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

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,

Subpart C & Subpart D--1995-1996 Subsistence Taking of Fish and

Wildlife Regulations; Correcting Amendments

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

ACTION: Correcting amendments.

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SUMMARY: These corrections amend the Subsistence Management Regulations

for Public Lands in Alaska (published in the Federal Register on June

15, 1995) implementing the subsistence priority for rural residents of

Alaska under Title VIII of the Alaska National Interest Lands

Conservation Act of 1980.

EFFECTIVE DATE: These corrections are effective July 1, 1995 through

June 30, 1996.

FOR FURTHER INFORMATION CONTACT:

Thomas H. Boyd, Office of Subsistence Management, U.S. Fish and

Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska 99503;

telephone (907) 786-3864. For questions specific to National Forest

System lands, contact Ken Thompson, Regional Subsistence Program

Manager, USDA--Forest

[[Page 5686]]

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

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 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

[[Page 5687]]

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,

[[Page 5688]]

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) * * *

[[Page 5689]]

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

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