[Federal Register Volume 80, Number 213 (Wednesday, November 4, 2015)]
[Rules and Regulations]
[Pages 68245-68248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27996]


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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-2015-0156; FXRS12610700000-156-FF07J00000; 
FBMS#4500086366]
RIN 1018-BA82


Subsistence Management Regulations for Public Lands in Alaska; 
Rural Determinations, Nonrural List

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

ACTION: Direct final rule.

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SUMMARY: This rule revises the list of nonrural areas in Alaska 
identified by the Federal Subsistence Board (Board). Only residents of 
areas that are rural are eligible to participate in the Federal 
Subsistence Management Program on public lands in Alaska. Based on a 
Secretarial review of the rural determination process, and the 
subsequent change in the regulations governing this process, the Board 
is revising the current nonrural determinations to the list that 
existed prior to 2007. Accordingly, the community of Saxman and the 
area of Prudhoe Bay will be removed from the nonrural list. The 
following areas continue to be nonrural, but their boundaries will 
return to their original borders: the Kenai Area; the Wasilla/Palmer 
area; the Homer area; and the Ketchikan area.

DATES: This rule is effective on December 21, 2015 unless we receive 
significant adverse comments on or before December 4, 2015.

ADDRESSES: 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-2015-0156, 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

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Eugene R. Peltola, Jr., 
Office of Subsistence Management; (907) 786-3888 or 
[email protected]. For questions specific to National Forest System 
lands, contact Thomas Whitford, 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 (Program). This program provides 
a preference for take of fish and wildlife resources for subsistence 
uses on Federal public lands and waters in Alaska. Only residents of 
areas identified as rural are eligible to participate in the Program on 
Federal public lands in Alaska. 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 242.1-242.28 and 50 CFR 100.1-100.28, 
respectively.
    Consistent with these regulations, the Secretaries established a 
Federal Subsistence Board (Board) comprising Federal officials and 
public members to administer the Program. One of the Board's 
responsibilities is to determine which communities or areas of the 
State are rural or nonrural. The Secretaries also divided Alaska into 
10 subsistence resource regions, each of which is represented by a 
Regional Advisory Council (Council). The Council members represent 
varied geographical, cultural, and user interests within each region. 
The Councils provide a forum for rural residents with personal 
knowledge of local conditions and resource requirements to have a

[[Page 68246]]

meaningful role in the subsistence management of fish and wildlife on 
Federal public lands in Alaska.

Related Rulemaking

    Elsewhere in today's Federal Register is a final rule that sets 
forth a new process by which the Board will make rural determinations 
(``Subsistence Management Regulations for Public Lands in Alaska; Rural 
Determination Process''). Please see that rule for background 
information on how this new process was developed and the extensive 
Council and public input that was considered. A summary of that 
information follows:
    Until promulgation of the rule mentioned above, Federal subsistence 
regulations at 36 CFR 242.15 and 50 CFR 100.15 had required that the 
rural or nonrural status of communities or areas be reviewed every 10 
years, beginning with the availability of the 2000 census data. Some 
data from the 2000 census was not compiled and available until 2005, so 
the Board published a proposed rule in 2006 to revise the list of 
nonrural areas recognized by the Board (71 FR 46416, August 14, 2006). 
The final rule published in the Federal Register on May 7, 2007 (72 FR 
25688), and changed the rural determination for several communities or 
areas in Alaska. These communities had 5 years following the date of 
publication to come into compliance.
    The Board met on January 20, 2012, and, among other things, decided 
to extend the compliance date of its 2007 final rule on rural 
determinations. A final rule published March 1, 2012 (77 FR 12477), 
that extended the compliance date until either the rural determination 
process and findings review were completed or 5 years, whichever came 
first. The 2007 regulations have remained in titles 36 and 50 of the 
CFR unchanged since their effective date.
    The Board followed that action with a request for comments and 
announcement of public meetings (77 FR 77005; December 31, 2012) to 
receive public, Tribal, and Alaska Native Corporations input on the 
rural determination process. At their fall 2013 meetings, the Councils 
provided a public forum to hear from residents of their regions, 
deliberate on the rural determination process, and provide 
recommendations for changes to the Board. The Board also held hearings 
in Barrow, Ketchikan, Sitka, Kodiak, Bethel, Anchorage, Fairbanks, 
Kotzebue, Nome, and Dillingham to solicit comments on the rural 
determination process, and public testimony was recorded. Government-
to-government tribal consultations on the rural determination process 
were held between members of the Board and Federally recognized Tribes 
of Alaska. Additional consultations were held between members of the 
Board and Alaska Native Corporations.
    Altogether, the Board received 475 substantive comments from 
various sources, including individuals, members of the Councils, and 
other entities or organizations, such as Alaska Native Corporations and 
borough governments. In general, this information indicated a broad 
dissatisfaction with the current rural determination process.
    Based on this information, the Board at their public meeting held 
on April 17, 2014, elected to recommend a simplification of the process 
by determining which areas or communities are nonrural in Alaska; all 
other communities or areas would, therefore, be rural. The Board would 
make nonrural determinations using a comprehensive approach that 
considers population size and density, economic indicators, military 
presence, industrial facilities, use of fish and wildlife, degree of 
remoteness and isolation, and any other relevant material, including 
information provided by the public. The Board would rely heavily on the 
recommendations of the Councils. The Board developed a proposal that 
simplifies the process of rural determinations and submitted its 
recommendation to the Secretaries on August 15, 2014.
    On November 24, 2014, the Secretaries requested that the Board 
initiate rulemaking to pursue the regulatory changes recommended by the 
Board. The Secretaries also requested that the Board obtain Council 
recommendations and public input, and conduct Tribal and Alaska Native 
Corporation consultation on the proposed changes.
    The Departments published a proposed rule on January 28, 2015 (80 
FR 4521), to revise the regulations governing the rural determination 
process in subpart B of 36 CFR part 242 and 50 CFR part 100. Following 
a process that involved substantial Council and public input, the 
Departments published the final rule that may be found elsewhere in 
today's Federal Register.

