Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, C, and D, Redefinition to Include Waters Subject to Subsistence Priority

SUMMARY: This rule amends the scope and applicability of the Federal

Subsistence Management Program in Alaska to include subsistence

activities occurring on inland navigable waters in which the United

States has a reserved water right and to identify specific Federal land

units where reserved water rights exist. The amendments also extend the

Federal Subsistence Board's management to all Federal lands selected

under the Alaska Native Claims Settlement Act and the Alaska Statehood

Act and situated within the boundaries of a Conservation System Unit,

National Recreation Area, National Conservation Area, or any new

national forest or forest addition, until conveyed to the State of

Alaska or an Alaska Native Corporation, as required by the Alaska

National Interest Lands Conservation Act (ANILCA). In addition, the

amendments specify that the Secretaries are retaining the authority to

determine when hunting, fishing or trapping activities taking place in

Alaska off the public lands interfere with the subsistence priority on

the public lands to such an extent as to result in a failure to provide

the subsistence priority and to take action to restrict or eliminate

the interference. The Departments also provide the Federal Subsistence

Board with authority to investigate and make recommendations to the

Secretaries regarding the possible existence of additional Federal

reservations, Federal reserved water rights or other Federal interests,

including those which attach to lands in which the United States has

less than fee ownership. The regulatory amendments conform the Federal

subsistence management regulations to the court decree issued in State

of Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) cert denied 517 U.S.

1187 (1996). The rule includes updated Customary and Traditional Use

Determinations and annual seasons and harvest limits for fisheries.

This rulemaking also responds to the Petitions for Rulemaking submitted

by the Northwest Arctic Regional Council al. on April 12, 1994, and the

Mentasta Village Council, al. on July 15, 1993.

DATES: Sections ____.1 through ____.24 are effective October 1, 1999.

Sections ____.26 and ____.27 are effective October 1, 1999 through

February 29, 2001.

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

The Federal Subsistence Board assumed subsistence management

responsibility for public lands in Alaska in 1990, after the Alaska

Supreme Court ruled in McDowell v. State of Alaska, 785 P.2d 1 (Alaska.

1989), reh'g denied (Alaska 1990), that the rural preference contained

in the State's subsistence statute violated the Alaska Constitution.

This ruling put the State's subsistence program out of compliance with

Title VIII of the Alaska National Interest Lands Conservation Act

(ANILCA) and resulted in the Secretaries assuming subsistence

management on the public lands in Alaska. The ``Temporary Subsistence

Management Regulations for Public Lands in Alaska, Final Temporary

Rule'' was published in the Federal Register (55 FR 27114-27170) on

June 29, 1990. The ``Subsistence Management Regulations for Public

Lands in Alaska; Final Rule'' was published in the Federal Register (57

FR 22940-22964) on May 29, 1992.

In both cases, the rule ``generally excludes navigable waters''

from Federal subsistence management, 55 FR 27114, 27115 (1990); 57 FR

22940, 22942 (1992). In a lawsuit consolidated with Alaska v. Babbitt,

plaintiff Katie John challenged these rules, arguing that navigable

waters are properly included within the definition of ``public lands''

set out in ANILCA. At oral argument before the United States District

Court for Alaska, the United States took the position that Federal

reserved water rights which encompass the subsistence purpose are

public lands for purposes of ANILCA. The United States Court of Appeals

for the Ninth Circuit subsequently held: ``[T]he definition of public

lands includes those navigable waters in which the United States has an

interest by virtue of the reserved water rights doctrine.'' Alaska v.

Babbitt, 72 F.3d at 703-704. In the course of its decision, the Ninth

Circuit also directed: ``[T]he federal agencies that administer the

subsistence priority are responsible for identifying those waters.''

Id. at 704.

These amendments conform the Federal subsistence management

regulations to the Ninth Circuit's ruling in Alaska v. Babbitt. As the

Ninth Circuit directed, this document identifies Federal land units in

which reserved water rights exist. These are ``public lands'' under the

Ninth Circuit's decision in Alaska v. Babbitt and thus are subject to

the Federal subsistence priority in Title VIII of ANILCA. The

amendments also provide the Federal Subsistence Board with clear

authority to administer the subsistence priority in these waters.

This Final Rule is not effective until October 1, 1999, in

accordance with language contained in the Omnibus Appropriations Bill

for FY99, which prohibits the implementation and enforcement of

regulations related to expanded jurisdiction for subsistence management

until October 1, but does allow publication of this rule. However,

should the Secretary of the Interior certify before October 1, 1999,

that the Alaska State Legislature has passed a bill or resolution to

amend the Constitution of the State of Alaska, that, if approved by the

electorate, would enable the implementation of State laws consistent

with and which provide for the definition, preference, and

participation described in Sections 803, 804, and 805 of ANILCA, then

these regulations will be held in abeyance until December 1, 2000, and

a timely document will be published in the Federal Register delaying

the effective date.

On July 15, 1993, the Mentasta Village Council, Native Village of

Quinhagak, Native Village of Goodnews Bay, Alaska Federation of

Natives, Alaska Inter-tribal Council, RurAL CAP, Katie John, Doris

Charles, Louie Smith and Annie Cleveland filed a ``Petition for

Rulemaking by the Secretaries of Interior and Agriculture that

Navigable Waters and Federal Reserved Waters are `Public Lands' Subject

to Title VIII of ANILCA's Subsistence Priority.'' On April 12, 1994,

the Northwest Arctic Regional Council, Stevens Village Council,

Kawerak, Inc., Copper River Native Association, Alaska Federation of

Natives, Alaska Inter-tribal Council, RurAL CAP and Dinyee Corporation

[[Page 1277]]

filed a ``Petition for Rule-Making by the Secretaries of Interior and

Agriculture that Selected But Not Conveyed Lands Are To Be Treated as

Public Lands for the Purposes of the Subsistence Priority in Title VIII

of ANILCA and that Uses on Non-Public Lands in Alaska May Be Restricted

to Protect Subsistence Uses on Public Lands in Alaska.'' A Request for

Comments on this Petition was published at 60 FR 6466 (1995). This rule

also responds to both petitions for rulemaking.

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.

The Regional Councils have had a substantial role in reviewing the

proposed rule and making recommendations for the final rule.

Public Review and Comment

The Secretaries published an Advance Notice of Proposed Rulemaking

(ANPR) (61 FR 15014) on April 4, 1996, and during May and June held

eleven public hearings around Alaska to solicit comments on the Advance

Notice. On December 17, 1997, the Secretaries published a Proposed Rule

(62 FR 66216) and held 31 public hearings around the State, as well as

soliciting input from the ten Federal Regional Subsistence Advisory

Councils. The Proposed Rule was also available for review through the

Office of Subsistence Management's home page at http://www.r7.fws.gov/

asm/home.html.

In addition to the oral testimony received at the public hearings

and Regional Council meetings, we received an additional 74 written

comments. The comments received both in writing and during the hearings

provided the agencies with a sense of how the public viewed the general

jurisdictional concepts and practical implementation aspects of the

rule.

Analysis of Federal Subsistence Regional Advisory Councils'

Comments

The ten Regional Councils were given an opportunity to comment on a

draft of the Proposed Rule during their regular meetings in the fall of

1997, and then again on the Proposed Rule itself during their winter

1998 meetings. This section summarizes the comments received from the

Councils and our analysis of those comments.

Southeast Regional Council--Some Council members expressed a need

to include under Federal jurisdiction all lands and waters originally

included in the proclamation establishing the Tongass National Forest,

including the marine waters. This issue is the subject of pending

litigation, Peratrovich v. United States, A92-734 (D-AK); therefore,

the Final Rule will not be modified to include the marine waters within

the original proclamation area.

Southcentral Regional Council--The Regional Council asked a number

of questions but had no recommendations.

Kodiak/Aleutians Regional Council--The Regional Council expressed

concern regarding the loss over time of subsistence marine resources.

It did not make any formal recommendation on the Proposed Rule. The

regulations clearly identify which marine waters are under Federal

jurisdiction by referring to the original Federal Register publications

delineating boundaries of the listed Federal land units. The issue of

expanding the Federal jurisdiction to other marine waters outside the

listed Federal land units is beyond the scope of this rule.

Bristol Bay Regional Council--The Council expressed concern that

customary and traditional use determination findings for some

communities need to be revised and that wording on the take of rainbow

trout and steelhead should be revised. Additional concern was expressed

about how to deal with the definition of customary trade and

implementing regulations. Changes to the customary and traditional use

determinations and taking regulations on rainbow trout would be more

appropriately handled as proposals. This suggestion should be submitted

to the Federal Subsistence Board for consideration as a proposal during

a standard regulatory cycle for fish proposals. We did modify the

customary trade regulations slightly to clarify them, but have not

included a definition of ``significant commercial enterprise'' or

placed any dollar limits on an allowable level of customary trade. The

regulations in this rule clearly limit the sale of subsistence-caught

fish to customary and traditional practices. We agree with the

commentors who said that specific decisions on customary trade should

be made at the local level. We anticipate working closely with Regional

Advisory Councils to identify where specific limits should be

implemented. These limits may vary in different regions of the State.

Yukon-Kuskokwim Delta Regional Council--The Regional Council

suggested more publicity clarifying the program, particularly in

smaller, coastal villages and a publicity effort to let people know

what is going to happen before it actually does. After publication, a

condensed easy-to-read booklet with the regulations will be prepared

and distributed to the public. The field offices of the Federal

agencies that are a part of the Federal Subsistence Board will make

this regulation, and information about the Federal program, available

to villages within their areas.

