2011-14854. Pacific Halibut Fisheries; Limited Access for Guided Sport Charter Vessels in Alaska

AGENCY:

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

ACTION:

Interpretative rule.

SUMMARY:

This rule clarifies regulations that apply to vessels operating in the guided sport (charter) fishery for halibut in International Pacific Halibut Commission Regulatory Area 2C (Southeast Alaska) and Area 3A (Central Gulf of Alaska). Under regulations implementing the charter halibut limited access program, operators of a vessel in Area 2C or Area 3A with one or more charter vessel anglers onboard that catch and retain halibut must have an Alaska Department of Fish and Game (ADF&G) Saltwater Charter Logbook onboard which specifies the person named on the charter halibut permit(s) being used onboard the vessel, and the charter halibut permit number(s) being used onboard the vessel. This interpretation clarifies that a charter operator may use the ADF&G Saltwater Charter Logbook issued for the vessel to record the charter halibut permit information. A charter vessel operator is not required to have a separate ADF&G Saltwater Charter Logbook issued in the name of the charter halibut permit holder.

DATES:

This rule is effective on June 15, 2011.

ADDRESSES:

Electronic copies of this action and other related documents are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Gwen Herrewig, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus stenolepis) through regulations established under authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). Sections 773c(a) and (b) of the Halibut Act provide the Secretary of Commerce (Secretary) with general responsibility to carry out the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea and the Halibut Act. Section 773c(c) of the Halibut Act also authorizes the North Pacific Fishery Management Council (Council) to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Such Council-developed regulations may be implemented by NMFS only after approval by the Secretary. The Council has exercised this authority in the development of its limited access program for charter vessels in the guided sport fishery, codified at 50 CFR 300.67.

Charter Halibut Limited Access Program

In March 2007, the Council recommended a limited access program for charter vessels in IPHC Regulatory Area 2C and Area 3A. The intent of the program was to manage growth of fishing capacity in the charter sector by limiting the number of charter vessels that may participate in the guided sport fishery for halibut in Areas 2C and 3A. NMFS published a final rule implementing the program on January 5, 2010 (75 FR 554). Under the program, NMFS initially issued a charter halibut permit (CHP) to qualified applicants. A person who was not initially issued a CHP may obtain a transferable CHP from another person by submitting a transfer application and meeting CHP transfer requirements. A permit holder may use a CHP onboard any vessel that meets Federal and state requirements to operate as a charter vessel in the guided sport fishery for halibut in Areas 2C and 3A.

Beginning February 1, 2011, any person operating a vessel on which charter vessel anglers catch and retain halibut in Area 2C or Area 3A must complete an ADF&G Saltwater Charter Logbook (charter logbook) that contains information on the CHP authorizing the charter vessel fishing trip. The preamble for the proposed rule to implement the charter halibut limited access program, published on April 21, 2009 (74 FR 18178), provided the rationale underlying this requirement. The Council originally recommended a prohibition on the leasing of CHPs. NMFS did not implement this prohibition because (1) the Council did not provide a specific definition of leasing; and (2) such a prohibition likely would have disrupted the operation of many charter businesses and be difficult to enforce. After additional consideration on this issue, the Council recommended three specific charter logbook reporting requirements, in place of the prohibition on leasing, to promote involvement by the CHP holder with the charter halibut fishing operation:

1. Prohibit the CHP from being used onboard a vessel unless that vessel is identified in an ADF&G Saltwater Charter Logbook;

2. Require that a charter vessel operator have onboard the vessel an ADF&G Saltwater Charter Logbook issued in the name of the CHP holder; and

3. Require the authorizing CHP number to be recorded in the ADF&G Saltwater Charter Logbook for each trip.

In the final rule implementing the charter halibut limited access program (75 FR 554, January 5, 2010), NMFS implemented the Council's charter logbook reporting recommendations in regulations at § 300.66(v). Section 300.66(v) states that is unlawful for any person to:

(v) Be an operator of a vessel in Area 2C or Area 3A with one or more charter vessel anglers onboard that are catching and retaining halibut without having onboard the vessel a State of Alaska Department of Fish and Game Saltwater Charter Logbook that specifies the following:

(1) The person named on the charter halibut permit or permits being used onboard the vessel;

(2) The charter halibut permit or permit number(s) being used onboard the vessel; and

(3) The name and State issued boat registration (AK number) or U.S. Coast Guard documentation number of the vessel.

