[Federal Register Volume 74, Number 150 (Thursday, August 6, 2009)]
[Proposed Rules]
[Pages 39269-39282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18841]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 0812191631-91125-02]
RIN 0648-AX53
Pacific Halibut Fisheries; Subsistence Fishing
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to revise the criteria for rural
residents to participate in the subsistence fishery for Pacific halibut
in waters in and off Alaska. Currently, certain rural residents who
reside in locations outside the legal boundaries of specified
communities are prohibited by regulations from participating in the
subsistence halibut fishery. This action is necessary to allow
subsistence halibut fishing opportunities for these rural residents.
This action is intended to allow inadvertently excluded rural residents
to participate in the subsistence halibut fishery and to support the
conservation and management provisions of the Northern Pacific Halibut
Act of 1982.
DATES: Comments must be received no later than September 8, 2009.
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-AX53'' by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the
[[Page 39270]]
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 generally
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 (enter N/A in the required
fields, if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (pdf) formats only.
Electronic copies of the Regulatory Impact Review (RIR) prepared
for this action, and the environmental assessment (EA) prepared for the
original subsistence halibut action (68 FR 18145; April 15, 2003) may
be obtained from http://www.regulations.gov or from the Alaska Region
website at http://www.alaskafisheries.noaa.gov.
Written comments regarding the burden hour estimates or other
aspects of the collection of information requirements contained in this
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.
SUPPLEMENTARY INFORMATION:
Background
Management of the Pacific halibut (Hippoglossus stenolepis)
(hereafter halibut) fishery in and off Alaska is based on an
international agreement between Canada and the United States. This
agreement, entitled the AConvention 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 AProtocol 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 19, 2009 (74 FR 11681).
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. Like the
original subsistence halibut program and subsequent amendments to it,
this action was developed by the Council under the authority of the
Halibut Act.
The Halibut Act at sections 773c (a) and (b) provides the Secretary
with the general responsibility to carry out the Convention with the
authority to, in consultation with the Secretary of the department in
which the U.S. Coast Guard is operating (currently the Secretary of
Homeland Security), adopt such regulations as may be necessary to carry
out the purposes and objectives of the Convention and the Halibut Act.
The Secretary has delegated authority to NMFS to implement the Halibut
Act.
Need for Action
The subsistence halibut regulations authorize eligible persons to
conduct subsistence halibut fishing in waters in and off Alaska.
Currently, a person is eligible to harvest subsistence halibut if he or
she is a rural resident of a community with customary and traditional
uses of halibut that is listed in the tables at Sec. 300.65(g)(1)
(hereafter ``listed community''), or a member of an Alaska Native tribe
with customary and traditional uses of halibut that is listed in the
tables at Sec. 300.65(g)(2). Persons eligible to fish must possess a
subsistence halibut registration certificate (SHARC) to exercise the
privilege.
The definition of the term ``rural resident'' is the primary issue
in this proposed action. For purposes of the subsistence halibut
program, a rural resident currently is defined as a person domiciled in
a listed community, who has maintained a domicile in a listed rural
community for the 12 consecutive months immediately preceding the time
when the assertion of residence is made, and who is not claiming
residency in another state, territory, or country. A minimum threshold
of 25 residents was used when the list of eligible rural places
originally was developed by the Council and approved by the Secretary.
The list of rural communities was developed by the Council based on
customary and traditional findings for halibut and bottomfish made by
the State of Alaska Board of Fisheries (Board). Therefore, the process
for including additional communities in the subsistence halibut program
has been for an interested party to first send a written request to the
Board that then may recommend inclusion of additional communities in
the subsistence halibut program.
The current regulations have inadvertent, adverse impacts on some
rural residents; individuals who reside outside the boundaries of
designated communities do not qualify for a SHARC. The boundaries of
many rural Alaska communities are not adjacent to the boundaries of
other communities due to Alaska's large size and relatively sparse
population. Areas between incorporated communities are unincorporated
areas. Individuals who reside in these extremely remote locations
between listed communities likely have the same if not greater
customary and traditional use of halibut as currently eligible
participants, and otherwise may be deemed eligible to participate in
the subsistence halibut program except for the location of their
residence outside the boundaries of a listed community. Initially,
SHARCs were issued to individuals who resided close to listed
communities. Beginning in 2007, SHARCs have been denied to individuals
who previously received them because these individuals reside outside
the legal boundaries of listed communities. SHARCs were either returned
voluntarily or were not renewed by NMFS.
