[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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