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Subsistence Management Regulations for Public Lands in Alaska
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 7, 2002 (Volume 67, Number 88)]
[Rules and Regulations]
[Page 30559-30571]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07my02-11]
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DEPARTMENT OF AGRICULTURE
Forest Service
50 CFR Part 100
36 CFR Part 242
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
RIN 1018-AH85
Subsistence Management Regulations for Public Lands in Alaska
AGENCY: Forest Service, Agriculture; and Fish and Wildlife Service,
Interior.
ACTION: Final rule.
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SUMMARY: This rule, in response to comments on an interim rule, amends
the operating regulations of the Federal Subsistence Management Program
in Alaska. The primary aspects of that Interim Rule, published June 12,
2001, 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. This Final Rule also
corrects some inadvertent errors and oversights of previous rules.
DATES: This rule is effective June 6, 2002.
FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o
U.S. Fish and Wildlife Service, Thomas H. Boyd, (907) 786-3888. For
questions specific to National Forest System lands, contact Ken
Thompson, Regional Subsistence Program Manager, USDA, Forest Service,
Alaska Region, (907) 271-2540.
SUPPLEMENTARY INFORMATION:
Background
Title VIII of the Alaska National Interest Lands Conservation
[[Page 30560]]
Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the
Interior and the Secretary of Agriculture (Secretaries) implement a
joint program to grant a preference for subsistence uses of fish and
wildlife resources on public lands, unless the State of Alaska enacts
and implements laws of general applicability that are consistent with
ANILCA and that provide for the subsistence definition, preference, and
participation specified in Sections 803, 804, and 805 of ANILCA. The
State implemented a program that the Department of the Interior
previously found to be consistent with ANILCA. However, in December
1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska
that the rural preference in the State subsistence statute violated the
Alaska Constitution. The Court's ruling in McDowell required the State
to delete the rural preference from the subsistence statute and,
therefore, negated State compliance with ANILCA. The Court stayed the
effect of the decision until July 1, 1990.
As a result of the McDowell decision, the Department of the
Interior and the Department of Agriculture (Departments) assumed, on
July 1, 1990, responsibility for implementation of Title VIII of ANILCA
on public lands. On June 29, 1990, the Temporary Subsistence Management
Regulations for Public Lands in Alaska were published in the Federal
Register (55 FR 27114-27170). On January 8, 1999, (64 FR 1276), the
Departments extended jurisdiction to include waters in which there
exists a Federal reserved water right. This amended rule conformed the
Federal Subsistence Management Program to the Ninth Circuit's ruling in
Alaska v. Babbitt.
Consistent with Subparts A, B, and C of these regulations, the
Departments established a Federal Subsistence Board to administer the
Federal Subsistence Management Program. The Board's composition
includes 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, USDA Forest Service. Through
the Board, these agencies participate in the development of regulations
for subparts A, B, and C, and the annual subpart D regulations.
On June 12, 2001 (66 FR 31533), the Secretaries published an
Interim rule expanding the authority of the Board to delegate in-season
management decisions to local field managers. This final rule responds
to comments received on that Interim rule and makes changes to it as
appropriate. All Board members have reviewed this rule and agree with
its substance.
Federal Subsistence Regional Advisory Councils
Alaska has been divided into ten subsistence resource regions, each
of which is represented by a Federal Subsistence Regional Advisory
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 Alaska public lands. The Regional Council members represent
geographical, cultural, and user diversity within each region.
Public Review and Comment
The Secretaries published an Interim rule (66 FR 31533) on June 12,
2001, in order to provide necessary delegation of authority to field
managers to make crucial fishery management decisions during the past
fishing season. At the same time, comments were solicited on the
Interim rule. During their Winter Council meetings in February and
March 2001, all Regional Advisory Councils supported the expansion of
delegation authority found in Sec. ____.10(d)(6). We also received a
total of three written comments on the Interim rule.
Analysis of Public Comments
Two commentators supported clarification of residency requirements
found in Sec. ____.6(a)(1). A number of agencies indicated that there
needed to be clarification regarding the minimum age at which a person
could obtain a Federal Subsistence Registration permit or Designated
Harvester permit. Clarifying language has been added at Sec. ____.6(b).
Three commentators opposed the expansion of delegated authority,
believing that it would remove the public process from critical
management decisions. They also indicated that the decisions should
remain with the Federal Subsistence Board. In developing the
implementing letter that instructs field managers in the procedures to
use for in-season management decisions, the Federal Subsistence Board
specifically included language requiring public coordination and
communication prior to in-season management decisions. During summer
and fall 2001, over 30 in-season management decisions were made by
field managers. All of these were accomplished with public involvement
and close coordination with the Alaska Department of Fish and Game
(ADFG). The delegated authority worked so well that ADFG is in the
process of acquiring the same level of authority for its own field
managers.
One commentator indicated opposition to the formation of any
Federal local advisory committees (Sec. ____.10(d)(4)(xii)). The Board
intends to continue utilizing State local fish and game advisory
committees and not to establish any Federal ones.
One commentator supported the reorganization and clarifying
language relative to Special Actions (Sec. ____.19).
One commentator recommended transmitting a copy of any Request for
Reconsideration to the State for review and recommendation. This
requirement has been added to Sec. ____.20(e). Another commentor
recommended that the conditions for accepting a Request for
Reconsideration be less open to interpretation. The standards that were
placed in Sec. ____.20(d) are the same standards that the Board has
been using since assuming jurisdiction for subsistence management.
However, this is the first time that they have been formally published.
We believe that it is in the public interest to let potential
requestors know under what circumstances the Board will be accepting a
Request for Reconsideration. Unfortunately, all of the criteria cannot
be completely objective; there will always be some level of
subjectivity.
One commentator also disagreed with a statement made in the
preamble regarding economic effects. This rule by itself does not, and
will not, restrict any existing sport or commercial fisheries. However,
future Board actions could result in some closures to those fisheries
in certain areas in order to protect the fish stocks upon which
subsistence users and non-subsistence users depend.
Summary of Changes
Based on our analysis of public comments and agency concerns
expressed since publication of the Interim rule (66 FR 31533) on June
12, 2001, we have made the following revisions:
Section ____.6(b)--Clarified the age at which you can obtain a
Federal subsistence registration permit, a Designated Harvester permit,
or have someone serve as a designated harvester for you. Agencies,
staff, and members of the public have expressed concern about alleged
and potential abuse by individuals obtaining permits for infants;
[[Page 30561]]
Section ____.7--Corrected an inadvertent error that removed the
allowance for barter of fish and wildlife. Barter is provided for in
ANILCA and had been allowed in the regulations until publication of the
rule expanding jurisdiction for subsistence fisheries management
(January 8, 1999, 64 FR 1276);
Section ____.11(b)(1)--Removed the unintended requirement that
Regional Council member recommendations could only come from
nominations made by subsistence users. The Board's recommendations to
the Secretaries for appointment to the Regional Councils may come from
nominations or from self-applicants;
Section ____11(c)(3)--Clarified that Regional Council
recommendations should be supported by substantial evidence, be
consistent with recognized principles of fish and wildlife
conservation, and not be detrimental to the satisfaction of subsistence
needs. This corresponds to the reasons under which the Board may reject
a Regional Council recommendation;
Section __.14(b)--Clarified that the Board's authority includes
trapping, as well as hunting and fishing;
Section ____.18--Removed duplicative language;
Section ____.19(c)--Revised the statement that implied that any
Special Action that is not accepted would be deferred to the next
regulatory cycle. Upon further consideration, a proponent may not wish
to have his/her request appear in the next cycle because conditions may
have changed or other information is now available warranting other
action;
Section ____.20--Inserted a requirement for the Board to provide a
copy of any Request for Reconsideration for review and recommendation
to the Alaska Department of Fish and Game;
Section ____.23(a)--Included the areas of Kenai, Seward, and Homer
to the list of non-rural areas. This reflects the Board's May 2001
recision of its May 2000 decision that had determined these communities
to be rural; and,
Section ____.23(a)--Corrected the description of one location in
the Ketchikan area (Mountain Point versus Mountain Pass) and parts of
Gravina Island.
