[Federal Register: May 7, 2007 (Volume 72, Number 87)]
[Rules and Regulations]
[Page 25688-25698]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07my07-5]
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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-AT99
Subsistence Management Regulations for Public Lands in Alaska,
Subpart C; Nonrural Determinations
AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Final rule.
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SUMMARY: This rule revises the list of nonrural areas identified by the
Federal Subsistence Board (Board, we, us). Only residents of areas
identified as rural are eligible to participate in the Federal
Subsistence Management Program on Federal public lands in Alaska. We
are changing Adak's status to rural. We also are adding Prudhoe Bay to
the list of nonrural areas. The following areas continue to be
nonrural, but we are changing their boundaries: the Kenai Area; the
Wasilla/Palmer Area, including Point McKenzie; the Homer Area,
including Fritz Creek East (except Voznesenka) and the North Fork Road
area; and the Ketchikan Area. We have also added Saxman to the
Ketchikan nonrural area. We are making no other changes in status. This
final rule differs from the proposed rule relative to the Kodiak area
and Saxman: For reasons set forth below, we did not change the status
of the Kodiak area from rural to nonrural, as we had proposed, and we
included Saxman in the nonrural Ketchikan area, which we had not
proposed. Residents of those areas changing from rural to nonrural have
5 years to come into compliance with this rule.
DATES: Effective Date: This rule is effective June 6, 2007. Compliance
Date: Compliance with the nonrural determinations for Prudhoe Bay,
Point MacKenzie, the expanded portion of Sterling, Fritz Creek East,
North Fork Road area, Saxman, and the additions to the Ketchikan
nonrural area is required by May 7, 2012.
FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of
Subsistence Management; 3601 C Street, Suite 1030, Anchorage, AK 99503,
telephone (907) 786-3888. For questions specific to National Forest
System lands, contact Steve Kessler, Regional Subsistence Program
Leader, USDA, Forest Service, Alaska Region, (907) 786-3888.
SUPPLEMENTARY INFORMATION:
Background
In Title VIII of the Alaska National Interest Lands Conservation
Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that ``the situation
in Alaska is unique in that, in most cases, no practical alternative
means are available to replace the food supplies and other items
gathered from fish and wildlife which supply rural residents dependent
on subsistence uses * * *'' and that ``continuation of the opportunity
for subsistence uses of resources on public and other lands in Alaska
is threatened. * * *'' As a result, Title VIII requires, among other
things, that the Secretary of the Interior and the Secretary of
Agriculture (Secretaries) implement a program to provide rural Alaska
residents a priority for the taking of fish and wildlife on public
lands in Alaska for subsistence uses, unless the State of Alaska enacts
and implements laws of general applicability that are consistent with
ANILCA and that provide for the subsistence definition, priority, and
participation specified in Sections 803, 804, and 805 of ANILCA.
The State implemented a program that the Department of the Interior
previously found to be consistent with ANILCA. However, in December
1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska
that the rural priority in the State subsistence statute violated the
Alaska Constitution. The Court's ruling in McDowell caused the State to
delete the rural priority from the subsistence statute, which therefore
negated State compliance with ANILCA. The Court stayed the effect of
the decision until July 1, 1990. As a result of the McDowell decision,
the Department of the Interior and the Department of Agriculture
(Departments) assumed, on July 1, 1990, responsibility for
implementation of Title VIII of ANILCA on public lands. On June 29,
1990, the Departments published the Temporary Subsistence Management
Regulations for Public Lands in Alaska in the Federal Register (55 FR
27114). Permanent regulations were jointly published on May 29, 1992
(57 FR 22940), and have been amended since then.
As a result of this joint process between Interior and Agriculture,
these regulations can be found in the titles for Agriculture and
Interior in the Code of Federal Regulations (CFR) both in title 36,
``Parks, Forests, and Public
[[Page 25689]]
Property,'' and title 50, ``Wildlife and Fisheries,'' at 36 CFR 242.1-
28 and 50 CFR 100.1-28, respectively. The regulations contain the
following subparts: Subpart A, General Provisions; Subpart B, Program
Structure; Subpart C, Board Determinations; and Subpart D, Subsistence
Taking of Fish and Wildlife.
Consistent with Subparts A, B, and C of these regulations, as
revised May 7, 2002 (67 FR 30559), and December 27, 2005 (70 FR 76400),
the Departments established a Federal Subsistence Board (Board) to
administer the Federal Subsistence Management Program, as established
by the Secretaries. The Board's composition includes a Chair appointed
by the Secretary of the Interior with concurrence of the Secretary of
Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife
Service; the Alaska Regional Director, U.S. National Park Service; the
Alaska State Director, U.S. Bureau of Land Management (BLM); the Alaska
Regional Director, U.S. Bureau of Indian Affairs; and the Alaska
Regional Forester, USDA Forest Service. Through the Board, these
agencies participate in the development of regulations for Subparts A,
B, and C, and the annual Subpart D regulations.
Rural Determination Process
With a Federal Register notice on October 5, 1990 (55 FR 40897),
the newly established Federal Subsistence Board initiated the
preparation of an Environmental Impact Statement as a vehicle for
widespread public review and participation in the development of the
final temporary regulations. The rural determination process was
included, and subsequently on November 23, 1990 (55 FR 48877), the
Board published another notice in the Federal Register explaining the
proposed Federal process for making rural determinations, the criteria
to be used, and the application of those criteria in preliminary
determinations. Public meetings were held in approximately 56 Alaskan
communities, specifically to solicit comments on the proposed Federal
Subsistence Management Program. On December 17, 1990, the Board adopted
final rural and nonrural determinations, which were published on
January 3, 1991 (56 FR 236). Final programmatic regulations were
published on May 29, 1992, with only slight variations in the rural
determination process (57 FR 22940).
Federal subsistence regulations require that the rural/nonrural
status of communities or areas be reviewed every 10 years, beginning
with the availability of the 2000 census data. The Board evaluated
several options for conducting the review and decided to adopt an
approach similar to that taken in 1990, which used criteria established
in Federal subsistence regulations.
Although the process uses data from the 2000 census for its review,
some data were not compiled and available until 2005. Data from the
Alaska Department of Labor were used to supplement the census data.
During February-July 2005, the staff of the Federal Subsistence
Management Program conducted an initial review of the rural status of
Alaska communities, looking at the 2000 census data for each community
or area with an emphasis on what had changed since 1990. From this
initial review, staff compiled a report that included a proposed list
of communities and areas for which further analysis appeared warranted.
In addition, the report described the method used to develop this list.
In August-October 2005, the public and Federal Subsistence Regional
Advisory Councils were invited to comment on the results of this
initial review.
