[Federal Register: May 7, 2002 (Volume 67, Number 88)]
[Rules and Regulations]               
[Page 30559-30571]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Forest Service

50 CFR Part 100

36 CFR Part 242


Fish and Wildlife Service

RIN 1018-AH85

Subsistence Management Regulations for Public Lands in Alaska

AGENCY: Forest Service, Agriculture; and Fish and Wildlife Service, 

ACTION: Final rule.


SUMMARY: This rule, in response to comments on an interim rule, amends 
the operating regulations of the Federal Subsistence Management Program 
in Alaska. The primary aspects of that Interim Rule, published June 12, 
2001, expanded the authority that the Board may delegate to agency 
field officials and clarified the procedures for enacting emergency or 
temporary restrictions, closures, or openings. This Final Rule also 
corrects some inadvertent errors and oversights of previous rules.

DATES: This rule is effective June 6, 2002.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Thomas H. Boyd, (907) 786-3888. For 
questions specific to National Forest System lands, contact Ken 
Thompson, Regional Subsistence Program Manager, USDA, Forest Service, 
Alaska Region, (907) 271-2540.



    Title VIII of the Alaska National Interest Lands Conservation

[[Page 30560]]

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). On January 8, 1999, (64 FR 1276), the 
Departments extended jurisdiction to include waters in which there 
exists a Federal reserved water right. This amended rule conformed the 
Federal Subsistence Management Program to the Ninth Circuit's ruling in 
Alaska v. Babbitt.
    Consistent with Subparts A, B, and C of these regulations, 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. 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 participate in the development of regulations 
for subparts A, B, and C, and the annual subpart D regulations.
    On June 12, 2001 (66 FR 31533), the Secretaries published an 
Interim rule expanding the authority of the Board to delegate in-season 
management decisions to local field managers. This final rule responds 
to comments received on that Interim rule and makes changes to it as 
appropriate. All Board members have reviewed this rule and agree with 
its substance.

Federal Subsistence Regional Advisory Councils

    Alaska has been divided into ten subsistence resource regions, each 
of which is represented by a Federal Subsistence Regional Advisory 
Council. The Regional Councils provide a forum for rural residents with 
personal knowledge of local conditions and resource requirements to 
have a meaningful role in the subsistence management of fish and 
wildlife on Alaska public lands. The Regional Council members represent 
geographical, cultural, and user diversity within each region.

Public Review and Comment

    The Secretaries published an Interim rule (66 FR 31533) on June 12, 
2001, in order to provide necessary delegation of authority to field 
managers to make crucial fishery management decisions during the past 
fishing season. At the same time, comments were solicited on the 
Interim rule. During their Winter Council meetings in February and 
March 2001, all Regional Advisory Councils supported the expansion of 
delegation authority found in Sec. ____.10(d)(6). We also received a 
total of three written comments on the Interim rule.

Analysis of Public Comments

    Two commentators supported clarification of residency requirements 
found in Sec. ____.6(a)(1). A number of agencies indicated that there 
needed to be clarification regarding the minimum age at which a person 
could obtain a Federal Subsistence Registration permit or Designated 
Harvester permit. Clarifying language has been added at Sec. ____.6(b).
    Three commentators opposed the expansion of delegated authority, 
believing that it would remove the public process from critical 
management decisions. They also indicated that the decisions should 
remain with the Federal Subsistence Board. In developing the 
implementing letter that instructs field managers in the procedures to 
use for in-season management decisions, the Federal Subsistence Board 
specifically included language requiring public coordination and 
communication prior to in-season management decisions. During summer 
and fall 2001, over 30 in-season management decisions were made by 
field managers. All of these were accomplished with public involvement 
and close coordination with the Alaska Department of Fish and Game 
(ADFG). The delegated authority worked so well that ADFG is in the 
process of acquiring the same level of authority for its own field 
    One commentator indicated opposition to the formation of any 
Federal local advisory committees (Sec. ____.10(d)(4)(xii)). The Board 
intends to continue utilizing State local fish and game advisory 
committees and not to establish any Federal ones.
    One commentator supported the reorganization and clarifying 
language relative to Special Actions (Sec. ____.19).
    One commentator recommended transmitting a copy of any Request for 
Reconsideration to the State for review and recommendation. This 
requirement has been added to Sec. ____.20(e). Another commentor 
recommended that the conditions for accepting a Request for 
Reconsideration be less open to interpretation. The standards that were 
placed in Sec. ____.20(d) are the same standards that the Board has 
been using since assuming jurisdiction for subsistence management. 
However, this is the first time that they have been formally published. 
We believe that it is in the public interest to let potential 
requestors know under what circumstances the Board will be accepting a 
Request for Reconsideration. Unfortunately, all of the criteria cannot 
be completely objective; there will always be some level of 
    One commentator also disagreed with a statement made in the 
preamble regarding economic effects. This rule by itself does not, and 
will not, restrict any existing sport or commercial fisheries. However, 
future Board actions could result in some closures to those fisheries 
in certain areas in order to protect the fish stocks upon which 
subsistence users and non-subsistence users depend.

Summary of Changes

    Based on our analysis of public comments and agency concerns 
expressed since publication of the Interim rule (66 FR 31533) on June 
12, 2001, we have made the following revisions:
    Section ____.6(b)--Clarified the age at which you can obtain a 
Federal subsistence registration permit, a Designated Harvester permit, 
or have someone serve as a designated harvester for you. Agencies, 
staff, and members of the public have expressed concern about alleged 
and potential abuse by individuals obtaining permits for infants;

[[Page 30561]]

    Section ____.7--Corrected an inadvertent error that removed the 
allowance for barter of fish and wildlife. Barter is provided for in 
ANILCA and had been allowed in the regulations until publication of the 
rule expanding jurisdiction for subsistence fisheries management 
(January 8, 1999, 64 FR 1276);
    Section ____.11(b)(1)--Removed the unintended requirement that 
Regional Council member recommendations could only come from 
nominations made by subsistence users. The Board's recommendations to 
the Secretaries for appointment to the Regional Councils may come from 
nominations or from self-applicants;
    Section ____11(c)(3)--Clarified that Regional Council 
recommendations should be supported by substantial evidence, be 
consistent with recognized principles of fish and wildlife 
conservation, and not be detrimental to the satisfaction of subsistence 
needs. This corresponds to the reasons under which the Board may reject 
a Regional Council recommendation;
    Section __.14(b)--Clarified that the Board's authority includes 
trapping, as well as hunting and fishing;
    Section ____.18--Removed duplicative language;
    Section ____.19(c)--Revised the statement that implied that any 
Special Action that is not accepted would be deferred to the next 
regulatory cycle. Upon further consideration, a proponent may not wish 
to have his/her request appear in the next cycle because conditions may 
have changed or other information is now available warranting other 
    Section ____.20--Inserted a requirement for the Board to provide a 
copy of any Request for Reconsideration for review and recommendation 
to the Alaska Department of Fish and Game;
    Section ____.23(a)--Included the areas of Kenai, Seward, and Homer 
to the list of non-rural areas. This reflects the Board's May 2001 
recision of its May 2000 decision that had determined these communities 
to be rural; and,
    Section ____.23(a)--Corrected the description of one location in 
the Ketchikan area (Mountain Point versus Mountain Pass) and parts of 
Gravina Island.
    Nothing in this rule is intended to change the underlying rural 
priority that is set out in Title VIII of ANILCA or otherwise amend the 
statutory basis of the Federal Subsistence Management Program. Although 
most sections of these regulations are not being amended, for the 
purpose of clarity and ease of understanding, the entire text of 
subparts A and B, and portions of C is being printed. The unpublished 
sections (portions of subpart C and Sections ____.25, ____.26, ____.27, 
and ____.28) relate to wildlife, fish, and shellfish regulations that 
are revised annually. Because this rule relates to public lands managed 
by an agency or agencies in both the Departments of Agriculture and the 
Interior, identical text is incorporated into 36 CFR part 242 and 50 
CFR part 100.
    The primary purpose of the interim rulemaking action was to 
delegate additional authority from the Board to local officials to make 
conservation decisions. We published an interim rule because there was 
inadequate time to engage in notice-and-comment rulemaking prior to the 
start of the spring/summer salmon runs. Many of these runs, 
particularly on the Yukon and Kuskokwim Rivers, were the lowest in 
history last year and were expected to be very low again this past 
season. As such, the ability to make immediate (often within hours) 
decisions relative to a specific run or pulse of fish was critical in 
protecting the health of the population while, if at all possible, 
providing a subsistence opportunity for the rural residents.

