DOI News


Proposed rule to revise the regulations concerning the composition of the Federal Subsistence Board


02/18/2011


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

web page: http://www.gpo.gov/

 




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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 242

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 100

[Docket No. FWS-R7-SM-2011-0004; 70101-1261-0000L6]
RIN 1018-AX52


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

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

ACTION: Proposed rule.

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

DATES: Public meetings: The Federal Subsistence Regional Advisory
Councils will hold public meetings to receive comments and make
proposals to change this proposed rule on several dates between
February 15, 2011, and March 24, 2011, and to make recommendations on
the proposed rule to the Federal Subsistence Board. The Board will
discuss and evaluate proposed regulatory changes during a public
meeting in Anchorage, AK, on May 3, 2011, and make recommendations on
the proposed rule to the Secretary of the Interior and the Secretary of
Agriculture. See SUPPLEMENTARY INFORMATION for specific information on
dates and locations of the public meetings.
Public comments: Comments and proposals to change this proposed
rule must be received or postmarked by April 12, 2011.

ADDRESSES: Public meetings: The Federal Subsistence Board and the
Regional Advisory Councils' public meetings will be held at various
locations in Alaska. See SUPPLEMENTARY INFORMATION for specific
information on dates and locations of the public meetings.
Public comments: You may submit comments by one of the following
methods:
Electronically: Go to the Federal eRulemaking Portal:
http://www.regulations.gov/ and search for FWS-R7-SM-2011-0004, which is
the docket number for this rulemaking.
By hard copy: U.S. mail or hand-delivery to: USFWS, Office
of Subsistence Management, 1011 East Tudor Road, MS 121, Attn: Theo
Matuskowitz, Anchorage, AK 99503-6199, or hand delivery to the
Designated Federal Official attending any of the Federal Subsistence
Regional Advisory Council public meetings. See SUPPLEMENTARY
INFORMATION for additional information on locations of the public
meetings.
We will post all comments on http://www.regulations.gov/. This

[[Page 7759]]

generally means that we will post any personal information you provide
us (see the Public Review Process section below for more information).

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of
Subsistence Management; (907) 786-3888 or subsistence@fws.gov. For
questions specific to National Forest System lands, contact Steve
Kessler, Regional Subsistence Program Leader, USDA, Forest Service,
Alaska Region; (907) 743-9461 or skessler@fs.fed.us.

SUPPLEMENTARY INFORMATION:

Background

Under Title VIII of the Alaska National Interest Lands Conservation
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and
the Secretary of Agriculture (Secretaries) jointly implement the
Federal Subsistence Management Program (Program). This Program provides
a preference for take of fish and wildlife resources for subsistence
uses on Federal public lands and waters in Alaska. The Secretaries
published temporary regulations to carry out this Program in the
Federal Register on June 29, 1990 (55 FR 27114), and final regulations
were published in the Federal Register on May 29, 1992 (57 FR 22940).
The Program has subsequently amended these regulations a number of
times. Because this Program is a joint effort between Interior and
Agriculture, these regulations are located in two titles of the Code of
Federal Regulations (CFR): Title 36, ``Parks, Forests, and Public
Property,'' and Title 50, ``Wildlife and Fisheries,'' at 36 CFR 242.1-
28 and 50 CFR 100.1-28, respectively. The regulations contain subparts
as follows: Subpart A, General Provisions; Subpart B, Program
Structure; Subpart C, Board Determinations; and Subpart D, Subsistence
Taking of Fish and Wildlife. Only the Secretaries can promulgate
changes to the subpart A and B regulations.
Consistent with subpart B of these regulations, the Secretaries
established a Federal Subsistence Board to administer the Federal
Subsistence Management Program. The Board is made up of:
A Chair appointed by the Secretary of the Interior with
concurrence of the Secretary of Agriculture;
The Alaska Regional Director, U.S. Fish and Wildlife
Service;
The Alaska Regional Director, U.S. National Park Service;
The Alaska State Director, U.S. Bureau of Land Management;
The Alaska Regional Director, U.S. Bureau of Indian
Affairs; and
The Alaska Regional Forester, U.S. Forest Service.
Through the Board, these agencies participate in the development of
regulations for subparts C and D, which, among other things, set forth
program eligibility and specific harvest seasons and limits. As the
Secretaries are responsible for promulgating changes to subparts A and
B; the Board is assisting the Secretaries in this effort.
In administering the program, the Secretaries divided Alaska into
10 subsistence resource regions, each of which is represented by a
Regional Council. The Regional Councils provide a forum for rural
residents with personal knowledge of local conditions and resource
requirements to have a meaningful role in the subsistence management of
fish and wildlife on Federal public lands in Alaska. The Regional
Council members represent varied geographical, cultural, and user
interests within each region.

