[Federal Register: August 24, 2006 (Volume 71, Number 164)]
[Rules and Regulations]               
[Page 49997-49999]
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: Final rule.


SUMMARY: This rule revises 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: This rule will be effective September 25, 2006.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, 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) 

ADDRESSES: You may obtain additional information by contacting the 
Office of Subsistence Management, 3601 C Street, Suite 1030, Anchorage, 
Alaska 99503.



    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, an action which 
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 
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

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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 

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 at 
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).

Public Review and Comment

    The Secretaries published a proposed rule (71 FR 25528) on May 1, 
2006, soliciting comments through June 15, 2006, on the proposed 
revision to jurisdiction in the Makhnati Island area. During a May 10, 
2006, teleconference, the Southeast Alaska Regional Advisory Council 
(Council) provided the public an opportunity to offer comments so that 
the Council could develop its recommendation to the Board. During the 
public comment period, the Secretaries (we) received four comments: one 
from a State entity, one from a Native organization, one from a private 
citizen, and one from a Regional Council. All concurred with the 
proposal to include the Makhnati Island area under jurisdiction of the 
Federal Subsistence Management Program, and none offered comments 
needing to be addressed herein.
    Therefore, we are amending the Federal Subsistence Management 
Regulations for Public Lands in Alaska to reflect Federal subsistence 
management jurisdiction in the area of Makhnati Island, near Sitka, 
    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. A map is available for this area. The purpose of 
this map is to provide to the subsistence user an overall graphic 
representation of the extent of the area. To view the map, go to the 
Office of Subsistence Management Web site at http://alaska.fws.gov/asm/home.html.
 If you do not have access to the Internet, you may contact 

the Office of Subsistence Management at the phone number or address 
and we will send the map to you.
    We are amending Sec.  --.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.

Required Determinations

Regulatory Planning and Review (E.O. 12866), Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), and Small Business Regulatory Enforcement 
Fairness Act (5 U.S.C. 804(2))

    An economic analysis is not necessary for this rule because this 
rule will not have an economic impact on any entities, large or small. 
This rule is not a significant rule under E.O. 12866 and, therefore, 
was not reviewed by the Office of Management and Budget.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act:
    (a) This rule will not ``'significantly or uniquely''' affect small 
governments. A Small Government Agency Plan is not required.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``'significant regulatory 
action''' under the Unfunded Mandates Reform Act.


    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required.


    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order.

Government-to-Government Relations

    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.

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 required.

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This rule does not contain any new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995. 
Federal Agencies may not conduct or sponsor,

[[Page 49999]]

and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    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. 
We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared for this rule. This rule does 
not constitute a major Federal action significantly affecting the 
quality of the human environment.

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 
    William 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. 
Dennis Tol and Chuck Ardizzone, Alaska State Office, Bureau of Land 
Management; Greg Bos, Carl Jack, and Jerry Berg, Alaska Regional 
Office, U.S. Fish and Wildlife Service; Sandy Rabinowitch and Nancy 
Swanton, Alaska Regional Office, National Park Service; Dr. 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 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 
continues 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 is 
revised 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, 5[deg]02'35''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, 5[deg]03'15'' north 
latitude, 135[deg]23'07'' west longitude; East, 2900 feet, to a point 
in course No. 45 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: August 9, 2006.
Dirk Kempthorne,
Secretary of the Interior, Department of the Interior.

    Dated: August 15, 2006.
Dennis E. Bschor,
Regional Forester, USDA-Forest Service.
[FR Doc. 06-7119 Filed 8-23-06; 8:45 am]