Subsistence Management Regulations for Public Lands in Alaska, Subpart C & Subpart D1995-1996 Subsistence Taking of Fish and Wildlife Regulations; Correcting Amendments

Background

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands, unless the State of Alaska enacts and implements laws of general applicability which are consistent with ANILCA, and which provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. The State implemented a program that the Department of the Interior previously found to be consistent with ANILCA. However, in December 1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska that the rural preference in the State subsistence statute violated the Alaska Constitution. The court's ruling in McDowell required the State to delete the rural preference from the subsistence statute, and therefore, negated State compliance with ANILCA. The Court stayed the effect of the decision until July 1, 1990. As a result of the McDowell decision, the Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. On June 29, 1990, the Temporary Subsistence Management Regulations for Public Lands in Alaska were published in the Federal Register (55 FR 27114-27170). Consistent with Subparts A, B, and C of these regulations, a Federal Subsistence Board (Board) was established to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, U.S. National Park Service, the Alaska State Director, U.S. Bureau of Land Management; the Alaska Area Director, U.S. Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies have participated in development of regulations for Subparts A, B, and C, and the annual Subpart D regulations. All Board members have reviewed these corrections and agree with their substance. Because Subparts C and D relate to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical correcting text will be incorporated into 36 CFR Part 242 and 50 CFR Part 100. Proposed Subpart C regulations for customary and traditional use determinations and Subpart D regulations for the 1995-1996 seasons and bag limits, and methods and means were published on September 2, 1994, in the Federal Register (59 FR 45924-45961). A 60-day comment period providing for public review of the proposed rule was advertised by mail, radio, and newspaper. Subsequent to that 60-day review period, the Board prepared a booklet describing all proposals for change. The public then had an additional 30 days in which to comment on the proposals for changes to the regulations. The Federal Subsistence Regional Advisory Councils met in regional centers, received public comments, and formulated recommendations to the Board on proposals for their respective regions. The final regulations, published on June 15, 1995 (60 FR 31542-31594) reflect Board review and consideration of Regional Council recommendations and public comments submitted to the Board during their April meeting. The Board heard public testimony and deliberated Requests for Reconsideration and Special Action in public forum on September 26 and November 9, 1995. These correcting amendments are a result of Requests for Reconsideration of some of the Board's decisions in April and some requests for Special Action as a result of resource concerns. Below are summaries of each action.

Subpart D

Units 11, 12, 13, 20, and 25(C)--Lynx--The Board acted on a request from the Alaska Department of Fish and Game (ADF&G) to lengthen the season in 25(C) and parts of Unit 20, and shorten the season in Units 11, 12, 13, and parts of Unit 20. This follows the Board's previous agreement to follow a harvest tracking strategy where possible. The strategy calls for shortening or closing trapping seasons when lynx numbers are low and lengthening or opening seasons when lynx are abundant. The Regional Councils for the affected areas supported this action to protect the viability of the lynx populations in those Units. Unit 13--Caribou--Upon receipt of a request for Special Action the Board, at its November 9, 1995, meeting deliberated the issue of opening Unit 13 to caribou hunting. The caribou herd had increased by about 6,000 animals and remained in an accessible area. The Board opened a season to coincide with the State season to provide subsistence users an opportunity to harvest caribou. Unit 17(A)--Caribou (Mulchatna Herd)--Upon receipt of a request for Special Action the Board, as its September 26, 1995, meeting deliberated the issue of opening Unit 17(A) to caribou hunting. The Mulchatna caribou herd which numbers about 160,000 animals is moving into the western portion of Unit 17(A). The Board established a season to be announced when enough caribou have moved into the area to allow a harvest without jeopardizing smaller resident herds. Unit 17 (A) and (C)--Caribou--Upon receipt of request for Special Action the Board, at its September 26, 1995, meeting deliberated the issue of opening Unit 17 (A) and (C) to caribou hunting one month earlier. The past year's harvest was lower than anticipated due to poor travel conditions. Because this is a quota hunt the opening of the season one month earlier will not cause any additional harvest other than what is planned. Unit 22(A)--Moose--Upon receipt of a Request for Reconsideration of an action taken at the April meeting, the Board deliberated the issue of the health of the moose population in Unit 22(A). As a result, the Board closed public lands to non-subsistence moose hunting from December 1, 1995, through January 31, 1996. Only the items described above are being changed; but for clarity, the entire table section for the pertinent species in each Unit is reproduced. The above actions were supported by the Regional Councils in the affected areas. Notice of the Board meeting and the subjects to be considered were widely circulated and the public had an opportunity to comment and participate. The Board finds that additional public notice and comment requirements under the Administrative Procedure Act (APA) for this extension are impracticable, unnecessary, and contrary to the public interest. A lapse in regulatory control could seriously affect the continued viability of wildlife populations, adversely impact future subsistence opportunities for rural Alaskans and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive the public notice and comment procedures prior to publication of this rule correction. The Board also finds

good cause under 5 U.S.C. 553(d)(3) to make this rule correction effective July 1, 1995, the effective date of the Subsistence Management Regulations for Public Lands in Alaska.

