[Federal Register: April 1, 2005 (Volume 70, Number 62)]
[Rules and Regulations]
[Page 16742-16754]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap05-15]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 300 and 679
[Docket No. 040607171-5078-02; I.D. 051804C]
RIN 0648-AR88
Pacific Halibut Fisheries; Subsistence Fishing
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to amend the subsistence fishery
rules for Pacific halibut in waters off Alaska. This action is
necessary to address subsistence halibut management concerns in densely
populated areas. This action is intended to meet the conservation and
management requirements of the Northern Pacific Halibut Act of 1982
(Halibut Act) and the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act).
DATES: Effective on May 2, 2005.
ADDRESSES: Copies of the environmental assessment (EA), regulatory
impact review (RIR), Initial Regulatory Flexibility Analysis (IRFA),
and Final Regulatory Flexibility Analysis (FRFA) prepared for this
action are available from NMFS, Alaska Region, P.O. Box 21668, Juneau,
AK 99802-1668, Attn:
[[Page 16743]]
Lori Gravel-Durall, or from 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 NMFS at the address specified
above and to OMB at: Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503 (Attention: NOAA
Desk Officer).
FOR FURTHER INFORMATION CONTACT: Bubba Cook, 907-586-7425 or
bubba.cook@noaa.gov.
SUPPLEMENTARY 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 in Ottawa, Canada, on March 2, 1953, and amended by the
``Protocol Amending the Convention,'' signed in Washington, D.C., on
March 29, 1979. This Convention, administered by the International
Pacific Halibut Commission (IPHC), is given effect in the United States
by the Halibut Act. 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. For
2004, the annual management measures were published February 27, 2004
(69 FR 9231).
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. (Halibut Act,
section 773(c)). Such an action by the Council is limited only to those
regulations that are in addition to and not in conflict with IPHC
regulations, and they 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. This
policy was originally implemented by regulations published on April 15,
2003, at 68 FR 18145 (corrected May 15, 2003 at 68 FR 26230), and
codified at 50 CFR 300 under subpart E.
A proposed rule to amend the subsistence halibut policy was
published in the Federal Register on July 9, 2004 (69 FR 41447).
Comments on the proposed rule were invited through August 9, 2004.
Forty-one letters were received that included 43 separate comments,
which are summarized and responded to below.
The principal elements of this amendment are described and
explained in the preamble to the proposed rule and are not repeated
here for brevity. In brief, these elements include: (1) changing the
boundaries of the Anchorage/Matsu/Kenai non-subsistence area, (2)
eliminating gear restrictions in Areas 4C, 4D, and 4E, (3) increasing
gear and harvest restrictions in Area 2C, (d) allowing retention of
legal sized subsistence halibut with CDQ halibut in Areas 4C, 4D, and
4E, (4) creating a Community Harvest Permit (CHP) system to mitigate
increased gear and harvest restrictions in affected areas, (5) creating
a Ceremonial and Educational Permit system to recognize customary and
traditional tribal practices, and (6) including the Subsistence Halibut
Program in the appeals process.
This final rule is substantively the same as the proposed rule
published July 9, 2004 (69 FR 41447), except that certain technical
changes have been made in response to comments received on the proposed
rule. These changes are explained below under the Response to Comments
and under Changes from the Proposed Rule.
Response to Comments
NMFS received 41 letters of comment that contained 43 separate
comments from various agencies, Alaska Native organizations, and
individuals. These comments are grouped into three categories,
including: (1) the content of the proposed rule (comments 1-19); (2)
alternatives for proposed changes addressed by the Council in December
2004, but not part of this action (comments 20-27); and (3) the overall
subsistence halibut policy, but also not part of this action (comments
28-43). The following summarizes and responds to these comments.
Comments on the Content of the Proposed Rule
Comment 1: We oppose the increased gear restriction of 30 hooks per
vessel in Area 2C.
Response: The Council recommended increased restrictions in Area 2C
primarily to address localized depletion concerns due to increased
subsistence halibut fishing effort. Area 2C has one of the highest
population densities with proximity to easily accessible local fishing
grounds, which allows for increased exploitation of the halibut
resource in those areas. Based on public testimony, written comments,
and analysis, the Council determined that increased gear restrictions
were necessary in Area 2C to address localized depletion concerns.
The Council proposed superseding the 30-hook-per-person restriction
with a 30-hook-per-vessel restriction in Area 2C. By reducing the
number of hooks allowed to be fished from a single vessel, the Council
effectively reduced the daily catch per vessel when two or more
subsistence fishermen are on the vessel. The reduction in allowable
gear also would reduce incidental catch of additional species that
might also be subject to localized depletion, including rockfish and
lingcod. NMFS agrees with this rationale for increasing the subsistence
gear restrictions in Area 2C.
Comment 2: We support increased gear and harvest restrictions for
all users. However, no distinction should be made in the regulations
between Alaska Natives and non-Natives because the Subsistence Halibut
Program was intended to help all rural and tribal residents feed their
families.
Response: Halibut harvested while subsistence fishing are intended
for the sustenance of the persons that are subsistence fishing, their
families, and their communities in accordance with cultural traditions
of Alaska Native and rural lifestyles. However, the Subsistence Halibut
Program is designed to make distinctions among users based on State of
Alaska (State) and Council findings of customary and traditional use of
halibut by persons living in certain rural Alaska communities and by
members of certain Alaska Native tribes. Hence, neither all rural
Alaska communities nor all Alaska Native tribes are found to be
eligible for subsistence halibut fishing privileges. The Halibut Act
provides the authority to allocate or assign halibut fishing privileges
among various fishermen.
This rule recognizes the unique customary and traditional practices
of tribes by implementing Ceremonial and Educational Permits and a CHP
program. These provisions were created to improve the original
subsistence rule, which did not adequately meet the customary and
traditional needs of Alaska Native tribes and are consistent with the
authority granted by the Halibut Act.
Comment 3: Area 2C should be included in the CHP program.
[[Page 16744]]
Response: The CHP program applies only in Area 2C as described at
50 CFR 300.65(i) of this action.
Comment 4: Designated subsistence fishers should provide their
signature in the harvest logbooks for special permits to verify
participation in harvests conducted under the special permits.
Response: The Council authorized the development of special permits
to mitigate increased restrictions in areas where rural communities and
tribes practiced customary and traditional use of the halibut resource.
The CHP, Ceremonial Permit, and Educational Permit were developed in a
cooperative effort to provide more local control of monitoring of
subsistence halibut removals, thereby increasing the accuracy and
availability of harvest data.
Because of the liberal limits applied to the special permits, NMFS
recommended a substantial increase in the recordkeeping and reporting
requirements under those permits. The permit coordinator is responsible
for ensuring that all recordkeeping and reporting is conducted in
accordance with regulatory requirements. As part of this
responsibility, the permit coordinator must ensure that the designated
harvester is identified on the applicable permit log. Any abuse of
these recordkeeping and reporting requirements could result in NMFS
withholding issuance of future special permits or, in certain cases, an
enforcement action. Therefore, NMFS believes that the proposed system
using a permit coordinator provides sufficient verification and that
requiring the signatures of designated subsistence fishers is
unnecessary at this time.
Comment 5: Reducing the number of hooks from a per-fishermen to a
per-vessel limit is disadvantaging the public's efforts to feed their
families by making subsistence fishing more intensive and costly.
Halibut removals are more effectively controlled through bag limits.
Response: NMFS understands the increased cost and effort required
under the proposed gear and harvest restrictions. However, the Council
imposed increased gear restrictions based on localized depletion
concerns. See also Response under Comment 1.
Harvest (bag) limits constitute one method of controlling the
removal of a single species. However, harvest limits without gear
limits would have less of an effect in reducing incidental catch of
non-halibut species. As the amount of allowable gear increases, the
potential for incidental catch of non-target species increases.
Incidental catch of rockfish and lingcod represents one of the concerns
regarding increased restrictions in high-productivity and high-use
areas such as Areas 2C and 3A. Based on the incidental catch and
localized depletion concerns, the Council concluded that further gear
restrictions were necessary in Area 2C in addition to more restrictive
harvest limits.
Comment 6: Increasing restrictions will discourage the affected
public from following the rules.
Response: One of the original goals of the Subsistence Halibut
Program was to enable Alaska Natives and non-Natives, who have a
customary and traditional use of halibut, to continue to take halibut
for that purpose. Additionally, the Council stated that it intended to
legitimize an existing fishery and not create a new fishery.
