RIN 1018-AW77, 63088-63093 [2010-25816]

Download as PDF 63088 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. emcdonald on DSK2BSOYB1PROD with RULES Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a ‘‘significant energy action’’ under that order because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or VerDate Mar<15>2010 16:06 Oct 13, 2010 Jkt 223001 adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction. This rule involves a fireworks display that is not expected to result in any significant adverse environmental impact as described in NEPA. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. ■ For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ and from 4:15 p.m. to 6 p.m., local time, on October 16, 2010. (c) Regulations. (1) In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Lower Mississippi River or a designated representative. (2) Persons or vessels requiring entry into or passage through the zone must request permission from the Captain of the Port Lower Mississippi River or a designated representative. They may be contacted on VHF–FM channels 16 or by telephone at (901) 521–4822. (3) All persons and vessels shall comply with the instructions of the Captain of the Port Lower Mississippi River and designated personnel. Designated personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard. (d) Informational Broadcasts. The Captain of the Port, Lower Mississippi River will inform the public when safety zones have been established via Broadcast Notice to Mariners. Dated: September 16, 2010. Michael Gardiner, Captain, U.S. Coast Guard, Captain of the Port, Lower Mississippi River. [FR Doc. 2010–25804 Filed 10–13–10; 8:45 am] BILLING CODE 9110–04–P DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 242 DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 100 Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. [Docket No. FWS–R7–SM–2009–0052; 70101–1261–0000L6] 2. A new temporary § 165.T08–0873 is added to read as follows: Subsistence Management Regulations for Public Lands in Alaska, Subpart B; Special Actions ■ § 165.T08–0873 Great Mississippi Balloon Race and Fireworks Safety Zone; the Mississippi River, extending from mile marker 363 to mile marker 365.5, in the vicinity of Natchez, MS. (a) Location. The following area is a safety zone: those waters of the Lower Mississippi River, beginning at mile marker 363 and ending at mile marker 365.5, extending the entire width of the river. (b) Enforcement Period. This section will be enforced from 7:15 p.m. to 8:45 p.m., local time, on October 15, 2010 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 RIN 1018–AW77 Forest Service, Agriculture; Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: This final rule amends the regulations that manage the taking of wildlife and fish in Alaska for subsistence purposes. In particular, the Federal Subsistence Board’s (Board) process of accepting and addressing special action requests is clarified, along with the role of the Regional Advisory Councils in the special action process. SUMMARY: E:\FR\FM\14OCR1.SGM 14OCR1 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations Public notice requirements are updated to bring them in alignment with the practices of the digital age and accommodate the new biennial regulatory cycle. DATES: This rule is effective October 14, 2010. The Board meeting transcripts are available for review at the Office of Subsistence Management, 1011 East Tudor Road, MS 121, Anchorage, AK 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, Regional Subsistence Program Leader, USDA, Forest Service, Alaska Region; (907) 743–9461 or skessler@fs.fed.us. SUPPLEMENTARY INFORMATION: ADDRESSES: emcdonald on DSK2BSOYB1PROD with RULES 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. 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; VerDate Mar<15>2010 16:06 Oct 13, 2010 Jkt 223001 • 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 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. Members of the regional councils, agency representatives, and the public expressed concern to the Federal Subsistence Board that 36 CFR 242.19 and 50 CFR 100.19, respectively, needed to be revised in a manner that provided more clarity to the Board’s process of accepting and addressing special action requests. Special actions are actions that the Board takes to modify the take of fish and wildlife regulations on public lands, outside of the regulatory proposal period, to ensure the continued viability of a fish or wildlife population or for other reasons. These actions may include closing, opening, or adjusting the seasons; modifying the harvest limits; or modifying the methods and means of harvest for subsistence uses of fish and wildlife. The problem with the lack of clarity in the regulations became particularly apparent during oral argument in the case of Ninilchik Traditional Council v. Fleagle, when the presiding judge struggled to interpret the procedural mechanisms described in the regulation and criticized it for being unclear. More recently, we recognized the need to modify § __.19 to accommodate the programmatic shift to a biennial regulatory cycle. Current Rule The Secretaries published a proposed rule on October 14, 2009 (74 FR 52712), to amend subpart B, §§ __.10, __.18, and __.19 of 36 CFR 242 and 50 CFR 100. These modifications will: PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 63089 (1) Improve clarity with respect to the Board’s process of accepting and addressing special action requests; (2) Update public notice requirements and bring them into line with the practices of the digital age; (3) Bring clarity to the role of the regional councils with respect to special action requests; and (4) Accommodate the biennial regulatory cycle, which was implemented in 2008 (73 FR 35726; June 24, 2008). These regulatory