Western Interior Regional Council--The Council expressed concern

regarding the regulations addressing customary trade and the necessity

to provide for ongoing practices; also the necessity to prevent wanton

waste. We have added language prohibiting wanton waste of subsistence-

taken fish and shellfish. We did modify the customary trade regulations

slightly to clarify them, but have not included a definition of

``significant commercial enterprise'' or placed any dollar limits on an

allowable level of customary trade. The regulations in this rule

clearly limit the sale of subsistence-caught fish to customary and

traditional practices. We agree with the commentors who said that

specific decisions on customary trade should be made at the local

level. We anticipate working closely with Regional Advisory Councils to

identify where specific limits should be implemented. These limits may

vary in different regions of the State.

Seward Peninsula Regional Council--The Regional Council asked a

number of questions but had no recommendations.

Northwest Arctic Regional Council--The Regional Council had one

recommendation: to eliminate a subsistence fishing closure where no

similar sport closure currently exists. Recommendations for specific

closures would be more appropriately handled as proposals. This

suggestion should be submitted to the Federal Subsistence Board for

consideration as a proposal during a standard regulatory cycle for fish

proposals.

Eastern Interior Regional Council--The Council expressed concern

regarding restrictions on customary trade. They asked that sections be

rewritten to allow subsistence harvest by commercial license holders,

and also recommended that agreements be made for local harvest data

collection, and recommended that the ``two basket'' restriction for

fishwheels not apply to the Yukon, Kuskokwim, Tanana, and

[[Page 1278]]

Copper Rivers. The existing regulations already authorize the Board to

enter into cooperative agreements for harvest data collection. The

recommendation related to the ``two basket'' restriction for fishwheels

would be more appropriately handled as a proposal. This suggestion

should be submitted to the Federal Subsistence Board for consideration

as a proposal during a standard regulatory cycle for fish proposals. We

did modify the customary trade regulations slightly to clarify them,

but have not included a definition of ``significant commercial

enterprise'' or placed any dollar limits on an allowable level of

customary trade. The regulations in this rule clearly limit the sale of

subsistence-caught fish to customary and traditional practices. We

agree with the commentors who said that specific decisions on customary

trade should be made at the local level. We anticipate working closely

with Regional Advisory Councils to identify where specific limits

should be implemented. These limits may vary in different regions of

the State.

North Slope Regional Council--The Regional Council comments

centered around not creating any more restrictions on the Inupiaq way

of life. The Council recommended that the C & T restriction for Unit

26(B) be stated more clearly as ``except for those living in Prudhoe

Bay and other oil industry complexes.'' Changes to the customary and

traditional use determinations would be more appropriately handled as

proposals. This suggestion should be submitted to the Federal

Subsistence Board for consideration as a proposal during a standard

regulatory cycle for fish proposals.

Analysis of Public Comments

General Comments

Several commentors questioned the adequacy of the Environmental

Assessment, and suggested that it significantly understated the

economic impacts of the Proposed Rule, particularly because of

``customary trade'' provisions of the rule. One commentor said that

there should be an economic cost-benefit analysis done, and another

said that the Proposed Rule was in violation of the Regulatory

Flexibility Act, because no regulatory flexibility analysis was

performed. The Final Rule is not expected to have a significant impact

on either the physical environment or the socio-economic activities

generated by Alaska's fisheries. For the most part, this rule continues

pre-existing subsistence harvest activities at a level already

occurring under State management. If there is any additional

reallocation of fish or wildlife resources to subsistence users adopted

in future annual regulations, it will likely be a relatively minor

additional percentage of the fish harvested annually for other purposes

in Alaska. ANILCA Title VIII does not require a cost-benefit analysis,

nor does NEPA require such an analysis in the Environmental Assessment.

Federal subsistence management under Title VIII of ANILCA will be

designed to protect existing customary and traditional subsistence

uses, including ongoing customary trade which may not be sanctioned by

existing State regulations. It is not the intent of these regulations

to encourage new subsistence fisheries. Because of this, the

Departments certify that the proposed action represented by this final

rulemaking will not have a significant effect on small entities and a

flexibility analysis under the Regulatory Flexibility Act, Public Law

96-354, is not required.

One commentor said that the Proposed Rule violated Executive Order

12612, stating that it requires Federal agencies to examine the

authority supporting any Federal action to limit the policy-making

discretion of the states. The Final Rule clearly complies with

Executive Order 12612, since it is implementing the U.S. Ninth Circuit

Court of Appeals decision in State of Alaska v. Babbitt, 72 F.3d 698

(9th Cir. 1995) cert denied 517 U.S. 1187 (1996).

One commentor said that the Proposed Rule violated Executive Order

12866, stating that it requires Federal agencies to seek special

involvement of those expected to be burdened by any regulation,

specifically State officials, and stated that such involvement has not

occurred. This rule does not impose any new requirements on the State

of Alaska. The Board has worked closely with the State of Alaska since

the inception of Federal subsistence management in 1990 and has

continued to do so throughout the development of this rule. Cooperative

agreements and cooperative management efforts with the State are

beneficial to both parties and are ongoing.

The same commentor suggested the proposed rule also violated

Executive Order 12988, stating that it requires regulations be written

to minimize litigation and to provide a clear legal standard for

affected conduct. Several provisions of the proposed rule have been

modified in this final rule to clarify the legal standard for conduct.

However, other provisions are unchanged in order to create a regulatory

framework that will implement the subsistence priority mandates of

ANILCA Title VIII, minimize socio-economic impacts, and ensure that

resource conservation standards in ANILCA are met.

One commentor said that these regulations should comply with the

Clean Water and Antidegredation Acts. These regulations are consistent

with the Clean Water Act and all other Federal laws.

One commentor recommended that the Federal Subsistence Board adopt

an expedited process so that recommendations for regulatory changes

could be adopted for the 1999 fishing season. The Board can not do

this, because of the existence of Congressional limitations on

implementation. Legislation enacted in October 1998 restricts

implementation of these regulations until October 1, 1999.

One commentor recommended that the government should hire locally

to manage the fisheries. The Federal agencies that are members of the

Federal Subsistence Board will utilize the local hire authority of

ANILCA to the maximum extent possible when hiring personnel to work in

the Federal program.

One commentor suggested that the regulations needed to be written

in plainer language and that the Federal Subsistence Board should send

representatives to villages to explain them before the regulations go

into effect. The regulations have been significantly re-written to put

them in to plain language. After publication a condensed easy to read

booklet with the regulations will be prepared and distributed to the

public. The Board has made considerable effort to provide information

about the expanded Federal fishery management program through numerous

public hearings, regional advisory council meetings, press releases,

and wide dissemination of information to an extensive mailing list.

This final regulation will be mailed to over 2700 individuals and

organizations in Alaska. The field offices of the Federal agencies that

are a part of the Federal Subsistence Board will make this regulation,

and information about the Federal program, available to villages within

their areas.

One commentor said that there was no Alaska Native organization

listed as being involved in the drafting of the proposed rule. Native

organizations throughout the State have had an opportunity to provide

input on this rule a number of times--after the issuance of the

Advanced Notice of Proposed Rulemaking (April 4, 1996), during Regional

Advisory Council meetings held throughout the State in

[[Page 1279]]

the fall of 1997, during a 120-day public comment period after the

publication of the proposed rule on December 17, 1997, and during 31

public hearings and 10 Regional Advisory Council meetings held around

the State during that public comment period. In addition, as a member

of the Federal Subsistence Board, the Bureau of Indian Affairs has been

directly involved in the drafting of the Proposed Rule and this Final

Rule.

Subpart A--General Provisions

____.2 Authority.

One commentor asked how the Pacific Salmon Treaty with Canada fit

in with these regulations. These regulations are consistent with all

existing treaties.

____.3 Applicability and scope.

The suggestion was made to include navigable waters on BLM lands.

BLM lands set aside for specific purposes, such as Steese and White

Mountains Conservation Areas, have Federal reserved water rights and

are included within the scope of these regulations. Other BLM lands are

general public domain lands without specific purposes and do not have

reserved water rights.

Several commentors suggested that waters with Federal subsistence

jurisdiction should be delineated the same for Forest Service lands as

they are for Department of the Interior lands, and that Federal

jurisdiction should be extended to include the marine waters identified

in the 1907 Tongass National Forest Proclamation. The Final Rule has

been modified from the Proposed Rule so that the definition of inland

waters covered under this rule is consistent for Forest Service and DOI

waters. The Federal subsistence jurisdiction asserted in the Final Rule

applies to waters where the Federal government holds a reserved water

right or holds title to the waters or submerged lands. A Federal water

right exists in inland waters within or adjacent to Federal

conservation system units and national forests. The question of Federal

jurisdiction over marine waters included in the Tongass Proclamation is

the subject of pending litigation in Peratrovich v. United States, A92-

734 (D. AK), and therefore those marine waters are not included in this

rule.

Five commentors suggested that the scope of the Federal fishery

management should be extended to include waters on Native corporation

lands or to include all navigable waters within the state of Alaska. To

do so would improperly extend the scope of the Federal program beyond

the scope of Title VIII of ANILCA or the direction of the Ninth Circuit

Court in the Katie John decision. In Title VIII Congress mandated the

implementation of a subsistence priority on Federal public lands.

