[Federal Register Volume 60, Number 153 (Wednesday, August 9, 1995)]
[Rules and Regulations]
[Pages 40461-40465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19483]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 242
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 100
RIN 1018-AC82
Subsistence Management Regulations for Public Lands in Alaska,
Subparts C and D--1995-1996 Subsistence Taking of Fish and Wildlife
Regulations for the Kenai Peninsula
AGENCY: Forest Service, Agriculture; and Fish and Wildlife Service,
Interior.
ACTION: Final rule.
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SUMMARY: This rule establishes customary and traditional use
determinations and seasons and harvest limits related to the taking of
moose for subsistence uses on Federal lands on the Kenai Peninsula
during the 1995-1996 regulatory year.
EFFECTIVE DATES: The amendments to Sec. ____.24 are effective August
10, 1995. The amendments to Sec. ____.25 are effective August 10, 1995,
through June 30, 1996.
FOR FURTHER INFORMATION CONTACT:
Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service,
Attention: Richard S. Pospahala, Office of Subsistence Management, 1011
E. Tudor Road, Anchorage, Alaska 99503; telephone (907) 786-3447. For
questions specific to National Forest System lands, contact Ken
Thompson, Regional Subsistence Program Manager, USDA, Forest Service,
Alaska Region, P.O. Box 21628, Juneau Alaska 99802-1628, telephone
(907) 586-7921.
SUPPLEMENTARY INFORMATION:
Customary and Traditional Use Determinations
The Federal Subsistence Board (Board) implemented a systematic
program for review of customary and traditional use determinations as
provided for in 36 CFR 242 and 50 CFR 100. As a priority consideration,
the Board focused its determinations on community or area uses of large
mammals (ungulates and bears), examining uses of species of large
mammals by communities or areas rather than focusing on individual
herds or populations. The Board recognized that subsistence resource
use patterns of neighboring communities are often interrelated and
should be analyzed concurrently.
Existing regulations at 36 CFR 242.16(b) and 50 CFR 100.16(b)
identify eight factors that a community or area shall generally exhibit
which exemplify customary and traditional subsistence uses. The eight
factors are as follows:
1. A long-term consistent pattern of use, excluding interruptions
beyond the control of the community or area;
2. A pattern of use recurring in specific seasons for many years;
3. A pattern of use consisting of methods and means of harvest
which are characterized by efficiency and economy of effort and cost,
conditional by local characteristics;
4. The consistent harvest and use of fish or wildlife as related to
past methods and means of taking; near, or reasonably accessible from
the community or area;
5. A means of handling, preparing, preserving, and storing fish or
wildlife which has been traditionally used by past generations
including consideration of alteration of past practices due to recent
technological advances, where appropriate;
6. A pattern of use which includes the handing down of knowledge of
fishing and hunting skills, values and lore from generation to
generation;
7. A pattern of use in which the harvest is shared or distributed
within a definable community of persons; and
8. A pattern of use which relates to reliance upon a wide diversity
of fish and wildlife resources of the area and which provides
substantial cultural, economic, social and nutritional elements to the
community or area.
Each Federal Subsistence Regional Advisory Council (Regional
Council) has a substantial role in reviewing and developing information
on which to base a recommendation to the Board concerning customary and
traditional use determinations. The Southcentral Regional Council had
available for consideraton an extensive compilation of existing
information on historic and contemporary large mammal resource use
patterns by rural Kenai Peninsula communities. A draft report, dated
December 8, 1993, incorporated information from historic ethnographic
sources; census data; community surveys conducted by the Alaska
Department of Fish and Game, Division of Subsistence; and harvest
ticket and sealing records compiled by the Alaska Department of Fish
and Game.
During its public meeting of February 28-March 2, 1995, the
Southcentral Regional Council reviewed and discussed written
information and oral testimony on resource use patterns as related to
the eight factors for the Kenai Peninsula rural communities of
Whittier, Hope, Cooper Landing, Ninilchik, the Homer rural area,
Nanwalek (formerly known as English Bay), Port Graham and Seldovia.
Based on this review and discussion, the Southcentral Regional Council
developed and submitted to the Board recommendations for customary and
traditional use determinations for rural communities in Units 7 and 15.