At a meeting in Anchorage on December 6-7, 2005, the Board took
public testimony and determined that additional information was needed
on 10 communities and areas before it decided upon any potential
changes.
For three communities, the further analysis that followed
was focused on evaluation of rural/nonrural status, as follows:
Kodiak, Adak, and Prudhoe Bay: At that time, Kodiak and Prudhoe Bay
were considered rural, and Adak was considered nonrural. These three
communities were further analyzed as to their rural/nonrural status.
For five nonrural groupings of communities and areas,
further analysis evaluated the possibility of excluding or including
boundary areas, as follows:
Fairbanks North Star Borough: Evaluated whether to continue using
the entire borough as the nonrural area, or whether to separate some
outlying areas and evaluated their rural/nonrural status independently.
Seward Area: Evaluated whether to exclude Moose Pass and similarly
situated places from this nonrural grouping and evaluate their rural/
nonrural status independently.
Wasilla/Palmer Area: Evaluated whether to include Willow, Point
MacKenzie, and similarly situated places in this nonrural grouping.
Homer Area: Evaluated whether to include Fox River, Happy Valley,
and similarly situated places in this nonrural grouping.
Kenai Area: Evaluated whether to exclude Clam Gulch and similarly
situated places from this nonrural grouping and evaluated their rural/
nonrural status independently, and evaluated whether to include an
additional portion of the Sterling census designated place in the
nonrural Kenai area.
In addition, two areas were further analyzed as follows:
Ketchikan Area: Evaluated whether to include Saxman, and other
areas outside the current nonrural boundary, and evaluated the rural/
nonrural status of the whole area.
Delta Junction, Big Delta, Deltana and Fort Greely: Evaluated
whether some or all of these communities should be grouped, and if so,
their rural/nonrural status evaluated collectively.
This assignment for additional analysis differed from the proposed
list released for public comment in July 2005, in that: (1) The scope
of the review was broadened for the Ketchikan area, considered
nonrural, to include an analysis of rural/nonrural characteristics of
the entire area; (2) the rural/nonrural status of Prudhoe Bay was
added; and (3) additional analysis of Sitka was not believed to be
necessary.
Sitka, whose population had increased from 8,588 people in 1990 to
8,835 in 2000, had been initially identified as an area possibly
warranting further analysis. However, during its December 6-7, 2005,
meeting, the Board heard substantial public testimony regarding the
rural characteristics of Sitka and determined that no additional
analysis was necessary, leaving Sitka's rural status unchanged.
During January-May 2006, Federal subsistence staff conducted in-
depth analyses of each community or area on the Board-approved list of
communities and areas identified for further analysis.
On June 22, 2006, the Board met in executive session to develop the
list of communities and areas they proposed to be nonrural. Those
communities and areas were identified in a proposed rule published in
the Federal Register on August 14, 2006 (71 FR 46416).
Population size is a fundamental distinguishing characteristic
between rural and nonrural communities. Under the current programmatic
guidance in Federal subsistence regulations:
A community with a population of 2,500 or less is deemed
rural, unless it possesses significant characteristics of a nonrural
nature, or is considered to be socially, economically, and communally
part of a nonrural area.
A community with a population of more than 7,000 is
presumed nonrural, unless it possesses significant characteristics of a
rural nature.
[[Page 25690]]
A community with a population above 2,500 but not more
than 7,000 is evaluated to determine its rural/nonrural status. The
community characteristics considered in this evaluation may include,
but are not limited to, diversity and development of the local economy,
use of fish and wildlife, community infrastructure, transportation, and
educational institutions.
Communities that are economically, socially, and communally
integrated are combined for evaluation purposes. The Board identified
three guidelines or criteria for analysis to assist in its
determination of whether or not to group communities in its review of
rural determinations. The criteria that were used include: (1) Are the
communities in proximity and road-accessible to one another? The first
criterion, proximity and road accessibility, is considered a logical
first step in evaluating the relationship between communities, and,
applied in relation to the other two criteria, is considered a
reasonable indicator of economic, social, and communal integration. (2)
Do they share a common high school attendance area? The second
criterion, regarding sharing a common high school attendance area, is
taken to be an indicator of the social integration of communities. This
is an improvement by way of modification from the former criterion of a
shared school district. The public pointed out in past testimony that
attendance in a common school district often reflects political or
administrative boundaries rather than social integration. A shared
social experience is better captured by the shared high school
criterion. (3) Do 30 percent or more of the working people commute from
one community to another? This criterion, regarding whether working
people commute from one community to another, was identified as
providing meaningful information relating to the grouping of
communities. Also, the U.S. Census uses this criterion because
commuting to work is an easily understood measure that reflects social
and economic integration. These criteria were not considered
separately, but assessed collectively, with the recommendation to group
communities being dependent upon the collective assessment.
Community characteristics and specific indicators that the Board
used to evaluate rural/nonrural status included: (1) Economy--wage
employment, percent unemployment, per capita income, diversity of
services, cost-of-food index, and number of stores of defined large
national retailers; (2) Community infrastructure--including the cost of
electricity; (3) Fish and wildlife use--variety of species used per
household, percentage of households participating, level of average
harvest per capita for all subsistence resources combined, and level of
average harvest per capita for salmon and large land mammals only; (4)
Transportation--variety of means, predominant means, and length of road
system; and (5) Educational institutions present in the community.
The Board's analysis and preliminary efforts to distinguish between
rural places and nonrural places were heavily reliant on population
size, but when the Board used other characteristics, its approach was
based on a totality of the circumstances. Unemployment is generally
higher and per capita income is generally lower in rural places than in
nonrural places. Cost of food and cost of electricity were generally
higher in the rural communities than in the nonrural. Subsistence per
capita harvest of all resources shows a pattern of increasing amount
with decreasing population size among nonrural areas, and typically
higher levels in rural communities. The per capita harvest of salmon
and large land mammals also shows a general pattern of increasing
amount with decreasing population size among nonrural areas, and
typically higher levels in rural communities. The defined large
national retailers were concentrated in the nonrural communities.
Public Review and Comment
The Board published a proposed rule (71 FR 46416) on August 14,
2006, soliciting comments through October 27, 2006, on the proposed
revision to the list of areas designated as nonrural. The Board then
held public hearings in Kodiak on September 20-21, 2006, in Saxman on
September 25, 2006, in Ketchikan on September 26, 2006, and in Sitka on
October 10, 2006. Approximately 230 individuals testified at those
hearings. During the public comment period, we received an additional
300 comments from individuals and 31 comments from organizations,
agencies and government representatives, as well as 11 resolutions from
city, borough, and tribal governments and organizations. Virtually all
of the written comments from individuals came from Sitka, Kodiak,
Ketchikan, and Saxman. Most expressed a desire for their communities to
have a rural designation.
