[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Proposed Rules]
[Pages 22867-22870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11130]


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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

[FWS-R7-SM-2009-0001; 70101-1261-0000L6]
RIN 1018-AW30


Subsistence Management Regulations for Public Lands in Alaska--
2010-11 and 2011-12 Subsistence Taking of Wildlife Regulations

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish regulations for hunting and 
trapping seasons, harvest limits, methods, and means related to taking 
of wildlife for subsistence uses during the 2010-11 and 2011-12 
regulatory years. The Federal Subsistence Board completes the biennial 
process of revising subsistence hunting and trapping regulations in 
even-numbered years and subsistence fishing and shellfish regulations 
in odd-numbered years; public proposal and review processes take place 
during the preceding year. The Board also addresses customary and 
traditional use determinations during the applicable biennial cycle. 
When final, the resulting rulemaking will replace the existing 
subsistence wildlife taking regulations, which expire on June 30, 2010. 
This rule would also amend the customary and traditional use 
determinations of the Federal Subsistence Board and the general 
regulations on subsistence taking of fish and wildlife.

DATES: Public meetings: The Federal Subsistence Regional Advisory 
Councils will hold public meetings to receive comments and make 
proposals to change this proposed rule on several dates between August 
25 and October 28, 2009, and then hold another round of public meetings 
to discuss and receive comments on the proposals, and make 
recommendations on the proposals to the Federal Subsistence Board, on 
several dates between February and April, 2010. The Board will discuss 
and evaluate proposed regulatory changes during a public meeting in 
Anchorage, AK, on May 4, 2010. See SUPPLEMENTARY INFORMATION for 
specific information on dates and locations of the public meetings.
    Public comments: Comments and proposals to change this proposed 
rule must be received or postmarked by November 5, 2009.

ADDRESSES: Public meetings: The Federal Subsistence Board and the 
Regional Advisory Councils' public meetings will be held at various 
locations in Alaska. See SUPPLEMENTARY INFORMATION for specific 
information on dates and locations of the public meetings.
    Public comments: You may submit comments by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery to: USFWS, Office of 
Subsistence Management, 1011 East Tudor Road, MS 121, Attn: Theo 
Matuskowitz, Anchorage, AK 99503-6199.
     Hand delivery to the Designated Federal Official attending 
any of the Federal Subsistence Regional Advisory Council public 
meetings. See SUPPLEMENTARY INFORMATION for additional information on 
locations of the public meetings.

We will post all comments on http://www.regulations.gov. This generally 
means that we will post any personal information you provide us (see 
the Public Review Process section below for more information).

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of 
Subsistence Management; (907) 786-3888 or [email protected]. For 
questions specific to National Forest System lands, contact Calvin 
Casipit, Regional Subsistence Program Leader, USDA, Forest Service, 
Alaska Region; (907) 586-7918.

SUPPLEMENTARY INFORMATION:

[[Page 22868]]

Background

    Under Title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and 
the Secretary of Agriculture (Secretaries) jointly implement the 
Federal Subsistence Management Program. This program grants a 
preference for subsistence uses of fish and wildlife resources on 
Federal public lands and waters in Alaska. The Secretaries first 
published regulations to carry out this program in the Federal Register 
on May 29, 1992 (57 FR 22940). The Program has subsequently amended 
these regulations several times. Because this program is a joint effort 
between Interior and Agriculture, these regulations are located in two 
titles of the Code of Federal Regulations (CFR): Title 36, ``Parks, 
Forests, and Public Property,'' and Title 50, ``Wildlife and 
Fisheries,'' at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The 
regulations contain subparts as follows: Subpart A, General Provisions; 
Subpart B, Program Structure; Subpart C, Board Determinations; and 
Subpart D, Subsistence Taking of Fish and Wildlife.

