[Federal Register: August 31, 2006 (Volume 71, Number 169)]
[Rules and Regulations]               
[Page 51758-51760]
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--Arctic Village Sheep Management Area

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

ACTION: Seasonal adjustment.


SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management action to remove closure restrictions on non-
Federally qualified users in the Red Sheep and Cane Creek drainages of 
the Arctic Village Sheep Management Area. The Board's action provides 
an exception to the Subsistence Management Regulations for Public Lands 
in Alaska, published in the Federal Register on June 30, 2006. Those 
regulations established seasons, harvest limits, methods, and means 
relating to the taking of wildlife for subsistence uses during the 2006 
regulatory year.

DATES: The action is effective from August 10, 2006, through September 
20, 2006.

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 

[[Page 51759]]

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 2006 wildlife seasons, harvest limits, and methods and means 
were published on June 30, 2006 (71 FR 37642). Because this action 
relates to a joint program managed by an agency or agencies in both the 
Departments of Agriculture and the Interior, an identical adjustment 
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 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 
Board may, when necessary, preempt State harvest regulations for fish 
or wildlife on Federal lands and waters.

Current Management Action

    This action is authorized and in accordance with 50 CFR 100.19(d)-
(e) and 36 CFR 242.19(d)-(e).

Arctic Village Sheep Management Area

    Section 815(3) of ANILCA authorizes restrictions or closures to 
nonsubsistence uses on the public lands only when necessary for the 
conservation of healthy populations of fish and wildlife or to continue 
subsistence uses of such populations. Federal closure regulations for 
the Arctic Village Sheep Management Area have been in existence since 
the 1991/92 regulatory year. The management area was expanded in 1995 
to include the Cane Creek and Red Sheep Creek drainages. The initial 
closure was proposed to address concerns regarding low number of sheep 
in the area, and to provide for continued subsistence use of sheep in 
the area.
    In 2005, the Alaska Department of Fish and Game submitted a 
proposal that requested the Board remove the closure in the Arctic 
Village Sheep Management Area to nonrural hunters. Their proposal 
stated that without evidence of any significant use by local 
subsistence hunters, the necessity of the closure to continue 
subsistence use of sheep in the area could not be used to justify 
maintaining the closure. The public and the Eastern Interior 
Subsistence Regional Advisory Council reviewed and made recommendations 
on the proposal. At its May 2006 meeting, the Board rejected the 
proposal, as well as a motion to remove the closure for only the Red 
Sheep and Cane Creek drainages, based on the lack of biological and 
harvest data that would support or oppose the proposed action. The 
Board requested agency staff to conduct a sheep population survey 
within the affected area and indicated it would revisit this issue 
pending the results of the survey.
    A survey of sheep in the Red Sheep Creek and Cane Creek drainages 
within the Arctic Village Sheep Management Area conducted June 19-21, 
2006, found a minimum of 188 sheep in these drainages, including 53 
rams, of which 18 were classified as mature rams. The estimated density 
of sheep in these drainages was 1.8 sheep/mi2. Although the 
density of sheep in the area is relatively low compared to some other 
areas in the state, the density reflects the relatively poor quality of 
the sheep habitat. The sex and age ratios of the sheep are within 
normal ranges and indicate that the population is healthy. Allowing 
sheep hunting by non-Federally qualified hunters in these drainages 
would not adversely affect the sheep population because these hunters 
would be limited to taking one full curl ram in the fall season when 
this special action would be effective. Removal of some full curl rams 
from the population will not reduce reproductive success in the sheep 
population. Maintaining the closure to nonsubsistence hunting of sheep 
in the Red Sheep Creek and Cane Creek drainages within the Arctic 
Village Sheep Management Area is no longer necessary for conservation 
of a healthy sheep population.
    Maintaining the closure to nonsubsistence hunting of sheep in these 
drainages is also not necessary to provide for continued subsistence 
use of sheep. Currently, despite the closure to non-Federally qualified 
hunters and a more liberal Federal subsistence harvest limit during the 
fall than that provided under State regulations in adjacent areas, 
there has been relatively little hunting effort in these drainages 
reported by Arctic Village and other Federally qualified residents and 
very few sheep have been reported taken there since the closure was 
instituted in 1995. The sheep population in these drainages can support 
harvest by both subsistence and nonsubsistence hunters. In fact, 
because subsistence hunters can take rams of any age, the number of 
rams available to subsistence hunters far exceeds the number of full 
curl rams to which non-Federally qualified hunters are limited. 
Allowing hunting by non-Federally qualified hunters in the Red Sheep 
Creek and Cane Creek drainages would not significantly reduce harvest 
opportunities for Arctic Village residents.
    Finally, the existing closure is not justified for reasons of 
public safety, administration, or pursuant to other applicable law.
    On July 18, 2006, at a public work session in Anchorage, the Board 
approved lifting the closure in the Red Sheep and Cane Creek drainages 
from August 10, 2006, through September 20, 2006. The remainder of the 
Arctic Village Sheep Management Area remains closed to nonrural 

Conformance With Statutory and Regulatory Authorities

Administrative Procedure Act

    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (APA) for this 
adjustment are impracticable, unnecessary, and contrary to the public 
interest. Lack of appropriate and immediate action would generally fail 
to serve the overall public interest and conflict with Section

[[Page 51760]]

815(3) of ANILCA. 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 

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, 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).

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 does not contain information collection requirements 
subject to Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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.

Other Requirements

    The adjustment has 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 sporting goods dealers. The number of small entities affected 
is unknown; however, the effects will be seasonally and geographically 
limited in nature and will likely not be significant. The Departments 
certify that this adjustment 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 
    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, this 
adjustment has no potential takings of private property implications as 
defined by Executive Order 12630.
    The Service has determined and certifies under the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that the adjustment 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 adjustment meets 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 adjustment does 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. Cooperative salmon run assessment efforts 
with ADF&G will continue.
    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 substantial direct 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 this action is not 
expected to significantly affect energy supply, distribution, or use, 
it is not a significant energy action and no Statement of Energy 
Effects is required.

Drafting Information

    Bill Knauer drafted this document under the guidance of Peter J. 
Probasco, of the Office of Subsistence Management, Alaska Regional 
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Chuck 
Ardizzone, 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; Dr. 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: August 8, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
    Dated: August 8, 2006.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 06-7276 Filed 8-30-06; 8:45 am]