[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15445]


[[Page Unknown]]

[Federal Register: June 27, 1994]


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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-AB43

 

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart D; Subsistence Taking of Fish and Wildlife Regulations; 
Extension

AGENCY: Forest Service, USDA; Fish and Wildlife Service, Interior.

ACTION: Interim rule.

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SUMMARY: This interim rule amends the Subsistence Management 
Regulations for Public Lands in Alaska implementing the subsistence 
priority for rural residents of Alaska under Title VIII of the Alaska 
National Interest Lands Conservation Act (ANILCA) of 1980 by extending 
the effective date of 50 CFR 100 and 36 CFR 242, Sec. ________.26 
(Subsistence taking of fish) and Sec. ________.27 (Subsistence taking 
of shellfish) (58 FR 31252-31295). This interim rule would extend the 
regulations now set to expire June 30, 1994. They would be extended 
until December 31, 1995, or until revoked or superseded, whichever 
comes earlier.

EFFECTIVE DATE: Effective June 30, 1994, this interim rule extends the 
expiration date of the Subsistence Management Regulations, 50 CFR 100 
and 36 CFR 242, Sec. ________.26 (Subsistence taking of fish) and 
Sec. ________.27 (Subsistence taking of shellfish) (58 FR 31252-31295) 
from June 30, 1994, until December 31, 1995.

FOR FURTHER INFORMATION CONTACT: Richard S. Pospahala, Office of 
Subsistence Management, U.S. Fish and Wildlife Service, 1011 E. Tudor 
Road, Anchorage, Alaska 99503; telephone (907) 786-3447. For questions 
specific to National Forest System lands, contact Norman Howse, 
Assistant Director, Subsistence, USDA--Forest Service, Alaska Region, 
P.O. Box 21628, Juneau, Alaska 99802; telephone (907) 586-8890.

SUPPLEMENTARY INFORMATION: 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 which are consistent with ANILCA, and which 
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, a Federal Subsistence Board (Board) was established 
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 Area Director, U.S. Bureau of Indian 
Affairs; and the Alaska Regional Forester, USDA Forest Service. Through 
the Board, these agencies have participated in development of 
regulations for Subparts A, B, and C, and the annual Subpart D 
regulations.
    On June 1, 1993, the 1993-1994 Seasons and Bag Limits for 
Subsistence Management Regulations for Public Lands in Alaska were 
published in the Federal Register (58 FR 31252-31295). Those 
regulations which include the sections on the taking of fish and 
shellfish expire June 30, 1994.
    On July 15, 1993, the Native American Rights Fund, on behalf of a 
number of individuals and organizations, submitted a petition to the 
Secretary of the Interior and the Secretary of Agriculture requesting 
that they include navigable waters within the definition of ``public 
lands'' as used in implementing Title VIII. This was a request for 
administrative relief. The Secretaries continue their evaluation of 
this petition.
    On March 30, 1994, the U.S. District Court for Alaska issued a 
decision in the consolidated Katie John, et al. v. the United States, 
et al. litigation. The court concluded that the Secretaries are 
entitled to manage fish and wildlife on public lands in Alaska for the 
purposes of providing the subsistence priority mandated in Title VIII 
of ANILCA. The court further concluded that, for the purposes of Title 
VIII, ``public lands'' includes all navigable waterways in Alaska. The 
court then issued a stay of the decision for 60 days to allow the 
filing of an appeal and ordered that the stay would remain in effect, 
pending an appellate decision, if one or more appeals were filed. 
Because the Federal government has successfully petitioned the Ninth 
Circuit Court of Appeals for permission to appeal from the district 
court's decision, the stay presently remains in effect.
    Because the petition for rulemaking is still under consideration by 
the Secretaries and because of the stayed court decision relative to 
actual Federal jurisdiction, the Board believes that issuing 
regulations immediately, assuming additional authority or revising 
existing regulations are not warranted and, in fact, appear to be 
inappropriate at this time. However, any comments or proposals received 
will be carefully considered and retained for use when the regulations 
are revised the next time. This interim rule effectively extends the 
existing regulations until December 31, 1995, or until the Secretaries 
direct the revision of the subsistence fish and shellfish regulations 
based on a revised area of jurisdiction, or until the court directs the 
preparation of regulations implementing its order.
    The Board finds that public notice and comment requirements under 
the Administrative Procedures Act (APA) for this extension are 
impracticable, unnecessary, and contrary to the public interest. A 
lapse in regulatory control after July 1 could seriously affect the 
continued viability of fish and shellfish populations, adversely impact 
future subsistence opportunities for rural Alaskans, and would 
generally fail to serve the overall public interest. Therefore, the 
Board finds that good cause pursuant to 5 U.S.C. 553(b)(B) to waive the 
public notice and comment procedures prior to publication of this 
extension.
    The Board also finds good cause for the existing rule to be 
extended until December 31, 1995, (or until they are revoked or 
superseded whichever comes earlier). This December 31 date is 
consistent with earlier Board discussions proposing to change the 
regulatory year for fisheries regulations to January 1 through December 
31 to avoid having changes occur during the middle of a fishing season. 
The Board therefore finds good cause under 5 U.S.C. 553(d)(3) to make 
this extension effective upon publication.

