[Federal Register Volume 66, Number 218 (Friday, November 9, 2001)]
[Rules and Regulations]
[Pages 56610-56613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28102]


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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


Subsistence Management Regulations for Public Lands in Alaska, 
Subpart D; Temporary Closure of Seasons and Changes in Harvest Limits 
for Moose in Unit 22 and Deer in Unit 8

AGENCIES: Forest Service, USDA; Fish and Wildlife Service, Interior.

ACTION: Temporary closure of seasons and changes in harvest limits.

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SUMMARY: This provides notice of the Federal Subsistence Board's 
temporary closure and changes in harvest limits to protect moose 
populations in Unit 22(B), (D), and (E), and to help the recovery of 
deer populations in Unit 8. These regulatory adjustments and the 
closures provide an exception to the Subsistence Management Regulations 
for Public Lands in Alaska, published in the Federal Register on June 
25, 2001. Those regulations established seasons, harvest limits, 
methods, and means relating to the taking of wildlife for subsistence 
uses during the 2001-2002 regulatory year.

DATES: The original emergency actions were effective August 1, 2001 
through September 29, 2001. The extension of the emergency actions 
(temporary closure and changes to harvest limits) will be effective 
September 30, 2001 through March 31, 2002.

FOR FURTHER INFORMATION CONTACT: Thomas H. Boyd, Office of Subsistence 
Management, U.S. Fish and Wildlife Service, telephone (907) 786-3888. 
For questions specific to National Forest System lands, contact Ken 
Thompson, Subsistence Program Manager, USDA--Forest Service, Alaska 
Region, telephone (907) 786-3592.

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 in Alaska, unless the State of 
Alaska enacts and implements laws of general applicability that are 
consistent with ANILCA and that provide for the subsistence definition, 
preference, and participation specified in Sections 803, 804, and 805 
of ANILCA. In December 1989, the Alaska Supreme Court ruled that the 
rural preference in the State subsistence statute violated the Alaska 
Constitution and, therefore, negated State compliance with ANILCA.
    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. The Departments 
administer title VIII through regulations at title 50, part 100 and 
title 36, part 242 of the Code of Federal Regulations (CFR). Consistent 
with Subparts A, B, and C of these regulations, as revised January 8, 
1999, (64 FR 1276), the Departments established a Federal Subsistence 
Board 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, National Park Service; the Alaska State Director, Bureau of 
Land Management; the Alaska Regional Director, Bureau of Indian 
Affairs; and the Alaska Regional Forester, USDA Forest Service. Through 
the Board, these agencies participate in the development of regulations 
for Subparts A, B, and C, which establish the program structure and 
determine which Alaska residents are eligible to take specific species 
for subsistence uses, and the annual Subpart D regulations, which 
establish seasons, harvest limits, and methods and means for 
subsistence take of species in specific areas. Subpart D regulations 
for the 2001-2002 wildlife seasons, harvest limits, and methods and 
means were published on June 25, 2001, (66 FR 33744) Because this rule 
relates to public lands managed by an agency or agencies in both the 
Departments of Agriculture and the Interior, identical closures and 
adjustments would apply to 36 CFR part 242 and 50 CFR part 100.
    The Alaska Department of Fish and Game (ADF&G), under the direction 
of the Alaska Board of Game (BOG), manages the general harvest and 
State subsistence harvest on all lands and waters throughout Alaska. 
However, on Federal lands and waters, the Federal Subsistence Board 
implements a subsistence priority for rural residents as provided by 
Title VIII of ANILCA. In providing this priority, the Board may, when 
necessary, preempt State harvest regulations for fish or wildlife on 
Federal lands and waters.
    The temporary changes for early closure of seasons and changes in 
harvest limits is necessary to protect declining moose populations on 
the Seward Peninsula, and to help deer populations on Kodiak Island and 
adjacent islands to continue recovery following severe winter mortality 
that took place during the winter of 1998-99. This temporary change is 
authorized and in accordance with 50 CFR 100.19(e) and 36 CFR 
242.19(e).

