[Federal Register Volume 73, Number 72 (Monday, April 14, 2008)]
[Proposed Rules]
[Pages 20008-20015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7902]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 080310411-7566-01]
RIN 0648-AU14


Pacific Halibut Fisheries; Subsistence Fishing

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

ACTION:  Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY:  NMFS proposes regulations to amend the subsistence fishery 
rules for Pacific halibut in waters in and off Alaska. These 
regulations are necessary to address subsistence halibut management 
concerns in densely populated areas. This action is intended to support 
the conservation and management provisions of the Northern Pacific 
Halibut Act of 1982.

DATES:  Comments must be received no later than May 14, 2008.

ADDRESSES:  Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN 
0648-AU14'' by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
     Mail: P. O. Box 21668, Juneau, AK 99802.
     Fax: (907) 586-7557.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, Alaska.
    All comments received are a part of the public record and will be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments must be in Microsoft Word, Excel, WordPerfect, or Adobe 
portable document file (pdf) formats to be accepted.
    Copies of the Categorical Exclusion (CE), Regulatory Impact Review 
(RIR), and Initial Regulatory Flexibility Analysis (IRFA) prepared for 
this action, as well as the environmental assessment (EA) prepared for 
the original subsistence halibut action (68 FR 18145; April 15, 2003) 
may be obtained from the North Pacific Fishery Management Council 
(Council) at 605 West 4th, Suite 306, Anchorage, Alaska 99501-2252, 
907-271-2809; by mail from NMFS, Alaska Region, P. O. Box 21668, 
Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in 
person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, 
Alaska; or via the Internet at the NMFS Alaska Region website at http://www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS at the above address and by e-
mail to [email protected], or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT:  Becky Carls, 907-586-7228 or 
[email protected], or Peggy Murphy, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Background and Need for Action

    Management of the Pacific halibut (hereafter halibut) fishery in 
and off Alaska is based on an international agreement between Canada 
and the United States. This agreement, entitled the ``Convention 
between the United States of America and Canada for the Preservation of 
the Halibut Fishery of the Northern Pacific Ocean and Bering Sea'' 
(Convention), was signed at Ottawa, Canada, on March 2, 1953, and 
amended by the ``Protocol Amending the Convention,'' signed at 
Washington, D.C., March 29, 1979. The Convention, administered by the 
International Pacific Halibut Commission (IPHC), is given effect in the 
United States by the Northern Pacific Halibut Act of 1982 (Halibut 
Act).
    The IPHC promulgates regulations pursuant to the Convention. The 
IPHC's regulations are subject to approval by the Secretary of State 
with concurrence from the Secretary of Commerce (Secretary). After 
approval by the Secretary of State and the Secretary, the IPHC 
regulations are published in the Federal Register as annual management 
measures pursuant to 50 CFR 300.62. NMFS published the IPHC's current 
annual management measures on March 7, 2008 (73 FR 12280).
    The Halibut Act also authorizes 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 United States (Halibut 
Act, section 773(c)). Such an action by the Council is limited to only 
those regulations that are in addition to, and not in conflict with, 
IPHC regulations. Council-developed regulations must be approved and 
implemented by the Secretary. Any allocation of halibut fishing 
privileges must be fair and equitable and consistent with other 
applicable Federal law. The Council used its authority under the 
Halibut Act to recommend a subsistence halibut program in October 2000 
to recognize and manage the subsistence fishery for halibut.
    The Secretary approved the Council's recommended subsistence 
halibut program and published implementing regulations on April 15, 
2003 (68 FR 18145), and codified the program in 50 CFR part 300-subpart 
E, authorizing a subsistence fishery for halibut in Convention waters 
off Alaska. In April 2002, the Council proposed a suite of amendments 
to its original subsistence halibut program while postponing several 
proposed amendments to be included in a separate action. Regulations 
implementing the initial suite of amendments to the original 
subsistence halibut program were published on April 1, 2005 (70 FR 
16742). These regulations (1) changed the boundaries of the Anchorage/
Matsu/Kenai non-subsistence area; (2) eliminated gear restrictions in 
Areas 4C, 4D, and 4E; (3) increased gear and harvest restrictions in 
Area 2C; (4) allowed retention of legal-sized subsistence halibut with 
Community Development Quota halibut in Areas 4C, 4D, and 4E; (5) 
created a Community Harvest Permit (CHP) system to mitigate increased 
gear and harvest restrictions in affected areas; (6) created a 
Ceremonial and Educational Permit system to recognize customary and 
traditional tribal practices; and (7) included the subsistence halibut 
program in the federal appeals process at 50 CFR 679.43.
    The Council revisited the postponed amendments in October 2004, and 
took final action on them in December 2004. This action proposes 
implementing regulations for the postponed amendments. Specifically, 
this action

[[Page 20009]]

proposes six changes to the subsistence halibut regulations that would: 
(1) revise the subsistence gear restrictions in Kodiak and add seasonal 
gear and vessel limits in Sitka Sound; (2) add the village of Naukati 
to the list of eligible subsistence halibut communities; (3) implement 
a possession limit to enhance enforcement; (4) revise the definition of 
charter vessel; (5) revise regulations regarding customary trade; and 
(6) allow the use of special permits within non-subsistence use areas 
by tribes eligible for the permits. Additional administrative revisions 
to regulations include converting the gear and harvest restrictions 
from text to table format and revising language to consistently refer 
to Sitka Sound, rather than Sitka LAMP, and its defined area. None of 
the proposed actions are intended to change the amount of halibut 
harvested for subsistence. Information on alternatives considered and 
rejected may be found in the RIR and IRFA prepared for this action (see 
ADDRESSES).