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 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, it was the 
decision of the Secretary of the Interior, with the concurrence of the 
Secretary of Agriculture, through the U.S. Department of Agriculture-
Forest Service, 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 regulations.
    An environmental assessment has been prepared on the expansion of 
Federal jurisdiction over fisheries and is available by contacting the 
office listed under FOR FURTHER INFORMATION CONTACT. The Secretary of 
the Interior with the concurrence of the Secretary of Agriculture has 
determined that the expansion of Federal jurisdiction does not 
constitute a major Federal action, significantly affecting the human 
environment and has, therefore, signed a Finding of No Significant 
    Compliance with Section 810 of ANILCA--A Section 810 analysis was 
completed as part of the FEIS process on the Federal Subsistence 
Management Program. 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. 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 it does not appear that the 
program may significantly restrict subsistence uses.
    During the environmental assessment process, an evaluation of the 
effects of this rule was also conducted in accordance with Section 810. 
This evaluation supports the Secretaries' determination that the final 
rule will not reach the ``may significantly restrict'' threshold for 
notice and hearings under ANILCA Section 810(a) for any subsistence 
resources or uses.
    Paperwork Reduction Act--This rule contains information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under the Paperwork Reduction Act of 1995. It applies to the

[[Page 30562]]

use of public lands in Alaska. The information collection has been 
approved by OMB, Control Number 1018-0075, which expires July 31, 2003. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.
    Currently, information is being collected by the use of a Federal 
Subsistence Registration Permit and Designated Harvester Application. 
The information collected on these two permits establishes whether an 
applicant qualifies to participate in a Federal subsistence hunt or 
fishery on public land in Alaska and provides a report of harvest and 
the location of harvest. The collected information is necessary to 
determine harvest success, harvest location, and population health in 
order to make management decisions relative to the conservation of 
healthy fish or wildlife populations. Additional harvest information is 
obtained from harvest reports submitted to the State of Alaska. The 
recordkeeping burden for this aspect of the program is negligible (1 
hour or less). This information is accessed via computer data base.

                                                    Completion                Estimated
                                       Estimated     time for    Estimated      annual    Hourly cost
                Form                   number of    each form      annual    burden  (in      for               Financial burden on respondents
                                      respondents   (in hours)    response      hours)     respondent
Federal Subsistence Registration           15,000        \1/4\       15,000        3,750       $20.00  $5.00 each or $75,000 total
Designated Harvester Application....        2,000        \1/4\        2,000          500       $20.00  $5.00 each or $10,000 total

    The information collected will establish whether the applicant 
qualifies to participate in a Federal subsistence hunt or fishery on 
public land in Alaska and will provide a report of harvest and location 
of harvest.
    You may direct comments on the burden estimate or any other aspect 
of this form to: Information Collection Officer, U.S. Fish and Wildlife 
Service, 1849 C Street, NW, MS 222 ARLSQ, Washington, D.C. 20240; and 
the Office of Management and Budget, Department of the Interior Desk 
Officer, 725 17th Street, NW., Washington, D.C. 20503. Additional 
information collection requirements may be imposed if local advisory 
committees subject to the Federal Advisory Committee Act are 
established under subpart B. Such requirements will be submitted to OMB 
for approval prior to their implementation.
    Clarity of the Rule Executive Order 12866 requires each agency to 
write regulations that are easy to understand. We invite your comments 
on how to make this rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the rule 
clearly stated? (2) Does the rule contain technical language or jargon 
that interferes with its clarity? (3) Does the format of the rule 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Would the rule be easier to understand 
if it were divided into more (but shorter) sections? (A ``section'' 
appears in bold type and is preceded by the symbol ``Sec. '' and a 
numbered heading; for example, Sec. __.24 Customary and traditional 
determinations.) (5) Is the description of the rule in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rule? What else could we do to make the rule easier 
to understand? Send a copy of any comments that concern how we could 
make this rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may also e-mail the comments to this address: 
    Economic Effects This rule is not a significant rule subject to OMB 
review under Executive Order 12866. This rulemaking will impose no 
significant costs on small entities; this rule does not restrict any 
existing sport or commercial fishery on the public lands and 
subsistence fisheries will continue at essentially the same levels as 
they presently occur. 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, 
fishing tackle, 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 to be harvested under this rule are 
already being harvested and consumed by the local harvester and do not 
result in an additional dollar benefit to the economy. However, it is 
estimated that 24 million pounds of fish (including 8.3 million pounds 
of salmon) are harvested by subsistence users annually and, if given an 
estimated dollar value of $3.00 per pound for salmon and $0.58 per 
pound for other fish, would equate to about $34 million in food value 
state-wide. We also estimate that 2 million pounds of meat are 
harvested by subsistence users annually and, if given an estimated 
dollar value of $3.00 per pound, would equate to about $6 million in 
food value state-wide.
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires preparation of flexibility analyses for rules that will have a 
significant economic impact on a substantial number of small entities, 
which include small businesses, organizations or governmental 
jurisdictions. The Departments have determined based on the above 
figures that this rulemaking will not have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act. Under the Small Business Regulatory 
Enforcement Act (5 U.S.C. 801 et seq.), this rule is not a major rule. 
It does not have an effect on the economy of $100 million or more, will 
not cause a major increase in costs or prices for consumers, and does 
not have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.
    Title VIII of ANILCA requires the Secretaries to administer a 
subsistence priority 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 Secretaries have determined and certify 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 there is no cost

[[Page 30563]]

imposed on any state or local entities or tribal governments.
    The Secretaries have determined that these final regulations meet 
the applicable standards provided in Sections 3(a) and 3(b)(2) of 
Executive Order 12988.
    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 subsistence management authority over fish and wildlife 
resources on Federal lands unless it meets certain requirements.
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, 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.
    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, or 
use. This Executive Order requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. As this rule is not a 
significant regulatory action under Executive Order 13211, affecting 
energy supply, distribution, or use, this action is not a significant 
action and no Statement of Energy Effects is required.
    Drafting Information--These regulations were drafted by William 
Knauer under the guidance of Thomas H. Boyd, of the Office of 
Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife 
Service, Anchorage, Alaska. Additional guidance was provided by Taylor 
Brelseford, Alaska State Office, Bureau of Land Management; Sandy 
Rabinowitch and Bob Gerhard, Alaska Regional Office, National Park 
Service; Greg Bos and Rod Simmons, Alaska Regional Office, U.S. Fish 
and Wildlife Service; Ida Hildebrand, Alaska Regional Office, Bureau of 
Indian Affairs; and Ken Thompson, USDA-Forest Service.

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 Departments amend 
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.

