Subsistence Management Regulations for Public Lands in Alaska-2010-11 and 2011-12 Subsistence Taking of Wildlife Regulations; Subsistence Taking of Fish on the Yukon River Regulations, 37918-37969 [2010-15195]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service
• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 125 (Wednesday, June 30, 2010)]
[Rules and Regulations]
[Pages 37918-37969]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15195]



[[Page 37917]]

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Part III





Department of Agriculture





Forest Service



36 CFR Part 242



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Department of the Interior





Fish and Wildlife Service

50 CFR Part 100



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 Subsistence Management Regulations for Public Lands in Alaska--2010-11 
and 2011-12 Subsistence Taking of Wildlife Regulations; Subsistence 
Taking of Fish on the Yukon River Regulations; Final Rule

Federal Register / Vol. 75, No. 125 / Wednesday, June 30, 2010 / 
Rules and Regulations

[[Page 37918]]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 242

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 100

[Docket No. FWS-R7-SM-2009-0001; 70101-1261-0000L6]
RIN 1018-AW30


Subsistence Management Regulations for Public Lands in Alaska--
2010-11 and 2011-12 Subsistence Taking of Wildlife Regulations; 
Subsistence Taking of Fish on the Yukon River Regulations

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

ACTION: Final rule.

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SUMMARY: This final rule establishes regulations for seasons, harvest 
limits, methods, and means related to taking of wildlife for 
subsistence uses in Alaska during the 2010-11 and 2011-12 regulatory 
years. The Federal Subsistence Board (Board) completes the biennial 
process of revising subsistence hunting and trapping regulations in 
even-numbered years and subsistence fishing and shellfish regulations 
in odd-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 biennial cycle. 
This rulemaking replaces the wildlife taking regulations that expire on 
June 30, 2010. This rule also revises customary and traditional use 
determinations and the regulations defining size limitations for 
gillnet mesh used for harvesting salmon in the Yukon River drainage.

DATES: Sections ----.24(a)(1), ----.25 and ----.26 are effective July 
1, 2010. Section ----.27(i)(3)(xiii)(A) is effective April 1, 2011, 
through March 31, 2011.

ADDRESSES: The Board meeting transcripts are available for review at 
the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 
121, Anchorage, Alaska 99503, or on the Office of Subsistence 
Management Web site (https://alaska.fws.gov/asm/index.cfml).

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, 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 grants 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). These regulations have subsequently been 
amended several 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.

Federal Subsistence Board

    Consistent with subpart B of these regulations, the Secretaries 
established a Federal Subsistence Board to administer the Federal 
Subsistence Management Program. The Board comprises:
     Chair, appointed by the Secretary of the Interior with 
concurrence of the Secretary of Agriculture;
     Alaska Regional Director, U.S. Fish and Wildlife Service;
     Alaska Regional Director, U.S. National Park Service;
     Alaska State Director, U.S. Bureau of Land Management;
     Alaska Regional Director, U.S. Bureau of Indian Affairs; 
and
     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 they continue to work together on regularly revising the 
subpart D regulations, which, among other things, set forth specific 
harvest seasons and limits.

Federal Subsistence Regional Advisory Councils

    In administration of the Program, Alaska is divided into 10 
subsistence resource regions, each of which is represented by a 
Regional Advisory Council. The Regional Advisory Councils provide a 
forum for rural residents with personal knowledge of local conditions 
and resources to have a meaningful role in the subsistence management 
of fish and wildlife on Federal public lands in Alaska. The Regional 
Advisory Council members represent diverse geographical, cultural, and 
user interests within each region.
    The Board addresses customary and traditional use determinations 
during the applicable biennial cycle. Section ----.24 (customary and 
traditional use determinations) was originally published in the Federal 
Register on May 29, 1992 (57 FR 22940). The regulations at 36 CFR 242.4 
and 50 CFR 100.4 define ``customary and traditional use'' as ``a long-
established, consistent pattern of use, incorporating beliefs and 
customs which have been transmitted from generation to generation* * * 
.'' Since 1992, the Board has made a number of customary and 
traditional use determinations at the request of affected subsistence 
users. Those modifications, along with some administrative corrections, 
were published in the Federal Register as follows:

                    Modifications to Sec.   ----.24.
------------------------------------------------------------------------
                                                Rule made changes to the
  Federal Register citation        Date of       following provisions of
                                 publication:           ----.24:
------------------------------------------------------------------------
59 FR 27462..................  May 27, 1994...  Wildlife and Fish/
                                                 Shellfish.
59 FR 51855..................  October 13,      Wildlife and Fish/
                                1994.            Shellfish.
60 FR 10317..................  February 24,     Wildlife and Fish/
                                1995.            Shellfish.
61 FR 39698..................  July 30, 1996..  Wildlife and Fish/
                                                 Shellfish.
62 FR 29016..................  May 29, 1997...  Wildlife and Fish/
                                                 Shellfish.
63 FR 35332..................  June 29, 1998..  Wildlife and Fish/
                                                 Shellfish.

