[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Proposed Rules]
[Pages 52712-52716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24653]


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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

[Docket No. FWS-R7-SM-2009-0052]
[70101-1261-0000L6]
RIN 1018-AW77


Subsistence Management Regulations for Public Lands in Alaska, 
Subpart B; Special Actions

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

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Forest Service and U.S. Fish and Wildlife 
Service, are proposing to amend the regulations that manage take of 
wildlife and fish in Alaska for subsistence purposes to clarify them. 
In particular, we want to clarify the Federal Subsistence Board's 
process of accepting and addressing special action requests, along with 
the role of the Regional Advisory Councils in the special action 
process. We would also update public notice requirements to bring them 
into line with the practices of the digital age and accommodate a new 
biennial regulatory cycle.

DATES: Public meeting: The Federal Subsistence Board will hold a public 
meeting on January 12, 2010, to receive comments on this proposed rule. 
See SUPPLEMENTARY INFORMATION for specific information on the public 
meeting.
    Public comments: We must receive written comments on this proposed 
rule by January 12, 2010.

ADDRESSES: Public meeting: The Federal Subsistence Board public meeting 
will be held at the Coast International Inn in Anchorage, Alaska. See 
SUPPLEMENTARY INFORMATION for specific information on the public 
meeting.
    Public comments: You may submit comments by one of the following 
methods:
     Electronically: Go to the Federal eRulemaking 
Portal: http://www.regulations.gov. In the Search Documents box, enter 
FWS-R7-SM-2009-0052, which is the docket number for this rulemaking. 
Then, in the Search panel on the left side of the screen, under the 
Document Type heading, click on the Proposed Rules link to locate this 
document. You may submit a comment by clicking on ``Send a Comment or 
Submission.''
     By hard copy: 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; or hand-delivery to 
the Designated Federal Official attending the Federal Subsistence Board 
public meeting in Anchorage.
    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: For questions specific to National 
Forest System lands, contact Calvin H. Casipit, Regional Subsistence 
Program Leader, USDA, Forest Service, Alaska Region; (907) 586-7918. 
For questions regarding Department of the Interior lands, contact

[[Page 52713]]

Peter J. Probasco, Office of Subsistence Management, U.S. Fish and 
Wildlife Service; (907) 786-3888.

SUPPLEMENTARY INFORMATION:

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 to rural residents. The 
Secretaries first published regulations to carry out this program in 
the Federal Register on May 29, 1992 (57 FR 22940), but the regulations 
have been amended numerous times since then. 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.
    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:
     A Chair appointed by the Secretary of the Interior with 
concurrence of the Secretary of Agriculture;
     The Alaska Regional Director, U.S. Fish and Wildlife 
Service;
     The Alaska Regional Director, U.S. National Park Service;
     The Alaska State Director, U.S. Bureau of Land Management;
     The Alaska Regional Director, U.S. Bureau of Indian 
Affairs; and
     The Alaska Regional Forester, 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 the subpart D regulations, which, among other things, set 
forth specific harvest seasons and limits.
    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.

Proposed Regulatory Changes

    Members of the regional councils, agency representatives, and the 
public have expressed concern to the Federal Subsistence Board that 36 
CFR 242.19 and 50 CFR 100.19, respectively, need to be revised in a 
manner that provides more clarity to, and thereby increases 
understanding of, the Board's process of accepting and addressing 
special action requests. Special actions are actions that the Board 
takes to modify the hunting or fishing regulations on public lands to 
ensure the continued viability of a fish or wildlife population or for 
other reasons. These actions may include closing, opening, or adjusting 
the seasons; modifying the harvest limits; or modifying the methods and 
means of harvest for subsistence uses of fish and wildlife.
    The problem with the lack of clarity in the regulations became 
particularly apparent during oral argument in the case of Ninilchik 
Traditional Council v. Fleagle, when the presiding judge struggled to 
interpret the procedural mechanisms described in the regulation and 
criticized it for being unclear. More recently, we have recognized the 
need to modify Sec.  ----.19 to account for the programmatic shift to a 
biennial regulatory cycle.
    The primary purposes of these proposed modifications are to:
    (1) Improve clarity with respect to the Board's process of 
accepting and addressing special action requests;
    (2) update public notice requirements to bring them into line with 
the practices of the digital age;
    (3) bring clarity to the role of the regional councils with respect 
to special action requests; and
    (4) accommodate the biennial regulatory cycle, which was 
implemented in 2008 (73 FR 35726; June 24, 2008). Additionally, we 
propose to revise Sec.  ------.10(d) and Sec.  ------.18(a) to 
correspond with the proposed changes in Sec.  ------.19.
    While these proposed regulatory revisions will result in no direct 
change to subsistence uses, the changes should help all Alaska 
residents to better understand the process by which special action 
requests are accepted or rejected by the Board.