In attempting to achieve these goals, the Council proposed certain
restrictions consistent with customary and traditional use patterns in
specific areas. The Council recognized that each of the areas differed
significantly in its demographics, population density, and cultural
backgrounds. Based on that recognition, the Council proposed increasing
or decreasing restrictions in the different areas to accommodate these
differences. In areas where increased restrictions were proposed, the
Council determined through public testimony, written comments, and
analysis that concerns regarding the subsistence halibut fishery exist.
Therefore, NMFS believes that a rational basis exists for increased
restrictions in these areas.
Comment 7: We oppose the reduction of the daily retention limit to
20 halibut per vessel per day.
Response: The Council recommended increased restrictions in Area 2C
primarily to address localized depletion concerns due to increased
subsistence halibut fishing effort in this area. Area 2C has one of the
highest human population densities in Alaska with proximity to easily
accessible local fishing grounds, which allows for increased
exploitation of the halibut resource in those areas. Based on public
testimony, written comments, and analysis, the Council determined that
increased gear restrictions were necessary in Area 2C to address
localized depletion concerns.
The Council proposed superseding the 20-halibut-per-person
restriction with a 20-halibut-per-vessel restriction to address
localized depletion concerns in Area 2C. The reduction in allowable
harvest also would help prevent incidental catch of additional species
that might also be subject to localized depletion, including rockfish
and lingcod.
Comment 8: Regulations should not be liberalized to allow tribal
members to harvest more halibut. The existing regulations provide a
reasonable opportunity for tribes and others to meet their subsistence
needs.
Response: The Council received public testimony and written
comments indicating that Alaska Native tribes and other affected rural
communities would be unable to meet their customary and traditional
levels of harvest if increased restrictions were applied beyond those
provided in the original subsistence halibut action. In response to
these concerns, the Council chose to implement special permits that
mitigate increased restrictions in localized areas where certain tribes
and rural communities would be adversely affected. NMFS believes the
special permits adequately balance the subsistence needs of the
affected public with the goal of preventing localized depletion in
areas of concern.
Comment 9: We are opposed to the regulation of the halibut fishery
with regard to ceremonial use because the Council has no definition of
ceremonial use.
Response: The Alaska Native Subsistence Halibut Working Group
recommended the creation of Ceremonial Permits and the Council directed
an analysis of that recommendation. In the analysis, a qualifying
ceremonial use is defined as ``one in which the use of halibut is
customary and traditional and is related to some act or occasion of
cultural significance.'' This definition would include deaths,
potlatches, or other events of cultural significance.
NMFS recognizes that different tribes have different cultural
requirements. Therefore, NMFS chose not to list events or occasions
that would qualify as ``ceremonial'' because it might lead to the
unintended exclusion of a legitimate culturally significant event from
eligibility for a Ceremonial Permit. In an effort to promote
cooperative management with the tribes, NMFS instead chose to allow the
individual tribes to decide what constitutes a ceremonial purpose and
to require a tribe to indicate on their permit application the occasion
of cultural or ceremonial significance. NMFS does not intend to make a
subjective decision on the validity of an indicated ceremonial purpose.
However, if NMFS discovers that a tribe is abusing the Ceremonial
Permit it could withhold issuance of future special permits or, in
certain cases, initiate an enforcement action.
[[Page 16745]]
Comment 10: Any mixing of community development quota (CDQ) fishing
and subsistence fishing will compromise enforcement of normal CDQ
regulations. Therefore, all halibut should be offloaded and weighed
from combined subsistence and CDQ trips. If legal-sized halibut can be
retained and not counted as part of the CDQ, any overage above the CDQ
enforced trip limit could be claimed as subsistence.
Response: Mixing of CDQ and subsistence fishing halibut harvests
will not compromise enforcement. The purpose of allowing subsistence
fishermen in Areas 4C, 4D, and 4E to retain subsistence halibut with
CDQ halibut is to allow sufficient opportunity to conduct subsistence
fishing when conditions are not restricted by sea ice coverage and
inclement weather. In short, if a CDQ fisherman who is also eligible to
subsistence fish for halibut found himself in good weather when the
fish are biting, he could harvest his CDQ allotment and his subsistence
halibut as well. This scenario specifically contemplated that the
harvest of legal-sized halibut in excess of a CDQ limit would be
claimed as subsistence halibut. However, a CDQ fisherman who is not
eligible for subsistence fishing would remain subject to an overage
violation. Therefore, NMFS does not believe that allowing retention of
CDQ and subsistence halibut in Areas 4C, 4D, and 4E will compromise
enforcement.
NMFS also disagrees that all subsistence halibut should be
offloaded and weighed. NMFS does not believe that the estimated
removals in Areas 4C, 4D, and 4E warrant reporting requirements any
more stringent than those required of subsistence fishermen in other
areas. NMFS understands and agrees with the desire to obtain an
accurate accounting of halibut removals. However, according to the 2003
subsistence halibut survey, only 7.9 percent of the total removals of
halibut in the subsistence fishery occurred in Areas 4C, 4D, and 4E
combined. The estimated subsistence removals in Areas 4C, 4D, and 4E
combined account for only 0.1 percent of the total halibut removals in
Alaska. Therefore, NMFS sees no reason to increase the reporting burden
on the subsistence fishermen in Areas 4C, 4D, and 4E by requiring them
to weigh subsistence halibut when caught with CDQ halibut given the
relatively low impact on the halibut resource in those areas.
Comment 11: The IPHC supports the proposed change to eliminate gear
restrictions in the subsistence fishery in Areas 4C, 4D, and 4E because
it prevents a conflict with commercial fishery gear.
Response: NMFS notes this support.
Comment 12: NMFS should wait for more factual information and
should not rely on unsubstantiated perceptions of increased halibut
removals because of the subsistence fishery before imposing more
restrictions. There should be no increase in restrictions in the Sitka
area unless there is factual evidence to justify the increase.
Response: Increased restrictions in Area 2C and the Sitka Local
Area Management Plan (LAMP) were recommended by the Council as part of
this action in response to public testimony and written comments. Based
on public testimony and other available anecdotal information about
localized depletion in Area 2C and the Sitka LAMP, NMFS agrees that the
restrictions implemented in this action are necessary to address those
concerns about localized depletion based on the correlation of
increased access in areas of high human population density. See also
Response under Comments 1 and 7.
Comment 13: The daily retention limit of 20-fish-per-vessel in Area
2C should be 10 or less.
Response: The Council assessed alternative harvest limits based on
the need to balance customary and traditional needs with concerns about
localized depletion and the use of the halibut resource by commercial
and sport fishermen. Based on these alternatives, the Council
determined that 20-halibut-per-vessel strikes the most appropriate
balance.
Comment 14: The CHP system as described in the proposed rule is far
too restrictive and will not allow for tribes and rural communities to
meet their subsistence needs through the customary and traditional use
of community harvesters. The CHP system should allow up to five vessels
per day to harvest halibut under the proposed system.
Response: The Council recommended a CHP program that would serve as
an alternative to proxy fishing in addition to mitigating the impacts
of the more restrictive measures in Area 2C. The Council also clarified
that a CHP may be issued by NMFS only to Alaska Native tribes or
government entities of small, remote coastal communities where a
pattern of subsistence harvest is established that includes community
harvesters and that such permits may be developed and implemented
through cooperative agreements. Also, the Council recommended including
restrictions on gear and harvest limits, which are consistent with
customary and traditional harvest patterns and practices, and are
sufficient to meet the subsistence needs of the community.
In July 2002, the Council's Halibut Subsistence Committee suggested
that only one CHP be issued per tribal or community entity. However,
NMFS was left broad discretion to develop the details of the limits and
administration of the CHP. Following consultation with tribal
representatives, NMFS agrees that each eligible tribe or community
should be qualified to receive up to five permit cards with each CHP,
which would allow for increased efficiency and would nominally change
the administration of the permit at the CHP Permit Coordinator level.
Comment 15: Tribes are concerned about the implications of holding
the tribe, the permit coordinator, and the harvester ``jointly and
severally liable'' for violations involving the special permits. It may
be hard to convince someone to serve as a permit coordinator if the
consequence of a mistake results in jail or a fine.
Response: Because of the liberalized restrictions under the special
permits, the Council recommended that the permits be subject to
sanctions under NMFS authority. Because of their indirect
administration through a tribal or community entity, special permits
would be subject to joint and several liability. This approach is
consistent with NOAA Enforcement's approach to joint and several
liability in other fisheries, which places responsibility for
violations on the vessel owner, vessel operator, and, potentially, crew
members.