revisions will result in no direct change to subsistence uses or fish and wildlife populations, but clarify the process by which special action requests are accepted or rejected by the Board. The proposed rule opened a comment period, which closed on January 12, 2010. The Departments advertised the proposed rule by mail, radio, and newspaper. The Secretaries, through the Board, held a public meeting on January 12, 2010, to receive comments from Regional Advisory Council Chairs, or designated representatives, and the public. The Board met again on April 13, 2010, to review and formulate a recommendation to the Secretaries. Public Review and Comment During the public comment period, the Secretaries received two comments, one from a State advisory commission and a second from a private organization. At the public meeting on January 12, 2010, the Secretaries, through the Board, received four comments, two from two separate sporting organizations, one from a Native organization, and one from the State. In addition, the Regional Advisory Council Chairs were provided the opportunity to comment to the Board. The major comments from all sources are addressed below: Comment: The proposed rule wrongly expands the authority of the Board under ANILCA into regulating nonsubsistence uses on Federal public lands thereby infringing on sovereign State authority. Response: The Secretaries hold the position that they have the authority to open, close, restrict, or modify nonsubsistence uses, as needed, in the taking of fish and wildlife on Federal public lands. Due to possible misinterpretation, the Secretaries decided to remove the phrase ‘‘* * * or otherwise modify the requirements regarding the taking of fish and wildlife on public lands for nonsubsistence uses.’’ from the language presented in the proposed rule. Comment: The proposed rule needs to address specific conditions for E:\FR\FM\14OCR1.SGM 14OCR1 63090 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations reopening an area for nonsubsistence use. Response: Under direction from the Secretaries, the Board adopted a policy on closures to hunting, trapping and fishing on Federal public lands and waters in Alaska on August 29, 2007. This policy addresses in detail the removal of closures on Federal public lands and waters and was approved by the Secretaries prior to being adopted by the Board. Comment: The proposed rule does not provide deference to the Regional Advisory Councils in consideration of special actions. Response: The Secretaries address the Board’s deference to the Regional Advisory Councils in 36 CFR 242.10(e) and 50 CFR 100.10(e), ‘‘Federal Subsistence Board; ‘‘Relationship to Regional Councils’’. It is further addressed in the Board’s closure policy of August 29, 2007. Comment: The proposed rule does not clarify the State’s role in regard to Federal determinations that affect the State’s management responsibilities for fish and wildlife when implementing special actions. Response: The relationship between the Board and the State is defined in 36 CFR 242.14 and 50 CFR 100.14, ‘‘Relationship to State procedures and regulations’’. In addition, the Memorandum of Understanding signed on December 5, 2008, between the Board and the State established guidelines to coordinate the management of subsistence uses of fish and wildlife resources on Federal public lands and waters in Alaska. These final regulations reflect Secretarial review and consideration of the Federal Subsistence Board recommendation and Regional Advisory Council and public comments. The public received extensive opportunity to review and comment on all changes. Analysis and justification for the action taken 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). Conformance With Statutory and Regulatory Authorities Administrative Procedure Act Compliance The Secretaries have provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements, including publishing a proposed rule notice in the Federal Register, participation in multiple Regional Council meetings, additional public review and comment on proposed regulatory changes, and opportunity for additional public comment during the Board meeting prior to their recommendation to the Secretaries. Therefore, the Secretaries 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: SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA, SUBPARTS A, B, AND C: FEDERAL REGISTER DOCUMENTS PERTAINING TO THE FINAL RULE Date of publication Category Details 57 FR 22940 .......... May 29, 1992 ........ Final rule ............... 64 FR 1276 ............ emcdonald on DSK2BSOYB1PROD with RULES Federal Register citation January 8, 1999 .... Final rule ............... 66 FR 31533 .......... June 12, 2001 ....... Interim rule ............ ‘‘Subsistence Management Regulations for Public Lands in Alaska; Final Rule’’ was published in the Federal Register. 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. 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. VerDate Mar<15>2010 16:06 Oct 13, 2010 Jkt 223001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\14OCR1.SGM 14OCR1 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 63091 SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA, SUBPARTS A, B, AND C: FEDERAL REGISTER DOCUMENTS PERTAINING TO THE FINAL RULE—Continued Federal Register citation Date of publication Category Details 67 FR 30559 .......... May 7, 2002 .......... Final rule ............... 68 FR 7703 ............ February 18, 2003 Direct final rule ...... 68 FR 23035 .......... April 30, 2003 ........ 69 FR 60957 .......... October 14, 2004 .. Affirmation of direct final rule. Final rule ............... 70 FR 76400 .......... Final rule ............... 71 FR 49997 .......... December 27, 2005. August 24, 2006 .... 72 FR 25688 .......... May 7, 2007 .......... 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. 