Description of the Proposed Action
The Council used a community-based approach to determine rural
eligibility in its original subsistence halibut action as cited in the
proposed rule published August 26, 2002 (67 FR 54767). In June
[[Page 39271]]
2008, the Council revised its policy based on information that numerous
individuals and their families have been disadvantaged under the
current regulations. The Council recommended a wider geographic scope
for rural resident eligibility to include individuals who reside in
remote homesteads outside the boundaries of listed communities. The
Council determined that those individuals or families in remote
locations within the subsistence halibut use areas of Alaska practice
the same patterns of use as residents of nearby listed communities that
have customary and traditional uses, and, therefore, should be eligible
to participate in subsistence fishing for halibut.
The Council's original intent for the subsistence halibut program
was to allow persons who had customarily and traditionally used halibut
for food in the past to continue in that practice. This action would
amend the regulations to conform the subsistence halibut program
regulations to the Council=s original intent for the program. If the
proposed action is implemented, additional rural residents of Alaska
south of Cape Espenberg who reside within a designated ten-statute-mile
boundary adjacent to the waters of the Bering Sea and Pacific Ocean or
in other designated places, and who do not reside in specified non-
rural areas, would be eligible to subsistence fish for halibut. This
action would include in the subsistence halibut program certain
individuals who live a subsistence lifestyle and who rely on halibut as
a customary and traditional source of food for themselves and their
families, but who do not reside in a listed community. This action
would provide them with the subsistence halibut fishing opportunities
contemplated in the original subsistence halibut program.
The proposed change in the criteria for rural eligibility does not
include residents living in non-rural areas and does not apply to
Alaska Native tribal members. To include non-rural residents would
expand subsistence eligibility beyond the Council's original intent.
Members of Alaska Native tribes listed at Sec. 300.65(g)(2) are
eligible for SHARCs regardless of the location of their residences.
Therefore, the discussion of rural versus non-rural eligibility in the
preamble of this proposed action does not apply to Alaska Native tribal
members. Members of Alaska Native tribes would not be directly affected
by this action.
When the Council considered the areas to include as rural areas for
purposes of the subsistence halibut program, it consulted with State of
Alaska Department of Fish and Game Subsistence Division experts
regarding customary and traditional use of the halibut resource. Cape
Espenberg was chosen as the northern limit of the rural area because it
is the most prominent point of land north of the northern most listed
community of Shishmaref, Alaska. The ten-statute-mile limit was
selected to define a band of land that included listed communities so
that people living between listed communities would become eligible
under this action. The land areas adjacent to the current non-
subsistence marine waters areas are proposed to be included as non-
subsistence areas.
Approximately 600 additional rural residents could be expected to
receive SHARCs according to estimates in the RIR prepared for this
action (see ADDRESSES). Most of these rural residents reside in the
Kodiak Island Borough. Some of these rural residents previously had
received a SHARC but were later found to be ineligible based on a
closer examination of the regulatory language. These rural residents
may have fed their families with halibut harvested under sport fishing
regulations or by purchasing other protein sources from commercial
entities. Up to 9,400 residents may benefit from this action through
the customary and traditional practices of sharing food. Currently, the
affected rural residents may harvest halibut with a sport fishing
license, but the sport daily bag limits are smaller than are allowed
under subsistence halibut regulations. This action would reduce the
cost of acquiring halibut for subsistence purposes, reduce associated
fishing time and effort, and provide comparable opportunity to harvest
this subsistence resource for the affected rural residents to that
enjoyed by residents of listed communities.
The amount of halibut that is projected to be harvested under this
action is small compared to the harvest in the commercial and sport
fisheries. The subsistence halibut harvest was estimated to be 1.4
percent, or 1,032,293 lb, of the total halibut removals of 74,389,000
lb in 2007, the most recent year for which subsistence harvest
information is available. This action is expected to increase the
subsistence halibut harvest by 105,000 lb, or about 10 percent of the
current subsistence halibut harvest. However, without this action, some
of this expected increase in the subsistence halibut harvest would be
harvested as part of the sport fishery for halibut.
Under the proposed regulations, rural residents would be considered
eligible to participate in the subsistence halibut program if they met
the criteria for rural residency under one of two options. First, a
person would continue to be considered a rural resident if he or she
were domiciled in a community specified at Sec. 300.65(g)(1). Second,
under the new definition for a rural area, a person would be considered
a rural resident if he or she were domiciled in one of the following
rural areas of Alaska that would be listed at Sec. 300.65(g)(3):
Southeast Alaska east of 141[deg] W. long., except for the
land areas of the Ketchikan Gateway Borough as these areas are
described below, the land areas of the City and Borough of Juneau, and
the Ketchikan and Juneau non-subsistence marine waters areas (see
Figures 2 and 3);
The Alaska Peninsula, Aleutian Islands, Kodiak Island
Archipelago, and the area south of the northern boundary of the Bristol
Bay Borough and south of 58[deg] 39.2' N. lat. (see Figures 5, 6, and
7);
Nelson, Nunivak, and Saint Lawrence Islands (see Figure
6); and
All other areas of Alaska within ten statute miles of mean
high water on the Bering Sea and Pacific Ocean coasts, south of Cape
Espenberg, including along the Kuskokwim River to Bethel, and that are
not specified as non-rural areas and that are not specified as the
Anchorage-Matsu-Kenai or Valdez non-subsistence marine waters areas
(see Figures 4, 5, 6, and 7).