Joint and several liability means each liable party is individually
responsible for the entire obligation. For instance, if NMFS finds a
CHP harvester in violation of the regulations, depending on the facts
of the case, the harvester, the CHP Coordinator, and the tribe may all
be subjects of an enforcement action. NOAA Enforcement retains a high
degree of discretion in administering penalties under 15 CFR part 904.
Comment 16: Thirty days is too few for an educational permit.
Educational permits should last at least 90 days.
Response: The Ceremonial and Educational Permits were based on
existing U.S. Fish and Wildlife (USFWS) and National Park Service (NPS)
ceremonial permits as requested by the tribes. The permits administered
by USFWS and NPS provided a 15-day effective permit period. NMFS
decided that 15 days would be too restrictive and burdensome on the
tribes and determined that the effective permit period should be 30
days.
NMFS understands that tribes would like the Educational Permits to
extend
[[Page 16746]]
90 days to accommodate the summer culture camps. However, NMFS believes
providing multiple permits over the same 90-day period will enhance
data quality and ensure that permits are not misused.
Comment 17: It seems unreasonable to limit the administration of
the special permits to only one permit coordinator. What if the permit
coordinator gets sick or is unable to attend to their duties? Taking
the opportunity to subsistence fish when the time is right is too
important to forfeit if the coordinator is not available.
Response: One of the purposes of the CHP Coordinator, Ceremonial
Permit Coordinator, or the Instructor is to ensure a verifiable point
of contact and sufficient control of the permit. As proposed, the
tribes must designate a single individual as the primary person
responsible for the Ceremonial or Educational Permit. Making a single
individual responsible for the permit ensures accuracy of data and
proper administration. However, as proposed, the regulations would not
allow for any delegation of permit responsibilities in the event of
incapacitation of the permit coordinator. Therefore, the regulations
will be revised to indicate that the permit coordinator remains the
principal authority responsible for the administration of the permit,
but will allow flexibility for an alternate to be designated in the
absence or unavailability of the designated permit coordinator.
Comment 18: If a CHP is to expire after only one year, it should be
reissued automatically.
Response: The potential for abuse of the liberal provisions of the
CHP requires an annual expiration and application process. The annual
application process would allow NMFS to assess subsistence halibut
harvests, ensure compliance with the CHP regulations, and withhold new
permits if necessary.
Comment 19: The CHP program should be open only to tribes and those
communities without tribal governments that can demonstrate a customary
and traditional pattern of community harvesters.
Response: The Council clarified its intent that all eligible Area
2C communities listed in 50 CFR 300.65(f) would be eligible for CHPs
because they are subject to the additional vessel limit restrictions.
The Council's Advisory Panel (AP) recommendations specifically
referenced the Halibut Subsistence Committee description of the CHP
system, which suggested population size (i.e., 500) as a potential
criterion for CHP eligibility. However, the Council did not adopt this
recommendation. Therefore, all Area 2C communities, except those in
which an eligible tribe exists, and tribes listed in 50 CFR 300.65(f)
may request these permits under this rule.
One of the principle tenets of the Subsistence Halibut Program and
customary and traditional use is the sharing of halibut with others.
Objectively determining at what level of sharing a single individual
becomes a ``community harvester'' would be difficult without defined
criteria. Therefore, NMFS does not intend to define a customary and
traditional pattern of community harvesters beyond the criteria
provided by the Council that establishes the CHP program.
Comments on the Analysis of Proposed Changes Addressed by the Council
in December 2004
Comment 20: The halibut stocks in the Sitka LAMP are not suffering
from the subsistence halibut fishery.
Response: The Council recommended a longline closure area around
Low Island in the Sitka Lamp during the summer months. The local waters
south of Low Island are reported to be the center of high halibut
production for fishermen using small skiffs. The prohibition on use of
longline gear in this area would improve the harvesting success of
those fishermen. This action is not intended to resolve a resource
conservation issue in the Sitka LAMP, but instead attempts to equitably
allocate the resource among different users.
In December 2004, the Council recommended increased gear and
harvest restrictions in the Sitka LAMP. This action does not address
those recommendations. Proposed implementing rules for the increased
gear and harvest restrictions in the Sitka LAMP will be published in
the Federal Register for public comment at a later date.
Comment 21: Fishing for subsistence halibut from a registered
charter vessel should be limited to the immediate family members of the
vessel owner.
Response: In December 2004, the Council recommended a revision to
the definition of a charter vessel. This action does not address the
use of charter vessels for the harvest of subsistence halibut. Proposed
implementing rules for the revised charter vessel definition will be
published in the Federal Register for public comment at a later date.
Comment 22: The number of charter clientele on a charter boat
should be capped.
Response: This action does not address the management of charter
vessels.
Comment 23: The State of Alaska Department of Fish and Game
recommends changing gear restrictions in the Kodiak Island road zone,
Prince William Sound, and Cook Inlet to 5-hooks-per-fisher to achieve
consistency with State regulations for groundfish in those areas.
Response: In December 2004, the Council recommended increased gear
and harvest restrictions in the Kodiak Island road zone. This action
does not address those increased gear restrictions. Proposed
implementing rules for the gear restrictions in the Kodiak Island road
zone will be published in the Federal Register for public comment at a
later date.
Comment 24: The $400 annual limit for customary and traditional
exchange should be eliminated so that there are no cash sales.
Response: This rule does not address customary trade of halibut. In
December 2004, the Council recommended revising the customary trade
limit for subsistence halibut. Proposed implementing rules for changes
in the customary trade limit will be published in the Federal Register
for public comment at a later date.
Comment 25: There should be a possession limit equal to the daily
bag limit.
Response: This rule does not address a possession limit for
halibut. In December 2004, the Council recommended a possession limit
for IPHC Areas 2C, 3A, and 3B. Proposed implementing rules for a
possession limit will be published in the Federal Register for public
comment at a later date.
Comment 26: NMFS should impose a 20-fish-per-season or annual limit
like commercial halibut because the 20-fish-per-day limit is
excessively high and a threat to the fishery.
Response: The 20-halibut-per-day catch limit is not excessive in
light of its purpose, which is to provide a reasonable daily catch
limit for a person that is subsistence fishing in order to supply food
for his or her family and community. Proxy fishing is not provided for
under the Subsistence Halibut Program. Therefore, the daily catch limit
should be sufficient to allow the fisherman to supply fish to persons
other than himself. Moreover, subsistence fishermen 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. Hence, subsistence
[[Page 16747]]
fishing is self-limiting by the amount of halibut that a subsistence
fisherman and his or her family can reasonably use for food. Although a
20-fish-per-day limit appears high for an individual, it allows a
subsistence fisherman to harvest a sufficient amount of halibut to
share with his or her family and community. It does not mean that a
subsistence halibut fisherman will be going out every day to catch 20
halibut. The 20-halibut-per-day-limit merely allows for efficiency in
harvesting subsistence halibut up to an amount that they will
reasonably be able to prepare and store. NMFS intends for the
restrictions on halibut harvest in Area 2C to continue to allow for a
reasonable daily catch limit while addressing localized depletion
concerns.
NMFS also disagrees that subsistence fishermen should be subject to
an annual allocation and the associated monitoring and reporting
requirements analogous to the individual fishing quota program for the
commercial halibut fishery. Surveying registered fishermen is the same
methodology used to estimate sport halibut harvests by the State of
Alaska and NMFS does not believe the subsistence halibut fishery should
be subjected to a more robust estimation procedure than is the sport
halibut fishery when, according to existing data, the latter group
harvests several times as many halibut as the former. Therefore, NMFS
does not believe the subsistence fishery should be subject to an annual
limit or quota and the associated monitoring and reporting requirements
as the commentator would suggest.
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 in December 2004, recommended
additional gear and harvest restrictions in the densely populated areas
of the Sitka LAMP and the Kodiak Island road zone in addition to a
possession limit in IPHC Areas 2C, 3A, and 3B. However, this action
does not address the Council's December recommendations. Proposed
implementing rules for the Council's December recommendations will be
published in the Federal Register for public comment at a later date.
Comment 27: Recordkeeping requirements should be imposed on
subsistence fishermen to track customary trade of halibut. Customary
trade can also lead to inaccurate data on the actual level of
subsistence harvest because it encourages halibut IFQ holders to
characterize ``home pack'' as subsistence harvest.