Nothing in this rule is intended to change the underlying rural
priority that is set out in Title VIII of ANILCA or otherwise amend the
statutory basis of the Federal Subsistence Management Program. Although
most sections of these regulations are not being amended, for the
purpose of clarity and ease of understanding, the entire text of
subparts A and B, and portions of C is being printed. The unpublished
sections (portions of subpart C and Sections ____.25, ____.26, ____.27,
and ____.28) relate to wildlife, fish, and shellfish regulations that
are revised annually. Because this rule relates to public lands managed
by an agency or agencies in both the Departments of Agriculture and the
Interior, identical text is incorporated into 36 CFR part 242 and 50
CFR part 100.
The primary purpose of the interim rulemaking action was to
delegate additional authority from the Board to local officials to make
conservation decisions. We published an interim rule because there was
inadequate time to engage in notice-and-comment rulemaking prior to the
start of the spring/summer salmon runs. Many of these runs,
particularly on the Yukon and Kuskokwim Rivers, were the lowest in
history last year and were expected to be very low again this past
season. As such, the ability to make immediate (often within hours)
decisions relative to a specific run or pulse of fish was critical in
protecting the health of the population while, if at all possible,
providing a subsistence opportunity for the rural residents.
Conformance with Statutory and Regulatory Authorities
National Environmental Policy Act Compliance--A Draft Environmental
Impact Statement (DEIS) that described four alternatives 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 analysis and examined the
environmental consequences of the 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 an annual
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 comment 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, it was the
decision of the Secretary of the Interior, with the concurrence of the
Secretary of Agriculture, through the U.S. Department of Agriculture-
Forest Service, to implement 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 an annual 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 (57 FR 22940-22964,
published May 29, 1992) implemented the Federal Subsistence Management
Program and included a framework for an annual cycle for subsistence
hunting and fishing regulations.
An environmental assessment has been prepared on the expansion of
Federal jurisdiction over fisheries and is available by contacting the
office listed under FOR FURTHER INFORMATION CONTACT. The Secretary of
the Interior with the concurrence of the Secretary of Agriculture has
determined that the expansion of Federal jurisdiction does not
constitute a major Federal action, significantly affecting the human
environment and has, therefore, signed a Finding of No Significant
Impact.
Compliance with Section 810 of ANILCA--A 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 which concluded that the Federal
Subsistence Management Program, under Alternative IV with an annual
process for setting hunting and fishing regulations, may have some
local impacts on subsistence uses, but it does not appear that the
program may significantly restrict subsistence uses.
During the environmental assessment process, an evaluation of the
effects of this rule was also conducted in accordance with Section 810.
This evaluation supports the Secretaries' determination that the final
rule will not reach the ``may significantly restrict'' threshold for
notice and hearings under ANILCA Section 810(a) for any subsistence
resources or uses.
Paperwork Reduction Act--This rule contains information collection
requirements subject to Office of Management and Budget (OMB) approval
under the Paperwork Reduction Act of 1995. It applies to the
[[Page 30562]]
use of public lands in Alaska. The information collection has been
approved by OMB, Control Number 1018-0075, which expires July 31, 2003.
An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Currently, information is being collected by the use of a Federal
Subsistence Registration Permit and Designated Harvester Application.
The information collected on these two permits establishes whether an
applicant qualifies to participate in a Federal subsistence hunt or
fishery on public land in Alaska and provides a report of harvest and
the location of harvest. The collected information is necessary to
determine harvest success, harvest location, and population health in
order to make management decisions relative to the conservation of
healthy fish or wildlife populations. Additional harvest information is
obtained from harvest reports submitted to the State of Alaska. The
recordkeeping burden for this aspect of the program is negligible (1
hour or less). This information is accessed via computer data base.
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Completion Estimated
Estimated time for Estimated annual Hourly cost
Form number of each form annual burden (in for Financial burden on respondents
respondents (in hours) response hours) respondent
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Federal Subsistence Registration 15,000 \1/4\ 15,000 3,750 $20.00 $5.00 each or $75,000 total
Permit.
Designated Harvester Application.... 2,000 \1/4\ 2,000 500 $20.00 $5.00 each or $10,000 total
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The information collected will establish whether the applicant
qualifies to participate in a Federal subsistence hunt or fishery on
public land in Alaska and will provide a report of harvest and location
of harvest.
You may direct comments on the burden estimate or any other aspect
of this form to: Information Collection Officer, U.S. Fish and Wildlife
Service, 1849 C Street, NW, MS 222 ARLSQ, Washington, D.C. 20240; and
the Office of Management and Budget, Department of the Interior Desk
Officer, 725 17th Street, NW., Washington, D.C. 20503. Additional
information collection requirements may be imposed if local advisory
committees subject to the Federal Advisory Committee Act are
established under subpart B. Such requirements will be submitted to OMB
for approval prior to their implementation.
Clarity of the Rule Executive Order 12866 requires each agency to
write regulations that are easy to understand. We invite your comments
on how to make this rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the rule
clearly stated? (2) Does the rule contain technical language or jargon
that interferes with its clarity? (3) Does the format of the rule
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Would the rule be easier to understand
if it were divided into more (but shorter) sections? (A ``section''
appears in bold type and is preceded by the symbol ``Sec. '' and a
numbered heading; for example, Sec. __.24 Customary and traditional
determinations.) (5) Is the description of the rule in the
SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the rule? What else could we do to make the rule easier
to understand? Send a copy of any comments that concern how we could
make this rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240. You may also e-mail the comments to this address:
Exsec@ios.doi.gov.
Economic Effects This rule is not a significant rule subject to OMB
review under Executive Order 12866. This rulemaking will impose no
significant costs on small entities; this rule does not restrict any
existing sport or commercial fishery on the public lands and
subsistence fisheries will continue at essentially the same levels as
they presently occur. The exact number of businesses and the amount of
trade that will result from this Federal land-related activity is
unknown. The aggregate effect is an insignificant positive economic
effect on a number of small entities, such as ammunition, snowmachine,
fishing tackle, and gasoline dealers. The number of small entities
affected is unknown; but, the fact that the positive effects will be
seasonal in nature and will, in most cases, merely continue preexisting
uses of public lands indicates that they will not be significant.
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, it is
estimated that 24 million pounds of fish (including 8.3 million pounds
of salmon) are harvested by subsistence users annually and, if given an
estimated dollar value of $3.00 per pound for salmon and $0.58 per
pound for other fish, would equate to about $34 million in food value
state-wide. We also estimate that 2 million pounds of meat are
harvested by subsistence users annually and, if given an estimated
dollar value of $3.00 per pound, would equate to about $6 million in
food value state-wide.
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 economic impact on a substantial number of small entities,
which include small businesses, organizations or governmental
jurisdictions. The Departments have determined based on the above
figures that this rulemaking will not have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act. Under the Small Business Regulatory
Enforcement 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.
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.
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
[[Page 30563]]
imposed on any state or local entities or tribal governments.
The Secretaries have determined that these final regulations meet
the applicable standards provided in Sections 3(a) and 3(b)(2) of
Executive Order 12988.