[[Page 37919]]

 
63 FR 46148..................  August 28, 1998  Wildlife and Fish/
                                                 Shellfish.
64 FR 1276...................  January 8, 1999  Fish/Shellfish.
64 FR 35776..................  July 1, 1999...  Wildlife.
65 FR 40730..................  June 30, 2000..  Wildlife.
66 FR 10142..................  February 13,     Fish/Shellfish.
                                2001.
66 FR 33744..................  June 25, 2001..  Wildlife.
67 FR 5890...................  February 7,      Fish/Shellfish.
                                2002.
67 FR 43710..................  June 28, 2002..  Wildlife.
68 FR 7276...................  February 12,     Fish/Shellfish.
                                2003.
------------------------------------------------------------------------
Note: The Board met May 20-22, 2003, but did not make any additional
 customary and traditional use determinations.
------------------------------------------------------------------------
69 FR 5018...................  February 3,      Fish/Shellfish.
                                2004.
69 FR 40174..................  July 1, 2004...  Wildlife.
70 FR 13377..................  March 21, 2005.  Fish/Shellfish.
70 FR 36268..................  June 22, 2005..  Wildlife.
71 FR 15569..................  March 29, 2006.  Fish/Shellfish.
71 FR 37642..................  June 30, 2006..  Wildlife.
72 FR 12676..................  March 16, 2007.  Fish/Shellfish.
------------------------------------------------------------------------
Note: The Board met December 11-13, 2007, but did not make any
 additional customary and traditional use determinations.
------------------------------------------------------------------------
72 FR 73426..................  December 27,     Wildlife/Fish.
                                2007.
73 FR 35726..................  June 26, 2008..  Wildlife.
74 FR 14049..................  March 30, 2009.  Fish/Shellfish.
------------------------------------------------------------------------

Current Rule for Wildlife

    The Departments published a proposed rule on May 15, 2009 (74 FR 
22867), to amend the wildlife sections of subparts C and D of 36 CFR 
part 242 and 50 CFR part 100. The proposed rule opened a comment 
period, which closed on November 5, 2009. The Departments advertised 
the proposed rule by mail, radio, and newspaper. During that period, 
the Regional Councils met and, in addition to other Regional Council 
business, received suggestions for proposals from the public. The Board 
received a total of 107 proposals for changes to subparts C and D. 
After the comment period closed, the Board prepared a booklet 
describing the proposals and distributed it to the public. The 
proposals were also available online. The public then had an additional 
30 days in which to comment on the proposals for changes to the 
regulations.
    The 10 Regional Advisory Councils met again, received public 
comments, and formulated their recommendations to the Board on 
proposals for their respective regions. The Regional Advisory Councils 
had a substantial role in reviewing the proposed rule and making 
recommendations for the final rule. Moreover, a Council Chair, or a 
designated representative, presented each Council's recommendations at 
the Board meeting on May 18-20, 2010. These final regulations reflect 
Board review and consideration of Regional Advisory Council 
recommendations and public comments. The public received extensive 
opportunity to review and comment on all changes. In section ----
--.24(a)(1) corrections to the spelling of certain village names and an 
updated format have been made, resulting in a more readable document.
    Of the 107 proposals, 38 were on the Board's regular agenda and 69 
were on the consensus agenda. The consensus agenda is made up of 
proposals for which there is agreement among the affected Subsistence 
Regional Advisory Councils, a majority of the Interagency Staff 
Committee voting members, and the Alaska Department of Fish and Game 
concerning a proposed regulatory action. Anyone may request that the 
Board remove a proposal from the consensus agenda and place it on the 
non-consensus agenda. The Board votes en masse on the consensus agenda 
after deliberation and action on all other proposals. Of the proposals 
on the consensus agenda, the Board adopted 16, adopted 15 with 
modification, rejected 29, deferred 6, and took no action on 3. 
Analysis and justification for the action taken on each proposal on the 
consensus agenda are available for review at the Office of Subsistence 
Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, Alaska 
99503, or on the Office of Subsistence Management Web site (https://alaska.fws.gov/asm/index.cfml). Of the proposals on the regular agenda, 
the Board adopted 11, adopted 14 with modification, rejected 6, 
deferred 5, and took no action on 2.

