[Federal Register: December 19, 2003 (Volume 68, Number 244)]
[Rules and Regulations]               
[Page 70712-70714]
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 Adjustment--Unit 22(A)

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

ACTION: Seasonal adjustment.


SUMMARY: This provides notice of the Federal Subsistence Board's 
management action to protect a declining moose population in Unit 
22(A). This action provides 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 year.

DATES: This action is effective December 4, 2003, through January 31, 

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 Leader, 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 

[[Page 70713]]

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 
    This adjustment is necessary because of the need to protect a 
declining moose population in a portion of Unit 22. This action is 
authorized and in accordance with 50 CFR 100.19(d-e) and 36 CFR 

Unit 22(A)--Moose

    In 2003 recruitment surveys were completed by ADF&G and BLM in the 
Golsovia River drainage and on the main stems of the Unalakleet, 
Shaktoolik and Ungalik river drainages for comparison to similar Unit 
22(A) surveys completed in 2000. In all drainages surveyed, except the 
Golsovia, considerably fewer moose were seen in 2003 than in 2000. This 
information points to a substantial decline in moose numbers in Unit 
22(A) especially the population north of the Golsovia River. Current 
Federal regulations provide opportunity to harvest bull moose in the 
affected area December 1 through January 31. This Board action closes 
the moose season in a portion of Unit 22(A) north of the Golsovia River 
drainage, closes the winter season in the remainder of Unit 22(A) at 
the end of December, and changes the harvest limit in remainder of Unit 
22(A) to antlered bulls only. ADF&G has executed an Emergency Order for 
a similar adjustment of the State moose season on private lands in 
response to the ongoing population declines.
    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (APA) for this 
adjustment is 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 this action 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 closure 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

[[Page 70714]]

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: December 3, 2003.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: December 3, 2003.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 03-31290 Filed 12-18-03; 8:45 am]