[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15445]
[[Page Unknown]]
[Federal Register: June 27, 1994]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 242
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 100
RIN 1018-AB43
Subsistence Management Regulations for Public Lands in Alaska,
Subpart D; Subsistence Taking of Fish and Wildlife Regulations;
Extension
AGENCY: Forest Service, USDA; Fish and Wildlife Service, Interior.
ACTION: Interim rule.
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SUMMARY: This interim rule amends the Subsistence Management
Regulations for Public Lands in Alaska implementing the subsistence
priority for rural residents of Alaska under Title VIII of the Alaska
National Interest Lands Conservation Act (ANILCA) of 1980 by extending
the effective date of 50 CFR 100 and 36 CFR 242, Sec. ________.26
(Subsistence taking of fish) and Sec. ________.27 (Subsistence taking
of shellfish) (58 FR 31252-31295). This interim rule would extend the
regulations now set to expire June 30, 1994. They would be extended
until December 31, 1995, or until revoked or superseded, whichever
comes earlier.
EFFECTIVE DATE: Effective June 30, 1994, this interim rule extends the
expiration date of the Subsistence Management Regulations, 50 CFR 100
and 36 CFR 242, Sec. ________.26 (Subsistence taking of fish) and
Sec. ________.27 (Subsistence taking of shellfish) (58 FR 31252-31295)
from June 30, 1994, until December 31, 1995.
FOR FURTHER INFORMATION CONTACT: Richard S. Pospahala, Office of
Subsistence Management, U.S. Fish and Wildlife Service, 1011 E. Tudor
Road, Anchorage, Alaska 99503; telephone (907) 786-3447. For questions
specific to National Forest System lands, contact Norman Howse,
Assistant Director, Subsistence, USDA--Forest Service, Alaska Region,
P.O. Box 21628, Juneau, Alaska 99802; telephone (907) 586-8890.
SUPPLEMENTARY INFORMATION: Background--Title VIII of the Alaska
National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126)
requires that the Secretary of the Interior and the Secretary of
Agriculture (Secretaries) implement a joint program to grant a
preference for subsistence uses of fish and wildlife resources on
public lands, unless the State of Alaska enacts and implements laws of
general applicability which are consistent with ANILCA, and which
provide for the subsistence definition, preference, and participation
specified in sections 803, 804, and 805 of ANILCA. The State
implemented a program that the Department of the Interior previously
found to be consistent with ANILCA. However, in December 1989, the
Alaska Supreme Court ruled in McDowell v. State of Alaska that the
rural preference in the State subsistence statute violated the Alaska
Constitution. The court's ruling in McDowell required the State to
delete the rural preference from the subsistence statute, and
therefore, negated State compliance with ANILCA. The Court stayed the
effect of the decision until July 1, 1990.
As a result of the McDowell decision, the Department of the
Interior and the Department of Agriculture (Departments) assumed, on
July 1, 1990, responsibility for implementation of Title VIII of ANILCA
on public lands. On June 29, 1990, the Temporary Subsistence Management
Regulations for Public Lands in Alaska were published in the Federal
Register (55 FR 27114-27170). Consistent with Subparts A, B, and C of
these regulations, a Federal Subsistence Board (Board) was established
to administer the Federal Subsistence Management Program. The Board's
composition includes a Chair appointed by the Secretary of the Interior
with concurrence of the Secretary of Agriculture; the Alaska Regional
Director, U.S. Fish and Wildlife Service; the Alaska Regional Director,
U.S. National Park Service; the Alaska State Director, U.S. Bureau of
Land Management; the Alaska Area Director, U.S. Bureau of Indian
Affairs; and the Alaska Regional Forester, USDA Forest Service. Through
the Board, these agencies have participated in development of
regulations for Subparts A, B, and C, and the annual Subpart D
regulations.
On June 1, 1993, the 1993-1994 Seasons and Bag Limits for
Subsistence Management Regulations for Public Lands in Alaska were
published in the Federal Register (58 FR 31252-31295). Those
regulations which include the sections on the taking of fish and
shellfish expire June 30, 1994.
On July 15, 1993, the Native American Rights Fund, on behalf of a
number of individuals and organizations, submitted a petition to the
Secretary of the Interior and the Secretary of Agriculture requesting
that they include navigable waters within the definition of ``public
lands'' as used in implementing Title VIII. This was a request for
administrative relief. The Secretaries continue their evaluation of
this petition.
On March 30, 1994, the U.S. District Court for Alaska issued a
decision in the consolidated Katie John, et al. v. the United States,
et al. litigation. The court concluded that the Secretaries are
entitled to manage fish and wildlife on public lands in Alaska for the
purposes of providing the subsistence priority mandated in Title VIII
of ANILCA. The court further concluded that, for the purposes of Title
VIII, ``public lands'' includes all navigable waterways in Alaska. The
court then issued a stay of the decision for 60 days to allow the
filing of an appeal and ordered that the stay would remain in effect,
pending an appellate decision, if one or more appeals were filed.
Because the Federal government has successfully petitioned the Ninth
Circuit Court of Appeals for permission to appeal from the district
court's decision, the stay presently remains in effect.
Because the petition for rulemaking is still under consideration by
the Secretaries and because of the stayed court decision relative to
actual Federal jurisdiction, the Board believes that issuing
regulations immediately, assuming additional authority or revising
existing regulations are not warranted and, in fact, appear to be
inappropriate at this time. However, any comments or proposals received
will be carefully considered and retained for use when the regulations
are revised the next time. This interim rule effectively extends the
existing regulations until December 31, 1995, or until the Secretaries
direct the revision of the subsistence fish and shellfish regulations
based on a revised area of jurisdiction, or until the court directs the
preparation of regulations implementing its order.