Conformance With Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

A Draft Environmental Impact Statement (DEIS) that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments and staff analysis and examined the environmental consequences of the four alternatives. Proposed regulations (Subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for an annual regulatory cycle regarding subsistence hunting and fishing regulations (Subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992. Based on the public comment period, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, it was the decision of the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture-- Forest Service, to implement a modified 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 (57 FR 22940-22964) implements the Federal Subsistence Management Program and includes a framework for an annual cycle for subsistence hunting and fishing regulations.

Compliance With Section 810 of ANILCA

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appears in the April 6, 1992, ROD which found that the Federal Subsistence Management Program, under a modified Alternative IV with an annual process for setting hunting and fishing regulations, had no significant possibility of a significant restriction of subsistence uses.

Paperwork Reduction Act

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the U.S. Fish and Wildlife Service has received approval for this collection of information, with approval number 1018-0075, with the expiration date of July 31, 1996. The collection of information will be achieved through the use of the Federal Subsistence Hunt Permit Application. This collection of information will establish whether the applicant qualifies to participate in a Federal subsistence hunt on public land in Alaska and will provide a report of harvest and location of harvest. The likely respondents to this collection of information are rural Alaska residents who wish to participate in specific subsistence hunts on Federal land. The collected information is necessary to determine harvest success and harvest location in order to make management decisions relative to the conservation of healthy wildlife populations. The annual burden of reporting and recordkeeping is estimated to average 0.25 hours per response, including time for reviewing instructions, gathering and maintaining data, and completing and reviewing the form. The estimated number of likely respondents under these correcting amendments is less than 200, yielding a total annual reporting and recordkeeping burden of fifty hours or less. Direct comments on the burden estimate or any other aspect of this form to: Information Collection Officer, U.S. Fish and Wildlife Service, 1849 C Street NW., MS 224 ARLSQ, Washington, DC 20240; and the Office of Management and Budget, Paperwork Reduction Project (1018-0075), Washington, DC 20503. Additional information collection requirements may be imposed if Local Advisory Committees subject to the Federal Advisory Committee Act are established under Subpart B. Such requirements will be submitted to OMB for approval prior to their implementation. This rule was not subject to OMB review under Executive Order 12866.

Economic Effects

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations or governmental jurisdictions. The Departments have determined that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. This rulemaking will impose no significant costs on small entities; the exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant positive economic effect on a number of small entities. The number of small entities affected is unknown; but, the fact that the positive effects will be seasonal in nature and will, in most cases, merely continue preexisting uses of public lands indicates that they will not be significant. These regulations do not meet the threshold criteria of ``Federalism Effects'' as set forth in Executive Order 12612. Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no significant takings implication relating to any property rights as outlined by Executive Order 12630.

Drafting Information

These regulations were drafted under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional guidance was provided by Peggy Fox, Alaska State Office, Bureau of Land Management; Sandy Rabinowitch, Alaska Regional Office, National Park Service; John Borbridge, Alaska Area Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest Service.

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, Public Lands,

Reporting and recordkeeping requirements, Subsistence, Wildlife.

For the reasons set out in the preamble, Title 36, Part 242, and Title 50, Part 100, of the Code of Federal Regulations, are amended as set forth below.

PART ____--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN ALASKA

1. The authority citation for both 36 CFR Part 242 and 50 CFR Part 100 continues to read as follows:

Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-3586; 43 U.S.C. 1733.

2. Section ____.25(k)(11) is amended in the table under ``Trapping'' by revising the entry for Lynx to read as follows:

Sec. ____.25 Subsistence taking of wildlife.

