[Federal Register: December 8, 2004 (Volume 69, Number 235)]
[Proposed Rules]               
[Page 70940-70944]
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-AT81

Subsistence Management Regulations for Public Lands in Alaska

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

ACTION: Proposed rule.


SUMMARY: This proposed rule would revise and clarify the jurisdiction 
of the Federal Subsistence Management Program in coastal areas in 
southwestern Alaska. This rulemaking is necessary in order to exclude 
numerous saltwater embayments within National Wildlife Refuge 
boundaries that were not withdrawn prior to Statehood, were never 
intended to fall under the subsistence management jurisdiction, but 
have been unintentionally included within the Subsistence Management 
Program jurisdiction.

DATES: We must receive your written public comments on this proposed 
rule no later than January 24, 2005.

ADDRESSES: Please submit comments electronically to 
Subsistence@fws.gov. See SUPPLEMENTARY INFORMATION for file formats and 

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

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) 

SUPPLEMENTARY INFORMATION: 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 
    The Federal Subsistence Board will hold a public meeting in 
Anchorage, Alaska, within the comment period to receive comments on 
this proposed rule. Widespread notice will be made of this meeting in 
the Statewide newspapers and by general news release.


    In Title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that ``the situation 
in Alaska is unique in that, in most cases, no practical alternative 
means are available to replace the food supplies and other items 
gathered from fish and wildlife which supply rural residents dependent 
on subsistence uses * * *'' and that ``continuation of the opportunity 
for subsistence uses of resources on public and other lands in Alaska 
is threatened * * *'' As a result, Title VIII requires, among other 
things, that the Secretary of the Interior and the Secretary of 
Agriculture (Secretaries) implement a joint program to grant a 
preference for subsistence uses of fish and wildlife resources on 
public lands in Alaska, unless the State of Alaska enacts and 
implements laws of general applicability that are consistent with 
ANILCA and that provide for the subsistence definition, preference, and 
participation specified in Sections 803, 804, and 805 of ANILCA.
    The State implemented a program that the Department of the Interior 
previously found to be consistent with ANILCA. However, in December 
1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska 
that the rural preference in the State subsistence 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 Departments published the Temporary Subsistence Management 
Regulations for Public Lands in Alaska in the Federal Register (55 FR 
    As a result of this joint process between Interior and Agriculture, 
these regulations can be found in the Code of Federal Regulations (CFR) 
both in Title 36, ``Parks, Forests, and Public Property,'' and Title 
50, ``Wildlife and Fisheries,'' at 36 CFR 242.1-242.28 and 50 CFR 
100.1-100.28, respectively. The regulations contain subparts as 
follows: Subpart A, General Provisions; Subpart B, Program Structure; 
Subpart C, Board

[[Page 70941]]

Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.
    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 participated in the development of regulations for Subparts A, 
B, and C, and the annual Subpart D regulations.