Response: This rule does not address customary trade of halibut. In
December 2004, the Council recommended revising the customary trade
limit for subsistence halibut. Proposed implementing rules for
customary trade of subsistence halibut will be published in the Federal
Register for public comment at a later date.
Comments Directed at the Overall Subsistence Halibut Policy
Comment 28: Commercial IFQ permit holders are using the subsistence
fishery as a means to increase their quota without proper accounting
and are fishing for untold family members. The subsistence halibut
regulations on retention and customary trade remain too permissive,
allowing for large scale abuses by commercial interests such as lodge
operators and the entry of subsistence halibut into commercial markets.
Response: One of the purposes of the Subsistence Halibut Program
was to allow for the customary and traditional practice of sharing.
This purpose is achieved by allowing harvesters to retain halibut
beyond their own immediate needs for distribution to members of their
family, friends, or others in the community. Under 50 CFR 300.66(h)
retention of subsistence halibut with commercial halibut is prohibited
except in limited circumstances in Areas 4C, 4D, and 4E. Additionally,
under 50 CFR 300.66(j), it is unlawful for persons 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. Therefore, fishing for
or retaining subsistence halibut by an IFQ holder when commercial
fishing for halibut or allowing subsistence halibut to enter commerce
would be illegal.
NOAA Enforcement will pursue identified abuses of the Subsistence
Halibut Program, including any violations of the regulations regarding
customary trade. NMFS also encourages anyone who observes illegal
activity in the subsistence halibut fishery to contact NOAA
Enforcement.
Comment 29: 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 harvest of subsistence halibut and certain species
taken incidental to subsistence halibut fishing is estimated based on
the subsistence halibut survey. This survey indicates that subsistence
halibut harvests are low relative to other sources of halibut fishing
mortality. Hence, NMFS determined that the estimation of subsistence
harvests does not need to be any more precise, or the reporting
requirements any more robust than those used for estimating the sport
harvest of halibut. Sport harvest of halibut is 9.3 percent of total
halibut removals, which is substantially larger than subsistence
harvest, which is 1.3 percent of total halibut removals.
Marking fish would constitute a regulatory burden with no
corresponding enforcement or data collection value.
Comment 30: The non-subsistence areas in Juneau, Sitka, and
Ketchikan have wrongfully restricted Alaska Native's right to subsist
in areas that have been traditionally used to subsistence fish for
halibut.
Response: The Council adopted and NMFS approved the definition
developed by the Alaska Joint Board of Fisheries and Game for non-
subsistence areas. The designated areas include the Anchorage-Matsu-
Kenai, Prince William Sound, Juneau, and Ketchikan non-subsistence
areas as defined in the Alaska Administrative Code (5 AAC 99.105) and
50 CFR 300.65. No subsistence fishing for halibut may occur within the
boundaries described under these designations. Since the implementation
of the Subsistence Halibut Program, NMFS and the Council received
public testimony and written comments stating the non-subsistence areas
exclude eligible tribes from their customary and traditional fishing
grounds and result in a safety hazard by forcing eligible subsistence
fishermen to travel excessive distances to fish for subsistence
halibut.
In December 2004, the Council recommended allowing the use of
Ceremonial and Educational Permits in the non-subsistence areas.
Proposed implementing rules for allowing the Ceremonial and Educational
Permits in non-subsistence areas will be published in the Federal
Register for public comment at a later date.
Comment 31: Alaska Natives have customary and traditional use
rights which supersede State and Federal restrictions in the
Subsistence Halibut Program. Subsistence fishing for halibut should
have priority over commercial or sport fisheries.
Response: The Halibut Act, under which the Subsistence Halibut
Program is authorized, provides for fair and equitable allocation of
halibut fishing privileges among U.S. fishermen, but does not establish
an order of priority for those allocations. Allocation policy
[[Page 16748]]
is made by the Council. NMFS will review policy recommendations for
fairness, equity, and consistency with the Halibut Act and other
applicable law.
Comment 32: NMFS should employ a catch record card (CRC) system for
the Subsistence Halibut Program.
Response: Although the suggested CRC method for estimating
subsistence harvests is a reasonable alternative to the methodology
used in the subsistence halibut survey conducted by ADF&G, the CRC
method would be more complex and burdensome for the subsistence
fishermen. The suggested CRC method presents the following problems:
(1) agency action 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 is the sport halibut fishery
when, according to existing data, the latter harvests 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 fishermen, 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.
This burden may be justified in the future, based on experience with
the survey method, but for now is deemed unnecessary.
Comment 33: NMFS should set a size limit on halibut in order to
protect future stocks.
Response: Size limits for biological purposes are established by
the IPHC and do not represent an allocation measure assigned to the
Council or NMFS under the Halibut Act. Proposals for biological
management measures for halibut may be submitted to the IPHC.
Comment 34: Subsistence fishermen should be required to retrieve
their gear in a timely manner.
Response: Currently, no regulations exist in any Federally managed
fishery in the North Pacific that restricts the amount of time any form
of gear is allowed to remain or ``soak'' in the water. Moreover, NMFS
has no information on which to base such a restriction. Therefore, NMFS
has no intention of regulating the soak time of subsistence fishing
gear until information on the need for and implementation of such a
management measure is developed.
Comment 35: NMFS should cooperate more with the tribal
representatives to gather information about the subsistence fishery.
Response: Executive Order 13175 directs agencies to consult and
coordinate with tribes on regulatory issues. NMFS regularly consults
with Alaska Native representatives through the Alaska Native
Subsistence Halibut Working Group. NMFS agrees that cooperating with
the affected Alaska Native tribes will foster trust between the agency
and subsistence fishermen 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 continue to adhere to the Council's guidance and to consult with
Alaska Native tribal representatives.
Comment 36: The subsistence halibut fishery should be discontinued
and a valid accounting made of the commercial catch.
Response: The subsistence halibut fishery occurred for a long time
before NMFS recognized longstanding customary and traditional practices
among Alaska Native and rural residents of Alaska through regulations.
The subsistence halibut fishery serves a valid purpose in allowing
those eligible to provide sustenance for themselves, their families,
and their communities. NMFS believes that the Subsistence Halibut
Program has been successful in achieving that purpose. Therefore, NMFS
does not intend to discontinue the Subsistence Halibut Program.
This rule does not address the commercial halibut fishery. The
commercial catch of halibut is managed through an individual fishery
quota (IFQ) system. The IFQ program provides a specific allocation of
the total allowable catch of a species or fishery to a qualified
person. Fishing for that allocation is subject to strict recordkeeping
and reporting requirements and the responsible person may not exceed
that limit without significant penalties. Consequently, the IFQ halibut
fishery management system constitutes an appropriately valid accounting
of IFQ halibut and sablefish.
Comment 37: Regulations should legitimize the existing halibut
subsistence fishery without expanding or creating a new one.
Response: One of the stated goals of the original subsistence
halibut action was to formalize a heretofore unrecognized fishery (68
FR 18145, April 15, 1003, EA/RIR). In the original analysis for the
Subsistence Halibut Program the Council originally estimated harvest of
subsistence halibut to be approximately 1.5 million pounds net (68 FR
18145, April 15, 2003, EA/RIR). The subsistence halibut survey
conducted by ADF&G for 2003 indicates with a relatively high degree of
confidence that the subsistence halibut fishery removed only 1.041
million pounds net. Prior estimates for subsistence halibut removals in
individual IPHC areas are also fairly consistent with findings in the
subsistence halibut survey. For instance, modest increases to
subsistence halibut removals were recorded in Areas 2C and 3A of
roughly 125,000 pounds each, but little or no increase was measured in
the remaining IPHC areas. Therefore, based on the best available
information provided in the 2003 subsistence halibut survey, NMFS
believes that it has recognized in regulations the existing halibut
subsistence fishery without expanding or creating a new one.
Comment 38: NMFS seriously underestimated interest in subsistence
halibut fishing in Alaska, which has resulted in higher levels of
subsistence halibut harvest than originally anticipated.
Response: The analysis prepared for the original Subsistence
Halibut Program estimated that approximately 89,000 individuals would
be eligible to harvest subsistence halibut (68 FR 18145, April 15,
2003, EA/RIR). NMFS originally estimated that approximately 10 percent
of the eligible population would apply for the Subsistence Halibut
Program. Thus, NMFS originally anticipated approximately 8,900
individuals to apply for and potentially participate with a subsistence
halibut registration certificate.
