[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Proposed Rules]
[Pages 8918-8924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4540]


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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-AI31


Subsistence Management Regulations for Public Lands in Alaska, 
Subpart D--Subsistence Taking of Fish, Customary Trade

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

ACTION: Proposed rule.

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[[Page 8919]]

SUMMARY: This proposed rule would revise regulations related to the 
customary trade of fish taken under Subsistence Management Regulations. 
The rulemaking is necessary because Title VIII of the Alaska National 
Interest Lands Conservation Act recognizes customary trade as a use of 
subsistence-taken resources. However, the current Federal regulations 
do not provide clear guidance as to what is or is not allowed in this 
regard. When final, this rulemaking would replace a portion of the 
existing regulations included in the ``Subsistence Management 
Regulations for Public Lands in Alaska, Subpart C and Subpart D-2002 
Subsistence Taking of Fish and Wildlife Resources,'' which expire on 
February 28, 2003.

DATES: The Federal Subsistence Board must receive your written public 
comments on this proposed rule no later than March 29, 2002. Federal 
Subsistence Regional Advisory Councils (Regional Councils) will hold 
public meetings to receive comments on this proposed rule from February 
20, 2002--March 21, 2002. See SUPPLEMENTARY INFORMATION for additional 
information on the public meetings.

ADDRESSES: You may be able to submit electronic comments and other data 
to [email protected]. See SUPPLEMENTARY INFORMATION for file formats 
and other information about electronic filing. You may submit written 
comments and proposals to the Office of Subsistence Management, 3601 C 
Street, Suite 1030, Anchorage, Alaska 99503. Public meetings will be 
held at various locations in Alaska. See SUPPLEMENTARY INFORMATION for 
additional information on locations of the public meetings.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Thomas H. Boyd, Office of 
Subsistence Management; (907) 786-3888. For questions specific to 
National Forest System lands, contact Ken Thompson, Regional 
Subsistence Program Manager, 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   Hoonah.........  March 12, 2002.
 Council.
Region 2--Southcentral         Anchorage......  March 5, 2002.
 Regional Council.
Region 3--Kodiak/Aleutians     Kodiak.........  March 18, 2002.
 Regional Council.
Region 4--Bristol Bay          Dillingham.....  February 28, 2002.
 Regional Council.
Region 5--Yukon-Kuskokwim      Tuntutuliak....  March 6, 2002.
 Delta Regional Council.
Region 6--Western Interior     McGrath........  March 19, 2002.
 Regional Council.
Region 7--Seward Peninsula     Nome...........  February 26, 2002.
 Regional Council.
Region 8--Northwest Arctic     Kotzebue.......  March 21, 2002.
 Regional Council.
Region 9--Eastern Interior     Circle Hot       February 25, 2002.
 Regional Council.              Springs.
Region 10--North Slope         Barrow.........  February 20, 2002.
 Regional Council.
 


    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: You may submit electronic comments 
and other data to [email protected]. Please check whether this option 
is available before filing. Electronic access to Department of the 
Interior and Fish and Wildlife Service employees and offices has 
recently been suspended by the courts and may not be reestablished in 
time for filing of comments on this proposed rule. If electronic filing 
of comments is possible, please submit your comments as either 
WordPerfect or MS Word files, avoiding the use of any special 
characters and any form of encryption.
    The Board will discuss and evaluate proposed changes to this rule 
during a public meeting scheduled to be held in Anchorage, May 14, 
2002. You may provide additional oral testimony before the Board at 
that time. The Board will then deliberate and may take final action on 
requested changes to this proposed rule at that public meeting.

