[Federal Register Volume 69, Number 149 (Wednesday, August 4, 2004)]
[Rules and Regulations]
[Pages 46999-47001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17753]
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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
Subsistence Management Regulations for Public Lands in Alaska,
Subpart D; Seasonal Adjustments--Unalakleet River Adjustment
AGENCIES: Forest Service, USDA; Fish and Wildlife Service, Interior.
ACTION: Seasonal adjustments.
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SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management actions to protect chinook salmon escapement in the
Unalakleet River, while still providing subsistence harvest
opportunities for other fish. The fishing method restrictions will
provide an exception to the Subsistence Management Regulations for
Public Lands in Alaska, published in the Federal Register on February
3, 2004. Those regulations established seasons, harvest limits,
methods, and means relating to the taking of fish and shellfish for
subsistence uses during the 2004 regulatory year.
DATES: The fishing method change for the Unalakleet River, Norton Sound
District, Subdistrict 6, is effective July 10, 2004, through August 1,
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 Manager, USDA--Forest Service, Alaska
Region, telephone (907) 786-3592.
SUPPLEMENTARY INFORMATION:
Background
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 fishing seasons, harvest limits, and methods and means
were published on February 3, 2004, (69 FR 5018).
Because this action 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.
[[Page 47000]]
The Alaska Department of Fish and Game (ADF&G), under the direction
of the Alaska 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
Board may, when necessary, preempt State harvest regulations for fish
or wildlife on Federal lands and waters.
These adjustments are necessary because of the need to maintain the
viability of chinook salmon stocks in the Unalakleet River based on in-
season run assessments. These actions are authorized and in accordance
with 50 CFR 100.19(d-e) and 36 CFR 242.19(d-e).
Unalakleet River--Norton Sound District, Subdistrict 6
This seasonal adjustment closes the Federal Waters of the
Unalakleet River to the use of all subsistence fishing methods except
for beach seining. The retention of chinook salmon is prohibited. If
chinook salmon are incidentally taken by beach seine while subsistence
users are harvesting other species, they must be immediately released
unharmed to the water.
Salmon migrations in to the Norton Sound rivers began early this
season. Chinook salmon at the Unalakleet River have now been entering
the river for over three weeks. The passage rate at both the Unalakleet
Test Net and at the North River Tower has been slow and unsteady. Other
salmon species have shown advanced migration timing as well. This
raises the likelihood of the escapement attaining less than 60% of the
lower end of the escapement goal range. Given the historical record of
the migration passage at both the test net and the tower, the migration
past the tower is now at the 75th percentile point. The total passage
at the tower would have to double in the next few days to reach the
midpoint of the escapement goal range.
The pink salmon return is quite strong, currently on track as the
third strongest since statehood. Chum salmon are expected to reach the
lower limit of their escapement goal range. These stocks can support
harvest and will help to offset this conservation closure that
prohibits the retention of chinook salmon. The special action will be
lifted when coho salmon reach the Federal Waters and the chinook salmon
harvest is no longer a concern.
Federally qualified users of the Unalakleet River are not expected
to be significantly impacted by this action because this action will
allow the favored method of subsistence pink salmon harvest, beach
seining, to continue while closing the subsistence harvest methods most
likely to cause chinook salmon mortality.
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 conservation measures could
seriously affect the continued viability of fish populations, adversely
impact future 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 boat, fishing gear, 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 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.
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
[[Page 47001]]
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. 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 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: July 26, 2004.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board, Fish and Wildlife Service.
Dated: July 22, 2004.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 04-17753 Filed 8-3-04; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P