Subsistence Management Regulations for Public Lands in Alaska - 2011-12 and 2012-13: Subsistence Taking of Fish and Shellfish Regulations
Federal Register: January 15, 2010 (Volume 75, Number 10)
Proposed Rules
Page 2448-2451
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr15ja10-12
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.
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 subsistence@fws.gov. 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
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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
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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