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). On January 8, 1999, (64 FR 1276), the 
Departments published a final rule to extend jurisdiction to include 
waters in which there exists a Federal reserved water right. This 
amended rule became effective October 1, 1999, and conformed the 
Federal Subsistence Management Program to the Ninth Circuit's ruling in 
Alaska v. Babbitt. Consistent with Subparts A, B, and C of these 
regulations, as revised January 8, 1999, (64 FR 1276), 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 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

[[Page 8920]]

of Federal Subsistence Management Regulations (Subparts A, B C, and D).
    The Board has reviewed and approved the publication of this 
proposed rule. Because this rule relates to public lands managed by an 
agency or agencies in both the Departments of Agriculture and the 
Interior, identical text will be incorporated into 36 CFR part 242 and 
50 CFR part 100.

Applicability of Subparts A, B, and C

    Subparts A, B, and C (unless otherwise amended) of the Subsistence 
Management Regulations for Public Lands in Alaska, 50 CFR 100.1 to 
100.24 and 36 CFR 242.1 to 242.24, remain effective and apply to this 
rule. Therefore, all definitions located at 50 CFR 100.4 and 36 CFR 
242.4 will 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 (1999) and 50 CFR 100.11 (1999), and for the purposes 
identified therein, we divide Alaska 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 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 areas, cultures, interests, and resource 
users within each region.
    The Regional Councils have a substantial role in reviewing the 
proposed rule and making recommendations for the final rule. Moreover, 
the Council Chairs, or their designated representatives, will present 
their Council's recommendations at the Board meeting in May 2002.

Recognizing Customary Trade Practices

    Title VIII of ANILCA specifically identifies customary trade as a 
recognized part of subsistence uses. The term ``customary trade'' is 
defined in these regulations as ``* * * cash sale of fish and wildlife 
resources regulated in this part, not otherwise prohibited by Federal 
law or regulation, to support personal or family needs, and does not 
include trade which constitutes a significant commercial enterprise.'' 
The distinction between the terms ``customary trade'' and ``barter'' 
(which is also provided for in Title VIII) is that ``customary trade'' 
is the exchange of subsistence resources for cash, while ``barter'' is 
defined as the exchange of subsistence resources for something other 
than cash. While the exchange of subsistence resources as customary 
trade may involve fish, shellfish or wildlife resources, this proposed 
rule only covers the customary trade of fish resources.
    Prior to the expansion of the Federal program to include management 
on other waters on October 1, 1999, Federal Subsistence Board 
regulations applied only to subsistence fisheries in non-navigable 
waters. Those regulations contained the same definition for customary 
trade cited above, but also included the following regulatory language 
(in Sec. ______.26(c)(1)): ``No person may buy or sell fish, their 
parts, or their eggs which have been taken for subsistence uses, 
unless, prior to the sale, the prospective buyer or seller obtains a 
determination from the Federal Subsistence Board that the sale 
constitutes customary trade''. During the development of the 
regulations for the expanded fisheries program, it was recognized that 
the customary trade of fisheries resources was ongoing in many parts of 
Alaska, but was not provided for in the existing Federal regulation nor 
in existing State regulations (except for the sale of herring roe on 
kelp in southeast Alaska). Therefore the general prohibition in 
Sec. ______.26(c)(1) was replaced effective October 1, 1999, with the 
following language which generally permits customary trade:

    Sec. ______.26(c)(11) The limited exchange for cash of 
subsistence-harvested fish, their parts, or their eggs, legally 
taken under Federal subsistence management regulations to support 
personal and family needs is permitted as customary trade, so long 
as it does not constitute a significant commercial enterprise. The 
Board may recognize regional differences and define customary trade 
differently for separate regions of the State.
    (12) Individuals, businesses, or organizations may not purchase 
subsistence-taken fish, their parts, or their eggs for use in, or 
resale to, a significant commercial enterprise.
    (13) Individuals, businesses, or organizations may not receive 
through barter subsistence-taken fish, their parts or their eggs for 
use in, or resale to, a significant commercial enterprise.

