Pacific Halibut Fisheries; Subsistence Fishing, 54932-54942 [E8-22411]

Download as PDF 54932 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations provisions of the Administrative Procedure Act do not apply pursuant to 5 U.S.C. 553(b)(B). Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion under 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule. Paperwork Reduction Act Statement The final rule does not contain information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information of an information collection requirement unless the requesting document displays a currently valid OMB control number. Congressional Review Act 109–58, 119 Stat. 806–810 (42 U.S.C. 2014, 2021, 2021b, 2111). Section 50.7 also issued under Pub. L. 95– 601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and appendix Q also issued under sec. 102, Pub. L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97–415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80–50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). § 50.36 [Amended] 2. Section 50.36 is amended by redesignating paragraph (a) as paragraph (a)(1), redesignating paragraph (c) as paragraph (a)(2), and redesignating paragraphs (d), (e), and (f) as paragraphs (c), (d), and (e), respectively. ■ In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB. Dated at Rockville, Maryland, this 5th day of September, 2008. For the Nuclear Regulatory Commission. Bruce S. Mallett, Acting Executive Director for Operations. [FR Doc. E8–22355 Filed 9–23–08; 8:45 am] List of Subjects for 10 CFR Part 50 BILLING CODE 7590–01–P Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 50. ■ PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 50 CFR Part 300 [Docket No. 080310411–8949–02] RIN 0648–AU14 Pacific Halibut Fisheries; Subsistence Fishing 1. The authority citation for part 50 continues to read as follows: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. Authority: Secs. 102, 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. SUMMARY: NMFS issues a final rule to amend the subsistence fishery rules for Pacific halibut in waters in and off Alaska. These regulations are necessary to address subsistence halibut management concerns, particularly in densely populated areas. This action is intended to support the conservation rwilkins on PROD1PC63 with RULES ■ VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 AGENCY: PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 and management provisions of the Northern Pacific Halibut Act of 1982. DATES: Effective October 24, 2008. ADDRESSES: Copies of the Categorical Exclusion (CE), Regulatory Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) prepared for this action, as well as the environmental assessment (EA) prepared for the original subsistence halibut action (68 FR 18145; April 15, 2003) are available by mail from NMFS, Alaska Region, P. O. Box 21668, Juneau, AK 99802–1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, Alaska; or via the Internet at the NMFS Alaska Region website at http:// www.alaskafisheries.noaa.gov. Written comments regarding the burden-hour estimates or other aspects of the collection–of–information requirements contained in this final rule may be submitted to NMFS at the above address and by e–mail to DavidlRostker@omb.eop.gov, or fax to 202–395–7285. FOR FURTHER INFORMATION CONTACT: Becky Carls, 907–586–7228. SUPPLEMENTARY INFORMATION: Management of the Pacific halibut (hereafter halibut) fishery in and off Alaska is based on an international agreement between Canada and the United States. This agreement, entitled the ‘‘Convention between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea’’ (Convention), was signed at Ottawa, Canada, on March 2, 1953, and amended by the ‘‘Protocol Amending the Convention,’’ signed at Washington, D.C., March 29, 1979. The Convention, administered by the International Pacific Halibut Commission (IPHC), is given effect in the United States by the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations pursuant to the Convention. The IPHC’s regulations are subject to approval by the Secretary of State with concurrence from the Secretary of Commerce (Secretary). After approval by the Secretary of State and the Secretary, the IPHC regulations are published in the Federal Register as annual management measures pursuant to 50 CFR 300.62. NMFS published the IPHC’s current annual management measures on March 7, 2008 (73 FR 12280). The Halibut Act 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 E:\FR\FM\24SER1.SGM 24SER1 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations or vessels of the United States (Halibut Act, section 773c (c)). Such an action by the Council is limited to only those regulations that are in addition to, and not in conflict with, IPHC regulations. Council–developed regulations must be approved and implemented by the Secretary. Any allocation of halibut fishing privileges must be fair and equitable and consistent with other applicable Federal law. The Council used its authority under the Halibut Act to recommend a subsistence halibut program in October 2000 to recognize and manage the subsistence fishery for halibut. The Secretary approved the Council’s recommended subsistence halibut program and published implementing regulations on April 15, 2003 (68 FR 18145), and codified the program in 50 CFR part 300–subpart E, authorizing a subsistence fishery for halibut in Convention waters off Alaska. 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. rwilkins on PROD1PC63 with RULES Background and Need for Action The background and need for this action were described in detail in the preamble to the proposed rule for this action (73 FR 20008; April 14, 2008). The proposed rule is available via the Internet and from NMFS (see ADDRESSES). None of the actions are intended to change the amount of halibut harvested for subsistence. Information on alternatives considered and rejected may be found in the RIR and FRFA prepared for this action (see ADDRESSES). The following provides a list and brief review of the regulatory amendments to the management of the subsistence halibut fishery and are the regulatory changes made by this final rule. This action implements regulations that will make six changes to the subsistence halibut program that will: • Revise the subsistence gear restrictions in Chiniak Bay off Kodiak Island and add seasonal gear and vessel limits in Sitka Sound; VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 • Add the village of Naukati to the list of eligible subsistence halibut communities; • Implement a possession limit to enhance enforcement; • Revise the definition of charter vessel; • Revise regulations to allow cash reimbursement for expenses related to the harvest of subsistence resources; and • Allow the use of special permits within non–subsistence use areas by tribes eligible for the permits. Additional administrative revisions to regulations include converting the gear and harvest restrictions from text to table format to further clarify any ambiguity and revising language to consistently refer to Sitka Sound, rather than Sitka Local Area Management Plan (LAMP), and its defined area. Subsistence Halibut Gear Restrictions This action increases subsistence halibut gear restrictions in Chiniak Bay off Kodiak Island and in Sitka Sound to address localized depletion concerns. This action reduces the allowable hook limit in Chiniak Bay to no more than two times the per person limit of 30, except that when fishing under a Ceremonial, Educational, or Community Harvest Permit the limit will be 90 hooks per vessel. Under this action, NMFS defines Chiniak Bay based on the State of Alaska’s definition of the Kodiak Road Zone. In Sitka Sound, this action reduces the allowable gear from 30 hooks to 15 hooks per vessel and prohibits power hauling during the summer months from June 1 through August 31. From September 1 through May 31 gear restrictions will remain at 30 hooks per vessel and power hauling will be allowed. The gear restrictions in this rule apply only to gear in use by eligible subsistence fishermen. By applying the gear restrictions to gear ‘‘set or retrieved’’ from a vessel, the gear restrictions apply only to gear actively engaged in subsistence fishing for halibut. A subsistence fisherman may possess any amount of gear onboard the vessel as long as that amount of gear actively being used does not exceed the prescribed limits. Eligible Subsistence Halibut Communities Persons eligible to conduct subsistence halibut fishing include (1) residents of rural places with customary and traditional uses of halibut, and (2) all identified members of federally recognized Alaska Native tribes with a finding of customary and traditional uses of halibut. The Council and Secretary retain exclusive authority to PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 54933 recommend changes to the list of rural places at § 300.65(g)(1). In December 2004, the Council affirmed the Alaska State Board of Fisheries’ determination that Naukati is a rural community with customary and traditional use of halibut and recommended adding Naukati to the list of rural communities for subsistence halibut purposes. NMFS agrees with this determination and, therefore, adopts the recommendation of the Council and adds Naukati to the list of eligible communities found at § 300.65(g)(1). Subsistence Halibut Harvest Restrictions Prior to this rule, enforcement officers had no means to verify the amount of time spent on the water for subsistence halibut fishermen who possess more than one daily bag limit, thereby hampering accurate accounting of halibut removals. This rule implements a possession limit to restrict potential abuses of the daily bag limit and enhance enforcement of daily harvest limits. Because of increased fishing effort due to higher population density, this action implements a possession limit of one daily bag limit for Areas 3A, 3B, and 2C. The possession limit within Sitka Sound, part of Area 2C, is 10 halibut per day per vessel from September 1 to May 31 and 5 halibut per day per vessel from June 1 through August 31. No possession limit is necessary for Areas 4A and 4B because those areas are not experiencing corresponding increases in fishing effort and population density. This action has no effect in Areas 4C, 4D, or 4E because no daily bag limits exist in those areas. Charter Vessel Prohibition Regulations in effect prior to this rule prohibited the retention of subsistence halibut harvested using a charter vessel. The NOAA Office for Law Enforcement expressed difficulty enforcing the prohibition under the previous charter vessel definition, which was ‘‘a vessel used for hire in sport fishing for halibut, but not including a vessel without a hired operator,’’ because of problems associated with determining whether a vessel operator is ‘‘for hire.’’ The Council subsequently clarified that the prohibition was meant only to prohibit subsistence fishers from hiring someone to take them subsistence fishing, but not to prohibit the use of vessels registered as charter vessels from being used for subsistence fishing. This action uses the term ‘‘sport fishing guide vessel’’ in the regulatory definition for a charter vessel to match the term used in State of Alaska regulations at 05 AAC 75.077. This E:\FR\FM\24SER1.SGM 24SER1 54934 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations rwilkins on PROD1PC63 with RULES action also allows a charter vessel to be used for subsistence halibut fishing, but restricts such use to the owner of record on the State of Alaska vessel registration, provided the owner is eligible to fish for subsistence halibut, and the owner’s immediate family. This action prohibits the use of a charter vessel for subsistence halibut fishing while charter clients are onboard the vessel and prohibits the transfer of subsistence halibut to charter clients at all times. This precludes the use of any gear not classified as sport fishing gear or retaining any halibut in excess of the sport limits while charter clients are onboard any vessel. Cash Reimbursement for Expenses The previous regulations at § 300.66(j) specified that it is unlawful for any person to retain or possess subsistence halibut for commercial purposes; cause subsistence halibut to be sold, bartered, or otherwise entered into commerce; or solicit the exchange of subsistence halibut for commercial purposes, except that a qualified subsistence fisherman may engage in the customary trade of subsistence halibut through monetary exchange of no more than $400 per year. In June 2003, the Council’s Enforcement Committee reviewed issues related to customary trade and determined that (1) despite the Council’s intent to avoid creation of a new commercial fishery, current regulations essentially allow the sale of subsistence halibut up to the $400 annual limit; (2) the $400 annual limit lacks enforceability because enforcement officers cannot easily distinguish between sale and customary and traditional exchange for cash; and (3) current regulations do not clearly prohibit advertising and solicitation for commercial sale. This action eliminates the $400 monetary exchange limit and restricts any monetary exchange for subsistence halibut specifically to reimbursement of actual trip expenses directly related to the harvest of subsistence halibut. Actual trip expenses are limited to ice, bait, food, or fuel only. Under this action, persons qualified as rural residents under § 300.65(g)(1) and holding a subsistence halibut registration certificate (SHARC) in their name under § 300.65(i), may be reimbursed only by residents of the same rural community listed on their SHARC. However, under this action, persons qualified as Alaska Native tribal members under § 300.65(g)(2) and holding a SHARC in their name under § 300.65(i), are eligible for reimbursement only from an Alaska Native tribe, or its members, or members VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 of the same rural community. Therefore, if the tribal member lives in a non–rural Alaska community, they can participate in compensated exchanges only with a member of an Alaska native tribe. Special Permits in Non–subsistence Areas Generally, eligible persons may harvest subsistence halibut in all Convention waters in and off Alaska except in non–subsistence marine waters areas. This action allows the use of Ceremonial Permits and Educational Permits in non–subsistence marine waters areas by the 12 tribes whose traditional fishing grounds are located within Areas 2C and 3A. Use of Ceremonial Permits and Educational Permits within non–subsistence marine waters areas will remain subject to gear and harvest restrictions for those permits consistent with the IPHC regulatory area in which they are used. The use of Community Harvest Permits (CHPs) will not be allowed in non– subsistence marine waters areas. The twelve tribes include five in Area 2C and seven in Area 3A. The tribes in Area 2C are as follows: Central Council of Tlingit/Haida Indians, Douglas Indian Association, Aukquan Traditional Council, Ketchikan Indian Corporation, and Organized Village of Saxman. In Area 3A the tribes are as follows: Native Village of Tatitlek, Kenaitze Indian Tribe, Seldovia Village Tribe, Ninilchik Village, Native Village of Port Graham, Native Village of Nanwalek, and Village of Salamatoff. The RIR/FRFA mentions 13 tribes several times, because the table it used lists the tribes by the four areas that currently are closed to subsistence halibut fishing. However, one tribe has traditional fishing grounds in both the Juneau and Ketchikan areas, so the correct total number of tribes is 12. Response to Comments The proposed rule published in the Federal Register on April 14, 2008 (73 FR 20008). The 30-day comment period on the proposed rule ended May 14, 2008. NMFS received a total of five letters on the proposed rule that contained 15 unique comments. One letter was received from a tribal organization, one letter was received from two private individuals, and three letters were received from the fishing industry. A summary of these comments and NMFS’s responses follows. Comment 1: The proposed changes regarding customary trade, and its definition, effectively eliminates it from subsistence uses. Although the Alaska National Interest Lands Conservation Act (ANILCA) did not define this term, the need to narrow the definition of PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 ‘‘customary trade’’ by NMFS is not justified in light of the economic hardship and needs of Alaska Native villages. Leave customary trade as an option for those who have no alternative and do not place any monetary restrictions on the trade amount. Response: The original subsistence halibut fishing regulations at § 300.61 defined customary trade as ‘‘the non– commercial exchange of subsistence halibut for anything other than items of significant value’’ and this definition remains unchanged by this rule. NMFS disagrees that the proposed changes eliminate customary trade for subsistence purposes. The new regulations specifically allow subsistence fishers to conduct limited trade of subsistence halibut. The regulations continue to prohibit subsistence halibut from being sold or otherwise entered into commerce; however, an exception provides for limited monetary exchange to reimburse qualified subsistence fishers for the actual expenses for ice, bait, food, and fuel directly related to subsistence fishing for halibut. In recognizing the subsistence halibut fishery in regulations in 2003, NMFS did not intend to create an alternative commercial fishery. The former regulation, however, allowed ‘‘sales’’ of subsistence halibut of up to $400 per year as nominal reimbursement for harvesting costs when subsistence halibut was shared. Previous regulations at § 300.66(j) allowed a ‘‘customary trade of subsistence halibut through monetary exchange of no more than $400 per year.’’ Some subsistence fishers regarded the monetary limit of $400 per year as a monetary target that allowed the commercial sale of subsistence halibut up to $400 per year per subsistence fisher. Thus, some subsistence halibut were illegally entering the commercial market for halibut. The new regulation clarifies that while the sale of subsistence halibut is prohibited, subsistence halibut fishers may be reimbursed for certain subsistence fishing expenses. This is consistent with customary trade practices. The previous customary trade allowance of $400 was never intended to be used for commercial revenue producing purposes. The objective of the customary trade allowance was to prevent commercial sale while allowing reimbursement of subsistence halibut harvesting expenses by those with whom the halibut was shared. In a careful review of the subsistence halibut program, the Council and NMFS determined the regulatory language implementing the objectives could be E:\FR\FM\24SER1.SGM 24SER1 rwilkins on PROD1PC63 with RULES Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations confusing. Also, the NOAA Office for Law Enforcement found enforcement of the $400 customary trade limit difficult because no reporting and recordkeeping was required for customary trade transactions. This rule continues to prohibit the commercial sale of subsistence halibut. It does not prohibit customary trade, in terms of the economy of rural communities and Alaska Native tribes. Comment 2: Defraying expenses is not the same as customary trade. Response: Subsistence halibut fishing was the original fishery for halibut. Early Alaska Native fishers likely used the halibut resource not only as a food source for themselves, but also in trade with other Alaska and Canadian Natives living further inland. Over time, the commercial and sport fisheries for halibut developed as more non–natives populated the area. The Council and NMFS have been attempting to balance these three uses of the halibut resource. Prohibiting the sale of subsistence halibut protects commercial interests in the resource. This rule does not purport to define the term ‘‘customary trade.’’ Instead, it prohibits the commercial sale of subsistence halibut while providing for the sharing of subsistence halibut with an opportunity to reimburse the subsistence fisher for certain actual subsistence fishing costs. Comment 3: The rule does not provide for the subsistence needs of tribal members and is detrimental to subsistence uses. Response: NMFS disagrees. Nothing in this rule prevents subsistence halibut fishing by qualified Alaska Natives. Moreover, the rule provides for expanded Alaska Native subsistence halibut fishing inside four non– subsistence areas currently closed to all subsistence fishing. This rule implements a more liberal policy of allowing subsistence halibut fishing under ceremonial permits and educational permits inside the current non–subsistence areas by Alaska Native tribes whose traditional fishing grounds fall within these areas. Comment 4: Only enforcement problems are considered in the changes to customary trade. There is no concern about the dire economic needs of rural Alaska. Response: NMFS disagrees. As explained above, the purpose of this regulatory change is to make a clear distinction between the subsistence and commercial fisheries and to continue to prohibit halibut caught in the subsistence fishery from entering commercial markets. The NOAA Office for Law Enforcement staff suggested that a regulatory change that identified the VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 specific expenses (i.e., ice, bait, foot, and fuel) for which a cash exchange would be permitted, would enhance public understanding of permissible compensation and provide an enforcement tool for a cash limit. Providing regulatory language that can be effectively enforced is a concern in the development of all regulations by NMFS. The principal concern in this case, however, is to ensure the regulatory language clearly implements the policy that no subsistence halibut shall be sold or entered into commerce. The Council and NMFS have not changed the policy. The potential benefits from revising the regulations include (1) increased clarity within the regulations to better reflect the intent of the Council, thus reducing (or eliminating) confusion among subsistence users as to the bounds of authorized cash reimbursement; (2) reduced competition for commercial users from subsistence– caught halibut that would have entered the commercial marketplace; and (3) continuation of social and cultural benefits by allowing subsistence trade. The alternative that became the Council’s preferred alternative was selected because it balanced enforcement with customary practices. This rule recognizes the social, cultural, educational, and community benefits that derive from participating in the customary and traditional practices of sharing subsistence halibut, and seeks to accommodate these practices while attempting to provide additional tools for enforcing the prohibition on the sale of subsistence halibut. Comment 5: Rural residents should have a meaningful role in the management of fisheries. Response: The Council has authority under the Halibut Act to develop halibut fishery regulations to achieve allocation goals. Under the fishery management council process set forth in the Magnuson–Stevens Act, everyone has the opportunity to have a meaningful role and may participate in the decision–making process leading to new fishery management policies and regulations. All members of the public are invited to participate in the public process of the Council. Several weeks before each meeting, a notice is published in the Federal Register that announces when and where the meetings for the Council and its advisory committees will be held and the agenda items that may be discussed at the meeting. These meetings are open to the public. The Council’s proposed revisions to the subsistence program were discussed at Council meetings held in October 2003, October 2004, and PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 54935 December 2004, and a discussion paper was reviewed in June 2004. The public is specifically invited to speak at the Council and its advisory committee meetings. Writing letters or e–mails to the Council expressing concerns or joining or forming an association are other ways to become involved in the fisheries management process. In response to one of the management objectives in the Final Alaska Groundfish Fisheries Programmatic Supplemental Environmental Impact Statement (August 26, 2004), the Council reviewed a discussion paper in February 2008 that proposed several approaches for increasing Alaska Native and community participation and consultation in the fishery management process. In June 2008, the Council reviewed a revised discussion paper and initiated a small committee of Council members and community and Alaska Native representatives to review the discussion paper and recommend to the Council ways to create a policy to improve outreach and participation. Further information on this issue and other fisheries management issues is available at the Council website http:// www.alaskafisheries.noaa.gov/npfmc and information is available through the mail by writing to the Council at 605 W. 4th, Suite 306, Anchorage, AK 99501. Comment 6: The analysis expresses concern that any exchange for cash of subsistence harvested food may establish an ‘‘undesirable precedent,’’ but states that ‘‘[a] regulation restricting customary trade to Alaska Native tribal members might prevent the development of new subsistence harvest patterns for customary trade.’’ Congress needs to fulfill the policies and purposes of the Alaska Native Claims Settlement Act (ANCSA) and must invoke its constitutional authority over Native affairs under the property clause and the commerce clause to protect and provide the opportunity for continued subsistence uses. This distinguishes Alaska Natives from rural residents. Response: NMFS cannot amend ANCSA with a regulatory amendment. It is the role of Congress to amend ANCSA. This comment should, therefore, be directed to Congress. Comment 7: The Federal government should look to the tribes for a solution to enforcement of customary trade and authorize the tribes to enforce regulations on tribal members. Response: NMFS is responsible for enforcing the regulations it develops and promulgates. Changing the role of the tribes to include enforcement of NMFS’s subsistence regulations is beyond the scope of this rule. E:\FR\FM\24SER1.SGM 24SER1 rwilkins on PROD1PC63 with RULES 54936 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations Comment 8: Where does it say in ANILCA that customary trade shall not constitute a significant commercial enterprise? By what authority is this further restriction of subsistence use being undertaken when it is for enforcement and not conservation? If the subsistence use called customary trade must be further restricted, what commensurate restriction is applied to commercial and sport fishing? Where is the priority or preference? Response: According to the 9th Circuit Court, as stated in its decision of United States v. Alexander, 938 F.2d 942, 948 (9th Cr. 1991) concerning customary and traditional trade, ‘‘...trade must be conducted in a manner consistent with a subsistence lifestyle; ANILCA does not permit the establishment of significant commercial enterprises under the guise of subsistence uses.’’ Commercial fishing for halibut is strictly regulated within an overall catch limit set by the IPHC and with individual fishing quotas for each person. Sport fishing for halibut is limited by prohibitions on the sale of halibut and by daily catch limits. Subsistence fishing for halibut is afforded some preference in that no annual catch limits, area catch limits, or allocations apply to the subsistence harvest. Comment 9: We support the recommendation to implement a possession limit of one daily bag limit. We agree this will help enforcement efforts regarding subsistence halibut and address IPHC’s concerns about accounting. Response: Comment noted. Comment 10: We support the recommended definition of a charter vessel. Subsistence caught halibut cannot be given, transferred, or fed to charter clients. We also support not allowing charter vessels with clients on board to set or retrieve gear, and we support not giving halibut that was caught on subsistence gear to charter clients. This section with the recommended clarifications will significantly help with the NOAA Office for Law Enforcement’s ability to determine whether they are in violation or not. Response: Comment noted. Comment 11: We believe the recommended changes to the monetary exchange regulations are critical to prevent abuses of the Council’s intent from occurring. We believe that the recommendation is a good balance of meeting NPFMC original intent while tightening up the regulations to preventing abuse from occurring. Response: Comment noted. VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 Comment 12: We support the change in the format of the regulations by using tables where appropriate. Response: Comment noted. Comment 13: We urge approval and implementation of the proposed regulatory amendments to further restrict gear and harvest of subsistence halibut in Sitka Sound. Sitka residents discovered that existing subsistence regulations for Sitka Sound allow an over–harvest of halibut for subsistence purposes, resulting in localized depletion and reduced subsistence opportunities for local residents. These amendments are the result of a collaborative process by stakeholders in Sitka. The proposed amendments will encourage larger and higher capacity vessels to harvest subsistence halibut outside Sitka Sound while allowing residents with small boats to subsistence fish effectively in the protected waters of Sitka Sound. Reducing pressure on locally depleted halibut will also relieve pressure on sensitive rockfish and lingcod stocks. Response: Comment noted. Comment 14: We support increasing gear restrictions in Chiniak Bay and Sitka Sound. We appreciate the clarification that the allowable gear is what is being ‘‘set and retrieved’’ and having spare gear on board, such as a box of hooks, is not a violation. Response: Comment noted. Comment 15: We would like an additional consideration implemented regarding the length of time that gear may remain in the water unattended. We have received reports from fishermen who have witnessed gear being set in Sitka Sound and left unattended for weeks at a time. Response: This action is not intended to address the length of time that gear may remain in the water. Concerns about the length of time that subsistence halibut gear may remain in the water would need to be addressed in a separate regulatory action developed through the Council process. Changes from the Proposed Rule Eight changes were made in regulatory language from the proposed rule to this final rule. The first change was to the charter vessel definition. Concern was expressed by the NOAA Office for Law Enforcement about the ability to prosecute a person who violates Federal regulations but who was also in violation of State of Alaska regulations by not registering a vessel used for charter fishing. Therefore, to