Five of the 10 Regional Councils had comments and recommendations
to the Board on the proposed rule on the decennial review of rural/
nonrural determinations.
Southeastern Alaska Federal Subsistence Regional Advisory Council--
The Council concurred with the Board's proposed rule to maintain the
rural status of Sitka and Saxman. The Council did not agree with the
Board's proposed rule for Ketchikan. The Council was also concerned
that the presumptive nonrural population threshold of 7,000 is in
error, and recommended a change, if a threshold must be used, to
11,316.
Southcentral Alaska Federal Subsistence Regional Advisory Council--
The Council supported the proposed rule for all changes in the
Southcentral region. The Council also commented that guidelines and
criterion need to be reviewed further to clearly address communities
surrounding military bases and hub communities on the road system.
Kodiak/Aleutians Federal Subsistence Regional Advisory Council--The
Council recommended that Kodiak and its road system should remain
classified as rural, and that classification of Adak should be changed
from nonrural to rural.
Eastern Interior Alaska Federal Subsistence Regional Advisory
Council--The Council recommended the removal of Fort Greely from the
Board's grouping of the four census designated places of Delta
Junction, Big Delta, Deltana, and Fort Greely with the intent that the
communities retain their rural status.
North Slope Federal Subsistence Regional Advisory Council--The
Council recommended changing the designation of Prudhoe Bay from rural
to nonrural.
We will address the major comments from all sources below:
Comment: The Board has failed to provide sufficient information and
assurances of consistency regarding the basis for the Board's
evaluations of rural status or of the effects of a Board determination.
This lack of information has caused unnecessary fear and confusion
among Alaskans.
Response: The Board has conducted this review of rural/nonrural
determinations with substantial opportunities for public involvement,
and with substantial informational outreach. The generalized timeline
for the process has been previously noted. In the course of this
process, there have been public news releases, a question and answer
sheet, fact sheet, briefings to Regional Advisory Councils, staff
reports, a proposed rule, Board public meetings, and Board public
hearings in four communities.
Comment: At a minimum, the Federal Subsistence Board is obligated
to
[[Page 25691]]
construe Title VIII and the regulations implementing it broadly in
favor of Alaska Natives.
Response: Title VIII and the Federal subsistence management system
established to implement it are racially neutral. The Ninth Circuit
Court in Hoonah Indian Association v. Morrison, 170 F.3d 1223, 1228
(9th Cir. 1999) has concluded that Title VIII is not Indian legislation
for the purpose of statutory construction.
Comment: Communities should not be grouped or are being improperly
grouped. The Coast Guard base in Kodiak should not be grouped in the
Kodiak area; the Coast Guard base in Sitka should not be grouped in the
Sitka area; the Community of Saxman should not be grouped in the
Ketchikan area.
Response: Section ----.15(a)(6) requires that communities that are
economically, socially, and communally integrated be considered in the
aggregate. That means they must be grouped for consideration. It should
be noted that places in a grouping need not be economically, socially,
or communally homogenous in order to be included. Portions of a
nonrural grouping may appear more rural than other portions of the
grouping and may have their own community governments and services, but
may still be combined or joined in one area.
Comment: Many people objected to the use of aggregating communities
or to the use of population in making presumptive determinations.
Response: The procedure of considering aggregated areas has been in
place in Federal Subsistence Management regulations (50 CFR
100.15(a)(6) and 36 CFR 242.15(a)(6)) since 1992 and recognizes the
fact that some areas and/or communities are interrelated and should be
considered as a whole. The use of population to set presumptive
thresholds has also been in regulation (----.15(a)(1-3)) since 1992 and
recognizes the intent of Congress and the Courts in using population as
an initial determinant of the rural or nonrural nature of a community
or area. The plain meaning of the term ``rural'' involves population.
Since larger population size may be seen as an impediment to
maintaining or acquiring rural status for a community or area, there is
an incentive to minimize the importance of population size as a factor
or to exclude portions of the total population in the assessment of a
community's size. The use of a population threshold recognizes that
population alone is not the sole indicator of a rural or nonrural
community. This flexibility is consistent with approaches other Federal
agencies have used to determine if communities are rural.
Comment: The Federal staff analysis ignores the historical context
for aggregation. The Board's decision making process should include an
evaluation regarding small communities along road systems and their
links to larger population centers with services that residents of
these small communities regularly use. The 2006 Federal staff analysis
should have evaluated the changes throughout the Kenai Peninsula and
should provide sufficient analysis to allow the Board to consider
reinstating an aggregation of communities on the road-connected Kenai
Peninsula.
Response: The Board considered grouping issues for some areas, as
assigned for further staff analysis in December 2005. The method to be
used for the assigned staff analyses was described and subjected to
public comment earlier in 2005. An analysis that would evaluate
aggregation of the entire road-connected Kenai Peninsula was not
proposed by the Board for assignment in July 2005, was not requested by
ADF&G at the December 2005 Board public meeting at which the
assignments were made, was not requested by the public, and was not
assigned by the Board. The staff analysis is consistent with the
assignment made by the Board in public session. Further, given the
criteria used by the Board, there was no reason to address the issue
further during the December 2006 public meeting.
Comment: Testimony and public comments have challenged the
appropriateness of the derivation of the 7,000 threshold from the
Ketchikan population level. The point made is that the 7,000 level was
the approximate size of Ketchikan City at the time of ANILCA passage,
but that the greater Ketchikan area had a population of about 11,000 at
that time. The concern is that the area population of 11,000 should
have been taken to represent Congressional intent, since the approach
as implemented requires grouping of economically, socially, and
communally integrated places.
Response: Whether the regulations should describe a threshold of
11,000 derived from the Ketchikan Area as a whole, or 7,000 derived
only from the City of Ketchikan, has no effect on the outcome of this
decennial review. Existing population levels identified in regulation
provide for a presumption unless a community or area exhibits
characteristics contrary to the initial presumption. This provides the
Board latitude to deviate from the presumption thresholds as warranted
by additional data. Communities and areas of all sizes were given
adequate consideration, and multiple opportunities were provided for
review and comment by Regional Advisory Councils, the State of Alaska,
and the public. None of the communities or areas (as defined by
grouping in the course of this review) that were proposed by the Board
for change in status was in the population range of 7,000 to 11,000.
For future clarification, the Board will interpret the 7,000 population
figure as a figure to be used for an individual community and the
11,000 population figure as a figure to be used when considering
aggregated areas.
Comment: The Board's decisions for proposing nonrural status for
some communities and not others was made in executive session on June
22, 2006.