Current Rule for Fish

    The Departments published a proposed rule on April 17, 2008 (73 FR 
20887), to amend the fish and shellfish sections of subparts C and D of 
36 CFR part 242 and 50 CFR part 100. The proposed rule opened a comment 
period, which closed on June 30, 2008. During February and March 2008, 
the Regional Advisory Councils met and received suggestions for 
proposals from the public. The Board received a total of 15 proposals 
for changes to subparts C and D. After the comment period closed, the 
Board prepared a booklet describing the proposals and distributed it to 
the public. The proposals were also available online. The public then 
had an additional 30 days in which to comment on the proposals for 
changes to the regulations.
    The 10 Regional Advisory Councils met again, received public 
comments, and formulated their recommendations to the Board on 
proposals for their respective regions. The Regional Councils had a 
substantial role in reviewing the proposed rule and making 
recommendations for the final rule. The Board met on January 13-15, 
2009. During that meeting, the Board decided to further defer two 
proposals for the Yukon River that had initially been deferred in July 
2008 to a point in time not to exceed April 2009. The new deferment 
would not go beyond April 2010. This action allowed more time to gather 
additional evidence on the proposals, address the Board's concern

[[Page 37920]]

regarding unnecessary restrictions on subsistence users, and allowed 
time for the Alaska Board of Fisheries to consider similar action. 
After public notice, the Board met again on April 13, 2010, and 
addressed these two proposals. The Board adopted one with modification 
and took no action on the second.

Summary of Non-Consensus Proposals Rejected or Deferred by the Board

    The Board rejected, deferred, or took no action on 14 non-consensus 
proposals. The rejected proposals were recommended for rejection by one 
or more of the Regional Councils unless noted below.
    The Board continued to defer a proposal, submitted in 2008, to 
remove unit-specific regulations related to the statewide sale of brown 
bear handicrafts made of skin, hide, pelt, or fur and then limit the 
sale of brown bear handicrafts made of claws, bones, teeth, sinew, or 
skulls to occur only between Federally qualified subsistence users. 
This deferment will allow the Federal-State workgroup, which includes 
Regional Advisory Council representatives, to complete its work.
    The Board rejected a proposal to restrict the taking of deer in 
parts of Unit 4 to residents of Hoonah based on concerns that it would 
be detrimental to the satisfaction of rural subsistence needs and it 
was not supported by substantial evidence since measures are already in 
place that address the concerns during the deer population recovery. 
This action was contrary to the Council recommendation.
    The Board took no action on a proposal for moose in Unit 13E based 
on a request from the proponent to withdraw the proposal.
    The Board rejected a proposal to add black bears to the species 
list for furbearers in Units 12, 20, and 25. This proposal was found to 
violate recognized principles of wildlife conservation. This action was 
contrary to one of the two Council recommendations.
    The Board rejected a proposal that would have required that moose 
meat remain on the bone until the meat was removed from the field in 
Unit 25. This proposal was found unnecessarily restrictive and 
therefore detrimental to the satisfaction of subsistence needs. This 
action was contrary to the Council recommendation.
    The Board rejected a proposal to exclude residents of Fort Greely 
from the customary and traditional use determinations for caribou and 
moose based on concerns that it was not supported by substantial 
evidence and would be detrimental to the satisfaction of subsistence 
needs for some users. This action was contrary to the Council 
recommendation.
    The Board deferred a proposal to increase the harvest limit for 
brown bears in Unit 25. This action was taken to allow a workgroup time 
to develop conservation plans, and then to address this proposal and 
provide recommendations that could align Federal and State regulations. 
This deferral would not extend past the next wildlife cycle. The 
Board's intent is to take action on this proposal when the workgroup 
completes its recommendation.
    The Board deferred a proposal to increase the harvest limit for 
black bears in Unit 25. This action was taken to allow time for an 
ongoing study to address black bear population density in the area. The 
Board will address this action following completion of the study.
    The Board rejected a proposal to rescind the delegated authority 
given to a field office manager and to decrease the harvest limit for 
caribou in Unit 13. This proposal would have been unnecessarily 
restrictive to subsistence users and would remove management 
flexibility to address conservation concerns.
    The Board rejected a proposal to adjust the harvest limit and 
shorten the season for moose in Unit 13. This proposal would have been 
unnecessarily restrictive to subsistence users.
    The Board deferred a proposal to establish a joint Federal-State 
hunt for Chisana caribou in Unit 12. This action was taken to allow 
time for the final management plan to be completed for the Chisana 
caribou herd, as well as to address concerns that were raised by the 
public during review of the proposal.
    The Board deferred a proposal to recognize customary and 
traditional uses of moose for Unit 19A residents of Aniak, Chuathbaluk, 
Kalskag, and Lower Kalskag in a portion Unit 21E to allow a workgroup 
to be established to address subsistence users' concerns.
    The Board took no action on a proposal that would have reduced the 
depth of gillnets used to harvest salmon in the Yukon River drainage 
based on a lack of substantial evidence. This action was different than 
one of the four Council recommendations; that Council's recommendation 
was to oppose the proposal.

