[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Rules and Regulations]
[Pages 16742-16754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6507]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 679

[Docket No. 040607171-5078-02; I.D. 051804C]
RIN 0648-AR88


Pacific Halibut Fisheries; Subsistence Fishing

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to amend the subsistence fishery 
rules for Pacific halibut in waters off Alaska. This action is 
necessary to address subsistence halibut management concerns in densely 
populated areas. This action is intended to meet the conservation and 
management requirements of the Northern Pacific Halibut Act of 1982 
(Halibut Act) and the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Effective on May 2, 2005.

ADDRESSES: Copies of the environmental assessment (EA), regulatory 
impact review (RIR), Initial Regulatory Flexibility Analysis (IRFA), 
and Final Regulatory Flexibility Analysis (FRFA) prepared for this 
action are available from NMFS, Alaska Region, P.O. Box 21668, Juneau, 
AK 99802-1668, Attn:

[[Page 16743]]

Lori Gravel-Durall, or from NMFS, Alaska Region, 709 West 9th Street, 
Room 453, Juneau, AK 99801, or by calling the Sustainable Fisheries 
Division, Alaska Region, NMFS, at 907-586-7228. Send comments on 
collection-of-information requirements to NMFS at the address specified 
above and to OMB at: Office of Information and Regulatory Affairs, 
Office of Management and Budget, Washington, DC 20503 (Attention: NOAA 
Desk Officer).

FOR FURTHER INFORMATION CONTACT: Bubba Cook, 907-586-7425 or 
[email protected].

SUPPLEMENTARY INFORMATION: Management of the fisheries for Pacific 
halibut (Hippoglossus stenolepis, hereafter halibut) in waters in and 
off Alaska is based on an international agreement between Canada and 
the United States. This agreement, titled the ``Convention between 
United States of America and Canada for the Preservation of the Halibut 
Fishery of the Northern Pacific Ocean and Bering Sea'' (Convention), 
was signed in Ottawa, Canada, on March 2, 1953, and amended by the 
``Protocol Amending the Convention,'' signed in Washington, D.C., on 
March 29, 1979. This Convention, administered by the International 
Pacific Halibut Commission (IPHC), is given effect in the United States 
by the Halibut Act. Generally, fishery management regulations governing 
the halibut fisheries are developed by the IPHC and recommended to the 
U.S. Secretary of State. When approved, these regulations are published 
by NMFS in the Federal Register as annual management measures. For 
2004, the annual management measures were published February 27, 2004 
(69 FR 9231).
    The Halibut Act also provides for the North Pacific Fishery 
Management Council (Council) to develop halibut fishery regulations, 
including limited access regulations, in its geographic area of concern 
that would apply to nationals or vessels of the U.S. (Halibut Act, 
section 773(c)). Such an action by the Council is limited only to those 
regulations that are in addition to and not in conflict with IPHC 
regulations, and they must be approved and implemented by the U.S. 
Secretary of Commerce (Secretary). Any allocation of halibut fishing 
privileges must be fair and equitable and consistent with other 
applicable Federal law. This is the authority under which the Council 
acted in October 2000, to adopt a subsistence halibut policy. This 
policy was originally implemented by regulations published on April 15, 
2003, at 68 FR 18145 (corrected May 15, 2003 at 68 FR 26230), and 
codified at 50 CFR 300 under subpart E.
    A proposed rule to amend the subsistence halibut policy was 
published in the Federal Register on July 9, 2004 (69 FR 41447). 
Comments on the proposed rule were invited through August 9, 2004. 
Forty-one letters were received that included 43 separate comments, 
which are summarized and responded to below.
    The principal elements of this amendment are described and 
explained in the preamble to the proposed rule and are not repeated 
here for brevity. In brief, these elements include: (1) changing the 
boundaries of the Anchorage/Matsu/Kenai non-subsistence area, (2) 
eliminating gear restrictions in Areas 4C, 4D, and 4E, (3) increasing 
gear and harvest restrictions in Area 2C, (d) allowing retention of 
legal sized subsistence halibut with CDQ halibut in Areas 4C, 4D, and 
4E, (4) creating a Community Harvest Permit (CHP) system to mitigate 
increased gear and harvest restrictions in affected areas, (5) creating 
a Ceremonial and Educational Permit system to recognize customary and 
traditional tribal practices, and (6) including the Subsistence Halibut 
Program in the appeals process.
    This final rule is substantively the same as the proposed rule 
published July 9, 2004 (69 FR 41447), except that certain technical 
changes have been made in response to comments received on the proposed 
rule. These changes are explained below under the Response to Comments 
and under Changes from the Proposed Rule.

Response to Comments

    NMFS received 41 letters of comment that contained 43 separate 
comments from various agencies, Alaska Native organizations, and 
individuals. These comments are grouped into three categories, 
including: (1) the content of the proposed rule (comments 1-19); (2) 
alternatives for proposed changes addressed by the Council in December 
2004, but not part of this action (comments 20-27); and (3) the overall 
subsistence halibut policy, but also not part of this action (comments 
28-43). The following summarizes and responds to these comments.

Comments on the Content of the Proposed Rule

    Comment 1: We oppose the increased gear restriction of 30 hooks per 
vessel in Area 2C.
    Response: The Council recommended increased restrictions in Area 2C 
primarily to address localized depletion concerns due to increased 
subsistence halibut fishing effort. Area 2C has one of the highest 
population densities with proximity to easily accessible local fishing 
grounds, which allows for increased exploitation of the halibut 
resource in those areas. Based on public testimony, written comments, 
and analysis, the Council determined that increased gear restrictions 
were necessary in Area 2C to address localized depletion concerns.
    The Council proposed superseding the 30-hook-per-person restriction 
with a 30-hook-per-vessel restriction in Area 2C. By reducing the 
number of hooks allowed to be fished from a single vessel, the Council 
effectively reduced the daily catch per vessel when two or more 
subsistence fishermen are on the vessel. The reduction in allowable 
gear also would reduce incidental catch of additional species that 
might also be subject to localized depletion, including rockfish and 
lingcod. NMFS agrees with this rationale for increasing the subsistence 
gear restrictions in Area 2C.
    Comment 2: We support increased gear and harvest restrictions for 
all users. However, no distinction should be made in the regulations 
between Alaska Natives and non-Natives because the Subsistence Halibut 
Program was intended to help all rural and tribal residents feed their 
families.
    Response: Halibut harvested while subsistence fishing are intended 
for the sustenance of the persons that are subsistence fishing, their 
families, and their communities in accordance with cultural traditions 
of Alaska Native and rural lifestyles. However, the Subsistence Halibut 
Program is designed to make distinctions among users based on State of 
Alaska (State) and Council findings of customary and traditional use of 
halibut by persons living in certain rural Alaska communities and by 
members of certain Alaska Native tribes. Hence, neither all rural 
Alaska communities nor all Alaska Native tribes are found to be 
eligible for subsistence halibut fishing privileges. The Halibut Act 
provides the authority to allocate or assign halibut fishing privileges 
among various fishermen.
    This rule recognizes the unique customary and traditional practices 
of tribes by implementing Ceremonial and Educational Permits and a CHP 
program. These provisions were created to improve the original 
subsistence rule, which did not adequately meet the customary and 
traditional needs of Alaska Native tribes and are consistent with the 
authority granted by the Halibut Act.
    Comment 3: Area 2C should be included in the CHP program.

[[Page 16744]]

