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National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
NMFS issues a final rule to authorize and manage a subsistence fishery for Pacific halibut in waters in and off Alaska. This action is necessary to allow qualified persons to practice the long-term customary and traditional harvest of Pacific halibut for food in a non-commercial manner. This action is intended to meet the conservation and management requirements of the Northern Pacific Halibut Act of 1982 (Halibut Act).
Effective on May 15, 2003.
Copies of the environmental assessment/regulatory impact review (EA/RIR) prepared for this action are available from NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel-Durall, or NMFS, Alaska Region, 709 West 9th Street, Room 453, Juneau, AK 99801, or by calling the Sustainable Fisheries Division, Alaska Region, NMFS, at 907-586-7228. Send comments on collection-of-information requirements to the same address and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC. 20503 (Attention: NOAA Desk Officer). Comments may also be sent via facsimile (fax) to 907-586-7465. Comments will not be accepted if submitted via e-mail or the internet.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Jay Ginter, 907-586-7172 or firstname.lastname@example.org.End Further Info End Preamble Start Supplemental Information
Management of the fisheries for Pacific halibut (Hippoglossus stenolepis, hereafter halibut) in waters in and off Alaska is based on an international agreement between Canada and the United States. This agreement, titled the “Convention between United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea” (Convention), was signed at Ottawa, Canada on March 2, 1953, and amended by the “Protocol Amending the Convention,” signed at Washington, D.C., March 29, 1979. This Convention, administered by the International Pacific Halibut Commission (IPHC), is given effect in the United States by the Halibut Act (16 U.S.C. 773c(c)). Generally, fishery management regulations governing the halibut fisheries are developed by the IPHC and recommended to the U.S. Secretary of State. When approved, these regulations are published by NMFS in the Federal Register as annual management measures. The annual management measures for 2003 were published March 7, 2003 (68 FR 10989).
Section 773(c) of the Halibut Act also provides for 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 U.S. Such action by the Council is limited only to those regulations that are in addition to, and not in conflict with, IPHC regulations, and must be approved and implemented by the U.S. Secretary of Commerce (Secretary). Any allocation of halibut fishing privileges must be fair and equitable and consistent with other applicable Federal law. This is the authority under which the Council acted in October 2000, to adopt a subsistence halibut policy.
The Council does not have a “fishery management plan” (FMP) for the halibut fishery. Hence, halibut fishery management regulations developed by the Council do not follow the FMP amendment procedures set out in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Instead, a regulatory amendment process is followed. This process requires submission of the Council recommendation to the Secretary as a draft proposed rule for publication in the Federal Register along with supporting analyses as required by other applicable law.
The Council's recommended subsistence halibut policy was submitted for Secretarial review on May 30, 2002, and a proposed rule to implement the recommended policy was published in the Federal Register on August 26, 2002 (67 FR 54767). Comments on the proposed rule were invited through September 25, 2002. Fourteen letters were received that included 43 separate comments, which are summarized and responded to below.
The historical context of the Council's subsistence recommendation in October 2000, is summarized in the preamble to the proposed rule (on page 54768) and not repeated here. In April 2002, the Council adopted modifications to its original (i.e., October 2000) subsistence recommendation. These modifications will be the subject of a subsequent regulatory action. They were not included in the proposed rule published August 26, 2002 (67 FR 54767) and are not included in this final rule action.
The principal elements of the subsistence halibut rule are fully described and explained in the preamble to the proposed rule and for brevity are not repeated here. In brief, these elements include: (a) definition of “subsistence” and “subsistence halibut,” (b) specification of who is eligible to conduct fishing for subsistence halibut, (c) description of non-subsistence areas in which subsistence halibut fishing is not allowed, (d) definition of legal gear for harvesting subsistence halibut, (e) daily harvest limit of subsistence halibut, (f) annual monetary limit on customary trade of subsistence halibut, and (g) provisions for monitoring subsistence halibut harvests.
In addition, this action restructures certain halibut fishery regulations as described in the preamble to the proposed rule to better distinguish rules affecting IPHC regulatory Area 2C from those affecting the other IPHC areas off Alaska. This final rule is substantively the same as the August 26, 2002 proposed rule (67 FR 54767), except that certain technical changes have been made in response to comments received on the proposed rule. These changes are explained below in the response to the comments and in changes from the proposed rule.
Response to Comments
The Alaska Region, NMFS received 14 letters of comment from various Start Printed Page 18146agencies, Alaska Native organizations, and individuals that contained 43 separate comments. The following summarizes and responds to these comments.
Comment 1: The State of Alaska Department of Fish and Game (ADF&G) strongly urges the harvest survey design to record harvest of all species from ADF&G groundfish statistical areas. This information (more detailed than harvest data based on IPHC areas) will be critical in the development of the future local area management plans and will provide management biologists with more specific information of the removals on a spatial scale each year when making in-season management decisions on commercial, sport, personal use, and State subsistence groundfish fisheries.
Response: The subsistence halibut harvest survey instrument was developed concurrently with the proposed rule to comply with the Paperwork Reduction Act of 1995 (PRA) (Pub. L. 104-13). Under the PRA, NMFS is obligated to minimize paperwork requirements and ensure that the affected public is not overly burdened with requests for information. The Federal Office of Management and Budget (OMB) oversees agency compliance with the PRA and must review and authorize each collection of information. Hence, NMFS must carefully balance its need for information from persons affected by its rules with the relative burden on the affected public of reporting that information.
The design of the subsistence halibut harvest survey instrument was guided by this balance. The survey is designed to be as unintrusive as possible to foster the cooperation of subsistence fishers and to capture the basic information needed of how much halibut was harvested, how much lingcod and rockfish was harvested incidental to subsistence halibut, generally where was it harvested, and whether it was caught in sport fishing or subsistence fishing. Collecting this much information from most of the registered subsistence fishers will vastly improve existing estimates of subsistence halibut harvest. Requesting more information and in finer detail throughout the State of Alaska could be viewed as being an excessive reporting burden. For example, NMFS would have to consider why the data on the geographic distribution of subsistence harvests of halibut should be more detailed than the geographic distribution data from sport fishing harvests of halibut, especially in light of the fact that subsistence harvests are estimated to be less than one tenth of the sport harvests.
NMFS agrees, however, that future management questions may arise in which data on the specific locality of subsistence halibut harvests are important. To this end, NMFS intends to work closely with the ADF&G Subsistence Division, affected tribes, and community groups to refine information on the location and species composition of subsistence halibut harvests. The survey instrument may be refined for this purpose in the future. In anticipation of refinements to the survey instrument, the OMB has authorized this survey for one year as a pilot information collection program. Renewal of OMB authority to conduct the subsistence halibut harvest survey under the PRA will depend on a review of the conduct of the survey and the quality of the data produced during the first year. Efforts to refine the data collected by the survey are likely best focused in certain parts of IPHC Areas 2C and 3A where subsistence, commercial, and sport halibut harvests will be higher relative to more western areas.
Comment 2: The harvest assessment survey design should include the number of lingcod and rockfish retained and released as well as separating rockfish by assemblage, such as “pelagic species” and “other” (demersal and slope) species.
Response: Based on the experience of ADF&G Subsistence Division personnel, the vast majority of the lingcod and rockfish caught incidental to subsistence halibut will be retained. This harvest of lingcod and rockfish while subsistence fishing for halibut would be reported in the annual subsistence halibut survey. Requesting more detailed information from subsistence fishers about the species composition of their incidental rockfish harvest raises the same PRA question of balance discussed above.
Comment 3: The definitions of “commercial fishing,” “customary trade,” and “subsistence halibut” do not sufficiently distinguish between sale and barter for commercial or subsistence purposes. It is not clear when the exchange of halibut for money is a commercial exchange or a subsistence exchange.
Response: The distinction between commercial fishing for halibut and subsistence fishing for halibut should be clear. Halibut harvested in commercial fishing are intended to enter commerce. The harvest, landing, and distribution of these fish must comply with relevant IPHC, State, and Federal fishing and reporting requirements. Halibut harvested in subsistence fishing are intended for the sustenance of the fisher, his family and community in accordance with cultural traditions of Alaska Natives and rural lifestyles. To preserve this distinction, this rule requires that subsistence halibut must not enter commerce and must not be intermixed with commercial fish, except under limited conditions in Areas 4D and 4E.
The definitions of “commercial fishing” and “subsistence halibut” were derived from the IPHC definition of “commercial fishing” which “means fishing [other than customary and traditional fishing] the resulting catch of which is sold or bartered, or is intended to be sold or bartered”(67 FR 12885, March 20, 2002). “Subsistence,” on the other hand, is defined in this rule to be ”...the non-commercial, long-term, customary and traditional use of halibut.” Subsistence halibut, however, may be used in customary trade because customary trade is a customary and traditional use of halibut. Customary trade may include bartering and limited exchanges of money, but this does not mean that any bartering or exchange of money necessarily implies a commercial transaction. Exchanging halibut for items of significant value or for sale or marketing purposes likely constitute a significant commercial enterprise. Such halibut would not be used in a customary and traditional manner and therefore would not be confused with subsistence halibut.
Comment 4: The proposed legal gear limit of “set and hand-held gear of not more than 30 hooks” does not specify whether this limit applies per person or per vessel.
Response: NMFS understands that the Council's original policy intent was for the hook limit to apply to each person engaged in subsistence halibut fishing. Although this was implied in the preamble to the proposed rule (67 FR 54767, August 26, 2002), NMFS agrees that the proposed rule language did not explicitly state whether the hook limit was to apply per person or per vessel. Therefore, NMFS changed the final rule to make this personal hook limit explicit.
Comment 5: The marking of buoys used in the subsistence halibut fishery should include a large “S” in addition to the fisher's name and address to designate that the gear is being used for Federal subsistence halibut fishing rather than a State commercial fishery.
Response: NMFS agrees that requiring an additional “S” character on the markings of setline marker buoys would serve a justifiable purpose of distinguishing subsistence gear from Start Printed Page 18147commercial gear and has incorporated this requirement in the final rule.
Comment 6: Although the need for a subsistence halibut harvest in Alaska is recognized, the proposed rule should be changed. Without an annual limit on the harvest of each individual, a daily limit of 20 halibut per day, per person is unquestionably excessive. The subsistence halibut rules should include an annual individual harvest limit.
Response: The 20-halibut-per-day catch limit is not considered excessive in light of its purpose, which is to provide a reasonable daily catch limit for a subsistence fisher to supply food for his family and community. Proxy fishing is not provided for in this rule. Therefore, the daily catch limit should be sufficient to allow the fisher to supply fish to persons other than himself. Moreover, subsistence fishers typically do not harvest more fish than they actually need and will use. The customary and traditional practice of subsistence fishing does not include wasting fish.
Nevertheless, subsistence use of halibut may conflict with other uses of the resource, particularly in more populated areas of Alaska. In response to this concern, the Council studied various alternative approaches and in April 2002, adopted a recommendation to NMFS to revise the 20-halibut-per-day catch limit in certain parts of IPHC regulatory areas 2C and 3A. This and other recommendations made by the Council at that time are under review and proposed implementing rules will be published in the Federal Register for public comment.
Comment 7: The definition of “customary trade” wrongly suggests that the sale of any fish could be something other than a commercial activity and that $400 worth of halibut is not significant. Allowing the sale of subsistence halibut should be eliminated.