enable enforcement of Federal regulations, the definition was revised to include vessels that should have been registered with the State of Alaska as PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 charter vessels. Additionally, the definition is intended to apply only to Alaska halibut regulatory areas 2C through 4E, so the phrase ‘‘for purposes of § 300.65’’ was added to the definition. The second regulatory change revises the table at § 300.65(h) to add the limitations concerning the use of Ceremonial and Educational Permits in the non–subsistence marine waters areas of 2C and 3A. The third regulatory change revises regulatory language at § 300.65(j)(3)(i)(B). It was the intent of the Council to allow the use of only Ceremonial Permits and Educational Permits and to not allow the use of CHPs in non–subsistence marine waters areas. This restriction was discussed in the RIR and in the preamble to the proposed rule but not clearly reflected in the proposed regulatory text. This change corrects that oversight and adds the Valdez and Anchorage–Matsu– Kenai non–subsistence marine waters areas to the existing list of non– subsistence marine waters areas in which the use of CHPs is prohibited. The fourth regulatory change revises regulatory language at § 300.65(k)(3) to specify the tribes that are qualified to use a Ceremonial or Educational Permit in each non–subsistence marine waters area in areas 3A and 2C. The fifth regulatory change clarifies proposed language at § 300.66(i) but does not change the substance of the regulatory language. Rather than requiring that a person ‘‘abides by’’ certain gear and harvest restrictions, the revised regulations require that a person ‘‘complies with’’ those same restrictions. The sixth regulatory change revises § 300.66(j)(1) to indicate that the person’s rural community is listed on the application for a SHARC. It is not listed on the SHARC itself. The seventh regulatory change modifies the prohibitions at § 300.66(j)(2) regarding who may reimburse an Alaska Native tribal member for the expense of fishing for subsistence halibut. The proposed rule would have prevented an Alaska Native tribal member from being reimbursed by a non–native resident if they both lived within the same rural community. However, on further consideration, NMFS realized that proposal failed to recognize the dynamics within a rural Alaska community that consists of native and non–native individuals wherein subsistence halibut may be shared among them. Therefore, under the Secretary’s authority in the Halibut Act at 773c (a) and (b), the regulations have been changed to allow Alaska Native tribal members holding a SHARC E:\FR\FM\24SER1.SGM 24SER1 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations rwilkins on PROD1PC63 with RULES to be reimbursed for certain actual expenses by any Alaska Native tribe, or its members, or residents of the same rural community listed on the person’s SHARC application. The eighth regulatory change revises the sentence structure in § 300.66(j)(1) and (2), by more clearly stating the limitation on what actual expenses may be reimbursed, but the substance of the regulations is not changed. Changes also were made in the instructions for the proposed amendments to § 300.66. A court order filed June 20, 2008, that concerned § 300.66(m), reversed a charter halibut final rule published May 28, 2008 (73 FR 30504). The proposed redesignation of paragraph (m) under this subsistence halibut rule could add confusion to the court order. Therefore, paragraphs (j) through (m) will not be redesignated. Rather than revising a newly redesignated paragraph (k) as stated in the proposed rule, paragraph (j) will be revised, and rather than adding a new paragraph (j), the new paragraph is designated as (n). 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 final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule also complies with the Secretary’s authority under the Halibut Act to implement management measures for the halibut fisheries, and with the Secretary’s other responsibilities under the Convention and the Halibut Act. A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS’s responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES). A description of this action, why it is VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 being considered, and the legal basis for this action are presented above in the preamble to this rule. A summary of the FRFA follows. This rule implements six actions to amend the subsistence halibut regulations: (1) revise the subsistence gear restrictions in Chiniak Bay off Kodiak Island and add seasonal gear and vessel limits in the Sitka Sound area; (2) add the village of Naukati to the list of eligible subsistence halibut communities; (3) implement a possession limit equal to one daily bag limit to enhance enforcement; (4) revise the definition of charter vessel; (5) revise regulations to allow cash reimbursement for expenses related to the harvest of subsistence resources; and (6) allow the use of special permits within non–subsistence use areas by tribes eligible for the permits. Only actions 1 and 6 directly regulate ‘‘small entities,’’ as defined by the Regulatory Flexibility Act (RFA). The remaining four actions are not addressed because they affect individuals, rather than ‘‘entities,’’ as defined by the RFA. All attributable impacts on directly regulated small entities, accruing from either action, appear to be beneficial. Actions 1 and 6 aim to enhance management of the subsistence halibut fishery as it pertains to use by Alaska Native tribes for the purpose of recognizing and appropriately accommodating subsistence practices. These actions are taken under the authority of the Halibut Act. The principal decisions in the preferred alternatives for actions 1 and 6 address changes to gear limits and the use of CHPs by Alaska Native tribes in Kodiak and Chiniak Bay, and seasonal gear and vessel limits in Sitka Sound; and fishing in non–subsistence use areas. The preferred alternatives to implement CHPs for Alaska Native tribes in Kodiak and Chiniak Bay (CHPs are not allowed in Sitka Sound) under action 1, and to allow Ceremonial and Educational Permits to be used by Alaska Native tribes in non–subsistence use areas under action 6, directly regulate small entities. Significant Issues Raised by Public Comments on the IRFA The proposed rule for the subsistence halibut amendments was published in the Federal Register on April 14, 2008 (73 FR 20008). An IRFA was prepared for the proposed rule, and described in the classification section of the preamble to the rule. The public comment period ended on May 14, 2008. NMFS received five letters of comment on the proposed rule, including one with a comment on the PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 54937 IRFA. The comment concerned the lack of information in the IRFA regarding action 5. Action 5 revises regulations regarding cash reimbursement for expenses related to the harvest of subsistence resources. However, action 5 applies only to individuals and not to small entities as defined by the RFA, therefore, no changes were made to the FRFA based on that comment. A detailed discussion of the effects of action 5 is provided in section 6.0 of the RIR. Four additional comments were received related to the possible economic effects of the proposed regulations to allow cash reimbursement for certain subsistence harvest related expenses, however these comments were not directed to the IRFA. For a summary of the comments received, including those on action 5, refer to the section of this final rule titled ‘‘Response to Comments.’’ Description and Estimate of Number of Small Entities to Which the Rule Will Apply Action 1 directly regulates nine Alaska Native tribes, or governmental entities in the absence of a tribe, that are eligible to participate in the subsistence halibut program off Kodiak and Chiniak Bay. Action 6 affects twelve Alaska Native tribes, but no governmental entities. Description of Recordkeeping, Reporting, and Other Compliance Requirements No additional recordkeeping, reporting requirements, or other compliance requirements are anticipated as a result of either action 1 or 6. Description of Significant Alternatives and Steps Taken to Minimize the Significant Economic Impact on Small Entities Multiple alternatives were addressed for each action under the RFA. Under action 1, three alternatives were analyzed: (1) no action; (2) change gear restrictions and annual limits in Kodiak, Prince William Sound, Cook Inlet, and the Sitka LAMP; and (3) change gear restrictions and annual limits only in Kodiak and the Sitka LAMP. Alternative 3 was selected as the preferred alternative for action 1. For action 6, three alternatives were analyzed: (1) no action; (2) allow the use of CHPs, educational permits, and ceremonial permits in non–subsistence use areas by tribes whose traditional fishing grounds are located within IPHC Areas 2C and 3A, with the associated daily bag limit; and (3) allow the use of educational permits and ceremonial permits, but not E:\FR\FM\24SER1.SGM 24SER1 54938 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations rwilkins on PROD1PC63 with RULES CHPs, in non–subsistence use areas by tribes whose traditional fishing grounds are located within IPHC Areas 2C and 3A, with the associated daily bag limit. Alternative 3 was selected as the preferred alternative for action 6. Alternative 1 for action 1 was rejected because it did not address the localized depletion concerns in the areas under consideration. Alternative 2 for action 1 was rejected because it includes restrictions in the Prince William Sound and Cook Inlet areas. Measures for Prince William Sound and Cook Inlet were found to be unwarranted, therefore, Alternative 2 would be more restrictive than the preferred alternative. Alternative 1 for action 6 was rejected because it would have continued the prohibition on subsistence halibut fishing under all circumstances in designated non–subsistence fishing areas and would not provide social, cultural, educational, and ‘‘communal’’ benefits to the 12 affected tribes. Alternative 2 for action 6 was rejected because it allows the use of CHPs in non–subsistence fishing areas, but the preferred alternative prohibits such use. CHP use was rejected in non– subsistence fishing areas because of potential unintended negative consequences for groundfish stocks. Based on the best available scientific data and information, the FRFA (including the RIR) reveals that none of the significant alternatives, other than the preferred alternatives, have the potential to accomplish the objectives of the actions consistent with the Halibut Act, the RFA, and other applicable statutes, and minimize the adverse economic impacts of the rule on directly regulated small entities. That is, in both actions considered here, the preferred alternative was the least burdensome among all available alternatives, consistent with the objectives of each respective action. RFA Conclusion ‘‘Small entities,’’ as defined by the Regulatory Flexibility Act, would be directly regulated only by action 1 and by action 6. All attributable impacts on directly regulated small entities, accruing from either action, appear to be ‘‘beneficial.’’ It is NMFS’s policy to consider only ‘‘adverse’’ impacts, when preparing a FRFA, consistent with Congress’ direction to ‘‘minimize effects on small entities.’’ Based upon the foregoing analysis, no such adverse impacts appear to be associated with the proposed actions. Nonetheless, detailed information and empirical data about the operational structures, strategies, and fiscal conditions of the various VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 tribes, which are likely to be directly regulated by the proposed actions, are not presently available to the analysts to support preparation of a ‘‘factual basis’’ upon which to ‘‘certify,’’ under RFA provisions. Therefore, the FRFA was prepared to fulfill the requirements of the RFA, despite the high probability that the actions will not have a significant adverse effect on a substantial number of small entities. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ In that guide, the agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. NMFS will post a small entity compliance guide on the Internet at http:// alaskafisheries.noaa.gov/ram/ subsistence/halibut.htm. The guide and this final rule will be available upon request (see ADDRESSES). This final rule contains collection–of– information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB. These collections are listed by control number. OMB Control Number 0648–0460 Public reporting burden is estimated to average ten minutes for a subsistence halibut registration certificate (SHARC) for rural or individual use and ten minutes for a SHARC for tribal use per response. OMB Control Number 0648–0512 Public reporting burden for a Subsistence Halibut Special Permit Application for ceremonial harvest, educational harvest, or community harvest is estimated to average ten minutes per response. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates, or any other aspect of these data collections, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e–mail to DavidlRostker@omb.eop.gov, or fax to 202–395–7285. Notwithstanding any other provision of the law, no person is required to PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. NMFS is not aware of any other Federal rules that would duplicate, overlap, or conflict with these actions. Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the American Indian and Alaska Native Policy of the U.S. Department of Commerce (March 30, 1995) outline the responsibilities of the National Marine Fisheries Service in matters affecting tribal interests. Section 161 of Public Law 108–199 (118 Stat 452), as amended by section 518 of Public Law 108–447 (118 Stat 3267), extends the consultation requirements of Executive Order 13175 to Alaska Native corporations. Consultations with the Alaska Native Subsistence Halibut Working Group, under Executive Order 13175, resulted in recommendations to allow the use of special permits in non–subsistence use areas. NMFS contacted tribal governments and Alaska Native corporations which may be affected by the action, provided them with a copy of the proposed rule, and offered them an opportunity to consult. One request for a tribal consultation was received. NMFS staff spoke via telephone with members of the tribal organization and their associates to listen to and address their specific questions and their specific needs. Many of their specific questions also were raised in comments received during the public comment period and are responded to in the Response to Comments section of this final rule, except for two comments listed below. NMFS staff clarified points in the proposed regulations, described the role of the Alaska Native Subsistence Halibut Working Group, and provided contact information for the working group. Two comments raised during the tribal consultation were not included in the Response to Comments section. The first comment is that the specific items allowed for reimbursement do not encompass all costs associated with harvest and trade of subsistence halibut and that only enforcement concerns were considered. NMFS notes that not all costs were expected to be encompassed in the amount that could be reimbursed. As stated in the RIR: Examples of costs that would not be allowed to be compensated are the cost of the boat, repairs, or hydraulic gear that would be E:\FR\FM\24SER1.SGM 24SER1 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations used for a duration longer than the fishing trip that produced the halibut that is being shared. Enforcement staff advised the Council that this approach still would be extremely difficult to enforce. Enforcement may occur through investigations, whereby receipts could be examined to verify expenses. Staff reported that, while this preferred alternative does not facilitate enforcement directly, it facilitates public understanding of Council intent and may enhance enforcement of egregious violations. TITLE 15—COMMERCE AND FOREIGN TRADE The Council determined that its preferred alternative best recognized the social, cultural, educational, and communal benefits that derive from sharing halibut, while providing additional tools for enforcing the prohibition on commercial sale of subsistence halibut. Therefore, the Council rejected the most readily enforceable alternative, which would have prohibited any cash exchange, in favor of the preferred alternative based on the extensive administrative record. The second comment is that the 30 hooks per vessel limit is a hardship and should be increased to the 30 hooks per person and 90 hooks per vessel limit allowed in other areas; the limit of 20 fish per vessel per day should be a sufficient limit. This change was initiated in specific regulatory areas for the halibut fishery because of increased fishing effort due to higher population density. NMFS suggests that if a tribal organization wants its local area within the larger halibut regulatory area to be exempt from this limit, the idea could be further developed by the tribal organization. The tribal organization could then bring the idea to the attention of the Alaska Native Subsistence Halibut Working Group. ■ List of Subjects CHAPTER IX—NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 1. The authority citation for part 902 continues to read as follows: ■ Authority: 44 U.S.C. 3501 et seq. 2. In § 902.1, in the table in paragraph (b), under the entry ‘‘50 CFR’’, add entries for ‘‘300.65 introductory text; (h)(1)(ii) and (iii); and (i)’’, ‘‘300.65(h)(1)(i)’’, and ‘‘300.65(j), (k), and (l)’’ in alphanumeric order to read as follows: § 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act. * * * * * (b) * * * 3. Table 2a to part 679 is revised to read as follows: CFR part or section where the information collection requirement is located Current OMB control number (all numbers begin with 0648-) ******* ******* 300.65 introductory text; (h)(1)(ii) and (iii); and (i) -0460 300.65(h)(1)(i) -0460 and -0512 300.65(j), (k), and (l) -0512 ******* TITLE 50—Wildlife and Fisheries Recordkeeping and reporting requirements. PART 300—INTERNATIONAL FISHERIES REGULATIONS 50 CFR Part 300 Subpart E—Pacific Halibut Fisheries Alaska, Alaska Natives, Fisheries, Pacific halibut fisheries, Recordkeeping and reporting requirements. rwilkins on PROD1PC63 with RULES 15 CFR Part 902 ■ Dated: September 18, 2008. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. ■ For the reasons set out in the preamble, NMFS amends 15 CFR chapter IX and 50 CFR chapter III as follows: § 300.61 VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 Authority: 16 U.S.C. 773–773k. 4. In § 300.61, add definitions of ‘‘Chiniak Bay’’ and ‘‘Power hauling’’ in alphabetical order and revise the definition of ‘‘Charter vessel’’ to read as follows: Definitions. * * * * * Charter vessel, for purposes of § 300.65, means a vessel that is Frm 00009 5. In § 300.65: A. Revise paragraphs (e)(1)(ii) introductory text, (h)(1)(i), (h)(2), (j) introductory text, (j)(1)(ii), (j)(1)(iii), (j)(3)(i) introductory text, (j)(3)(i)(A), (j)(3)(i)(B), (k)(3)(i), and (k)(3)(ii). B. Add paragraph (e)(5). C. In paragraph (g)(1) in the table entitled ‘‘Halibut Regulatory Area 2C’’ an entry for ‘‘Naukati’’ is added in alphabetical order. The additions and revisions read as follows: Fmt 4700 Sfmt 4700 § 300.65 Catch sharing plan and domestic management measures in waters in and off Alaska. * 3. The authority citation for subpart E of part 300 continues to read as follows: PO 00000 registered, or that should be registered, as a sport fishing guide vessel with the Alaska Department of Fish and Game. Chiniak Bay means all waters bounded by the shoreline and straight lines connecting the coordinates in the order listed: (1) North from Cape Chiniak (57°37.22′ N. lat., 152°9.36′ W. long.); (2) To Buoy #1 at Williams Reef (57°50.36′ N. lat., 152°8.82′ W. long.); (3) To East Cape on Spruce Island (57°54.89′ N. lat., 152°19.45′ W. long.); (4) To Termination Point on Kodiak Island (57°51.31′ N. lat., 152°24.01′ W. long.); and (5) Connecting to a line running counterclockwise along the shoreline of Kodiak Island to Cape Chiniak (57°37.22′ N. lat., 152°9.36′ W. long.). * * * * * Power hauling means using electrically, hydraulically, or mechanically powered devices or attachments or other assisting devises or attachments to deploy and retrieve fishing gear. Power hauling does not include the use of hand power, a hand powered crank, a fishing rod, a downrigger, or a hand troll gurdy. * * * * * ■ 50 CFR CHAPTER III—INTERNATIONAL FISHING AND RELATED ACTIVITIES ■ 54939 * * * * (e) * * * (1) * * * (ii) With respect to paragraphs (e)(3), (e)(4), and (e)(5) of this section, that part of the Commission Regulatory Area 2C that is enclosed on the north and east: * * * * * (5) Setline gear may not be used in a 4 nm radius extending south from Low Island at 57°00.70′ N. lat., 135°36.57′ W. long. within Sitka Sound, as defined in paragraph (e)(1)(ii) of this section, from June 1 through August 31. * * * * * (g) * * * (1) * * * E:\FR\FM\24SER1.SGM 24SER1 54940 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations Rural Community (i) of this section and aboard the vessel, whichever is less, according to the regulatory area and permit type indicated in the following table: Permit Type Organized Entity ******* Naukati * * * * (h) * * * (1) * * * (i) Subsistence fishing gear set or retrieved from a vessel while engaged in subsistence fishing for halibut must not have more than the allowable number of hooks per vessel, or per person registered in accordance with paragraph Retention Limits * HALIBUT REGULATORY AREA 2C Municipality ******* Regulatory Area 2C--Except Sitka Sound, and Ketchikan and Juneau non-subsistence marine waters areas 30 hooks per vessel Ceremonial Permit 30 hooks per vessel Educational Permit 30 hooks per vessel Community Harvest Permit 30 hooks per person onboard up to 90 hooks per vessel SHARC 2C--Sitka Sound SHARC September 1 through May 31: 30 hooks per vessel June 1 through August 31: 15 hooks per vessel; no power hauling Ceremonial Permit September 1 through May 31: 30 hooks per vessel June 1 through August 31: fishing under Ceremonial Permit not allowed Educational Permit Community Harvest Permit 30 hooks per person onboard up to 90 hooks per vessel 30 hooks per person onboard up to 90 hooks per vessel 30 hooks per person onboard up to 90 hooks per vessel 30 hooks per person onboard up to 90 hooks per vessel 30 hooks per person onboard up to 60 hooks per vessel Ceremonial Permit 30 hooks per person onboard up to 90 hooks per vessel Educational Permit rwilkins on PROD1PC63 with RULES SHARC SHARC 30 hooks per person onboard up to 90 hooks per vessel Community Harvest Permit Jkt 214001 fishing under Community Harvest Permit not allowed Community Harvest Permit 16:28 Sep 23, 2008 30 hooks per vessel Educational Permit VerDate Aug<31>2005 30 hooks per vessel Ceremonial Permit 3A--Anchorage-Matsu-Kenai and Valdez nonsubsistence marine waters areas general subsistence halibut fishing not allowed Community Harvest Permit 3A--Chiniak Bay SHARC Educational Permit 3A--Except Chiniak Bay, and AnchorageMatsu-Kenai and Valdez non-subsistence marine waters areas fishing under Community Harvest Permit not allowed Ceremonial Permit 2C--Ketchikan and Juneau non-subsistence marine waters areas 30 hooks per vessel 30 hooks per person onboard up to 90 hooks per vessel SHARC general subsistence halibut fishing not allowed PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\24SER1.SGM 24SER1 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations Regulatory Area Permit Type 54941 Retention Limits Ceremonial Permit 30 hooks per person onboard up to 90 hooks per vessel Educational Permit 30 hooks per person onboard up to 90 hooks per vessel Community Harvest Permit fishing under Community Harvest Permit not allowed 3B SHARC 30 hooks per person onboard up to 90 hooks per vessel 4A and 4B SHARC 30 hooks per person onboard up to 90 hooks per vessel 4C, 4D, and 4E SHARC no hook limit * * * * * (2) The retention of subsistence halibut is limited per person eligible to conduct subsistence fishing for halibut Regulatory Area and onboard the vessel according to the following table: Permit Type 2C--Except Sitka Sound, and Ketchikan and Juneau non-subsistence marine waters areas Gear Restrictions 20 halibut per day per vessel and in possession Ceremonial Permit 25 halibut per permit Educational Permit 25 halibut per permit Community Harvest Permit no daily or possession limit SHARC 2C--Sitka Sound SHARC September 1 through May 31: 10 halibut per day per vessel and in possession June 1 through August 31: 5 halibut per day per vessel and in possession Ceremonial Permit September 1 through May 31: 25 halibut per permit June 1 through August 31: fishing under Ceremonial Permit not allowed Educational Permit Community Harvest Permit rwilkins on PROD1PC63 with RULES fishing under Community Harvest Permit not allowed SHARC 20 halibut per person per day and in possession 25 halibut per permit 25 halibut per permit Community Harvest Permit Jkt 214001 25 halibut per permit Educational Permit 16:28 Sep 23, 2008 25 halibut per permit Ceremonial Permit VerDate Aug<31>2005 general subsistence halibut fishing not allowed Community Harvest Permit 3A--Anchorage-Matsu-Kenai and Valdez nonsubsistence marine waters areas SHARC Educational Permit 3A--Including Chiniak Bay, but excluding Anchorage-Matsu-Kenai and Valdez non-subsistence marine waters areas fishing under Community Harvest Permit not allowed Ceremonial Permit 2C--Ketchikan and Juneau non-subsistence marine waters areas 25 halibut per permit no daily or possession limit SHARC general subsistence halibut fishing not allowed PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\24SER1.SGM 24SER1 54942 Federal Register / Vol. 73, No. 186 / Wednesday, September 24, 2008 / Rules and Regulations Regulatory Area Permit Type Gear Restrictions Ceremonial Permit 25 halibut per permit Educational Permit 25 halibut per permit Community Harvest Permit fishing under Community Harvest Permit not allowed 3B SHARC 20 halibut per person per day and in possession 4A and 4B SHARC 20 halibut per person per day; no possession limit 4C, 4D, and 4E SHARC no daily or possession limit rwilkins on PROD1PC63 with RULES * * * * * (j) Community Harvest Permit (CHP). An Area 2C or Area 3A community or Alaska Native tribe listed in paragraphs (g)(1) or (g)(2) of this section may apply for a CHP, which allows a community or Alaska Native tribe to appoint one or more individuals from its respective community or Alaska Native tribe to harvest subsistence halibut from a single vessel under reduced gear and harvest restrictions. The CHP consists of a harvest log and up to five laminated permit cards. A CHP is a permit subject to regulation under § 679.4(a) of this title. (1) * * * (ii) NMFS will issue a CHP to a community in Area 2C or Area 3A only if: (A) The applying community is listed as eligible in Area 2C or Area 3A according to paragraph (g)(1) of this section; and (B) No Alaska Native tribe listed in paragraph (g)(2) of this section exists in that community. (iii) NMFS will issue a CHP to an Alaska Native tribe in Area 2C or Area 3A only if the applying tribe is listed as eligible in Area 2C or Area 3A according to paragraph (g)(2) of this section. * * * * * (3) * * * (i) In Area 2C or Area 3A, except that a CHP may not be used: (A) Within Sitka Sound as defined in paragraph (e)(1)(ii) of this section (see Figure 1 to this subpart E); or (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, and 5 to this subpart E). * * * * * (k) * * * (3) * * * (i) In Area 3A, except: (A) In the Anchorage–Matsu–Kenai non–subsistence marine waters area defined in paragraph (h)(3) of this VerDate Aug<31>2005 16:28 Sep 23, 2008 Jkt 214001 section (see figure 4 to this subpart E), only the following tribes may use a Ceremonial or Educational permit: (1) Kenaitze Indian Tribe; (2) Seldovia Village Tribe; (3) Ninilchik Village; (4) Native Village of Port Graham; (5) Native Village of Nanwalek; and (6) Village of Salamatoff. (B) In the Valdez non–subsistence marine waters area defined in paragraph (h)(3) of this section (see figure 5 to this subpart E), only the Native Village of Tatitlek may use a Ceremonial or Educational permit. (ii) In Area 2C, except: (A) In the Ketchikan non–subsistence marine waters area defined in paragraph (h)(3) of this section (see figure 2 to this subpart E), only the following tribes may use a Ceremonial or Educational permit: (1) Central Council of Tlingit/Haida Indians; (2) Ketchikan Indian Corporation; and (3) Organized Village of Saxman; (B) In the Juneau non–subsistence marine waters area defined in paragraph (h)(3) of this section (see figure 3 to this subpart E), only the following tribes may use a Ceremonial or Educational permit: (1) Central Council of Tlingit/Haida Indians; (2) Douglas Indian Association; and (3) Aukquan Traditional Council. (C) A Ceremonial Permit may not be used within Sitka Sound from June 1 through August 31; * * * * * ■ 6. In § 300.66, revise paragraphs (i) and (j), and add paragraph (n) to read as follows: § 300.66 Prohibitions. * * * * * (i) Fish for subsistence halibut from a charter vessel or retain subsistence halibut onboard a charter vessel if anyone other than the owner of record, as indicated on the State of Alaska vessel registration, or the owner’s PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 immediate family is aboard the charter vessel and unless each person engaging in subsistence fishing onboard the charter vessel holds a subsistence halibut registration certificate in the person’s name pursuant to § 300.65(i) and complies with the gear and harvest restrictions found at § 300.65(h). (j) Retain or possess subsistence halibut for commercial purposes; cause subsistence halibut to be sold, bartered, or otherwise entered into commerce; or solicit exchange of subsistence halibut for commercial purposes, except that a person who qualified to conduct subsistence fishing for halibut under § 300.65(g), and who holds a subsistence halibut registration certificate in the person’s name under § 300.65(i), may be reimbursed for the expense of fishing for subsistence halibut under the following conditions: (1) Persons who qualify as rural residents under § 300.65(g)(1) and hold a subsistence halibut registration certificate in the persons’s name under § 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 listed on the person’s subsistence halibut registration application; or (2) Persons who qualify as Alaska Native tribal members under § 300.65(g)(2) and hold a subsistence halibut registration certificate in the person’s name under § 300.65(i) may be reimbursed 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 listed on the person’s subsistence halibut registration application. * * * * * (n) Transfer subsistence halibut to charter vessel anglers. [FR Doc. E8–22411 Filed 9–23–08; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\24SER1.SGM 24SER1