According to the recent subsistence halibut survey conducted by
ADF&G, of the 11,625 individuals registered to fish for subsistence
halibut only an estimated 4,935 individuals actually fished in the
subsistence halibut fishery. Therefore, actual participation in the
fishery is well below the original estimate.
Additionally, the analysis estimated harvest of subsistence halibut
would be approximately 1.5 million pounds net (68 FR 18145, April 15,
2003, EA/RIR). The subsistence halibut survey conducted by ADF&G for
2003 indicates with a relatively high degree of confidence that the
subsistence halibut
[[Page 16749]]
fishery removed only 1.04 million pounds net, which is considerably
less than the Council's original estimate of 1.5 million pounds net.
Therefore, actual subsistence halibut harvest is lower than originally
anticipated as indicated by the best available data.
Comment 39: NMFS has failed to set adequate limits for the new
subsistence halibut fishery or for the unguided sport fishery for
halibut.
Response: The gear and harvest restrictions proposed by the Council
and implemented by NMFS strike an adequate balance between the needs of
subsistence fishermen and conservation of the resource. See also
Response under Comments 1 and 7.
This rule does not address the sport fishery for halibut.
Comment 40: Inaccurate estimates by NMFS of the actual levels of
subsistence halibut harvest pose a risk to the halibut biomass as a
whole, especially in light of recent IPHC data estimating that the
exploitable biomass of halibut will continue to decline. This will
potentially result in adverse effects to the halibut resource and all
users of the halibut resource.
Response: In the original analysis for the Subsistence Halibut
Program, the Council estimated total harvest for the subsistence
fishery at 1.5 million pounds net (68 FR 18145, April 15, 2003, EA/
RIR). The subsistence halibut survey conducted by ADF&G for 2003
indicates with a relatively high degree of confidence that the
subsistence halibut fishery removed only 1.04 million pounds net, which
is considerably less than the Council's original estimate.
Additionally, the subsistence halibut survey indicates that only 1.3
percent of the total halibut removals in Alaska are attributed to the
subsistence fishery. The level of subsistence halibut removals for
subsistence is far less than the commercial harvest (73.5 percent),
bycatch in other commercial fisheries (13.9 percent), the sport harvest
(9.3 percent), or even wastage within the commercial halibut fishery
(2.0 percent). Therefore, no reasonable basis exists to indicate the
subsistence fishery poses a conservation risk or will adversely affect
the halibut resource.
Nonetheless, the allocation for the commercial fishery may be
adversely affected as the IPHC calculation of exploitable biomass
continues to decrease. Recent subsistence and sport removals have
tended to either remain constant or increase consistent with population
trends and economic factors in Alaska. Because subsistence and sport
caught removals are deducted from the exploitable biomass before
allocation to the commercial fishery, this could result in a lower
proportional share of the overall halibut resource for commercial
exploitation as biomass decreases.
Comment 41: NMFS should not allow retention of any sport or
commercial fish species with subsistence halibut because it increases
the risk that subsistence halibut could be used clandestinely as bait,
sold, or abused in other ways.
Response: The current halibut regulations prohibit the retention of
subsistence halibut with commercial or sport caught halibut with
limited exceptions in the Bering Sea. However, no prohibition exists
regarding the retention of other commercial or sport caught species
with subsistence halibut. For instance, a subsistence halibut fisherman
could lawfully retain Dungeness crab caught using a sport fishing
license along with subsistence halibut. Likewise, a commercial salmon
troller could retain subsistence halibut along with commercially caught
salmon, provided he or she is an eligible subsistence fisherman and
abides by the gear and harvest restrictions for subsistence halibut.
NMFS currently does not perceive a problem with allowing the
retention of sport caught fish of other species with subsistence
halibut. Fishermen often harvest and retain a variety of species
simultaneously subject to their personal tastes and subsistence needs.
However, NMFS may seek to restrict retaining sport caught fish of other
species with subsistence halibut in the future if available information
suggests that allowing that practice adversely affects management of
the Subsistence Halibut Program.
NMFS recognizes that a ``substitution effect'' could occur when a
commercial fisherman has the opportunity to retain subsistence halibut
with commercial fish of other species. This means the salmon troller
might retain a subsistence halibut for personal use where he otherwise
would have retained a commercially caught salmon. There potentially
would also be an ``income effect'' that would encourage the salmon
troller to sell the commercially caught salmon he might have otherwise
kept absent the availability of subsistence halibut. However, there are
many variables that might influence a commercial fisherman to
substitute subsistence halibut for salmon or any other commercially
caught species and retention of subsistence halibut is self limiting to
the needs of the individual, their family, or their community.
Therefore, NMFS does not believe there is sufficient reason to restrict
the retention of subsistence halibut along with commercially caught
fish of other species. Nonetheless, NMFS encourages the commentator to
provide his comment to the Council for further review and
consideration.
Comment 42: A full EIS should have been prepared for the original
proposed subsistence halibut rules because substantial uncertainty and
biological controversy exists. The Subsistence Halibut Program
underestimates the magnitude of the actual subsistence halibut harvest
and insufficiently discerns areas where harvest impacts on halibut and
other species are likely to be concentrated.
Response: For the original subsistence halibut policy, the Council
prepared an environmental assessment (EA) that analyzed and described
the impact on the human environment that would result from
implementation of this action. The EA indicated that the preferred
alternative for the Subsistence Halibut Program did not pose public
health and safety impacts, had no known risks to the human environment,
and was not expected to cause significant cumulative impacts. NMFS
believes that the EA adequately addressed the impact on the human
environment and appropriately concluded that there were no significant
cumulative impacts.
Comment 43: There is an unacceptable risk of cumulative impacts on
non-halibut species of fish that will be retained as bycatch by
subsistence halibut fishermen.
Response: The EA for the original Subsistence Halibut Program used
incidental catch rates for commercial longline gear to estimate
potential incidental catch in the subsistence halibut fishery. The EA
estimated that halibut longline gear could result in incidental catch
rates of 10-18 percent for rockfish in Area 2C; 27 percent for
sablefish and 12 percent for Pacific cod in the Gulf of Alaska; and 15
percent for rockfish, 29 percent for sablefish, 14 percent for Pacific
cod and 11 percent for Greenland turbot in the Bering Sea and Aleutian
Islands. Although the estimates of these percentages based on
commercial incidental catch rates provide an indication of potential
incidental catch rates in the subsistence halibut fishery, no directed
studies have been done to assess the effects of the subsistence halibut
fishery on non-halibut species. However, as part of the 2003
subsistence halibut survey, the incidental catch of rockfish and
lingcod was estimated in the subsistence halibut fishery. The increased
restrictions for Area 2C were based in part on the potential incidental
catch of rockfish
[[Page 16750]]
and lingcod in the subsistence halibut fishery. Therefore, for the
purposes of this response, NMFS will focus on Area 2C.
The ADF&G Sport Fish Division survey for Southeast Alaska (IPHC
Area 2C) indicates that 55,394 rockfish and 10,656 lingcod were
harvested in the sport fishery in 2003. The subsistence halibut survey
indicates that 14,870 rockfish and 3,298 lingcod were harvested from
Area 2C as incidental catch in the subsistence halibut fishery in 2003.
Therefore, the subsistence fishery harvested only 31 percent of the
amount of lingcod and 27 percent of the amount of rockfish harvested by
the sport fishery in Area 2C.
Commercial landings for lingcod and rockfish are reported in landed
pounds and no adequate conversion factors exist to extrapolate
commercial landed pounds into total individual fish harvested or vice
versa for comparison with sport and subsistence harvests. However, the
ADF&G Commercial Fish division data for 2003 indicate that 1,729,812
pounds of rockfish and 288,173 pounds of lingcod were landed from Area
2C.
Given the relatively low numbers of rockfish and lingcod retained
by subsistence fishermen as indicated by the subsistence halibut survey
in comparison with the commercial and sport fisheries, NMFS does not
believe that the subsistence halibut fishery will have a significant
direct or cumulative impact on non-halibut species. Consequently, NMFS
does not believe that the subsistence halibut fishery represents an
unacceptable risk to the non-halibut species caught as incidental catch
in the fishery.
Changes from the Proposed Rule
The comments received on the proposed rule made some suggestions
for change with which NMFS agrees. Hence, NMFS has changed regulatory
text in this action from what was published in the proposed rule. None
of these changes 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. NMFS intended that the fishing gear used under a CHP be limited
to 30 hooks per person in possession of a valid subsistence halibut
registration certificate and on board the vessel and not exceed 3 times
the per-person hook limit. NMFS also intended that the gear used under
a Ceremonial or Educational Permits be limited to 30 hooks per vessel.
