Pacific Halibut Fisheries; Subsistence Fishing, 39269-39282 [E9-18841]
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(3) Whether the population of
mountain whitefish in the Big Lost
River is a separate species or subspecies.
(4) Whether the population of
mountain whitefish in the Big Lost
River is discrete, as defined in the DPS
policy, including, but not limited to,
information indicating that the
mountain whitefish population in the
Big Lost River is markedly separated
from other populations of mountain
whitefish due to physical, physiological,
ecological, or behavioral factors.
(5) Whether the population of
mountain whitefish in the Big Lost
River is significant to the remainder of
the taxon to which it belongs (i.e., to the
remainder of the species of mountain
whitefish throughout its range), as
defined in the DPS Policy, including,
but not limited to:
(a) Information indicating the
ecological setting, including such
factors as temperature, moisture,
weather patterns, etc., in which the Big
Lost River population of mountain
whitefish persists, is unusual or unique
for the taxon;
(b) Information indicating that the
loss of the population of mountain
whitefish in the Big Lost River would or
would not result in a significant gap in
the range of the taxon; or
(c) Information indicating that the Big
Lost River population of mountain
whitefish differs markedly in its genetic
characteristics from other populations of
mountain whitefish in the United
States.
(6) If the population of mountain
whitefish in the Big Lost River is not a
species or subspecies, whether that
population constitutes a significant
portion of the range of the species or
subspecies to which it belongs.
(7) The effects of potential threat
factors that are the basis for making a
listing determination under section 4(a)
of the Act, which are:
(a) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(c) Disease or predation;
(d) The inadequacy of existing
regulatory mechanisms; or
(e) Other natural or manmade factors
affecting its continued existence.
If we determine that listing the
population of mountain whitefish in the
Big Lost River is warranted, it is our
intent to propose critical habitat to the
maximum extent prudent and
determinable at the time we propose to
list the species. Therefore, with regard
to areas within the geographical range
currently occupied by the species, we
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also request data and information on
what may constitute physical or
biological features essential to the
conservation of the species, where these
features are currently found, and
whether any of these features may
require special management
considerations or protection. In
addition, we request data and
information regarding whether there are
areas outside the geographical area
occupied by the species that are
essential to the conservation of the
species. Please provide specific
comments and information as to what,
if any, critical habitat you think we
should propose for designation if
mountain whitefish in the Big Lost
River are proposed for listing, and why
such habitat meets the requirements of
the Act.
Please note that submissions merely
stating support or opposition to the
action under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is a threatened or endangered
species must be made ‘‘solely on the
basis of the best scientific and
commercial data available.’’ At the
conclusion of the status review, we will
determine whether listing is warranted,
not warranted, or warranted but
precluded by other pending proposals.
You may submit your information by
one of the methods listed in the
ADDRESSES section. If you submit
information via https://
www.regulations.gov, your entire
submission—including your personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee we will be able to do so. We
will post all hardcopy submissions on
https://www.regulations.gov. Please
include sufficient information with your
comments to allow us to verify any
scientific or commercial information
you include.
Information and materials we receive,
as well as supporting documentation
used, will be available for public
inspection on https://
www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Idaho Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
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Authors
The primary authors of this notice are
the staff members of the Idaho Fish and
Wildlife Office.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: July 24, 2009
James J. Slack,
Acting Deputy Director, Fish and Wildlife
Service.
[FR Doc. E9–18802 Filed 8–5–09; 8:45 am]
BILLING CODE 4310-55-S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 0812191631–91125–02]
RIN 0648–AX53
Pacific Halibut Fisheries; Subsistence
Fishing
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
SUMMARY: NMFS proposes regulations to
revise the criteria for rural residents to
participate in the subsistence fishery for
Pacific halibut in waters in and off
Alaska. Currently, certain rural
residents who reside in locations
outside the legal boundaries of specified
communities are prohibited by
regulations from participating in the
subsistence halibut fishery. This action
is necessary to allow subsistence halibut
fishing opportunities for these rural
residents. This action is intended to
allow inadvertently excluded rural
residents to participate in the
subsistence halibut fishery and to
support the conservation and
management provisions of the Northern
Pacific Halibut Act of 1982.
DATES: Comments must be received no
later than September 8, 2009.
ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. You may submit
comments, identified by ‘‘RIN 0648–
AX53’’ by any one of the following
methods:
• Electronic Submissions: Submit all
electronic public comments via the
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Federal eRulemaking Portal website at
https://www.regulations.gov.
• Mail: P. O. Box 21668, Juneau, AK
99802.
• Fax: 907–586–7557.
• Hand delivery to the Federal
Building: 709 West 9th Street, Room
420A, Juneau, Alaska.
All comments received are a part of
the public record and generally will be
posted to https://www.regulations.gov
without change. All Personal Identifying
Information (e.g., name, address)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
portable document file (pdf) formats
only.
Electronic copies of the Regulatory
Impact Review (RIR) prepared for this
action, and the environmental
assessment (EA) prepared for the
original subsistence halibut action (68
FR 18145; April 15, 2003) may be
obtained from https://
www.regulations.gov or from the Alaska
Region website at https://
www.alaskafisheries.noaa.gov.
Written comments regarding the
burden hour estimates or other aspects
of the collection of information
requirements contained in this proposed
rule may be submitted to NMFS at the
above address and by e mail to
DavidlRostker@omb.eop.gov, or fax to
202 395 7285.
FOR FURTHER INFORMATION CONTACT:
Becky Carls, 907–586–7228.
SUPPLEMENTARY INFORMATION:
Background
Management of the Pacific halibut
(Hippoglossus stenolepis) (hereafter
halibut) fishery in and off Alaska is
based on an international agreement
between Canada and the United States.
This agreement, entitled the
AConvention between the United States
of America and Canada for the
Preservation of the Halibut Fishery of
the Northern Pacific Ocean and Bering
Sea@ (Convention), was signed at
Ottawa, Canada, on March 2, 1953, and
amended by the AProtocol Amending
the Convention,@ signed at Washington,
D.C., March 29, 1979. The Convention,
administered by the International
Pacific Halibut Commission (IPHC), is
given effect in the United States by the
Northern Pacific Halibut Act of 1982
(Halibut Act).
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The IPHC promulgates regulations
pursuant to the Convention. The IPHC=s
regulations are subject to approval by
the Secretary of State with concurrence
from the Secretary of Commerce
(Secretary). After approval by the
Secretary of State and the Secretary, the
IPHC regulations are published in the
Federal Register as annual management
measures pursuant to 50 CFR 300.62.
NMFS published the IPHC=s current
annual management measures on March
19, 2009 (74 FR 11681).
The Halibut Act also authorizes the
North Pacific Fishery Management
Council (Council) to develop halibut
fishery regulations, including limited
access regulations, in its geographic area
of concern that would apply to nationals
or vessels of the United States (Halibut
Act, section 773(c)). Such an action by
the Council is limited to only those
regulations that are in addition to, and
not in conflict with, IPHC regulations.
Council-developed regulations must be
approved and implemented by the
Secretary. Any allocation of halibut
fishing privileges must be fair and
equitable and consistent with other
applicable Federal law. The Council
used its authority under the Halibut Act
to recommend a subsistence halibut
program in October 2000 to recognize
and manage the subsistence fishery for
halibut. Like the original subsistence
halibut program and subsequent
amendments to it, this action was
developed by the Council under the
authority of the Halibut Act.
The Halibut Act at sections 773c (a)
and (b) provides the Secretary with the
general responsibility to carry out the
Convention with the authority to, in
consultation with the Secretary of the
department in which the U.S. Coast
Guard is operating (currently the
Secretary of Homeland Security), adopt
such regulations as may be necessary to
carry out the purposes and objectives of
the Convention and the Halibut Act.
The Secretary has delegated authority to
NMFS to implement the Halibut Act.
Need for Action
The subsistence halibut regulations
authorize eligible persons to conduct
subsistence halibut fishing in waters in
and off Alaska. Currently, a person is
eligible to harvest subsistence halibut if
he or she is a rural resident of a
community with customary and
traditional uses of halibut that is listed
in the tables at § 300.65(g)(1) (hereafter
‘‘listed community’’), or a member of an
Alaska Native tribe with customary and
traditional uses of halibut that is listed
in the tables at § 300.65(g)(2). Persons
eligible to fish must possess a
subsistence halibut registration
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certificate (SHARC) to exercise the
privilege.
The definition of the term ‘‘rural
resident’’ is the primary issue in this
proposed action. For purposes of the
subsistence halibut program, a rural
resident currently is defined as a person
domiciled in a listed community, who
has maintained a domicile in a listed
rural community for the 12 consecutive
months immediately preceding the time
when the assertion of residence is made,
and who is not claiming residency in
another state, territory, or country. A
minimum threshold of 25 residents was
used when the list of eligible rural
places originally was developed by the
Council and approved by the Secretary.
The list of rural communities was
developed by the Council based on
customary and traditional findings for
halibut and bottomfish made by the
State of Alaska Board of Fisheries
(Board). Therefore, the process for
including additional communities in the
subsistence halibut program has been
for an interested party to first send a
written request to the Board that then
may recommend inclusion of additional
communities in the subsistence halibut
program.
The current regulations have
inadvertent, adverse impacts on some
rural residents; individuals who reside
outside the boundaries of designated
communities do not qualify for a
SHARC. The boundaries of many rural
Alaska communities are not adjacent to
the boundaries of other communities
due to Alaska’s large size and relatively
sparse population. Areas between
incorporated communities are
unincorporated areas. Individuals who
reside in these extremely remote
locations between listed communities
likely have the same if not greater
customary and traditional use of halibut
as currently eligible participants, and
otherwise may be deemed eligible to
participate in the subsistence halibut
program except for the location of their
residence outside the boundaries of a
listed community. Initially, SHARCs
were issued to individuals who resided
close to listed communities. Beginning
in 2007, SHARCs have been denied to
individuals who previously received
them because these individuals reside
outside the legal boundaries of listed
communities. SHARCs were either
returned voluntarily or were not
renewed by NMFS.
Description of the Proposed Action
The Council used a community-based
approach to determine rural eligibility
in its original subsistence halibut action
as cited in the proposed rule published
August 26, 2002 (67 FR 54767). In June
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2008, the Council revised its policy
based on information that numerous
individuals and their families have been
disadvantaged under the current
regulations. The Council recommended
a wider geographic scope for rural
resident eligibility to include
individuals who reside in remote
homesteads outside the boundaries of
listed communities. The Council
determined that those individuals or
families in remote locations within the
subsistence halibut use areas of Alaska
practice the same patterns of use as
residents of nearby listed communities
that have customary and traditional
uses, and, therefore, should be eligible
to participate in subsistence fishing for
halibut.