Jurisdictional Perspective

    Federal Subsistence Management Regulations (50 CFR 100.3 and 36 CFR 
242.3) currently specify that they apply on ``all navigable and non-
navigable waters within the exterior boundaries...'' of the parks, 
refuges, forests, conservation areas, recreation areas, and Wild and 
Scenic Rivers. This includes hundreds of thousands of acres of 
saltwater embayments within National Wildlife Refuge boundaries that 
were not withdrawn prior to Statehood where the Secretaries have 
unintentionally exerted jurisdiction. We have concluded that our 
regulations (50 CFR 100.3 and 36 CFR 242.3) are in error as they relate 
to some bays associated with certain Refuges in Western Alaska. 
Therefore, we believe it is appropriate to correct the Federal 
Subsistence Management Regulations for Public Lands in Alaska to 
accurately reflect the intended jurisdiction in those areas.
    During the early interagency discussions relative to inclusion of 
fisheries management in the Federal Subsistence Management Program, 
there does not appear to have been any intention to specifically extend 
Federal jurisdiction to various embayments where there was no pre-
Statehood withdrawal of submerged lands and waters. The preambles of 
the Advance Notice of Proposed Rulemaking (61FR 15014, April 4, 1996) 
and the Proposed Rule (62 FR 66215, December 17, 1997) refer only to 
jurisdiction problems along rivers, not in marine areas.
    Prior to 1999, the Federal Subsistence Management Program clearly 
and specifically identified the waters under its jurisdiction in the 
1992 rule that set out the structure of the Federal Program (57 FR 
22940, May 29, 1992). The various embayments under discussion were not 
included in that 1992 rule. The Ninth Circuit Court decision in Alaska 
v. Babbitt, 72.3d 698 (1995) (the Katie John decision), expanded 
Federal subsistence management to those navigable waters where the 
Federal Government holds reserved water rights. As work began to 
identify these waters, discussion centered on the problem of 
``checkerboard jurisdiction'' as it occurred on rivers within 
Conservation System Units. Federal officials recognized that meaningful 
management of a subsistence priority could not be accomplished unless 
there was a more unified area of jurisdiction within Federal 
conservation system units and other Federal areas. As a result, wording 
was adopted that extended Federal jurisdiction over subsistence 
fisheries to ``all navigable and non-navigable waters within the 
exterior boundaries * * *'' This wording created some unforeseen 
    Additionally, ANILCA Section 103 is very specific that in coastal 
areas, boundaries for new additions to Federal reservations shall not 
extend seaward beyond the mean high-tide line unless the State concurs. 
The regulations published in compliance with that section delineating 
the National Wildlife Refuge boundaries (48 FR 7890, February 24, 1983) 
specify that Federal ownership does not extend below mean high tide 
except where the State may agree to that extension. Even though maps 
show hundreds of thousands of acres of marine waters (exclusive of pre-
Statehood withdrawals) within the exterior boundaries of refuges, the 
Fish and Wildlife Service has never attempted nor intended to exercise 
any jurisdiction within those areas. Reworded Federal Subsistence 
Management Regulations would bring consistency among these documents.
    A further point of conflict arises over the identification of the 
boundary of the Alaska Maritime National Wildlife Refuge (and, 
therefore, the waters within that boundary.) One interpretation of the 
Refuge maps and BLM Master Title Plats is that there is a landward 
boundary of the Alaska Maritime NWR identified and that the seaward 
boundary is located at the boundary of territorial waters. If this 
interpretation is correct, then the Federal Subsistence Management 
Program would have subsistence fisheries jurisdiction over most of the 
marine waters in the State of Alaska. This was clearly not the intent 
when including all waters within the exterior boundaries.
    Additionally, in the final Issue Paper and Recommendations of the 
Alaska [Katie John] Policy Group (attachment to Acting Regional 
Solicitor Dennis Hopewell's memorandum of June 15, 1995, as amended 
July 12, 1995), he stated that:

    Where a federal reservation with reserved water rights includes 
rivers or streams flowing into marine waters, reserved water rights 
will apply to all waters above the mouth of said rivers or streams, 
when the mouth is within the exterior boundaries of the federal 
reservation. The mouth is defined by a line drawn between the 
termini of the headlands on either bank of the river. * * *
    There are apparently no cases in which the federal government 
has asserted reservation of rights to marine waters under the 
Winters doctrine. * * *
    Extending the Winters doctrine assertion of reserved water 
rights to marine waters would be without precedent and would 
represent a considerable leap in reasoning. * * * Potential 
appropriation of such waters remains implausible to any degree that 
could substantially affect marine water quantity or levels at all 
but the most restricted of locations (such as some salt chucks).* * 
* [T]he rationale behind the federal reserved waters doctrine would 
not apply to these marine waters. From this standpoint, it would be 
difficult to establish a need to reserve water in marine waters in 
order to accomplish the purposes of a reservation, even such a 
reserve as the Alaska Maritime National Wildlife Refuge that 
specifically includes the ``adjacent seas.''

    He made the following recommendations:

    Where a federal reservation with reserved water rights includes 
rivers or streams flowing into marine waters, reserved water rights 
will be asserted to the mouths of those rivers or streams, where the 
mouths are within the exterior boundaries of the reservation.
    Reserved water rights will not be asserted in marine waters 
except to the extent that the United States has already taken the 
position that submerged lands underlying marine waters reserved to 
the United States at the time of Alaska statehood meet the ANILCA 
definition of public lands.

