[Federal Register: August 31, 2004 (Volume 69, Number 168)]
[Proposed Rules]
[Page 53023-53026]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au04-20]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 242
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 100
RIN 1018-AT70
Subsistence Management Regulations for Public Lands in Alaska,
Subpart C and Subpart D--2005-2006 Subsistence Taking of Wildlife
Regulations
AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
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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 2005-2006 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--2004-2005
Subsistence Taking of Fish and Wildlife Regulations,'' which expire on
June 30, 2005. This rule would also amend the Customary and Traditional
Use Determinations of the Federal Subsistence Board and the General
Regulations related to the taking of wildlife.
DATES: The Federal Subsistence Board must receive your written public
comments and proposals to change this proposed rule no later than
October 22, 2004. Federal Subsistence Regional Advisory Councils
(Regional Councils) will hold public meetings to receive proposals to
change this proposed rule on several dates starting from September 8,
2004-October 15, 2004. 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: 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)
786-3592.
SUPPLEMENTARY INFORMATION:
Public Review Process--Regulation Comments, Proposals, and Public
Meetings
The Federal Subsistence Board (Board), through the Regional
Councils, will hold meetings on this proposed rule at the following
locations and on the following dates in Alaska:
[[Page 53024]]
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Region 1--Southeast Regional Council....... Juneau..................... September 27, 2004.
Region 2--Southcentral Regional Council.... Kenai...................... October 12, 2004.
Region 3--Kodiak/Aleutians Regional Council King Cove.................. October 5, 2004.
Region 4--Bristol Bay Regional Council..... Dillingham................. September 27, 2004.
Region 5--Yukon-Kuskokwim Delta Regional Bethel..................... October 14, 2004.
Council.
Region 6--Western Interior Regional Council Anvik...................... October 10, 2004.
Region 7--Seward Peninsula Regional Council Nome....................... September 22, 2004.
Region 8--Northwest Arctic Regional Council Kotzebue................... October 8, 2004.
Region 9--Eastern Interior Regional Council Eagle...................... October 5, 2004.
Region 10--North Slope Regional Council.... Barrow..................... September 8, 2004.
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Specific dates, 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
work 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 (preferred method): You may submit
electronic comments (proposals) and other data to Subsistence@fws.gov.
Please submit as MS Word files, avoiding the use of any special
characters and any form of encryption.
During November 2004, we will compile the written proposals to
change Subpart D hunting and trapping regulations and customary and
traditional use determinations in Subpart C and distribute them for
additional public review. 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 presently scheduled to end on January 5, 2005.
A second series of Regional Council meetings will be held in
February and March 2005, 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 in May 2005.
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 at this time. The Board
will be calling for proposed changes to those regulations in January
2005.
The Board's review of your comments and wildlife proposals will be
facilitated by you providing the following information: (a) Your name,
address, and telephone number; (b) The section and/or paragraph of the
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 or ----.26, Subpart D,
may be rejected. The Board may defer review and action on some
proposals if workload exceeds work capacity of staff, Regional
Councils, or 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.
Background
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). 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 Subpart C and D regulations.
All Board members have reviewed this rule and agree with its
substance. 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.
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.
[[Page 53025]]
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 2005.
Proposed Changes from 2004-2005 Seasons and Bag Limit Regulations
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 2004-2005 Subparts C and D final rule published July 1, 2004 (69 FR
40174), with the amendment correcting the definition of fur, serves as
the foundation for the 2005-2006 Subparts C and D proposed rule. The
regulations contained in this proposed rule would take effect on July
1, 2005, unless elements are changed by subsequent Board action
following the public review process outlined herein.
Conformance With Statutory and Regulatory Authorities
National Environmental Policy Act Compliance: 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-
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 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 has therefore signed a Finding of No Significant
Impact.
Compliance with 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 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
[[Page 53026]]
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 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.
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
required.
Drafting Information: Theodore Matuskowitz 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; 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,
Wildlife.
50 CFR Part 100
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
For the reasons set out in the preamble, the Federal Subsistence
Board proposes to amend 36 CFR 242 and 50 CFR 100 for the 2005-06
regulatory year. The text of the amendments would be the same as the
final rule for the 2004-05 regulatory year published in the Federal
Register of 69 FR 40174, July 1, 2004.
Dated: August 5, 2004.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
Dated: August 5, 2004.
Calvin H. Casipit,
Acting Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 04-19839 Filed 8-30-04; 8:45 am]