Unit 22 Moose

    Moose populations in Unit 22 have declined in recent years from a 
overall population that ranged from 7,000 to 10,000 during the late 
1980s to recent estimates of 5,000 to 7,000 animals. The declines are 
thought to be a result of winter mortality and lower calf survival.
    The Federal subsistence moose harvest in Unit 22(D) for that 
portion within the Kuzitrin drainage was restricted to antlered bulls 
by the Federal Subsistence Board in 1998 due to the declining local 
moose population and heavy hunting pressure. As a result of a 
continuing regional trend in declining moose populations, the Federal 
Subsistence Board, in 2000, also restricted the harvest in Unit 22(B) 
to bulls only.
    On July 13, 2001 the Alaska Department of Fish and Game using their 
emergency authority, shortened, but did not close, moose hunting 
seasons in four portions of Unit 22: Unit 22(B) west of the Darby 
Mountains, Unit

[[Page 56611]]

22(D) within the Kougarok, Kuzitrin and Pilgrim River drainages, and 
Unit 22 (D) west of the Tisuk River and Canyon Creek were all scheduled 
to close on September 14 for both resident and nonresident hunters. 
Unit 22(E) was scheduled to close on December 31 for both residents and 
nonresident hunters and the harvest limit for residents was changed 
from one moose to one antlered bull. The harvest limit for nonresidents 
remained the same, at one bull with 50-inch antlers or antlers with 4 
or more brow tines on one side. The state's justification for this 
action was that moose populations in Unit 22(E) and the road accessible 
portions of Units 22(B) and (D) cannot sustain recent harvest levels, 
and that recent surveys indicated moose densities, recruitment rates 
and bull:cow rations in Unit 22(D) are low and declining.
    On July 31, 2001 the Federal Subsistence Board approved emergency 
action (effective for 60 days) to make similar adjustments in the 
Federal Subsistence Harvest Regulations. In addition, these areas of 
concern were closed to the taking of moose except by Federally-
qualified subsistence users, as recommended by the Seward Peninsula 
Subsistence Regional Advisory Council. The specific changes were to 
close the harvest season in Unit 22(B) west of the Darby Mountains on 
September 14, and close Federal public lands to the taking of moose 
except by Federally-qualified subsistence users. In Unit 22(D)--that 
portion within the Kuzitrin River drainage, the season was reduced to 
August 20-September 14 and Federal public lands were closed to the 
taking of moose except by Federally-qualified subsistence users. In 
Unit 22(D)--that portion west of the Tisuk River drainage and Canyon 
Creek the season and harvest limits remained unchanged, however, the 
Federal public lands were closed to the taking of moose except by 
Federally-qualified subsistence users. In Unit 22(E) the harvest limit 
was changed from one moose to one bull, the season was scheduled to 
close on December 31 and Federal public lands were closed to the taking 
of moose except by Federally-qualified subsistence users.
    On September 26, 2001 a public meeting was held in Nome, Alaska to 
obtain public comments on a request from the Seward Peninsula Regional 
Advisory Council to continue the existing emergency action through the 
remainder of the regulatory season. The Regional Council also requested 
that Federal public lands in Unit 22(B) west of the Darby Mountains be 
closed to the taking of moose except by residents of Unit 22(B), and 
that harvest quota be established for a winter hunt to take place 
January 1-31, 2002.
    On September 27, 2001 the Federal Subsistence Board approved, with 
modification, temporary action to reduce the length of the harvest 
season in Unit 22B--west of the Darby Mountains Unit 22(D) that portion 
within the Kuzitrin River drainage, Unit 22(D) that portion west of the 
Tisuk River drainage and Canyon Creek, and Unit 22(E). The Unit 22(E) 
harvest limit was also changed to ``one bull'' and Federal public lands 
were closed to the taking of moose except by Federally-qualified 
subsistence users. The resulting open seasons and harvest limits are: 
Unit 22(B) West of the Darby Mountains--No Federal open season; Unit 
22(D) that portion within the Kuzitrin River drainage--No Federal open 
season; Unit 22(D) that portion west of the Tisuk River drainage and 
Canyon Creek--No Federal open season; and Unit 22(E), one bull; Federal 
public lands are closed to the taking of moose except by Federally-
qualified subsistence users--August 1-December 31.
    These regulatory actions were necessary to address a conservation 
concern. Reducing the season length and eliminating the cow harvest in 
Unit 22(E) was requested by the local communities of Shishmaref and 
Wales and would help to address the area moose population conservation 
concerns while still providing some harvest opportunity. Closing 
harvests in the Kuzitrin and Tisuk River/Canyon Creek portions of Unit 
22(D), and in Unit 22(B) west of the Darby Mountains would conserve 
already declining moose populations, with the support of the effected 
communities. These subunit changes in the Federal moose harvest 
parallel recent changes in State regulations made through an emergency 
order issued by the Alaska Department of Fish and Game. Closing Federal 
public lands to non-Federally qualified moose hunters in Unit 22(E) 
would provide continued opportunity and priority for local subsistence 
hunters during a time when the resources (moose) are limited due to 
recent population declines and conservation concerns.
    The Federal Subsistence Board expressed it's intention to consider 
additional action prior to January 2002, to provide for a winter 
harvest season in Unit 22(B) west of the Darby Mountains.

