[Federal Register: April 17, 2008 (Volume 73, Number 75)]
[Proposed Rules]               
[Page 20887-20890]
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

[FWS-R7-EA-2007-0025; 70101-1335-0064L6]
RIN 1018-AV72

Subsistence Management Regulations for Public Lands in Alaska--
2009-2010 and 2010-2011 Subsistence Taking of Fish and Shellfish 

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

ACTION: Proposed rule.


SUMMARY: This proposed rule would establish regulations for fishing 
seasons, harvest limits, methods, and means related to taking of fish 
and shellfish for subsistence uses during the 2009-2010 and 2010-2011 
regulatory years. These regulations have been subject to an annual 
public review cycle, but starting in 2008 the Federal Subsistence 
Management Program will provide a public review process for subsistence 
hunting and trapping regulations in even-numbered years and subsistence 
fishing and shellfishing regulations in odd-numbered years. The Program 
will also address customary and traditional use determinations during 
the applicable biennial cycle. This cycle adjustment does not affect 
the public's ability to submit special action requests or requests for 
reconsideration, as outlined in the regulations. When final, the 
resulting rulemaking would replace the subsistence fish and shellfish 
taking regulations that will expire on March 31, 2009. This rule would 
also amend the customary and traditional use determinations of the 
Federal Subsistence Board and the general regulations on taking of fish 
and shellfish.

DATES: We will accept comments and proposals received or postmarked on 
or before June 30, 2008. Federal Subsistence Regional Advisory Councils 
(Regional Councils) will hold public meetings on this proposed rule 
between August 24, 2008, and October 25, 2008. See SUPPLEMENTARY 
INFORMATION for additional information on the public meetings.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV72; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Review Process 
section below for more information).

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) 



    Under title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and 
the Secretary of Agriculture (Secretaries) jointly implement the 
Federal Subsistence Management Program. This program grants a 
preference for subsistence uses of fish and wildlife resources on 
Federal public lands and waters in Alaska. The Secretaries first 
published regulations to carry out this program in the Federal Register 
on May 29, 1992 (57 FR 22940). The Program has subsequently amended 
these regulations several times. Because this program is a joint effort 
between Interior and Agriculture, these regulations are located in two 
titles of the Code of Federal Regulations (CFR): 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 subparts as follows: Subpart A, General

[[Page 20888]]

Provisions; Subpart B, Program Structure; Subpart C, Board 
Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Federal Subsistence Board

    Consistent with subparts A, B, and C of these regulations, the 
Departments established a Federal Subsistence Board to administer the 
Federal Subsistence Management Program. The Board's composition 
     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 
     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, U.S. Forest Service.
    Through the Board, these agencies participated in the development 
of regulations for subparts A, B, and C, which set forth the basic 
program, and they continue to work together on regularly revising the 
subpart D regulations, which, among other things, set forth specific 
harvest seasons and limits.

Federal Subsistence Regional Advisory Councils

    In administering the program, the Secretaries 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 

Public Review Process--Comments, Proposals, and Public Meetings

    The Regional Councils had a substantial role in reviewing this 
proposed rule and making recommendations for the final rule. The 
Federal Subsistence Board (Board), through the Regional Councils, held 
meetings on this proposed rule at the following Alaska locations, on 
the following dates:


Region 1--Southeast Regional  Sitka..........  February 26, 2008.
Region 2--Southcentral        Cordova........  March 12, 2008.
 Regional Council.
Region 3--Kodiak/Aleutians    Kodiak.........  March 25, 2008.
 Regional Council.
Region 4--Bristol Bay         Dillingham.....  March 24, 2008.
 Regional Council.
Region 5--Yukon-Kuskokwim     Lower Kalskag..  March 20, 2008.
 Delta Regional Council.
Region 6--Western Interior    Fairbanks......  February 28, 2008.
 Regional Council.
Region 7--Seward Peninsula    Nome...........  February 21, 2008.
 Regional Council.
Region 8--Northwest Arctic    Kotzebue.......  March 7, 2008.
 Regional Council.
Region 9--Eastern Interior    Tok............  March 17, 2008.
 Regional Council.
Region 10--North Slope        Barrow.........  March 4, 2008.
 Regional Council.

