[Federal Register Volume 61, Number 66 (Thursday, April 4, 1996)]
[Proposed Rules]
[Pages 15014-15018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8188]



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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-AD68


Subsistence Management Regulations for Public Lands in Alaska, 
Identification of Waters Subject to Subsistence Priority Regulation and 
Expansion of the Federal Subsistence Program and the Federal 
Subsistence Board's Authority

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

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Departments of Agriculture and the Interior give notice of 
their intention to amend the scope and applicability of the Federal 
subsistence program in Alaska to include subsistence activities 
occurring on inland navigable waters in which the United States has a 
reserved water right and to identify specific Federal land units where 
reserved water rights exist. The amendments being considered also would 
extend the Federal Subsistence Board's management to all Federal lands 
selected under the Alaska Native Claims Settlement Act or the Alaska 
Statehood Act and situated within the boundaries of a Conservation 
System Unit, National Recreation Area, National Conservation Area, or 
any new national forest or forest addition, until conveyed to the State 
of Alaska or an Alaska Native Corporation, as required by ANILCA. In 
addition, the rule amendments being considered would unambiguously 
delegate to the Federal Subsistence Board the authority to determine 
when hunting, fishing or trapping activities taking place in Alaska off 
the public lands interfere with the subsistence priority on the public 
lands to such an extent as to result in a failure to provide the 
subsistence priority and to take action to restrict or eliminate the 
interference. The Departments also are considering whether to provide 
the Federal Subsistence Board with authority to investigate and make 
recommendations to the Secretaries regarding the possible existence of 
additional Federal reservations, Federal reserved water rights or other 
Federal interests, including those which attach to lands in which the 
United States has less than fee ownership. The regulatory amendments 
being considered would conform the Federal subsistence management 
regulations to the court decree issued in State of Alaska v. Babbitt, 
72 F.3d 698 (9th Cir. 1995). This advance notice of proposed rulemaking 
also is in response to the Petitions for Rulemaking submitted by the 
Northwest Arctic Regional Council et al. on April 12, 1994, and the 
Mentasta Village Council, et al. on July 15, 1993.

DATES: Written public comment is invited and will be considered in the 
development of a proposed rule. Comments on this advance notice of 
proposed rulemaking and proposals for changes to the preliminary 
regulatory text must be received no later than June 14, 1996 to be 
considered.

ADDRESSES: Any comments concerning this notice, including sections 
regarding conformance with statutory and regulatory authorities and the 
preliminary regulatory text included with it may be sent to Mitch 
Demientieff, Chairman, Federal Subsistence Board, c/o Thomas H. Boyd, 
Office of Subsistence Management, U.S. Fish and Wildlife Service, 1011 
E. Tudor Road, Anchorage, Alaska, 99503.

FOR FURTHER INFORMATION CONTACT:
Thomas H. Boyd, Office of Subsistence Management, U.S. Fish and 
Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska, 99503; 
telephone (907) 786-3888. For questions specific to National Forest 
System lands, contact Ken Thompson, Assistant Director, Subsistence, 
Forest Service, Alaska Region, P.O. Box 21638, Juneau, Alaska 99802-
1628; telephone (907) 586-7921.

[[Page 15015]]


SUPPLEMENTARY INFORMATION: 