Public Review Process--Public Meeting and Comments

    The Secretaries, through the Federal Subsistence Board, will 
receive comments on this proposed rule during a public meeting to be 
held at the Coast International Inn in Anchorage on January 12, 2010, 
starting at 8:30 a.m. You may provide oral testimony before the Board 
at that time. The council chairs, or their designated representatives, 
will present their respective councils' comments at the Board meeting. 
The Board will then review all comments received and forward its 
recommendations to the Secretaries for final action.
    We will publish notice of the date, time, and meeting location in 
local and statewide newspapers prior to this meeting. The location and 
date may change based on weather or local circumstances. The amount of 
work on the Board's agenda will determine the length of the meeting.

Public Comment Procedures

    To ensure that any final action resulting from this proposed rule 
will be as accurate and as effective as possible, we request that you 
send relevant information for our consideration. The comments that will 
be most useful and likely to influence our decisions are those that you 
support by quantitative information or studies and those that include 
citations to, and analyses of, the applicable laws and regulations. 
Please make your comments as specific as possible and explain the bases 
for them. In addition, please include sufficient information with your 
comments to allow us to authenticate any scientific or commercial data 
you include.
    You must submit your comments and materials concerning this 
proposed rule by one of the methods listed above in the ADDRESSES 
section. If you submit a comment via http://www.regulations.gov, your 
entire comment--including any personal identifying information, such as 
your address, telephone number, or e-mail address--will be posted on 
the Web site. Please note that comments submitted to this Web site are 
not immediately viewable. When you submit a comment, the system 
receives it immediately. However, the comment will not be publicly 
viewable until we post it, which might not occur until several days 
after submission.
    If you mail or hand-carry a hardcopy comment directly to us that 
includes personal information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee

[[Page 52714]]

that we will be able to do so. To ensure that the electronic docket for 
this rulemaking is complete and all comments we receive are publicly 
available, we will post all hardcopy comments on http://www.regulations.gov.
    In addition, comments and materials we receive, as well as 
supporting documentation used in preparing this proposed rule, will be 
available for public inspection in two ways:
    (1) You can view them on http://www.regulations.gov. In the Keyword 
box, enter FWS-R7-SM-2009-0052, which is the docket number for this 
rulemaking. Then, in the Search panel on the left side of the screen, 
select the type of documents you want to view under the Document Type 
heading.
    (2) You can make an appointment, during normal business hours, to 
view the comments and materials in person at the Office of Subsistence 
Management, 1011 East Tudor Road, MS 121, Anchorage, AK 99503-6199.

Public Availability of Comments

    As stated above in more detail, before including your address, 
phone number, e-mail address, or other personal identifying information 
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly 
available at any time. While you can ask us in your comment to withhold 
your personal identifying information from public review, we cannot 
guarantee that we will be able to do so.

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). ANILCA 
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 proposed rule. The Board will consider 
other opportunities for tribal consultation, as appropriate. The Board 
will consider tribes' information, input, and recommendations, and 
address their concerns as much as practicable.

Compliance with Statutory and Regulatory Authorities

National Environmental Policy Act

    A Draft Environmental Impact Statement 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.
    OMB bases its determination of significance 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 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

[[Page 52715]]

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

    ANILCA does not specifically provide rights to tribes for the 
subsistence taking of wildlife, fish, and shellfish. And while, for 
this rule, E.O. 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: Commenting on proposed changes 
to the existing rule; engaging in dialogue at the Board's meetings; and 
providing input in person, by mail, email, or phone at any time during 
the rulemaking process.

Executive Order 1321

    On May 18, 2001, the President issued E.O. 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 E.O. 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 H. Casipit, Alaska Regional Office, U.S. Forest 
Service.

List of Subjects in 36 CFR Part 242

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

List of Subjects in 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 subpart B of part 242 of title 36 and part 100 
of title 50 of the Code of Federal Regulations, as set forth below.

PART --------SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN 
ALASKA

    1. The authority citation for both 36 CFR Part 242 and 50 CFR Part 
100 continues to read as follows:

    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 
3551-3586; 43 U.S.C. 1733.

    2. Amend Sec.  ------.10 by revising paragraph (d)(4)(vi), 
redesignating paragraphs (d)(4)(vii) through (xix) as paragraphs 
(d)(4)(viii) through (xx), and adding a new paragraph (d)(4)(vii) to 
read as follows:


Sec.  ------.10  Federal Subsistence Board.

* * * * *
    (d) * * *
    (4) * * *
    (vi) Restrict the taking of fish and wildlife on public lands for 
nonsubsistence uses, close or open public lands for the take of fish 
and wildlife for nonsubsistence uses, or otherwise modify the 
requirements regarding the taking of fish and wildlife on public lands 
for nonsubsistence uses when necessary for the conservation of healthy 
populations of fish or wildlife, to continue subsistence uses of fish 
or wildlife, or for reasons of public safety or administration;
    (vii) Restrict the taking of a particular fish or wildlife 
population on public lands for subsistence uses, close public lands to 
take for subsistence uses, or otherwise modify the requirements for 
take from a particular fish or wildlife population on public lands for 
subsistence uses when necessary to ensure the continued viability of a 
fish or wildlife population, or for reasons of public safety or 
administration (As soon as conditions warrant, the Board may also 
reopen public lands to the taking of a fish and wildlife population for 
subsistence users to continue those uses.);
* * * * *
    3. Revise the introductory text of paragraph (a) of Sec.  ------.18 
to read as follows:


Sec. ------.18  Regulation adoption process.

