[Federal Register: December 3, 2003 (Volume 68, Number 232)]
[Rules and Regulations]               
[Page 67595-67597]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Forest Service

36 CFR Part 242


Fish and Wildlife Service

50 CFR Part 100

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart D; Seasonal Adjustments--Units 9(D), 10 and 24

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

ACTION: Seasonal adjustments.


[[Page 67596]]

SUMMARY: This provides notice of the Federal Subsistence Board's 
management actions to provide for a subsistence harvest opportunity for 
caribou in Units 9(D) and 10 (Unimak Island) and to protect a declining 
moose population in Unit 24. These actions provide an exception to the 
Subsistence Management Regulations for Public Lands in Alaska, 
published in the Federal Register on June 27, 2003. Those regulations 
established seasons, harvest limits, methods, and means relating to the 
taking of wildlife for subsistence uses during the 2003 regulatory 

DATES: The Unit 9(D) and 10 (Unimak Island) action is effective October 
29, 2003, through March 31, 2004. The Unit 24 action is effective 
November 3, 2003, through December 31, 2003.

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 Steve 
Kessler, Subsistence Program Manager, USDA--Forest Service, Alaska 
Region, telephone (907) 786-3592.



    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 2003 hunting seasons, harvest limits, and methods and means 
were published on June 27, 2003, (68 FR 38464).
    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) and the Board of Fisheries (BOF), 
manages sport, commercial, personal use, 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 Federal Board may, when necessary, preempt 
State harvest regulations for fish or wildlife on Federal lands and 
    These adjustments are necessary because of the need to provide 
additional subsistence opportunity for harvest of a rapidly expanding 
caribou population in Units 9(D) and 10 (Unimak Island) and to enhance 
productivity of a declining moose population in a portion of Unit 24. 
These actions are authorized and in accordance with 50 CFR 100.19(d-e) 
and 36 CFR 242.19(d-e).

Units 9(D) and 10 (Unimak Island)--Caribou

    The caribou population has increased in both units and has reached 
and/or exceeded the upper level population objectives specified in the 
management plan. Increasing both the fall and winter harvest limits 
will provide additional harvest opportunities for subsistence users. 
Increasing the Federal subsistence harvest limits for caribou hunting 
on Federal public lands in Units 9(D) and 10 (Unimak Island) should 
help to stabilize the current population in line with the carrying 
capacity of the habitat for this herd. A previous Board action had 
modified the limits for the fall season. In this action the Federal 
Subsistence Board increased the harvest limit for caribou in Unit 9(D) 
from 1 to 2 and from 2 to 4 for Unit 10 (Unimak Island) for the 
November 15-March 31 caribou season.

Unit 24--Moose

    Based on an analysis of results from trend surveys conducted in 
areas in Unit 24, ongoing population declines are somewhat uniform 
throughout the Koyukuk River drainage. Based on results from trend 
surveys conducted in portions of Unit 24 between 1985 and 1999, there 
have been significant declines in productivity and yearling bull 
    These declines continue and have been documented through results 
from surveys conducted from 2000 through 2002. Results from limited 
2003 surveys were similar, indicating that overall productivity has not 
increased. Current Federal regulations provide opportunity to harvest 
bull moose in the affected area August 1 through December 31. While 
increased cow harvest levels have provided additional opportunity and 
have served to stabilize moose populations in past years, prolonged 
harvest at the current levels will likely contribute to further 
declines in productivity and recruitment. As current management 
objectives prescribe more conservative yields than allowed for through 
current regulatory provisions, regulatory changes are needed to 
decrease the total cow harvest and to maintain productivity and 
recruitment. The Board had previously closed Unit 21(D) and Unit 24 
outside of the Gates of the Arctic National Park to antlerless harvest 
during the fall season. This Board action shortens the antlerless moose 
season in Unit 24--that portion that includes the John River drainage 
within the Gates of the Arctic National Park. The existing season and 
harvest limit for the affected area is 1 moose during August 1 through 
December 31. This action prohibits the harvest of antlerless moose 
within the affected area November 3-December 31. ADF&G has executed an 
Emergency Order for a similar closure of the State antlerless moose 
season on private lands within the John and Alatna River drainages of 
Unit 24 consistent with the Management Plan, which calls for

[[Page 67597]]

additional regulatory restrictions on antlerless moose harvest in 
response to the ongoing population declines.
    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (APA) for these 
adjustments are impracticable, unnecessary, and contrary to the public 
interest. Lack of appropriate and immediate measures could seriously 
affect the continued viability of wildlife populations, adversely 
impact 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) was 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 

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

Other Requirements

    The adjustments 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 firearm, ammunition, 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 adjustments will not have a 
significant economic effect on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act. Under the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), 
this rule is not a major rule. It does not have an effect on the 
economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and does not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.
    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 
adjustments 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 adjustments 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 adjustments 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 adjustments do not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. Title VIII of ANILCA precludes the State from 
exercising subsistence 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

    William Knauer 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; Warren 
Eastland, Alaska Regional Office, Bureau of Indian Affairs; and Steve 
Kessler, 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: November 12, 2003.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.

    Dated: November 12, 2003.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 03-30068 Filed 12-2-03; 8:45 am]