    While detailed statistics are not available to show where customary 
trade transactions of fishery resources take place, we believe that the 
large majority of such transactions take place within rural villages or 
non-rural communities. Generally, the Federal subsistence regulations 
apply only within or adjacent to conservation system units and other 
Federal lands as described in Sec. ______.3 of the regulations. We 
believe, however, that Federal regulations governing customary trade of 
subsistence-taken resources (including the current regulations as well 
as the proposed regulations below) extend to any customary trade of 
legally-taken subsistence fish regardless of where the actual cash 
transaction takes place. However, State officials may disagree with 
that view.
    Current Federal regulations regarding customary trade need to be 
refined. Much of the current discord and uncertainty associated with 
customary trade relates to the term ``significant commercial 
enterprise'' which is not defined in the regulations. Additionally, 
there is a concern that by allowing customary trade without further 
regulatory clarification, a loophole is created for valuable 
subsistence resources to become a commodity on the commercial market 
for monetary gain by those who wish to take wrongful advantage of the 
system. Without a more specific definition of ``significant commercial 
enterprise'' or other regulatory modification, law enforcement 
personnel regard the current regulation unenforceable. Another concern 
expressed by the Regional Councils is the need for a regional approach 
to customary trade regulations to take into account differences among 
the Regions.
    Recognizing these concerns, the Board initiated an agreement with 
the Alaska Department of Fish and Game to assemble information on 
contemporary customary trade. In December 2000, the State submitted a 
report entitled ``Sharing, Distribution, and Exchange of Wildlife 
Resources, An Annotated Bibliography of Recent Sources'' documenting a 
wide range of continuing practices.
    In late 2000, the Board established a Customary Trade Task Force 
composed of representatives of the 10 Regional Councils, fishery 
biologists, enforcement personnel, anthropologists, and others. This 
Task Force was charged with developing draft regulatory language 
defining the intent of customary trade as identified in ANILCA Title 
VIII. They met several times during 2001, requested, received, and 
considered public comments, and eventually developed preliminary draft 
regulatory language. The Task Force identified three different types of 
customary trade, with specific recommendations for each type. In the 
first, trade between rural residents, the Task Force recommended that 
unlimited cash exchange be permitted.

[[Page 8921]]

For the second type, trade between rural residents and others (the term 
``others'' is defined as ``commercial entities other than fishery 
businesses or individuals other than rural residents''), the Task Force 
recommended that customary trade also be permitted but that a monetary 
cap be applied to the customary trade of salmon. The Task Force chose a 
cap of $1,000 per household member per year for salmon as a starting 
point for discussion and potential modification by each Council. For 
the third type, customary trade or barter to fisheries businesses, the 
Task Force recommended that this activity not be permitted. This draft 
was circulated for review by all ten Regional Councils, the 229 
Federally recognized tribes, and for general public review. The Task 
Force met one more time to consider all comments received and 
eventually developed draft language that was presented to the Board on 
December 12, 2001, as Option 1 of six options for Board consideration. 
It should be noted that the preliminary draft language that was 
provided to the Regional Councils, Tribal governments, and general 
public was modified during the final meeting of the Task Force and then 
further modified by the Board at its December 2001 meeting.
    The Board initiated tribal consultation with 229 Federally 
recognized tribes, using the preliminary draft language from the Task 
Force. In addition, Federal staff met with representatives of several 
villages, Tribal associations, and Regional Corporations. The 
consultation was conducted pursuant to the Department of the Interior, 
Alaska Policy on Government to Government Relations with the Alaska 
Native Tribes. Three tribal governments submitted comments. Two of the 
Tribal governments concurred with the proposed regulatory language; the 
comments from the third tribal government were not specific to 
customary trade.
    During the review of the draft Task Force recommendation by the 
Regional Councils, seven of the ten Councils made specific regional 
recommendations. Included as part of the Task Force draft language was 
a $1,000 cap per household member per year for the exchange of salmon 
for cash between rural residents and others. The Regional Council 
comments generally agreed with a monetary cap but also suggested 
regional needs and differences. Some Regional Councils thought the 
$1,000 cap too high; others thought it too low. Several Council members 
expressed concern about allowing sales of subsistence-taken salmon in 
areas experiencing subsistence shortages and limited fishing 
opportunities. In recent years, areas such as the Yukon and Kuskokwim 
Rivers have had poor salmon returns requiring managers to reduce 
subsistence fishing schedules and, in some instances, close subsistence 
fishing. Some Regional Councils also were concerned that the draft 
language restricted barter between rural residents and others. The 
specific recommendations of the Regional Councils are summarized below 
for each Fishery Management Area: (Note: In several cases, the 
boundaries of Fishery Management Areas do not coincide with Regional 
Council boundaries. For example, the Cook Inlet Fishery Management Area 
is divided approximately equally between the Southcentral and Bristol 
Bay Regional Advisory Council areas. For clarity, the recommendations 
listed below include only the recommendation of one Council for each 
Fishery Management Area.)