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. Because no adverse comments were received on the direct final rule (68 FR 7703), the direct final rule was adopted. 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. Revised jurisdiction in marine waters and clarified jurisdiction relative to military lands. 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. Revised nonrural determinations. Final rule ............... 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. emcdonald on DSK2BSOYB1PROD with RULES 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 VerDate Mar<15>2010 16:06 Oct 13, 2010 Jkt 223001 notice and hearings under ANILCA section 810(a). Paperwork Reduction Act An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the 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 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, PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 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 E:\FR\FM\14OCR1.SGM 14OCR1 63092 Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required. 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. Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife. nonsubsistence uses or close public lands to the take of fish and wildlife for nonsubsistence uses when necessary for the conservation of healthy populations of fish or wildlife, to continue subsistence uses of fish or wildlife, or for reasons of public safety or administration. The Board may also reopen public lands to nonsubsistence uses if new information or changed conditions indicate that the closure is no longer warranted; (vii) Restrict the taking of a particular fish or wildlife population on public lands for subsistence uses, close public lands to the take of fish and wildlife for subsistence uses, or otherwise modify the requirements for take from a particular fish or wildlife population on public lands for subsistence uses when necessary to ensure the continued viability of a fish or wildlife population, or for reasons of public safety or administration. As soon as conditions warrant, the Board may also reopen public lands to the taking of a fish and wildlife population for subsistence users to continue those uses; * * * * * ■ 3. Revise the introductory text of paragraph (a) of § __.18 to read as follows: 50 CFR Part 100 § __.18 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 amends subpart B of part 242 of title 36 and part 100 of title 50 of the Code of Federal Regulations, as set forth below. (a) The Board will accept proposals for changes to the Federal subsistence regulations in subparts C or D of this part according to a published schedule, except for proposals for emergency and temporary special actions, which the Board will accept according to procedures set forth in § __.19. The Board may establish a rotating schedule for accepting proposals on various sections of subpart C or subpart D regulations over a period of years. The Board will develop and publish proposed regulations in the Federal Register, publish notice in local newspapers, and distribute comments on the proposed regulations in the form of proposals for public review. * * * * * ■ 4. Revise § __.19 to read as follows: Drafting Information 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. 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 and Carl Jack, Alaska Regional Office, U.S. Fish and Wildlife Service; and • Steve Kessler, Alaska Regional Office, U.S. Forest Service. Executive Order 12988 List of Subjects 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. 36 CFR Part 242 Unfunded Mandates Reform Act 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. emcdonald on DSK2BSOYB1PROD with RULES 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 Secretaries, through 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, email, or phone at any time during the rulemaking process. PART __—SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA 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. 2. Amend § __.10 by revising paragraph (d)(4)(vi), redesignating paragraphs (d)(4)(vii) through (d)(4)(xix) as paragraphs (d)(4)(viii) through (d)(4)(xx), and adding a new paragraph (d)(4)(vii) to read as follows: ■ Executive Order 13211 § __.10 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. * VerDate Mar<15>2010 16:06 Oct 13, 2010 Jkt 223001 Federal Subsistence Board. * * * * (d) * * * (4) * * * (vi) Restrict the taking of fish and wildlife on public lands for PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 § __.19 Regulation adoption process. Special actions. (a) Emergency special actions. In an emergency situation, if necessary to ensure the continued viability of a fish or wildlife population, to continue subsistence uses of fish or wildlife, or for public safety reasons, the Board may immediately open or close public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for take for subsistence uses, or close public lands to take for nonsubsistence uses of fish and wildlife, E:\FR\FM\14OCR1.SGM 14OCR1 emcdonald on DSK2BSOYB1PROD with RULES Federal Register / Vol. 75, No. 198 / Thursday, October 14, 2010 / Rules and Regulations or restrict the requirements for take for nonsubsistence uses. (1) If the timing of a regularly scheduled meeting of the affected Regional Council so permits without incurring undue delay, the Board may seek Council recommendations on the proposed emergency special action. Such a Council recommendation, if any, will be subject to the requirements of § __.18(a)(4). (2) The emergency action will be effective when directed by the Board, may not exceed 60 days, and may not be extended unless the procedures for adoption of a temporary special action, as set forth in paragraph (b) of this section, have been followed. (b) Temporary special actions. After adequate notice and public hearing, the