Background

    The Federal Subsistence Board assumed subsistence management 
responsibility for public lands in Alaska in 1990, after the Alaska 
Supreme Court ruled in McDowell v. State of Alaska, 785 P.2d 1 (Alaska 
1989), reh'g. denied (Alaska 1990), that the rural preference contained 
in the State's subsistence statute violated the Alaska Constitution. 
This ruling put the State's subsistence program out of compliance with 
Title VIII of the Alaska National Interest Lands Conservation Act 
(ANILCA) and resulted in the Secretaries assuming subsistence 
management on the public lands in Alaska. The ``Temporary Subsistence 
Management Regulations for Public Lands in Alaska, Final Temporary 
Rule'' was published in the Federal Register (55 FR 27114-27170) on 
June 29, 1990. The ``Subsistence Management Regulations for Public 
Lands in Alaska; Final Rule'' was published in the Federal Register (57 
FR 22940-22964) on May 29, 1992.
    In both cases, the rule ``generally excludes navigable waters'' 
from Federal subsistence management. 55 FR 27114, 27115 (1990); 57 FR 
22940, 22942 (1992). In a lawsuit consolidated with Alaska v. Babbitt, 
plaintiff Katie John challenged these rules, arguing that navigable 
waters are properly included within the definition of ``public lands'' 
set out in ANILCA. At oral argument before the United States District 
Court for Alaska, the United States took the position that Federal 
reserved water rights which encompass the subsistence purpose are 
public lands for purposes of ANILCA. The United States Court of Appeals 
for the Ninth Circuit subsequently held: ``[T]he definition of public 
lands includes those navigable waters in which the United States has an 
interest by virtue of the reserved water rights doctrine.'' Alaska 
versus Babbitt, 72 F.3d at 703-704. In the course of its decision, the 
Ninth Circuit also directed: ``[T]he federal agencies that administer 
the subsistence priority are responsible for identifying those 
waters.'' Id. at 704.
    The amendments being considered in this advance notice of proposed 
rulemaking would conform the Federal subsistence management regulations 
to the Ninth Circuit's ruling in Circuit's ruling in Alaska v. Babbitt. 
As the Ninth Circuit directed, this document identifies Federal land 
units in which reserved water rights exist. These are ``public lands'' 
under the Ninth Circuit's decision in Alaska v. Babbitt and thus are 
subject to the Federal subsistence priority in Title VIII of ANILCA. 
The preliminary regulatory text being considered here also provides the 
Federal Subsistence Board with clear authority to administer the 
subsistence priority in these waters.
    On July 15, 1993, the Mentasta Village Council, Native Village of 
Quinhagak, Native Village of Goodnews Bay, Alaska Federation of 
Natives, Alaska Inter-tribal Council, RurAL CAP, Katie John, Doris 
Charles, Louie Smith and Annie Cleveland filed a ``Petition for Rule-
Making by the Secretaries of Interior and Agriculture that Navigable 
Waters and Federal Reserved Waters are `Public Lands' Subject to Title 
VIII of ANILCA's Subsistence Priority.''
    On April 12, 1994, the Northwest Arctic Regional Council, Stevens 
Village Council, Kawerak, Inc., Copper River Native Assoc., Alaska 
Federation of Natives, Alaska Inter-tribal Council, RurAL CAP and 
Dinyee Corporation filed a ``Petition for Rule-Making by the 
Secretaries of Interior and Agriculture that Selected But Not Conveyed 
Lands Are To Be Treated as Public Lands for the Purposes of the 
Subsistence Priority in Title VIII of ANILCA and that Uses on Non-
Public Lands in Alaska May Be Restricted to Protect Subsistence Uses on 
Public Lands in Alaska.'' A Request for Comments on this Petition was 
published at 60 FR 6466 (1995). This advance notice of proposed 
rulemaking rule also responds to both these petitions for rulemaking.

Public Review and Comment

    Comments on this advance notice of proposed rulemaking and proposed 
changes to the preliminary regulatory text included with this notice 
may be submitted in writing to the address identified at the beginning 
of this rulemaking by June 14, 1996. Comments received by that date 
will be considered in the development of the proposed rule. In 
addition, the Departments will hold several public hearings in various 
locations in Alaska. The specific dates, times, and locations of the 
hearings will be announced subsequently.

Federal Subsistence Regional Advisory Councils

    Alaska has been divided into ten subsistence resource regions, each 
of which is represented by a Federal Subsistence Regional Advisory 
Council. The Regional Councils provide a forum for rural residents with 
personal knowledge of local conditions to have a meaningful role in the 
subsistence management of fish and wildlife on Alaska public lands. The 
Councils will have a substantial role in reviewing the proposed rule to 
be published subsequently and in making recommendations on the final 
rule.

