[Federal Register: November 9, 2001 (Volume 66, Number 218)]
[Rules and Regulations]
[Page 56610-56613]
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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
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