Native corporation and other non-Federal lands and waters located

beyond the boundaries of the conservation system units and other areas

specified in Sec. ____.3 do not fall within the scope of Title VIII. In

the Katie John decision, the Ninth Circuit Court ruled that the Federal

program should include those waters where the Federal government

retains a reserved water right. Those waters are identified in

Sec. ____.3 of this rule.

Two commentors questioned the inclusion of inland waters adjacent

to conservation system unit boundaries within the scope of Federal

subsistence jurisdiction, and also questioned the inclusion of waters

on inholdings within those unit boundaries. We have determined that a

Federal reserved water right exists in those waters and that their

inclusion is necessary for effective management of subsistence

fisheries. Therefore, they are included.

One commentor said that waters flowing through or adjacent to

Native allotments should be subject to the Federal subsistence

jurisdiction. Many Native allotments are within the boundaries of the

Federal lands identified in Sec. ____.3 of this rule, and therefore

waters flowing through or adjacent to those allotments are subject to a

Federal reserved water right and Federal subsistence jurisdiction.

However, Native allotments falling outside of the lands and waters

identified in Sec. ____.3 are not included. Whether there are Federal

reserved water rights associated with any of these small, scattered

parcels would have to be determined on a case-by-case basis. These

regulations contain a process for the Board to make recommendations to

the Secretaries for additions, if necessary.

One commentor said that the proposed regulations did not address

problems with sport fishing lodges in the Togiak drainage, or with

other issues related to sport and commercial fishing or pollution of

spawning grounds. This rule provides an opportunity for, and regulates,

subsistence hunting, trapping, and fishing only. As such, the

regulations do not contain specific provisions for sport or commercial

fishing. However, the impacts of all fishery allocations and harvests

were considered in the preparation of this Final Rule, and will be

considered in the annual review of Subpart D regulations.

One commentor said that lakes should be included within the Federal

program, and specifically mentioned Teshekpuk Lake. One commentor

recommended that the Delta River, all of the Gulkana River, Tiekel

River and Little Tonsina River should be included in the Federal

program. All inland waters (including lakes and rivers) within and

adjacent to the areas identified in Sec. ____.3 of this rule are

included in the Federal subsistence jurisdiction. Teshekpuk Lake is

included. Those portions of the above-named rivers that are included

within or adjacent to the boundaries of the units identified in

Sec. ____.3 of these regulations are included within the Federal

subsistence jurisdiction; any waters falling outside of the units

identified are not included.

Two commentors said that Glacier Bay National Park should be

included in these regulations. When Congress passed ANILCA, it stated

(in Sections 203 and 1314(c)) that subsistence uses are permitted only

in those national park or national monument areas where specifically

authorized by the Act. Subsistence uses in Glacier Bay National Park

were not specifically permitted by the Act, and can therefore not be

authorized by these regulations.

One commentor noted that this rule would not protect subsistence

opportunities on Native corporation lands. This is correct, since

Native corporation lands (which have been conveyed or interim conveyed

to corporations) are no longer Federal lands and thus not within the

scope of the subsistence priority of ANILCA. However, any inland waters

located within or adjacent to the external boundaries of the units

identified in Sec. ____.3 will fall within Federal subsistence

jurisdiction.

Numerous commentors said that the proposed rule did not clearly

identify where the proposed rule would apply, particularly with regards

to marine waters. The same commentors also said that there were

specific regulations regarding the taking of fish and shellfish in

Secs. ____.26 and 27 of this rule that related to fisheries where there

did not appear to be any Federal waters or reserved water rights. The

Final Rule lists the Federal land units where the rule will apply in

Sec. ____.3. Pursuant to Section 103 of ANILCA, maps and detailed legal

descriptions of the boundaries of those National Park Service and Fish

and Wildlife Service units were published in the Federal Register,

including descriptions of the boundaries of units of the National

Wildlife Refuge System which include marine waters. See 48 FR 7890

(February 24, 1983) (Boundaries of National Wildlife Refuges in

Alaska); 57 FR 45166 (September 30, 1992) (Boundaries of National Park

System

[[Page 1280]]

Units in Alaska). These legal descriptions and maps specifically

identify the marine areas where the rule will apply. We also reviewed

all the specific regulations found in Secs. ____.26 and 27 and removed

any regulations that did not apply to lands or waters identified in

Sec. ____.3.

One commentor said that halibut and seagull eggs should be included

in the Federal subsistence program. While these regulations only apply

to relatively few marine waters (see the list of marine waters in

Sec. ____.3), fish within those waters are subject to the subsistence

priority and regulations for the subsistence harvest of halibut and

other fish will be included for those waters. As for seagull eggs, the

harvest of migratory birds (including seagull eggs) is not included

within the Federal subsistence management program. Harvest of migratory

birds falls under the Migratory Bird Treaty Act and its implementing

regulations.

____.4 Definitions.

One commentor said that the definition of ``conservation of healthy

populations of fish and wildlife'' appears to contradict Section 815 of

ANILCA. The definition was not amended in these regulations. Section

815 states, in part, that nothing in Title VIII permits a level of

subsistence uses of fish and wildlife in a conservation system unit to

be inconsistent with the conservation of healthy populations (or

inconsistent with natural and healthy populations within a national

park or monument). The existing definition in this section simply

defines the phrase found in Section 815, but does not contradict or

supersede it.

One commentor said that the existing definition of the word

``family'' would permit sharing of subsistence resources outside the

household, and thereby expand subsistence uses. Section 803 of ANILCA

specifically includes ``sharing for personal or family consumption''

within the definition of ``subsistence uses''. Permitting the sharing

of subsistence resources outside the household will not expand current

levels of subsistence harvest, since such sharing has always been a

customary and traditional practice. The definition was not amended by

these regulations.

Two commentors said that the Federal subsistence jurisdiction

should be extended to Federal lands which have been selected, but not

yet conveyed, to Native corporations or the State of Alaska, including

those lands classified as over-selections. Two other commentors

objected to the inclusion of selected lands within the program. While

selected lands do not fall within the definition of ``public lands''

found in ANILCA, section 906(o)(2) states that ``Until conveyed, all

Federal lands within the boundaries of a conservation system unit,

National Recreation Area, National Conservation Area, new national

forest or forest addition, shall be administered in accordance with the

laws applicable to such unit.'' (emphasis added). Since selected lands

do fall within the definition of ``Federal lands'' in ANILCA and Title

VIII of ANILCA is a law applicable to such units, the subsistence

priority of Title VIII must be extended to those lands, pursuant to

section 906(o)(2). The definition of ``public lands or public land''

found in ______.4 of these regulations clarifies that selected lands

will be treated as public lands until they are conveyed.

One commentor asked how the adoption of a fisheries regulatory year

different from the wildlife regulatory year would affect regional

advisory council and Federal Subsistence Board schedules. Another

commentor said that the proposed fishery regulatory year would create

conflicts with State regulations because of conflicting seasons and

harvest reporting periods, and would complicate comparison of State and

Federal information. The adoption of a different fisheries regulatory

year is intended to provide a regulatory schedule that is the most

efficient in managing an annual cycle of fishing regulations, and which

has the least impact on subsistence users. Schedules for regular

meetings of the Regional Advisory Councils and Federal Subsistence

Board dealing with fishery issues will be adjusted to coincide with the

fisheries regulatory year. The Federal Subsistence Board will work with

the Alaska Department of Fish and Game and the State Board of Fisheries

to minimize any conflicts created by this action.

____.6 Licenses, permits, harvest tickets, tags, and reports

One commentor recommended that subsistence users should be required

to possess a valid Alaska resident fishing license. This section of the

regulations was rewritten to conform with plain language requirements;

no substantive changes were made. Subsistence users wishing to take

fish and wildlife on public lands for subsistence uses are required to

possess the pertinent valid Alaska resident hunting and trapping

license. At the current time, the State of Alaska does not require a

license for subsistence fishing, therefore no license is required for

subsistence users under the Final Rule.

It was suggested that State licenses and permits not be used. We

have attempted to avoid confusion and unnecessary duplication wherever

possible when establishing this new program. The retention of State

permits and licenses is one area where it is possible to avoid

unnecessary duplication. Federal permits and licenses may be issued in

certain situations as warranted.

One commentor said that the existing State harvest reporting system

should be used for any harvest reporting required under these

regulations. This will be done to the maximum extent possible.

One commentor pointed out that the proposed rule and the existing

Federal subsistence regulations state in Sec. ____.6(d) that

``Community harvests are reviewed annually under the regulations in

subpart D of this part.'', and questioned whether those annual reviews

have been conducted in the past. Such review is incorporated into the

annual review of all subpart D regulations, which are subject to

modification by proposals from Regional Advisory Councils, subsistence

users, and any other interested organizations or individuals.

____.8 Penalties

One commentor suggested that enforcement of these regulations

should be by the Federal Subsistence Management Program through

cooperative agreements and that there should be no State enforcement of

these regulations by the State of Alaska. The existing regulations

provide that enforcement of these regulations will be retained by the

individual land management agencies that are a part of the Federal

Subsistence Board. This provision has not been amended. The State of

Alaska will not generally be enforcing these regulations, unless

authorized to do so through some special arrangement or mutual

assistance agreement. However, the State of Alaska will continue to

enforce on Federal lands other applicable State laws and regulations

which are not inconsistent with these regulations or other Federal

laws.

