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Subsistence Management Regulations for Public Lands in Alaska, Subpart A; Makhnati Island Area
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 24, 2006 (Volume 71, Number 164)]
[Rules and Regulations]
[Page 49997-49999]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au06-10]
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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
RIN 1018-AU70
Subsistence Management Regulations for Public Lands in Alaska,
Subpart A; Makhnati Island Area
AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule revises the jurisdiction of the Federal Subsistence
Management Program by adding submerged lands and waters in the area of
Makhnati Island, near Sitka, Alaska. This would then allow Federal
subsistence users to harvest marine resources in this area under
seasons, harvest limits, and methods specified in Federal Subsistence
Management regulations.
DATES: This rule will be effective September 25, 2006.
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. For questions specific to
National Forest System lands, contact Steve Kessler, Regional
Subsistence Program Leader, USDA, Forest Service, Alaska Region, (907)
786-3888.
ADDRESSES: You may obtain additional information by contacting the
Office of Subsistence Management, 3601 C Street, Suite 1030, Anchorage,
Alaska 99503.
SUPPLEMENTARY INFORMATION:
Background
In Title VIII of the Alaska National Interest Lands Conservation
Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that ``the situation
in Alaska is unique in that, in most cases, no practical alternative
means are available to replace the food supplies and other items
gathered from fish and wildlife which supply rural residents dependent
on subsistence uses * * *'' and that ``continuation of the opportunity
for subsistence uses of resources on public and other lands in Alaska
is threatened * * * .'' As a result, Title VIII requires, among other
things, that the Secretary of the Interior and the Secretary of
Agriculture (Secretaries) implement a program to provide for rural
Alaska residents a priority for the taking for subsistence uses of fish
and wildlife resources on public lands in Alaska, unless the State of
Alaska enacts and implements laws of general applicability that are
consistent with ANILCA and that provide for the subsistence definition,
priority, 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 priority in the State subsistence statute violated the
Alaska Constitution. The Court's ruling in McDowell caused the State to
delete the rural priority from the subsistence statute, an action which
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 Departments published the Temporary Subsistence Management
Regulations for Public Lands in Alaska in the Federal Register (55 FR
27114). Permanent regulations were jointly published on May 29, 1992
(57 FR 22940), and have been amended since then.
As a result of this joint process between Interior and Agriculture,
these regulations can be found in the Code of Federal Regulations (CFR)
both in 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 the following subparts: Subpart
A, General Provisions; Subpart B, Program Structure; Subpart C, Board
Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.
Consistent with Subparts A, B, and C of these regulations, as
revised May 7, 2002 (67 FR 30559), and December 27, 2005 (70 FR 76400),
the Departments established a Federal Subsistence Board (Board) to
administer the Federal Subsistence Management Program, as established
by the Secretaries. 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
[[Page 49998]]
Land Management (BLM); the Alaska Regional Director, U.S. Bureau of
Indian Affairs; and the Alaska Regional Forester, USDA Forest Service.
Through the Board, these agencies participated in the development of
regulations for Subparts A, B, and C, and the annual Subpart D regulations.
Jurisdictional Perspective
Federal Subsistence Management Regulations (50 CFR 100.3 and 36 CFR
242.3) currently specify that ``The public lands described in
paragraphs (b) and (c) 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.'' In April 2005, the Board requested a
review by the U.S. Department of the Interior's Office of the Solicitor
to determine whether a Federal interest presently exists in certain
areas of southeastern Alaska. The specific areas were originally
identified by the Sitka Tribe of Alaska and presented before the
Southeast Alaska Subsistence Regional Advisory Council, who forwarded a
request for review to the Board. In November 2005, the Office of the
Solicitor responded that the Makhnati Island area withdrawal in
Executive Order 8877 (August 29, 1941) was not rescinded until after
statehood, so the submerged land did not transfer to the State at
statehood. Since this submerged land is not included in any other
withdrawal, reservation, or administrative setaside, the marine
submerged lands, including any filled lands owned by the United States,
are under the administration of the BLM. Accordingly, the Solicitor's
Office indicated that this area should be included within the
jurisdiction of the Federal Subsistence Management Program. See 70 FR
76400 (December 27, 2005).
Public Review and Comment
The Secretaries published a proposed rule (71 FR 25528) on May 1,
2006, soliciting comments through June 15, 2006, on the proposed
revision to jurisdiction in the Makhnati Island area. During a May 10,
2006, teleconference, the Southeast Alaska Regional Advisory Council
(Council) provided the public an opportunity to offer comments so that
the Council could develop its recommendation to the Board. During the
public comment period, the Secretaries (we) received four comments: one
from a State entity, one from a Native organization, one from a private
citizen, and one from a Regional Council. All concurred with the
proposal to include the Makhnati Island area under jurisdiction of the
Federal Subsistence Management Program, and none offered comments
needing to be addressed herein.
Therefore, we are amending the Federal Subsistence Management
Regulations for Public Lands in Alaska to reflect Federal subsistence
management jurisdiction in the area of Makhnati Island, near Sitka, Alaska.
