[Federal Register: June 28, 2004 (Volume 69, Number 123)]
[Rules and Regulations]               
[Page 36016-36018]
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

Subsistence Management Regulations for Public Lands in Alaska, 
Subpart D; Seasonal Adjustment--Afognak Bay

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

ACTION: Seasonal adjustment.


SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management action of closure for the Federal subsistence salmon 
fisheries in Afognak Bay. This action provides 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 Afognak Bay closure is effective June 12, 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 Leader, USDA--Forest Service, Alaska 
Region, telephone (907) 786-3592.



    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 2003 fishing seasons, harvest limits, and methods and means 
were published on February 12, 2003 (68 FR 7276). Because this rule 
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

[[Page 36017]]

fish or wildlife on Federal lands and waters.
    These adjustments are necessary because of the need to maintain the 
viability of salmon stocks in Afognak Bay 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).

Afognak Bay

    The strength of the Afognak Lake (Litnik) sockeye salmon run is 
determined by fish weir counts in the Afognak River and the estimated 
relative abundance of fish within the inner portion of Afognak Bay. All 
data and other relevant information indicate that to date the 2004 
sockeye salmon escapement counts (5,854 fish) to the Afognak River 
drainage total 26 percent of the 9-year average (22,426 fish). The 
desired sockeye salmon escapement for this date would range from 9,267 
to 13,900 fish. Total escapement is not expected to meet the lower end 
of the escapement goal (40,000 fish). In response to poor 2004 
escapement numbers, at this time the Alaska Department of Fish and Game 
(ADF&G) has closed the Afognak Bay waters to sport and State 
subsistence fishery users targeting sockeye salmon. After consultation 
with subsistence users and ADF&G managers, closure of this Federally 
regulated subsistence fishery is the responsible course of action at 
this time, because all remaining sockeye salmon entering Afognak Bay 
are essential to achieve spawning escapement goals. This action is 
taken to ensure the conservation of the Afognak River sockeye salmon 
stock. Sockeye salmon escapement status into Afognak River will 
continue to be monitored by ADF&G on a daily basis. Should sockeye 
salmon escapement numbers show a significant increase suggesting 
escapement goals may be reached, the Federally regulated subsistence 
fishery for sockeye salmon may be reopened in this area.
    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 and 
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, 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 information 
collection requirements subject to Office of Management and Budget 
(OMB) approval under the Paperwork Reduction Act of 1995.

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; however, 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 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

[[Page 36018]]

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. 
Dennis Tol, 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: June 9, 2004.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: June 9, 2004.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 04-14555 Filed 6-25-04; 8:45 am]