These limitations were clear in the preamble to the proposed rule. The
regulatory text published in the proposed rule, however, was not
explicitly clear. This lack of specificity and potential ambiguity in
the proposed regulatory text was discovered subsequent to the
publication of the proposed rule. Hence, the regulatory text at
Sec. Sec. 300.65(g)(1)(I), 300.65(i)(3)(iv), and (j)(3)(vi) is changed
from what it was in the proposed rule to clarify the gear limitation
for a CHP, Ceremonial Permit, and Educational Permit.
2. NMFS intended that the operation of the special permits consist
of a permit log that is maintained by the permit coordinator and a
permit card that must be on board the vessel when fishing under the
applicable special permit. This was clear in the preamble to the
proposed rule, but was not explicitly clear in the regulatory text.
This lack of specificity and potential ambiguity in the proposed
regulatory text was discovered subsequent to the publication of the
proposed rule. Thus, the regulatory text at Sec. Sec. 300.65(i),
(i)(3)(iii), (j), and (j)(3)(iii) is changed from what it was in the
proposed rule to clarify that a permit card must be on board the vessel
when fishing under a special permit.
3. A change was suggested in Comment 14 to allow up to five
separate vessels to fish under a CHP. NMFS agrees that the proposed CHP
system is not consistent with customary and traditional harvest
patterns and practices or sufficient to meet the subsistence needs of
the affected communities and tribes. Under the proposed change,
eligible tribes and communities would continue to receive one CHP, but
could receive up to five laminated permit cards. This requirement would
increase the administrative responsibilities of the CHP Permit
Coordinator, but would allow for greater efficiency in conducting
community harvest according to customary and traditional methods and
needs. NMFS agrees with this suggestion for this purpose and finds that
this change from the proposed rule is not substantive. The regulatory
text at Sec. 300.65(i) is changed from what it was in the proposed
rule to indicate that five permit cards would be issued with the CHP,
allowing up to five 5 vessels to fish simultaneously under a CHP.
4. Another change, based on recommendations in Comment 17, would
allow flexibility in the administration of the special permits by
permit coordinators. This is necessary to allow for the use of the
special permits if the permit coordinator becomes incapacitated or is
otherwise unavailable. Hence, NMFS changed the regulatory text at
Sec. Sec. 300.65(i)(5)(i)-(iii) and Sec. Sec. 300.65(j)(5)(i)-(iii)
from what was published in the proposed rule to indicate that the
permit coordinator would remain ultimately responsible, but that the
applicable permit may be administered by a designee.
Classification
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA) and which has been approved by OMB
under control number 0648-0512. Public reporting burden for this
collection of information is estimated to average 10 minutes per
response for each permit application and 30 minutes per response for
each harvest log, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding these burden estimates or any other aspect of
this data collection, including suggestions for reducing the burden, to
NMFS (see ADDRESSES) and to OMB by e-mail David_Rostker@omb.eop.gov or
fax 202-395-7285.
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.
A Final Regulatory Flexibility Analysis (FRFA) was prepared for
this action that examines regulations regarding the legal harvest of
halibut for subsistence use in Convention waters in and off Alaska. The
FRFA evaluates the small entity impacts for an action to amend
subsistence halibut regulations affecting proxy fishing and the
development of a ceremonial/cultural harvest permit system and an
educational harvest permit system in Areas 2C and 3A. This action is
believed to have the potential to result in a significant impact on a
substantial number of small entities, as defined under the Regulatory
Flexibility Act. The FRFA addresses the requirements of the Regulatory
Flexibility Act at section 604(a).
An Initial Regulatory Flexibility Analysis (IRFA) was prepared for
two regulatory changes to issue permits to Alaska Native Tribes or
community entities under the Action 1 preferred alternative, which are
believed to have the potential to result in a significant impact on a
substantial number of small entities. Special permits proposed in this
rule would impact small entities in the form of small government
[[Page 16751]]
jurisdictions with fewer than 50,000 residents. The special permits
represent the only aspect of this action that affects small entities.
The remainder of the action bears exclusively on the non-commercial
activities of ``individuals,'' which are subsequently excluded from the
RFA.
The purpose and need for this action is to provide for improved
safety at sea, recognition and accommodation of traditional Native
customs and practices, facilitation of efficient acquisition of
subsistence food, reductions in waste and discards, and promotion of
halibut conservation. Special permits administered under this action
would provide for the above subsistence needs under the existing
Subsistence Halibut Program. Twenty-nine rural communities and 19
tribes in IPHC Area 2C and 14 rural communities and 19 tribes in IPHC
Area 3A may be affected by this action.
The proposed rule was published in the Federal Register on July 9,
2004 (69 FR 41453). The IRFA prepared for the preferred alternative was
described in the classifications section of the preamble to the
proposed rule. The public comment period ended August 9, 2004. No
comments were received on the IRFA.
Specialized permits implemented by this action would require
additional reporting for halibut harvest. The applications for the
proposed specialized permits and additional reporting requirements
would be designed to minimize the information collection burden on
subsistence halibut fishermen while retrieving essential information.
New recordkeeping and reporting requirements under this action would
require mandatory reporting of subsistence harvests conducted under
special permits that include community harvest permits (CHPs),
Ceremonial Permits, and Educational Permits. All the small entities
included in this analysis would be subject to the increased
recordkeeping and reporting requirements. No special knowledge or
training would be required for any recordkeeping and reporting
requirements for the special permits implemented under this action.
The Council analyzed five alternatives for this action. These
alternatives addressed varying applications of each special permit
under this proposed rule including a no action alternative and the
selected preferred alternative. Under Alternative 1, the no action
alternative, the status quo would be maintained and no special permits
would issue to Alaska Native tribes or rural communities under the
Subsistence Halibut Program. Alternative 2 analyzed the development of
a proxy system, but did not include special permits. Alternative 3
analyzed the development of a proxy system in conjunction with
community harvest permits. Alternative 4 and Alternative 5 (the
preferred alternative) recommended the development of special permits
in the form of ceremonial/cultural permits and community harvest
permits.
The Council determined that the Alternatives 1 through 4 failed to
meet the goals of the Subsistence Halibut Program to provide for
improved safety at sea, recognition and accommodation of traditional
Native customs and practices, facilitation of efficient acquisition of
subsistence food, reductions in waste and discards, and promotion of
halibut conservation. The Council determined that implementing special
permits according to the preferred alternative would provide a means to
meet these goals by establishing a system that provides for better
harvest assessment and stock monitoring while recognizing the unique
character of the Alaska Native tribes and rural communities. For the
Community Harvest Permits, the Council selected a permit system based
on the recommendations of the Halibut Subsistence Committee as opposed
to a proxy system based on the model provided by the State of Alaska.
The Council believed that a proxy system would fail to provide adequate
harvest assessment and would present cumbersome management and
enforcement problems. Therefore, the Council concluded that Community
Harvest Permits would more closely adhere to the customary and
traditional fishing practices of Alaska Native tribes and rural
communities, which historically used individuals with particular
expertise in halibut to harvest halibut for most or all of the tribe or
community. For the Ceremonial and Educational Permits, the Council
selected a permit system modeled after the U.S. Fish and Wildlife
Service's subsistence permit programs because that permit system
represented a proven system that corresponded well with the similar
subsistence goals of the Subsistence Halibut Program. The Council
selected the Ceremonial and Educational Permit system to recognize the
unique needs and characteristics of Alaska Native tribes.
This rule has been determined to be not significant for purposes of
Executive Order 12866.
List of Subjects
50 CFR Part 300
Fisheries, Fishing, Indians, Reporting and recordkeeping
requirements, Treaties.
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 25, 2005.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 50 CFR parts 300 and 679 are
amended as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart E--Pacific Halibut Fisheries
0
1. The authority citation for 50 CFR part 300, subpart E, continues to
read as follows:
Authority: 16 U.S.C. 773-773k.
Sec. 300.63 [Amended]
0
2. In Sec. 300.63, the introductory paragraph preceding paragraph (a)
is removed.
0
3. In Sec. 300.65, paragraphs (c) and (h)(4) are removed; paragraph
(i) is redesignated as paragraph (c); paragraphs (d)(4) and (g)(1)(i),
(g)(2), and (g)(3)(iii) are revised; and new paragraphs (i) through (k)
are added to read as follows:
Sec. 300.65 Catch sharing plan and domestic management measures in
waters in and off of Alaska.