Subsistence Halibut Gear Restrictions

    The Council recommended increasing gear restrictions in two 
subareas of IPHC Regulatory Areas 2C and 3A. In Area 3A, the Council 
recommended lowering the maximum hook limit per vessel in the Kodiak 
Road Zone and Chiniak Bay (together referred to hereafter as Chiniak 
Bay) from 90 to 60 hooks. In Area 2C, the Council proposed additional 
seasonal gear and harvest restrictions in Sitka Sound. The Council 
recommended each of these provisions to address localized depletion 
concerns in those subareas.
    This proposed action would reduce the allowable hook limit in 
Chiniak Bay to no more than two times the per person limit of 30, 
except when fishing under a Ceremonial, Educational, or Community 
Harvest Permit. If one registered fisher is onboard the vessel, the 
maximum number of hooks on the gear set or retrieved in the course of 
fishing would be 30. If two registered fishers are onboard, the maximum 
number of hooks on gear set or retrieved in the course of fishing would 
be 60. However, unlike other parts of Area 3A that would be allowed up 
to 90 hooks if three registered fishers are onboard, at no time may the 
maximum number of hooks on gear set or retrieved in the course of 
fishing exceed 60 hooks per vessel in Chiniak Bay, except that under a 
Ceremonial, Educational, or Community Harvest Permit the limit would be 
90 hooks per vessel.
    Under this action, NMFS would define Chiniak Bay based on the State 
of Alaska's definition of the Kodiak Road Zone found at 05 AAC 64.005. 
NMFS would define Chiniak Bay as all waters bounded by the shoreline 
and straight lines extending from Cape Chiniak (57[deg]37.22' N. lat., 
152[deg]9.36' W. long.), to Buoy 1 at Williams Reef 
(57[deg]50.36' N. lat., 152[deg]8.82' W. long.), to East Cape on Spruce 
Island (57[deg]54.89' N. lat., 152[deg]19.45' W. long.), to Termination 
Point on Kodiak Island (57[deg]51.31' N. lat., 152[deg]24.01' W. 
long.), and connecting to a line running counterclockwise along the 
shoreline of Kodiak Island to Cape Chiniak (57[deg]37.22' N. lat., 
152[deg]9.36' W. long.). NMFS proposes this definition because latitude 
and longitude reference points do not vary and can be easily drawn on 
paper and electronic charting systems. The proposed area also includes 
the vast majority of local small-vessel sport and subsistence grounds 
historically fished for halibut, while maintaining consistency with the 
area targeted by the Council's proposed Kodiak Road Zone 
recommendation.
    Consistent with previous applications of the Community Harvest 
Permit (CHP) Program, the Council recommended allowing the use of a CHP 
in Area 3A, including Chiniak Bay, to mitigate the proposed increased 
restrictions. The CHP Program allows a community or Alaska Native tribe 
to select individual harvesters who may possess particular expertise in 
halibut fishing to harvest halibut on behalf of the community or Alaska 
Native tribe. Possession of a CHP in Area 3A would allow an eligible 
tribe or community to use 30 hooks per person up to a maximum of 90 
hooks per vessel.
    The Council also recommended additional gear restrictions and 
seasonal periods for gear restrictions in Sitka Sound to further 
address localized depletion concerns. This proposed action would reduce 
the allowable gear from 30 hooks to 15 hooks per vessel and prohibit 
power hauling during the summer months from June 1 through August 31. 
From September 1 through May 31 gear restrictions would remain at 30 
hooks per vessel and power hauling would be allowed.
    The gear restrictions in this proposed rule would apply only to 
gear in use by eligible subsistence fishermen. By applying the gear 
restrictions to gear ``set or retrieved'' from a vessel, the gear 
restrictions apply only to gear actively engaged in subsistence fishing 
for halibut. A subsistence fisherman may possess any amount of gear 
onboard the vessel as long as that amount of gear actively being used 
does not exceed the prescribed limits. For instance, a box of extra 
hooks stored onboard a vessel or a fully rigged set of spare gear in a 
vessel would not count toward the subsistence gear restriction because 
the gear is not in use. This proposed rule also intends to further 
clarify any ambiguity in the gear restrictions by converting the 
original text of the gear restrictions to a table format. Because of 
this conversion to a table format, information in the regulatory text 
at Sec.  300.65(h)(1)(i)(D) concerning the use of setline gear in Sitka 
Sound would be moved to Sec.  300.65(e)(5).

