[Federal Register Volume 65, Number 35 (Tuesday, February 22, 2000)]
[Proposed Rules]
[Pages 8673-8676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4271]


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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-AG03


Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C--Board Determinations

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule solicits public comment on a request by the 
Kenaitze Indian Tribe for the Federal Subsistence Board to declare the 
entire Kenai Peninsula rural for the purposes of the priority afforded 
by Title VIII of the Alaska Interest Lands Conservation Act. Although 
currently proposing no changes from the existing regulations, this 
proposed rule requests public review and comment to assist the Board in 
assessing the concerns of the Kenaitze Indian Tribe and the possible 
impacts of the Tribe's request and in reaching a decision.

DATES: The Federal Subsistence Board must receive your written comments 
no later than March 31, 2000. The Board will sponsor a public hearing 
to receive comments. See SUPPLEMENTARY INFORMATION for additional 
information.

ADDRESSES: You may submit written comments and proposals to the Office 
of Subsistence Management, 1011 E. Tudor Road, Anchorage, Alaska 99503.

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 Ken Thompson, Regional 
Subsistence Program Manager, USDA, Forest Service, Alaska Region, (907) 
271-2540.

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 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

[[Page 8674]]

regulations, the Departments established a Federal Subsistence Board 
(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 Area Director, U.S. Bureau of 
Indian Affairs; and the Alaska Regional Forester, USDA Forest Service.
    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 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. 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 v. 
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. As a result, we published a final rule (Subsistence 
Management Regulations for Public Lands in Alaska, Subparts A, B, C, 
and D, Redefinition To Include Waters Subject to Subsistence Priority, 
Final Rule, 64 FR 1276) on January 8, 1999, that conformed the Federal 
subsistence management regulations to the Ninth Circuit's ruling.
    Through the Board, these agencies have participated in development 
of regulations for Subparts A, B, and C, and the annual Subpart D 
regulations. 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.

History of the Rural/Nonrural Determinations for the Kenai 
Peninsula

    At its September 26, 1990, meeting, the Board made preliminary 
rural determinations, including nonrural findings for Sitka, Saxman, 
Kodiak, and some communities on the Kenai Peninsula. According to those 
proposed determinations, the rural communities on the Kenai Peninsula 
included Ninilchik, Seldovia, Port Graham, Nanwalek, Hope, and Cooper 
Landing. Proposed nonrural determinations for the Kenai Peninsula 
included the Kenai area, including Kenai, Soldotna, Sterling, Nikiski, 
Salamatof, Kalifonsky, Kasilof, and Clam Gulch; the Homer area, 
including Homer, Anchor Point, Kachemak City, and Fritz Creek; and the 
Seward area, including Seward and Moose Pass. These proposed 
determinations were published in the Federal Register on October 5, 
1990 (55 FR 40897). At its December 17, 1990, meeting, the Board 
finalized its rural determinations. After considering public testimony 
at the meeting, as well as public comments received at public hearings 
in response to the proposed determinations, the Board determined that 
Sitka, Saxman, and Kodiak were rural communities and made no changes on 
the Kenai Peninsula. The final rural determinations were published in 
the Federal Register on January 3, 1991 (56 FR 236).
    On February 14, 1991, Alaska Legal Services filed a Petition for 
Reconsideration on behalf of the Kenaitze Tribe, asking that the Board 
change its nonrural determination for the Kenai Peninsula. The Board 
denied the request and explained its action to the proponents in a 
letter dated May 7, 1991.
    In June 1995, eight public hearings were held on the Kenai 
Peninsula to gather testimony on the proposed customary and traditional 
use determinations for moose in Units 7 and 15. The determinations 
establish which rural residents of the Kenai Peninsula can hunt under 
Federal subsistence regulations. Although rural determinations were not 
the focus of those hearings, many of those who testified indicated 
their dissatisfaction with the current rural determinations previously 
established by the Board.
    In September 1995, the Southcentral Regional Council met in Anchor 
Point and, in response to the public testimony received that summer and 
at its meeting, developed a recommendation to the Board that the entire 
Kenai Peninsula be considered rural. Council members spoke to the 
divisiveness of the current rural determinations, problems with 
aggregating and separating communities using the current process, and 
the importance of fishing and hunting to residents of the Kenai 
Peninsula. A dissenting minority of Council members felt that not all 
the communities on the Kenai Peninsula could be characterized as rural. 
When the Board subsequently met to discuss the recommendation, the 
Board decided that the most appropriate course of action was for the 
Regional Council to hold public hearings on the Kenai Peninsula to 
allow for public comment on the proposal. However, at the next Regional 
Council meeting in February 1996, a motion to hold hearings failed, and 
no meetings were held.
    In January 1998, the Institute of Social and Economic Research 
(ISER) issued a report commissioned by the Native American Rights Fund 
on behalf of the Kenaitze Tribe, assessing the rural character of Kenai 
Peninsula areas determined by the Board to be nonrural. The ISER report 
compares the characteristics of Kenai Peninsula communities, especially 
Kenai, Soldotna, and Homer, with Kodiak, Sitka, and Saxman, communities 
determined by the Board to be rural. The report found that on measures 
of rural character such as population density, seasonal employment, and 
levels of harvest, the Kenai Peninsula is similar to one or more of the 
areas the Board designated as rural. Only on the indicators of 
employment growth and diversity, according to the report, did the Kenai 
Peninsula not exhibit characteristics comparable to communities 
classified as rural.
    At the March 1998 meeting of the Southcentral Regional Council, the 
Kenaitze Tribe requested that the entire Kenai Peninsula be made rural. 
The request asserted that special circumstances are present that 
warrant making this determination without waiting for the review of all 
rural determinations that is scheduled to occur following receipt of 
data from the 2000 census. The Board again suggested that the Regional 
Council hold public hearings on the Kenai Peninsula. The Regional 
Council voted to do so at its fall 1998 meeting. Public hearings were 
held in November 1998 in Seward, Homer, and Kenai. In March 1999, after 
hearing the report of the public hearings and further testimony from 
members of the Kenaitze Tribe and their attorneys, the Southcentral 
Regional Council again recommended that the Board approve the Kenaitze 
request to reconsider its 1990 nonrural determinations and declare the 
entire Kenai Peninsula rural in light of the special circumstances 
identified.
    At its May 1999 meeting, after hearing further public testimony, 
the Board decided to reconsider the Kenai Peninsula communities. This 
proposed rule requests public review and comment to assist the Board in 
assessing the concerns of the Kenaitze Indian Tribe and the possible 
impacts of the Tribe's request and in reaching a decision.
    The purpose of this proposed rule is to start the process leading 
to a Board