One commentor said that there was no information in the regulations

about penalties. One commentor said that the Proposed Rule had no

provision for enforcement, particularly in regards to the issue of

customary trade. Enforcement of these regulations is accomplished in

accordance with the penalty provisions applicable to the public land

where the violation occurred. Each of the Federal land management

agencies that are a part of the Federal Subsistence Board (Bureau

[[Page 1281]]

of Land Management, Bureau of Indian Affairs, U.S. Fish and Wildlife

Service, National Park Service, and U.S. Forest Service) have separate

penalty provisions for offenses occurring on lands they manage. More

detailed information can be obtained from each agency.

____.9 Information collection requirements

One commentor said that data collection to manage the Federal

subsistence program is prohibited unless approved by the Office of

Management and Budget (OMB). While OMB approval is not required for all

data collection, it is required where Federal officials request

information from more than ten persons. As stated elsewhere in this

preamble (Paperwork Reduction Act), OMB has already approved the

initial information collection requirements of these regulations and

additional approvals will be sought whenever required.

____.10 Federal Subsistence Board

Several commentors disagreed with the language of Sec. ____.10(a)

of the Proposed Rule which stated that the Secretaries retain their

existing authority to restrict or eliminate hunting, fishing, or

trapping activities which occur on lands or waters other than the lands

identified in the applicability and scope section of the regulation. We

did not modify this section. The authority of the Secretaries to

restrict or eliminate activities off Federal public lands has been

confirmed in cases as Kleppe v. New Mexico (426 U.S. 529) and Minnesota

v. Block (660 F.2d 817). This regulation does not expand or diminish

the Secretaries' authority, it only states that it exists. This

authority has rarely been exercised and is not exercised in this Final

Rule.

One commentor recommended that the Secretaries should delegate to

the Federal Subsistence Board authority to extend jurisdiction beyond

Federal lands. Extension of Federal jurisdiction is a significant

policy decision, only applied in very rare circumstances, and the

Secretaries have chosen not to delegate that authority to the Board.

They have delegated overall management of the subsistence program to

the Board. By adoption of these regulations, the Board will assume the

responsibility for management of an expanded fishery program on all

lands identified in Sec. ____.3 of this rule.

One commentor said that the Federal agencies do not have sufficient

expertise to assure compliance with ANILCA, and recommended that

management authority be vested in the National Marine Fisheries Service

and that the regulations provide clear guidelines for cooperation with

the Alaska Department of Fish and Game. The Federal Subsistence Board,

and its member agencies, understand the complexity of the issues

associated with the implementation of these regulations. The Board will

obtain whatever expertise is needed to implement these regulations in

order to assure that the subsistence opportunity is protected

consistent with the conservation of healthy populations of fishery

resources.

One commentor recommended that a tribal liaison appointed by the

Federally-recognized tribes should be included as one of the official

liaisons to the Federal Subsistence Board. Any tribe or group of tribes

(or any other organization) can designate at any time a person to act

in a liaison role to the Board. At this time, the Board believes that

tribes have sufficient opportunity to provide input to the Board

through the existing Regional Advisory Council structure, or through

direct presentation of information to the Board without the designation

of a formal liaison position.

One commentor recommended that the Chairs of the ten Regional

Advisory Councils be included as voting members of the Federal

Subsistence Board. Separate from this rulemaking, the Federal

Subsistence Board just recently completed an internal examination the

Board structure and considered one option of including Regional Council

chairs on the Board. That option was rejected, in part because ANILCA

stipulates that the Regional Councils are to provide recommendations to

the government. A conflict would occur if those chairs sat on a board

that would deliberate and make decisions on recommendations made by the

Councils on which those chairs sit.

Five commentors recommended that use of compacts, contracts, and

co-management or other agreements should be included within this rule.

We clarified the wording of this section without changing its scope by

changing the phrase ``Native corporations'' to ``Native

organizations.'' Section 10(d)(4)(xv) of this regulation now states

that the Federal Subsistence Board may ``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''.

This regulatory language derives from section 809 of ANILCA, and

permits a wide range of cooperative mechanisms to carry out the

purposes of the title, including, where appropriate, the cooperative

mechanisms suggested above. The subsistence priority of Title VIII is

not solely a priority for Alaska Natives, but is a priority for all

rural residents, Native or otherwise.

One commentor objected to Sec. ____.10(d)(4)(xviii) of the Proposed

Rule which states that the Board can investigate and make

recommendations to the Secretaries identifying additional Federal

reservations, Federal reserved water rights or other Federal interests

in lands or waters to which the Title VIII subsistence priority would

be extended. This commentor said that section constituted a granting

authority beyond the scope of ANILCA. We did not revise this section in

this final rule. If additional waters or Federal interests are proposed

for inclusion, the Board would need to investigate and provide a

recommendation based on their findings to the Secretaries. This section

only authorizes the Board to do so. The addition of any other waters or

interests to this rule will involve a further rulemaking, with public

notice and comment.

Two commentors questioned the regulation dealing with delegation of

certain actions by the Board to agency field officials

(Sec. ____.10(d)(6)). One said that the regulatory language was not

clear as to what type of actions might be delegated and the other said

that field officials might abuse such delegation resulting in harm to

the resource. As written, such delegation will be limited to setting

harvest limits, defining harvest areas, and opening or closing specific

fish or wildlife harvests. In all cases such delegation will

specifically define ``frameworks established by the Board'' as

specified in the regulation. Thus, field officials will always be

constrained by the framework of any delegation, and the Board will not

lose its oversight of actions by agency officials.

One commentor recommended that the authority to open or close fish

or wildlife harvest seasons should be community-based, and not in the

hands of an agency field official. Implementation and enforcement of

Federal regulations is the responsibility of the Departments. Field

managers will work with local communities and local biologists to

assure that community interests are addressed in any actions.

____.11 Regional advisory councils

Four organizations or individuals commented on the make up of the

Regional Advisory Councils. Two

[[Page 1282]]

recommended that the Council membership include fish and game

biologists or individuals familiar with non-subsistence uses in the

region. One suggested that the Councils need more representation from

other user groups. The fourth recommended that there should be tribal

recognition and tribal recommendations for appointments to the

Councils. The Regional Advisory Councils were established pursuant to

section 805(a) of ANILCA and Sec. ____.11 of these regulations, and are

charged with providing recommendations to the Board relating to

subsistence uses within each region. The Board considers the

recommendations of the Councils, along with technical information

gathered by Federal staff, and testimony presented to the Board by

other organizations and individuals. The input of other fish and game

biologists and organizations or individuals knowledgeable about non-

subsistence uses is considered by the Board before taking action on

Council recommendations. Tribal recommendations, as well as

recommendations by other organizations or individuals, are considered

in the selection of Council membership. No changes were made in this

section of these regulations.

One commentor recommended that Regional Council members should be

elected, but did not specify by whom. This recommendation was not

adopted, because ANILCA requires that persons serving as members of

these Councils must be appointed by the Secretaries.

____.12 Local Advisory Committees.

There were several comments in regards to the role of local

advisory committees in the Federal process, especially on the Yukon

River. Local fish and game advisory committees have the opportunity to

be involved in Federal subsistence management program by submitting

recommendations to the Federal Subsistence Board and Regional Advisory

Councils. The Federal Subsistence Board will seek guidance and

expertise from all user groups. Two commentors requested a committee

for their area or village. The creation of local fish and game advisory

committees is a function of the Alaska Department of Fish and Game. The

request should be made to them. One commentor suggested that existing

State advisory committees should be used as opposed to creating a

separate system. Local advisory committees may be used in addition to

Regional Advisory Councils; a separate system will not be created. The

Federal Subsistence Board will seek the best information available for

regulation development. Local advisory committee input is always

welcome under current and proposed rules.

____.14 Relationships to State Provisions and Regulations.

One commentor said that the Proposed Rule and Environmental

Assessment did not adequately explore mechanisms for cooperation or

outline the Secretaries' expectations of the Federal agencies for

cooperation. There will be ample opportunities for cooperation with the

State under the Final Rule. A question arose concerning timely

reassertion of State authority over subsistence and suggested imposing

a time limit once the petition to reassert is filed. This section was

not amended and no time limit was included in this Final Rule. The

Secretaries will act expeditiously when a petition for reassumption is

filed. One commentor requested a transition period from Federal to

State management authority for specific regulations. The Secretary will

not certify a State subsistence management program unless the State

enacts and implements laws of general applicability which are

consistent with, and which provide for the definition, preference and

participation specified in sections 803, 804, and 805 of ANILCA.

One commentor said that the proposed regulations did not support

State conservation efforts, since the State has already implemented

many changes to its regulations through fishery management plans since

the Proposed Rule was published. To the extent possible, these final

regulations incorporate changes to make them consistent with existing

State regulations. The Board intends to utilize, to the extent

possible, the existing State fishery management plans, but all those

plans must be reviewed to ensure that the fishery allocation

determinations in the plans are consistent with the subsistence

priority of ANILCA.

One commentor suggested that the Federal subsistence regulations

should adopt State regulations to the maximum extent possible, and that

the Federal regulations should only include those regulations that

differ from existing State regulations. As already stated, it has

always been the intent of the Board with the adoption of these

regulations to be consistent with existing State regulations except

where specifically noted. However, we believe that to include in the

Federal regulations only those areas where the Federal regulations

differ from State regulations would be more confusing to subsistence

users who would then have to refer to two sets of regulations while

hunting or fishing on Federal lands.