Eligible Subsistence Halibut Communities

    Persons eligible to conduct subsistence halibut fishing include (1) 
residents of rural places with customary and traditional uses of 
halibut and (2) all identified members of federally recognized Alaska 
Native tribes with a finding of customary and traditional uses of 
halibut. A list of rural communities and Alaska Native tribes eligible 
to fish for subsistence halibut may be found at Sec.  300.65(g).
    The list of rural places recommended by the Council and approved by 
the Secretary was derived from customary and traditional findings for 
halibut and bottomfish made by the Alaska State Board of Fisheries 
(Board) prior to the Alaska Supreme Court decision, McDowell v. State, 
785 P.2d 1 (Alaska 1989). Following McDowell, State regulations 
directed the Board to determine whether each fish stock in subsistence 
use areas of the State is subject to customary and traditional uses. 
Therefore, the customary and traditional use determination process does 
not focus on communities or areas that conduct the use, but on the 
pattern of use of a fish stock. Although the Council engages in a 
community-based approach, nothing prevents the Board from nominating 
areas, such as remote homesteads, for eligibility for subsistence 
halibut.
    The Council and Secretary retain exclusive authority to recommend 
changes to the list of rural places in Sec.  300.65(g)(1). The Council 
initially recognized that some rural communities not explicitly named 
in the list may seek a finding of customary and traditional use of 
halibut, and established a policy to include those communities if 
customary and traditional findings were made. Residents who believed 
that their rural place was incorrectly omitted from the eligibility 
listing for rural places, or who were seeking eligibility for the first 
time, were encouraged to seek a customary and traditional finding from 
the Board before petitioning the Council.
    In October 2003, the Board received seven appeals from communities 
and

[[Page 20010]]

individuals requesting positive customary and traditional use findings 
for halibut. The Board forwarded only two proposals to the Council: 
Port Tongass Village and Naukati. The remaining petitions failed 
because the petitioners were located within non-subsistence use areas 
and did not fit the stated criteria.
    In December 2004, the Council recommended a provision to include 
Naukati as an eligible rural community for subsistence halibut purposes 
based on the Board's recommendation. The Council declined including 
Port Tongass Village following testimony and evidence that indicated 
the proposed rural community consists of only one individual. The 
Council determined that this was an insufficient number of residents to 
qualify as a community. However, the Council affirmed the Board's 
determination that Naukati is a rural community with customary and 
traditional use of halibut and recommended adding Naukati as a rural 
community for subsistence halibut purposes consistent with the 
Council's policy to include communities for which customary and 
traditional findings are made by the Board. Therefore, under this 
proposed rule, NMFS would add only Naukati to the list of eligible 
communities found at Sec.  300.65(g)(1).

Subsistence Halibut Harvest Restrictions

    In general, eligible subsistence fishermen may retain up to 20 
halibut per day as a daily bag limit, except in Area 2C where only 20 
halibut per vessel per day may be retained, and Areas 4C, 4D, and 4E 
where no limits on retention apply. In October 2003, the IPHC staff 
suggested that subsistence regulations allowed a substantial increase 
in harvest that necessitated more effective monitoring. The IPHC 
specifically expressed concern with overall enforcement of the 
subsistence program and the allowable possession of halibut. The IPHC 
identified that enforcement officers currently possess no means to 
verify time on the water for subsistence halibut fishermen who possess 
more than one daily bag limit, thereby hampering accurate accounting of 
halibut removals. The Council subsequently recommended implementing a 
possession limit to restrict potential abuses of the daily bag limit 
and enhance enforcement of daily harvest limits.
    Based on the recommendation of the IPHC, the Council recommended 
that the proposed possession limit apply to Areas 2C, 3A, and 3B, which 
have experienced increased fishing effort due to higher population 
density. The Council determined that no possession limit was necessary 
for Areas 4A and 4B because those areas were not experiencing 
corresponding increases in fishing effort and population density.
    This proposed action would implement a possession limit of one 
daily bag limit for Areas 2C, 3A, and 3B. For instance, current 
regulations restrict a fisherman in Area 2C to 20 halibut per vessel 
per day, thus that fisherman's possession limit would be equal to his 
or her daily bag limit. Likewise, current regulations restrict a 
fisherman in Areas 3A and 3B to 20 halibut per person per day, so that 
fisherman's possession limit would be equal to his or her daily bag 
limit. Bag limits within Sitka Sound in Area 2C also would be subject 
to this action. Therefore, the possession limit within Sitka Sound 
would be 10 halibut per vessel from September 1 to May 31 and 5 halibut 
per vessel from June 1 through August 31. This proposed action would 
not apply in Areas 4A and 4B. This proposed action would have no effect 
in Areas 4C, 4D, or 4E because no daily bag limit exists in those 
areas. This proposed action also would have no effect on the retention 
limits allowed for CHPs, Ceremonial Permits, or Educational Permits.

