020,000 lbs (2,277.0 mt) a difference of 480,000 lbs (217.7 mt). The staff recommendation was based on the assessment and application of harvest control rules as described in the response to Comment 4. The IPHC's adoption of the 5,020,000 lbs (2,277.0 mt) commercial catch limit was a reduction of 1,190,000 lbs (539.8 mt or 19 percent) from the 2008 commercial catch limit for Area 2C. By adopting a catch limit that is higher than its staff's recommendation but lower than last year's catch limit, the IPHC was choosing a more gradual reduction than that proposed by the staff. Comment 6: The IPHC decision to shift from a closed area assessment model to the coastwide model is responsible for a decrease in the amount of halibut available for harvest in Area 2C. This decision moved 12 percent of traditional harvest from coastal areas to western Alaska where it will be harvested primarily by boats from Seattle. The shift in models did not fare well in peer review and is contrary to 76 years of halibut management experience. It causes hardship to fishing operations in Southeast Alaska, while benefitting large vessel owners based far from the resource. Do not adopt a one-fish bag limit at this time, and request the IPHC to reinstate the closed area assessment model. Doing so would allow continuation of the two-fish daily bag limit, and the proposed limited entry and current economic reality would reduce charter vessel effort to bring down guided sport halibut harvest numbers. Response: IPHC shifted from a closed-area to a coastwide approach for area-specific biomass determination beginning with the assessment for 2007. This has resulted in lower estimates of biomass for Area 2C. Growing concerns about net migration from the western to the eastern Gulf of Alaska led the IPHC to doubt the accuracy of the closed-area biomass assessments that had been done for many years. In 2006, the IPHC staff changed the orientation of its stock assessment because new scientific information conflicted with previous model assumptions about migration between regulatory areas. The new assessment approach considered tagging data and mortality rates that suggested that a larger fraction of halibut beyond eight years of age continue to migrate eastward than previously assumed. The IPHC staff submitted its revised stock assessment to independent scientific peer review and the IPHC Commissioners were satisfied with the results of the peer review. Comment 7: The analysis (see ADDRESSES ) for this action says that there is no conservation concern. One commenter quoted from sections of the analysis at pages xiv, 29, 56, and 57, that state the action will not have significant impacts, that the objective of the action is distributive, and that no adverse impacts are expected because the IPHC takes account all significant resource removals. Response: The analysis finds that the action would not have significant environmental impacts. The purpose of an analysis is to determine whether an action of the federal government will have a significant impact on the human environment, and whether an environmental impact statement is necessary. The draft analysis for this action evaluated the environmental impacts of the action and found that it would not have a significant environmental impact. This conclusion is not the same as a statement that an action does not have a management or conservation purpose. As noted in the response to Comment 1, when multiple user groups must operate within a shared overall harvest, distribution and conservation questions are inseparable. Any conservation mandated increase or decrease in the shared overall harvest must be shared among the different user groups. If one group exceeds its allocation, either the conservation limit will be exceeded, or another user group must find its share of the harvest reduced. No adverse impacts are expected because the IPHC takes account of resource removals, but as the analysis goes on to state, there is a potential for exploitation rates to be exceeded in the short run under the status quo, and that the IPHC can address this in the longer run with offsetting policy measures. This consideration reflects the issues raised when multiple user groups fish against a common overall harvest objective that were discussed in the second paragraph of this response. Finally, NMFS has new information at this time that was not available at the time the analysis was completed. This new information includes the best available logbook-based information on the 2008 guided angler harvest from ADF&G in November 2008, the Area 2C Total CEY, Fishery CEY, and catch limit determinations made by the IPHC in January 2009, and the new GHL published February 24, 2009 (74 FR 8232). The best available 2008 harvest information indicating that the GHL was exceeded again in 2008 and that the 32-inch maximum size limit on one fish was not effective in 2008, and the continued declines of the Total CEY, Fishery CEY, and GHL in 2009, heighten management and conservation concerns. Comment 8: The proposed rule does not identify a conservation objective. Response: The preamble to the proposed rule clearly identified the following conservation objective: This action addresses conservation of the resource, by restricting catch to approximately the GHL, so that the IPHC's projected harvest of halibut by guided anglers, which is assumed by the IPHC to equal the GHL, adequately reflects actual catches for purposes of managing sustainable removals of the halibut resource. This action also addresses an allocation of halibut fishing privileges among various U.S. fishermen, by giving effect to a Council recommendation on how to assign such privileges consistent with the criteria found in section 773c(c) of the Halibut Act. These criteria include expectations for harvest limits that are reasonably calculated to promote conservation. Comment 9: The rule would not leave any more fish in the water as a result of the one-fish limit. Any charter vessel reduction simply increases the longline harvest. Response: The objective of this action is explained above under the heading “objective of this action.” This action should reduce the overall harvest rate from all fisheries in Area 2C to a level closer to the 20 percent harvest rate target set by the IPHC for conservation of the resource. If successful, a reduction in the charter vessel harvest should leave more halibut in the water to the benefit of all fisheries now and in future years, as well as benefit the health and reproductive potential of the resource. Comment 10: If this is a conservation issue, why is it going to be all right for the charter business to buy guided angler fish from the longline sector for that second fish? Response: The term “guided angler fish” refers to part of a Catch Sharing Plan proposed by the Council in October 2008, for resolving halibut resource allocation issues between the commercial and charter vessel fisheries. The proposed Catch Sharing Plan has not been submitted to NMFS for review and is outside the scope of this final rule. Once the Catch Sharing Plan is submitted, NMFS will publish a proposed rule in the Federal Register for public review and comment. Comment 11: In an editorial in the Juneau Empire dated September 21, 2008, the Deputy Director of the Council stated that no stock of groundfish off Alaska is overfished or subject to overfishing. Response: NMFS notes that the reference to groundfish is to the species managed under the Council's two groundfish fishery management plans. Pacific halibut is not a “groundfish” as that term is defined in those plans or in their implementing regulations. Comment 12: Because the 32-inch rule in 2008 applied to charter boats only, the implication is that the action was not designed to protect resources, but rather to target charter boats. Response: The 32-inch rule in 2008 applicable to charter vessel anglers in Area 2C was first implemented in 2007 (72 FR 30714, June 4, 2007). That rule allowed a daily bag limit of two halibut but required at least one of the two fish to be no more than 32 inches (81.3 cm) in length. This rule was applied to charter vessel anglers in Area 2C because the number of guided vessels participating in the charter fishery was increasing rapidly and the charter vessel sector (about 67 percent of the combined charter and non-charter sport harvest), had exceeded its GHL in Area 2C in 2004, 2005, and 2006. The 32-inch rule was designed to maintain a two-halibut bag limit and reduce the halibut harvest by the charter vessel sector in Area 2C to a level comparable to the seasonal one-halibut bag limit proposed that year by the IPHC. The 32-inch rule did not appear to have its intended effect. The charter vessel harvest in 2007 actually increased about six percent compared to the charter vessel harvest in 2006. Because the 32-inch rule proved ineffective at reducing the Area 2C charter vessel harvest to a level consistent with GHL trends while maintaining a two-halibut daily bag limit, more restrictive measures are warranted. Comment 13: In the responses to several comments in the final rule that implemented a one-fish halibut bag limit in 2008 (73 FR 30504, May 28, 2008), NMFS asserted that there was no conservation rationale in its defense of the 2008 one-fish limit. In the response to Comment 79, NMFS agreed that the rule dealt with a pure allocation issue and did not present any resource conservation questions. NMFS went on to say, “* * * the healthy status of the halibut resource is evidence that IPHC policies are conservative and successful.” In the response to Comment 81, NMFS said, “The best available evidence indicates that the Area 2C stock is not over fished and the IPHC has not made that determination.” In the response to Comment 82, NMFS said, “* * * the environmental analysis prepared for this rule did not find that failure to limit the guided sport charter vessel halibut harvest to the GHL would cause significant environmental impacts on the resource.” Thus, there is no conservation concern. Response: As noted in the response to Comment 1, conservation issues are inherent when the harvests of multiple user groups are being constrained to stay within an overall aggregate harvest limit. The essence of last year's Comment 79 was that conservation of the halibut resource is an objective of the IPHC's policies and the need for restrictions on the charter vessel sector is primarily one of allocation. NMFS acknowledged the long history of the IPHC in maintaining a relatively healthy halibut resource coastwide. This final rule thus supports the appropriateness of the IPHC's caution that departures from assumed levels of harvest, such as the GHL, will compromise the IPHC's ability to achieve its overall harvest strategy. NMFS would modify that response now in light of recent information indicating the effects of several previous years of excessively high harvest rates in Area 2C. Hence, this action has a conservation effect of helping to reduce the overall harvest rate in Area 2C while also serving an allocation purpose. Comment 81 did not say that the rule does not have a conservation objective. It says that the fishery was not over fished at the time of the publication of the final rule (May 2008). An action may have a conservation objective under those circumstances. Both Comment 81 and Comment 82 discuss the role of the one-fish bag limit in helping the IPHC achieve its exploitation yield objectives for the fishery. Comment 82 referred to the significance determination made in the environmental assessment for the 2008 action. A NEPA analysis is meant to determine whether or not the action would have a significant impact on the human environment in order to determine