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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-11

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 8, 1999
- **Citation:** 64 FR 1276

## Text

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

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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;

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(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 r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-11. Public record. Not legal advice.