Charter Vessel Prohibition

    Current regulations prohibit the retention of subsistence halibut 
harvested using a charter vessel, which is defined at Sec.  300.61 as 
``a vessel used for hire in sport fishing for halibut, but not 
including a vessel without a hired operator.'' NOAA Enforcement 
expressed difficulty enforcing the prohibition under the current 
definition because of problems associated with determining whether a 
vessel operator is ``for hire.'' The Council subsequently clarified 
that the prohibition was meant only to prohibit subsistence fishers 
from hiring someone to take them subsistence fishing, but not to 
prohibit the use of vessels registered as charter vessels from being 
used for subsistence fishing. NOAA Enforcement recommended revising the 
definition of charter vessel to improve enforcement of the prohibition 
consistent with the Council's intent.
    The Council adopted NOAA Enforcement's recommendation and provided 
additional guidance to ensure the prohibition continued to restrict 
subsistence fishing on charter vessels. In December 2004, the Council 
recommended revising the definition of charter vessel to ``a vessel 
registered as such with the Alaska Department of Fish and Game.'' NOAA 
Enforcement believed this definition would improve the identification 
of vessels used illegally as charter vessels for subsistence halibut 
and the enforcement of other charter vessel restrictions. NOAA 
Enforcement has since recommended using the term ``sport fishing guide 
vessel'' in the regulatory definition for a charter vessel because this 
is the term used in State of Alaska regulations at 05 AAC 75.077.
    The Council further recommended, and NMFS proposes, a provision 
that would allow a charter vessel to be used for subsistence halibut 
fishing, but use for that purpose must be restricted to the owner of 
record as indicated on the State of Alaska vessel registration, 
provided the owner is eligible to fish for subsistence halibut, and the 
owner's immediate family. This provision would allow qualified 
subsistence halibut fishers who also engage in charter fishing to use 
their vessels to conduct subsistence fishing, but limit such fishing to 
the vessel owner and his or her immediate family. The Council 
recommended not defining ``immediate family'' in regulation.
    The Council recommended, and NMFS proposes, the prohibition of the 
use of a charter vessel for subsistence halibut fishing while charter 
clients are onboard the vessel and prohibiting the transfer of 
subsistence halibut to charter clients to prevent abuses of the 
proposed charter vessel allowance. The prohibition against subsistence 
fishing while charter clients are onboard would prevent the vessel 
owner or any other person onboard the vessel from engaging in 
subsistence fishing at any time while a charter client is onboard the 
vessel. This would preclude the use of any gear not classified as sport 
fishing gear or retaining any halibut in excess of the sport limits 
while charter clients are onboard any vessel. Additionally, a 
prohibition of the transfer of subsistence halibut to charter clients 
would apply at all times, meaning that at no time may subsistence 
halibut be provided by a charter operator to any person who has 
chartered a sportfishing trip with that charter operator.

Customary and Traditional Trade Restrictions

    Current regulations at Sec.  300.66(j) specify that it is unlawful 
for any person to retain or possess subsistence halibut for commercial 
purposes; cause subsistence halibut to be sold, bartered, or otherwise 
entered into commerce; or solicit exchange of subsistence halibut for 
commercial purposes, except that a qualified subsistence fisherman may 
engage in the customary trade of subsistence halibut through monetary 
exchange of no more than $400 per year.

[[Page 20011]]

The Council originally intended that the $400 annual limit would allow 
a person who receives subsistence halibut from an eligible subsistence 
halibut fisherman, to help defer the donating fisherman's costs of 
harvesting subsistence halibut.
    The Council was concerned that continuing the $400 customary trade 
limit would confound Council intent by allowing de facto ``sale'' of 
subsistence halibut outside customary and traditional trade. In June 
2003, the Council's Enforcement Committee reviewed issues related to 
customary trade and determined that (1) despite the Council's intent to 
not create a new commercial fishery, current regulations essentially 
allow the sale of subsistence halibut up to the $400 annual limit; (2) 
the $400 annual limit lacks enforceability because enforcement officers 
cannot easily distinguish between sale and customary and traditional 
exchange for cash; and (3) current regulations do not clearly prohibit 
advertising and solicitation for commercial sale. The Enforcement 
Committee recommended the Council revise the customary trade 
restrictions to meet the original intent of allowing customary and 
traditional trade.
    On the suggestion of the Enforcement Committee, the Council 
recommended revising the regulations to eliminate customary trade for 
cash. The Council additionally determined that the identification of a 
dollar amount for the allowance of customary trade in the regulations 
resulted in some subsistence users ``selling'' halibut to other 
subsistence users outside of customary and traditional practices, and 
that the dollar amount effectively served as a target rather than a 
limit. NOAA Enforcement also reported subsistence halibut illegally 
entering the commercial market, due in part to the difficulty of 
enforcing the $400 annual limit.
    This proposed action would eliminate the $400 customary trade limit 
and restrict any monetary exchange for subsistence halibut specifically 
to reimbursement of actual trip expenses directly related to the 
harvest of subsistence halibut. Actual trip expenses would be limited 
to ice, bait, food, or fuel only. Additional restrictions would be 
applied separately to rural community residents and Alaska Native 
tribal members.
    Under this proposed action, persons who qualify as rural residents 
under Sec.  300.65(g)(1) and hold a subsistence halibut registration 
certificate (SHARC) in their name under Sec.  300.65(i) may be 
reimbursed only by residents of the same rural community listed on his 
or her subsistence halibut registration certificate. For example, a 
rural community resident in Hoonah may be reimbursed for actual trip 
expenses directly related to subsistence halibut fishing by another 
resident of Hoonah but may not be reimbursed by a resident of Sitka. 
The Council proposed this restriction as an additional measure to 
discourage the entry of subsistence halibut into commerce.
    Additionally, under this proposed action, persons who qualify as 
Alaska Native tribal members under Sec.  300.65(g)(2) and hold a SHARC 
in their name under Sec.  300.65(i) would be eligible for reimbursement 
only from an Alaska Native tribe or its members. For example, a tribal 
SHARC holder from the Kenaitze Indian Tribe may be reimbursed by a 
member of the Gwichin Athabascan Indian Tribe. However, persons 
possessing a SHARC designated as tribal would be ineligible to receive 
reimbursement from anyone other than another Alaska Native tribe or its 
members.