Kotzebue Area

    The total cash value per household member of salmon taken in the 
Kotzebue Area exchanged in customary trade to others should not exceed 
$1,000.00 annually.

Norton Sound-Port Clarence Area

    The total cash value of salmon taken in the Norton Sound-Port 
Clarence Area exchanged in customary trade by each household member to 
others should not be limited.

Yukon-Northern Area

    The total cash value per household member of salmon taken in the 
Yukon-Northern Area exchanged in customary trade to others should not 
exceed $1,000.00 annually.

Kuskokwim Area

    The total cash value per household member of salmon taken in the 
Kuskokwim Area exchanged in customary trade to others should not exceed 
$1,000.00 annually.

Bristol Bay Area

    The total cash value per household member of salmon taken in the 
Bristol Bay Area exchanged in customary trade to rural residents should 
not exceed $1,000.00 annually.
    The total cash value per household member of salmon taken in the 
Bristol Bay Area exchanged in customary trade to others should not 
exceed $400.00 annually.

Aleutian Islands Area

    The total cash value per household member of salmon taken in the 
Aleutian Islands Area exchanged in customary trade to others should not 
exceed $1,000.00 annually.

[The Regional Council also recommended: These regulations should expire 
in two years from the effective date of the regulations unless 
extended, superseded, modified, or revoked.]

Alaska Peninsula Area

    The total cash value per household member of salmon taken in the 
Alaska Peninsula Area exchanged in customary trade to others should not 
exceed $1,000.00 annually.

[The Regional Council also recommended: These regulations should expire 
in two years from the effective date of the regulations unless 
extended, superseded, modified, or revoked.]

Chignik Area

    The total cash value per household member of salmon taken in the 
Chignik Area exchanged in customary trade to rural residents should not 
exceed $1,000.00 annually.
    The total cash value per household member of salmon taken in the 
Chignik Area exchanged in customary trade to others should not exceed 
$400.00 annually.

Kodiak Area

    The total cash value per household member of salmon taken in the 
Kodiak Area exchanged in customary trade to others should not exceed 
$1,000.00 annually.

[The Regional Council also recommended: These regulations should expire 
in two years from the effective date of the regulations unless 
extended, superseded, modified, or revoked.]

Cook Inlet Area

    The total cash value per household member of salmon taken in the 
Cook Inlet Area exchanged in customary trade to others should not 
exceed $1,000.00 annually. At least 50% of all fish taken by a 
household under subsistence regulations should be kept for the 
household's consumption.

Prince William Sound Area

    The total cash value per household member of salmon taken in the 
Prince William Sound Area exchanged in customary trade to others should 
not exceed $1,000.00 annually. At least 50% of all fish taken by a 
household under subsistence regulations should be kept for the 
household's consumption.

[[Page 8922]]

Yakutat Area

    The total cash value of salmon taken in the Yakutat Area exchanged 
in customary trade by each household member to others should not be 
limited.

