Subsistence Management Regulations for Public Lands in Alaska, Subparts C and D1995-1996 Subsistence Taking of Fish and Wildlife Regulations for the Kenai Peninsula

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 242

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 100

RIN 1018-AC82

Subsistence Management Regulations for Public Lands in Alaska,

Subparts C and D--1995-1996 Subsistence Taking of Fish and Wildlife

Regulations for the Kenai Peninsula

AGENCY: Forest Service, Agriculture; and Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

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SUMMARY: This rule proposes customary and traditional use

determinations for several species and regulations for seasons and

harvest limits related to taking of moose for subsistence uses on

Federal lands on the Kenai Peninsula during the 1995-1996 regulatory

year.

DATES: Written public comments will be accepted through July 10. Public

meetings on this proposed rule making will be held during the comment

period in the following locations in Alaska: Anchorage, Soldotna,

Seldovia, Hope, Cooper Landing, Homer, and other communities as

necessary.

ADDRESSES: Written comments and proposals for changes to these proposed

regulations may be sent to the Chair, Federal Subsistence Board, c/o

U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska

99503. Specific locations and addresses for the public meetings will be

published locally.

FOR FURTHER INFORMATION CONTACT:

Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service,

Attention: Richard S. Pospahala, Office of Subsistence Management, 1011

E. Tudor Road, Anchorage, Alaska 99503; telephone (907) 786-3447. For

questions specific to National Forest System lands, contact Ken

Thompson, Regional Subsistence Program Manager, USDA, Forest Service,

Alaska Region, P.O. Box 21628, Juneau, Alaska 99802-1628, telephone

(907) 586-7921.

SUPPLEMENTARY INFORMATION:

Customary and Traditional Use Determinations

The Board implemented a systematic program for review of customary

and traditional use eligibility determinations as provided for in 36

CFR 242 and 50 CFR 100. As a priority consideration, the Board focused

its determinations on community or area uses of large mammals

(ungulates and bears), examining uses of species of large mammals by

communities or areas rather than focusing on individual herds. The

Board recognized that subsistence resource use patterns of neighboring

communities are often interrelated and should be analyzed concurrently.

Existing regulations at 36 CFR 242.16(b) and 50 CFR 100.16(b)

identify eight factors that a community or area shall generally exhibit

which exemplify customary and traditional subsistence uses. The eight

factors are as follows:

1. A long-term consistent pattern of use, excluding interruptions

beyond the control of the community or area;

2. A pattern of use recurring in specific seasons for many years;

3. A pattern of use consisting of methods and means of harvest

which are characterized by efficiency and economy of effort and cost,

conditioned by local characteristics;

4. The consistent harvest and use of fish or wildlife as related to

past methods and means of taking; near, or reasonably accessible from

the community or area;

5. A means of handling, preparing, preserving, and storing fish or

wildlife which has been traditionally used by past generations,

including consideration of alteration of past practices due to recent

technological advances, where appropriate;

6. A pattern of use which includes the handing down of knowledge of

fishing and hunting skills, values and lore from generation to

generation;

7. A pattern of use in which the harvest is shared or distributed

within a definable community of persons; and

8. A pattern of use which relates to reliance upon a wide diversity

of fish and wildlife resources of the area and which provides

substantial cultural, economic, social and nutritional elements to the

community or area.

Each Federal Subsistence Regional Advisory Council (Regional

Council) has a substantial role in reviewing and developing information

on which to base a recommendation to the Board concerning customary and

traditional use determinations. The Southcentral Regional Council had

available for consideration an extensive compilation of existing

information on historic and contemporary large mammal resource use

patterns by rural Kenai Peninsula communities. A draft report, dated

[[Page 24602]] December 8, 1993, incorporated information from historic

ethnographic sources; census data; community surveys conducted by the

Alaska Department of Fish and Game, Division of Subsistence; and

harvest ticket and sealing records compiled by the Alaska Department of

Fish and Game.

During their public meeting of February 28--March 2, 1995, the

southcentral Regional Council reviewed and discussed written

information and oral testimony on resource use patterns as related to

the eight factors for the Kenai Peninsula rural communities of

Whittier, Hope, Cooper Landing, Ninilchik, the Homer rural area,

Nanwalek (formerly known as English Bay), Port Graham and Seldovia.