Special Permits in Non-subsistence Areas

    Generally, eligible persons may harvest subsistence halibut in all 
Convention waters in and off Alaska except for the four designated non-
subsistence marine areas: the Ketchikan non-subsistence marine waters 
area, the Juneau non-subsistence marine waters area, the Anchorage-
Matsu-Kenai non-subsistence marine waters area, and the Valdez non-
subsistence marine waters area (Sec.  300.65(h)(3) and Figures 2-5 to 
subpart E).
    In December 2004, the Council recommended allowing the use of 
Ceremonial Permits and Educational Permits in non-subsistence marine 
areas by tribes whose traditional fishing grounds are located within 
Areas 2C and 3A. This proposed action would allow twelve Alaska Native 
tribes whose traditional fishing grounds fall within Areas 2C and 3A to 
conduct subsistence halibut fishing in areas currently designated as 
non-subsistence marine areas. Therefore, if persons on a vessel possess 
a Ceremonial Permit or an Educational Permit, they would be allowed to 
conduct subsistence fishing in the non-subsistence marine areas subject 
to other existing regulations.
    Use of Ceremonial Permits and Educational Permits within non-
subsistence marine areas would remain subject to gear and harvest 
restrictions for those permits consistent with the IPHC regulatory area 
in which they are used. Ceremonial Permits and Educational Permits 
allow Alaska Native tribes in Areas 2C and 3A as listed in Sec.  
300.65(g)(2) to harvest up to 25 halibut per permit. Ceremonial Permits 
and Educational Permits in non-subsistence marine areas maintain the 
same gear limitations as those required when fishing under a SHARC in 
Areas 2C and 3A (i.e., 30 hooks per vessel in Area 2C and 30 hooks per 
person or up to 90 hooks per vessel in Area 3A). Ceremonial Permits and 
Educational Permits also have unique application and reporting 
requirements (Sec.  300.65(j) and (k)).

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is necessary for the conservation and management of the halibut 
fishery and that it is consistent with the Halibut Act and other 
applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. This proposed rule also complies 
with the Secretary's authority under the Halibut Act to implement 
management measures for the halibut fishery.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A summary of the analysis follows. Copies of 
this analysis are available from the Council or NMFS (see ADDRESSES).
    This proposed rule would implement six actions to amend the 
subsistence halibut regulations: (1) revise the subsistence gear 
restrictions in Kodiak and add seasonal gear and vessel limits in the 
Sitka Sound area; (2) add the village of Naukati to the list of 
eligible subsistence halibut communities; (3) implement a possession 
limit equal to one daily bag limit to enhance enforcement; (4) revise 
the definition of charter vessel; (5) revise regulations regarding 
customary trade; and (6) allow the use of special permits within non-
subsistence use areas by tribes eligible for the permits. Only actions 
1 and 6 would directly regulate ``small entities,'' as defined by the 
RFA. The remaining four actions are not addressed because they affect 
individuals, rather than ``entities,'' as defined by RFA. All 
attributable impacts on directly regulated small entities, accruing 
from either action, appear to be beneficial.

[[Page 20012]]