Unit 8 Deer

    Sitka black-tailed deer populations in Unit 8 suffered moderate 
winter kills in 1997-98 and winter mortality on Kodiak Island was very 
heavy during the 1998-99 winter, with at least 50% of the population 
suspected to have perished. The pre 1997 population was estimated at 
80,000-100,000. After the sever kills of 1998-99, the deer population 
was estimated at about 40,000 animals. Approximately 65-70% of the 
population occur on Federal public lands. The minimum population 
objective determined by the Alaska Department of Fish and Game for Unit 
8 is 73,530 deer with a harvest objective of 8,000 deer.
    Since the Sitka black-tailed deer population was established in the 
area between 1924 and 1934, deer populations have been known to decline 
following a series of severe winters, and have also been observed to 
recover rapidly when winter conditions are favorable.
    At their regular Spring meeting in March 2001, the Alaska Board of 
Game reduced the state harvest limit of deer in a portion of Unit 8 
from 4 deer to 3 deer. This action was taken to promote the population 
recovery. At the same time, the Kodiak/Aleutians Subsistence Regional 
Advisory Council, at their Spring meeting in Old Harbor, Alaska, 
requested the Federal Subsistence Board reduce the Federal harvest 
limit of 5 deer to 3 deer.
    On June 14, 2001 the Federal Subsistence Board adopted the special 
action request. This emergency action, effective for 60 days (August 1 
through September 29, 2001) reduced the harvest limit from 5 deer to 3 
deer. The resulting regulation read: Unit 8--deer, that portion of 
Kodiak Island and adjacent islands south and west of a line from the 
head of Terror Bay to the head of the southwestern most arm of Ugak 
Bay, 3 deer; August 1-January 31; however, antlerless deer may be taken 
only from October 1-January 31. Unit 8--deer, remainder, 3 deer, August 
1-January 31; however, antlerless deer may be taken only from October 
1-January 31; no more than 1 anterless deer may be taken from October 
1-November 30.
    On August 28, 2001 a public meeting was held in Kodiak, Alaska on 
behalf of the Federal Subsistence Board to obtain public comments on a 
possible extension of the existing emergency action through the 
remainder of the regulatory season. Public testimony at the meeting was 
unanimous in favor of extending the reduced harvest limits through the 
remainder of the regulatory season. In addition, the Alaska Department 
of Fish and Game recommended that the Federal regulations be adjusted 
to mirror the State harvest limits so that deer can be managed without 
complications. This