The Council’s original intent for the
subsistence halibut program was to
allow persons who had customarily and
traditionally used halibut for food in the
past to continue in that practice. This
action would amend the regulations to
conform the subsistence halibut
program regulations to the Council=s
original intent for the program. If the
proposed action is implemented,
additional rural residents of Alaska
south of Cape Espenberg who reside
within a designated ten-statute-mile
boundary adjacent to the waters of the
Bering Sea and Pacific Ocean or in other
designated places, and who do not
reside in specified non-rural areas,
would be eligible to subsistence fish for
halibut. This action would include in
the subsistence halibut program certain
individuals who live a subsistence
lifestyle and who rely on halibut as a
customary and traditional source of food
for themselves and their families, but
who do not reside in a listed
community. This action would provide
them with the subsistence halibut
fishing opportunities contemplated in
the original subsistence halibut
program.
The proposed change in the criteria
for rural eligibility does not include
residents living in non-rural areas and
does not apply to Alaska Native tribal
members. To include non-rural
residents would expand subsistence
eligibility beyond the Council’s original
intent. Members of Alaska Native tribes
listed at § 300.65(g)(2) are eligible for
SHARCs regardless of the location of
their residences. Therefore, the
discussion of rural versus non-rural
eligibility in the preamble of this
proposed action does not apply to
Alaska Native tribal members. Members
of Alaska Native tribes would not be
directly affected by this action.
When the Council considered the
areas to include as rural areas for
purposes of the subsistence halibut
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program, it consulted with State of
Alaska Department of Fish and Game
Subsistence Division experts regarding
customary and traditional use of the
halibut resource. Cape Espenberg was
chosen as the northern limit of the rural
area because it is the most prominent
point of land north of the northern most
listed community of Shishmaref,
Alaska. The ten-statute-mile limit was
selected to define a band of land that
included listed communities so that
people living between listed
communities would become eligible
under this action. The land areas
adjacent to the current non-subsistence
marine waters areas are proposed to be
included as non-subsistence areas.
Approximately 600 additional rural
residents could be expected to receive
SHARCs according to estimates in the
RIR prepared for this action (see
ADDRESSES). Most of these rural
residents reside in the Kodiak Island
Borough. Some of these rural residents
previously had received a SHARC but
were later found to be ineligible based
on a closer examination of the
regulatory language. These rural
residents may have fed their families
with halibut harvested under sport
fishing regulations or by purchasing
other protein sources from commercial
entities. Up to 9,400 residents may
benefit from this action through the
customary and traditional practices of
sharing food. Currently, the affected
rural residents may harvest halibut with
a sport fishing license, but the sport
daily bag limits are smaller than are
allowed under subsistence halibut
regulations. This action would reduce
the cost of acquiring halibut for
subsistence purposes, reduce associated
fishing time and effort, and provide
comparable opportunity to harvest this
subsistence resource for the affected
rural residents to that enjoyed by
residents of listed communities.
The amount of halibut that is
projected to be harvested under this
action is small compared to the harvest
in the commercial and sport fisheries.
The subsistence halibut harvest was
estimated to be 1.4 percent, or 1,032,293
lb, of the total halibut removals of
74,389,000 lb in 2007, the most recent
year for which subsistence harvest
information is available. This action is
expected to increase the subsistence
halibut harvest by 105,000 lb, or about
10 percent of the current subsistence
halibut harvest. However, without this
action, some of this expected increase in
the subsistence halibut harvest would
be harvested as part of the sport fishery
for halibut.
Under the proposed regulations, rural
residents would be considered eligible
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to participate in the subsistence halibut
program if they met the criteria for rural
residency under one of two options.
First, a person would continue to be
considered a rural resident if he or she
were domiciled in a community
specified at § 300.65(g)(1). Second,
under the new definition for a rural
area, a person would be considered a
rural resident if he or she were
domiciled in one of the following rural
areas of Alaska that would be listed at
§ 300.65(g)(3):
• Southeast Alaska east of 141° W.
long., except for the land areas of the
Ketchikan Gateway Borough as these
areas are described below, the land
areas of the City and Borough of Juneau,
and the Ketchikan and Juneau nonsubsistence marine waters areas (see
Figures 2 and 3);
• The Alaska Peninsula, Aleutian
Islands, Kodiak Island Archipelago, and
the area south of the northern boundary
of the Bristol Bay Borough and south of
58° 39.2′ N. lat. (see Figures 5, 6, and
7);
• Nelson, Nunivak, and Saint
Lawrence Islands (see Figure 6); and
• All other areas of Alaska within ten
statute miles of mean high water on the
Bering Sea and Pacific Ocean coasts,
south of Cape Espenberg, including
along the Kuskokwim River to Bethel,
and that are not specified as non-rural
areas and that are not specified as the
Anchorage-Matsu-Kenai or Valdez nonsubsistence marine waters areas (see
Figures 4, 5, 6, and 7).
The area along the Kuskokwim River
to Bethel was not specified in the
Council’s action, but was specifically
included on the maps delineating rural
areas in the RIR (see ADDRESSES) used by
the Council when it took action. This
rural area along the Kuskokwim River is
beyond ten statute miles from the
marine coastline of the Bering Sea and
would leave a gap between the rural
community of Bethel and Kuskokwim
Bay. The State of Alaska has determined
that the rural residents of this area
historically participated in the
customary and traditional harvest of
subsistence halibut. Therefore NMFS is
proposing this modification to the
Council’s preferred alternative.
Additionally, the Council adopted
language specifying the area ‘‘south of
the Bristol Bay Borough’’ but this is
vague. The maps used by the Council to
describe the boundaries in this area
clearly show that the entire Bristol Bay
Borough is to be included, so the
proposed regulations clarify that the
area south of the northern boundary of
the Bristol Bay Borough is included as
a rural area.
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An applicant for a rural SHARC
would be required to maintain a
domicile in a rural area of Alaska for the
12 consecutive months immediately
preceding the time when the assertion
of residence is made, and not claim
residency in another state, territory, or
country. The definitions for ‘‘rural’’ and
‘‘rural resident’’ listed at § 300.61 would
be revised to include the residents of
these newly described rural areas.
Other alternatives for expanding the
areas defined as rural were considered
but rejected. The addition of small
communities to the list of eligible places
would have continued to exclude
individuals who reside outside the
boundaries of listed communities and
likely would have resulted in continued
petitions to add to the list of places with
customary and traditional use of
halibut. Another alternative that was
considered, and on which the Council’s
preferred alternative was based, was less
specific in its descriptions of included
areas.
The proposed action would require
specification of non-rural areas. A
resident of a non-rural area does not
qualify for a SHARC. Currently, rural
residents must reside within
communities specified in regulations at
§ 300.65(g)(1) to be considered eligible
for SHARCs. As a result, specifying the
boundaries of non-rural areas has been
unnecessary. However, expansion of the
rural resident definition as proposed
would require definitive specification of
non-rural areas as exceptions to the
proposed rural areas. In general, the
non-rural areas would be those land
areas adjacent to the current nonsubsistence marine waters areas and
would include the non-subsistence
marine waters areas. The Council
recommended that the boundaries for
the non-rural areas match the
boundaries for ‘‘non-subsistence use
areas’’ established by the State of Alaska
Joint Board of Fisheries and Game. This
recommendation was made because
these boundaries were determined by
the State of Alaska based on the role of
subsistence uses in the economy and
not on population size. Also, the marine
boundaries of these areas were used to
set the boundaries of the current nonsubsistence marine waters areas. The
descriptions of the boundaries that are
used by the State of Alaska (5AAC
99.015) were analyzed to determine the
geographic coordinates that precisely
define those boundaries. For the Juneau
non-rural area alone, this resulted
initially in a table of 3,000 geographic
coordinates. By ignoring some minor
turns of the boundary, this could be
simplified to hundreds of geographic
coordinates for one non-rural area.
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NMFS determined that a long, multipage table for each non-rural area would
not be practical for public use or for
NMFS staff who must determine
whether an applicant for a SHARC is
domiciled in a specified rural area.
Therefore, NMFS proposes in this
action to use the legal boundaries for
cities and boroughs adjacent to the nonsubsistence marine waters areas,
excluding the southern tip of the Kenai
Peninsula (see Figure 5), to describe the
non-rural land areas. The current nonsubsistence marine waters areas would
be retained because they do not always
match the marine boundaries of the
non-rural cities and boroughs and they
purposely were chosen to match the
‘‘non-subsistence use area’’ boundaries
used by the State of Alaska. The land
areas of the following cities and
boroughs would be non-rural areas for
the purposes of the subsistence halibut
fishery: the Ketchikan Gateway Borough
as those boundaries existed on May 18,
2008; the City and Borough of Juneau;
the Greater Anchorage Area Borough;
the Matanuska-Susitna Borough; the
Kenai Peninsula Borough, excluding the
southern tip of the Kenai Peninsula that
includes the Seldovia Census
Designated Place; and the City of
Valdez. For comparison, the maps that
show the areas the Council designated
as non-subsistence areas are included in
the RIR for this action (see ADDRESSES).
The land area in the Ketchikan
Gateway Borough that would be
designated as non-rural would fall
within the boundaries of the borough
prior to its annexation of 4,510 square
miles (11,681 square kilometers) on May
19, 2008. These older boundaries would
be described at § 300.65(g)(4)(i) and
closely match the boundaries adopted in
the Council action on June 4, 2008.
Also, these boundaries closely match
the Ketchikan Nonsubsistence Area
established by the State of Alaska. The
current boundaries of the Ketchikan
Gateway Borough encompass a much
larger area than that recommended by
the Council as the Ketchikan non-rural
area and, therefore, were rejected by
NMFS as the boundaries to describe the
Ketchikan non-rural area. The status of
the municipality of Saxman would be
unaffected by this action; Saxman
would remain a listed community under
this proposed rule.
The land area in the Kenai Peninsula
Borough that would be designated as
rural would include the Seldovia
Census Designated Place, the area south
and west of that place, and the area
south and west of a line that runs from
59° 27.5′ N lat., 151° 31.7′ W. long. to
59° 12.5′ N lat., 151° 18.5′ W. long., as
shown in Figure 5. This area of the
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Kenai Peninsula Borough was specified
as a rural area in the Council’s
recommendation and closely matches
the boundary established by the State of
Alaska for the ‘‘Anchorage-Matsu-Kenai
Nonsubsistence Area.’’
The land area enclosed by these city
and borough boundaries are close to the
Council’s recommendation; however,
more land area would be classified as
rural under this proposal than was
recommended by the Council. The
proposed non-rural boundaries would
not include any land area that was
classified as rural under the Council’s
action. In fact, the proposed boundaries
would classify as rural some land areas
outside city or borough boundaries that
would have been classified as non-rural
under the Council’s recommendation.
