[Federal Register: August 12, 2010 (Volume 75, Number 155)]
[Rules and Regulations]               
[Page 48857-48860]
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

[Docket No. FWS-R7-SM-2010-0048; 70101-1261-0000L6]

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

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

ACTION: Seasonal adjustments.


SUMMARY: This provides notice of the Federal Subsistence Board's 
(Board) in-season management actions for the 2009-10 regulations for 
taking wildlife. These actions provide exceptions to the regulations 
currently in effect for Subsistence Management of Public Lands in 
Alaska. Those regulations established seasons, harvest limits, and 
methods and means for taking of wildlife for subsistence uses during 
the 2008-09 and 2009-10 regulatory years.

DATES: The various seasonal adjustments were effective on the dates of 
the applicable public notices that were advertised by mail, e-mail, 
radio, newspaper, and the Federal Subsistence Management Program 
(Program) Web page.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of 
Subsistence Management; (907) 786-3888 or subsistence@fws.gov. For 
questions specific to National Forest System lands, contact Steve 
Kessler, Subsistence Program Leader, USDA, Forest Service, Alaska 
Region, (907) 743-9461 or skessler@fs.fed.us.



    Under Title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and 
the Secretary of Agriculture (Secretaries) jointly implement the 
Federal Subsistence Management Program. This

[[Page 48858]]

Program grants a preference for subsistence uses of fish and wildlife 
resources on Federal public lands and waters in Alaska. The Secretaries 
first published regulations to carry out this Program in the Federal 
Register on May 29, 1992 (57 FR 22940). These regulations have 
subsequently been amended several times. Because this Program is a 
joint effort between Interior and Agriculture, these regulations are 
located in two titles of the Code of Federal Regulations (CFR): Title 
36, ``Parks, Forests, and Public Property,'' and Title 50, ``Wildlife 
and Fisheries,'' at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. 
The regulations contain subparts as follows: Subpart A, General 
Provisions; subpart B, Program Structure; subpart C, Board 
Determinations; and subpart D, Subsistence Taking of Fish and Wildlife.

Federal Subsistence Board

    Consistent with subpart B of these regulations, the Secretaries 
established a Federal Subsistence Board to administer the Program. The 
Board comprises:
     Chair appointed by the Secretary of the Interior with 
concurrence of the Secretary of Agriculture;
     Alaska Regional Director, U.S. Fish and Wildlife Service;
     Alaska Regional Director, U.S. National Park Service;
     Alaska State Director, U.S. Bureau of Land Management;
     Alaska Regional Director, U.S. Bureau of Indian Affairs; 
     Alaska Regional Forester, U.S. Forest Service.
    Through the Board, these agencies participate in the development of 
regulations for subparts A, B, and C, which set forth the basic 
program, and they continue to work together on regularly revising the 
subpart D regulations, which, among other things, set forth specific 
harvest seasons and limits.

Federal Subsistence Regional Advisory Councils

    In administration of the Program, Alaska is divided into 10 
subsistence resource regions, each of which is represented by a 
Regional Advisory Council. The Regional Advisory Councils provide a 
forum for rural residents with personal knowledge of local conditions 
and resources to have a meaningful role in the subsistence management 
of fish and wildlife on Federal public lands in Alaska. The Regional 
Advisory Council members represent diverse geographical, cultural, and 
user interests within each region.

Current Management Actions

    These actions provide exceptions to the Subsistence Management 
Regulations for Public Lands in Alaska, announced in a final rule 
published in the Federal Register June 24, 2008 (73 FR 35726), and 
currently in effect. 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 mail, e-mail, radio, newspaper, and the Federal subsistence 
management program webpage is then followed by notice in the Federal 

Moose--Units 1B, 1C South of Point Hobart, and 3

    Adjusts the harvest limit of moose by adding ``or antlers with 2 
brow tines on both sides''. This action was necessary to provide the 
same opportunity to federally qualified users as hunters enjoy under 
State regulations.

Goat--Unit 5A, That Area Between the Hubbard Glacier and the West 
Nunatak Glacier on the North and East Sides of Nunatak Fjord

    Closes the subsistence hunting season to promote recovery of the 
goat population. This action was necessary for conservation concerns.

Marten (Trapping)--Unit 3, Kuiu Island

    Closes the subsistence trapping season to promote recovery of the 
marten population. This action was necessary for conservation concerns.

Moose--Unit 5A, Except Nunatak Beach

    Delegates authority to the U.S. Forest Service, Yakutat District 
Ranger to establish a quota for moose and to close the season when the 
quota has been filled. This action facilitates management flexibility 
and responsiveness and was necessary for conservation concerns.

Caribou--Unimak Island Only

    Closes the fall and winter subsistence hunting seasons to promote 
recovery of the caribou population. This action was necessary for 
conservation concerns.

Lynx (Trapping--Units 7 and 15)

    Adjusts the season dates from January 1-31 to January 1-February 
15. Local observations indicate the lynx populations are increasing. 
This action provides additional opportunity to subsistence users.

Unit 18, Unit Regulations

    Prohibits the possession or use of lead shot size T or smaller. 
This action was necessary for conservation and public safety concerns.

Deer--Unit 4, Northeast Chichagof Controlled Use Area

    Closes the harvest of female deer during the period November 14-
January 31, 2009 to maintain existing populations and preserve 
reproductive potential. This action was necessary for conservations 

Musk Ox--Unit 22D, Remainder

    Removes the closure on the January 15-March 15, 2010, season. A 
harvest quota is in place. This action provides additional opportunity 
for subsistence users.