Agencies

[Federal Register Volume 73, Number 186 (Wednesday, September 24, 2008)]
[Rules and Regulations]
[Pages 54932-54942]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22411]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 300

[Docket No. 080310411-8949-02]
RIN 0648-AU14


Pacific Halibut Fisheries; Subsistence Fishing

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

ACTION: Final rule.

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

DATES: Effective October 24, 2008.

ADDRESSES: Copies of the Categorical Exclusion (CE), Regulatory Impact 
Review (RIR), and Final Regulatory Flexibility Analysis (FRFA) prepared 
for this action, as well as the environmental assessment (EA) prepared 
for the original subsistence halibut action (68 FR 18145; April 15, 
2003) are available by mail from NMFS, Alaska Region, P. O. Box 21668, 
Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in 
person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, 
Alaska; or via the Internet at the NMFS Alaska Region website at http:/
/www.alaskafisheries.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS at the above address and by e-mail 
to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228.

SUPPLEMENTARY INFORMATION: Management of the Pacific halibut (hereafter 
halibut) fishery in and off Alaska is based on an international 
agreement between Canada and the United States. This agreement, 
entitled the ``Convention between the United States of America and 
Canada for the Preservation of the Halibut Fishery of the Northern 
Pacific Ocean and Bering Sea'' (Convention), was signed at Ottawa, 
Canada, on March 2, 1953, and amended by the ``Protocol Amending the 
Convention,'' signed at Washington, D.C., March 29, 1979. The 
Convention, administered by the International Pacific Halibut 
Commission (IPHC), is given effect in the United States by the Northern 
Pacific Halibut Act of 1982 (Halibut Act).
    The IPHC promulgates regulations pursuant to the Convention. The 
IPHC's regulations are subject to approval by the Secretary of State 
with concurrence from the Secretary of Commerce (Secretary). After 
approval by the Secretary of State and the Secretary, the IPHC 
regulations are published in the Federal Register as annual management 
measures pursuant to 50 CFR 300.62. NMFS published the IPHC's current 
annual management measures on March 7, 2008 (73 FR 12280).
    The Halibut Act 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

[[Page 54933]]

or vessels of the United States (Halibut Act, section 773c (c)). Such 
an action by the Council is limited to only those regulations that are 
in addition to, and not in conflict with, IPHC regulations. Council-
developed regulations must be approved and implemented by the 
Secretary. Any allocation of halibut fishing privileges must be fair 
and equitable and consistent with other applicable Federal law.
    The Council used its authority under the Halibut Act to recommend a 
subsistence halibut program in October 2000 to recognize and manage the 
subsistence fishery for halibut. The Secretary approved the Council's 
recommended subsistence halibut program and published implementing 
regulations on April 15, 2003 (68 FR 18145), and codified the program 
in 50 CFR part 300-subpart E, authorizing a subsistence fishery for 
halibut in Convention waters off Alaska. 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.

Background and Need for Action

    The background and need for this action were described in detail in 
the preamble to the proposed rule for this action (73 FR 20008; April 
14, 2008). The proposed rule is available via the Internet and from 
NMFS (see ADDRESSES). None of the actions are intended to change the 
amount of halibut harvested for subsistence. Information on 
alternatives considered and rejected may be found in the RIR and FRFA 
prepared for this action (see ADDRESSES). The following provides a list 
and brief review of the regulatory amendments to the management of the 
subsistence halibut fishery and are the regulatory changes made by this 
final rule.
    This action implements regulations that will make six changes to 
the subsistence halibut program that will:
     Revise the subsistence gear restrictions in Chiniak Bay 
off Kodiak Island and add seasonal gear and vessel limits in Sitka 
Sound;
     Add the village of Naukati to the list of eligible 
subsistence halibut communities;
     Implement a possession limit to enhance enforcement;
     Revise the definition of charter vessel;
     Revise regulations to allow cash reimbursement for 
expenses related to the harvest of subsistence resources; and
     Allow the use of special permits within non-subsistence 
use areas by tribes eligible for the permits.
    Additional administrative revisions to regulations include 
converting the gear and harvest restrictions from text to table format 
to further clarify any ambiguity and revising language to consistently 
refer to Sitka Sound, rather than Sitka Local Area Management Plan 
(LAMP), and its defined area.

Subsistence Halibut Gear Restrictions

    This action increases subsistence halibut gear restrictions in 
Chiniak Bay off Kodiak Island and in Sitka Sound to address localized 
depletion concerns. This action reduces the allowable hook limit in 
Chiniak Bay to no more than two times the per person limit of 30, 
except that when fishing under a Ceremonial, Educational, or Community 
Harvest Permit the limit will be 90 hooks per vessel. Under this 
action, NMFS defines Chiniak Bay based on the State of Alaska's 
definition of the Kodiak Road Zone. In Sitka Sound, this action reduces 
the allowable gear from 30 hooks to 15 hooks per vessel and prohibits 
power hauling during the summer months from June 1 through August 31. 
From September 1 through May 31 gear restrictions will remain at 30 
hooks per vessel and power hauling will be allowed.
    The gear restrictions in this rule apply only to gear in use by 
eligible subsistence fishermen. By applying the gear restrictions to 
gear ``set or retrieved'' from a vessel, the gear restrictions apply 
only to gear actively engaged in subsistence fishing for halibut. A 
subsistence fisherman may possess any amount of gear onboard the vessel 
as long as that amount of gear actively being used does not exceed the 
prescribed limits.

Eligible Subsistence Halibut Communities

    Persons eligible to conduct subsistence halibut fishing include (1) 
residents of rural places with customary and traditional uses of 
halibut, and (2) all identified members of federally recognized Alaska 
Native tribes with a finding of customary and traditional uses of 
halibut. The Council and Secretary retain exclusive authority to 
recommend changes to the list of rural places at Sec.  300.65(g)(1). In 
December 2004, the Council affirmed the Alaska State Board of 
Fisheries' determination that Naukati is a rural community with 
customary and traditional use of halibut and recommended adding Naukati 
to the list of rural communities for subsistence halibut purposes. NMFS 
agrees with this determination and, therefore, adopts the 
recommendation of the Council and adds Naukati to the list of eligible 
communities found at Sec.  300.65(g)(1).

Subsistence Halibut Harvest Restrictions

    Prior to this rule, enforcement officers had no means to verify the 
amount of time spent on the water for subsistence halibut fishermen who 
possess more than one daily bag limit, thereby hampering accurate 
accounting of halibut removals. This rule implements a possession limit 
to restrict potential abuses of the daily bag limit and enhance 
enforcement of daily harvest limits. Because of increased fishing 
effort due to higher population density, this action implements a 
possession limit of one daily bag limit for Areas 3A, 3B, and 2C. The 
possession limit within Sitka Sound, part of Area 2C, is 10 halibut per 
day per vessel from September 1 to May 31 and 5 halibut per day per 
vessel from June 1 through August 31. No possession limit is necessary 
for Areas 4A and 4B because those areas are not experiencing 
corresponding increases in fishing effort and population density. This 
action has no effect in Areas 4C, 4D, or 4E because no daily bag limits 
exist in those areas.

Charter Vessel Prohibition

    Regulations in effect prior to this rule prohibited the retention 
of subsistence halibut harvested using a charter vessel. The NOAA 
Office for Law Enforcement expressed difficulty enforcing the 
prohibition under the previous charter vessel definition, which was ``a 
vessel used for hire in sport fishing for halibut, but not including a 
vessel without a hired operator,'' because of problems associated with 
determining whether a vessel operator is ``for hire.'' The Council 
subsequently clarified that the prohibition was meant only to prohibit 
subsistence fishers from hiring someone to take them subsistence 
fishing, but not to prohibit the use of vessels registered as charter 
vessels from being used for subsistence fishing.
    This action uses the term ``sport fishing guide vessel'' in the 
regulatory definition for a charter vessel to match the term used in 
State of Alaska regulations at 05 AAC 75.077. This

[[Page 54934]]

action also allows a charter vessel to be used for subsistence halibut 
fishing, but restricts such use to the owner of record on the State of 
Alaska vessel registration, provided the owner is eligible to fish for 
subsistence halibut, and the owner's immediate family. This action 
prohibits the use of a charter vessel for subsistence halibut fishing 
while charter clients are onboard the vessel and prohibits the transfer 
of subsistence halibut to charter clients at all times. This precludes 
the use of any gear not classified as sport fishing gear or retaining 
any halibut in excess of the sport limits while charter clients are 
onboard any vessel.

Cash Reimbursement for Expenses

    The previous regulations at Sec.  300.66(j) specified that it is 
unlawful for any person to retain or possess subsistence halibut for 
commercial purposes; cause subsistence halibut to be sold, bartered, or 
otherwise entered into commerce; or solicit the exchange of subsistence 
halibut for commercial purposes, except that a qualified subsistence 
fisherman may engage in the customary trade of subsistence halibut 
through monetary exchange of no more than $400 per year.
    In June 2003, the Council's Enforcement Committee reviewed issues 
related to customary trade and determined that (1) despite the 
Council's intent to avoid creation of a new commercial fishery, current 
regulations essentially allow the sale of subsistence halibut up to the 
$400 annual limit; (2) the $400 annual limit lacks enforceability 
because enforcement officers cannot easily distinguish between sale and 
customary and traditional exchange for cash; and (3) current 
regulations do not clearly prohibit advertising and solicitation for 
commercial sale.
    This action eliminates the $400 monetary exchange limit and 
restricts any monetary exchange for subsistence halibut specifically to 
reimbursement of actual trip expenses directly related to the harvest 
of subsistence halibut. Actual trip expenses are limited to ice, bait, 
food, or fuel only. Under this action, persons qualified as rural 
residents under Sec.  300.65(g)(1) and holding a subsistence halibut 
registration certificate (SHARC) in their name under Sec.  300.65(i), 
may be reimbursed only by residents of the same rural community listed 
on their SHARC. However, under this action, persons qualified as Alaska 
Native tribal members under Sec.  300.65(g)(2) and holding a SHARC in 
their name under Sec.  300.65(i), are eligible for reimbursement only 
from an Alaska Native tribe, or its members, or members of the same 
rural community. Therefore, if the tribal member lives in a non-rural 
Alaska community, they can participate in compensated exchanges only 
with a member of an Alaska native tribe.