    2. Revise subparts A and B of 36 CFR part 242 and 50 CFR part 100 
to read as follows:
Subpart A--General Provisions
____.1  Purpose.
____.2  Authority.
____.3  Applicability and scope.
____.4  Definitions.
____.5  Eligibility for subsistence use.
____.6  Licenses, permits, harvest tickets, tags, and reports.
____.7  Restriction on use.
____.8  Penalties.
____.9  Information collection requirements.
Subpart B--Program Structure
____.10  Federal Subsistence Board.
____.11  Regional advisory councils.
____.12  Local advisory committees.
____.13  Board/agency relationships.
____.14  Relationship to State procedures and regulations.
____.15  Rural determination process.
____.16  Customary and traditional use determination process.
____.17  Determining priorities for subsistence uses among rural 
Alaska residents.
____.18  Regulation adoption process.
____.19  Special actions.
____.20  Request for reconsideration.
____.21  [Reserved]

Subpart A--General Provisions

Sec. ______.1  Purpose.

    The regulations in this part implement the Federal Subsistence 
Management Program on public lands within the State of Alaska.

Sec. ______.2  Authority.

    The Secretary of the Interior and Secretary of Agriculture issue 
the regulations in this part pursuant to authority vested in Title VIII 
of the Alaska National Interest Lands Conservation Act (ANILCA), 16 
U.S.C. 3101-3126.

Sec. ______.3  Applicability and scope.

    (a) The regulations in this part implement the provisions of Title 
VIII of ANILCA relevant to the taking of fish and wildlife on public 
lands in the State of Alaska. The regulations in this part do not 
permit subsistence uses in Glacier Bay National Park, Kenai Fjords 
National Park, Katmai National Park, and that portion of Denali 
National Park established as Mt. McKinley National Park prior to 
passage of ANILCA, where subsistence taking and uses are prohibited. 
The regulations in this part do not supersede agency-specific 
    (b) The regulations contained in this part apply on all public 
lands including all non-navigable waters located on these lands, on all 
navigable and non-navigable water within the exterior boundaries of the 
following areas, and on inland waters adjacent to the exterior 
boundaries of the following areas:
(1) Alaska Maritime National Wildlife Refuge;
(2) Alaska Peninsula National Wildlife Refuge;
(3) Aniakchak National Monument and Preserve;
(4) Arctic National Wildlife Refuge;
(5) Becharof National Wildlife Refuge;
(6) Bering Land Bridge National Preserve;
(7) Cape Krusenstern National Monument;
(8) Chugach National Forest, excluding marine waters;
(9) Denali National Preserve and the 1980 additions to Denali National 
(10) Gates of the Arctic National Park and Preserve;
(11) Glacier Bay National Preserve;
(12) Innoko National Wildlife Refuge;
(13) Izembek National Wildlife Refuge;
(14) Katmai National Preserve;
(15) Kanuti National Wildlife Refuge;
(16) Kenai National Wildlife Refuge;
(17) Kobuk Valley National Park;
(18) Kodiak National Wildlife Refuge;
(19) Koyukuk National Wildlife Refuge;
(20) Lake Clark National Park and Preserve;
(21) National Petroleum Reserve in Alaska;
(22) Noatak National Preserve;
(23) Nowitna National Wildlife Refuge;
(24) Selawik National Wildlife Refuge;
(25) Steese National Conservation Area;
(26) Tetlin National Wildlife Refuge;
(27) Togiak National Wildlife Refuge;
(28) Tongass National Forest, including Admiralty Island National 
Monument and Misty Fjords National Monument, and excluding marine 
(29) White Mountain National Recreation Area;
(30) Wrangell-St. Elias National Park and Preserve;
(31) Yukon-Charley Rivers National Preserve;
(32) Yukon Delta National Wildlife Refuge;

[[Page 30564]]

(33) Yukon Flats National Wildlife Refuge;
(34) All components of the Wild and Scenic River System located outside 
the boundaries of National Parks, National Preserves, or National 
Wildlife Refuges, including segments of the Alagnak River, Beaver 
Creek, Birch Creek, Delta River, Fortymile River, Gulkana River, and 
Unalakleet River.
    (c) The public lands described in paragraph (b) of this section 
remain subject to change through rulemaking pending a Department of the 
Interior review of title and jurisdictional issues regarding certain 
submerged lands beneath navigable waters in Alaska.

Sec. ______.4  Definitions.

    The following definitions apply to all regulations contained in 
this part:
    Agency means a subunit of a cabinet-level Department of the Federal 
Government having land management authority over the public lands 
including, but not limited to, the U.S. Fish & Wildlife Service, Bureau 
of Indian Affairs, Bureau of Land Management, National Park Service, 
and USDA Forest Service.
    ANILCA means the Alaska National Interest Lands Conservation Act, 
Public Law 96-487, 94 Stat. 2371, (codified, as amended, in scattered 
sections of 16 U.S.C. and 43 U.S.C.)
    Area, District, Subdistrict, and Section mean one of the 
geographical areas defined in the codified Alaska Department of Fish 
and Game regulations found in Title 5 of the Alaska Administrative 
    Barter means the exchange of fish or wildlife or their parts taken 
for subsistence uses; for other fish, wildlife or their parts; or, for 
other food or for nonedible items other than money, if the exchange is 
of a limited and noncommercial nature.
    Board means the Federal Subsistence Board as described in 
Sec. ____.10.
    Commissions means the Subsistence Resource Commissions established 
pursuant to section 808 of ANILCA.
    Conservation of healthy populations of fish and wildlife means the 
maintenance of fish and wildlife resources and their habitats in a 
condition that assures stable and continuing natural populations and 
species mix of plants and animals in relation to their ecosystem, 
including the recognition that local rural residents engaged in 
subsistence uses may be a natural part of that ecosystem; minimizes the 
likelihood of irreversible or long-term adverse effects upon such 
populations and species; ensures the maximum practicable diversity of 
options for the future; and recognizes that the policies and legal 
authorities of the managing agencies will determine the nature and 
degree of management programs affecting ecological relationships, 
population dynamics, and the manipulation of the components of the 
    Customary trade means exchange for cash of fish and wildlife 
resources regulated in this part, not otherwise prohibited by Federal 
law or regulation, to support personal and family needs; and does not 
include trade which constitutes a significant commercial enterprise.
    Customary and traditional use means a long-established, consistent 
pattern of use, incorporating beliefs and customs which have been 
transmitted from generation to generation. This use plays an important 
role in the economy of the community.
    FACA means the Federal Advisory Committee Act, Public Law 92-463, 
86 Stat. 770 (codified as amended, at 5 U.S.C. Appendix II, 1-15).
    Family means all persons related by blood, marriage, or adoption or 
any other person living within the household on a permanent basis.
    Federal Advisory Committees or Federal Advisory Committee means the 
Federal Local Advisory Committees as described in Sec. ____.12
    Federal lands means lands and waters and interests therein the 
title to which is in the United States, including navigable and non-
navigable waters in which the United States has reserved water rights.
    Fish and wildlife means any member of the animal kingdom, including 
without limitation any mammal, fish, bird (including any migratory, 
nonmigratory, or endangered bird for which protection is also afforded 
by treaty or other international agreement), amphibian, reptile, 
mollusk, crustacean, arthropod, or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the carcass or part 
    Game Management Unit or GMU means one of the 26 geographical areas 
listed under game management units in the codified State of Alaska 
hunting and trapping regulations and the Game Unit Maps of Alaska.
    Inland Waters means, for the purposes of this part, those waters 
located landward of the mean high tide line or the waters located 
upstream of the straight line drawn from headland to headland across 
the mouths of rivers or other waters as they flow into the sea. Inland 
waters include, but are not limited to, lakes, reservoirs, ponds, 
streams, and rivers.
    Marine Waters means, for the purposes of this part, those waters 
located seaward of the mean high tide line or the waters located 
seaward of the straight line drawn from headland to headland across the 
mouths of rivers or other waters as they flow into the sea.
    Person means an individual and does not include a corporation, 
company, partnership, firm, association, organization, business, trust, 
or society.
    Public lands or public land means:
    (1) Lands situated in Alaska which are Federal lands, except--
    (i) Land selections of the State of Alaska which have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands which have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal law;
    (ii) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which have not 
been conveyed to a Native Corporation, unless any such selection is 
determined to be invalid or is relinquished; and
    (iii) Lands referred to in section 19(b) of the Alaska Native 
Claims Settlement Act, 43 U.S.C. 1618(b).
    (2) Notwithstanding the exceptions in paragraphs (1)(i) through 
(iii) of this definition, until conveyed or interim conveyed, all 
Federal lands within the boundaries of any unit of the National Park 
System, National Wildlife Refuge System, National Wild and Scenic 
Rivers Systems, National Forest Monument, National Recreation Area, 
National Conservation Area, new National forest or forest addition 
shall be treated as public lands for the purposes of the regulations in 
this part pursuant to section 906(o)(2) of ANILCA.
    Regional Councils or Regional Council means the Regional Advisory 
Councils as described in Sec. ___.11.
    Regulatory year means July 1 through June 30, except for fish and 
shellfish where it means March 1 through the last day of February.
    Reserved water right(s) means the Federal right to use 
unappropriated appurtenant water necessary to accomplish the purposes 
for which a Federal reservation was established. Reserved water rights 
include nonconsumptive and consumptive uses.
    Resident means any person who has his or her primary, permanent 
home for the previous 12 months within Alaska and whenever absent from 
this primary, permanent home, has the intention of returning to it. 
Factors demonstrating the location of a person's primary, permanent 
home may include, but are

