Subsistence Management Regulations for Public Lands in Alaska, Subpart C and Subpart D1996-1997 Subsistence Taking of Fish and Wildlife Regulations; Correcting Amendments

DEPARTMENT OF AGRICULTURE

36 CFR Part 242

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 100

RIN 1018-AD42

Subsistence Management Regulations for Public Lands in Alaska,

Subpart C and Subpart D--1996-1997 Subsistence Taking of Fish and

Wildlife Regulations; Correcting Amendments

AGENCY: Forest Service, USDA. Fish and Wildlife Service, Interior.

ACTION: Correcting amendments.

-----------------------------------------------------------------------

SUMMARY: These corrections amend the Subsistence Management Regulations

for Public Lands in Alaska (50 CFR part 100 and 36 CFR part 242,

published in the Federal Register on July 30, 1996 (61 FR 39697))

implementing the subsistence priority for rural residents of Alaska

under Title VIII of the Alaska National Interest Lands Conservation Act

of 1980.

EFFECTIVE DATES: The amendments to Sec. ______.24 are effective August

1, 1996. The amendments to Sec. ______.25 are effective August 1, 1996,

through June 30, 1997.

FOR FURTHER INFORMATION CONTACT: Thomas H. Boyd, Office of Subsistence

[[Page 48626]]

Management, U.S. Fish and Wildlife Service, telephone (907) 786-3864.

For questions specific to National Forest System lands, contact Ken

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

Alaska Region, telephone (907) 586-7921.

SUPPLEMENTARY INFORMATION:

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 1996-1997 seasons and

bag limits, and methods and means were published on August 15, 1995, in

the Federal Register (60 FR 42085). 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 July 30, 1996

(61 FR 39697-39753) reflect Board review and consideration of Regional

Council recommendations and public comments submitted to the Board

during their April/May meeting. The Board heard public testimony and

deliberated Requests for Reconsideration and Special Action in public

forum on July 16, 1996, and August 14, 1996.

These correcting amendments are a result of Requests for

Reconsideration of some of the Board's decisions in April/May and some

requests for Special Action as a result of resource concerns. Below are

summaries of each action.

Subpart D

Units 6, 7, 11, 13, 14, 15 (B) and (C), and 16--Lynx--The Board

acted on a request from the Alaska Department of Fish and Game (ADF&G)

to open the trapping season in Units 6, 7, 14, 16, and 15 (B) and (C)

and to lengthen the season in Units 11 and 13. 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 July 16, 1996, meeting lengthened the caribou season in

Unit 13. The caribou herd continues to increase significantly raising

concerns about deteriorating range conditions. The Board concurs with

the Alaska Department of Fish and Game's management strategy to

encourage additional harvest to prevent significant population declines

in the future. A similar action was taken last year when the State

extended the season and the Board approved a matching extension on

Federal lands.

Unit 15(A)--Moose--Upon receipt of a Request for Reconsideration of

an action taken at the April meeting and as a result of a judicial

order, the Board deliberated the customary and traditional use

determination for moose in Unit 15(A). As a result, the Board

determined that four communities have customary and traditional use for

Unit 15(A) and established a subsistence season of August 18 to

September 20. This action was again the subject of a Request for

Reconsideration that the Board heard on August 14, 1996. The Board

upheld its previous decision to afford four communities a positive

customary and traditional determination and to establish a subsistence

moose season in Unit 15(A).

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 Procedures Act (APA) for this

final rule 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. The Board finds

good cause under 5 U.S.C.553(d)(3) to make this rule effective August

1, 1996.

[[Page 48627]]

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 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 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 (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

These rules contain information collection requirements subject to

Office of Management and Budget (OMB) approval under the Paperwork

Reduction Act of 1995. They apply to the use of public lands in Alaska.

The information collection requirements described below have been

submitted to OMB for approval. This collection of information will not

be required until it has been approved by OMB.

The collection of information will be achieved through the use of

the Federal Subsistence Hunt Permit Application. This collection

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

this rule is less than 500, yielding a total annual reporting and

recordkeeping burden of 125 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, D.C. 20240; and

the Office of Management and Budget, Paperwork Reduction Project

(Subsistence), Washington, D.C. 20503.

Economic Effects

This rule was not subject to OMB review under Executive Order

12866. 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, such as ammunition, snowmachine, and gasoline dealers.

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.

In general, the resources harvested under this rule will be

consumed by the local harvester and do not result in a dollar benefit

to the economy. However, it is estimated that 2 million pounds of meat

are harvested State-wide by the local subsistence users annually and,

if given a dollar value of $3.00 per pound, would equate to $6 million

State wide.

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 Service has determined and certifies pursuant to the Unfunded

Mandates 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 Service has determined that these final regulations meet the

applicable standards provided in Sections 3(a) and 3(b)(2) of Executive

Order 12988.