Summary of Non-Consensus Proposals Adopted by the Board

    The Board adopted or adopted with modification 36 non-consensus 
proposals. Modifications were suggested by the affected Regional 
Council(s), developed during the analysis process, or developed during 
the Board's public deliberations. All of the adopted proposals were 
recommended for adoption by at least one of the Regional Councils 
unless noted below.

Statewide

    The Board adopted four proposals which do not affect wildlife 
populations, but clarify existing regulations or simplify regulations 
by use of delegation of authority letters.

Southeast Alaska

    The Board adopted two proposals, one with modification to delegate 
in-season management authority for wildlife on a species-by-species 
basis, by letter, to the same managers as presently identified in 
regulation. This action simplifies current regulations.
    The Board adopted a proposal to close marten trapping in the Kuiu 
Island portion of Unit 3 based on conservation concerns. The season 
will reopen for Federally qualified users on July 1, 2012.
    The Board adopted a proposal to recognize customary and traditional 
uses of moose for residents of Units 1, 2, 3, 4, and 5 in Unit 1C based 
on the eight factors for determining customary and traditional use, and 
took no action on a similar proposal based on this action.
    The Board adopted a proposal with modification to shorten the 
wolverine trapping season in five units based on conservation concerns.

Southcentral Alaska

    The Board adopted two proposals to recognize customary and 
traditional uses of caribou and moose for residents of Hope and Sunrise 
in Unit 7 based on the eight factors for determining customary and 
traditional use, and established a caribou season by Federal 
registration permit to allow opportunity for subsistence users.
    The Board adopted a proposal to independently manage the wolverine 
trapping and lynx seasons in Unit 11 based on its benefit to 
subsistence users and a stable wolverine population.

Yukon-Kuskokwim Delta

    The Board adopted a proposal with modification, to limit the pool 
of eligible users for moose on the Kuskokwim River segment of Unit 18, 
based on an ANILCA 804 analysis.
    The Board adopted a proposal with modification to increase the 
harvest limit and length of season for moose in Unit 18, thereby 
providing additional

[[Page 37921]]

opportunity for subsistence users in the lower Yukon areas of Unit 18. 
This action was based on a healthy moose population.
    The Board adopted a proposal with modification to allow the take of 
moose from a boat under power in a portion of Unit 18 based on current 
practices of subsistence users in that area.

Western Interior

    The Board adopted a proposal with modification to adjust the 
harvest seasons and limits for moose in Unit 24B to provide opportunity 
for subsistence users and to align with Alaska Board of Game action.
    The Board adopted a proposal to shift the season for moose and 
align Federal and State seasons in portions of Units 21D, 24C, and 24D 
and to establish ``to be announced'' seasons to allow additional 
opportunity for subsistence users while addressing conservation 
concerns.

Seward Peninsula

    The Board adopted a proposal with modification to lift the closure 
to harvest coyotes in Unit 22. This allows individuals the opportunity 
to hunt and trap under State regulations.
    The Board adopted a proposal to include Unit 22 in the existing 
regulations that allow the use of brown bear parts to make handicrafts 
for sale. This allows for increased utilization of brown bears 
harvested by subsistence users.
    The Board adopted a proposal to allow the harvest of up to three 
musk oxen and one moose during regularly established seasons in Unit 
22E for the Kingikmiut Dance Festival based on its benefit to 
subsistence users.
    The Board adopted a proposal with modification to lengthen the 
season for moose in Unit 22A to provide additional harvest opportunity 
for subsistence users.

Eastern Interior

    The Board adopted a proposal to lengthen the moose season in Unit 
25C to match the seasons in adjoining units. This provides additional 
harvest opportunity to subsistence users.
    The Board adopted a proposal with modification to lengthen the 
season for moose in Unit 25D; this action provides additional harvest 
opportunity for subsistence users.
    The Board adopted a proposal to decrease the harvest limit and 
adjust the season for wolves in Unit 20C, that portion within Denali 
National Park and Preserve. This action was requested by subsistence 
users and is not likely to be detrimental to the satisfaction of 
subsistence needs.

Multi-Region

    The Board adopted a proposal with modification to increase the 
length of the winter season and to require a Federal permit for moose 
in Unit 21E. This action provides additional harvest opportunity for 
subsistence users.