____.16 The Customary and Traditional Use Determination Process.

One commentor suggested that the Federal Subsistence Board abandon

the Customary and Traditional use determination process and make

determinations on a geographical basis. The Customary and Traditional

use determination process is currently being evaluated. The Federal

Subsistence Board accepts proposals for changes annually, but no

changes were made in this section in the Final Rule.

____.19 Closures and Other Special Actions.

Several commentors stated the closure provisions are too

cumbersome, bureaucratic, and do not accurately define the

circumstances under which the Federal Subsistence Board may take action

to ensure resource conservation. The Secretaries understand this

concern; this Final Rule grants to the Board specific authority to ``*

* * delegate to agency field officials the authority to set harvest

limits, define harvest areas, and open or close specific fish or

wildlife harvest seasons within frameworks established by the Board.''

(Sec. ____.10(d)(6). Implementation of this regulation will provide for

less cumbersome management actions, while retaining Board oversight of

those actions.

Subpart C--Board Determinations

____.22 Subsistence Resource Regions.

Two commentors urged the formation of a Yukon River Regional

Council while one suggested two Councils for the Southeast Region; one

for game and another for fish. The Federal Subsistence Board will not

make these changes at this time but will continue to evaluate the

efficiency of the current structure and make future adjustments as

needed.

____.23 Rural Determinations.

Two commentors questioned the basis for and outcomes of the rural

determinations. The procedure for making rural/non-rural determinations

was developed previously with public input through a rulemaking process

as were the existing rural/non-rural determinations. Those

determinations will be reviewed after the year 2000 census results are

available.

[[Page 1283]]

____.24 Customary and Traditional Use Determinations.

One commentor suggested that the Federal Subsistence Board should

make customary and traditional use determinations by geographic area

rather than species. Another objected to making customary and

traditional use determinations that have not been subjected to public

review and suggested that C&T determinations be accompanied by a

determination of the amount of fish and wildlife reasonably necessary

to provide for subsistence on public lands. The Federal Subsistence

Board has established a task force to evaluate the existing C&T process

and will seek Regional Advisory Council input on various alternatives

before making changes, if any, to the current regulations.

One commentor said that the rule should be modified to require a

positive affirmation of customary and traditional use in order for

subsistence regulations to apply. We did not make this change. To

require a positive affirmation of use puts the burden on the

subsistence user to ensure that his or her use is authorized in

regulation. The current Federal subsistence regulations state in part

that: ``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.'' , Sec. ____.24(a). This regulation already covers

customary and traditional use determinations for fish, and does not

need to be modified.

Several other commentors said that the customary and traditional

use determinations in the proposed rule were incomplete. We have

revised the determinations for fish and shellfish in this section to

incorporate both the last Alaska Board of Fish customary and

traditional use determinations that were in compliance with Title VIII

(January 1990) and the determinations that the Board of Fish has made

since 1990 where they might apply on Federal waters. For those

determinations made by the Board of Fish since 1990, we have made a

determination that eligibility for those fisheries should be limited to

the residents of the area identified. These determinations are subject

to revision through the annual consideration of proposed changes to

Subpart C.

Subpart D--Subsistence Taking of Fish

____.26 Subsistence taking of fish

Numerous comments regarding customary and traditional use

determinations and the taking of fish were received. Proposed changes

to the existing subpart C and subpart D regulations will not be

considered until the 2000-2001 regulations cycle. The commentors have

been notified that their suggestions should be submitted to the Federal

Subsistence Board for consideration as a proposal during a standard

regulatory cycle.

A large number of comments dealt with the issue of customary trade.

Many of the commentors felt that the sections dealing with customary

trade in the Proposed Rule (Secs. ____.26(c)(11) and (12)) were not

specific enough, and would permit an expansion of subsistence fishing

beyond current levels. Several suggested that this rule should define

the term ``significant commercial enterprise'', including a specific

dollar limit. Some said that no sale of subsistence-caught fish should

be permitted, while others said that customary trade practices should

be protected and that customary trade should include sales up to

$70,000 per year. Several commentors suggested that decisions on

customary trade should be made on a local level. We did modify the

customary trade regulations slightly to clarify them, but have not

included a definition of ``significant commercial enterprise'' or

placed any dollar limits on an allowable level of customary trade. The

regulations in this rule clearly limit the sale of subsistence-caught

fish to customary and traditional practices. We agree with the

commentors who said that specific proposals on customary trade should

be made at the local level. We anticipate working closely with Regional

Advisory Councils to identify where specific limits should be

implemented. These limits may vary in different regions of the State.

Numerous commentors also said that the proposed rule did not always

rely on the State's reporting areas, and were not always consistent

with current State regulations. The majority of these comments came

from the State of Alaska. When the proposed rule was published in

December of 1997, it was structured to reflect all the State

subsistence fishery regulations which were current at that time. Since

then, the State Board of Fish has made changes to State regulations

which resulted in the comments noted above. In order to address these

concerns, we reviewed Subparts C and D with respect to fisheries and

shellfish (particularly Secs. ____.26 and 27). Changes were made in

this Final Rule to make it consistent with current State regulations.

There are a few specific regulations where this rule is not consistent

with State regulations. These are areas where the courts have ruled or

the Board has previously dealt with a fishery issue and made decisions

which are not consistent with State regulations. These areas include:

(1) the use of rod and reel for subsistence as a method of harvest, (2)

the extension of salmon fisheries on Kodiak Island to 24 hours per day,

(3) customary and traditional use determinations for rainbow trout in

Southwest Alaska, and (4) regulations relating to the take of king crab

around Kodiak Island.

Another commentor suggested the rule should clarify how the Federal

subsistence management program will manage halibut, since the

International Pacific Halibut Commission has halibut management

responsibilities. Although most marine waters are excluded from these

regulations, halibut and other marine resources in those marine waters

identified in Sec. ____.3 will be included within these regulations.

Many comments were received in regards to joint management whereby

the Federal agencies determine the number of fish necessary to meet

subsistence needs and monitor the take, while the State manages to meet

these needs. While the Final Rule provides for management of fisheries

in a manner consistent with the current Federal program, it does not

preclude the adoption of other management scenarios. Sections ____10

and .14 give the Board broad authorities to cooperate with the State

and other organizations in the implementation of the Federal

Subsistence Management Program. Other commentors asked about the status

of personal use fisheries in the Federal plan. Personal use fisheries

are not provided for under ANILCA's Title VIII and are not addressed in

these regulations. The State of Alaska manages personal use fisheries

and comments or recommendations concerning those fisheries should be

directed to the State. There were several comments in regards to the

use of different types of equipment for subsistence use. Although the

use of rod and reel is not permitted under State subsistence

regulations, it is permitted under these regulations, since the Board

has previously determined that rod and reel should be considered a

traditional means of harvest. There are no requirements to purchase

commercial equipment. One commentor wanted some provision made for the

use of fish as bait in sport and commercial fisheries. Provisions

regarding sport and commercial fisheries should be referred to the

State which has management authority over these fisheries. Comments in

regards to changing wording from ``unless permitted'' to ``unless

prohibited'' for steelhead and rainbow trout were suggested. The

[[Page 1284]]

``unless permitted'' wording is consistent with State regulations. One

commentor suggested dropping bag limits for rod and reel. Bag limits

are reasonable regulations for conservation of fish stocks and are

authorized and consistent with ANILCA, Section 814.

One commentor said in that Southeast Alaska the harvest of

subsistence fish should be permitted at any time. Another commentor

said that there should be no requirement for permits, seasons or bag

limits for subsistence harvest, since ANILCA did not specifically

mention any of those items. The subsistence priority of ANILCA is a

priority over other consumptive uses, but that opportunity does not

mean that subsistence harvest should be free from all regulation.

ANILCA stipulates that subsistence harvest should not threaten the

conservation of healthy populations of fish or wildlife. Regulations

such as permits, seasons and bag limits, are considered a necessary and

reasonable restriction of subsistence harvest.

One commentor said that genetic studies should be completed in the

Area M fishery and associated destination drainages before there is a

serious problem. Area M is not within the area of Federal jurisdiction.

However, the Federal Subsistence Board will work closely with the State

of Alaska, Native organizations, fishing groups and others to assure

that necessary biological and harvest information is obtained.

A number of comments dealt with permit possession and record

keeping. Current regulations require on-person possession of permits.

In addition, permits and daily records will be required when important

for collection of specific data to ensure adequate management and to

provide biological data for emergency management decisions. One

commentor noted that subsection (f) allows Federally qualified users to

remove fish from their commercial catch for subsistence purposes which

conflicts with State commercial fishing regulations. This provision is

consistent with State regulations and will be retained. Another

commentor noted that the proposed regulations do not contain measures

to conserve chum salmon in times of shortage as provided in State

regulations and will hinder efforts to conserve chum salmon in times of

shortage. All fisheries will be managed for healthy populations as

provided for in ANILCA Section 802(1). The request for fish habitat

enhancement for the Yukon Flats area should be directed to the local

land manager who has responsibility for these activities.

____.27 Subsistence Taking of Shellfish

One commentor requested that the Federal program also cover sea

cucumbers, abalone, and sea urchins. Management of these species can

occur under current regulations and the Federal program may include

them where it has marine jurisdiction.