    Response: The CHP program applies only in Area 2C as described at 
50 CFR 300.65(i) of this action.
    Comment 4: Designated subsistence fishers should provide their 
signature in the harvest logbooks for special permits to verify 
participation in harvests conducted under the special permits.
    Response: The Council authorized the development of special permits 
to mitigate increased restrictions in areas where rural communities and 
tribes practiced customary and traditional use of the halibut resource. 
The CHP, Ceremonial Permit, and Educational Permit were developed in a 
cooperative effort to provide more local control of monitoring of 
subsistence halibut removals, thereby increasing the accuracy and 
availability of harvest data.
    Because of the liberal limits applied to the special permits, NMFS 
recommended a substantial increase in the recordkeeping and reporting 
requirements under those permits. The permit coordinator is responsible 
for ensuring that all recordkeeping and reporting is conducted in 
accordance with regulatory requirements. As part of this 
responsibility, the permit coordinator must ensure that the designated 
harvester is identified on the applicable permit log. Any abuse of 
these recordkeeping and reporting requirements could result in NMFS 
withholding issuance of future special permits or, in certain cases, an 
enforcement action. Therefore, NMFS believes that the proposed system 
using a permit coordinator provides sufficient verification and that 
requiring the signatures of designated subsistence fishers is 
unnecessary at this time.
    Comment 5: Reducing the number of hooks from a per-fishermen to a 
per-vessel limit is disadvantaging the public's efforts to feed their 
families by making subsistence fishing more intensive and costly. 
Halibut removals are more effectively controlled through bag limits.
    Response: NMFS understands the increased cost and effort required 
under the proposed gear and harvest restrictions. However, the Council 
imposed increased gear restrictions based on localized depletion 
concerns. See also Response under Comment 1.
    Harvest (bag) limits constitute one method of controlling the 
removal of a single species. However, harvest limits without gear 
limits would have less of an effect in reducing incidental catch of 
non-halibut species. As the amount of allowable gear increases, the 
potential for incidental catch of non-target species increases. 
Incidental catch of rockfish and lingcod represents one of the concerns 
regarding increased restrictions in high-productivity and high-use 
areas such as Areas 2C and 3A. Based on the incidental catch and 
localized depletion concerns, the Council concluded that further gear 
restrictions were necessary in Area 2C in addition to more restrictive 
harvest limits.
    Comment 6: Increasing restrictions will discourage the affected 
public from following the rules.
    Response: One of the original goals of the Subsistence Halibut 
Program was to enable Alaska Natives and non-Natives, who have a 
customary and traditional use of halibut, to continue to take halibut 
for that purpose. Additionally, the Council stated that it intended to 
legitimize an existing fishery and not create a new fishery.
    In attempting to achieve these goals, the Council proposed certain 
restrictions consistent with customary and traditional use patterns in 
specific areas. The Council recognized that each of the areas differed 
significantly in its demographics, population density, and cultural 
backgrounds. Based on that recognition, the Council proposed increasing 
or decreasing restrictions in the different areas to accommodate these 
differences. In areas where increased restrictions were proposed, the 
Council determined through public testimony, written comments, and 
analysis that concerns regarding the subsistence halibut fishery exist. 
Therefore, NMFS believes that a rational basis exists for increased 
restrictions in these areas.
    Comment 7: We oppose the reduction of the daily retention limit to 
20 halibut per vessel per day.
    Response: The Council recommended increased restrictions in Area 2C 
primarily to address localized depletion concerns due to increased 
subsistence halibut fishing effort in this area. Area 2C has one of the 
highest human population densities in Alaska with proximity to easily 
accessible local fishing grounds, which allows for increased 
exploitation of the halibut resource in those areas. Based on public 
testimony, written comments, and analysis, the Council determined that 
increased gear restrictions were necessary in Area 2C to address 
localized depletion concerns.
    The Council proposed superseding the 20-halibut-per-person 
restriction with a 20-halibut-per-vessel restriction to address 
localized depletion concerns in Area 2C. The reduction in allowable 
harvest also would help prevent incidental catch of additional species 
that might also be subject to localized depletion, including rockfish 
and lingcod.
    Comment 8: Regulations should not be liberalized to allow tribal 
members to harvest more halibut. The existing regulations provide a 
reasonable opportunity for tribes and others to meet their subsistence 
needs.
    Response: The Council received public testimony and written 
comments indicating that Alaska Native tribes and other affected rural 
communities would be unable to meet their customary and traditional 
levels of harvest if increased restrictions were applied beyond those 
provided in the original subsistence halibut action. In response to 
these concerns, the Council chose to implement special permits that 
mitigate increased restrictions in localized areas where certain tribes 
and rural communities would be adversely affected. NMFS believes the 
special permits adequately balance the subsistence needs of the 
affected public with the goal of preventing localized depletion in 
areas of concern.
    Comment 9: We are opposed to the regulation of the halibut fishery 
with regard to ceremonial use because the Council has no definition of 
ceremonial use.
    Response: The Alaska Native Subsistence Halibut Working Group 
recommended the creation of Ceremonial Permits and the Council directed 
an analysis of that recommendation. In the analysis, a qualifying 
ceremonial use is defined as ``one in which the use of halibut is 
customary and traditional and is related to some act or occasion of 
cultural significance.'' This definition would include deaths, 
potlatches, or other events of cultural significance.
    NMFS recognizes that different tribes have different cultural 
requirements. Therefore, NMFS chose not to list events or occasions 
that would qualify as ``ceremonial'' because it might lead to the 
unintended exclusion of a legitimate culturally significant event from 
eligibility for a Ceremonial Permit. In an effort to promote 
cooperative management with the tribes, NMFS instead chose to allow the 
individual tribes to decide what constitutes a ceremonial purpose and 
to require a tribe to indicate on their permit application the occasion 
of cultural or ceremonial significance. NMFS does not intend to make a 
subjective decision on the validity of an indicated ceremonial purpose. 
However, if NMFS discovers that a tribe is abusing the Ceremonial 
Permit it could withhold issuance of future special permits or, in 
certain cases, initiate an enforcement action.

[[Page 16745]]

    Comment 10: Any mixing of community development quota (CDQ) fishing 
and subsistence fishing will compromise enforcement of normal CDQ 
regulations. Therefore, all halibut should be offloaded and weighed 
from combined subsistence and CDQ trips. If legal-sized halibut can be 
retained and not counted as part of the CDQ, any overage above the CDQ 
enforced trip limit could be claimed as subsistence.
    Response: Mixing of CDQ and subsistence fishing halibut harvests 
will not compromise enforcement. The purpose of allowing subsistence 
fishermen in Areas 4C, 4D, and 4E to retain subsistence halibut with 
CDQ halibut is to allow sufficient opportunity to conduct subsistence 
fishing when conditions are not restricted by sea ice coverage and 
inclement weather. In short, if a CDQ fisherman who is also eligible to 
subsistence fish for halibut found himself in good weather when the 
fish are biting, he could harvest his CDQ allotment and his subsistence 
halibut as well. This scenario specifically contemplated that the 
harvest of legal-sized halibut in excess of a CDQ limit would be 
claimed as subsistence halibut. However, a CDQ fisherman who is not 
eligible for subsistence fishing would remain subject to an overage 
violation. Therefore, NMFS does not believe that allowing retention of 
CDQ and subsistence halibut in Areas 4C, 4D, and 4E will compromise 
enforcement.
    NMFS also disagrees that all subsistence halibut should be 
offloaded and weighed. NMFS does not believe that the estimated 
removals in Areas 4C, 4D, and 4E warrant reporting requirements any 
more stringent than those required of subsistence fishermen in other 
areas. NMFS understands and agrees with the desire to obtain an 
accurate accounting of halibut removals. However, according to the 2003 
subsistence halibut survey, only 7.9 percent of the total removals of 
halibut in the subsistence fishery occurred in Areas 4C, 4D, and 4E 
combined. The estimated subsistence removals in Areas 4C, 4D, and 4E 
combined account for only 0.1 percent of the total halibut removals in 
Alaska. Therefore, NMFS sees no reason to increase the reporting burden 
on the subsistence fishermen in Areas 4C, 4D, and 4E by requiring them 
to weigh subsistence halibut when caught with CDQ halibut given the 
relatively low impact on the halibut resource in those areas.
    Comment 11: The IPHC supports the proposed change to eliminate gear 
restrictions in the subsistence fishery in Areas 4C, 4D, and 4E because 
it prevents a conflict with commercial fishery gear.
    Response: NMFS notes this support.
    Comment 12: NMFS should wait for more factual information and 
should not rely on unsubstantiated perceptions of increased halibut 
removals because of the subsistence fishery before imposing more 
restrictions. There should be no increase in restrictions in the Sitka 
area unless there is factual evidence to justify the increase.
    Response: Increased restrictions in Area 2C and the Sitka Local 
Area Management Plan (LAMP) were recommended by the Council as part of 
this action in response to public testimony and written comments. Based 
on public testimony and other available anecdotal information about 
localized depletion in Area 2C and the Sitka LAMP, NMFS agrees that the 
restrictions implemented in this action are necessary to address those 
concerns about localized depletion based on the correlation of 
increased access in areas of high human population density. See also 
Response under Comments 1 and 7.
    Comment 13: The daily retention limit of 20-fish-per-vessel in Area 
2C should be 10 or less.
    Response: The Council assessed alternative harvest limits based on 
the need to balance customary and traditional needs with concerns about 
localized depletion and the use of the halibut resource by commercial 
and sport fishermen. Based on these alternatives, the Council 
determined that 20-halibut-per-vessel strikes the most appropriate 
balance.
    Comment 14: The CHP system as described in the proposed rule is far 
too restrictive and will not allow for tribes and rural communities to 
meet their subsistence needs through the customary and traditional use 
of community harvesters. The CHP system should allow up to five vessels 
per day to harvest halibut under the proposed system.
    Response: The Council recommended a CHP program that would serve as 
an alternative to proxy fishing in addition to mitigating the impacts 
of the more restrictive measures in Area 2C. The Council also clarified 
that a CHP may be issued by NMFS only to Alaska Native tribes or 
government entities of small, remote coastal communities where a 
pattern of subsistence harvest is established that includes community 
harvesters and that such permits may be developed and implemented 
through cooperative agreements. Also, the Council recommended including 
restrictions on gear and harvest limits, which are consistent with 
customary and traditional harvest patterns and practices, and are 
sufficient to meet the subsistence needs of the community.
    In July 2002, the Council's Halibut Subsistence Committee suggested 
that only one CHP be issued per tribal or community entity. However, 
NMFS was left broad discretion to develop the details of the limits and 
administration of the CHP. Following consultation with tribal 
representatives, NMFS agrees that each eligible tribe or community 
should be qualified to receive up to five permit cards with each CHP, 
which would allow for increased efficiency and would nominally change 
the administration of the permit at the CHP Permit Coordinator level.
    Comment 15: Tribes are concerned about the implications of holding 
the tribe, the permit coordinator, and the harvester ``jointly and 
severally liable'' for violations involving the special permits. It may 
be hard to convince someone to serve as a permit coordinator if the 
consequence of a mistake results in jail or a fine.
    Response: Because of the liberalized restrictions under the special 
permits, the Council recommended that the permits be subject to 
sanctions under NMFS authority. Because of their indirect 
administration through a tribal or community entity, special permits 
would be subject to joint and several liability. This approach is 
consistent with NOAA Enforcement's approach to joint and several 
liability in other fisheries, which places responsibility for 
violations on the vessel owner, vessel operator, and, potentially, crew 
members.
    Joint and several liability means each liable party is individually 
responsible for the entire obligation. For instance, if NMFS finds a 
CHP harvester in violation of the regulations, depending on the facts 
of the case, the harvester, the CHP Coordinator, and the tribe may all 
be subjects of an enforcement action. NOAA Enforcement retains a high 
degree of discretion in administering penalties under 15 CFR part 904.
    Comment 16: Thirty days is too few for an educational permit. 
Educational permits should last at least 90 days.
    Response: The Ceremonial and Educational Permits were based on 
existing U.S. Fish and Wildlife (USFWS) and National Park Service (NPS) 
ceremonial permits as requested by the tribes. The permits administered 
by USFWS and NPS provided a 15-day effective permit period. NMFS 
decided that 15 days would be too restrictive and burdensome on the 
tribes and determined that the effective permit period should be 30 
days.
    NMFS understands that tribes would like the Educational Permits to 
extend