Summary of Changes

    This advance notice of proposed rulemaking includes preliminary 
regulatory text on the proposed rule amendments being considered. This 
level of detail is provided to assist the reviewer in commenting on the 
proposals under consideration; the Secretaries may propose these or 
other amendments to the subsistence regulations in the proposed rule to 
follow this action.

Sec. ____.3  Applicability and scope.

    The amendments being considered in this advance notice of proposed 
rulemaking would expand the scope of the Federal subsistence program to 
include, in addition to the waters already included, all inland 
navigable waters within the exterior boundaries of the listed National 
Parks, Preserves, Wildlife Refuges, and other specified Federal land 
units managed by the Department of the Interior in Alaska. Within the 
exterior boundaries of the two national forests in Alaska, the 
subsistence program would apply to all inland navigable waters bordered 
by lands owned by the United States.
    The Department of the Interior agencies, to assure the effective 
stewardship of fish and wildlife, adequately protect subsistence uses, 
and prevent interference with the effective management of the Federal 
subsistence priority, have determined a need to apply the subsistence 
program to waters throughout the Federal land units listed in 
Sec. ____.3(b)(1) of the preliminary regulatory text which are managed 
by the Department, whether or not the United States is the littoral or 
riparian owner of any given reach. Land ownership patterns within these 
units are complex, most of the land has not been surveyed, and 
ownership is still changing as land selections are conveyed to the 
State of Alaska and Alaska Native Corporations. The Interior agencies 
believe that the substantial complications inherent in ``checkerboard'' 
subsistence management based upon land ownership bordering specific 
portions of water bodies within the exterior boundaries of the listed 
Federal land units necessarily would be detrimental to the resources 
for which the Department of the Interior is responsible.
    Within the exterior boundaries of the two national forests situated 
in Alaska which are listed in Sec. ____.3(b)(2) of the preliminary 
regulatory text, the Federal subsistence program will be extended

[[Page 15016]]
only to those inland waters bordered by lands owned by the United 
States. The Secretary of Agriculture has not identified reserved water 
rights, necessary for the purposes for which the two national forests 
were established, in reaches of water that are not bordered by 
federally owned national forest lands. Accordingly, extending the 
Federal subsistence program to these nonadjacent waters is not 
considered necessary to assure effective stewardship of fish and 
wildlife, adequately protect subsistence uses, prevent interference 
with the Federal subsistence management program, or avoid detriment 
otherwise to national forest resources. The majority of inland waters 
located within the exterior boundaries of the two forests and which are 
not bordered by national forest lands are contained within relatively 
large and easily identified tracts of land owned by Alaska Native 
Corporations or the State of Alaska or its municipalities. In addition, 
the Federal Subsistence Board would have authority under Sec. ____.10 
of the preliminary regulatory text to restrict where necessary serious 
interference with the subsistence priority from hunting, fishing, or 
trapping activities that take place in these nonadjacent waters.
    The existing regulations for the Federal subsistence management 
program specify that the program applies to all non-navigable waters 
located on the public lands and to waters specifically listed in 
Sec. ____.3(b) (1)-(11), which consist of certain pre-statehood 
reserves. In these areas the program extends to public lands and to 
waters over land owned by the United States. This includes certain 
marine waters within the boundaries of pre-Statehood reserves. This 
advance notice of proposed rulemaking would amend Sec. ____.3(b) to add 
to the Federal subsistence management program all inland navigable 
waters, as specified in Sec. ____.3(b) (1) and (2), within and adjacent 
to the boundaries of the specified Federal land units regardless of 
ownership of submerged lands. Pre-statehood reservation of marine 
waters listed in the present regulations at Sec. ____.3(b) (1)-(11) 
would continue to be included in the subsistence management program.