The proposed non-rural area boundaries
would be consistent with the current
regulations that limit eligible rural
residents to those who reside within the
boundaries of specified rural
communities. Finally, the proposed
descriptions of non-rural areas would
greatly simplify the regulations for
public and agency use rather than tables
of hundreds and potentially thousands
of geographic coordinates for complex
non-rural areas. NMFS anticipates that
applicants might know, or could readily
determine, whether their domiciles are
located inside or outside of non-rural
city or borough boundaries based on the
tax status of the properties. The nonsubsistence marine waters areas’
boundaries would remain unchanged,
except for correcting an error to the
southern boundary for Valdez that is
discussed below.
The current figures that display the
‘‘non-subsistence marine waters areas’’
described at § 300.65(h)(3) in which
subsistence fishing for halibut is
prohibited would be revised to include
the adjacent non-rural land areas. These
revised figures would show the rural
and non-rural areas of Southern
Southeast Alaska, including Ketchikan;
Northern Southeast Alaska, including
Juneau; Prince William Sound,
including Valdez; and AnchorageMatsu-Kenai. Two new figures would be
added to show the rural and non-rural
areas of the Alaska Peninsula and
Aleutian Islands and of Western and
Central Alaska. Because revised and
new figures are included with this
action, the references to figure numbers
would be revised under § 300.65 at
paragraphs (j)(3)(i)(B), (k)(3)(i)(A), and
(k)(3)(i)(B).
The southern boundary for the Valdez
non-subsistence marine waters area
would be corrected in the regulations at
§ 300.65(h)(3)(iv). The coordinates for
the boundaries used in the original
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subsistence halibut regulations (68 FR
18145; April 15, 2003) were believed to
match the boundary of the City of
Valdez. However, an error in converting
the legal description of the boundaries
of the City of Valdez into geographic
coordinates was discovered in preparing
the analysis for this action. Therefore,
this regulatory amendment would revise
the southern boundary from waters
north of 61° 02.24′ N. lat., to waters
north of 61° 01.38′ N. lat. This would
move the boundary farther south by
5,300 ft (1,620 m). The maps provided
to the Council and to the public for the
June 2008 meeting reflected this
revision.
The SHARC application would be
revised to incorporate the changes that
would be necessitated by this action.
Currently, one combined application is
used by rural residents and by Alaska
Native tribal members. To simplify the
application process for the public,
separate applications would be used by
rural residents and by Alaska Native
tribal members. Additionally, the
regulations at § 300.65(i)(2) would be
revised to simplify the application
requirements that are listed in the
regulations. The SHARC application
requirements for a rural resident would
include indicating the basis upon which
the applicant is eligible to harvest
subsistence halibut as a rural resident.
Additional requirements would include
listing a post office box number,
describing the physical location of the
domicile if there is no street address,
and adding Aor area@ to the
requirement to list the community that
qualifies the fisherman as eligible to fish
for subsistence halibut. The SHARC
application for an Alaska Native tribal
member would clearly state what is
needed for address or location
information and include listing the
community or area of residence, and
would no longer require the dates of
residence in a community because that
information is not necessary for an
Alaska Native tribal member.
The specific location of any SHARC
holder’s domicile would be provided on
the SHARC application due to
regulations related to cash
reimbursement for subsistence halibut
fishing expenses. Cash reimbursement
for subsistence halibut is restricted to
actual trip expenses for ice, bait, food,
and fuel directly related to the harvest
of subsistence halibut because it is
illegal for subsistence halibut to enter
the commercial market. Regulations at
§ 300.66(j)(1) and § 300.66(j)(2) limit the
reimbursement of a fisherman’s actual
expenses to residents of the same
community for people who are not
members of an Alaska Native tribe.
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Therefore, regulations at § 300.66(j)(1)
and § 300.66(j)(2) would be revised to
include: (A) references to the proposed
new qualification for a rural resident
that would be described at
§ 300.65(g)(3), and (B) a limit for
qualified persons who reside outside
listed rural communities, that the
fisherman’s actual expenses could be
reimbursed only by those rural residents
who reside within ten statute miles of
the rural location listed on the
fisherman§ s SHARC application. The
ten-statute-mile limit was selected by
NMFS to match the boundary that
would be described at § 300.65(g)(3)(iv)
and to maintain the intent of the
Council to limit the scope of
reimbursement to residents of a
localized area. NMFS is seeking public
comment regarding the size of this tenstatute-mile limit.
Additionally, the text at § 300.66(j)(2)
would be revised to specify that Alaska
Native tribal members may be
reimbursed for only actual expenses for
ice, bait, food and fuel. The words
‘‘actual expenses’’ were inadvertently
omitted from the regulatory text. This
revision would parallel the construction
that is used at § 300.66(j)(1) regarding
reimbursement of rural residents.
The SHARC application for a rural
resident would include the requirement
to provide the name, complete mailing
address, and phone number of an adult
age 18 years or older who can verify that
the residence listed by the applicant is
the applicant’s domicile and that it was
the applicant§ s domicile for 12 months
prior to the date of the application. The
verifying person may not be the
applicant’s wife, husband, parent, or
child and may not be living at the rural
residence listed by the applicant. This
requirement for a verifier would
enhance the ability of NMFS to discern
whether a SHARC applicant is truly
qualified as a rural resident eligible to
fish for subsistence halibut.
Other Regulatory Changes
Several other minor changes to the
regulations are proposed. First, a
definition for SHARC, which is the
documentation, issued by NMFS, of the
registration required to participate in
subsistence fishing, would be added to
the regulations at § 300.61 because that
term is used in the current and
proposed regulations but is not defined.
Second, the regulations at § 300.65(g)
would be revised to include a reference
to the new qualification for a rural
resident described at § 300.65(g)(3).
Third, a misspelling of Sheldon Point
(Nunam Iqua) would be corrected in the
regulations at § 300.65(g)(2) in the table
for the IPHC halibut regulatory area 4E.
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Fourth, the regulations at § 300.65(h)(3)
would no longer specify ‘‘non-rural
areas’’ but ‘‘non-subsistence marine
waters areas’’ instead, therefore,
regulations at § 300.65(h)(4) and
§ 300.66(g) would be revised to reflect
that change. Finally, the meaning of the
‘‘area of tribal membership’’ that is
defined at § 300.65(h)(4)(iii) would be
revised to specify that this means the
IPHC regulatory area under which an
organized tribal entity is listed at
§ 300.65(g)(2), or the area of the Bering
Sea that is closed to commercial halibut
fishing and adjacent to the rural area in
which the Alaska Native tribal
headquarters is located.
Classification
Regulations governing the U.S.
fisheries for Pacific halibut are
developed by the IPHC, the Pacific
Fishery Management Council, the
Council, and the Secretary. Section 5 of
the Halibut Act (16 U.S.C. 773c) allows
the Regional Council having authority
for a particular geographical area to
develop regulations governing the
allocation and catch of halibut in U.S.
Convention waters as long as those
regulations do not conflict with IPHC
regulations. The proposed action is
consistent with the Council’s authority
and the Secretary’s authority to allocate
halibut catches among fishery
participants in the waters in and off
Alaska.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
This proposed rule also complies with
the Secretary’s authority under the
Halibut Act to implement management
measures for the halibut fishery.
The Chief Council for Regulation of
the Department of Commerce certified
to the Chief Council for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
Basis and Purpose of Rule
The United States and Canada
participate in the International Pacific
Halibut Commission (IPHC) and
promulgate regulations governing the
Pacific halibut (hereafter halibut) fishery
under the authority of the Northern
Pacific Halibut Act of 1982 (Halibut
Act). The North Pacific Fishery
Management Council (Council) may
develop regulations governing the
allocation and catch of halibut in its
area of concern that would apply to
nationals or vessels of the United States
and that are in agreement with IPHC
regulations. The Secretary of Commerce
must approve regulations recommended
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by the Council before implementation
by the National Marine Fisheries
Service (NMFS). The Council prepared
an environmental assessment/regulatory
impact review (EA/RIR) for subsistence
halibut fisheries in January 2003, and
NMFS published the final rule to
implement subsistence halibut
regulations in April 2003 (68 FR 18145).
These regulations include criteria, based
on community of residence, for rural
residents to qualify as participants in
the subsistence halibut fishery.
The criteria for rural residency that
were approved in 2003 would be
revised under the proposed rule in order
for more Alaskans with customary and
traditional use of halibut to participate
in the subsistence halibut fishery in
waters in and off Alaska. Beginning in
2007, based on a closer examination of
the regulatory language, subsistence
halibut registration certificates that
permit fishermen to subsistence fish for
halibut have been denied to individuals
who previously received them. These
rural residents were determined to be
ineligible because they reside outside
the legal boundaries of communities
specified in the regulations. Individuals
who reside in these extremely remote
locations likely have the same if not
greater customary and traditional use of
halibut as currently eligible
participants, and otherwise may be
deemed eligible to participate in the
subsistence halibut program except for
the location of their residence outside
the boundaries of a specified
community.
This action is necessary to allow
subsistence halibut fishing
opportunities for these affected rural
residents. Currently, the affected rural
residents may harvest halibut with a
sport fishing license, but the sport daily
bag limits may be smaller than would be
allowed under the subsistence halibut
fishery. The intended effect of this
action is to reduce the cost of acquiring
subsistence halibut, reduce associated
fishing time and effort, and provide
comparable opportunity to harvest this
subsistence resource for the affected
rural residents.
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Factual Basis for Certification
Description and Estimate of the Number
of Small Entities to Which the Rule
Applies
No small entities would be directly
regulated by the proposed rule. Small
entities are defined as small businesses,
small organizations, and small
governmental jurisdictions in Section
601(3)-(5) of the Regulatory Flexibility
Act (RFA) of 1980. This action would
apply uniquely to individual natural
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persons who are not considered small
entities within the meaning of the RFA.
All of the persons that would be
directly regulated by the action are
natural persons. The proposed
subsistence halibut regulation at 50 CFR
300.65(g)(3) would specify that ‘‘A
person is eligible to harvest subsistence
halibut if he or she is a resident in one
of the rural areas of Alaska described [in
this paragraph].’’ The regulations further
specify at § 300.61 that halibut caught
for subsistence purposes is defined as
halibut caught by a rural resident or a
member of an Alaska Native tribe for
direct personal or family consumption
as food, sharing for personal or family
consumption as food, or customary
trade. Additionally, the definition for
rural resident only specifies that an
individual, clearly indicating a natural
person, may qualify to be a rural
resident.
