[Federal Register: August 31, 2004 (Volume 69, Number 168)]
[Proposed Rules]               
[Page 53023-53026]
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-AT70

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C and Subpart D--2005-2006 Subsistence Taking of Wildlife 

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

ACTION: Proposed rule.


SUMMARY: This proposed rule would establish regulations for hunting and 
trapping seasons, harvest limits, methods and means related to taking 
of wildlife for subsistence uses during the 2005-2006 regulatory year. 
The rulemaking is necessary because Subpart D is subject to an annual 
public review cycle. When final, this rulemaking would replace the 
wildlife taking regulations included in the ``Subsistence Management 
Regulations for Public Lands in Alaska, Subpart D--2004-2005 
Subsistence Taking of Fish and Wildlife Regulations,'' which expire on 
June 30, 2005. 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 wildlife.

DATES: The Federal Subsistence Board must receive your written public 
comments and proposals to change this proposed rule no later than 
October 22, 2004. Federal Subsistence Regional Advisory Councils 
(Regional Councils) will hold public meetings to receive proposals to 
change this proposed rule on several dates starting from September 8, 
2004-October 15, 2004. See SUPPLEMENTARY INFORMATION for additional 
information on the public meetings including dates.

ADDRESSES: You may submit proposals electronically to 
Subsistence@fws.gov. See SUPPLEMENTARY INFORMATION for file formats and 

other information about electronic filing. You may also submit written 
comments and proposals to the Office of Subsistence Management, 3601 C 
Street, Suite 1030, Anchorage, Alaska 99503. 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: Thomas H. Boyd, 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 Board (Board), through the Regional 
Councils, will hold meetings on this proposed rule at the following 
locations and on the following dates in Alaska:

[[Page 53024]]


Region 1--Southeast Regional Council.......  Juneau.....................  September 27, 2004.
Region 2--Southcentral Regional Council....  Kenai......................  October 12, 2004.
Region 3--Kodiak/Aleutians Regional Council  King Cove..................  October 5, 2004.
Region 4--Bristol Bay Regional Council.....  Dillingham.................  September 27, 2004.
Region 5--Yukon-Kuskokwim Delta Regional     Bethel.....................  October 14, 2004.
Region 6--Western Interior Regional Council  Anvik......................  October 10, 2004.
Region 7--Seward Peninsula Regional Council  Nome.......................  September 22, 2004.
Region 8--Northwest Arctic Regional Council  Kotzebue...................  October 8, 2004.
Region 9--Eastern Interior Regional Council  Eagle......................  October 5, 2004.
Region 10--North Slope Regional Council....  Barrow.....................  September 8, 2004.

    Specific dates, times, and meeting locations will be published in 
local and statewide newspapers prior to the meetings. Locations and 
dates may change based on weather or local circumstances. The amount of 
work on each Regional Council's agenda will determine the length of the 
Regional Council meetings. The agenda of each Regional Council meeting 
will include a review of wildlife issues in the Region, discussion and 
development of recommendations on fishery proposals for the Region, and 
staff briefings on matters of interest to the Council.
    Electronic filing of comments (preferred method): You may submit 
electronic comments (proposals) and other data to Subsistence@fws.gov. 
Please submit as MS Word files, avoiding the use of any special 
characters and any form of encryption.
    During November 2004, we will compile the written proposals to 
change Subpart D hunting and trapping regulations and customary and 
traditional use determinations in Subpart C and distribute them for 
additional public review. 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 January 5, 2005.
    A second series of Regional Council meetings will be held in 
February and March 2005, to assist the Regional Councils in developing 
recommendations to the Board. You may also present comments on 
published proposals to change hunting and trapping and customary and 
traditional use determination regulations to the Regional Councils at 
those winter meetings.
    The Board will discuss and evaluate proposed changes to this rule 
during a public meeting scheduled to be held in Anchorage in May 2005. 
You may provide additional oral testimony on specific proposals before 
the Board at that time. At that public meeting, the Board will then 
deliberate and take final action on proposals received that request 
changes to this proposed rule.

    Please Note: The Board will not consider proposals for changes 
relating to fish or shellfish regulations at this time. The Board 
will be calling for proposed changes to those regulations in January 

    The Board's review of your comments and wildlife proposals will be 
facilitated by you providing the following information: (a) Your name, 
address, and telephone number; (b) The section and/or paragraph of the 
proposed rule for which you are suggesting changes; (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 or ----.26, Subpart D, 
may be rejected. The Board may defer review and action on some 
proposals 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 hunting and trapping 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, 
    As a result of the McDowell decision, the Department of the 
Interior and the Department of Agriculture (Departments) assumed, on 
July 1, 1990, responsibility for implementation of Title VIII of ANILCA 
on public lands. On June 29, 1990, the Temporary Subsistence Management 
Regulations for Public Lands in Alaska were published in the Federal 
Register (55 FR 27114-27170). Consistent with Subparts A, B, and C of 
these regulations, as revised February 18, 2003 (68 FR 7703), the 
Departments established a Federal Subsistence Board to administer the 
Federal Subsistence Management Program. The Board's composition 
consists 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, USDA Forest Service. Through 
the Board, these agencies participate in the development of regulations 
for Subparts A and B and the annual Subpart C and D regulations.
    All Board members have reviewed this rule and agree with its 
substance. Because this rule relates to public lands managed by an 
agency or agencies in both the Departments of Agriculture and the 
Interior, identical text would be incorporated into 36 CFR part 242 and 
50 CFR part 100.

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 

[[Page 53025]]

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 May 2005.

Proposed Changes from 2004-2005 Seasons and Bag 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 2004-2005 Subparts C and D final rule published July 1, 2004 (69 FR 
40174), with the amendment correcting the definition of fur, serves as 
the foundation for the 2005-2006 Subparts C and D proposed rule. The 
regulations contained in this proposed rule would take effect on July 
1, 2005, 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; 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 at 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 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 and 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 will not likely restrict 
subsistence uses significantly.
    During the environmental assessment process for extending fisheries 
jurisdiction, 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 ANILCA 
Section 810(a) for any subsistence resources or uses.
    Paperwork Reduction Act: This proposed rule does not contain any 
information collections for which OMB approval is required under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Federal 
Agencies 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.
    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, 
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 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 Statewide.
    Regulatory Flexibility Act: The Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) requires preparation

[[Page 53026]]

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. 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 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 
    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.
    Government-to-Government Relations with Native American Tribal 
Governments: 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 substantial direct effects. The 
Bureau of Indian Affairs is a participating agency in this rulemaking.
    Energy Effects: 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 
    Drafting Information: Theodore Matuskowitz drafted these 
regulations under the guidance of Thomas H. Boyd, of the Office of 
Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife 
Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, 
Bureau of Land Management; Sandy Rabinowitch, Alaska Regional Office, 
National Park Service; Warren Eastland, Alaska Regional Office, Bureau 
of Indian Affairs; Greg Bos, Alaska Regional Office, U.S. Fish and 
Wildlife Service; and Steve Kessler, Alaska Regional Office, USDA-
Forest Service provided additional guidance.

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 2005-06 
regulatory year. The text of the amendments would be the same as the 
final rule for the 2004-05 regulatory year published in the Federal 
Register of 69 FR 40174, July 1, 2004.

    Dated: August 5, 2004.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: August 5, 2004.
Calvin H. Casipit,
Acting Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 04-19839 Filed 8-30-04; 8:45 am]