Yukon River

    The Board adopted a proposal with modification to limit the size of 
gillnet stretch mesh used to harvest salmon in the Yukon River 
drainage. This action was based on conservation concerns and will 
become effective in 2011 to match a phase-in period adopted by the 
Alaska Board of Fisheries. This action was contrary to two of the four 
Council recommendations.
    These final regulations reflect Board review and consideration of 
Regional Council recommendations and public comments. 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

    The Board has provided extensive opportunity for public input and 
involvement in compliance with Administrative Procedure Act 
requirements, including publishing a proposed rule in the Federal 
Register, participation in multiple Regional Council meetings, 
additional public review and comment on all proposals for regulatory 
change, and opportunity for additional public comment during the Board 
meeting prior to deliberation. Additionally, an administrative 
mechanism exists (and has been used by the public) to request 
reconsideration of the Board's decision on any particular proposal for 
regulatory change (36 CFR 242.20 and 50 CFR 100.20). Therefore, the 
Board believes that sufficient public notice and opportunity for 
involvement have been given to affected persons regarding Board 
decisions.
    In the more than 20 years the Program has been operating, no 
benefit to the public has been demonstrated by delaying the effective 
date of the subsistence regulations. A lapse in regulatory control 
could affect the continued viability of fish or wildlife populations 
and future subsistence opportunities for rural Alaskans, and would 
generally fail to serve the overall public interest. Therefore, the 
Board finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule 
effective upon the date set forth in DATES to ensure continued 
operation of the subsistence program.

National Environmental Policy Act Compliance

    A Draft Environmental Impact Statement (DEIS) for developing a 
Federal Subsistence Management Program was distributed for public 
comment on October 7, 1991. That document described the major issues 
associated with Federal subsistence management as identified through 
public meetings, written comments, and staff analyses and examined the 
environmental consequences of four alternatives. Proposed regulations 
(subparts A, B, and C) that would implement the preferred alternative 
were included in the DEIS as an appendix. The DEIS and the proposed 
administrative regulations presented a framework for a regulatory cycle 
regarding subsistence hunting and fishing regulations (subpart D). The 
Final Environmental Impact Statement (FEIS) was published on February 
28, 1992.
    Based on the public comments received, the analysis contained in 
the FEIS, and the recommendations of the Federal Subsistence Board and 
the Department of the Interior's Subsistence Policy Group, the 
Secretary of the Interior, with the concurrence of the Secretary of 
Agriculture, through the U.S. Department of Agriculture-Forest Service, 
implemented Alternative IV as identified in the DEIS and FEIS (Record 
of Decision on Subsistence Management for Federal Public Lands in 
Alaska (ROD), signed April 6, 1992). The DEIS and the selected 
alternative in the FEIS defined the administrative framework of a 
regulatory cycle for subsistence hunting and fishing regulations. The 
final rule for subsistence management regulations for public lands in 
Alaska, subparts A, B, and C, implemented the Federal Subsistence 
Management Program and included a framework for a regulatory cycle for 
the subsistence taking of wildlife and fish. The following Federal 
Register documents pertain to this rulemaking:

[[Page 37922]]



 Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C: Federal Register Documents
                                          Pertaining to the Final Rule
----------------------------------------------------------------------------------------------------------------
     Federal Register citation       Date of publication          Category                    Details
----------------------------------------------------------------------------------------------------------------
57 FR 22940.......................  May 29, 1992.........  Final Rule...........  ``Subsistence Management
                                                                                   Regulations for Public Lands
                                                                                   in Alaska; Final Rule'' was
                                                                                   published in the Federal
                                                                                   Register.
64 FR 1276........................  January 8, 1999......  Final Rule...........  Amended the regulations to
                                                                                   include subsistence
                                                                                   activities occurring on
                                                                                   inland navigable waters in
                                                                                   which the United States has a
                                                                                   reserved water right and to
                                                                                   identify specific Federal
                                                                                   land units where reserved
                                                                                   water rights exist. Extended
                                                                                   the Federal Subsistence
                                                                                   Board's management to all
                                                                                   Federal lands selected under
                                                                                   the Alaska Native Claims
                                                                                   Settlement Act and the Alaska
                                                                                   Statehood Act and situated
                                                                                   within the boundaries of a
                                                                                   Conservation System Unit,
                                                                                   National Recreation Area,
                                                                                   National Conservation Area,
                                                                                   or any new national forest or
                                                                                   forest addition, until
                                                                                   conveyed to the State of
                                                                                   Alaska or to an Alaska Native
                                                                                   Corporation. Specified and
                                                                                   clarified the Secretaries'
                                                                                   authority to determine when
                                                                                   hunting, fishing, or trapping
                                                                                   activities taking place in
                                                                                   Alaska off the public lands
                                                                                   interfere with the
                                                                                   subsistence priority.
66 FR 31533.......................  June 12, 2001........  Interim Rule.........  Expanded the authority that
                                                                                   the Board may delegate to
                                                                                   agency field officials and
                                                                                   clarified the procedures for
                                                                                   enacting emergency or
                                                                                   temporary restrictions,
                                                                                   closures, or openings.
67 FR 30559.......................  May 7, 2002..........  Final Rule...........  Amended the operating
                                                                                   regulations in response to
                                                                                   comments on the June 12,
                                                                                   2001, interim rule. Also
                                                                                   corrected some inadvertent
                                                                                   errors and oversights of
                                                                                   previous rules.
68 FR 7703........................  February 18, 2003....  Direct Final Rule....  Clarified how old a person
                                                                                   must be to receive certain
                                                                                   subsistence use permits and
                                                                                   removed the requirement that
                                                                                   Regional Councils must have
                                                                                   an odd number of members.
68 FR 23035.......................  April 30, 2003.......  Affirmation of Direct  Because no adverse comments
                                                            Final Rule.            were received on the direct
                                                                                   final rule (67 FR 30559), the
                                                                                   direct final rule was
                                                                                   adopted.
69 FR 60957.......................  October 14, 2004.....  Final Rule...........  Clarified the membership
                                                                                   qualifications for Regional
                                                                                   Advisory Council membership
                                                                                   and relocated the definition
                                                                                   of ``regulatory year'' from
                                                                                   subpart A to subpart D of the
                                                                                   regulations.
70 FR 76400.......................  December 27, 2005....  Final Rule...........  Revised jurisdiction in marine
                                                                                   waters and clarified
                                                                                   jurisdiction relative to
                                                                                   military lands.
71 FR 49997.......................  August 24, 2006......  Final Rule...........  Revised the jurisdiction of
                                                                                   the subsistence program by
                                                                                   adding submerged lands and
                                                                                   waters in the area of
                                                                                   Makhnati Island, near Sitka,
                                                                                   AK. This allowed subsistence
                                                                                   users to harvest marine
                                                                                   resources in this area under
                                                                                   seasons, harvest limits, and
                                                                                   methods specified in the
                                                                                   regulations.
72 FR 25688.......................  May 7, 2007..........  Final Rule...........  Revised nonrural
                                                                                   determinations.
----------------------------------------------------------------------------------------------------------------

    An environmental assessment was prepared in 1997 on the expansion 
of Federal jurisdiction over fisheries and is available from the office 
listed under FOR FURTHER INFORMATION CONTACT. The Secretary of the 
Interior with the concurrence of the Secretary of Agriculture 
determined that the expansion of Federal jurisdiction did 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 
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, 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 
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

[[Page 37923]]

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 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 
provided 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;
     Dr. Glenn Chen and Patricia Petrivelli, 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.

Regulation Promulgation

0
For the reasons set out in the preamble, the Federal Subsistence Board 
amends title 36, part 242, and title 50, part 100, of the Code of 
Federal Regulations, 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.  --
--.24(a)(1) is revised to read as follows:


Sec.  ----.24  Customary and traditional use determinations.

    (a) * * *
    (1) Wildlife determinations. The rural Alaska residents of the 
listed communities and areas have a customary and traditional use of 
the specified species on Federal public lands within the listed areas:

------------------------------------------------------------------------
             Area                    Species           Determination
------------------------------------------------------------------------
Unit 1C.......................  Black Bear.......  Residents of Unit 1C,
                                                    1D, 3, Hoonah,
                                                    Pelican, Point
                                                    Baker, Sitka, and
                                                    Tenakee Springs.

[[Page 37924]]

