[Federal Register: October 14, 2009 (Volume 74, Number 197)]
[Proposed Rules]
[Page 52712-52716]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc09-29]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 242
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 100
[Docket No. FWS-R7-SM-2009-0052]
[70101-1261-0000L6]
RIN 1018-AW77
Subsistence Management Regulations for Public Lands in Alaska,
Subpart B; Special Actions
AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Forest Service and U.S. Fish and Wildlife
Service, are proposing to amend the regulations that manage take of
wildlife and fish in Alaska for subsistence purposes to clarify them.
In particular, we want to clarify the Federal Subsistence Board's
process of accepting and addressing special action requests, along with
the role of the Regional Advisory Councils in the special action
process. We would also update public notice requirements to bring them
into line with the practices of the digital age and accommodate a new
biennial regulatory cycle.
DATES: Public meeting: The Federal Subsistence Board will hold a public
meeting on January 12, 2010, to receive comments on this proposed rule.
See SUPPLEMENTARY INFORMATION for specific information on the public
meeting.
Public comments: We must receive written comments on this proposed
rule by January 12, 2010.
ADDRESSES: Public meeting: The Federal Subsistence Board public meeting
will be held at the Coast International Inn in Anchorage, Alaska. See
SUPPLEMENTARY INFORMATION for specific information on the public
meeting.
Public comments: You may submit comments by one of the following
methods:
Electronically: Go to the Federal eRulemaking
Portal: http://www.regulations.gov. In the Search Documents box, enter
FWS-R7-SM-2009-0052, which is the docket number for this rulemaking.
Then, in the Search panel on the left side of the screen, under the
Document Type heading, click on the Proposed Rules link to locate this
document. You may submit a comment by clicking on ``Send a Comment or
Submission.''
By hard copy: U.S. mail or hand-delivery to:
USFWS, Office of Subsistence Management, 1011 East Tudor Road, MS 121,
Attn: Theo Matuskowitz, Anchorage, AK 99503-6199; or hand-delivery to
the Designated Federal Official attending the Federal Subsistence Board
public meeting in Anchorage.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Review Process section below for more information).
FOR FURTHER INFORMATION CONTACT: For questions specific to National
Forest System lands, contact Calvin H. Casipit, Regional Subsistence
Program Leader, USDA, Forest Service, Alaska Region; (907) 586-7918.
For questions regarding Department of the Interior lands, contact
[[Page 52713]]
Peter J. Probasco, Office of Subsistence Management, U.S. Fish and
Wildlife Service; (907) 786-3888.
SUPPLEMENTARY INFORMATION:
Background
Under Title VIII of the Alaska National Interest Lands Conservation
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and
the Secretary of Agriculture (Secretaries) jointly implement the
Federal Subsistence Management Program. This program grants a
preference for subsistence uses of fish and wildlife resources on
Federal public lands and waters in Alaska to rural residents. The
Secretaries first published regulations to carry out this program in
the Federal Register on May 29, 1992 (57 FR 22940), but the regulations
have been amended numerous times since then. Because this program is a
joint effort between Interior and Agriculture, these regulations are
located in two titles of the Code of Federal Regulations (CFR): Title
36, ``Parks, Forests, and Public Property,'' and Title 50, ``Wildlife
and Fisheries,'' at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively.
The regulations contain subparts as follows: Subpart A, General
Provisions; Subpart B, Program Structure; Subpart C, Board
Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.
Consistent with subpart B of these regulations, the Departments
established a Federal Subsistence Board to administer the Federal
Subsistence Management Program. The Board is made up of:
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, U.S. Forest Service.
Through the Board, these agencies participate in the development of
regulations for subparts A, B, and C, which set forth the basic
program, and the subpart D regulations, which, among other things, set
forth specific harvest seasons and limits.
In administering the program, the Secretaries divided 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 Federal public lands in Alaska. The regional
council members represent varied geographical, cultural, and user
diversity within each region.
Proposed Regulatory Changes
Members of the regional councils, agency representatives, and the
public have expressed concern to the Federal Subsistence Board that 36
CFR 242.19 and 50 CFR 100.19, respectively, need to be revised in a
manner that provides more clarity to, and thereby increases
understanding of, the Board's process of accepting and addressing
special action requests. Special actions are actions that the Board
takes to modify the hunting or fishing regulations on public lands to
ensure the continued viability of a fish or wildlife population or for
other reasons. These actions may include closing, opening, or adjusting
the seasons; modifying the harvest limits; or modifying the methods and
means of harvest for subsistence uses of fish and wildlife.
