2010-19909. 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; [phone] or [e-mail]. For questions specific to National Forest System lands, contact Steve Kessler, Subsistence Program Leader, USDA, Forest Service, Alaska Region, [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

Background

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 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; and
• 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 Register.

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 concerns.

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 impacts.

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.

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 recipients.

(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 required.

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 Management;
• 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 Service.

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.