[Federal Register Volume 71, Number 243 (Tuesday, December 19, 2006)]
[Rules and Regulations]
[Pages 75883-75885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9761]
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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--Tustumena Lake
AGENCIES: Forest Service, USDA; Fish and Wildlife Service, Interior.
ACTION: Seasonal adjustment.
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SUMMARY: This provides notice of the Federal Subsistence Board's action
to provide winter subsistence harvest opportunities for lake trout,
Dolly Varden, and rainbow trout in Tustumena Lake. The fishing
opportunity in Tustumena Lake provides an exception to the Subsistence
Management Regulations for Public Lands in Alaska, published in the
Federal Register on March 29, 2006. Those regulations established
seasons, harvest limits, methods, and means relating to the taking of
fish and shellfish for subsistence uses during the 2006 regulatory
year.
DATES: This Board action is effective November 17, 2006, through March
31, 2007.
FOR FURTHER INFORMATION CONTACT: Peter J. Probasco, 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 2006 fishing seasons, harvest limits, and methods and means
were published on March 29, 2006 (71 FR 15569). 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.
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.
Current Management Actions
These actions are authorized and in accordance with 50 CFR
100.19(d-e) and 36 CFR 242.19(d-e).
Tustumena Lake
The Ninilchik Traditional Council requested a special winter
subsistence fishery through the ice in Tustumena Lake. The Southcentral
Alaska Regional Advisory Council recommended adopting this seasonal
adjustment with minor modifications during their fall 2006 meeting. The
Board met in public work session on November 16-17, 2006, during which
it took up and approved this request with modifications. The resulting
seasonal adjustment will expire March 31, 2007.
The season adjustment provides for the take of fish in Tustumena
Lake using a single gillnet not to exceed 10 fathoms fished under the
ice or jigging gear used through the ice, under authority of a Federal
subsistence fishing permit. The total annual harvest quota for this
fishery is 200 lake trout, 200 rainbow trout, and 500 Dolly Varden.
Gillnets are not allowed within \1/4\ mile of any tributary or outlet
stream of Tustumena Lake. All harvests must be reported to the Federal
fisheries manager within 72 hours upon leaving the fishing location.
Gill nets must be checked at least once in every 48-hour period.
Incidentally caught fish may be retained and must be recorded on the
permit. When a harvest quota for any of the three species is reached,
the gillnet fishery will be closed.
This fishery, along with ongoing existing fisheries, is within
[[Page 75884]]
recommended sustainable harvest guidelines based upon currently
available information.
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 this
adjustment is impracticable, unnecessary, and contrary to the public
interest. Lack of appropriate and immediate measures could adversely
impact 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 this action
and pursuant to 5 U.S.C. 553(d)(3) to make this rule effective as
indicated in the DATES section.
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, published May 29, 1992),
implemented the Federal Subsistence Management Program and included a
framework for an annual cycle for subsistence hunting and fishing
regulations. An environmental assessment related to expansion of
jurisdiction for fisheries was prepared in November 1998. 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 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 information collection requirements contained in this seasonal
adjustment have been approved by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and assigned OMB control number 1018-0075, which expires October
31, 2009. 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
This seasonal 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 boat, fishing gear, and gasoline 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 the 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 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 certain public lands. Likewise, the adjustment
has no potential takings of private property implications as defined by
Executive Order 12630.
The Service has determined and certifies 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 Service has 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 significant direct 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 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
Bill Knauer 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. Chuck
Ardizzone, Alaska State Office, Bureau of Land Management; Jerry Berg,
Alaska Regional Office, U.S. Fish and Wildlife Service; Nancy Swanton,
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.
[[Page 75885]]
Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C.
3551-3586; 43 U.S.C. 1733.
Dated: December 1, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
Dated: December 1, 2006.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 06-9761 Filed 12-18-06; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P