Response: The Board's decisions regarding communities and areas
assigned for further analysis were made in a public meeting December 6-
7, 2005. At the executive session on June 22, 2006, the Board developed
the proposed rule, the release of which activated an extensive public
comment period, including Board hearings in four communities.
Comment: The Board did not use a consistent process for each
community in evaluating whether a community is rural or nonrural. This
is most clearly demonstrated in the Board's decision to maintain
Sitka's rural status without review or comparison to the standards.
Response: To address these concerns, we will need to recall the
approach for the initial steps in the review process, which was
presented to the Councils for their consideration during the February-
March 2005 Council meeting window, coincident with a public comment
period. There were 300 communities or areas (as grouped by the Federal
Subsistence Management Program) in Alaska in 2000, using data from the
2000 U.S. Census. The initial review work by staff in support of the
Board, conducted with an emphasis on what has changed since the initial
determinations were made in 1990, was reported to the Board in July
2005. The Board then proposed a list of communities and areas for
further analysis, which was subjected to public comment and Council
review and recommendation during the September-October 2005 Council
meeting window. Sitka was one of the places initially proposed by the
Board as a candidate for further analysis because it is rural in status
but grew further over the 7,000 threshold between 1990 and 2000, which
was one of the triggers for consideration. That growth amounted to 247
people (or 3 percent), from 8,588 in
[[Page 25692]]
1990 to 8,835 in 2000 (using Sitka City and Borough as the area of
interest). Notably, Sitka's population remains below the 11,000 figure
discussed above for aggregated areas. The initial steps in the review
process winnowed the number of communities and areas proposed for
further analysis from the potential scope of 300 to 10. The public
comment period in the fall of 2005, and the Board public meeting in
December 2005, provided further information and feedback on the first
phase of the review, with the Board seeking to learn more and being
open to adding communities and areas to, or removing them from, the
list for further analysis. Based on public comments and Regional
Council recommendations, and testimony at the December 2005 Board
public meeting, the Board added to, and removed from, the list proposed
for further analysis in making its assignment to staff for further
analysis. In the case of Sitka, the prevailing view of the Board was
that sufficient information had been obtained to preclude the need for
further staff analysis. The subsequent staff report to the Board on the
assigned further analyses included historical and current information
on population and community characteristics for Sitka along with other
places from around the State, in carrying forward the range of coverage
that had been provided in 1990.
Comment: The final analysis used by the Board is selective in its
use of the regulatory criteria and does not address other communities
whose status has significantly changed between the 1990 and 2000
census.
Response: The June 23, 2006, Office of Subsistence Management (OSM)
report was not selective in its use of the criteria. Tabular appendix
tables and in-text graphics presented historical and current population
data and indicators for all five community characteristics identified
in regulation. In addition, data was presented on population density,
which is a characteristic not identified in regulation. Not all data
types were available for all communities and areas, but relevant data
were provided to the extent available. The June 23, 2006, OSM report
was not intended to address all communities or areas within which
changes may have occurred, but rather those for which additional staff
analysis was assigned by the Board. The Federal review process, from
the beginning, involved opportunities for Council, State, and public
input. The Board review was intended to progressively winnow the scope
of candidate communities for potential change in status, or grouping
and status, from the approximately 300 places in Alaska.
Comment: Federal regulations specify that the criteria ``shall be
considered in evaluating a community's rural or nonrural status.''
However, the analysis prepared by Federal staff and the Board's
preliminary determinations reflected in the proposed rule make
selective use of the criteria. Old Believer communities on the Kenai
Peninsula and Delta Junction are two examples where consideration of
the use of fish and wildlife resources, as well as other factors, are
minimized or omitted.
Response: The regulatory phrase, quoted above, is taken out of
context. The Federal regulations specify that ``community or area
characteristics shall be considered in evaluating a community's rural
or nonrural status. The characteristics may include, but are not
limited to: [a list of five characteristics follows].'' This regulatory
construction provides substantial latitude to the Board in the type of
community characteristics used to evaluate rural or nonrural status.
All five of the characteristics listed in regulation were addressed
with data for one or more indicators in the historical (1990) and
current (2006) tables presented in appendices to the June 23, 2006, OSM
report to the Board, and selected indicators were also presented in
graphs for ease of visual interpretation. Characteristics were
evaluated for communities using the data as available. The issue raised
regarding the Old Believer communities confuses the community
characteristics used to address rural/nonrural status with the grouping
of economically, socially, and communally integrated places, for which
the Board identified three criteria as indicators. For Delta Junction,
data on community characteristics were used to the extent available.
Sufficient information on community use of fish and wildlife was not
available in a way that would have been reliable for contributing to an
assessment of rural/nonrural status.
Comment: The June 23, 2006, Federal staff analysis fails to
incorporate results of previous statewide analyses. Available
comparisons of patterns and their changes between 1990 and the 2000
census, as well as subsequent changes, are not presented consistently
for all communities.
Response: The June 23, 2006, OSM report is not selective in its use
of population data or community characteristics, and both historical
and current data are presented. Tabular appendix tables and in-text
graphics present historical and current population data and indicators
for all five community characteristics identified in regulation. In
addition, data is presented on population density, which is a
characteristic not identified in regulation. Not all data types were
available for all communities and areas. Current data were presented in
a standardized way for those data types for which it was available.
Additionally, the analysis never intended to examine all communities
statewide, nor the changes for all communities statewide.
Comment: There is no need for a nonrural designation because the
resources are adequate to support all users.
Response: ANILCA requires the Federal Subsistence Board to
distinguish between rural and nonrural areas. Availability of resources
is not relevant to rural/nonrural determinations.
Comment: The analysis for Adak needs to be expanded to evaluate
subsistence use of fish and wildlife by the current population, in
light of the proposed designation of rural status, rather than just
relying on population size, remote location, and salmon harvest data.
Response: Adak is a remote community in the Aleutian Islands which
has undergone a substantial decrease in population (from more than
4,600 people in 1990 to less than 200 in 2005). The June 23, 2006, OSM
report does not present per capita subsistence use information in the
appendix database because such data are not available for Adak in a way
that would be consistent with other places for which there are
household survey data. The report section on Adak does provide some
limited information on salmon harvests. However, the main point of
relevance for Adak is in the category of population size.
Comment: The analysis does not address what, if any, impacts on
fish and wildlife uses may result if the Board changes the rural/
nonrural status of Prudhoe Bay. The analysis does not describe the
result of a nonrural determination for any area that contains limited
to no Federal lands. The analysis also does not consider the effects of
the nonrural designation on other North Slope resident's customary and
traditional uses of the Prudhoe Bay/Deadhorse area. One commentor also
claims that it was inaccurate for the June 23, 2006, OSM report to
state that ``harvest of subsistence resources has never been reported
by Prudhoe Bay residents,'' citing a 2001 ADF&G database.
