[Federal Register: December 19, 2006 (Volume 71, Number 243)]
[Proposed Rules]               
[Page 75899-75902]
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-AU71

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C and Subpart D: 2008-09 Subsistence Taking of Fish and 
Shellfish Regulations

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

ACTION: Proposed rule.


SUMMARY: This proposed rule would establish regulations for fishing 
seasons, harvest limits, methods, and means related to taking of fish 
and shellfish for subsistence uses during the 2008-09 regulatory year. 
The rulemaking is necessary because Subpart D is subject to an annual 
public review cycle. When

[[Page 75900]]

final, this rulemaking would replace the fish and shellfish taking 
regulations included in the ``Subsistence Management Regulations for 
Public Lands in Alaska, Subpart D: 2007-08 Subsistence Taking of Fish 
and Wildlife Regulations,'' which expire on March 31, 2008. This rule 
would also amend the Customary and Traditional Use Determinations of 
the Federal Subsistence Board and the General Regulations related to 
the taking of fish and shellfish.

DATES: The Federal Subsistence Board must receive your written public 
comments and proposals to change this proposed rule no later than March 
23, 2007. Federal Subsistence Regional Advisory Councils (Regional 
Councils) will hold public meetings to receive proposals to change this 
proposed rule between February 19, 2007, and March 21, 2007. See 
SUPPLEMENTARY INFORMATION for additional information on the public 

ADDRESSES: You may submit proposals by any of the following methods:
     E-mail: Subsistence@fws.gov.
     Fax: 907-786-3898.
     Mail: Office of Subsistence Management, 3601 C Street, 
Suite 1030, Anchorage, Alaska 99503.
    See SUPPLEMENTARY INFORMATION for file formats and other 
information about electronic filing. The public meetings will be held 
at various locations in Alaska. See SUPPLEMENTARY INFORMATION for 
additional information on locations of the public meetings.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of 
Subsistence Management; (907) 786-3888. For questions specific to 
National Forest System lands, contact Steve Kessler, Regional 
Subsistence Program Leader, USDA, Forest Service, Alaska Region; (907) 


Public Review Process--Regulation Comments, Proposals, and Public 

    The Federal Subsistence Program will hold meetings on this proposed 
rule at the following locations in Alaska:

Region 1--Southeast Regional Council, Kake, February 26, 2007
Region 2--Southcentral Regional Council, Anchorage, March 13, 2007
Region 3--Kodiak/Aleutians Regional Council, King Cove, March 12, 2007
Region 4--Bristol Bay Regional Council, Naknek, February 20, 2007
Region 5--Yukon-Kuskokwim Delta Regional Council, Hooper Bay, March 15, 
Region 6--Western Interior Regional Council, Aniak, March 6, 2007
Region 7--Seward Peninsula Regional Council, Nome, February 20, 2007
Region 8--Northwest Arctic Regional Council, Kotzebue, March 8, 2007
Region 9--Eastern Interior Regional Council, Arctic Village, March 20, 
Region 10--North Slope Regional Council, Barrow, March 1, 2007

    We will publish notice of specific dates, times, and meeting 
locations in local and Statewide newspapers prior to the meetings. We 
may need to change locations and dates based on weather or local 
circumstances. The amount of work on each Regional Councils agenda will 
determine the length of each Regional Council meetings.
    Electronic filing of comments (preferred method): Please submit 
electronic comments (proposals) and other data to Subsistence@fws.gov. 
Please submit as either MS Word or Adobe Acrobat (PDF) files.
    During May 2007, we will compile and distribute for additional 
public review the written proposals to change Subpart D fishing 
regulations and Subpart C customary and traditional use determinations. 
A 30-day public comment period will follow distribution of the compiled 
proposal packet. We will accept written public comments on distributed 
proposals during the public comment period, which is presently 
scheduled to end on June 29, 2007.
    We will hold a second series of Regional Council meetings in 
September and October 2007, at which the Regional Councils will develop 
recommendations to the Board. You may also present comments on 
published proposals to change fishing and customary and traditional use 
determination regulations to the Regional Councils at those fall 
    The Federal Subsistence Board (Board) will discuss and evaluate 
proposed changes to the subsistence taking of fish and shellfish 
regulations during a public meeting to be held in Anchorage in January 
2008. You may provide additional oral testimony on specific proposals 
before the Board at that time. The Board will then deliberate and take 
final action on proposals received that request changes to this 
proposed rule at that public meeting.

    Please Note: The Board will not consider proposals for changes 
relating to hunting or trapping regulations at this time. The Board 
anticipates calling for proposed changes to those regulations in 
August 2007.

    The Board's review of your comments and fish and shellfish 
proposals will be facilitated if you provide the following information: 
(a) Your name, address, and telephone number; (b) The section and/or 
paragraph of the proposed rule for which your change is being 
suggested; (c) A statement explaining why the change is necessary; (d) 
The proposed wording change; (e) Any additional information you believe 
will help the Board in evaluating your proposal. Proposals that fail to 
include the above information, or proposals that are beyond the scope 
of authorities in Sec.  --.24, subpart C, and Sec. Sec.  --.25,-- .27, 
or --.28, subpart D, may be rejected. The Board may defer review and 
action on some proposals to allow time for local cooperative planning 
efforts, or to acquire additional needed information, or if workload 
exceeds work capacity of staff, Regional Councils, or Board. These 
deferrals will be based on recommendations of the affected Regional 
Council, staff members, and on the basis of least harm to the 
subsistence user and the resource involved. Proposals should be 
specific to customary and traditional use determinations or to 
subsistence fishing seasons, harvest limits, and/or methods and means.