Sec. ____.4  Definitions

    The regulatory amendments being considered would change the 
definition of ``Federal lands'' to include navigable and non-navigable 
inland waters in which the United States has a reserved water right. 
This amendment would conform the Federal subsistence management program 
with the Ninth Circuit's ruling in Alaska v. Babbitt.
    This advance notice of proposed rulemaking also would amend the 
definition of ``Public Lands or public land'' to treat as public land 
certain Federal lands described in ANILCA Sec. 906(o)(2) which have 
been selected by the State of Alaska or an Alaska Native Corporation 
but not yet conveyed. This change would be proposed in response to the 
April 12, 1994, ``Petition for Rule-Making by the Secretaries of 
Interior and Agriculture that Selected But Not Conveyed Lands are To Be 
Treated as Public Lands for the Purposes of the Subsistence Priority in 
Title VIII of ANILCA and that Uses on Non-Public Lands in Alaska May be 
Restricted to Protect Subsistence Uses on Public Lands in Alaska,'' 
which was filed by the Northwest Arctic Regional Council, et al. After 
reviewing the matter, the Secretaries have concluded as a matter of law 
that certain selected but not conveyed lands are governed by the terms 
of ANILCA Sec. 906(o)(2), 43 U.S.C. Sec. 1616(o)(2), which provides 
that: ``Until conveyed, all Federal lands within the boundaries of a 
Conservation System Unit, National Recreation Area, National 
Conservation Area, new national forest or forest addition, shall be 
administered in accordance with the laws applicable to such unit.'' 
Accordingly, the Secretaries have determined that all Federal lands 
within the units specified in ANILCA Sec. 906(o)(2) will be 
administered as part of the unit to which they belong and will be 
subject to the administrative jurisdiction of the Federal Subsistence 
Board until conveyed from Federal ownership. The contemplated change 
relating to the definition of public lands contained in the preliminary 
regulatory text reflects the Secretaries' conclusions in this regard.
    This advance notice of proposed rulemaking also would add new 
definitions of ``reserved water rights'' and ``inland waters'' for 
clarity. The ``reserved water rights'' definition follows Supreme Court 
precedent, specifically Cappaert v. United States, 426 U.S. 128, 138 
(1976). The ``inland waters'' definition establishes two standards to 
determine whether a given water is inland or marine. A water that 
satisfies either (or both) of the two standards for inland waters would 
be considered inland for purposes of the Federal subsistence program 
under the preliminary regulatory text included here. If a water is 
located landward of the mean high tide line, the water is inland. 
Similarly, any water is inland if it is located upstream of the line 
drawn across the mouth of waters entering the sea. The definition also 
contains a nonexclusive list of the kinds of waters which are commonly 
found inland.

Sec. ____.10  Federal Subsistence Board

    This advance notice of proposed rulemaking would unambiguously 
delegate to the Federal Subsistence Board the authority to regulate 
hunting, fishing and trapping activities on non-public lands in Alaska 
which interfere with subsistence activities on the public lands to such 
an extent as to result in a failure to provide the subsistence 
priority. The Secretaries expect that the Board would exercise this 
authority sparingly. Prior to taking action in any such case, it is 
expected that the Board would consult with, and make a significant 
effort to resolve the conflict through cooperative action with, the 
State of Alaska, the appropriate Regional Council, and the National 
Marine Fisheries Service where appropriate. The Board's regulatory 
authority under this provision would be limited to the territorial 
limits of the State of Alaska and would not extend to offshore 
fisheries beyond the territorial waters of Alaska. All international 
treaty obligations of the United States with respect to fish and 
wildlife and their habitats also must be adhered to.
    This advance notice of proposed rulemaking would provide, in 
addition, the Federal Subsistence Board with authority to investigate 
whether in appropriate instances there exist additional Federal 
reservations of public lands, Federal reserved water rights or other 
Federal interests, including those in which the United States has a 
less than fee ownership interest, which should be included in the 
Federal subsistence management program, and to make recommendations to 
the Secretaries for the inclusion of those interests within the Federal 
subsistence management program. Such interests might include Federal 
lands not listed in Sec. ____.3(b) of the preliminary regulatory text, 
including military reserves and some or all of hundreds of remote 
parcels in Alaska.

