Subsistence Management Regulations for Public Lands in Alaska: Applicability and Scope; Tongass National Forest Submerged Lands

Subsistence Management Regulations for Public Lands in Alaska-Applicability and Scope; Tongass National Forest Submerged Lands

Supplementary Information

Background

Under title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program (Program). The Program provides a preference for take of fish and wildlife resources for subsistence uses by rural residents on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out the Program in the Federal Register on June 29, 1990 (55 FR 27114), and published final regulations in the Federal Register on May 29, 1992 (57 FR 22940). These regulations have subsequently been amended a number of times. Because the Program is a joint effort between Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, "Parks, Forests, and Public Property," and Title 50, "Wildlife and Fisheries," at 36 CFR 242.1-242.28 and 50 CFR 100.1-100.28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board (Board) to administer the Program. The Board comprises:

• 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, National Park Service;
• The Alaska State Director, Bureau of Land Management;
• The Alaska Regional Director, Bureau of Indian Affairs;
• The Alaska Regional Forester, USDA Forest Service; and
• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.

Through the Board, these agencies participate in the development of regulations for subparts C and D, which, among other things, set forth Program eligibility and specific harvest seasons and limits.

In administering the Program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council (Council). The 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 Federal public lands in Alaska. The Council members represent varied geographical, cultural, and user interests within each region.

Jurisdictional Background and Perspective

The U.S. District Court for Alaska (Court) in its October 17, 2011, order in Peratrovich et al. v. United States and the State of Alaska, 3:92-cv-0734-HRH (D. Alaska), enjoined the United States "to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) with respect to submerged public lands within Tongass National Forest" and directed entry of judgment. The Peratrovich case dates to 1992 and has a long and involved procedural history. The plaintiffs in that litigation raised the question of which marine waters in the Tongass National Forest, if any, are subject to the jurisdiction of the Federal Subsistence Management Program. In its May 31, 2011, order, the Court stated that "it is the duty of the Secretaries [Agriculture & Interior] to identify any submerged lands (and the marine waters overlying them) within the Tongass National Forest to which the United States holds title." It also stated that, if such title exists, it "creates an interest in [the overlying] waters sufficient to make those marine waters public lands for purposes of [the subsistence provisions] of ANILCA."

Most of the marine waters within the Tongass National Forest were not initially identified in the regulations as public lands subject to the subsistence priority, initially based upon a determination that the submerged lands were State lands, and later through reliance upon a disclaimer of interest filed by the United States in Alaska v. United States, No. 128 Orig., 546 U.S. 413 (2006). In that case, the State of Alaska had sought to quiet title to all lands underlying marine waters in southeast Alaska, which includes most of the Tongass National Forest. Ultimately, the United States disclaimed ownership to most of the submerged lands in the Tongass National Forest. The Supreme Court accepted the disclaimer by the United States to title to the marine waters within the Tongass National Forest, excepting from that disclaimer several classes of submerged public lands that generally involve small tracts (see Alaska v. United States, 546 U.S. at 415).

When the United States took over subsistence management in Alaska in 1990 and promulgated the temporary regulations, the Departments of the Interior and Agriculture stated in response to comments on the scope of the program that "[t]he United States generally does not hold title to navigable waters and thus navigable waters generally are not included within the definition of public lands" (55 FR 27114 at 27115; June 29, 1990). That position was changed in 1999 when the subsistence priority was extended to inland waters subject to a Federal reserved water right following the Katie John litigation. While locating these inland waters, the Board also identified certain submerged marine lands that did not pass to the State and, therefore, were subject to the subsistence priority. However, the Board did not attempt to identify every small parcel of submerged public lands and associated marine waters possibly subject to the Program because of the potentially overwhelming administrative burden. Instead, the Board invited the public to petition to have submerged marine lands included. Over the years, several small areas of submerged marine lands in the Tongass National Forest have been identified as public lands subject to the subsistence priority.