[[Page 30565]]

not limited to: the address listed on an Alaska Permanent Fund dividend 
application; an Alaska license to drive, hunt, fish, or engage in an 
activity regulated by a government entity; affidavit of person or 
persons who know the individual; voter registration; location of 
residences owned, rented, or leased; location of stored household 
goods; residence of spouse, minor children, or dependents; tax 
documents; or whether the person claims residence in another location 
for any purpose.
    Rural means any community or area of Alaska determined by the Board 
to qualify as such under the process described in Sec. ______.15.
    Secretary means the Secretary of the Interior, except that in 
reference to matters related to any unit of the National Forest System, 
such term means the Secretary of Agriculture.
    State means the State of Alaska.
    Subsistence uses means the customary and traditional uses by rural 
Alaska residents of wild, renewable resources for direct personal or 
family consumption as food, shelter, fuel, clothing, tools, or 
transportation; for the making and selling of handicraft articles out 
of nonedible byproducts of fish and wildlife resources taken for 
personal or family consumption; for barter, or sharing for personal or 
family consumption; and for customary trade.
    Take or taking as used with respect to fish or wildlife, means to 
pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or 
attempt to engage in any such conduct.
    Year means calendar year unless another year is specified.

Sec. ______.5  Eligibility for subsistence use.

    (a) You may take fish and wildlife on public lands for subsistence 
uses only if you are an Alaska resident of a rural area or rural 
community. The regulations in this part may further limit your 
qualifications to harvest fish or wildlife resources for subsistence 
uses. If you are not an Alaska resident or are a resident of a non-
rural area or community listed in Sec. ____.23, you may not take fish 
or wildlife on public lands for subsistence uses under the regulations 
in this part.
    (b) Where the Board has made a customary and traditional use 
determination regarding subsistence use of a specific fish stock or 
wildlife population, in accordance with, and as listed in, 
Sec. ____.24, only those Alaskans who are residents of rural areas or 
communities designated by the Board are eligible for subsistence taking 
of that population or stock on public lands for subsistence uses under 
the regulations in this part. If you do not live in one of those areas 
or communities, you may not take fish or wildlife from that population 
or stock, on public lands under the regulations in this part.
    (c) Where customary and traditional use determinations for a fish 
stock or wildlife population within a specific area have not yet been 
made by the Board (e.g., ``no determination''), all Alaskans who are 
residents of rural areas or communities may harvest for subsistence 
from that stock or population under the regulations in this part.
    (d) The National Park Service may regulate further the eligibility 
of those individuals qualified to engage in subsistence uses on 
National Park Service lands in accordance with specific authority in 
ANILCA, and National Park Service regulations at 36 CFR Part 13.

Sec. ______.6  Licenses, permits, harvest tickets, tags, and reports.

    (a) If you wish to take fish and wildlife on public lands for 
subsistence uses, you must be an eligible rural Alaska resident and:
    (1) Possess the pertinent valid Alaska resident hunting and 
trapping licenses (no license required to take fish or shellfish, but 
you must be an Alaska resident) unless Federal licenses are required or 
unless otherwise provided for in subpart D of this part;
    (2) Possess and comply with the provisions of any pertinent Federal 
permits (Federal Subsistence Registration Permit or Federal Designated 
Harvester Permit) required by subpart D of this part; and
    (3) Possess and comply with the provisions of any pertinent 
permits, harvest tickets, or tags required by the State unless any of 
these documents or individual provisions in them are superseded by the 
requirements in subpart D of this part.
    (b) In order to receive a Federal Subsistence Registration Permit 
or Federal Designated Harvester Permit or designate someone to harvest 
fish or wildlife for you under a Federal Designated Harvester Permit, 
you must be old enough to have reasonably harvested that species 
yourself (or under the guidance of an adult.)
    (c) If you have been awarded a permit to take fish and wildlife, 
you must have that permit in your possession during the taking and must 
comply with all requirements of the permit and the regulations in this 
section pertaining to validation and reporting and to regulations in 
subpart D of this part pertaining to methods and means, possession and 
transportation, and utilization. Upon the request of a State or Federal 
law enforcement agent, you must also produce any licenses, permits, 
harvest tickets, tags, or other documents required by this section. If 
you are engaged in taking fish and wildlife under the regulations in 
this part, you must allow State or Federal law enforcement agents to 
inspect any apparatus designed to be used, or capable of being used to 
take fish or wildlife, or any fish or wildlife in your possession.
    (d) You must validate the harvest tickets, tags, permits, or other 
required documents before removing your kill from the harvest site. You 
must also comply with all reporting provisions as set forth in subpart 
D of this part.
    (e) If you take fish and wildlife under a community harvest system, 
you must report the harvest activity in accordance with regulations 
specified for that community in subpart D of this part, and as required 
by any applicable permit conditions. Individuals may be responsible for 
particular reporting requirements in the conditions permitting a 
specific community's harvest. Failure to comply with these conditions 
is a violation of the regulations in this part. Community harvests are 
reviewed annually under the regulations in subpart D of this part.
    (f) You may not make a fraudulent application for Federal or State 
licenses, permits, harvest tickets or tags or intentionally file an 
incorrect harvest report.

Sec. ______.7  Restriction on use.

    (a) You may not use fish or wildlife or their parts, taken pursuant 
to the regulations in this part, unless provided for in this part.
    (b) You may not exchange in customary trade or sell fish or 
wildlife or their parts, taken pursuant to the regulations in this 
part, unless provided for in this part.
    (c) You may barter fish or wildlife or their parts, taken pursuant 
to the regulations in this part, unless restricted in Secs. ____.25, 
____.26, ____.27, or ____.28.

Sec. ______.8  Penalties.

    If you are convicted of violating any provision of 50 CFR Part 100 
or 36 CFR Part 242, you may be punished by a fine or by imprisonment in 
accordance with the penalty provisions applicable to the public land 
where the violation occurred.

Sec. ______.9  Information collection requirements.