Response: NMFS disagrees. Customary trade is a customary and traditional use of halibut and should be an integral part of any subsistence policy. The Council recommended and NMFS approved this customary trade policy and the $400-per-year monetary limit because it was considered an insignificant amount. The Council determined and NMFS agrees that the $400 limit would allow a subsistence fisher to be reimbursed for the cost of his or her fuel or other incidental expenses incurred while subsistence fishing for halibut. Such customary trade can occur without subsistence halibut being deemed as entering commerce.
Comment 8: Subsistence halibut should be required to be marked or identified in some manner, and mandatory logs or reports of fishing locations, quantities harvested and amounts of gear used should be required.
Response: The overall harvest of subsistence halibut and certain species taken incidental to subsistence halibut fishing will be estimated under this rule based on surveys of subsistence fishers. NMFS disagrees, however, that the estimation of subsistence harvests needs to be any more precise or the reporting requirements any more robust than those used for estimating the sport harvest of halibut which is estimated to be substantially larger than subsistence harvests.
Comment 9: These liberal subsistence rules will be unenforceable and will not prevent subsistence halibut from entering commercial venues. These rules could apply to the most remote and isolated rural areas without much risk of abuse, but in larger communities with road and airline connections, enforcement will be much more difficult if not impossible. In Sitka, for example, where a cash economy and subsistence harvest are blended in a population of many thousands, the individual harvest limit of 20 fish per day could result in hundreds of thousands of pounds being bartered for goods and services anywhere because the rule does not limit customary trade to the rural community where the fish are caught. This presents a potential to reduce or eliminate the volume of halibut available to commercial IFQ fishers.
Response: Enforcement of the subsistence rules in larger rural communities, such as Sitka, may be more challenging than in smaller rural communities. NMFS intends to cooperate with Alaska Native tribes and community organizations in publicizing subsistence halibut rules, and some Alaska Native tribes already have indicated their intent for their members to fully comply with the subsistence rules. Non-compliance likely would result in the Council recommending and NMFS approving more restrictive subsistence rules. NMFS further intends to monitor subsistence harvests in cooperation with State of Alaska, tribal and community agencies to provide reasonable estimates of fishing mortality from this fishery for conservation and management purposes. Although it is possible in theory for the subsistence fishery to preempt the commercial fishery, it is highly unlikely. Subsistence halibut harvests overall are expected to be about one percent or less of the total catch of halibut, substantially less than the sport halibut harvest and virtually insignificant compared to the commercial halibut harvest and other sources of halibut fishing mortality.
Comment 10: Subsistence fishers need to be able to set out 50 hooks overnight about four times a year, and need to trade or get money for about 200 pounds of fish four times a year.
Response: The Council considered alternative hook limits ranging from 2 to 60 hooks (see final EA/RIR/FRFA). Based on an analysis of the potential impacts of the alternative hook limits and public testimony, the Council recommended a 30-hook limit as a reasonable balance of the interests of subsistence and commercial fishers. Although some subsistence fishers may prefer no hook limit, most appear to find the 30-hook limit to be acceptable.
The rule specifies no limit on customary trade in terms of pounds of halibut that may be traded per year. The only specified limit on customary trade is on the amount of money that may be received by a subsistence fisher for subsistence halibut in a year. Subsistence halibut could be exchanged for goods other than money. In developing this policy, the Council chose not to recommend a non-monetary limit on the value of goods or services that may be exchanged in customary trade for subsistence halibut. The Council was clear, however, that it did not intend for items of significant value (e.g., a new car or truck) to be traded for subsistence halibut, although it did not specify the meaning of “significant value.” Trading subsistence halibut for items of significant value would suggest a commercial enterprise, which is prohibited. Hence, 200 pounds of subsistence halibut could be exchanged in customary trade each year providing that any monetary payment for this fish does not exceed $400.
Comment 11: A recent survey conducted by the Yakutat Tlingit Tribe and Division of Subsistence (ADF&G) indicates halibut is the top subsistence species for the community of Yakutat.
Response: NMFS notes this indication of the importance of subsistence halibut in the community of Yakutat, Alaska.
Comment 12: There needs to be a valid subsistence halibut registration certificate to allow fishing for subsistence halibut. It is not clear, however, whether the requirement to “hold” a certificate means that a subsistence fisher must have the certificate in possession during fishing or to simply obtain a certificate prior to fishing.
Response: The proposed rule (67 FR 54767, August 26, 2002) at section Start Printed Page 18148300.65(h) requires a subsistence halibut fisher to ”...possess a valid subsistence halibut registration certificate in his or her name issued by NMFS before he or she begins subsistence fishing for halibut....” Also in the proposed rule at section 300.66(e), subsistence halibut fishing would be unlawful unless the fisher ”...is qualified...and possesses a valid subsistence halibut registration certificate....” NMFS agrees, however, that the term “possess” in this language does not indicate clearly if a subsistence fisher would be required to carry his or her registration certificate while conducting subsistence halibut fishing. Therefore, this rule clarifies the meaning of “possess” by requiring a registration certificate to be made available for inspection by an authorized officer during a subsistence halibut fishing trip.
Comment 13: A multi-year registration would minimize paperwork for the affected fishers, however, it is not clear what would be the basis for determining that a fisher had ceased his subsistence fishing activity. Apparently, ceasing to fish is presumed when a fisher does not re-register for the certificate.
Response: A person eligible to do subsistence halibut fishing but who does not intend to do so presumably would not apply for a subsistence halibut registration certificate (SHARC). Also, a person who has a valid SHARC may fish for subsistence halibut one year but not in succeeding years in which the multi-year SHARC remains valid. The rate of such unused SHARCs in any year could be estimated from responses to the subsistence halibut harvest survey.
Comment 14: The conduct of the harvest survey is critical to obtaining an accurate estimate of subsistence harvest. No details of the harvest survey methodology are provided but its design must be statistically sound with validation procedures to produce a precise and unbiased estimate.
Response: NMFS agrees, and initially intends to contract with the Subsistence Division of the Alaska Department of Fish and Game to carry out the harvest survey. This work will be conducted by social scientists who are experienced in researching the subsistence use of fish and game throughout the State of Alaska. The survey instrument was designed to be simple to understand and easy to respond to, which should foster the cooperation of subsistence fishers. Also, the survey is designed to contact virtually all of those persons who have been issued SHARCs and actually harvested subsistence halibut.
Comment 15: Subsistence harvest estimates will be produced from a post-season survey of registered fishers which will be based on their memory of what they caught. Another approach could be the use of a catch record card (CRC). The CRC could be attached to the registration form, and catches would be recorded on it by the fisher. Each fisher would mail in his or her completed CRC following each subsistence season. Follow-up contact still would be made to determine the harvests of non-responders. The advantages of an annual CRC include: (1) initial harvest estimates are made without agency action based on returned CRC, (2) better harvest estimates are likely as fishers would be recording their harvests shortly after making them rather than several months later based on memory for the survey, (3) the CRC could be used as an independent check on a mail or phone survey of a random sample of registrants, and (4) the subsistence fishing community will be more precisely known each year as the annual registration and CRCs are applied for and distributed. A multi-year registration certificate could involve distributing multiple CRCs so that a CRC could be returned each year.
Response: The suggested CRC method for estimating subsistence harvests is a reasonable alternative to the survey methodology that NMFS intends to use, at least initially, but the CRC method would be slightly more complex and burdensome for the subsistence fisher. This burden may be justified in the future, based on experience with the survey method, but for now is deemed unnecessary. In response to the purported advantages: (1) agency action nevertheless would be required to record and calculate the data reported on the CRCs, (2) the CRC method may produce a marginal increase in the precision and accuracy of the subsistence halibut harvest estimates, but surveying registered fishers is the same methodology used to estimate sport halibut harvests in Alaska and it is not clear why the subsistence halibut fishery should be subjected to a more robust estimation procedure than the sport halibut fishery when the latter will likely harvest several times as many halibut as the former, (3) conducting a mail survey in parallel with a CRC requirement would substantially increase the reporting burden on affected fishers (see also response to comment 1), and (4) the SHARC system serves the same purpose, i.e. to distinguish the group of persons who intend to fish for subsistence halibut from the universe of those eligible to do so.
Comment 16: Language in the proposed regulatory text (at sec. 300.65(g)(3)) would prevent subsistence halibut fishing in the IPHC closed area in the Bering Sea. The closed area applies only to commercial fishing. Sport fishing is allowed in this area and subsistence fishing also would be acceptable.
Response: NMFS agrees that neither the Council nor the IPHC ever indicated that subsistence halibut fishing should be prohibited in the area of the Bering Sea adjacent to and south of IPHC Area 4E which is closed to commercial halibut fishing by the IPHC regulations (section 10 of the annual management measures at 67 FR 12885, March 20, 2002). The proposed rule included this unintended restriction because the closed area is not part of any of the IPHC regulatory areas defined in section 6 of the annual management measures. The regulatory text in this action, therefore, is changed to allow subsistence halibut fishing in the closed area.
Comment 17: The catch sharing plan described in the proposed regulatory text (at section 300.63) is for the 2001 fishery. In 2002, regulations provided for an incidental catch of halibut during the sablefish fishery north of Point Chehalis, WA.
Response: NMFS agrees that proposed regulatory text at section 300.63(b) pertaining to the Area 2A Catch Sharing Plan should be exactly as it existed in section 300.63(a) before this rule. The restructuring of section 300.63 was discussed in the preamble to the proposed rule (67 FR 54767, August 26, 2002). This restructuring is intended to have no effect on existing regulations implementing the Area 2A Catch Sharing Plan.
Comment 18: The proposed monitoring plan would identify harvest at the level of IPHC regulatory areas, which would not provide the level of resolution needed to develop a Local Area Management Plan (LAMP). Data collection for subsistence harvests would be more useful at a higher level of resolution, e.g., groundfish statistical area.
Response: NMFS disagrees that subsistence harvest data should be reported geographically at the level of the ADF&G groundfish statistical areas for the same reasons presented in response to comment 1. NMFS agrees, however, that management questions may arise that will require more detailed information as to the locality of subsistence harvests than is provided at the level of IPHC regulatory areas. Start Printed Page 18149 Therefore, NMFS may refine the survey instrument to serve this purpose.
Comment 19: Subsistence harvesters should be required to possess a registration certificate while conducting subsistence fishing to provide enforcement staff with a means to directly verify the eligibility of a fisher on the water.
Response: NMFS agrees that the term “possess,” as used in the proposed rule at sections 300.65(h) and section 300.66(e), did not clearly indicate if a subsistence fisher would be required to have his or her registration certificate physically present while conducting subsistence halibut fishing. Therefore, this rule clarifies the meaning of “possess” by requiring a registration certificate to be made available for inspection by an authorized officer during a subsistence halibut fishing trip (see response to comment 12).
Comment 20: Allowing subsistence halibut in a commercial buying or processing plant presents an unacceptable risk of subsistence fish getting into the commercial market. Subsistence halibut should not be allowed on the premises of commercial fish buyers, with the exception of the existing practice of landing small halibut with Area 4D and Area 4E CDQ fish and landed within a port in those areas.
Response: The risk of subsistence halibut getting into the commercial market also was a concern of the Council's in developing its subsistence policy. As discussed in the preamble to the proposed rule, the Council recommended prohibiting customary trade of subsistence halibut on the premises of commercial fish buying operations. The preamble discussion of this issue noted three exceptions to this prohibition. One was the exception noted in the comment. Another was an exception for a commercial fish buyer who is eligible to harvest subsistence halibut. And the third was an exception for using commercial fish processing facilities to process subsistence products. A related Council recommendation was to prohibit subsistence halibut that was exchanged in customary trade from entering commerce at any point. That is, subsistence halibut given away or bartered by the fisher who caught it, could not be subsequently sold or otherwise enter the commerce market. Due to the significance of this risk, NMFS specifically requested comments on how best to give effect to the intention of preventing movement of subsistence halibut into the commercial sector.
