[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 8888-8891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4539]


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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; Changes to Seasons and Harvest Limits for Goat in Unit 5(A) 
and Moose in Unit 22(B)

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

ACTION: Temporary closure of season, temporary change in season and 
harvest quota, and temporary establishment of harvest priority.

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SUMMARY: This provides notice of the Federal Subsistence Board's 
temporary closure to protect mountain goat populations in a portion of 
Unit 5(A) and changes in harvest season and quota and the establishment 
of a harvest priority to protect moose populations in Unit 22(B) West 
of the Darby Mountains. These regulatory adjustments and the closure 
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 action for goats was effective October 17 
through December 15, 2001. The extension of the emergency action 
(temporary closure) is effective December 16, 2001, through January 31, 
2002. The temporary season establishment and harvest priority for moose 
in Unit 22(B) west of the Darby Mountains is effective January 1-31, 
2002.

FOR FURTHER INFORMATION CONTACT: Thomas H. Boyd, Office of Subsistence 
Management, U.S. Fish and Wildlife Service, telephone (907) 786-3888.

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 are necessary to 
protect declining goat populations in the Yakutat area, and the 
establishment of a limited winter moose season on a portion of the 
Seward Peninsula is needed to provide harvest opportunity for those 
rural residents that have customary and direct dependence on the 
resource, while helping the declining moose populations recover. This 
temporary change is authorized by and in accordance with 50 CFR 
100.19(e) and 36 CFR 242.19(e).

Unit 5(A) Goats

    Goat harvest in the area of Unit 5(A), which drains into Russell 
and Nunatak Fiords between Hubbard and West Nunatak Glaciers, has 
increased significantly over the past 3 years. A harvest of 10 goats 
was recorded in 1998, a high of 16 were taken in 1999, and 8 goats were 
taken in 2000. Previous to these 3 years the reported goat harvest for 
this area has averaged 2.2 goats per year. Recent aerial survey 
information from 2000 and 2001 indicates a declining trend in the goat 
population in this area. The decline is possibly the result of an over 
harvest of mature females, affecting population recruitment.
    A conservation concern, for this area, was first recognized in 
early December 2000 when the harvest exceeded 5% of the estimated 
population. Both the State of Alaska and the Federal Subsistence Board 
responded to the situation by closing the goat harvest seasons for the 
area of Unit 5(A) draining into Russell and Nunatak Fiords between 
Hubbard and West Nunatak Glaciers.
    Following the 2001 aerial survey of the population, the Alaska 
Department of Fish and Game, through Emergency Order No. 01-03-01, 
closed the goat season in the areas of Unit 5(A) between Hubbard and 
West Nunatak Glaciers, on October 12, 2001. On October 16, 2001, the 
Federal Subsistence Board adopted a special action request submitted by 
the Tongass National Forest to similarly close the Federal harvest 
season. This emergency action, effective for 60 days

[[Page 8889]]

(October 17, 2001-December 15, 2001) closed the area draining into 
Russell and Nunatak Fiords between Hubbard and West Nunatak Glaciers to 
the taking of goats. The harvest season for the remainder of Unit 5(A) 
continued to have a harvest limit of 1 goat by Federal registration 
permit with the season from August 1-January 31.
    On November 8, 2001, a public meeting was held in Yakutat, 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 closure through the remainder of 
the regulatory season.
    On November 30, 2001, the Forest Service biologists conducted 
another aerial survey of the subject goat population, the results of 
which indicated a continuing decline in the goat population.
    On December 11, 2001, the Federal Subsistence Board, recognizing 
that a conservation concern still exists, approved the temporary action 
to continue the closure, through the remainder of the regulatory 
season. This regulatory action was intended to aid in the population 
recovery of the goat population in Unit 5(A).

