25688 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.1D 

and Department of Homeland Security 

Management Directive 5100.1, which 

guide the Coast Guard in complying 

with the National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321–

4370f), and have concluded that there 

are no factors in this case that would 

limit the use of a categorical exclusion 

under section 2.B.2 of the Instruction. 

Therefore, we believe that this rule 

should be categorically excluded, under 

figure 2–1, paragraph (34)(g), of the 

Instruction, from further environmental 

documentation. A final ‘‘Environmental 

Analysis Check List’’ and a final 

‘‘Categorical Exclusion Determination’’

will be available in the docket where 

indicated under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting & recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 subpart D as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C 1226, 1231; 46 U.S.C 

Chapter 701; 50 U.S.C 191, 195; 33 CFR 1.05–

1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 107–

295, 116 Stat. 2064; Department of Homeland 

Security Delegation No. 0170.1. 

■ 2. Amend temporary § 165.T05–015 

by revising paragraphs (d) and (e) to 

read as follows: 

§ 165.T05–015 Security Zone: Jamestown 

Island, VA. 

* * * * * 

(d) Enforcement period: The security 

zone will be enforced from 7 a.m. on 

May 11, 2007, until 10 p.m. on May 13, 

2007. 

(e) Effective period: This regulation is 

effective from 7 a.m. on May 11, 2007, 

to 10 p.m. on May 13, 2007. 

Dated: April 27, 2007. 

John S. Kenyon, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port, Hampton Roads. 

[FR Doc. 07–2246 Filed 11–3–07; 11:02 am] 

BILLING CODE 4910–15–P 

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. 

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 


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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. 


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• 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 


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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 ll.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 (ll.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 


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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 intext 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 


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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 roadconnected 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 roadconnected 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 


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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 yearround 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 roadaccessibility 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 roadconnected 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. 


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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 

§ ll .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 


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25696 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 

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 

Final Rule.

Received no adverse comments 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 


rwilkins on PROD1PC63 with RULES
Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 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, USDAForest 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. 

■ 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. 

PARTll—SUBSISTENCE 

MANAGEMENT REGULATIONS FOR 

PUBLIC LANDS IN ALASKA 

■ 1. The authority citation for both 36 

CFR part 242 and 50 CFR part 100 

continues to read as follows: 

Authority: 16 U.S.C. 3, 472, 551, 668dd, 

3101–3126; 18 U.S.C. 3551–3586; 43 U.S.C. 

1733. 

Subpart C—Board Determinations 

■ 2. In Subpart C of 36 CFR part 242 and 

50 CFR part 100, revise § ll.23 to read 

as follows: 

§ll.23 Rural determinations. 

(a) The Board has determined all 

communities and areas to be rural in 

accordance with § ll.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. 


rwilkins on PROD1PC63 with RULES
25698 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 

(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; 4310–55–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2006–0184; FRL–8308–6] 

RIN 2009–AA01 

Source-Specific Federal 

Implementation Plan for Four Corners 

Power Plant; Navajo Nation 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is promulgating a sourcespecific Federal Implementation Plan 

(FIP) to regulate emissions from the 

Four Corners Power Plant (FCPP), a 

coal-fired power plant located on the 

Navajo Indian Reservation near 

Farmington, New Mexico. 

EFFECTIVE DATE: This rule is effective on 

June 6, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Rebecca Rosen, EPA Region IX, (415) 

947–4152, rosen.rebecca@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA has 

established a docket for this action 

under Docket ID No. R09-OAR–2006–

0184. All documents in the docket are 

listed in the Federal eRulemaking portal 

index at http://www.regulations.gov and 

are available either electronically at 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California, 94105. To 

inspect the hard copy materials, please 

schedule an appointment during normal 

business hours with the contact listed in 

the FOR FURTHER INFORMATION CONTACT

section. A reasonable fee may be 

charged for copies. 