The Board adopted these recommendations, and subsequently issued a
proposed rule announcing its action. Following the public comment
period for the proposed rule, the Southcentral Regional Council
convened in a public session on July 12, 1995, and re-evaluated the
recommendations reflected in the proposed rule, revising its
recommendation to the Board. The revised recommendations called for
positive customary and traditional use determinations for moose in Unit
15 by the communities of Ninilchik, Seldovia, Nanwalek, and Port
Graham. The revised recommendations also called for deferral of
customary and traditional use findings for species other than moose,
and for communities other than Ninilchik, Seldovia, Nanwalek, and Port
Graham.
At its July 13, 1995, public meeting, the Board amended the
proposed rule in response to several considerations. A primary
consideration was the revised recommendations submitted by the
Southcentral Regional Council. An additional consideration was
compelling public testimony calling into question the factual basis for
the proposed customary and traditional use determinations. A related
concern was that the customary and traditional use determinations in
the proposed rule may not have been supported by substantial evidence
reflecting the eight factors used to access customary and traditional
uses, particularly with regard to the factors concerning long-term
consistent pattern of local resource use and the community's pattern of
reliance upon a wide diversity of local resources for cultural,
economic, social and nutritional needs.
The Board adopted the Southcentral Regional Council's revised
[[Page 40462]]
recommendation to defer action on customary and traditional use
determinations for species other than moose, and for communities other
than Ninilchik, Seldovia, Nanwalek, and Port Graham. The Board also
adopted the Southcentral Regional Council's revised recommendation that
the communities of Ninilchik, Seldovia, Nanwalek, and Port Graham have
customary and traditional use of moose in Units 15(B) and 15(C). The
Board deferred the Southcentral Regional Council's recommendation
calling for positive customary and traditional use determinations for
moose in Unit 15(A) for the communities of Ninilchik and Seldovia
because use of this subunit by residents of Ninilchik and Seldovia is
extremely low. The aforementioned customary and use determinations are
found in the changes delineated for section ____.24.
Changes for the 1995-1996 Seasons and Bag Limit Regulations
The Regional Council also proposed Federal subsistence seasons for
the taking of moose on public lands in Unit 15. The Regional Council
recommendation was for an any-bull harvest season beginning August 10,
1995 and ending September 20, 1995. The Board, however, was persuaded
by the biological data concluding that recognized principles of fish
and wildlife conservation would be violated in that adverse impacts
would result to the moose population from any significant harvest of
bulls in the middle age categories. Since 1987, antler restrictions
have been a key part of the management efforts to rectify alarmingly
low bull:cow ratios in the Kenai Peninsula moose population. This
management regime has had positive effects, resulting in a dramatic
improvement in the moose population composition, allowing for longer
hunting seasons, larger animals being taken, and a larger overall
harvest. However, the gains could be reversed and conservation of a
healthy moose population jeopardized under an any-bull subsistence
harvest opportunity. The adverse impacts of an any-bull harvest could
also be detrimental to the satisfaction of subsistence opportunities
over the longer term. In addition, local wildlife biologists report
that the high snow fall of the 1994-95 winter has resulted in high
natural mortality, with virtually no recruitment into the spike-fork
age class of bull moose anticipated this coming year. The Board
therefore retained the antler restriction previously in effect as a
part of the subsistence seasons in Unit 15 to avoid adverse biological
consequences. The seasons and harvest limits are found in the changes
to section ____.25.
Regulations contained in this final rule will take effect on August
10, 1995. The Departments waived the 30-day effective date time period
for the final rule in order to provide the maximum opportunity for
public participation during the comment period following publication of
the proposed rule, while simultaneously allowing the hunting season to
start on August 10, 1995.
Applicability of Subparts A, B, and C
Subparts A, B, and C of the Subsistence Management Regulations for
Public Lands in Alaska, 50 CFR Secs. 100.1 to 100.24 and 36 CFR
Secs. 242.1 to 242.24, remain effective and apply to this proposed
rule. Therefore, all definitions located at 50 CFR Sec. 100.4 and 36
CFR Sec. 242.4 apply to regulations found in these subparts. The
identified sections include definitions for the following terms:
``Federal lands means lands and waters and interests therein title
to which is in the United States''; and ``public land or public lands
means lands situated in Alaska which are Federal lands, except--
(1) land selections of the State of Alaska which have been
tentatively approved or validly selected under the Alaska Statehood Act
and lands which have been confirmed to, validly selected by, or granted
to the Territory of Alaska or the State under any other provision of
Federal Law;
(2) land selections of a Native Corporation made under the Alaska
Native Claims Settlement Act which have not been conveyed to a Native
Corporation, unless any such selection is determined to be invalid or
is relinquished; and
(3) lands referred to in Section 19(b) of the Alaska Native Claims
Settlement Act.''