Neither of these prohibitions were explicitly stated in the proposed rule prohibitions. Language in proposed section 300.66(j), however, was designed to incorporate both of the Council's recommended prohibitions by stating that it would be unlawful to “retain or possess subsistence halibut for commercial purposes, cause subsistence halibut to be sold, bartered or otherwise enter commerce or solicit exchange of subsistence halibut for commercial purposes”. The exception for Area 4D and Area 4E fishers to land small halibut with harvests of CDQ halibut is included in the prohibitions section 300.66(h). This regulatory language likely will be sufficient to enforce against the movement of subsistence halibut into commerce without complicated exception language.
Comment 21: The proposed subsistence program is significantly more permissive than is currently allowed under existing regulations. Hence, the rule would allow subsistence harvesters to significantly increase their fishing power which will likely lead to greater subsistence harvests than occur at present. This underscores the need for effective monitoring programs and more comprehensive reporting than is presented in the proposed rule.
Response: Previously, without the provisions of this rule, subsistence halibut harvesting fishing could occur legally only under authority of IPHC sport fishing regulations which allow a daily catch limit per person of two halibut (annual management measures section 24(2), published at 67 FR 10989, March 7, 2003). Alternatively, subsistence halibut may have been taken illegally or taken as commercial harvest. In any case, information about subsistence halibut harvests was likely biased because subsistence fish may have been double counted as subsistence and sport halibut harvest, counted as commercial harvest or not reported at all because it was harvested illegally. Hence, the presumption that subsistence harvests of halibut will be significantly increased under this rule because it allows fishers to harvest up to 20 fish per day instead of two fish per day is not necessarily correct.
The subsistence fishery is expected to be self limiting because subsistence fishers typically harvest no more than they need to satisfy food needs. To harvest more than that simply because they can would be wasteful of the resource, their time and effort. Allowing subsistence fishers to harvest more fish in a day than they would be able to legally under current sport fishing rules will allow subsistence fishers to be more efficient, spending fewer days fishing to satisfy food needs, and will foster compliance with fishery management regulations. Although it is true that legal subsistence fishing power will be enhanced by this rule, NMFS does not assume that this enhancement will automatically lead to significantly larger subsistence harvests. The subsistence harvest of halibut is expected to be roughly one percent of the total take of halibut by all sources of fishing mortality, substantially less than the sport harvest of halibut. Of course, effective monitoring of this harvest, like any authorized harvest of halibut, is important. The monitoring system that NMFS intends to implement will be sufficiently comprehensive to monitor the relative magnitude of this fishery, and will likely produce far more reliable information about the total subsistence harvest of halibut in Alaska than is currently available.
Comment 22: Commercial fishing for halibut will be harmed by the subsistence rules. If only 10 percent of the people eligible to do subsistence fishing for halibut take their daily quota of 20 fish twice a year, then about 15 million pounds of halibut will be taken by subsistence fishers. The 30-hook limit will likely take between one-third and one-half of the IPHC Area 2C commercial catch limit. Please consider reducing the hook limit to eight and reconsider the rules if the subsistence harvest exceeds a given percentage of the commercial catch limit.
Response: The purpose of this action is to authorize a fishery for the customary and traditional use of halibut. Although in certain localized parts of the IPHC regulatory areas, subsistence fishing for halibut may compete with commercial and sport fishing for halibut, this action is not intended to constitute a large-scale allocation of the halibut resource away from either the commercial or sport fisheries to the subsistence fishery. Such an allocation is not likely because subsistence fishers are not likely to harvest all of the halibut permitted under these rules. The subsistence halibut fishery is expected to be limited more by the amount of halibut that can be used in a customary and traditional manner than by the catch and hook limits imposed by this rule.
Of course, the subsistence halibut harvest also will not likely be evenly distributed, and some areas may experience higher subsistence harvest rates than others. These areas are likely to be near the larger communities in IPHC Areas 2C and 3A. In response to these concerns, the Council, in April 2002, adopted recommendations to Start Printed Page 18150reduce the harvest and hook limits in certain parts of these areas. These and other recommendations made by the Council at that time are under review and proposed implementing rules will be published in the Federal Register for public comment.
Comment 23: The commercial fishing fleet has not been adequately informed and represented in forming the proposed subsistence rules.
Response: The Council took up the issue of subsistence halibut initially in December 1996, and at 3 of its 5 meetings in 1997. In June 1997, the Council deferred action out of deference to the State of Alaska which was attempting to resolve subsistence issues generally with State legislation. After State action on subsistence did not occur, the Council revisited the halibut subsistence issue in October 1999, and scheduled further discussions and public comment on the alternatives under consideration throughout 2000. The Council addressed subsistence halibut at 4 of its 5 meetings in 2000, reviewing and revising alternatives for analysis and receiving public testimony at all meetings. In total, the Council discussed subsistence at 9 of its meetings. All of these meetings were advertised and open to the public. Many of the 11 voting Council members represent commercial interests in fisheries. In addition, the Council takes advice from its Halibut Subsistence Committee and Advisory Panel, which include members with commercial interests in fisheries, and comments directly from the public. Hence, members of the commercial fishing fleet, as any other member of the affected public, have had ample opportunity to involve themselves and influence the development of the subsistence policy implemented by this action.
Comment 24: Ninilchik should be listed as a rural community in section 300.65(f)(1). The Federal Subsistence Board has found Ninilchik to be a rural area and eligible for subsistence uses. With a 2002 census of about 772 persons, Ninilchik is much smaller than other communities that are listed as rural and would have minimal impact on the halibut resource.
Response: Ninilchik, Alaska is located on the Kenai Peninsula within the Anchorage-Matsu-Kenai non-rural or non-subsistence area as defined by the Alaska Joint Board of Fisheries and Game. In developing criteria for this and the other non-rural areas, the Council considered criteria established by the Federal Subsistence Board but instead chose to model its criteria on those used by the State for determining non-subsistence areas and rural areas in which a subsistence lifestyle may be practiced. Further, the Council specifically named the communities outside of the non-rural areas that it considered rural and to have a customary and traditional use of halibut. Ninilchik was not named as such a community, however, Ninilchik Village was named as one of the Alaska Native tribal entities with customary and traditional uses of halibut. This means that members of the Ninilchik Village Tribe may conduct subsistence fishing outside of any of the non-subsistence areas, but non-Native residents of Ninilchik may not participate in this fishery.
The Council recognized in recommending this action that some rural communities not explicitly named in its initial list may seek a finding of customary and traditional use of halibut and thereby secure subsistence eligibility for its non-Native residents. The Council specifically stated that such communities may petition the Council for such eligibility after it receives a finding of customary and traditional use of halibut from the appropriate State or Federal bodies. Hence, if the Federal Subsistence Board has made such a finding, then Ninilchik should proceed with petitioning the Council for inclusion as a rural community with a customary and traditional use of halibut. If the Council agrees with the petition and recommends such inclusion, NMFS will review the recommendation and publish a proposed rule to change the list of rural communities contained in this action.
Comment 25: As a life-long subsistence fisher, the commentator favors the proposed subsistence rules as written.
Response: NMFS notes this support.
Comment 26: What is customary trade? Customary means what Native people have done throughout their history. Customary is traditional and traditional means traditional ways of the Alaska Native Indian, and does not include (non-Native) rural communities. Tradition means since the beginning; rural is less than a century. Rural is not customary. Whenever something is done to benefit Alaska Natives, it either gets loaded up with stipulations or gets offered to non-Natives as well. Non-Alaska Natives have no subsistence rights because Alaska is not their ancestral land.
Response: Customary trade is defined in this rule as “the non-commercial exchange of subsistence halibut for money or anything other than items of significant value.” The term describes the customary and traditional use of halibut in barter for other foods or items necessary for the sustenance of the fisher, his family and community. For example, subsistence halibut may be traded for moose meat, wild berries, fish roe, or other food items collected by other people who have a subsistence lifestyle. This practice represents a natural tendency toward efficiency in organizing human work. Those persons who are particularly talented at catching fish typically would supply the fish for their family and community while others particularly talented at hunting game, for example, would supply the meat. This sharing is not limited to foods but could extend to other goods and services also. When this subsistence economy combines with a cash economy as it does today, this traditional sharing of natural resources may involve a monetary payment to reimburse the harvester's expenses in return for subsistence food or services. For example, a subsistence fisher may receive a nominal payment for his vessel's fuel cost in return for the fish provided.
An important distinction between this type of subsistence bartering and commercial trading is that subsistence bartering does not necessarily increase the overall wealth of the individuals involved but provides for the long-term sustenance of both the harvester and person(s) receiving fish through barter. Commercial trading, however, assumes that at least one of the participating parties enjoys an increase in wealth or profit as a result of the trade, otherwise the trading would not occur or continue. Hence, commercial trading is motivated by profit seeking and wealth accumulation, while customary trade is motivated by a long-term need for basic survival.
Alaska Natives are recognized as having developed customary trade as an essential part of their subsistence lifestyle probably thousands of years before the first non-Natives started to populate what is now the State of Alaska. Of course, in these early years, all of this area was what would be considered now as rural, and many non-Alaska Natives adopted the subsistence lifestyle also as a means of survival. Hence, the conditions that cause or lead to a subsistence lifestyle are based as much on living in a rural setting with relatively few or limited commercial sources for food as they are based in Alaska Native culture. For this reason, the Council determined that persons who live in rural communities with customary and traditional uses of halibut should be equally eligible to harvest subsistence halibut with persons Start Printed Page 18151who are members of Federally recognized Alaska Native tribes that have customary and traditional uses of halibut. NMFS has agreed with this Council policy. Other persons, Native and non-Native, will not be granted this subsistence fishing privilege.
The conditions and constraints on subsistence halibut fishing imposed by this rule are relatively modest compared to the total population of persons eligible for a subsistence halibut fishing privilege. They are designed to be unintrusive and reasonably balanced with other uses of fishery resources while providing recognition of a fishery and use of halibut that historically extends back in time long before the present.
Comment 27: The limit of $400 per year on customary trade is too limiting. Non-Natives do not live on $400 per year.
Response: The purpose of the monetary limit on customary trade is to allow subsistence fishers to be nominally reimbursed for their expenses in supplying subsistence halibut to their community without that reimbursement being considered a commercial transaction. The Council recommended and NMFS approved the $400 limit on cash exchanges in customary trade of subsistence halibut as a reasonable balance between no cash exchanges being allowed and higher limits that suggest significant economic value to, and possibly commercial enterprise in, subsistence halibut. Neither Alaska Natives nor non-Natives are expected to be able to make a living in an economic sense by harvesting subsistence halibut. Anyone intending to make a living by fishing for halibut may do so by entering the commercial IFQ fishery (or the CDQ fishery in the Bering Sea) for halibut.
Comment 28: The commercial IFQ fishers are not constrained by hook and daily bag limits so why should subsistence fishers have 30-hook and 20-fish per day limits. Commercial halibut fishers are allowed a percentage of sablefish bycatch. Subsistence halibut fishers also should be allowed to retain a percentage of sablefish as this species has been a part of the Native diet and customary trade throughout history.