    In order to correct any misconceptions regarding Secretarial 
intent; to create consistency among Solicitor opinions, subsistence 
regulations, and boundary regulations; and to avoid unnecessary 
complications and public confusion, we are proposing the amendments 
contained herein. The proposed Sec.  ----.3(b) includes those areas 
(Alaska Maritime and Yukon Delta) where marine waters are included, and 
the regulations apply to both navigable and non-navigable waters. These 
are the refuge areas where pre-Statehood withdrawals exist. The 
proposed Sec.  ----.3(c) includes those areas where marine waters are 
not included, but the regulations still apply to both navigable

[[Page 70942]]

and non-navigable waters. The proposed Sec.  ----.3(d) includes those 
areas where the regulations apply only to non-navigable waters. These 
are the unassociated BLM lands that are not a part of a conservation 
system unit and have not been withdrawn from the public domain for 
specific purposes. Also, the addition of the text ``other than military 
lands'' is a clarification, inasmuch as the military lands have never 
been included in the Federal Subsistence Management Program because of 
national security and defense reasons and because they are not 
considered ``public'' lands.
    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.

Conformance With Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

    A Draft Environmental Impact Statement (DEIS) 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 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 comments 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, the 
Secretary of the Interior, with the concurrence of the Secretary of 
Agriculture, through the U.S. Department of Agriculture--Forest 
Service, implemented 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, published May 29, 1992, 
implemented the Federal Subsistence Management Program and included a 
framework for an annual cycle for subsistence hunting and fishing 
regulations. The following Federal Register documents pertain to this 

Federal Register Documents Pertaining to Subsistence Management Regulations for Public Lands in Alaska, Subparts
                                                     A and B
   Federal Register  citation       Date of  publication             Category                   Details
57 FR 22940                      May 29, 1992               Final Rule...............  ``Subsistence Management
                                                                                        Regulations for Public
                                                                                        Lands in Alaska; Final
                                                                                        Rule'' was published in
                                                                                        the Federal Register.
64 FR 1276                       January 8, 1999            Final Rule (amended).....  Amended to include
                                                                                        subsistence activities
                                                                                        occurring on inland
                                                                                        navigable waters in
                                                                                        which the United States
                                                                                        has a reserved water
                                                                                        right and to identify
                                                                                        specific Federal land
                                                                                        units where reserved
                                                                                        water rights exist.
                                                                                        Extended the Federal
                                                                                        Subsistence Board's
                                                                                        management to all
                                                                                        Federal lands selected
                                                                                        under the Alaska Native
                                                                                        Claims Settlement Act
                                                                                        and the Alaska Statehood
                                                                                        Act and situated within
                                                                                        the boundaries of a
                                                                                        Conservation System
                                                                                        Unit, National
                                                                                        Recreation Area,
                                                                                        National Conservation
                                                                                        Area, or any new
                                                                                        national forest or
                                                                                        forest addition, until
                                                                                        conveyed to the State of
                                                                                        Alaska or an Alaska
                                                                                        Native Corporation.
                                                                                        Specified and clarified
                                                                                        Secretaries' authority
                                                                                        to determine when
                                                                                        hunting, fishing, or
                                                                                        trapping activities
                                                                                        taking place in Alaska
                                                                                        off the public lands
                                                                                        interfere with the
                                                                                        subsistence priority.
66 FR 31533                      June 12, 2001              Interim Rule.............  Expanded the authority
                                                                                        that the Board may
                                                                                        delegate to agency field
                                                                                        officials and clarified
                                                                                        the procedures for
                                                                                        enacting emergency or
                                                                                        temporary restrictions,
                                                                                        closures, or openings.
67 FR 30559                      May 7, 2002                Final Rule...............  In response to comments
                                                                                        on an interim rule,
                                                                                        amended the operating
                                                                                        regulations. Also
                                                                                        corrected some
                                                                                        inadvertent errors and
                                                                                        oversights of previous
68 FR 7703                       February 18, 2003          Direct Final Rule........  This rule clarified how
                                                                                        old a person must be to
                                                                                        receive certain
                                                                                        subsistence use permits
                                                                                        and removed the
                                                                                        requirement that
                                                                                        Regional Councils must
                                                                                        have an odd number of
68 FR 23035                      April 30, 2003             Affirmation of Direct      Received no adverse
                                                             Final Rule.                comments on the direct
                                                                                        final rule (68 FR 7703).
                                                                                        Adopted direct final

    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 therefore, signed a Finding of No Significant Impact.

Compliance With Section 810 of ANILCA

    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. A Section 810 analysis was completed as part of the FEIS 
process. The final Section 810 analysis determination appeared in the 
April 6, 1992, ROD, which concluded that the Federal Subsistence 
Management Program may have some local impacts

[[Page 70943]]

on subsistence uses, but the program is not likely to significantly 
restrict subsistence uses.