whether or not an EIS would be necessary, but does not preclude an action from having a conservation objective. The analysis concluded that the action would not have a significant impact on the human environment. This is not the same thing as determining that the action would have no impact on the halibut resource or on resource management. Comment 14: The final rule should provide a clearer explanation of the conservation rationale. The proposed rule does not fully explain the conservation imperative for holding the charter harvest to the 2009 GHL. The rule must be corrected to explain the conservation basis, including area-wide and local depletion issues, and the imperative conservation mandate to restrict charter harvest to the GHL given the status of the Area 2C halibut resource. Response: The response to Comment 1 describes the conservation rationale for this action. As explained in the response to Comment 65, NMFS does not have scientific information to characterize localized depletion or attribute it to a particular gear group. This action was not intended to address localized depletion of the halibut resource. Comment 15: According to the 2008 IPHC Annual Report, North Pacific halibut stocks have declined fishery wide by 10 percent from 2007 levels. The Area 2C exploitable biomass of halibut has declined by an estimated 58 percent over the past three years and is near historic low levels. Halibut catch rates, or the amount of fish caught per hook set or hours fished, have declined in all Area 2C sectors including the catch rates of charter halibut anglers. This drop in catch rates is evidence that all fishermen are working harder to catch halibut because there are less halibut to catch. The IPHC now understands that assessment models used before 2008 overestimated abundance in Area 2 (which includes the Pacific Northwest (2A), British Columbia (2B), and Southeast Alaska (2C)). In a summary of the 2007 stock assessment, IPHC staff said that a disproportionate share of the halibut catch has been coming from Area 2. Other resource considerations, such as slowed growth rates and the overharvest of older, more fecund fish from the population also indicate the need for caution and reduced harvest. Response: NMFS agrees with the comment that the overall harvest rate from all sources of fishing mortality in Area 2 should be reduced. This action will contribute to that goal by reducing the harvest of charter vessel anglers in Area 2C and will work in concert with actions taken by the IPHC to reduce the overall exploitation rate in Area 2C. Comment 16: The IPHC has expressed concern about the Area 2C halibut stocks and has emphasized the need to reduce Area 2C exploitation rates for conservation reasons. The IPHC has stated that failure to control the charter sector harvests in Area 2C exacerbates conservation concerns for halibut in that area. Response: Reducing charter vessel angler harvests in Area 2C likely would have conservation benefits by reducing the overall harvest rate in this area. This action is intended to have this effect. Also see response to Comment 14. Comment 17: The IPHC has taken action to address conservation in Area 2C by reducing the commercial fishery catch limits. Area 2C longline catch limits have been reduced by an unprecedented amount, totaling 53 percent over the past three years. Response: NMFS agrees that the commercial halibut fishery in Area 2C has faced large reductions in its catch limits in recent years. Comment 18: Catch limits must be adhered to for protection of the resource. In the absence of a one-halibut daily limit, the Area 2C charter industry can be reasonably expected to once again double its GHL because status quo management resulted in a 2008 charter vessel harvest of 1,900,000 lbs in Area 2C. This 2008 harvest marked the fifth consecutive year in which the Area 2C harvest of halibut by the charter sector exceeded the conservation target established for the sector by the IPHC. Quoting again from an IPHC statement in May, 2008, “Exceeding the GHL specified for 2008 in Area 2C will mean that the combined removals by all sectors in 2008 will exceed the IPHC's conservation targets, which have been accepted by the U.S. government, to the detriment of the halibut stock in this area.” Response: The premise of this comment is that the overall harvest rate target that the IPHC has for Area 2C can not be achieved without all sources of fishing mortality staying at about the level that the IPHC uses as the best available estimate of harvest. The best available estimate of 2008 charter vessel harvest for Area 2C is based on ADF&G logbook and creel survey information. The ADF&G estimated a charter vessel harvest of 1,914,000 lbs for 2008. The Council, the public, and NMFS will likely receive the final 2008 charter vessel harvest estimate, based on the statewide postal survey, in November or December 2009. However, the best available estimates indicate that the 2008 GHL of 931,000 lbs was exceeded. The GHL is not a conservation target established by the IPHC. The Council developed the GHL as a level of harvest to target for the guided sector, and NMFS implemented it as such. Nevertheless, exceeding the GHL likely would contribute to exceeding the overall harvest rate target estimated by the IPHC for Area 2C for conservation purposes. The overall target harvest rate set by the IPHC for Area 2C would be undermined in the absence of controls on fisheries that take significant amounts of halibut. Without knowledge of the economic demand for charter vessel fishing trips in Area 2C and other factors that are difficult or impossible to forecast, NMFS can not estimate what the charter vessel fishery would harvest in the absence of this action. NMFS can say, however, that without this action, the Area 2C charter vessel fishery would likely substantially exceed its GHL. Further, harvest controls implemented in 2007 (two-halibut daily bag limit if one is no more than 32 inches) did not appear to reduce the guided harvest as intended. In fact, guided harvest increased from 2006 to 2007. This experience indicates a need for the more restrictive controls implemented by this action. Comment 19: Until 2007, increased charter harvest resulted in a direct reallocation of halibut from the longline to the charter sector. This occurred as a result of the IPHC quota setting process, which subtracts from the total area CEY the estimated sport, subsistence, charter, bycatch and wastage removals of halibut, then establishes the remainder as the Fishery CEY, or longline catch limit. Longline fishermen expected the reallocation to end when the GHL was established. However, because charter harvest control measures were not in place in 2005 and 2006, the IPHC used projected catch, instead of the GHL, to estimate charter harvest, and charter GHL overages were deducted from the longline quota in an effort to constrain total harvest to the area CEY. In other words, the charter sector's overages, totaling over one million pounds, continued to be deducted from the IFQs of longline fishermen even after the GHL was implemented, despite the substantial investments longline fishermen have made in those quota shares under the IFQ program, and the adherence of longline fishermen to IPHC catch limits. It is unfair and inequitable to punish fishermen who are living within restrictive catch limits for the excess harvest of a sector that ignores resource constraints and consistently overfishes. Response: The GHL for Area 2C was established in 2003 (August 8, 2003, 68 FR 47256). As stated in that action, the GHL is an acceptable amount of halibut harvest by charter vessel anglers during a year in an area. By itself, it does not impose any restriction on the charter vessel fleet. Hence, an expectation by longline fishermen that the GHL would automatically limit the charter vessel fishery to the GHL was mistaken. The Council has the authority to develop regulations that would restrict the charter vessel fishery to the GHL if that is determined by the Council to be necessary. In June 2007, the Council took final action to limit guided harvest to approximately the GHL. It was that June 2007 final action that led to this final rule. Policy making, including data collection, analysis, and rulemaking, is a time-consuming process. NMFS will act as promptly as it can with the best information available to give effect to Council action. NMFS understands the frustration of IFQ fishermen who have seen their shares eroded by increasing harvests above the GHL by the guided sector. This action is designed in part to remedy this situation. Comment 20: The IPHC recommended a one-halibut daily limit for charter vessel anglers in Area 2C and, assuming the management measure would be implemented, did not subtract charter halibut overages from the longline catch limit for 2007. In 2008, the IPHC again assumed the one-halibut daily limit would be in place to prevent GHL overages, and established the longline catch limit accordingly. For this reason, the lawsuit filed by Southeast charter operators that stayed implementation of the one-halibut daily limit resulted in an unaccounted-for overage of the Southeast Total CEY in 2008. Response: NMFS acknowledges the comment. If the IPHC bases its estimate of the Fishery CEY and the catch limit on the assumption that charter vessel anglers will harvest the GHL, the Total CEY will be exceeded if charter vessel anglers exceed the GHL, the commercial fishery harvests its catch limit, and other user groups take the harvests the IPHC expected they would. Comment 21: Because NMFS published the one-halibut daily limit proposed rule on December 22, 2008, the IPHC assumed that the 2009 charter harvest would be restricted to the Area 2C GHL and recommended longline catch limits accordingly. Failure to implement the rule will, in the short-term, result in overharvest of the Area 2C resource. Response: NMFS acknowledges the IPHC's assumption of timely implementation of the one-fish bag limit rule for the 2009 guided fishery season. Although this final rule will contribute to the conservation of halibut in Area 2C, by itself, a one-fish bag limit may not prevent the total halibut harvest in Area 2C from exceeding the harvest rate target set for this area by the IPHC. Comment 22: In the absence of this action, the cuts to the longline fleet will have no effect on helping the halibut stocks recover. Continuing to allow the charter vessel sector to exceed its GHL compromises the halibut resource and undermines the IPHC's effort to rebuild the stocks. Response: NMFS disagrees. Even in the absence of this action, cuts to commercial catch limits would help constrain harvest in Area 2C and contribute to the achievement of exploitation yield targets. Also see responses to Comments 1 and 19. Comment 23: The commercial halibut fishery is under stress because of overfishing by charter and sports sectors. The charter sector has exceeded GHL for several years. Response: NMFS agrees that guided harvest in excess of the GHL for several years in Area 2C is a contributing factor to harvests in this area exceeding harvest targets set by the IPHC. Comment 24: It is important to the IPHC goal of lowering the historical harvest rate in Area 2C that the schedule of annual catch limits and harvest rates adopted by the IPHC be met. Uncontrolled harvest by the charter vessel fishery or harvests in excess of established GHL levels that formed part of the IPHC's decision on commercial annual catch limits will result in negative impacts on the IPHC's ability to achieve its stock management goal. Not implementing a one-halibut daily limit for the charter vessel fishery in 2009 could result in a harvest rate approximately 15 