[Federal Register Volume 68, Number 81 (Monday, April 28, 2003)]
[Rules and Regulations]
[Pages 22308-22313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10106]


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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: Final rule.

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SUMMARY: This rule revises 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 existing Federal regulations do not 
provide clear guidance as to what is or is not allowed in this regard. 
This rulemaking replaces a portion of the existing regulations included 
in the ``Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C and Subpart D--2003 Subsistence Taking of Fish and Wildlife 
Resources,'' which expire on February 29, 2004.

DATES: This rule is effective May 28, 2003.

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:

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 of Federal 
Subsistence Management Regulations (Subparts A, B, C, and D).
    The Board has reviewed and approved the publication of this final 
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.

[[Page 22309]]

The Regional Council members represent varied geographical areas, 
cultures, interests, and resource users within each region.
    The Regional Councils had a substantial role in reviewing the 
proposed rule and making recommendations for the final rule. Moreover, 
the Council Chairs, or their designated representatives, presented 
their Council's recommendations at the Board meeting in January 2003.

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 the ``* * * exchange for cash 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 final 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 permitted 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 
nonrural 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 extend to any customary trade of legally 
taken subsistence fish regardless of where the actual cash transaction 
takes place.
    We realized that those Federal regulations regarding customary 
trade needed 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 was 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 advantage of the 
system. Without a more specific definition of ``significant commercial 
enterprise'' or other regulatory modification, law enforcement 
personnel regarded the regulation unenforceable. Another concern 
expressed by the Regional Councils was a potential 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 was seen as involving relatively 
small amounts of fish and cash, and generally occurring within or 
between neighboring villages. Since this form of trade is relatively 
self-limiting, the Task Force recommended that unlimited cash exchange 
be permitted. 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 10 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. The preliminary draft language that was provided to the 
Regional Councils, 229 Federally recognized Tribal governments, and the 
general public was modified during the final meeting of the Task Force 
and then further modified by the Board at its December 2001 meeting.
    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

[[Page 22310]]

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.
    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. 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 initiate a formal 
rulemaking process with a proposed rule, as follows:

    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. The proposed rule 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.

    To continue the rulemaking process, the Board published a proposed 
rule on February 27, 2002 (67 FR 8919). The Board invited comments on 
the 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 also expanded public awareness of the 
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://alaska.fws.gov/asm/home.html. The Board expected to deliberate 
and take final action on this rule in May 2002.
    In response to public requests, the Board members, at their May 
2002 meeting, deferred action on the proposed rule for customary trade 
until January 2003. They took this action for several reasons:
    [sbull] There were many public requests for a delay;
    [sbull] The June Board meeting occurred during the peak of the 
rural subsistence fishing season so many subsistence users were unable 
to provide comments; and
    [sbull] Any decision the Board made in June would not have been in 
effect until the 2003 fishing season.
    [sbull] Also, this additional time provided further opportunity for 
discussion and input from the public.
    In the meantime, the Board analyzed public comments and issued a 
summary of the comments in August 2002. This document was distributed 
to the public, tribal governments, 10 Federal Regional Advisory 
Councils, and other State and Federal agencies.
    As a result of the initial comment period, the extended comment 
period, and the opportunity to testify at the January 14, 2003, public 
meeting, the Board received 102 written comments, recommendations from 
the Regional Councils, and public testimony from 10 others.
    Comments were received from Federal and State agencies, Tribal 
organizations, sportsmen's associations, commercial fisheries business 
owners and organizations, and individuals. The comments generally fall 
into three categories:

--There should be no cash sale of subsistence-caught fish.
--There should be no regulations made by Federal or State governments 
that would limit customary trade.
--The final rule should be deferred.

    These categories are not mutually exclusive. Some commentors who 
clearly oppose the proposed rule offer modifications that might lessen 
the effects of the proposed regulations. Others who clearly oppose the 
proposed rule urge the Board to defer action. Many do not state any 
position on the proposed rule, but recommend deferral of any action to 
allow for further research on use patterns, to confer with elders, and 
to consult with Tribal governments.
    The suggested modifications to the proposed rule are as follows and 
may represent more than one commentor.
    Paragraph (11): With few exceptions, those who commented on 
paragraph (11) believe that there should be no restrictions on trade 
between rural residents. The following modifications were recommended:

--Modify to included the words ``* * * exchange for cash between rural 
residents.* * *''
--No cash transactions should be allowed.
--Modify to require at least 50 percent of subsistence-caught fish must 
be retained for personal and family consumption.