[[Page 8675]]

determination at its meeting in early May 2000.

Analysis Available

    As a result of the Kenaitze request, in May 1999, the Board 
directed staff to reevaluate the 1990 rural determinations for the 
Kenai Peninsula communities for a decision in May 2000. Copies of the 
analysis, ``Re-evaluation of 1990 Rural Determinations for Kenai 
Peninsula Communities'' are available upon request. Requests should be 
submitted to the Office of Subsistence Management, (907) 786-3888, or 
electronically to [email protected].

Hearing Locations and Comment Procedures

    The Board will hold a hearing on this proposed rule in Kenai, AK, 
on March 1, 2000.
    We will publish notice of the specific time and hearing location in 
local and statewide newspapers prior to the hearing. We may need to 
change the location and date based on weather or local circumstances. 
You may present comments on the proposal to change the rural/nonrural 
determinations on the Kenai Peninsula at the scheduled public hearing. 
We will accept written public comments on the proposal during the 
public comment period. Comments may also be submitted electronically to 
[email protected]. The Board will deliberate and take final action 
on the proposal at a public meeting to be held in Anchorage during May 
2000.

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, 
published May 29, 1992) implemented the Federal Subsistence Management 
Program and included a framework for an annual cycle for subsistence 
hunting and fishing regulations.
    We prepared an environmental assessment on the expansion of Federal 
jurisdiction over fisheries that is available by contacting the office 
listed underFor 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 signed a Finding of No Significant Impact. Accordingly, 
an amended final rule for Subsistence Management Regulations for Public 
Lands in Alaska (64 FR 1276, published January 8, 1999) expanded the 
Federal Subsistence Management Program and included 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. We completed Section 810 analyses as part of the FEIS and 
the environmental assessment processes. These analyses concluded that 
the Federal Subsistence Management Program, with an annual process for 
setting hunting and fishing regulations, may have some local impacts on 
subsistence uses but will not reach the ``may significantly restrict'' 
threshold for notice and hearings under ANILCA Section 810(a) for any 
subsistence uses.