percent higher than that assumed for the IPHC's commercial catch limit. The impact of a consistent overage of this level puts at risk various stock metrics of production, including potentially falling below the threshold reference point for this stock at which the harvest rate must be decreased linearly with biomass. Ultimately, the associated harvest rate could fall to zero (no directed fishery) if the spawning biomass falls to the limit reference point. Response: NMFS agrees that the target exploitation rate of 20 percent set by the IPHC for Area 2C would be undermined to the extent that the amount of halibut harvested by charter vessel anglers exceeds the GHL for Area 2C. Comment 25: The halibut harvests by charter vessel anglers are overestimated. The charter vessels are not even close to taking the GHL on a yearly basis. Response: The best scientific information available on the harvests of halibut in Area 2C comes from the ADF&G's postal survey, logbook, and creel survey programs. This information indicates a steady increase in halibut harvest by charter vessel anglers starting from 1999 to 2005. In 1999, the guided harvest in Area 2C was estimated at 939,000 lbs (425.9 mt). The guided harvest increased annually to a peak in 2005 of 1,952,000 lbs (885.4 mt). In 2006 the charter harvest declined slightly to 1,804,000 lbs (818.3 mt) but increased again in 2007 to 1,918,000 lbs (870.0 mt). The charter harvest in 2004 through 2007 was consistently above the GHL as indicated in Table 1 of this preamble. The final estimate of guided harvest in 2008 has not been developed by ADF&G, but the best available estimates indicate that the harvest exceeded the GHL. Comment 26: The halibut harvests by charter vessel anglers are underestimated. One commenter has seen suspiciously large volumes of halibut being shipped out of Wrangell. One charter operator shipped 428 lbs of halibut for one client and said that there were no weight limits on charter halibut. Once, two fishermen left Wrangell with 28 boxes of fish or about 1,900 lbs. Overfishing is not rare. Therefore, the commenter supports the one-fish daily bag limit. Response: NMFS appreciates the commenter's notes and regards potential retention violations as an enforcement issue. Halibut can grow quite large. It is possible that charter vessel anglers could harvest hundreds of pounds of halibut and other fish in full compliance with existing daily bag limits. The charter operator is correct in that there are no poundage limits on sport charter halibut catch. Limits on the sport harvest of halibut are on the number of fish caught and retained, not on the total pounds of halibut harvested as the commercial fishery is regulated. Nevertheless, information regarding illegal halibut harvests should be reported to the NOAA Office of Law Enforcement. Comment 27: Because the charter vessel fleet's catching capacity has outgrown monitoring and accounting systems, impacts of charter catch on the halibut resource likely are underestimated. A 2008 report prepared by ADF&G states that existing catch accounting systems for the charter harvest of halibut in Southeast Alaska may underestimate that harvest by 20 percent. Hence, the actual GHL overages in recent years may be far greater than reported and are a significant cause of the rapid decline of the Area 2C halibut stocks. Response: The comment refers to a study of logbook and Statewide Harvest Survey data prepared by ADF&G in 2008. The study reported that estimates of numbers of charter halibut derived from logbook information and creel census information were 23 percent greater than similar estimates derived from the Statewide Harvest Survey, and that estimates of halibut weight were 16 percent greater. The report, however, did not say that catch accounting systems may underestimate harvest. ADF&G is scheduled to present an expanded report to the Council in late 2009 that compares additional years of data to better assess the comparison between logbook and Statewide Harvest Survey estimates of halibut harvest by anglers on board charter vessels. Until this study is completed, ADF&G has indicated that it will continue to rely on the estimates of harvest derived from the survey as best representing charter vessel fishery harvests. Guideline Harvest Level Comment 28: The GHL is a guideline, advisory in nature, and was not meant to constrain overall guided sport harvests. It is not a hard cap, either in the sense that the fishery would be closed within a year if it were reached, or in the sense that the guided fishing must be more heavily regulated so as to keep overall guided harvests within it if it has been or is likely to be exceeded. It represents a non-binding random political reference number. According to the December 31, 2007 proposed rule to limit charter vessel anglers to one halibut per day (72 FR 74258), the GHL is not supposed to restrict or limit in any way angler harvests from charter vessels. Response: The Area 2C GHL was established in 2003 as a benchmark for a level of guided harvest (August 8, 2003, 68 FR 47256). By itself, the GHL does not restrict or limit charter vessel anglers, as demonstrated by the fact that charter vessel harvest exceeded the Area 2C GHL in four consecutive years, 2004 through 2007. The GHL is not a limit above which further fishing is prohibited, which is often referred to as a “hard cap.” NMFS normally manages commercial fisheries for groundfish off Alaska in this manner, closing a fishery when it reaches its specified catch limit regardless of whether time remains in the fishing season. In recommending the GHL, however, the Council's intent was that guided harvests would not lead to a mid-season closure of the fishery because of the nature of guided businesses. Hence, the GHL is a benchmark and not a limit like a hard cap. The GHL was developed by the Council and approved by NMFS as an allowable level of harvest for the charter vessel fishery that is linked to halibut abundance. Hence, this allowable level of harvest decreases in stepwise increments as the abundance of halibut decreases. Further, the Council and NMFS have the authority to take subsequent regulatory action to control the harvest of the charter vessel fishery as necessary to stay within its GHL. Thus, this regulatory action to reduce the harvest of halibut by charter vessel anglers in Area 2C is completely within the authority of NMFS, and is being implemented to meet the policy of the Council when it recommended the GHL. The citation from 72 FR 74258 does not provide the full context of the remark, which reads, The GHLs serve as benchmarks for monitoring the charter vessel fishery relative to the commercial fishery and other sources of fishing mortality. The GHLs do not limit the charter vessel fisheries. Although it is the Council's policy that the charter vessel fisheries should not exceed the GHLs, no constraints have been imposed on the charter vessel fisheries for GHLs that have been exceeded in the past. The text states that the GHLs themselves do not constrain harvest, but that the Council policy is that the guided sector should not exceed the GHLs. More details on the Council's policy response to GHL overages may be found in the responses to Comments 19 and 29. Comment 29: The final rule implementing the GHL states that the GHL is the “level of allowable harvest by the charter vessel fishery” (68 FR 47256, 47257). The GHL is not a benchmark but is meant to be a maximum harvest amount. The Council intended that the GHLs would not close the fishery in season but would instead trigger other management measures in years following attainment of the GHL (68 FR 47259). In October 2008, the Council stated its intent to maintain the GHL and manage halibut charter vessel harvest to their allocation limits. Each year since the GHL was implemented the charter fleet has exceeded their allowable harvest. The charter fleet is still growing with an increased number of anglers served, fishing trips, and active vessels. NMFS should not use the words “benchmark” or “approximately to the GHL” in the final rule. Response: No changes from the proposed rule are made in the final rule. As noted in our response to Comment 28 above, the Area 2C GHL was established in 2003 as a benchmark for a level of guided harvest, and the approved GHL policy contemplates that the Council and NMFS would take subsequent regulatory action to control the harvest of the charter vessel fishery as necessary to stay within its GHL. NMFS uses the term “approximately to the GHL” because it does not have tools to manage guided harvest to precisely the GHL. Comment 30: There is no analysis of the interaction between removals in excess of the Total CEY and the GHL, and this is not covered in the proposed rule. Response: The IPHC takes all sources of halibut fishing mortality into account when setting the Total CEY. Hence, to the extent that harvests of halibut by charter vessel anglers in Area 2C can be reduced, any removals in excess of the Total CEY for this area also should be reduced. Comment 31: The IPHC substituted the GHL for the best estimate of guided recreational harvest in its calculation of Area 2C and 3A directed fisheries and set a GHL of 931,000 lbs instead of a more realistic harvest estimate of 1,900,000 lbs. This policy resulted in the Fishery CEY being inflated by approximately one million pounds and the subsequent overharvest of the total CEY by the same amount. It is obvious that an allocation scheme, which allocates millions of pounds of fish in excess of the Fishery CEY to commercial fishermen at the expense of the GHL in following years, is neither fair nor equitable. Response: NMFS disagrees. The IPHC's use of the GHL in the calculation of catch limits reflects the stated intent of NMFS and the Council to manage charter fisheries to stay within its GHL (see the response to Comment 28). The statement that the policy would result in an “* * * overharvest of the total CEY by the same amount [one million pounds]” is based on a conclusion that the charter fishery will not be managed to its GHL in 2009. This is counter to the Council's intent and the NMFS's management goals for 2009. Comment 32: NMFS and the Secretary have failed to validate the need for the arbitrary and capricious GHL allocation. The charter fishery has only grown one percent a year since 1993 and only accounts for seven percent of the removals in Alaska, while the commercial industry removes 90 percent. Although GHL policy recognized a 25 percent growth in the charter fishery from the 1995 to 1999 catch, it did not provide for a fair and equitable allowance considering the 100 percent free increase in commercial quota shares during 1997 and 1998. Moreover, it is not fair and equitable to impose the one-fish bag limit on the guided halibut anglers when the longline fishermen already enjoy a disproportionate share of the resource. Some commenters characterized the large longline share as an excessive share. Response: The GHL for Area 2C was determined to be consistent with the Halibut Act and other applicable federal law when it was implemented in 2003 (August 8, 2003, 68 FR 47256). Growth in the halibut harvests by the charter vessel fishery may be slight on an Alaska-wide basis; however, this action is focused on reducing harvests only in Area 2C. In this area, charter vessel fishery harvests increased from 939,000 lbs (425.9 mt) in 1999 to 1,952,000 lbs (885.4 mt) in 2005. This is an increase of 1,013,000 lbs (459.5 mt) or 107 percent over six years. In 2006 and 2007, charter vessel anglers in Area 2C did not increase their halibut harvest above the record high harvest in 2005; however, the harvest in 2007 (the most recent year for which final sport