One commentor opposed having to purchase a license to dig clams.

Licenses are not required although permits may be required in some

areas for resource management purposes. Another commentor stated that

State and Federal requirements for king crab pots differ. This

difference occurs only in the Kodiak Island area and results from the

Federal Subsistence Board instituting regulations a number of years ago

to protect king crab populations in that area.

Summary of Changes

Based on our analysis of comments, we have made the following

revisions from the Proposed Rule:

Throughout the document, we have made editing and wording changes

to comply with the Executive Memorandum on Plain Language in Government

Writing.

Sec. ____.3(b)--Jurisdiction over inland waters on Forest Service

lands has been modified to be consistent with the jurisdictional

approach used on Department of the Interior lands. We have also more

clearly identified the waters in which the Federal government will

manage subsistence fisheries.

Sec. ____.24(a)(2)--We have revised the determinations for fish and

shellfish in this section to incorporate both the past Alaska Board of

Fish customary and traditional use determinations that were in

compliance with Title VIII (January 1990) and the determinations that

the Board of Fish has made since 1990 where they apply on Federal

waters and are consistent with Title VIII of ANILCA.

Secs. ____.26 and .27--We have made minor wording changes to the

regulations on customary trade (Sec. ____.26(c)(11-12)), but have

retained the intent found in the Proposed Rule to provide for ongoing

customary trade practices. We have made numerous revisions to assure

consistency with the current State subsistence fisheries and shellfish

regulations. In order to reduce confusion, we have also eliminated

regulations covering areas where there is no Federal jurisdiction.

We must emphasize that these regulations ONLY APPLY TO FEDERAL

LANDS AND WATERS where there is a Federal interest. Individuals who do

not meet the requirements under these regulations may still harvest

fish and wildlife on Federal lands and waters in accordance with other

State fishing and hunting regulations, except in those instances where

Federal lands or waters have been specifically closed to non-Federally

qualified subsistence users.

Nothing in this Final Rule is intended to change the underlying

rural priority which is set out in Title VIII of ANILCA or otherwise

amend the statuatory basis of the Federal Subsistence Management

Program. Although many sections of these regulations are not being

amended other than to make them conform to requirements for plain

language, for the purpose of clarity and ease of understanding, the

entire text of the rule for subparts A, B, and C, and sections ____.26,

and ____.27 of subpart D is being printed. The unpublished section

(Section ____.25) relates to wildlife 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.

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

[[Page 1285]]

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 effecting 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 use of public lands in Alaska.

The information collection requirements are a revision of the

collection requirements already approved by OMB under 44 U.S.C. 3501

and have been assigned clearance number 1018-0075, which expires 5/31/

2000. This revision was submitted to OMB for approval. A comment period

was open on OMB collection requirements and no comments were received.

Currently, information is being collected by the use of a Federal

Subsistence Registration Permit and Designated Hunter Application. The

information collected on these two permits establishes whether an

applicant qualifies to participate in a Federal subsistence hunt 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 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 (one hour or less). This

information is accessed via computer data base. The current overall

annual burden of reporting and recordkeeping is estimated to average

0.25 hours per response, including time for reviewing instructions,

gathering and maintaining data, and completing and reviewing the form.

The estimated number of likely respondents under the existing rule is

less than 5,000, yielding a total annual reporting and recordkeeping

burden of 1,250 hours or less.

The collection of information under this Final Rule will be

achieved through the use of a Federal Subsistence Registration Permit

Application, which would be the same form as currently approved and

used for the hunting program. This information will establish whether

the applicant qualifies to participate in a Federal subsistence fishery

on public land in Alaska and will provide a report of harvest and

location of harvest.

The likely respondents to this collection of information are rural

Alaska residents who wish to participate in specific subsistence

fisheries on Federal land. The collected information is necessary to

determine harvest success and harvest location in order to make

management decisions relative to the conservation of healthy fish

populations. The annual burden of reporting and recordkeeping is

estimated to average 0.50 hours per response, including time for

reviewing instructions, gathering and maintaining data, and completing

and reviewing the form. The estimated number of likely respondents

under this rule is less than 10,000, yielding a total annual reporting

and recordkeeping burden of 5,000 hours or less.

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 224 ARLSQ, Washington, DC 20240; and the

Office of Management and Budget, Paperwork Reduction Project

(Subsistence), Washington, DC 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: E[email protected].

Economic Effects

This rule was not subject to OMB review under Executive Order

12866.

This rulemaking will impose no significant costs on small entities;

this Final Rule does not restrict any existing sport or commercial

fishery on the

[[Page 1286]]

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.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)

requires preparation of flexibility analyses for rules that will have a

significant effect on a substantial number of small entities, which

include small businesses, organizations or governmental jurisdictions.

The Departments have determined based on the above figures that this

rulemaking will not have a significant economic effect on a substantial

number of small entities within the meaning of the Regulatory

Flexibility Act.

The Small Business Regulatory Enforcement Act (5 U.S.C. 801 et

seq.) requires that before a rule can take effect, copies of the rule

and other documents must be sent to the U.S. House and U.S. Senate and

establishes a means for Congress to disapprove the rulemaking. The

Departments have determined that this rulemaking is not a major rule

under the Act, and thus the effective date of the rule is not

additionally delayed unless Congress takes additional action.

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 Act, 2 U.S.C. 1502 et seq., that this rulemaking will

not impose a cost of $100 million or more in any given year on local or

state governments or private entities. The implementation of this rule

is by Federal agencies and there is no cost imposed on any state or

local entities or tribal governments.

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 12612, 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.

Drafting Information--These regulations were drafted by William

Knauer, Bob Gerhard, and Victor Starostka 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 Curt Wilson, Alaska State Office, Bureau of

Land Management; Sandy Rabinowitch, Alaska Regional Office, National

Park Service; Ida Hildebrand, Alaska Area 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, B, and C 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 Closures and other special actions.

____.20 Request for reconsideration.

____.21 [Reserved].

Subpart C--Board Determinations

____.22 Subsistence resource regions.

____.23 Rural determinations.

____.24 Customary and traditional use determinations.

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

[[Page 1287]]

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;

(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,

Pub. L. 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 cash sale 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, Pub. L. 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 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:

[[Page 1288]]

(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 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 a rural Alaska resident and:

(1) Possess the pertinent valid Alaska resident hunting and

trapping licenses (no license required to take fish or shellfish)

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) 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 these regulations,

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.

(c) 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.

(d) If you take fish and wildlife under a community harvest system,

you must report the harvest activity in accordance with regulations

specified for that

[[Page 1289]]

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 these regulations. Community harvests are reviewed

annually under the regulations in subpart D of this part.

(e) 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 trade or sell fish and wildlife, taken pursuant to

the regulations in this part, except as provided for in Secs. ____.25,

____.26, and ____.27.

(b) You may not use, sell, or trade fish and wildlife, taken

pursuant to the regulations in this part, in any significant commercial

enterprise.

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 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 Hunter 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 are systematically available to

Federal managers by routine computer access requiring less than one

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 224 ARLSQ,

Washington, D.C. 20240; and the Desk Officer for the Interior

Department, Office of Information and Regulatory Affairs, Office of

Management and Budget, 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 them

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 Area 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

[[Page 1290]]

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 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 limits, define harvest areas, 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 a member 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 recommend to the

Secretaries that representatives on the Regional Councils be appointed

from those nominated by subsistence users. 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 three years.

(3) The Chair of each Regional Council shall be elected by the

applicable Regional Council, from its membership, for a one 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

these regulations within the region;

(iv) Provide a forum for the expression of opinions and

[[Page 1291]]

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 rural Alaska residents pursuant to Sec. __.17;

(xi) Develop proposals pertaining to the subsistence taking and use

of fish and wildlife under these regulations, 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.

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 subpart 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 and fishing, or

take actions to restrict the taking of fish and wildlife despite any

State authorization for taking fish and wildlife on public lands. 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 2500 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 2500 but not more

than 7000 will be determined to be rural or non-rural.

(3) A community with a population of more than 7000 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;

[[Page 1292]]

(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 ten 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 five 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 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

subpart 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 parts of 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 subpart D of this part in the

Federal Register.

(b) Proposals for changes to subpart C of this part shall be

accepted by the Board according to a published schedule. 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) Public and governmental proposals shall be made available for 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 within 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.

[[Page 1293]]

(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 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 their decision in writing to the Regional

Council.

(5) Following consideration of the proposals the Board shall

publish final regulations pertaining to subpart C of this part in the

Federal Register. A Board decision to change a community's or area's

status from rural to non-rural will not become effective until five

years after the decision has been made.

(c) [Reserved]

(d) 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 Closures and other special actions.

(a) The Board may make or direct restriction, closure, or opening

for the taking of fish and wildlife for non-subsistence uses on public

lands when necessary to assure the continued viability of particular

fish or wildlife population, to continue subsistence uses of a fish or

wildlife population, or for reasons of public safety or administration.

(b) After consulting with the State of Alaska, providing adequate

notice to the public, and holding at least one public hearing in the

vicinity of the affected communities, the Board may make or direct

temporary openings or closures to subsistence uses of a particular fish

or wildlife population on public lands to assure the continued

viability of a fish or wildlife population, or for reasons of public

safety or administration. A temporary opening or closure will not

extend beyond the regulatory year for which it is promulgated.