    (a) The rules in this part contain information collection 
requirements subject to Office of Management and

[[Page 30566]]

Budget (OMB) approval under 44 U.S.C. 3501-3520. They apply to fish and 
wildlife harvest activities on public lands in Alaska. Subsistence 
users will not be required to respond to an information collection 
request unless a valid OMB number is displayed on the information 
collection form.
    (1) Section ____.6, Licenses, permits, harvest tickets, tags, and 
reports. The information collection requirements contained in 
Sec. ____.6 (Federal Subsistence Registration Permit or Federal 
Designated Harvester Permit forms) provide for permit-specific 
subsistence activities not authorized through the general adoption of 
State regulations. Identity and location of residence are required to 
determine if you are eligible for a permit and a report of success is 
required after a harvest attempt. These requirements are not 
duplicative with the requirements of paragraph (a)(3) of this section. 
The regulations in Sec. ----.6 require this information before a rural 
Alaska resident may engage in subsistence uses on public lands. The 
Department estimates that the average time necessary to obtain and 
comply with this permit information collection requirement is 0.25 
    (2) Section ____.20, Request for reconsideration. The information 
collection requirements contained in Sec. ----.20 provide a 
standardized process to allow individuals the opportunity to appeal 
decisions of the Board. Submission of a request for reconsideration is 
voluntary but required to receive a final review by the Board. We 
estimate that a request for reconsideration will take 4 hours to 
prepare and submit.
    (3) The remaining information collection requirements contained in 
this part imposed upon subsistence users are those adopted from State 
regulations. These collection requirements would exist in the absence 
of Federal subsistence regulations and are not subject to the Paperwork 
Reduction Act. The burden in this situation is negligible, and 
information gained from these reports is systematically available to 
Federal managers by routine computer access requiring less than 1 hour.
    (b) You may direct comments on the burden estimate or any other 
aspect of the burden estimate to: Information Collection Officer, U.S. 
Fish and Wildlife Service, 1849 C Street, N.W., MS 222 ARLSQ, 
Washington, D.C. 20240; and the Office of Management and Budget, 
Paperwork Reduction Project (Subsistence), Washington, D.C. 20503. 
Additional information requirements may be imposed if Local Advisory 
Committees or additional Regional Councils, subject to the Federal 
Advisory Committee Act (FACA), are established under subpart B of this 
part. Such requirements will be submitted to OMB for approval prior to 
their implementation.

Subpart B--Program Structure

Sec. ______.10  Federal Subsistence Board.

    (a) The Secretary of the Interior and Secretary of Agriculture 
hereby establish a Federal Subsistence Board, and assign it 
responsibility for administering the subsistence taking and uses of 
fish and wildlife on public lands, and the related promulgation and 
signature authority for regulations of subparts C and D of this part. 
The Secretaries, however, retain their existing authority to restrict 
or eliminate hunting, fishing, or trapping activities which occur on 
lands or waters in Alaska other than public lands when such activities 
interfere with subsistence hunting, fishing, or trapping on the public 
lands to such an extent as to result in a failure to provide the 
subsistence priority.
    (b) Membership. (1) The voting members of the Board are: a Chair to 
be appointed by the Secretary of the Interior with the concurrence of 
the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish 
and Wildlife Service; Alaska Regional Director, National Park Service; 
Alaska Regional Forester, USDA Forest Service; the Alaska State 
Director, Bureau of Land Management; and the Alaska Regional Director, 
Bureau of Indian Affairs. Each member of the Board may appoint a 
    (2) [Reserved]
    (c) Liaisons to the Board are: a State liaison, and the Chairman of 
each Regional Council. The State liaison and the Chairman of each 
Regional Council may attend public sessions of all Board meetings and 
be actively involved as consultants to the Board.
    (d) Powers and duties. (1) The Board shall meet at least twice per 
year and at such other times as deemed necessary. Meetings shall occur 
at the call of the Chair, but any member may request a meeting.
    (2) A quorum consists of four members.
    (3) No action may be taken unless a majority of voting members are 
in agreement.
    (4) The Board is empowered, to the extent necessary, to implement 
Title VIII of ANILCA, to:
    (i) Issue regulations for the management of subsistence taking and 
uses of fish and wildlife on public lands;
    (ii) Determine which communities or areas of the State are rural or 
    (iii) Determine which rural Alaska areas or communities have 
customary and traditional subsistence uses of specific fish and 
wildlife populations;
    (iv) Allocate subsistence uses of fish and wildlife populations on 
public lands;
    (v) Ensure that the taking on public lands of fish and wildlife for 
nonwasteful subsistence uses shall be accorded priority over the taking 
on such lands of fish and wildlife for other purposes;
    (vi) Close public lands to the non-subsistence taking of fish and 
    (vii) Establish priorities for the subsistence taking of fish and 
wildlife on public lands among rural Alaska residents;
    (viii) Restrict or eliminate taking of fish and wildlife on public 
    (ix) Determine what types and forms of trade of fish and wildlife 
taken for subsistence uses constitute allowable customary trade;
    (x) Authorize the Regional Councils to convene;
    (xi) Establish a Regional Council in each subsistence resource 
region and recommend to the Secretaries, appointees to the Regional 
Councils, pursuant to the FACA;
    (xii) Establish Federal Advisory Committees within the subsistence 
resource regions, if necessary, and recommend to the Secretaries that 
members of the Federal Advisory Committees be appointed from the group 
of individuals nominated by rural Alaska residents;
    (xiii) Establish rules and procedures for the operation of the 
Board, and the Regional Councils;
    (xiv) Review and respond to proposals for regulations, management 
plans, policies, and other matters related to subsistence taking and 
uses of fish and wildlife;
    (xv) Enter into cooperative agreements or otherwise cooperate with 
Federal agencies, the State, Native organizations, local governmental 
entities, and other persons and organizations, including international 
entities to effectuate the purposes and policies of the Federal 
subsistence management program;
    (xvi) Develop alternative permitting processes relating to the 
subsistence taking of fish and wildlife to ensure continued 
opportunities for subsistence;
    (xvii) Evaluate whether hunting, fishing, or trapping activities 
which occur on lands or waters in Alaska other than public lands 
interfere with

[[Page 30567]]

subsistence hunting, fishing, or trapping on the public lands to such 
an extent as to result in a failure to provide the subsistence 
priority, and after appropriate consultation with the State of Alaska, 
the Regional Councils, and other Federal agencies, make a 
recommendation to the Secretaries for their action;
    (xviii) Identify, in appropriate specific instances, whether there 
exists additional Federal reservations, Federal reserved water rights 
or other Federal interests in lands or waters, including those in which 
the United States holds less than a fee ownership, to which the Federal 
subsistence priority attaches, and make appropriate recommendation to 
the Secretaries for inclusion of those interests within the Federal 
Subsistence Management Program; and
    (xix) Take other actions authorized by the Secretaries to implement 
    (5) The Board may implement one or more of the following harvest 
and harvest reporting or permit systems:
    (i) The fish and wildlife is taken by an individual who is required 
to obtain and possess pertinent State harvest permits, tickets, or 
tags, or Federal permit (Federal Subsistence Registration Permit);
    (ii) A qualified subsistence user may designate another qualified 
subsistence user (by using the Federal Designated Harvester Permit) to 
take fish and wildlife on his or her behalf;
    (iii) The fish and wildlife is taken by individuals or community 
representatives permitted (via a Federal Subsistence Registration 
Permit) a one-time or annual harvest for special purposes including 
ceremonies and potlatches; or
    (iv) The fish and wildlife is taken by representatives of a 
community permitted to do so in a manner consistent with the 
community's customary and traditional practices.
    (6) The Board may delegate to agency field officials the authority 
to set harvest and possession limits, define harvest areas, specify 
methods or means of harvest, specify permit requirements, and open or 
close specific fish or wildlife harvest seasons within frameworks 
established by the Board.
    (7) The Board shall establish a Staff Committee for analytical and 
administrative assistance composed of members from the U.S. Fish and 
Wildlife Service, National Park Service, U.S. Bureau of Land 
Management, Bureau of Indian Affairs, and USDA Forest Service. A U.S. 
Fish and Wildlife Service representative shall serve as Chair of the 
Staff Committee.
    (8) The Board may establish and dissolve additional committees as 
necessary for assistance.
    (9) The U.S. Fish and Wildlife Service shall provide appropriate 
administrative support for the Board.
    (10) The Board shall authorize at least two meetings per year for 
each Regional Council.
    (e) Relationship to Regional Councils. (1) The Board shall consider 
the reports and recommendations of the Regional Councils concerning the 
taking of fish and wildlife on public lands within their respective 
regions for subsistence uses. The Board may choose not to follow any 
Regional Council recommendation which it determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, would be detrimental to the satisfaction of 
subsistence needs, or in closure situations, for reasons of public 
safety or administration or to assure the continued viability of a 
particular fish or wildlife population. If a recommendation is not 
adopted, the Board shall set forth the factual basis and the reasons 
for the decision, in writing, in a timely fashion.
    (2) The Board shall provide available and appropriate technical 
assistance to the Regional Councils.