harvest estimates are available) remained slightly more than 100 percent above the harvest in 1999. The percentage of the sport harvest generally and charter vessel harvest in particular also is much higher in Area 2C than in other areas of Alaska. In 2007, total removals of halibut from Area 2C are estimated to be 12,210,000 lbs (5,538.4 mt). Of this total amount the commercial fishery harvested 68.3 percent and the combined sport fisheries (charter and non-charter) harvested 24.7 percent. The charter vessel fishery harvested 15.7 percent and the non-charter sport fishery harvested 9.3 percent of the total removals from Area 2C in 2007. Hence, charter vessel anglers in Area 2C have demonstrated rapid growth in their Area 2C halibut harvests since 1999, and their contribution to the total harvest in Area 2C, the area this action affects, is greater than the statewide percentages stated in the comment. Comment 33: The GHL allocation is fair and equitable. The initial allocation was established as 125 percent of the historically highest catch levels of the charter sector, thus allowing new and existing businesses in the charter fishery some amount of growth. In contrast, when NMFS implemented the halibut IFQ program in 1995, the average commercial QS holder received only about 80 percent of his historical catch levels. Many of these participants had to purchase additional IFQ to maintain a viable fishing business, and new commercial entrants are required to buy IFQ to participate in the fishery. The Council process to set the allocation was based on the testimony and the historical resource dependence of all user groups and included detailed debate and analysis. The current allocation balances the needs of all halibut sectors, including subsistence, recreational and commercial. The Halibut Act indicates that if it becomes necessary to allocate or assign halibut fishing privileges among U.S. fishermen, such allocation shall be “carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of the halibut fishing privileges.” (16 U.S.C. 773c(c)) This requirement refers to individual entities rather than the sectoral allocation made in this rule. Under the terms of the IFQ program, no person may hold or control more than one percent of the Southeast Alaska quota. Only one quota share holder is currently at this cap, and most are significantly below it. Moreover, the harvest supports thousands of fishermen and crew, others involved in downstream processing and distribution, and millions of consumers. Response: NMFS notes support for the GHL. Comment 34: The GHL was set using incorrect, inconsistent or dated information, and therefore is not fair and equitable. Section 1853(b)(6)(A) of the Halibut Act clearly states that the Secretary must take into account present participation in the fishery. The GHL was built upon angler harvest and trend data generated more than a decade ago for a recreational industry that at the time was in its infancy in Southeast Alaska. Under the Halibut Act, no GHL allocation can be fair and equitable until the Secretary evaluates current participation by each sector. The GHL is nothing more than a historical snapshot of the Area 2C guided angler catch and stock status for a certain period of time. The historical catch data upon which the GHL is based is 1995 to 1999, while the step-down mechanism is based on halibut stock distribution in 1999 and 2000. Thus, the data used to create the GHL is between nine and fifteen years old. Since the GHL was established the number of guided anglers has increased nearly 79 percent. Meanwhile, there has been a decline of 16 percent in the number of commercial quota shareholders. In order for present participation to be properly considered, the Secretary would have to look at more recent catch data for guided anglers and commercial harvesters, numbers that are readily available and are set forth in the analysis, as well as the current distribution of the halibut stock. Response: NMFS disagrees that incorrect, inconsistent, or dated information was used for the GHL or this action. The Council and NMFS have used the best information available at each step of the process, beginning with the GHL, and continuing through this final rule. The Council and NMFS analyzed and considered data that relate to the criteria found at 16 U.S.C. 1853(b)(6) (Magnuson-Stevens Act), and referenced at 16 U.S.C. 773c(c) (Halibut Act), when it developed and implemented the GHL. These data included past and present participation, historical dependence of various sectors on the halibut resource, economic impacts of the action on various sectors, cultural and social framework of the various sectors, impacts on other fisheries, and other relevant considerations. Data that relate to the criteria at 16 U.S.C. 1853(b)(6) were also analyzed and considered in issuing this final rule, including past and present participation levels, economic impacts of the action on various sectors and fishing communities, impacts on other fisheries, etc. The commenter is referred to the GHL analysis and the analysis that accompanies this action for further details on the data considered in developing these actions. The GHL analysis is available on the Council Web site at http://www.fakr.noaa.gov/npfmc/current_issues/halibut_issues/halibut.htm and the analysis for this action is available on the NMFS Alaska Region Web site at http://www.alaskafisheries.noaa.gov/sustainablefisheries/halibut/charters.htm. Comment 35: The GHL was implemented as a reference measure to evaluate guided angler catches under the IPHC “closed area assessment” model. The GHL did not take into account exclusive, post-CEY overage allowances to the longline sector through implementation of the SUFD policy. The GHL also did not account for changes in IPHC methodology, such as the switch to coastwide assessment modeling. Response: The GHL is responsive to the IPHC's switch to a coastwide assessment model for developing its estimate of the halibut biomass. Regulations at 50 CFR 300.65(c)(1) establish that the annual GHLs will be based on the Total CEY established for the year by the IPHC. Regulations at 50 CFR 300.65(c)(2) require that GHLs for IPHC regulatory Areas 2C and 3A be specified by NMFS and announced by publication in the Federal Register no later than 30 days after receiving information from the IPHC on the annual Total CEY for halibut in regulatory Areas 2C and 3A, and regulations. To the extent that the IPHC develops the Total CEY from a coastwide assessment model, the GHL will be based on and reflect that method of estimating the halibut biomass. The SUFD process is described in the response to Comment 4. Comment 36: The Secretary is obligated to issue regulations implementing the GHL for the charter fishery, under 16 U.S.C. 773c(a) and (b). The Halibut Act states that the Secretary “shall” issue regulations necessary to carry out the purposes and objectives of the Halibut Act. The GHL became one of those purposes and objectives, upon its establishment and approval. Failure to manage to the GHL results in a reallocation in violation of the Halibut Act and of the Council's policy and intent in establishing the GHL. Response: NMFS implemented the GHL in 2003 (August 8, 2003; 68 FR 47256) with regulations that appear at 50 CFR 300.65(c), as revised by this final rule. These regulations provided the responsibilities of NMFS in regard to the GHL. However, NMFS agrees that implementing the one-fish bag limit is necessary to carry out those purposes and objectives of the Council in recommending the GHL and, hence, is consistent with the Halibut Act. Comment 37: The Council has stated its intent to manage the charter halibut fishery to the GHL until a long-term plan is adopted. This includes a limited entry program for halibut charter businesses and new regulations for the allocation of halibut between the commercial and charter fisheries. Response: NMFS agrees. In March 2007, the Council adopted a recommendation to implement a limited access program for the guided charter vessel fishery in Areas 2C and 3A. A proposed rule and solicitation for public comment on the recommended limited access proposal was published on April 21, 2009 (74 FR 18178). Comment 38: Rescind the GHL. Response: Rescinding the GHL is outside the scope of this action. Comment 39: The final rule should clearly explain the conservation and fairness elements used as the basis for the initial allocation incorporated into the GHL regime. The GHL for the charter fishery was based on 125 percent of the historic catch and should not be changed due to the lack of other management measures to stabilize the fishery. Response: This final rule does not change the GHL. Instead, this rule is expected to reduce the harvest of halibut by charter anglers in Area 2C to better meet the objectives for the GHL and to contribute to reaching the overall harvest rate target set for this area by the IPHC. This action is a rational response to charter harvests in excess of the GHL and was developed with public participation at the Council and Secretarial levels. Comment 40: This proposed rule circumvents the proper rule making procedures for changing the definition of GHL. This action inappropriately changes the definition of the GHL (50 CFR 300.61) and allocates resources between charter and commercial users. Therefore, this rule is required to follow additional rulemaking procedures such as proper notification to the public, public comment periods in both Areas 2C and 3A, adequate analysis, and a reasonable explanation for the change. Response: This action complies fully with Administrative Procedure Act (APA) rulemaking procedures. All comments received on the proposed rule were considered and changes were made where they were deemed appropriate. This action was proposed in a Federal Register notice published on December 22, 2008 (73 FR 78276). The proposed rule proposed changing the GHL definition by substituting the word “the” for the word “a” at 50 CFR 300.61. This change is designed to more precisely define the GHL as it relates to the GHL table at 50 CFR 300.65(c)(1). The phrase “a level” in the former definition could be misinterpreted to mean any level in the table whereas “the level” more clearly indicates the level in the GHL table that is annually announced pursuant to 50 CFR 300.65(c)(2). As discussed in the proposed rule preamble under the heading “other proposed changes,” these changes were proposed to clarify NMFS's authority to limit charter angler harvest to the GHL. Comment 41: The Secretary has failed to explain his change in the GHL regulations. Specifically, the agency has failed to explain why it has abandoned the position the court found in Van Valin that it had adopted when it promulgated the GHL in 2003. That is, that the schedule for adopting management measures would be backward looking. Specifically, the Secretary hasn't explained why he no longer intends that GHL-based management measures lag behind a GHL reduction by a year or two. There is nothing in the record to explain the reason for this change. If the Secretary does not correct that failure in the final rule (after first publishing those reasons for comment in a supplemental proposed rule), then the proposed rule will be subject to reversal on review on that ground as well. Response: The proposed rule for this action (73 FR 78276, December 22, 2008) indicated that NMFS was proposing language changes to clarify its “authority to take action at any time to limit the charter angler catch to the GHL.” (page 78279, column 3). Despite interpretations to the contrary, NMFS never intended that GHL-based management measures lag behind a GHL reduction by a year or two and this clarification is not a