In its May 31, 2011, order, the Court in the Peratrovich case stated that the petition process was not sufficient and found that "concerns about costs and management problems simply cannot trump the congressional policy that the subsistence lifestyle of rural Alaskans be preserved as to public lands." The Court acknowledged in its order that inventorying all these lands could be an expensive undertaking, but that it is a burden "necessitated by the `complicated regulatory scheme' which has resulted from the inability of the State of Alaska to implement Title VIII of ANILCA." The Court then enjoined the United States "to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of ANILCA with respect to submerged public lands within Tongass National Forest" and directed entry of judgment.

Following the Court's decision, the Departments published a notice in the Federal Register (77 FR 33391; June 6, 2012) announcing the initiation of reviews of pre-statehood withdrawals and reservation in the Tongass National Forest. The Bureau of Land Management (BLM) and the USDA-Forest Service (USDA-FS) started a review of hundreds of potential pre-statehood (January 3, 1959) withdrawals in the marine waters of the Tongass National Forest. These reviews included dock sites, log transfer sites, and other areas that may not have passed to the State at statehood. On June 8, 2016, the Departments published a proposed rule in the Federal Register (81 FR 36836) that listed the initial findings identifying pre-statehood withdrawals, and on May 23, 2018, the Departments published a final rule (83 FR 23813) to revise the subsistence management regulations to add those submerged parcels. The Departments published another proposed rule on May 12, 2022 (87 FR 29061), with the intent to complete regulatory proceedings addressing submerged public lands within the Tongass National Forest as directed by the Court. This rule will complete those proceedings.

Current Rule

The Departments published a proposed rule on May 12, 2022 (87 FR 29061), to amend the applicability and scope section of subpart A of 36 CFR part 242 and 50 CFR part 100 and to complete the actions on the Tongass National Forest submerged lands. The proposed rule opened a comment period, which closed on August 10, 2022, and announced public meetings to be held in several different locations throughout the State. The Departments advertised the proposed rule by mail, email, web page, social media, radio, and newspaper, and comments were submitted via https://www.regulations.gov to Docket No. FWS-R7-SM-2018-0013. The Councils received public comments on the proposed rule during their public meetings. The Councils had an opportunity to review the proposed rule and make recommendations to the Board for the final rule as described in more detail below.

The Board held a public meeting on January 31 through February 3, 2023. All briefings and documents presented to the Board were available to the public at https://www.doi.gov/subsistence, and the meeting was advertised by mail, email, web page, social media, radio, and newspaper. After a briefing and deliberation, the Board decided on the following recommendation to the Secretaries: "The Federal Subsistence Board recommends to the Secretaries that the lands listed in the proposed rule of May 12, 2022 (87 FR 29061), be included in the Subsistence Management Regulations for Public Lands in Alaska (36 CFR [part] 242 and 50 CFR [part] 100) for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act."

These final regulations reflect the Board's recommendation to the Secretaries after review and consideration of Council recommendations, Tribal and Alaska Native corporation consultations, and public comments. The public received extensive opportunity to review and comment on all changes.

Summary of Comments Received and Responses

The Board did not receive any public comments that directly pertain to the primary issue of this rulemaking action. The Southeast Alaska Council did not object to these lands coming under Federal subsistence jurisdiction after maps were provided by the USDA-FS, as had been previously requested. The Southcentral Alaska, Kodiak/Aleutians, Bristol Bay, Yukon-Kuskokwim Delta, Western Interior Alaska, Seward Peninsula, Eastern Interior Alaska, and North Slope Councils had no comments and took no actions. The Kodiak/Aleutian Council requested that the Councils and the public be notified when the final rule has been published and that this information be posted on the Program's website.

Tribal consultation was offered statewide. No tribal entity requested specific consultation and no comments were offered via correspondence, during public hearings, or during consultations on different issues.

Summary of Changes From the Proposed Rule

Following publication of the proposed rule, the USDA-FS cartographer reviewed the table of geographic areas in the proposed rule and noted the following duplicate entries:

• High Point, Woronkofski Island;
• Key Reef, Clarence Strait;
• Lyman Point, Clarence Strait;
• Ship Island, Clarence Strait; and
• Point Hilda, Stephens Passage, Douglas Island.