Sec. ______.11  Regional advisory councils.

    (a) The Board shall establish a Regional Council for each 
subsistence resource region to participate in the Federal subsistence 
management program. The Regional Councils shall be established, and 
conduct their activities, in accordance with the FACA. The Regional 
Councils shall provide a regional forum for the collection and 
expression of opinions and recommendations on matters related to 
subsistence taking and uses of fish and wildlife resources on public 
lands. The Regional Councils shall provide for public participation in 
the Federal regulatory process.
    (b) Establishment of Regional Councils; membership. (1) The number 
of members for each Regional Council shall be established by the Board, 
and shall be an odd number. A Regional Council member must be a 
resident of the region in which he or she is appointed and be 
knowledgeable about the region and subsistence uses of the public lands 
therein. The Board shall accept nominations and make recommendations to 
the Secretaries for representatives on the Regional Councils. 
Appointments to the Regional Councils shall be made by the Secretaries.
    (2) Regional Council members shall serve 3-year terms and may be 
reappointed. Initial members shall be appointed with staggered terms up 
to 3 years.
    (3) The Chair of each Regional Council shall be elected by the 
applicable Regional Council, from its membership, for a 1-year term and 
may be reelected.
    (c) Powers and Duties. (1) The Regional Councils are authorized to:
    (i) Hold public meetings related to subsistence uses of fish and 
wildlife within their respective regions, after the Chair of the Board 
or the designated Federal Coordinator has called the meeting and 
approved the meeting agenda;
    (ii) Elect officers;
    (iii) Review, evaluate, and make recommendations to the Board on 
proposals for regulations, policies, management plans, and other 
matters relating to the subsistence take of fish and wildlife under the 
regulations in this part within the region;
    (iv) Provide a forum for the expression of opinions and 
recommendations by persons interested in any matter related to the 
subsistence uses of fish and wildlife within the region;
    (v) Encourage local and regional participation, pursuant to the 
provisions of the regulations in this part in the decisionmaking 
process affecting the taking of fish and wildlife on the public lands 
within the region for subsistence uses;
    (vi) Prepare and submit to the Board an annual report containing--
    (A) An identification of current and anticipated subsistence uses 
of fish and wildlife populations within the region;
    (B) An evaluation of current and anticipated subsistence needs for 
fish and wildlife populations from the public lands within the region;
    (C) A recommended strategy for the management of fish and wildlife 
populations within the region to accommodate such subsistence uses and 
needs related to the public lands; and
    (D) Recommendations concerning policies, standards, guidelines, and 
regulations to implement the strategy;
    (vii) Appoint members to each Subsistence Resource Commission 
within their region in accordance with the requirements of Section 808 
    (viii) Make recommendations on determinations of customary and 
traditional use of subsistence resources;
    (ix) Make recommendations on determinations of rural status;
    (x) Make recommendations regarding the allocation of subsistence 
uses among

[[Page 30568]]

rural Alaska residents pursuant to Sec. ____.17;
    (xi) Develop proposals pertaining to the subsistence taking and use 
of fish and wildlife under the regulations in this part, and review and 
evaluate such proposals submitted by other sources;
    (xii) Provide recommendations on the establishment and membership 
of Federal Advisory Committees.
    (2) The Regional Councils shall:
    (i) Operate in conformance with the provisions of FACA and comply 
with rules of operation established by the Board;
    (ii) Perform other duties specified by the Board.
    (3) The Regional Council recommendations to the Board should be 
supported by substantial evidence, be consistent with recognized 
principles of fish and wildlife conservation, and not be detrimental to 
the satisfaction of subsistence needs.

Sec. ______.12  Local advisory committees.

    (a) The Board shall establish such local Federal Advisory 
Committees within each region as necessary at such time that it is 
determined, after notice and hearing and consultation with the State, 
that the existing State fish and game advisory committees do not 
adequately provide advice to, and assist, the particular Regional 
Council in carrying out its function as set forth in Sec. ____.11.
    (b) Local Federal Advisory Committees, if established by the Board, 
shall operate in conformance with the provisions of the FACA, and 
comply with rules of operation established by the Board.

Sec. ______.13  Board/agency relationships.

    (a) General. (1) The Board, in making decisions or recommendations, 
shall consider and ensure compliance with specific statutory 
requirements regarding the management of resources on public lands, 
recognizing that the management policies applicable to some public 
lands may entail methods of resource and habitat management and 
protection different from methods appropriate for other public lands.
    (2) The Board shall issue regulations for subsistence taking of 
fish and wildlife on public lands. The Board is the final 
administrative authority on the promulgation of subparts C and D 
regulations relating to the subsistence taking of fish and wildlife on 
public lands.
    (3) Nothing in the regulations in this part shall enlarge or 
diminish the authority of any agency to issue regulations necessary for 
the proper management of public lands under their jurisdiction in 
accordance with ANILCA and other existing laws.
    (b) Section 808 of ANILCA establishes National Park and Park 
Monument Subsistence Resource Commissions. Nothing in the regulations 
in this part affects the duties or authorities of these commissions.

Sec. ______.14  Relationship to State procedures and regulations.

    (a) State fish and game regulations apply to public lands and such 
laws are hereby adopted and made a part of the regulations in this part 
to the extent they are not inconsistent with, or superseded by, the 
regulations in this part.
    (b) The Board may close public lands to hunting, trapping, or 
fishing, or take actions to restrict the taking of fish and wildlife 
when necessary to conserve healthy populations of fish and wildlife, 
continue subsistence uses of such populations, or pursuant to other 
applicable Federal law. The Board may review and adopt State openings, 
closures, or restrictions which serve to achieve the objectives of the 
regulations in this part.
    (c) The Board may enter into agreements with the State in order to 
coordinate respective management responsibilities.
    (d) Petition for repeal of subsistence rules and regulations. (1) 
The State of Alaska may petition the Secretaries for repeal of the 
subsistence rules and regulations in this part when the State has 
enacted and implemented subsistence management and use laws which:
    (i) Are consistent with sections 803, 804, and 805 of ANILCA; and
    (ii) Provide for the subsistence definition, preference, and 
participation specified in sections 803, 804, and 805 of ANILCA.
    (2) The State's petition shall:
    (i) Be submitted to the Secretary of the Interior, U.S. Department 
of the Interior, Washington, D.C. 20240, and the Secretary of 
Agriculture, U.S. Department of Agriculture, Washington, D.C. 20240;
    (ii) Include the entire text of applicable State legislation 
indicating compliance with sections 803, 804, and 805 of ANILCA; and
    (iii) Set forth all data and arguments available to the State in 
support of legislative compliance with sections 803, 804, and 805 of 
    (3) If the Secretaries find that the State's petition contains 
adequate justification, a rulemaking proceeding for repeal of the 
regulations in this part will be initiated. If the Secretaries find 
that the State's petition does not contain adequate justification, the 
petition will be denied by letter or other notice, with a statement of 
the ground for denial.