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.
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
have evaluated possible effects on Federally recognized Indian tribes
and have determined that there are no effects. The Bureau of Indian
Affairs is a participating agency in this rulemaking.
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, or
use. This Executive Order requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. As this rule is not a
significant regulatory action under Executive Order 13211, affecting
energy supply, distribution, or use, this action is not a significant
action and no Statement of Energy Effects is required.
Drafting Information--These regulations were drafted by William
Knauer under the guidance of Thomas H. Boyd, of the Office of
Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife
Service, Anchorage, Alaska. Additional guidance was provided by Taylor
Brelseford, Alaska State Office, Bureau of Land Management; Sandy
Rabinowitch and Bob Gerhard, Alaska Regional Office, National Park
Service; Greg Bos and Rod Simmons, Alaska Regional Office, U.S. Fish
and Wildlife Service; Ida Hildebrand, Alaska Regional Office, Bureau of
Indian Affairs; and Ken Thompson, USDA-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 Departments amend
Title 36, Part 242, and Title 50, Part 100, of the Code of Federal
Regulations, as set forth below.
PART--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA
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. Revise subparts A and B of 36 CFR part 242 and 50 CFR part 100
to read as follows:
Subpart A--General Provisions
Sec.
____.1 Purpose.
____.2 Authority.
____.3 Applicability and scope.
____.4 Definitions.
____.5 Eligibility for subsistence use.
____.6 Licenses, permits, harvest tickets, tags, and reports.
____.7 Restriction on use.
____.8 Penalties.
____.9 Information collection requirements.
Subpart B--Program Structure
____.10 Federal Subsistence Board.
____.11 Regional advisory councils.
____.12 Local advisory committees.
____.13 Board/agency relationships.
____.14 Relationship to State procedures and regulations.
____.15 Rural determination process.
____.16 Customary and traditional use determination process.
____.17 Determining priorities for subsistence uses among rural
Alaska residents.
____.18 Regulation adoption process.
____.19 Special actions.
____.20 Request for reconsideration.
____.21 [Reserved]
Subpart A--General Provisions
Sec. ______.1 Purpose.
The regulations in this part implement the Federal Subsistence
Management Program on public lands within the State of Alaska.
Sec. ______.2 Authority.
The Secretary of the Interior and Secretary of Agriculture issue
the regulations in this part pursuant to authority vested in Title VIII
of the Alaska National Interest Lands Conservation Act (ANILCA), 16
U.S.C. 3101-3126.
Sec. ______.3 Applicability and scope.
(a) The regulations in this part implement the provisions of Title
VIII of ANILCA relevant to the taking of fish and wildlife on public
lands in the State of Alaska. The regulations in this part do not
permit subsistence uses in Glacier Bay National Park, Kenai Fjords
National Park, Katmai National Park, and that portion of Denali
National Park established as Mt. McKinley National Park prior to
passage of ANILCA, where subsistence taking and uses are prohibited.
The regulations in this part do not supersede agency-specific
regulations.
(b) The regulations contained in this part apply on all public
lands including all non-navigable waters located on these lands, on all
navigable and non-navigable water within the exterior boundaries of the
following areas, and on inland waters adjacent to the exterior
boundaries of the following areas:
(1) Alaska Maritime National Wildlife Refuge;
(2) Alaska Peninsula National Wildlife Refuge;
(3) Aniakchak National Monument and Preserve;
(4) Arctic National Wildlife Refuge;
(5) Becharof National Wildlife Refuge;
(6) Bering Land Bridge National Preserve;
(7) Cape Krusenstern National Monument;
(8) Chugach National Forest, excluding marine waters;
(9) Denali National Preserve and the 1980 additions to Denali National
Park;
(10) Gates of the Arctic National Park and Preserve;
(11) Glacier Bay National Preserve;
(12) Innoko National Wildlife Refuge;
(13) Izembek National Wildlife Refuge;
(14) Katmai National Preserve;
(15) Kanuti National Wildlife Refuge;
(16) Kenai National Wildlife Refuge;
(17) Kobuk Valley National Park;
(18) Kodiak National Wildlife Refuge;
(19) Koyukuk National Wildlife Refuge;
(20) Lake Clark National Park and Preserve;
(21) National Petroleum Reserve in Alaska;
(22) Noatak National Preserve;
(23) Nowitna National Wildlife Refuge;
(24) Selawik National Wildlife Refuge;
(25) Steese National Conservation Area;
(26) Tetlin National Wildlife Refuge;
(27) Togiak National Wildlife Refuge;
(28) Tongass National Forest, including Admiralty Island National
Monument and Misty Fjords National Monument, and excluding marine
waters;
(29) White Mountain National Recreation Area;
(30) Wrangell-St. Elias National Park and Preserve;
(31) Yukon-Charley Rivers National Preserve;
(32) Yukon Delta National Wildlife Refuge;
[[Page 30564]]
(33) Yukon Flats National Wildlife Refuge;
(34) All components of the Wild and Scenic River System located outside
the boundaries of National Parks, National Preserves, or National
Wildlife Refuges, including segments of the Alagnak River, Beaver
Creek, Birch Creek, Delta River, Fortymile River, Gulkana River, and
Unalakleet River.
(c) The public lands described in paragraph (b) of this section
remain subject to change through rulemaking pending a Department of the
Interior review of title and jurisdictional issues regarding certain
submerged lands beneath navigable waters in Alaska.
Sec. ______.4 Definitions.
The following definitions apply to all regulations contained in
this part:
Agency means a subunit of a cabinet-level Department of the Federal
Government having land management authority over the public lands
including, but not limited to, the U.S. Fish & Wildlife Service, Bureau
of Indian Affairs, Bureau of Land Management, National Park Service,
and USDA Forest Service.
ANILCA means the Alaska National Interest Lands Conservation Act,
Public Law 96-487, 94 Stat. 2371, (codified, as amended, in scattered
sections of 16 U.S.C. and 43 U.S.C.)
Area, District, Subdistrict, and Section mean one of the
geographical areas defined in the codified Alaska Department of Fish
and Game regulations found in Title 5 of the Alaska Administrative
Code.
Barter means the exchange of fish or wildlife or their parts taken
for subsistence uses; for other fish, wildlife or their parts; or, for
other food or for nonedible items other than money, if the exchange is
of a limited and noncommercial nature.
Board means the Federal Subsistence Board as described in
Sec. ____.10.
Commissions means the Subsistence Resource Commissions established
pursuant to section 808 of ANILCA.
Conservation of healthy populations of fish and wildlife means the
maintenance of fish and wildlife resources and their habitats in a
condition that assures stable and continuing natural populations and
species mix of plants and animals in relation to their ecosystem,
including the recognition that local rural residents engaged in
subsistence uses may be a natural part of that ecosystem; minimizes the
likelihood of irreversible or long-term adverse effects upon such
populations and species; ensures the maximum practicable diversity of
options for the future; and recognizes that the policies and legal
authorities of the managing agencies will determine the nature and
degree of management programs affecting ecological relationships,
population dynamics, and the manipulation of the components of the
ecosystem.
Customary trade means exchange for cash of fish and wildlife
resources regulated in this part, not otherwise prohibited by Federal
law or regulation, to support personal and family needs; and does not
include trade which constitutes a significant commercial enterprise.
Customary and traditional use means a long-established, consistent
pattern of use, incorporating beliefs and customs which have been
transmitted from generation to generation. This use plays an important
role in the economy of the community.