Federal Subsistence Board

    Consistent with subpart B of these regulations, the Departments 
established a Federal Subsistence Board to administer the Federal 
Subsistence Management Program. The Board is made up of:
     Chair appointed by the Secretary of the Interior with 
concurrence of the Secretary of Agriculture;
     Alaska Regional Director, U.S. Fish and Wildlife Service;
     Alaska Regional Director, U.S. National Park Service;
     Alaska State Director, U.S. Bureau of Land Management;
     Alaska Regional Director, U.S. Bureau of Indian Affairs; 
and
     Alaska Regional Forester, U.S. Forest Service.
    Through the Board, these agencies participate in the development of 
regulations for subparts A, B, and C, which set forth the basic 
program, and they continue to work together on regularly revising the 
subpart D regulations, which, among other things, set forth specific 
harvest seasons and limits.

Federal Subsistence Regional Advisory Councils

    In administering the program, the Secretaries divided Alaska into 
10 subsistence resource regions, each of which is represented by a 
Regional 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 Federal public lands in Alaska. The Regional 
Council members represent varied geographical, cultural, and user 
diversity within each region.

Public Review Process--Comments, Proposals, and Public Meetings

    The Regional Councils have a substantial role in reviewing this 
proposed rule and making recommendations for the final rule. The 
Federal Subsistence Board (Board), through the Regional Councils, will 
hold meetings on this proposed rule at the following locations in 
Alaska, on the following dates:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Region 1--Southeast Regional  Yakutat........  October 6, 2009.
 Council.
Region 2--Southcentral        Cooper Landing.  October 13, 2009.
 Regional Council.
Region 3--Kodiak/Aleutians    Kodiak.........  September 10, 2009.
 Regional Council.
Region 4--Bristol Bay         Naknek.........  October 27, 2009.
 Regional Council.
Region 5--Yukon-Kuskokwim     TBA............  October 1, 2009.
 Delta Regional Council.
Region 6--Western Interior    Aniak..........  October 6, 2009.
 Regional Council.
Region 7--Seward Peninsula    Nome...........  October 1, 2009.
 Regional Council.
Region 8--Northwest Arctic    Kotzebue.......  September 2, 2009.
 Regional Council.
Region 9--Eastern Interior    Central........  October 13, 2009.
 Regional Council.
Region 10--North Slope        Barrow.........  August 25, 2009.
 Regional Council.
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During November 2009, the written proposals to change subpart D hunting 
and trapping regulations and subpart C customary and traditional use 
determinations will be compiled and distributed for public review. 
During the 30-day public comment period, which is presently scheduled 
to end on December 31, 2009, written public comments will be accepted 
on the distributed proposals.
    The Board, through the Regional Councils, will hold a second series 
of meetings in February through April 2010, to receive comments on 
specific proposals and to develop recommendations to the Board. Meeting 
dates and locations will be published in the Federal Register prior to 
those meetings:
    A notice will be published of specific dates, times, and meeting 
locations in local and statewide newspapers prior to both series of 
meetings. Locations and dates may change based on weather or local 
circumstances. The amount of work on each Regional Council's agenda 
determines the length of each Regional Council meeting.
    The Board will discuss and evaluate proposed changes to the 
subsistence management regulations during a public meeting scheduled to 
be held in Anchorage, AK, on May 4, 2010. The Council Chairs, or their 
designated representatives, will present their respective Councils' 
recommendations at the Board meeting. Additional oral testimony may be 
provided on specific proposals before the Board at that time. At that 
public meeting, the Board will deliberate and take final action on 
proposals received that request changes to this proposed rule.
    Proposals to the Board to modify wildlife harvest regulations and 
customary and traditional use determinations must include the following 
information:
    a. Name, address, and telephone number of the requestor;
    b. Each section and/or paragraph designation in this proposed rule 
for which changes are suggested;
    c. A statement explaining why each change is necessary;
    d. Proposed wording changes; and
    e. Any additional information that you believe will help the Board 
in evaluating the proposed change.
    The Board rejects proposals that fail to include the above 
information, or proposals that are beyond the scope of authorities in 
Sec.  -- .24, subpart C (the regulations governing customary and 
traditional use determinations), and Sec. Sec.  -- .25, and -- .26, 
subpart D (the general and specific regulations governing the 
subsistence take of wildlife). During the May 4, 2010, meeting, the 
Board may defer review and action on some proposals to allow time for 
local cooperative planning efforts, or to acquire additional needed 
information. The Board may elect to defer taking action on any given 
proposal if the workload of staff,

[[Page 22869]]

Regional Councils, or the Board becomes excessive. These deferrals may 
be based on recommendations by the affected Regional Council(s) or 
staff members, or on the basis of the Board's intention to do least 
harm to the subsistence user and the resource involved. The Board may 
consider and act on alternatives that address the intent of a proposal 
while differing in approach.

