[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Rules and Regulations]
[Pages 25688-25698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2205]


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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-AT99


Subsistence Management Regulations for Public Lands in Alaska, 
Subpart C; Nonrural Determinations

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

ACTION: Final rule.

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SUMMARY: This rule revises the list of nonrural areas identified by the 
Federal Subsistence Board (Board, we, us). Only residents of areas 
identified as rural are eligible to participate in the Federal 
Subsistence Management Program on Federal public lands in Alaska. We 
are changing Adak's status to rural. We also are adding Prudhoe Bay to 
the list of nonrural areas. The following areas continue to be 
nonrural, but we are changing their boundaries: the Kenai Area; the 
Wasilla/Palmer Area, including Point McKenzie; the Homer Area, 
including Fritz Creek East (except Voznesenka) and the North Fork Road 
area; and the Ketchikan Area. We have also added Saxman to the 
Ketchikan nonrural area. We are making no other changes in status. This 
final rule differs from the proposed rule relative to the Kodiak area 
and Saxman: For reasons set forth below, we did not change the status 
of the Kodiak area from rural to nonrural, as we had proposed, and we 
included Saxman in the nonrural Ketchikan area, which we had not 
proposed. Residents of those areas changing from rural to nonrural have 
5 years to come into compliance with this rule.

DATES: Effective Date: This rule is effective June 6, 2007. Compliance 
Date: Compliance with the nonrural determinations for Prudhoe Bay, 
Point MacKenzie, the expanded portion of Sterling, Fritz Creek East, 
North Fork Road area, Saxman, and the additions to the Ketchikan 
nonrural area is required by May 7, 2012.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of 
Subsistence Management; 3601 C Street, Suite 1030, Anchorage, AK 99503, 
telephone (907) 786-3888. For questions specific to National Forest 
System lands, contact Steve Kessler, Regional Subsistence Program 
Leader, USDA, Forest Service, Alaska Region, (907) 786-3888.

SUPPLEMENTARY INFORMATION:

Background

    In Title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that ``the situation 
in Alaska is unique in that, in most cases, no practical alternative 
means are available to replace the food supplies and other items 
gathered from fish and wildlife which supply rural residents dependent 
on subsistence uses * * *'' and that ``continuation of the opportunity 
for subsistence uses of resources on public and other lands in Alaska 
is threatened. * * *'' As a result, Title VIII requires, among other 
things, that the Secretary of the Interior and the Secretary of 
Agriculture (Secretaries) implement a program to provide rural Alaska 
residents a priority for the taking of fish and wildlife on public 
lands in Alaska for subsistence uses, unless the State of Alaska enacts 
and implements laws of general applicability that are consistent with 
ANILCA and that provide for the subsistence definition, priority, 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 priority in the State subsistence statute violated the 
Alaska Constitution. The Court's ruling in McDowell caused the State to 
delete the rural priority from the subsistence statute, which 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 Departments published the Temporary Subsistence Management 
Regulations for Public Lands in Alaska in the Federal Register (55 FR 
27114). Permanent regulations were jointly published on May 29, 1992 
(57 FR 22940), and have been amended since then.
    As a result of this joint process between Interior and Agriculture, 
these regulations can be found in the titles for Agriculture and 
Interior in the Code of Federal Regulations (CFR) both in title 36, 
``Parks, Forests, and Public

[[Page 25689]]

Property,'' and title 50, ``Wildlife and Fisheries,'' at 36 CFR 242.1-
28 and 50 CFR 100.1-28, respectively. The regulations contain the 
following subparts: Subpart A, General Provisions; Subpart B, Program 
Structure; Subpart C, Board Determinations; and Subpart D, Subsistence 
Taking of Fish and Wildlife.
    Consistent with Subparts A, B, and C of these regulations, as 
revised May 7, 2002 (67 FR 30559), and December 27, 2005 (70 FR 76400), 
the Departments established a Federal Subsistence Board (Board) to 
administer the Federal Subsistence Management Program, as established 
by the Secretaries. 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 (BLM); 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 regulations for Subparts A, 
B, and C, and the annual Subpart D regulations.

Rural Determination Process

    With a Federal Register notice on October 5, 1990 (55 FR 40897), 
the newly established Federal Subsistence Board initiated the 
preparation of an Environmental Impact Statement as a vehicle for 
widespread public review and participation in the development of the 
final temporary regulations. The rural determination process was 
included, and subsequently on November 23, 1990 (55 FR 48877), the 
Board published another notice in the Federal Register explaining the 
proposed Federal process for making rural determinations, the criteria 
to be used, and the application of those criteria in preliminary 
determinations. Public meetings were held in approximately 56 Alaskan 
communities, specifically to solicit comments on the proposed Federal 
Subsistence Management Program. On December 17, 1990, the Board adopted 
final rural and nonrural determinations, which were published on 
January 3, 1991 (56 FR 236). Final programmatic regulations were 
published on May 29, 1992, with only slight variations in the rural 
determination process (57 FR 22940).
    Federal subsistence regulations require that the rural/nonrural 
status of communities or areas be reviewed every 10 years, beginning 
with the availability of the 2000 census data. The Board evaluated 
several options for conducting the review and decided to adopt an 
approach similar to that taken in 1990, which used criteria established 
in Federal subsistence regulations.
    Although the process uses data from the 2000 census for its review, 
some data were not compiled and available until 2005. Data from the 
Alaska Department of Labor were used to supplement the census data.
    During February-July 2005, the staff of the Federal Subsistence 
Management Program conducted an initial review of the rural status of 
Alaska communities, looking at the 2000 census data for each community 
or area with an emphasis on what had changed since 1990. From this 
initial review, staff compiled a report that included a proposed list 
of communities and areas for which further analysis appeared warranted. 
In addition, the report described the method used to develop this list. 
In August-October 2005, the public and Federal Subsistence Regional 
Advisory Councils were invited to comment on the results of this 
initial review.
    At a meeting in Anchorage on December 6-7, 2005, the Board took 
public testimony and determined that additional information was needed 
on 10 communities and areas before it decided upon any potential 
changes.
     For three communities, the further analysis that followed 
was focused on evaluation of rural/nonrural status, as follows:
    Kodiak, Adak, and Prudhoe Bay: At that time, Kodiak and Prudhoe Bay 
were considered rural, and Adak was considered nonrural. These three 
communities were further analyzed as to their rural/nonrural status.
     For five nonrural groupings of communities and areas, 
further analysis evaluated the possibility of excluding or including 
boundary areas, as follows:
    Fairbanks North Star Borough: Evaluated whether to continue using 
the entire borough as the nonrural area, or whether to separate some 
outlying areas and evaluated their rural/nonrural status independently.
    Seward Area: Evaluated whether to exclude Moose Pass and similarly 
situated places from this nonrural grouping and evaluate their rural/
nonrural status independently.
    Wasilla/Palmer Area: Evaluated whether to include Willow, Point 
MacKenzie, and similarly situated places in this nonrural grouping.
    Homer Area: Evaluated whether to include Fox River, Happy Valley, 
and similarly situated places in this nonrural grouping.
    Kenai Area: Evaluated whether to exclude Clam Gulch and similarly 
situated places from this nonrural grouping and evaluated their rural/
nonrural status independently, and evaluated whether to include an 
additional portion of the Sterling census designated place in the 
nonrural Kenai area.
     In addition, two areas were further analyzed as follows:
    Ketchikan Area: Evaluated whether to include Saxman, and other 
areas outside the current nonrural boundary, and evaluated the rural/
nonrural status of the whole area.
    Delta Junction, Big Delta, Deltana and Fort Greely: Evaluated 
whether some or all of these communities should be grouped, and if so, 
their rural/nonrural status evaluated collectively.
    This assignment for additional analysis differed from the proposed 
list released for public comment in July 2005, in that: (1) The scope 
of the review was broadened for the Ketchikan area, considered 
nonrural, to include an analysis of rural/nonrural characteristics of 
the entire area; (2) the rural/nonrural status of Prudhoe Bay was 
added; and (3) additional analysis of Sitka was not believed to be 
necessary.
    Sitka, whose population had increased from 8,588 people in 1990 to 
8,835 in 2000, had been initially identified as an area possibly 
warranting further analysis. However, during its December 6-7, 2005, 
meeting, the Board heard substantial public testimony regarding the 
rural characteristics of Sitka and determined that no additional 
analysis was necessary, leaving Sitka's rural status unchanged.
    During January-May 2006, Federal subsistence staff conducted in-
depth analyses of each community or area on the Board-approved list of 
communities and areas identified for further analysis.
    On June 22, 2006, the Board met in executive session to develop the 
list of communities and areas they proposed to be nonrural. Those 
communities and areas were identified in a proposed rule published in 
the Federal Register on August 14, 2006 (71 FR 46416).
    Population size is a fundamental distinguishing characteristic 
between rural and nonrural communities. Under the current programmatic 
guidance in Federal subsistence regulations:
     A community with a population of 2,500 or less is deemed 
rural, unless it possesses significant characteristics of a nonrural 
nature, or is considered to be socially, economically, and communally 
part of a nonrural area.
     A community with a population of more than 7,000 is 
presumed nonrural, unless it possesses significant characteristics of a 
rural nature.