    Action 1 would directly regulate Alaska Native tribes, or 
governmental entities in the absence of a tribe, that are eligible to 
participate in the subsistence halibut program off Kodiak and Chiniak 
Bay. Action 1 would govern nine Alaska Native tribes. Action 6 would 
affect thirteen Alaska Native tribes, but no governmental entities.
    It is NMFS policy to consider only adverse impacts when preparing 
an IRFA, consistent with the intent of Congress to minimize effects on 
small entities. No such adverse impacts appear to be associated with 
Actions 1 and 6. However, detailed information and empirical data about 
the operational structures, strategies, and fiscal conditions of the 
various Alaska Native tribes, which are likely to be directly regulated 
by the proposed actions, are not presently available to the analysts to 
support preparation of a factual basis upon which to certify, under RFA 
provisions. Therefore, the Council prepared an IRFA to fulfill the 
requirements of the RFA, despite the high probability that the actions 
will not have a substantial adverse effect on a substantial number of 
small entities, as these terms are defined under the RFA.
    Proposed actions 1 and 6 aim to enhance management of the 
subsistence halibut fishery as it pertains to use by Alaska Native 
tribes for the purpose of recognizing and appropriately accommodating 
subsistence practices. These actions are taken under the authority of 
the Northern Pacific Halibut Act of 1982.
    The principal decisions in the preferred alternatives for actions 1 
and 6 address changes to (1) gear limits and the use of Community 
Harvest Permits (CHPs) by Alaska Native tribes in Kodiak and Chiniak 
Bay, and seasonal gear and vessel limits in Sitka Sound; and (2) 
fishing in non-subsistence use areas. The preferred alternatives to 
implement CHPs for Alaska Native tribes in Kodiak and Chiniak Bay (CHPs 
are not allowed in Sitka Sound) under action 1, and to allow ceremonial 
and educational permits to be used by Alaska Native tribes in non-
subsistence use areas under action 6, directly regulate small entities.
    The Council addressed multiple alternatives for each action under 
the RFA. Under action 1, the Council analyzed three alternatives: (1) 
no action; (2) change gear restrictions and annual limits in Kodiak, 
Prince William Sound, Cook Inlet, and the Sitka LAMP; and (3) change 
gear restrictions and annual limits only in Kodiak and the Sitka LAMP. 
The Council selected alternative 3 as the preferred alternative for 
action 1. For action 6, the Council analyzed three alternatives: (1) no 
action; (2) allow the use of CHPs, educational permits, and ceremonial 
permits in non-subsistence use areas by tribes whose traditional 
fishing grounds are located within IPHC Areas 2C and 3A, with the 
associated daily bag limit; and (3) allow the use of educational 
permits and ceremonial permits, but not CHPs, in non-subsistence use 
areas by tribes whose traditional fishing grounds are located within 
IPHC Areas 2C and 3A, with the associated daily bag limit. The Council 
selected alternative 3 as the preferred alternative for action 6.
    Based on the best available scientific data and information, the 
IRFA (including the RIR) reveals that none of the significant 
alternatives to the proposed action, other than the preferred 
alternatives, have the potential to accomplish the objectives of the 
Council consistent with the Halibut Act, the RFA, and other applicable 
statutes, and minimize the adverse economic impacts of the proposed 
rule on directly regulated small entities.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by OMB. These collections are listed by control number.

OMB Control Number 0648-0460

    Public reporting burden is estimated to average ten minutes for 
Subsistence halibut registration certificate (SHARC) for rural or 
individual use and ten minutes for SHARC for tribal use.

OMB Control Number 0648-0512

    Public reporting burden for a Subsistence Halibut Special Permit 
Application for ceremonial harvest, education harvest, or community 
harvest is estimated to average ten minutes per response.
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding this burden estimate, or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and by e-mail to [email protected], or 
fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to 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.
    NMFS is not aware of any other Federal rules that would duplicate, 
overlap, or conflict with these actions.
    Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the 
Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the 
American Indian and Alaska Native Policy of the U.S. Department of 
Commerce (March 30, 1995) outline the responsibilities of the National 
Marine Fisheries Service in matters affecting tribal interests. Section 
161 of Public Law 108-199 (188 Stat 452), as amended by section 518 of 
Public Law 108-447 (118 Stat 3267), extends the consultation 
requirements of Executive Order 13175 to Alaska Native corporations.
    Consultations with the Alaska Native Subsistence Halibut Working 
Group, under Executive Order 13175, resulted in recommendations to 
allow the use of special permits in non-subsistence use areas. NMFS 
will contact tribal governments and Alaska Native corporations which 
may be affected by the proposed action, provide them with a copy of 
this proposed rule, and offer them an opportunity to consult.

List of Subjects for 50 CFR Part 300

    Pacific halibut fisheries, Alaska, Alaska Natives, Fisheries, 
Recordkeeping and reporting requirements.

    Dated: April 8 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 300, subpart E as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart E--Pacific Halibut Fisheries

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

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

    2. In Sec.  300.61 add definitions of ``Chiniak Bay'' and ``Power 
hauling'' in alphabetical order and revise the definition of ``Charter 
vessel'' to read as follows:


Sec.  300.61  Definitions.

