[Federal Register: May 1, 2006 (Volume 71, Number 83)]
[Proposed Rules]               
[Page 25528-25531]
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-AU70

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart A; Makhnati Island Area

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

ACTION: Proposed rule.


SUMMARY: This proposed rule would revise the jurisdiction of the 
Federal Subsistence Management Program by adding submerged lands and 
waters in the area of Makhnati Island, near Sitka, Alaska. This would 
then allow Federal subsistence users to harvest marine resources in 
this area under seasons, harvest limits, and methods specified in 
Federal Subsistence Management regulations.

DATES: We must receive your written public comments on this proposed 
rule no later than June 15, 2006.

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) 



    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 program to provide for rural 
Alaska residents a priority for the taking 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, 
priority, and participation specified in Sections 803, 804, and 805 of 
    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 priority in the State subsistence statute violated the 
Alaska Constitution. The Court's ruling in McDowell caused the State to 
delete the rural priority from the subsistence statute which therefore

[[Page 25529]]

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 
27114). Permanent regulations were jointly published on May 29, 1992 
(57 FR 22940), and have been amended since then.
    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 242.1-28 and 50 CFR 100.1-28, 
respectively. The regulations contain the following subparts: Subpart 
A, General Provisions; Subpart B, Program Structure; Subpart C, Board 
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), and December 27, 2005 (70 FR 76400), 
the Departments established a Federal Subsistence Board (Board) to 
administer the Federal Subsistence Management Program, as established 
by the Secretaries. 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 (BLM); 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 ``The public lands described in 
paragraphs (b) and (c) 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.'' In April 2005, the Board requested a 
review by the U.S. Department of the Interior's, Office of the 
Solicitor to determine whether a Federal interest presently exists in 
certain areas of southeastern Alaska. The specific areas were 
originally identified by the Sitka Tribe of Alaska and presented before 
the Southeast Alaska Subsistence Regional Advisory Council, who 
forwarded a request for review to the Board. In November 2005, the 
Office of the Solicitor responded that the Makhnati Island area 
withdrawal in Executive Order 8877 (August 29, 1941) was not rescinded 
until after statehood, so the submerged land did not transfer to the 
State of statehood. Since this submerged land is not included in any 
other withdrawal, reservation, or administrative setaside, the marine 
submerged lands, including any filled lands owned by the United States, 
are under the administration of the BLM. Accordingly, the Solicitor's 
Office indicated that this area should be included within the 
jurisdiction of the Federal Subsistence Management Program. See 70 FR 
76400 (December 27, 2005).
    The specific area encompasses approximately 610 acres of land and 
water adjacent to Japonski Island. Whiting Harbor and numerous small 
islands are included within the boundary of the withdrawal. The Board 
recommends the inclusion of this area in the Federal Subsistence 
Management Program. Therefore, we propose to amend the Federal 
Subsistence Management Regulations for Public Lands in Alaska to 
reflect Federal subsistence management jurisdiction in the area of 
Makhnati Island, near Sitka, Alaska.
    We propose to amend Section ----3(b), which includes those areas 
where marine waters are included, and where the regulations contained 
in 50 CFR 100 and 36 CFR 242 apply to both navigable and non-navigable 
waters. If additional marine submerged lands are determined in the 
future to be held by the United States, those additional lands would be 
the subject of future rulemakings.
    Because the Federal Subsistence Management Program relates to 
public lands managed by an agency or agencies in both the Departments 
of Agriculture and the Interior, we would propose to incorporate 
identical text into 36 CFR part 242 and 50 CFR part 100.W

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 in 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 

[[Page 25530]]

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 members.
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 rule.
68 FR 60957........................  October 14, 2004......  Final Rule............  Established Regional
                                                                                      Council membership goals.
70 FR 76400........................  December 27, 2005.....  Final Rule............  Revised jurisdiction in
                                                                                      marine waters and
                                                                                      clarified jurisdiction
                                                                                      relative to military

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

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 aggregate 
effect is an insignificant positive economic effect on

[[Page 25531]]

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 
the effects will not be significant.
    In general, the resources harvested under this rule will be 
consumed by the local harvester and do not result in a dollar benefit 
to the economy. However, we estimate that about 26.2 million pounds of 
fish (including about 9 million pounds of salmon) are harvested 
Statewide by the local subsistence users annually and, if based on a 
replacement value of $3.00 per pound, would equate to $78.6 million in 
food value Statewide.
    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 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 subsistence management authority over fish and wildlife 
resources on Federal lands unless their program is compliant with the 
requirements of that Title.
    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. The 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. Dennis Tol 
and Taylor Brelsford, Alaska State Office, Bureau of Land Management; 
Greg Bos, Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish 
and Wildlife Service; San Rabinowitch and Nancy Swanton, Alaska 
Regional Office, National Park Service; Warren Eastland, Pat 
Petrivelli, and Dr. Glenn Chen, Alaska Regional Office, Bureau of 
Indian Affairs; 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 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 amended by adding paragraph (b)(5) to read as follows:

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

* * * * *
    (b) * * *
    (5) Southeastern Alaska--Makhnati Island Area: Land and waters 
beginning at the southern point of Fruit Island, 57[deg]21'35'' north 
latitude, 135[deg]21'07'' west longitude as shown on United States 
Coast and Geodetic Survey Chart No. 8244, May 21, 1941; from the point 
of beginning, by metes and bounds; S. 58[deg] W., 2500 feet, to the 
southern point of Nepovorotni Rocks; S. 83[deg] W., 5600 feet, on a 
line passing through the southern point of a small island lying about 
150 feet south of Makhnati Island; N. 6[deg] W., 4200 feet, on a line 
passing through the western point of a small island lying about 150 
feet west of Makhnati Island, to the northwestern point of Signal 
Island; N. 24[deg] E., 3000 feet, to a point, 57[deg]03'15'' north 
latitude, 135[deg]23'07'' west longitude; East, 2900 feet, to a point 
in course No. 46 in meanders of U.S. Survey No. 1496, on west side of 
Japonski Island; Southeasterly, with the meanders of Japonski Island, 
U.S. Survey No. 1496 to angle point No. 35, on the Southwestern point 
of Japonski Island; S. 60[deg] E., 3300 feet, along the boundary line 
of Naval reservation described in Executive order No. 8216, July 25, 
1939, to the point beginning.
* * * * *

    Dated: March 22, 2006.
P. Lynn Scarlett,
Secretary of the Interior, Department of the Interior.
    Dated: April 4, 2006.
Dennis E. Bschor,
Regional Forester, USDA-Forest Service.
[FR Doc. 06-4012 Filed 4-28-06; 8:45 am]