Sec. ______.15  Rural determination process.

    (a) The Board shall determine if an area or community in Alaska is 
rural. In determining whether a specific area of Alaska is rural, the 
Board shall use the following guidelines:
    (1) A community or area with a population of 2,500 or less shall be 
deemed to be rural unless such a community or area possesses 
significant characteristics of a non-rural nature, or is considered to 
be socially and economically a part of an urbanized area.
    (2) Communities or areas with populations above 2,500 but not more 
than 7,000 will be determined to be rural or non-rural.
    (3) A community with a population of more than 7,000 shall be 
presumed non-rural, unless such a community or area possesses 
significant characteristics of a rural nature.
    (4) Population data from the most recent census conducted by the 
United States Bureau of Census as updated by the Alaska Department of 
Labor shall be utilized in this process.
    (5) Community or area characteristics shall be considered in 
evaluating a community's rural or non-rural status. The characteristics 
may include, but are not limited to:
    (i) Use of fish and wildlife;
    (ii) Development and diversity of the economy;
    (iii) Community infrastructure;
    (iv) Transportation; and
    (v) Educational institutions.
    (6) Communities or areas which are economically, socially, and 
communally integrated shall be considered in the aggregate.
    (b) The Board shall periodically review rural determinations. Rural 
determinations shall be reviewed on a 10-year cycle, commencing with 
the publication of the year 2000 U.S. census. Rural determinations may 
be reviewed out-of-cycle in special circumstances. Once the Board makes 
a determination that a community has changed from rural to non-rural, a 
waiting period of 5 years shall be required before the non-rural 
determination becomes effective.
    (c) Current determinations are listed at Sec. ____.23.

Sec. ______.16  Customary and traditional use determination process.

    (a) The Board shall determine which fish stocks and wildlife 
populations have been customarily and traditionally used for 
subsistence. These

[[Page 30569]]

determinations shall identify the specific community's or area's use of 
specific fish stocks and wildlife populations. For areas managed by the 
National Park Service, where subsistence uses are allowed, the 
determinations may be made on an individual basis.
    (b) A community or area shall generally exhibit the following 
factors, which exemplify customary and traditional use. The Board shall 
make customary and traditional use determinations based on application 
of the following factors:
    (1) A long-term consistent pattern of use, excluding interruptions 
beyond the control of the community or area;
    (2) A pattern of use recurring in specific seasons for many years;
    (3) A pattern of use consisting of methods and means of harvest 
which are characterized by efficiency and economy of effort and cost, 
conditioned by local characteristics;
    (4) The consistent harvest and use of fish or wildlife as related 
to past methods and means of taking; near, or reasonably accessible 
from, the community or area;
    (5) A means of handling, preparing, preserving, and storing fish or 
wildlife which has been traditionally used by past generations, 
including consideration of alteration of past practices due to recent 
technological advances, where appropriate;
    (6) A pattern of use which includes the handing down of knowledge 
of fishing and hunting skills, values, and lore from generation to 
    (7) A pattern of use in which the harvest is shared or distributed 
within a definable community of persons; and
    (8) A pattern of use which relates to reliance upon a wide 
diversity of fish and wildlife resources of the area and which provides 
substantial cultural, economic, social, and nutritional elements to the 
community or area.
    (c) The Board shall take into consideration the reports and 
recommendations of any appropriate Regional Council regarding customary 
and traditional uses of subsistence resources.
    (d) Current determinations are listed in Sec. ____.24.

Sec. ______.17  Determining priorities for subsistence uses among rural 
Alaska residents.

    (a) Whenever it is necessary to restrict the subsistence taking of 
fish and wildlife on public lands in order to protect the continued 
viability of such populations, or to continue subsistence uses, the 
Board shall establish a priority among the rural Alaska residents after 
considering any recommendation submitted by an appropriate Regional 
    (b) The priority shall be implemented through appropriate 
limitations based on the application of the following criteria to each 
area, community, or individual determined to have customary and 
traditional use, as necessary:
    (1) Customary and direct dependence upon the populations as the 
mainstay of livelihood;
    (2) Local residency; and
    (3) The availability of alternative resources.
    (c) If allocation on an area or community basis is not achievable, 
then the Board shall allocate subsistence opportunity on an individual 
basis through application of the criteria in paragraphs (b)(1) through 
(3) of this section.
    (d) In addressing a situation where prioritized allocation becomes 
necessary, the Board shall solicit recommendations from the Regional 
Council in the area affected.

Sec. ______.18  Regulation adoption process.

    (a) Proposals for changes to the Federal subsistence regulations in 
subparts C or D of this part shall be accepted by the Board according 
to a published schedule. The Board may establish a rotating schedule 
for accepting proposals on various sections of subpart C or subpart D 
regulations over a period of years. The Board shall develop and publish 
proposed regulations in the Federal Register and publish notice in 
local newspapers. Comments on the proposed regulations in the form of 
proposals shall be distributed for public review.
    (1) Proposals shall be made available for at least a thirty (30) 
day review by the Regional Councils. Regional Councils shall forward 
their recommendations on proposals to the Board. Such proposals with 
recommendations may be submitted in the time period as specified by the 
Board or as a part of the Regional Council's annual report described in 
Sec. ____.11, whichever is earlier.
    (2) The Board shall publish notice throughout Alaska of the 
availability of proposals received.
    (3) The public shall have at least thirty (30) days to review and 
comment on proposals.
    (4) After the comment period the Board shall meet to receive public 
testimony and consider the proposals. The Board shall consider 
traditional use patterns when establishing harvest levels and seasons, 
and methods and means. The Board may choose not to follow any 
recommendation which the Board determines is not supported by 
substantial evidence, violates recognized principles of fish and 
wildlife conservation, or would be detrimental to the satisfaction of 
subsistence needs. If a recommendation approved by a Regional Council 
is not adopted by the Board, the Board shall set forth the factual 
basis and the reasons for its decision in writing to the Regional 
    (5) Following consideration of the proposals the Board shall 
publish final regulations pertaining to subparts C and D of this part 
in the Federal Register.
    (b) Proposals for changes to subparts A and B of this part shall be 
accepted by the Secretary of the Interior in accordance with 43 CFR 
part 14.

Sec. ______.19  Special actions.