* * * * * (k) * * * (11) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ * * * * * Trapping: * * * * * Lynx: No limit............................ Dec. 15-Jan. 15. * * * * * ------------------------------------------------------------------------

* * * * * 3. Section ____.25(k)(12) is amended in the table under ``Trapping'' by revising the entry for Lynx to read as follows: * * * * * (k) * * * (12) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ * * * * * Trapping: * * * * * Lynx: No limit............................ Dec. 15-Jan. 15. * * * * * ------------------------------------------------------------------------

* * * * * 4. Section ____.25(k)(13)(iii) is amended in the table under ``Hunting'' by revising the entry for Caribou to read as follows: * * * * * (k) * * * (13) * * * (iii) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ Hunting: * * * * * Caribou: 2 caribou by Federal Aug. 10-Sept. 30, Nov. 15-Dec. registration permit only. Hunting 31, Jan. 5-Mar. 31. within the Trans-Alaska Oil Pipeline right-of-way is prohibited. The right-of-way is identified by an area occupied by the pipeline (buried or above ground) and the cleared area 25 feet on either side of the pipeline.. * * * * * ------------------------------------------------------------------------

* * * * * 5. Section ____.25(k)(13)(iii) is amended in the table under ``Trapping'' by revising the entry for Lynx to read as follows: * * * * * (k) * * * (13) * * * (iii) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ * * * * * Trapping: * * * * * Lynx: No limit............................ Dec. 15--Jan. 15. * * * * * ------------------------------------------------------------------------

* * * * * 6. Section ____.25(k)(17)(iii) is amended in the table under ``Hunting'' by revising the entry for Caribou to read as follows: * * * * * (k) * * * (17) * * * (iii) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ Hunting: * * * * * Caribou: Unit 17(A)--that portion west of Season to be announced. the Togiak River, south to Cape Newenham--2 caribou. Season to be opened by announcement sometime between Aug. 1-April 15. Unit 17 (A) and (C)--that portion Dec. 1-Mar. 31. of 17 (A) and (C) consisting of the Nushagak Peninsula south of the Igushik River, Tuklung River and Tuklung Hills, west to Tvativak Bay--1 caribou by Federal registration permit. Public lands are closed to the taking of caribou except by the residents of Togiak, Twin HIlls, Manokotak, Aleknagik, Dillingham, Clark's Point, and Ekuk during seasons identified above. Unit 17 (B) and (C)--that portion Aug. 1-Apr. 15 of 17 (C) east of the Nushagak River--5 caribou; however, no more than 2 caribou may be bulls.. * * * * * ------------------------------------------------------------------------

* * * * * 7. Section ____.25(k)(20)(iii)(C) is amended in the table under ``Trapping'' by revising the entry for Lynx to read as follows: * * * * * (k) * * * (20) * * * (iii) * * * (C) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ * * * * * Trapping: * * * * * Lynx: Unit 20 (A), (B), (D), (E), and (C) Dec. 15-Jan. 15. East of the Teklanika River--No limit. Unit 20(F) and the remainder of Dec. 1-Jan. 31. 20(C)--No limit. * * * * * ------------------------------------------------------------------------

* * * * * 8. Section ____.25(k)(22)(ii)(C) is amended in the table under ``Hunting'' by revising the entry for Moose to read as follows: * * * * * (k) * * * (22) * * * (ii) * * * (C) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ Hunting * * * * * Moose: Unit 22(A)--1 antlered bull; Aug. 1-Sept. 30, Dec. 1-Jan. 31. however the period of Dec. 1-Jan. 31 is restricted to residents of Unit 22(A) only. Unit 22(B)--1 moose; however, Aug. 1-Jan. 31. antlerless moose may be taken only from Dec. 1-Dec. 31; no person may take a cow accompanied by a calf. Unit 22(C)--1 antlered bull........ Sept. 1-Sept. 14. Unit 22(D)--1 moose; however, Aug. 1-Jan. 31. antlerless moose may be taken only from Dec. 1-Dec. 31; no person may take a cow accompanied by a calf. Unit 22(E)--1 moose; no person may Aug. 1-Mar. 31. take a cow accompanied by a calf. * * * * * ------------------------------------------------------------------------

* * * * * 9. Section ____.25(k)(25)(iii)(B) is amended in the table under ``Trapping'' by revising the entry for Lynx to read as follows: * * * * * (k) * * * (25) * * * (iii) * * * (B) * * *

------------------------------------------------------------------------ Harvest limits Open season ------------------------------------------------------------------------ Trapping: * * * * * Lynx: Unit 25(C)--No limit............... Dec. 1-Jan. 31. Remainder of Unit 25--No limit..... Nov. 1-Feb. 28. * * * * * ------------------------------------------------------------------------

* * * * * Dated: January 19, 1996. Mitch Demientieff, Chair, Federal Subsistence Board. Dated: January 18, 1996. Phil Janik, Regional Forester, USDA--Forest Service. [FR Doc. 96-3186 Filed 2-13-96; 8:45 am] BILLING CODES 3410-11-M, 4310-55-M