This interpretive rule is administrative and clarifies that NMFS is relying on the regulatory text at § 300.66(v) for management purposes, and not the preamble text. This interpretive rule would not change requirements, or long standing procedures, for charter halibut businesses to obtain charter logbooks from ADF&G. The regulatory language in § 300.66(v)(1) does not explicitly require a charter vessel operator to have onboard the vessel a charter logbook issued in the name of the CHP holder, despite what was stated in the preamble to the limited access program proposed rule.

NMFS also determined that in some circumstances, a CHP holder may be unable to obtain a charter logbook for the vessel. This is because CHPs may be issued in the name of an individual, community quota entity, or other owners and not necessarily the business in which the charter logbooks are issued. The State of Alaska issues a charter logbook for a vessel in the name of the Sport Fishing Business on a charter operator's State of Alaska Business License. Although the State of Alaska Business License lists the names of the owner and business, only the business name is recorded in the 2011 charter logbook. It is ADF&G's policy that charter fishing activity on one vessel should be recorded in the charter logbook issued for that vessel. NMFS assigns a CHP to the individual or non-individual entity who was the owner of the business that qualified for the CHP or who received the CHP by transfer. The person named on the CHP may or may not have provided NMFS a business name associated with their CHP. Therefore the names on the CHP and the charter logbook may not match since CHP applicants were not required to provide the business name in which the charter logbook was issued. Consequently, the requirement for a charter vessel operator to have onboard the vessel a charter logbook issued in the name of the CHP holder may not be consistent with the manner in which ADF&G issues charter logbooks.

Additionally, requiring a charter vessel operator to have onboard the vessel a charter logbook issued in the name of the CHP holder, as stated in the Council's recommendation and in the preamble to the limited access program proposed rule, may compromise charter logbook data quality. For example, a charter operator may use multiple CHPs onboard a vessel to increase the number of anglers on a charter vessel fishing trip. If the CHPs onboard the vessel are issued to different persons, the operator would be required to record information for that charter vessel fishing trip in more than one charter logbook. This would result in information for one charter vessel fishing trip being recorded in multiple charter logbooks. ADF&G could receive data pages for charter trip information from each charter logbook, potentially resulting in duplicate data for halibut and other species. Duplicate data would increase the potential for data entry error and could ultimately result in less reliable charter harvest estimates. ADF&G uses the logbook data received from the charter vessel operators to project the charter harvest estimates for the season. This projection is presented to the Council and the IPHC in October each year.

Interpretation

This rule clarifies that Federal regulations in § 300.66(v)(1), (2), and (3) require operators of a vessel using one or more CHPs to complete the charter logbook as follows:

• Record the person(s) named on the CHP(s) on the front of the ADF&G Saltwater Charter Logbook in the space provided for the CHP holder name;
• Record the CHP number on the charter logbook page for the trip it was used. If multiple CHPs are used for the same charter vessel fishing trip, the operator should (1) check the box indicating “more than one CHP is being used on this trip”, (2) fill out a second page for the trip with the second CHP number, associated anglers, and activity, and (3) continue until all CHPs numbers, associated anglers, and activity for the trip are recorded on separate logbook pages.
• Verify that the name and state issued boat registration (AK number) or U.S. Coast Guard documentation number of the vessel on which the logbook is used is recorded in the charter logbook.

NMFS did not intend for the prohibition at § 300.66(v) to conflict with the collection of charter logbook data. It was meant to promote involvement by the CHP holder with the charter halibut fishing operation and the collection of accurate logbook data. The requirement to identify the vessel in the logbook was intended to be consistent with an existing ADF&G requirement that a charter vessel operator have onboard the vessel a charter logbook. Therefore, this interpretation clarifies that a charter vessel operator must record in the charter logbook issued for the vessel the person named on the CHP(s) and the CHP number(s) used for each charter vessel fishing trip.

Classification

The Assistant Administrator for Fisheries, NOAA has determined that this interpretation is consistent with the Halibut Act and other applicable law.

This action is administrative in nature and is exempt from the requirement to prepare an environmental assessment in accordance with NAO 216-6 because this interpretive rule will have no effect on the environment. As stated earlier in the preamble, this action ensures that the issuance of charter logbooks remains the same as before the implementation of the limited access program for guided sport charter vessels and clarifies confusion about who could be issued a charter logbook.

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

The notice and comment requirements and the 30-day delay in the effective date requirements of the Administrative Procedure Act do not apply to this interpretive rule as provided in 5 U.S.C. 553(b)(A) and 5 U.S.C. 553(d)(2).

This interpretive rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

Authority: 16 U.S.C. 773 et seq.

Dated: June 9, 2011.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.