Unit 22(B) Moose--West of the Darby Mountains

    Moose populations in Unit 22(B) west of the Darby Mountains have 
declined in recent years, along with moose populations throughout the 
management unit. Overall populations in Unit 22 ranged from 7,000 to 
10,000 during the late 1980's 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, resulting in a population recruitment that has 
been below the annual harvest. Recruitment in 2000 for Unit 22(B) west 
of the Darby Mountains was estimated at only 48 moose, with a harvest 
of approximately 68 moose. The Federal subsistence moose harvest in 
Unit 22(B) was restricted to bulls by the Federal Subsistence Board in 
the fall of 2000 due to this declining local moose population and heavy 
hunting pressure.
    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, including Unit 22(B) west of the 
Darby Mountains. The State's justification for this action was that 
moose populations in the area cannot sustain recent harvest levels, and 
that recent surveys indicated moose densities, recruitment rates, and 
bull:cow ratios 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 for Unit 
22(B) west of the Darby Mountains was to close the harvest season on 
September 14, and to close Federal public lands 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 a harvest quota be established for a winter hunt 
to take place January 1-31, 2002.
    On September 27, 2001, the Federal Subsistence Board approved 
temporary action to reduce the length of the harvest season in most 
Unit 22 subunits, as requested by the Seward Peninsula Regional 
Advisory Council. The resulting action for Unit 22(B) west of the Darby 
Mountains, however, was to identify a--``No Federal open season.'' The 
Federal Subsistence Board expressed its 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, following an 
analysis of the Council's proposal to restrict the taking of moose to 
only residents of the subunit.
    On November 16, 2001 the Federal Subsistence Board adopted 
temporary action to open a winter harvest season (January 1-31, 2002) 
for moose in Unit 22(B) west of the Darby Mountains with a harvest 
quota of 6 bulls. The harvest will be implemented through the use of 
Federal registration permits, and Federal public lands will be closed 
to the taking of moose except by residents of Unit 22(B) west of the 
Darby Mountains (residents of White Mountain and Golovin). The Board's 
decision was based upon the application of the criteria set forth in 
Section 804 of ANILCA. The analysis concluded that good documentation 
exists that indicates the rural residents of Unit 22(B) are and 
historically have been the primary users of the moose in Unit 22(B). 
Specifically, the residents of White Mountain and Golovin are the 
primary users of moose in Unit 22(B) west of the Darby Mountains. These 
rural residents also live closest to the resource in question. In the 
winter, the residents of White Mountain and Golovin rely almost 
exclusively on the moose in Unit 22(B) west of the Darby Mountains. It 
is extremely difficult and hazardous for them to travel elsewhere in 
winter for this important primary resource. The Federal Subsistence 
Board recognized that the residents of Nome hunt a considerable number 
of moose in Unit 22(B); however, they also hunt moose in a wide variety 
of other areas and their primary moose hunting during the winter season 
takes place in Unit 22(D). Therefore, a restriction that applies to the 
winter hunt should have little or no effect on Nome residents, as Nome 
resident use of Unit 22(B) west of the Darby Mountains is primarily in 
the fall. The Board also recognized that many Nome residents are 
involved in the cash economy and have access to a wide variety of other 
resources.
    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)(3) 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

[[Page 8890]]

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

    Paperwork Reduction Act--This notice contains information 
collection requirements subject to Office of Management and Budget 
(OMB) approval under the Paperwork Reduction Act of 1995. It applies to 
the use of public lands in Alaska. The information collection 
requirements are approved by OMB under 44 U.S.C. 3501 and have been 
assigned clearance number 1018-0075, which expires July 31, 2003. 
Federal agencies may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.
    Currently, information in the Subsistence Management Program is 
being collected by the use of a Federal Subsistence Registration Permit 
and Designated Harvester Application. The information collected on 
these two permits establishes whether an applicant qualifies to 
participate in a Federal subsistence hunt on public land in Alaska and 
provides a report of harvest and the location of harvest. The collected 
information is necessary to determine harvest success, harvest 
location, and population health in order to make management decisions 
relative to the conservation of healthy wildlife populations. 
Additional harvest information is obtained from harvest reports 
submitted to the State of Alaska. The recordkeeping burden for this 
aspect of the program is negligible (1 hour or less). This information 
is accessed via computer data base.

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                                         Estimated      Completion       Estimated       Estimated      Hourly cost
                Form                     number of    time for  each      annual      annual  burden        for        Financial  burden on  respondents
                                        respondents    form  (hours)     response         (hours)       respondent
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Federal Subsistence Registration               5,000           \1/4\           5,000           1,250          $20.00  $5.00 each or $25,000 total.
 Permit.
Designated Harvester Application....           2,000           \1/4\           2,000             500           20.00  $5.00 each or $10,000 total.
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    You may 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 
(Subsistence), 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.

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 economic impact 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 gun and ammunition 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 Secretaries have determined and certify 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.
    These actions are not significant regulatory actions under 
Executive Order 12866, nor will they raise novel legal or policy 
issues.
    The Secretaries have 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

[[Page 8891]]

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.

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

    Dated: January 15, 2002.
Timothy R. Jennings,
Acting Chair, Federal Subsistence Board.
    Dated: January 15, 2002.
Calvin H. Casipit,
Acting Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 02-4539 Filed 2-26-02; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P