(c) In an emergency situation, the Board may direct immediate

openings or closures related to subsistence or 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. The Board shall

publish notice and reasons justifying the emergency closure in the

Federal Register and in newspapers of any area affected. The emergency

closure 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 hearing, that such closure should be extended.

(d) The Board may make or direct a temporary change to open or

adjust the seasons or to increase the bag limits 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 or bag limits. Prior to

implementing a temporary change, the Board shall consult with the

State, shall comply with the provisions of 5 U.S.C. 551-559

(Administrative Procedure Act or APA), and shall provide adequate

notice and opportunity to comment. The length of any temporary change

shall be confined to the minimum time period or bag limit determined by

the Board to be necessary to satisfy subsistence uses. 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. The decision of the Board shall

be the final administrative action.

(e) 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.

(f) 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 earliest, 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. 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 for

review and recommendation. The Board shall consider any Regional

Council 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

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

resources regions from the U.S. Fish and Wildlife Service, 1011 East

Tudor Road, 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;

[[Page 1294]]

Ketchikan area--including Ketchikan City, Clover Pass, North

Tongass Highway, Ketchikan East, Mountain Pass, Herring Cove, Saxman

East, and parts of Pennock 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.

(b) You may obtain maps delineating the boundaries of non-rural

areas from the U.S. Fish and Wildlife Service at the address in

Sec. ____.22(b).

Sec. ____.24 Customary and traditional use determinations.

(a) The Board has determined that rural Alaska residents of the

listed communities and areas have customary and traditional subsistence

use of the specified species on Federal public lands in the specified

areas. 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 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.

(1) Wildlife determinations.

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

Area Species Determination

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

Unit 1(C).......................... Black Bear................. Rural residents of Unit 1(C) and Haines,

Gustavus, Klukwan, and Hoonah.

1(A)............................... Brown Bear................. Rural residents of Unit 1(A) except no

subsistence for residents of Hyder.

1(B)............................... Brown Bear................. Rural residents of Unit 1(A), Petersburg, and

Wrangell, except no subsistence for residents

of Hyder.

1(C)............................... Brown Bear................. Rural residents of Unit 1(C), Haines, Hoonah,

Klukwan, Skagway, and Wrangell, except no

subsistence for residents of Gustavus.

1(D)............................... Brown Bear................. Residents of 1(D).

1(A)............................... Deer....................... Rural residents of 1(A) and 2.

1(B)............................... Deer....................... Rural residents of Unit 1(A), residents of

1(B), 2 and 3.

1(C)............................... Deer....................... Rural residents of 1(C) and (D), and residents

of Hoonah and Gustavus.

1(D)............................... Deer....................... No Federal subsistence priority.

1(B)............................... Goat....................... Rural residents of Units 1(B) and 3.

1(C)............................... Goat....................... Residents of Haines, Klukwan, and Hoonah.

1(B)............................... Moose...................... Rural residents of Units 1, 2, 3, and 4.

1(C) Berner's Bay.................. Moose...................... No Federal subsistence priority.

1(D)............................... Moose...................... Residents of Unit 1(D).

Unit 2............................. Brown Bear................. No Federal subsistence priority.

2.................................. Deer....................... Rural residents of Unit 1(A) and residents of

Units 2 and 3.

Unit 3............................. Deer....................... Residents of Unit 1(B) and 3, and residents of

Port Alexander, Port Protection, Pt. Baker,

and Meyer's Chuck.

3, Wrangell and Mitkof Islands..... Moose...................... Rural residents of Units 1(B), 2, and 3.

Unit 4............................. Brown Bear................. Residents of Unit 4 and Kake.

4.................................. Deer....................... Residents of Unit 4 and residents of Kake,

Gustavus, Haines, Petersburg, Pt. Baker,

Klukwan, Port Protection, Wrangell, and

Yakutat.

4.................................. Goat....................... Residents of Sitka, Hoonah, Tenakee, Pelican,

Funter Bay, Angoon, Port Alexander, and Elfin

Cove.

Unit 5............................. Black Bear................. Residents of Unit 5(A).

5.................................. Brown Bear................. Residents of Yakutat.

5.................................. Deer....................... Residents of Yakutat.

5.................................. Moose...................... Residents of Unit 5(A).

Unit 6(A).......................... Black Bear................. Residents of Yakutat and residents of 6(C) and

6(D), except no subsistence for Whittier.

6, Remainder Black Bear................. Residents of Unit 6(C) and 6(D), except no

subsistence for Whittier.

6.................................. Brown Bear................. No Federal subsistence priority.

6(C) and (D)....................... Goat....................... Rural residents of Unit 6(C) and (D).

6.................................. Moose...................... No Federal subsistence priority.

6.................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon

and 16-26.

Unit 7............................. Brown BearNo Federal

subsistence priority..

7.................................. Caribou.................... No Federal subsistence priority.

7, Brown Mountain hunt area........ Goat....................... Residents of Port Graham and English Bay.

7, that portion draining into Kings Moose...................... Residents of Chenega Bay and Tatitlek.

Bay.

7, Remainder....................... Moose...................... No Federal subsistence priority.

7.................................. Sheep...................... No Federal subsistence priority.

Unit 8............................. Brown Bear................. Residents of Old Harbor, Akhiok, Larsen Bay,

Karluk, Ouzinkie, and Port Lions.

8.................................. Deer....................... Residents of Unit 8.

8.................................. Elk........................ Residents of Unit 8.

8.................................. Goat....................... No Federal subsistence priority.

Unit 9(D).......................... Bison...................... No Federal subsistence priority.

9(A) and (B)....................... Black Bear................. Residents of Units 9(A) and (B), and 17(A),

(B), and (C).

9(A), (C) and (D).................. Brown Bear................. No Federal subsistence priority.

9(B)............................... Brown Bear................. Residents of Unit 9(B).

9(E)............................... Brown Bear................. Residents of Chignik Lake, Egegik, Ivanof Bay,

Perryville, and Port Heiden/Meshik.

[[Page 1295]]

9(A) and (B)....................... Caribou.................... Residents of Units 9(B), 9(C) and 17.

9(C)............................... Caribou.................... Residents of Units 9(B), 9(C) and 17 and

residents of Egegik.

9(D)............................... Caribou.................... Residents of Unit 9(D), and residents of False

Pass.

9(E)............................... Caribou.................... Residents of Units 9(B), (C), (E), 17, and

residents of Nelson Lagoon and Sand Point.

9(A), (B), (C) and (E)............. Moose...................... Residents of Unit 9(A), (B), (C) and (E).

9(D)............................... Moose...................... No Federal subsistence priority.

9(B)............................... Sheep...................... Residents of Iliamna, Newhalen, Nondalton,

Pedro Bay, and Port Alsworth.

9, Remainder....................... Sheep...................... No determination.

9.................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon

and 16-26.

9(A), (B), (C), & (E).............. Beaver..................... Residents of Units 9(A), (B), (C), (E), and

17.

Unit 10 Unimak Island.............. Caribou.................... Residents of False Pass.

10, Remainder...................... Caribou.................... No determination.

10................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon

and 16-26.

Unit 11............................ Bison...................... No Federal subsistence priority.

11................................. Brown Bear................. No Federal subsistence priority.

11, north of the Sanford River..... Caribou.................... Residents of Units 11, 12, and 13 (A)-(D) and

the residents of Chickaloon and Dot Lake.

11, remainder...................... Caribou.................... Residents of Units 11 and 13 (A)-(D) and the

residents of Chickaloon.

11................................. Goat....................... Residents of Unit 11 and the residents of

Chitina, Chistochina, Copper Center, Gakona,

Gulkana, Mentasta Lake, Tazlina, Tonsina, and

Dot Lake.

11, north of the Sanford River..... Moose...................... Residents of Units 11, 12, and 13 (A)-(D) and

the residents of Chickaloon and Dot Lake.

11, remainder...................... Moose...................... Residents of Unit 11 and Unit 13 (A)-(D) and

the residents of Chickaloon.

11, north of the Sanford River..... Sheep...................... Residents of Unit 12 and the communities and

areas of Chistochina, Chitina, Copper Center,

Dot Lake, Gakona, Glennallen, Gulkana, Kenny

Lake, Mentasta Lake, Slana, McCarthy/South

Wrangell/South Park, Tazlina and Tonsina;

Residents along the Nabesna Road--Milepost 0-

46 (Nabesna Road), and residents along the

McCarthy Road--Milepost 0-62 (McCarthy Road).

11, remainder...................... Sheep...................... Residents of the communities and areas of

Chisana, Chistochina, Chitina, Copper Center,

Dot Lake, Gakona, Glennallen, Gulkana, Kenny

Lake, Mentasta Lake, Slana, McCarthy/South

Wrangell/South Park, Tazlina and Tonsina;

Residents along the Tok Cuttoff--Milepost 79-

110 (Mentasta Pass), residents along the

Nabesna Road--Milepost 0-46 (Nabesna Road),

and residents along the McCarthy Road--

Milepost 0-62 (McCarthy Road).

11................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon

and 16-26.

11................................. Grouse (Spruce, Blue, Residents of Units 11, 12, 13 and the

Ruffed and Sharp-tailed). residents of Chickaloon, 15, 16, 20(D), 22

and 23.

11................................. Ptarmigan (Rock, Willow and Residents of Units 11, 12, 13 and the

White-tailed). residents of Chickaloon, 15, 16, 20(D), 22

and 23.