[[Page 25690]]

     A community with a population above 2,500 but not more 
than 7,000 is evaluated to determine its rural/nonrural status. The 
community characteristics considered in this evaluation may include, 
but are not limited to, diversity and development of the local economy, 
use of fish and wildlife, community infrastructure, transportation, and 
educational institutions.
    Communities that are economically, socially, and communally 
integrated are combined for evaluation purposes. The Board identified 
three guidelines or criteria for analysis to assist in its 
determination of whether or not to group communities in its review of 
rural determinations. The criteria that were used include: (1) Are the 
communities in proximity and road-accessible to one another? The first 
criterion, proximity and road accessibility, is considered a logical 
first step in evaluating the relationship between communities, and, 
applied in relation to the other two criteria, is considered a 
reasonable indicator of economic, social, and communal integration. (2) 
Do they share a common high school attendance area? The second 
criterion, regarding sharing a common high school attendance area, is 
taken to be an indicator of the social integration of communities. This 
is an improvement by way of modification from the former criterion of a 
shared school district. The public pointed out in past testimony that 
attendance in a common school district often reflects political or 
administrative boundaries rather than social integration. A shared 
social experience is better captured by the shared high school 
criterion. (3) Do 30 percent or more of the working people commute from 
one community to another? This criterion, regarding whether working 
people commute from one community to another, was identified as 
providing meaningful information relating to the grouping of 
communities. Also, the U.S. Census uses this criterion because 
commuting to work is an easily understood measure that reflects social 
and economic integration. These criteria were not considered 
separately, but assessed collectively, with the recommendation to group 
communities being dependent upon the collective assessment.
    Community characteristics and specific indicators that the Board 
used to evaluate rural/nonrural status included: (1) Economy--wage 
employment, percent unemployment, per capita income, diversity of 
services, cost-of-food index, and number of stores of defined large 
national retailers; (2) Community infrastructure--including the cost of 
electricity; (3) Fish and wildlife use--variety of species used per 
household, percentage of households participating, level of average 
harvest per capita for all subsistence resources combined, and level of 
average harvest per capita for salmon and large land mammals only; (4) 
Transportation--variety of means, predominant means, and length of road 
system; and (5) Educational institutions present in the community.
    The Board's analysis and preliminary efforts to distinguish between 
rural places and nonrural places were heavily reliant on population 
size, but when the Board used other characteristics, its approach was 
based on a totality of the circumstances. Unemployment is generally 
higher and per capita income is generally lower in rural places than in 
nonrural places. Cost of food and cost of electricity were generally 
higher in the rural communities than in the nonrural. Subsistence per 
capita harvest of all resources shows a pattern of increasing amount 
with decreasing population size among nonrural areas, and typically 
higher levels in rural communities. The per capita harvest of salmon 
and large land mammals also shows a general pattern of increasing 
amount with decreasing population size among nonrural areas, and 
typically higher levels in rural communities. The defined large 
national retailers were concentrated in the nonrural communities.