Proposed Regulatory Changes

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

Public Review Process--Comments, Proposals, and Public Meetings

The Regional Councils have a substantial role in reviewing this
proposed rule and making recommendations for the final rule. The
Federal Subsistence Board, through the Regional Councils, will hold
meetings on this proposed rule at the following locations in Alaska, on
the following dates:

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

[[Page 7760]]

Tribal Consultation and Comment

As expressed in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' the Federal officials
that have been delegated authority by the Secretaries are committed to
honoring the unique government-to-government political relationship
that exists between the Federal Government and Federally Recognized
Indian Tribes (Tribes) as listed in 75 FR 60810 (October 1, 2010) and
the relationship required by statute for consultation and coordination
with Alaska Native corporations. Consultation with Alaska Native
corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23,
2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V,
Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: ``The
Director of the Office of Management and Budget and all Federal
agencies shall hereafter consult with Alaska Native corporations on the
same basis as Indian Tribes under Executive Order No. 13175.''
The Alaska National Interest Lands Conservation Act does not
provide rights to Tribes for the subsistence taking of wildlife, fish,
and shellfish. However, because Tribal members are affected by
subsistence fishing, hunting, and trapping regulations, the
Secretaries, through the Board, will provide Federally recognized
Tribes and Alaska Native corporations an opportunity to consult on this
rule.
The Board will engage in outreach efforts for this rule, including
a notification letter, to ensure that Tribes and Alaska Native
corporations are advised of the mechanisms by which they can
participate. The Board provides a variety of opportunities for
consultation: Commenting on proposed changes to the existing rule;
engaging in dialogue at the Regional Council meetings; engaging in
dialogue at the Board's meetings; and providing input in person, by
mail, e-mail, or phone at any time during the rulemaking process. The
Board will commit to efficiently and adequately providing an
opportunity to Tribes and Alaska Native corporations for consultation
with regard to subsistence rulemaking.
The Board will consider Tribes' and Alaska Native corporations'
information, input, and recommendations, and address their concerns as
much as practicable. The Board will inform the Tribes and Alaska Native
corporations how their recommendations were considered.

Compliance With Statutory and Regulatory Authorities

National Environmental Policy Act

A Draft Environmental Impact Statement that described four
alternatives for developing a Federal Subsistence Management Program
was distributed for public comment on October 7, 1991. The Final
Environmental Impact Statement (FEIS) was published on February 28,
1992. The Record of Decision (ROD) on Subsistence Management for
Federal Public Lands in Alaska was signed April 6, 1992. The selected
alternative in the FEIS (Alternative IV) defined the administrative
framework of an annual regulatory cycle for subsistence regulations.
Several alternatives were considered for the composition of the
Board including all Federal agency heads and all public members
representing subsistence users. This proposed regulation adding two
additional public members to the Board falls within the scope of
alternatives. For this reason, the impacts described in the FEIS and
ROD are deemed sufficient for this proposed regulation and require no
further analysis.
Even in the absence of the consideration of alternatives in the
existing programmatic FEIS and ROD, no further NEPA analysis would be
required in this instance. There are two reasons for this. The first is
that this action is merely administrative in nature and has no
environmental impact. The second is that activities of this nature are
categorically excluded from the requirements of NEPA under both
Department of the Interior (DOI) regulations and Department of
Agriculture (DOA) regulations. Specifically, DOI regulations at 43 CFR
46.210 set forth categorical exclusions for both internal
organizational changes and the adoption of regulations that are of an
administrative nature. Similarly, DOA regulations at 7 CFR 1b.3(a)
provide a categorical exclusion for routine activities such as
personnel and organizational changes, and similar administrative
functions.
A 1997 environmental assessment dealt with the expansion of Federal
jurisdiction over fisheries and is available at the office listed under
FOR FURTHER INFORMATION CONTACT. The Secretary of the Interior, with
concurrence of the Secretary of Agriculture, determined that expansion
of Federal jurisdiction does not constitute a major Federal action
significantly affecting the human environment and, therefore, signed a
Finding of No Significant Impact.

Section 810 of ANILCA

An ANILCA section 810 analysis was completed as part of the FEIS
process on the Federal Subsistence Management Program. The intent of
all Federal subsistence regulations is to accord subsistence uses of
fish and wildlife on public lands a priority over the taking of fish
and wildlife on such lands for other purposes, unless restriction is
necessary to conserve healthy fish and wildlife populations. The final
section 810 analysis determination appeared in the April 6, 1992, ROD
and concluded that the Federal Subsistence Management Program, under
Alternative IV with an annual process for setting subsistence
regulations, may have some local impacts on subsistence uses, but will
not likely restrict subsistence uses significantly. This analysis
describes impacts of the alternative Board compositions. This proposed
action falls within that analysis and no further analysis is warranted.
During the subsequent environmental assessment process for
extending fisheries jurisdiction, an evaluation of the effects of this
rule was conducted in accordance with Sec. 810. That evaluation
concluded that, because this is merely an administrative action, the
rule will not reach the ``may significantly restrict'' threshold that
would require notice and hearings under ANILCA Sec. 810(a).