[[Page 16746]]

90 days to accommodate the summer culture camps. However, NMFS believes 
providing multiple permits over the same 90-day period will enhance 
data quality and ensure that permits are not misused.
    Comment 17: It seems unreasonable to limit the administration of 
the special permits to only one permit coordinator. What if the permit 
coordinator gets sick or is unable to attend to their duties? Taking 
the opportunity to subsistence fish when the time is right is too 
important to forfeit if the coordinator is not available.
    Response: One of the purposes of the CHP Coordinator, Ceremonial 
Permit Coordinator, or the Instructor is to ensure a verifiable point 
of contact and sufficient control of the permit. As proposed, the 
tribes must designate a single individual as the primary person 
responsible for the Ceremonial or Educational Permit. Making a single 
individual responsible for the permit ensures accuracy of data and 
proper administration. However, as proposed, the regulations would not 
allow for any delegation of permit responsibilities in the event of 
incapacitation of the permit coordinator. Therefore, the regulations 
will be revised to indicate that the permit coordinator remains the 
principal authority responsible for the administration of the permit, 
but will allow flexibility for an alternate to be designated in the 
absence or unavailability of the designated permit coordinator.
    Comment 18: If a CHP is to expire after only one year, it should be 
reissued automatically.
    Response: The potential for abuse of the liberal provisions of the 
CHP requires an annual expiration and application process. The annual 
application process would allow NMFS to assess subsistence halibut 
harvests, ensure compliance with the CHP regulations, and withhold new 
permits if necessary.
    Comment 19: The CHP program should be open only to tribes and those 
communities without tribal governments that can demonstrate a customary 
and traditional pattern of community harvesters.
    Response: The Council clarified its intent that all eligible Area 
2C communities listed in 50 CFR 300.65(f) would be eligible for CHPs 
because they are subject to the additional vessel limit restrictions. 
The Council's Advisory Panel (AP) recommendations specifically 
referenced the Halibut Subsistence Committee description of the CHP 
system, which suggested population size (i.e., 500) as a potential 
criterion for CHP eligibility. However, the Council did not adopt this 
recommendation. Therefore, all Area 2C communities, except those in 
which an eligible tribe exists, and tribes listed in 50 CFR 300.65(f) 
may request these permits under this rule.
    One of the principle tenets of the Subsistence Halibut Program and 
customary and traditional use is the sharing of halibut with others. 
Objectively determining at what level of sharing a single individual 
becomes a ``community harvester'' would be difficult without defined 
criteria. Therefore, NMFS does not intend to define a customary and 
traditional pattern of community harvesters beyond the criteria 
provided by the Council that establishes the CHP program.

Comments on the Analysis of Proposed Changes Addressed by the Council 
in December 2004

    Comment 20: The halibut stocks in the Sitka LAMP are not suffering 
from the subsistence halibut fishery.
    Response: The Council recommended a longline closure area around 
Low Island in the Sitka Lamp during the summer months. The local waters 
south of Low Island are reported to be the center of high halibut 
production for fishermen using small skiffs. The prohibition on use of 
longline gear in this area would improve the harvesting success of 
those fishermen. This action is not intended to resolve a resource 
conservation issue in the Sitka LAMP, but instead attempts to equitably 
allocate the resource among different users.
    In December 2004, the Council recommended increased gear and 
harvest restrictions in the Sitka LAMP. This action does not address 
those recommendations. Proposed implementing rules for the increased 
gear and harvest restrictions in the Sitka LAMP will be published in 
the Federal Register for public comment at a later date.
    Comment 21: Fishing for subsistence halibut from a registered 
charter vessel should be limited to the immediate family members of the 
vessel owner.
    Response: In December 2004, the Council recommended a revision to 
the definition of a charter vessel. This action does not address the 
use of charter vessels for the harvest of subsistence halibut. Proposed 
implementing rules for the revised charter vessel definition will be 
published in the Federal Register for public comment at a later date.
    Comment 22: The number of charter clientele on a charter boat 
should be capped.
    Response: This action does not address the management of charter 
vessels.
    Comment 23: The State of Alaska Department of Fish and Game 
recommends changing gear restrictions in the Kodiak Island road zone, 
Prince William Sound, and Cook Inlet to 5-hooks-per-fisher to achieve 
consistency with State regulations for groundfish in those areas.
    Response: In December 2004, the Council recommended increased gear 
and harvest restrictions in the Kodiak Island road zone. This action 
does not address those increased gear restrictions. Proposed 
implementing rules for the gear restrictions in the Kodiak Island road 
zone will be published in the Federal Register for public comment at a 
later date.
    Comment 24: The $400 annual limit for customary and traditional 
exchange should be eliminated so that there are no cash sales.
    Response: This rule does not address customary trade of halibut. In 
December 2004, the Council recommended revising the customary trade 
limit for subsistence halibut. Proposed implementing rules for changes 
in the customary trade limit will be published in the Federal Register 
for public comment at a later date.
    Comment 25: There should be a possession limit equal to the daily 
bag limit.
    Response: This rule does not address a possession limit for 
halibut. In December 2004, the Council recommended a possession limit 
for IPHC Areas 2C, 3A, and 3B. Proposed implementing rules for a 
possession limit will be published in the Federal Register for public 
comment at a later date.
    Comment 26: NMFS should impose a 20-fish-per-season or annual limit 
like commercial halibut because the 20-fish-per-day limit is 
excessively high and a threat to the fishery.
    Response: The 20-halibut-per-day catch limit is not excessive in 
light of its purpose, which is to provide a reasonable daily catch 
limit for a person that is subsistence fishing in order to supply food 
for his or her family and community. Proxy fishing is not provided for 
under the Subsistence Halibut Program. Therefore, the daily catch limit 
should be sufficient to allow the fisherman to supply fish to persons 
other than himself. Moreover, subsistence fishermen typically do not 
harvest more fish than they actually need and will use.
    The customary and traditional practice of subsistence fishing does 
not include wasting fish. Hence, subsistence

[[Page 16747]]

fishing is self-limiting by the amount of halibut that a subsistence 
fisherman and his or her family can reasonably use for food. Although a 
20-fish-per-day limit appears high for an individual, it allows a 
subsistence fisherman to harvest a sufficient amount of halibut to 
share with his or her family and community. It does not mean that a 
subsistence halibut fisherman will be going out every day to catch 20 
halibut. The 20-halibut-per-day-limit merely allows for efficiency in 
harvesting subsistence halibut up to an amount that they will 
reasonably be able to prepare and store. NMFS intends for the 
restrictions on halibut harvest in Area 2C to continue to allow for a 
reasonable daily catch limit while addressing localized depletion 
concerns.
    NMFS also disagrees that subsistence fishermen should be subject to 
an annual allocation and the associated monitoring and reporting 
requirements analogous to the individual fishing quota program for the 
commercial halibut fishery. Surveying registered fishermen is the same 
methodology used to estimate sport halibut harvests by the State of 
Alaska and NMFS does not believe the subsistence halibut fishery should 
be subjected to a more robust estimation procedure than is the sport 
halibut fishery when, according to existing data, the latter group 
harvests several times as many halibut as the former. Therefore, NMFS 
does not believe the subsistence fishery should be subject to an annual 
limit or quota and the associated monitoring and reporting requirements 
as the commentator would suggest.
    Nevertheless, subsistence use of halibut may conflict with other 
uses of the resource, particularly in more populated areas of Alaska. 
In response to this concern, the Council in December 2004, recommended 
additional gear and harvest restrictions in the densely populated areas 
of the Sitka LAMP and the Kodiak Island road zone in addition to a 
possession limit in IPHC Areas 2C, 3A, and 3B. However, this action 
does not address the Council's December recommendations. Proposed 
implementing rules for the Council's December recommendations will be 
published in the Federal Register for public comment at a later date.
    Comment 27: Recordkeeping requirements should be imposed on 
subsistence fishermen to track customary trade of halibut. Customary 
trade can also lead to inaccurate data on the actual level of 
subsistence harvest because it encourages halibut IFQ holders to 
characterize ``home pack'' as subsistence harvest.
    Response: This rule does not address customary trade of halibut. In 
December 2004, the Council recommended revising the customary trade 
limit for subsistence halibut. Proposed implementing rules for 
customary trade of subsistence halibut will be published in the Federal 
Register for public comment at a later date.