Southeastern Alaska Area

    The total cash value of salmon taken in the Southeastern Alaska 
Area exchanged in customary trade by each household member to others 
should not be limited.
    The Customary Trade Task Force received 17 written comments from 
the public, government agencies, private organizations, and individuals 
expressing concerns regarding the issue of customary trade generally 
and regarding the draft regulatory language in particular. There was 
general recognition that customary trade is integral to the subsistence 
way of life; however, some commentors said that subsistence should not 
include any cash transactions. Some commentors said that there is a 
need to authorize existing practices without creating new uses or 
expanding existing ones, while others stated that there is little or no 
need to regulate this practice. Some commentors expressed concern that 
an inappropriate cash limit would create a hardship for subsistence 
users. Some expressed concern that the practice of customary trade will 
have an impact on resources, and some felt that customary trade should 
not have the same priority as the use of fish for food. Other 
commentors object that the regulations do not address potential impacts 
on commercial fisheries. Some commentors expressed concern that setting 
a dollar amount would encourage unscrupulous behavior patterns or 
invite abuse resulting in significant cash sales to the detriment of 
the resource. Others believe that setting a cash limit would protect 
the resource. Concern was expressed that improperly processed fish 
present a health risk to the consumers. A related concern is that these 
proposed regulations may put many subsistence fishers in violation of 
State and Federal food laws. Many commentors felt that the Board's 
projected timeline for finalizing this proposed regulation is too 
brief, because it does not provide adequate time to determine necessary 
harvest amounts or to coordinate with State regulations, nor does it 
allow time to address all the issues the proposed regulation raises. 
Some later commentors stated during Board discussion that there should 
also be a prohibition on the sale of subsistence-taken fish to State-
licensed fishery businesses (not just a prohibition on the purchase by 
such businesses.)
    After the Council, tribal government, and public review, the Task 
Force met one more time to consider comments received during that 
review. In general there was concurrence with the Task Force 
recommendations for unlimited customary trade between rural residents 
and a prohibition against customary trade between rural residents and 
fisheries businesses. (Two exceptions to this concurrence were the 
Bristol Bay Regional Council recommendations for a $1,000 limit on 
customary trade between rural residents in the Bristol Bay and Chignik 
Areas.) Based on concerns expressed at this Task Force meeting about 
the enforceability of a monetary cap on the exchange between rural 
residents and others, the Task Force added a permitting requirement to 
this section.
    At its December 2001 meeting, the Board considered six options for 
a proposed rule regarding customary trade. They were:
    Option 1--Publish the proposed rule for public comment with the 
draft regulatory language, including a permitting requirement, as 
recommended by the Customary Trade Task Force. This includes: unlimited 
customary trade transactions between rural residents; a $1,000 limit 
for customary trade and barter of salmon, their parts, or their eggs 
between rural residents and others; a Federal customary trade and 
barter permit to implement this provision; and a prohibition of 
exchanges with fisheries businesses. The Task Force recommended 
establishment of a Federal permit as a necessary provision to monitor 
customary trade use patterns, as well as to accommodate agency 
enforcement needs.
    Option 2--Publish the proposed rule for public comment with the 
draft regulatory language, as recommended by the Customary Trade Task 
Force, except replace the permitting requirement with a recordkeeping 
requirement. Option 2 would be identical in regulatory language to 
Option 1, with the exception of language addressing the transactions 
between a rural resident and others. Instead of establishing a Federal 
customary trade and barter permit, Option 2 would track the exchanges 
and transactions between rural residents and others for salmon, their 
parts, or their eggs by implementing a recordkeeping requirement. Those 
exchanging fish for cash to others would be required to keep a record 
of these transactions and provide such records to law enforcement 
officers upon request.
    Option 3--Allow unlimited barter for transactions between rural 
residents and others. Option 3 would be a variation of either Option 1 
or Option 2, and arises from concerns that barter between a rural 
resident and others should not be limited. The Permitting Requirement 
under Option 1 and the Recordkeeping Requirement under Option 2 would 
impose limitations on barter involving salmon, their eggs, or their 
parts between a rural resident and others. Option 3 would remove the 
restriction on barter by deleting any reference to barter.
    Option 4--Provide for regional limitations for exchanges between 
rural residents and others. This option would include draft regulatory 
language as proposed by the Federal Subsistence Regional Advisory 
Councils during their fall 2001 meetings. In some instances, Regional 
Councils recommended modifying the restrictions on transactions between 
a rural resident and others for salmon, their parts, or their eggs on a 
regional basis, while in other instances Regional Councils recommended 
going forward with the $1,000 limit as recommended by the Task Force. 
Additionally, for the Bristol Bay and Chignik Areas, the Regional 
Council proposed to restrict the customary trade between rural 
residents. The regional language proposed by the Councils could be 
included with the regulatory language in Option 1, Option 2, Option 3 
or Option 5 (with modification).
    Option 5--Publish the proposed rule for public comment with the 
draft regulatory language, as recommended by the Customary Trade Task 
Force, except maintain the status quo for transactions between rural 
residents and others. Through the development and review of draft 
regulatory language for customary trade by the Task Force and the 
Regional Advisory Councils, there was general support and consensus for 
unlimited transactions between rural residents and the prohibition of 
transactions with fisheries businesses. Many of the concerns raised 
have been directed at the transactions between a rural resident and 
others. Option 5 would maintain the status quo for transactions between 
a rural resident and others, prohibit transactions with State-licensed 
fisheries businesses, and allow further discussions and analyses to 
occur before proposing further restrictions on the transactions between 
a rural resident and others in a proposed rule.
    Option 6--Defer publication of a proposed rule to provide more 
opportunity for informal comment. Option 6 would defer publication of 
draft regulatory language for customary trade of fish in a proposed 
rule.