Paperwork Reduction Act

    These rules in their entirety contain information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under the Paperwork Reduction Act of 1995. They apply to the use of 
public lands in Alaska. The information collection requirements 
described below were approved by OMB under 44 U.S.C. 3501 and were 
assigned clearance number 1018-0075, which expires 5/31/2000. The 
information requirements described below will be submitted to OMB for 
approval beyond that date. We will not conduct or sponsor, and you are 
not required to respond to, a collection of information request unless 
it displays a currently valid OMB control number.
    The collection of information under this proposed rule will be 
achieved through the use of a Federal Subsistence Hunt, Designated 
Hunter, or Fish/Shellfish Harvest/Designated Harvester application. 
This information will establish whether the applicant qualifies to 
participate in a Federal subsistence hunt or fishery on public land in 
Alaska and will provide a report of harvest and location of harvest.
    The likely respondents to this collection of information are rural 
Alaska residents who wish to participate in specific subsistence hunts 
or fisheries on Federal land. The collected information is necessary to 
determine harvest success and harvest location in order to make 
management decisions relative to the conservation of healthy fish, 
shellfish, or wildlife populations. The annual burden of reporting and 
recordkeeping is estimated to average 0.25 hours per response, 
including time for reviewing instructions, gathering and maintaining 
data, and completing and reviewing the form. The estimated number of 
likely respondents under this rule is less than 6,900, yielding a total 
annual reporting and recordkeeping burden of 1,725 hours or less.
    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, DC 20240; and the 
Office of Management and Budget, Paperwork Reduction Project 
(Subsistence), Washington, DC 20503. Additional information collection 
requirements may be imposed if Local Advisory Committees subject to the 
Federal Advisory Committee Act are established under Subpart B.

Other Requirements

    This rule was not subject to OMB review under Executive Order 
12866.

[[Page 8676]]

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand. Send a copy of any comments that 
concern how we could make this rule easier to understand to: USFWS, 
Office of Subsistence Management, Thomas H. Boyd, 1011 E. Tudor Road, 
Anchorage, Alaska 99503. You may also e-mail the comments to this 
address: [email protected].
    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, such as ammunition, snowmachine, fishing tackle, boat, 
motor, and gasoline dealers. 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 the effects will not be significant.
    In general, the resources harvested under rules contained in 36 CFR 
242 and 50 CFR 100 will be consumed by the local harvester and do not 
result in a dollar benefit to the economy. We estimate a harvest of 2 
million pounds of meat and 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 meat and 
salmon and $0.58 per pound for other fish, would equate to about $40 
million in food value statewide.
    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Act. This rule will not have an effect 
on the economy of $100 million or more; will not cause a major increase 
in costs or prices for consumers, individual industries, Federal, 
State, or local government agencies, or geographic regions; and will 
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 preference 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 Service has determined and certifies 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 no cost is involved to any State or local 
entities or tribal governments.
    The Service has determined that this rule meets the applicable 
standards provided in Sections 3(a) and 3(b)(2) of Executive Order 
12988.
    In accordance with Executive Order 13132, the rule does not have 
any federalism implications to warrant the preparation of a Federalism 
Assessment. Title VIII of ANILCA precludes the State from exercising 
management authority over fish or 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) 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.

Drafting Information

    This document was drafted by William Knauer under the guidance of 
Thomas H. Boyd of the Office of Subsistence Management, Alaska Regional 
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional 
guidance was provided by Curt Wilson, Alaska State Office, Bureau of 
Land Management; Sandy Rabinowitch, Alaska Regional Office, National 
Park Service; Ida Hildebrand, Alaska Area Office, Bureau of Indian 
Affairs; and Ken Thompson, USDA-Forest Service.

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.
    Accordingly, for the reasons set out in the preamble, the 
Departments propose to maintain the current regulations pertaining to 
rural determinations for the 2000 subsistence seasons and beyond found 
at Sec. ____.23(a) of title 36, part 242, and title 50, part 100, of 
the Code of Federal Regulations (CFR). Following a review of any 
comments received on this proposed rule and a meeting of the Federal 
Subsistence Board in May 2000, we will publish a final rule either 
maintaining the current regulations found in 36 CFR 242.23(a) and 50 
CFR 100.23(a) or amending those regulations to remove the Kenai 
Peninsula communities from the list of areas determined to be nonrural.

    Dated: February 2, 2000.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: February 2, 2000.
Kenneth E. Thompson,
Acting Regional Forester, USDA--Forest Service.
[FR Doc. 00-4271 Filed 2-17-00; 4:03 pm]
BILLING CODE 3410-11-P 4310-55-P