The area along the Kuskokwim River to Bethel was not specified in
the Council's action, but was specifically included on the maps
delineating rural areas in the RIR (see ADDRESSES) used by the Council
when it took action. This rural area along the Kuskokwim River is
beyond ten statute miles from the marine coastline of the Bering Sea
and would leave a gap between the rural community of Bethel and
Kuskokwim Bay. The State of Alaska has determined that the rural
residents of this area historically participated in the customary and
traditional harvest of subsistence halibut. Therefore NMFS is proposing
this modification to the Council's preferred alternative. Additionally,
the Council adopted language specifying the area ``south of the Bristol
Bay Borough'' but this is vague. The maps used by the Council to
describe the boundaries in this area clearly show that the entire
Bristol Bay Borough is to be included, so the proposed regulations
clarify that the area south of the northern boundary of the Bristol Bay
Borough is included as a rural area.
[[Page 39272]]
An applicant for a rural SHARC would be required to maintain a
domicile in a rural area of Alaska for the 12 consecutive months
immediately preceding the time when the assertion of residence is made,
and not claim residency in another state, territory, or country. The
definitions for ``rural'' and ``rural resident'' listed at Sec. 300.61
would be revised to include the residents of these newly described
rural areas.
Other alternatives for expanding the areas defined as rural were
considered but rejected. The addition of small communities to the list
of eligible places would have continued to exclude individuals who
reside outside the boundaries of listed communities and likely would
have resulted in continued petitions to add to the list of places with
customary and traditional use of halibut. Another alternative that was
considered, and on which the Council's preferred alternative was based,
was less specific in its descriptions of included areas.
The proposed action would require specification of non-rural areas.
A resident of a non-rural area does not qualify for a SHARC. Currently,
rural residents must reside within communities specified in regulations
at Sec. 300.65(g)(1) to be considered eligible for SHARCs. As a
result, specifying the boundaries of non-rural areas has been
unnecessary. However, expansion of the rural resident definition as
proposed would require definitive specification of non-rural areas as
exceptions to the proposed rural areas. In general, the non-rural areas
would be those land areas adjacent to the current non-subsistence
marine waters areas and would include the non-subsistence marine waters
areas. The Council recommended that the boundaries for the non-rural
areas match the boundaries for ``non-subsistence use areas''
established by the State of Alaska Joint Board of Fisheries and Game.
This recommendation was made because these boundaries were determined
by the State of Alaska based on the role of subsistence uses in the
economy and not on population size. Also, the marine boundaries of
these areas were used to set the boundaries of the current non-
subsistence marine waters areas. The descriptions of the boundaries
that are used by the State of Alaska (5AAC 99.015) were analyzed to
determine the geographic coordinates that precisely define those
boundaries. For the Juneau non-rural area alone, this resulted
initially in a table of 3,000 geographic coordinates. By ignoring some
minor turns of the boundary, this could be simplified to hundreds of
geographic coordinates for one non-rural area. NMFS determined that a
long, multi-page table for each non-rural area would not be practical
for public use or for NMFS staff who must determine whether an
applicant for a SHARC is domiciled in a specified rural area.
Therefore, NMFS proposes in this action to use the legal boundaries
for cities and boroughs adjacent to the non-subsistence marine waters
areas, excluding the southern tip of the Kenai Peninsula (see Figure
5), to describe the non-rural land areas. The current non-subsistence
marine waters areas would be retained because they do not always match
the marine boundaries of the non-rural cities and boroughs and they
purposely were chosen to match the ``non-subsistence use area''
boundaries used by the State of Alaska. The land areas of the following
cities and boroughs would be non-rural areas for the purposes of the
subsistence halibut fishery: the Ketchikan Gateway Borough as those
boundaries existed on May 18, 2008; the City and Borough of Juneau; the
Greater Anchorage Area Borough; the Matanuska-Susitna Borough; the
Kenai Peninsula Borough, excluding the southern tip of the Kenai
Peninsula that includes the Seldovia Census Designated Place; and the
City of Valdez. For comparison, the maps that show the areas the
Council designated as non-subsistence areas are included in the RIR for
this action (see ADDRESSES).
