[Federal Register: August 4, 2004 (Volume 69, Number 149)]
[Rules and Regulations]               
[Page 46999-47001]
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 Adjustments--Unalakleet River Adjustment

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

ACTION: Seasonal adjustments.


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, 

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.



    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 

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 
    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]