[Federal Register: September 27, 2006 (Volume 71, Number 187)]
[Rules and Regulations]               
[Page 56356-56357]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Forest Service

36 CFR Part 242


Fish and Wildlife Service

50 CFR Part 100

RIN 1018-AU92

Subsistence Management Regulations for Public Lands in Alaska; 
Kenai Peninsula Subsistence Resource Region

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

ACTION: Direct final rule; withdrawal.


SUMMARY: We, the Federal Subsistence Board, are withdrawing the direct 
final rule that would have amended the regulations governing 
subsistence use of fish and wildlife in Alaska by creating an 
additional subsistence resource region for the Kenai Peninsula. We 
predicate this withdrawal on the fact that we have received significant 
adverse comments, specifically relating to the lack of public input on 
this issue.

DATES: This withdrawal is effective September 27, 2006.

http://www.regulations.gov. See SUPPLEMENTARY INFORMATION for file format and 

other information about electronic filing. You may also submit written 
comments to the Office of Subsistence Management, 3601 C Street, Suite 
1030, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: For general subsistence management 
program questions, contact Pete Probasco at (907) 786-3888. For Forest 
Service questions, contact Steve Kessler, Regional Subsistence Program 
Leader, USDA--FS Alaska Region, at (907) 786-3592.



    In Title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that ``the situation 
in Alaska is unique in that, in most cases, no practical alternative 
means are available to replace the food supplies and other items 
gathered from fish and wildlife which supply rural residents dependent 
on subsistence uses * * *'' and that ``continuation of the opportunity 
for subsistence uses of resources on public and other lands in Alaska 
is threatened * * *.'' As a result, Title VIII requires, among other 
things, 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 in Alaska, 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

[[Page 56357]]

statute violated the Alaska Constitution. The Court's ruling in 
McDowell required the State to delete the rural preference from its 
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).

Federal Subsistence Regional Advisory Councils

    Pursuant to the Subsistence Management Regulations for Federal 
Public Lands in Alaska, April 6, 1992, and the Subsistence Management 
Regulations for Federal Public Lands in Alaska, 36 CFR 242.11 (2002) 
and 50 CFR 100.11 (2002), and for the purposes identified therein, we 
divided Alaska into 10 subsistence resource regions, each of which is 
represented by a Federal Subsistence Regional Advisory Council 
(Regional Council). The Regional Councils provide a forum for residents 
of the regions, who have 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 varied geographical, cultural, and user 
diversity within each region.

Withdrawal of Direct Final Rule

    The Kenai Peninsula has unique fish and wildlife management 
challenges due to intense use of the Peninsula's fish and wildlife by 
local and nonlocal residents and by nonresidents, and due to the recent 
Board actions to begin to provide a meaningful subsistence priority for 
fisheries in Federally managed fresh waters on the Kenai Peninsula. 
Kenai Peninsula lands primarily under Federal management include the 
Chugach National Forest and the Kenai National Wildlife Refuge.
    We published a direct final rule on August 14, 2006 (71 FR 46400), 
that would have created a separate subsistence resource region for the 
Kenai Peninsula because we viewed this action as an uncontroversial 
administrative action by the Federal Subsistence Board. That direct 
final rule would have become effective September 29, 2006, unless we 
received significant adverse comments.
    During a Southcentral Federal Subsistence Regional Advisory Council 
meeting held in Anchorage, Alaska on August 24, 2006, we heard 
significant adverse testimony regarding the creation of a new Kenai 
Peninsula Subsistence Resource Region. Additionally, the Southcentral 
Regional Council unanimously recommended against the formation of such 
a region without providing more opportunity for public input. Letters 
from the public also strongly opposed the formation of such a region 
without providing more opportunity for public input. Therefore, we are 
withdrawing the direct final rule and will hold hearings in the 
affected area to obtain additional public input before deciding whether 
to proceed with the formation of a new subsistence resource region. In 
addition, on the same date that we published the direct final rule, we 
published a proposed rule (71 FR 46427) to create an additional 
subsistence resource region for the Kenai Peninsula.
    For the reasons stated above, the Federal Subsistence Board 
withdraws the direct final rule of August 14, 2006 (71 FR 46400).

    Dated: September 19, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
    Dated: September 19, 2006.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 06-8276 Filed 9-26-06; 8:45 am]