Board may temporarily close or open public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for subsistence take, or close public lands for the taking of fish and wildlife for nonsubsistence uses, or restrict take for nonsubsistence uses. (1) The Board may make such temporary changes only after it determines that the proposed temporary change will not interfere with the conservation of healthy fish and wildlife populations, will not be detrimental to the long-term subsistence use of fish or wildlife resources, and is not an unnecessary restriction on nonsubsistence users. The Board may also reopen public lands to nonsubsistence uses if new information or changed conditions indicate that the closure is no longer warranted. (i) Prior to implementing a temporary special action, the Board will consult with the State of Alaska and the Chairs of the Regional Councils of the affected regions. (ii) If the timing of a regularly scheduled meeting of the affected Regional Council so permits without incurring undue delay, the Board will seek Council recommendations on the proposed temporary special action. Such Council recommendations, if any, will be subject to the requirements of § __.18(a)(4). (2) The length of any temporary action will be confined to the minimum time period or harvest limit determined by the Board to be necessary under the circumstances. In any event, a temporary opening or closure will not extend longer than the end of the current regulatory cycle. (c) The Board may reject a request for either an emergency or a temporary special action if the Board concludes that there are no time-sensitive circumstances necessitating a regulatory change before the next regular proposal VerDate Mar<15>2010 16:06 Oct 13, 2010 Jkt 223001 cycle. However, a special action request that has been rejected for this reason may be deferred, if appropriate and after consultation with the proponent, for consideration during the next regular proposal cycle. The Board will consider changes to customary and traditional use determinations in subpart C of this part only during the regular proposal cycle. (d) The Board will provide notice of all regulatory changes adopted via special action by posting the change on the Office of Subsistence Management Web site (https://alaska.fws.gov/asm/ index.cfml). When appropriate, notice may also include distribution of press releases to newspapers, local radio stations, and local contacts, as well as direct notification to the proponent and interested parties. The Board will publish notice and reasons justifying the special action in the Federal Register as soon as practicable. (e) The decision of the Board on any proposed special action will constitute its final administrative action. (f) Regulations authorizing any individual agency to implement closures or restrictions on public lands managed by the agency remain unaffected by the regulations in this part. (g) Fish and wildlife may not be taken in violation of any restriction, closure, or change authorized by the Board. Dated: July 13, 2010. Ken Salazar, Secretary of the Interior, Department of the Interior. Beth G. Pendleton, Regional Forester, USDA—Forest Service. [FR Doc. 2010–25816 Filed 10–13–10; 8:45 am] BILLING CODE 3410–11–P; 4310–55–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 112 [EPA–HQ–OPA–2009–0880; FRL–9213–8] RIN 2050–AG59 Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule— Compliance Date Amendment Environmental Protection Agency. ACTION: Final rule. AGENCY: The U.S. Environmental Protection Agency (EPA or the Agency) is promulgating a new compliance date of November 10, 2011 by which certain facilities must prepare or amend their SUMMARY: PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 63093 Spill Prevention, Control, and Countermeasure (SPCC) Plans, and implement those Plans, providing an additional year for certain facilities. This action allows additional time for those affected in the regulated community to understand the revisions to the SPCC rule finalized in December 2008 and November 2009. However, EPA is not extending the compliance date for drilling, production or workover facilities that are offshore or that have an offshore component, or for onshore facilities required to have and submit Facility Response Plans (FRPs). Additionally, the Agency is delaying the compliance date by which facilities must address milk and milk product containers, associated piping and appurtenances that are constructed according to the current applicable 3–A Sanitary Standards, and subject to the current applicable Grade ‘‘A’’ Pasteurized Milk Ordinance (PMO) or a State dairy regulatory requirement equivalent to the current applicable PMO. The date by which the owner or operator of a facility must comply with the SPCC requirements for these milk and milk product containers is delayed one year from the effective date of a final rule specifically addressing these milk and milk product containers, associated piping and appurtenances, or as specified by a rule that otherwise establishes a compliance date for these facilities. Both the extension and delay of the compliance date provide time for certain facilities to undertake the actions necessary to prepare or amend their SPCC Plans, as well as implement them. DATES: This final rule is effective on October 14, 2010. ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA–HQ– OPA–2009–0880, contains the information related to this rulemaking, including the response to comment document. All documents in the docket are listed in the index at https:// www.regulations.gov. Although listed in the index, some information may not be publicly available, such as Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at https:// www.regulations.gov or in hard copy at the EPA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, E:\FR\FM\14OCR1.SGM 14OCR1