Description and Estimate of Economic
Impacts on Small Entities by Entity Size
and Industry
No small entities are directly
regulated by the proposed rule.
Therefore, there are no economic
impacts on directly regulated small
entities.
Criteria Used to Evaluate Whether the
Rule Would Impose Impacts on ‘‘A
Substantial Number’’ of Small Entities
The Small Business Administration
criteria for what constitutes a small
entity, described in Section 601(6) of the
RFA, and the definition of a business
concern that appears at 13 CFR 121.105
were used to determine that there are no
impacts on any small entities. Only
individual natural persons would be
directly regulated by this proposed rule
and such persons are not considered
small entities under Small Business
Administration guidelines.
Criteria Used to Evaluate Whether the
Rule Would Impose ‘‘Significant
Economic Impacts’’
Because no small entities are directly
regulated by the proposed rule, no
criteria were applied.
Description of, and an Explanation of
the Basis for, Assumptions Used
The finding that no small entities
would be directly regulated by this
action is based on the definition of
small entities in the RFA and
implementing regulations, and a
determination that only individual
natural persons, and not small entities,
would be directly regulated by the
proposed action.
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As a result, an initial regulatory
flexibility analysis is not required and
none has been prepared.
This proposed rule contains a
collection of information requirement
subject to the Paperwork Reduction Act
(PRA) and which has been approved by
OMB under control number 0648 0460.
Public reporting burden for the SHARC
applications for a rural resident or an
Alaska Native tribal member are each
estimated to average ten minutes per
response. This estimate includes the
time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the collection of information. Send
comments regarding this burden
estimate, or any other aspect of this data
collection, including suggestions for
reducing the burden, to NMFS (see
ADDRESSES) and by e mail to
DavidlRostker@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.
Executive Order 13175 of November
6, 2000 (25 U.S.C. 450 note), the
Executive Memorandum of April 29,
1994 (25 U.S.C. 450 note), and the
American Indian and Alaska Native
Policy of the U.S. Department of
Commerce (March 30, 1995) outline the
responsibilities of the National Marine
Fisheries Service in matters affecting
tribal interests. Section 161 of Public
Law 108–199 (188 Stat 452), as
amended by section 518 of Public Law
108–447 (118 Stat 3267), extends the
consultation requirements of Executive
Order 13175 to Alaska Native
corporations. Consultations occurred
with the Alaska Native Subsistence
Halibut Working Group in December
2008, pursuant to the requirements of
Executive Order 13175.
List of Subjects in 50 CFR Part 300
Alaska, Alaska Natives, Fisheries,
Pacific halibut fisheries, Recordkeeping
and reporting requirements.
Dated: July 31, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 300, subpart E is
proposed to be amended as follows:
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Federal Register / Vol. 74, No. 150 / Thursday, August 6, 2009 / Proposed Rules
PART 300—INTERNATIONAL
FISHERIES REGULATIONS
Subpart E—Pacific Halibut Fisheries
1. The authority citation for 50 CFR
part 300, subpart E continues to read as
follows:
Authority: 16 U.S.C. 773–773k.
2. In § 300.61 revise the definitions for
‘‘Rural’’ and ‘‘Rural resident’’ and add a
new definition for ‘‘Subsistence halibut
registration certificate (SHARC)’’ in
alphabetical order to read as follows:
§ 300.61
Definitions.
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*
*
*
*
*
Rural means, for purposes of the
subsistence fishery for Pacific halibut in
waters in and off Alaska, a community
of Alaska listed at § 300.65(g)(1) or an
area of Alaska described at
§ 300.65(g)(3) in which the noncommercial, customary, and traditional
use of fish and game for personal or
family consumption is a principal
characteristic of the economy or area
and in which there is a long-term,
customary, and traditional use of
halibut.
Rural resident means, for purposes of
the subsistence fishery for Pacific
halibut in waters in and off Alaska:(1)
An individual domiciled in a rural
community listed in the table at
§ 300.65(g)(1) and who has maintained a
domicile in rural communities listed in
the table at § 300.65(g)(1), or in rural
areas described at § 300.65(g)(3), for the
12 consecutive months immediately
preceding the time when the assertion
of residence is made, and who is not
claiming residency in another state,
territory, or country; or
(2) An individual domiciled in a rural
area described at § 300.65(g)(3) and who
has maintained a domicile in rural areas
described at § 300.65(g)(3), or in rural
communities listed in the table at
§ 300.65(g)(1), for the 12 consecutive
months immediately preceding the time
when the assertion of residence is made,
and who is not claiming residency in
another state, territory, or country.
*
*
*
*
*
Subsistence halibut registration
certificate (SHARC) means
documentation, issued by NMFS, of the
registration required at § 300.65(i).
*
*
*
*
*
3. In § 300.65:
A. Revise paragraphs (g) introductory
text, (h)(3) introductory text, (h)(3)(iii)
introductory text, (h)(3)(iv), (h)(4)
introductory text, (h)(4)(iii), (i)(2),
(j)(3)(i)(B), (k)(3)(i)(A) introductory text,
and (k)(3)(i)(B).
B. In paragraph (g)(2), in the table
entitled ‘‘Halibut Regulatory Area 4E’’,
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revise the entry for ‘‘Sheldon Point
(Nuna Iqua)’’.
C. Add new paragraphs (g)(3) and
(g)(4).
The additions and revisions read as
follows:
39275
the land areas of the following cities and
boroughs for purposes of the subsistence
fishery for Pacific halibut in waters in
and off Alaska:
(i) The Ketchikan Gateway Borough
on May 18, 2008. This area encompasses
all those islands bounded on the east,
§ 300.65 Catch sharing plan and domestic
north, and west by Behm Canal, Behm
management measures in waters in and off
Narrow, and Clarence Strait to its
Alaska.
junction with Nichols Passage, and on
*
*
*
*
*
the south by Nichols and Revillagigedo
(g) Subsistence fishing in and off
Channel to its junction with Behm
Alaska. No person shall engage in
Canal. The designated boundaries
subsistence fishing for halibut unless
extend to the center line of Behm Canal,
that person meets the requirements in
Behm Narrows, Clarence Strait, Nichols
paragraphs (g)(1), (g)(2), or (g)(3) of this
Passage, and Revillagigedo Channel, and
section.
include all the area of Revillagigedo,
*
*
*
*
*
Gravina, Pennock, Betton, Grant and
(2) * * *
other Clover Passage and Naha Bay
Islands, Hassler, Gedney, Black,
HALIBUT REGULATORY AREA 4E
Smeaton, Manzanita, Rudyerd, and Bold
Islands, and all other offshore and
Place with Tribal
adjacent islands and inlets thereto (see
Organized Tribal Entity
Headquarters
figure 2 to this subpart E).
(ii) The City and Borough of Juneau
*
*
*
*
*
(see figure 3 to this subpart E).
(iii) The Greater Anchorage Area
Sheldon Point
Borough (see figures 4 and 5 to this
(Nunam Iqua)
Native Village of subpart E).
Sheldon’s Point
(iv) The Matanuska-Susitna Borough
*
*
*
*
*
(see figure 5 to this subpart E).
(v) The Kenai Peninsula Borough
excluding the area of the Seldovia
Census Designated Place, the area south
(3) A person is eligible to harvest
subsistence halibut if he or she is a rural and west of that place, and the area
south and west of a line that runs from
resident in one of the rural areas of
59 27.5′ N. lat., 151° 31.7′ W. long. to
Alaska described as follows:
59° 12.5′ N. lat., 151° 18.5′ W. long (see
(i) Southeast Alaska east of 141 W.
figure 5 to this subpart E).
long., except for the land areas of the
(vi) The City of Valdez (see figures 4
Ketchikan Gateway Borough as
and 5 to this subpart E).
described at (g)(4)(i) of this section, the
(h) * * *
land areas of the City and Borough of
(3) Subsistence fishing may be
Juneau, and the Ketchikan and Juneau
conducted in any waters in and off
non-subsistence marine waters areas as
Alaska except in the four nondefined in paragraphs (h)(3)(i) and
subsistence marine waters areas defined
(h)(3)(ii) of this section (see figures 2
as follows:
and 3 to this subpart E).
*
*
*
*
*
(ii) The Alaska Peninsula, Aleutian
(iii) The Anchorage-Matsu-Kenai nonIslands, Kodiak Island Archipelago, and
the area south of the northern boundary subsistence marine waters area in
Commission Regulatory Area 3A (see
of the Bristol Bay Borough and south of
figures 4, 5, 6, and 7 to this subpart E)
58° 39.2′ N. lat. (see figures 5, 6, and 7
is defined as:
to this subpart E).
(iii) Nelson, Nunivak, and Saint
*
*
*
*
*
Lawrence Islands (see figure 6 to this
(iv) Valdez non subsistence marine
subpart E).
waters area in Commission regulatory
(iv) All other areas of Alaska within
area 3A (see figures 4 and 5 to this
ten statute miles of mean high water on
subpart E) is defined as the waters of
the Bering Sea and Pacific Ocean coasts, Port Valdez and Valdez Arm located
south of Cape Espenberg, including
north of 61° 01.38′ N. lat., and east of
along the Kuskokwim River to Bethel,
146° 43.80′ W. long.
and that are not specified as non-rural
(4) Waters in and off Alaska that are
land or water areas as defined in
not specifically identified as nonparagraph (g)(4) of this section (see
subsistence marine waters areas in
figures 4, 5, 6, and 7 to this subpart E).
paragraph (h)(3) of this section are rural
(4) Non-rural areas consist of the non- for purposes of subsistence fishing for
subsistence marine waters areas defined halibut. Subsistence fishing may be
in paragraph (h)(3) of this section and
conducted in any rural area by any
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person with a valid subsistence halibut
registration certificate in his or her
name issued by NMFS under paragraph
(i) of this section, except that:
*
*
*
*
*
(iii) For purposes of this paragraph
(h)(4), Aarea of tribal membership@
means rural areas of the Commission
regulatory area under which the
Organized Tribal Entity is listed in the
tables set out in paragraph (g)(2) of this
section, or the Bering Sea closed area
adjacent to the rural area in which the
Alaska Native tribal headquarters is
located.
(i) * * *
(2) Registration. To register as a
subsistence halibut fisherman, a person
may request a cooperating Alaska Native
tribal government or other entity
designated by NMFS to submit an
application on his or her behalf to the
Alaska Region, NMFS. Alternatively, a
person may apply by submitting a
completed application to the Alaska
Region, NMFS. Application forms are
available on the NMFS Alaska Region
website at https://
alaskafisheries.noaa.gov, or by
contacting NMFS at 800–304–4846,
Option 2. Applications must be mailed
to: Restricted Access Management
Program, NMFS, Alaska Region, P.O.