Paperwork Reduction Act

    These rules contain no new information collection requirements 
subject to Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act of 1995. They apply to the use of public lands 
in Alaska. The information collection requirements described in the 
rule were approved by OMB under 44 U.S.C. 3501 and were assigned 
clearance number 1018-0075, which expires August 31, 2006. We will not 
conduct or sponsor, and you are not required to respond to, a 
collection of information request unless it displays a currently valid 
OMB control number.

Other Requirements

    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 number of businesses and the amount of trade 
that will result from this Federal-land related activity is unknown but 
expected to be insignificant.
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires preparation of regulatory 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 have determined 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.
    This rulemaking will impose no significant costs on small entities; 
the exact number of businesses and the amount of trade that will result 
from this Federal-land related activity is unknown. The number of small 
entities affected is unknown; however, the fact that the effects will 
be seasonal in nature and will, in most cases, not impact continuing 
preexisting uses of public lands indicates that the effects will not be 
    Title VIII of ANILCA requires the Secretaries to administer a 
subsistence preference 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 Service has determined and certifies 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 no cost is involved to any State or local 
entities or Tribal governments.
    The Service has determined that these final regulations meet the 
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive 
Order 12988 on 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 management authority over wildlife resources on Federal 
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), 512 DM 2, and E.O. 13175, 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.
    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; Greg Bos, 
Carl Jack, and Rod Simmons, Alaska Regional Office, U.S. Fish and 
Wildlife Service; Sandy Rabinowitch and Bob Gerhard, Alaska Regional 
Office, National Park Service; Warren Eastland and Dr. Glenn Chen, 
Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, 
Alaska Regional Office, 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 Secretaries propose to 
amend Title 36, part 242, and Title 50, part 100, of the Code of 
Federal Regulations, as set forth below.


    1. The authority citation for both 36 CFR part 242 and 50 CFR part 
100 would continue 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.

Subpart A--General Provisions

    2. In Subpart A of 36 CFR part 242 and 50 CFR part 100, Sec.  --
--.3 would be revised to read as follows:

Sec.  --------.3  Applicability and scope.

    (a) The regulations in this part implement the provisions of Title 
VIII of ANILCA relevant to the taking of fish and wildlife on public 
lands in the State of Alaska. The regulations in this part do not 
permit subsistence uses in Glacier Bay National Park, Kenai Fjords 
National Park, Katmai National Park, and that portion of Denali 
National Park established as Mt. McKinley National Park prior to 
passage of ANILCA, where subsistence taking and uses are prohibited. 
The regulations in this part do not supersede agency-specific 
    (b) The regulations contained in this part apply on all public 
lands, including all inland waters, both navigable and non-navigable, 
within and adjacent to the exterior boundaries of the following areas, 
and on the marine waters as identified in the following areas:
    (1) Alaska Maritime National Wildlife Refuge, including the:
    (i) Karluk Subunit: all of the submerged land and water of the 
Pacific Ocean (Shelikof Strait) extending 3,000 feet from the shoreline 
between a point on the spit at the meander corner common to Sections 35 
and 36 of Township 30 South, Range 33 West, and a point approximately 
1\1/4\ miles east of Rocky Point within Section 14 of

[[Page 70944]]

Township 29 South, Range 31 West, Seward Meridian as described in 
Public Land Order 128, dated June 19, 1943;
    (ii) Womens Bay Subunit: Womens Bay, Gibson Cove, portions of St. 
Paul Harbor and Chiniak Bay: all of the submerged land and water as 
described in Public Land Order 1182, dated July 7, 1955 (U.S. Survey 
    (iii) Afognak Island Subunit: all submerged lands and waters of the 
Pacific Ocean lying within 3 miles of the shoreline as described in 
Proclamation No. 39, dated December 24, 1892;
    (iv) Simeonof Subunit: all of the submerged land and water of 
Simeonof Island together with the adjacent waters of the Pacific Ocean 
extending 1 mile from the shore line as described in Public Land Order 
1749, dated October 30, 1958; and
    (v) Semidi Subunit: all of the submerged land and water of the 
Semidi Islands together with the adjacent waters of the Pacific Ocean 
lying between parallels 55E57'00''-56E15'00'' North Latitude and 
156E30'00''-157E00'00'' West Longitude as described in Executive Order 
5858, dated June 17, 1932;
    (2) Arctic National Wildlife Refuge, including those waters 
shoreward of the line of extreme low water starting in the vicinity of 
Monument 1 at the intersection of the International Boundary line 
between the State of Alaska and the Yukon Territory, Canada, and 
extending westerly, along the line of extreme low water across the 
entrances of lagoons such that all offshore bars, reefs and islands, 
and lagoons that separate them from the mainland to Brownlow Point, at 
approximately 70E10' North Latitude and 145E51' West Longitude;
    (3) National Petroleum Reserve in Alaska, including those waters 
shoreward of a line beginning at the western bank of the Colville River 
following the highest highwater mark westerly, extending across the 
entrances of small lagoons, including Pearl Bay, Wainwright Inlet, the 
Kuk River, Kugrua Bay and River, and other small bays and river 
estuaries, and following the ocean side of barrier islands and 
sandspits within three miles of shore and the ocean side of the Plover 
Islands, to the northwestern extremity of Icy Cape, at approximately 
70E21' North Latitude and 161E46' West Longitude; and
    (4) Yukon Delta National Wildlife Refuge, including Nunivak Island: 
the submerged land and water of Nunivak Island together with the 
adjacent waters of the Bering Sea extending, for Federal Subsistence 
Management purposes, 3 miles from the shoreline as described in 
Executive Order No. 5059, dated April 15, 1929.
    (c) The regulations contained in this part apply on all public 
lands, excluding marine waters, but including all inland waters, both 
navigable and non-navigable, within and adjacent to the exterior 
boundaries of the following areas:

(1) Alaska Peninsula National Wildlife Refuge;
(2) Aniakchak National Monument and Preserve;
(3) Becharof National Wildlife Refuge;
(4) Bering Land Bridge National Preserve;
(5) Cape Krusenstern National Monument;
(6) Chugach National Forest;
(7) Denali National Preserve and the 1980 additions to Denali National 
(8) Gates of the Arctic National Park and Preserve;
(9) Glacier Bay National Preserve;
(10) Innoko National Wildlife Refuge;
(11) Izembek National Wildlife Refuge;
(12) Kanuti National Wildlife Refuge;
(13) Katmai National Preserve;
(14) Kenai National Wildlife Refuge;
(15) Kobuk Valley National Park;
(16) Kodiak National Wildlife Refuge;
(17) Koyukuk National Wildlife Refuge;
(18) Lake Clark National Park and Preserve;
(19) Noatak National Preserve;
(20) Nowitna National Wildlife Refuge;
(21) Selawik National Wildlife Refuge;
(22) Steese National Conservation Area;
(23) Tetlin National Wildlife Refuge;
(24) Togiak National Wildlife Refuge;
(25) Tongass National Forest, including Admiralty Island National 
Monument and Misty Fjords National Monument;
(26) White Mountain National Recreation Area;
(27) Wrangell-St. Elias National Park and Preserve;
(28) Yukon-Charley Rivers National Preserve;
(29) Yukon Flats National Wildlife Refuge;
(30) All components of the Wild and Scenic River System located outside 
the boundaries of National Parks, National Preserves, or National 
Wildlife Refuges, including segments of the Alagnak River, Beaver 
Creek, Birch Creek, Delta River, Fortymile River, Gulkana River, and 
Unalakleet River.

    (d) The regulations contained in this part apply on all other 
public lands, other than military lands, including all non-navigable 
waters located on these lands.
    (e) The public lands described in paragraph (b) of this section 
remain subject to change through rulemaking pending a Department of the 
Interior review of title and jurisdictional issues regarding certain 
submerged lands beneath navigable waters in Alaska.
    3. In Subpart A of 36 CFR part 242 and 50 CFR part 100, Sec.  --
--.4c revise the definitions of ``Inland Waters'' and ``Marine Waters'' 
to read as follows:

Sec.  ----.4  Definitions.

* * * * *
    Inland Waters means, for the purposes of this part, those waters 
located landward of the mean high-tide line and the waters located 
upstream of the straight line drawn from headland to headland across 
the mouths of rivers, creeks, or streams. Inland waters include lakes, 
reservoirs, ponds, creeks, streams, rivers, and other fresh and 
brackish water bodies.
    Marine Waters means, those waters located seaward of the mean high-
tide line or, with regard to rivers, creeks, streams and other inland 
waters, seaward of a straight line drawn from headland to headland at 
the mouth of such waters.
* * * * *

    Dated: November 3, 2004.
Gale A. Norton,
Secretary of the Interior, Department of the Interior.

    Dated: November 22, 2004.
Dennis E. Bschor,
Regional Forester, USDA-Forest Service.
[FR Doc. 04-26789 Filed 12-7-04; 8:45 am]