[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Proposed Rules]
[Pages 7758-7762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2959]


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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-2011-0004; 70101-1261-0000L6]
RIN 1018-AX52


Subsistence Management Regulations for Public Lands in Alaska--
Subpart B, Federal Subsistence Board

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise the regulations concerning the 
composition of the Federal Subsistence Board (Board). On October 23, 
2009, the Secretary of the Interior announced the initiation of a 
Departmental review of the Federal Subsistence Management Program in 
Alaska. The review focused on how the program is meeting the purposes 
and subsistence provisions of the Alaska National Interest Lands 
Conservation Act of 1980 (ANILCA), and how the program is serving rural 
subsistence users. The review proposed several administrative and 
regulatory changes to strengthen the program and make it more 
responsive to rural users. One proposed change called for adding two 
public members representing rural Alaskan subsistence users to the 
existing Board, which would afford additional regional representation 
and increase stakeholder input in the decisionmaking process.

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, 2011, and March 24, 2011, and to make recommendations on 
the proposed rule to the Federal Subsistence Board. The Board will 
discuss and evaluate proposed regulatory changes during a public 
meeting in Anchorage, AK, on May 3, 2011, and make recommendations on 
the proposed rule to the Secretary of the Interior and the Secretary of 
Agriculture. 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 April 12, 2011.

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-2011-0004, 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

[[Page 7759]]

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 subsistence@fws.gov. For 
questions specific to National Forest System lands, contact Steve 
Kessler, Regional Subsistence Program Leader, USDA, Forest Service, 
Alaska Region; (907) 743-9461 or skessler@fs.fed.us.

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. 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. Only the Secretaries can promulgate 
changes to the subpart A and B regulations.
    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 C and D, which, among other things, set forth 
program eligibility and specific harvest seasons and limits. As the 
Secretaries are responsible for promulgating changes to subparts A and 
B; the Board is assisting the Secretaries in this effort.
    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 
interests within each region.

Proposed Regulatory Changes

    On October 23, 2009, Secretary of the Interior Salazar announced 
the initiation of a Departmental review of the Federal Subsistence 
Management Program in Alaska. The review focused on how the Program is 
meeting the purposes and subsistence provisions of the Alaska National 
Interest Lands Conservation Act of 1980 (ANILCA), and how the Program 
is serving rural subsistence users as envisioned when the program was 
begun in the early 1990s.
    On August 31, 2010, the Secretaries announced the findings of the 
review. The Program review proposed several administrative and 
regulatory changes to strengthen the Program and make it more 
responsive to the concerns of those who rely on it for their 
subsistence needs. One proposal called for adding two public members 
representing rural Alaskan subsistence users to the Federal Subsistence 
Board, which would allow additional regional representation and 
increased stakeholder input in the decisionmaking process. Conforming 
regulatory changes are also proposed to clarify the designation of 
alternates for Federal Board members and to increase the size of a 
quorum.

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:

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Region 1--Southeast Regional Council....  Sitka......................  March 22, 2011.
Region 2--Southcentral Regional Council.  Anchorage..................  March 16, 2011.
Region 3--Kodiak/Aleutians Regional       Kodiak.....................  February 16, 2011.
 Council.
Region 4--Bristol Bay Regional Council..  Naknek.....................  March 9, 2011.
Region 5--Yukon-Kuskokwim Delta Regional  Mtn. Village...............  February 23, 2011.
 Council.
Region 6--Western Interior Regional       Galena.....................  March 1, 2011.
 Council.
Region 7--Seward Peninsula Regional       Nome.......................  February 15, 2011.
 Council.
Region 8--Northwest Arctic Regional       Kotzebue...................  March 18, 2011.
 Council.
Region 9--Eastern Interior Regional       Fairbanks..................  March 3, 2011.
 Council.
Region 10--North Slope Regional Council.  Barrow.....................  March 7, 2011.
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    A notice will be published of specific dates, times, and meeting 
locations in local and statewide newspapers prior to this series of 
meetings. Locations and dates may change based on weather or local 
circumstances. The amount of work on each Regional Council's agenda 
determines the length of each Regional Council meeting.
    The Board will discuss and evaluate proposed changes to the 
subsistence management regulations during a public meeting scheduled to 
be held in Anchorage, AK, on May 3, 2011. The Council Chairs, or their 
designated representatives, will present their respective Councils' 
recommendations at the Board meeting. Additional oral testimony may be 
provided to the Board at that time. At that public meeting, the Board 
will deliberate and make final recommendations to the Secretaries on 
this proposed rule.