[[Page 56612]]

would involve a modification to the subunit boundaries and the 
discontinuance of antlerless deer harvest in October and November under 
Federal regulations.
    On September 20, 2001, the Kodiak/Aleutian Regional Advisory 
Council, at its meeting in Sand Point, Alaska, considered the August 28 
public meeting testimony and recommended the Federal Subsistence Board 
extend the existing emergency action through the remainder of the 
regulatory season without modification.
    On September 27, 2001 the Federal Subsistence Board, recognizing 
that a conservation concern still exists, approved the temporary action 
to continue the reduction in harvest limit from 5 deer to 3 deer, 
through the remainder of the regulatory season. This regulatory action 
was intended to aid in the population recovery of the deer herd in Unit 
8. The deer population is still considerably lower than previous years. 
The overall deer population will also depend on the severity of the 
upcoming winter.
    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (APA) for these 
emergency actions are impracticable, unnecessary, and contrary to the 
public interest. Lack of appropriate and immediate conservation 
measures 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)(3)(B) to waive additional public notice and comment procedures 
prior to implementation of these actions and pursuant to 5 U.S.C. 
553(d) to make this rule effective as indicated in the DATES section.

Conformance With Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

    A Final Environmental Impact Statement (FEIS) was published on 
February 28, 1992, and a Record of Decision on Subsistence Management 
for Federal Public Lands in Alaska (ROD) signed April 6, 1992. The 
final rule for Subsistence Management Regulations for Public Lands in 
Alaska, Subparts A, B, and C (57 FR 22940-22964, published May 29, 
1992) implemented the Federal Subsistence Management Program and 
included a framework for an annual cycle for subsistence hunting and 
fishing regulations. A final rule that redefined the jurisdiction of 
the Federal Subsistence Management Program to include waters subject to 
the subsistence priority was published on January 8, 1999, (64 FR 
1276.)

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 appeared 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 the program is not likely to significantly 
restrict subsistence uses.

Paperwork Reduction Act

    The temporary changes do not contain information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under the Paperwork Reduction Act of 1995.

Other Requirements

    These temporary changes have been exempted from 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 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 economic effect (both positive and negative) 
on a small number of small entities supporting subsistence activities, 
such as boat, fishing tackle, and gasoline dealers. The number of small 
entities affected is unknown; but, the effects will be seasonally and 
geographically-limited in nature and will likely not be significant. 
The Departments certify that the temporary changes will not have a 
significant economic effect on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act.
    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, the temporary 
changes 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 Reform Act, 2 U.S.C. 1502 et seq., that the temporary changes 
will not impose a cost of $100 million or more in any given year on 
local or State governments or private entities. The implementation is 
by Federal agencies, and no cost is involved to any State or local 
entities or Tribal governments.
    The Service has determined that the temporary changes meet the 
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive 
Order 12988, regarding civil justice reform.
    In accordance with Executive Order 13132, the temporary changes do 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment. Title VIII of ANILCA precludes the State 
from exercising management authority over fish and wildlife resources 
on Federal lands.
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have evaluated possible effects on Federally recognized Indian tribes 
and have determined that there are no effects. The Bureau of Indian 
Affairs is a participating agency in this rulemaking.
    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, or 
use. This Executive Order requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. As these actions are 
not expected to significantly affect energy supply, distribution, or 
use, they are not significant energy actions and no Statement of Energy 
Effects is required.

Drafting Information

    Daniel LaPlant drafted this document under the guidance of Thomas 
H. Boyd, of the Office of Subsistence Management, Alaska Regional 
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor 
Brelsford, Alaska State Office, Bureau of Land Management; Greg Bos, 
Alaska Regional Office, U.S. Fish and Wildlife Service; Sandy 
Rabinowitch, Alaska Regional Office, National Park Service; Ida 
Hildebrand, Alaska Regional Office, Bureau of Indian Affairs; and Ken 
Thompson, USDA-Forest Service, provided additional guidance.


[[Page 56613]]


    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 
3551-3586; 43 U.S.C. 1733.

    Dated: October 19, 2001.
Kenneth E. Thompson,
Subsistence Program Leader, USDA-Forest Service.

    Dated: October 19, 2001.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
[FR Doc. 01-28102 Filed 11-8-01; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P