The land area in the Ketchikan Gateway Borough that would be
designated as non-rural would fall within the boundaries of the borough
prior to its annexation of 4,510 square miles (11,681 square
kilometers) on May 19, 2008. These older boundaries would be described
at Sec. 300.65(g)(4)(i) and closely match the boundaries adopted in
the Council action on June 4, 2008. Also, these boundaries closely
match the Ketchikan Nonsubsistence Area established by the State of
Alaska. The current boundaries of the Ketchikan Gateway Borough
encompass a much larger area than that recommended by the Council as
the Ketchikan non-rural area and, therefore, were rejected by NMFS as
the boundaries to describe the Ketchikan non-rural area. The status of
the municipality of Saxman would be unaffected by this action; Saxman
would remain a listed community under this proposed rule.
The land area in the Kenai Peninsula Borough that would be
designated as rural would include the Seldovia Census Designated Place,
the area south and west of that place, and the area south and west of a
line that runs from 59[deg] 27.5' N lat., 151[deg] 31.7' W. long. to
59[deg] 12.5' N lat., 151[deg] 18.5' W. long., as shown in Figure 5.
This area of the Kenai Peninsula Borough was specified as a rural area
in the Council's recommendation and closely matches the boundary
established by the State of Alaska for the ``Anchorage-Matsu-Kenai
Nonsubsistence Area.''
The land area enclosed by these city and borough boundaries are
close to the Council's recommendation; however, more land area would be
classified as rural under this proposal than was recommended by the
Council. The proposed non-rural boundaries would not include any land
area that was classified as rural under the Council's action. In fact,
the proposed boundaries would classify as rural some land areas outside
city or borough boundaries that would have been classified as non-rural
under the Council's recommendation. The proposed non-rural area
boundaries would be consistent with the current regulations that limit
eligible rural residents to those who reside within the boundaries of
specified rural communities. Finally, the proposed descriptions of non-
rural areas would greatly simplify the regulations for public and
agency use rather than tables of hundreds and potentially thousands of
geographic coordinates for complex non-rural areas. NMFS anticipates
that applicants might know, or could readily determine, whether their
domiciles are located inside or outside of non-rural city or borough
boundaries based on the tax status of the properties. The non-
subsistence marine waters areas' boundaries would remain unchanged,
except for correcting an error to the southern boundary for Valdez that
is discussed below.
The current figures that display the ``non-subsistence marine
waters areas'' described at Sec. 300.65(h)(3) in which subsistence
fishing for halibut is prohibited would be revised to include the
adjacent non-rural land areas. These revised figures would show the
rural and non-rural areas of Southern Southeast Alaska, including
Ketchikan; Northern Southeast Alaska, including Juneau; Prince William
Sound, including Valdez; and Anchorage-Matsu-Kenai. Two new figures
would be added to show the rural and non-rural areas of the Alaska
Peninsula and Aleutian Islands and of Western and Central Alaska.
Because revised and new figures are included with this action, the
references to figure numbers would be revised under Sec. 300.65 at
paragraphs (j)(3)(i)(B), (k)(3)(i)(A), and (k)(3)(i)(B).
The southern boundary for the Valdez non-subsistence marine waters
area would be corrected in the regulations at Sec. 300.65(h)(3)(iv).
The coordinates for the boundaries used in the original
[[Page 39273]]
subsistence halibut regulations (68 FR 18145; April 15, 2003) were
believed to match the boundary of the City of Valdez. However, an error
in converting the legal description of the boundaries of the City of
Valdez into geographic coordinates was discovered in preparing the
analysis for this action. Therefore, this regulatory amendment would
revise the southern boundary from waters north of 61[deg] 02.24' N.
lat., to waters north of 61[deg] 01.38' N. lat. This would move the
boundary farther south by 5,300 ft (1,620 m). The maps provided to the
Council and to the public for the June 2008 meeting reflected this
revision.
The SHARC application would be revised to incorporate the changes
that would be necessitated by this action. Currently, one combined
application is used by rural residents and by Alaska Native tribal
members. To simplify the application process for the public, separate
applications would be used by rural residents and by Alaska Native
tribal members. Additionally, the regulations at Sec. 300.65(i)(2)
would be revised to simplify the application requirements that are
listed in the regulations. The SHARC application requirements for a
rural resident would include indicating the basis upon which the
applicant is eligible to harvest subsistence halibut as a rural
resident. Additional requirements would include listing a post office
box number, describing the physical location of the domicile if there
is no street address, and adding Aor area@ to the requirement to list
the community that qualifies the fisherman as eligible to fish for
subsistence halibut. The SHARC application for an Alaska Native tribal
member would clearly state what is needed for address or location
information and include listing the community or area of residence, and
would no longer require the dates of residence in a community because
that information is not necessary for an Alaska Native tribal member.