Comments Directed at the Overall Subsistence Halibut Policy

    Comment 28: Commercial IFQ permit holders are using the subsistence 
fishery as a means to increase their quota without proper accounting 
and are fishing for untold family members. The subsistence halibut 
regulations on retention and customary trade remain too permissive, 
allowing for large scale abuses by commercial interests such as lodge 
operators and the entry of subsistence halibut into commercial markets.
    Response: One of the purposes of the Subsistence Halibut Program 
was to allow for the customary and traditional practice of sharing. 
This purpose is achieved by allowing harvesters to retain halibut 
beyond their own immediate needs for distribution to members of their 
family, friends, or others in the community. Under 50 CFR 300.66(h) 
retention of subsistence halibut with commercial halibut is prohibited 
except in limited circumstances in Areas 4C, 4D, and 4E. Additionally, 
under 50 CFR 300.66(j), it is unlawful for persons to retain or possess 
subsistence halibut for commercial purposes, cause subsistence halibut 
to be sold, bartered or otherwise enter commerce, or solicit exchange 
of subsistence halibut for commercial purposes. Therefore, fishing for 
or retaining subsistence halibut by an IFQ holder when commercial 
fishing for halibut or allowing subsistence halibut to enter commerce 
would be illegal.
    NOAA Enforcement will pursue identified abuses of the Subsistence 
Halibut Program, including any violations of the regulations regarding 
customary trade. NMFS also encourages anyone who observes illegal 
activity in the subsistence halibut fishery to contact NOAA 
Enforcement.
    Comment 29: Subsistence halibut should be required to be marked or 
identified in some manner, and mandatory logs or reports of fishing 
locations, quantities harvested, and amounts of gear used, should be 
required.
    Response: The harvest of subsistence halibut and certain species 
taken incidental to subsistence halibut fishing is estimated based on 
the subsistence halibut survey. This survey indicates that subsistence 
halibut harvests are low relative to other sources of halibut fishing 
mortality. Hence, NMFS determined that the estimation of subsistence 
harvests does not need to be any more precise, or the reporting 
requirements any more robust than those used for estimating the sport 
harvest of halibut. Sport harvest of halibut is 9.3 percent of total 
halibut removals, which is substantially larger than subsistence 
harvest, which is 1.3 percent of total halibut removals.
    Marking fish would constitute a regulatory burden with no 
corresponding enforcement or data collection value.
    Comment 30: The non-subsistence areas in Juneau, Sitka, and 
Ketchikan have wrongfully restricted Alaska Native's right to subsist 
in areas that have been traditionally used to subsistence fish for 
halibut.
    Response: The Council adopted and NMFS approved the definition 
developed by the Alaska Joint Board of Fisheries and Game for non-
subsistence areas. The designated areas include the Anchorage-Matsu-
Kenai, Prince William Sound, Juneau, and Ketchikan non-subsistence 
areas as defined in the Alaska Administrative Code (5 AAC 99.105) and 
50 CFR 300.65. No subsistence fishing for halibut may occur within the 
boundaries described under these designations. Since the implementation 
of the Subsistence Halibut Program, NMFS and the Council received 
public testimony and written comments stating the non-subsistence areas 
exclude eligible tribes from their customary and traditional fishing 
grounds and result in a safety hazard by forcing eligible subsistence 
fishermen to travel excessive distances to fish for subsistence 
halibut.
    In December 2004, the Council recommended allowing the use of 
Ceremonial and Educational Permits in the non-subsistence areas. 
Proposed implementing rules for allowing the Ceremonial and Educational 
Permits in non-subsistence areas will be published in the Federal 
Register for public comment at a later date.
    Comment 31: Alaska Natives have customary and traditional use 
rights which supersede State and Federal restrictions in the 
Subsistence Halibut Program. Subsistence fishing for halibut should 
have priority over commercial or sport fisheries.
    Response: The Halibut Act, under which the Subsistence Halibut 
Program is authorized, provides for fair and equitable allocation of 
halibut fishing privileges among U.S. fishermen, but does not establish 
an order of priority for those allocations. Allocation policy

[[Page 16748]]

is made by the Council. NMFS will review policy recommendations for 
fairness, equity, and consistency with the Halibut Act and other 
applicable law.
    Comment 32: NMFS should employ a catch record card (CRC) system for 
the Subsistence Halibut Program.
    Response: Although the suggested CRC method for estimating 
subsistence harvests is a reasonable alternative to the methodology 
used in the subsistence halibut survey conducted by ADF&G, the CRC 
method would be more complex and burdensome for the subsistence 
fishermen. The suggested CRC method presents the following problems: 
(1) agency action would be required to record and calculate the data 
reported on the CRCs, (2) the CRC method may produce a marginal 
increase in the precision and accuracy of the subsistence halibut 
harvest estimates, but surveying registered fishers is the same 
methodology used to estimate sport halibut harvests in Alaska and it is 
not clear why the subsistence halibut fishery should be subjected to a 
more robust estimation procedure than is the sport halibut fishery 
when, according to existing data, the latter harvests several times as 
many halibut as the former, (3) conducting a mail survey in parallel 
with a CRC requirement would substantially increase the reporting 
burden on affected fishermen, and (4) the SHARC system serves the same 
purpose, i.e., to distinguish the group of persons who intend to fish 
for subsistence halibut from the universe of those eligible to do so. 
This burden may be justified in the future, based on experience with 
the survey method, but for now is deemed unnecessary.
    Comment 33: NMFS should set a size limit on halibut in order to 
protect future stocks.
    Response: Size limits for biological purposes are established by 
the IPHC and do not represent an allocation measure assigned to the 
Council or NMFS under the Halibut Act. Proposals for biological 
management measures for halibut may be submitted to the IPHC.
    Comment 34: Subsistence fishermen should be required to retrieve 
their gear in a timely manner.
    Response: Currently, no regulations exist in any Federally managed 
fishery in the North Pacific that restricts the amount of time any form 
of gear is allowed to remain or ``soak'' in the water. Moreover, NMFS 
has no information on which to base such a restriction. Therefore, NMFS 
has no intention of regulating the soak time of subsistence fishing 
gear until information on the need for and implementation of such a 
management measure is developed.
    Comment 35: NMFS should cooperate more with the tribal 
representatives to gather information about the subsistence fishery.
    Response: Executive Order 13175 directs agencies to consult and 
coordinate with tribes on regulatory issues. NMFS regularly consults 
with Alaska Native representatives through the Alaska Native 
Subsistence Halibut Working Group. NMFS agrees that cooperating with 
the affected Alaska Native tribes will foster trust between the agency 
and subsistence fishermen and generally assure the success of the 
Subsistence Halibut Program. In developing its subsistence policy, the 
Council specifically recommended cooperative agreements with tribal, 
state, and Federal governments for harvest monitoring and general 
oversight of issues affecting subsistence halibut fishing. NMFS intends 
to continue to adhere to the Council's guidance and to consult with 
Alaska Native tribal representatives.
    Comment 36: The subsistence halibut fishery should be discontinued 
and a valid accounting made of the commercial catch.
    Response: The subsistence halibut fishery occurred for a long time 
before NMFS recognized longstanding customary and traditional practices 
among Alaska Native and rural residents of Alaska through regulations. 
The subsistence halibut fishery serves a valid purpose in allowing 
those eligible to provide sustenance for themselves, their families, 
and their communities. NMFS believes that the Subsistence Halibut 
Program has been successful in achieving that purpose. Therefore, NMFS 
does not intend to discontinue the Subsistence Halibut Program.
    This rule does not address the commercial halibut fishery. The 
commercial catch of halibut is managed through an individual fishery 
quota (IFQ) system. The IFQ program provides a specific allocation of 
the total allowable catch of a species or fishery to a qualified 
person. Fishing for that allocation is subject to strict recordkeeping 
and reporting requirements and the responsible person may not exceed 
that limit without significant penalties. Consequently, the IFQ halibut 
fishery management system constitutes an appropriately valid accounting 
of IFQ halibut and sablefish.
    Comment 37: Regulations should legitimize the existing halibut 
subsistence fishery without expanding or creating a new one.
    Response: One of the stated goals of the original subsistence 
halibut action was to formalize a heretofore unrecognized fishery (68 
FR 18145, April 15, 1003, EA/RIR). In the original analysis for the 
Subsistence Halibut Program the Council originally estimated harvest of 
subsistence halibut to be approximately 1.5 million pounds net (68 FR 
18145, April 15, 2003, EA/RIR). The subsistence halibut survey 
conducted by ADF&G for 2003 indicates with a relatively high degree of 
confidence that the subsistence halibut fishery removed only 1.041 
million pounds net. Prior estimates for subsistence halibut removals in 
individual IPHC areas are also fairly consistent with findings in the 
subsistence halibut survey. For instance, modest increases to 
subsistence halibut removals were recorded in Areas 2C and 3A of 
roughly 125,000 pounds each, but little or no increase was measured in 
the remaining IPHC areas. Therefore, based on the best available 
information provided in the 2003 subsistence halibut survey, NMFS 
believes that it has recognized in regulations the existing halibut 
subsistence fishery without expanding or creating a new one.
    Comment 38: NMFS seriously underestimated interest in subsistence 
halibut fishing in Alaska, which has resulted in higher levels of 
subsistence halibut harvest than originally anticipated.
    Response: The analysis prepared for the original Subsistence 
Halibut Program estimated that approximately 89,000 individuals would 
be eligible to harvest subsistence halibut (68 FR 18145, April 15, 
2003, EA/RIR). NMFS originally estimated that approximately 10 percent 
of the eligible population would apply for the Subsistence Halibut 
Program. Thus, NMFS originally anticipated approximately 8,900 
individuals to apply for and potentially participate with a subsistence 
halibut registration certificate.
    According to the recent subsistence halibut survey conducted by 
ADF&G, of the 11,625 individuals registered to fish for subsistence 
halibut only an estimated 4,935 individuals actually fished in the 
subsistence halibut fishery. Therefore, actual participation in the 
fishery is well below the original estimate.
    Additionally, the analysis estimated harvest of subsistence halibut 
would be approximately 1.5 million pounds net (68 FR 18145, April 15, 
2003, EA/RIR). The subsistence halibut survey conducted by ADF&G for 
2003 indicates with a relatively high degree of confidence that the 
subsistence halibut