Special Permits in Non-subsistence Areas

    Generally, eligible persons may harvest subsistence halibut in all 
Convention waters in and off Alaska except in non-subsistence marine 
waters areas. This action allows the use of Ceremonial Permits and 
Educational Permits in non-subsistence marine waters areas by the 12 
tribes whose traditional fishing grounds are located within Areas 2C 
and 3A. Use of Ceremonial Permits and Educational Permits within non-
subsistence marine waters areas will remain subject to gear and harvest 
restrictions for those permits consistent with the IPHC regulatory area 
in which they are used. The use of Community Harvest Permits (CHPs) 
will not be allowed in non-subsistence marine waters areas.
    The twelve tribes include five in Area 2C and seven in Area 3A. The 
tribes in Area 2C are as follows: Central Council of Tlingit/Haida 
Indians, Douglas Indian Association, Aukquan Traditional Council, 
Ketchikan Indian Corporation, and Organized Village of Saxman. In Area 
3A the tribes are as follows: Native Village of Tatitlek, Kenaitze 
Indian Tribe, Seldovia Village Tribe, Ninilchik Village, Native Village 
of Port Graham, Native Village of Nanwalek, and Village of Salamatoff. 
The RIR/FRFA mentions 13 tribes several times, because the table it 
used lists the tribes by the four areas that currently are closed to 
subsistence halibut fishing. However, one tribe has traditional fishing 
grounds in both the Juneau and Ketchikan areas, so the correct total 
number of tribes is 12.

Response to Comments

    The proposed rule published in the Federal Register on April 14, 
2008 (73 FR 20008). The 30-day comment period on the proposed rule 
ended May 14, 2008. NMFS received a total of five letters on the 
proposed rule that contained 15 unique comments. One letter was 
received from a tribal organization, one letter was received from two 
private individuals, and three letters were received from the fishing 
industry. A summary of these comments and NMFS's responses follows.
    Comment 1: The proposed changes regarding customary trade, and its 
definition, effectively eliminates it from subsistence uses. Although 
the Alaska National Interest Lands Conservation Act (ANILCA) did not 
define this term, the need to narrow the definition of ``customary 
trade'' by NMFS is not justified in light of the economic hardship and 
needs of Alaska Native villages. Leave customary trade as an option for 
those who have no alternative and do not place any monetary 
restrictions on the trade amount.
    Response: The original subsistence halibut fishing regulations at 
Sec.  300.61 defined customary trade as ``the non-commercial exchange 
of subsistence halibut for anything other than items of significant 
value'' and this definition remains unchanged by this rule. NMFS 
disagrees that the proposed changes eliminate customary trade for 
subsistence purposes. The new regulations specifically allow 
subsistence fishers to conduct limited trade of subsistence halibut. 
The regulations continue to prohibit subsistence halibut from being 
sold or otherwise entered into commerce; however, an exception provides 
for limited monetary exchange to reimburse qualified subsistence 
fishers for the actual expenses for ice, bait, food, and fuel directly 
related to subsistence fishing for halibut.
    In recognizing the subsistence halibut fishery in regulations in 
2003, NMFS did not intend to create an alternative commercial fishery. 
The former regulation, however, allowed ``sales'' of subsistence 
halibut of up to $400 per year as nominal reimbursement for harvesting 
costs when subsistence halibut was shared. Previous regulations at 
Sec.  300.66(j) allowed a ``customary trade of subsistence halibut 
through monetary exchange of no more than $400 per year.'' Some 
subsistence fishers regarded the monetary limit of $400 per year as a 
monetary target that allowed the commercial sale of subsistence halibut 
up to $400 per year per subsistence fisher. Thus, some subsistence 
halibut were illegally entering the commercial market for halibut. The 
new regulation clarifies that while the sale of subsistence halibut is 
prohibited, subsistence halibut fishers may be reimbursed for certain 
subsistence fishing expenses. This is consistent with customary trade 
practices.
    The previous customary trade allowance of $400 was never intended 
to be used for commercial revenue producing purposes. The objective of 
the customary trade allowance was to prevent commercial sale while 
allowing reimbursement of subsistence halibut harvesting expenses by 
those with whom the halibut was shared. In a careful review of the 
subsistence halibut program, the Council and NMFS determined the 
regulatory language implementing the objectives could be

[[Page 54935]]

confusing. Also, the NOAA Office for Law Enforcement found enforcement 
of the $400 customary trade limit difficult because no reporting and 
recordkeeping was required for customary trade transactions.
    This rule continues to prohibit the commercial sale of subsistence 
halibut. It does not prohibit customary trade, in terms of the economy 
of rural communities and Alaska Native tribes.
    Comment 2: Defraying expenses is not the same as customary trade.
    Response: Subsistence halibut fishing was the original fishery for 
halibut. Early Alaska Native fishers likely used the halibut resource 
not only as a food source for themselves, but also in trade with other 
Alaska and Canadian Natives living further inland. Over time, the 
commercial and sport fisheries for halibut developed as more non-
natives populated the area. The Council and NMFS have been attempting 
to balance these three uses of the halibut resource. Prohibiting the 
sale of subsistence halibut protects commercial interests in the 
resource. This rule does not purport to define the term ``customary 
trade.'' Instead, it prohibits the commercial sale of subsistence 
halibut while providing for the sharing of subsistence halibut with an 
opportunity to reimburse the subsistence fisher for certain actual 
subsistence fishing costs.
    Comment 3: The rule does not provide for the subsistence needs of 
tribal members and is detrimental to subsistence uses.
    Response: NMFS disagrees. Nothing in this rule prevents subsistence 
halibut fishing by qualified Alaska Natives. Moreover, the rule 
provides for expanded Alaska Native subsistence halibut fishing inside 
four non-subsistence areas currently closed to all subsistence fishing. 
This rule implements a more liberal policy of allowing subsistence 
halibut fishing under ceremonial permits and educational permits inside 
the current non-subsistence areas by Alaska Native tribes whose 
traditional fishing grounds fall within these areas.
    Comment 4: Only enforcement problems are considered in the changes 
to customary trade. There is no concern about the dire economic needs 
of rural Alaska.
    Response: NMFS disagrees. As explained above, the purpose of this 
regulatory change is to make a clear distinction between the 
subsistence and commercial fisheries and to continue to prohibit 
halibut caught in the subsistence fishery from entering commercial 
markets. The NOAA Office for Law Enforcement staff suggested that a 
regulatory change that identified the specific expenses (i.e., ice, 
bait, foot, and fuel) for which a cash exchange would be permitted, 
would enhance public understanding of permissible compensation and 
provide an enforcement tool for a cash limit.
    Providing regulatory language that can be effectively enforced is a 
concern in the development of all regulations by NMFS. The principal 
concern in this case, however, is to ensure the regulatory language 
clearly implements the policy that no subsistence halibut shall be sold 
or entered into commerce. The Council and NMFS have not changed the 
policy.
    The potential benefits from revising the regulations include (1) 
increased clarity within the regulations to better reflect the intent 
of the Council, thus reducing (or eliminating) confusion among 
subsistence users as to the bounds of authorized cash reimbursement; 
(2) reduced competition for commercial users from subsistence-caught 
halibut that would have entered the commercial marketplace; and (3) 
continuation of social and cultural benefits by allowing subsistence 
trade. The alternative that became the Council's preferred alternative 
was selected because it balanced enforcement with customary practices. 
This rule recognizes the social, cultural, educational, and community 
benefits that derive from participating in the customary and 
traditional practices of sharing subsistence halibut, and seeks to 
accommodate these practices while attempting to provide additional 
tools for enforcing the prohibition on the sale of subsistence halibut.
    Comment 5: Rural residents should have a meaningful role in the 
management of fisheries.
    Response: The Council has authority under the Halibut Act to 
develop halibut fishery regulations to achieve allocation goals. Under 
the fishery management council process set forth in the Magnuson-
Stevens Act, everyone has the opportunity to have a meaningful role and 
may participate in the decision-making process leading to new fishery 
management policies and regulations. All members of the public are 
invited to participate in the public process of the Council. Several 
weeks before each meeting, a notice is published in the Federal 
Register that announces when and where the meetings for the Council and 
its advisory committees will be held and the agenda items that may be 
discussed at the meeting. These meetings are open to the public. The 
Council's proposed revisions to the subsistence program were discussed 
at Council meetings held in October 2003, October 2004, and December 
2004, and a discussion paper was reviewed in June 2004. The public is 
specifically invited to speak at the Council and its advisory committee 
meetings. Writing letters or e-mails to the Council expressing concerns 
or joining or forming an association are other ways to become involved 
in the fisheries management process.
    In response to one of the management objectives in the Final Alaska 
Groundfish Fisheries Programmatic Supplemental Environmental Impact 
Statement (August 26, 2004), the Council reviewed a discussion paper in 
February 2008 that proposed several approaches for increasing Alaska 
Native and community participation and consultation in the fishery 
management process. In June 2008, the Council reviewed a revised 
discussion paper and initiated a small committee of Council members and 
community and Alaska Native representatives to review the discussion 
paper and recommend to the Council ways to create a policy to improve 
outreach and participation. Further information on this issue and other 
fisheries management issues is available at the Council website http://
www.alaskafisheries.noaa.gov/npfmc and information is available through 
the mail by writing to the Council at 605 W. 4th, Suite 306, Anchorage, 
AK 99501.
    Comment 6: The analysis expresses concern that any exchange for 
cash of subsistence harvested food may establish an ``undesirable 
precedent,'' but states that ``[a] regulation restricting customary 
trade to Alaska Native tribal members might prevent the development of 
new subsistence harvest patterns for customary trade.'' Congress needs 
to fulfill the policies and purposes of the Alaska Native Claims 
Settlement Act (ANCSA) and must invoke its constitutional authority 
over Native affairs under the property clause and the commerce clause 
to protect and provide the opportunity for continued subsistence uses. 
This distinguishes Alaska Natives from rural residents.
    Response: NMFS cannot amend ANCSA with a regulatory amendment. It 
is the role of Congress to amend ANCSA. This comment should, therefore, 
be directed to Congress.
    Comment 7: The Federal government should look to the tribes for a 
solution to enforcement of customary trade and authorize the tribes to 
enforce regulations on tribal members.
    Response: NMFS is responsible for enforcing the regulations it 
develops and promulgates. Changing the role of the tribes to include 
enforcement of NMFS's subsistence regulations is beyond the scope of 
this rule.

