[Federal Register: January 6, 2005 (Volume 70, Number 4)]
[Proposed Rules]
[Page 1216-1219]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja05-19]
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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-AU05
Subsistence Management Regulations for Public Lands in Alaska,
Subpart C and Subpart D: 2006-07 Subsistence Taking of Fish and
Shellfish 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 fishing
seasons, harvest limits, methods, and means related to taking of fish
and shellfish for subsistence uses during the 2006-07 regulatory year.
The rulemaking is necessary because subpart D is subject to an annual
public review cycle. When final, this rulemaking would replace the fish
and shellfish taking regulations included in the ``Subsistence
Management Regulations for Public Lands in Alaska, Subpart D: 2005-06
Subsistence Taking of Fish and Wildlife Regulations,'' which expire on
March 31, 2006. 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 fish and shellfish.
DATES: The Federal Subsistence Board must receive your written public
comments and proposals to change this proposed rule no later than March
25, 2005. Federal Subsistence Regional Advisory Councils (Regional
Councils) will hold public meetings to receive proposals to change this
proposed rule on dates ranging from February 21, 2005, through March
25, 2005. See SUPPLEMENTARY INFORMATION for additional information on
the public meetings.
ADDRESSES: Please 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
[[Page 1217]]
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) will hold meetings on this
proposed rule at the following locations in Alaska:
Region 1--Southeast Regional Council, Petersburg, February 21, 2005
Region 2--Southcentral Regional Council, Anchorage, March 15, 2005
Region 3--Kodiak/Aleutians Regional Council, Port Lions, March 21, 2005
Region 4--Bristol Bay Regional Council, Naknek, February 24, 2005
Region 5--Yukon-Kuskokwim Delta Regional Council, Toksook Bay, February
24, 2005
Region 6--Western Interior Regional Council, Allakaket, March 8, 2005
Region 7--Seward Peninsula Regional Council, Nome, February 23, 2005
Region 8--Northwest Arctic Regional Council, Kotzebue, March 9, 2005
Region 9--Eastern Interior Regional Council, Venetie, March 2, 2005
Region 10--North Slope Regional Council, Barrow, March 2, 2005
We will publish notice of specific dates, times, and meeting
locations in local and statewide newspapers prior to the meetings. We
may need to change locations and dates 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.
Electronic filing of comments (preferred method): Please submit
electronic comments (proposals) and other data to Subsistence@fws.gov.
Please submit as either WordPerfect or MS Word files, avoiding the use
of any special characters and any form of encryption.
During May 2005, we will compile and distribute for additional
public review the written proposals to change subpart D fishing
regulations and in subpart C the 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
presently scheduled to end on June 30, 2005.
We will hold a second series of Regional Council meetings in
September and October 2005, to assist the Regional Councils in
developing 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
meetings.
The Board will discuss and evaluate proposed changes to the
subsistence taking of fish and shellfish regulations during a public
meeting to be held in Anchorage in January 2006. You may provide
additional oral testimony on specific proposals before the Board at
that time. The Board will then deliberate and take final action on
proposals received that request changes to this proposed rule at that
public meeting.
Please Note.
The Board will not consider proposals for changes relating to
hunting or trapping regulations at this time. The Board will be
calling for proposed changes to those regulations in August 2005.
The Board's review of your comments and fish and shellfish
proposals will be facilitated by your providing the following
information: (a) Your name, address, and telephone number; (b) the
section and/or paragraph of the proposed rule for which your change is
being suggested; (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, -- .27, or -- .28, 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 fishing 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). Consistent with subparts A, B, and C of these
regulations, as revised October 14, 2004 (69 FR 60957), the Departments
established a Federal Subsistence Board to administer the Federal
Subsistence Management Program. 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; 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,
B, and C, and the annual subpart 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 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
[[Page 1218]]
Lands in Alaska, 50 CFR 100.1 to 100.23 and 36 CFR 242.1 to 242.23,
remain effective and apply to this proposed 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 January 2006.
Proposed Changes From 2005-06 Seasons and Harvest 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 2004-05 subparts C and D final rule, as modified by Federal
Subsistence Board actions during its January 11-13, 2005, public
meeting, serves as the foundation for the 2006-07 subparts C and D
proposed rule. Please see the 2004-05 subparts C and D final rule
published in the February 3, 2004 (69 FR 5018), issue of the Federal
Register. The modifications for 2005-06 made by the Board during its
January 2005 meeting may be viewed on the Office of Subsistence
Management Web site at http://www.alaska.fws.gov/asm/home.html. The
regulations contained in this proposed rule would take effect on April
1, 2006, 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, published
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 from 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 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, which 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 it does not appear that the
program may significantly restrict subsistence uses.
During the environmental assessment process, 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--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
August 31, 2006. 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.
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 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 they will not be significant.
[[Page 1219]]
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 24 million pounds of fish (including 8.3 million pounds
of salmon) are harvested by the local subsistence users annually and,
if given a dollar value of $3.00 per pound for salmon [Note: $3.00 per
pound is much higher than the current commercial value for salmon] and
$0.58 per pound for other fish, would equate to about $34 million in
food value Statewide.
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 economic 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.
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.
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.
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.
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.
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 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. 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: 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. Taylor Brelsford, Alaska State Office, Bureau of
Land Management; Bob Gerhard, Alaska Regional Office, National Park
Service; Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian
Affairs; Rod Simmons, Alaska Regional Office, U.S. Fish and Wildlife
Service; and Steve Kessler, 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 2006-07
regulatory year. The text of the amendments would be the same as the
final rule for the 2004-05 regulatory year (69 FR 5018) as modified by
Federal Subsistence Board actions January 11-13, 2005.
Dated: November 30, 2004.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
Dated: November 30, 2004.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
[FR Doc. 05-270 Filed 1-5-05; 8:45 am]
BILLING CODE 4310-55-P