* * * * *
(d) * * *
(4) No charter vessel shall engage in sport fishing, as defined at
Sec. 300.61, 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 Sec. 300.61, 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 paragraph
(d)(1)(ii) of this section, may be retained onboard a charter vessel
engaged in sport fishing, as defined in Sec. 300.61, for other species
within Sitka Sound, as defined in paragraph (d)(1)(ii) of this section,
from June 1 through August 31.
* * * * *
(g) * * *
(1) * * *
[[Page 16752]]
(i) Subsistence fishing gear set or retrieved from a vessel when
fishing under a subsistence halibut registration certificate or a
Community Harvest Permit (CHP) must not have more than 30 hooks per
person registered in accordance with paragraph (h) of this section and
on board the vessel and shall never exceed 3 times the per-person hook
limit except that:
(A) No hook limit applies in Areas 4C, 4D, and 4E;
(B) In Area 2C, subsistence fishing gear set or retrieved from a
vessel when persons are fishing under a subsistence halibut
registration certificate must not have more than 30 hooks per vessel;
(C) In Area 2C, subsistence fishing gear set or retrieved from a
vessel when fishing under a Ceremonial or Educational Permit pursuant
to paragraph (j) of this section must not have more than 30 hooks per
vessel; and
(D) In Area 2C within the Sitka LAMP from June 1 to August 31,
setline gear may not be used in a 4 nautical mile radius extending
south from Low Island at 57[deg]00'42'' N. lat., and 135[deg]36'34'' W.
long.
* * * * *
(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 this paragraph (g) and on board
the vessel, except that:
(i) No daily retention limit applies in Areas 4C, 4D, and 4E;
(ii) No daily retention limit applies to persons fishing under a
community harvest permit (CHP) pursuant to paragraph (i) of this
section;
(iii) The total allowable harvest for persons fishing under a
Ceremonial or Educational Permit pursuant to paragraph (j) of this
section is 25 fish per permit; and
(iv) In Area 2C the daily retention limit is 20 fish per vessel.
(3) * * *
(iii) The Anchorage-Matsu-Kenai non-subsistence marine waters area
in Commission Regulatory Area 3A (see Figure 4 to subpart E) is defined
as:
(A) All waters of Cook Inlet north of 59[deg]30.40' N. lat., except
those waters within mean lower low tide from a point one mile south of
the southern edge of the Chuitna River (61[deg]05.00' N. lat.,
151[deg]01.00' W. long.) south to the easternmost tip of Granite Point
(61[deg]01.00' N. lat., 151[deg]23.00' W. long.) (Tyonek subdistrict);
and
(B) All waters of Alaska south of 59[deg]30.40' N. lat. on the
western shore of Cook Inlet to Cape Douglas (58[deg]10' N. lat.) and in
the east to Cape Fairfield (148[deg]50.25' W. long.), except those
waters of Alaska west of a line from the westernmost point of Jakolof
Bay (151[deg]31.09' W. long.) and following the shore to a line
extending south from the easternmost point of Rocky Bay (151[deg]18.41'
W. long.); and
* * * * *
(i) Community Harvest Permit (CHP). An Area 2C community or Alaska
Native tribe listed in paragraphs (f)(1) or (f)(2) of this section may
apply for a CHP, which allows a community or Alaska Native tribe to
appoint one or more individuals from its respective community or Alaska
Native tribe to harvest subsistence halibut from a single vessel under
reduced gear and harvest restrictions. The CHP consists of a harvest
log and up to five laminated permit cards. A CHP is a permit subject to
regulation under Sec. 679.4(a) of this title.
(1) Qualifications. (i) NMFS may issue a CHP to any community or
Alaska Native tribe that applies according to paragraph (i)(2) of this
section and that is qualified to conduct subsistence fishing for
halibut according to paragraph (f) of this section.
(ii) NMFS will issue a CHP to a community in Area 2C only if:
(A) The applying community is listed as eligible in Area 2C
according to paragraph (f)(1) of this section; and
(B) No Alaska Native tribe listed in paragraph (f)(2) exists in
that community.
(iii) NMFS will issue a CHP to an Alaska Native tribe in Area 2C
only if the applying tribe is listed as eligible in Area 2C according
to paragraph (f)(2) of this section.
(iv) Eligible communities or Alaska Native tribes may appoint only
one CHP Coordinator per community or tribe.
(2) Application. A community or Alaska Native tribe may apply for a
CHP by submitting an application to the Alaska Region, NMFS.
Applications must be mailed to: Restricted Access Management Program,
NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668. A complete
application must include:
(i) The name of the community or Alaska Native tribe requesting the
CHP;
(ii) The full name of the person who is designated as the CHP
Coordinator for each community or Alaska Native tribe, the designated
CHP Coordinator's mailing address (number and street, city, state, and
zip code), community of residence (the rural community or residence
from paragraph (f)(1) of this section) or the Alaska Native tribe if
applicable (as indicated in paragraph (f)(2) of this section), and the
daytime telephone number; and
(iii) Any previously issued CHP harvest logs.
(3) Restrictions. Subsistence fishing for halibut under a CHP shall
be valid only:
(i) In Area 2C, except that a CHP may not be used:
(A) Within the Sitka LAMP defined in paragraph (d) of this section
(see Figure 1 to subpart E); or
(B) Within the Juneau and Ketchikan non-rural areas defined in
paragraph (g) of this section (see Figures 2 and 3 to subpart E);
(ii) To persons in possession of a valid subsistence halibut
registration certificate issued in accordance with paragraph (h) of
this section for the same community or Alaska Native tribe listed on
the CHP;
(iii) On a single vessel on which a CHP card is present; and
(iv) If subsistence fishing gear set or retrieved from a vessel on
which the CHP card is present does not exceed the restrictions of
paragraph (g) of this section.
(4) Expiration of permit. Each CHP will be valid only for the
period of time specified on the permit. A CHP will expire one year from
the date of issuance to a community or Alaska Native tribe eligible to
harvest halibut under paragraph (f) of this section. A community or
Alaska Native tribe eligible to harvest subsistence halibut under
paragraph (f) of this section may renew its CHP that is expired or will
expire within three months by following the procedures described in
paragraph (i)(2) of this section.
(5) Duties of the CHP coordinator. Each CHP Coordinator must
ensure:
(i) The designated harvesters who may fish under the CHP are
identified on the Community Harvest Permit harvest log when the CHP is
issued to the designated harvesters;
(ii) The CHP remains in the possession of the CHP Coordinator or
other tribal or government authority when not in use and is issued to
the designated harvesters when necessary; and
(iii) All required recordkeeping and data reporting of subsistence
harvests under the CHP are performed.
(6) Harvest log submission. Each Community Harvest Permit harvest
log must be submitted to NMFS on or before the date of expiration by
facsimile or mail. Harvest logs must be mailed to RAM at the address
given in paragraph (i)(2) of this section or faxed to 907-586-7354. The
log must provide information on:
(i) The subsistence fisher's identity including his or her full
name, subsistence halibut registration
[[Page 16753]]
certificate number, date of birth, mailing address (number and street,
city, state, and zip code), community of residence, daytime phone
number, and tribal identity (if appropriate); and
(ii) The subsistence halibut harvest including whether the
participant fished for subsistence halibut during the period specified
on the permit, and if so, the date harvest occurred, the number and
weight (in pounds) of halibut harvested, the type of gear and number of
hooks used, the Commission regulatory area and local water body from
which the halibut were harvested, and the number of lingcod and
rockfish caught while subsistence fishing for halibut.
(j) Ceremonial Permit or Educational Permit. An Area 2C or Area 3A
Alaska Native tribe that is listed in paragraph (f)(2) of this section
may apply for a Ceremonial or Educational Permit, allowing the tribe to
harvest up to 25 halibut per permit issued. The Ceremonial and
Educational Permits each consist of a harvest log and a single
laminated permit card. Ceremonial and Educational Permits are permits
subject to regulation under Sec. 679.4(a)of this title.
(1) Qualifications. (i) NMFS may issue a Ceremonial or Educational
Permit to any Alaska Native tribe that completes an application
according to paragraph (j)(2) of this section and that is qualified to
conduct subsistence fishing for halibut according to paragraph (f)(2)
of this section.
