[Federal Register: June 28, 2000 (Volume 65, Number 125)]
[Rules and Regulations]               
[Page 39815-39817]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 39815]]



Forest Service

36 CFR Part 242


Fish and Wildlife Service

50 CFR Part 100

RIN 1018-AD68

Subsistence Management Regulations for Public Lands in Alaska, 
Subparts A, B, C, and D, Redefinition To Include Waters Subject to 
Subsistence Priority; Correcting Amendment

AGENCIES: Forest Service, USDA; Fish and Wildlife Service, Interior.

ACTION: Correcting amendment.


SUMMARY: This correction amends the Subsistence Management Regulations 
for Public Lands in Alaska, published in the Federal Register on 
January 8, 1999, (64 FR 1276) redefining the area subject to the 
subsistence priority for rural residents of Alaska under Title VIII of 
the Alaska National Interest Lands Conservation Act of 1980. The 
January 8, 1999, final rule also established regulations for seasons, 
harvest limits, methods, and means relating to the taking of fish and 
shellfish for subsistence uses during the 2000 regulatory year.

DATES: The correcting amendment to Sec. __.26 is effective June 28, 
2000 through February 28, 2001.

FOR FURTHER INFORMATION CONTACT: Thomas H. Boyd, Office of Subsistence 
Management, U.S. Fish and Wildlife Service, telephone (907) 786-3888. 
for questions specific to National Forest System Lands, contact Ken 
Thompson, Regional Subsistence Program Manager, USDA-Forest Service, 
Alaska Region, telephone (907) 786-3592.



    Title VIII of the Alaska National Interest Lands Conservation Act 
(ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the 
Interior and the Secretary of Agriculture (Secretaries) implement a 
joint program to grant a preference for subsistence uses of fish and 
wildlife resources on public lands, unless the State of Alaska enacts 
and implements laws of general applicability that are consistent with 
ANILCA and that provide for the subsistence definition, preference, and 
participation specified in Sections 803, 804, and 805 of ANILCA. The 
State implemented a program that the Department of the Interior 
previously found to be consistent with ANILCA. However, in December 
1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska 
that the rural preference in the State subsistence statute violated the 
Alaska Constitution. The Court's ruling in McDowell required the State 
to delete the rural preference from the subsistence statute and, 
therefore, negated State compliance with ANILCA. The Court stayed the 
effect of the decision until July 1, 1990.
    As a result of the McDowell decision, the Department of the 
Interior and the Department of Agriculture (Departments) assumed, on 
July 1, 1990, responsibility for implementation of Title VIII of ANILCA 
on public lands. On June 29, 1990, the Temporary Subsistence Management 
Regulations for Public Lands in Alaska were published in the Federal 
Register (55 FR 27114-27170). Consistent with Subparts A, B, and C of 
these regulations, as revised January 8, 1999, (64 FR 1276), the 
Departments established a Federal Subsistence Board to administer the 
Federal Subsistence Management Program. The Board's composition 
includes a Chair appointed by the Secretary of the Interior with 
concurrence of the Secretary of Agriculture, the Alaska Regional 
Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, 
U.S. Fish and Wildlife Service; the Alaska Regional Director, U.S. 
National Park Service; the Alaska State Director, U.S. Bureau of Land 
Management; the Alaska Regional Director, U.S. Bureau of Indian 
Affairs; and the Alaska Regional Forester, USDA Forest Service. Through 
the Board, these agencies participated in the development of 
regulations for Subparts A, B, and C, and the annual Subpart D 
    Because this rule relates to public lands managed by an agency or 
agencies in both the Departments of Agriculture and the Interior, 
identical text would be incorporated into 36 CFR part 242 and 50 CFR 
part 100.
    Proposed Subpart D regulations for the 2000 seasons and bag limits, 
and methods and means were published on December 17, 1998, in the 
Federal Register (62 FR 66216). A comment period providing for public 
review of the proposed rule was advertised by mail, radio, and 
newspaper. Following that comment period the Proposed Rule was modified 
to respond to comments and to make it coincide with State regulations 
wherever possible. Also, we removed regulations that were unnecessary 
because there were no areas of Federal jurisdiction present. The final 
regulations, published on January 8, 1999, (64 FR 1276) reflect the 
joint efforts of the Federal agencies to simplify, clarify, and remove 
any extraneous provisions.
    This correcting amendment is necessary because, in the effort to 
remove unnecessary provisions, one regulation protecting fish 
populations in the Cook Inlet Fishery Management Area was inadvertently 
and incorrectly omitted.