Response: Commercial IFQ fishers are constrained by fishing gear and harvest restrictions. A basic tenant of the IFQ rules is that an IFQ fisher must not harvest more halibut than is specified on his or her IFQ permit. Although IFQ fishers may not be constrained by a daily harvest limit, they are constrained by the total amount of halibut they may harvest in a year. Likewise, commercial halibut fishers must not retain other species of fish that are taken incidental to halibut unless they have a permit and authority to do so. For sablefish, this would be sablefish IFQ. Similarly, subsistence halibut fishers may retain species caught incidental to halibut to the extent they are authorized to do so by State of Alaska and other Federal agencies that manage the subsistence harvests of other species.
Comment 29: In response to the NMFS request for comment on how best to prevent movement of subsistence halibut into the commercial sector (67 FR 54770), NMFS should consult with affected tribal governments and users. NMFS is commended for engaging in meaningful tribal consultation on development of the proposed rule and this consultation should be continued.
Response: NMFS notes this support and reiterates its intent to continue consultation with Alaska Native tribal representatives on subsistence halibut management issues pursuant to guidance and requirements under Executive Order (E.O.) 13175 and other applicable law.
Comment 30: Mandatory registration is not necessary, particularly in remote areas (i.e., IPHC Areas 3B, 4A, 4B, 4C, 4D, and 4E), either to identify eligible tribal subsistence users or for gathering harvest information. A tribal identification card would suffice to prove eligibility. Cooperative agreements between NMFS and tribes for harvest information is the best way to collect harvest data. If registration is necessary in some areas, the regulations appear to provide an avenue to minimize this burden on tribal subsistence users through cooperative agreements with tribes. NMFS should extend the time for re-registration to well beyond 4 years.
Response: The principal purpose of the registration system is to provide a basis for collecting information on participation and harvest in the subsistence halibut fishery. A secondary purpose is to distinguish between persons who are eligible and persons who are not eligible to harvest subsistence halibut. Although most persons in remote areas likely will be eligible, for data collection purposes, these subsistence fishers should be in the registration system along with those from less remote areas.
NMFS considered the option of relying on tribal identification cards to demonstrate the eligibility of subsistence halibut fishers who are members of Federally recognized Alaska Native tribes with customary and traditional use of halibut. Other non-Native residents of the specified rural communities who also would be eligible to harvest subsistence halibut would not necessarily have tribal identification cards. Therefore, a single SHARC that would be used by all eligible fishers would be more efficient for distinguishing eligible from non-eligible persons. NMFS intends to cooperate with tribal and other entities to distribute information and forms that will facilitate registration. As explained in the preamble to the proposed rule, NMFS will determine the eligibility of each applicant for a SHARC. The reason for limiting the duration of a registration is to keep the list of registered individuals limited to those who actually intend to harvest subsistence halibut and to maintain current contact and address information. Although an Alaska Native tribal member may be eligible to fish for subsistence halibut throughout his or her life, he or she may choose not to participate in the fishery during various periods of his or her life. For example, the very young and the very old may not be personally involved in harvesting subsistence halibut. In that event, a lapsed registration would indicate no participation in the fishery and therefore no need to participate in the subsistence halibut harvest survey. An eligible individual's lapsed registration could be renewed at any time thereby indicating that the individual should be included in the survey. Longer periods of registration validity would produce a larger universe of registered persons who are no longer actual participants in the fishery.
Comment 31: Although a voluntary reporting system and authority to enter into cooperative agreements with affected tribes is good, it is not clear why the harvest survey would require information about the subsistence fisher's identity. Due to a long history of government suppression of tribal subsistence practices, some tribal subsistence fishers may resist complying with surveys that require such personal identification. For example, a community harvester may be reluctant to disclose his full harvest if he expects that doing so will, by comparison with sport harvesters, bring negative attention to his practice of supplying subsistence food for his community. Tribes could provide NMFS and the IPHC with complete and accurate harvest information without identifying the particular tribal members who did the harvesting. NMFS should modify the regulations to allow for, but not require, identification of individual harvesters in the harvest survey.
Response: Personal identification information is needed on the survey form to prevent confusion of harvest Start Printed Page 18152information supplied by persons with the same or similar names. It prevents double counting or not counting some harvest data. NMFS is sensitive to the need for confidentiality of personal identification data and data about the volume and location of subsistence harvests. Existing State and Federal confidentiality laws and regulations effectively prevent revealing harvest data, whether supplied by individual commercial, sport, or subsistence fishers. Published reports of subsistence harvest data will contain only aggregated information which will not indicate the harvests of any particular fisher. Nevertheless, NMFS intends to continue consultation with Alaska Native tribal representatives to resolve any questions of confidentiality.
Comment 32: Figure 1 of the proposed rule mistakenly portrays the Sitka Sound LAMP area as a “non-subsistence area.” This is not consistent with the Council's action or the description of the four non-rural areas in the proposed regulatory text.
Response: This inadvertent error in Figure 1 is corrected in this rule.
Comment 33: In the proposed regulatory text at section 300.65(g)(3) (67 FR 54776), the phrase “in any Commission regulatory area” could be interpreted to mean that subsistence halibut fishing would be prohibited from that part of Bristol Bay that is not included within an IPHC area.
Response: NMFS agrees that this phrase (used in several places in the proposed rule) unintentionally would have prevented subsistence halibut fishing in the closed area. This error is corrected in this rule (see also response to comment 16).
Comment 34: Although most Native subsistence halibut users support fully the collection of harvest information necessary to the health and conservation of halibut stocks, modification to the proposed rules is necessary to lessen the burden on tribal harvesters and result in better information. Cooperative agreements with the affected tribes that maximize their participation in registering and collecting harvest information is essential to the success of this program.
Response: NMFS has made every effort to minimize the reporting burden of information collected on the harvest survey forms, as is required by the PRA (see also response to comment 1). Further, NMFS agrees that cooperation with the Alaska Native tribes affected by this rule is essential to assure high quality information from the subsistence halibut harvest survey. Tribal entities could, for example, assist with this effort by cooperating on the registration process and providing corroborating information that could verify or contest preliminary survey data. NMFS intends to continue consulting with Alaska Native tribal representatives with a view toward enhancing the quality of subsistence harvest data.
Comment 35: Thirty hooks per skate and 20 halibut per day is a reasonable limit for subsistence halibut harvest. The latest Council action on subsistence, however, would seriously restrict subsistence halibut harvest in the Sitka LAMP area. This action has caused concern among Sitka Natives.
Response: The latest Council action on subsistence was taken in April 2002, which will be addressed in a separate proposed rule and considered by NMFS separately from this rule.
Comment 36: No significant difference in harvest numbers will occur when subsistence halibut harvest is legalized in Sitka Sound. The Sitka Tribe proposes to collect data and assist with administering of the subsistence halibut permit system.
Response: NMFS notes this forecast of subsistence halibut harvest and welcomes the cooperation of the Sitka Tribe.
Comment 37: NMFS has made significant effort to consult with Native tribes in the development of the subsistence halibut proposed rule. Although subsistence halibut fishing will be open to all rural residents, it is important to recognize the unique relationship that tribal governments have with the Federal government. The subsistence rules should include a section on meaningful tribal consultation and reiterate the commitment of NMFS to continue consulting and working cooperatively with Alaska tribes on regulatory and other issues related to the subsistence halibut fishery. Establishing cooperative agreements with the affected tribes for harvest data collection, issuing permits, monitoring and research of subsistence halibut stocks and generally including tribes in the management and decision-making process will strengthen the overall management effort.
Response: NMFS agrees that cooperating with the affected Alaska Native tribes will foster trust between the agency and subsistence fishers and generally assure the success of the subsistence halibut program. In developing its subsistence policy, the Council specifically recommended cooperative agreements with tribal, State and Federal governments for harvest monitoring and general oversight of issues affecting subsistence halibut fishing. NMFS intends to follow the Council's guidance. As already noted, the agency consulted with Alaska Native tribes in the development of the proposed rule. NMFS also has implemented contracts with the Rural Alaska Community Action Program (RurALCAP) for purposes of consulting with Alaska Native representatives and with the Subsistence Division of ADF&G for subsistence harvest survey and estimation. As this program is launched, NMFS likely will need the cooperation of the affected tribal entities to distribute information about registration, reporting harvest information, and general compliance with the rules which may be best achieved through ongoing consultation with the affected tribes.
Comment 38: Although registration of subsistence halibut fishers could be a valuable management tool it should not be mandatory. A tribal identification card issued to each member of a tribe authorized to conduct subsistence fishing should be considered adequate documentation of eligibility. Cooperative agreements with the tribes would allow them to provide harvest data and to identify eligible subsistence fishers who are not members of the tribe.
Response: NMFS discussed this question at length among its divisions that would be involved in implementing the subsistence rules and with other agencies. Ultimately, the agency decided that a mandatory registration system was preferred primarily so that information on participation and harvest could be collected in a uniform and comparable manner. As discussed in the preamble to the proposed rule, the primary objective of the mandatory registration system is to provide a basis for surveying the harvest of subsistence halibut. NMFS has no intention of using the registration system as a means to prevent otherwise eligible persons from fishing for subsistence halibut. A secondary purpose of the registration system is to distinguish between persons who are eligible to fish for subsistence halibut and those who are not eligible to do so.
Comment 39: Requiring a subsistence fisher's identity, date of birth, etc., as part of the harvest survey is not necessary and could be counter productive. Based on tribal experience in conducting subsistence harvest surveys, collecting accurate data is enhanced by not requesting personal information. Alternatively, the affected tribes could provide NMFS and the IPHC with full and accurate harvest information without identifying a tribal member that harvested fish or linking him or her to a particular amount of fish harvested. The research design and Start Printed Page 18153survey instrument for collecting traditional subsistence harvest data should be left up to each individual tribe.
Response: NMFS has made every effort to minimize the amount of information collected on the harvest survey forms, as is required by the PRA (see response to comment 1). Identifying information about the subsistence fisher is required only to the extent necessary to prevent confusing the harvests of persons with the same or similar names. The data collected on subsistence halibut harvests will be aggregated for purposes of reporting to the public. Existing State and Federal confidentiality standards will be strictly complied with to prevent the harvests of individual fishers from becoming generally available. Commercial halibut and sport halibut harvest data are held to the same standards of confidentiality. NMFS is hopeful that further cooperation with affected fishers and explanation of the survey design and data handling techniques will demonstrate that the risk of a confidentiality breach by a cooperating State or Federal agency is low. The relative accuracy and comparability of subsistence halibut harvest estimates will be increased to the extent that the same survey methods are used comprehensively. Relying on a variety of survey instruments and methodologies, such as may happen if each tribe developed its own harvest estimation technique, would prevent comparison of subsistence halibut harvest rates among different areas.
Comment 40: The creation of a new subsistence halibut fishery would create another special user group with unequal rights to harvest resources that belong to all Alaskans. The fishery should be open to all Alaskans, without regards to racial origin or place of residence.