Drafting Information. These regulations were drafted by William

Knauer 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; Ida Hildebrand, 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

[[Page 48628]]

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 ______ .24(a)(1) is amended in the table by removing the

two entries for ``Unit 15(A) Moose'' and ``Unit 15 (B) and (C)

Moose''and adding one new entry in their place to read as follows:

Sec. ______ .24 Customary and traditional use determinations.

(a) * * *

(1) * * *

------------------------------------------------------------------------

Area Species Determination

------------------------------------------------------------------------

* * * * *

15.................. Moose................. Residents of Ninilchik,

Nanwalek, Port Graham,

and Seldovia.

* * * * *

------------------------------------------------------------------------

* * * * *

3. Section ______.25(k)(6)(iii)(B) is amended in the table under

``Trapping'' by adding, after the entry for ``Fox, Red'' an entry for

Lynx to read as follows:

Sec. ______.25 Subsistence taking of wildlife.

* * * * *

(k) * * *

(6) * * *

(iii) * * *

(B) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

* * * * *

Trapping

* * * * *

Lynx:

No limit............................. Jan. 1-Jan. 31.

* * * * *

------------------------------------------------------------------------

* * * * *

4. Section ______.25.25(k)(7)(iii) is amended in the table under

``Trapping'' by adding, after the entry for ``Fox, Red'' an entry for

Lynx to read as follows:

* * * * *

(k) * * *

(7) * * *

(iii) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

* * * * *

Trapping

* * * * *

Lynx:

No limit............................. Jan. 1-Jan. 31.

* * * * *

------------------------------------------------------------------------

* * * * *

5. Section______.25(k)(11)(i) is amended in the table under

``Trapping'' by revising the entry for ``Lynx'' to read as follows:

* * * * *

(k) * * *

(11) * * *

(i) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

* * * * *

Trapping

* * * * *

Lynx:

No limit............................. Dec. 1-Jan. 15.

* * * * *

------------------------------------------------------------------------

* * * * *

6. 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 registration Aug. 1-Sept. 30.

permit only. Hunting within the Oct. 21-Mar. 31.

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.

* * * * *

------------------------------------------------------------------------

* * * * *

7. 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. 1-Jan. 15.

* * * * *

------------------------------------------------------------------------

* * * * *

8. Section ______.25(k)(14)(iii) is amended in the table under

``Trapping'' by adding, after the entry for ``Fox, Red'' an entry for

Lynx to read as follows:

* * * * *

(k) * * *

(14) * * *

(iii) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

* * * * *

Trapping

* * * * *

Lynx:

No limit............................. Dec. 15-Jan. 15.

* * * * *

------------------------------------------------------------------------

* * * * *

9. Section ______.25(k)(15)(iii)(D) is amended in the table under

``Hunting'' by revising the entry for ``Moose'' to read as follows:

* * * * *

(k) * * *

(15) * * *

(iii) * * *

(D) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

Hunting

* * * * *

Moose:

Unit 15(A) excluding Skilak Loop Aug. 18-Sept. 20.

Wildlife Management Area--1 antlered

bull with spike-fork or 50-inch

antlers or with 3 or more brow tines

on either antler, by Federal

registration permit only.

Unit 15(A) Skilak Loop Wildlife No open season.

Management Area.

[[Page 48629]]

Unit 15(B) and (C)-1 antlered bull Aug. 10-Sept. 20.

with spike-fork or 50-inch antlers

or with 3 or more brow tines on

either antler, by Federal

registration permit only.

* * * * *

------------------------------------------------------------------------

* * * * *

10. Section ______.25(k)(15)(iii)(D) is amended in the table under

``Trapping'' by adding, after the entry for ``Fox, Red'' an entry for

Lynx to read as follows:

* * * * *

(k) * * *

(15) * * *

(iii) * * *

(D) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

* * * * *

Trapping

* * * * *

Lynx:

Unit 15(B) and (C)--No limit......... Jan. 1-Jan. 31.

Unit 15(C)........................... No open season.

* * * * *

------------------------------------------------------------------------

* * * * *

11. Section ______.25(k)(16)(iii) is amended in the table under

``Trapping'' by adding, after the entry for ``Fox, Red'' an entry for

Lynx to read as follows:

* * * * *

(k) * * *

(16) * * *

(iii) * * *

------------------------------------------------------------------------

Harvest limits Open season

------------------------------------------------------------------------

* * * * *

Trapping

* * * * *

Lynx:

No limit............................. Dec. 15--Jan. 15.

* * * * *

------------------------------------------------------------------------

* * * * *

Dated: August 22, 1996.

Thomas H. Boyd,

Acting Chair, Federal Subsistence Board.

Dated: August 26, 1996.

James A. Caplan,

Acting Regional Forester, USDA-Forest Service.

[FR Doc. 96-23413 Filed 9-13-96; 8:45 am]

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