change in policy. According to the preamble to the GHL final rule (68 FR 47256, August 8, 2003), “[i]f end-of-season harvest data indicated that the guided recreational sector likely would reach or exceed its area-specific GHL in the following season, NMFS would implement management measures to reduce guided recreational halibut harvest.” (page 47257, column 3). This clearly indicates that NMFS can take prospective action based on past information, behavior that is not uncommon in NMFS's management of other fisheries under its purview. However, the following sentence in the GHL final rule preamble could have caused confusion, and is why NMFS chose to clarify its authority at 50 CFR 300.65. At page 47257, column 3, the preamble continues, “[g]iven the one-year lag between the end of the fishing season and the availability of that year's harvest data, management measures in response to the guided recreational fleet's meeting or exceeding the GHL would take up to two years to become effective.” (emphasis added) This statement was meant as an explanation to why management measures might not be imposed immediately, not as a restriction on NMFS that it had to wait a period of time before it could implement management measures. Even if this sentence could be read as a restriction, as opposed to an explanation regarding the timing of data availability (that changes over time, as data source change) and the rulemaking process (that has certain time determinative requirements that can be waived with good cause), the sentence states “up to two years.” This phrase is generally interpreted as a range—any time between now and two years from now, and not usually interpreted as a guarantee of any amount of time. However, to be very clear about its intent, NMFS proposed a change to its regulations to clarify that it did not have to wait for a time period before taking action. This was not a change in policy. The proposed regulatory language for 50 CFR 300.65 is a clarification of NMFS's authority and this response is an explanation of NMFS's intent for language used in the preamble of the GHL final rule, which has been misinterpreted in the past. There are several other places in the preamble to the GHL final rule where statements could be taken out of context and be misconstrued as restrictions as opposed to examples. For instance, on page 47258, column 3, NMFS explains that under the GHL final rule, “if the GHL were exceeded, subsequent harvest restrictions could be implemented as needed under normal APA rulemaking with accompanying analyses,” and “this final rule would establish the GHL policy and require NMFS to notify the Council when a GHL is exceeded, which could serve as a trigger for subsequent rulemaking.” (emphasis added) Emphasis was added to show that NMFS was aware of the difference between the mandatory portions of the GHL policy, i.e., NMFS is required to “notify the Council,” and the example of actions that could occur, i.e., “subsequent harvest restrictions could be implemented as needed,” and notification to the Council “ could serve as a trigger for subsequent rulemaking.” Perhaps the best way to illustrate that NMFS has not changed its intent or policy, but only clarified its authority, is the found in the preamble to the GHL final rule. On page 47257, column 2, NMFS states: This final rule establishes a GHL policy which specifies the level of harvest for the guided sport recreational fishery. If the GHL is exceeded, then NMFS will notify the Council within 30 days of receiving information that the GHL has been exceeded. At that time the Council may initiate analysis of possible harvest restrictions and NMFS may initiate subsequent rulemaking to reduce guided recreational harvests. This final rule does not establish specific harvest restrictions for the guided recreational fishery. This final rule does not prevent the Council from recommending management measures before the guided recreational fishery exceeds the GHL, nor does it obligate the Council to take specific action if the GHL is exceeded. In other words, the final rule preamble indicated that the Council could take action after it is informed that the guided sport fishery exceeded its GHL, but it was not obligated to do so. More importantly, however, in response to this comment about changes in policy, the final rule preamble indicates that the final rule does not prevent the Council from taking action before the guided sport fishery exceeds the GHL. Any action by the Council would require NMFS's approval, and would need to be promulgated pursuant to the APA, whether it occurred before or after the guided recreational fishery exceeded the GHL. The changes in regulatory text proposed in 73 FR 78276, and made final by this rule, are consistent with the final rule for the GHL, do not represent a change in policy, and clarify the authority of NMFS to act consistent with Council recommendations and the purposes and objectives of the Halibut Act. Comment 42: There are troubling similarities between the situation in Hawaii Longline v. NMFS, 281 F.Supp.2d 1 (D.D.C. 2003) and the current instance. That case dealt with a situation in which a court had struck down a NMFS rule because of an inadequate Endangered Species Act biological opinion. NMFS represented to the court that it would issue a new rule based on a new biological opinion. In fact, the new rule was ultimately based on the old, invalidated, biological opinion. The court struck down the new rule because the Secretary had not provided a new record and new rationale for it. In this instance, NMFS convinced the court to dismiss Van Valin saying that any new rule would be accompanied by a new rationale and new record. In this instance, the new rationale is simply a stated desire for a different outcome this time, unaccompanied by an explanation of the policy considerations that led to the outcome last time. The analysis for this action is in all material respects identical to the analysis that supported the rule enjoined in Van Valin. Specifically, this analysis re-confirms that: (1) This is an allocation action without significance for the health of the halibut stock; (2) lodge-based guide operations are likely to be forced out of business; (3) no consideration has been given to whether the allocation levels are fair and equitable; (4) guided angler catch levels are down from their peaks and are likely to remain stable for at least long enough to put a long-term solution in place in 2011. Response: On December 22, 2008, NMFS published a proposed rule to “reduce the halibut harvest in the charter vessel sector to approximately the guideline harvest for Area 2C” (73 FR 78276, December 22, 2008). NMFS indicated that its intent for the rule “is to manage the harvest of halibut consistent with an allocation strategy recommended by the North Pacific Fishery Management Council for the guided sport charter vessel fishery and the commercial fishery.” NMFS published the proposed rule, and this final rule, under its authority found at 16 U.S.C. 773c(a) and (b) (Halibut Act), which unlike the example biological opinion provided in the comment, has not been invalidated by a court. Sections 773c(a) and (b) provide that NMFS has the general authority to carry out the Convention between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and the Bering Sea (the Convention) and the Halibut Act and the authority to adopt regulations consistent with its general authority. The allocation strategy recommended by the Council was the GHL, as explained in response to Comment 41. The Council had the authority to make the recommendation to NMFS under the Halibut Act sec. 773c(c), and NMFS published those recommendations as regulations at 50 CFR 300.61 and 300.65. These regulations defined the GHL, provided a table with various levels of the GHL based on the annual Total CEY, and requirements for NMFS to publish a notice in the Federal Register establishing the GHL on an annual basis and to notify the Council when the GHL has been exceeded. As explained in the response to Comment 41, examples of how future harvest restrictions could be implemented should not be read as how future harvest restrictions must be implemented. NMFS is not aware of any legal reason preventing the Council from recommending management measures to limit the guided fishery under the Halibut Act sec. 773c(c), whether or not the guided fishery exceeded the GHL. Further, NMFS has the authority to approve such recommendations and implement them as regulations. Comment 43: The intended effect of this action is to manage the harvest of halibut consistent with an allocation strategy recommended by the North Pacific Management Council for the guided sport charter vessel fishery and the commercial fishery. Has NMFS taken upon itself to follow Council recommendations before the Secretary has approved them? Response: No. This question appears to be based on a misunderstanding. NMFS is acting on behalf of the Secretary, and appropriately so under a delegation of authority. The one-fish bag limit will not become effective without delegated Secretarial approval. Comment 44: The Magnuson-Stevens Act National Standard 1: Annual Catch Limits (ACL) guidelines reinforce the importance of restricting charter harvest to the GHL cap. The ACL guidelines are clear that accountability measures are to be used “to prevent ACLs, including sector-ACLs, from being exceeded, and to correct or mitigate overages of the ACL if they occur” (74 FR 3178-3213). It would be inconsistent and legally suspect for NMFS to manage halibut stocks by a different standard. Response: Section 301(a) of the Magnuson-Stevens Act requires any fishery management plan and regulations implementing such plan to be consistent with the ten national standards. This requirement does not apply to this action because it is implemented under the authority of the Halibut Act and not the Magnuson-Stevens Act. Hence, the National Standard 1 guidelines published January 16, 2009 (74 FR 3178) do not apply to this action or to the GHL. Comment 45: The final rule should be clear that the GHL is a cap, not a benchmark. The proposed rule describes the GHL as a benchmark, which conflicts with the definition of GHL, “Mean[ing] the level of allowable harvest by the charter vessel fishery.” NMFS should correct all references to a benchmark found in the proposed rule prior to the issuance of the final rule. For example, the preamble to the proposed rule states that the guided industry will be managed “near” their GHL. This section needs to be corrected to state that the intent of this rule is to follow Council action and manage the guided fleet so it does not exceed the GHL. Response: No changes from the proposed rule are made in the final rule. The rule refers to the GHL as a benchmark (at § 300.65(c)(3)) because that is the purpose the GHL was designed to serve. Essentially, the GHL serves as a standard or reference point against which the harvest of halibut by the charter vessel fishery is measured or judged. Also see responses to Comments 28 and 29. If the Council or NMFS finds it necessary to limit harvest by the guided sector, the approach recommended by the Council and approved by NMFS is to use various restrictive rules to reduce the charter vessel sector harvest to approximately the GHL. Such restrictions are often imprecise in their effect. Therefore, NMFS can not be certain that these restrictions will prevent the charter vessel fishery from harvesting no more halibut than the GHL amount. As such, the GHL is a harvest level target to which NMFS can try to get close but likely will never exactly hit. Comment 46: IPHC allocation procedures setting the GHL violate the fair and equitable clause of the