Direct Final Rule

    During that process, the Board went on to address a starting point 
for nonrural communities and areas. The May 7, 2007 (72 FR 25688), 
final rule was justified by the Board's January 3, 1991, notice (56 FR 
236) adopting final rural and nonrural determinations and the final 
rule of May 7, 2002 (67 FR 30559), amending 36 CFR 242.23(a) and 50 CFR 
100.23(a) to add the Kenai Peninsula communities (Kenai, Soldotna, 
Sterling, Nikiski, Salamatof, Kalifornsky, Kasilof, Clam Gulch, Anchor 
Point, Homer, Kachemak City, Fritz Creek, Moose Pass, and Seward) to 
the list of areas determined to be nonrural. The 2007 rule added the 
village of Saxman and the area of Prudhoe Bay to the nonrural list and 
expanded the nonrural boundaries of the Kenai Area; the Wasilla/Palmer 
area; the Homer area; and the Ketchikan Area.
    Since the 2007 final rule (72 FR 25688; May 7, 2007) was 
contentious, and so many comments were received objecting to the 
changes imposed by that rule, the Board has decided to return to the 
rural determinations prior to the 2007 final rule. The Board further 
decided that the most expedient method to enact their decisions was to 
publish this direct final rule adopting the pre-2007 nonrural 
determinations. As a result, the Board has determined the following 
areas to be nonrural: Fairbanks North Star Borough; Homer area--
including Homer, Anchor Point, Kachemak City, and Fritz Creek; Juneau 
area--including Juneau, West Juneau, and Douglas; Kenai area--including 
Kenai, Soldotna, Sterling, Nikiski, Salamatof, Kalifornsky, Kasilof, 
and Clam Gulch; Ketchikan area--including Ketchikan City, Clover Pass, 
North Tongass Highway, Ketchikan East, Mountain Point, Herring Cove, 
Saxman East, Pennock Island, and parts of Gravina Island; Municipality 
of Anchorage; Seward area--including Seward and Moose Pass, Valdez, and 
Wasilla area--including Palmer, Wasilla, Sutton, Big Lake, Houston, and 
Bodenberg Butte.
    These final regulations reflect Board review and consideration of 
Council recommendations, Tribal and Alaska Native Corporations 
government-to-government tribal consultations, and public comments. 
Based on concerns expressed by some of the Councils and members of the 
public, the Board went on to direct staff to develop options for the 
Board to consider and for presentation to the Councils, to address 
future nonrural determinations. These options will be presented to the 
Board and Chairs of each Council at the January 12, 2016, public 
meeting.
    We are publishing this rule without a prior proposal because we 
view this action as an administrative action by the Federal Subsistence 
Board. This rule will be effective, as specified above in DATES, unless 
we receive significant

[[Page 68247]]

adverse comments on or before the deadline set forth in DATES. 
Significant adverse comments are comments that provide strong 
justifications why the rule should not be adopted or for changing the 
rule. If we receive significant adverse comments, we will publish a 
notice in the Federal Register withdrawing this rule before the 
effective date. If no significant adverse comments are received, we 
will publish a document in the Federal Register confirming the 
effective date.
    Because this rule concerns public lands managed by an agency or 
agencies in both the Departments of Agriculture and the Interior, 
identical text will be incorporated into 36 CFR part 242 and 50 CFR 
part 100.