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 22940-22964) 
implements the Federal Subsistence Management Program and includes a 
framework for an annual cycle for subsistence hunting and fishing 
regulations.

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 appears 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.

Paperwork Reduction Act

    These rules contain information collection requirements subject to 
Office of Management and Budget (OMB) approval under 44 U.S.C. 3501-
3520. They apply to the use of public lands in Alaska. The information 
collection requirements described above are approved by the OMB under 
44 U.S.C. 3501 and have been assigned clearance number 1018-0075.
    Public reporting burden for this form is estimated to average .1382 
hours per response, including time for reviewing instructions, 
gathering and maintaining data, and completing and reviewing the form. 
Direct comments on the burden estimate or any other aspect of this form 
to: Information Collection Officer, U.S. Fish and Wildlife Service, 
1849 C Street, NW, MS 224 ARLSQ, Washington, D.C. 20240; and the Office 
of Management and Budget, Paperwork Reduction Project (1018-0075), 
Washington, D.C. 20503. Additional information collection requirements 
may be imposed if Local Advisory Committees subject to the Federal 
Advisory Committee Act are established under Subpart B. Such 
requirements will be submitted to OMB for approval prior to their 
implementation.

Economic Effects

    This rule is not subject to OMB review under Executive Order 12866.
    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 have determined 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.
    This rulemaking will impose no significant costs on small entities; 
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. The number of small entities affected is unknown; but, 
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.
    These regulations do not meet the threshold criteria of 
``Federalism Effects'' as set forth in Executive Order 12612. Title 
VIII of ANILCA requires the Secretaries to administer a subsistence 
preference on public lands. The scope of this program is limited by 
definition to certain public lands. Likewise, these regulations have no 
significant takings implication relating to any property rights as 
outlined by Executive Order 12630.

Drafting Information

    These regulations were drafted under the guidance of Richard S. 
Pospahala, of the Office of Subsistence Management, Alaska Regional 
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional 
guidance was provided by Thomas H. Boyd, Alaska State Office, Bureau of 
Land Management; John Hiscock, Alaska Regional Office, National Park 
Service; John Borbridge, Alaska Area Office, Bureau of Indian Affairs; 
and Norman Howse, USDA-Forest Service.

List of Subjects

36 CFR Part 242

    Administrative practice and procedure, Alaska, Fish, National 
forests, public Lands, Reporting and record keeping requirements, 
Wildlife.

50 CFR Part 100

    Administrative practice and procedure, Alaska, Fish, Public lands, 
Reporting and record keeping requirements, Subsistence, Wildlife.

Words of Issuance

    For the reasons set out in the preamble, Title 36, Part 242, and 
Title 50, Part 100, of the Code of Federal Regulations, are amended as 
set forth below.

PART ______--SUBSISTENCE MANAGEMENT REGULATIONS FOR FEDERAL PUBLIC 
LANDS IN ALASKA

    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.

    2. Effective June 30, 1994, the expiration date for Sec. ______.26 
and Sec. ______.27 of Subpart D of 36 CFR Part 242 & 50 CFR Part 100 is 
extended until December 31, 1995.

    Dated: June 6, 1994.
Ronald B. McCoy,
Interim Chair, Federal Subsistence Board.

    Dated: June 9, 1994.
Philip J. Janik,
Regional Forester, USDA-Forest Service.
[FR Doc. 94-15445 Filed 6-24-94; 8:45 am]
BILLING CODE 3410-11-M 4310-55-M