Conformance With Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

    A Draft Environmental Impact Statement 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 of fish and wildlife; draft administrative

[[Page 15017]]
regulations also were included as an appendix. A Final Environmental 
Impact Statement for the Federal Subsistence Management Program was 
published on February 28, 1992. In accordance with that Impact 
Statement, the Subsistence Management Regulations for Public Lands in 
Alaska: Final Rule (57 FR 22940-22964), was published on May 29, 1992. 
This advance notice of proposed rulemaking considers amendments to the 
rule that was adopted as a result of that process.
    The scope of the existing Federal subsistence regulations already 
includes substantial areas of both navigable and non-navigable waters 
in Alaska; accordingly, the Federal Subsistence Board has adopted a 
comprehensive set of annual subsistence fishing regulations in Subpart 
D. This advance notice of proposed rulemaking identifies additional 
waters to which the Subpart D annual subsistence fishing regulations 
will apply, as required by the Ninth Circuit Court of Appeals in Alaska 
v. Babbitt, but would not amend those existing Subpart D regulations. 
In addition, in response to a Petition for Rulemaking, this advance 
notice of proposed rulemaking would expand the authority of the Federal 
Subsistence Board by unambiguously delegating to the Board the 
authority to exercise the power of the Secretaries to regulate hunting, 
fishing and trapping activities which occur on nonpublic lands and 
waters in Alaska when such activities interfere with the Federal 
subsistence priority to such an extent as to result in a failure to 
provide the subsistence priority. It would also apply the program to 
certain selected but not conveyed lands within specified Federal land 
units as required by Sec. 906(o)(2) of ANILCA.
    All or portions of this advance notice of proposed rulemaking may 
be appropriate for issuance as a final interpretive rule or be subject 
to a categorical exclusion from the National Environmental Policy Act 
(NEPA), 42 U.S.C. Sec. 4332(2)(C). Appropriate compliance with NEPA 
will be completed before a final rule is issued.
    It has been determined that this advance notice of proposed 
rulemaking has no environmental justice implications under Executive 
Order 12898. In the event it is determined that preparation of an 
environmental impact statement is necessary before a final rule can 
issue on part or all of this proposal, an assessment under Executive 
Order 12898 will be included in that statement.

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 a restriction is necessary to conserve healthy fish and wildlife 
populations. A Section 810 analysis was completed as part of the Final 
Environmental Impact Statement on the Federal Subsistence Management 
Program in 1992. It has been determined that this advance notice of 
proposed rulemaking will not significantly restrict subsistence uses on 
the public lands. In the event it is determined that it is necessary to 
prepare an environmental impact statement in connection with the 
proposed rule, an analysis of effects on subsistence as set forth in 
section 810 of ANILCA will be included in that statement.

Paperwork Reduction Act

    The Department of the Interior has already received clearance under 
the Paperwork Reduction Act for its existing regulations governing 
annual subsistence take. The information collection requirements of 
those rules have been approved by the Office of Management and Budget 
under 44 U.S.C. Sec. 3501 and have been assigned clearance number 1018-
0075. Should any additional clearances be required as a result of the 
expansion of the Federal Subsistence Board's jurisdiction described in 
this advance notice of proposed rulemaking, the Secretaries will obtain 
them before the rule imposing the information collection requirements 
become effective.

Executive Order 12866

    This advance notice of proposed rulemaking has been reviewed by the 
Office of Management and Budget under Executive Order 12866.

