[Federal Register: February 3, 2004 (Volume 69, Number 22)]
[Proposed Rules]               
[Page 5105-5108]
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-AT46

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C and Subpart D--2005-06 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 2005-06 regulatory year. 
The rulemaking is necessary because Subpart D is subject to an annual 
public review cycle. When final, this rulemaking would replace the fish 
and shellfish taking regulations included in the ``Subsistence 
Management Regulations for Public Lands in Alaska, Subpart DX--2004-05 
Subsistence Taking of Fish and Wildlife Regulations,'' which expire on 
March 31, 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 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 
26, 2004. Federal Subsistence Regional Advisory Councils (Regional 
Councils) will hold public meetings to receive proposals to change this 
proposed rule from February 23, 2004-March 26, 2004. See SUPPLEMENTARY 
INFORMATION for additional information on the public meetings.

ADDRESSES: Please 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) will hold meetings on this 
proposed rule at the following locations in Alaska:
Region 1--Southeast Regional Council, Sitka, March 17, 2004.
Region 2--Southcentral Regional Council, Anchorage, March 9, 2004.
Region 3--Kodiak/Aleutians Regional Council, Larson Bay, March 18, 
Region 4--Bristol Bay Regional Council, Naknek, February 26, 2004.
Region 5--Yukon-Kuskokwim Delta Regional Council, St. Mary's, March 3, 
Region 6--Western Interior Regional Council, Ruby, March 9, 2004.
Region 7--Seward Peninsula Regional Council, Nome, February 18, 2004.
Region 8--Northwest Arctic Regional Council, Kotzebue, February 24, 
Region 9--Eastern Interior Regional Council, Beaver, February 27, 2004.
Region 10--North Slope Regional Council, Barrow, March 3, 2004.
    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 Council's agenda 
will determine the length of the 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 WordPerfect or MS Word files, avoiding the use 
of any special characters and any form of encryption.
    During May 2004, we will compile and distribute for additional 
public review the written proposals to change Subpart D fishing 
regulations and in Subpart C the 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 

[[Page 5106]]

distributed proposals during the public comment period, which is 
presently scheduled to end on June 30, 2004.
    We will hold a second series of Regional Council meetings in 
September and October 2004, to assist the Regional Councils in 
developing 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 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, January 2005. 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.

    Note: The Board will not consider proposals for changes relating 
to hunting or trapping regulations at this time. The Board will be 
calling for proposed changes to those regulations in August 2004.

    The Board's review of your comments and fish and shellfish 
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 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 ----.24, Subpart 
C, and ----.24 ----.25, ----.27, or ----.28, 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 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 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 May 7, 2002 (67 FR 30559), 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 (2002) and 50 CFR 100.11 (2002), 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 2005.

Proposed Changes from 2004-05 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 2004-05 Subparts C and D final rule, without modification, serves 
as the foundation for the 2005-06 Subparts C and D proposed rule. 
Please see the final rule published in the Rules and Regulations 
section of this issue of the Federal Register. The amendments made to 
subparts C and D in that rule are the same as the amendments we are 
proposing in this rule. The regulations contained in this proposed rule 
would take effect on April 1, 2005, unless elements are changed by 
subsequent Board action following the public review process outlined 

[[Page 5107]]

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 by contacting 
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 Amay significantly restrict'' threshold for notice 
and hearings under 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 
August 31, 2006. 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 24 million pounds of fish (including 8.3 million pounds 
of salmon) are harvested by the local subsistence users annually and, 
if given a dollar value of $3.00 per pound for salmon [Note: $3.00 per 
pound is much higher than the current commercial value for salmon] and 
$0.58 per pound for other fish, would equate to about $34 million in 
food value Statewide.
    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

[[Page 5108]]

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 
    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--William Knauer 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; Bob Gerhard, Alaska Regional Office, National Park 
Service; Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian 
Affairs; Rod Simmons, 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 2005-06 
regulatory year. The text of the amendments would be the same as the 
final rule amendments for the 2004-05 regulatory year published 
elsewhere in this issue of the Federal Register.

    Dated: December 11, 2003.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.

    Dated: December 11, 2003.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 04-2098 Filed 2-2-04; 8:45 am]