Box 21668, Juneau, AK 99802–1668.
NMFS will process a SHARC
Application for an Alaska Native Tribal
Member or a SHARC Application for a
Rural Resident provided that a paper
application is completed, with all
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applicable fields accurately filled-in,
and all required additional
documentation is attached. The
applicant must sign and date the
application certifying that all
information is true, correct, and
complete.
*
*
*
*
*
(j) * * *
(3) * * *
(i) * * *
(B) Within the Ketchikan, Juneau,
Anchorage-Matsu-Kenai, and Valdez
non-subsistence marine waters areas as
defined in paragraph (h)(3) of this
section (see figures 2, 3, 4, 5, 6, and 7
to this subpart E).
*
*
*
*
*
(k) * * *
(3) * * *
(i) * * *
(A) In the Anchorage-Matsu-Kenai
non-subsistence marine waters area
defined in paragraph (h)(3) of this
section (see figures 4, 5, 6, and 7 to this
subpart E), only the following tribes
may use a Ceremonial or Educational
permit:
*
*
*
*
*
(B) In the Valdez non-subsistence
marine waters area defined in paragraph
(h)(3) of this section (see figures 4 and
5 to this subpart E), only the Native
Village of Tatitlek may use a Ceremonial
or Educational permit.
*
*
*
*
*
4. In § 300.66, revise paragraphs (g),
(j)(1), and (j)(2) to read as follows:
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§ 300.66
Prohibitions.
*
*
*
*
*
(g) Fish for subsistence halibut in and
off Alaska in a non-subsistence marine
waters area specified at 300.65(h)(3).
*
*
*
*
*
(j) * * *
(1) Persons who qualify as rural
residents under § 300.65(g)(1) or (g)(3)
and hold a SHARC in the person’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 or by rural
residents residing within ten statute
miles of the rural location listed on the
person’s SHARC application; or
(2) Persons who qualify as Alaska
Native tribal members under
§ 300.65(g)(2) and hold a SHARC in the
person’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 any
Alaska Native tribe, or its members, or
residents of the same rural community
or by rural residents residing within ten
statute miles of the rural location listed
on the person’s SHARC application.
*
*
*
*
*
5. Revise figures 2, 3, 4, and 5 to
subpart E of part 300 and add figures 6
and 7 to subpart E of part 300 to read
as follows:
BILLING CODE 3510–22–S
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Agencies
[Federal Register Volume 74, Number 150 (Thursday, August 6, 2009)]
[Proposed Rules]
[Pages 39269-39282]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18841]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 0812191631-91125-02]
RIN 0648-AX53
Pacific Halibut Fisheries; Subsistence Fishing
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes regulations to revise the criteria for rural
residents to participate in the subsistence fishery for Pacific halibut
in waters in and off Alaska. Currently, certain rural residents who
reside in locations outside the legal boundaries of specified
communities are prohibited by regulations from participating in the
subsistence halibut fishery. This action is necessary to allow
subsistence halibut fishing opportunities for these rural residents.
This action is intended to allow inadvertently excluded rural residents
to participate in the subsistence halibut fishery and to support the
conservation and management provisions of the Northern Pacific Halibut
Act of 1982.
DATES: Comments must be received no later than September 8, 2009.
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN
0648-AX53'' by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the
[[Page 39270]]
Federal eRulemaking Portal website at https://www.regulations.gov.
Mail: P. O. Box 21668, Juneau, AK 99802.
Fax: 907-586-7557.
Hand delivery to the Federal Building: 709 West 9th
Street, Room 420A, Juneau, Alaska.
All comments received are a part of the public record and generally
will be posted to https://www.regulations.gov without change. All
Personal Identifying Information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business Information or otherwise sensitive or protected
information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (pdf) formats only.
Electronic copies of the Regulatory Impact Review (RIR) prepared
for this action, and the environmental assessment (EA) prepared for the
original subsistence halibut action (68 FR 18145; April 15, 2003) may
be obtained from https://www.regulations.gov or from the Alaska Region
website at https://www.alaskafisheries.noaa.gov.
Written comments regarding the burden hour estimates or other
aspects of the collection of information requirements contained in this
proposed rule may be submitted to NMFS at the above address and by e
mail to David_Rostker@omb.eop.gov, or fax to 202 395 7285.
FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Management of the Pacific halibut (Hippoglossus stenolepis)
(hereafter halibut) fishery in and off Alaska is based on an
international agreement between Canada and the United States. This
agreement, entitled the AConvention between the United States of
America and Canada for the Preservation of the Halibut Fishery of the
Northern Pacific Ocean and Bering Sea@ (Convention), was signed at
Ottawa, Canada, on March 2, 1953, and amended by the AProtocol Amending
the Convention,@ signed at Washington, D.C., March 29, 1979. The
Convention, administered by the International Pacific Halibut
Commission (IPHC), is given effect in the United States by the Northern
Pacific Halibut Act of 1982 (Halibut Act).
The IPHC promulgates regulations pursuant to the Convention. The
IPHC=s regulations are subject to approval by the Secretary of State
with concurrence from the Secretary of Commerce (Secretary). After
approval by the Secretary of State and the Secretary, the IPHC
regulations are published in the Federal Register as annual management
measures pursuant to 50 CFR 300.62. NMFS published the IPHC=s current
annual management measures on March 19, 2009 (74 FR 11681).
The Halibut Act also authorizes the North Pacific Fishery
Management Council (Council) to develop halibut fishery regulations,
including limited access regulations, in its geographic area of concern
that would apply to nationals or vessels of the United States (Halibut
Act, section 773(c)). Such an action by the Council is limited to only
those regulations that are in addition to, and not in conflict with,
IPHC regulations. Council-developed regulations must be approved and
implemented by the Secretary. Any allocation of halibut fishing
privileges must be fair and equitable and consistent with other
applicable Federal law. The Council used its authority under the
Halibut Act to recommend a subsistence halibut program in October 2000
to recognize and manage the subsistence fishery for halibut. Like the
original subsistence halibut program and subsequent amendments to it,
this action was developed by the Council under the authority of the
Halibut Act.
The Halibut Act at sections 773c (a) and (b) provides the Secretary
with the general responsibility to carry out the Convention with the
authority to, in consultation with the Secretary of the department in
which the U.S. Coast Guard is operating (currently the Secretary of
Homeland Security), adopt such regulations as may be necessary to carry
out the purposes and objectives of the Convention and the Halibut Act.
The Secretary has delegated authority to NMFS to implement the Halibut
Act.
Need for Action
The subsistence halibut regulations authorize eligible persons to
conduct subsistence halibut fishing in waters in and off Alaska.
Currently, a person is eligible to harvest subsistence halibut if he or
she is a rural resident of a community with customary and traditional
uses of halibut that is listed in the tables at Sec. 300.65(g)(1)
(hereafter ``listed community''), or a member of an Alaska Native tribe
with customary and traditional uses of halibut that is listed in the
tables at Sec. 300.65(g)(2). Persons eligible to fish must possess a
subsistence halibut registration certificate (SHARC) to exercise the
privilege.
The definition of the term ``rural resident'' is the primary issue
in this proposed action. For purposes of the subsistence halibut
program, a rural resident currently is defined as a person domiciled in
a listed community, who has maintained a domicile in a listed rural
community for the 12 consecutive months immediately preceding the time
when the assertion of residence is made, and who is not claiming
residency in another state, territory, or country. A minimum threshold
of 25 residents was used when the list of eligible rural places
originally was developed by the Council and approved by the Secretary.
The list of rural communities was developed by the Council based on
customary and traditional findings for halibut and bottomfish made by
the State of Alaska Board of Fisheries (Board). Therefore, the process
for including additional communities in the subsistence halibut program
has been for an interested party to first send a written request to the
Board that then may recommend inclusion of additional communities in
the subsistence halibut program.
The current regulations have inadvertent, adverse impacts on some
rural residents; individuals who reside outside the boundaries of
designated communities do not qualify for a SHARC. The boundaries of
many rural Alaska communities are not adjacent to the boundaries of
other communities due to Alaska's large size and relatively sparse
population. Areas between incorporated communities are unincorporated
areas. Individuals who reside in these extremely remote locations
between listed communities likely have the same if not greater
customary and traditional use of halibut as currently eligible
participants, and otherwise may be deemed eligible to participate in
the subsistence halibut program except for the location of their
residence outside the boundaries of a listed community. Initially,
SHARCs were issued to individuals who resided close to listed
communities. Beginning in 2007, SHARCs have been denied to individuals
who previously received them because these individuals reside outside
the legal boundaries of listed communities. SHARCs were either returned
voluntarily or were not renewed by NMFS.
Description of the Proposed Action
The Council used a community-based approach to determine rural
eligibility in its original subsistence halibut action as cited in the
proposed rule published August 26, 2002 (67 FR 54767). In June
[[Page 39271]]
2008, the Council revised its policy based on information that numerous
individuals and their families have been disadvantaged under the
current regulations. The Council recommended a wider geographic scope
for rural resident eligibility to include individuals who reside in
remote homesteads outside the boundaries of listed communities. The
Council determined that those individuals or families in remote
locations within the subsistence halibut use areas of Alaska practice
the same patterns of use as residents of nearby listed communities that
have customary and traditional uses, and, therefore, should be eligible
to participate in subsistence fishing for halibut.
The Council's original intent for the subsistence halibut program
was to allow persons who had customarily and traditionally used halibut
for food in the past to continue in that practice. This action would
amend the regulations to conform the subsistence halibut program
regulations to the Council=s original intent for the program. If the
proposed action is implemented, additional rural residents of Alaska
south of Cape Espenberg who reside within a designated ten-statute-mile
boundary adjacent to the waters of the Bering Sea and Pacific Ocean or
in other designated places, and who do not reside in specified non-
rural areas, would be eligible to subsistence fish for halibut. This
action would include in the subsistence halibut program certain
individuals who live a subsistence lifestyle and who rely on halibut as
a customary and traditional source of food for themselves and their
families, but who do not reside in a listed community. This action
would provide them with the subsistence halibut fishing opportunities
contemplated in the original subsistence halibut program.
The proposed change in the criteria for rural eligibility does not
include residents living in non-rural areas and does not apply to
Alaska Native tribal members. To include non-rural residents would
expand subsistence eligibility beyond the Council's original intent.
Members of Alaska Native tribes listed at Sec. 300.65(g)(2) are
eligible for SHARCs regardless of the location of their residences.
Therefore, the discussion of rural versus non-rural eligibility in the
preamble of this proposed action does not apply to Alaska Native tribal
members. Members of Alaska Native tribes would not be directly affected
by this action.