Paperwork Reduction Act

An agency may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid Office of Management and Budget (OMB) control number. This
proposed rule does not contain any new collections of information that
require OMB approval. OMB has reviewed and approved the following
collections of information associated with the subsistence regulations
at 36 CFR 242 and 50 CFR 100: Subsistence hunting and fishing
applications, permits, and reports, Federal Subsistence Regional
Advisory Council Membership Application/Nomination and Interview Forms
(OMB Control No. 1018-0075 expires January 31, 2013).

Regulatory Planning and Review (Executive Order 12866)

The Office of Management and Budget (OMB) has determined that this
proposed rule is not significant and has not reviewed this rule under
Executive Order 12866. OMB bases its determination upon the following
four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on

[[Page 7761]]

the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires preparation of flexibility analyses for rules that will have a
significant effect on a substantial number of small entities, which
include small businesses, organizations, or governmental jurisdictions.
In general, the resources to be harvested under this rule are already
being harvested and consumed by the local harvester and do not result
in an additional dollar benefit to the economy. However, we estimate
that two million pounds of meat are harvested by subsistence users
annually and, if given an estimated dollar value of $3.00 per pound,
this amount would equate to about $6 million in food value statewide.
Based upon the amounts and values cited above, the Departments certify
that this rulemaking will not have a significant economic effect on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness Act

Under the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 801 et seq.), this rule is not a major rule. It does not have an
effect on the economy of $100 million or more, will not cause a major
increase in costs or prices for consumers, and does not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based enterprises to
compete with foreign-based enterprises.

Executive Order 12630

Title VIII of ANILCA requires the Secretaries to administer a
subsistence priority on public lands. The scope of this program is
limited by definition to certain public lands. Likewise, these
regulations have no potential takings of private property implications
as defined by Executive Order 12630.

Unfunded Mandates Reform Act

The Secretaries have determined and certify pursuant to the
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State governments or private entities. The
implementation of this rule is by Federal agencies and there is no cost
imposed on any State or local entities or Tribal governments.

Executive Order 12988

The Secretaries have determined that these regulations meet the
applicable standards provided in Sec. Sec. 3(a) and 3(b)(2) of
Executive Order 12988, regarding civil justice reform.

Executive Order 13132

In accordance with Executive Order 13132, the proposed rule does
not have sufficient Federalism implications to warrant the preparation
of a Federalism Assessment. Title VIII of ANILCA precludes the State
from exercising subsistence management authority over fish and wildlife
resources on Federal lands unless it meets certain requirements.

Executive Order 13175

The Alaska National Interest Lands Conservation Act does not
provide rights to Tribes for the subsistence taking of wildlife, fish,
and shellfish. However, the Board will provide Federally recognized
Tribes and Alaska Native corporations an opportunity to consult on this
rule. Consultation with Alaska Native corporations is based on Public
Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended
by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118
Stat. 3267, which provides that: ``The Director of the Office of
Management and Budget and all Federal agencies shall hereafter consult
with Alaska Native corporations on the same basis as Indian Tribes
under Executive Order No. 13175.''
The Secretaries, through the Board, will provide a variety of
opportunities for consultation: Commenting on proposed changes to the
existing rule; engaging in dialogue at the Regional Council meetings;
engaging in dialogue at the Board's meetings; and providing input in
person, by mail, e-mail, or phone at any time during the rulemaking
process.

Executive Order 13211

This Executive Order requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. However, this proposed
rule is not a significant regulatory action under E.O. 13211, affecting
energy supply, distribution, or use, and no Statement of Energy Effects
is required.

Drafting Information

Theo Matuskowitz drafted these regulations under the guidance of
Pat Pourchot, Special Assistant to the Secretary of the Interior for
Alaska Affairs, Department of the Interior, Anchorage, Alaska.
Additional assistance was provided by:
Peter J. Probasco, Office of Subsistence Management, U.S.
Fish and Wildlife Service; and
Steve Kessler, Alaska Regional Office, U.S. Forest
Service.

List of Subjects

36 CFR Part 242

Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.

50 CFR Part 100

Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.

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

PART --------SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN
ALASKA

1. The authority citation for both 36 CFR Part 242 and 50 CFR Part
100 would continue to read as follows:

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

2. Amend Sec. ----.10 by revising paragraphs (b)(1) and (d)(2) to
read as follows:


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

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

[[Page 7762]]

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

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

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