E8-28461. Pacific Halibut Fisheries; Subsistence Fishing

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule to 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 action correctly defines the location of Village of Kanatak tribal headquarters and International Pacific Halibut Commission (IPHC) halibut regulatory area (Area) in which the tribe's members may subsistence fish. The action would change the tribe's headquarters from Egegik to Wasilla and the corresponding Area from 4E to Area 3A. The intent of this action is to remove restrictions on participation of Village of Kanatak tribal members in traditional subsistence fisheries for Pacific halibut by correcting the tribe's headquarters to its actual location in Wasilla.

DATES:

Effective December 31, 2008.

ADDRESSES:

Copies of the Categorical Exclusion and Regulatory Impact Review prepared for this action, as well as the environmental assessment prepared for the original subsistence halibut action are available by mail from NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, Alaska Region, 709 West 9^th Street, Room 420A, Juneau, Alaska; and via the Internet at the NMFS Alaska Region website at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Peggy Murphy, 907-586-7843.

SUPPLEMENTARY INFORMATION:

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 (see ADDRESSES), and NMFS published the final rule to implement subsistence halibut regulations on April 15, 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 Area 4E. However, the tribe's headquarters are actually located in Wasilla, Alaska in Area 3A. 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. The Council retains exclusive authority to recommend changes to the list of communities at § 300.65(g)(1) and Alaska Native tribes at § 300.65(g)(2) with customary and traditional uses of Pacific halibut. The Council recognized the Kanatak Tribal Council's request to correct its fishing area because the erroneous listing prevented some members of the Kanatak tribe from participating in traditional subsistence fisheries except in Area 4E. The Council responded by recommending an amendment of the regulations to change the listing of the Village of Kanatak's headquarters from Egegik to Wasilla and a corresponding change in the halibut regulatory area for subsistence fishing from Area 4E to Area 3A.

This action effectively changes the restriction on individual participation in subsistence fishing and is expected to redistribute some of the harvesting effort of the Village of Kanatak tribal members from Area 4E to Area 3A, and increase customary and traditional uses of halibut by individual members of the tribe in Area 3A. Because Wasilla is a community located in the Anchorage-Matsu-Kenai non-rural area within Area 3A, tribal members who reside there would be required to subsistence fish for halibut in Area 3A pursuant to § 300.65(h)(4). Area 3A is easier for tribal members to access than Area 4E, hence the tribe's request to correct the location of its tribal headquarters in regulations at § 300.65(g)(2).

The action will also improve accuracy of current regulations, and the quality of subsistence halibut information. Alternative actions considered and rejected may be found in the RIR prepared for this action. The background and need for this action were described in further detail in the preamble to the proposed rule for this action (73 FR 45201; August 4, 2008). The RIR and proposed rule are available on the Internet and from NMFS (see ADDRESSES).

The proposed rule was published in the Federal Register on August 4, 2008 (73 FR 45201), and the public review and comment period closed on September 3, 2008. No comments were received, and thus no changes have been made to the final rule from the proposed rule.

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. This final action is consistent with the Council's authority to allocate the halibut resource among fishery participants in the waters in and off Alaska.

Executive Order (E.O.) 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 108-199 (188 Stat. 452), as amended by section 518 of Public Law 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 and the Kanatak Tribal Administrator.

The final rule was determined to be not significant for the purposes of 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. The action directly regulates subsistence practices of individuals, and will not apply to small entities within the meaning of the Regulatory Flexibility Act. Because there will not be a significant impact on a substantial number of small entities, a regulatory flexibility analysis is not required and none was prepared.

List of Subjects for 50 CFR Part 300

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

Dated: November 25, 2008.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 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 § 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.

§ 300.65

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

* * * * *

(g) * * *

(2) * * *

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
* * * * * * *

* * * * *