Tribal Consultation and Comment

    As expressed in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' the Federal officials 
that have been delegated authority by the Secretaries are committed to 
honoring the unique government-to-government political relationship 
that exists between the Federal Government and Federally Recognized 
Indian tribes (tribes) as listed in 73 FR 18533 (April 4, 2008). The 
Alaska National Interest Lands Conservation Act does not specifically 
provide rights to tribes for the subsistence taking of wildlife, fish, 
and shellfish. However, because tribal members are affected by 
subsistence fishing, hunting, and trapping regulations, the Secretaries 
have elected to provide tribes an opportunity to consult on this rule.
    The Secretaries will engage in outreach efforts for this rule, 
including a notification letter, to ensure that tribes are advised of 
the mechanisms by which they can participate. The Board provides a 
variety of opportunities for consultation: Proposing changes to the 
existing rule; commenting on proposed changes to the existing rule; 
engaging in dialogue at the Regional Advisory Council meetings; 
engaging in dialogue at the Board's meetings; and providing input in 
person, by mail, email, or phone at any time during the rule-making 
process. The Secretaries will commit to efficiently and adequately 
reviewing the government-to-government consultation process with regard 
to subsistence rulemaking.
    The Board will consider tribes' information, input, and 
recommendations, and address their concerns as much as practicable. 
However, in keeping with ANILCA Sec.  805(c), the Board shall follow 
recommendations of the Regional Advisory Councils for the taking of 
fish and wildlife unless their recommendation is determined to be not 
supported by substantial evidence, violates recognized principles of 
fish and wildlife conservation, or would be detrimental to the 
satisfaction of subsistence needs. The Board will inform the tribes how 
their recommendations were considered.

Developing the 2010-12 Wildlife Seasons and Harvest Limit Regulations

    Subpart D regulations are subject to periodic review and revision. 
The Federal Subsistence Board completes the biennial process of 
revising subsistence hunting and trapping regulations in even-numbered 
years and subsistence fishing and shellfish regulations in odd-numbered 
years; public proposal and review processes take place during the 
preceding year. The Board also addresses customary and traditional use 
determinations during the applicable biennial cycle.
    The text of the final rule published June 24, 2008 (73 FR 35726) 
for the 2008-10 subparts C and D regulations is the text of this 
proposed rule. These regulations will take effect on July 1, 2010, 
unless subsequent Board action changes elements as a result of the 
public review process outlined above in this document.

Compliance With Statutory and Regulatory Authorities

National Environmental Policy Act

    A Draft Environmental Impact Statement (DEIS) that described four 
alternatives for developing a Federal Subsistence Management Program 
was distributed for public comment on October 7, 1991. The Final 
Environmental Impact Statement (FEIS) was published on February 28, 
1992. The Record of Decision (ROD) on Subsistence Management for 
Federal Public Lands in Alaska was signed April 6, 1992. The selected 
alternative in the FEIS (Alternative IV) defined the administrative 
framework of an annual regulatory cycle for subsistence regulations.
    A 1997 environmental assessment dealt with the expansion of Federal 
jurisdiction over fisheries and is available at the office listed under 
FOR FURTHER INFORMATION CONTACT. The Secretary of the Interior, with 
concurrence of the Secretary of Agriculture, determined that expansion 
of Federal jurisdiction does not constitute a major Federal action 
significantly affecting the human environment and, therefore, signed a 
Finding of No Significant Impact.

