[Federal Register: September 18, 2002 (Volume 67, Number 181)]
[Rules and Regulations]               
[Page 58695-58697]
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; Changes to Seasons For Muskox in Unit 26(C)

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

ACTION: Emergency closure of season.


SUMMARY: This provides notice of the Federal Subsistence Board's 
emergency closure to protect Muskox populations in Unit 26(C). This 
regulatory closure provides an exception to the Subsistence Management 
Regulations for Public Lands in Alaska, published in the Federal 
Register on June 28, 2002. Those regulations established seasons, 
harvest limits, methods, and means relating to the taking of wildlife 
for subsistence uses during the 2002-2003 regulatory year.

DATES: This emergency action will be effective July 15 through 
September 14, 2002. The resulting season for muskox in Unit 26(C) will 
be September 15, 2002 through March 31, 2003, unless the Board takes 
further action.

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



    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

[[Page 58696]]

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 2002-2003 wildlife seasons, harvest limits, and methods and 
means were published on June 28, 2002, (67 FR 43710) 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 emergency change for closure of seasons is necessary to protect 
declining muskox populations on the North Slope of the Arctic National 
Wildlife Refuge. This emergency change is authorized and in accordance 
with 50 CFR 100.19(d) and 36 CFR 242.19(d).

Unit 26(C) Muskox

    Muskoxen were reestablished in and near the Arctic National 
Wildlife Refuge in Unit 26(C) in 1969 and 1970. For several years after 
their release, numbers of muskoxen increased rapidly and began 
expanding into regions east (Canada) and west (Unit 26B) of the Refuge. 
After reaching a peak of 399 animals in 1986, numbers of muskoxen in 
Unit 26(C) were relatively stable from 1987-1998, but have declined 
sharply in the past two years.
    A conservation concern, for this unit, was recognized when less 
than 70 muskoxen were counted during aerial surveys made in late June/
early July 2002. Reasons for the decline include poor calf recruitment, 
emigration of muskoxen from Unit 26(C) into regions east and west of 
the Refuge, and increased predation. Until more calves are born and 
survive or muskoxen move back into the Refuge, numbers are likely to 
remain low and could continue to decline. The low number of calves seen 
in 2000 and 2001 is likely related to severe weather (fall icing 
conditions, deep snow and a prolonged snow season). Changes in 
distribution also has affected the number of muskoxen in the Refuge. 
Between 2000 and 2002, mixed-sex groups with 3 radiocollared animals 
dispersed eastward into Canada and at least 1 group with a 
radiocollared animal moved west off the Refuge. Muskoxen may also have 
dispersed southward into the mountains.
    On July 11, 2002 the Federal Subsistence Board, acting through the 
delegated official and at the request of the North Slope Muskox Working 
Group, delayed the opening of the muskox season in Unit 26(C), from 
July 15 to September 15. Delaying the start of the season until 
September 15 will allow biologists time to conduct additional surveys 
and to recommend a more permanent course of action to address the 
population decline of muskoxen in Unit 26(C).
    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (APA) for this 
emergency action is 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 

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

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

Other Requirements

    This emergency change has been exempted from OMB review under 
Executive Order 12866.

[[Page 58697]]

    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 gun, hunting gear, 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 emergency 
change has 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 emergency change 
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 emergency change 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 emergency change does 
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; Warren 
Eastland, 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: July 17, 2002.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.

    Dated: July 16, 2002.
Kenneth E. Thompson,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 02-23640 Filed 9-17-02; 8:45 am]