The Board finds that public notice and comment requirements under
the Administrative Procedures Act (APA) for this extension are
impracticable, unnecessary, and contrary to the public interest. A
lapse in regulatory control after July 1 could seriously affect the
continued viability of fish and shellfish populations, adversely impact
future subsistence opportunities for rural Alaskans, and would
generally fail to serve the overall public interest. Therefore, the
Board finds that good cause pursuant to 5 U.S.C. 553(b)(B) to waive the
public notice and comment procedures prior to publication of this
extension.
The Board also finds good cause for the existing rule to be
extended until December 31, 1995, (or until they are revoked or
superseded whichever comes earlier). This December 31 date is
consistent with earlier Board discussions proposing to change the
regulatory year for fisheries regulations to January 1 through December
31 to avoid having changes occur during the middle of a fishing season.
The Board therefore finds good cause under 5 U.S.C. 553(d)(3) to make
this extension effective upon publication.
Conformance With Statutory and Regulatory Authorities
National Environmental Policy Act Compliance--A Draft Environmental
Impact Statement (DEIS) that described four alternatives for developing
a Federal Subsistence Management Program was distributed for public
comment on October 7, 1991. That document described the major issues
associated with Federal subsistence management as identified through
public meetings, written comments and staff analysis and examined the
environmental consequences of the four alternatives. Proposed
regulations (Subparts A, B, and C) that would implement the preferred
alternative were included in the DEIS as an appendix. The DEIS and the
proposed administrative regulations presented a framework for an annual
regulatory cycle regarding subsistence hunting and fishing regulations
(Subpart D). The Final Environmental Impact Statement (FEIS) was
published on February 28, 1992.
Based on the public comment received, the analysis contained in the
FEIS, and the recommendations of the Federal Subsistence Board and the
Department of the Interior's Subsistence Policy Group, it was the
decision of the Secretary of the Interior, with the concurrence of the
Secretary of Agriculture, through the U.S. Department of Agriculture-
Forest Service, to implement Alternative IV as identified in the DEIS
and FEIS (Record of Decision on Subsistence Management for Federal
Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the
selected alternative in the FEIS defined the administrative framework
of an annual regulatory cycle for subsistence hunting and fishing
regulations. The final rule for Subsistence Management Regulations for
Public Lands in Alaska, Subparts A, B, and C (57 FR 22940-22964)
implements the Federal Subsistence Management Program and includes a
framework for an annual cycle for subsistence hunting and fishing
regulations.
Compliance With Section 810 of ANILCA
The intent of all Federal subsistence regulations is to accord
subsistence uses of fish and wildlife on public lands a priority over
the taking of fish and wildlife on such lands for other purposes,
unless restriction is necessary to conserve healthy fish and wildlife
populations. A Section 810 analysis was completed as part of the FEIS
process. The final Section 810 analysis determination appears 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.
Paperwork Reduction Act
These rules contain information collection requirements subject to
Office of Management and Budget (OMB) approval under 44 U.S.C. 3501-
3520. They apply to the use of public lands in Alaska. The information
collection requirements described above are approved by the OMB under
44 U.S.C. 3501 and have been assigned clearance number 1018-0075.
Public reporting burden for this form is estimated to average .1382
hours per response, including time for reviewing instructions,
gathering and maintaining data, and completing and reviewing the form.
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, D.C. 20240; and the Office
of Management and Budget, Paperwork Reduction Project (1018-0075),
Washington, D.C. 20503. Additional information collection requirements
may be imposed if Local Advisory Committees subject to the Federal
Advisory Committee Act are established under Subpart B. Such
requirements will be submitted to OMB for approval prior to their
implementation.
Economic Effects
This rule is not subject to OMB review under Executive Order 12866.
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 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.
This rulemaking will impose no significant costs on small entities;
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. 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.
These regulations do not meet the threshold criteria of
``Federalism Effects'' as set forth in Executive Order 12612. Title
VIII of ANILCA requires the Secretaries to administer a subsistence
preference on public lands. The scope of this program is limited by
definition to certain public lands. Likewise, these regulations have no
significant takings implication relating to any property rights as
outlined by Executive Order 12630.
Drafting Information
These regulations were drafted under the guidance of Richard S.
Pospahala, of the Office of Subsistence Management, Alaska Regional
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional
guidance was provided by Thomas H. Boyd, Alaska State Office, Bureau of
Land Management; John Hiscock, Alaska Regional Office, National Park
Service; John Borbridge, Alaska Area Office, Bureau of Indian Affairs;
and Norman Howse, USDA-Forest Service.
List of Subjects
36 CFR Part 242
Administrative practice and procedure, Alaska, Fish, National
forests, public Lands, Reporting and record keeping requirements,
Wildlife.
50 CFR Part 100
Administrative practice and procedure, Alaska, Fish, Public lands,
Reporting and record keeping requirements, Subsistence, Wildlife.
Words of Issuance
For the reasons set out in the preamble, Title 36, Part 242, and
Title 50, Part 100, of the Code of Federal Regulations, are amended as
set forth below.
PART ______--SUBSISTENCE MANAGEMENT REGULATIONS FOR FEDERAL 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. Effective June 30, 1994, the expiration date for Sec. ______.26
and Sec. ______.27 of Subpart D of 36 CFR Part 242 & 50 CFR Part 100 is
extended until December 31, 1995.
Dated: June 6, 1994.
Ronald B. McCoy,
Interim Chair, Federal Subsistence Board.
Dated: June 9, 1994.
Philip J. Janik,
Regional Forester, USDA-Forest Service.
[FR Doc. 94-15445 Filed 6-24-94; 8:45 am]
BILLING CODE 3410-11-M 4310-55-M
