[Federal Register Volume 75, Number 10 (Friday, January 15, 2010)]
[Proposed Rules]
[Pages 2448-2451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-688]


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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-2009-0061; 70101-1261-0000L6]
RIN 1018-AW71


Subsistence Management Regulations for Public Lands in Alaska--
2011-12 and 2012-13 Subsistence Taking of Fish and Shellfish 
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 fishing 
seasons, harvest limits, methods and means related to taking of fish 
and shellfish for subsistence uses during the 2011-2012 and 2012-2013 
regulatory years. The Federal Subsistence Board is presently on a 
schedule of completing the process of revising subsistence taking of 
fish and shellfish regulations in odd-numbered years and subsistence 
taking of wildlife regulations in even-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 cycle. When final, the resulting rulemaking will replace the 
existing subsistence fish taking regulations, which expire on March 31, 
2011. Future rules will not have expiration dates but will be revised 
according to the applicable cycle. 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 
February 15 and March 26, 2010, 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 August 24 and October 15, 2010. The Board will 
discuss and evaluate proposed regulatory changes during a public 
meeting in Anchorage, AK, on January 18, 2011. 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 March 24, 2010.

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:
     Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov and search for FWS-R7-SM-2009-0061, which is 
the docket number for this rulemaking.
     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 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 H. 
Casipit, Acting Regional Subsistence Program Leader, USDA, Forest 
Service, Alaska Region; (907) 586-7918.

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

[[Page 2449]]

Secretary of Agriculture (Secretaries) jointly implement the Federal 
Subsistence Management Program. This program provides 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 a number 
of 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.
    Consistent with subpart B of these regulations, the Secretaries 
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.

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, 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 Council.....  Ketchikan...................  March 16, 2010.
Region 2--Southcentral Regional Council..  Anchorage...................  March 10, 2010.
Region 3--Kodiak/Aleutians Regional        TBD.........................  March 23, 2010.
 Council.
Region 4--Bristol Bay Regional Council...  Togiak......................  March 3, 2010.
Region 5--Yukon-Kuskokwim Delta Regional   Bethel......................  March 2, 2010.
 Council.
Region 6--Western Interior Regional        Fairbanks...................  February 23, 2010.
 Council.
Region 7--Seward Peninsula Regional        Nome........................  March 9, 2010.
 Council.
Region 8--Northwest Arctic Regional        Kotzebue....................  February 19, 2010.
 Council.
Region 9--Eastern Interior Regional        Fairbanks...................  February 23, 2010.
 Council.
Region 10--North Slope Regional Council..  Barrow......................  February 16, 2010.
 

    During April 2010, the written proposals to change the subpart D, 
take of fish and shellfish, 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 May 14, 2010, written public comments 
will be accepted on the distributed proposals.
    The Board, through the Regional Councils, will hold a second series 
of meetings in August through October 2010, to receive comments on 
specific proposals and to develop recommendations to the Board at the 
following locations in Alaska, on the following dates:

 
 
 
Region 1--Southeast Regional Council.....  Sitka.......................  September 28, 2010.
Region 2--Southcentral Regional Council..  Cordova.....................  October 13, 2010.
Region 3--Kodiak/Aleutians Regional        TBA.........................  September 21, 2010.
 Council.
Region 4--Bristol Bay Regional Council...  Naknek......................  September 22, 2010.
Region 5--Yukon-Kuskokwim Delta Regional   Quinhagak...................  September 30, 2010.
 Council.
Region 6--Western Interior Regional        McGrath.....................  October 5, 2010.
 Council.
Region 7--Seward Peninsula Regional        Nome........................  October 13, 2010.
 Council.
Region 8--Northwest Arctic Regional        Kotzebue....................  September 1, 2010.
 Council.
Region 9--Eastern Interior Regional        Central.....................  October 13, 2010.
 Council.
Region 10--North Slope Regional Council..  Barrow......................  August 24, 2010.
 

    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 January 18, 2011. 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 fisheries 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

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    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.  ----.27, and ----.28, 
subpart D (the specific regulations governing the subsistence take of 
fish and shellfish). During the January 18, 2011 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, 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 18553 (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, e-mail, or phone at any time during the rulemaking 
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 will 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 2011-13 Fish and Shellfish Seasons and Harvest Limit 
Regulations

    Subpart D regulations are subject to periodic review and revision. 
The Federal Subsistence Board currently completes the process of 
revising subsistence take of fish and shellfish regulations in odd-
numbered years and subsistence take of wildlife regulations in even-
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 cycle.
    The text of the final rule published March 30, 2009 (74 FR 14049) 
for the 2009-11 subparts C and D regulations is the text of this 
proposed rule. The regulations established in that final rule are set 
to expire March 31, 2011. However, those regulations will remain in 
effect on April 1, 2011, 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 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

    An agency may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid Office of Management and Budget (OMB) control number. This 
proposed rule does not contain any new collections of information that 
require OMB approval. OMB has reviewed and approved the following 
collections of information associated with the subsistence regulations 
at 36 CFR 242 and 50 CFR 100:
    (1) Subsistence hunting and fishing applications, permits, and 
reports (OMB Control No. 1018-0075 expires December 31, 2009).
    (2) Federal Subsistence Regional Advisory Council Membership

[[Page 2451]]

Application/Nomination and Interview Forms (OMB Control No. 1018-0120, 
expires March 31, 2012).

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 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. However, 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

    This Executive Order requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. However, 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

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 2011-12 and 
2012-13 regulatory years. The text of the proposed amendments to 36 CFR 
242.24, 242.27, and 242.28 and 50 CFR 100.24, 100.27, and 100.28 is the 
final rule for the 2009-11 regulatory period (74 FR 14049; March 30, 
2009), as modified by any subsequent Federal Subsistence Board action.

    Dated: November 20, 2009.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
    Dated: November 23, 2009.
Calvin H. Casipit,
Acting Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 2010-688 Filed 1-14-10; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P