Accordingly, in this final rule, we have corrected the table of geographic areas by removing those duplicate entries.

Additionally, the latitude information for Lyman Point and Clarence Strait was also revised because the original latitude was inaccurate.

Because this rule concerns public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR part 242 and 50 CFR part 100.

Compliance With Statutory and Regulatory Authorities

Administrative Procedure Act

The Departments, through the Board, have provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act (5 U.S.C. 551 et seq. ) requirements, including publishing a proposed rule in the Federal Register , participation in multiple Council meetings, additional public review and comment on all proposals for regulatory change, and an opportunity for additional public comment before the Board deliberated on its recommendation to the Secretaries. Therefore, the Departments believe that all affected persons have been given sufficient public notice and opportunity for involvement on the Board's recommendation and the final rule.

In the more than 30 years that the Program has been operating, there has never been a benefit to the public by delaying the effective date of the subsistence regulations. A lapse in regulatory control can affect the continued viability of fish or wildlife populations and future subsistence opportunities for rural Alaskans and would generally fail to serve the overall public interest. Therefore, the Departments finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective upon the date set forth in DATES to ensure continued operation of the Program.

National Environmental Policy Act

A draft environmental impact statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The final environmental impact statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.

The following Federal Register documents pertain to this rulemaking:

A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior, with concurrence of the Secretary of Agriculture, determined that expansion of Federal jurisdiction does not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

Section 810 of ANILCA

An ANILCA section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program in the early 1990s. 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 and concluded that the Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

In accordance with ANILCA section 810, an environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries. That evaluation also supported the Secretaries' determination that the rule will not reach the "may significantly restrict" threshold that would require notice and hearings under ANILCA section 810(a).

Paperwork Reduction Act of 1995

An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100, and assigned OMB Control Number 1018-0075, which expires January 31, 2024 (in accordance with regulations at 5 CFR 1320, the Services are authorized to continue sponsoring the collection while the submission is pending at OMB).

Regulatory Planning and Review (Executive Orders 12866, 13563, and 14904)

Executive Order 12866, as reaffirmed by E.O. 13563 and E.O. 14094 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility Act

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 effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. 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, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value Statewide. Based upon the amounts and values cited above, the Departments certify 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.

Congressional Review Act

Under the Congressional Review Act (5 U.S.C. 804(2)), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Takings (Executive Order 12630)

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of the 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.

Unfunded Mandates Reform Act

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 there is no cost imposed on any State or local entities or tribal governments.

Civil Justice Reform (Executive Order 12988)

The Secretaries have determined that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988, regarding civil justice reform.

Federalism (Executive Order 13132)

In accordance with E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. 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.

Consultation and Coordination With Indian Tribal Governments (Executive Order 13175)

The Alaska National Interest Lands Conservation Act, Title VIII, does not provide specific rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Departments, through the Board, provided Federally recognized Tribes and Alaska Native corporations opportunities to consult on this rule. Consultation with Alaska Native corporations are based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: "The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175."

The Secretaries, through the Board, provided a variety of opportunities for consultation: commenting on proposed changes to the existing rule; engaging in dialogue at the Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

The Board provided Federally recognized Tribes and Alaska Native corporations a specific opportunity to consult on this rule prior to the start of its public regulatory meeting held during January and February 2023. Federally recognized Tribes and Alaska Native corporations were notified by mail, email, and telephone and were given the opportunity to attend in person or via teleconference.

Energy Supply, Distribution or Use (Executive Order 13211)

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Drafting Information

Theo Matuskowitz drafted these regulations under the guidance of Amee Howard, Assistant Regional Director, Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by

• Paul McKee, Alaska State Office, Bureau of Land Management;
• Dr. Kim Jochum, Alaska Regional Office, National Park Service;
• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;
• Jill Klein, Alaska Regional Office, U.S. Fish and Wildlife Service; and
• Gregory Risdahl, Alaska Regional Office, USDA-Forest Service.

Regulation Promulgation

For the reasons set out in the preamble, the Secretaries 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

Subpart a General Provisions