The specific location of any SHARC holder's domicile would be
provided on the SHARC application due to regulations related to cash
reimbursement for subsistence halibut fishing expenses. Cash
reimbursement for subsistence halibut is restricted to actual trip
expenses for ice, bait, food, and fuel directly related to the harvest
of subsistence halibut because it is illegal for subsistence halibut to
enter the commercial market. Regulations at Sec. 300.66(j)(1) and
Sec. 300.66(j)(2) limit the reimbursement of a fisherman's actual
expenses to residents of the same community for people who are not
members of an Alaska Native tribe. Therefore, regulations at Sec.
300.66(j)(1) and Sec. 300.66(j)(2) would be revised to include: (A)
references to the proposed new qualification for a rural resident that
would be described at Sec. 300.65(g)(3), and (B) a limit for qualified
persons who reside outside listed rural communities, that the
fisherman's actual expenses could be reimbursed only by those rural
residents who reside within ten statute miles of the rural location
listed on the fishermanSec. s SHARC application. The ten-statute-mile
limit was selected by NMFS to match the boundary that would be
described at Sec. 300.65(g)(3)(iv) and to maintain the intent of the
Council to limit the scope of reimbursement to residents of a localized
area. NMFS is seeking public comment regarding the size of this ten-
statute-mile limit.
Additionally, the text at Sec. 300.66(j)(2) would be revised to
specify that Alaska Native tribal members may be reimbursed for only
actual expenses for ice, bait, food and fuel. The words ``actual
expenses'' were inadvertently omitted from the regulatory text. This
revision would parallel the construction that is used at Sec.
300.66(j)(1) regarding reimbursement of rural residents.
The SHARC application for a rural resident would include the
requirement to provide the name, complete mailing address, and phone
number of an adult age 18 years or older who can verify that the
residence listed by the applicant is the applicant's domicile and that
it was the applicantSec. s domicile for 12 months prior to the date of
the application. The verifying person may not be the applicant's wife,
husband, parent, or child and may not be living at the rural residence
listed by the applicant. This requirement for a verifier would enhance
the ability of NMFS to discern whether a SHARC applicant is truly
qualified as a rural resident eligible to fish for subsistence halibut.
Other Regulatory Changes
Several other minor changes to the regulations are proposed. First,
a definition for SHARC, which is the documentation, issued by NMFS, of
the registration required to participate in subsistence fishing, would
be added to the regulations at Sec. 300.61 because that term is used
in the current and proposed regulations but is not defined. Second, the
regulations at Sec. 300.65(g) would be revised to include a reference
to the new qualification for a rural resident described at Sec.
300.65(g)(3). Third, a misspelling of Sheldon Point (Nunam Iqua) would
be corrected in the regulations at Sec. 300.65(g)(2) in the table for
the IPHC halibut regulatory area 4E. Fourth, the regulations at Sec.
300.65(h)(3) would no longer specify ``non-rural areas'' but ``non-
subsistence marine waters areas'' instead, therefore, regulations at
Sec. 300.65(h)(4) and Sec. 300.66(g) would be revised to reflect that
change. Finally, the meaning of the ``area of tribal membership'' that
is defined at Sec. 300.65(h)(4)(iii) would be revised to specify that
this means the IPHC regulatory area under which an organized tribal
entity is listed at Sec. 300.65(g)(2), or the area of the Bering Sea
that is closed to commercial halibut fishing and adjacent to the rural
area in which the Alaska Native tribal headquarters is located.
Classification
Regulations governing the U.S. fisheries for Pacific halibut are
developed by the IPHC, the Pacific Fishery Management Council, the
Council, and the Secretary. Section 5 of the Halibut Act (16 U.S.C.
773c) allows the Regional Council having authority for a particular
geographical area to develop regulations governing the allocation and
catch of halibut in U.S. Convention waters as long as those regulations
do not conflict with IPHC regulations. The proposed action is
consistent with the Council's authority and the Secretary's authority
to allocate halibut catches among fishery participants in the waters in
and off Alaska.
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.
The Chief Council for Regulation of the Department of Commerce
certified to the Chief Council for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Basis and Purpose of Rule
The United States and Canada participate in the International
Pacific Halibut Commission (IPHC) and promulgate regulations governing
the Pacific halibut (hereafter halibut) fishery under the authority of
the Northern Pacific Halibut Act of 1982 (Halibut Act). The North
Pacific Fishery Management Council (Council) may develop regulations
governing the allocation and catch of halibut in its area of concern
that would apply to nationals or vessels of the United States and that
are in agreement with IPHC regulations. The Secretary of Commerce must
approve regulations recommended
[[Page 39274]]
by the Council before implementation by the National Marine Fisheries
Service (NMFS). The Council prepared an environmental assessment/
regulatory impact review (EA/RIR) for subsistence halibut fisheries in
January 2003, and NMFS published the final rule to implement
subsistence halibut regulations in April 2003 (68 FR 18145). These
regulations include criteria, based on community of residence, for
rural residents to qualify as participants in the subsistence halibut
fishery.