When the Council considered the areas to include as rural areas for
purposes of the subsistence halibut program, it consulted with State of
Alaska Department of Fish and Game Subsistence Division experts
regarding customary and traditional use of the halibut resource. Cape
Espenberg was chosen as the northern limit of the rural area because it
is the most prominent point of land north of the northern most listed
community of Shishmaref, Alaska. The ten-statute-mile limit was
selected to define a band of land that included listed communities so
that people living between listed communities would become eligible
under this action. The land areas adjacent to the current non-
subsistence marine waters areas are proposed to be included as non-
subsistence areas.
Approximately 600 additional rural residents could be expected to
receive SHARCs according to estimates in the RIR prepared for this
action (see ADDRESSES). Most of these rural residents reside in the
Kodiak Island Borough. Some of these rural residents previously had
received a SHARC but were later found to be ineligible based on a
closer examination of the regulatory language. These rural residents
may have fed their families with halibut harvested under sport fishing
regulations or by purchasing other protein sources from commercial
entities. Up to 9,400 residents may benefit from this action through
the customary and traditional practices of sharing food. Currently, the
affected rural residents may harvest halibut with a sport fishing
license, but the sport daily bag limits are smaller than are allowed
under subsistence halibut regulations. This action would reduce the
cost of acquiring halibut for subsistence purposes, reduce associated
fishing time and effort, and provide comparable opportunity to harvest
this subsistence resource for the affected rural residents to that
enjoyed by residents of listed communities.
The amount of halibut that is projected to be harvested under this
action is small compared to the harvest in the commercial and sport
fisheries. The subsistence halibut harvest was estimated to be 1.4
percent, or 1,032,293 lb, of the total halibut removals of 74,389,000
lb in 2007, the most recent year for which subsistence harvest
information is available. This action is expected to increase the
subsistence halibut harvest by 105,000 lb, or about 10 percent of the
current subsistence halibut harvest. However, without this action, some
of this expected increase in the subsistence halibut harvest would be
harvested as part of the sport fishery for halibut.
Under the proposed regulations, rural residents would be considered
eligible to participate in the subsistence halibut program if they met
the criteria for rural residency under one of two options. First, a
person would continue to be considered a rural resident if he or she
were domiciled in a community specified at Sec. 300.65(g)(1). Second,
under the new definition for a rural area, a person would be considered
a rural resident if he or she were domiciled in one of the following
rural areas of Alaska that would be listed at Sec. 300.65(g)(3):
Southeast Alaska east of 141[deg] W. long., except for the
land areas of the Ketchikan Gateway Borough as these areas are
described below, the land areas of the City and Borough of Juneau, and
the Ketchikan and Juneau non-subsistence marine waters areas (see
Figures 2 and 3);
The Alaska Peninsula, Aleutian Islands, Kodiak Island
Archipelago, and the area south of the northern boundary of the Bristol
Bay Borough and south of 58[deg] 39.2' N. lat. (see Figures 5, 6, and
7);
Nelson, Nunivak, and Saint Lawrence Islands (see Figure
6); and
All other areas of Alaska within ten statute miles of mean
high water on the Bering Sea and Pacific Ocean coasts, south of Cape
Espenberg, including along the Kuskokwim River to Bethel, and that are
not specified as non-rural areas and that are not specified as the
Anchorage-Matsu-Kenai or Valdez non-subsistence marine waters areas
(see Figures 4, 5, 6, and 7).
The area along the Kuskokwim River to Bethel was not specified in
the Council's action, but was specifically included on the maps
delineating rural areas in the RIR (see ADDRESSES) used by the Council
when it took action. This rural area along the Kuskokwim River is
beyond ten statute miles from the marine coastline of the Bering Sea
and would leave a gap between the rural community of Bethel and
Kuskokwim Bay. The State of Alaska has determined that the rural
residents of this area historically participated in the customary and
traditional harvest of subsistence halibut. Therefore NMFS is proposing
this modification to the Council's preferred alternative. Additionally,
the Council adopted language specifying the area ``south of the Bristol
Bay Borough'' but this is vague. The maps used by the Council to
describe the boundaries in this area clearly show that the entire
Bristol Bay Borough is to be included, so the proposed regulations
clarify that the area south of the northern boundary of the Bristol Bay
Borough is included as a rural area.
[[Page 39272]]
An applicant for a rural SHARC would be required to maintain a
domicile in a rural area of Alaska for the 12 consecutive months
immediately preceding the time when the assertion of residence is made,
and not claim residency in another state, territory, or country. The
definitions for ``rural'' and ``rural resident'' listed at Sec. 300.61
would be revised to include the residents of these newly described
rural areas.
Other alternatives for expanding the areas defined as rural were
considered but rejected. The addition of small communities to the list
of eligible places would have continued to exclude individuals who
reside outside the boundaries of listed communities and likely would
have resulted in continued petitions to add to the list of places with
customary and traditional use of halibut. Another alternative that was
considered, and on which the Council's preferred alternative was based,
was less specific in its descriptions of included areas.
The proposed action would require specification of non-rural areas.
A resident of a non-rural area does not qualify for a SHARC. Currently,
rural residents must reside within communities specified in regulations
at Sec. 300.65(g)(1) to be considered eligible for SHARCs. As a
result, specifying the boundaries of non-rural areas has been
unnecessary. However, expansion of the rural resident definition as
proposed would require definitive specification of non-rural areas as
exceptions to the proposed rural areas. In general, the non-rural areas
would be those land areas adjacent to the current non-subsistence
marine waters areas and would include the non-subsistence marine waters
areas. The Council recommended that the boundaries for the non-rural
areas match the boundaries for ``non-subsistence use areas''
established by the State of Alaska Joint Board of Fisheries and Game.
This recommendation was made because these boundaries were determined
by the State of Alaska based on the role of subsistence uses in the
economy and not on population size. Also, the marine boundaries of
these areas were used to set the boundaries of the current non-
subsistence marine waters areas. The descriptions of the boundaries
that are used by the State of Alaska (5AAC 99.015) were analyzed to
determine the geographic coordinates that precisely define those
boundaries. For the Juneau non-rural area alone, this resulted
initially in a table of 3,000 geographic coordinates. By ignoring some
minor turns of the boundary, this could be simplified to hundreds of
geographic coordinates for one non-rural area. NMFS determined that a
long, multi-page table for each non-rural area would not be practical
for public use or for NMFS staff who must determine whether an
applicant for a SHARC is domiciled in a specified rural area.
Therefore, NMFS proposes in this action to use the legal boundaries
for cities and boroughs adjacent to the non-subsistence marine waters
areas, excluding the southern tip of the Kenai Peninsula (see Figure
5), to describe the non-rural land areas. The current non-subsistence
marine waters areas would be retained because they do not always match
the marine boundaries of the non-rural cities and boroughs and they
purposely were chosen to match the ``non-subsistence use area''
boundaries used by the State of Alaska. The land areas of the following
cities and boroughs would be non-rural areas for the purposes of the
subsistence halibut fishery: the Ketchikan Gateway Borough as those
boundaries existed on May 18, 2008; the City and Borough of Juneau; the
Greater Anchorage Area Borough; the Matanuska-Susitna Borough; the
Kenai Peninsula Borough, excluding the southern tip of the Kenai
Peninsula that includes the Seldovia Census Designated Place; and the
City of Valdez. For comparison, the maps that show the areas the
Council designated as non-subsistence areas are included in the RIR for
this action (see ADDRESSES).
The land area in the Ketchikan Gateway Borough that would be
designated as non-rural would fall within the boundaries of the borough
prior to its annexation of 4,510 square miles (11,681 square
kilometers) on May 19, 2008. These older boundaries would be described
at Sec. 300.65(g)(4)(i) and closely match the boundaries adopted in
the Council action on June 4, 2008. Also, these boundaries closely
match the Ketchikan Nonsubsistence Area established by the State of
Alaska. The current boundaries of the Ketchikan Gateway Borough
encompass a much larger area than that recommended by the Council as
the Ketchikan non-rural area and, therefore, were rejected by NMFS as
the boundaries to describe the Ketchikan non-rural area. The status of
the municipality of Saxman would be unaffected by this action; Saxman
would remain a listed community under this proposed rule.
The land area in the Kenai Peninsula Borough that would be
designated as rural would include the Seldovia Census Designated Place,
the area south and west of that place, and the area south and west of a
line that runs from 59[deg] 27.5' N lat., 151[deg] 31.7' W. long. to
59[deg] 12.5' N lat., 151[deg] 18.5' W. long., as shown in Figure 5.
This area of the Kenai Peninsula Borough was specified as a rural area
in the Council's recommendation and closely matches the boundary
established by the State of Alaska for the ``Anchorage-Matsu-Kenai
Nonsubsistence Area.''
The land area enclosed by these city and borough boundaries are
close to the Council's recommendation; however, more land area would be
classified as rural under this proposal than was recommended by the
Council. The proposed non-rural boundaries would not include any land
area that was classified as rural under the Council's action. In fact,
the proposed boundaries would classify as rural some land areas outside
city or borough boundaries that would have been classified as non-rural
under the Council's recommendation. The proposed non-rural area
boundaries would be consistent with the current regulations that limit
eligible rural residents to those who reside within the boundaries of
specified rural communities. Finally, the proposed descriptions of non-
rural areas would greatly simplify the regulations for public and
agency use rather than tables of hundreds and potentially thousands of
geographic coordinates for complex non-rural areas. NMFS anticipates
that applicants might know, or could readily determine, whether their
domiciles are located inside or outside of non-rural city or borough
boundaries based on the tax status of the properties. The non-
subsistence marine waters areas' boundaries would remain unchanged,
except for correcting an error to the southern boundary for Valdez that
is discussed below.
The current figures that display the ``non-subsistence marine
waters areas'' described at Sec. 300.65(h)(3) in which subsistence
fishing for halibut is prohibited would be revised to include the
adjacent non-rural land areas. These revised figures would show the
rural and non-rural areas of Southern Southeast Alaska, including
Ketchikan; Northern Southeast Alaska, including Juneau; Prince William
Sound, including Valdez; and Anchorage-Matsu-Kenai. Two new figures
would be added to show the rural and non-rural areas of the Alaska
Peninsula and Aleutian Islands and of Western and Central Alaska.
Because revised and new figures are included with this action, the
references to figure numbers would be revised under Sec. 300.65 at
paragraphs (j)(3)(i)(B), (k)(3)(i)(A), and (k)(3)(i)(B).
The southern boundary for the Valdez non-subsistence marine waters
area would be corrected in the regulations at Sec. 300.65(h)(3)(iv).