Throughout this document, ‘‘we,’’

‘‘us’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background of the Final Rule 

II. Analysis of Major Issues Raised by 

Commenters 

A. Jurisdictional and Authority Issues 

B. Concerns About the Scope of the FIP 

C. Comments on Emissions Limits 

D. Comments on Control Requirements 

III. Administrative Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Petitions for Judicial Review 

I. Background of the Final Rule 

FCPP is a privately owned and 

operated coal-fired power plant located 

on the Navajo Indian Reservation near 

Farmington, New Mexico. Based on 

lease agreements signed in 1960, FCPP 

was constructed and has been operating 

on real property held in trust by the 

federal government for the Navajo 

Nation. The facility consists of five coalfired electric utility steam generating 

units with a total capacity in excess of 

2000 megawatts (MW). 

In 1999, EPA initially proposed to 

promulgate a FIP to regulate emissions 

from FCPP. At that time, FCPP had 

historically achieved certain emissions 

limits which had been approved by EPA 

into the New Mexico SIP. See 40 CFR 

52.1640. However, because the New 

Mexico SIP is not approved to apply on 

the Navajo Indian Reservation, and 

because the Navajo Nation did not have 

a federally applicable tribal 

implementation plan (TIP), EPA 

proposed to promulgate a FIP to remedy 

the existing regulatory gap. 64 FR 48731 

(September 8, 1999) (1999 proposed 

FIP). The proposed FIP would have, in 

essence, federalized the requirements 

contained in the New Mexico SIP which 

FCPP had historically followed. In 

explaining the basis for its proposed 

action, EPA stated that given the 

magnitude of emissions from the plant, 

the Agency believed the proposed FIP 

provisions were necessary and 

appropriate to ensure the protection of 

air quality on the Reservation. 64 FR at 

48733. 

Before EPA took final action on the 

1999 proposed FIP, a stakeholders group 

of environmental organizations 

(Environmental Defense, Western 

Resource Advocates, and New Mexico 

Citizens for Clean Air and Water), the 

National Park Service (NPS), and 

Arizona Public Service (APS), the 

operating agent for FCPP, convened to 

discuss the facility. The stakeholders 

group negotiated substantial additional 

sulfur dioxide (SO2) emissions 

reductions which FCPP believed it 

could achieve by enhancing the 

efficiency of its existing SO2 scrubbers. 

After testing the program, the Navajo 

Nation and the stakeholders group 

requested that EPA include these 

negotiated, additional SO2 emissions 

reductions in the FIP. FCPP agreed to 

increase the amount of SO2 emissions it 

was eliminating from its exhaust stream 

from 72% to 88%, thereby reducing its 

annual emissions of SO2 to the 

atmosphere by about 25,000 tons per 

year. 

EPA did not finalize the proposed 

1999 FIP after the stakeholders group 

began negotiations. Instead, after the 

stakeholders group had finished its 

work, EPA proposed a new FIP in 

September, 2006. 71 FR 53631 

(September 12, 2006) (2006 proposed 

FIP). 

In the 2006 proposed FIP, EPA again 

explained that to remedy the regulatory 

gap that exists with regard to FCPP, the 

Agency was proposing to issue a sourcespecific FIP. EPA proposed to establish 

federally enforceable emission limits for 

SO2, NOX, PM, and opacity, and control 

measures for dust. For SO2, the 2006 

proposed FIP included a requirement 

for FCPP to comply with a significantly 

lower emission limit than the one set 

forth in the 1999 proposed FIP. For NOX

and PM emissions, EPA again proposed 

to federalize the emissions limits which 

FCPP has historically followed. In other 

words, the primary difference between 

EPA’s 1999 proposed FIP and our 2006 

proposed FIP is our inclusion of 

requirements for FCPP to comply with 

the more stringent SO2 emissions 

limitation. 

EPA’s objective at this time in 

promulgating a FIP for FCPP is to 

remedy the existing regulatory gap 

described above. Today’s action will 

make federally enforceable the emission 

limitations which FCPP has historically 

followed as well as ensuring that FCPP 

continues to significantly reduce its 

emissions of SO2. This action will help 

to advance the goals of ensuring 

continued maintenance of the national 

ambient air quality standards and 

protecting visibility. Given the 

importance of these goals and the 

magnitude of emissions from the plant, 

EPA believes that making these limits 

federally enforceable is appropriate to 

protect air quality on the Reservation 

and is accordingly exercising its 

discretionary authority under sections 

301(a) and 301(d)(4) of the CAA and 40 


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