FACA means the Federal Advisory Committee Act, Public Law 92-463,
86 Stat. 770 (codified as amended, at 5 U.S.C. Appendix II, 1-15).
Family means all persons related by blood, marriage, or adoption or
any other person living within the household on a permanent basis.
Federal Advisory Committees or Federal Advisory Committee means the
Federal Local Advisory Committees as described in Sec. ____.12
Federal lands means lands and waters and interests therein the
title to which is in the United States, including navigable and non-
navigable waters in which the United States has reserved water rights.
Fish and wildlife means any member of the animal kingdom, including
without limitation any mammal, fish, bird (including any migratory,
nonmigratory, or endangered bird for which protection is also afforded
by treaty or other international agreement), amphibian, reptile,
mollusk, crustacean, arthropod, or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the carcass or part
thereof.
Game Management Unit or GMU means one of the 26 geographical areas
listed under game management units in the codified State of Alaska
hunting and trapping regulations and the Game Unit Maps of Alaska.
Inland Waters means, for the purposes of this part, those waters
located landward of the mean high tide line or the waters located
upstream of the straight line drawn from headland to headland across
the mouths of rivers or other waters as they flow into the sea. Inland
waters include, but are not limited to, lakes, reservoirs, ponds,
streams, and rivers.
Marine Waters means, for the purposes of this part, those waters
located seaward of the mean high tide line or the waters located
seaward of the straight line drawn from headland to headland across the
mouths of rivers or other waters as they flow into the sea.
Person means an individual and does not include a corporation,
company, partnership, firm, association, organization, business, trust,
or society.
Public lands or public land means:
(1) Lands situated in Alaska which are Federal lands, except--
(i) Land selections of the State of Alaska which have been
tentatively approved or validly selected under the Alaska Statehood Act
and lands which have been confirmed to, validly selected by, or granted
to the Territory of Alaska or the State under any other provision of
Federal law;
(ii) Land selections of a Native Corporation made under the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which have not
been conveyed to a Native Corporation, unless any such selection is
determined to be invalid or is relinquished; and
(iii) Lands referred to in section 19(b) of the Alaska Native
Claims Settlement Act, 43 U.S.C. 1618(b).
(2) Notwithstanding the exceptions in paragraphs (1)(i) through
(iii) of this definition, until conveyed or interim conveyed, all
Federal lands within the boundaries of any unit of the National Park
System, National Wildlife Refuge System, National Wild and Scenic
Rivers Systems, National Forest Monument, National Recreation Area,
National Conservation Area, new National forest or forest addition
shall be treated as public lands for the purposes of the regulations in
this part pursuant to section 906(o)(2) of ANILCA.
Regional Councils or Regional Council means the Regional Advisory
Councils as described in Sec. ___.11.
Regulatory year means July 1 through June 30, except for fish and
shellfish where it means March 1 through the last day of February.
Reserved water right(s) means the Federal right to use
unappropriated appurtenant water necessary to accomplish the purposes
for which a Federal reservation was established. Reserved water rights
include nonconsumptive and consumptive uses.
Resident means any person who has his or her primary, permanent
home for the previous 12 months within Alaska and whenever absent from
this primary, permanent home, has the intention of returning to it.
Factors demonstrating the location of a person's primary, permanent
home may include, but are
[[Page 30565]]
not limited to: the address listed on an Alaska Permanent Fund dividend
application; an Alaska license to drive, hunt, fish, or engage in an
activity regulated by a government entity; affidavit of person or
persons who know the individual; voter registration; location of
residences owned, rented, or leased; location of stored household
goods; residence of spouse, minor children, or dependents; tax
documents; or whether the person claims residence in another location
for any purpose.
Rural means any community or area of Alaska determined by the Board
to qualify as such under the process described in Sec. ______.15.
Secretary means the Secretary of the Interior, except that in
reference to matters related to any unit of the National Forest System,
such term means the Secretary of Agriculture.
State means the State of Alaska.
Subsistence uses means the customary and traditional uses by rural
Alaska residents of wild, renewable resources for direct personal or
family consumption as food, shelter, fuel, clothing, tools, or
transportation; for the making and selling of handicraft articles out
of nonedible byproducts of fish and wildlife resources taken for
personal or family consumption; for barter, or sharing for personal or
family consumption; and for customary trade.
Take or taking as used with respect to fish or wildlife, means to
pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or
attempt to engage in any such conduct.
Year means calendar year unless another year is specified.
Sec. ______.5 Eligibility for subsistence use.
(a) You may take fish and wildlife on public lands for subsistence
uses only if you are an Alaska resident of a rural area or rural
community. The regulations in this part may further limit your
qualifications to harvest fish or wildlife resources for subsistence
uses. If you are not an Alaska resident or are a resident of a non-
rural area or community listed in Sec. ____.23, you may not take fish
or wildlife on public lands for subsistence uses under the regulations
in this part.
(b) Where the Board has made a customary and traditional use
determination regarding subsistence use of a specific fish stock or
wildlife population, in accordance with, and as listed in,
Sec. ____.24, only those Alaskans who are residents of rural areas or
communities designated by the Board are eligible for subsistence taking
of that population or stock on public lands for subsistence uses under
the regulations in this part. If you do not live in one of those areas
or communities, you may not take fish or wildlife from that population
or stock, on public lands under the regulations in this part.
(c) Where customary and traditional use determinations for a fish
stock or wildlife population within a specific area have not yet been
made by the Board (e.g., ``no determination''), all Alaskans who are
residents of rural areas or communities may harvest for subsistence
from that stock or population under the regulations in this part.
(d) The National Park Service may regulate further the eligibility
of those individuals qualified to engage in subsistence uses on
National Park Service lands in accordance with specific authority in
ANILCA, and National Park Service regulations at 36 CFR Part 13.
Sec. ______.6 Licenses, permits, harvest tickets, tags, and reports.
(a) If you wish to take fish and wildlife on public lands for
subsistence uses, you must be an eligible rural Alaska resident and:
(1) Possess the pertinent valid Alaska resident hunting and
trapping licenses (no license required to take fish or shellfish, but
you must be an Alaska resident) unless Federal licenses are required or
unless otherwise provided for in subpart D of this part;
(2) Possess and comply with the provisions of any pertinent Federal
permits (Federal Subsistence Registration Permit or Federal Designated
Harvester Permit) required by subpart D of this part; and
(3) Possess and comply with the provisions of any pertinent
permits, harvest tickets, or tags required by the State unless any of
these documents or individual provisions in them are superseded by the
requirements in subpart D of this part.
(b) In order to receive a Federal Subsistence Registration Permit
or Federal Designated Harvester Permit or designate someone to harvest
fish or wildlife for you under a Federal Designated Harvester Permit,
you must be old enough to have reasonably harvested that species
yourself (or under the guidance of an adult.)
(c) If you have been awarded a permit to take fish and wildlife,
you must have that permit in your possession during the taking and must
comply with all requirements of the permit and the regulations in this
section pertaining to validation and reporting and to regulations in
subpart D of this part pertaining to methods and means, possession and
transportation, and utilization. Upon the request of a State or Federal
law enforcement agent, you must also produce any licenses, permits,
harvest tickets, tags, or other documents required by this section. If
you are engaged in taking fish and wildlife under the regulations in
this part, you must allow State or Federal law enforcement agents to
inspect any apparatus designed to be used, or capable of being used to
take fish or wildlife, or any fish or wildlife in your possession.
(d) You must validate the harvest tickets, tags, permits, or other
required documents before removing your kill from the harvest site. You
must also comply with all reporting provisions as set forth in subpart
D of this part.