The criteria for rural residency that were approved in 2003 would
be revised under the proposed rule in order for more Alaskans with
customary and traditional use of halibut to participate in the
subsistence halibut fishery in waters in and off Alaska. Beginning in
2007, based on a closer examination of the regulatory language,
subsistence halibut registration certificates that permit fishermen to
subsistence fish for halibut have been denied to individuals who
previously received them. These rural residents were determined to be
ineligible because they reside outside the legal boundaries of
communities specified in the regulations. Individuals who reside in
these extremely remote locations likely have the same if not greater
customary and traditional use of halibut as currently eligible
participants, and otherwise may be deemed eligible to participate in
the subsistence halibut program except for the location of their
residence outside the boundaries of a specified community.
This action is necessary to allow subsistence halibut fishing
opportunities for these affected rural residents. Currently, the
affected rural residents may harvest halibut with a sport fishing
license, but the sport daily bag limits may be smaller than would be
allowed under the subsistence halibut fishery. The intended effect of
this action is to reduce the cost of acquiring subsistence halibut,
reduce associated fishing time and effort, and provide comparable
opportunity to harvest this subsistence resource for the affected rural
residents.
Factual Basis for Certification
Description and Estimate of the Number of Small Entities to Which the
Rule Applies
No small entities would be directly regulated by the proposed rule.
Small entities are defined as small businesses, small organizations,
and small governmental jurisdictions in Section 601(3)-(5) of the
Regulatory Flexibility Act (RFA) of 1980. This action would apply
uniquely to individual natural persons who are not considered small
entities within the meaning of the RFA.
All of the persons that would be directly regulated by the action
are natural persons. The proposed subsistence halibut regulation at 50
CFR 300.65(g)(3) would specify that ``A person is eligible to harvest
subsistence halibut if he or she is a resident in one of the rural
areas of Alaska described [in this paragraph].'' The regulations
further specify at Sec. 300.61 that halibut caught for subsistence
purposes is defined as halibut caught by a rural resident or a member
of an Alaska Native tribe for direct personal or family consumption as
food, sharing for personal or family consumption as food, or customary
trade. Additionally, the definition for rural resident only specifies
that an individual, clearly indicating a natural person, may qualify to
be a rural resident.
Description and Estimate of Economic Impacts on Small Entities by
Entity Size and Industry
No small entities are directly regulated by the proposed rule.
Therefore, there are no economic impacts on directly regulated small
entities.
Criteria Used to Evaluate Whether the Rule Would Impose Impacts on ``A
Substantial Number'' of Small Entities
The Small Business Administration criteria for what constitutes a
small entity, described in Section 601(6) of the RFA, and the
definition of a business concern that appears at 13 CFR 121.105 were
used to determine that there are no impacts on any small entities. Only
individual natural persons would be directly regulated by this proposed
rule and such persons are not considered small entities under Small
Business Administration guidelines.
Criteria Used to Evaluate Whether the Rule Would Impose ``Significant
Economic Impacts''
Because no small entities are directly regulated by the proposed
rule, no criteria were applied.
Description of, and an Explanation of the Basis for, Assumptions Used
The finding that no small entities would be directly regulated by
this action is based on the definition of small entities in the RFA and
implementing regulations, and a determination that only individual
natural persons, and not small entities, would be directly regulated by
the proposed action.
As a result, an initial regulatory flexibility analysis is not
required and none has been prepared.
This proposed 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 0460. Public reporting burden
for the SHARC applications for a rural resident or an Alaska Native
tribal member are each estimated to average ten minutes per response.
This estimate includes 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.
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 occurred with the Alaska Native Subsistence Halibut
Working Group in December 2008, pursuant to the requirements of
Executive Order 13175.
List of Subjects in 50 CFR Part 300
Alaska, Alaska Natives, Fisheries, Pacific halibut fisheries,
Recordkeeping and reporting requirements.
Dated: July 31, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300, subpart E
is proposed to be amended as follows:
[[Page 39275]]
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart E--Pacific Halibut Fisheries
1. The authority citation for 50 CFR part 300, subpart E continues
to read as follows:
Authority: 16 U.S.C. 773-773k.
2. In Sec. 300.61 revise the definitions for ``Rural'' and ``Rural
resident'' and add a new definition for ``Subsistence halibut
registration certificate (SHARC)'' in alphabetical order to read as
follows:
Sec. 300.61 Definitions.
* * * * *
Rural means, for purposes of the subsistence fishery for Pacific
halibut in waters in and off Alaska, a community of Alaska listed at
Sec. 300.65(g)(1) or an area of Alaska described at Sec. 300.65(g)(3)
in which the non-commercial, customary, and traditional use of fish and
game for personal or family consumption is a principal characteristic
of the economy or area and in which there is a long-term, customary,
and traditional use of halibut.
