[Federal Register Volume 73, Number 150 (Monday, August 4, 2008)]
[Proposed Rules]
[Pages 45201-45204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17814]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 071203794-8828-01]
RIN 0648-AW36


Pacific Halibut Fisheries; Subsistence Fishing

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes regulations that amend the subsistence fishery 
rules for members of an Alaska Native tribe eligible to harvest Pacific 
halibut in waters in and off Alaska for customary and traditional use. 
The proposed change would correct the location listed in the 
regulations for the Village of Kanatak tribe and the International 
Pacific Halibut Commission (IPHC) halibut regulatory area (Area) in 
which members may subsistence fish. These regulations correctly define 
the headquarters and Area for the Village of Kanatak tribe. The action 
would change the tribe's headquarters from Egegik to Wasilla and the 
corresponding Area from 4E to Area 3A. The intent of the correction is 
to remove restrictions on participation of tribal members in 
traditional subsistence fisheries for Pacific halibut by aligning the 
tribe's headquarters with its actual location in Wasilla.

DATES: Comments must be received no later than September 3, 2008.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN 
0648-AW36'' by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
    <bullet> Mail: P. O. Box 21668, Juneau, AK 99802.
    <bullet> Fax: (907) 586-7557.
    <bullet> Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    All comments received are a part of the public record and will be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (e.g., name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments must be in Microsoft Word, Excel, WordPerfect, or Adobe 
portable document file (pdf) formats to be accepted.
    Copies of the Categorical Exclusion (CE) and Regulatory Impact 
Review (RIR) prepared for this action may be obtained from the NMFS 
Alaska Region, P.O. Box 21668, Juneau, Alaska 99802, Attn: Ellen 
Sebastian, Records Officer; in person at NMFS Alaska Region, 709 West 
9\th\ Street, Room 420A, Juneau, Alaska; and via the Internet at the 
NMFS Alaska Region website at http://www.noaa.fakr.gov.

FOR FURTHER INFORMATION CONTACT: Peggy Murphy, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background and Need for Action

    The United States and Canada participate in the International 
Pacific Halibut Commission (IPHC) and promulgate regulations governing 
the Pacific halibut (Hippoglossus stenolepis) fishery under the 
authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). 
Regulations governing the allocation and catch of halibut in U.S. 
convention waters that are in agreement with the Halibut Act may be 
developed by the North Pacific Fishery Management Council (Council). 
Regulations recommended by the Council must be approved by the 
Secretary of Commerce before being implemented through the National 
Marine Fisheries Service (NMFS). The Council prepared an environmental 
assessment/regulatory impact review (EA/RIR) for subsistence halibut 
fisheries, in January 2003, and NMFS published the final rule to 
implement subsistence halibut regulations in April 2003 (68 FR 18145). 
The Alaska Native tribe, Village of Kanatak is recognized in the 
regulations as an organized tribal entity with its tribal headquarters 
located in Egegik, Alaska within halibut regulatory area 3A. However, 
the tribe's headquarters are actually located in Wasilla, Alaska in 
halibut regulatory area 4E. The initial assignment of the tribal 
headquarters location to Egegik was incorrect.
    The lists of rural communities and native tribes recommended by the 
Council and approved by the Secretary for subsistence fishing 
eligibility were derived from positive customary and traditional 
findings for halibut and bottomfish made by the Alaska State Board of 
Fisheries (BOF) prior to the Alaska Supreme Court decision, McDowell v. 
State, 785 P.2d 1 (Alaska 1989). The Council retains exclusive 
authority to recommend changes to the list of communities Sec.  
300.65(g)(1) and Alaska Native tribes Sec.  300.65(g)(2) with customary 
and traditional uses of Pacific halibut. Residents and tribal members 
who believe that their rural or tribal place was incorrectly left out 
of the subsistence eligibility listing for

[[Page 45202]]

communities or Alaska Native tribes, or who are seeking eligibility for 
the first time, are encouraged to seek a customary and traditional 
finding from the BOF before petitioning the Council.