[[Page 16749]]

fishery removed only 1.04 million pounds net, which is considerably 
less than the Council's original estimate of 1.5 million pounds net. 
Therefore, actual subsistence halibut harvest is lower than originally 
anticipated as indicated by the best available data.
    Comment 39: NMFS has failed to set adequate limits for the new 
subsistence halibut fishery or for the unguided sport fishery for 
halibut.
    Response: The gear and harvest restrictions proposed by the Council 
and implemented by NMFS strike an adequate balance between the needs of 
subsistence fishermen and conservation of the resource. See also 
Response under Comments 1 and 7.
    This rule does not address the sport fishery for halibut.
    Comment 40: Inaccurate estimates by NMFS of the actual levels of 
subsistence halibut harvest pose a risk to the halibut biomass as a 
whole, especially in light of recent IPHC data estimating that the 
exploitable biomass of halibut will continue to decline. This will 
potentially result in adverse effects to the halibut resource and all 
users of the halibut resource.
    Response: In the original analysis for the Subsistence Halibut 
Program, the Council estimated total harvest for the subsistence 
fishery at 1.5 million pounds net (68 FR 18145, April 15, 2003, EA/
RIR). The subsistence halibut survey conducted by ADF&G for 2003 
indicates with a relatively high degree of confidence that the 
subsistence halibut fishery removed only 1.04 million pounds net, which 
is considerably less than the Council's original estimate. 
Additionally, the subsistence halibut survey indicates that only 1.3 
percent of the total halibut removals in Alaska are attributed to the 
subsistence fishery. The level of subsistence halibut removals for 
subsistence is far less than the commercial harvest (73.5 percent), 
bycatch in other commercial fisheries (13.9 percent), the sport harvest 
(9.3 percent), or even wastage within the commercial halibut fishery 
(2.0 percent). Therefore, no reasonable basis exists to indicate the 
subsistence fishery poses a conservation risk or will adversely affect 
the halibut resource.
    Nonetheless, the allocation for the commercial fishery may be 
adversely affected as the IPHC calculation of exploitable biomass 
continues to decrease. Recent subsistence and sport removals have 
tended to either remain constant or increase consistent with population 
trends and economic factors in Alaska. Because subsistence and sport 
caught removals are deducted from the exploitable biomass before 
allocation to the commercial fishery, this could result in a lower 
proportional share of the overall halibut resource for commercial 
exploitation as biomass decreases.
    Comment 41: NMFS should not allow retention of any sport or 
commercial fish species with subsistence halibut because it increases 
the risk that subsistence halibut could be used clandestinely as bait, 
sold, or abused in other ways.
    Response: The current halibut regulations prohibit the retention of 
subsistence halibut with commercial or sport caught halibut with 
limited exceptions in the Bering Sea. However, no prohibition exists 
regarding the retention of other commercial or sport caught species 
with subsistence halibut. For instance, a subsistence halibut fisherman 
could lawfully retain Dungeness crab caught using a sport fishing 
license along with subsistence halibut. Likewise, a commercial salmon 
troller could retain subsistence halibut along with commercially caught 
salmon, provided he or she is an eligible subsistence fisherman and 
abides by the gear and harvest restrictions for subsistence halibut.
    NMFS currently does not perceive a problem with allowing the 
retention of sport caught fish of other species with subsistence 
halibut. Fishermen often harvest and retain a variety of species 
simultaneously subject to their personal tastes and subsistence needs. 
However, NMFS may seek to restrict retaining sport caught fish of other 
species with subsistence halibut in the future if available information 
suggests that allowing that practice adversely affects management of 
the Subsistence Halibut Program.
    NMFS recognizes that a ``substitution effect'' could occur when a 
commercial fisherman has the opportunity to retain subsistence halibut 
with commercial fish of other species. This means the salmon troller 
might retain a subsistence halibut for personal use where he otherwise 
would have retained a commercially caught salmon. There potentially 
would also be an ``income effect'' that would encourage the salmon 
troller to sell the commercially caught salmon he might have otherwise 
kept absent the availability of subsistence halibut. However, there are 
many variables that might influence a commercial fisherman to 
substitute subsistence halibut for salmon or any other commercially 
caught species and retention of subsistence halibut is self limiting to 
the needs of the individual, their family, or their community. 
Therefore, NMFS does not believe there is sufficient reason to restrict 
the retention of subsistence halibut along with commercially caught 
fish of other species. Nonetheless, NMFS encourages the commentator to 
provide his comment to the Council for further review and 
consideration.
    Comment 42: A full EIS should have been prepared for the original 
proposed subsistence halibut rules because substantial uncertainty and 
biological controversy exists. The Subsistence Halibut Program 
underestimates the magnitude of the actual subsistence halibut harvest 
and insufficiently discerns areas where harvest impacts on halibut and 
other species are likely to be concentrated.
    Response: For the original subsistence halibut policy, the Council 
prepared an environmental assessment (EA) that analyzed and described 
the impact on the human environment that would result from 
implementation of this action. The EA indicated that the preferred 
alternative for the Subsistence Halibut Program did not pose public 
health and safety impacts, had no known risks to the human environment, 
and was not expected to cause significant cumulative impacts. NMFS 
believes that the EA adequately addressed the impact on the human 
environment and appropriately concluded that there were no significant 
cumulative impacts.
    Comment 43: There is an unacceptable risk of cumulative impacts on 
non-halibut species of fish that will be retained as bycatch by 
subsistence halibut fishermen.
    Response: The EA for the original Subsistence Halibut Program used 
incidental catch rates for commercial longline gear to estimate 
potential incidental catch in the subsistence halibut fishery. The EA 
estimated that halibut longline gear could result in incidental catch 
rates of 10-18 percent for rockfish in Area 2C; 27 percent for 
sablefish and 12 percent for Pacific cod in the Gulf of Alaska; and 15 
percent for rockfish, 29 percent for sablefish, 14 percent for Pacific 
cod and 11 percent for Greenland turbot in the Bering Sea and Aleutian 
Islands. Although the estimates of these percentages based on 
commercial incidental catch rates provide an indication of potential 
incidental catch rates in the subsistence halibut fishery, no directed 
studies have been done to assess the effects of the subsistence halibut 
fishery on non-halibut species. However, as part of the 2003 
subsistence halibut survey, the incidental catch of rockfish and 
lingcod was estimated in the subsistence halibut fishery. The increased 
restrictions for Area 2C were based in part on the potential incidental 
catch of rockfish

[[Page 16750]]

and lingcod in the subsistence halibut fishery. Therefore, for the 
purposes of this response, NMFS will focus on Area 2C.
    The ADF&G Sport Fish Division survey for Southeast Alaska (IPHC 
Area 2C) indicates that 55,394 rockfish and 10,656 lingcod were 
harvested in the sport fishery in 2003. The subsistence halibut survey 
indicates that 14,870 rockfish and 3,298 lingcod were harvested from 
Area 2C as incidental catch in the subsistence halibut fishery in 2003. 
Therefore, the subsistence fishery harvested only 31 percent of the 
amount of lingcod and 27 percent of the amount of rockfish harvested by 
the sport fishery in Area 2C.
    Commercial landings for lingcod and rockfish are reported in landed 
pounds and no adequate conversion factors exist to extrapolate 
commercial landed pounds into total individual fish harvested or vice 
versa for comparison with sport and subsistence harvests. However, the 
ADF&G Commercial Fish division data for 2003 indicate that 1,729,812 
pounds of rockfish and 288,173 pounds of lingcod were landed from Area 
2C.
    Given the relatively low numbers of rockfish and lingcod retained 
by subsistence fishermen as indicated by the subsistence halibut survey 
in comparison with the commercial and sport fisheries, NMFS does not 
believe that the subsistence halibut fishery will have a significant 
direct or cumulative impact on non-halibut species. Consequently, NMFS 
does not believe that the subsistence halibut fishery represents an 
unacceptable risk to the non-halibut species caught as incidental catch 
in the fishery.