    (a) The Board will accept proposals for changes to the Federal 
subsistence regulations in subparts C or D of this part according to a 
published schedule, except for proposals for emergency and temporary 
special actions, which the Board will accept according to procedures 
set forth in Sec.  ------.19. The Board may establish a rotating 
schedule for accepting proposals on various sections of subpart C or 
subpart D regulations over a period of years. The Board will develop 
and publish proposed regulations in the Federal Register, publish 
notice in local newspapers, and distribute comments on the proposed 
regulations in the form of proposals for public review.
* * * * *
    4. Revise Sec. ------.19 to read as follows:


Sec. ------.19  Special actions.

    (a) Emergency special actions. In an emergency situation, the Board 
may immediately open or close public lands for the taking of fish and 
wildlife for subsistence uses, or modify the requirements for take for 
subsistence uses, or close public lands to take for nonsubsistence uses 
of fish and wildlife,

[[Page 52716]]

or restrict the requirements for take for nonsubsistence uses, if 
necessary to ensure the continued viability of a fish or wildlife 
population, to continue subsistence uses of fish or wildlife, or for 
public safety reasons. The Board may also reopen public lands to 
nonsubsistence uses if new information or changed conditions indicate 
that the closure is no longer warranted.
    (1) If the timing of a regularly scheduled meeting of the affected 
Regional Council so permits without incurring undue delay, the Board 
may seek Council recommendations on the proposed emergency special 
action. Such a Council recommendation, if any, will be subject to the 
requirements of Sec.  ------.18.
    (2) The emergency action will be effective when directed by the 
Board, may not exceed 60 days, and may not be extended unless the 
procedures for adoption of a temporary special action, as set forth in 
paragraph (b) of this section, have been followed.
    (b) Temporary special actions. After adequate notice and public 
hearing, the Board may temporarily close or open public lands for the 
taking of fish and wildlife for subsistence uses or modify the 
requirements for subsistence take, or temporarily close public lands 
for the taking of fish and wildlife for nonsubsistence uses or restrict 
take for nonsubsistence uses. The Board may make such temporary changes 
only after it determines that the proposed temporary change will not 
interfere with the conservation of healthy fish and wildlife 
populations, will not be detrimental to the long-term subsistence use 
of fish or wildlife resources, and is not an unnecessary restriction on 
nonsubsistence users.
    (1) Prior to implementing a temporary special action, the Board 
will consult with the State of Alaska and the Chairs of the Regional 
Councils of the affected regions.
    (2) If the timing of a regularly scheduled meeting of the affected 
Regional Council so permits without incurring undue delay, the Board 
will seek Council recommendations on the proposed temporary special 
action. Such Council recommendations, if any, will be subject to the 
requirements of Sec.  ------.18.
    (3) The length of any temporary action will be confined to the 
minimum time period or harvest limit determined by the Board to be 
necessary under the circumstances. In any event, a temporary opening or 
closure will not extend longer than the end of the current regulatory 
cycle.
    (c) The Board may reject a request for either an emergency or a 
temporary special action if the Board concludes that there are no time-
sensitive circumstances necessitating a regulatory change before the 
next regular proposal cycle. However, a special action request that has 
been rejected for this reason may be deferred, if appropriate and after 
consultation with the proponent, for consideration during the next 
regular proposal cycle. The Board will consider changes to customary 
and traditional use determinations in subpart C of this part only 
during the regular proposal cycle.
    (d) The Board will provide notice of all regulatory changes adopted 
via special action by posting the change on the Office of Subsistence 
Management website (http://alaska.fws.gov/asm/osm.cfml). When 
appropriate, notice may also include distribution of press releases to 
newspapers, local radio stations, and local contacts, as well as direct 
notification to the proponent and interested parties. The Board will 
publish notice and reasons justifying the special action in the Federal 
Register as soon as practicable.
    (e) The decision of the Board on any proposed special action will 
constitute its final administrative action.
    (f) Regulations authorizing any individual agency to implement 
closures or restrictions on public lands managed by the agency remain 
unaffected by the regulations in this part.
    (g) You may not take fish and wildlife in violation of any 
restriction, closure, or change authorized by the Board.

    Dated: October 6, 2009
Ken Salazar,
Secretary of the Interior, Department of the Interior.
    Dated: July 22, 2009
Dennis E. Bschor,
Regional Forester, USDA--Forest Service.
[FR Doc. E9-24653 Filed 10-13-09; 8:45 am
BILLING CODE 4310-55-S