Response: The halibut resource is, in fact, open to all persons in some respect, and this action does not limit existing public access to the resource. For example, anyone with a State sport fishing license, may sport fish for halibut and retain two fish per day. Any U.S. citizen may participate in the commercial halibut IFQ fishery off Alaska if he or she meets the criteria and receives an IFQ allocation. Likewise, the subsistence fishing authority provided by this action may be enjoyed by anyone who is or becomes a resident in one of the rural communities with customary and traditional uses of halibut listed in this rule. The other group of persons eligible to conduct subsistence halibut fishing are members of Federally recognized Alaska Native tribes with customary and traditional uses of halibut. Participation in the subsistence halibut fishery as a member of this group may not be possible to anyone except by chance of birth or adoption, but this is not a new user group of the halibut resource. The ancestors of this group have used this resource, among others, for sustenance for thousands of years before the first non-Alaska Natives appeared in Alaska and began to do likewise. Although this action provides for a special subsistence harvesting privilege for certain individuals and not for others, it does not create a new user group and will likely not significantly affect the harvesting privileges of other users of the resource. Essentially, this action formally recognizes the long term practice of using the halibut resource for subsistence purposes as being as equally valid a use as are the commercial and sport uses.
Comment 41: NMFS is commended for proposing these rules to apply in Alaska. The Alaska National Interest Lands Conservation Act recognizes subsistence, but discriminates against Natives based on where they live and not the lifestyles they lead. The subsistence rules are a step in the right direction.
Response: NMFS notes this support.
Comment 42: The number of hooks allowed to be used by a subsistence fisher should be increased if that person is proxy fishing.
Response: This rule is silent on proxy fishing, a formal mechanism to allow fishing on behalf of another person. The Council purposely avoided issues pertaining to proxy fishing by providing for relatively liberal hook and harvest limits. In developing this policy, the Council understood that a subsistence halibut fisher would likely share his harvest with others and, therefore, proxy fishing was not deemed to be necessary.
Comment 43: The Alaska Department of Fish and Game should not play any part in the enforcement of these rules because ADF&G enforcement has demonstrated minimal sensitivity to people living in a rural setting.
Response: These rules, like other halibut fishery management rules, may be enforced by any authorized officer. The term “authorized officer” is defined, with respect to fishing off Alaska, to mean ”...any State, Federal, or Provincial officer authorized to enforce these regulations including but not limited to, the National Marine Fisheries Service,...Alaska Division of Fish and Wildlife Protection,...[and the] United States Coast Guard...” (67 FR 12885, March 20, 2002).
Changes From the Proposed Rule
NMFS invited public comment on the proposed rule implementing the subsistence halibut program from August 26, 2002, through September 25, 2002 (67 FR 54767, August 26, 2002). The 43 comments received are summarized and responded to above. Several of these comments made technical suggestions or pointed out errors in the proposed rule with which NMFS agrees. Hence, NMFS has changed regulatory text in this action from what was published in the proposed rule. All of these changes are of a technical nature that correct errors in the proposed rule, improve the effectiveness of the rules, or improve their parity with the Council's intent and regulations developed by the IPHC. None of these make substantive changes to the subsistence halibut management program described in the preamble to the proposed rule. These changes are identified and explained as follows.
1. The proposed rule text in several places described the general area in which subsistence halibut fishing would occur in waters in and off Alaska. Although the context in each instance varied, the implication of phrases like “Commission regulatory area” or the naming of regulatory areas was that subsistence halibut fishing could occur only in Commission regulatory areas in waters in and off Alaska and nowhere else in waters in and off Alaska. The proposed rule failed to recognize that an area closed to commercial halibut fishing in the Bering Sea is defined by IPHC regulations to be outside of any of the Commission regulatory areas that are in waters in and off Alaska (see annual management measures at sections 6 and 10 (68 FR 10989, March 7, 2003)).
Any implication that subsistence halibut fishing also should not occur in the closed area was wrong and unintentional. The Council never indicated that intent, and the IPHC regulations make clear that the closed area applies only to commercial halibut fishing. This error was pointed out in comments 16 and 33. The error was found in the proposed rule text in: the definitions of “sport fishing” and “subsistence” at § 300.61, the heading at § 300.65, § 300.65(g)(3), § 300.65(g)(4), § 300.65(g)(4)(iii), and § 300.65(h). In this rule, with one exception, the phrase “Commission regulatory area” was removed from these places. The exception is at § 300.65(g)(4)(iii) where the phrase “or the Bering Sea closed area” is added to maintain the intended context.Start Printed Page 18154
2. The proposed regulatory restructuring at § 300.63 erred by including obsolete text in paragraph (b). The purpose of this restructuring, detailed more completely in the preamble of the proposed rule, is to better distinguish halibut fishery management measures that are applicable to IPHC Area 2A from those that are applicable to waters in and off Alaska. Until now, these management measures, all of which were developed by either the Pacific Fishery Management Council or the North Pacific Fishery Management Council under authority of the Halibut Act and approved by NMFS, have been implemented primarily by regulations at § 300.63. The addition of these subsistence rules would make this section structurally too cumbersome. This action will distinguish Area 2A management measures from those applicable to waters in and off Alaska by moving the “Alaska” provisions formerly in § 300.63 to a revised § 300.65 and a new § 300.66 (prohibitions).
This restructuring is intended to have no effect on the Area 2A management measures. To avoid confusion in the amendatory text of each instruction in the proposed rule, the full text of each paragraph in § 300.63 was reiterated in the proposed rule. Unfortunately, some of that text was obsolete by the time the proposed rule was published. If that mistake were repeated in this final rule, it would unintentionally undermine the halibut fishery management program in Area 2A. Hence, to avoid that mistake, this final rule does not attempt to republish existing regulatory text in § 300.63 pertaining to Area 2A because it may be changed again before this final rule becomes effective. Only revised text in the introductory paragraph (which is redesignated as paragraph (a)) is published in this final rule and unrevised text in former paragraph (a) or redesignated paragraph (b) is indicated by 3 stars.
3. Comment 32 indicated that Figure 1 mistakenly depicts Sitka Sound as a non-rural area in which subsistence fishing would be prohibited. Based on the description of the four non-subsistence areas in the preamble to the proposed rule and the proposed rule text, Figure 1 in the proposed rule is clearly wrong. This was caused by a technical error in transferring graphic data files for publication and was not meant to add a new non-subsistence area not otherwise described and explained. This technical mistake is corrected in this action by publishing Figure 1 as originally intended. Figure 1 is not substantially different from the previously existing Figure 1 in § 300.65 and its purpose is to depict the boundaries of the Sitka Sound LAMP. It is republished in this rule as part of the restructuring of regulatory text described in the preamble to the proposed rule in which the text description of the Sitka Sound LAMP is moved from § 300.63(d) to § 300.65(d).
A separate but related change in the proposed rule is made to correct an inadvertent error in the text description of the Sitka Sound LAMP. Due to a drafting oversight in the proposed rule text at § 300.65(d)(1)(i)(C), Cape Edgecumbe was incorrectly described at 57° 59' 54” N. latitude, 135° 51' 27” W. longitude. Although this was the coordinate originally published in the LAMP implementing rule, it was later corrected to be 56° 59' 54” N. latitude, 135° 51' 27” W. longitude (66 FR 36208, July 11, 2001). Hence, this rule makes a technical change to include the correct coordinate for Cape Edgecumbe.
4. The limitation on using more than 30 hooks on fishing gear to harvest subsistence halibut applies to each authorized subsistence halibut fisher. This limitation was clear in the Council's recommendation and was clear in the preamble to the proposed rule. The regulatory text published in the proposed rule, however, was not clear. This lack of specificity and potential ambiguity in the proposed regulatory text was pointed out in comment 4. Hence, the regulatory text at § 300.65(g)(1)(i) is changed from the proposed rule to clarify that the hook limitation applies to each person eligible to conduct subsistence halibut fishing under this rule.
5. A minor technical change was suggested in comment 5 to require setline gear used for subsistence halibut fishing to be identified as such by including an “S” on the buoys marking the gear. This labeling requirement is in addition to the name and address of the fisher. This additional marking requirement is intended to help distinguish subsistence halibut fishing gear from commercial halibut fishing gear, to which a hook limit does not apply.
6. Another technical change in the harvest survey instrument, based on recommendations in comments 1 and 18, would provide a finer level of geographic specificity than the IPHC regulatory area. This specificity is desirable to be able to respond to potential grounds preemption and allocation questions that may arise in the future. Hence, NMFS changed the regulatory text at § 300.65(h)(4) from what was published in the proposed rule to include the local water body where subsistence halibut harvests were made in the harvest survey. A local water body would be, for example, Sitka Sound (in Area 2A), Kachemak Bay (in Area 3A), or Beaver Inlet (in Area 4A).
7. The proposed rule at §§ 300.65(h) and 300.66(e) indicates that a subsistence halibut fisher must possess a valid SHARC before he or she begins subsistence halibut fishing. The term “possess” was meant to indicate that a subsistence halibut fisher must have the SHARC physically with him or her while fishing. Comments 12 and 19 note, however, that this meaning is not necessarily clear. Hence, NMFS changed text from the proposed rule at § 300.66(e) to clarify the original intent of being able to document authority to conduct subsistence halibut fishing while fishing for subsistence halibut. This clarification is made by requiring a valid SHARC to be available for inspection by an authorized officer.
Making this clarifying change in this rule is consistent with the rationale for the registration system given in the preamble to the proposed rule. Although the primary purpose for requiring the registration of subsistence halibut fishers is to provide the basis for collecting subsistence halibut harvest data, an important secondary purpose is to be able to distinguish between those persons who are eligible to fish for subsistence halibut and those who are not eligible. Although possession of a registration certificate on a vessel conducting subsistence halibut fishing is not necessary for the first purpose, it is necessary for the second purpose.
8. The proposed rule preamble (67 FR 54770, column 2, last paragraph) described the SHARC as being valid for either 2 or 4 years depending on a person's basis for being eligible for a SHARC as a resident of a specified rural community or member of a specified Alaska Native tribe, respectively. The preamble also described the rational for a multi-year SHARC and reason for having different expiration periods. Due to a drafting oversight, however, the regulatory text of the proposed rule failed to specifically provide for denominating SHARCs with dates of eligibility. Therefore, this action corrects that oversight with language at section 300.65(h)(3) that allows NMFS to specify on the certificate the period of time during which the SHARC will be valid. This new regulatory text also clarifies that persons eligible to harvest subsistence halibut may renew their SHARCs that are expired or will soon (within 3 months) expire by following the specified registration procedures. This change is consistent with the explanation and rationale of the Start Printed Page 18155subsistence halibut registration system given in the preamble to the proposed rule and as contemplated in the response to comments 13 and 30 above.
9. Section 300.65(g)(1) describes the type of gear to be used for subsistence halibut fishing. The proposed rule contained a typographical error using the word “jigging” to describe jig gear. Because this section lists gear types and not activities, the word “jigging” in the proposed rule is changed to “jig” in the final rule. This correction does not substantively change the requirements of this paragraph, only corrects a grammatical error.
10. Section 300.65(h)(2) describes the registration process for subsistence halibut fishing. The proposed rule stated that a person may submit an application to a cooperative Alaska Native tribal government or other entity designated by NMFS or directly to NMFS. Only NMFS has the authority to register participants in the subsistence fishery. Application may be submitted to a cooperative Alaska Native tribal government or other entity designated by NMFS which may forward the applications to NMFS for registration. The text in § 300.65(h)(2) is corrected in the final rule to indicate that the cooperative Alaska Native tribal government or other entity designated by NMFS will forward the applications to NMFS. This correction will ensure that participants understand that the application must ultimately arrive at NMFS to complete the registration process. This correction does not substantively change the requirements of this section, only clarifies the area of responsibility in the registration process.