Public Review and Comment

    The Board published a proposed rule (71 FR 46416) on August 14, 
2006, soliciting comments through October 27, 2006, on the proposed 
revision to the list of areas designated as nonrural. The Board then 
held public hearings in Kodiak on September 20-21, 2006, in Saxman on 
September 25, 2006, in Ketchikan on September 26, 2006, and in Sitka on 
October 10, 2006. Approximately 230 individuals testified at those 
hearings. During the public comment period, we received an additional 
300 comments from individuals and 31 comments from organizations, 
agencies and government representatives, as well as 11 resolutions from 
city, borough, and tribal governments and organizations. Virtually all 
of the written comments from individuals came from Sitka, Kodiak, 
Ketchikan, and Saxman. Most expressed a desire for their communities to 
have a rural designation.
    Five of the 10 Regional Councils had comments and recommendations 
to the Board on the proposed rule on the decennial review of rural/
nonrural determinations.
    Southeastern Alaska Federal Subsistence Regional Advisory Council--
The Council concurred with the Board's proposed rule to maintain the 
rural status of Sitka and Saxman. The Council did not agree with the 
Board's proposed rule for Ketchikan. The Council was also concerned 
that the presumptive nonrural population threshold of 7,000 is in 
error, and recommended a change, if a threshold must be used, to 
11,316.
    Southcentral Alaska Federal Subsistence Regional Advisory Council--
The Council supported the proposed rule for all changes in the 
Southcentral region. The Council also commented that guidelines and 
criterion need to be reviewed further to clearly address communities 
surrounding military bases and hub communities on the road system.
    Kodiak/Aleutians Federal Subsistence Regional Advisory Council--The 
Council recommended that Kodiak and its road system should remain 
classified as rural, and that classification of Adak should be changed 
from nonrural to rural.
    Eastern Interior Alaska Federal Subsistence Regional Advisory 
Council--The Council recommended the removal of Fort Greely from the 
Board's grouping of the four census designated places of Delta 
Junction, Big Delta, Deltana, and Fort Greely with the intent that the 
communities retain their rural status.
    North Slope Federal Subsistence Regional Advisory Council--The 
Council recommended changing the designation of Prudhoe Bay from rural 
to nonrural.
    We will address the major comments from all sources below:
    Comment: The Board has failed to provide sufficient information and 
assurances of consistency regarding the basis for the Board's 
evaluations of rural status or of the effects of a Board determination. 
This lack of information has caused unnecessary fear and confusion 
among Alaskans.
    Response: The Board has conducted this review of rural/nonrural 
determinations with substantial opportunities for public involvement, 
and with substantial informational outreach. The generalized timeline 
for the process has been previously noted. In the course of this 
process, there have been public news releases, a question and answer 
sheet, fact sheet, briefings to Regional Advisory Councils, staff 
reports, a proposed rule, Board public meetings, and Board public 
hearings in four communities.
    Comment: At a minimum, the Federal Subsistence Board is obligated 
to

[[Page 25691]]

construe Title VIII and the regulations implementing it broadly in 
favor of Alaska Natives.
    Response: Title VIII and the Federal subsistence management system 
established to implement it are racially neutral. The Ninth Circuit 
Court in Hoonah Indian Association v. Morrison, 170 F.3d 1223, 1228 
(9th Cir. 1999) has concluded that Title VIII is not Indian legislation 
for the purpose of statutory construction.
    Comment: Communities should not be grouped or are being improperly 
grouped. The Coast Guard base in Kodiak should not be grouped in the 
Kodiak area; the Coast Guard base in Sitka should not be grouped in the 
Sitka area; the Community of Saxman should not be grouped in the 
Ketchikan area.
    Response: Section ----.15(a)(6) requires that communities that are 
economically, socially, and communally integrated be considered in the 
aggregate. That means they must be grouped for consideration. It should 
be noted that places in a grouping need not be economically, socially, 
or communally homogenous in order to be included. Portions of a 
nonrural grouping may appear more rural than other portions of the 
grouping and may have their own community governments and services, but 
may still be combined or joined in one area.
    Comment: Many people objected to the use of aggregating communities 
or to the use of population in making presumptive determinations.
    Response: The procedure of considering aggregated areas has been in 
place in Federal Subsistence Management regulations (50 CFR 
100.15(a)(6) and 36 CFR 242.15(a)(6)) since 1992 and recognizes the 
fact that some areas and/or communities are interrelated and should be 
considered as a whole. The use of population to set presumptive 
thresholds has also been in regulation (----.15(a)(1-3)) since 1992 and 
recognizes the intent of Congress and the Courts in using population as 
an initial determinant of the rural or nonrural nature of a community 
or area. The plain meaning of the term ``rural'' involves population. 
Since larger population size may be seen as an impediment to 
maintaining or acquiring rural status for a community or area, there is 
an incentive to minimize the importance of population size as a factor 
or to exclude portions of the total population in the assessment of a 
community's size. The use of a population threshold recognizes that 
population alone is not the sole indicator of a rural or nonrural 
community. This flexibility is consistent with approaches other Federal 
agencies have used to determine if communities are rural.
    Comment: The Federal staff analysis ignores the historical context 
for aggregation. The Board's decision making process should include an 
evaluation regarding small communities along road systems and their 
links to larger population centers with services that residents of 
these small communities regularly use. The 2006 Federal staff analysis 
should have evaluated the changes throughout the Kenai Peninsula and 
should provide sufficient analysis to allow the Board to consider 
reinstating an aggregation of communities on the road-connected Kenai 
Peninsula.
    Response: The Board considered grouping issues for some areas, as 
assigned for further staff analysis in December 2005. The method to be 
used for the assigned staff analyses was described and subjected to 
public comment earlier in 2005. An analysis that would evaluate 
aggregation of the entire road-connected Kenai Peninsula was not 
proposed by the Board for assignment in July 2005, was not requested by 
ADF&G at the December 2005 Board public meeting at which the 
assignments were made, was not requested by the public, and was not 
assigned by the Board. The staff analysis is consistent with the 
assignment made by the Board in public session. Further, given the 
criteria used by the Board, there was no reason to address the issue 
further during the December 2006 public meeting.
    Comment: Testimony and public comments have challenged the 
appropriateness of the derivation of the 7,000 threshold from the 
Ketchikan population level. The point made is that the 7,000 level was 
the approximate size of Ketchikan City at the time of ANILCA passage, 
but that the greater Ketchikan area had a population of about 11,000 at 
that time. The concern is that the area population of 11,000 should 
have been taken to represent Congressional intent, since the approach 
as implemented requires grouping of economically, socially, and 
communally integrated places.
    Response: Whether the regulations should describe a threshold of 
11,000 derived from the Ketchikan Area as a whole, or 7,000 derived 
only from the City of Ketchikan, has no effect on the outcome of this 
decennial review. Existing population levels identified in regulation 
provide for a presumption unless a community or area exhibits 
characteristics contrary to the initial presumption. This provides the 
Board latitude to deviate from the presumption thresholds as warranted 
by additional data. Communities and areas of all sizes were given 
adequate consideration, and multiple opportunities were provided for 
review and comment by Regional Advisory Councils, the State of Alaska, 
and the public. None of the communities or areas (as defined by 
grouping in the course of this review) that were proposed by the Board 
for change in status was in the population range of 7,000 to 11,000. 
For future clarification, the Board will interpret the 7,000 population 
figure as a figure to be used for an individual community and the 
11,000 population figure as a figure to be used when considering 
aggregated areas.
    Comment: The Board's decisions for proposing nonrural status for 
some communities and not others was made in executive session on June 
22, 2006.
    Response: The Board's decisions regarding communities and areas 
assigned for further analysis were made in a public meeting December 6-
7, 2005. At the executive session on June 22, 2006, the Board developed 
the proposed rule, the release of which activated an extensive public 
comment period, including Board hearings in four communities.
    Comment: The Board did not use a consistent process for each 
community in evaluating whether a community is rural or nonrural. This 
is most clearly demonstrated in the Board's decision to maintain 
Sitka's rural status without review or comparison to the standards.
    Response: To address these concerns, we will need to recall the 
approach for the initial steps in the review process, which was 
presented to the Councils for their consideration during the February-
March 2005 Council meeting window, coincident with a public comment 
period. There were 300 communities or areas (as grouped by the Federal 
Subsistence Management Program) in Alaska in 2000, using data from the 
2000 U.S. Census. The initial review work by staff in support of the 
Board, conducted with an emphasis on what has changed since the initial 
determinations were made in 1990, was reported to the Board in July 
2005. The Board then proposed a list of communities and areas for 
further analysis, which was subjected to public comment and Council 
review and recommendation during the September-October 2005 Council 
meeting window. Sitka was one of the places initially proposed by the 
Board as a candidate for further analysis because it is rural in status 
but grew further over the 7,000 threshold between 1990 and 2000, which 
was one of the triggers for consideration. That growth amounted to 247 
people (or 3 percent), from 8,588 in