Moose--Unit 18, Remainder

    Adjusts the season dates to January 22-February 28, 2010, and 
adjusts the harvest limit from one antlered bull to one moose. This 
action provides additional opportunity for subsistence users from a 
healthy moose population.

Moose--Unit 24B, Kanuti National Wildlife Refuge and Bureau of Land 
Management (BLM) Lands

    Establishes a 5-day season, March 27-31, 2010, with a harvest limit 
of one bull and a harvest quota of five bull moose, and expands the 
hunt area to include all Refuge and BLM lands in the unit. The refuge 
manager is authorized to close the season if a cow is taken. This 
action provides additional opportunity for subsistence users and should 
spread the harvest over a larger area, thereby minimizing harvest 

Conformance With Statutory and Regulatory Authorities

Administrative Procedure Act

    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (5 U.S.C. 551 et 
seq.) for these seasonal 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 under 5 U.S.C. 553(d)(3), to make these adjustments effective as 
indicated in the DATES section.

[[Page 48859]]

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

    An ANILCA Section 810 analysis was completed as part of the FEIS 
process on the Federal Subsistence Management Program. 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. The final 
section 810 analysis determination appeared in the April 6, 1992, ROD 
and concluded that the Program, under Alternative IV with an annual 
process for setting subsistence regulations, may have some local 
impacts on subsistence uses, but will not likely restrict subsistence 
uses significantly.
    During the subsequent environmental assessment process for 
extending fisheries jurisdiction, an evaluation of the effects of this 
rule was conducted in accordance with section 810. That evaluation also 
supported the Secretaries' determination that the rule will not reach 
the ``may significantly restrict'' threshold that would require notice 
and hearings under ANILCA section 810(a).

Paperwork Reduction Act

    An agency may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid Office of Management and Budget (OMB) control number. This rule 
does not contain any new collections of information that require OMB 
approval. OMB has reviewed and approved the following collections of 
information associated with the subsistence regulations at 36 CFR part 
242 and 50 CFR part 100: Subsistence hunting and fishing applications, 
permits, and reports, Federal Subsistence Regional Advisory Council 
Membership Application/Nomination and Interview Forms (OMB Control No. 
1018-0075, expires January 31, 2013).

Regulatory Planning and Review (Executive Order (E.O.) 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under E.O. 
12866. OMB bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    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. 
In general, the resources to be harvested under this rule are already 
being harvested and consumed by the local harvester and do not result 
in an additional dollar benefit to the economy. However, we estimate 
that 2 million pounds of meat are harvested by subsistence users 
annually and, if given an estimated dollar value of $3.00 per pound, 
this amount would equate to about $6 million in food value Statewide. 
Based upon the amounts and values cited above, the Departments certify 
that this rulemaking will not have a significant economic effect on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness 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.

E.O. 12630

    Title VIII of ANILCA requires the Secretaries to administer a 
subsistence priority on public lands. The scope of this Program is 
limited by definition to certain public lands. Likewise, these 
regulations have no potential takings of private property implications 
as defined by E.O. 12630.

Unfunded Mandates Reform Act

    The Secretaries have determined and certify under the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will 
not impose a cost of $100 million or more in any given year on local or 
State governments or private entities. The implementation of this rule 
is by Federal agencies and there is no cost imposed on any State or 
local entities or tribal governments.

E.O. 12988

    The Secretaries have determined that these regulations meet the 
applicable standards provided in Sections 3(a) and 3(b)(2) of E.O. 
12988, regarding civil justice reform.

E.O. 13132

    In accordance with E.O. 13132, this rule 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 unless it meets certain requirements.

E.O. 13175

    ANILCA does not specifically provide rights to tribes for the 
subsistence taking of wildlife, fish, and shellfish. However, the 
Secretaries have elected to provide tribes an opportunity to consult on 
this rule. The Board provided a variety of opportunities for 
consultation through: Proposing changes to the existing rule; 
commenting on proposed changes to the existing rule; engaging in 
dialogue at the Regional Advisory Council meetings; engaging in 
dialogue at the Board's meetings; and providing input in person, or by 
mail, e-mail, or phone, at any time during the rulemaking process.

E.O. 13211

    This Executive Order requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. However, this rule is 
not a significant regulatory action under E.O. 13211, affecting energy 
supply, distribution, or use, and no Statement of Energy Effects is 

[[Page 48860]]

Drafting Information

    Theo Matuskowitz drafted these regulations under the guidance of 
Peter J. Probasco of the Office of Subsistence Management, Alaska 
Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. 
Additional assistance was provided by
     Daniel Sharp, Alaska State Office, Bureau of Land 
     Sandy Rabinowitch and Nancy Swanton, Alaska Regional 
Office, National Park Service;
     Dr. Glenn Chen and Patricia Petrivelli, Alaska Regional 
Office, Bureau of Indian Affairs;
     Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife 
Service; and
     Steve Kessler, Alaska Regional Office, U.S. Forest 

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

    Dated: June 29, 2010.
Polly Wheeler,
Acting Chair, Federal Subsistence Board.
    Dated: June 30, 2010.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 2010-19909 Filed 8-11-10; 8:45 am]
BILLING CODE 3410-11-P, 4310-55-P