The Proposed Action

    In June 2007, the Council received a request from the Kanatak 
Tribal Council to have its fishing area corrected from Area 4E to Area 
3A, because the current, erroneous, listing has prevented the same 
tribal members from participating in traditional subsistence fisheries. 
The Council recognized this difference and responded by recommending an 
amendment to Sec.  300.65(g)(2) to change the listing for the Village 
of Kanatak's headquarters from Egegik to Wasilla and update the 
corresponding halibut regulatory area from Area 4E to Area 3A. The 
intent of the correction is to remove restrictions on individual 
participation by aligning the tribe's headquarters with its actual 
location in Wasilla.
    Individual persons are eligible to harvest subsistence halibut if 
they are rural residents of a community or a member of an Alaska Native 
tribe with customary and traditional uses of halibut. Communities and 
tribes are listed in tables by Halibut Regulatory Areas at Sec.  
300.65(g)(1) and (2), respectively. A person subsistence fishing for 
halibut also must hold a valid Subsistence Halibut Area Registration 
Certificate (SHARC) in that person's name issued by NMFS. An individual 
holding a SHARC that resides in a rural area may harvest subsistence 
halibut in all waters in and off Alaska except for areas designated as 
non-subsistence areas. The four non-subsistence areas specified in 
regulation at Sec.  300.65(h)(3) are the Ketchikan, Juneau, Anchorage/-
Matsu/-Kenai, and Valdez non-subsistence areas (see Figures 2 through 5 
to subpart E of part 300). Under this action, there would be no change 
to rural eligibility criteria to subsistence fish for halibut in any 
halibut regulatory area in waters in and off the State of Alaska.
    A non-rural Alaska resident or a resident of another state who is a 
member of a tribe that is located in a rural area is limited to 
subsistence fishing for halibut only in his or her area of tribal 
membership (Sec.  300.65(h)(4)(i) and (ii)). The ``area of tribal 
membership'' is defined at Sec.  300.65(h)(4)(iii) as ``rural areas of 
the [IPHC] regulatory area or of the Bering Sea closed area in which 
the Alaska Native tribal headquarters is located.'' The area of tribal 
membership for the Kanatak tribe is currently Area 4E. The action would 
align the Village of Kanatak's tribal headquarters with its actual 
location in Wasilla in Area 3A and effectively changes area 
restrictions on some members of the tribe to conduct subsistence 
halibut fishing. The proposed action is expected to redistribute some 
tribal members' harvesting effort from Area 4E to fishing areas in Area 
3A. Waters in Area 3A include two non-subsistence areas that are closed 
to subsistence fishing: the Anchorage-Matsu-Kenai non-rural area and 
the Valdez non-rural area.
    Moving the place of the Kanatak tribal headquarters to Wasilla is 
expected to increase customary and traditional uses of halibut by 
individual members of the tribe in Area 3A. Wasilla is a community in 
the Anchorage-Matsu-Kenai non-rural area within Area 3A where a 
majority of Kanatak tribal members reside. Non-rural and non-resident 
members of the Kanatak tribe may increase subsistence halibut use in 
Area 3A because they would have greater access to subsistence fishing 
areas through Anchorage, central Alaska's main transportation hub that 
is connected to road systems throughout much of Area 3A.
    The action would improve accuracy of current regulations, and the 
quality of subsistence halibut information for non-rural tribal 
members, by correctly recognizing the location of the tribe's 
headquarters in Wasilla. This correction improves area specific data 
collected by the State of Alaska subsistence halibut survey and 
analyzed for reporting subsistence harvest and effort in Alaska.

Classification

    Regulations governing the U.S. fisheries for Pacific halibut are 
developed by the International Pacific Halibut Commission (IPHC), the 
Pacific Fishery Management Council, the North Pacific Fishery 
Management Council (Council), and the Secretary of Commerce. Section 5 
of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 
773c) allows the Regional Council having authority for a particular 
geographical area to develop regulations governing the allocation and 
catch of halibut in U.S. Convention waters as long as those regulations 
do not conflict with IPHC regulations. The proposed action is 
consistent with the Council's authority to allocate halibut catches 
among fishery participants in the waters in and off Alaska.
    Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the 
Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the 
American Indian and Alaska Native Policy of the U.S. Department of 
Commerce (March 30, 1995) outline the responsibilities of NMFS in 
matters affecting tribal interests. Section 161 of Public Law (P.L.) 
108-199 (188 Stat. 452), as amended by section 518 of P.L. 109-447 (118 
Stat. 3267), extends the consultation requirements of E.O. 13175 to 
Alaska Native corporations. NMFS has special obligations to consult and 
coordinate with tribal governments and Alaska Native Claims Settlement 
Act (ANCSA) corporations on a government-to-government basis. This rule 
affects individual members of the Village of Kanatak tribe, but not the 
tribe itself, and the village of Kanatak is not recognized as an ANCSA 
corporation. NMFS recognizes the importance of communication and during 
the process of developing the proposed action, NMFS consulted with the 
Alaska Native Subsistence Halibut Working Group in December 2007 and 
the Kanatak Tribal Administrator in January 2008.
    The proposed rule was determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this action, if adopted, would not have a 
significant economic impact on a substantial number of small entities.