Rural resident means, for purposes of the subsistence fishery for
Pacific halibut in waters in and off Alaska:(1) An individual domiciled
in a rural community listed in the table at Sec. 300.65(g)(1) and who
has maintained a domicile in rural communities listed in the table at
Sec. 300.65(g)(1), or in rural areas described at Sec. 300.65(g)(3),
for the 12 consecutive months immediately preceding the time when the
assertion of residence is made, and who is not claiming residency in
another state, territory, or country; or
(2) An individual domiciled in a rural area described at Sec.
300.65(g)(3) and who has maintained a domicile in rural areas described
at Sec. 300.65(g)(3), or in rural communities listed in the table at
Sec. 300.65(g)(1), for the 12 consecutive months immediately preceding
the time when the assertion of residence is made, and who is not
claiming residency in another state, territory, or country.
* * * * *
Subsistence halibut registration certificate (SHARC) means
documentation, issued by NMFS, of the registration required at Sec.
300.65(i).
* * * * *
3. In Sec. 300.65:
A. Revise paragraphs (g) introductory text, (h)(3) introductory
text, (h)(3)(iii) introductory text, (h)(3)(iv), (h)(4) introductory
text, (h)(4)(iii), (i)(2), (j)(3)(i)(B), (k)(3)(i)(A) introductory
text, and (k)(3)(i)(B).
B. In paragraph (g)(2), in the table entitled ``Halibut Regulatory
Area 4E'', revise the entry for ``Sheldon Point (Nuna Iqua)''.
C. Add new paragraphs (g)(3) and (g)(4).
The additions and revisions read as follows:
Sec. 300.65 Catch sharing plan and domestic management measures in
waters in and off Alaska.
* * * * *
(g) Subsistence fishing in and off Alaska. No person shall engage
in subsistence fishing for halibut unless that person meets the
requirements in paragraphs (g)(1), (g)(2), or (g)(3) of this section.
* * * * *
(2) * * *
Halibut Regulatory Area 4E
------------------------------------------------------------------------
Place with Tribal Headquarters Organized Tribal Entity
------------------------------------------------------------------------
* * * * *
Sheldon Point (Nunam Iqua) Native Village of
Sheldon's Point
* * * * *
------------------------------------------------------------------------
(3) A person is eligible to harvest subsistence halibut if he or
she is a rural resident in one of the rural areas of Alaska described
as follows:
(i) Southeast Alaska east of 141 W. long., except for the land
areas of the Ketchikan Gateway Borough as described at (g)(4)(i) of
this section, the land areas of the City and Borough of Juneau, and the
Ketchikan and Juneau non-subsistence marine waters areas as defined in
paragraphs (h)(3)(i) and (h)(3)(ii) of this section (see figures 2 and
3 to this subpart E).
(ii) The Alaska Peninsula, Aleutian Islands, Kodiak Island
Archipelago, and the area south of the northern boundary of the Bristol
Bay Borough and south of 58[deg] 39.2' N. lat. (see figures 5, 6, and 7
to this subpart E).
(iii) Nelson, Nunivak, and Saint Lawrence Islands (see figure 6 to
this subpart E).
(iv) All other areas of Alaska within ten statute miles of mean
high water on the Bering Sea and Pacific Ocean coasts, south of Cape
Espenberg, including along the Kuskokwim River to Bethel, and that are
not specified as non-rural land or water areas as defined in paragraph
(g)(4) of this section (see figures 4, 5, 6, and 7 to this subpart E).
(4) Non-rural areas consist of the non-subsistence marine waters
areas defined in paragraph (h)(3) of this section and the land areas of
the following cities and boroughs for purposes of the subsistence
fishery for Pacific halibut in waters in and off Alaska:
(i) The Ketchikan Gateway Borough on May 18, 2008. This area
encompasses all those islands bounded on the east, north, and west by
Behm Canal, Behm Narrow, and Clarence Strait to its junction with
Nichols Passage, and on the south by Nichols and Revillagigedo Channel
to its junction with Behm Canal. The designated boundaries extend to
the center line of Behm Canal, Behm Narrows, Clarence Strait, Nichols
Passage, and Revillagigedo Channel, and include all the area of
Revillagigedo, Gravina, Pennock, Betton, Grant and other Clover Passage
and Naha Bay Islands, Hassler, Gedney, Black, Smeaton, Manzanita,
Rudyerd, and Bold Islands, and all other offshore and adjacent islands
and inlets thereto (see figure 2 to this subpart E).
(ii) The City and Borough of Juneau (see figure 3 to this subpart
E).
(iii) The Greater Anchorage Area Borough (see figures 4 and 5 to
this subpart E).
(iv) The Matanuska-Susitna Borough (see figure 5 to this subpart
E).