Response: The analysis notes that the permanent population of
Prudhoe Bay was 5 in 2000, 2 in 2005, and is now
[[Page 25693]]
reportedly 0. With virtually, or literally, no permanent population,
there are no impacts to fish and wildlife uses operative with a change
in status. A rural/nonrural determination is unrelated to whether
Federal lands are present in the vicinity. Use of Federal public lands
open to subsistence take by rural residents is not affected by
designation of nonrural status for residents of parts of that
geographic area. State database updates since 2001 may include harvest
data for reported residents of Prudhoe Bay. Because of customary and
traditional use determinations, the only large mammals that could have
been taken under Federal subsistence regulations by persons claiming
Prudhoe Bay residency were black bear, caribou, and sheep. However,
given the de minimus residency in Prudhoe Bay, and the other
characteristics and restrictions described, subsistence use of fish and
wildlife is not a factor.
Comment: The analysis for Clam Gulch describes two options--neither
of which includes any information on fish and wildlife harvest levels
and harvest areas. For the Wasilla, Homer, and Delta Junction areas,
fish and wildlife data are not discussed.
Response: The analyses for Clam Gulch in relation to the Kenai area
and the analyses for the Wasilla and Homer areas were limited in scope
to the question of whether they should be grouped with larger nonrural
areas. Those analyses were done consistent with the guidelines
identified by the Board for evaluating the grouping of communities and
areas, the method for which was submitted to public comment in an
earlier stage of the process. Adequate information on customary and
traditional hunting fishing, and trapping practices for the Delta
Junction area was not available to allow for evaluation consistent with
other areas of the state for which the staff analysis provides data,
nor is use of fish and wildlife resources one of the criteria used for
grouping.
Comment: The OSM analysis of the Kodiak area does not make a
convincing case to disaggregate any portion of the road system from the
rest of the road-connected area. The analysis does not discuss Kodiak's
role as a regional center and does not mention the ADF&G report on
regional centers.
Response: The OSM staff analysis laid out options for including, or
not including, Chiniak in the Kodiak Area grouping, and related
considerations for the Pasagshak portion of the remainder area. The
Board exercised its judgment in reviewing the grouping of the remainder
area with the City of Kodiak, and other identified places, including
Chiniak and the more distant portions of the road-connected remainder
area. The OSM staff analysis provided an historical background of
Kodiak Island. The central role of Kodiak City to the region is noted,
as is the relationship to outlying areas and the movement of people to,
from, and through Kodiak City.
Comment: Kodiak has become more rural since 1990. Kodiak's
dependence on fisheries is a rural characteristic. The local economic
downturn has led to an increase in dependence on fish and wildlife
harvest. The cost of living in Kodiak, particularly for food, housing,
and electricity, is among the highest in the State. Kodiak is isolated;
weather and distance make travel difficult and expensive. There is a
high level of sharing.
Response: The Board did not make a determination to change Kodiak
from a rural area. Further information on the Board's action is
provided later in this Preamble.
Comment: Testimony and comment letters supported retaining Saxman,
and the Waterfall subdivision north of Ketchikan, as rural areas.
Saxman is an independent community with its own Tribal government,
mayor, and fraternal organizations. Fish and wildlife usage is higher
than in Ketchikan City. For Saxman, Tribal culture plays a large role
in daily life. Saxman is not integrated with Ketchikan.
Response: The Board made a determination to group all of the road-
connected areas, including Waterfall subdivision and Saxman, as well as
Pennock Island and parts of Gravina Island, in the Ketchikan Area.
Further information on the Board's action is provided later in this
Preamble.
Comment: There was testimony that the entire Ketchikan area should
be treated the same and that Ketchikan and Saxman and the outlying
areas along the road system should all be rural. People stated that
gathering subsistence foods is important not only for nutrition, but
also to culture, which is passed on to young children and family
members. The island community is very isolated, and the cost of living
is high, making it difficult to survive without supplementing incomes
with subsistence foods.
Response: The Board considered these points, but did not make a
determination to change Ketchikan from a nonrural area. Further
information on the Board's action is provided later in this Preamble.
Comment: If a community is designated nonrural, the residents will
not be able to harvest their traditional subsistence resources.
Response: For communities that change from rural to nonrural, the
implementation will not occur until 5 years after this date.
Additionally, residents of nonrural areas may harvest their traditional
subsistence resources from Federal lands under existing State
regulations. Many of the resources (e.g. seaweed, seals, migratory
birds, cod, halibut, shrimp, crabs, and salmon taken in marine waters)
that local people mentioned as being very important to them are
currently being taken in areas of State jurisdiction or are not under
the jurisdiction of the Federal Subsistence Management Program. Any
changes in rural/nonrural determinations would have no impact on the
harvesting of these resources.
Summarized below are the Board's final action for each area
analyzed and the justification for that action. This final rule differs
from the proposed rule relative to the Kodiak area and Saxman. The
Board had proposed to add the Kodiak area to the list of nonrural areas
but did not, for the reasons set forth below. The Board had also
proposed that the nonrural Ketchikan area not include Saxman, but
Saxman has been included, for the reasons set forth below.
Adak: Change Adak's status from nonrural to rural. Following the
closure of the military base, the community of Adak decreased in
population by 94 percent between the years 1990 and 2000. It currently
has 167 residents (2005), which is well below the presumptive rural
threshold of 2,500 persons. Adak is also extremely remote and is
accessible only by boat or plane, with the nearest community (Atka) 169
miles away. With the changes that have occurred since the 1990s, Adak
now has rural characteristics typical of a small isolated community.
Prudhoe Bay (including Deadhorse): Change Prudhoe Bay's status from
rural to nonrural. In 2000 Prudhoe Bay had one permanent household
comprised of five people. There were reportedly no permanent residents
in February 2006. Prudhoe Bay has none of the characteristics typical
of a rural community. Prudhoe Bay is an industrial area built for the
sole purpose of extracting oil. The oil companies provide everything
employees need: Lodging, food, health care, and recreation. The
thousands of people in Prudhoe Bay do not live there permanently, but
work multiweek-long shifts. They eat in cafeterias and live in group
quarters. There are no schools, grocery stores, or churches.
Subsistence is not a part of the way of life. Hunting
[[Page 25694]]
in the area and possession of firearms and ammunition are prohibited.
Based on its industrial characteristics, Prudhoe Bay is now determined
to be nonrural.