    (a) The Board may restrict, close, or reopen the taking of fish and 
wildlife for non-subsistence uses on public lands when necessary to 
assure the continued viability of a particular fish or wildlife 
population, to continue subsistence uses of a fish or wildlife 
population, or for reasons of public safety or administration.
    (b) The Board may open, close, or restrict subsistence uses of a 
particular fish or wildlife population on public lands to assure the 
continued viability of a fish or wildlife population, to continue 
subsistence uses of a fish or wildlife population, or for reasons of 
public safety or administration.
    (c) The Board will accept a request for a change in seasons, 
methods and means, harvest limits and/or restrictions on harvest under 
this Sec. ______.19 only if there are extenuating circumstances 
necessitating a regulatory change before the next annual subpart D 
proposal cycle. Extenuating circumstances include unusual and 
significant changes in resource abundance or unusual conditions 
affecting harvest opportunities that could not reasonably have been 
anticipated and that potentially could have significant adverse effects 
on the health of fish and wildlife populations or subsistence uses. 
Requests for Special Action that do not meet these conditions will be 
rejected; however, a rejected Special Action request will be deferred, 
if appropriate, to the next annual regulatory proposal cycle for 
consideration, after coordination with the submitter. In general, 
changes to Customary and Traditional Use Determinations will only be 
considered through the annual subpart C proposal cycle.
    (d) In an emergency situation, the Board may immediately open, 

[[Page 30570]]

liberalize, or restrict subsistence uses of fish and wildlife on public 
lands, or close or restrict non-subsistence uses of fish and wildlife 
on public lands, if necessary to assure the continued viability of a 
fish or wildlife population, to continue subsistence uses of fish or 
wildlife, or for public safety reasons. Prior to implementing an 
emergency action, the Board shall consult with the State. The emergency 
action shall be effective when directed by the Board, may not exceed 60 
days, and may not be extended unless it is determined by the Board, 
after notice and public hearing, that such action should be extended. 
The Board shall, in a timely manner, provide notice via radio 
announcement or personal contact of the emergency action and shall 
publish notice and reasons justifying the emergency action in 
newspapers of any area affected, and in the Federal Register 
    (e) After consultation with the State, the appropriate Regional 
Advisory Council(s), and adequate notice and public hearing, the Board 
may make or direct a temporary change to close, open, or adjust the 
seasons, to modify the harvest limits, or to modify the methods and 
means of harvest for subsistence uses of fish and wildlife populations 
on public lands. An affected rural resident, community, Regional 
Council, or administrative agency may request a temporary change in 
seasons, harvest limits, or methods or means of harvest. In addition, a 
temporary change may be made only after the Board determines that the 
proposed temporary change will not interfere with the conservation of 
healthy fish and wildlife populations, will not be detrimental to the 
long-term subsistence use of fish or wildlife resources, and is not an 
unnecessary restriction on non-subsistence users. The decision of the 
Board shall be the final administrative action. The temporary change 
shall be effective when directed by the Board following notice in the 
affected area(s). This notice may include publication in newspapers or 
announcement on local radio stations. The Board shall publish notice 
and reasons justifying the temporary action in the Federal Register 
thereafter. The length of any temporary change shall be confined to the 
minimum time period or harvest limit determined by the Board to be 
necessary to satisfy subsistence uses. A temporary opening or closure 
will not extend beyond the regulatory year for which it is promulgated.
    (f) Regulations authorizing any individual agency to direct 
temporary or emergency closures on public lands managed by the agency 
remain unaffected by the regulations in this part, which authorize the 
Board to make or direct restrictions, closures, or temporary changes 
for subsistence uses on public lands.
    (g) You may not take fish and wildlife in violation of a 
restriction, closure, opening, or temporary change authorized by the 

Sec. ______.20  Request for reconsideration.

    (a) Regulations in subparts C and D of this part published in the 
Federal Register are subject to requests for reconsideration.
    (b) Any aggrieved person may file a request for reconsideration 
with the Board.
    (c) To file a request for reconsideration, you must notify the 
Board in writing within sixty (60) days of the effective date or date 
of publication of the notice, whichever is earlier, for which 
reconsideration is requested.
    (d) It is your responsibility to provide the Board with sufficient 
narrative evidence and argument to show why the action by the Board 
should be reconsidered. The Board will accept a request for 
reconsideration only if it is based upon information not previously 
considered by the Board, demonstrates that the existing information 
used by the Board is incorrect, or demonstrates that the Board's 
interpretation of information, applicable law, or regulation is in 
error or contrary to existing law. You must include the following 
information in your request for reconsideration:
    (1) Your name, and mailing address;
    (2) The action which you request be reconsidered and the date of 
Federal Register publication of that action;
    (3) A detailed statement of how you are adversely affected by the 
    (4) A detailed statement of the facts of the dispute, the issues 
raised by the request, and specific references to any law, regulation, 
or policy that you believe to be violated and your reason for such 
    (5) A statement of how you would like the action changed.
    (e) Upon receipt of a request for reconsideration, the Board shall 
transmit a copy of such request to any appropriate Regional Council and 
the Alaska Department of Fish and Game (ADFG) for review and 
recommendation. The Board shall consider any Regional Council and ADFG 
recommendations in making a final decision.
    (f) If the request is justified, the Board shall implement a final 
decision on a request for reconsideration after compliance with 5 
U.S.C. 551-559 (APA).
    (g) If the request is denied, the decision of the Board represents 
the final administrative action.

Sec. ______.21  [Reserved]

Subpart C--Board Determinations

    3. Amend subpart C of 36 CFR part 242 and 50 CFR part 100 by 
revising Secs. ____.22 and ____.23 to read as follows:

Sec. ______.22  Subsistence resource regions.

    (a) The Board hereby designates the following areas as subsistence 
resource regions:
    (1) Southeast Region;
    (2) Southcentral Region;
    (3) Kodiak/Aleutians Region;
    (4) Bristol Bay Region;
    (5) Yukon-Kuskokwim Delta Region;
    (6) Western Interior Region;
    (7) Seward Peninsula Region;
    (8) Northwest Arctic Region;
    (9) Eastern Interior Region;
    (10) North Slope Region.
    (b) You may obtain maps delineating the boundaries of subsistence 
resource regions from the U.S. Fish and Wildlife Service, 3601 C 
Street, Suite 1030, Anchorage, Alaska 99503.

Sec. ______.23  Rural determinations.

    (a) The Board has determined all communities and areas to be rural 
in accordance with Sec. ____.15 except the following:

Fairbanks North Star Borough;
Homer area--including Homer, Anchor Point, Kachemak City, and Fritz 
Juneau area--including Juneau, West Juneau, and Douglas;
Kenai area--including Kenai, Soldotna, Sterling, Nikiski, Salamatof, 
Kalifornsky, Kasilof, and Clam Gulch;
Ketchikan area--including Ketchikan City, Clover Pass, North Tongass 
Highway, Ketchikan East, Mountain Point, Herring Cove, Saxman East, 
Pennock Island, and parts of Gravina Island;
Municipality of Anchorage;
Seward area--including Seward and Moose Pass, Valdez, and
Wasilla area--including Palmer, Wasilla, Sutton, Big Lake, Houston, and 
Bodenberg Butte.

    You may obtain maps delineating the boundaries of non-rural areas 
from the U.S. Fish and Wildlife Service.
    (b) [Reserved]
    4. Amend Sec. ____.24 by revising paragraph (a) introductory text 
to read as follows:

[[Page 30571]]

Sec. ______.24  Customary and traditional use determinations.

    (a) The Federal Subsistence Board has determined that rural Alaska 
residents of the listed communities, areas, and individuals have 
customary and traditional use of the specified species on Federal 
public land in the specified areas. Persons granted individual 
customary and traditional use determinations will be notified in 
writing by the Board. The Fish & Wildlife Service and the local NPS 
Superintendent will maintain the list of individuals having customary 
and traditional use on National Parks and Monuments. A copy of the list 
is available upon request. When there is a determination for specific 
communities or areas of residence in a Unit, all other communities not 
listed for that species in that Unit have no Federal subsistence 
priority for that species in that Unit. If no determination has been 
made for a species in a Unit, all rural Alaska residents are eligible 
to harvest fish or wildlife under this part.
* * * * *

    Dated: April 19, 2002.
Gale Norton,
Secretary of the Interior.

    Dated: January 14, 2002.
Dennis E. Bschor,
Regional Forester, USDA--Forest Service.
[FR Doc. 02-11319 Filed 5-6-02; 8:45 am]