11. Section 300.66 is changed from the proposed rule in the final rule by adding paragraph (j) that prohibits the filleting, mutilating, or disfiguring of subsistence halibut. This prohibition is consistent with prohibitions already in place for commercially and sport caught halibut and is necessary to allow the counting of subsistence halibut to determine compliance with the bag limits at 50 CFR 300.65(g)(2). The fish can not be counted if they are filleted, mutilated, or disfigured. Therefore, compliance with the bag limits are enforceable only with this prohibition.
12. Section 300.65(g)(3)(iii) is changed from the proposed rule by substituting the word “excludes” for the word “includes.” This change makes this paragraph of the regulatory text consistent with Figure 4. This paragraph describes the Anchorage/Matsu/Kenai non-subsistence area in Cook Inlet which is depicted in Figure 4. The description of this non-subsistence area is based on the existing definition in the Alaska Administrative Code at 5 AAC 01.555(b), May 14, 1993. In the State regulation, the Tyonek Subdistrict is excluded from the Anchorage/Matsu/Kenai non-subsistence area as it is correctly depicted in Figure 4. The text of the proposed rule at section 300.65(g)(3)(iii), however, indicated that the Tyonek Subdistrict would be included in the Anchorage/Matsu/Kenai non-subsistence area, although this text was not explicitly labeled as the Tyonek Subdistrict. Changing “included” in the proposed rule to “excluded” in this final rule corrects the inconsistence between the regulatory text and Figure 4. The regulatory text that specifies the Tyonek Subdistrict is further labeled as such by adding “Tyonek Subdistrict” in parentheses to further clarify the regulatory text with Figure 4.
This change from the proposed rule will have no practical effect because halibut are not typically found within the Tyonek Subdistrict due to the high silt content of the water in that part of Cook Inlet. Hence, Tyonek is not a community with customary and traditional uses of halibut and is not listed in section 300.65(f)(1).
13. The proposed rule at 300.65(f)(2) identified persons eligible to harvest subsistence halibut if he or she is a member of an Alaska Native tribe as identified in the table. The proposed rule contained a typographical error in Halibut Regulatory Area 4E, identifying “Nuna Iqua” under the Sheldon Point Tribal Headquarters to describe “Nunam Iqua”. Similarly, the Organized Tribal Entity for that Headquarters was identified as “Native Village of Sheldon's Point”, instead of “Native Village of Sheldon Point”. These errors are corrected in this final rule. This correction does not substantively change the requirements of this paragraph, only corrects a typographical error.
14. Section 600.725 describes the authorized gear types to be used for the Pacific halibut fishery. The proposed rule contained a typographical error using the word “jigging” to describe jig gear under paragraph C. Because this section lists authorized gear types, and not activities, the word “jigging” in the proposed rule is changed to “jig” in the final rule. This correction does not substantively change the requirements of this paragraph, only corrects a grammatical error.
This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under control number 0648-0460. These requirements and their associated burden estimates per response are: 10 minutes for Subsistence halibut registration; 30 minutes for Subsistence halibut harvest report/survey; and 15 minutes for Subsistence halibut gear marking. These response times include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a 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.
This rule has been determined to be not significant for purposes of E.O. 12866.
In developing this rule, NMFS consulted with Alaska Native tribes, as defined in this rule, pursuant to E.O. 13175. This consultation was conducted through direct mailings to the affected tribes, meetings with the Alaska Native Subsistence Halibut Working Group organized by the Rural Alaska Community Action Program to represent all Native subsistence halibut users, and public meetings of the Council and its advisory bodies including the Halibut Subsistence Committee.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. No regulatory flexibility analysis (RFA) was prepared. No comments or new information were received during the comment period that caused us to reevaluate the basis for the original determination, or to prepare a RFA.Start List of Subjects
List of Subjects
- Reporting and recordkeeping requirements
- Reporting and recordkeeping requirements
Dated: April 2, 2003.
Deputy Assistant Administrator for Operations, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 300, 600, and 679 are amended as follows:End Amendment Part Start Part
PART 300—INTERNATIONAL FISHERIES REGULATIONS, SUBPART E PACIFIC HALIBUT FISHERIESEnd Part Start Amendment Part
1. The authority citation for 50 CFR part 300, Subpart E, continues to read as follows:End Amendment Part Start Amendment Part
2. In § 300.61 new definitions for “Alaska Native tribe,” “Commission,” “Commission regulatory area,” “Customary trade,” “Rural,” “Rural resident,” “Subsistence,” and “Subsistence halibut,” are added in alphabetical order, and existing definitions for “Commercial fishing,” “IFQ halibut,” and “Sport fishing” are revised to read as follows:End Amendment Part
Alaska Native tribe means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, a Federally recognized Alaska Native tribe that has customary and traditional use of halibut and that is listed in § 300.65(f)(2) of this part.
Commercial fishing means fishing, the resulting catch of which either is, or is intended to be, sold or bartered but does not include subsistence fishing.
Commission means the International Pacific Halibut Commission.
Commission regulatory area means an area defined by the Commission for purposes of the Convention identified in 50 CFR 300.60 and prescribed in the annual management measures published pursuant to 50 CFR 300.62.
Customary trade means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, the non-commercial exchange of subsistence halibut for anything other than items of significant value.
IFQ halibut means any halibut that is harvested with setline or other hook and line gear while commercial fishing in any IFQ regulatory area defined at § 679.2 of this title.
Rural means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, a community or area of Alaska 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, and that is listed in § 300.65(f)(1).
Rural resident means, for purposes of the subsistence fishery for Pacific halibut in waters in and off Alaska, a person domiciled in a rural community listed in the table in § 300.65(f)(1) of this part and who has maintained a domicile in a rural community listed in the table in § 300.65(f)(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.
Sport fishing means:
(1) In regulatory area 2A, all fishing other than commercial fishing and treaty Indian ceremonial and subsistence fishing; and
(2) In waters in and off Alaska, all fishing other than commercial fishing and subsistence fishing.
Subsistence means, with respect to waters in and off Alaska, the non-commercial, long-term, customary and traditional use of halibut.
Subsistence halibut means 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.
3. In § 300.63, the section heading is revised; paragraphs (b), (c), (d), and (e) are removed; paragraph (a) introductory text is revised to read as follows; and paragraphs (a)(1) through (a)(5) are redesignated as paragraphs (b)(1), (b)(2), (b)(3), (b)(4), and (b)(5):End Amendment Part
(a) A catch sharing plan (CSP) may be developed by the Pacific Fishery Management Council and approved by NMFS for portions of the fishery. Any approved CSP may be obtained from the Administrator, Northwest Region, NMFS.
4. Section 300.65 is redesignated as § 300.66 and revised and a new § 300.65 is added to read as follows:End Amendment Part
(a) A catch sharing plan (CSP) may be developed by the North Pacific Fishery Management Council and approved by NMFS for portions of the fishery. Any approved CSP may be obtained from the Administrator, Alaska Region, NMFS.
(b) The catch sharing plan for Commission regulatory area 4 allocates the annual TAC among area 4 subareas and will be implemented by the Commission in annual management measures published pursuant to 50 CFR 300.62.
(c) A person authorized to conduct subsistence fishing under paragraph (f) of this section may retain subsistence halibut that are taken with setline gear in Commission regulatory areas 4D or 4E and that are smaller than the size limit specified in the annual management measures published pursuant to 50 CFR 300.62, provided that:
(1) The total annual halibut harvest of that person is landed in regulatory areas 4D or 4E; and
(2) No person may sell such halibut outside the limits prescribed for customary and traditional exchange of subsistence halibut prescribed at 50 CFR 300.66.
(d) The Local Area Management Plan (LAMP) for Sitka Sound provides guidelines for participation in the halibut fishery in Sitka Sound.
(1) For purposes of this section, Sitka Sound means (See Figure 1 to subpart E):
(i) With respect to paragraph (d)(2) of this section, that part of the Commission regulatory area 2C that is enclosed on the north and east:
(A) By a line from Kruzof Island at 57°20′30″ N. lat., 135°45′10″ W. long. to Chichagof Island at 57°22′03″ N. lat., 135°43′00″ W. long., and
(B) By a line from Chichagof Island at 57°22′35″ N. lat., 135°41′18″ W. long. to Baranof Island at 57°22′17″ N. lat., 135°40′57″ W. long.; and
(C) That is enclosed on the south and west by a line from Cape Edgecumbe at 56°59′54″ N. lat., 135°51′27″ W. long. to Vasilief Rock at 56°48′56″ N. lat., 135°32′30″ W. long., and
(D) To the green day marker in Dorothy Narrows at 56°49′17″ N. lat., 135°22′45″ W. long. to Baranof Island at 56°49′17″ N. lat., 135°22′36″ W. long.
(ii) With respect to paragraphs (d)(3) and (d)(4) of this section, that part of the Commission regulatory area 2C that is enclosed on the north and east:
(A) By a line from Kruzof Island at 57°20′30″ N. lat., 135°45′10″ W. long. to Start Printed Page 18157Chichagof Island at 57°22′03″ N. lat., 135°43′00″ W. long., and
(B) A line from Chichagof Island at 57°22′35″ N. lat., 135°41′18″ W. long. to Baranof Island at 57°22′17″ N. lat., 135°40′57″ W. lat.; and
(C) That is enclosed on the south and west by a line from Sitka Point at 56°59′23″ N. lat., 135°49′34″ W. long., to Hanus Point at 56°51′55″ N. lat., 135°30′30″ W. long.,
(D) To the green day marker in Dorothy Narrows at 56°49′17″ N. lat., 135°22′45″ W. long. to Baranof Island at 56°49′17″ N. lat., 135°22′36″ W. long.
(2) A person using a vessel greater than 35 ft (10.7 m) in overall length, as defined at 50 CFR 300.61, is prohibited from fishing for IFQ halibut with setline gear, as defined at 50 CFR 300.61, within Sitka Sound as defined in paragraph (d)(1)(i) of this section.
(3) A person using a vessel less than or equal to 35 ft (10.7 m) in overall length, as defined at 50 CFR 300.61:
(i) Is prohibited from fishing for IFQ halibut with setline gear within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 through August 31; and
(ii) Is prohibited, during the remainder of the designated IFQ season, from retaining more than 2,000 lb (0.91 mt) of IFQ halibut within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, per IFQ fishing trip, as defined in 50 CFR 300.61.
(4) No charter vessel, as defined at 50 CFR 300.61, shall engage in sport fishing, as defined at 50 CFR 300.61(b), for halibut within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 through August 31.
(i) No charter vessel shall retain halibut caught while engaged in sport fishing, as defined at 50 CFR 300.61(b), for other species, within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 through August 31.
(ii) Notwithstanding paragraphs (d)(4) and (d)(4)(i) of this section, halibut harvested outside Sitka Sound, as defined in (d)(1)(ii) of this section, may be retained onboard a charter vessel engaged in sport fishing, as defined in 50 CFR 300.61(b), for other species within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section, from June 1 through August 31.
(e) Sitka Pinnacles Marine Reserve. (1) For purposes of this paragraph (e), the Sitka Pinnacles Marine Reserve means an area totaling 2.5 square nm off Cape Edgecumbe, defined by straight lines connecting the following points in a counterclockwise manner:
56°55.5′N lat., 135°54.0′W long;
56°57.0′N lat., 135°54.0′W long;
56°57.0′N lat., 135°57.0′W long;
56°55.5′N lat., 135°57.0′W long.
(2) No person shall engage in commercial, sport or subsistence fishing, as defined at § 300.61, for halibut within the Sitka Pinnacles Marine Reserve.