(e) If you take fish and wildlife under a community harvest system,
you must report the harvest activity in accordance with regulations
specified for that community in subpart D of this part, and as required
by any applicable permit conditions. Individuals may be responsible for
particular reporting requirements in the conditions permitting a
specific community's harvest. Failure to comply with these conditions
is a violation of the regulations in this part. Community harvests are
reviewed annually under the regulations in subpart D of this part.
(f) You may not make a fraudulent application for Federal or State
licenses, permits, harvest tickets or tags or intentionally file an
incorrect harvest report.
Sec. ______.7 Restriction on use.
(a) You may not use fish or wildlife or their parts, taken pursuant
to the regulations in this part, unless provided for in this part.
(b) You may not exchange in customary trade or sell fish or
wildlife or their parts, taken pursuant to the regulations in this
part, unless provided for in this part.
(c) You may barter fish or wildlife or their parts, taken pursuant
to the regulations in this part, unless restricted in Secs. ____.25,
____.26, ____.27, or ____.28.
Sec. ______.8 Penalties.
If you are convicted of violating any provision of 50 CFR Part 100
or 36 CFR Part 242, you may be punished by a fine or by imprisonment in
accordance with the penalty provisions applicable to the public land
where the violation occurred.
Sec. ______.9 Information collection requirements.
(a) The rules in this part contain information collection
requirements subject to Office of Management and
[[Page 30566]]
Budget (OMB) approval under 44 U.S.C. 3501-3520. They apply to fish and
wildlife harvest activities on public lands in Alaska. Subsistence
users will not be required to respond to an information collection
request unless a valid OMB number is displayed on the information
collection form.
(1) Section ____.6, Licenses, permits, harvest tickets, tags, and
reports. The information collection requirements contained in
Sec. ____.6 (Federal Subsistence Registration Permit or Federal
Designated Harvester Permit forms) provide for permit-specific
subsistence activities not authorized through the general adoption of
State regulations. Identity and location of residence are required to
determine if you are eligible for a permit and a report of success is
required after a harvest attempt. These requirements are not
duplicative with the requirements of paragraph (a)(3) of this section.
The regulations in Sec. ----.6 require this information before a rural
Alaska resident may engage in subsistence uses on public lands. The
Department estimates that the average time necessary to obtain and
comply with this permit information collection requirement is 0.25
hours.
(2) Section ____.20, Request for reconsideration. The information
collection requirements contained in Sec. ----.20 provide a
standardized process to allow individuals the opportunity to appeal
decisions of the Board. Submission of a request for reconsideration is
voluntary but required to receive a final review by the Board. We
estimate that a request for reconsideration will take 4 hours to
prepare and submit.
(3) The remaining information collection requirements contained in
this part imposed upon subsistence users are those adopted from State
regulations. These collection requirements would exist in the absence
of Federal subsistence regulations and are not subject to the Paperwork
Reduction Act. The burden in this situation is negligible, and
information gained from these reports is systematically available to
Federal managers by routine computer access requiring less than 1 hour.
(b) You may direct comments on the burden estimate or any other
aspect of the burden estimate to: Information Collection Officer, U.S.
Fish and Wildlife Service, 1849 C Street, N.W., MS 222 ARLSQ,
Washington, D.C. 20240; and the Office of Management and Budget,
Paperwork Reduction Project (Subsistence), Washington, D.C. 20503.
Additional information requirements may be imposed if Local Advisory
Committees or additional Regional Councils, subject to the Federal
Advisory Committee Act (FACA), are established under subpart B of this
part. Such requirements will be submitted to OMB for approval prior to
their implementation.
Subpart B--Program Structure
Sec. ______.10 Federal Subsistence Board.
(a) The Secretary of the Interior and Secretary of Agriculture
hereby establish a Federal Subsistence Board, and assign it
responsibility for administering the subsistence taking and uses of
fish and wildlife on public lands, and the related promulgation and
signature authority for regulations of subparts C and D of this part.
The Secretaries, however, retain their existing authority to restrict
or eliminate hunting, fishing, or trapping activities which occur on
lands or waters in Alaska other than public lands when such activities
interfere with subsistence hunting, fishing, or trapping on the public
lands to such an extent as to result in a failure to provide the
subsistence priority.
(b) Membership. (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; 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 member of the Board may appoint a
designee.
(2) [Reserved]
(c) Liaisons to the Board are: a State liaison, and the Chairman of
each Regional Council. The State liaison and the Chairman of each
Regional Council may attend public sessions of all Board meetings and
be actively involved as consultants to the Board.
(d) Powers and duties. (1) The Board shall meet at least twice per
year and at such other times as deemed necessary. Meetings shall occur
at the call of the Chair, but any member may request a meeting.
(2) A quorum consists of four members.
(3) No action may be taken unless a majority of voting members are
in agreement.
(4) The Board is empowered, to the extent necessary, to implement
Title VIII of ANILCA, to:
(i) Issue regulations for the management of subsistence taking and
uses of fish and wildlife on public lands;
(ii) Determine which communities or areas of the State are rural or
non-rural;
(iii) Determine which rural Alaska areas or communities have
customary and traditional subsistence uses of specific fish and
wildlife populations;
(iv) Allocate subsistence uses of fish and wildlife populations on
public lands;
(v) Ensure that the taking on public lands of fish and wildlife for
nonwasteful subsistence uses shall be accorded priority over the taking
on such lands of fish and wildlife for other purposes;
(vi) Close public lands to the non-subsistence taking of fish and
wildlife;
(vii) Establish priorities for the subsistence taking of fish and
wildlife on public lands among rural Alaska residents;
(viii) Restrict or eliminate taking of fish and wildlife on public
lands;
(ix) Determine what types and forms of trade of fish and wildlife
taken for subsistence uses constitute allowable customary trade;
(x) Authorize the Regional Councils to convene;
(xi) Establish a Regional Council in each subsistence resource
region and recommend to the Secretaries, appointees to the Regional
Councils, pursuant to the FACA;
(xii) Establish Federal Advisory Committees within the subsistence
resource regions, if necessary, and recommend to the Secretaries that
members of the Federal Advisory Committees be appointed from the group
of individuals nominated by rural Alaska residents;
(xiii) Establish rules and procedures for the operation of the
Board, and the Regional Councils;
(xiv) Review and respond to proposals for regulations, management
plans, policies, and other matters related to subsistence taking and
uses of fish and wildlife;
(xv) Enter into cooperative agreements or otherwise cooperate with
Federal agencies, the State, Native organizations, local governmental
entities, and other persons and organizations, including international
entities to effectuate the purposes and policies of the Federal
subsistence management program;
(xvi) Develop alternative permitting processes relating to the
subsistence taking of fish and wildlife to ensure continued
opportunities for subsistence;
(xvii) Evaluate whether hunting, fishing, or trapping activities
which occur on lands or waters in Alaska other than public lands
interfere with
[[Page 30567]]
subsistence hunting, fishing, or trapping on the public lands to such
an extent as to result in a failure to provide the subsistence
priority, and after appropriate consultation with the State of Alaska,
the Regional Councils, and other Federal agencies, make a
recommendation to the Secretaries for their action;
(xviii) Identify, in appropriate specific instances, whether there
exists additional Federal reservations, Federal reserved water rights
or other Federal interests in lands or waters, including those in which
the United States holds less than a fee ownership, to which the Federal
subsistence priority attaches, and make appropriate recommendation to
the Secretaries for inclusion of those interests within the Federal
Subsistence Management Program; and
(xix) Take other actions authorized by the Secretaries to implement
Title VIII of ANILCA.