Changes from the Proposed Rule

    The comments received on the proposed rule made some suggestions 
for change with which NMFS agrees. Hence, NMFS has changed regulatory 
text in this action from what was published in the proposed rule. None 
of these changes make substantive changes to the subsistence halibut 
management program described in the preamble to the proposed rule. 
These changes are identified and explained as follows.
    1. NMFS intended that the fishing gear used under a CHP be limited 
to 30 hooks per person in possession of a valid subsistence halibut 
registration certificate and on board the vessel and not exceed 3 times 
the per-person hook limit. NMFS also intended that the gear used under 
a Ceremonial or Educational Permits be limited to 30 hooks per vessel. 
These limitations were clear in the preamble to the proposed rule. The 
regulatory text published in the proposed rule, however, was not 
explicitly clear. This lack of specificity and potential ambiguity in 
the proposed regulatory text was discovered subsequent to the 
publication of the proposed rule. Hence, the regulatory text at 
Sec. Sec.  300.65(g)(1)(I), 300.65(i)(3)(iv), and (j)(3)(vi) is changed 
from what it was in the proposed rule to clarify the gear limitation 
for a CHP, Ceremonial Permit, and Educational Permit.
    2. NMFS intended that the operation of the special permits consist 
of a permit log that is maintained by the permit coordinator and a 
permit card that must be on board the vessel when fishing under the 
applicable special permit. This was clear in the preamble to the 
proposed rule, but was not explicitly clear in the regulatory text. 
This lack of specificity and potential ambiguity in the proposed 
regulatory text was discovered subsequent to the publication of the 
proposed rule. Thus, the regulatory text at Sec. Sec.  300.65(i), 
(i)(3)(iii), (j), and (j)(3)(iii) is changed from what it was in the 
proposed rule to clarify that a permit card must be on board the vessel 
when fishing under a special permit.
    3. A change was suggested in Comment 14 to allow up to five 
separate vessels to fish under a CHP. NMFS agrees that the proposed CHP 
system is not consistent with customary and traditional harvest 
patterns and practices or sufficient to meet the subsistence needs of 
the affected communities and tribes. Under the proposed change, 
eligible tribes and communities would continue to receive one CHP, but 
could receive up to five laminated permit cards. This requirement would 
increase the administrative responsibilities of the CHP Permit 
Coordinator, but would allow for greater efficiency in conducting 
community harvest according to customary and traditional methods and 
needs. NMFS agrees with this suggestion for this purpose and finds that 
this change from the proposed rule is not substantive. The regulatory 
text at Sec.  300.65(i) is changed from what it was in the proposed 
rule to indicate that five permit cards would be issued with the CHP, 
allowing up to five 5 vessels to fish simultaneously under a CHP.
    4. Another change, based on recommendations in Comment 17, would 
allow flexibility in the administration of the special permits by 
permit coordinators. This is necessary to allow for the use of the 
special permits if the permit coordinator becomes incapacitated or is 
otherwise unavailable. Hence, NMFS changed the regulatory text at 
Sec. Sec.  300.65(i)(5)(i)-(iii) and Sec. Sec.  300.65(j)(5)(i)-(iii) 
from what was published in the proposed rule to indicate that the 
permit coordinator would remain ultimately responsible, but that the 
applicable permit may be administered by a designee.

Classification

    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA) and which has been approved by OMB 
under control number 0648-0512. Public reporting burden for this 
collection of information is estimated to average 10 minutes per 
response for each permit application and 30 minutes per response for 
each harvest log, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding these burden estimates or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and to OMB by e-mail [email protected] or 
fax 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this action that examines regulations regarding the legal harvest of 
halibut for subsistence use in Convention waters in and off Alaska. The 
FRFA evaluates the small entity impacts for an action to amend 
subsistence halibut regulations affecting proxy fishing and the 
development of a ceremonial/cultural harvest permit system and an 
educational harvest permit system in Areas 2C and 3A. This action is 
believed to have the potential to result in a significant impact on a 
substantial number of small entities, as defined under the Regulatory 
Flexibility Act. The FRFA addresses the requirements of the Regulatory 
Flexibility Act at section 604(a).
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared for 
two regulatory changes to issue permits to Alaska Native Tribes or 
community entities under the Action 1 preferred alternative, which are 
believed to have the potential to result in a significant impact on a 
substantial number of small entities. Special permits proposed in this 
rule would impact small entities in the form of small government

[[Page 16751]]

jurisdictions with fewer than 50,000 residents. The special permits 
represent the only aspect of this action that affects small entities. 
The remainder of the action bears exclusively on the non-commercial 
activities of ``individuals,'' which are subsequently excluded from the 
RFA.
    The purpose and need for this action is to provide for improved 
safety at sea, recognition and accommodation of traditional Native 
customs and practices, facilitation of efficient acquisition of 
subsistence food, reductions in waste and discards, and promotion of 
halibut conservation. Special permits administered under this action 
would provide for the above subsistence needs under the existing 
Subsistence Halibut Program. Twenty-nine rural communities and 19 
tribes in IPHC Area 2C and 14 rural communities and 19 tribes in IPHC 
Area 3A may be affected by this action.
    The proposed rule was published in the Federal Register on July 9, 
2004 (69 FR 41453). The IRFA prepared for the preferred alternative was 
described in the classifications section of the preamble to the 
proposed rule. The public comment period ended August 9, 2004. No 
comments were received on the IRFA.
    Specialized permits implemented by this action would require 
additional reporting for halibut harvest. The applications for the 
proposed specialized permits and additional reporting requirements 
would be designed to minimize the information collection burden on 
subsistence halibut fishermen while retrieving essential information. 
New recordkeeping and reporting requirements under this action would 
require mandatory reporting of subsistence harvests conducted under 
special permits that include community harvest permits (CHPs), 
Ceremonial Permits, and Educational Permits. All the small entities 
included in this analysis would be subject to the increased 
recordkeeping and reporting requirements. No special knowledge or 
training would be required for any recordkeeping and reporting 
requirements for the special permits implemented under this action.
    The Council analyzed five alternatives for this action. These 
alternatives addressed varying applications of each special permit 
under this proposed rule including a no action alternative and the 
selected preferred alternative. Under Alternative 1, the no action 
alternative, the status quo would be maintained and no special permits 
would issue to Alaska Native tribes or rural communities under the 
Subsistence Halibut Program. Alternative 2 analyzed the development of 
a proxy system, but did not include special permits. Alternative 3 
analyzed the development of a proxy system in conjunction with 
community harvest permits. Alternative 4 and Alternative 5 (the 
preferred alternative) recommended the development of special permits 
in the form of ceremonial/cultural permits and community harvest 
permits.
    The Council determined that the Alternatives 1 through 4 failed to 
meet the goals of the Subsistence Halibut Program to provide for 
improved safety at sea, recognition and accommodation of traditional 
Native customs and practices, facilitation of efficient acquisition of 
subsistence food, reductions in waste and discards, and promotion of 
halibut conservation. The Council determined that implementing special 
permits according to the preferred alternative would provide a means to 
meet these goals by establishing a system that provides for better 
harvest assessment and stock monitoring while recognizing the unique 
character of the Alaska Native tribes and rural communities. For the 
Community Harvest Permits, the Council selected a permit system based 
on the recommendations of the Halibut Subsistence Committee as opposed 
to a proxy system based on the model provided by the State of Alaska. 
The Council believed that a proxy system would fail to provide adequate 
harvest assessment and would present cumbersome management and 
enforcement problems. Therefore, the Council concluded that Community 
Harvest Permits would more closely adhere to the customary and 
traditional fishing practices of Alaska Native tribes and rural 
communities, which historically used individuals with particular 
expertise in halibut to harvest halibut for most or all of the tribe or 
community. For the Ceremonial and Educational Permits, the Council 
selected a permit system modeled after the U.S. Fish and Wildlife 
Service's subsistence permit programs because that permit system 
represented a proven system that corresponded well with the similar 
subsistence goals of the Subsistence Halibut Program. The Council 
selected the Ceremonial and Educational Permit system to recognize the 
unique needs and characteristics of Alaska Native tribes.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

List of Subjects

50 CFR Part 300

    Fisheries, Fishing, Indians, Reporting and recordkeeping 
requirements, Treaties.

50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 25, 2005.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR parts 300 and 679 are 
amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart E--Pacific Halibut Fisheries

0
1. The authority citation for 50 CFR part 300, subpart E, continues to 
read as follows:

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


Sec.  300.63  [Amended]

0
2. In Sec.  300.63, the introductory paragraph preceding paragraph (a) 
is removed.