[[Page 54936]]

    Comment 8: Where does it say in ANILCA that customary trade shall 
not constitute a significant commercial enterprise? By what authority 
is this further restriction of subsistence use being undertaken when it 
is for enforcement and not conservation? If the subsistence use called 
customary trade must be further restricted, what commensurate 
restriction is applied to commercial and sport fishing? Where is the 
priority or preference?
    Response: According to the 9th Circuit Court, as stated in its 
decision of United States v. Alexander, 938 F.2d 942, 948 (9th Cr. 
1991) concerning customary and traditional trade, ``...trade must be 
conducted in a manner consistent with a subsistence lifestyle; ANILCA 
does not permit the establishment of significant commercial enterprises 
under the guise of subsistence uses.'' Commercial fishing for halibut 
is strictly regulated within an overall catch limit set by the IPHC and 
with individual fishing quotas for each person. Sport fishing for 
halibut is limited by prohibitions on the sale of halibut and by daily 
catch limits. Subsistence fishing for halibut is afforded some 
preference in that no annual catch limits, area catch limits, or 
allocations apply to the subsistence harvest.
    Comment 9: We support the recommendation to implement a possession 
limit of one daily bag limit. We agree this will help enforcement 
efforts regarding subsistence halibut and address IPHC's concerns about 
accounting.
    Response: Comment noted.
    Comment 10: We support the recommended definition of a charter 
vessel. Subsistence caught halibut cannot be given, transferred, or fed 
to charter clients. We also support not allowing charter vessels with 
clients on board to set or retrieve gear, and we support not giving 
halibut that was caught on subsistence gear to charter clients. This 
section with the recommended clarifications will significantly help 
with the NOAA Office for Law Enforcement's ability to determine whether 
they are in violation or not.
    Response: Comment noted.
    Comment 11: We believe the recommended changes to the monetary 
exchange regulations are critical to prevent abuses of the Council's 
intent from occurring. We believe that the recommendation is a good 
balance of meeting NPFMC original intent while tightening up the 
regulations to preventing abuse from occurring.
    Response: Comment noted.
    Comment 12: We support the change in the format of the regulations 
by using tables where appropriate.
    Response: Comment noted.
    Comment 13: We urge approval and implementation of the proposed 
regulatory amendments to further restrict gear and harvest of 
subsistence halibut in Sitka Sound. Sitka residents discovered that 
existing subsistence regulations for Sitka Sound allow an over-harvest 
of halibut for subsistence purposes, resulting in localized depletion 
and reduced subsistence opportunities for local residents. These 
amendments are the result of a collaborative process by stakeholders in 
Sitka. The proposed amendments will encourage larger and higher 
capacity vessels to harvest subsistence halibut outside Sitka Sound 
while allowing residents with small boats to subsistence fish 
effectively in the protected waters of Sitka Sound. Reducing pressure 
on locally depleted halibut will also relieve pressure on sensitive 
rockfish and lingcod stocks.
    Response: Comment noted.
    Comment 14: We support increasing gear restrictions in Chiniak Bay 
and Sitka Sound. We appreciate the clarification that the allowable 
gear is what is being ``set and retrieved'' and having spare gear on 
board, such as a box of hooks, is not a violation.
    Response: Comment noted.
    Comment 15: We would like an additional consideration implemented 
regarding the length of time that gear may remain in the water 
unattended. We have received reports from fishermen who have witnessed 
gear being set in Sitka Sound and left unattended for weeks at a time.
    Response: This action is not intended to address the length of time 
that gear may remain in the water. Concerns about the length of time 
that subsistence halibut gear may remain in the water would need to be 
addressed in a separate regulatory action developed through the Council 
process.

Changes from the Proposed Rule

    Eight changes were made in regulatory language from the proposed 
rule to this final rule. The first change was to the charter vessel 
definition. Concern was expressed by the NOAA Office for Law 
Enforcement about the ability to prosecute a person who violates 
Federal regulations but who was also in violation of State of Alaska 
regulations by not registering a vessel used for charter fishing. 
Therefore, to enable enforcement of Federal regulations, the definition 
was revised to include vessels that should have been registered with 
the State of Alaska as charter vessels. Additionally, the definition is 
intended to apply only to Alaska halibut regulatory areas 2C through 
4E, so the phrase ``for purposes of Sec.  300.65'' was added to the 
definition.
    The second regulatory change revises the table at Sec.  300.65(h) 
to add the limitations concerning the use of Ceremonial and Educational 
Permits in the non-subsistence marine waters areas of 2C and 3A.
    The third regulatory change revises regulatory language at Sec.  
300.65(j)(3)(i)(B). It was the intent of the Council to allow the use 
of only Ceremonial Permits and Educational Permits and to not allow the 
use of CHPs in non-subsistence marine waters areas. This restriction 
was discussed in the RIR and in the preamble to the proposed rule but 
not clearly reflected in the proposed regulatory text. This change 
corrects that oversight and adds the Valdez and Anchorage-Matsu-Kenai 
non-subsistence marine waters areas to the existing list of non-
subsistence marine waters areas in which the use of CHPs is prohibited.
    The fourth regulatory change revises regulatory language at Sec.  
300.65(k)(3) to specify the tribes that are qualified to use a 
Ceremonial or Educational Permit in each non-subsistence marine waters 
area in areas 3A and 2C.
    The fifth regulatory change clarifies proposed language at Sec.  
300.66(i) but does not change the substance of the regulatory language. 
Rather than requiring that a person ``abides by'' certain gear and 
harvest restrictions, the revised regulations require that a person 
``complies with'' those same restrictions.
    The sixth regulatory change revises Sec.  300.66(j)(1) to indicate 
that the person's rural community is listed on the application for a 
SHARC. It is not listed on the SHARC itself.
    The seventh regulatory change modifies the prohibitions at Sec.  
300.66(j)(2) regarding who may reimburse an Alaska Native tribal member 
for the expense of fishing for subsistence halibut. The proposed rule 
would have prevented an Alaska Native tribal member from being 
reimbursed by a non-native resident if they both lived within the same 
rural community. However, on further consideration, NMFS realized that 
proposal failed to recognize the dynamics within a rural Alaska 
community that consists of native and non-native individuals wherein 
subsistence halibut may be shared among them. Therefore, under the 
Secretary's authority in the Halibut Act at 773c (a) and (b), the 
regulations have been changed to allow Alaska Native tribal members 
holding a SHARC

[[Page 54937]]

to be reimbursed for certain actual expenses by any Alaska Native 
tribe, or its members, or residents of the same rural community listed 
on the person's SHARC application.
    The eighth regulatory change revises the sentence structure in 
Sec.  300.66(j)(1) and (2), by more clearly stating the limitation on 
what actual expenses may be reimbursed, but the substance of the 
regulations is not changed.
    Changes also were made in the instructions for the proposed 
amendments to Sec.  300.66. A court order filed June 20, 2008, that 
concerned Sec.  300.66(m), reversed a charter halibut final rule 
published May 28, 2008 (73 FR 30504). The proposed redesignation of 
paragraph (m) under this subsistence halibut rule could add confusion 
to the court order. Therefore, paragraphs (j) through (m) will not be 
redesignated. Rather than revising a newly redesignated paragraph (k) 
as stated in the proposed rule, paragraph (j) will be revised, and 
rather than adding a new paragraph (j), the new paragraph is designated 
as (n).

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 final rule has been determined to be not significant for 
purposes of Executive Order 12866. This final rule also complies with 
the Secretary's authority under the Halibut Act to implement management 
measures for the halibut fisheries, and with the Secretary's other 
responsibilities under the Convention and the Halibut Act.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of the significant issues raised by the public comments in 
response to the IRFA, NMFS's responses to those comments, and a summary 
of the analyses completed to support the action. A copy of this 
analysis is available from NMFS (see ADDRESSES). A description of this 
action, why it is being considered, and the legal basis for this action 
are presented above in the preamble to this rule. A summary of the FRFA 
follows.
    This rule implements six actions to amend the subsistence halibut 
regulations: (1) revise the subsistence gear restrictions in Chiniak 
Bay off Kodiak Island and add seasonal gear and vessel limits in the 
Sitka Sound area; (2) add the village of Naukati to the list of 
eligible subsistence halibut communities; (3) implement a possession 
limit equal to one daily bag limit to enhance enforcement; (4) revise 
the definition of charter vessel; (5) revise regulations to allow cash 
reimbursement for expenses related to the harvest of subsistence 
resources; and (6) allow the use of special permits within non-
subsistence use areas by tribes eligible for the permits. Only actions 
1 and 6 directly regulate ``small entities,'' as defined by the 
Regulatory Flexibility Act (RFA). The remaining four actions are not 
addressed because they affect individuals, rather than ``entities,'' as 
defined by the RFA. All attributable impacts on directly regulated 
small entities, accruing from either action, appear to be beneficial.
    Actions 1 and 6 aim to enhance management of the subsistence 
halibut fishery as it pertains to use by Alaska Native tribes for the 
purpose of recognizing and appropriately accommodating subsistence 
practices. These actions are taken under the authority of the Halibut 
Act.
    The principal decisions in the preferred alternatives for actions 1 
and 6 address changes to gear limits and the use of CHPs by Alaska 
Native tribes in Kodiak and Chiniak Bay, and seasonal gear and vessel 
limits in Sitka Sound; and fishing in non-subsistence use areas. The 
preferred alternatives to implement CHPs for Alaska Native tribes in 
Kodiak and Chiniak Bay (CHPs are not allowed in Sitka Sound) under 
action 1, and to allow Ceremonial and Educational Permits to be used by 
Alaska Native tribes in non-subsistence use areas under action 6, 
directly regulate small entities.

Significant Issues Raised by Public Comments on the IRFA

    The proposed rule for the subsistence halibut amendments was 
published in the Federal Register on April 14, 2008 (73 FR 20008). An 
IRFA was prepared for the proposed rule, and described in the 
classification section of the preamble to the rule. The public comment 
period ended on May 14, 2008. NMFS received five letters of comment on 
the proposed rule, including one with a comment on the IRFA. The 
comment concerned the lack of information in the IRFA regarding action 
5. Action 5 revises regulations regarding cash reimbursement for 
expenses related to the harvest of subsistence resources. However, 
action 5 applies only to individuals and not to small entities as 
defined by the RFA, therefore, no changes were made to the FRFA based 
on that comment. A detailed discussion of the effects of action 5 is 
provided in section 6.0 of the RIR. Four additional comments were 
received related to the possible economic effects of the proposed 
regulations to allow cash reimbursement for certain subsistence harvest 
related expenses, however these comments were not directed to the IRFA. 
For a summary of the comments received, including those on action 5, 
refer to the section of this final rule titled ``Response to 
Comments.''

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    Action 1 directly regulates nine Alaska Native tribes, or 
governmental entities in the absence of a tribe, that are eligible to 
participate in the subsistence halibut program off Kodiak and Chiniak 
Bay. Action 6 affects twelve Alaska Native tribes, but no governmental 
entities.

Description of Recordkeeping, Reporting, and Other Compliance 
Requirements

    No additional recordkeeping, reporting requirements, or other 
compliance requirements are anticipated as a result of either action 1 
or 6.

Description of Significant Alternatives and Steps Taken to Minimize the 
Significant Economic Impact on Small Entities

    Multiple alternatives were addressed for each action under the RFA. 
Under action 1, three alternatives were analyzed: (1) no action; (2) 
change gear restrictions and annual limits in Kodiak, Prince William 
Sound, Cook Inlet, and the Sitka LAMP; and (3) change gear restrictions 
and annual limits only in Kodiak and the Sitka LAMP. Alternative 3 was 
selected as the preferred alternative for action 1. For action 6, three 
alternatives were analyzed: (1) no action; (2) allow the use of CHPs, 
educational permits, and ceremonial permits in non-subsistence use 
areas by tribes whose traditional fishing grounds are located within 
IPHC Areas 2C and 3A, with the associated daily bag limit; and (3) 
allow the use of educational permits and ceremonial permits, but not

[[Page 54938]]

CHPs, in non-subsistence use areas by tribes whose traditional fishing 
grounds are located within IPHC Areas 2C and 3A, with the associated 
daily bag limit. Alternative 3 was selected as the preferred 
alternative for action 6.
    Alternative 1 for action 1 was rejected because it did not address 
the localized depletion concerns in the areas under consideration. 
Alternative 2 for action 1 was rejected because it includes 
restrictions in the Prince William Sound and Cook Inlet areas. Measures 
for Prince William Sound and Cook Inlet were found to be unwarranted, 
therefore, Alternative 2 would be more restrictive than the preferred 
alternative.
    Alternative 1 for action 6 was rejected because it would have 
continued the prohibition on subsistence halibut fishing under all 
circumstances in designated non-subsistence fishing areas and would not 
provide social, cultural, educational, and ``communal'' benefits to the 
12 affected tribes. Alternative 2 for action 6 was rejected because it 
allows the use of CHPs in non-subsistence fishing areas, but the 
preferred alternative prohibits such use. CHP use was rejected in non-
subsistence fishing areas because of potential unintended negative 
consequences for groundfish stocks.
    Based on the best available scientific data and information, the 
FRFA (including the RIR) reveals that none of the significant 
alternatives, other than the preferred alternatives, have the potential 
to accomplish the objectives of the actions consistent with the Halibut 
Act, the RFA, and other applicable statutes, and minimize the adverse 
economic impacts of the rule on directly regulated small entities. That 
is, in both actions considered here, the preferred alternative was the 
least burdensome among all available alternatives, consistent with the 
objectives of each respective action.