The problem with the lack of clarity in the regulations became
particularly apparent during oral argument in the case of Ninilchik
Traditional Council v. Fleagle, when the presiding judge struggled to
interpret the procedural mechanisms described in the regulation and
criticized it for being unclear. More recently, we have recognized the
need to modify Sec. ----.19 to account for the programmatic shift to a
biennial regulatory cycle.
The primary purposes of these proposed modifications are to:
(1) Improve clarity with respect to the Board's process of
accepting and addressing special action requests;
(2) update public notice requirements to bring them into line with
the practices of the digital age;
(3) bring clarity to the role of the regional councils with respect
to special action requests; and
(4) accommodate the biennial regulatory cycle, which was
implemented in 2008 (73 FR 35726; June 24, 2008). Additionally, we
propose to revise Sec. ------.10(d) and Sec. ------.18(a) to
correspond with the proposed changes in Sec. ------.19.
While these proposed regulatory revisions will result in no direct
change to subsistence uses, the changes should help all Alaska
residents to better understand the process by which special action
requests are accepted or rejected by the Board.
Public Review Process--Public Meeting and Comments
The Secretaries, through the Federal Subsistence Board, will
receive comments on this proposed rule during a public meeting to be
held at the Coast International Inn in Anchorage on January 12, 2010,
starting at 8:30 a.m. You may provide oral testimony before the Board
at that time. The council chairs, or their designated representatives,
will present their respective councils' comments at the Board meeting.
The Board will then review all comments received and forward its
recommendations to the Secretaries for final action.
We will publish notice of the date, time, and meeting location in
local and statewide newspapers prior to this meeting. The location and
date may change based on weather or local circumstances. The amount of
work on the Board's agenda will determine the length of the meeting.
Public Comment Procedures
To ensure that any final action resulting from this proposed rule
will be as accurate and as effective as possible, we request that you
send relevant information for our consideration. The comments that will
be most useful and likely to influence our decisions are those that you
support by quantitative information or studies and those that include
citations to, and analyses of, the applicable laws and regulations.
Please make your comments as specific as possible and explain the bases
for them. In addition, please include sufficient information with your
comments to allow us to authenticate any scientific or commercial data
you include.
You must submit your comments and materials concerning this
proposed rule by one of the methods listed above in the ADDRESSES
section. If you submit a comment via http://www.regulations.gov, your
entire comment--including any personal identifying information, such as
your address, telephone number, or e-mail address--will be posted on
the Web site. Please note that comments submitted to this Web site are
not immediately viewable. When you submit a comment, the system
receives it immediately. However, the comment will not be publicly
viewable until we post it, which might not occur until several days
after submission.
If you mail or hand-carry a hardcopy comment directly to us that
includes personal information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee
[[Page 52714]]
that we will be able to do so. To ensure that the electronic docket for
this rulemaking is complete and all comments we receive are publicly
available, we will post all hardcopy comments on http://
www.regulations.gov.
In addition, comments and materials we receive, as well as
supporting documentation used in preparing this proposed rule, will be
available for public inspection in two ways:
(1) You can view them on http://www.regulations.gov. In the Keyword
box, enter FWS-R7-SM-2009-0052, which is the docket number for this
rulemaking. Then, in the Search panel on the left side of the screen,
select the type of documents you want to view under the Document Type
heading.
(2) You can make an appointment, during normal business hours, to
view the comments and materials in person at the Office of Subsistence
Management, 1011 East Tudor Road, MS 121, Anchorage, AK 99503-6199.
Public Availability of Comments
As stated above in more detail, before including your address,
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly
available at any time. While you can ask us in your comment to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Tribal Consultation and Comment
As expressed in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' the Federal officials
that have been delegated authority by the Secretaries are committed to
honoring the unique government-to-government political relationship
that exists between the Federal Government and Federally Recognized
Indian tribes (tribes) as listed in 73 FR 18533 (April 4, 2008). ANILCA
does not specifically provide rights to tribes for the subsistence
taking of wildlife, fish, and shellfish. However, because tribal
members are affected by subsistence fishing, hunting, and trapping
regulations, the Secretaries have elected to provide tribes an
opportunity to consult on this proposed rule. The Board will consider
other opportunities for tribal consultation, as appropriate. The Board
will consider tribes' information, input, and recommendations, and
address their concerns as much as practicable.