[[Page 25692]]

1990 to 8,835 in 2000 (using Sitka City and Borough as the area of 
interest). Notably, Sitka's population remains below the 11,000 figure 
discussed above for aggregated areas. The initial steps in the review 
process winnowed the number of communities and areas proposed for 
further analysis from the potential scope of 300 to 10. The public 
comment period in the fall of 2005, and the Board public meeting in 
December 2005, provided further information and feedback on the first 
phase of the review, with the Board seeking to learn more and being 
open to adding communities and areas to, or removing them from, the 
list for further analysis. Based on public comments and Regional 
Council recommendations, and testimony at the December 2005 Board 
public meeting, the Board added to, and removed from, the list proposed 
for further analysis in making its assignment to staff for further 
analysis. In the case of Sitka, the prevailing view of the Board was 
that sufficient information had been obtained to preclude the need for 
further staff analysis. The subsequent staff report to the Board on the 
assigned further analyses included historical and current information 
on population and community characteristics for Sitka along with other 
places from around the State, in carrying forward the range of coverage 
that had been provided in 1990.
    Comment: The final analysis used by the Board is selective in its 
use of the regulatory criteria and does not address other communities 
whose status has significantly changed between the 1990 and 2000 
census.
    Response: The June 23, 2006, Office of Subsistence Management (OSM) 
report was not selective in its use of the criteria. Tabular appendix 
tables and in-text graphics presented historical and current population 
data and indicators for all five community characteristics identified 
in regulation. In addition, data was presented on population density, 
which is a characteristic not identified in regulation. Not all data 
types were available for all communities and areas, but relevant data 
were provided to the extent available. The June 23, 2006, OSM report 
was not intended to address all communities or areas within which 
changes may have occurred, but rather those for which additional staff 
analysis was assigned by the Board. The Federal review process, from 
the beginning, involved opportunities for Council, State, and public 
input. The Board review was intended to progressively winnow the scope 
of candidate communities for potential change in status, or grouping 
and status, from the approximately 300 places in Alaska.
    Comment: Federal regulations specify that the criteria ``shall be 
considered in evaluating a community's rural or nonrural status.'' 
However, the analysis prepared by Federal staff and the Board's 
preliminary determinations reflected in the proposed rule make 
selective use of the criteria. Old Believer communities on the Kenai 
Peninsula and Delta Junction are two examples where consideration of 
the use of fish and wildlife resources, as well as other factors, are 
minimized or omitted.
    Response: The regulatory phrase, quoted above, is taken out of 
context. The Federal regulations specify that ``community or area 
characteristics shall be considered in evaluating a community's rural 
or nonrural status. The characteristics may include, but are not 
limited to: [a list of five characteristics follows].'' This regulatory 
construction provides substantial latitude to the Board in the type of 
community characteristics used to evaluate rural or nonrural status. 
All five of the characteristics listed in regulation were addressed 
with data for one or more indicators in the historical (1990) and 
current (2006) tables presented in appendices to the June 23, 2006, OSM 
report to the Board, and selected indicators were also presented in 
graphs for ease of visual interpretation. Characteristics were 
evaluated for communities using the data as available. The issue raised 
regarding the Old Believer communities confuses the community 
characteristics used to address rural/nonrural status with the grouping 
of economically, socially, and communally integrated places, for which 
the Board identified three criteria as indicators. For Delta Junction, 
data on community characteristics were used to the extent available. 
Sufficient information on community use of fish and wildlife was not 
available in a way that would have been reliable for contributing to an 
assessment of rural/nonrural status.
    Comment: The June 23, 2006, Federal staff analysis fails to 
incorporate results of previous statewide analyses. Available 
comparisons of patterns and their changes between 1990 and the 2000 
census, as well as subsequent changes, are not presented consistently 
for all communities.
    Response: The June 23, 2006, OSM report is not selective in its use 
of population data or community characteristics, and both historical 
and current data are presented. Tabular appendix tables and in-text 
graphics present historical and current population data and indicators 
for all five community characteristics identified in regulation. In 
addition, data is presented on population density, which is a 
characteristic not identified in regulation. Not all data types were 
available for all communities and areas. Current data were presented in 
a standardized way for those data types for which it was available. 
Additionally, the analysis never intended to examine all communities 
statewide, nor the changes for all communities statewide.
    Comment: There is no need for a nonrural designation because the 
resources are adequate to support all users.
    Response: ANILCA requires the Federal Subsistence Board to 
distinguish between rural and nonrural areas. Availability of resources 
is not relevant to rural/nonrural determinations.
    Comment: The analysis for Adak needs to be expanded to evaluate 
subsistence use of fish and wildlife by the current population, in 
light of the proposed designation of rural status, rather than just 
relying on population size, remote location, and salmon harvest data.
    Response: Adak is a remote community in the Aleutian Islands which 
has undergone a substantial decrease in population (from more than 
4,600 people in 1990 to less than 200 in 2005). The June 23, 2006, OSM 
report does not present per capita subsistence use information in the 
appendix database because such data are not available for Adak in a way 
that would be consistent with other places for which there are 
household survey data. The report section on Adak does provide some 
limited information on salmon harvests. However, the main point of 
relevance for Adak is in the category of population size.
    Comment: The analysis does not address what, if any, impacts on 
fish and wildlife uses may result if the Board changes the rural/
nonrural status of Prudhoe Bay. The analysis does not describe the 
result of a nonrural determination for any area that contains limited 
to no Federal lands. The analysis also does not consider the effects of 
the nonrural designation on other North Slope resident's customary and 
traditional uses of the Prudhoe Bay/Deadhorse area. One commentor also 
claims that it was inaccurate for the June 23, 2006, OSM report to 
state that ``harvest of subsistence resources has never been reported 
by Prudhoe Bay residents,'' citing a 2001 ADF&G database.
    Response: The analysis notes that the permanent population of 
Prudhoe Bay was 5 in 2000, 2 in 2005, and is now

