[Federal Register: August 14, 2006 (Volume 71, Number 156)]
[Proposed Rules]               
[Page 46423-46426]
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-AU15

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C and Subpart D--2007-2008 Subsistence Taking of Wildlife 
Regulations; 2007-2008 Subsistence Taking of Fish on the Kenai 
Peninsula Regulations

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 2007-2008 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--2006-2007 
Subsistence Taking of Fish and Wildlife Regulations,'' which expire on 
June 30, 2007. This rule would also amend the Customary and Traditional 
Use Determinations of the Federal Subsistence Board and the General 
Regulations on taking of wildlife. In addition, at the request of the 
Southcentral Subsistence Regional Advisory Council, the Federal 
Subsistence Board is accepting proposals to revise the regulations for 
fishing seasons, harvest limits, and methods related to taking of fish 
on the Kenai Peninsula for subsistence uses during the 2007-2008 
regulatory year.

DATES: The Federal Subsistence Board must receive your written public 
comments and proposals to change this proposed rule no later than 
October 20, 2006. Federal Subsistence Regional Advisory Councils 
(Regional Councils) will hold public meetings to receive proposals to 
change this proposed rule on several dates from September 7, 2006, 
through October 20, 2006. 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: Pete Probasco, Office of Subsistence 
Management; (907) 786-3888. For questions specific to National Forest 
System lands, contact Steve Kessler, (907) 786-3592.


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 
Alaska locations, on the following dates:

[[Page 46424]]

Region 1--Southeast Regional Council.....  Sitka.......................  October 10, 2006.
Region 2--Southcentral Regional Council..  Homer.......................  October 17, 2006.
Region 3--Kodiak/Aleutians Regional        Kodiak......................  September 21, 2006.
Region 4--Bristol Bay Regional Council...  Dillingham..................  October 2, 2006.
Region 5--Yukon-Kuskokwim Delta Regional   Bethel......................  October 5, 2006.
Region 6--Western Interior Regional        Ruby........................  October 11, 2006.
Region 7--Seward Peninsula Regional        Nome........................  October 5, 2006.
Region 8--Northwest Arctic Regional        Kotzebue....................  October 13, 2006.
Region 9--Eastern Interior Regional        Delta Junction..............  October 17, 2006.
Region 10--North Slope Regional Council..  Barrow......................  September 7, 2006.

    Specific 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 material 
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 is preferred: You may submit 
electronic comments (proposals) and other data to Subsistence@fws.gov. 
Please submit as Adobe Acrobat (PDF) or MS Word files, avoiding the use 
of any special characters and any form of encryption.
    During November 2006, we will compile the written proposals to 
change Subpart D hunting and trapping regulations and Subpart C 
customary and traditional use determinations and distribute them for 
additional public review in a 30-day public comment period. During the 
public comment period, which is presently scheduled to end on January 
5, 2007, we will accept written public comments on distributed 
    A second series of Regional Council meetings will be held in 
February and March 2007, 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, May 8-10, 
2007. 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, other than for the Kenai 
Peninsula, at this time. The Board will be calling for proposed 
changes to the fish and shellfish regulations in January 2007.

    The Board's review of your comments, fish proposals for the Kenai 
Peninsula only, and wildlife and will be facilitated by you providing 
the following information: (a) Your name, address, and telephone 
number; (b) The section and/or paragraph of this 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, ----.26, or ----.27, Subpart D, may 
be rejected. The Board may defer review and action on some proposals to 
allow time for local cooperative planning efforts, or to acquire 
additional needed information, or if workload exceeds work capacity of 
staff, Regional Councils, or the 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, 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 27114-27170). On January 8, 1999 (64 FR 1276), the 
Departments extended jurisdiction to include waters in which there 
exists a Federal reserved water right. This amended rule conformed the 
Federal Subsistence Management Program to the Ninth Circuit's ruling in 
Alaska v. Babbitt. 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 Subparts C and 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

[[Page 46425]]

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 
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 (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 2007.

Proposed Changes From 2006-2007 Wildlife Seasons and Harvest Limit 

    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 2006-2007 Subparts C and D final rule published June 30, 2006 (71 
FR 37642), serves as the foundation for this 2007-2008 Subparts C and D 
proposed rule. The regulations relating to wildlife contained in this 
proposed rule would take effect on July 1, 2007, unless elements are 
changed by subsequent Board action following the public review process 
outlined herein.

Proposed Changes to Kenai Peninsula Fishing Seasons and Harvest Limit 

    At its winter 2006 meeting, the Southcentral Regional Council 
requested that the Board either extend the proposal period for 
receiving fishery proposals for the Kenai Peninsula or reopen the 
proposal period concurrently with the fall 2006 wildlife proposal 
period. Over time, the Board has come to recognize and appreciate the 
unique nature of the circumstances associated with management of fish 
and wildlife resources on the Kenai Peninsula. These circumstances 
stem, in large part, from competing intensive use by local residents, 
other Alaskans, and nonresidents. The Board believes that the best 
option for resolving subsistence-related conflicts on the Kenai 
Peninsula is the establishment of a dedicated forum for all interested 
users of fish and wildlife to share their views and discuss their 
respective needs. In light of that, the Board has requested that the 
Secretary of the Interior authorize the establishment of a new 
subsistence regional advisory council to address subsistence uses of 
fish and wildlife on Federal public lands and waters on the Kenai 
Peninsula. Also, with the new customary and traditional use 
determinations that the Board adopted during its January 2006 meeting, 
it is appropriate to consider changes to the seasons, harvest limits, 
and methods of take by subsistence users for fish on the Kenai 
Peninsula for the 2007 fishing season. With this notice, the Board is 
providing a special opportunity for the public to propose changes to 
the 2006 fishing regulations for the Kenai Peninsula, published in the 
Federal Register on March 29, 2006 (71 FR 15569). The Board will make a 
concerted effort to have any adopted changes in place for the 2007 
fishing season on the Kenai Peninsula.

Conformance With Statutory and Regulatory Authorities

    National Environmental Policy Act: 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[dash]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 ADDRESSES. 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 Impact.
    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

[[Page 46426]]

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 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 
    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: Bill Knauer drafted these regulations under 
the guidance of Peter J. Probasco, of the Office of Subsistence 
Management, Alaska Regional Office, U.S. Fish and Wildlife Service, 
Anchorage, Alaska. Chuck Ardizzone, 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 part 242 and 50 CFR part 100 for the 
2007-08 regulatory year. The text of the amendments would be the same 
as the final rule for the 2006-07 wildlife regulatory year published in 
the Federal Register (71 FR 37642) June 30, 2006, and the final rule 
for the 2006-07 fishery regulatory year published in the Federal 
Register (71 FR 15569) March 29, 2006.

    Dated: July 18, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.

    Dated: July 20, 2006.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 06-6903 Filed 8-11-06; 8:45 am]