    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

[[Page 75901]]

Subsistence Management Regulations for Public Lands in Alaska were 
published in the Federal Register (55 FR 27114). Consistent with 
subparts A, B, and C of these regulations, as revised October 14, 2004 
(69 FR 60957), 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.
    All Board members have reviewed this proposed rule and agree with 
its substance. Because this proposed 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.

Applicability of Subparts A, B, and C

    Subparts A, B, and C (unless otherwise amended) of the Subsistence 
Management Regulations for Public Lands in Alaska, 50 CFR 100.1 to 
100.23 and 36 CFR 242.1 to 242.23, remain effective and apply to this 
proposed rule. Therefore, all definitions located at 50 CFR 100.4 and 
36 CFR 242.4 would apply to regulations found in this subpart.

Federal Subsistence Regional Advisory Councils

    Pursuant to the Record of Decision, 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 (2004) and 50 CFR 100.11 (2004), and for the purposes 
identified therein, we divide Alaska into 10 subsistence resource 
regions, each of which is represented by a Regional 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 varied 
geographical, cultural, and user diversity within each region.
    The Regional Councils have a substantial role in reviewing the 
proposed rule and making recommendations for the final rule. Moreover, 
the Council Chairs, or their designated representatives, will present 
their Council's recommendations at the Board meeting in January 2008.

Proposed Changes From 2007-08 Seasons and Harvest Limit Regulations

    Subpart D regulations are subject to an annual cycle and require 
development of an entire new rule each year. Customary and traditional 
use determinations (Sec.  --.24 of subpart C) are also subject to an 
annual review process providing for modification each year. The text of 
the 2006-07 subparts C and D final rule, as modified by Federal 
Subsistence Board actions during their January 9-11, 2007, public 
meeting, serves as the foundation for the 2008-09 subparts C and D 
proposed rule. Please see the 2006-07 subparts C and D final rule 
published in the March 29, 2006 (71 FR 15569), issue of the Federal 
Register. The modifications for 2007-08 made by the Board during their 
January 2007 meeting may be viewed on the Office of Subsistence 
Management Web site at http://www.alaska.fws.gov/asm/home.html. The 

regulations contained in this proposed rule would take effect on April 
1, 2008, unless elements are changed by subsequent Board action 
following the public review process outlined herein.

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, 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 was prepared in 1997 on the expansion 
of Federal jurisdiction over fisheries and is available from the office 
listed under FOR FURTHER INFORMATION CONTACT. The Secretary of the 
Interior, with the concurrence of the Secretary of Agriculture 
determined that the expansion of Federal jurisdiction did 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 rule 
will not reach the ``may significantly restrict'' threshold for notice 
and hearings under

[[Page 75902]]

ANILCA section 810(a) for any subsistence resources or uses.
    Paperwork Reduction Act--The information collection requirements 
contained in this rule have been approved by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and assigned OMB control number 1018-0075, which expires 
October 31, 2009. We may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a current valid OMB control number.
    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 tackle, boat, and 
gasoline dealers. The number of small entities affected is unknown; 
however, 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, we 
estimate that about 26.2 million pounds of fish (including about 9 
million pounds of salmon) are harvested Statewide by the local 
subsistence users annually and, if based on a replacement value of 
$3.00 per pound, would equate to $78.6 million in food value Statewide. 
The cultural benefits of maintaining a subsistence lifestyle can be of 
considerable value to the participants. This makes the $78.6 million 
estimate for the consumptive value of this rule an underestimate of the 
total benefit.
    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 effect on a substantial number of small entities, 
which include small businesses, organizations, or governmental 
jurisdictions. The Departments certify based on the above figures 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. Under the Small Business Regulatory 
Enforcement Fairness 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 
    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 
imposed on any State or local entities or tribal governments.
    The Secretaries have determined that these regulations meet the 
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive 
Order 12988, regarding civil justice reform.
    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 significant direct 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--William Knauer drafted these regulations 
under the guidance of Peter J. Probasco, of the Office of Subsistence 
Management, Alaska Regional Office, U.S. Fish and Wildlife Service, 
Anchorage, Alaska. Chuck Ardizzone, Alaska State Office, Bureau of Land 
Management; Nancy Swanton, Alaska Regional Office, National Park 
Service; Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian 
Affairs; Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife 
Service; and Steve Kessler, 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 proposes to amend 36 CFR 242 and 50 CFR 100 for the 2008-09 
regulatory year. The text of the amendments would be the same as the 
final rule for the 2006-07 regulatory year (71 FR 15569) as modified by 
Federal Subsistence Board actions on January 9-11, 2007.

    Dated: December 1, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.

    Dated: December 1, 2006.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 06-9760 Filed 12-18-06; 8:45 am]