Agencies

[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Rules and Regulations]
[Pages 63088-63093]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25816]


=======================================================================
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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-2009-0052; 70101-1261-0000L6]


RIN 1018-AW77

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart B; Special Actions

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the regulations that manage the taking 
of wildlife and fish in Alaska for subsistence purposes. In particular, 
the Federal Subsistence Board's (Board) process of accepting and 
addressing special action requests is clarified, along with the role of 
the Regional Advisory Councils in the special action process.

[[Page 63089]]

Public notice requirements are updated to bring them in alignment with 
the practices of the digital age and accommodate the new biennial 
regulatory cycle.

DATES: This rule is effective October 14, 2010.

ADDRESSES: The Board meeting transcripts are available for review at 
the Office of Subsistence Management, 1011 East Tudor Road, MS 121, 
Anchorage, AK 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, 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 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.
    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 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.
    Members of the regional councils, agency representatives, and the 
public expressed concern to the Federal Subsistence Board that 36 CFR 
242.19 and 50 CFR 100.19, respectively, needed to be revised in a 
manner that provided more clarity to the Board's process of accepting 
and addressing special action requests. Special actions are actions 
that the Board takes to modify the take of fish and wildlife 
regulations on public lands, outside of the regulatory proposal period, 
to ensure the continued viability of a fish or wildlife population or 
for other reasons. These actions may include closing, opening, or 
adjusting the seasons; modifying the harvest limits; or modifying the 
methods and means of harvest for subsistence uses of fish and wildlife.
    The problem with the lack of clarity in the regulations became 
particularly apparent during oral argument in the case of Ninilchik 
Traditional Council v. Fleagle, when the presiding judge struggled to 
interpret the procedural mechanisms described in the regulation and 
criticized it for being unclear. More recently, we recognized the need 
to modify Sec.  ----.19 to accommodate the programmatic shift to a 
biennial regulatory cycle.

Current Rule

    The Secretaries published a proposed rule on October 14, 2009 (74 
FR 52712), to amend subpart B, Sec. Sec.  ----.10, ----.18, and ----.19 
of 36 CFR 242 and 50 CFR 100.
    These modifications will:
    (1) Improve clarity with respect to the Board's process of 
accepting and addressing special action requests;
    (2) Update public notice requirements and bring them into line with 
the practices of the digital age;
    (3) Bring clarity to the role of the regional councils with respect 
to special action requests; and
    (4) Accommodate the biennial regulatory cycle, which was 
implemented in 2008 (73 FR 35726; June 24, 2008).
    These regulatory revisions will result in no direct change to 
subsistence uses or fish and wildlife populations, but clarify the 
process by which special action requests are accepted or rejected by 
the Board. The proposed rule opened a comment period, which closed on 
January 12, 2010. The Departments advertised the proposed rule by mail, 
radio, and newspaper.
    The Secretaries, through the Board, held a public meeting on 
January 12, 2010, to receive comments from Regional Advisory Council 
Chairs, or designated representatives, and the public. The Board met 
again on April 13, 2010, to review and formulate a recommendation to 
the Secretaries.

Public Review and Comment

    During the public comment period, the Secretaries received two 
comments, one from a State advisory commission and a second from a 
private organization. At the public meeting on January 12, 2010, the 
Secretaries, through the Board, received four comments, two from two 
separate sporting organizations, one from a Native organization, and 
one from the State. In addition, the Regional Advisory Council Chairs 
were provided the opportunity to comment to the Board. The major 
comments from all sources are addressed below:
    Comment: The proposed rule wrongly expands the authority of the 
Board under ANILCA into regulating nonsubsistence uses on Federal 
public lands thereby infringing on sovereign State authority.
    Response: The Secretaries hold the position that they have the 
authority to open, close, restrict, or modify nonsubsistence uses, as 
needed, in the taking of fish and wildlife on Federal public lands. Due 
to possible misinterpretation, the Secretaries decided to remove the 
phrase ``* * * or otherwise modify the requirements regarding the 
taking of fish and wildlife on public lands for nonsubsistence uses.'' 
from the language presented in the proposed rule.
    Comment: The proposed rule needs to address specific conditions for

