06-8276. Subsistence Management Regulations for Public Lands in Alaska; Kenai Peninsula Subsistence Resource Region

AGENCIES:

Forest Service, Agriculture; Fish and Wildlife Service, Interior.

ACTION:

Direct final rule; withdrawal.

SUMMARY:

We, the Federal Subsistence Board, are withdrawing the direct final rule that would have amended the regulations governing subsistence use of fish and wildlife in Alaska by creating an additional subsistence resource region for the Kenai Peninsula. We predicate this withdrawal on the fact that we have received significant adverse comments, specifically relating to the lack of public input on this issue.

DATES:

This withdrawal is effective September 27, 2006.

ADDRESSES:

You may submit comments electronically to [e-mail] or via the Federal E-Rulemaking Portal at http://www.regulations.gov. See SUPPLEMENTARY INFORMATION for file format and other information about electronic filing. You may also submit written comments to the Office of Subsistence Management, 3601 C Street, Suite 1030, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT:

For general subsistence management program questions, contact Pete Probasco at [phone]. For Forest Service questions, contact Steve Kessler, Regional Subsistence Program Leader, USDA—FS Alaska Region, at [phone].

SUPPLEMENTARY INFORMATION:

Background

In Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that “the situation in Alaska is unique in that, in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents dependent on subsistence uses * * *” and that “continuation of the opportunity for subsistence uses of resources on public and other lands in Alaska is threatened * * *.” As a result, Title VIII requires, among other things, that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, 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 its 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).

Federal Subsistence Regional Advisory Councils

Pursuant to the Subsistence Management Regulations for Federal Public Lands in Alaska, April 6, 1992, and the Subsistence Management Regulations for Federal Public Lands in Alaska, 36 CFR 242.11 (2002) and 50 CFR 100.11 (2002), and for the purposes identified therein, we divided Alaska into 10 subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council (Regional Council). The Regional Councils provide a forum for residents of the regions, who have 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 varied geographical, cultural, and user diversity within each region.

Withdrawal of Direct Final Rule

The Kenai Peninsula has unique fish and wildlife management challenges due to intense use of the Peninsula's fish and wildlife by local and nonlocal residents and by nonresidents, and due to the recent Board actions to begin to provide a meaningful subsistence priority for fisheries in Federally managed fresh waters on the Kenai Peninsula. Kenai Peninsula lands primarily under Federal management include the Chugach National Forest and the Kenai National Wildlife Refuge.

We published a direct final rule on August 14, 2006 (71 FR 46400), that would have created a separate subsistence resource region for the Kenai Peninsula because we viewed this action as an uncontroversial administrative action by the Federal Subsistence Board. That direct final rule would have become effective September 29, 2006, unless we received significant adverse comments.

During a Southcentral Federal Subsistence Regional Advisory Council meeting held in Anchorage, Alaska on August 24, 2006, we heard significant adverse testimony regarding the creation of a new Kenai Peninsula Subsistence Resource Region. Additionally, the Southcentral Regional Council unanimously recommended against the formation of such a region without providing more opportunity for public input. Letters from the public also strongly opposed the formation of such a region without providing more opportunity for public input. Therefore, we are withdrawing the direct final rule and will hold hearings in the affected area to obtain additional public input before deciding whether to proceed with the formation of a new subsistence resource region. In addition, on the same date that we published the direct final rule, we published a proposed rule (71 FR 46427) to create an additional subsistence resource region for the Kenai Peninsula.

For the reasons stated above, the Federal Subsistence Board withdraws the direct final rule of August 14, 2006 (71 FR 46400).

Dated: September 19, 2006.

Peter J. Probasco,

Acting Chair, Federal Subsistence Board.

Dated: September 19, 2006.

Steve Kessler,

Subsistence Program Leader, USDA-Forest Service.