Public Review Process--Public Meetings and Analysis of Comments
Following publication of the proposed rule on May 9, 1995 (60 FR
24601), public meetings were held in Seldovia, Port Graham, Hope,
Cooper Landing, Soldotna, Homer, Ninilchik, and Anchorage. The
Southcentral Regional Council met in a public session on July 12, 1995,
to review the proposed rule and public comments and to develop a final
recommendation to the Board. The Board also met in a public session on
July 13, 1995, to review the comments and reach a final decision on the
proposed rule. During the 60-day comment period and in the months
preceding it, the Board received 183 written comments, numerous phone
calls, and one petition, in addition to oral testimony presented at the
various meetings which were attended by over 500 people. The comments
and testimony were overwhelmingly opposed to the proposed rule and the
rural designations on the Kenai Peninsula. Following is an analysis of
public comments:
A number of commentors indicated that their community's proposed
customary and traditional use determinations were in error,
particularly for some communities in Unit 15. As discussed above, the
Regional Council and Board have reexamined those determinations. The
final rule reflects revised customary and traditional use
determinations that comport with the best information available
relative to customary and traditional uses.
Some commentors felt that the moose season is being set too early
in the year. The weather is too warm and the meat will spoil before it
can be taken care of. This concern is not without merit, but the State
has used early seasons on a regular basis and, if harvested wildlife
are dressed immediately and kept cool, the meat can be prevented from
spoiling. A later season would expose rutting bulls to possible
overharvest and the meat of bulls in rut is not as palatable.
Two commentors suggested eliminating hunting seasons and initiating
a family harvest quota. If seasons were eliminated, hunting during the
summer could significantly increase the harvest of prime breeding
animals because of incomplete antler development; hunting during the
spring could put unwanted stress on the pregnant cows, possibly
reducing the calving rate. Existing regulations do allow the Board to
establish a family quota, community harvest system, or other
alternative harvest systems consistent with historic harvest patterns.
A family quota system was not part of the recommendation before the
Board in the current rulemaking. However, a proposal requesting this
type of system could be submitted this fall for Board consideration in
the next regulatory cycle.
Some commentors believed that the antler restrictions are not a
customary and traditional harvest practice and are a restriction on the
subsistence user. The Board recognizes that harvesting animals based on
antler restrictions is not a customary or traditional practice.
However, antler restrictions have been demonstrably effective in
improving the health of the Kenai Peninsula moose population, which
suffered from very low bull:cow ratios as recently as 1986.
[[Page 40463]]
These antler restrictions protect the continued opportunity for the
satisfaction of subsistence needs over the long term and provide more
meat for the subsistence user.
Some commentors believed that ANILCA requires that Federal lands be
closed to harvest by non-subsistence users before any restriction, such
as the antler restriction, is imposed on subsistence hunters. The Board
recognizes the responsibility to provide a meaningful priority for
subsistence uses over non-subsistence uses on the Federal public lands,
and that non-subsistence uses must be reduced or proscribed before
subsistence uses are limited. The Board determined that after a decade
and a half with no subsistence seasons, the Federal subsistence moose
season for Unit 15(B) and 15(C) on the Kenai Peninsula represents a
major advance in providing for subsistence uses. The subsistence moose
season adopted by the Board implements a subsistence priority in that
during the first ten days of the season, subsistence users exercise an
exclusive harvest opportunity on Federal public lands. This will result
in a significant reallocation of harvest toward subsistence users. Non-
Federally qualified subsistence users are restricted to entering
Federal lands to hunt moose ten days later under the State season
starting on August 20. The Federal and State seasons both end of
September 20, and both include the antler restriction, which is at the
center of management efforts to conserve a healthy moose population on
the Kenai Peninsula.
Many commentors believed that the rural priority unfairly
discriminates against non-rural residents. Sections 801(5), 802(1), and
803 of ANILCA confine the eligibility for qualifying for a subsistence
priority to rural Alaska residents. The Board is obligated to implement
the rural priority as mandated by Congress in ANILCA.
A large number of commentors believe that the communities of Hope,
Cooper Landing, Ninilchik, and other areas on the Peninsula with the
exception of Port Graham, Nanwalek, and possibly Seldovia are non-
rural. The issue of whether or not a community is rural or nonrural for
the purposes of Title VIII is beyond the scope of this rulemaking. The
Board will, however, in the future, reexamine these communities to
determine if their status should be changed. That effort will be widely
publicized and comments solicited from the public.