 
Unit 1A.......................  Brown Bear.......  Residents of Unit 1A,
                                                    except no
                                                    subsistence for
                                                    residents of Hyder.
Unit 1B.......................  Brown Bear.......  Residents of Unit 1A,
                                                    Petersburg, and
                                                    Wrangell, except no
                                                    subsistence for
                                                    residents of Hyder.
Unit 1C.......................  Brown Bear.......  Residents of Unit 1C,
                                                    Haines, Hoonah,
                                                    Kake, Klukwan,
                                                    Skagway, and
                                                    Wrangell, except no
                                                    subsistence for
                                                    residents of
                                                    Gustavus.
Unit 1D.......................  Brown Bear.......  Residents of ID.
Unit 1A.......................  Deer.............  Residents of Units 1A
                                                    and 2.
Unit 1B.......................  Deer.............  Residents of Units
                                                    1A, 1B, 2, and 3.
Unit 1C.......................  Deer.............  Residents of 1C, 1D,
                                                    Hoonah, Kake, and
                                                    Petersburg.
Unit 1D.......................  Deer.............  No Federal
                                                    subsistence
                                                    priority.
Unit 1B.......................  Goat.............  Residents of Units 1B
                                                    and 3.
Unit 1C.......................  Goat.............  Residents of Haines,
                                                    Kake, Klukwan,
                                                    Petersburg, and
                                                    Hoonah.
Unit 1B.......................  Moose............  Residents of Units 1,
                                                    2, 3, and 4.
Unit 1C.......................  Moose............  Residents of Units 1,
                                                    2, 3, 4, and 5.
Unit 1D.......................  Moose............  Residents of Unit 1D.
Unit 2........................  Deer.............  Residents of Unit 1A,
                                                    2, and 3.
Unit 3........................  Deer.............  Residents of Unit 1B,
                                                    3, Port Alexander,
                                                    Port Protection, Pt.
                                                    Baker, and Meyer's
                                                    Chuck.
Unit 3, Wrangell and Mitkof     Moose............  Residents of Units
 Islands.                                           1B, 2, and 3.
Unit 4........................  Brown Bear.......  Residents of Unit 4
                                                    and Kake.
Unit 4........................  Deer.............  Residents of Unit 4,
                                                    Kake, Gustavus,
                                                    Haines, Petersburg,
                                                    Pt. Baker, Klukwan,
                                                    Port Protection,
                                                    Wrangell, and
                                                    Yakutat.
Unit 4........................  Goat.............  Residents of Sitka,
                                                    Hoonah, Tenakee,
                                                    Pelican, Funter Bay,
                                                    Angoon, Port
                                                    Alexander, and Elfin
                                                    Cove.
Unit 5........................  Black Bear.......  Residents of Unit 5A.
Unit 5........................  Brown Bear.......  Residents of Yakutat.
Unit 5........................  Deer.............  Residents of Yakutat.
Unit 5........................  Goat.............  Residents of Unit 5A.
Unit 5........................  Moose............  Residents of Unit 5A.
Unit 5........................  Wolf.............  Residents of Unit 5A.
Unit 6A.......................  Black Bear.......  Residents of Yakutat
                                                    and Unit 6C and 6D,
                                                    except no
                                                    subsistence for
                                                    Whittier.
Unit 6, remainder.............  Black Bear.......  Residents of Unit 6C
                                                    and 6D, except no
                                                    subsistence for
                                                    Whittier.
Unit 6........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
Unit 6A.......................  Goat.............  Residents of Unit 5A
                                                    and 6C, Chenega Bay,
                                                    and Tatitlek.
Unit 6C and Unit 6D...........  Goat.............  Residents of Unit 6C
                                                    and D.
Unit 6A.......................  Moose............  Residents of Units
                                                    5A, 6A, 6B and 6C.
Unit 6B and Unit 6C...........  Moose............  Residents of Units
                                                    6A, 6B and 6C.
Unit 6D.......................  Moose............  No Federal
                                                    subsistence
                                                    priority.
Unit 6A.......................  Wolf.............  Residents of Units
                                                    5A, 6, 9, 10 (Unimak
                                                    Island only), 11-13
                                                    and the residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 6, remainder.............  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11- 13 and
                                                    the residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 7........................  Brown Bear.......  No Federal
                                                    subsistence
                                                    priority.
Unit 7........................  Caribou..........  Residents of Hope.
Unit 7, Brown Mountain hunt     Goat.............  Residents of Port
 area.                                              Graham and Nanwalek.
Unit 7, that portion draining   Moose............  Residents of Chenega
 into Kings Bay.                                    Bay, Cooper Landing,
                                                    Hope, and Tatitlek.
Unit 7, remainder.............  Moose............  Residents of Cooper
                                                    Landing and Hope.
Unit 7........................  Sheep............  No Federal
                                                    subsistence
                                                    priority.
Unit 7........................  Ruffed Grouse....  No Federal
                                                    subsistence
                                                    priority.
Unit 8........................  Brown Bear.......  Residents of Old
                                                    Harbor, Akhiok,
                                                    Larsen Bay, Karluk,
                                                    Ouzinkie, and Port
                                                    Lions.
Unit 8........................  Deer.............  Residents of Unit 8.
Unit 8........................  Elk..............  Residents of Unit 8.
Unit 8........................  Goat.............  No Federal
                                                    subsistence
                                                    priority.
Unit 9D.......................  Bison............  No Federal
                                                    subsistence
                                                    priority.
Unit 9A and 9B................  Black Bear.......  Residents of Units
                                                    9A, 9B, 17A, 17B,
                                                    and 17C.
Unit 9A.......................  Brown Bear.......  Residents of Pedro
                                                    Bay.
Unit 9B.......................  Brown Bear.......  Residents of Unit 9B.
Unit 9C.......................  Brown Bear.......  Residents of Unit 9C,
                                                    Igiugig, Kakhonak,
                                                    and Levelock.
Unit 9D.......................  Brown Bear.......  Residents of Unit 9D
                                                    and 10 (Unimak
                                                    Island).
Unit 9E.......................  Brown Bear.......  Residents of Chignik,
                                                    Chignik Lagoon,
                                                    Chignik Lake,
                                                    Egegik, Ivanof Bay,
                                                    Perryville, Pilot
                                                    Point, Ugashik, and
                                                    Port Heiden/Meshik.
Unit 9A and Unit 9B...........  Caribou..........  Residents of Unit 9B,
                                                    9C, and 17.
Unit 9C.......................  Caribou..........  Residents of Unit
                                                    9B,9C, 17, and
                                                    Egegik.
Unit 9D.......................  Caribou..........  Residents of Unit 9D,
                                                    Akutan, and False
                                                    Pass.

