[Federal Register: April 7, 2008 (Volume 73, Number 67)]
[Rules and Regulations]               
[Page 18710-18712]
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

[FWS-R7-SM-2008-0036; 70101-1261-0000L6]

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart D; Seasonal Adjustments

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

ACTION: Seasonal adjustments; hunting seasons for caribou in Unit 9D 
and female deer in Chichagof Controlled Use Area and Unit 4.


SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management actions to protect caribou populations in Unit 9D and 
female deer populations in the Northeast Chichagof Controlled Use Area 
and Unit 4. These actions provide an exception to the Subsistence 
Management Regulations for Public Lands in Alaska, published in the 
Federal Register on December 27, 2007. Those regulations established 
seasons, harvest limits, methods, and means relating to the taking of 
wildlife for subsistence uses during the 2007-08 regulatory year.

DATES: The closure of the subsistence caribou hunting season in Unit 9D 
is effective November 15, 2007, through March 31, 2008. The closure of 
the subsistence female deer hunting season in the portion of Unit 4 
known as the Northeast Chichagof Controlled Use Area (NECCUA) was 
effective November 27, 2007, through January 26, 2008, and in the 
entirety of Unit 4 was effective January 1 through January 31, 2008. 
The Unit 4 closure beginning January 1, 2008, supersedes the NECCUA-
specific closure on January 1, 2008.

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 

[[Page 18711]]

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 2007-08 wildlife seasons, harvest limits, and 
methods and means were published on December 27, 2007 (72 FR 73426). 
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 
    The Alaska Department of Fish and Game (ADF&G) 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

    These actions are authorized and in accordance with 50 CFR 
100.19(d)-(e) and 36 CFR 242.19(d)-(e), which allow the Board to 
restrict subsistence uses of fish or wildlife on public lands if 
necessary to ensure the continued viability of a fish or wildlife 
population. According to these regulations, temporary changes directed 
by the Board are effective following notice in the affected areas. Such 
notice via newspapers or local radio stations is then followed by 
notice in the Federal Register.

Caribou--Unit 9D

    The Federal Subsistence Board closed the winter (November 15, 2007, 
through March 31, 2008) subsistence caribou hunting season on Federal 
public lands in Unit 9D. Current surveys of the Southern Alaska 
Peninsula Caribou Herd (SAPCH) in Unit 9D have shown a marked decrease 
in both the size of the population and calf recruitment. The intent of 
this in-season adjustment is to prevent additional mortality of this 
caribou herd caused by human harvest. On July 17, 2007, the ADF&G 
issued Emergency Order No. 02-02-07 to announce the closure of the 
State's resident hunting seasons for caribou in Unit 9D. On July 30, 
2007, the Office of Subsistence Management via delegated authority 
approved a previous special action request to close the fall season 
(August 1, 2007, through September 30, 2007) to the taking of caribou 
in Unit 9D. Both Federal and State regulatory managers concur that the 
SAPCH population decline poses a significant conservation concern that 
warrants these actions. Ultimately, the intent of the closure is to 
stop the population decline of the SAPCH and to provide for future 
long-term subsistence use of this resource.

Female Deer--Northeast Chichagof Controlled Use Area (NECCUA)

    The Federal Subsistence Board closed the subsistence female deer 
hunting season on Federal public lands in the NECCUA portion of 
Chichagof Island in Unit 4 for the period November 27, 2007, through 
January 26, 2008. This in-season adjustment was based on conservation 
concerns due to heavy snowfall and high winter deer mortality during 
the 2006-2007 winter and indications of a decline in the population. 
ADF&G issued an Emergency Order Closure (No. 01-06-07) for the 
remainder of the State doe hunting season in the NECCUA. Because the 
NECCUA is a popular hunting area for both local and non-local hunters, 
in part because of the extensive road system that permits vehicle 
access into all major watersheds, ADF&G is concerned that additional 
doe harvest is likely to occur and will jeopardize the future 
productivity and recovery of this deer population. At a meeting in 
Hoonah on October 25, 2007, community residents overwhelmingly 
supported both State and Federal closures of doe hunting until the 
population has recovered. Because harvest in January is generally 
minimal and accounts for approximately 2 percent of the total harvest, 
ADF&G had less concern about the Federal season being reopened for part 
of January.

Female Deer--Unit 4

    The Federal Subsistence Board closed the subsistence female deer 
hunting season on Federal public lands in Unit 4 in Southeast Alaska 
for the period January 1, 2008, through January 31, 2008. This action 
supersedes the previous action closing Federal public lands in the 
NECCUA portion of Chichagof Island in Unit 4. This in-season adjustment 
was based on conservation concerns due to heavy snowfall and presumed 
high winter deer mortality across broad areas of Unit 4 during the 
2006-2007 winter and indications of a decline in the population. 
Restricting the harvest of does is necessary to diminish further 
decline in the population and to allow a faster rate of recovery of the 
deer populations.
    Beginning on January 1 through January 31, 2008, hunters must 
possess a 2008 State of Alaska hunting license and valid State of 
Alaska 2007-2008 harvest ticket, reside within Unit 4 or in the 
communities of Kake, Gustavus, Haines, Petersburg, Pt. Baker, Klukwan, 
Port Protection, Wrangell or Yakutat; and harvest only male deer on 
Federal public lands.

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 these 
adjustments 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 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 these adjustments effective as indicated in the DATES 

National Environmental Policy Act

    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

[[Page 18712]]

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 action 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 Secretaries have determined and certify 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 Secretaries have 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 action.
    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

    Theo Matuskowitz 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. Charles 
Ardizzone, Alaska State Office, Bureau of Land Management; Sandy 
Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park 
Service; Drs. Warren Eastland and Glenn Chen, Alaska Regional Office, 
Bureau of Indian Affairs; Jerry Berg and Carl Jack, Alaska Regional 
Office, U.S. Fish and Wildlife Service; and Steve Kessler, Alaska 
Regional Office, USDA, Forest Service, provided additional assistance.

    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 
3551-3586; 43 U.S.C. 1733.

    Dated: February 22, 2008.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
    Dated: February 22, 2008.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
 [FR Doc. E8-7180 Filed 4-4-08; 8:45 am]