Basis and purpose of rule

    The United States and Canada participate in the International 
Pacific Halibut Commission (IPHC) and promulgate regulations 
governing the Pacific halibut (Hippoglossus stenolepis) fishery 
under the authority of the Northern Pacific Halibut Act of 1982 
(Halibut Act). Regulations governing the allocation and catch of 
halibut in U.S. convention waters that are in agreement with the 
Halibut Act may be developed by the North Pacific Fishery Management 
Council (Council). The Secretary of Commerce must approve 
regulations recommended by the Council before implementation by the 
National Marine Fisheries Service (NMFS). The Council prepared an 
environmental assessment/regulatory impact review (EA/RIR) for 
subsistence halibut fisheries, in January 2003, and NMFS published 
the final rule to implement subsistence halibut regulations in April 
2003 (68 FR 18145). The Alaska Native tribe, Village of Kanatak is 
recognized in the regulations as an organized tribal entity with its 
tribal headquarters located in Egegik, Alaska within halibut 
regulatory area 3A. However, the tribe's headquarters are actually 
located in Wasilla, Alaska in halibut regulatory area 4E. The 
initial assignment of the tribal headquarters location to Egegik was 
incorrect.
    In June 2007, the Council received a request from the Kanatak 
Tribal Council to have its fishing area corrected from Area 4E to 
Area 3A, because the current, erroneous, listing has prevented the 
same tribal members from participating in traditional subsistence 
fisheries. The Council recognized this difference and responded by

[[Page 45203]]

recommending an amendment to Sec.  300.65(g)(2) to change the 
listing for the Village of Kanatak's headquarters from Egegik to 
Wasilla and update the corresponding halibut regulatory area from 
Area 4E to Area 3A. The intent of the correction is to remove 
restrictions on individual participation by aligning the tribe's 
headquarters with its actual location in Wasilla.
    Individual persons are eligible to harvest subsistence halibut 
if they are rural residents of a community or a member of an Alaska 
Native tribe with customary and traditional uses of halibut. 
Communities and tribes are listed in tables by Halibut Regulatory 
Areas at Sec.  300.65(g)(1) and (2), respectively. A person 
subsistence fishing for halibut also must hold a valid Subsistence 
Halibut Area Registration Certificate (SHARC) in that person's name 
issued by NMFS. An individual holding a SHARC that resides in a 
rural area may harvest subsistence halibut in all waters in and off 
Alaska except for areas designated as non-subsistence areas. The 
four non-subsistence areas specified in regulation at Sec.  
300.65(h)(3) are the Ketchikan, Juneau, Anchorage/-Matsu/-Kenai, and 
Valdez non-subsistence areas (see Figures 2 through 5 to subpart E 
of part 300). Under this action, there would be no change to rural 
eligibility criteria to subsistence fish for halibut in any halibut 
regulatory area in waters in and off the State of Alaska.
    A non-rural Alaska resident or a resident of another state who 
is a member of a tribe that is located in a rural area is limited to 
subsistence fishing for halibut only in his or her area of tribal 
membership (Sec.  300.65(h)(4)(i) and (ii)). The ``area of tribal 
membership'' is defined at Sec.  300.65(h)(4)(iii) as ``rural areas 
of the [IPHC] regulatory area or of the Bering Sea closed area in 
which the Alaska Native tribal headquarters is located.'' The area 
of tribal membership for the Kanatak tribe is currently Area 4E. The 
action would align the Village of Kanatak's tribal headquarters with 
its actual location in Wasilla in Area 3A and effectively changes 
area restrictions on some members of the tribe to conduct 
subsistence halibut fishing. The proposed action is expected to 
redistribute some tribal members' harvesting effort from Area 4E to 
fishing areas in Area 3A. Waters in Area 3A include two non-
subsistence areas that are closed to subsistence fishing: the 
Anchorage-Matsu-Kenai non-rural area and the Valdez non-rural area.
    Moving the place of the Kanatak tribal headquarters to Wasilla 
is expected to increase customary and traditional uses of halibut by 
individual members of the tribe in Area 3A. Wasilla is a community 
in the Anchorage-Matsu-Kenai non-rural area within Area 3A where a 
majority of Kanatak tribal members reside. Non-rural and non-
resident members of the Kanatak tribe may increase subsistence 
halibut use in Area 3A because they would have greater access to 
subsistence fishing areas through Anchorage, central Alaska's main 
transportation hub that is connected to road systems throughout much 
of Area 3A.