Economic Effects

    The Departments have determined that this advance notice of 
proposed rulemaking would not have a significant economic effect on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq. This advance 
notice of proposed rulemaking simply would identify waters which the 
Ninth Circuit Court of Appeals has determined are subject to Federal 
subsistence management, provide the Federal Subsistence Board with the 
authority to manage those waters, and consolidate in the Board other 
existing regulatory authority of the Secretaries. In the event that 
future regulations affect small entities, the Board would be required 
to conduct a Regulatory Flexibility Act analysis at that time. This 
Notice will impose no direct, indirect, non-quantifiable or enforcement 
costs on small entities; no changes in the demography of populations 
are anticipated; there will be no significant effect upon existing 
information collection and recordkeeping requirements; and no aggregate 
effects on small entities are anticipated. The aggregate effect would 
be an insignificant economic effect on a number of small entities. The 
number of small entities affected is unknown but the fact that the 
effects, if any, will be negligible indicates that they will not be 
significant within the meaning of the Regulatory Flexibility Act.

Federalism Assessment

    This advance notice of proposed rulemaking does not meet the 
threshold of ``Federalism Effects'' as set forth in Executive Order 
12612 and is consistent with the existing parameters of established 
Federal authority as set forth by the Federal courts.

Taking Assessment

    In accordance with Executive Order 12630, it has been determined 
that this advance notice of proposed rulemaking has no takings of 
private property implications.

Unfunded Mandates

    The Secretaries have determined and certify pursuant to the 
Unfunded Mandates Act, 2 U.S.C. 1502 et seq., that this advance notice 
of proposed rulemaking will not impose a cost of $100 million or more 
in any given year on local or State governments or private entities.

    Drafting Information.--The preliminary regulatory text included 
with this Notice was drafted by the Office of the Regional 
Solicitor, 4230 University Drive, Suite 300, Anchorage, AK, 99508-
4626, with assistance from the Office of the Solicitor, 1849 C 
Street, N.W., Washington, D.C., 20240.

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, Public lands, 
Reporting and recordkeeping requirements, Wildlife.
    The following preliminary regulatory text is provided to assist the 
reviewer in commenting on the changes under

[[Page 15018]]
consideration; the Secretaries may propose these or other amendments to 
the subsistence regulations in the proposed rule to follow this action.

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

    1. Subpart A of 36 CFR Part 242 and 50 CFR 100, Sec. ____.3 is 
proposed to be amended by replacing the existing Sec. ____.3(b) with 
the following language and deleting Sec. ____.3(c).


Sec. ____.3  Applicability and Scope.