    We published notice of specific dates, times, and meeting locations 
in local and Statewide newspapers prior to the meetings. The amount of 
work on each Regional Council's agenda determined the length of each 
Regional Council meeting.
    During May 2008, we will compile and distribute for additional 
public review the written proposals to change subpart D fishing 
regulations and subpart C customary and traditional use determinations. 
A 30-day public comment period will follow distribution of the compiled 
proposal packet. We will accept written public comments on distributed 
proposals during the public comment period, which is currently 
scheduled to end on June 30, 2008.
    We will hold a second series of Regional Council meetings from 
August 24 through October 25, 2008, at which the Regional Councils will 
develop recommendations to the Board. You may also present comments on 
published proposals to change fishing and customary and traditional use 
determination regulations to the Regional Councils at those fall 
    The Board will discuss and evaluate the proposed changes to the 
subsistence management regulations during a public meeting scheduled to 
be held in Anchorage, Alaska, beginning on January 13, 2009. The 
Regional Council Chairs, or their designated representatives, will 
present their Council's recommendations at the Board meeting. 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.
    Proposals to the Board to modify fish and shellfish harvest 
regulations and customary and traditional use determinations must 
include the following information:
    (a) 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; and
    (e) Any additional information that you believe will help the Board 
in evaluating your proposal. The Board rejects proposals that fail to 
include the above information, or proposals that are beyond the scope 
of authorities in Sec.  --.24, subpart C (the regulations governing 
customary and traditional use determinations), and Sec. Sec.  --.25, 
--.27, and --.28, subpart D (the general and specific regulations 
governing the subsistence take of fish and shellfish). During the 
January 13, 2009 meeting, 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(s), 
staff members, and on the basis of least harm to the subsistence user 
and the resource involved. The Board may consider and act on 
alternatives that address the intent of a proposal while differing in 

Proposed Changes From the 2008-09 Fish and Shellfish Seasons and 
Harvest Limit Regulations

    Subpart D regulations are subject to periodic review and revision. 
Through 2007, the public review process was annual. Starting in 2008, 
the Federal Subsistence Management Program will address subsistence 
hunting and trapping regulations in even-numbered years and subsistence 
fishing and shellfishing regulations in odd-numbered years. The Board 
will also address customary and traditional use determinations during 
each applicable biennial cycle. This change in schedule

[[Page 20889]]

is necessary due to Federal budget priorities.
    The text of the 2008-09 subparts C and D final rule published March 
14, 2008 (73 FR 13761), serves as the foundation for this 2009-11 
subparts C and D proposed rule. The regulations relating to fish and 
shellfish contained in this proposed rule will take effect on April 1, 
2009, unless elements are changed by subsequent Board action following 
the public review process outlined above in this document.

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. The Final Environmental Impact Statement 
(FEIS) published on February 28, 1992. The Record of Decision (ROD) on 
Subsistence Management for Federal Public Lands in Alaska was signed 
April 6, 1992. The selected alternative in the FEIS (Alternative IV) 
defined the administrative framework of an annual regulatory cycle for 
subsistence regulations.
    An environmental assessment prepared in 1997 dealt with the 
expansion of Federal jurisdiction over fisheries and is available at 
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 does 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--We completed a section 810 
analysis under ANILCA 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 subsistence regulations, may have some local 
impacts on subsistence uses, but will not likely restrict subsistence 
uses significantly.
    During the environmental assessment process for extending fisheries 
jurisdiction, an evaluation of the effects of the January 8, 1999, rule 
(64 FR 1276) 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 
    Paperwork Reduction Act--The information collection requirements 
contained in this rule have been approved by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and assigned OMB control number 1018-0075, which expires 
October 31, 2009. We may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a current valid OMB control number.

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866. OMB bases its determination upon the following four 
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    (d) Whether the rule raises novel legal or policy issues.

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. 
This rule does not restrict any existing sport or commercial use of 
wildlife on public lands, and wildlife uses will continue at 
essentially the same levels as they currently occur. 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. 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.

Small Business Regulatory Enforcement Fairness 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 enterprises.

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 governments.

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.

[[Page 20890]]

Executive Order 13175

    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.

Executive Order 13211

    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. This rule is not a 
significant regulatory action under Executive Order 13211, affecting 
energy supply, distribution, or use, and no Statement of Energy Effects 
is required.
    Drafting Information--Theo Matuskowitz 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. Additional assistance was provided by:
     Charles Ardizzone, Alaska State Office, Bureau of Land 
     Sandy Rabinowitch and Nancy Swanton, Alaska Regional 
Office, National Park Service;
     Drs. Warren Eastland and Glenn Chen, Alaska Regional 
Office, Bureau of Indian Affairs;
     Jerry Berg and Carl Jack, Alaska Regional Office, U.S. 
Fish and Wildlife Service; and
     Steve Kessler, Alaska Regional Office, U.S. Forest 

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 
2009-11 regulatory years.

    Dated: March 17, 2008.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board, Assistant Regional Director, 
Office of Subsistence Management, U.S. Fish and Wildlife Service.

    Dated: March 17, 2008.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. E8-7841 Filed 4-16-08; 8:45 am]