[[Page 8923]]

Concerns were raised that significant changes and options (i.e. 
permitting requirement or recordkeeping requirement) were developed 
after the fall meetings of the Regional Advisory Councils and without 
their full input.
    After hearing the report of the Task Force, the six options, and 
comments from Regional Council Chairs, ADF&G, Alaska Department of 
Environmental Conservation, and other members of the public, the Board 
decided to implement Option 5 and to initiate a formal rulemaking 
process with this proposed rule.
    Because most customary trade among rural subsistence users occurs 
between local users and involves only small amounts of fish, the Board 
does not believe that this rule will create an incentive for additional 
harvest of the resources nor result in additional fish being sold in 
the commercial markets. Likewise, nothing in this proposed rule would 
displace, supersede, or preempt State or Federal food and health safety 
laws and regulations governing the processing, handling, or sale of 
fish.
    There is now the opportunity for further public comment and 
Regional Council input prior to implementation of a final rule. 
Additionally, since this rule would occur in subpart D of the Federal 
Subsistence Management Regulations, it would be subject to annual 
review and revision as needed or deemed appropriate. This rulemaking 
will provide a clear mechanism and focus for public comments, either 
directly to the Board in writing, or orally at their May 2002 meeting 
or to the Regional Councils during their February/March 2002 meetings. 
The Board invites comments on this proposed rule, the six options 
considered by the Board at their December 2001 meeting, and the 
regional recommendations provided by the Regional Councils. The Board 
will expand public awareness of this proposed rule and the opportunity 
to comment through targeted mailouts to interested parties, news 
releases, additional Tribal consultation, and by posting on the Office 
of Subsistence Management Web site at http://www.r7.fws.gov/asm/home.html. The Board's estimated schedule for this rulemaking is as 
follows:


 Regional Council meetings         Feb./Mar. 2002.
 including comment on this rule.
 Additional Tribal Consultation    Feb./Mar. 2002.
 on this rule.
 Public comment period ends on     Mar. 29, 2002.
 this rule.
 Federal Subsistence Board         May 2002.
 deliberation and action on this rule.
 Publication of a final rule.....  June 2002.
 Final Rule effective............  July 1, 2002.
 