Conformance With Statutory and Regulatory Authorities

Administrative Procedure Act Compliance

    In compliance with Administrative Procedure Act, the Board has 
provided extensive opportunity for public input and involvement in its 
efforts to improve the rural determination process as described in the 
related final rule published elsewhere in today's Federal Register. In 
addition, anyone with concerns about this rulemaking action may submit 
comments as specified in DATES and ADDRESSES.

National Environmental Policy Act Compliance

    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 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 rule 
does not contain any new collections of information that require OMB 
approval. OMB has reviewed and approved the collections of information 
associated with the subsistence regulations at 36 CFR part 242 and 50 
CFR part 100, and assigned OMB Control Number 1018-0075, which expires 
February 29, 2016.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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 two 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

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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 summary impact statement. 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, Title VIII, 
does not provide specific rights to tribes for the subsistence taking 
of wildlife, fish, and shellfish. However, the Secretaries, through the 
Board, provided Federally recognized Tribes and Alaska Native 
corporations opportunities to consult on this 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, provided a variety of 
opportunities for consultation on the rural determination process: 
commenting on changes under consideration for the existing regulations; 
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.
    Since 2007 multiple opportunities were provided by the Board for 
Federally recognized Tribes and Alaska Native Corporations to consult 
on the subject of rural determinations. Federally recognized Tribes and 
Alaska Native Corporations were notified by mail and telephone and were 
given the opportunity to attend in person or via teleconference.

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 
Eugene R. Peltola, Jr. 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;
     Mary McBurney, Alaska Regional Office, National Park 
Service;
     Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian 
Affairs;
     Trevor T. Fox, Alaska Regional Office, U.S. Fish and 
Wildlife Service; and
     Thomas Whitford, Alaska Regional Office, U.S. Forest 
Service.

Authority

    This rule is issued under the authority of Title VIII of the Alaska 
National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-
3126).

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.

Regulation Promulgation

    For the reasons set out in the preamble, the Secretaries amend 36 
CFR part 242 and 50 CFR part 100 as set forth below.

PART--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA

0
1. The authority citation for both 36 CFR part 242 and 50 CFR part 100 
continues to read as follows:

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

Subpart C--Board Determinations

0
2. In subpart C of 36 CFR part 242 and 50 CFR part 100, Sec. _.23 is 
revised to read as follows:


Sec. _.23  Rural determinations.

    (a) The Board has determined all communities and areas to be rural 
in accordance with Sec.  __.15 except the following: Fairbanks North 
Star Borough; Homer area--including Homer, Anchor Point, Kachemak City, 
and Fritz Creek; Juneau area--including Juneau, West Juneau, and 
Douglas; Kenai area--including Kenai, Soldotna, Sterling, Nikiski, 
Salamatof, Kalifornsky, Kasilof, and Clam Gulch; Ketchikan area--
including Ketchikan City, Clover Pass, North Tongass Highway, Ketchikan 
East, Mountain Point, Herring Cove, Saxman East, Pennock Island, and 
parts of Gravina Island; Municipality of Anchorage; Seward area--
including Seward and Moose Pass, Valdez, and Wasilla/Palmer area--
including Wasilla, Palmer, Sutton, Big Lake, Houston, and Bodenberg 
Butte.
    (b) You may obtain maps delineating the boundaries of nonrural 
areas from the U.S. Fish and Wildlife Service at the Alaska Regional 
Office address provided at 50 CFR 2.2(g), or on the Web at https://www.doi.gov/subsistence.

    Dated: September 30, 2015.
Eugene R. Peltola, Jr.,
Assistant Regional Director, U.S. Fish and Wildlife Service, Acting 
Chair, Federal Subsistence Board.
    Dated: September 30, 2015.
Thomas Whitford,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 2015-27996 Filed 10-30-15; 8:45 am]
 BILLING CODE 3410-11-4333-15-P