The coordinates for the boundaries used in the original
[[Page 39273]]
subsistence halibut regulations (68 FR 18145; April 15, 2003) were
believed to match the boundary of the City of Valdez. However, an error
in converting the legal description of the boundaries of the City of
Valdez into geographic coordinates was discovered in preparing the
analysis for this action. Therefore, this regulatory amendment would
revise the southern boundary from waters north of 61[deg] 02.24' N.
lat., to waters north of 61[deg] 01.38' N. lat. This would move the
boundary farther south by 5,300 ft (1,620 m). The maps provided to the
Council and to the public for the June 2008 meeting reflected this
revision.
The SHARC application would be revised to incorporate the changes
that would be necessitated by this action. Currently, one combined
application is used by rural residents and by Alaska Native tribal
members. To simplify the application process for the public, separate
applications would be used by rural residents and by Alaska Native
tribal members. Additionally, the regulations at Sec. 300.65(i)(2)
would be revised to simplify the application requirements that are
listed in the regulations. The SHARC application requirements for a
rural resident would include indicating the basis upon which the
applicant is eligible to harvest subsistence halibut as a rural
resident. Additional requirements would include listing a post office
box number, describing the physical location of the domicile if there
is no street address, and adding Aor area@ to the requirement to list
the community that qualifies the fisherman as eligible to fish for
subsistence halibut. The SHARC application for an Alaska Native tribal
member would clearly state what is needed for address or location
information and include listing the community or area of residence, and
would no longer require the dates of residence in a community because
that information is not necessary for an Alaska Native tribal member.
The specific location of any SHARC holder's domicile would be
provided on the SHARC application due to regulations related to cash
reimbursement for subsistence halibut fishing expenses. Cash
reimbursement for subsistence halibut is restricted to actual trip
expenses for ice, bait, food, and fuel directly related to the harvest
of subsistence halibut because it is illegal for subsistence halibut to
enter the commercial market. Regulations at Sec. 300.66(j)(1) and
Sec. 300.66(j)(2) limit the reimbursement of a fisherman's actual
expenses to residents of the same community for people who are not
members of an Alaska Native tribe. Therefore, regulations at Sec.
300.66(j)(1) and Sec. 300.66(j)(2) would be revised to include: (A)
references to the proposed new qualification for a rural resident that
would be described at Sec. 300.65(g)(3), and (B) a limit for qualified
persons who reside outside listed rural communities, that the
fisherman's actual expenses could be reimbursed only by those rural
residents who reside within ten statute miles of the rural location
listed on the fishermanSec. s SHARC application. The ten-statute-mile
limit was selected by NMFS to match the boundary that would be
described at Sec. 300.65(g)(3)(iv) and to maintain the intent of the
Council to limit the scope of reimbursement to residents of a localized
area. NMFS is seeking public comment regarding the size of this ten-
statute-mile limit.
Additionally, the text at Sec. 300.66(j)(2) would be revised to
specify that Alaska Native tribal members may be reimbursed for only
actual expenses for ice, bait, food and fuel. The words ``actual
expenses'' were inadvertently omitted from the regulatory text. This
revision would parallel the construction that is used at Sec.
300.66(j)(1) regarding reimbursement of rural residents.
The SHARC application for a rural resident would include the
requirement to provide the name, complete mailing address, and phone
number of an adult age 18 years or older who can verify that the
residence listed by the applicant is the applicant's domicile and that
it was the applicantSec. s domicile for 12 months prior to the date of
the application. The verifying person may not be the applicant's wife,
husband, parent, or child and may not be living at the rural residence
listed by the applicant. This requirement for a verifier would enhance
the ability of NMFS to discern whether a SHARC applicant is truly
qualified as a rural resident eligible to fish for subsistence halibut.
Other Regulatory Changes
Several other minor changes to the regulations are proposed. First,
a definition for SHARC, which is the documentation, issued by NMFS, of
the registration required to participate in subsistence fishing, would
be added to the regulations at Sec. 300.61 because that term is used
in the current and proposed regulations but is not defined. Second, the
regulations at Sec. 300.65(g) would be revised to include a reference
to the new qualification for a rural resident described at Sec.
300.65(g)(3). Third, a misspelling of Sheldon Point (Nunam Iqua) would
be corrected in the regulations at Sec. 300.65(g)(2) in the table for
the IPHC halibut regulatory area 4E. Fourth, the regulations at Sec.
300.65(h)(3) would no longer specify ``non-rural areas'' but ``non-
subsistence marine waters areas'' instead, therefore, regulations at
Sec. 300.65(h)(4) and Sec. 300.66(g) would be revised to reflect that
change. Finally, the meaning of the ``area of tribal membership'' that
is defined at Sec. 300.65(h)(4)(iii) would be revised to specify that
this means the IPHC regulatory area under which an organized tribal
entity is listed at Sec. 300.65(g)(2), or the area of the Bering Sea
that is closed to commercial halibut fishing and adjacent to the rural
area in which the Alaska Native tribal headquarters is located.
Classification
Regulations governing the U.S. fisheries for Pacific halibut are
developed by the IPHC, the Pacific Fishery Management Council, the
Council, and the Secretary. Section 5 of the Halibut Act (16 U.S.C.
773c) allows the Regional Council having authority for a particular
geographical area to develop regulations governing the allocation and
catch of halibut in U.S. Convention waters as long as those regulations
do not conflict with IPHC regulations. The proposed action is
consistent with the Council's authority and the Secretary's authority
to allocate halibut catches among fishery participants in the waters in
and off Alaska.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866. This proposed rule also complies
with the Secretary's authority under the Halibut Act to implement
management measures for the halibut fishery.
The Chief Council for Regulation of the Department of Commerce
certified to the Chief Council for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Basis and Purpose of Rule
The United States and Canada participate in the International
Pacific Halibut Commission (IPHC) and promulgate regulations governing
the Pacific halibut (hereafter halibut) fishery under the authority of
the Northern Pacific Halibut Act of 1982 (Halibut Act). The North
Pacific Fishery Management Council (Council) may develop regulations
governing the allocation and catch of halibut in its area of concern
that would apply to nationals or vessels of the United States and that
are in agreement with IPHC regulations. The Secretary of Commerce must
approve regulations recommended
[[Page 39274]]
by the Council before implementation by the National Marine Fisheries
Service (NMFS). The Council prepared an environmental assessment/
regulatory impact review (EA/RIR) for subsistence halibut fisheries in
January 2003, and NMFS published the final rule to implement
subsistence halibut regulations in April 2003 (68 FR 18145). These
regulations include criteria, based on community of residence, for
rural residents to qualify as participants in the subsistence halibut
fishery.
The criteria for rural residency that were approved in 2003 would
be revised under the proposed rule in order for more Alaskans with
customary and traditional use of halibut to participate in the
subsistence halibut fishery in waters in and off Alaska. Beginning in
2007, based on a closer examination of the regulatory language,
subsistence halibut registration certificates that permit fishermen to
subsistence fish for halibut have been denied to individuals who
previously received them. These rural residents were determined to be
ineligible because they reside outside the legal boundaries of
communities specified in the regulations. Individuals who reside in
these extremely remote locations likely have the same if not greater
customary and traditional use of halibut as currently eligible
participants, and otherwise may be deemed eligible to participate in
the subsistence halibut program except for the location of their
residence outside the boundaries of a specified community.
This action is necessary to allow subsistence halibut fishing
opportunities for these affected rural residents. Currently, the
affected rural residents may harvest halibut with a sport fishing
license, but the sport daily bag limits may be smaller than would be
allowed under the subsistence halibut fishery. The intended effect of
this action is to reduce the cost of acquiring subsistence halibut,
reduce associated fishing time and effort, and provide comparable
opportunity to harvest this subsistence resource for the affected rural
residents.
Factual Basis for Certification
Description and Estimate of the Number of Small Entities to Which the
Rule Applies
No small entities would be directly regulated by the proposed rule.
Small entities are defined as small businesses, small organizations,
and small governmental jurisdictions in Section 601(3)-(5) of the
Regulatory Flexibility Act (RFA) of 1980. This action would apply
uniquely to individual natural persons who are not considered small
entities within the meaning of the RFA.
All of the persons that would be directly regulated by the action
are natural persons. The proposed subsistence halibut regulation at 50
CFR 300.65(g)(3) would specify that ``A person is eligible to harvest
subsistence halibut if he or she is a resident in one of the rural
areas of Alaska described [in this paragraph].'' The regulations
further specify at Sec. 300.61 that halibut caught for subsistence
purposes is defined as halibut caught by a rural resident or a member
of an Alaska Native tribe for direct personal or family consumption as
food, sharing for personal or family consumption as food, or customary
trade. Additionally, the definition for rural resident only specifies
that an individual, clearly indicating a natural person, may qualify to
be a rural resident.
Description and Estimate of Economic Impacts on Small Entities by
Entity Size and Industry
No small entities are directly regulated by the proposed rule.
Therefore, there are no economic impacts on directly regulated small
entities.
Criteria Used to Evaluate Whether the Rule Would Impose Impacts on ``A
Substantial Number'' of Small Entities
The Small Business Administration criteria for what constitutes a
small entity, described in Section 601(6) of the RFA, and the
definition of a business concern that appears at 13 CFR 121.105 were
used to determine that there are no impacts on any small entities. Only
individual natural persons would be directly regulated by this proposed
rule and such persons are not considered small entities under Small
Business Administration guidelines.
Criteria Used to Evaluate Whether the Rule Would Impose ``Significant
Economic Impacts''
Because no small entities are directly regulated by the proposed
rule, no criteria were applied.
Description of, and an Explanation of the Basis for, Assumptions Used
The finding that no small entities would be directly regulated by
this action is based on the definition of small entities in the RFA and
implementing regulations, and a determination that only individual
natural persons, and not small entities, would be directly regulated by
the proposed action.
As a result, an initial regulatory flexibility analysis is not
required and none has been prepared.
This proposed rule contains a collection of information requirement
subject to the Paperwork Reduction Act (PRA) and which has been
approved by OMB under control number 0648 0460. Public reporting burden
for the SHARC applications for a rural resident or an Alaska Native
tribal member are each estimated to average ten minutes per response.
This estimate includes the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding this burden estimate, or any other aspect of this data
collection, including suggestions for reducing the burden, to NMFS (see
ADDRESSES) and by e mail to 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.
Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the
Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the
American Indian and Alaska Native Policy of the U.S. Department of
Commerce (March 30, 1995) outline the responsibilities of the National
Marine Fisheries Service in matters affecting tribal interests. Section
161 of Public Law 108-199 (188 Stat 452), as amended by section 518 of
Public Law 108-447 (118 Stat 3267), extends the consultation
requirements of Executive Order 13175 to Alaska Native corporations.