Section 810 of ANILCA

    An ANILCA Section 810 analysis was completed as part of the FEIS 
process on the Federal Subsistence Management Program. 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. The final 
section 810 analysis determination appeared in the April 6, 1992, ROD 
and concluded that the Federal Subsistence Management Program, under 
Alternative IV with an annual process for setting subsistence 
regulations, may have some local impacts on subsistence uses, but will 
not likely restrict subsistence uses significantly.
    During the subsequent environmental assessment process for 
extending fisheries jurisdiction, an evaluation of the effects of this 
rule was conducted in accordance with section 810. That evaluation also 
supported the Secretaries' determination that the rule will not reach 
the ``may significantly restrict'' threshold that would require notice 
and hearings under ANILCA section 810(a).

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and assigned 
OMB 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 unless it displays a current valid OMB 
control number.

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866. OMB bases its determination upon the following four 
criteria:
    a. Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    b. Whether the rule will create inconsistencies with other 
agencies' actions.
    c. Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    d. Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires preparation of flexibility analyses for rules that will have a 
significant effect

[[Page 22870]]

on a substantial number of small entities, which include small 
businesses, organizations, or governmental jurisdictions. In general, 
the resources to be harvested under this rule are already being 
harvested and consumed by the local harvester and do not result in an 
additional dollar benefit to the economy. However, we estimate that 2 
million pounds of meat are harvested by subsistence users annually and, 
if given an estimated dollar value of $3.00 per pound, this amount 
would equate to about $6 million in food value statewide. Based upon 
the amounts and values cited above, the Departments certify 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.

Small Business Regulatory Enforcement Fairness Act

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. It does not have an 
effect on the economy of $100 million or more, will not cause a major 
increase in costs or prices for consumers, and does not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises.

Executive Order 12630

    Title VIII of ANILCA requires the Secretaries to administer a 
subsistence priority 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.

Unfunded Mandates Reform Act

    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 there is no cost 
imposed on any State or local entities or tribal governments.

Executive Order 12988

    The Secretaries have determined that these regulations meet the 
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive 
Order 12988, regarding civil justice reform.

Executive Order 13132

    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 it meets certain requirements.

Executive Order 13175

    The Alaska National Interest Lands Conservation Act does not 
specifically provide rights to tribes for the subsistence taking of 
wildlife, fish, and shellfish. And while, for this rule, EO 13175 does 
not require the agencies to consult with tribes, the Secretaries have 
elected to provide tribes an opportunity to consult on this rule. The 
Board will provide a variety of opportunities for consultation through: 
Proposing changes to the existing rule; commenting on proposed changes 
to the existing rule; engaging in dialogue at the Regional Advisory 
Council meetings; engaging in dialogue at the Board's meetings; and 
providing input in person, by mail, e-mail, or phone at any time during 
the rulemaking process.

Executive Order 13211

    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. This rule is not a 
significant regulatory action under Executive Order 13211, affecting 
energy supply, distribution, or use, and no Statement of Energy Effects 
is required.

Drafting Information

    Theo Matuskowitz 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. 
Additional assistance was provided by:
     Daniel Sharp, Alaska State Office, Bureau of Land 
Management;
     Sandy Rabinowitch and Nancy Swanton, Alaska Regional 
Office, National Park Service;
     Drs. Warren Eastland and Glenn Chen, Alaska Regional 
Office, Bureau of Indian Affairs;
     Jerry Berg and Carl Jack, Alaska Regional Office, U.S. 
Fish and Wildlife Service; and
     Calvin Casipit, Alaska Regional Office, U.S. Forest 
Service.

List of Subjects

36 CFR Part 242

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 
Wildlife.

50 CFR Part 100

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 
Wildlife.

    For the reasons set out in the preamble, the Federal Subsistence 
Board proposes to amend 36 CFR 242 and 50 CFR 100 for the 2010-11 and 
2011-12 regulatory years.

    Dated: May 4, 2009.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.

    Dated: May 1, 2009.
Calvin Casipit,
Acting Subsistence Program Leader, USDA-Forest Service.
[FR Doc. E9-11130 Filed 5-14-09; 8:45 am]
BILLING CODE 3410-11-P, 4310-55-P