[[Page 37925]]

 
Unit 9E.......................  Caribou..........  Residents of Unit 9B,
                                                    9C, 9E, 17, Nelson
                                                    Lagoon and Sand
                                                    Point.
Unit 9A, Unit 9B, Unit 9C and   Moose............  Residents of Unit 9A,
 Unit 9E.                                           9B, 9C, and 9E.
Unit 9D.......................  Moose............  Residents of Cold
                                                    Bay, False Pass,
                                                    King Cove, Nelson
                                                    Lagoon, and Sand
                                                    Point.
Unit 9B.......................  Sheep............  Residents of Iliamna,
                                                    Newhalen, Nondalton,
                                                    Pedro Bay, Port
                                                    Alsworth, and
                                                    residents of Lake
                                                    Clark National Park
                                                    and Preserve within
                                                    Unit 9B.
Unit 9, remainder.............  Sheep............  No determination.
Unit 9........................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 9A, Unit B, Unit C, &      Beaver...........  Residents of Units
 Unit E.                                            9A, 9B, 9C, 9E, and
                                                    17.
Unit 10 Unimak Island.........  Brown Bear.......  Residents of Units 9D
                                                    and 10 (Unimak
                                                    Island).
Unit 10 Unimak Island.........  Caribou..........  Residents of Akutan,
                                                    False Pass, King
                                                    Cove, and Sand
                                                    Point.
Unit 10, remainder............  Caribou..........  No determination.
Unit 10.......................  Wolf.............  Residents of Units 6,
                                                    9, 10 (Unimak Island
                                                    only), 11-13 and the
                                                    residents of
                                                    Chickaloon, and 16-
                                                    26.
Unit 11.......................  Bison............  No Federal
                                                    subsistence
                                                    priority.
Unit 11, north of the Sanford   Black Bear.......  Residents of
 River.                                             Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11 and 12.
Unit 11, remainder............  Black Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Nabesna Road
                                                    (mileposts 25-46),
                                                    Slana, Tazlina, Tok
                                                    Cutoff Road
                                                    (mileposts 79-110),
                                                    Tonsina, and Units
                                                    11.
Unit 11, north of the Sanford   Brown Bear.......  Residents of
 River.                                             Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Slana,
                                                    Tazlina, Tonsina,
                                                    and Units 11 and 12.
Unit 11, remainder............  Brown Bear.......  Residents of
                                                    Chistochina,
                                                    Chitina, Copper
                                                    Center, Gakona,
                                                    Glennallen, Gulkana,
                                                    Kenny Lake, Mentasta
                                                    Lake, Nabesna Road
                                                    (mileposts 25-46),
                                                    Slana, Tazlina, Tok
                                                    Cutoff Road
                                                    (mileposts 79-110),
                                                    Tonsina, and Units
                                                    11.
Unit 11, north of the Sanford   Caribou..........  Residents of Unit 11,
 River.                                             12, 13A-D,
                                                    Chickaloon, Healy
                                                    Lake, and Dot Lake.
Unit 11, remainder............  Caribou..........  Residents of Unit 11,
                                                    13A-D, and
                                                    Chickaloon.
Unit 11.......................  Goat.............  Residents of Unit 11,
                                                    Chitina,
                                                    Chistochina, Copper
                                                    Center, Gakona,