Consultations occurred with the Alaska Native Subsistence Halibut
Working Group in December 2008, pursuant to the requirements of
Executive Order 13175.
List of Subjects in 50 CFR Part 300
Alaska, Alaska Natives, Fisheries, Pacific halibut fisheries,
Recordkeeping and reporting requirements.
Dated: July 31, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 300, subpart E
is proposed to be amended as follows:
[[Page 39275]]
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart E--Pacific Halibut Fisheries
1. The authority citation for 50 CFR part 300, subpart E continues
to read as follows:
Authority: 16 U.S.C. 773-773k.
2. In Sec. 300.61 revise the definitions for ``Rural'' and ``Rural
resident'' and add a new definition for ``Subsistence halibut
registration certificate (SHARC)'' in alphabetical order to read as
follows:
Sec. 300.61 Definitions.
* * * * *
Rural means, for purposes of the subsistence fishery for Pacific
halibut in waters in and off Alaska, a community of Alaska listed at
Sec. 300.65(g)(1) or an area of Alaska described at Sec. 300.65(g)(3)
in which the non-commercial, customary, and traditional use of fish and
game for personal or family consumption is a principal characteristic
of the economy or area and in which there is a long-term, customary,
and traditional use of halibut.
Rural resident means, for purposes of the subsistence fishery for
Pacific halibut in waters in and off Alaska:(1) An individual domiciled
in a rural community listed in the table at Sec. 300.65(g)(1) and who
has maintained a domicile in rural communities listed in the table at
Sec. 300.65(g)(1), or in rural areas described at Sec. 300.65(g)(3),
for the 12 consecutive months immediately preceding the time when the
assertion of residence is made, and who is not claiming residency in
another state, territory, or country; or
(2) An individual domiciled in a rural area described at Sec.
300.65(g)(3) and who has maintained a domicile in rural areas described
at Sec. 300.65(g)(3), or in rural communities listed in the table at
Sec. 300.65(g)(1), for the 12 consecutive months immediately preceding
the time when the assertion of residence is made, and who is not
claiming residency in another state, territory, or country.
* * * * *
Subsistence halibut registration certificate (SHARC) means
documentation, issued by NMFS, of the registration required at Sec.
300.65(i).
* * * * *
3. In Sec. 300.65:
A. Revise paragraphs (g) introductory text, (h)(3) introductory
text, (h)(3)(iii) introductory text, (h)(3)(iv), (h)(4) introductory
text, (h)(4)(iii), (i)(2), (j)(3)(i)(B), (k)(3)(i)(A) introductory
text, and (k)(3)(i)(B).
B. In paragraph (g)(2), in the table entitled ``Halibut Regulatory
Area 4E'', revise the entry for ``Sheldon Point (Nuna Iqua)''.
C. Add new paragraphs (g)(3) and (g)(4).
The additions and revisions read as follows:
Sec. 300.65 Catch sharing plan and domestic management measures in
waters in and off Alaska.
* * * * *
(g) Subsistence fishing in and off Alaska. No person shall engage
in subsistence fishing for halibut unless that person meets the
requirements in paragraphs (g)(1), (g)(2), or (g)(3) of this section.
* * * * *
(2) * * *
Halibut Regulatory Area 4E
------------------------------------------------------------------------
Place with Tribal Headquarters Organized Tribal Entity
------------------------------------------------------------------------
* * * * *
Sheldon Point (Nunam Iqua) Native Village of
Sheldon's Point
* * * * *
------------------------------------------------------------------------
(3) A person is eligible to harvest subsistence halibut if he or
she is a rural resident in one of the rural areas of Alaska described
as follows:
(i) Southeast Alaska east of 141 W. long., except for the land
areas of the Ketchikan Gateway Borough as described at (g)(4)(i) of
this section, the land areas of the City and Borough of Juneau, and the
Ketchikan and Juneau non-subsistence marine waters areas as defined in
paragraphs (h)(3)(i) and (h)(3)(ii) of this section (see figures 2 and
3 to this subpart E).
(ii) The Alaska Peninsula, Aleutian Islands, Kodiak Island
Archipelago, and the area south of the northern boundary of the Bristol
Bay Borough and south of 58[deg] 39.2' N. lat. (see figures 5, 6, and 7
to this subpart E).
(iii) Nelson, Nunivak, and Saint Lawrence Islands (see figure 6 to
this subpart E).
(iv) All other areas of Alaska within ten statute miles of mean
high water on the Bering Sea and Pacific Ocean coasts, south of Cape
Espenberg, including along the Kuskokwim River to Bethel, and that are
not specified as non-rural land or water areas as defined in paragraph
(g)(4) of this section (see figures 4, 5, 6, and 7 to this subpart E).
(4) Non-rural areas consist of the non-subsistence marine waters
areas defined in paragraph (h)(3) of this section and the land areas of
the following cities and boroughs for purposes of the subsistence
fishery for Pacific halibut in waters in and off Alaska:
(i) The Ketchikan Gateway Borough on May 18, 2008. This area
encompasses all those islands bounded on the east, north, and west by
Behm Canal, Behm Narrow, and Clarence Strait to its junction with
Nichols Passage, and on the south by Nichols and Revillagigedo Channel
to its junction with Behm Canal. The designated boundaries extend to
the center line of Behm Canal, Behm Narrows, Clarence Strait, Nichols
Passage, and Revillagigedo Channel, and include all the area of
Revillagigedo, Gravina, Pennock, Betton, Grant and other Clover Passage
and Naha Bay Islands, Hassler, Gedney, Black, Smeaton, Manzanita,
Rudyerd, and Bold Islands, and all other offshore and adjacent islands
and inlets thereto (see figure 2 to this subpart E).
(ii) The City and Borough of Juneau (see figure 3 to this subpart
E).
(iii) The Greater Anchorage Area Borough (see figures 4 and 5 to
this subpart E).
(iv) The Matanuska-Susitna Borough (see figure 5 to this subpart
E).
(v) The Kenai Peninsula Borough excluding the area of the Seldovia
Census Designated Place, the area south and west of that place, and the
area south and west of a line that runs from 59 27.5' N. lat., 151[deg]
31.7' W. long. to 59[deg] 12.5' N. lat., 151[deg] 18.5' W. long (see
figure 5 to this subpart E).
(vi) The City of Valdez (see figures 4 and 5 to this subpart E).
(h) * * *
(3) Subsistence fishing may be conducted in any waters in and off
Alaska except in the four non-subsistence marine waters areas defined
as follows:
* * * * *
(iii) The Anchorage-Matsu-Kenai non-subsistence marine waters area
in Commission Regulatory Area 3A (see figures 4, 5, 6, and 7 to this
subpart E) is defined as:
* * * * *
(iv) Valdez non subsistence marine waters area in Commission
regulatory area 3A (see figures 4 and 5 to this subpart E) is defined
as the waters of Port Valdez and Valdez Arm located north of 61[deg]
01.38' N. lat., and east of 146[deg] 43.80' W. long.
(4) Waters in and off Alaska that are not specifically identified
as non-subsistence marine waters areas in paragraph (h)(3) of this
section are rural for purposes of subsistence fishing for halibut.
Subsistence fishing may be conducted in any rural area by any
[[Page 39276]]
person with a valid subsistence halibut registration certificate in his
or her name issued by NMFS under paragraph (i) of this section, except
that:
* * * * *
(iii) For purposes of this paragraph (h)(4), Aarea of tribal
membership@ means rural areas of the Commission regulatory area under
which the Organized Tribal Entity is listed in the tables set out in
paragraph (g)(2) of this section, or the Bering Sea closed area
adjacent to the rural area in which the Alaska Native tribal
headquarters is located.
(i) * * *
(2) Registration. To register as a subsistence halibut fisherman, a
person may request a cooperating Alaska Native tribal government or
other entity designated by NMFS to submit an application on his or her
behalf to the Alaska Region, NMFS. Alternatively, a person may apply by
submitting a completed application to the Alaska Region, NMFS.
Application forms are available on the NMFS Alaska Region website at
https://alaskafisheries.noaa.gov, or by contacting NMFS at 800-304-4846,
Option 2. Applications must be mailed to: Restricted Access Management
Program, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668.
NMFS will process a SHARC Application for an Alaska Native Tribal
Member or a SHARC Application for a Rural Resident provided that a
paper application is completed, with all applicable fields accurately
filled-in, and all required additional documentation is attached. The
applicant must sign and date the application certifying that all
information is true, correct, and complete.
* * * * *
(j) * * *
(3) * * *
(i) * * *
(B) Within the Ketchikan, Juneau, Anchorage-Matsu-Kenai, and Valdez
non-subsistence marine waters areas as defined in paragraph (h)(3) of
this section (see figures 2, 3, 4, 5, 6, and 7 to this subpart E).
* * * * *
(k) * * *
(3) * * *
(i) * * *
(A) In the Anchorage-Matsu-Kenai non-subsistence marine waters area
defined in paragraph (h)(3) of this section (see figures 4, 5, 6, and 7
to this subpart E), only the following tribes may use a Ceremonial or
Educational permit:
* * * * *
(B) In the Valdez non-subsistence marine waters area defined in
paragraph (h)(3) of this section (see figures 4 and 5 to this subpart
E), only the Native Village of Tatitlek may use a Ceremonial or
Educational permit.
* * * * *
4. In Sec. 300.66, revise paragraphs (g), (j)(1), and (j)(2) to
read as follows:
Sec. 300.66 Prohibitions.
* * * * *
(g) Fish for subsistence halibut in and off Alaska in a non-
subsistence marine waters area specified at 300.65(h)(3).
* * * * *
(j) * * *
(1) Persons who qualify as rural residents under Sec. 300.65(g)(1)
or (g)(3) and hold a SHARC in the person's name under Sec. 300.65(i)
may be reimbursed for actual expenses for ice, bait, food, and fuel
directly related to subsistence fishing for halibut, by residents of
the same rural community or by rural residents residing within ten
statute miles of the rural location listed on the person's SHARC
application; or
(2) Persons who qualify as Alaska Native tribal members under Sec.
300.65(g)(2) and hold a SHARC in the person's name under Sec.
300.65(i) may be reimbursed for actual expenses for ice, bait, food,
and fuel directly related to subsistence fishing for halibut, by any
Alaska Native tribe, or its members, or residents of the same rural
community or by rural residents residing within ten statute miles of
the rural location listed on the person's SHARC application.
* * * * *
5. Revise figures 2, 3, 4, and 5 to subpart E of part 300 and add
figures 6 and 7 to subpart E of part 300 to read as follows:
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[FR Doc. E9-18841 Filed 8-5-09; 8:45 am]
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