[[Page 63090]]

reopening an area for nonsubsistence use.
    Response: Under direction from the Secretaries, the Board adopted a 
policy on closures to hunting, trapping and fishing on Federal public 
lands and waters in Alaska on August 29, 2007. This policy addresses in 
detail the removal of closures on Federal public lands and waters and 
was approved by the Secretaries prior to being adopted by the Board.
    Comment: The proposed rule does not provide deference to the 
Regional Advisory Councils in consideration of special actions.
    Response: The Secretaries address the Board's deference to the 
Regional Advisory Councils in 36 CFR 242.10(e) and 50 CFR 100.10(e), 
``Federal Subsistence Board; ``Relationship to Regional Councils''. It 
is further addressed in the Board's closure policy of August 29, 2007.
    Comment: The proposed rule does not clarify the State's role in 
regard to Federal determinations that affect the State's management 
responsibilities for fish and wildlife when implementing special 
actions.
    Response: The relationship between the Board and the State is 
defined in 36 CFR 242.14 and 50 CFR 100.14, ``Relationship to State 
procedures and regulations''. In addition, the Memorandum of 
Understanding signed on December 5, 2008, between the Board and the 
State established guidelines to coordinate the management of 
subsistence uses of fish and wildlife resources on Federal public lands 
and waters in Alaska.
    These final regulations reflect Secretarial review and 
consideration of the Federal Subsistence Board recommendation and 
Regional Advisory Council and public comments. The public received 
extensive opportunity to review and comment on all changes.
    Analysis and justification for the action taken 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).

Conformance With Statutory and Regulatory Authorities

Administrative Procedure Act Compliance

    The Secretaries have provided extensive opportunity for public 
input and involvement in compliance with Administrative Procedure Act 
requirements, including publishing a proposed rule notice in the 
Federal Register, participation in multiple Regional Council meetings, 
additional public review and comment on proposed regulatory changes, 
and opportunity for additional public comment during the Board meeting 
prior to their recommendation to the Secretaries.
    Therefore, the Secretaries 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:

 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.

[[Page 63091]]

 
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 (68 FR
                                                                                      7703), 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 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 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 
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 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

[[Page 63092]]

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 Secretaries, 
through 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, email, or phone at 
any time during the rulemaking process.

Executive Order 13211

    This Executive Order requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. However, this 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 and Carl Jack, 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.

0
For the reasons set out in the preamble, the Federal Subsistence Board 
amends subpart B of part 242 of title 36 and part 100 of title 50 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.


0
2. Amend Sec.  ----.10 by revising paragraph (d)(4)(vi), redesignating 
paragraphs (d)(4)(vii) through (d)(4)(xix) as paragraphs (d)(4)(viii) 
through (d)(4)(xx), and adding a new paragraph (d)(4)(vii) to read as 
follows:


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

* * * * *
    (d) * * *
    (4) * * *
    (vi) Restrict the taking of fish and wildlife on public lands for 
nonsubsistence uses or close public lands to the take of fish and 
wildlife for nonsubsistence uses when necessary for the conservation of 
healthy populations of fish or wildlife, to continue subsistence uses 
of fish or wildlife, or for reasons of public safety or administration. 
The Board may also reopen public lands to nonsubsistence uses if new 
information or changed conditions indicate that the closure is no 
longer warranted;
    (vii) Restrict the taking of a particular fish or wildlife 
population on public lands for subsistence uses, close public lands to 
the take of fish and wildlife for subsistence uses, or otherwise modify 
the requirements for take from a particular fish or wildlife population 
on public lands for subsistence uses when necessary to ensure the 
continued viability of a fish or wildlife population, or for reasons of 
public safety or administration. As soon as conditions warrant, the 
Board may also reopen public lands to the taking of a fish and wildlife 
population for subsistence users to continue those uses;
* * * * *

0
3. Revise the introductory text of paragraph (a) of Sec.  ----.18 to 
read as follows:


Sec.  ----.18  Regulation adoption process.