Two commentors indicated that they believed an economic analysis
should be completed for this rule. The economic impacts of this rule
are minimal, because there is no closure of Federal public lands to
non-Federally qualified users. Should it be necessary to close the
Federal lands to non-Federally qualified users, a more detailed
examination of the economic impacts will be completed.
A number of commentors were concerned about non-residents and part-
time summer residents, as well as new residents hunting under the
Federal Subsistence Management regulations. Federal regulations
prohibit anyone except Federally-qualified subsistence users from
hunting under the Federal Subsistence Management regulations. The
regulations define resident as ``any person who has his or her primary,
permanent home within Alaska and whenever absent . . . has the
intention of returning to it.'' These regulations automatically
disqualify nonresidents and part-time residents. They do provide the
opportunity for new residents moving permanently into a rural community
to adopt the practices of that community, including the subsistence
taking of fish and wildlife resources.
A few commentors felt that non-rural residents were discriminated
against because they had no representation on the Southcentral Regional
Council. The only requirement for membership on the Regional Council is
residency within the region. Applications are solicited annually with
the most qualified individuals, based on their knowledge of subsistence
uses and needs and their knowledge of other uses of fish and wildlife
resources, being recommended to the Secretaries for appointment.
Members of the Regional Councils represent their entire region.
Currently two members of the Southcentral Regional Council are from the
Kenai Peninsula.
A few individuals stated that there was inadequate opportunity for
public input. Recognizing the level of public concern and the
importance of this issue, the Board set a comment period that exceeded
60 days and held public hearings in 7 communities on the Kenai
Peninsula plus Anchorage. The hearings were held during the day and in
the evening, during the week and on the weekend to provide ample
opportunity for public comment.
Some commentors felt that the proposed regulations ignore the
purposes for which the Kenai National Wildlife Refuge was established
and that subsistence is not consistent with those purposes. The
purposes of the refuge as stated in Section 303 of ANILCA and the
Section 804 subsistence priority are not mutually exclusive.
Implementation of the subsistence priority does not prevent the Fish
and Wildlife Service from fulfilling its responsibility to manage the
Kenai Refuge according to the Section 303 purposes.
Many commentors indicated that the Federal government should not be
involved in management of fish and wildlife resources in Alaska. The
Secretaries and the Board agree that it is preferable for the State of
Alaska to manage the subsistence taking and use of fish and wildlife.
However, until such time as the State comes into compliance with Title
VIII, the Federal government must provide implementation of Title VIII
as directed by Congress.
Conformance with Statutory and Regulatory Authorities
National Environmental Policy Act Compliance
A Draft Environmental Impact Statement (EIS) that described four
alternatives for developing a Federal Subsistence Management Program
was distributed for public comment on October 7, 1991. That document
described the major issues associated with Federal subsistence
management as identified through public meetings, written comments and
staff analysis and examined the environmental consequences of the four
alternatives. Proposed regulations (Subparts A, B, and C) that would
implement the preferred alternative were included in the DEIS as an
appendix. The DEIS and the proposed administrative regulations
presented a framework for an annual regulatory cycle regarding
subsistence hunting and fishing regulations (Subpart D). The Final
Environmental Impact Statement (FEIS) was published on February 28,
1992.
Based on the public comment received, the analysis contained in the
FEIS, and the recommendations of the Federal Subsistence Board and the
Department of the Interior's Subsistence Policy Group, it was the
decision of the Secretary of the Interior, with the concurrence of the
Secretary of Agriculture, through the U.S. Department of Agriculture-
Forest Service, to implement a modified Alternative IV as identified in
the DEIS and FEIS (Record of Decision on Subsistence Management for
Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS
and the selected alternative in the FEIS defined the administrative
framework of an annual regulatory cycle for subsistence hunting and
fishing regulations. The final rule for Subsistence Management
Regulation for Public Lands in Alaska, Subparts A, B, and C (57 FR
22940-
[[Page 40464]]
22964) implements the Federal Subsistence Management Program and
includes a framework for an annual cycle for subsistence hunting and
fishing regulations.
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 appears in the
April 6, 1992, ROD which found that the Federal Subsistence Management
Program, under a modified Alternative IV with an annual process for
setting hunting and fishing regulations, had no significant possibility
of a significant restriction of subsistence uses.