Positive customary and traditional use determinations were recommended

based on several empirical elements. The communities were established

and active in use of local resources by the 1950's. Contemporary use

patterns, including seasons and harvest areas, for moose, caribou,

goat, sheep, black bear, and brown bear in the areas under

consideration were documented in community surveys, harvest reports, or

oral testimony by Southcentral Regional Council members. Ceremonial

uses and the cultural significance of harvest of some species were

discussed. Sharing patterns and patterns of transmitting knowledge and

lore from one generation to the next were documented more generally for

the communities, without details particular to each species. the

Southcentral Regional Council employed an inclusive standard in

interpreting the empirical patterns in relation to the eight factors.

The Board voted to endorse the recommendations of the Southcentral

Regional Council concerning which communities had customary and

traditional uses of six large mammal species in Unit 15 and Unit 7.

Those determinations are found in the changes proposed for

section____.24.

Proposed Changes for the 1995-1996 Seasons and Bag Limit Regulations

The Regional Council also proposed adding Federal subsistence

seasons for the taking of moose on public lands in Unit 15. The

recommendation was for an any-bull harvest season beginning August 10,

1995 and ending September 20, 1995. The Board, however, was persuaded

by the biological data concluding that adverse impacts would result

from any significant harvest of bulls in the middle age categories.

Since 1987, antler restrictions have been a key part of the management

efforts to improve upon very low bull:cow ratios on the Kenai

Peninsula. This effort has had positive effects, but the gains could be

reversed and the population jeopardized under an any-bull subsistence

harvest opportunity. In addition, local wildlife biologists report that

the high snow fall of the 1994-95 winter has resulted in high natural

mortality, with virtually no recruitment into the spike-fork age class

of bull moose anticipated this coming year. The Board therefore added

an antler restriction as a part of the subsistence seasons in Unit 15

to avoid adverse biological consequences. The proposed seasons and

harvest limits are found in the proposed changes to section ____.25.

Regulations contained in this proposed rule are proposed to take

effect on August 10, 1995, unless they are changed by subsequent Board

action following the public review process outlined herein. The

Departments propose to waive the 30-day effective date time period for

the final rule in order to provide the maximum opportunity for public

participation during the comment period following publication of the

proposed rule, while simultaneously complying with the seasons'

starting date of August 10, 1995.

Applicability of Subparts A, B, and C

Subparts A, B, and C of the Subsistence Management Regulations for

Public Lands in Alaska, 50 CFR 100.1 to 100.24 and 36 CFR 100.1 to

100.24, remain effective and apply to this proposed rule. Therefore,

all definitions located at 50 CFR 100.4 and 36 CFR 100.4 apply to

regulations found in these subparts. The identified sections include

definitions for the following terms:

``Federal lands means lands and waters and interests therein title

to which is in the United States''; and

``Public land or public lands means lands situated in Alasks which

are Federal lands; except--

(1) land selections of the State of Alaska which have been

tentatively approved or validly selected under the Alaska Statehood Act

and lands which have been confirmed to, validly selected by, or granted

to the Territory of Alaska or the State under any other provision of

Federal Law;

(2) land selections of a Native Corporation made under the Alaska

Native Claims Settlement Act which have not been conveyed to a Native

Corporation, unless any such selection is determined to be invalid or

is relinquished; and

(3) lands referred to in Section 19(b) of the Alaska Native Claims

Settlement Act.''

Public Review Process--Regulation Comments and Public Meetings

Written comments may be submitted to the address identified at the

beginning of this rulemaking. They must be received by the date

indicated. Comments may also be presented at the public meetings to be

held in Anchorage and various communities on the Kenai Peninsula.

The Board will discuss and evaluate comments and suggested changes

to this rule during a public meeting scheduled to be held in Anchorage

in early summer, 1995. The public may provide additional oral testimony

to the Board at that time.

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 (DEIS) was published on February 28,

1992.

Based on the public comment 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, 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 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 (57 FR 22940-22964)

[[Page 24603]] 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 proposes,

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 concluded that the Federal Subsistence

Management Program, under Alternative IV with an annual process for

setting hunting and fishing regulations, may have some local impacts on

subsistence uses, but it does not appear that the program may

significantly restrict subsistence uses.

Paperwork Reduction Act

These rules contain information collection requirements subject to

Office of Management and Budget (OMB) approval under 44 U.S.C. 3501-

3520. They apply to the use of public lands in Alaska. The information

collection requirements described above are approved by the OMB under

44 U.S.C. 3501 and have been assigned clearance number 1018-0075.

Public reporting burden for this form is estimated to average .1382

hours per response, including time for reviewing instructions,

gathering and maintaining data, and completing and reviewing the form.

