[Federal Register Volume 60, Number 89 (Tuesday, May 9, 1995)]
[Proposed Rules]
[Pages 24601-24604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11319]



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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) * * *

------------------------------------------------------------------------
      Area                  Species                  Determination      
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
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.  
                                                                        
*                  *                  *                  *              
         *                  *                  *                        
------------------------------------------------------------------------

[[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) * * *

                                                                        
------------------------------------------------------------------------
      Area                  Species                  Determination      
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
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.            
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
------------------------------------------------------------------------

* * * * *
    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) * * *

------------------------------------------------------------------------
               Harvest limits                         Open season       
------------------------------------------------------------------------
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.                                  
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
------------------------------------------------------------------------

* * * * *
    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