(3) No person shall anchor a vessel within the Sitka Pinnacles Marine Reserve if halibut is on board.
(f) Subsistence fishing in and off Alaska. No person shall engage in subsistence fishing for halibut unless that person meets the requirements in paragraphs (f)(1) or (f)(2) of this section.
(1) 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 listed in the following table:
|Rural Community||Organized Entity|
|Edna Bay||Census Designated Place|
|Elfin Cove||Census Designated Place|
|Gustavus||Census Designated Place|
|Hollis||Census Designated Place|
|Hyder||Census Designated Place|
|Klukwan||Census Designated Place|
|Metlakatla||Census Designated Place|
|Meyers Chuck||Census Designated Place|
|Point Baker||Census Designated Place|
|Port Protection||Census Designated Place|
|Whale Pass||Census Designated Place|
|Rural Community||Organized Entity|
|Chenega Bay||Census Designated Place|
|Karluk||Census Designated Place|
|Nanwalek||Census Designated Place|
|Port Graham||Census Designated Place|
|Tatitlek||Census Designated Place|
|Rural Community||Organized Entity|
|Chignik Lagoon||Census Designated Place|
|Chignik Lake||Census Designated Place|
|Ivanof Bay||Census Designated Place|
|Nelson Lagoon||Census Designated Place|
|Perryville||Census Designated Place|
|Rural Community||Organized Entity|
|Nikolski||Census Designated Place|
|Rural Community||Organized Entity|
|Adak||Census Designated Place|
|Rural Community||Organized Entity|
|Rural Community||Organized Entity|
|Start Printed Page 18158|
|Rural Community||Organized Entity|
|Council||Census Designated Place|
|King Salmon||Census Designated Place|
|Kipnuk||Census Designated Place|
|Kongiganak||Census Designated Place|
|Kwigillingok||Census Designated Place|
|Levelock||Census Designated Place|
|Naknek||Census Designated Place|
|Newtok||Census Designated Place|
|Oscarville||Census Designated Place|
|Sheldon Point (Nunam Iqua)||Municipality|
|Solomon||Census Designated Place|
|South Naknek||Census Designated Place|
|Tuntutuliak||Census Designated Place|
|Tununak||Census Designated Place|
|Twin Hills||Census Designated Place|
|Ugashik||Census Designated Place|
(2) A person is eligible to harvest subsistence halibut if he or she is a member of an Alaska Native tribe with customary and traditional uses of halibut listed in the following table:
|Place with Tribal Headquarters||Organized Tribal Entity|
|Angoon||Angoon Community Association|
|Craig||Craig Community Association|
|Haines||Chilkoot Indian Association|
|Hoonah||Hoonah Indian Association|
|Hydaburg||Hydaburg Cooperative Association|
|Juneau||Aukquan Traditional Council Central Council Tlingit and Haida Indian Tribes Douglas Indian Association|
|Kake||Organized Village of Kake|
|Kasaan||Organized Village of Kasaan|
|Ketchikan||Ketchikan Indian Corporation|
|Klawock||Klawock Cooperative Association|
|Klukwan||Chilkat Indian Village|
|Metlakatla||Metlakatla Indian Community, Annette Island Reserve|
|Petersburg||Petersburg Indian Association|
|Saxman||Organized Village of Saxman|
|Sitka||Sitka Tribe of Alaska|
|Wrangell||Wrangell Cooperative Association|
|Place with Tribal Headquarters||Organized Tribal Entity|
|Akhiok||Native Village of Akhiok|
|Chenega Bay||Native Village of Chanega|
|Cordova||Native Village of Eyak|
|Karluk||Native Village of Karluk|
|Kenai-Soldotna||Kenaitze Indian Tribe Village of Salamatoff|
|Kodiak City||Lesnoi Village (Woody Island) Native Village of Afognak Shoonaq' Tribe of Kodiak|
|Larsen Bay||Native Village of Larsen Bay|
|Nanwalek||Native Village of Nanwalek|
|Old Harbor||Village of Old Harbor|
|Ouzinkie||Native Village of Ouzinkie|
|Port Graham||Native Village of Port Graham|
|Port Lions||Native Village of Port Lions|
|Seldovia||Seldovia Village Tribe|
|Tatitlek||Native Village of Tatitlek|
|Yakutat||Yakutat Tlingit Tribe|
|Place with Tribal Headquarters||Organized Tribal Entity|
|Chignik Bay||Native Village of Chignik|
|Chignik Lagoon||Native Village of Chignik Lagoon|
|Chignik Lake||Chignik Lake Village|
|False Pass||Native Village of False Pass|
|Ivanof Bay||Ivanoff Bay Village|
|King Cove||Agdaagux Tribe of King Cove Native Village of Belkofski|
|Nelson Lagoon||Native Village of Nelson Lagoon|
|Perryville||Native Village of Perryville|
|Sand Point||Pauloff Harbor Village Native Village of Unga Qagan Toyagungin Tribe of Sand Point Village|
|Place with Tribal Headquarters||Organized Tribal Entity|
|Akutan||Native Village of Akutan|
|Nikolski||Native Village of Nikolski|
|Unalaska||Qawalingin Tribe of Unalaska|
|Place with Tribal Headquarters||Organized Tribal Entity|
|Atka||Native Village of Atka|
|Place with Tribal Headquarters||Organized Tribal Entity|
|St. George St. Paul||Pribilof Islands Aleut Communities of St. Paul Island and St. George Island|
|Place with Tribal Headquarters||Organized Tribal Entity|
|Gambell||Native Village of Gambell|
|Savoonga||Native Village of Savoonga|
|Diomede (Inalik)||Native Village of Diomede (Inalik)|
|Place with Tribal Headquarters||Organized Tribal Entity|
|Alakanuk||Village of Alakanuk|
|Aleknagik||Native Village of Aleknagik|
|Bethel||Orutsararmuit Native Village|
|Brevig Mission||Native Village of Brevig Mission|
|Chefornak||Village of Chefornak|
|Chevak||Chevak Native Village|
|Clark's Point||Village of Clark's Point|
|Council||Native Village of Council|
|Dillingham||Native Village of Dillingham Native Village of Ekuk Native Village of Kanakanak|
|Eek||Native Village of Eek|
|Egegik||Egegik Village Village of Kanatak|
|Elim||Native Village of Elim|
|Emmonak||Chuloonawick Native Village Emmonak Village|
|Golovin||Chinik Eskimo Community|
|Goodnews Bay||Native Village of Goodnews Bay|
|Hooper Bay||Native Village of Hooper Bay Native Village of Paimiut|
|King Salmon||King Salmon Tribal Council|
|Kipnuk||Native Village of Kipnuk|
|Kongiganak||Native Village of Kongiganak|
|Kotlik||Native Village of Hamilton Village of Bill Moore's Slough Village of Kotlik|
|Koyuk||Native Village of Koyuk|
|Kwigillingok||Native Village of Kwigillingok|
|Mekoryak||Native Village of Mekoryak|
|Naknek||Naknek Native Village|
|Napakiak||Native Village of Napakiak|
|Napaskiak||Native Village of Napaskiak|
|Nightmute||Native Village of Nightmute Umkumiute Native Village|
|Nome||King Island Native Community Nome Eskimo Community|
|Oscarville||Oscarville Traditional Village|
|Pilot Point||Native Village of Pilot Point|
|Platinum||Platinum Traditional Village|
|Port Heiden||Native Village of Port Heiden|
|Quinhagak||Native Village of Kwinhagak|
|Scammon Bay||Native Village of Scammon Bay|
|Shaktoolik||Native Village of Shaktoolik|
|Sheldon Point (Nuna Iqua)||Native Village of Sheldon's Point|
|Shishmaref||Native Village of Shishmaref|
|Solomon||Village of Solomon|
|South Naknek||South Naknek Village|
|St. Michael||Native Village of Saint Michael|
|Stebbins||Stebbins Community Association|
|Teller||Native Village of Mary's Igloo Native Village of Teller|
|Togiak||Traditional Village of Togiak|
|Toksook Bay||Native Village of Toksook Bay|
|Tuntutuliak||Native Village of Tuntutuliak|
|Tununak||Native Village of Tununak|
|Twin Hills||Twin Hills Village|
|Unalakleet||Native Village of Unalakleet|
|Wales||Native Village of Wales|
|White Mountain||Native Village of White Mountain|
(g) Limitations on subsistence fishing. Subsistence fishing for halibut may be conducted only by persons who qualify for such fishing pursuant to paragraph (f) of this section and who hold a valid subsistence halibut registration certificate in that person's name issued by NMFS pursuant to paragraph (h) of this section, provided that such fishing is consistent with the following limitations.
(1) Subsistence fishing is limited to setline gear and hand-held gear, including longline, handline, rod and reel, spear, jig and hand-troll gear.
(i) Subsistence fishing gear must not have more than 30 hooks per person registered in accordance with paragraph (h) of this section and on board the vessel from which gear is being set or retrieved.
(ii) All setline gear marker buoys carried on board or used by any vessel regulated under this section shall be marked with the following: first initial, last name, and address (street, city, and state), followed by the letter “S” to indicate that it is used to harvest subsistence halibut.
(iii) Markings on setline marker buoys shall be in characters at least 4 inches (10.16 cm) in height and 0.5 inch (1.27 cm) in width in a contrasting color visible above the water line and shall be maintained so the markings are clearly visible.
(2) The daily retention of subsistence halibut in rural areas is limited to no more than 20 fish per person eligible to conduct subsistence fishing for halibut under paragraph (g) of this section, Start Printed Page 18160except that no daily retention limit applies in Areas 4C, 4D, and 4E.
(3) Subsistence fishing may be conducted in any waters in and off Alaska except for the following four non-rural areas defined as follows:
(i) Ketchikan non-subsistence marine waters area in Commission regulatory area 2C (see Figure 2 to subpart E) is defined as those waters between a line from Caamano Point at 55° 29.90' N. lat., 131° 58.25' W. long. to Point Higgins at 55° 27.42' N. lat., 131° 50.00' W. long. and a point at 55° 11.78' N. lat., 131° 05.13' W. long., located on Point Sykes to a point at 55° 12.22' N. lat., 131° 05.70' W. long., located one-half mile northwest of Point Sykes to Point Alava at 55° 11.54' N. lat., 131° 11.00' W. long. and within one mile of the mainland and the Gravina and Revillagigedo Island shorelines, including within one mile of the Cleveland Peninsula shoreline and east of the longitude of Niblack Point at 132° 07.23' W. long., and north of the latitude of the southernmost tip of Mary Island at 55° 02.66' N. lat.;
(ii) Juneau non-subsistence marine waters area in Commission regulatory area 2C (see Figure 3 to subpart E) is defined as those waters of Stephens Passage and contiguous waters north of the latitude of Midway Island Light (57° 50.21' N. lat.), including the waters of Taku Inlet, Port Snettisham, Saginaw Channel, and Favorite Channel, and those waters of Lynn Canal and contiguous waters south of the latitude of the northernmost entrance of Berners Bay (58° 43.07' N. lat.), including the waters of Berners Bay and Echo Cove, and those waters of Chatham Strait and contiguous waters north of the latitude of Point Marsden (58° 03.42' N. lat.), and east of a line from Point Couverden at 58° 11.38' N. lat., 135° 03.40' W. long., to Point Augusta at 58° 02.38' N. lat., 134° 57.11' W. long.;
(iii) Anchorage-Matsu-Kenai non-subsistence marine waters area in Commission regulatory area 3A (see Figure 4 to subpart E) is defined as all waters of Alaska enclosed by a line extending east from Cape Douglas (58° 51.10' N. lat.), and a line extending south from Cape Fairfield (148° 50.25' W. long.) except those waters north of Point Bede which are west of a line from the eastern most point of Jakolof Bay (151° 32.00' W. long.) north the western most point of Hesketh Island (59° 30.04' N. lat., 151° 31.09' W. long.) including Jakolof Bay and south of a line west from Hesketh Island (59° 30.04' N. lat. extending to the boundary of the territorial sea); the waters south of Point Bede which are west of the eastern most point of Rocky Bay (from the mainland along 151° 18.41' W. long. to the intersection with the territorial sea); but excludes those waters within mean lower low tide from a point one mile south of the southern edge of the Chuitna River (61° 05.00' N. lat., 151° 01.00' W. long.) south to the easternmost tip of Granite Point (61° 01.00' N. lat., 151° 23.00' W. long.) (Tyonek subdistrict, as defined in Alaska Administrative Code, 5 AAC 01.555(b), May 14, 1993); and
(iv) Valdez non-subsistence marine waters area Commission regulatory area 3A (see Figure 5 to subpart E) is defined as the waters of Port Valdez and Valdez Arm located north of 61° 02.24' N. lat., and east of 146° 43.80' W. long.