Subpart D

    Both State subsistence regulations, as well as previous Federal 
subsistence regulations and the Proposed Rule, contained a prohibition 
on the use of gillnets in freshwater in the Cook Inlet Fishery 
Management Area. This prohibition, in place in Federal regulations 
since 1990, was necessary to protect freshwater species susceptible to 
serious overharvest with the use of gillnets. Without such a 
prohibition, populations of rainbow trout, steelhead, or other 
freshwater species could quickly be decimated in certain areas.
    Reexamination of the comments that were received on the Proposed 
Rule and the preliminary drafts of the Final Rule revealed no specific 
intent to remvoe this gillnet prohibition. In our efforts to remove 
unnecessary regulations, we inadvertently removed the regulation 
prohibiting the use of gillnets in fresh water. This correcting 
amendment would reinsert that gillnet prohibition into 50 CFR 
100.26(i)(10) and 36 CFR 242.26(i)(10).
    The Board finds that additional public notice and comment 
requirements under the Administration Procedures Act (APA) for this 
correcting amendment are impracticable, unnecessary, and contrary to 
the public interest. Lack of appropriate conservation measures could 
seriously affect the continued viability of fish populations, adversely 
impact future subsistence opportunities for rural Alaskans, and would 
generally fail to serve the overall public interest. Therefore, the 
Board finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive 
additional public notice and comment procedures prior to publication of 
this rule. The Board finds good cause under 5 U.S.C. 553(d)(3) to make 
this rule effective upon publication.

Conformance With Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

    A Draft Environmental Impact Statement (DEIS) that described four 
alternatives for developing a Federal

[[Page 39816]]

Subsistence Management Program was distributed for public comment on 
October 7, 1991. That document described the major issues associated 
with Federal subsistence management as identified through public 
meetings, written comments, and staff analysis and examined the 
environmental consequences of the four alternatives. Proposed 
regulations (Subparts A, B, and C) that would implement the preferred 
alternative were included in the DEIS as an appendix. The DEIS and the 
proposed administrative regulations presented a framework for an annual 
regulatory cycle regarding subsistence hunting and fishing regulations 
(Subpart D). The Final Environmental Impact Statement (FEIS) was 
published on February 28, 1992.
    Based on the public comment received, the analysis contained in the 
FEIS, and the recommendations of the Federal Subsistence Board and the 
Department of the Interior's Subsistence Policy Group, the Secretary of 
the Interior, with the concurrence of the Secretary of Agriculture, 
through the U.S. Department of Agriculture-Forest Service, decided to 
implement Alternative IV as identified in the DEIS and FEIS (Record of 
Decision on Subsistence Management for Federal Public Lands in Alaska 
(ROD), signed April 6, 1992). The DEIS and the selected alternative in 
the FEIS defined the administrative framework of an annual regulatory 
cycle for subsistence hunting and fishing regulations. The final rule 
for Subsistence Management Regulations for Public Lands in Alaska, 
Subparts A, B, and C (57 FR 22940-22964, published May 29, 1992) 
implemented the Federal Subsistence Management Program and included a 
framework for an annual cycle for subsistence hunting and fishing 

Compliance With Section 810 of ANILCA

    The intent of all Federal subsistence regulations is to accord 
subsistence uses of fish and wildlife on public lands a priority over 
the taking of fish and wildlife on such lands for other purposes, 
unless restriction is necessary to conserve healthy fish and wildlife 
populations. A Section 810 analysis was completed as part of the FEIS 
process. The final Section 810 analysis determination appeared in the 
April 6, 1992, ROD which concluded that the Federal Subsistence 
Management Program, under Alternative IV with an annual process for 
setting hunting and fishing regulations, may have some local impacts on 
subsistence uses, but the program is not likely to significantly 
restrict subsistence uses.

