[Federal Register Volume 77, Number 22 (Thursday, February 2, 2012)]
[Proposed Rules]
[Pages 5204-5207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2008]


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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-2011-0015; FXFR13350700640L6-123-FF07J00000]
RIN 1018-AX64


Subsistence Management Regulations for Public Lands in Alaska--
2013-14 and 2014-15 Subsistence Taking of Fish and Shellfish 
Regulations

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish regulations for fish and 
shellfish seasons, harvest limits, methods and means related to taking 
of fish and shellfish for subsistence uses during the 2013-2014 and 
2014-2015 regulatory years. The Federal Subsistence Board (Board) is 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 and shellfish taking regulations. This 
proposed rule would also amend the general regulations on subsistence 
taking of fish and wildlife.

DATES: Public meetings: The Subsistence Regional Advisory Councils 
(Councils) will hold public meetings to receive comments and make 
proposals to change this proposed rule on several dates between 
February 7 and March 23, 2012, and then hold another round of public 
meetings to discuss and receive comments on the proposals, and make 
recommendations on the proposals to the Board, on several dates between 
August 14 and October 17, 2012. The Board will discuss and evaluate 
proposed regulatory changes during a public meeting in Anchorage, AK, 
in January 2013. 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 30, 2012.

ADDRESSES: Public meetings: The Federal Subsistence Board and the 
Subsistence 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-2011-0015, 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 Steve 
Kessler, Regional Subsistence Program Leader, USDA, Forest Service, 
Alaska Region; (907) 743-9461 or [email protected].

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 provides a 
preference for take of fish and wildlife resources for subsistence uses 
on Federal public lands and waters in Alaska. The Secretaries published 
temporary regulations to carry out this program in the Federal Register 
on June 29, 1990 (55 FR 27114), and final regulations were published 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 currently 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;

[[Page 5205]]

     The Alaska Regional Forester, U.S. Forest Service; and
     Two public members appointed by the Secretary of the 
Interior with concurrence of the Secretary of Agriculture.
    Through the Board, these agencies and public members participate in 
the development of regulations for subparts C and D, which, among other 
things, set forth program eligibility and 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 
Subsistence Regional Advisory Council (Council). The 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 
Council members represent varied geographical, cultural, and user 
interests within each region.

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

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

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Region 1--Southeast Regional Council.............  Juneau..................  March 20, 2012.
Region 2--Southcentral Regional Council..........  Anchorage...............  March 13, 2012.
Region 3--Kodiak/Aleutians Regional Council......  Kodiak..................  March 21, 2012.
Region 4--Bristol Bay Regional Council...........  Naknek..................  March 6, 2012.
Region 5--Yukon-Kuskokwim Delta Regional Council.  Bethel..................  February 23, 2012.
Region 6--Western Interior Regional Council......  McGrath.................  February 28, 2012.
Region 7--Seward Peninsula Regional Council......  Nome....................  February 7, 2012.
Region 8--Northwest Arctic Regional Council......  Kotzebue................  March 7, 2012.
Region 9--Eastern Interior Regional Council......  Fairbanks...............  February 29, 2012.
Region 10--North Slope Regional Council..........  Barrow..................  February 15, 2012.
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    During April 2012, 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 28, 2012, written public comments 
will be accepted on the distributed proposals.
    The Board, through the Councils, will hold a second series of 
meetings in August through October 2012, to receive comments on 
specific proposals and to develop recommendations to the Board at the 
following locations in Alaska, on the following dates:

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Region 1--Southeast Regional Council.............  Sitka...................  September 26, 2012.
Region 2--Southcentral Regional Council..........  TBA.....................  October 2, 2012.
Region 3--Kodiak/Aleutians Regional Council......  Sand Point..............  September 5, 2012.
Region 4--Bristol Bay Regional Council...........  TBA.....................  TBA XX, 2012.
Region 5--Yukon-Kuskokwim Delta Regional Council.  Quinhagak...............  October 10, 2012.
Region 6--Western Interior Regional Council......  Aniak...................  October 10, 2012.
Region 7--Seward Peninsula Regional Council......  Nome....................  October 3, 2012.
Region 8--Northwest Arctic Regional Council......  TBA.....................  August 21, 2012.
Region 9--Eastern Interior Regional Council......  Tanana..................  October 16, 2012.
Region 10--North Slope Regional Council..........  TBA.....................  August 14, 2012.
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    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 Council's agenda determines 
the length of each 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, in January 2013. 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 the general fish and wildlife 
regulations, fish and shellfish 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, if applicable;
    c. A description of the regulatory change(s) desired;
    d. A statement explaining why each change is necessary;
    e. Proposed wording changes; and
    f. Any additional information that you believe will help the Board 
in evaluating the proposed change.
    The Board immediately 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, ------.27, and ------.28, subpart D (the general and specific 
regulations governing the subsistence take of fish and shellfish). 
During the January 2013 meeting, the Board may defer review and action 
on some proposals to allow time for 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, Councils, 
or the Board becomes excessive. These deferrals may be based on 
recommendations by the affected 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. A proponent of a proposal may withdraw the 
proposal provided it has not been presented to a Council for action. 
The Board may consider and act on