    We have revised the rule to include the words ``for cash'' to 
reflect the formal definition of customary trade. We did not modify the 
rule to require a certain amount of harvest be retained by the 
harvester. Because the exchange and use will be by rural residents, we 
felt this restriction was unnecessary and would require rather 
cumbersome record keeping.
    Paragraph (12): Of the proposed regulations, paragraph (12) 
elicited the most comment. The comments tended to be regional with a 
few that would apply statewide. The following

[[Page 22311]]

comments and modifications were offered:

--Customary trade should be restricted to transactions between rural 
residents only.
--Customary trade outside of the local area is unknown in Yup'ik 
culture and should not be allowed now.
--There should be no limit set for the Seward Peninsula region.
--Some tribal entities stated that their trade patterns did not and do 
not include cash transactions. Traditional harvest and trade should 
continue under traditional management without interference from Federal 
or State governments.
--Allow only the sale of unprocessed fish.
--If escapement goals will not be met in a given year, customary trade 
of those fish stocks should be limited or prohibited.
--The monetary limit in northern Alaska should be $3,000 to $5,000 
because of the higher cost of living.
--The monetary limit should be a range between $400 and $1,000 to be 
determined by region.
--Research should be conducted before setting a dollar limit on rural 
to urban customary trade.
--Eggs should not be sold at all.
--At least 50 percent of subsistence harvest of fish should be used for 
personal and family consumption.

    We considered all of these comments and developed revised wording. 
The revisions allow sale to the end user only and will allow further 
regulatory adjustment by region.
    Paragraph (13): This section was generally accepted. The following 
recommendations were offered:

--Modify to allow those who have commercial limited entry fishing 
permits to participate in subsistence trade and barter.
--Modify to exclude sales to those businesses that have filed the 
yearly ``Intent to Operate'' form with the State or those that operate 
retail sales establishments.
--Modify to read, ``No business or organization may purchase or barter 
for or solicit to barter for subsistence-taken fish, their parts, or 
their eggs.''

    We have modified the wording of this section from the proposed rule 
to better cover the potential sale to or purchase by a commercial 
business. We believe, as do the Regional Councils, that subsistence-
taken resources should not enter the commercial arena.
    General Comments: In addition to these comments and 
recommendations, almost all the written public comments expressed 
concerns about topics within and surrounding customary trade.
    Issue: These comments indicate that a significant number of the 
writers appear to have limited understanding of customary trade and the 
effects of the proposed regulation. Their comments imply that they 
believe the final rule will create a new practice and that subsistence 
hunting and fishing should only feed one's immediate family. These 
comments recommended the most restrictions or complete prohibition of 
customary trade.
    Response: Customary trade in exchange for cash is recognized in 
Title VIII of ANILCA. Therefore, we must provide that opportunity for 
subsistence users. This regulation provides that opportunity while 
still providing a regulatory framework to avoid abuses.
    Issue: Comments from those engaged in commercial fisheries and 
commercial sport fisheries expressed their fears that the proposed 
regulations will create a new commercial subsistence fishery that will 
substantially impact their businesses. They note that Alaska's fish 
stocks are already fully allocated and that the opportunity to generate 
cash from subsistence resources will result in additional harvest and 
pressure. They are concerned that the subsistence priority will 
reallocate fish to the detriment of established commercial and sport 
fisheries. They would either prohibit customary trade or would impose 
strict limits and reporting procedures.
    Response: 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.
    Issue: Other writers recommended that the Federal Subsistence Board 
initiate a public education process to help develop understanding and 
dispel current controversies. Some rural and Native comments centered 
on the tenet that subsistence is a right, not a privilege established 
by any non-Native government. They expressed concern that subsistence, 
as protected by ANILCA, may be diminished over time by the 
administrative fiat of bureaucrats. They are worried about the 
inevitable destructive impacts of the proposed regulations on 
centuries-old trade networks and, subsequently, on subsistence as a 
whole.
    Response: This concern is not of a regulatory nature. However, we 
have a Web site that provides information relative to the Federal 
Subsistence Management Program and information to others relative to 
subsistence uses and resources.
    Issue: There are those who are concerned about the inclusion of 
barter in these proposed regulations. They state that to include barter 
in any wording in this proposed rule sends a message that barter also 
needs to be controlled.
    Response: We have removed any reference to barter from this rule.
    Issue: Many writers expressed concern that the proposed rule has no 
permitting or recordkeeping requirement to make the regulation 
enforceable. They recommend accountability of harvests and sales to 
ensure evaluation for impacts to the resource and prevent increased 
harvests. Others recommend that the current recording of subsistence 
harvests done by ADF&G is sufficient.
    Response: We have restructured the rule so that permitting and 
recordkeeping are unnecessary. We believe that total subsistence salmon 
harvests, including the portions kept for direct consumption and the 
portions shared, bartered, or exchanged in customary trade, are 
currently relatively well reported through subsistence fishing 
calendars and permits in most parts of rural Alaska. Should a problem 
surface in future years, we will consider adding a permitting or 
recordkeeping requirement.
    Issue: There is also concern that public health safety standards 
must be assured by requiring that subsistence-caught fish sold to the 
public be processed under the State food handling and processing 
regulations.
    Response: 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. In our public 
booklet version of these rules, we have specifically stated that 
sellers must conform to applicable public health and safety standards 
and regulations.
    Issue: A majority of the letters, including those from State and 
Tribal agencies as well as from individuals, question the accelerated 
schedule the Board has set for addressing this matter and express 
varying degrees of uneasiness. Sufficient time has not been allowed to 
consider the effects the proposed regulations will have on individual 
lives, culture, or to develop collaborative management by Federal, 
State, and Tribal government agencies. More time is needed to conduct 
research to determine use patterns and needs and to consider the far-
reaching effects of the proposed regulations. It was noted that 
Congress took 10 years to enact