Compliance with Statutory and Regulatory Authorities
National Environmental Policy Act
A Draft Environmental Impact Statement that described four
alternatives for developing a Federal Subsistence Management Program
was distributed for public comment on October 7, 1991. The Final
Environmental Impact Statement (FEIS) was published on February 28,
1992. The Record of Decision (ROD) on Subsistence Management for
Federal Public Lands in Alaska was signed April 6, 1992. The selected
alternative in the FEIS (Alternative IV) defined the administrative
framework of an annual regulatory cycle for subsistence regulations.
A 1997 environmental assessment dealt with the expansion of Federal
jurisdiction over fisheries and is available at the office listed under
FOR FURTHER INFORMATION CONTACT. The Secretary of the Interior, with
concurrence of the Secretary of Agriculture, determined that expansion
of Federal jurisdiction does not constitute a major Federal action
significantly affecting the human environment and, therefore, signed a
Finding of No Significant Impact.
Section 810 of ANILCA
An ANILCA 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
and concluded that the Federal Subsistence Management Program, under
Alternative IV with an annual process for setting subsistence
regulations, may have some local impacts on subsistence uses, but will
not likely restrict subsistence uses significantly.
During the subsequent environmental assessment process for
extending fisheries jurisdiction, an evaluation of the effects of this
rule was conducted in accordance with section 810. That evaluation also
supported the Secretaries' determination that the rule will not reach
the ``may significantly restrict'' threshold that would require notice
and hearings under ANILCA section 810(a).
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.
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant.
OMB bases its determination of significance upon the following four
criteria:
a. Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
b. Whether the rule will create inconsistencies with other
agencies' actions.
c. Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
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 effect on a substantial number of small entities, which
include small businesses, organizations, or governmental jurisdictions.
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 2 million pounds of meat are harvested by subsistence users
annually and, if given an estimated dollar value of $3.00 per pound,
this amount would equate to about $6 million in food value statewide.
Based upon the amounts and values cited above, the Departments certify
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.
Small Business Regulatory Enforcement Fairness Act
Under the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 801
[[Page 52715]]
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.
Executive Order 12630
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.
Unfunded Mandates Reform Act
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.
Executive Order 12988
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.
Executive Order 13132
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.
Executive Order 13175
ANILCA does not specifically provide rights to tribes for the
subsistence taking of wildlife, fish, and shellfish. And while, for
this rule, E.O. 13175 does not require the agencies to consult with
tribes, the Secretaries have elected to provide tribes an opportunity
to consult on this rule. The Board will provide a variety of
opportunities for consultation through: Commenting on proposed changes
to the existing rule; engaging in dialogue at the Board's meetings; and
providing input in person, by mail, email, or phone at any time during
the rulemaking process.
Executive Order 1321
On May 18, 2001, the President issued E.O. 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. This rule is not a
significant regulatory action under E.O. 13211, affecting energy
supply, distribution, or use, and no Statement of Energy Effects is
required.
Drafting Information
Theo Matuskowitz 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.
Additional assistance was provided by:
Daniel Sharp, Alaska State Office, Bureau of Land
Management;
Sandy Rabinowitch and Nancy Swanton, Alaska Regional
Office, National Park Service;
Drs. Warren Eastland and Glenn Chen, Alaska Regional
Office, Bureau of Indian Affairs;
Jerry Berg and Carl Jack, Alaska Regional Office, U.S.
Fish and Wildlife Service; and
Calvin H. Casipit, Alaska Regional Office, U.S. Forest
Service.
List of Subjects in 36 CFR Part 242
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
List of Subjects in 50 CFR Part 100
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
For the reasons set out in the preamble, the Federal Subsistence
Board proposes to amend subpart B of part 242 of title 36 and part 100
of title 50 of the Code of Federal Regulations, as set forth below.
PART --------SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN
ALASKA
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. Amend Sec. ------.10 by revising paragraph (d)(4)(vi),
redesignating paragraphs (d)(4)(vii) through (xix) as paragraphs
(d)(4)(viii) through (xx), and adding a new paragraph (d)(4)(vii) to
read as follows:
Sec. ------.10 Federal Subsistence Board.