[[Page 7760]]

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) and 
the relationship required by statute for consultation and coordination 
with Alaska Native corporations. 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 
rule.
    The Board will engage in outreach efforts for this 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: 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, e-mail, 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 
with 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. The Board will inform the Tribes and Alaska Native 
corporations how their recommendations were considered.

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.
    Several alternatives were considered for the composition of the 
Board including all Federal agency heads and all public members 
representing subsistence users. This proposed regulation adding two 
additional public members to the Board falls within the scope of 
alternatives. For this reason, the impacts described in the FEIS and 
ROD are deemed sufficient for this proposed regulation and require no 
further analysis.
    Even in the absence of the consideration of alternatives in the 
existing programmatic FEIS and ROD, no further NEPA analysis would be 
required in this instance. There are two reasons for this. The first is 
that this action is merely administrative in nature and has no 
environmental impact. The second is that activities of this nature are 
categorically excluded from the requirements of NEPA under both 
Department of the Interior (DOI) regulations and Department of 
Agriculture (DOA) regulations. Specifically, DOI regulations at 43 CFR 
46.210 set forth categorical exclusions for both internal 
organizational changes and the adoption of regulations that are of an 
administrative nature. Similarly, DOA regulations at 7 CFR 1b.3(a) 
provide a categorical exclusion for routine activities such as 
personnel and organizational changes, and similar administrative 
functions.
    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. This analysis 
describes impacts of the alternative Board compositions. This proposed 
action falls within that analysis and no further analysis is warranted.
    During the subsequent environmental assessment process for 
extending fisheries jurisdiction, an evaluation of the effects of this 
rule was conducted in accordance with Sec.  810. That evaluation 
concluded that, because this is merely an administrative action, the 
rule 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 242 and 50 CFR 100: Subsistence hunting and fishing 
applications, permits, and reports, 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 (OMB) has determined that this 
proposed 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

[[Page 7761]]

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 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 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 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 
rule. 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 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 Regional 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 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 
Pat Pourchot, Special Assistant to the Secretary of the Interior for 
Alaska Affairs, Department of the Interior, Anchorage, Alaska. 
Additional assistance was provided by:
     Peter J. Probasco, Office of Subsistence Management, 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.

    For the reasons set out in the preamble, the Secretaries propose to 
amend 36 CFR 242 and 50 CFR 100, 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 would continue 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 paragraphs (b)(1) and (d)(2) to 
read as follows:


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

* * * * *
    (b) * * *
    (1) The voting members of the Board are: A Chair to be appointed by 
the Secretary of the Interior with the concurrence of the Secretary of 
Agriculture; two public members representing rural Alaskan subsistence 
users to be appointed by the Secretary of the Interior with the 
concurrence of the Secretary of Agriculture; the Alaska Regional 
Director, U.S. Fish and Wildlife Service; Alaska Regional Director, 
National Park Service; Alaska Regional Forester, USDA Forest Service; 
the Alaska State Director, Bureau of Land Management; and the Alaska 
Regional Director, Bureau of Indian Affairs. Each Federal agency member 
of the Board may appoint a designee.
* * * * *
    (d) * * *

[[Page 7762]]

    (2) A quorum consists of five members.
* * * * *

    Dated: February 2, 2011.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.

    Dated: January 18, 2011.
Beth G. Pendleton,
Regional Forester, USDA--Forest Service.
[FR Doc. 2011-2959 Filed 2-10-11; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P