Paperwork Reduction Act

    This amendment does not contain information collection requirements 
subject to Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act of 1995.

Other Requirements

    This rule was not subject to OMB review under Executive Order 
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires preparation of flexibility analyses for rules that will have a 
signfiicant effect on a substantial number of small entities, which 
include small businesses, organizations, or governmental jurisdictions. 
The Departments determined that this rulemaking will not have a 
significant economic effect on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act.
    The rulemaking will impose no signficant costs on small entities; 
the exact number of businesses and the amount of trade that will result 
from this Federal land-related activity is unknown. The aggregate 
effect is an insignificant positive economic effect on a number of 
small entities, such as ammunition, snowmachine, and gasoline dealers. 
The number of small entities affected is unknown; but, the fact that 
the positive effects will be seasonal in nature and will, in most 
cases, merely continue preexisting uses of public lands indicates that 
they will not be significant.
    In general, the resources harvested under this rule will be 
consumed by the local harvester and do not result in a dollar benefit 
to the economy. However, we estimate that 2 million pounds of meat are 
harvested by the local subsistence users annually and, if given a 
dollar value of $3.00 per pound, would equate to $6 million Statewide.
    Title VIII of ANILCA requires the Secretaries to administer a 
subsistence preference on public lands. The scope of this program is 
limited by definition to certain public lands. Likewise, these 
regulations have no potential takings of private property implications 
as defined by Executive Order 12630.
    The Service has determined and certifies pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq.,  that this rulemaking will 
not impose a cost of $100 million or more in any given year on local or 
State governments or private entities. The implementation of this rule 
is by Federal agencies, and no cost is involved to any State or local 
entities or Tribal governments.
    The Service has determined that this amendment meets the applicable 
standards provided in Section 3(a) and 3(b)(2) of Executive Order 
    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. title VIII of ANILCA precludes the State from 
exercising management authority over wildlife resources on Federal 
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible 
effects on Federally recognized Indian tribes and have determined that 
there are no effects. The Bureau of Indian Affairs is a participating 
agency in this rulemaking.
    Drafting Information: William Knauer drafted this amendment under 
the guidance of Thomas H. Boyd, of the Office of Subsistence 
Management, Alaska Regional Office, U.S. Fish and Wildlife Service, 
Anchorage, Alaska. Curt Wilson, Alaska State Office, Bureau of Land 
Management; Greg Bos, Alaska Regional Office, U.S. Fish and Wildlife 
Service; Sandy Rabinowitch Alaska Regional Office, National Park 
Service; Ida Hildebrand, Alaska Regional Office, Bureau of Indian 
Affairs; and Ken Thompson, USDA-Forest Service, provided additional 

List of Subjects

36 CFR Part 242

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 

50 CFR Part 100

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 

     For the reasons set out in the preamble, the Federal Subsistence 
Board amends Title 36, part 242, and Title 50, part 100, of the Code of 
Federal Regulations, as set forth below.


    1. The authority citation for both 36 CFR part 242 and 50 CFR part 
100 continues to read as follows:

    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 
3551-3586; 43 U.S.C. 1733.

[[Page 39817]]

    2. Section ____.26 is amended by adding paragraph (i) (10) (v) to 
read as follows:

Sec. ____.26  Subsistence taking of fish.

* * * * *
    (i) * * *
    (10) * * *
    (v) You may not use gillnets in freshwater.
* * * * *

    Dated: June 19, 2000.
Kenneth E. Thompson,
Acting Regional Forester, USDA--Forest Service.

Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
[FR Doc. 00-16037 Filed 6-27-00; 8:45 am]
BILLING CODE 3410-11-M; 4310-55-M