Conformance with Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

    A Draft Environmental Impact Statement (DEIS) 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 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, the Secretary of 
the Interior, with the concurrence of the Secretary of Agriculture, 
through the U.S. Department of Agriculture-Forest Service, implemented 
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, amended January 
8, 1999, 64 FR 1276, and June 12, 2001 66 FR 31533) implemented 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. A Section 810 analysis was completed as part of the FEIS 
process. The final Section 810 analysis determination appeared in the 
April 6, 1992, ROD, which concluded that the Federal Subsistence 
Management Program may have some local impacts on subsistence uses, but 
the program is not likely to significantly restrict subsistence uses.

Paperwork Reduction Act

    These proposed amendments do not contain information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under the Paperwork Reduction Act of 1995. 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.

Other Requirements

    This rule was 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 economic impact 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 impact 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; 
however, 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, 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.
    In general, the resources traded under this rule will be consumed 
by local rural residents and do not result in a 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: this is actually much higher than the current commercial 
ex-vessel value for salmon.] and $ 0.58 per pound for other fish, would 
equate to

[[Page 8924]]

about $34 million in food value Statewide. We anticipate that only a 
very small portion of this harvest might be used in customary trade and 
most of that would remain in the local village or region.
    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. For this reason, 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 no cost is 
involved to any State or local entities or Tribal governments.
    These actions are not significant regulatory actions under 
Executive Order 12866, nor will they raise novel legal or policy 
issues.
    The Secretaries have determined that these regulations meet the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988 on 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.
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), 512 DM 2, and E.O. 13175, we have 
evaluated possible effects on Federally recognized Indian tribes and 
have determined that there are no significant adverse effects. During 
the development of this proposed rule, the Board initiated Tribal 
consultation with 229 Federally-recognized Tribes. All of the comments 
that were received were consistent with the Task Force's recommended 
language. The Board will continue with Tribal consultation during the 
comment period through directed mailings and special meetings with 
Tribal entities. 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 
energy 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; Rod 
Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Bob 
Gerhard, Alaska Regional Office, National Park Service; Ida Hildebrand, 
Alaska Regional Office, Bureau of Indian Affairs; and Ken Thompson, 
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 Title 36, part 242, and Title 50, part 100, of 
the Code of Federal Regulations, as set forth below.

PART--SUBSISTENCE MANAGEMENT REGULATIONS FOR 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.

Subpart D--Subsistence Taking of Fish and Wildlife

    2. In Subpart D of 36 CFR part 242 and 50 CFR part 100, 
Sec. ____.27(c)(11) through (13) are revised to read as follows:


Sec. ____.27  Subsistence taking of fish.

* * * * *
    (c) * * *
    (11) Transactions Between Rural Residents--The exchange between 
rural residents in customary trade of subsistence-harvested fish, their 
parts, or their eggs, legally taken under the regulations in this part, 
unprocessed or processed using customary and traditional methods, is 
permitted.
    (12) Transactions Between a Rural Resident and Others--Customary 
trade for fish, their parts, or their eggs, legally taken under the 
regulations in this part from a rural resident to commercial entities 
other than fisheries businesses or from a rural resident to individuals 
other than rural residents is permitted, as long as the customary trade 
does not constitute a significant commercial enterprise.
    (13) No Purchase By Fisheries Businesses--If you are required to be 
licensed as a fisheries business under Alaska Statute, AS 43.75.011, 
you may not purchase or receive for commercial purposes or barter or 
solicit to barter for, subsistence-taken fish, their parts, or their 
eggs.
* * * * *

    Dated: January 15, 2002.
Timothy R. Jennings,
Acting Chair, Federal Subsistence Board.
Calvin H. Casipit,
Acting Regional Forester, USDA-Forest Service.
[FR Doc. 02-4540 Filed 2-26-02; 8:45 am]
BILLING CODE 3410-11-P 4310-55-P