Factual Basis for the Certification

Description and estimate of the number of small entities to which 
the rule applies

    The action would not directly regulate any small entities. Small 
entities have the same definition as small business, small 
organizations, and small government jurisdictions in Section 601(3)-
(5) of the Regulatory Flexibility Act (RFA) of 1980. Instead, the 
action would directly regulate individual persons who are not 
considered small entities within the meaning of the RFA.
    An individual member of the Village of Kanatak tribe would be 
directly regulated by the action if he or she is: (a) a non-rural 
resident of Alaska or a resident of a state other than Alaska; and 
(b) subsistence fishing for halibut (Sec.  300.65(h)(4)(i)-(iii)). 
Even though there are typically a number of individuals in a tribe 
they are regulated as individual persons and not collectively as 
evidenced by the distinction of residency. The Village of Kanatak 
would be the only Alaska Native tribe whose non-rural and non-
resident members would be directly regulated by the proposed rule.
    All of the persons that would be directly regulated by the 
action are natural persons. The subsistence halibut regulation at 
Sec.  300.65(g)(2) specifies that ``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 
table in this paragraph].'' The Village of Kanatak is listed in the 
table and individual members of the tribe are recognized as natural 
persons eligible to harvest subsistence halibut. Moreover, all of 
the members of the Kanatak Tribe are natural persons as direct 
descendents of individuals counted in a census carried out in 
Kanatak in 1924 (Olivier, pers. comm.). The regulations further 
specify at Sec.  300.61 that halibut caught for subsistence purposes 
are defined as halibut caught by a rural resident or a member of an 
Alaska Native tribe for direct personal or family consumption as 
food, sharing for personal or family consumption as food, or 
customary trade. While there is no clear requirement in the 
regulations that a ``rural resident'' or a ``member of an Alaska 
Native tribe'' be a natural person, the regulations clearly 
anticipate that they will be.
    The definition of small entity, distinction of individual tribal 
members, and declaration of natural persons combined provide the 
factual basis for asserting no small entities are directly regulated 
by the action.

Description and estimate of economic impact on small entities by 
entity size and industry

    No small entities are directly regulated by the proposed rule. 
Therefore, there are no economic impacts on directly regulated small 
entities.

Criteria used to evaluate whether the rule would impose impacts on 
``a substantial number of small entities''

    The criteria used to determine whether or not small entities are 
directly regulated by this action are the definitions of a small 
business, small organization, small governmental jurisdiction, and 
small entity in 601(3), (4), (5), and (6) of the RFA, and the 
definition of a business concern at 13 CFR 121.105.

Criteria used to evaluate whether the rule would impose 
``significant economic impacts''

    Because this action will not directly regulate any small 
entities, no criteria were necessary to make a determination of 
whether or not the action would have significant economic impacts on 
directly regulated entities.

Description of and basis for assumptions used

    The finding that no small entities would be directly regulated 
by this action is based on the definition of small entities in the 
RFA and implementing regulations, a determination that only 
individual members of the Kanatak Tribe would be directly regulated, 
and a determination that all individual tribal members are natural 
persons, and not entities, as contemplated by the statute and 
regulations. As a result, an initial regulatory flexibility analysis 
is not required and none has been prepared.

    Because there will not be a substantial impact on a significant 
number of small entities, an initial regulatory flexibility analysis is 
not required and none has been prepared.

List of Subjects for 50 CFR Part 300

    Alaska, Alaska Natives, Fisheries, Fishing, Pacific halibut 
fisheries, Tribes.

    Dated: July 29, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 300 as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    1. The authority citation for 50 CFR part 300, subpart E, continues 
to read as follows:

    Authority: 16 U.S.C. 773-773k.
    2. In Sec.  300.65, in paragraph (g)(2):
    A. In the table for Halibut Regulatory Area 3A, add in alphabetical 
order an entry for ``Wasilla''.
    B. In the table for Halibut Regulatory Area 4E, revise the entry 
for ``Egegik''.
    The addition and revision read as follows.


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

* * * * *
    (g) * * *
    (2) * * *

[[Page 45204]]

Halibut Regulatory Area 3A

------------------------------------------------------------------------
   Place with Tribal Headquarters          Organized Tribal Entity
------------------------------------------------------------------------
* * * * * * *                        ...................................
------------------------------------------------------------------------
Wasilla                              Village of Kanatak
------------------------------------------------------------------------
* * * * * * *                        ...................................
------------------------------------------------------------------------

* * * * *

Halibut Regulatory Area 4E

------------------------------------------------------------------------
   Place with Tribal Headquarters          Organized Tribal Entity
------------------------------------------------------------------------
* * * * * * *                        ...................................
------------------------------------------------------------------------
Egegik                               Egegik Village
------------------------------------------------------------------------
* * * * * * *                        ...................................
------------------------------------------------------------------------

* * * * *
[FR Doc. E8-17814 Filed 8-1-08; 8:45 am]
BILLING CODE 3510-22-S