0
3. In Sec.  300.65, paragraphs (c) and (h)(4) are removed; paragraph 
(i) is redesignated as paragraph (c); paragraphs (d)(4) and (g)(1)(i), 
(g)(2), and (g)(3)(iii) are revised; and new paragraphs (i) through (k) 
are added to read as follows:


Sec.  300.65  Catch sharing plan and domestic management measures in 
waters in and off of Alaska.

* * * * *
    (d) * * *
    (4) No charter vessel shall engage in sport fishing, as defined at 
Sec.  300.61, for halibut within Sitka Sound, as defined in paragraph 
(d)(1)(ii) of this section, from June 1 through August 31.
    (i) No charter vessel shall retain halibut caught while engaged in 
sport fishing, as defined at Sec.  300.61, for other species, within 
Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from 
June 1 through August 31.
    (ii) Notwithstanding paragraphs (d)(4) and (d)(4)(i) of this 
section, halibut harvested outside Sitka Sound, as defined in paragraph 
(d)(1)(ii) of this section, may be retained onboard a charter vessel 
engaged in sport fishing, as defined in Sec.  300.61, for other species 
within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, 
from June 1 through August 31.
* * * * *
    (g) * * *
    (1) * * *

[[Page 16752]]

    (i) Subsistence fishing gear set or retrieved from a vessel when 
fishing under a subsistence halibut registration certificate or a 
Community Harvest Permit (CHP) must not have more than 30 hooks per 
person registered in accordance with paragraph (h) of this section and 
on board the vessel and shall never exceed 3 times the per-person hook 
limit except that:
    (A) No hook limit applies in Areas 4C, 4D, and 4E;
    (B) In Area 2C, subsistence fishing gear set or retrieved from a 
vessel when persons are fishing under a subsistence halibut 
registration certificate must not have more than 30 hooks per vessel;
    (C) In Area 2C, subsistence fishing gear set or retrieved from a 
vessel when fishing under a Ceremonial or Educational Permit pursuant 
to paragraph (j) of this section must not have more than 30 hooks per 
vessel; and
    (D) In Area 2C within the Sitka LAMP from June 1 to August 31, 
setline gear may not be used in a 4 nautical mile radius extending 
south from Low Island at 57[deg]00'42'' N. lat., and 135[deg]36'34'' W. 
long.
* * * * *
    (2) The daily retention of subsistence halibut in rural areas is 
limited to no more than 20 fish per person eligible to conduct 
subsistence fishing for halibut under this paragraph (g) and on board 
the vessel, except that:
    (i) No daily retention limit applies in Areas 4C, 4D, and 4E;
    (ii) No daily retention limit applies to persons fishing under a 
community harvest permit (CHP) pursuant to paragraph (i) of this 
section;
    (iii) The total allowable harvest for persons fishing under a 
Ceremonial or Educational Permit pursuant to paragraph (j) of this 
section is 25 fish per permit; and
    (iv) In Area 2C the daily retention limit is 20 fish per vessel.
    (3) * * *
    (iii) The Anchorage-Matsu-Kenai non-subsistence marine waters area 
in Commission Regulatory Area 3A (see Figure 4 to subpart E) is defined 
as:
    (A) All waters of Cook Inlet north of 59[deg]30.40' N. lat., except 
those waters within mean lower low tide from a point one mile south of 
the southern edge of the Chuitna River (61[deg]05.00' N. lat., 
151[deg]01.00' W. long.) south to the easternmost tip of Granite Point 
(61[deg]01.00' N. lat., 151[deg]23.00' W. long.) (Tyonek subdistrict); 
and
    (B) All waters of Alaska south of 59[deg]30.40' N. lat. on the 
western shore of Cook Inlet to Cape Douglas (58[deg]10' N. lat.) and in 
the east to Cape Fairfield (148[deg]50.25' W. long.), except those 
waters of Alaska west of a line from the westernmost point of Jakolof 
Bay (151[deg]31.09' W. long.) and following the shore to a line 
extending south from the easternmost point of Rocky Bay (151[deg]18.41' 
W. long.); and
* * * * *
    (i) Community Harvest Permit (CHP). An Area 2C community or Alaska 
Native tribe listed in paragraphs (f)(1) or (f)(2) of this section may 
apply for a CHP, which allows a community or Alaska Native tribe to 
appoint one or more individuals from its respective community or Alaska 
Native tribe to harvest subsistence halibut from a single vessel under 
reduced gear and harvest restrictions. The CHP consists of a harvest 
log and up to five laminated permit cards. A CHP is a permit subject to 
regulation under Sec.  679.4(a) of this title.
    (1) Qualifications. (i) NMFS may issue a CHP to any community or 
Alaska Native tribe that applies according to paragraph (i)(2) of this 
section and that is qualified to conduct subsistence fishing for 
halibut according to paragraph (f) of this section.
    (ii) NMFS will issue a CHP to a community in Area 2C only if:
    (A) The applying community is listed as eligible in Area 2C 
according to paragraph (f)(1) of this section; and
    (B) No Alaska Native tribe listed in paragraph (f)(2) exists in 
that community.
    (iii) NMFS will issue a CHP to an Alaska Native tribe in Area 2C 
only if the applying tribe is listed as eligible in Area 2C according 
to paragraph (f)(2) of this section.
    (iv) Eligible communities or Alaska Native tribes may appoint only 
one CHP Coordinator per community or tribe.
    (2) Application. A community or Alaska Native tribe may apply for a 
CHP by submitting an application to the Alaska Region, NMFS. 
Applications must be mailed to: Restricted Access Management Program, 
NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668. A complete 
application must include:
    (i) The name of the community or Alaska Native tribe requesting the 
CHP;
    (ii) The full name of the person who is designated as the CHP 
Coordinator for each community or Alaska Native tribe, the designated 
CHP Coordinator's mailing address (number and street, city, state, and 
zip code), community of residence (the rural community or residence 
from paragraph (f)(1) of this section) or the Alaska Native tribe if 
applicable (as indicated in paragraph (f)(2) of this section), and the 
daytime telephone number; and
    (iii) Any previously issued CHP harvest logs.
    (3) Restrictions. Subsistence fishing for halibut under a CHP shall 
be valid only:
    (i) In Area 2C, except that a CHP may not be used:
    (A) Within the Sitka LAMP defined in paragraph (d) of this section 
(see Figure 1 to subpart E); or
    (B) Within the Juneau and Ketchikan non-rural areas defined in 
paragraph (g) of this section (see Figures 2 and 3 to subpart E);
    (ii) To persons in possession of a valid subsistence halibut 
registration certificate issued in accordance with paragraph (h) of 
this section for the same community or Alaska Native tribe listed on 
the CHP;
    (iii) On a single vessel on which a CHP card is present; and
    (iv) If subsistence fishing gear set or retrieved from a vessel on 
which the CHP card is present does not exceed the restrictions of 
paragraph (g) of this section.
    (4) Expiration of permit. Each CHP will be valid only for the 
period of time specified on the permit. A CHP will expire one year from 
the date of issuance to a community or Alaska Native tribe eligible to 
harvest halibut under paragraph (f) of this section. A community or 
Alaska Native tribe eligible to harvest subsistence halibut under 
paragraph (f) of this section may renew its CHP that is expired or will 
expire within three months by following the procedures described in 
paragraph (i)(2) of this section.
    (5) Duties of the CHP coordinator. Each CHP Coordinator must 
ensure:
    (i) The designated harvesters who may fish under the CHP are 
identified on the Community Harvest Permit harvest log when the CHP is 
issued to the designated harvesters;
    (ii) The CHP remains in the possession of the CHP Coordinator or 
other tribal or government authority when not in use and is issued to 
the designated harvesters when necessary; and
    (iii) All required recordkeeping and data reporting of subsistence 
harvests under the CHP are performed.
    (6) Harvest log submission. Each Community Harvest Permit harvest 
log must be submitted to NMFS on or before the date of expiration by 
facsimile or mail. Harvest logs must be mailed to RAM at the address 
given in paragraph (i)(2) of this section or faxed to 907-586-7354. The 
log must provide information on:
    (i) The subsistence fisher's identity including his or her full 
name, subsistence halibut registration