Halibut Act. This proposed rule halves the charter bag limit while commercial catch is allowed to exceed catch limits. The IPHC GHL management serves a few commercial fishermen at the cost of the many sport fishermen. For 15 years, the Council and NMFS have pursued an unfair and inequitable “allocation” policy solely for the benefit of the halibut longline sector. It is irresponsible of NMFS to continue to circumvent analysis and implementation of a legally binding, fair and equitable allocation between user groups. This proposed rule is based on outdated “GHL Policy” that seeks only to financially benefit the commercial sector. Response: The IPHC does not set the GHL, although the GHL in any particular year is linked to the Total CEY, which is set by the IPHC. Any resource allocation policy likely will result in some resource users feeling unfairly burdened with the costs of reducing their use of the resource. As the halibut resource has declined in abundance in Area 2C in recent years, the commercial longline fishery's catch limits have been substantially reduced from 10,930,000 lbs (4,957.8 mt) in 2005 to 5,020,000 lbs (2,277.0 mt) in 2009. This represents a 54 percent reduction over four years. During part of this period (2005 through 2007) charter vessel anglers in Area 2C have had record high levels of harvest. If there is a policy to benefit the commercial longline fishery at the expense of the charter vessel fishery, it is not apparent under the facts described above. Regarding the claim of violating the fairness and equity provision of the Halibut Act, see the response to Comment 74. Comment 47: The final rule should be based on the 2009 Area 2C GHL, instead of the 2008 GHL, as the proposed rule is. For 2009 the IPHC has adopted catch limits based on the Area 2C CEY of 5,570,000 lbs. The GHL rule published August 8, 2003 (68 FR 47256; corrected on May 28, 2008, 73 FR 30504) describes the procedure to identify the Area 2C GHL on the basis of the IPHC's approved CEY for Area 2C. The GHL in Area 2C was 931,000 lbs in 2008. The final rule should clearly state that the GHL in place for the 2009 season is 788,000 lbs. Response: NMFS agrees that the GHL for Area 2C in 2009 is 788,000 lbs (357.4 mt) and not 931,000 lbs (422.3 mt). This change is based on new Total CEY information from the IPHC meeting in January 2009, shortly after the proposed rule was published. The notice of the 2009 GHL for Area 2C was published in a Federal Register notice on February 24, 2009 (74 FR 8232). NMFS is not changing the proposed management measures, however, because the one-halibut daily bag limit and accompanying measures have the best chance of achieving the objectives of this action of all the alternatives analyzed. Requiring a new analysis of other, possibly more restrictive management measures would mean that those measures would not be in effect for the 2009 summer fishing season. Comment 48: This action will not constrain the guided industry to stay within the GHL. NMFS has relied on 2007 data because final 2008 harvest numbers are not yet available. The proposed rule indicates that a one-halibut daily limit will not reduce the guided harvest to the GHL unless demand reduction further reduces harvest. The rule also states that in 2008 the guided sport harvest may have been near double the GHL of 931,000 lbs under the status quo management option (73 FR 78278), which translates to an estimated harvest of 1,862,000 lbs. The Council's 2007 Area 2C GHL analysis indicated that a one-fish bag limit for the entire 2008 season would have resulted in a harvest reduction of 808,000 lbs of halibut in Area 2C (Table 4 in analysis). Given that the correct 2009 GHL in Area 2C is 788,000 lbs, the one-halibut daily limit can be expected to allow a GHL overage of 200,000 to 700,000 lbs. Clearly an overage of this magnitude does not meet the Council's intent to limit harvest to the GHL. Therefore, NMFS should adopt measures in addition to those identified in the proposed rule to achieve the goal of limiting guided harvest in Area 2C to the 2009 GHL. Establishing a maximum size limit on the retained halibut is the management measure identified to control guided harvest at times of low abundance in the recently adopted Council Catch Sharing Plan (October 2008). This measure was identified by the Council as less onerous to the guided industry than a season closure, but reasonably calculated to achieve the necessary reductions based on existing analysis. Response: The analysis indicates that it would take a 30 percent to 40 percent reduction in the demand for guided trips to bring the guided harvest down to approximately the GHL level along with the one-fish bag limit. NMFS does not have information to project the precise impact of this action on demand for guided trips. Guides commenting on this action and a similar action in 2008 have indicated that a demand decrease of this magnitude may take place. Moreover, the current financial crisis and recession may reduce demand independently of this action. NMFS believes that the combination of the one-fish limit and the reduction in demand may reduce harvest to approximately the GHL. NMFS also notes that the GHL itself is not meant to be a hard cap. See also the responses to Comments 28 and 47. Comment 49: The one-fish limit alone will not constrain guided harvest to the GHL. The proposal must be supplemented by a maximum size limit or a non-retention period. A maximum size limit may be less onerous to the charter industry than a non-retention period. Retain carcass retention, as it has considerably improved data quality and is necessary for maximum size limit enforcement. Response: The ability of the one-fish limit to control guided harvests to the GHL is discussed in responses to Comments 29 and 48. The response to Comment 110 addresses the proposal for a maximum size limit, and the responses to Comments 105 and 114 deals with carcass retention comments. Comment 50: Annual guided catch limits are less conservative than the commercial catch limits. The annual commercial fishing management target is set by a precautionary method. The IPHC SUFD policy fluctuates catch limits with stock abundance, leaving more fish in the water than a policy of managing catch limits to CEY. The guided industry requested and received a GHL “stair step” policy to implement catch limits that is similar to the commercial sector's SUFD approach. The SUFD approach increases catch limits slowly as halibut biomass increases and decreases catch limits quickly as biomass decreases, while the guided sector uses the same rates to modify catch limits regardless of halibut abundance trends. The stair-step down provisions allow the biomass to change by 15 percent before dropping to the next level. This was implemented at the guided sector's request to provide a more stable fishery before management measures were changed. Response: As noted in the response to Comment 4, the SUFD policy has a measured response to changing stock conditions. The GHL is not a catch limit in the same sense as the commercial catch limit set by the IPHC. However, the GHL also is linked to halibut abundance through the Total CEY. Comment 51: The GHL should include step up as well as step down provisions. The method used to set the GHL does not allow for increases in annual catch limits regardless of halibut abundance trends. This method is incompatible with the SUFD approach that allows the commercial sector IFQ allocations to exceed the Fishery CEY by 300,000 lbs in 2006, 900,000 lbs in 2007, 3,070,000 lbs in 2008, and up to 3,290,000 lbs this year, at a time of decreasing abundance. The IPHC has applied its SUFD policy solely to the commercial fleet and there is no analog for the charter fleet. The IPHC policy ignores conservation by awarding charter “underages” to the commercial fleet with a SUFD policy to benefit the seafood industry. Response: Revising the GHL is outside the scope of this action. NMFS notes that while the GHL does not increase beyond the maximum GHL established by the Council regardless of halibut abundance trends, it does increase above current GHL levels if there is an increase in the Total CEY, up to the maximum GHL of 1,400,000 lbs. The stair-step down provision of the GHL (see the response to Comment 50) provides the guided sector with a lagged GHL decrease in response to declining halibut biomass levels. The SUFD component of the IPHC's management regime is not necessarily advantageous to the commercial sector, as discussed in the response to Comment 4. Comment 52: The proposed rule assumes all guided anglers catch their limit. Guided anglers are seeking a fair opportunity to catch two halibut per day. This does not mean each angler catches two halibut per day. Response: NMFS acknowledges the comment. Based 2007 data, the analysis of the harvest impacts of the proposed rule assumed that approximately 60 percent of charter vessel anglers in Area 2C would catch two halibut. Economics Comment 53: This action will reduce tourist demand for Southeast guided trips. A one-fish limit will make halibut fishing less attractive to charter vessel anglers, and will increase the cost per pound of halibut harvested with the assistance of guides. Quality differences mean that fish purchased in a store are an imperfect substitute for fish harvested in a recreational fishery. Evidence from declining bookings in 2008, questions about bag limits from guided clients and potential clients, cancellations in 2009, and statements made by potential clients, indicate that the one-fish limit will lead to large reductions in visits. Typical comments noted that many operations had reported a decline in bookings, for example, of about 15 percent because of the published one-fish rule in 2008; reduced 2009 bookings; a 20 percent to 30 percent estimate of reduced visits is not unreasonable. One fish per day is too few to justify the high expense of a trip to Area 2C for many potential clients. Many customers will go elsewhere, for example, to other parts of Alaska, British Columbia, or Mexico. It may not be easy for the guided industry demand to recover; the business depends on repeat customers and many of these will now go elsewhere. Uncertainty interferes with willingness of customers to make bookings. The impacts of surprise regulatory changes outlast the regulation by many years. It takes years to build up a client base. Response: NMFS acknowledges that the reduced bag limit is likely to reduce the demand for guided fishing in Southeast Alaska. Other than acknowledging the potential for lost business, as was done in the analysis, NMFS cannot predict the number of charter vessel anglers that will choose to not take a guided sport fishing trip in Area 2C as a direct result of this final rule. NMFS notes that the current financial climate may be affecting bookings at this time, so that the entire decline in 2009 bookings may not be solely attributable to the pending one-fish bag limit. Comment 54: Guided charter operations will be badly hurt by the demand decrease associated with this action. Many comments from within the guided industry pointed to concrete instances of the adverse business impacts because of the proposed 2008 one-fish bag limit, and to adverse word of mouth and bookings impacts already observed from the proposed 2009 limit. For example, one lodge operation with 1,000 clients a year is only successful and profitable when booked to 85 percent of capacity. At the time the comment was submitted, bookings were 60 percent, down from 80 percent at the same time the previous year. The business has a very thin margin. A sustained loss of 20 percent of customers means the lodge will no longer be viable. Ultimately the statement in