[[Page 5206]]

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 75 FR 60810 (October 1, 2010). 
Consultation with Alaska Native corporations is based on Public Law 
108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by 
Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 
3267, which provides that: ``The Director of the Office of Management 
and Budget and all Federal agencies shall hereafter consult with Alaska 
Native corporations on the same basis as Indian tribes under Executive 
Order No. 13175.''
    The Alaska National Interest Lands Conservation Act does not 
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, through the Board, will provide Federally recognized 
Tribes and Alaska Native corporations an opportunity to consult on this 
proposed rule.
    The Board will engage in outreach efforts for this proposed rule, 
including a notification letter, to ensure that Tribes and Alaska 
Native corporations 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 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 rulemaking process. The Board will commit to 
efficiently and adequately providing an opportunity to Tribes and 
Alaska Native corporations for consultation in regard to subsistence 
rulemaking.
    The Board will consider Tribes' and Alaska Native corporations' 
information, input, and recommendations, and address their concerns as 
much as practicable.
    Prior to the start of the public regulatory meeting in January, 
2013, the Board will provide Federally recognized Tribes and Alaska 
Native corporations a specific opportunity to consult on this proposed 
rule. Federally recognized Tribes and Alaska Native corporations will 
be notified by mail and telephone and will be given the opportunity to 
attend the consultation in person or via teleconference.

Developing the 2013-14 and 2014-15 Fish/Shellfish Seasons and Harvest 
Limit Regulations

    Subpart C and D regulations are subject to periodic review and 
revision. The Board currently completes the process of revising 
subsistence take of fish and shellfish regulations in odd-numbered 
years and 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 8, 2011 (76 FR 12564) 
for the 2011-13 subparts C and D regulations is the text of this 
proposed rule. These regulations will remain in effect until 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 Sec.  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 
Sec.  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 the periodic subparts C 
and D rules was conducted in accordance with Sec.  810; that evaluation 
also supported the Secretaries' determination that these rules will not 
reach the ``may significantly restrict'' threshold that would require 
notice and hearings under ANILCA Sec.  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 part 242 and 50 CFR part 100: Subsistence hunting and fishing 
applications, permits, reports, and Federal Subsistence Regional 
Advisory Council Membership Application/Nomination and Interview Forms 
(OMB Control No. 1018-0075 expires January 31, 2013).

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget has determined that this 
proposed rule is not significant and has not reviewed this proposed 
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.

[[Page 5207]]

    (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 proposed rule are 
already being harvested and consumed by the local harvester and do not 
result in an additional dollar benefit to the economy. Therefore, 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 proposed 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 proposed 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 Sec. Sec.  3(a) and 3(b)(2) of 
Executive Order 12988, regarding civil justice reform.

Executive Order 13132

    In accordance with Executive Order 13132, the proposed 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 
provide rights to tribes for the subsistence taking of wildlife, fish, 
and shellfish. However, the Board will provide Federally recognized 
Tribes and Alaska Native corporations an opportunity to consult on this 
proposed rule. Consultation with Alaska Native corporations are based 
on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, 
as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 
2004, 118 Stat. 3267, which provides that: ``The Director of the Office 
of Management and Budget and all Federal agencies shall hereafter 
consult with Alaska Native corporations on the same basis as Indian 
tribes under Executive Order No. 13175.''
    The Secretaries, through the Board, will provide a variety of 
opportunities for consultation: commenting on proposed changes to the 
existing rule; engaging in dialogue at the 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 rulemaking process.

Executive Order 13211

    This Executive Order requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. However, this proposed 
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;
     Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian 
Affairs;
     Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife 
Service; and
     Steve Kessler, 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.

Proposed Regulation Promulgation

    For the reasons setout in the preamble, the Federal Subsistence 
Board proposes to amend 36 CFR part 242 and 50 CFR part 100 for the 
2013-14 and 2014-15 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 finalrule for the 2011-13 regulatory period 
(76 FR 12564; March 8, 2011), and the text of the proposed amendments 
to 36 CFR242.25 and 50 CFR 100.25 is the final rule for the 2010-11 and 
2011-12wildlife regulatory period (75 FR 37918; June 30, 2010), as 
modified by anysubsequent Federal Subsistence Board action during 
meetings held February 7 through March 23, 2012.

    Dated: January 12, 2012.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
    Dated: January 12, 2012.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 2012-2008 Filed 2-1-12; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P