[Federal Register: December 19, 2006 (Volume 71, Number 243)]
[Rules and Regulations]               
[Page 75883-75885]
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--Tustumena Lake

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

ACTION: Seasonal adjustment.


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 

DATES: This Board action is effective November 17, 2006, through March 
31, 2007.

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 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]