(5) The Board may implement one or more of the following harvest
and harvest reporting or permit systems:
(i) The fish and wildlife is taken by an individual who is required
to obtain and possess pertinent State harvest permits, tickets, or
tags, or Federal permit (Federal Subsistence Registration Permit);
(ii) A qualified subsistence user may designate another qualified
subsistence user (by using the Federal Designated Harvester Permit) to
take fish and wildlife on his or her behalf;
(iii) The fish and wildlife is taken by individuals or community
representatives permitted (via a Federal Subsistence Registration
Permit) a one-time or annual harvest for special purposes including
ceremonies and potlatches; or
(iv) The fish and wildlife is taken by representatives of a
community permitted to do so in a manner consistent with the
community's customary and traditional practices.
(6) The Board may delegate to agency field officials the authority
to set harvest and possession limits, define harvest areas, specify
methods or means of harvest, specify permit requirements, and open or
close specific fish or wildlife harvest seasons within frameworks
established by the Board.
(7) The Board shall establish a Staff Committee for analytical and
administrative assistance composed of members from the U.S. Fish and
Wildlife Service, National Park Service, U.S. Bureau of Land
Management, Bureau of Indian Affairs, and USDA Forest Service. A U.S.
Fish and Wildlife Service representative shall serve as Chair of the
Staff Committee.
(8) The Board may establish and dissolve additional committees as
necessary for assistance.
(9) The U.S. Fish and Wildlife Service shall provide appropriate
administrative support for the Board.
(10) The Board shall authorize at least two meetings per year for
each Regional Council.
(e) Relationship to Regional Councils. (1) The Board shall consider
the reports and recommendations of the Regional Councils concerning the
taking of fish and wildlife on public lands within their respective
regions for subsistence uses. The Board may choose not to follow any
Regional Council recommendation which it determines is not supported by
substantial evidence, violates recognized principles of fish and
wildlife conservation, would be detrimental to the satisfaction of
subsistence needs, or in closure situations, for reasons of public
safety or administration or to assure the continued viability of a
particular fish or wildlife population. If a recommendation is not
adopted, the Board shall set forth the factual basis and the reasons
for the decision, in writing, in a timely fashion.
(2) The Board shall provide available and appropriate technical
assistance to the Regional Councils.
Sec. ______.11 Regional advisory councils.
(a) The Board shall establish a Regional Council for each
subsistence resource region to participate in the Federal subsistence
management program. The Regional Councils shall be established, and
conduct their activities, in accordance with the FACA. The Regional
Councils shall provide a regional forum for the collection and
expression of opinions and recommendations on matters related to
subsistence taking and uses of fish and wildlife resources on public
lands. The Regional Councils shall provide for public participation in
the Federal regulatory process.
(b) Establishment of Regional Councils; membership. (1) The number
of members for each Regional Council shall be established by the Board,
and shall be an odd number. A Regional Council member must be a
resident of the region in which he or she is appointed and be
knowledgeable about the region and subsistence uses of the public lands
therein. The Board shall accept nominations and make recommendations to
the Secretaries for representatives on the Regional Councils.
Appointments to the Regional Councils shall be made by the Secretaries.
(2) Regional Council members shall serve 3-year terms and may be
reappointed. Initial members shall be appointed with staggered terms up
to 3 years.
(3) The Chair of each Regional Council shall be elected by the
applicable Regional Council, from its membership, for a 1-year term and
may be reelected.
(c) Powers and Duties. (1) The Regional Councils are authorized to:
(i) Hold public meetings related to subsistence uses of fish and
wildlife within their respective regions, after the Chair of the Board
or the designated Federal Coordinator has called the meeting and
approved the meeting agenda;
(ii) Elect officers;
(iii) Review, evaluate, and make recommendations to the Board on
proposals for regulations, policies, management plans, and other
matters relating to the subsistence take of fish and wildlife under the
regulations in this part within the region;
(iv) Provide a forum for the expression of opinions and
recommendations by persons interested in any matter related to the
subsistence uses of fish and wildlife within the region;
(v) Encourage local and regional participation, pursuant to the
provisions of the regulations in this part in the decisionmaking
process affecting the taking of fish and wildlife on the public lands
within the region for subsistence uses;
(vi) Prepare and submit to the Board an annual report containing--
(A) An identification of current and anticipated subsistence uses
of fish and wildlife populations within the region;
(B) An evaluation of current and anticipated subsistence needs for
fish and wildlife populations from the public lands within the region;
(C) A recommended strategy for the management of fish and wildlife
populations within the region to accommodate such subsistence uses and
needs related to the public lands; and
(D) Recommendations concerning policies, standards, guidelines, and
regulations to implement the strategy;
(vii) Appoint members to each Subsistence Resource Commission
within their region in accordance with the requirements of Section 808
of ANILCA;
(viii) Make recommendations on determinations of customary and
traditional use of subsistence resources;
(ix) Make recommendations on determinations of rural status;
(x) Make recommendations regarding the allocation of subsistence
uses among
[[Page 30568]]
rural Alaska residents pursuant to Sec. ____.17;
(xi) Develop proposals pertaining to the subsistence taking and use
of fish and wildlife under the regulations in this part, and review and
evaluate such proposals submitted by other sources;
(xii) Provide recommendations on the establishment and membership
of Federal Advisory Committees.
(2) The Regional Councils shall:
(i) Operate in conformance with the provisions of FACA and comply
with rules of operation established by the Board;
(ii) Perform other duties specified by the Board.
(3) The Regional Council recommendations to the Board should be
supported by substantial evidence, be consistent with recognized
principles of fish and wildlife conservation, and not be detrimental to
the satisfaction of subsistence needs.
Sec. ______.12 Local advisory committees.
(a) The Board shall establish such local Federal Advisory
Committees within each region as necessary at such time that it is
determined, after notice and hearing and consultation with the State,
that the existing State fish and game advisory committees do not
adequately provide advice to, and assist, the particular Regional
Council in carrying out its function as set forth in Sec. ____.11.
(b) Local Federal Advisory Committees, if established by the Board,
shall operate in conformance with the provisions of the FACA, and
comply with rules of operation established by the Board.
Sec. ______.13 Board/agency relationships.
(a) General. (1) The Board, in making decisions or recommendations,
shall consider and ensure compliance with specific statutory
requirements regarding the management of resources on public lands,
recognizing that the management policies applicable to some public
lands may entail methods of resource and habitat management and
protection different from methods appropriate for other public lands.
(2) The Board shall issue regulations for subsistence taking of
fish and wildlife on public lands. The Board is the final
administrative authority on the promulgation of subparts C and D
regulations relating to the subsistence taking of fish and wildlife on
public lands.
(3) Nothing in the regulations in this part shall enlarge or
diminish the authority of any agency to issue regulations necessary for
the proper management of public lands under their jurisdiction in
accordance with ANILCA and other existing laws.
(b) Section 808 of ANILCA establishes National Park and Park
Monument Subsistence Resource Commissions. Nothing in the regulations
in this part affects the duties or authorities of these commissions.
Sec. ______.14 Relationship to State procedures and regulations.
(a) State fish and game regulations apply to public lands and such
laws are hereby adopted and made a part of the regulations in this part
to the extent they are not inconsistent with, or superseded by, the
regulations in this part.
(b) The Board may close public lands to hunting, trapping, or
fishing, or take actions to restrict the taking of fish and wildlife
when necessary to conserve healthy populations of fish and wildlife,
continue subsistence uses of such populations, or pursuant to other
applicable Federal law. The Board may review and adopt State openings,
closures, or restrictions which serve to achieve the objectives of the
regulations in this part.