[[Page 22312]]

subsistence protection regulations after ANCSA, so taking quality time 
to address customary trade should be acceptable to the Board. These 
writers urge the Board to proceed with care and caution and recommend 
deferring action.
    Response: Recognizing some concerns relative to timing, we extended 
the comment period by nearly 7 months. The current regulations focus on 
protecting traditional practices of customary trade of subsistence-
harvested fish, while minimizing the potential for commercialization of 
subsistence fish. These regulations create a baseline upon which 
additional region-specific regulations can be added. Also, we note that 
this rule is subject to annual review and potential revision, should it 
be necessary.
    Regional Council Comments: In general, the Regional councils 
supported the unlimited exchange between rural residents and the 
prohibition on sale to or purchase by a business entity. Most Regional 
Council comments revolved around region-specific dollar limits on the 
sale of subsistence-taken resources to individuals other than rural 
residents. These dollar limits ranged from about $200 to $1,000. A few 
Regional Councils felt that there should be no limits or regulations.
    Response: Because of this large variance among regions and because 
this is the first year under these regulations, we believe it is 
appropriate at this time to have standard language that applies 
statewide. We have, however, included recognition of a potential future 
need to adjust the regulations on a regional basis.
    The Board discussed and evaluated proposed changes to this rule 
during a public meeting held in Anchorage, January 14, 2003. Following 
public testimony and after hearing Regional Council recommendations, 
the Board deliberated and took final action on requested changes to the 
proposed rule resulting in the final rule as set forth in this 
document.

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; June 12, 2001, 66 FR 31533; and May 7, 2002, 67 FR 
30559) implemented the Federal Subsistence Management Program and 
included a framework for an annual cycle for subsistence hunting and 
fishing regulations.
    An environmental assessment was prepared in 1997 on the expansion 
of Federal jurisdiction over fisheries and is available by contacting 
the office listed under FOR FURTHER INFORMATION CONTACT. The Secretary 
of the Interior with the concurrence of the Secretary of Agriculture 
determined that the expansion of Federal jurisdiction did not 
constitute a major Federal action, significantly affecting the human 
environment and has, therefore, signed a Finding of No Significant 
Impact.

Compliance With Section 810 of ANILCA

    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 is not significant under E.O. 12866. This rule will not 
have an annual economic effect of $100 million or more or adversely 
affect an economic sector, productivity, jobs, the environment, or 
other units of government. The rule will not create inconsistencies 
with other agencies' actions; materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients; or raise novel legal or policy issues.
    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

[[Page 22313]]

(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 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.
    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; Dr. Glenn Chen, 
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.

0
For the reasons set out in the preamble, the Federal Subsistence Board 
amends 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

0
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

0
2. In subpart D of 36 CFR part 242 and 50 CFR part 100, Sec.  
--.27(c)(11) through (13) is revised to read as follows:


Sec.  .--27  Subsistence taking of fish.

* * * * *
    (c) * * *
    (11) Transactions between rural residents. Rural residents may 
exchange in customary trade subsistence-harvested fish, their parts, or 
their eggs, legally taken under the regulations in this part, for cash 
from other rural residents. The Board may recognize regional 
differences and define customary trade differently for separate regions 
of the State.
    (12) Transactions between a rural resident and others. In customary 
trade, a rural resident may trade fish, their parts, or their eggs, 
legally taken under the regulations in this part, for cash from 
individuals other than rural residents if the individual who purchases 
the fish, their parts, or their eggs uses them for personal or family 
consumption. If you are not a rural resident, you may not sell fish, 
their parts, or their eggs taken under the regulations in this part. 
The Board may recognize regional differences and define customary trade 
differently for separate regions of the State.
    (13) No sale to, nor purchase by, fisheries businesses.
    (i) You may not sell fish, their parts, or their eggs taken under 
the regulations in this part to any individual, business, or 
organization required to be licensed as a fisheries business under 
Alaska Statute, AS 43.75.011 or to any other business as defined under 
Alaska Statute 43.70.110(1) as part of its business transactions.
    (ii) If you are required to be licensed as a fisheries business 
under Alaska Statute AS 43.75.011 or are a business as defined under 
Alaska Statute 43.70.110(1), you may not purchase, receive, or sell 
fish, their parts, or their eggs taken under the regulations in this 
part as part of your business transactions.
* * * * *

    Dated: March 24, 2003.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: March 25, 2003.
Kenneth E. Thompson,
Regional Subsistence Group Leader, USDA--Forest Service.
[FR Doc. 03-10106 Filed 4-25-03; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P