[[Page 25693]]

reportedly 0. With virtually, or literally, no permanent population, 
there are no impacts to fish and wildlife uses operative with a change 
in status. A rural/nonrural determination is unrelated to whether 
Federal lands are present in the vicinity. Use of Federal public lands 
open to subsistence take by rural residents is not affected by 
designation of nonrural status for residents of parts of that 
geographic area. State database updates since 2001 may include harvest 
data for reported residents of Prudhoe Bay. Because of customary and 
traditional use determinations, the only large mammals that could have 
been taken under Federal subsistence regulations by persons claiming 
Prudhoe Bay residency were black bear, caribou, and sheep. However, 
given the de minimus residency in Prudhoe Bay, and the other 
characteristics and restrictions described, subsistence use of fish and 
wildlife is not a factor.
    Comment: The analysis for Clam Gulch describes two options--neither 
of which includes any information on fish and wildlife harvest levels 
and harvest areas. For the Wasilla, Homer, and Delta Junction areas, 
fish and wildlife data are not discussed.
    Response: The analyses for Clam Gulch in relation to the Kenai area 
and the analyses for the Wasilla and Homer areas were limited in scope 
to the question of whether they should be grouped with larger nonrural 
areas. Those analyses were done consistent with the guidelines 
identified by the Board for evaluating the grouping of communities and 
areas, the method for which was submitted to public comment in an 
earlier stage of the process. Adequate information on customary and 
traditional hunting fishing, and trapping practices for the Delta 
Junction area was not available to allow for evaluation consistent with 
other areas of the state for which the staff analysis provides data, 
nor is use of fish and wildlife resources one of the criteria used for 
grouping.
    Comment: The OSM analysis of the Kodiak area does not make a 
convincing case to disaggregate any portion of the road system from the 
rest of the road-connected area. The analysis does not discuss Kodiak's 
role as a regional center and does not mention the ADF&G report on 
regional centers.
    Response: The OSM staff analysis laid out options for including, or 
not including, Chiniak in the Kodiak Area grouping, and related 
considerations for the Pasagshak portion of the remainder area. The 
Board exercised its judgment in reviewing the grouping of the remainder 
area with the City of Kodiak, and other identified places, including 
Chiniak and the more distant portions of the road-connected remainder 
area. The OSM staff analysis provided an historical background of 
Kodiak Island. The central role of Kodiak City to the region is noted, 
as is the relationship to outlying areas and the movement of people to, 
from, and through Kodiak City.
    Comment: Kodiak has become more rural since 1990. Kodiak's 
dependence on fisheries is a rural characteristic. The local economic 
downturn has led to an increase in dependence on fish and wildlife 
harvest. The cost of living in Kodiak, particularly for food, housing, 
and electricity, is among the highest in the State. Kodiak is isolated; 
weather and distance make travel difficult and expensive. There is a 
high level of sharing.
    Response: The Board did not make a determination to change Kodiak 
from a rural area. Further information on the Board's action is 
provided later in this Preamble.
    Comment: Testimony and comment letters supported retaining Saxman, 
and the Waterfall subdivision north of Ketchikan, as rural areas. 
Saxman is an independent community with its own Tribal government, 
mayor, and fraternal organizations. Fish and wildlife usage is higher 
than in Ketchikan City. For Saxman, Tribal culture plays a large role 
in daily life. Saxman is not integrated with Ketchikan.
    Response: The Board made a determination to group all of the road-
connected areas, including Waterfall subdivision and Saxman, as well as 
Pennock Island and parts of Gravina Island, in the Ketchikan Area. 
Further information on the Board's action is provided later in this 
Preamble.
    Comment: There was testimony that the entire Ketchikan area should 
be treated the same and that Ketchikan and Saxman and the outlying 
areas along the road system should all be rural. People stated that 
gathering subsistence foods is important not only for nutrition, but 
also to culture, which is passed on to young children and family 
members. The island community is very isolated, and the cost of living 
is high, making it difficult to survive without supplementing incomes 
with subsistence foods.
    Response: The Board considered these points, but did not make a 
determination to change Ketchikan from a nonrural area. Further 
information on the Board's action is provided later in this Preamble.
    Comment: If a community is designated nonrural, the residents will 
not be able to harvest their traditional subsistence resources.
    Response: For communities that change from rural to nonrural, the 
implementation will not occur until 5 years after this date. 
Additionally, residents of nonrural areas may harvest their traditional 
subsistence resources from Federal lands under existing State 
regulations. Many of the resources (e.g. seaweed, seals, migratory 
birds, cod, halibut, shrimp, crabs, and salmon taken in marine waters) 
that local people mentioned as being very important to them are 
currently being taken in areas of State jurisdiction or are not under 
the jurisdiction of the Federal Subsistence Management Program. Any 
changes in rural/nonrural determinations would have no impact on the 
harvesting of these resources.
    Summarized below are the Board's final action for each area 
analyzed and the justification for that action. This final rule differs 
from the proposed rule relative to the Kodiak area and Saxman. The 
Board had proposed to add the Kodiak area to the list of nonrural areas 
but did not, for the reasons set forth below. The Board had also 
proposed that the nonrural Ketchikan area not include Saxman, but 
Saxman has been included, for the reasons set forth below.
    Adak: Change Adak's status from nonrural to rural. Following the 
closure of the military base, the community of Adak decreased in 
population by 94 percent between the years 1990 and 2000. It currently 
has 167 residents (2005), which is well below the presumptive rural 
threshold of 2,500 persons. Adak is also extremely remote and is 
accessible only by boat or plane, with the nearest community (Atka) 169 
miles away. With the changes that have occurred since the 1990s, Adak 
now has rural characteristics typical of a small isolated community.
    Prudhoe Bay (including Deadhorse): Change Prudhoe Bay's status from 
rural to nonrural. In 2000 Prudhoe Bay had one permanent household 
comprised of five people. There were reportedly no permanent residents 
in February 2006. Prudhoe Bay has none of the characteristics typical 
of a rural community. Prudhoe Bay is an industrial area built for the 
sole purpose of extracting oil. The oil companies provide everything 
employees need: Lodging, food, health care, and recreation. The 
thousands of people in Prudhoe Bay do not live there permanently, but 
work multiweek-long shifts. They eat in cafeterias and live in group 
quarters. There are no schools, grocery stores, or churches. 
Subsistence is not a part of the way of life. Hunting