RFA Conclusion

    ``Small entities,'' as defined by the Regulatory Flexibility Act, 
would be directly regulated only by action 1 and by action 6. All 
attributable impacts on directly regulated small entities, accruing 
from either action, appear to be ``beneficial.''
    It is NMFS's policy to consider only ``adverse'' impacts, when 
preparing a FRFA, consistent with Congress' direction to ``minimize 
effects on small entities.'' Based upon the foregoing analysis, no such 
adverse impacts appear to be associated with the proposed actions. 
Nonetheless, detailed information and empirical data about the 
operational structures, strategies, and fiscal conditions of the 
various tribes, which are likely to be directly regulated by the 
proposed actions, are not presently available to the analysts to 
support preparation of a ``factual basis'' upon which to ``certify,'' 
under RFA provisions. Therefore, the FRFA was prepared to fulfill the 
requirements of the RFA, despite the high probability that the actions 
will not have a significant adverse effect on a substantial number of 
small entities.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' In that guide, the agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. 
NMFS will post a small entity compliance guide on the Internet at 
http://alaskafisheries.noaa.gov/ram/subsistence/halibut.htm. The guide 
and this final rule will be available upon request (see ADDRESSES).
    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA) and which have been 
approved by OMB. These collections are listed by control number.

OMB Control Number 0648-0460

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

OMB Control Number 0648-0512

    Public reporting burden for a Subsistence Halibut Special Permit 
Application for ceremonial harvest, educational harvest, or community 
harvest is estimated to average ten minutes per response.
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding these burden estimates, or any other aspect of 
these data collections, including suggestions for reducing the burden, 
to NMFS (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or 
fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    NMFS is not aware of any other Federal rules that would duplicate, 
overlap, or conflict with these actions.
    Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the 
Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the 
American Indian and Alaska Native Policy of the U.S. Department of 
Commerce (March 30, 1995) outline the responsibilities of the National 
Marine Fisheries Service in matters affecting tribal interests. Section 
161 of Public Law 108-199 (118 Stat 452), as amended by section 518 of 
Public Law 108-447 (118 Stat 3267), extends the consultation 
requirements of Executive Order 13175 to Alaska Native corporations.
    Consultations with the Alaska Native Subsistence Halibut Working 
Group, under Executive Order 13175, resulted in recommendations to 
allow the use of special permits in non-subsistence use areas. NMFS 
contacted tribal governments and Alaska Native corporations which may 
be affected by the action, provided them with a copy of the proposed 
rule, and offered them an opportunity to consult. One request for a 
tribal consultation was received. NMFS staff spoke via telephone with 
members of the tribal organization and their associates to listen to 
and address their specific questions and their specific needs. Many of 
their specific questions also were raised in comments received during 
the public comment period and are responded to in the Response to 
Comments section of this final rule, except for two comments listed 
below. NMFS staff clarified points in the proposed regulations, 
described the role of the Alaska Native Subsistence Halibut Working 
Group, and provided contact information for the working group.
    Two comments raised during the tribal consultation were not 
included in the Response to Comments section. The first comment is that 
the specific items allowed for reimbursement do not encompass all costs 
associated with harvest and trade of subsistence halibut and that only 
enforcement concerns were considered. NMFS notes that not all costs 
were expected to be encompassed in the amount that could be reimbursed. 
As stated in the RIR:

    Examples of costs that would not be allowed to be compensated 
are the cost of the boat, repairs, or hydraulic gear that would be

[[Page 54939]]

used for a duration longer than the fishing trip that produced the 
halibut that is being shared. Enforcement staff advised the Council 
that this approach still would be extremely difficult to enforce. 
Enforcement may occur through investigations, whereby receipts could 
be examined to verify expenses. Staff reported that, while this 
preferred alternative does not facilitate enforcement directly, it 
facilitates public understanding of Council intent and may enhance 
enforcement of egregious violations.

    The Council determined that its preferred alternative best 
recognized the social, cultural, educational, and communal benefits 
that derive from sharing halibut, while providing additional tools for 
enforcing the prohibition on commercial sale of subsistence halibut. 
Therefore, the Council rejected the most readily enforceable 
alternative, which would have prohibited any cash exchange, in favor of 
the preferred alternative based on the extensive administrative record.
    The second comment is that the 30 hooks per vessel limit is a 
hardship and should be increased to the 30 hooks per person and 90 
hooks per vessel limit allowed in other areas; the limit of 20 fish per 
vessel per day should be a sufficient limit. This change was initiated 
in specific regulatory areas for the halibut fishery because of 
increased fishing effort due to higher population density. NMFS 
suggests that if a tribal organization wants its local area within the 
larger halibut regulatory area to be exempt from this limit, the idea 
could be further developed by the tribal organization. The tribal 
organization could then bring the idea to the attention of the Alaska 
Native Subsistence Halibut Working Group.

List of Subjects

15 CFR Part 902

    Recordkeeping and reporting requirements.

50 CFR Part 300

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

    Dated: September 18, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 15 CFR chapter IX 
and 50 CFR chapter III as follows:

TITLE 15--COMMERCE AND FOREIGN TRADE

CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
OF COMMERCE

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority: 44 U.S.C. 3501 et seq.

0
2. In Sec.  902.1, in the table in paragraph (b), under the entry ``50 
CFR'', add entries for ``300.65 introductory text; (h)(1)(ii) and 
(iii); and (i)'', ``300.65(h)(1)(i)'', and ``300.65(j), (k), and (l)'' 
in alphanumeric order to read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *
    3. Table 2a to part 679 is revised to read as follows:

------------------------------------------------------------------------
                                                  Current OMB control
  CFR part or section where the information    number (all numbers begin
      collection requirement is located               with 0648-)
------------------------------------------------------------------------
* * * * * * *                                  .........................
------------------------------------------------------------------------
50 CFR                                         .........................
------------------------------------------------------------------------
* * * * * * *                                  .........................
------------------------------------------------------------------------
300.65 introductory text; (h)(1)(ii) and       -0460
 (iii); and (i)
------------------------------------------------------------------------
300.65(h)(1)(i)                                -0460 and -0512
------------------------------------------------------------------------
300.65(j), (k), and (l)                        -0512
------------------------------------------------------------------------
* * * * * * *                                  .........................
------------------------------------------------------------------------

TITLE 50--Wildlife and Fisheries

CHAPTER III--INTERNATIONAL FISHING AND RELATED ACTIVITIES

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart E--Pacific Halibut Fisheries

0
3. The authority citation for subpart E of part 300 continues to read 
as follows:

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

0
4. In Sec.  300.61, add definitions of ``Chiniak Bay'' and ``Power 
hauling'' in alphabetical order and revise the definition of ``Charter 
vessel'' to read as follows:


Sec.  300.61  Definitions.

* * * * *
    Charter vessel, for purposes of Sec.  300.65, means a vessel that 
is registered, or that should be registered, as a sport fishing guide 
vessel with the Alaska Department of Fish and Game.
    Chiniak Bay means all waters bounded by the shoreline and straight 
lines connecting the coordinates in the order listed:
    (1) North from Cape Chiniak (57[deg]37.22' N. lat., 152[deg]9.36' 
W. long.);
    (2) To Buoy 1 at Williams Reef (57[deg]50.36' N. lat., 
152[deg]8.82' W. long.);
    (3) To East Cape on Spruce Island (57[deg]54.89' N. lat., 
152[deg]19.45' W. long.);
    (4) To Termination Point on Kodiak Island (57[deg]51.31' N. lat., 
152[deg]24.01' W. long.); and
    (5) Connecting to a line running counterclockwise along the 
shoreline of Kodiak Island to Cape Chiniak (57[deg]37.22' N. lat., 
152[deg]9.36' W. long.).
* * * * *
    Power hauling means using electrically, hydraulically, or 
mechanically powered devices or attachments or other assisting devises 
or attachments to deploy and retrieve fishing gear. Power hauling does 
not include the use of hand power, a hand powered crank, a fishing rod, 
a downrigger, or a hand troll gurdy.
* * * * *

0
5. In Sec.  300.65:
    A. Revise paragraphs (e)(1)(ii) introductory text, (h)(1)(i), 
(h)(2), (j) introductory text, (j)(1)(ii), (j)(1)(iii), (j)(3)(i) 
introductory text, (j)(3)(i)(A), (j)(3)(i)(B), (k)(3)(i), and 
(k)(3)(ii).
    B. Add paragraph (e)(5).
    C. In paragraph (g)(1) in the table entitled ``Halibut Regulatory 
Area 2C'' an entry for ``Naukati'' is added in alphabetical order.
    The additions and revisions read as follows:


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

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

[[Page 54940]]



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

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

------------------------------------------------------------------------
    Regulatory Area            Permit Type           Retention Limits
------------------------------------------------------------------------
2C--Except Sitka Sound,  SHARC                    30 hooks per vessel
 and Ketchikan and
 Juneau non-subsistence
 marine waters areas
                        ------------------------------------------------
                         Ceremonial Permit        30 hooks per vessel
                        ------------------------------------------------
                         Educational Permit       30 hooks per vessel
                        ------------------------------------------------
                         Community Harvest        30 hooks per person
                          Permit                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
2C--Sitka Sound          SHARC                    September 1 through
                                                   May 31: 30 hooks per
                                                   vessel
                                                 -----------------------
                         .......................  June 1 through August
                                                   31: 15 hooks per
                                                   vessel; no power
                                                   hauling
                        ------------------------------------------------
                         Ceremonial Permit        September 1 through
                                                   May 31: 30 hooks per
                                                   vessel
                                                 -----------------------
                         .......................  June 1 through August
                                                   31: fishing under
                                                   Ceremonial Permit not
                                                   allowed
                        ------------------------------------------------
                         Educational Permit       30 hooks per vessel
                        ------------------------------------------------
                         Community Harvest        fishing under
                          Permit                   Community Harvest
                                                   Permit not allowed
------------------------------------------------------------------------
2C--Ketchikan and        SHARC                    general subsistence
 Juneau non-subsistence                            halibut fishing not
 marine waters areas                               allowed
                        ------------------------------------------------
                         Ceremonial Permit        30 hooks per vessel
                        ------------------------------------------------
                         Educational Permit       30 hooks per vessel
                        ------------------------------------------------
                         Community Harvest        fishing under
                          Permit                   Community Harvest
                                                   Permit not allowed
------------------------------------------------------------------------
3A--Except Chiniak Bay,  SHARC                    30 hooks per person
 and Anchorage-Matsu-                              onboard up to 90
 Kenai and Valdez non-                             hooks per vessel
 subsistence marine
 waters areas
                        ------------------------------------------------
                         Ceremonial Permit        30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                        ------------------------------------------------
                         Educational Permit       30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                        ------------------------------------------------
                         Community Harvest        30 hooks per person
                          Permit                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
3A--Chiniak Bay          SHARC                    30 hooks per person
                                                   onboard up to 60
                                                   hooks per vessel
                        ------------------------------------------------
                         Ceremonial Permit        30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                        ------------------------------------------------
                         Educational Permit       30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                        ------------------------------------------------
                         Community Harvest        30 hooks per person
                          Permit                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
3A--Anchorage-Matsu-     SHARC                    general subsistence
 Kenai and Valdez non-                             halibut fishing not
 subsistence marine                                allowed
 waters areas
                        ------------------------------------------------

[[Page 54941]]

 
                         Ceremonial Permit        30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                        ------------------------------------------------
                         Educational Permit       30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
                        ------------------------------------------------
                         Community Harvest        fishing under
                          Permit                   Community Harvest
                                                   Permit not allowed
------------------------------------------------------------------------
3B                       SHARC                    30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
4A and 4B                SHARC                    30 hooks per person
                                                   onboard up to 90
                                                   hooks per vessel
------------------------------------------------------------------------
4C, 4D, and 4E           SHARC                    no hook limit
------------------------------------------------------------------------

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

------------------------------------------------------------------------
    Regulatory Area            Permit Type           Gear Restrictions
------------------------------------------------------------------------
2C--Except Sitka Sound,  SHARC                    20 halibut per day per
 and Ketchikan and                                 vessel and in
 Juneau non-subsistence                            possession
 marine waters areas
                        ------------------------------------------------
                         Ceremonial Permit        25 halibut per permit
                        ------------------------------------------------
                         Educational