(c) The Board may enter into agreements with the State in order to
coordinate respective management responsibilities.
(d) Petition for repeal of subsistence rules and regulations. (1)
The State of Alaska may petition the Secretaries for repeal of the
subsistence rules and regulations in this part when the State has
enacted and implemented subsistence management and use laws which:
(i) Are consistent with sections 803, 804, and 805 of ANILCA; and
(ii) Provide for the subsistence definition, preference, and
participation specified in sections 803, 804, and 805 of ANILCA.
(2) The State's petition shall:
(i) Be submitted to the Secretary of the Interior, U.S. Department
of the Interior, Washington, D.C. 20240, and the Secretary of
Agriculture, U.S. Department of Agriculture, Washington, D.C. 20240;
(ii) Include the entire text of applicable State legislation
indicating compliance with sections 803, 804, and 805 of ANILCA; and
(iii) Set forth all data and arguments available to the State in
support of legislative compliance with sections 803, 804, and 805 of
ANILCA.
(3) If the Secretaries find that the State's petition contains
adequate justification, a rulemaking proceeding for repeal of the
regulations in this part will be initiated. If the Secretaries find
that the State's petition does not contain adequate justification, the
petition will be denied by letter or other notice, with a statement of
the ground for denial.
Sec. ______.15 Rural determination process.
(a) The Board shall determine if an area or community in Alaska is
rural. In determining whether a specific area of Alaska is rural, the
Board shall use the following guidelines:
(1) A community or area with a population of 2,500 or less shall be
deemed to be rural unless such a community or area possesses
significant characteristics of a non-rural nature, or is considered to
be socially and economically a part of an urbanized area.
(2) Communities or areas with populations above 2,500 but not more
than 7,000 will be determined to be rural or non-rural.
(3) A community with a population of more than 7,000 shall be
presumed non-rural, unless such a community or area possesses
significant characteristics of a rural nature.
(4) Population data from the most recent census conducted by the
United States Bureau of Census as updated by the Alaska Department of
Labor shall be utilized in this process.
(5) Community or area characteristics shall be considered in
evaluating a community's rural or non-rural status. The characteristics
may include, but are not limited to:
(i) Use of fish and wildlife;
(ii) Development and diversity of the economy;
(iii) Community infrastructure;
(iv) Transportation; and
(v) Educational institutions.
(6) Communities or areas which are economically, socially, and
communally integrated shall be considered in the aggregate.
(b) The Board shall periodically review rural determinations. Rural
determinations shall be reviewed on a 10-year cycle, commencing with
the publication of the year 2000 U.S. census. Rural determinations may
be reviewed out-of-cycle in special circumstances. Once the Board makes
a determination that a community has changed from rural to non-rural, a
waiting period of 5 years shall be required before the non-rural
determination becomes effective.
(c) Current determinations are listed at Sec. ____.23.
Sec. ______.16 Customary and traditional use determination process.
(a) The Board shall determine which fish stocks and wildlife
populations have been customarily and traditionally used for
subsistence. These
[[Page 30569]]
determinations shall identify the specific community's or area's use of
specific fish stocks and wildlife populations. For areas managed by the
National Park Service, where subsistence uses are allowed, the
determinations may be made on an individual basis.
(b) A community or area shall generally exhibit the following
factors, which exemplify customary and traditional use. The Board shall
make customary and traditional use determinations based on application
of the following factors:
(1) A long-term consistent pattern of use, excluding interruptions
beyond the control of the community or area;
(2) A pattern of use recurring in specific seasons for many years;
(3) A pattern of use consisting of methods and means of harvest
which are characterized by efficiency and economy of effort and cost,
conditioned by local characteristics;
(4) The consistent harvest and use of fish or wildlife as related
to past methods and means of taking; near, or reasonably accessible
from, the community or area;
(5) A means of handling, preparing, preserving, and storing fish or
wildlife which has been traditionally used by past generations,
including consideration of alteration of past practices due to recent
technological advances, where appropriate;
(6) A pattern of use which includes the handing down of knowledge
of fishing and hunting skills, values, and lore from generation to
generation;
(7) A pattern of use in which the harvest is shared or distributed
within a definable community of persons; and
(8) A pattern of use which relates to reliance upon a wide
diversity of fish and wildlife resources of the area and which provides
substantial cultural, economic, social, and nutritional elements to the
community or area.
(c) The Board shall take into consideration the reports and
recommendations of any appropriate Regional Council regarding customary
and traditional uses of subsistence resources.
(d) Current determinations are listed in Sec. ____.24.
Sec. ______.17 Determining priorities for subsistence uses among rural
Alaska residents.
(a) Whenever it is necessary to restrict the subsistence taking of
fish and wildlife on public lands in order to protect the continued
viability of such populations, or to continue subsistence uses, the
Board shall establish a priority among the rural Alaska residents after
considering any recommendation submitted by an appropriate Regional
Council.
(b) The priority shall be implemented through appropriate
limitations based on the application of the following criteria to each
area, community, or individual determined to have customary and
traditional use, as necessary:
(1) Customary and direct dependence upon the populations as the
mainstay of livelihood;
(2) Local residency; and
(3) The availability of alternative resources.
(c) If allocation on an area or community basis is not achievable,
then the Board shall allocate subsistence opportunity on an individual
basis through application of the criteria in paragraphs (b)(1) through
(3) of this section.
(d) In addressing a situation where prioritized allocation becomes
necessary, the Board shall solicit recommendations from the Regional
Council in the area affected.
Sec. ______.18 Regulation adoption process.
(a) Proposals for changes to the Federal subsistence regulations in
subparts C or D of this part shall be accepted by the Board according
to a published schedule. 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 shall develop and publish
proposed regulations in the Federal Register and publish notice in
local newspapers. Comments on the proposed regulations in the form of
proposals shall be distributed for public review.
(1) Proposals shall be made available for at least a thirty (30)
day review by the Regional Councils. Regional Councils shall forward
their recommendations on proposals to the Board. Such proposals with
recommendations may be submitted in the time period as specified by the
Board or as a part of the Regional Council's annual report described in
Sec. ____.11, whichever is earlier.
(2) The Board shall publish notice throughout Alaska of the
availability of proposals received.
(3) The public shall have at least thirty (30) days to review and
comment on proposals.
(4) After the comment period the Board shall meet to receive public
testimony and consider the proposals. The Board shall consider
traditional use patterns when establishing harvest levels and seasons,
and methods and means. The Board may choose not to follow any
recommendation which the Board determines is not supported by
substantial evidence, violates recognized principles of fish and
wildlife conservation, or would be detrimental to the satisfaction of
subsistence needs. If a recommendation approved by a Regional Council
is not adopted by the Board, the Board shall set forth the factual
basis and the reasons for its decision in writing to the Regional
Council.
(5) Following consideration of the proposals the Board shall
publish final regulations pertaining to subparts C and D of this part
in the Federal Register.
(b) Proposals for changes to subparts A and B of this part shall be
accepted by the Secretary of the Interior in accordance with 43 CFR
part 14.
Sec. ______.19 Special actions.
(a) The Board may restrict, close, or reopen the taking of fish and
wildlife for non-subsistence uses on public lands when necessary to
assure the continued viability of a particular fish or wildlife
population, to continue subsistence uses of a fish or wildlife
population, or for reasons of public safety or administration.
(b) The Board may open, close, or restrict subsistence uses of a
particular fish or wildlife population on public lands to assure the
continued viability of a fish or wildlife population, to continue
subsistence uses of a fish or wildlife population, or for reasons of
public safety or administration.