(4) Waters in and off Alaska that are not specifically identified as non-rural in paragraph (g)(3) of this section are rural for purposes of subsistence fishing for halibut. Subsistence fishing may be conducted in any rural area by any person with a valid subsistence halibut registration certificate in his or her name issued by NMFS under paragraph (h) of this section, except that:
(i) A person who is not a rural resident but who is a member of an Alaska Native tribe that is located in a rural area and that is listed in the table in paragraph (f)(2) of this section is limited to conducting subsistence fishing for halibut only in his or her area of tribal membership.
(ii) A person who is a resident outside the State of Alaska but who is a member of an Alaska Native tribe that is located in a rural area and that is listed in the table in paragraph (f)(2) of this section is limited to conducting subsistence fishing for halibut only in his or her area of tribal membership.
(iii) For purposes of this paragraph, “area of tribal membership” means rural areas of the Commission regulatory area or the Bering Sea closed area in which the Alaska Native tribal headquarters is located.
(h) Subsistence registration. A person must register as a subsistence halibut fisher and possess a valid subsistence halibut registration certificate in his or her name issued by NMFS before he or she begins subsistence fishing for halibut in waters in and off Alaska.
(1) A subsistence halibut registration certificate will be issued to any person who registers according to paragraph (h)(2) of this section and who is qualified to conduct subsistence fishing for halibut according to paragraph (f) of this section. The Alaska Region, NMFS, may enter into cooperative agreements with Alaska Native tribal governments or their representative organizations for purposes of identifying persons qualified to conduct subsistence fishing for halibut according to paragraph (f) of this section.
(2) Registration. To register as a subsistence halibut fisher, 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. Applications must be mailed to: Restricted Access Management Program, NMFS, Alaska Region, PO Box 21668, Juneau, AK 99802-1668. The following information is required to be submitted with the application:
(i) For a Rural Resident Registration, the person must submit his or her full name, date of birth, mailing address (number and street, city and state, zip code), community of residence (the rural community or residence from 50 CFR 300.65(f)(1) that qualifies the fisher as eligible to fish for subsistence halibut), daytime telephone number, certification that he or she is a “rural resident” as that term is defined at § 300.61, and signature and date of signature.
(ii) For an Alaska Native Tribal Registration, the person must submit his or her full name, date of birth, mailing address (number and street, city and state, zip code), Alaska Native tribe (the name of the Alaska Native Tribe from 50 CFR 300.65(f)(2) that qualifies the fisher as eligible to fish for subsistence halibut), daytime telephone number, certification that he or she is a member of an “Alaska Native tribe” as that term is defined at § 300.61, and signature and date of signature.
(3) Expiration of registration. Each subsistence halibut registration certificate will be valid only for the period of time specified on the certificate. A person eligible to harvest subsistence halibut under paragraph (f) of this section may renew his or her registration certificate that is expired or will expire within 3 months by following the procedures described in paragraph (h)(2) of this section. A subsistence halibut registration certificate will expire:
(i) 2 years from the date of its issuance to a person eligible to harvest subsistence halibut under paragraph (f)(1) of this section, and
(ii) 4 years from the date of its issuance to a person eligible to harvest subsistence halibut under paragraph (f)(2) of this section.
(4) The Administrator, Alaska Region, NMFS, or an authorized representative, may conduct periodic surveys of persons who hold valid subsistence Start Printed Page 18161halibut registration certificates to estimate the annual harvest of subsistence halibut and related catch and effort information. For purposes of this paragraph, an authorized representative of NMFS may include employees of, or contract workers for, the State of Alaska or a Federal agency or an Alaska Native tribal government representative as may be prescribed by cooperative agreement with NMFS. Responding to a subsistence halibut harvest survey will be voluntary and may include providing information on:
(i) The subsistence fisher's identity including his or her full name, date of birth, mailing address (number and street, city and state, zip code), community of residence, daytime phone number, and tribal identity (if appropriate);
(ii) The subsistence halibut harvest, including whether the participant fished for subsistence halibut during the year and, if so, the number and weight (in pounds) of halibut harvested, the type of gear and number of hooks usually used, the Commission regulatory area and local water body from which the halibut were harvested, and the number of ling cod and rockfish caught while subsistence fishing for halibut; and
(iii) Any sport halibut harvest, including whether the participant sport fished for halibut during the year and the number and weight (in pounds) of halibut harvested while sport fishing.
In addition to the general prohibitions specified in 50 CFR 300.4, it is unlawful for any person to do any of the following:End Amendment Part
(a) Fish for halibut except in accordance with the annual management measures published pursuant to 50 CFR 300.62.
(c) Fish for halibut in Sitka Sound in violation of the Sitka Sound LAMP implemented under 50 CFR 300.65(d).
(d) Fish for halibut or anchor a vessel with halibut on board within the Sitka Pinnacles Marine Reserve defined at 50 CFR 300.65(e).
(e) Fish for subsistence halibut in and off Alaska unless the person is qualified to do so under 50 CFR 300.65(f), has in his or her possession a valid subsistence halibut registration certificate pursuant to 50 CFR 300.65(h), and makes this certificate available for inspection by an authorized officer on request.
(g) Fish for subsistence halibut in and off Alaska in a non-rural area specified at 50 CFR 300.65(g)(3).
(h) Retain, on board the harvesting vessel, halibut harvested from subsistence fishing with halibut harvested from commercial fishing or from sport fishing, as defined at 50 CFR 300.61(b), except that persons who land their total annual harvest of halibut in Commission regulatory area 4D or 4E may retain, with harvests of CDQ halibut, halibut harvested in Commission regulatory areas 4D or 4E that are smaller than the size limit specified in the annual management measures published pursuant to 50 CFR 300.62.
(i) Retain subsistence halibut that were harvested using a charter vessel.
(j) Retain or possess subsistence halibut for commercial purposes, cause subsistence halibut to be sold, bartered or otherwise enter commerce or solicit exchange of subsistence halibut for commercial purposes, except that a person who qualified to conduct subsistence fishing for halibut under 50 CFR 300.65(f), and who holds a subsistence halibut registration certificate in the person's name under 50 CFR 300.65(h) may engage in the customary trade of subsistence halibut through monetary exchange of no more than $400 per year.
(k) Fillet, mutilate, or otherwise disfigure subsistence halibut in any manner that prevents the determination of the number of fish caught, possessed, or landed.Start Amendment Part
5. Figure 1 to subpart E is revised; Figure 2 through 5 to subpart E are added to read as follows:End Amendment Part Start Part
PART 600—MAGNUSON-STEVENS ACT PROVISIONSEnd Part Start Amendment Part
1. The authority citation for part 600 is amended to read as follows:End Amendment Part Start Amendment Part
2. In § 600.725, table VII in paragraph (v) is revised to read as follows:End Amendment Part
(v) * * *
|Fishery||Allowable gear types|
|1. Alaska Scallop Fishery (FMP)||Dredge.|
|2. Bering Sea (BS) and Aleutian Islands (AI) King and Tanner Crab Fishery (FMP):|
|3. BS and AI King and Tanner Crab Fishery (Non-FMP):|
|4. BS and AI Groundfish Fishery (FMP):|
|A. Groundfish trawl fishery||A. Trawl.|
|B. Bottomfish hook-and-line, and handline fishery||B. Hook and line, handline.|
|C. Longline fishery||C. Longline.|
|D. BS and AI pot and trap fishery||D. Pot, trap.|
|5. BS and AI Groundfish Recreational Fishery (Non-FMP).||Handline, rod and reel, hook and line, pot, trap.|
|6. Gulf of Alaska (GOA) Groundfish Fishery (FMP):|
|A. Groundfish trawl fishery||A. Trawl.|
|B. Bottomfish hook-and-line and handline fishery||B. Hook and line, handline.|
|C. Longline fishery||C. Longline.|
|D. GOA pot and trap fishery||D. Pot, trap.|
|E. Recreational fishery||E. Handline, rod and reel, hook and line, pot, trap.|
|7. Pacific Halibut Fishery (Non-FMP):|
|A. Commercial (IFQ and CDQ)||A. Hook and line.|
|B. Recreational||B. Single line with no more than 2 hooks attached or spear.|
|C. Subsistence||C. Setline gear and hand held gear of not more than 30 hooks, including longline, handline, rod and reel, spear, jig, and hand-troll gear.|
|8. Alaska High Seas Salmon Hook and Line Fishery:|
|(FMP)||Hook and line.|
|9. Alaska Salmon Fishery (Non-FMP):|
|A. Hook-and-line fishery||A. Hook and line.|
|B. Gillnet fishery||B. Gillnet.|
|C. Purse seine fishery.||C. Purse seine.|
|D. Recreational fishery||D. Handline, rod and reel, hook and line.|
|10. Finfish Purse Seine Fishery (Non-FMP).||Purse seine.|
|Start Printed Page 18162|
|11. Octopus/Squid Longline Fishery (Non-FMP).||Longline.|
|12. Finfish Handline and Hook-and-line Fishery (Non-FMP)||Handline, hook and line.|
|13. Recreational Fishery (Non-FMP)||Handline, rod and reel, hook line.|
|14. Commercial Fishery (Non-FMP)||Trawl, gillnet, hook and line, longline, handline, rod and reel, bandit gear, cast net, spear.|
PART 679— FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKAEnd Part Start Amendment Part
1. The authority citation for part 679 continues to read as follows:End Amendment Part Start Amendment Part
2. In § 679.2, the definitions for “commercial fishing” and “IFQ halibut” are revised as follows:End Amendment Part
Commercial fishing means:
(1) For purposes of the High Seas Salmon Fishery, fishing for fish for sale or barter; and
(2) For purposes of the Pacific halibut fishery, fishing, the resulting catch of which either is, or is intended to be, sold or bartered but does not include subsistence fishing for halibut, as defined at 50 CFR 300.61.
IFQ halibut means any halibut that is harvested with setline or other hook and line gear while commercial fishing in any IFQ regulatory area defined in this section.
BILLING CODE 3510-22-S
[FR Doc. 03-8822 Filed 4-14-03; 8:45 am]
BILLING CODE 3510-22-C