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 by William

Knauer under the guidance of Richard S. Pospahala, of the Office of

Subsistence Management, Alaska Regional Office, U.S. Fish and

Wildlife Service, Anchorage, Alaska. Additional guidance was

provided by Thomas H. Boyd, Alaska State Office, Bureau of Land

Management; Sandy Rabinowitch, Alaska Regional 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, 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 proposed to

be 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 ____.24(a)(1) is proposed to be amended in the table

under ``Area,'' ``Species,'' and ``Determination'' by removing the five

entries for ``GMU 7'' and adding six new entries in their place to read

as follows:

Sec. ____.24 Customary and traditional use determinations.

(a) * * *

(1) * * *

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Area Species Determination

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* * * *

GMU 7........... Black Bear................ Residents of Hope and

Cooper Landing.

7............... Brown Bear................ No subsistence.

7............... Caribou................... Residents of Hope and

Cooper Landing.

7............... Goat...................... Residents of Hope, Cooper

Landing, and Ninilchik.

7............... Moose..................... Residents of Hope, Cooper

Landing, and Whittier.

7............... Sheep..................... Residents of Hope, Cooper

Landing, and Ninilchik.

* * * *

* * *

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[[Page 24604]] * * * * *

3. Section ____.24(a)(1) is proposed to be amended in the table

under ``Area,'' ``Species,'' and ``Determination'' by removing the

seven entries for ``GMU 15'' for ``Brown Bear,'' ``Sheep,'' ``Moose,''

and ``Goat'' and adding the following new entries in their place to

read as follows:

* * * * *

(a) * * *

(1) * * *

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Area Species Determination

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* * * *

GMU 15 (A) and Black Bear................ Residents of Hope, Cooper

(B). Landing, and Ninilchik.

15(C)........... Black Bear................ Residents of Ninilchik,

Nanwalek, Port Graham,

and Seldovia.

15 (A) and (B).. Brown Bear................ No subsistence.

15(C)........... Brown Bear................ Residents of Ninilchik,

Nanwalek, and Port

Graham.

15(A)........... Caribou................... Residents of Hope, Cooper

Landing, and Ninilchik.

15(B)........... Caribou................... Residents of Ninilchik.

15(C)........... Caribou................... Residents of Ninilchik,

Nanwalek, Port Graham,

and Seldovia.

15(A)........... Goat...................... No subsistence.

15(B)........... Goat...................... Residents of Cooper

Landing and Ninilchik.

15(C)........... Goat...................... Residents of Ninilchik,

Nanwalek, Port Graham,

and Seldovia.

* * * *

* * *

15(A)........... Sheep..................... Residents of Cooper

Landing.

15(B)........... Sheep..................... Residents of Cooper

Landing and Ninilchik.

15(C)........... Sheep..................... Residents of Ninilchik,

Nanwalek, Port Graham,

and Seldovia.

15(A)........... Moose..................... Residents of Hope, Cooper

Landing, Ninilchik, and

Seldovia.

15(B)........... Moose..................... Residents of Hope, Cooper

Landing, Ninilchik,

Seldovia, Nanwalek, and

Port Graham.

15(C)........... Moose..................... Residents of Ninilchik,

Nanwalek, Port Graham,

and Seldovia.

* * * *

* * *

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* * * * *

4. Section ____.25(k)(15)(iii)(D) is proposed to be amended in the

table under ``Hunting'' by adding an entry for ``Moose'' in

alphabetical order to read as follows:

Sec. ____.25 Subsistence taking of wildlife.

* * * * *

(k) * * *

(15) * * *

(iii) * * *

(D) * * *

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Harvest limits Open season

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Hunting:

* * * *

* * *

Moose:

Unit 15--1 antlered bull with spike-fork Aug. 10-Sept. 20.

or 50-inch antlers or with 3 or more

brow tines on either antler, by

Federal registration permit only.

* * * *

* * *

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* * * * *

Dated: April 27, 1995.

Mitch Demientieff,

Chair, Federal Subsistence Board.

Dated: April 26, 1995.

Fred Norbury,

Acting Regional Forester, USDA--Forest Service.

[FR Doc. 95-11319 Filed 5-8-95; 8:45 am]

BILLING CODE 3410-11-M; 4310-55-M