    (a) The Board will accept proposals for changes to the Federal 
subsistence regulations in subparts C or D of this part according to a 
published schedule, except for proposals for emergency and temporary 
special actions, which the Board will accept according to procedures 
set forth in Sec.  ----.19. The Board may establish a rotating schedule 
for accepting proposals on various sections of subpart C or subpart D 
regulations over a period of years. The Board will develop and publish 
proposed regulations in the Federal Register, publish notice in local 
newspapers, and distribute comments on the proposed regulations in the 
form of proposals for public review.
* * * * *

0
4. Revise Sec.  ----.19 to read as follows:


Sec.  ----.19  Special actions.

    (a) Emergency special actions. In an emergency situation, if 
necessary to ensure the continued viability of a fish or wildlife 
population, to continue subsistence uses of fish or wildlife, or for 
public safety reasons, the Board may immediately open or close public 
lands for the taking of fish and wildlife for subsistence uses, or 
modify the requirements for take for subsistence uses, or close public 
lands to take for nonsubsistence uses of fish and wildlife,

[[Page 63093]]

or restrict the requirements for take for nonsubsistence uses.
    (1) If the timing of a regularly scheduled meeting of the affected 
Regional Council so permits without incurring undue delay, the Board 
may seek Council recommendations on the proposed emergency special 
action. Such a Council recommendation, if any, will be subject to the 
requirements of Sec.  ----.18(a)(4).
    (2) The emergency action will be effective when directed by the 
Board, may not exceed 60 days, and may not be extended unless the 
procedures for adoption of a temporary special action, as set forth in 
paragraph (b) of this section, have been followed.
    (b) Temporary special actions. After adequate notice and public 
hearing, the Board may temporarily close or open public lands for the 
taking of fish and wildlife for subsistence uses, or modify the 
requirements for subsistence take, or close public lands for the taking 
of fish and wildlife for nonsubsistence uses, or restrict take for 
nonsubsistence uses.
    (1) The Board may make such temporary changes only after it 
determines that the proposed temporary change will not interfere with 
the conservation of healthy fish and wildlife populations, will not be 
detrimental to the long-term subsistence use of fish or wildlife 
resources, and is not an unnecessary restriction on nonsubsistence 
users. The Board may also reopen public lands to nonsubsistence uses if 
new information or changed conditions indicate that the closure is no 
longer warranted.
    (i) Prior to implementing a temporary special action, the Board 
will consult with the State of Alaska and the Chairs of the Regional 
Councils of the affected regions.
    (ii) If the timing of a regularly scheduled meeting of the affected 
Regional Council so permits without incurring undue delay, the Board 
will seek Council recommendations on the proposed temporary special 
action. Such Council recommendations, if any, will be subject to the 
requirements of Sec.  ----.18(a)(4).
    (2) The length of any temporary action will be confined to the 
minimum time period or harvest limit determined by the Board to be 
necessary under the circumstances. In any event, a temporary opening or 
closure will not extend longer than the end of the current regulatory 
cycle.
    (c) The Board may reject a request for either an emergency or a 
temporary special action if the Board concludes that there are no time-
sensitive circumstances necessitating a regulatory change before the 
next regular proposal cycle. However, a special action request that has 
been rejected for this reason may be deferred, if appropriate and after 
consultation with the proponent, for consideration during the next 
regular proposal cycle. The Board will consider changes to customary 
and traditional use determinations in subpart C of this part only 
during the regular proposal cycle.
    (d) The Board will provide notice of all regulatory changes adopted 
via special action by posting the change on the Office of Subsistence 
Management Web site (https://alaska.fws.gov/asm/index.cfml). When 
appropriate, notice may also include distribution of press releases to 
newspapers, local radio stations, and local contacts, as well as direct 
notification to the proponent and interested parties. The Board will 
publish notice and reasons justifying the special action in the Federal 
Register as soon as practicable.
    (e) The decision of the Board on any proposed special action will 
constitute its final administrative action.
    (f) Regulations authorizing any individual agency to implement 
closures or restrictions on public lands managed by the agency remain 
unaffected by the regulations in this part.
    (g) Fish and wildlife may not be taken in violation of any 
restriction, closure, or change authorized by the Board.

    Dated: July 13, 2010.
Ken Salazar,
Secretary of the Interior, Department of the Interior.
Beth G. Pendleton,
Regional Forester, USDA--Forest Service.
[FR Doc. 2010-25816 Filed 10-13-10; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P