[[Page 25694]]

in the area and possession of firearms and ammunition are prohibited. 
Based on its industrial characteristics, Prudhoe Bay is now determined 
to be nonrural.
    Fairbanks North Star Borough: No changes to this nonrural grouping 
are being made. In applying the grouping criteria as indicators of 
economic, social, and communal integration, the Board continues to 
define the current nonrural boundary of the Fairbanks Area as the 
boundary of the Fairbanks North Star Borough. No census designated 
places (CDPs) should be excluded from the nonrural grouping for the 
following reasons: (1) All CDPs are road accessible to one another. 
Although the Harding-Birch Lakes and Salcha areas are more sparsely 
populated than central areas of the borough, both communities include 
many occasional-use homes owned by Fairbanks residents. Further, both 
places are home to only a few year-round residents. (2) The majority of 
the Borough's high school students are bused to one of the schools 
located in Fairbanks, North Pole, or Eielson. (3) The Remainder area of 
the North Star Borough should be included in the grouping because the 
majority of the population is road connected and over half (57 percent) 
of the workers residing in this area commute to Fairbanks for 
employment. Additionally, 75 percent of the workers living in Harding-
Birch Lakes drive to the City of Fairbanks to work, and 71 percent of 
the working population in Pleasant Valley commute to the City of 
Fairbanks.
    Delta Junction Vicinity: No changes are being made to the rural 
status of Delta Junction, or the communities in the immediate vicinity. 
In applying the grouping criteria as indicators of economic, social, 
and communal integration, the four Delta Junction vicinity CDPs 
assigned for analysis (Delta Junction, Big Delta, Deltana, and Fort 
Greely) should be grouped as an area for purposes of rural/nonrural 
analysis because they fulfill the three guidelines for grouping: (1) 
All four CDPs are road connected and proximal; (2) the majority of the 
high school-aged students from Big Delta, Deltana, and Fort Greely 
attend high school in Delta Junction; and (3) in the two outlying CDPs, 
over 30 percent of the workers commute within the vicinity (41 percent 
of the workers living in Big Delta commute to either Delta Junction, 
Deltana, Fort Greely, or to a Remainder area within the Southeast 
Fairbanks Census Area, and 45 percent of the workers in Deltana commute 
to Delta Junction or Fort Greely).
    The four places grouped into the Delta Junction Area will remain 
rural in status. The population size of the grouping (3,921) places it 
in the nonpresumptive midrange, and information on the characteristics 
of the grouping, although somewhat limited, is indicative of a rural 
character. The recent economic upswing to the area due to construction 
of the Missile Defense system at Fort Greely and development of the 
Pogo Mine is thought to be temporary.
    Seward Area: No changes to this nonrural grouping are being made. 
In applying the grouping criteria as indicators of economic, social, 
and communal integration, the Moose Pass, Crown Point, and Primrose 
CDPs should remain within the Seward Area grouping. Moose Pass, Crown 
Point, and Primrose CDPs meet all the criteria for grouping: proximity 
and road-accessibility to the Seward Area; their students attend the 
high school in Seward; and greater than 30 percent of workers commute 
to Seward for employment.
    Wasilla/Palmer Area: Include the Point MacKenzie CDP in the 
nonrural Wasilla/Palmer Area grouping but do not include the Willow 
CDP. The Point Mackenzie CDP meets all the criteria for grouping with 
the Wasilla/Palmer Area. The Point MacKenzie CDP is in proximity to the 
Wasilla/Palmer Area and road-accessible; their students attend Wasilla 
High School; and 50 percent of workers commute to the Wasilla/Palmer 
Area for employment. This change makes Point McKenzie part of a 
nonrural area, a change from its current rural status. Willow CDP will 
not be included in the Wasilla/Palmer Area grouping. Students in the 
Willow CDP are located in two attendance areas for high schools, within 
and outside of the Wasilla/Palmer Area. The level of commuting for 
workers to the Wasilla/Palmer Area is at 23.9 percent, which is below 
the criteria identified for grouping.
    Kenai Area: Change the boundaries of the nonrural Kenai Area to 
include all of the current Sterling CDP, and make no change to the 
current grouping and status of Clam Gulch CDP as part of the nonrural 
Kenai Area. Clam Gulch CDP will continue to be included in the Kenai 
Area grouping because, although students of Clam Gulch CDP attend high 
school outside of the Kenai Area, the commuting of workers to the Kenai 
Area is on the order of 30 percent, and Clam Gulch is connected by 
paved highway to the Kenai Area, with which it has been grouped since 
initial determinations were made in 1990. Cohoe CDP will remain within 
the Kenai Area grouping. Cohoe students attend a high school in the 
Kenai Area and the level of work commuting, at 69.5 percent, is 
significantly above the minimum criteria for grouping. The Sterling CDP 
has been part of the nonrural Kenai Area since 1990. During the course 
of the analysis, it was noted that for the 2000 census, the Sterling 
CDP had expanded in size, such that a significant portion of the CDP 
extended beyond the boundary of the nonrural Kenai Area. The Board 
decided that the boundaries of the Kenai Area should be adjusted to 
include all of the current Sterling CDP. Students within the Sterling 
CDP go to high school within the Kenai Area and the level of commuting 
is at 61 percent of workers, well above the minimum criteria for 
grouping.
    Homer Area: Change the boundaries of the nonrural Homer Area to 
include all of the Fritz Creek CDP (not including Voznesenka) and the 
North Fork Road portion of the Anchor Point CDP. This change makes 
Fritz Creek East, except for Voznesenka , and the North Fork Road 
portion of the Anchor Point CDP nonrural, a change from their current 
rural status. The Board concluded for Fritz Creek East that, except for 
Voznesenka, the residents are economically, socially, and communally 
integrated with the Homer Area. Fritz Creek East is in proximity and 
road-connected to the Homer Area. The Homer High School attendance area 
includes their students, and 44 percent of their workers commute to the 
Homer Area. Voznesenka will not be included in the Homer Area because, 
while it is in proximity and road-connected to the Homer Area, the 
number of jobs shown as being located within the Homer Area is only 
about 20 percent, and Voznesenka students attend high school in 
Voznesenka.
    The Board found that residents of the North Fork Road area fully 
meet two of the three criteria, proximity and commuting of workers. For 
the third criteria, although students have the option of attendance in 
Nikolaevsk School or Ninilchik High School, the vast majority go to 
Homer High School. This is sufficient basis for considering the North 
Fork Road area of the Anchor Point CDP to be economically, socially, 
and communally integrated with the nonrural Homer Area.
    The Board found that residents of the Happy Valley CDP fulfill only 
the proximity criterion for grouping with the Homer Area. Happy Valley 
students are within the Ninilchik High School attendance area, and less 
than 30 percent of Happy Valley workers commute to the Homer Area (14.4 
percent). The residents of the Happy Valley CDP will not be included 
with the Homer Area.