Paperwork Reduction Act
These rules contain information collection requirements subject to
Office of Management and Budget (OMB) approval under 44 U.S.C. 3501-
3520. They apply to the use of public lands in Alaska. The information
collection requirements described above are approved by the OMB under
44 U.S.C. 3501 and have been assigned clearance number 1018-0075.
Public reporting burden for the permit(s) required by this document
is estimated to average .1382 hours per response, including time for
reviewing instructions, gathering and maintaining data, and completing
and reviewing the form. Direct comments on the burden estimate or any
other aspect of this form to: Information Collection Officer, U.S. Fish
and Wildlife Service, 1849 C Street, NW, MS 224 ARLSQ, Washington, DC
20240; and the Office of Management and Budget, Paperwork Reduction
Project (1018-0075), Washington, DC 20503. Additional information
collection requirements may be imposed if Local Advisory Committees
subject to the Federal Advisory Committee Act are established under
Subpart B. Such requirements will be submitted to OMB for approval
prior to their implementation.
This rule was not subject to OMB review under Executive Order
12866.
Economic Effects
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
includes small businesses, organizations or governmental jurisdictions.
The Departments have determined 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.
This rulemaking will impose no significant costs on small entities;
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 positive economic effect on a number of
small entities. The number of small entities affected is unknown; but,
the fact that the positive effects will be seasonal in nature and will,
in most cases, merely continue preexisting uses of public lands
indicates that they will not be significant.
These regulations do not meet the threshold criteria of
``Federalism Effects'' as set forth in Executive Order 12612. 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, these regulations have no
significant takings implication relating to any property rights as
outlined by Executive Order 12630.
Drafting Information
These regulations were drafted by William Knauer under the
guidance of Richard S. Pospahala, of the Office of Subsistence
Management, Alaska Regional Office, U.S. Fish and Wildlife Service,
Anchorage, Alaska. Additional guidance was provided by Thomas H. Boyd,
Alaska State Office, Bureau of Land Management; Sandy Rabinowitch,
Alaska Regional Office, National Park Service; John Borbridge, Alaska
Area Office, Bureau of Indian Affairs; and Ken Thompson, USDA-Forest
Service.
List of Subjects
36 CFR Part 242
Administrative practice and procedure, Alaska, Fish, National
Forests, Public Lands, Reporting and recordkeeping requirements,
Wildlife.
50 CFR Part 100
Administrative practice and procedure, Alaska, Fish, Public Lands,
Reporting and recordkeeping requirements, Wildlife.
For the reasons set out in the preamble, Title 36, Part 242, and
Title 50, Part 100, of the Code of Federal Regulations, are amended as
set forth below.
PART ____--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN
ALASKA
1. The authority citation for both 36 CFR Part 242 and 50 CFR Part
100 continues to read as follows:
Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C.
3551-3586; 43 U.S.C. 1733.
2. Section ____.24(a)(1) is amended in the table under ``Area,''
``Species,'' and ``Determination'' by removing the entry for ``Unit 15
(A) and (B),'' and two entries for ``Unit 15(C)'' for ``Moose'' and
adding the following new entries in their place to read as follows:
Sec. ____.24 Customary and traditional use determinations.
(a) * * *
(1) * * *
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Area Species Determination
------------------------------------------------------------------------
* * * *
* * *
Unit 15(A)........... Moose................ No subsistence.
Unit 15 (B) and (C).. Moose................ Residents of Ninilchik,
Seldovia, Nanwalek, and
Port Graham.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
3. Section ____.25(k)(15)(iii)(D) is amended in the table under
``Hunting'' by adding an entry for ``Moose'' after the entry for
``Black Bear'' to read as follows:
Sec. ____.25 Subsistence taking of wildlife.
* * * * *
(k) * * *
[[Page 40465]]
(15) * * *
(iii) * * *
(D) * * *
------------------------------------------------------------------------
Harvest limits Open season
------------------------------------------------------------------------
HUNTING:
* * * *
* * *
Moose:
Unit 15 (B) and (C)--1 antlered bull with Aug.10-Sept. 20.
spike-fork or 50-inch antlers or with 3
or more brow tines on either antler, by
Federal registration permit only.
Remainder of Unit 15...................... No open season.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
Dated: July 27, 1995.
Richard S. Pospahala,
Acting Chair, Federal Subsistence Board.
Dated: July 28, 1995.
Robert W. Williams,
Regional Forester, USDA--Forest Service.
[FR Doc. 95-19483 Filed 8-8-95; 8:45 am]
BILLING CODE 3410-11-M; 4310-55-M