Fairbanks North Star Borough: No changes to this nonrural grouping
are being made. In applying the grouping criteria as indicators of
economic, social, and communal integration, the Board continues to
define the current nonrural boundary of the Fairbanks Area as the
boundary of the Fairbanks North Star Borough. No census designated
places (CDPs) should be excluded from the nonrural grouping for the
following reasons: (1) All CDPs are road accessible to one another.
Although the Harding-Birch Lakes and Salcha areas are more sparsely
populated than central areas of the borough, both communities include
many occasional-use homes owned by Fairbanks residents. Further, both
places are home to only a few year-round residents. (2) The majority of
the Borough's high school students are bused to one of the schools
located in Fairbanks, North Pole, or Eielson. (3) The Remainder area of
the North Star Borough should be included in the grouping because the
majority of the population is road connected and over half (57 percent)
of the workers residing in this area commute to Fairbanks for
employment. Additionally, 75 percent of the workers living in Harding-
Birch Lakes drive to the City of Fairbanks to work, and 71 percent of
the working population in Pleasant Valley commute to the City of
Fairbanks.
Delta Junction Vicinity: No changes are being made to the rural
status of Delta Junction, or the communities in the immediate vicinity.
In applying the grouping criteria as indicators of economic, social,
and communal integration, the four Delta Junction vicinity CDPs
assigned for analysis (Delta Junction, Big Delta, Deltana, and Fort
Greely) should be grouped as an area for purposes of rural/nonrural
analysis because they fulfill the three guidelines for grouping: (1)
All four CDPs are road connected and proximal; (2) the majority of the
high school-aged students from Big Delta, Deltana, and Fort Greely
attend high school in Delta Junction; and (3) in the two outlying CDPs,
over 30 percent of the workers commute within the vicinity (41 percent
of the workers living in Big Delta commute to either Delta Junction,
Deltana, Fort Greely, or to a Remainder area within the Southeast
Fairbanks Census Area, and 45 percent of the workers in Deltana commute
to Delta Junction or Fort Greely).
The four places grouped into the Delta Junction Area will remain
rural in status. The population size of the grouping (3,921) places it
in the nonpresumptive midrange, and information on the characteristics
of the grouping, although somewhat limited, is indicative of a rural
character. The recent economic upswing to the area due to construction
of the Missile Defense system at Fort Greely and development of the
Pogo Mine is thought to be temporary.
Seward Area: No changes to this nonrural grouping are being made.
In applying the grouping criteria as indicators of economic, social,
and communal integration, the Moose Pass, Crown Point, and Primrose
CDPs should remain within the Seward Area grouping. Moose Pass, Crown
Point, and Primrose CDPs meet all the criteria for grouping: proximity
and road-accessibility to the Seward Area; their students attend the
high school in Seward; and greater than 30 percent of workers commute
to Seward for employment.
Wasilla/Palmer Area: Include the Point MacKenzie CDP in the
nonrural Wasilla/Palmer Area grouping but do not include the Willow
CDP. The Point Mackenzie CDP meets all the criteria for grouping with
the Wasilla/Palmer Area. The Point MacKenzie CDP is in proximity to the
Wasilla/Palmer Area and road-accessible; their students attend Wasilla
High School; and 50 percent of workers commute to the Wasilla/Palmer
Area for employment. This change makes Point McKenzie part of a
nonrural area, a change from its current rural status. Willow CDP will
not be included in the Wasilla/Palmer Area grouping. Students in the
Willow CDP are located in two attendance areas for high schools, within
and outside of the Wasilla/Palmer Area. The level of commuting for
workers to the Wasilla/Palmer Area is at 23.9 percent, which is below
the criteria identified for grouping.
Kenai Area: Change the boundaries of the nonrural Kenai Area to
include all of the current Sterling CDP, and make no change to the
current grouping and status of Clam Gulch CDP as part of the nonrural
Kenai Area. Clam Gulch CDP will continue to be included in the Kenai
Area grouping because, although students of Clam Gulch CDP attend high
school outside of the Kenai Area, the commuting of workers to the Kenai
Area is on the order of 30 percent, and Clam Gulch is connected by
paved highway to the Kenai Area, with which it has been grouped since
initial determinations were made in 1990. Cohoe CDP will remain within
the Kenai Area grouping. Cohoe students attend a high school in the
Kenai Area and the level of work commuting, at 69.5 percent, is
significantly above the minimum criteria for grouping. The Sterling CDP
has been part of the nonrural Kenai Area since 1990. During the course
of the analysis, it was noted that for the 2000 census, the Sterling
CDP had expanded in size, such that a significant portion of the CDP
extended beyond the boundary of the nonrural Kenai Area. The Board
decided that the boundaries of the Kenai Area should be adjusted to
include all of the current Sterling CDP. Students within the Sterling
CDP go to high school within the Kenai Area and the level of commuting
is at 61 percent of workers, well above the minimum criteria for
grouping.
Homer Area: Change the boundaries of the nonrural Homer Area to
include all of the Fritz Creek CDP (not including Voznesenka) and the
North Fork Road portion of the Anchor Point CDP. This change makes
Fritz Creek East, except for Voznesenka , and the North Fork Road
portion of the Anchor Point CDP nonrural, a change from their current
rural status. The Board concluded for Fritz Creek East that, except for
Voznesenka, the residents are economically, socially, and communally
integrated with the Homer Area. Fritz Creek East is in proximity and
road-connected to the Homer Area. The Homer High School attendance area
includes their students, and 44 percent of their workers commute to the
Homer Area. Voznesenka will not be included in the Homer Area because,
while it is in proximity and road-connected to the Homer Area, the
number of jobs shown as being located within the Homer Area is only
about 20 percent, and Voznesenka students attend high school in
Voznesenka.
The Board found that residents of the North Fork Road area fully
meet two of the three criteria, proximity and commuting of workers. For
the third criteria, although students have the option of attendance in
Nikolaevsk School or Ninilchik High School, the vast majority go to
Homer High School. This is sufficient basis for considering the North
Fork Road area of the Anchor Point CDP to be economically, socially,
and communally integrated with the nonrural Homer Area.
The Board found that residents of the Happy Valley CDP fulfill only
the proximity criterion for grouping with the Homer Area. Happy Valley
students are within the Ninilchik High School attendance area, and less
than 30 percent of Happy Valley workers commute to the Homer Area (14.4
percent). The residents of the Happy Valley CDP will not be included
with the Homer Area.
[[Page 25695]]
Nikolaevsk CDP, north of the Anchor Point CDP and connected to the
Homer Area by the North Fork Road, does not warrant inclusion in the
Homer Area. There is a K-12 school in Nikolaevsk, and data show that
only 22 percent of jobs held by Nikolaevsk residents were located in
the Homer Area.