    (b) The regulations contained in Subpart D apply:
    (1)(i) On all public lands including all waters located on these 
lands, on all navigable and nonnavigable waters within the exterior 
boundaries of the following units, and on inland waters adjacent to the 
exterior boundaries of the following units:
    (A) Alaska Maritime National Wildlife Refuge;
    (B) Alaska Peninsula National Wildlife Refuge;
    (C) Aniakchak National Monument and Preserve;
    (D) Arctic National Wildlife Refuge;
    (E) Becharof National Wildlife Refuge;
    (F) Bering Land Bridge National Preserve;
    (G) Cape Krusenstern National Monument;
    (H) Denali National Preserve and the 1980 additions to Denali 
National Park;
    (I) Gates of the Arctic National Park and Preserve;
    (J) Glacier Bay National Preserve;
    (K) Innoko National Wildlife Refuge;
    (L) Izembek National Wildlife Refuge;
    (M) Katmai National Preserve;
    (N) Kanuti National Wildlife Refuge;
    (O) Kenai National Wildlife Refuge;
    (P) Kobuk Valley National Park;
    (Q) Kodiak National Wildlife Refuge;
    (R) Koyukuk National Wildlife Refuge;
    (S) Lake Clark National Park and Preserve;
    (T) National Petroleum Reserve in Alaska;
    (U) Noatak National Preserve;
    (V) Nowitna National Wildlife Refuge;
    (W) Selawik National Wildlife Refuge;
    (X) Steese National Conservation Area;
    (Y) Tetlin National Wildlife Refuge;
    (Z) Togiak National Wildlife Refuge;
    (AA) White Mountain National Recreation Area;
    (BB) Wrangell-St. Elias National Park and Preserve;
    (CC) Yukon-Charley Rivers National Preserve;
    (DD) Yukon Delta National Wildlife Refuge;
    (EE) Yukon Flats National Wildlife Refuge;
    (FF) all components of the Wild and Scenic River System located 
outside of the boundaries of National Parks, National Preserves or 
National Wildlife Refuges, including segments of the Alagnak River, 
Beaver Creek, Birch Creek, Delta River, Fortymile River, Gulkana River 
and Unalakleet River.
    (ii) [Reserved]
    (2) The regulations contained in Subpart D apply on all public 
lands including all inland waters, located on or bordered by other 
public lands, within or adjacent to the exterior boundaries of the 
following reservations:
    (i) Chugach National Forest
    (ii) Tongass National Forest, including Admiralty Island National 
Monument and Misty Fjords National Monument.
    2. In Subpart A of 36 CFR part 242 and 50 CFR 100, Sec. __.4, the 
Definitions of ``Federal lands'' and ``Public lands or public land'' 
are proposed to be revised to read as follows:
    Federal lands means lands and waters and interests therein the 
title to which is in the United States, including navigable and non-
navigable waters in which the United States has reserved water rights.
    Public lands or public land means:
    (a) Lands situated in Alaska which are Federal lands, except--
    (1) Land selections of the State of Alaska which have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands which have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal law;
    (2) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act which have not been conveyed to a Native 
Corporation, unless any such selection is determined to be invalid or 
is relinquished; and
    (3) Lands referred to in section 19(b) of the Alaska Native Claims 
Settlement Act.
    (b) Notwithstanding the exceptions in paragraphs (a)(1), (2) and 
(3), of this section until conveyed, all Federal lands within the 
boundaries of a Conservation System Unit, National Recreation Area, 
National Conservation Area, new national forest or forest addition 
shall be treated as public lands for purposes of the regulations in 
this part pursuant to Sec. 906(o)(2) of ANILCA.
    3. In Subpart A of 36 CFR part 242 and 50 CFR 100, Sec. ____.4, new 
definitions of ``inland waters'' and ``reserved water rights'' are 
proposed to be added in alphabetical order as set forth below:
    Inland waters means, for purposes of the regulations in this part, 
those waters located landward of the mean high tide line or waters 
located upstream of the straight line drawn from headland to headland 
across the mouths of rivers or other waters as they flow into the sea. 
Inland waters include, but are not limited to, lakes, reservoirs, 
ponds, creeks, streams and rivers.
    Reserved water right(s) means the Federal right to use the 
unappropriated appurtenant water necessary to accomplish the purposes 
for which a Federal reservation was established. Reserved water rights 
include nonconsumptive and consumptive uses.
    4. Subpart B of 36 CFR part 242 and 50 CFR 100, Sec. ____.10 is 
proposed to be amended by adding the following 
Secs. ____.10(d)(4)(xviii) and ____.10(d)(4)(xix):


Sec. ____.10  Federal Subsistence Board

    (d)(4)(xviii) Determine when hunting, fishing or trapping 
activities which occur on lands or waters in Alaska other than public 
lands interfere with subsistence hunting, fishing or trapping on the 
public lands to such an extent as to result in a failure to provide the 
subsistence priority, and after appropriate consultation with the State 
of Alaska, the regional councils, and other Federal agencies, to 
restrict or eliminate said activities;
    (d)(4)(xix) Identify, in appropriate specific instances, whether 
there exist additional Federal reservations, Federal reserved water 
rights or other Federal interests in lands or waters, including those 
in which the United States holds less than a fee ownership, to which 
the Federal subsistence priority attaches and make appropriate 
recommendations to the Secretaries for inclusion of those interests 
within the Federal subsistence management program.

    Dated: March 29, 1996.
Phil Janik,
Regional Forester, USDA Forest Service.
    Dated: March 29, 1996.
Bruce Babbitt,
Secretary of the Interior.
[FR Doc. 96-8188 Filed 4-3-96; 8:45 am]
BILLING CODE 3410-11-M