[Federal Register: December 2, 2004 (Volume 69, Number 231)]
[Rules and Regulations]               
[Page 70074-70076]
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 22 and 24

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

ACTION: Seasonal adjustments.


SUMMARY: This provides notice of the Federal Subsistence Board's 
management actions to provide for subsistence harvest opportunity and 
to protect a declining moose population in Units 22 and 24. These 
actions provide an exception to the Subsistence Management Regulations 
for Public Lands in Alaska, published in the Federal Register on July 
1, 2004. Those regulations established seasons, harvest limits, 
methods, and means relating to the taking of wildlife for subsistence 
uses during the 2004 regulatory year.

DATES: The Unit 22B (west of the Darby Mountains) bull moose action is 
effective January 1, 2005 to January 31, 2005. The Unit 24 (John River, 
Upper John River, and Alatna River) antlerless moose action is 
effective September 8, 2004, through October 26, 2004. The Unit 24 
(Kanuti Controlled Use Area) moose hunt extension is effective 
September 26 to October 2, 2004.

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 2004 hunting seasons, harvest 
limits, and methods and means were published on July 1, 2004 (69 FR 
40174). 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 enhance 
productivity of a declining moose population in portions of Units 22B 
and 24. These actions are authorized and in accordance with 50 CFR 
100.19(d-e) and 36 CFR 242.19(d-e).

Unit 22B--Moose (West of the Darby Mountains)

    Currently the moose population in Unit 22B is substantially 
depressed and well below management objectives. This represents a 
conservation concern. A reduction in harvest is necessary and reducing 
the quota for the combined fall and winter hunts, from 48 to 30, would 
significantly reduce the overall harvest of moose, for conservation 
purposes, while preserving the winter hunt for the smaller communities 
of White Mountain and Golovin, which have a high reliance on the 
    The Unit 22B moose population of 586 is well below the objective of 
1,500 to 2,500. Limiting the number of moose that may be harvested 
should aid in the recovery of the moose population, allowing the 
population to recover more quickly, ultimately conserving the resource 
for future potential harvest opportunities. This action also aligns 
State and Federal regulations, eliminating differing regulations that 
could be problematic.
    Federal lands in Unit 22B affected by the special action are Bering 
Land Bridge National Preserve and Bureau of Land Management lands west 
of the Darby Mountains, and Norton Sound drainages from, but excluding, 
the Ungalik River drainage to, and including the Topkok Creek drainage.

Unit 24--Moose (John River, Upper John River, and Alatna River)

    Moose surveys in Unit 24 from 1998 through 2003 have indicated poor 
recruitment of calves and yearlings. More specifically, aerial trend 
count area surveys were most recently conducted in the fall of 2003 and 
the data indicates that none of the five trend

[[Page 70075]]

count areas surveyed had calf:cow ratios above 30 calves:100 cows. Data 
from adjacent areas indicate that there has been a 25% decline in moose 
numbers since 1998.
    Previous cow harvest levels have provided additional harvest 
opportunities and have served to help stabilize moose populations in 
past years. However, continued cow harvest at the current levels will 
likely contribute to further declines in productivity and recruitment. 
Current management objectives prescribe more conservative yields than 
what are allowed by current regulatory provisions. Thus, regulatory 
changes are needed to decrease the cow harvest and to maintain 
productivity and recruitment. This special action is consistent with 
the Management Plan which calls for additional regulatory restrictions 
on antlerless moose harvest in response to the ongoing population 
    Federal lands in Unit 24 affected by the special action are: (1) 
All drainages to the north of the Koyukuk River upstream from and 
including the Alatna River to and including the North fork of the 
Koyukuk River, except those portions of the John River and the Alatna 
River drainages within the Gates of the Arctic National Park. (2) That 
portion that includes the John River within Gates of the Arctic 
National Park. (3) The Alatna River drainage within Gates of Arctic 
National Park.
    The Alaska Department of Fish and Game issued an Emergency Order 
No. 03-04-04 to close the August and September antlerless moose season 
on State lands in Unit 21 D and Unit 24. The Board has taken a similar 
action on Federal public lands in Unit 24 in order to protect the 
continued viability of the moose population and to reduce confusion 
among hunters with conflicting regulations.
    ADF&G has executed an Emergency Order for a 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 additional regulatory restrictions on antlerless moose 
harvest in response to the ongoing population declines. A second Board 
action prohibits the harvest of antlerless moose within the upper John 
River drainage in the Gates of the Arctic National Park area from 
October 27 through December 31, 2004.

Unit 24--Moose (Kanuti Controlled Use Area)

    Interior Alaska has experienced unseasonably high summer 
temperatures, a lower than average amount of rainfall, and a record 
number of wild fires in 2004. These conditions may have accounted for a 
change in the fall movement of moose and reduced the opportunity for 
subsistence users to harvest a moose. In addition, a number of local 
subsistence hunters have had limited time to hunt moose due to seasonal 
employment on fire crews. Federal lands in Unit 24 affected by this 
special action are the Kanuti Controlled Use Area. The Board lengthened 
the bull moose season in Unit 24 (Kanuti Controlled Use Area) to 
include September 26, 2004, through October 2, 2004.
    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 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 adjustment and emergency closures do not contain any 
information collections for which Office of Management and Budget (OMB) 
approval is required 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 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 will 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,

[[Page 70076]]

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

    Theodore Matuskowitz 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; Rod 
Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Bob 
Gerhard, Alaska Regional Office, National Park Service; Dr. Glenn Chen, 
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: October 29, 2004.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: October 29, 2004.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 04-26541 Filed 12-1-04; 8:45 am]