[Federal Register Volume 61, Number 180 (Monday, September 16, 1996)]
[Rules and Regulations]
[Pages 48625-48629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23413]


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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.

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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