(c) The Board will accept a request for a change in seasons,
methods and means, harvest limits and/or restrictions on harvest under
this Sec. ______.19 only if there are extenuating circumstances
necessitating a regulatory change before the next annual subpart D
proposal cycle. Extenuating circumstances include unusual and
significant changes in resource abundance or unusual conditions
affecting harvest opportunities that could not reasonably have been
anticipated and that potentially could have significant adverse effects
on the health of fish and wildlife populations or subsistence uses.
Requests for Special Action that do not meet these conditions will be
rejected; however, a rejected Special Action request will be deferred,
if appropriate, to the next annual regulatory proposal cycle for
consideration, after coordination with the submitter. In general,
changes to Customary and Traditional Use Determinations will only be
considered through the annual subpart C proposal cycle.
(d) In an emergency situation, the Board may immediately open,
close,
[[Page 30570]]
liberalize, or restrict subsistence uses of fish and wildlife on public
lands, or close or restrict non-subsistence uses of fish and wildlife
on public lands, if necessary to assure the continued viability of a
fish or wildlife population, to continue subsistence uses of fish or
wildlife, or for public safety reasons. Prior to implementing an
emergency action, the Board shall consult with the State. The emergency
action shall be effective when directed by the Board, may not exceed 60
days, and may not be extended unless it is determined by the Board,
after notice and public hearing, that such action should be extended.
The Board shall, in a timely manner, provide notice via radio
announcement or personal contact of the emergency action and shall
publish notice and reasons justifying the emergency action in
newspapers of any area affected, and in the Federal Register
thereafter.
(e) After consultation with the State, the appropriate Regional
Advisory Council(s), and adequate notice and public hearing, the Board
may make or direct a temporary change to close, open, or adjust the
seasons, to modify the harvest limits, or to modify the methods and
means of harvest for subsistence uses of fish and wildlife populations
on public lands. An affected rural resident, community, Regional
Council, or administrative agency may request a temporary change in
seasons, harvest limits, or methods or means of harvest. In addition, a
temporary change may be made only after the Board 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 non-subsistence users. The decision of the
Board shall be the final administrative action. The temporary change
shall be effective when directed by the Board following notice in the
affected area(s). This notice may include publication in newspapers or
announcement on local radio stations. The Board shall publish notice
and reasons justifying the temporary action in the Federal Register
thereafter. The length of any temporary change shall be confined to the
minimum time period or harvest limit determined by the Board to be
necessary to satisfy subsistence uses. A temporary opening or closure
will not extend beyond the regulatory year for which it is promulgated.
(f) Regulations authorizing any individual agency to direct
temporary or emergency closures on public lands managed by the agency
remain unaffected by the regulations in this part, which authorize the
Board to make or direct restrictions, closures, or temporary changes
for subsistence uses on public lands.
(g) You may not take fish and wildlife in violation of a
restriction, closure, opening, or temporary change authorized by the
Board.
Sec. ______.20 Request for reconsideration.
(a) Regulations in subparts C and D of this part published in the
Federal Register are subject to requests for reconsideration.
(b) Any aggrieved person may file a request for reconsideration
with the Board.
(c) To file a request for reconsideration, you must notify the
Board in writing within sixty (60) days of the effective date or date
of publication of the notice, whichever is earlier, for which
reconsideration is requested.
(d) It is your responsibility to provide the Board with sufficient
narrative evidence and argument to show why the action by the Board
should be reconsidered. The Board will accept a request for
reconsideration only if it is based upon information not previously
considered by the Board, demonstrates that the existing information
used by the Board is incorrect, or demonstrates that the Board's
interpretation of information, applicable law, or regulation is in
error or contrary to existing law. You must include the following
information in your request for reconsideration:
(1) Your name, and mailing address;
(2) The action which you request be reconsidered and the date of
Federal Register publication of that action;
(3) A detailed statement of how you are adversely affected by the
action;
(4) A detailed statement of the facts of the dispute, the issues
raised by the request, and specific references to any law, regulation,
or policy that you believe to be violated and your reason for such
allegation;
(5) A statement of how you would like the action changed.
(e) Upon receipt of a request for reconsideration, the Board shall
transmit a copy of such request to any appropriate Regional Council and
the Alaska Department of Fish and Game (ADFG) for review and
recommendation. The Board shall consider any Regional Council and ADFG
recommendations in making a final decision.
(f) If the request is justified, the Board shall implement a final
decision on a request for reconsideration after compliance with 5
U.S.C. 551-559 (APA).
(g) If the request is denied, the decision of the Board represents
the final administrative action.
Sec. ______.21 [Reserved]
Subpart C--Board Determinations
3. Amend subpart C of 36 CFR part 242 and 50 CFR part 100 by
revising Secs. ____.22 and ____.23 to read as follows:
Sec. ______.22 Subsistence resource regions.
(a) The Board hereby designates the following areas as subsistence
resource regions:
(1) Southeast Region;
(2) Southcentral Region;
(3) Kodiak/Aleutians Region;
(4) Bristol Bay Region;
(5) Yukon-Kuskokwim Delta Region;
(6) Western Interior Region;
(7) Seward Peninsula Region;
(8) Northwest Arctic Region;
(9) Eastern Interior Region;
(10) North Slope Region.
(b) You may obtain maps delineating the boundaries of subsistence
resource regions from the U.S. Fish and Wildlife Service, 3601 C
Street, Suite 1030, Anchorage, Alaska 99503.
Sec. ______.23 Rural determinations.
(a) The Board has determined all communities and areas to be rural
in accordance with Sec. ____.15 except the following:
Adak;
Fairbanks North Star Borough;
Homer area--including Homer, Anchor Point, Kachemak City, and Fritz
Creek;
Juneau area--including Juneau, West Juneau, and Douglas;
Kenai area--including Kenai, Soldotna, Sterling, Nikiski, Salamatof,
Kalifornsky, Kasilof, and Clam Gulch;
Ketchikan area--including Ketchikan City, Clover Pass, North Tongass
Highway, Ketchikan East, Mountain Point, Herring Cove, Saxman East,
Pennock Island, and parts of Gravina Island;
Municipality of Anchorage;
Seward area--including Seward and Moose Pass, Valdez, and
Wasilla area--including Palmer, Wasilla, Sutton, Big Lake, Houston, and
Bodenberg Butte.
You may obtain maps delineating the boundaries of non-rural areas
from the U.S. Fish and Wildlife Service.
(b) [Reserved]
4. Amend Sec. ____.24 by revising paragraph (a) introductory text
to read as follows:
[[Page 30571]]
Sec. ______.24 Customary and traditional use determinations.
(a) The Federal Subsistence Board has determined that rural Alaska
residents of the listed communities, areas, and individuals have
customary and traditional use of the specified species on Federal
public land in the specified areas. Persons granted individual
customary and traditional use determinations will be notified in
writing by the Board. The Fish & Wildlife Service and the local NPS
Superintendent will maintain the list of individuals having customary
and traditional use on National Parks and Monuments. A copy of the list
is available upon request. When there is a determination for specific
communities or areas of residence in a Unit, all other communities not
listed for that species in that Unit have no Federal subsistence
priority for that species in that Unit. If no determination has been
made for a species in a Unit, all rural Alaska residents are eligible
to harvest fish or wildlife under this part.
* * * * *
Dated: April 19, 2002.
Gale Norton,
Secretary of the Interior.
Dated: January 14, 2002.
Dennis E. Bschor,
Regional Forester, USDA--Forest Service.
[FR Doc. 02-11319 Filed 5-6-02; 8:45 am]
BILLING CODE 3410-11-P