* * * * *
    Charter vessel means a vessel registered as a sport fishing guide 
vessel with the Alaska Department of Fish and Game.
    Chiniak Bay means all waters bounded by the shoreline and straight 
lines connecting the coordinates in the order listed:

[[Page 20013]]

    north from Cape Chiniak (57[deg]37.22' N. lat., 152[deg]9.36' W. 
long.);
    to Buoy 1 at Williams Reef (57[deg]50.36' N. lat., 
152[deg]8.82' W. long.);
    to East Cape on Spruce Island (57[deg]54.89' N. lat., 
152[deg]19.45' W. long.);
    to Termination Point on Kodiak Island (57[deg]51.31' N. lat., 
152[deg]24.01' W. long.); and connecting to a line running 
counterclockwise along the shoreline of Kodiak Island to Cape Chiniak 
(57[deg]37.22' N. lat., 152[deg]9.36' W. long.).
* * * * *
    Power hauling means using electrically, hydraulically, or 
mechanically powered devices or attachments or other assisting devises 
or attachments to deploy and retrieve fishing gear. Power hauling does 
not include the use of hand power, a hand powered crank, a fishing rod, 
a downrigger, or a hand troll gurdy.
* * * * *
    3. In Sec.  300.65:
    A. Revise paragraphs (e)(1)(ii) introductory text, (h)(1)(i), 
(h)(2), (j) introductory text, (j)(1)(ii), (j)(1)(iii), (j)(3)(i) 
introductory text, (j)(3)(i)(A), (k)(3)(i), and (k)(3)(ii).
    B. Add paragraph (e)(5).
    C. In paragraph (g)(1) in the table entitled ``Halibut Regulatory 
Area 2C'' an entry for ``Naukati'' is added in alphabetical order.
    The additions and revisions read as follows:


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

* * * * *
    (e) * * *
    (1) * * *
    (ii) With respect to paragraphs (e)(3), (e)(4), and (e)(5) of this 
section, that part of the Commission regulatory area 2C that is 
enclosed on the north and east:
* * * * *
    (5) Setline gear may not be used in a 4 nm radius extending south 
from Low Island at 57[deg]00.70' N. lat., 135[deg]36.57' W. long. 
within Sitka Sound, as defined in paragraph (e)(1)(ii) of this section, 
from June 1 through August 31.
* * * * *
    (g) * * *
    (1) * * *

------------------------------------------------------------------------
                       Halibut Regulatory Area 2C
-------------------------------------------------------------------------
             Rural Community                      Organized Entity
------------------------------------------------------------------------
* * * * * * *                              .............................
------------------------------------------------------------------------
Naukati                                    Municipality
------------------------------------------------------------------------
* * * * * * *                              .............................
------------------------------------------------------------------------

* * * * *
    (h) * * *
    (1) * * *
    (i) Subsistence fishing gear set or retrieved from a vessel while 
engaged in subsistence fishing for halibut must not have more than the 
allowable hooks per vessel, or per personregistered in accordance with 
paragraph (i) of this section and aboard the vessel, whichever is less, 
according to the regulatory area and permit type indicated in the 
following table:

------------------------------------------------------------------------
       Regulatory Area            Permit Type        Gear Restrictions
------------------------------------------------------------------------
2C (Except Sitka Sound)       SHARC               30 hooks per vessel
                             -------------------------------------------
                              Ceremonial Permit   30 hooks per vessel
                             -------------------------------------------
                              Educational Permit  30 hooks per vessel
                             -------------------------------------------
                              Community Harvest   30 hooks per person
                               Permit              onboard up to 90
                                                   hooks
------------------------------------------------------------------------
Sitka Sound                   SHARC               September 1 through
                                                   May 31: 30 hooks per
                                                   vessel
                                                 -----------------------
                              ..................  June 1 through August
                                                   31: 15 hooks per
                                                   vessel; no power
                                                   hauling
                             -------------------------------------------
                              Ceremonial Permit   September 1 through
                                                   May 31: 30 hooks per
                                                   vessel
                                                 -----------------------
                              ..................  June 1 through August
                                                   31: fishing under
                                                   Ceremonial Permit not
                                                   allowed
                             -------------------------------------------
                              Educational Permit  30 hooks per vessel
                             -------------------------------------------
                              Community Harvest   fishing under
                               Permit              Community Harvest
                                                   Permit not allowed
------------------------------------------------------------------------
3A (Except Chiniak Bay)       SHARC               30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                             -------------------------------------------
                              Ceremonial Permit   30 hooks per person
                                                   onboard
                             -------------------------------------------
                              Educational Permit  30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                             -------------------------------------------
                              Community Harvest   30 hooks per person
                               Permit              onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
Chiniak Bay                   SHARC               30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
                              Ceremonial Permit   30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                             -------------------------------------------
                              Educational Permit  30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                             -------------------------------------------
                              Community Harvest   30 hooks per person
                               Permit              onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
3B                            SHARC               30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
4A and 4B                     SHARC               30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
4C, 4D, and 4E                SHARC               no hook limit
------------------------------------------------------------------------


[[Page 20014]]

* * * * *
    (2) The retention of subsistence halibut is limited per person 
eligible to conduct subsistence fishing for halibut and onboard the 
vessel according to the following table:

------------------------------------------------------------------------
       Regulatory Area            Permit Type        Retention Limits
------------------------------------------------------------------------
2C (Except Sitka Sound)       SHARC               20 halibut per day per
                                                   vessel and in
                                                   possession
                             -------------------------------------------
                              Ceremonial Permit   25 halibut per permit
                             -------------------------------------------
                              Educational Permit  25 halibut per permit
                             -------------------------------------------
                              Community Harvest   no daily or possession
                               Permit              limit
------------------------------------------------------------------------
Sitka Sound                   SHARC               September 1 through
                                                   May 31: 10 halibut
                                                   per day per vessel
                                                   and in possession
                                                 -----------------------
                              ..................  June 1 through August
                                                   31: 5 halibut per day
                                                   per vessel and in
                                                   possession
                             -------------------------------------------
                              Ceremonial Permit   September 1 through
                                                   May 31: 25 halibut
                                                   per permit
                                                 -----------------------
                              ..................  June 1 through August
                                                   31: fishing under
                                                   Ceremonial Permit not
                                                   allowed
                             -------------------------------------------
                              Educational Permit  25 halibut per permit
                             -------------------------------------------
                              Community Harvest   fishing under
                               Permit              Community Harvest
                                                   Permit not allowed
------------------------------------------------------------------------
3A, including Chiniak Bay     SHARC               20 halibut per person
                                                   per day and in
                                                   possession
                             -------------------------------------------
                              Ceremonial Permit   25 halibut per permit
                             -------------------------------------------
                              Educational Permit  25 halibut per permit
                             -------------------------------------------
                              Community Harvest   no daily or possession
                               Permit              limit
------------------------------------------------------------------------
3B                            SHARC               20 halibut per person
                                                   per day and in
                                                   possession
------------------------------------------------------------------------
4A and 4B                     SHARC               20 halibut per person
                                                   per day; no
                                                   possession limit
------------------------------------------------------------------------
4C, 4D, and 4E                SHARC               no daily or possession
                                                   limit
------------------------------------------------------------------------

* * * * *
    (j) Community Harvest Permit (CHP). An Area 2C or Area 3A community 
or Alaska Native tribe listed in paragraphs (g)(1) or (g)(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) * * *
    (ii) NMFS will issue a CHP to a community in Area 2C or Area 3A 
only if:
    (A) The applying community is listed as eligible in Area 2C or Area 
3A according to paragraph (g)(1) of this section; and
    (B) No Alaska Native tribe listed in paragraph (g)(2) of this 
section exists in that community.
    (iii) NMFS will issue a CHP to an Alaska Native tribe in Area 2C or 
Area 3A only if the applying tribe is listed as eligible in Area 2C or 
Area 3A according to paragraph (g)(2) of this section.
* * * * *
    (3) * * *
    (i) In Area 2C or Area 3A, except that a CHP may not be used:
    (A) Within Sitka Sound as defined in paragraph (e)(1)(ii) of this 
section (see Figure 1 to this subpart E); or
* * * * *
    (k) * * *
    (3) * * *
    (i) In Area 3A;
    (ii) In Area 2C, except a Ceremonial Permit may not be used within 
Sitka Sound from June 1 through August 31;
* * * * *
    4. In Sec.  300.66:
    A. Redesignate paragraphs (j) through (m) as paragraphs (k) through 
(n), respectively.
    B. Revise paragraph (i) and newly redesignated paragraph (k).
    C. Add new paragraph (j).
    The revisions and additions read as follows:


Sec.  300.66  Prohibitions.

* * * * *
    (i) Fish for subsistence halibut from a charter vessel or retain 
subsistence halibut onboard a charter vessel if anyone other than the 
owner of record, as indicated on the State of Alaska vessel 
registration, or the owner's immediate family is aboard the charter 
vessel and unless each person engaging in subsistence fishing onboard 
the charter vessel holds a subsistence halibut registration certificate 
in the person's name pursuant to Sec.  300.65(i) and abides by the gear 
and harvest restrictions found at Sec.  300.65(h).
    (j) Transfer subsistence halibut to charter vessel anglers.
    (k) Retain or possess subsistence halibut for commercial purposes; 
cause subsistence halibut to be sold, bartered, or otherwise entered 
into commerce; or solicit exchange of subsistence halibut for 
commercial purposes, except that a person who qualified to conduct 
subsistence fishing for halibut under Sec.  300.65(g), and who holds a 
subsistence halibut registration certificate in the person's name under 
Sec.  300.65(i), may be

[[Page 20015]]

reimbursed for the expense of fishing for subsistence halibut under the 
following conditions:
    (1) Persons who qualify as rural residents under Sec.  300.65(g)(1) 
and hold a subsistence halibut registration certificate in the 
persons's name under Sec.  300.65(i) may be reimbursed for actual 
expenses directly related to subsistence fishing for halibut, including 
only ice, bait, food, or fuel, by residents of the same rural community 
listed on the person's subsistence halibut registration certificate; or
    (2) Persons who qualify as Alaska Native tribal members under Sec.  
300.65(g)(2) and hold a subsistence halibut registration certificate in 
the person's name under Sec.  300.65(i) may be reimbursed for actual 
expenses directly related to subsistence fishing for halibut, including 
only ice, bait, food, or fuel, by any Alaska Native tribe or its 
members.
* * * * *
[FR Doc. E8-7902 Filed 4-11-08; 8:45 am]
BILLING CODE 3510-22-S