* * * * *
(d) * * *
(4) * * *
(vi) Restrict the taking of fish and wildlife on public lands for
nonsubsistence uses, close or open public lands for the take of fish
and wildlife for nonsubsistence uses, or otherwise modify the
requirements regarding the taking of fish and wildlife on public lands
for nonsubsistence uses when necessary for the conservation of healthy
populations of fish or wildlife, to continue subsistence uses of fish
or wildlife, or for reasons of public safety or administration;
(vii) Restrict the taking of a particular fish or wildlife
population on public lands for subsistence uses, close public lands to
take for subsistence uses, or otherwise modify the requirements for
take from a particular fish or wildlife population on public lands for
subsistence uses when necessary to ensure the continued viability of a
fish or wildlife population, or for reasons of public safety or
administration (As soon as conditions warrant, the Board may also
reopen public lands to the taking of a fish and wildlife population for
subsistence users to continue those uses.);
* * * * *
3. Revise the introductory text of paragraph (a) of Sec. ------.18
to read as follows:
Sec. ------.18 Regulation adoption process.
(a) The Board will accept proposals for changes to the Federal
subsistence regulations in subparts C or D of this part according to a
published schedule, except for proposals for emergency and temporary
special actions, which the Board will accept according to procedures
set forth in Sec. ------.19. 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 will develop
and publish proposed regulations in the Federal Register, publish
notice in local newspapers, and distribute comments on the proposed
regulations in the form of proposals for public review.
* * * * *
4. Revise Sec. ------.19 to read as follows:
Sec. ------.19 Special actions.
(a) Emergency special actions. In an emergency situation, the Board
may immediately open or close public lands for the taking of fish and
wildlife for subsistence uses, or modify the requirements for take for
subsistence uses, or close public lands to take for nonsubsistence uses
of fish and wildlife,
[[Page 52716]]
or restrict the requirements for take for nonsubsistence uses, if
necessary to ensure the continued viability of a fish or wildlife
population, to continue subsistence uses of fish or wildlife, or for
public safety reasons. The Board may also reopen public lands to
nonsubsistence uses if new information or changed conditions indicate
that the closure is no longer warranted.
(1) If the timing of a regularly scheduled meeting of the affected
Regional Council so permits without incurring undue delay, the Board
may seek Council recommendations on the proposed emergency special
action. Such a Council recommendation, if any, will be subject to the
requirements of Sec. ------.18.
(2) The emergency action will be effective when directed by the
Board, may not exceed 60 days, and may not be extended unless the
procedures for adoption of a temporary special action, as set forth in
paragraph (b) of this section, have been followed.
(b) Temporary special actions. After adequate notice and public
hearing, the Board may temporarily close or open public lands for the
taking of fish and wildlife for subsistence uses or modify the
requirements for subsistence take, or temporarily close public lands
for the taking of fish and wildlife for nonsubsistence uses or restrict
take for nonsubsistence uses. The Board may make such temporary changes
only after it 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
nonsubsistence users.
(1) Prior to implementing a temporary special action, the Board
will consult with the State of Alaska and the Chairs of the Regional
Councils of the affected regions.
(2) If the timing of a regularly scheduled meeting of the affected
Regional Council so permits without incurring undue delay, the Board
will seek Council recommendations on the proposed temporary special
action. Such Council recommendations, if any, will be subject to the
requirements of Sec. ------.18.
(3) The length of any temporary action will be confined to the
minimum time period or harvest limit determined by the Board to be
necessary under the circumstances. In any event, a temporary opening or
closure will not extend longer than the end of the current regulatory
cycle.
(c) The Board may reject a request for either an emergency or a
temporary special action if the Board concludes that there are no time-
sensitive circumstances necessitating a regulatory change before the
next regular proposal cycle. However, a special action request that has
been rejected for this reason may be deferred, if appropriate and after
consultation with the proponent, for consideration during the next
regular proposal cycle. The Board will consider changes to customary
and traditional use determinations in subpart C of this part only
during the regular proposal cycle.
(d) The Board will provide notice of all regulatory changes adopted
via special action by posting the change on the Office of Subsistence
Management website (http://alaska.fws.gov/asm/osm.cfml). When
appropriate, notice may also include distribution of press releases to
newspapers, local radio stations, and local contacts, as well as direct
notification to the proponent and interested parties. The Board will
publish notice and reasons justifying the special action in the Federal
Register as soon as practicable.
(e) The decision of the Board on any proposed special action will
constitute its final administrative action.
(f) Regulations authorizing any individual agency to implement
closures or restrictions on public lands managed by the agency remain
unaffected by the regulations in this part.
(g) You may not take fish and wildlife in violation of any
restriction, closure, or change authorized by the Board.
Dated: October 6, 2009
Ken Salazar,
Secretary of the Interior, Department of the Interior.
Dated: July 22, 2009
Dennis E. Bschor,
Regional Forester, USDA--Forest Service.
[FR Doc. E9-24653 Filed 10-13-09; 8:45 am]
BILLING CODE 4310-55-S