The residents of Fox River CDP, primarily in the communities of
Razdolna and Kachemak Selo, do not meet any of the three criteria,
which would indicate that Fox River residents are not economically,
socially, or communally integrated with the Homer Area.
Kodiak Area: The Board defined the Kodiak Area consisting of the
road system, the City of Kodiak, the Mill Bay area, Womens Bay, Bell's
Flats, the Coast Guard Station, Chiniak, Pasagshak, and Anton Larsen
and made no change to its rural status. Although the population of the
Kodiak Area was estimated at approximately 12,000 in 2005, the area
exhibits strong characteristics of a rural area. The population has
increased only slightly since 1990. Kodiak's per capita income is less
than many nonrural areas and also many rural areas. The unemployment
rate has increased with the decline of the fishing industry. The
community is very isolated with no road access. Inclement weather can
strand residents for days. The per capita harvest of subsistence
resources is higher in the Kodiak Area than in some other rural areas.
Based on the marginal population growth since 1988 (1.3 percent), the
high cost of food, remoteness, and the high use of subsistence
resources, no change will be made to Kodiak's rural determination.
Ketchikan Area: The Board defined the Ketchikan Area to include
Pennock Island, parts of Gravina Island, and the road system connected
to the City of Ketchikan, including the community of Saxman. The
Ketchikan Area, as defined, would retain its nonrural status. Saxman is
directly adjacent to Ketchikan, connected by road, and surrounded by
the outlying Ketchikan development. Visually, the only distinguishing
feature to indicate the boundary between Ketchikan and Saxman is a sign
on the South Tongass Highway. Saxman has clearly been overtaken and is
surrounded by the geographic expansion of Ketchikan; Saxman students
attend high school in Ketchikan; and 64 percent of the workers in
Saxman commute to Ketchikan for their employment, with another 8
percent commuting to outlying parts of the area. Although a significant
percentage of Saxman's population is Native, Ketchikan's Native
population is approximately 10 times the size of Saxman's Native
population. Many of the people testifying at the hearing in Saxman live
in Ketchikan, but reported having very close family and cultural ties
to Saxman. Given comments about the need for consistency of application
of the criteria for grouping of communities, and the information on
Saxman relative to those criteria, the Board grouped Saxman with the
nonrural Ketchikan area.
The Remainder area fulfills all three criteria for grouping with
the Ketchikan Area: (1) The Remainder, other than nearby Gravina and
Pennock Islands which are connected by a very short skiff ride, is
road-connected to the City of Ketchikan; (2) Students in the Remainder
attend high school in Ketchikan; and (3) Over 30 percent of the workers
from the Remainder commute to work in the City of Ketchikan. Presently,
most of the Remainder is included in the nonrural Ketchikan Area,
established in 1990. The Board action adds additional areas where
development has occurred that is connected to the road system and
additional parts of Gravina Island that are being developed. The Board
action also treats any future developed areas connected to the road
system the same as the existing road system.
The population of the Ketchikan Area was estimated at 13,125 in
2005 (including Saxman), having decreased slightly from 1990. Ketchikan
possesses many nonrural characteristics, including having a 2-year
college, a large national retailer, car dealerships, fast food
restaurants, and roads linking the outlying surrounding area to the
city. Ferry service is more dependable with greater frequency of
service than in most other locations in Alaska. Although the pulp mill
closed, there is still diversity in the economy, with tourism, fishing,
fish processing, timber, dry docking services, retail services, and
government providing the majority of employment. There is a hospital
and a high diversity of services offered. The Ketchikan Area had the
sixth highest population in the state in 2005, considering community
groupings as defined by the Board. All other areas with higher
populations are currently considered nonrural in Federal subsistence
regulations. Three areas with smaller populations are currently
classified as nonrural and are not being changed in status: the Homer
Area, Seward Area, and Valdez. Harvest of subsistence resources in the
Ketchikan Area is lower than is characteristic of rural communities.
This Board action changes the status of portions of the road-
connected area of Ketchikan, including Saxman, and additional portions
of Gravina Island from their current rural status to a nonrural status.
The revised list of nonrural communities and areas, including other
nonrural communities or areas whose status would remain unchanged, is
published herein as the final rule. All other communities and areas of
Alaska not listed herein will retain their rural determination. We are
amending Sec. ---- .23, which identifies those communities and areas
of Alaska that are determined to be rural and nonrural. We have made
maps available for the nonrural areas. The purpose of these maps is to
provide to the public a graphic representation of the extent of the
nonrural areas. To view maps, go to the Office of Subsistence
Management Web site at http://alaska.fws.gov/asm/home.html. If you do
not have access to the internet, you may contact the Office of
Subsistence Management at the address or phone number shown at
ADDRESSES or FOR FURTHER INFORMATION CONTACT, respectively, and we will
send the maps to you.
The effective date of any community or area changing from a rural
to nonrural status is 5 years after the date of publication of this
final rule in the Federal Register. For communities or areas that
change from nonrural to rural, the effective date is 30 days after the
date of publication of this final rule in the Federal Register.
Because the Federal Subsistence Management Program relates to
public lands managed by an agency or agencies in both the Departments
of Agriculture and the Interior, we are incorporating identical text
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) 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 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
[[Page 25696]]
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 comments 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, the
Secretary of the Interior, with the concurrence of the Secretary of
Agriculture, through the U.S. Department of Agriculture--Forest
Service, implemented 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, published May 29, 1992,
implemented the Federal Subsistence Management Program and included a
framework for an annual cycle for subsistence hunting and fishing
regulations. The following Federal Register documents pertain to this
rulemaking:
Federal Register Documents Pertaining to Subsistence Management Regulations for Public Lands in Alaska, Subparts
A and B
----------------------------------------------------------------------------------------------------------------
Federal Register citation Date of publication Category Details
----------------------------------------------------------------------------------------------------------------
57 FR 22940.................. May 29, 1992............ Final Rule.............. ``Subsistence Management
Regulations for Public Lands
in Alaska; Final Rule'' was
published in the Federal
Register establishing a
Federal Subsistence
Management Program.
64 FR 1276................... January 8, 1999......... Final Rule (amended).... Amended 57 FR 22940 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. Extended
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. Specified and
clarified Secretaries'
authority to determine when
hunting, fishing, or
trapping activities taking
place in Alaska off the
public lands interfere with
the subsistence priority.
66 FR 31533.................. June 12, 2001........... Interim Rule............ Expanded the authority that
the Board may delegate to
agency field officials and
clarified the procedures for
enacting emergency or
temporary restrictions,
closures, or openings.
67 FR 30559.................. May 7, 2002............. Final Rule.............. In response to comments on an
interim rule, amended the
operating regulations. Also
corrected some inadvertent
errors and oversights of
previous rules.