(v) The Kenai Peninsula Borough excluding the area of the Seldovia
Census Designated Place, the area south and west of that place, and the
area south and west of a line that runs from 59 27.5' N. lat., 151[deg]
31.7' W. long. to 59[deg] 12.5' N. lat., 151[deg] 18.5' W. long (see
figure 5 to this subpart E).
(vi) The City of Valdez (see figures 4 and 5 to this subpart E).
(h) * * *
(3) Subsistence fishing may be conducted in any waters in and off
Alaska except in the four non-subsistence marine waters areas defined
as follows:
* * * * *
(iii) The Anchorage-Matsu-Kenai non-subsistence marine waters area
in Commission Regulatory Area 3A (see figures 4, 5, 6, and 7 to this
subpart E) is defined as:
* * * * *
(iv) Valdez non subsistence marine waters area in Commission
regulatory area 3A (see figures 4 and 5 to this subpart E) is defined
as the waters of Port Valdez and Valdez Arm located north of 61[deg]
01.38' N. lat., and east of 146[deg] 43.80' W. long.
(4) Waters in and off Alaska that are not specifically identified
as non-subsistence marine waters areas in paragraph (h)(3) of this
section are rural for purposes of subsistence fishing for halibut.
Subsistence fishing may be conducted in any rural area by any
[[Page 39276]]
person with a valid subsistence halibut registration certificate in his
or her name issued by NMFS under paragraph (i) of this section, except
that:
* * * * *
(iii) For purposes of this paragraph (h)(4), Aarea of tribal
membership@ means rural areas of the Commission regulatory area under
which the Organized Tribal Entity is listed in the tables set out in
paragraph (g)(2) of this section, or the Bering Sea closed area
adjacent to the rural area in which the Alaska Native tribal
headquarters is located.
(i) * * *
(2) Registration. To register as a subsistence halibut fisherman, a
person may request a cooperating Alaska Native tribal government or
other entity designated by NMFS to submit an application on his or her
behalf to the Alaska Region, NMFS. Alternatively, a person may apply by
submitting a completed application to the Alaska Region, NMFS.
Application forms are available on the NMFS Alaska Region website at
http://alaskafisheries.noaa.gov, or by contacting NMFS at 800-304-4846,
Option 2. Applications must be mailed to: Restricted Access Management
Program, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668.
NMFS will process a SHARC Application for an Alaska Native Tribal
Member or a SHARC Application for a Rural Resident provided that a
paper application is completed, with all applicable fields accurately
filled-in, and all required additional documentation is attached. The
applicant must sign and date the application certifying that all
information is true, correct, and complete.
* * * * *
(j) * * *
(3) * * *
(i) * * *
(B) Within the Ketchikan, Juneau, Anchorage-Matsu-Kenai, and Valdez
non-subsistence marine waters areas as defined in paragraph (h)(3) of
this section (see figures 2, 3, 4, 5, 6, and 7 to this subpart E).
* * * * *
(k) * * *
(3) * * *
(i) * * *
(A) In the Anchorage-Matsu-Kenai non-subsistence marine waters area
defined in paragraph (h)(3) of this section (see figures 4, 5, 6, and 7
to this subpart E), only the following tribes may use a Ceremonial or
Educational permit:
* * * * *
(B) In the Valdez non-subsistence marine waters area defined in
paragraph (h)(3) of this section (see figures 4 and 5 to this subpart
E), only the Native Village of Tatitlek may use a Ceremonial or
Educational permit.
* * * * *
4. In Sec. 300.66, revise paragraphs (g), (j)(1), and (j)(2) to
read as follows:
Sec. 300.66 Prohibitions.
* * * * *
(g) Fish for subsistence halibut in and off Alaska in a non-
subsistence marine waters area specified at 300.65(h)(3).
* * * * *
(j) * * *
(1) Persons who qualify as rural residents under Sec. 300.65(g)(1)
or (g)(3) and hold a SHARC in the person's name under Sec. 300.65(i)
may be reimbursed for actual expenses for ice, bait, food, and fuel
directly related to subsistence fishing for halibut, by residents of
the same rural community or by rural residents residing within ten
statute miles of the rural location listed on the person's SHARC
application; or
(2) Persons who qualify as Alaska Native tribal members under Sec.
300.65(g)(2) and hold a SHARC in the person's name under Sec.
300.65(i) may be reimbursed for actual expenses for ice, bait, food,
and fuel directly related to subsistence fishing for halibut, by any
Alaska Native tribe, or its members, or residents of the same rural
community or by rural residents residing within ten statute miles of
the rural location listed on the person's SHARC application.
* * * * *
5. Revise figures 2, 3, 4, and 5 to subpart E of part 300 and add
figures 6 and 7 to subpart E of part 300 to read as follows:
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[FR Doc. E9-18841 Filed 8-5-09; 8:45 am]
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