[[Page 25695]]

    Nikolaevsk CDP, north of the Anchor Point CDP and connected to the 
Homer Area by the North Fork Road, does not warrant inclusion in the 
Homer Area. There is a K-12 school in Nikolaevsk, and data show that 
only 22 percent of jobs held by Nikolaevsk residents were located in 
the Homer Area.
    The residents of Fox River CDP, primarily in the communities of 
Razdolna and Kachemak Selo, do not meet any of the three criteria, 
which would indicate that Fox River residents are not economically, 
socially, or communally integrated with the Homer Area.
    Kodiak Area: The Board defined the Kodiak Area consisting of the 
road system, the City of Kodiak, the Mill Bay area, Womens Bay, Bell's 
Flats, the Coast Guard Station, Chiniak, Pasagshak, and Anton Larsen 
and made no change to its rural status. Although the population of the 
Kodiak Area was estimated at approximately 12,000 in 2005, the area 
exhibits strong characteristics of a rural area. The population has 
increased only slightly since 1990. Kodiak's per capita income is less 
than many nonrural areas and also many rural areas. The unemployment 
rate has increased with the decline of the fishing industry. The 
community is very isolated with no road access. Inclement weather can 
strand residents for days. The per capita harvest of subsistence 
resources is higher in the Kodiak Area than in some other rural areas. 
Based on the marginal population growth since 1988 (1.3 percent), the 
high cost of food, remoteness, and the high use of subsistence 
resources, no change will be made to Kodiak's rural determination.
    Ketchikan Area: The Board defined the Ketchikan Area to include 
Pennock Island, parts of Gravina Island, and the road system connected 
to the City of Ketchikan, including the community of Saxman. The 
Ketchikan Area, as defined, would retain its nonrural status. Saxman is 
directly adjacent to Ketchikan, connected by road, and surrounded by 
the outlying Ketchikan development. Visually, the only distinguishing 
feature to indicate the boundary between Ketchikan and Saxman is a sign 
on the South Tongass Highway. Saxman has clearly been overtaken and is 
surrounded by the geographic expansion of Ketchikan; Saxman students 
attend high school in Ketchikan; and 64 percent of the workers in 
Saxman commute to Ketchikan for their employment, with another 8 
percent commuting to outlying parts of the area. Although a significant 
percentage of Saxman's population is Native, Ketchikan's Native 
population is approximately 10 times the size of Saxman's Native 
population. Many of the people testifying at the hearing in Saxman live 
in Ketchikan, but reported having very close family and cultural ties 
to Saxman. Given comments about the need for consistency of application 
of the criteria for grouping of communities, and the information on 
Saxman relative to those criteria, the Board grouped Saxman with the 
nonrural Ketchikan area.
    The Remainder area fulfills all three criteria for grouping with 
the Ketchikan Area: (1) The Remainder, other than nearby Gravina and 
Pennock Islands which are connected by a very short skiff ride, is 
road-connected to the City of Ketchikan; (2) Students in the Remainder 
attend high school in Ketchikan; and (3) Over 30 percent of the workers 
from the Remainder commute to work in the City of Ketchikan. Presently, 
most of the Remainder is included in the nonrural Ketchikan Area, 
established in 1990. The Board action adds additional areas where 
development has occurred that is connected to the road system and 
additional parts of Gravina Island that are being developed. The Board 
action also treats any future developed areas connected to the road 
system the same as the existing road system.
    The population of the Ketchikan Area was estimated at 13,125 in 
2005 (including Saxman), having decreased slightly from 1990. Ketchikan 
possesses many nonrural characteristics, including having a 2-year 
college, a large national retailer, car dealerships, fast food 
restaurants, and roads linking the outlying surrounding area to the 
city. Ferry service is more dependable with greater frequency of 
service than in most other locations in Alaska. Although the pulp mill 
closed, there is still diversity in the economy, with tourism, fishing, 
fish processing, timber, dry docking services, retail services, and 
government providing the majority of employment. There is a hospital 
and a high diversity of services offered. The Ketchikan Area had the 
sixth highest population in the state in 2005, considering community 
groupings as defined by the Board. All other areas with higher 
populations are currently considered nonrural in Federal subsistence 
regulations. Three areas with smaller populations are currently 
classified as nonrural and are not being changed in status: the Homer 
Area, Seward Area, and Valdez. Harvest of subsistence resources in the 
Ketchikan Area is lower than is characteristic of rural communities.
    This Board action changes the status of portions of the road-
connected area of Ketchikan, including Saxman, and additional portions 
of Gravina Island from their current rural status to a nonrural status.
    The revised list of nonrural communities and areas, including other 
nonrural communities or areas whose status would remain unchanged, is 
published herein as the final rule. All other communities and areas of 
Alaska not listed herein will retain their rural determination. We are 
amending Sec.  ---- .23, which identifies those communities and areas 
of Alaska that are determined to be rural and nonrural. We have made 
maps available for the nonrural areas. The purpose of these maps is to 
provide to the public a graphic representation of the extent of the 
nonrural areas. To view maps, go to the Office of Subsistence 
Management Web site at http://alaska.fws.gov/asm/home.html. If you do 
not have access to the internet, you may contact the Office of 
Subsistence Management at the address or phone number shown at 
ADDRESSES or FOR FURTHER INFORMATION CONTACT, respectively, and we will 
send the maps to you.
    The effective date of any community or area changing from a rural 
to nonrural status is 5 years after the date of publication of this 
final rule in the Federal Register. For communities or areas that 
change from nonrural to rural, the effective date is 30 days after the 
date of publication of this final rule in the Federal Register.
    Because the Federal Subsistence Management Program relates to 
public lands managed by an agency or agencies in both the Departments 
of Agriculture and the Interior, we are incorporating identical text 
into 36 CFR part 242 and 50 CFR part 100.

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

[[Page 25696]]

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 comments 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, published May 29, 1992, 
implemented the Federal Subsistence Management Program and included a 
framework for an annual cycle for subsistence hunting and fishing 
regulations. The following Federal Register documents pertain to this 
rulemaking:

Federal Register Documents Pertaining to Subsistence Management Regulations for Public Lands in Alaska, Subparts
                                                     A and B
----------------------------------------------------------------------------------------------------------------
  Federal Register citation       Date of publication            Category                     Details
----------------------------------------------------------------------------------------------------------------
57 FR 22940..................  May 29, 1992............  Final Rule..............  ``Subsistence Management
                                                                                    Regulations for Public Lands
                                                                                    in Alaska; Final Rule'' was
                                                                                    published in the Federal
                                                                                    Register establishing a
                                                                                    Federal Subsistence
                                                                                    Management Program.
64 FR 1276...................  January 8, 1999.........  Final Rule (amended)....  Amended 57 FR 22940 to
                                                                                    include subsistence
                                                                                    activities occurring on
                                                                                    inland navigable waters in
                                                                                    which the United States has
                                                                                    a reserved water right and
                                                                                    to identify specific Federal
                                                                                    land units where reserved
                                                                                    water rights exist. Extended
                                                                                    the Federal Subsistence
                                                                                    Board's management to all
                                                                                    Federal lands selected under
                                                                                    the Alaska Native Claims
                                                                                    Settlement Act and the
                                                                                    Alaska Statehood Act and
                                                                                    situated within the
                                                                                    boundaries of a Conservation
                                                                                    System Unit, National
                                                                                    Recreation Area, National
                                                                                    Conservation Area, or any
                                                                                    new national forest or
                                                                                    forest addition, until
                                                                                    conveyed to the State of
                                                                                    Alaska or an Alaska Native
                                                                                    Corporation. Specified and
                                                                                    clarified Secretaries'
                                                                                    authority to determine when
                                                                                    hunting, fishing, or
                                                                                    trapping activities taking
                                                                                    place in Alaska off the
                                                                                    public lands interfere with
                                                                                    the subsistence priority.
66 FR 31533..................  June 12, 2001...........  Interim Rule............  Expanded the authority that
                                                                                    the Board may delegate to
                                                                                    agency field officials and
                                                                                    clarified the procedures for
                                                                                    enacting emergency or
                                                                                    temporary restrictions,
                                                                                    closures, or openings.
67 FR 30559..................  May 7, 2002.............  Final Rule..............  In response to comments on an
                                                                                    interim rule, amended the
                                                                                    operating regulations. Also
                                                                                    corrected some inadvertent
                                                                                    errors and oversights of
                                                                                    previous rules.
68 FR 7703...................  February 18, 2003.......  Direct Final Rule.......  Clarified how old a person
                                                                                    must be to receive certain
                                                                                    subsistence use permits and
                                                                                    removed the requirement that
                                                                                    Regional Councils must have
                                                                                    an odd number of members.
68 FR 23035..................  April 30, 2003..........  Affirmation of Direct     Received no adverse comments
                                                          Final Rule.               on 68 FR 7703. Adopted
                                                                                    direct final rule.
68 FR 60957..................  October 14, 2004........  Final Rule..............  Established Regional Council
                                                                                    membership goals.
70 FR 76400..................  December 27, 2005.......  Final Rule..............  Revised jurisdiction in
                                                                                    marine waters and clarified
                                                                                    jurisdiction relative to
                                                                                    military lands.
71 FR 49997..................  August 24, 2006.........  Final Rule..............  Revised jurisdiction in
                                                                                    marine waters in the
                                                                                    Makhnati Island area near
                                                                                    Sitka.
----------------------------------------------------------------------------------------------------------------

    An environmental assessment was prepared in 1997 on the expansion 
of Federal jurisdiction over fisheries and is available from 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 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 
that the program is not likely to significantly restrict subsistence 
uses.

Paperwork Reduction Act

    This rule contains no new information collection requirements 
subject to Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act of 1995. The information collection 
requirements described in the CFR regulations were approved by OMB 
under 44 U.S.C. 3501 and were assigned control number 1018-0075, which 
expires October 31, 2009. We may 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

    Regulatory Planning and Review (E.O. 12866). In accordance with the 
criteria in Executive Order 12866, this rule is a significant 
regulatory action. OMB makes the final determination of significance 
under Executive Order 12866.
    a. Analysis indicates this rule will not have an annual economic 
effect of $100 million or adversely affect an economic sector, 
productivity, jobs, the

[[Page 25697]]

environment, or other units of government. A full cost-benefit and 
economic analysis is not required. This rule revises the list of 
nonrural areas identified by the Federal Subsistence Board. Only 
residents of areas identified as rural are eligible to participate in 
the Federal Subsistence Management Program on Federal public lands in 
Alaska.
    b. This rule will not create serious inconsistencies or otherwise 
interfere with the actions of other agencies.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    d. This rule raises novel legal or policy issues. This rule raises 
a novel policy issue in that Federal subsistence regulations require 
that the rural/nonrural status of communities or areas be reviewed 
every 10 years, beginning with the availability of the 2000 census 
data, this thereby being the first such decennial review. Although the 
process uses data from the 2000 census for its review, some data was 
not compiled and available until 2005. Data from the Alaska Department 
of Labor were used to supplement the census data.
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires preparation of regulatory flexibility analyses for rules that 
will have a significant economic 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 tackle, boat, sporting goods dealers, and 
gasoline dealers. The number of small entities affected is unknown; 
however, 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.
    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 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 unless the State program is compliant with 
the requirements of that Title.
    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 substantial direct effects. 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 
action and no Statement of Energy Effects is required.
    William Knauer drafted these regulations under the guidance of 
Peter J. Probasco of the Office of Subsistence Management, Alaska 
Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. 
Chuck Ardizzone, Alaska State Office, Bureau of Land Management; Greg 
Bos, Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish and 
Wildlife Service; Sandy Rabinowitch and Nancy Swanton, Alaska Regional 
Office, National Park Service; Dr. Warren Eastland, and Dr. Glenn Chen, 
Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, 
Alaska Regional Office, 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 Secretaries propose 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

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 C--Board Determinations

0
2. In Subpart C of 36 CFR part 242 and 50 CFR part 100, revise Sec.  --
--.23 to read as follows:


Sec.  ----.23  Rural determinations.

    (a) The Board has determined all communities and areas to be rural 
in accordance with Sec.  ----.15, except those set forth in this 
paragraph. You may obtain maps delineating the boundaries of nonrural 
areas from the U.S. Fish and Wildlife Service, Office of Subsistence 
Management. The nonrural areas include:
    (1) Anchorage, Municipality of;
    (2) Fairbanks North Star Borough;
    (3) Homer area--including Homer, Anchor Point, North Fork Road 
area, Kachemak City, and the Fritz Creek East area (not including 
Voznesenka);
    (4) Juneau area--including Juneau, West Juneau, and Douglas;
    (5) Kenai area--including Kenai, Soldotna, Sterling, Nikiski, 
Salamatof, Kalifonsky, Kasilof, and Clam Gulch;
    (6) Ketchikan area--including all parts of the road system 
connected to the City of Ketchikan including Saxman, Pennock Island and 
parts of Gravina Island;
    (7) Prudhoe Bay;
    (8) Seward area--including Seward and Moose Pass;
    (9) Valdez; and
    (10) Wasilla/Palmer area--including Wasilla, Palmer, Sutton, Big 
Lake, Houston, Point MacKenzie, and Bodenburg Butte.

[[Page 25698]]

    (b) [Reserved]

    Dated: April 26, 2007.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
    Dated: April 26, 2007.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 07-2205 Filed 5-4-07; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P