68 FR 7703................... February 18, 2003....... Direct Final Rule....... Clarified how old a person
must be to receive certain
subsistence use permits and
removed the requirement that
Regional Councils must have
an odd number of members.
68 FR 23035.................. April 30, 2003.......... Affirmation of Direct Received no adverse comments
Final Rule. on 68 FR 7703. Adopted
direct final rule.
68 FR 60957.................. October 14, 2004........ Final Rule.............. Established Regional Council
membership goals.
70 FR 76400.................. December 27, 2005....... Final Rule.............. Revised jurisdiction in
marine waters and clarified
jurisdiction relative to
military lands.
71 FR 49997.................. August 24, 2006......... Final Rule.............. Revised jurisdiction in
marine waters in the
Makhnati Island area near
Sitka.
----------------------------------------------------------------------------------------------------------------
An environmental assessment was prepared in 1997 on the expansion
of Federal jurisdiction over fisheries and is available from the office
listed under FOR FURTHER INFORMATION CONTACT. The Secretary of the
Interior with the concurrence of the Secretary of Agriculture
determined that the expansion of Federal jurisdiction did not
constitute a major Federal action significantly affecting the human
environment and therefore signed a Finding of No Significant Impact.
Compliance with Section 810 of ANILCA
The intent of all Federal subsistence regulations is to accord
subsistence uses of fish and wildlife on public lands a priority over
the taking of fish and wildlife on such lands for other purposes,
unless restriction is necessary to conserve healthy fish and wildlife
populations. A Section 810 analysis was completed as part of the FEIS
process. The final Section 810 analysis determination appeared in the
April 6, 1992, ROD, which concluded that the Federal Subsistence
Management Program may have some local impacts on subsistence uses, but
that the program is not likely to significantly restrict subsistence
uses.
Paperwork Reduction Act
This rule contains no new information collection requirements
subject to Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act of 1995. The information collection
requirements described in the CFR regulations were approved by OMB
under 44 U.S.C. 3501 and were assigned control number 1018-0075, which
expires October 31, 2009. We may not conduct or sponsor and you are not
required to respond to a collection of information request unless it
displays a currently valid OMB control number.
Other Requirements
Regulatory Planning and Review (E.O. 12866). In accordance with the
criteria in Executive Order 12866, this rule is a significant
regulatory action. OMB makes the final determination of significance
under Executive Order 12866.
a. Analysis indicates this rule will not have an annual economic
effect of $100 million or adversely affect an economic sector,
productivity, jobs, the
[[Page 25697]]
environment, or other units of government. A full cost-benefit and
economic analysis is not required. This rule revises the list of
nonrural areas identified by the Federal Subsistence Board. Only
residents of areas identified as rural are eligible to participate in
the Federal Subsistence Management Program on Federal public lands in
Alaska.
b. This rule will not create serious inconsistencies or otherwise
interfere with the actions of other agencies.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
d. This rule raises novel legal or policy issues. This rule raises
a novel policy issue in that Federal subsistence regulations require
that the rural/nonrural status of communities or areas be reviewed
every 10 years, beginning with the availability of the 2000 census
data, this thereby being the first such decennial review. Although the
process uses data from the 2000 census for its review, some data was
not compiled and available until 2005. Data from the Alaska Department
of Labor were used to supplement the census data.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires preparation of regulatory flexibility analyses for rules that
will have a significant economic 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, such as tackle, boat, sporting goods dealers, and
gasoline dealers. The number of small entities affected is unknown;
however, 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 the effects will not be significant.
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 potential takings of private property implications
as defined by Executive Order 12630.
The Secretaries have determined and certify pursuant to the
Unfunded Mandates Reform 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 no cost is
involved to any State or local entities or Tribal governments.
The Secretaries have determined that these regulations meet the
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive
Order 12988 on Civil Justice Reform.
In accordance with Executive Order 13132, 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 the State program is compliant with
the requirements of that Title.
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), 512 DM 2, and E.O. 13175, we have
evaluated possible effects on Federally-recognized Indian tribes and
have determined that there are no substantial direct effects. The
Bureau of Indian Affairs is a participating agency in this rulemaking.
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, or
use. This Executive Order requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. As this rule is not a
significant regulatory action under Executive Order 13211, affecting
energy supply, distribution, or use, this action is not a significant
action and no Statement of Energy Effects is required.
William Knauer drafted these regulations under the guidance of
Peter J. Probasco of the Office of Subsistence Management, Alaska
Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska.
Chuck Ardizzone, Alaska State Office, Bureau of Land Management; Greg
Bos, Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish and
Wildlife Service; Sandy Rabinowitch and Nancy Swanton, Alaska Regional
Office, National Park Service; Dr. Warren Eastland, and Dr. Glenn Chen,
Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler,
Alaska Regional Office, USDA-Forest Service provided additional
guidance.
List of Subjects
36 CFR Part 242
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
50 CFR Part 100
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
0
For the reasons set out in the preamble, the Secretaries propose to
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
0
1. The authority citation for both 36 CFR part 242 and 50 CFR part 100
continues to read as follows:
Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C.
3551-3586; 43 U.S.C. 1733.
Subpart C--Board Determinations
0
2. In Subpart C of 36 CFR part 242 and 50 CFR part 100, revise Sec. --
--.23 to read as follows:
Sec. ----.23 Rural determinations.
(a) The Board has determined all communities and areas to be rural
in accordance with Sec. ----.15, except those set forth in this
paragraph. You may obtain maps delineating the boundaries of nonrural
areas from the U.S. Fish and Wildlife Service, Office of Subsistence
Management. The nonrural areas include:
(1) Anchorage, Municipality of;
(2) Fairbanks North Star Borough;
(3) Homer area--including Homer, Anchor Point, North Fork Road
area, Kachemak City, and the Fritz Creek East area (not including
Voznesenka);
(4) Juneau area--including Juneau, West Juneau, and Douglas;
(5) Kenai area--including Kenai, Soldotna, Sterling, Nikiski,
Salamatof, Kalifonsky, Kasilof, and Clam Gulch;
(6) Ketchikan area--including all parts of the road system
connected to the City of Ketchikan including Saxman, Pennock Island and
parts of Gravina Island;
(7) Prudhoe Bay;
(8) Seward area--including Seward and Moose Pass;
(9) Valdez; and
(10) Wasilla/Palmer area--including Wasilla, Palmer, Sutton, Big
Lake, Houston, Point MacKenzie, and Bodenburg Butte.
[[Page 25698]]
(b) [Reserved]
Dated: April 26, 2007.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
Dated: April 26, 2007.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 07-2205 Filed 5-4-07; 8:45 am]
BILLING CODE 3410-11-P