Unit 12............................ Brown Bear................. Residents of Unit 12 and Dot Lake.

12................................. Caribou.................... Residents of Unit 12 and residents of Dot Lake

and Mentasta Lake.

12, South of a line from Noyes Moose...................... Residents of Unit 11 north of 62nd parallel

Mountain, southeast of the (excluding North Slana Homestead and South

confluence of Tatschunda Creek to Slana Homestead); and residents of Unit 12,

Nabesna River. 13(A)-(D) and the residents of Chickaloon and

residents of Dot Lake.

12, East of the Nabesna River and Moose...................... Residents of Unit 12.

Nabesna Glacier, south of the

Winter Trail from Pickerel Lake to

the Canadian Border.

12, Remainder...................... Moose...................... Residents of Unit 12 and residents of Dot Lake

and Mentasta Lake.

12................................. Sheep...................... Residents of Unit 12 and residents of

Chistochina and Mentasta Lake.

12................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon

and 16-26.

Unit 13............................ Brown Bear................. No Federal subsistence priority.

13................................. Caribou Nelchina Herd...... Residents of Units 11, 13 and the residents of

Chickaloon, and 12 (along Nabesna Road).

13(E).............................. Caribou.................... Residents of McKinley Village, and the area

along the Parks Highway between milepost 216

and 239 (except no subsistence for residents

of Denali National Park headquarters)

13(D).............................. Goat....................... No Federal subsistence priority.

13(A), (B), and (D)................ Moose...................... Residents of Unit 13 and the residents of

Chickaloon.

13(C).............................. Moose...................... Residents of Units 12, 13 and the residents of

Chickaloon and Dot Lake.

[[Page 1296]]

13(E).............................. Moose...................... Residents of McKinley Village, and the area

along the Parks Highway between milepost 216

and 239 (except no subsistence for residents

of Denali National Park headquarters).

13(D).............................. Sheep...................... No Federal subsistence priority.

13................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon,

and 16-26.

13................................. Grouse (Spruce, Blue, Residents of Units 11, 13 and the residents of

Ruffed & Sharp-tailed). Chickaloon, 15, 16, 20(D), 22 & 23.

13................................. Ptarmigan (Rock, Willow and Residents of Units 11, 13 and the residents of

White-tailed). Chickaloon, 15, 16, 20(D), 22 & 23.

Unit 14(B) and (C)................. Brown Bear................. No Federal subsistence priority.

14................................. Goat....................... No Federal subsistence priority.

14................................. Moose...................... No Federal subsistence priority.

14(A) and (C)...................... Sheep...................... No Federal subsistence priority.

Unit 15(C)......................... Black Bear................. Residents of Port Graham and Nanwalek only.

15, Remainder...................... Black Bear................. No Federal subsistence priority.

15................................. Brown Bear................. No Federal subsistence priority.

15(C), Port Graham and English Bay Goat....................... Residents of Port Graham and Nanwalek.

hunt areas.

15(C), Seldovia hunt area.......... Goat....................... Residents Seldovia area.

15................................. Moose...................... Residents of Ninilchik, Nanwalek, Port Graham,

and Seldovia.

15................................. Sheep...................... No Federal subsistence priority.

15................................. Ptarmigan (Rock, Willow and Residents of Unit 15.

White-tailed).

15................................. Grouse (Spruce)............ Residents of Unit 15.

15................................. Grouse (Ruffed)............ No Federal subsistence priority.

Unit 16............................ Brown Bear................. No Federal subsistence priority.

16(A).............................. Moose...................... No Federal subsistence priority.

16(B).............................. Moose...................... Residents of Unit 16(B).

16................................. Sheep...................... No Federal subsistence priority.

16................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon,

and 16-26.

16................................. Grouse (Spruce, Blue, Residents of Units 11, 13 and the residents of

Ruffed and Sharp-tailed). Chickaloon, 15, 16, 20(D), 22 and 23.

16................................. Ptarmigan (Rock, Willow and Residents of Units 11, 13 and the residents of

White-tailed). Chickaloon, 15, 16, 20(D), 22 and 23.

Unit 17............................ Black Bear................. Residents of Units 9(A) and (B), and 17(A),

(B), and (C).

17(A).............................. Brown Bear................. Residents of Unit 17, and residents of

Goodnews Bay and Platinum.

17(A) and (B) Those portions north Brown Bear................. Residents of Kwethluk.

and west of a line beginning from

the Unit 18 boundary at the

northwest end of Nenevok Lake, to

the southern point of upper Togiak

Lake, and northeast to the

northern point of Nuyakuk Lake,

northeast to the point where the

Unit 17 boundary intersects the

Shotgun Hills.

17(B) and (C)...................... Brown Bear................. Residents of Unit 17.

17................................. Caribou.................... Residents of Units 9(B), 17 and residents of

Lime Village and Stony River.

17(A) and (B) Those portions north Caribou.................... Residents of Kwethluk.

and west of a line beginning from

the Unit 18 boundary at the

northwest end of Nenevok Lake, to

the southern point of upper Togiak

Lake, and northeast to the

northern point of Nuyakuk Lake,

northeast to the point where the

Unit 17 boundary intersects the

Shotgun Hills.

17(A) and (B) Those portions north Moose...................... Residents of Kwethluk.

and west of a line beginning from

the Unit 18 boundary at the

northwest end of Nenevok Lake, to

the southern point of upper Togiak

Lake, and northeast to the

northern point of Nuyakuk Lake,

northeast to the point where the

Unit 17 boundary intersects the

Shotgun Hills.

17(A).............................. Moose...................... Residents of Unit 17 and residents of Goodnews

Bay and Platinum; however, no subsistence for

residents of Akiachak, Akiak and Quinhagak.

[[Page 1297]]

17(B) and (C)...................... Moose...................... Residents of Unit 17, and residents of

Nondalton, Levelock, Goodnews Bay and

Platinum.

17................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon,

and 16-26.

17................................. Beaver..................... Residents of Units 9(A), (B), (C), (E), and

17.

Unit 18............................ Black Bear................. Residents of Unit 18, residents of Unit 19(A)

living downstream of the Holokuk River, and

residents of Chuathbaluk, Aniak, Lower

Kalskag, Holy Cross, Stebbins, St. Michael,

and Togiak.

18................................. Brown Bear................. Residents of Akiachak, Akiak, Eek, Goodnews

Bay, Kwethluk, Mt. Village, Napaskiak,

Platinum, Quinhagak, St. Mary's, and

Tuluksak.

18................................. Caribou (Kilbuck caribou INTERIM DETERMINATION BY FEDERAL SUBSISTENCE

herd only). BOARD (12/18/91): residents of Tuluksak,

Akiak, Akiachak, Kwethluk, Bethel,

Oscarville, Napaskiak, Napakiak, Kasigluk,

Atmanthluak, Nunapitchuk, Tuntutliak, Eek,

Quinhagak, Goodnews Bay, Platinum, Togiak,

and Twin Hills.

18 North of the Yukon River........ Caribou (except Kilbuck Residents of Alakanuk, Andreafsky, Chevak,

caribou herd). Emmonak, Hooper Bay, Kotlik, Kwethluk,

Marshall, Mountain Village, Pilot Station,

Pitka's Point, Russian Mission, St. Mary's,

St. Michael, Scammon Bay, Sheldon Point, and

Stebbins.

18, Remainder...................... Caribou (except Kilbuck Residents of Kwethluk.

caribou herd).

18, that portion of the Yukon River Moose...................... Residents of Unit 18 and residents of Upper

drainage upstream of Russian Kalskag, Lower Kalskag, Aniak, and

Mission and that portion of the Chuathbaluk.

Kuskokwim River drainage upstream

of, but not including the Tuluksak

River drainage.

18, remainder...................... Moose...................... Residents of Unit 18 and residents of Upper

Kalskag and Lower Kalskag.

18................................. Muskox..................... No Federal subsistence priority.

18................................. Wolf....................... Residents of Units 6, 9, 10 (Unimak Island

only), 11-13 and the residents of Chickaloon

and 16-26.

Unit 19(C), (D).................... Bison...................... No Federal subsistence priority.

19(A).............................. Brown Bear................. Residents of Unit 19(A), (D), and Residents of

Tuluksak, Lower Kalskag and Kwethluk.

19(B).............................. Brown Bear................. Residents of Kwethluk.

19(C).............................. Brown Bear................. No Federal subsistence priority.

19(D).............................. Brown Bear................. Residents of Unit 19(A) and (D), and residents

of Tulusak and Lower Kalskag.

19(A) and (B)...................... Caribou.................... Residents of Unit 19(A) and (B) and Kwethluk;

and residents of Unit 18 in Kuskokwim

Drainage and Kuskokwim Bay during the winter

season.

19(C).............................. Caribou.................... Residents of Unit 19(C), and residents of Lime

Village, McGrath, Nikolai, and Telida.

19(D).............................. Caribou.................... Residents of Unit 19(D), and residents of Lime

Village, Sleetmute and Stony River.

19(A) and (B)...................... Moose...................... Residents of Unit 18 within Kuskokwim River

drainage upstream from and including the

Johnson River, and Unit 19.

19(C).............................. Moose...................... Residents of Unit 19.

19(D).............................. Moose...................... Residents of Unit 19 and residents of Lake

Minchumina.

19......................

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