the analysis that some businesses will fail is a gross underestimate. Reductions in demand on the scale necessary to bring harvest within the GHL means bankruptcy for all but a few guided operations. Halibut charter businesses will be devastated and many forced out of business. Response: NMFS agrees that this action is likely to have adverse impacts on charter business profitability in 2009 and that some charter operators may fail or leave the business, however, NMFS does not agree that all but a few guided operations will go bankrupt. NMFS agrees that an action taken in one year may have impacts on marketing and bookings in subsequent years. Comment 55: This action will have severe adverse impacts on the businesses, jobs, and communities that depend on guided charter operations. The businesses include firms that supply food, fuel, material and capital equipment to the charter operations, and businesses that supply transportation, food, lodging, fish processing, gifts, and other tourist services to clients. Jobs include jobs provided by the charter operations and these other firms. Communities also suffer from lost income spent by people who would have worked in the guided charter business. Communities suffer from the direct losses of jobs and businesses, indirect impacts, and loss of tax revenue. These jobs and businesses are important to small local Alaskan communities. National Standard 8, which requires NMFS to “take into account the importance of fishery resources to fishing communities to provide for the sustained participation of, and minimize adverse impacts to, such communities (consistent with conservation requirements) requires a consideration of these issues. Response: NMFS agrees that the guided sport charter vessel industry is an important industry for many communities, generating jobs and revenue for the communities involved as well as direct employment for the guides and crew. A reduction in the daily bag limit for charter vessel anglers will affect those communities and their efforts to develop guided businesses. The potential impact on bookings and demands for tourist activities is discussed in the analysis supporting this final rule, but quantitative estimates of how such impacts will influence demand for these services and commensurate impacts on local communities are unavailable. The response to Comment 72 describes recent studies on the relationship between sport and commercial fishing and regional economies, but notes that these analyses do not provide enough information to evaluate the impacts of this action on individual communities. Finally, NMFS and the Council considered impacts to communities, as is evident in sections 2.3.5 and 2.5.5 of the analysis for this action. However, National Standard 8 does not directly apply to this action as it is taken under the Halibut Act and not the Magnuson-Stevens Act. Comment 56: The one-fish bag limit proposal in Area 2C has adverse impacts in Area 3A, because potential Area 3A out-of-state clients do not understand the geographical differences between areas. Area 3A guides report adverse impacts on business and cancellations and adverse word of mouth at trade shows for this reason. Commenters noted that the Area 2C rule would provide an incentive for charter vessel anglers to substitute fishing trips to Area 3A for trips to Area 2C. Commenters noted that this could increase guided harvests in Area 3A, potentially causing Area 3A fishermen to exceed the 3A GHL and become subject to new regulatory restriction, causing economic harm to guides in 3A. One commenter recommended that the one-fish bag limit be adopted throughout Alaska and the Pacific Northwest. This would limit shifts out of Area 2C, protecting Area 2C guides, and would protect the resource in other areas from excessive harvest as fishermen substitute out of Area 2C. One commenter noted that the proposed action is necessary because the conservation and management problem in Area 2C will likely come to Area 3A soon and it should be addressed and corrected now to prepare NMFS and the guided charter vessel fleet for its later implementation in Area 3A. Response: NMFS agrees that the one-fish bag limit could adversely affect bookings in Area 3A if charter vessel anglers outside of Alaska are unable to discriminate between geographic areas within Alaska. NMFS has no data that would allow it to estimate the potential impact on 3A guided operations because of this confusion. NMFS notes that this could be offset to an unknown extent, if anglers substitute guided charters in Area 3A for guided charters in Area 2C because of a difference in bag limits. NMFS agrees that a shift of charter vessel anglers from Area 2C to Area 3A could lead to increases in Area 3A harvest that cause harvests to rise above the 3A GHL. It is not known whether or not increased guided fishing activity in Area 3A will increase harvest sufficiently to require additional fishing restrictions within Area 3A. NMFS is taking the current action to address GHL overages in Area 2C and must evaluate events in Area 3A independently. The action taken for Area 2C is not being taken because of speculation regarding future events in Area 3A. Comment 57: Captains, guides, and crew would like to consume halibut, and it is more cost-effective for them to catch it when they are already on the water guiding than if they have to make a separate independent trip to catch halibut. They can economize on fuel, and other costs, if they take their recreational harvest incidental to their work as guides and not make special trips. It is recommended that guide and crew personal use fishing be allowed, consistent with regulations, prior to May 16 and after August 15, or some other agreed upon dates outside of the busy tourist season. This would allow taking fish for summer use, then taking fish for winter use. Total restriction of fishing by guides and crew does not achieve the goal of “minimizing the adverse impacts on the charter fishery” which was a NMFS goal in its 2008 proposed rule, or of optimizing benefit to the Nation. Minimization of the adverse impacts will be achieved by allowing personal use fishing by guides and crew to eliminate the expenditure for fuel and other resources that they will unnecessarily incur while trying to put food on their tables. Response: Prohibitions on retention of halibut by charter vessel guides, operators, and crew may make it more costly for them to harvest halibut for personal use. In 2006 and 2007, the State Commissioner of the ADF&G (Commissioner), consistent with his authority, issued emergency orders prohibiting the retention of all fish by the skipper and crew of a charter vessel in Area 2C (ADF&G Emergency Orders 1-R-01-06, 1-R-02-07). The Commissioner could not make his emergency order apply only to halibut because the State of Alaska is not authorized to directly regulate halibut fishing. The comprehensive application of the emergency order to all fish effectively prevented charter vessel skippers and crews from harvest of salmon, rockfish, lingcod, and other species. No emergency order was issued in 2008 when NMFS implemented a similar prohibition, but which would only apply to halibut, as a part of the one-fish bag limit rulemaking. No emergency order has been issued as of March 2009. This action provides charter vessel operators relief from a potential comprehensive state prohibition on skipper and crew harvests by having a federal prohibition on skipper and crew harvest apply only to halibut. Assuming that the Commissioner would issue an emergency order prohibiting skipper crew and harvest if a federal prohibition was not forthcoming, this action would relieve charter vessel skippers and crew from the more comprehensive prohibition against retention of all fish on charter vessels but would impose this prohibition on the retention of halibut. This substitution of the federal restriction for the more burdensome state restriction helps minimize the burden on guided charter operators. Comment 58: This action will increase enforcement costs. Response: This action may or may not increase enforcement costs. The analysis noted that this action will increase incentives for charter vessel anglers to illegally harvest more than one fish a day, and for guides to help them do it. However, it also noted that the enforcement procedures for enforcing a one-fish bag limit were not substantially different from those for enforcing a two-fish a day limit or a size limit and that this action may reduce the number of separate operations to be monitored, as explained in the analysis. The analysis also noted that the level of enforcement effort was a policy decision. Comment 59: The one-fish limit will lead to legal and illegal avoidance activity. People will try to get around the rules. They may switch to bare boat charters, fail to register as guides or charters, fish for other species and “incidentally” catch halibut, or take other actions. These measures will defeat the purpose of the rules. Some commenters indicated that because of problems they saw with the proposed rule, they would not accept the regulations. Response: NMFS agrees that this action will increase incentives for anglers to substitute non-guided fishing for guided fishing, and for guides and anglers to conspire to illegally evade the bag limit for guided anglers. To the extent this happens, the reduction in guided sport fishing may be offset to a greater or lesser extent by an increase in unguided sport fishing. NMFS, however, does not have the information to estimate the extent to which the substitution of unguided for guided sport fishing will take place. Much will depend on the preferences of anglers, their opportunities to fish elsewhere, and the ability of businesses to substitute unguided for guided capacity. NMFS notes that it would expect proportionately more substitution of unguided for guided sport fishing by persons visiting on multi-day and overnight trips than by persons visiting Alaska on cruise ships. Comment 60: The adverse impacts to the guided sport fishery will be in addition to adverse impacts associated with the economic crisis, and to adverse impacts associated with restrictions on harvests of other species targeted by sport fishermen. The depressed economy on its own is projected to decrease tourism to Alaska by 30 percent. The combination of the recession and one-fish limit could reduce total demand by 50 percent. Consideration of the one-fish limit must take account of the 48-inch minimum size limit for king salmon in the second half of the summer, and the prohibition on taking ling cod from June 16 to August 15. Response: NMFS agrees that the current recession and financial crisis are likely to reduce demand for guided sport fishing trips in the summer of 2009, and perhaps in subsequent years. Moreover, in recent years the State of Alaska has tightened regulations governing the harvest of other species of fish targeted by sport anglers. These tighter restrictions can be assumed to reduce the attractiveness of a Southeast Alaska fishing trip and to reduce the demand for guided charters. The adverse impact of this final rule on guides will be in addition to these other impacts. Although NMFS is unable to quantify these other impacts, they were considered qualitatively in developing the final rule. Comment 61: This action creates a paperwork burden for guided charter operations. A five-minute response per angler for new reporting requirements adds about a half hour to the paperwork time at the start of each four-hour half-day charter. Did NMFS consider the capabilities of non-English speaking, younger, and older anglers when estimating the compliance burden associated with these requirements? Response: In