The specific area encompasses approximately 610 acres of land and
water adjacent to Japonski Island. Whiting Harbor and numerous small
islands are included within the boundary of the withdrawal. The Board
recommends the inclusion of this area in the Federal Subsistence
Management Program. A map is available for this area. The purpose of
this map is to provide to the subsistence user an overall graphic
representation of the extent of the area. To view the map, go to the
Office of Subsistence Management Web site at http://alaska.fws.gov/asm/
home.html. If you do not have access to the Internet, you may contact
the Office of Subsistence Management at the phone number or address
shown at FOR FURTHER INFORMATION CONTACT or ADDRESSES, respectively,
and we will send the map to you.
We are amending Sec. --.3(b), which includes those areas where
marine waters are included, and where the regulations contained in 50
CFR 100 and 36 CFR 242 apply to both navigable and non-navigable
waters. If additional marine submerged lands are determined in the
future to be held by the United States, those additional lands would be
the subject of future rulemakings.
Because the Federal Subsistence Management Program relates to
public lands managed by an agency or agencies in both the Departments
of Agriculture and the Interior, we would propose to incorporate
identical text into 36 CFR part 242 and 50 CFR part 100.
Required Determinations
Regulatory Planning and Review (E.O. 12866), Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), and Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. 804(2))
An economic analysis is not necessary for this rule because this
rule will not have an economic impact on any entities, large or small.
This rule is not a significant rule under E.O. 12866 and, therefore,
was not reviewed by the Office of Management and Budget.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act:
(a) This rule will not ``'significantly or uniquely''' affect small
governments. A Small Government Agency Plan is not required.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year; that is, it is not a ``'significant regulatory
action''' under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order.
Government-to-Government Relations
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), 512 DM 2, and E.O. 13175, 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.
Energy Effects
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.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This rule does not contain any new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
Federal Agencies may not conduct or sponsor,
[[Page 49999]]
and a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
An environmental assessment was prepared in 1997 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
determined that the expansion of Federal jurisdiction did not
constitute a major Federal action significantly affecting the human
environment, and therefore, signed a Finding of No Significant Impact.
We have determined that an Environmental Assessment and/or an
Environmental Impact Statement as defined by the National Environmental
Policy Act of 1969 need not be prepared for this rule. This rule does
not constitute a major Federal action significantly affecting the
quality of the human environment.
Compliance With Section 810 of ANILCA
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. A Section 810 analysis was completed as part of the FEIS
process. The final Section 810 analysis determination appeared in the
April 6, 1992, ROD, which concluded that the Federal Subsistence
Management Program may have some local impacts on subsistence uses, but
that the program is not likely to significantly restrict subsistence uses.
William Knauer drafted these regulations under the guidance of
Peter J. Probasco of the Office of Subsistence Management, Alaska
Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska.
Dennis Tol and Chuck Ardizzone, Alaska State Office, Bureau of Land
Management; Greg Bos, Carl Jack, and Jerry Berg, Alaska Regional
Office, U.S. Fish and Wildlife Service; Sandy Rabinowitch and Nancy
Swanton, Alaska Regional Office, National Park Service; Dr. Warren
Eastland, Pat Petrivelli, and Dr. Glenn Chen, Alaska Regional Office,
Bureau of Indian Affairs; and Steve Kessler, Alaska Regional Office,
USDA-Forest Service provided additional guidance.
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 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.
Subpart A--General Provisions
? 2. In Subpart A of 36 CFR part 242 and 50 CFR part 100, Sec. --.3 is
revised by adding paragraph (b)(5) to read as follows:
Sec. --.3 Applicability and scope.
* * * * *
(b) * * *
(5) Southeastern Alaska--Makhnati Island Area: Land and waters
beginning at the southern point of Fruit Island, 5[deg]02'35''north
latitude, 135[deg]21'07'' west longitude as shown on United States
Coast and Geodetic Survey Chart No. 8244, May 21, 1941; from the point
of beginning, by metes and bounds; S. 58[deg] W., 2500 feet, to the
southern point of Nepovorotni Rocks; S. 83[deg] W., 5600 feet, on a
line passing through the southern point of a small island lying about
150 feet south of Makhnati Island; N. 6[deg] W., 4200 feet, on a line
passing through the western point of a small island lying about 150
feet west of Makhnati Island, to the northwestern point of Signal
Island; N. 24[deg] E., 3000 feet, to a point, 5[deg]03'15'' north
latitude, 135[deg]23'07'' west longitude; East, 2900 feet, to a point
in course No. 45 in meanders of U.S. Survey No. 1496, on west side of
Japonski Island; Southeasterly, with the meanders of Japonski Island,
U.S. Survey No. 1496 to angle point No. 35, on the southwestern point
of Japonski Island; S. 60[deg] E., 3300 feet, along the boundary line
of Naval reservation described in Executive Order No. 8216, July 25,
1939, to the point beginning.
* * * * *
Dated: August 9, 2006.
Dirk Kempthorne,
Secretary of the Interior, Department of the Interior.
Dated: August 15, 2006.
Dennis E. Bschor,
Regional Forester, USDA-Forest Service.
[FR Doc. 06-7119 Filed 8-23-06; 8:45 am]
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