[[Page 16753]]

certificate number, date of birth, mailing address (number and street, 
city, state, and zip code), community of residence, daytime phone 
number, and tribal identity (if appropriate); and
    (ii) The subsistence halibut harvest including whether the 
participant fished for subsistence halibut during the period specified 
on the permit, and if so, the date harvest occurred, the number and 
weight (in pounds) of halibut harvested, the type of gear and number of 
hooks used, the Commission regulatory area and local water body from 
which the halibut were harvested, and the number of lingcod and 
rockfish caught while subsistence fishing for halibut.
    (j) Ceremonial Permit or Educational Permit. An Area 2C or Area 3A 
Alaska Native tribe that is listed in paragraph (f)(2) of this section 
may apply for a Ceremonial or Educational Permit, allowing the tribe to 
harvest up to 25 halibut per permit issued. The Ceremonial and 
Educational Permits each consist of a harvest log and a single 
laminated permit card. Ceremonial and Educational Permits are permits 
subject to regulation under Sec.  679.4(a)of this title.
    (1) Qualifications. (i) NMFS may issue a Ceremonial or Educational 
Permit to any Alaska Native tribe that completes an application 
according to paragraph (j)(2) of this section and that is qualified to 
conduct subsistence fishing for halibut according to paragraph (f)(2) 
of this section.
    (ii) Eligible Alaska Native tribes may appoint only one Ceremonial 
Permit Coordinator per tribe.
    (iii) Eligible educational programs may appoint only one authorized 
Instructor per Educational Permit.
    (2) Application. An Alaska Native tribe may apply for a Ceremonial 
or Educational Permit by submitting an application to the Alaska 
Region, NMFS. Applications must be mailed to: Restricted Access 
Management Program, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 
99802-1668.
    (i) A complete application must include:
    (A) The name of the Alaska Native tribe requesting the Ceremonial 
or Educational Permit;
    (B) The name of the person designated as the Ceremonial Permit 
Coordinator for each Alaska Native tribe or the name of the person 
designated as the Instructor for an Educational Permit, the Ceremonial 
Permit Coordinator or Instructor's mailing address (number and street, 
city, state, and zip code), and the daytime telephone number;
    (C) Any previously issued Ceremonial Permit harvest logs from any 
expired Ceremonial Permit if applying for a Ceremonial Permit; and
    (D) Any previously issued Educational Permit harvest logs from any 
expired Educational Permit if applying for a Educational Permit.
    (ii) NMFS will issue a Ceremonial Permit for the harvest of halibut 
associated with traditional cultural events only if the application:
    (A) Indicates the occasion of cultural or ceremonial significance; 
and
    (B) Identifies the person designated by the eligible Alaska Native 
tribe as the Ceremonial Permit Coordinator.
    (iii) NMFS will issue an Educational Permit only if the 
application:
    (A) Includes the name and address of the educational institution or 
organization;
    (B) Includes the instructor's name;
    (C) Demonstrates the enrollment of qualified students;
    (D) Describes minimum attendance requirements of the educational 
program; and
    (E) Describes standards for the successful completion of the 
educational program.
    (3) Restrictions. Subsistence fishing for halibut under Ceremonial 
or Educational Permits shall be valid only:
    (i) In Area 3A, except in the Anchorage-Matsu-Kenai and Valdez non-
rural areas defined in paragraph (g) of this section (see Figures 4 and 
5 to subpart E);
    (ii) In Area 2C, except in the Juneau and Ketchikan non-rural areas 
defined in paragraph (g) of this section (see Figures 2 and 3 to 
subpart E) and a Ceremonial Permit may not be used within the Sitka 
LAMP from June 1 through August 31;
    (iii) On a single vessel on which the Ceremonial or Educational 
Permit card is present;
    (iv) On the vessel on which the instructor is present for 
Educational Permits;
    (v) To persons in possession of a valid subsistence halibut 
registration certificate issued in accordance with paragraph (h) of 
this section for the same Alaska Native tribe listed on the Ceremonial 
or Educational Permit, except that students enrolled in an educational 
program may fish under an Educational Permit without a subsistence 
halibut registration certificate; and
    (vi) If subsistence fishing gear set or retrieved from a vessel on 
which the Ceremonial or Educational Permit card is present does not 
exceed the restrictions of paragraph (g) of this section.
    (4) Expiration of permits. Each Ceremonial or Educational Permit 
will be valid only for the period of time specified on the permit. 
Ceremonial and Educational Permits will expire 30 days from the date of 
issuance to an Alaska Native tribe eligible to harvest halibut under 
paragraph (f)(2) of this section. A tribe eligible to harvest 
subsistence halibut under paragraph (f)(2) of this section may apply 
for additional Ceremonial or Educational Permits at any time.
    (5) Duties of Ceremonial Permit Coordinators and Instructors. Each 
Ceremonial Permit Coordinator or Instructor must ensure:
    (i) The designated harvesters or students who may fish under the 
Ceremonial or Educational Permit are identified on the Ceremonial/
Educational Permit harvest log when the permit is used;
    (ii) The Ceremonial Permit remains in the possession of the 
Ceremonial Permit Coordinator or other tribal authority when not in use 
and is issued to designated harvesters when necessary; and
    (iii) All required recordkeeping and data reporting of subsistence 
harvests under the Ceremonial or Educational Permit are performed.
    (6) Harvest log submission. Submission of a Ceremonial or 
Educational Permit log shall be required upon the expiration of each 
permit and must be received by Restricted Access Management within 15 
days of the expiration by facsimile or mail. Harvest logs must be 
mailed to RAM at the address given in paragraph (j)(2) of this section 
or faxed to 907-586-7354. The log must provide information on:
    (i) The subsistence fisher's identity including his or her full 
name, subsistence halibut registration certificate number if applicable 
(students do not need a SHARC), date of birth, mailing address (number 
and street, city, state, and zip code), community of residence, daytime 
phone number, and tribal identity;
    (ii) The subsistence halibut harvest including whether the 
participant fished for subsistence halibut during the period indicated 
on the permit, and if so, the date when harvest occurred, the number 
and weight (in pounds) of halibut harvested, the type of gear and 
number of hooks used, the Commission regulatory area and local water 
body from which the halibut were harvested, and the number of lingcod 
and rockfish caught while subsistence fishing for halibut.
    (k) Appeals. If Restricted Access Management (RAM) determines that 
an application is deficient, it will prepare and send an Initial 
Administrative Determination (IAD) to the applicant.

[[Page 16754]]

The IAD will indicate the deficiencies in the application or any 
additional provided information. An applicant who receives an IAD may 
appeal RAM's findings pursuant to Sec.  679.43 of this title.

0
4. In Sec.  300.66, paragraphs (e) and (h) are revised; paragraph (k) 
is redesignated as paragraph (l) and republished, and a new paragraph 
(k) is added to read as follows:


Sec.  300.66  Prohibitions.

* * * * *
    (e) Fish for subsistence halibut in and off Alaska unless the 
person is qualified to do so under Sec.  300.65(f), possesses a valid 
subsistence halibut registration certificate pursuant to Sec.  
300.65(h), and makes this certificate available for inspection by an 
authorized officer on request, except that students enrolled in a valid 
educational program and fishing under an Educational Permit issued 
pursuant to Sec.  300.65(j) do not need a subsistence halibut 
registration certificate.
* * * * *
    (h) Retain on board the harvesting vessel halibut harvested while 
subsistence fishing with halibut harvested while commercial fishing or 
from sport fishing, as defined at Sec.  300.61(b), except that persons 
authorized to conduct subsistence fishing under Sec.  300.65(f), and 
who land their total annual harvest of halibut:
    (1) In Commission regulatory Areas 4D or 4E may retain, with 
harvests of Community Development Quota (CDQ) halibut, subsistence 
halibut harvested in Commission regulatory areas 4D or 4E that are 
smaller than the size limit specified in the annual management measures 
published pursuant to Sec.  300.62; or
    (2) In Commission regulatory Areas 4C, 4D or 4E may retain, with 
harvests of CDQ halibut, subsistence halibut harvested in Commission 
regulatory areas 4C, 4D or 4E that are equal to or greater than the 
size limit specified in the annual management measures published 
pursuant to Sec.  300.62.
* * * * *
    (k) Retain subsistence halibut harvested under a CHP, Ceremonial 
Permit, or Educational Permit together in any combination or with 
halibut harvested under any other license or permit.
    (l) Fillet, mutilate, or otherwise disfigure subsistence halibut in 
any manner that prevents the determination of the number of fish 
caught, possessed, or landed.

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
5. The authority citation for part 679 continues to read as follows:

    Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 
note; 3631 et seq.

0
6. In Sec.  679.4, paragraphs (a)(1) introductory text and (a)(2) are 
revised and paragraph (a)(1)(xi) is added to the table to read as 
follows:


Sec.  679.4  Permits.

    (a) * * *
    (1) What permits are available? Various types of permits are issued 
for programs codified at 50 CFR parts 300 and 679. These permits are 
listed in the following table. The date of effectiveness for each 
permit is given along with certain reference paragraphs for further 
information.

------------------------------------------------------------------------
                                      Permit is in
                                       effect from
 If program permit or card type is:    issue date          For more
                                       through end   information, see...
                                           of:
------------------------------------------------------------------------
* * * * *                            ..............  ...................
------------------------------------------------------------------------
(xi) Special Subsistence Permits     ..............  ...................
(A) Community Harvest Permit         1 year          Sec.   300.65 of
                                                      this title
(B) Ceremonial or Educational        30 days         Sec.   300.65 of
 Permit                                               this title
------------------------------------------------------------------------

    (2) Permit and logbook required by participant and fishery. For the 
various types of permits issued, refer to Sec.  679.5 for recordkeeping 
and reporting requirements. For subsistence permits, refer to Sec.  
300.65 of this title for recordkeeping and reporting requirements.
* * * * *

0
7. In Sec.  679.43, paragraph (a) is revised to read as follows:


Sec.  679.43  Determinations and appeals.

    (a) General. This section describes the procedure for appealing 
initial administrative determinations made in this title under parts 
679, 680, and under subpart E of part 300. This section does not apply 
to initial administrative determinations made under Sec.  679.30(d).
* * * * *
[FR Doc. 05-6507 Filed 3-31-05; 8:45 am]
BILLING CODE 3510-22-S