(ii) Eligible Alaska Native tribes may appoint only one Ceremonial
Permit Coordinator per tribe.
(iii) Eligible educational programs may appoint only one authorized
Instructor per Educational Permit.
(2) Application. An Alaska Native tribe may apply for a Ceremonial
or Educational Permit by submitting an application to the Alaska
Region, NMFS. Applications must be mailed to: Restricted Access
Management Program, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK
99802-1668.
(i) A complete application must include:
(A) The name of the Alaska Native tribe requesting the Ceremonial
or Educational Permit;
(B) The name of the person designated as the Ceremonial Permit
Coordinator for each Alaska Native tribe or the name of the person
designated as the Instructor for an Educational Permit, the Ceremonial
Permit Coordinator or Instructor's mailing address (number and street,
city, state, and zip code), and the daytime telephone number;
(C) Any previously issued Ceremonial Permit harvest logs from any
expired Ceremonial Permit if applying for a Ceremonial Permit; and
(D) Any previously issued Educational Permit harvest logs from any
expired Educational Permit if applying for a Educational Permit.
(ii) NMFS will issue a Ceremonial Permit for the harvest of halibut
associated with traditional cultural events only if the application:
(A) Indicates the occasion of cultural or ceremonial significance;
and
(B) Identifies the person designated by the eligible Alaska Native
tribe as the Ceremonial Permit Coordinator.
(iii) NMFS will issue an Educational Permit only if the
application:
(A) Includes the name and address of the educational institution or
organization;
(B) Includes the instructor's name;
(C) Demonstrates the enrollment of qualified students;
(D) Describes minimum attendance requirements of the educational
program; and
(E) Describes standards for the successful completion of the
educational program.
(3) Restrictions. Subsistence fishing for halibut under Ceremonial
or Educational Permits shall be valid only:
(i) In Area 3A, except in the Anchorage-Matsu-Kenai and Valdez non-
rural areas defined in paragraph (g) of this section (see Figures 4 and
5 to subpart E);
(ii) In Area 2C, except in the Juneau and Ketchikan non-rural areas
defined in paragraph (g) of this section (see Figures 2 and 3 to
subpart E) and a Ceremonial Permit may not be used within the Sitka
LAMP from June 1 through August 31;
(iii) On a single vessel on which the Ceremonial or Educational
Permit card is present;
(iv) On the vessel on which the instructor is present for
Educational Permits;
(v) To persons in possession of a valid subsistence halibut
registration certificate issued in accordance with paragraph (h) of
this section for the same Alaska Native tribe listed on the Ceremonial
or Educational Permit, except that students enrolled in an educational
program may fish under an Educational Permit without a subsistence
halibut registration certificate; and
(vi) If subsistence fishing gear set or retrieved from a vessel on
which the Ceremonial or Educational Permit card is present does not
exceed the restrictions of paragraph (g) of this section.
(4) Expiration of permits. Each Ceremonial or Educational Permit
will be valid only for the period of time specified on the permit.
Ceremonial and Educational Permits will expire 30 days from the date of
issuance to an Alaska Native tribe eligible to harvest halibut under
paragraph (f)(2) of this section. A tribe eligible to harvest
subsistence halibut under paragraph (f)(2) of this section may apply
for additional Ceremonial or Educational Permits at any time.
(5) Duties of Ceremonial Permit Coordinators and Instructors. Each
Ceremonial Permit Coordinator or Instructor must ensure:
(i) The designated harvesters or students who may fish under the
Ceremonial or Educational Permit are identified on the Ceremonial/
Educational Permit harvest log when the permit is used;
(ii) The Ceremonial Permit remains in the possession of the
Ceremonial Permit Coordinator or other tribal authority when not in use
and is issued to designated harvesters when necessary; and
(iii) All required recordkeeping and data reporting of subsistence
harvests under the Ceremonial or Educational Permit are performed.
(6) Harvest log submission. Submission of a Ceremonial or
Educational Permit log shall be required upon the expiration of each
permit and must be received by Restricted Access Management within 15
days of the expiration by facsimile or mail. Harvest logs must be
mailed to RAM at the address given in paragraph (j)(2) of this section
or faxed to 907-586-7354. The log must provide information on:
(i) The subsistence fisher's identity including his or her full
name, subsistence halibut registration certificate number if applicable
(students do not need a SHARC), date of birth, mailing address (number
and street, city, state, and zip code), community of residence, daytime
phone number, and tribal identity;
(ii) The subsistence halibut harvest including whether the
participant fished for subsistence halibut during the period indicated
on the permit, and if so, the date when harvest occurred, the number
and weight (in pounds) of halibut harvested, the type of gear and
number of hooks used, the Commission regulatory area and local water
body from which the halibut were harvested, and the number of lingcod
and rockfish caught while subsistence fishing for halibut.
(k) Appeals. If Restricted Access Management (RAM) determines that
an application is deficient, it will prepare and send an Initial
Administrative Determination (IAD) to the applicant.
[[Page 16754]]
The IAD will indicate the deficiencies in the application or any
additional provided information. An applicant who receives an IAD may
appeal RAM's findings pursuant to Sec. 679.43 of this title.
0
4. In Sec. 300.66, paragraphs (e) and (h) are revised; paragraph (k)
is redesignated as paragraph (l) and republished, and a new paragraph
(k) is added to read as follows:
Sec. 300.66 Prohibitions.
* * * * *
(e) Fish for subsistence halibut in and off Alaska unless the
person is qualified to do so under Sec. 300.65(f), possesses a valid
subsistence halibut registration certificate pursuant to Sec.
300.65(h), and makes this certificate available for inspection by an
authorized officer on request, except that students enrolled in a valid
educational program and fishing under an Educational Permit issued
pursuant to Sec. 300.65(j) do not need a subsistence halibut
registration certificate.
* * * * *
(h) Retain on board the harvesting vessel halibut harvested while
subsistence fishing with halibut harvested while commercial fishing or
from sport fishing, as defined at Sec. 300.61(b), except that persons
authorized to conduct subsistence fishing under Sec. 300.65(f), and
who land their total annual harvest of halibut:
(1) In Commission regulatory Areas 4D or 4E may retain, with
harvests of Community Development Quota (CDQ) halibut, subsistence
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 Sec. 300.62; or
(2) In Commission regulatory Areas 4C, 4D or 4E may retain, with
harvests of CDQ halibut, subsistence halibut harvested in Commission
regulatory areas 4C, 4D or 4E that are equal to or greater than the
size limit specified in the annual management measures published
pursuant to Sec. 300.62.
* * * * *
(k) Retain subsistence halibut harvested under a CHP, Ceremonial
Permit, or Educational Permit together in any combination or with
halibut harvested under any other license or permit.
(l) Fillet, mutilate, or otherwise disfigure subsistence halibut in
any manner that prevents the determination of the number of fish
caught, possessed, or landed.
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
5. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851
note; 3631 et seq.
0
6. In Sec. 679.4, paragraphs (a)(1) introductory text and (a)(2) are
revised and paragraph (a)(1)(xi) is added to the table to read as
follows:
Sec. 679.4 Permits.
(a) * * *
(1) What permits are available? Various types of permits are issued
for programs codified at 50 CFR parts 300 and 679. These permits are
listed in the following table. The date of effectiveness for each
permit is given along with certain reference paragraphs for further
information.
------------------------------------------------------------------------
Permit is in
effect from
If program permit or card type is: issue date For more
through end information, see...
of:
------------------------------------------------------------------------
* * * * * .............. ...................
------------------------------------------------------------------------
(xi) Special Subsistence Permits .............. ...................
(A) Community Harvest Permit 1 year Sec. 300.65 of
this title
(B) Ceremonial or Educational 30 days Sec. 300.65 of
Permit this title
------------------------------------------------------------------------
(2) Permit and logbook required by participant and fishery. For the
various types of permits issued, refer to Sec. 679.5 for recordkeeping
and reporting requirements. For subsistence permits, refer to Sec.
300.65 of this title for recordkeeping and reporting requirements.
* * * * *
0
7. In Sec. 679.43, paragraph (a) is revised to read as follows:
Sec. 679.43 Determinations and appeals.
(a) General. This section describes the procedure for appealing
initial administrative determinations made in this title under parts
679, 680, and under subpart E of part 300. This section does not apply
to initial administrative determinations made under Sec. 679.30(d).
* * * * *
[FR Doc. 05-6507 Filed 3-31-05; 8:45 am]
BILLING CODE 3510-22-S