the proposed rule, NMFS reported that the new logbook information required for this action includes the regulatory area in which halibut were caught and kept during the fishing trip, the printed name of the charter vessel angler, including youth anglers under 16 years of age, and the signature of the angler on the back of the logbook sheet to verify that the number of halibut caught and recorded is accurate. NMFS estimated that the additional time requirement for each trip was four minutes for the guide and one minute for each angler. For example, for a guided charter vessel with six anglers, total elapsed time to comply with this reporting requirement could be 10 minutes. Actual total elapsed time is likely to be shorter. The discussion in the preamble to the proposed rule did not estimate a reporting burden of five minutes per angler. Only the charter vessel guide would need to have an ability to read and write English. A charter vessel angler would be required only to sign his or her name. This can be done in a minute, on average, even considering the groups identified in the comment. Comment 62: It is erroneous to assume that all guided sport fishing lodges are small entities. In testimony before the Council owners of certain Area 2C lodges have said that their businesses annually gross between $7 million and $12 million. The threshold for identifying large and small entities in the fishing guide service industry is $7 million. The number of large lodges should be documented in the record. Response: The Regulatory Flexibility Act (RFA) required NMFS to provide an estimate of the numbers of small entities that are directly regulated by the action. The threshold for discriminating between large and small entities under the RFA in this case is $7 million in gross revenues. NMFS does not have access to systematic estimates of lodge operation gross revenue estimates similar to those that are available for the commercial setline fishery, or for many other commercial fisheries in Alaska. Moreover, the RFA requirement is to provide an estimate of the number of small entities, not the number of large ones. While the analysis did indicate that there may be large lodges according to this criterion, it did not subtract an estimate of their number, which was unavailable, from the count of total entities to estimate the number of small entities. Since the number of large entities is likely to be small in comparison to all entities, it is unlikely that this would seriously bias the estimate of small entities. Comment 63: This action will not significantly adversely impact angler demand for guided charters and charter operators can address adverse impacts by modifying their operations. One guide indicated that the customers will still come. This was a very small minority among the guides. Similarly, a very small proportion of comments from anglers indicated that they, personally, would not reconsider a trip to Alaska. Another comment indicated that, based on a study given to the Council in June 2007, when asked about the impact of a one-fish limit, as many respondents (26 percent) said it wouldn't make a difference as said they would be much less likely to return (24 percent). One commenter notes that this will not put the guided charter companies out of business, but will force them to move to a charter business that is friendlier on the natural resource such as catch-and-release and sightseeing. Response: As noted in its response to Comment 53, this action is likely to reduce the demand for guided sport fishing in Southeast Alaska, as indicated in the analysis. The comment that charter operations may modify their operations so as to take advantage of other Southeast Alaska resources, or to engage in more catch-and-release fishing, is most likely accurate. Comment 64: The guided sport fishery, as conducted, is adversely impacting the commercial longline fishery. Charter GHL overages affect the long-term constant exploitation yield, and potentially the long-term sustainability of the halibut stock. This has an adverse indirect impact on longline fishermen. Guided angler harvest overages have been deducted from the longline catch limit, imposing a direct burden on longline fishermen. Guided anglers operate in the summer when larger females are inshore and more susceptible to rod and reel gear. Thus they tend to target the larger fish that contribute more in proportion than smaller fish to the reproductive capacity of the halibut stock. This has an adverse indirect impact on commercial fishermen. Many commercial fishermen have had to borrow money, sometimes mortgaging their homes, to buy the halibut quota share (QS) they needed to operate in the fishery. The decline in current and prospective longline revenues and profits makes it harder for them to repay these loans. Moreover, declines in current and prospective profits reduce the market value of their QS. Response: NMFS acknowledges that guided charter harvests in excess of the GHL can have direct and indirect adverse impacts on commercial fishermen, and that many commercial longline fishermen have had to borrow money to purchase quota shares. NMFS agrees that allocative and stock impacts can reduce their ability to repay those loans. See also responses to Comments 1 and 19. In 1999, the IPHC reviewed options for a maximum size limit of 60 inches (150 cm) in the commercial fishery and concluded that, based on the research at the time, it did not add substantial production to the stock. Applying the limit to the sport fishery would have an even smaller benefit because the sport fishery harvest is much smaller than commercial harvest, and also because this action would only apply to Area 2C. The halibut stock is managed as a single population throughout its entire range. Also see response to Comment 103. Comment 65: The guided sport fishery, as conducted, is adversely impacting subsistence, personal use, and unguided sport fisheries. Two issues have been raised: (1) Excessive harvest hurts these user groups in the same way it hurts commercial fishermen; (2) localized depletion of stocks creates a special burden for these other user groups. Subsistence can be an important source of food, particularly in remote, rural communities with high poverty rates. Excessive harvest by the guided sector requires subsistence and local sport anglers to travel farther to catch halibut and can result in fishing grounds preemption by charter vessels anglers. The distance issue becomes worse when fuel costs are high. Guided sector harvests violate the subsistence priority. The area within which localized depletion is occurring is getting larger as charter operations upgrade their equipment. Localized depletion may have cultural impacts for Native fishing communities via the impact on subsistence harvests. Commenters report localized depletion near Sitka, Juneau, Craig, Prince of Wales Island, and in the Icy Straits area. Commenters cite ADF&G estimates of catch per rod hour as evidence of localized depletion near Sitka and Craig. Localized depletion may also occur for species such as rockfish, taken as bycatch by sport fishermen. Localized depletion was recognized by the Council in its 1993 problem statement and played an important part in the Council's GHL allocation decision. Halibut harvest by the guided fishery should be managed to stay below the GHL because of concerns about depletion of local stocks and the long-term effects on local businesses. The record should be supplemented to include the effect of guided charter fishing in excess of the GHL on local depletion, the effect of local depletion on subsistence harvesters, and the weight given to subsistence concerns when the Council recommended the GHL allocation adopted in 2003. Response: NMFS agrees that subsistence harvests of halibut are an important use of halibut in Southeast Alaska, and that a key factor in their importance is the significant cultural role they play in the lives of Alaska Natives. While there is no direct allocative effect, NMFS agrees that harvest in excess of the GHL can complicate the sustainable management of the halibut stock and potentially indirectly impact other non-commercial users. With respect to localized depletion, NMFS does not have data to confirm that short-term localized depletions of halibut are due to focused harvest activity by one or more fishing sectors. Current data do not clearly indicate what the causes, magnitude, and geographical distribution of nearshore depletions might be. While it is accurate that commercial fishermen may fish in areas that are accessible to sport fishermen, any localized depletions resulting from high halibut catch rates may be offset in the medium-to-long term by egg and larval drift and migrations of juveniles and adults. Comment 66: The guided sport fishery, as conducted, is adversely impacting communities that depend on the commercial fishery. The Area 2C halibut fishery is the economic lifeblood of many longline fishermen and the fishery dependent communities in which they live. The livelihoods of too many Alaskans that live away from the major transportation corridors of Juneau, Sitka, and Ketchikan have been seriously harmed. The guided fishery harvest must be limited to established GHL amounts. The unrestricted growth of the guided charter fishery is creating stress in coastal communities. The economic insecurity inflicted by the combination of reduced quotas, reduced access to subsistence resources due to charter-driven local depletion, and the federal government's stalled effort to restrict guided sport harvest to established catch limits, after 15 years of policy reversals and ineffective actions, has intensified conflicts in small coastal communities. These tensions are manifested as stress, hostility, and other socially destructive responses that are pitting neighbor against neighbor. The failure of the management system to adequately regulate and enforce existing regulations on the guided sport fishery near Sitka has led to social unrest in the community and increasing conflicts on the grounds. Response: As noted in the responses to Comments 64 and 65, NMFS agrees that the commercial longline fishery, and potentially the unguided sport and subsistence fisheries, may be adversely impacted when the guided charter fishery exceeds its GHL. This occurs through allocative impacts to the commercial fishery, and by complicating the sustainable management of the halibut stock. NMFS does not have data to confirm that short-term localized depletions of halibut are due to focused harvest activity by a particular user group. NMFS believes that adverse impacts to these fisheries listed above affect the communities in Southeast Alaska in which these fisheries are based. As noted in the analysis, the information that would make it possible to measure these impacts is not available. NMFS acknowledges that the controversy has created conflict in some Southeast Alaska communities; the analysis (see ADDRESSES ) cited a study from the U.S. Forest Service's Northwest Research Center that noted that “[c]ompetition for fish has created tension within communities with sizeable charter fishing fleets, such as Craig and Sitka.” Comment 67: When the guided sport fishery exceeds its GHL, there are secondary impacts on the commercial crab fishery. Many of the small processors around Southeast are being affected by the lowered halibut quotas and face insufficient production to cover overhead costs. The processor that would usually service the upcoming crab season is saying that it can't afford to cover the overhead to open the plant earlier without the additional halib [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-10337. Public record. Not legal advice.