[Federal Register: June 21, 2002 (Volume 67, Number 120)]
[Rules and Regulations]               
[Page 42185-42187]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn02-3]                         

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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--Copper River and Yukon and Kuskokwim 
River Drainages

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-
seaon management actions to protect salmon escapement in the Yukon and 
Kuskokwim River drainages and in the Copper River, while still 
providing for a subsistence harvest opportunity. The regulatory 
adjustments, fishing schedules, and closures will provide an exception 
to the Subsistence Management Regulations for Public Lands in Alaska, 
published in the Federal Register on February 7, 2002. Those 
regulations established seasons, harvest limits, methods, and means 
relating to the taking of fish and shellfish for subsistence uses 
during the 2002 regulatory year.

DATES: The Kuskokwim and Yukon River drainages action is effective May 
20, 2002, through February 28, 2003. The Copper River action is 
effective May 15, 2002, through July 13, 2002.

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 Ken 
Thompson, 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

[[Page 42186]]

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 2002 fishing 
seasons, harvest limits, and methods and means were published on 
February 7, 2002, (67 FR 5890). 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 
of as provided by Title VIII of ANILCA. In providing this priority, the 
Board may, when necessary, preempt State harvest regulations for fish 
and wildlife on Federal lands and waters.
    These adjustments (including restricted subsistence fishing 
schedules) are necessary because of predictions of potentially weak 
returns of chinook, summer-run chum, and fall-run chum salmon in the 
Yukon River drainage, poor runs of chinook and chum salmon in the 
Kuskokwim River drainage, and the need to manage the sockeye salmon run 
in the Chitina Subdistrict of the Cooper 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).

Yukon and Kuskokwim River Drainages

    Returns of salmon to the Yukon and Kuskokwim Rivers have been very 
low in recent years. With the poor runs, a considerable number of in-
season fishery management actions have been necessary. In the Yukom 
River during the 2001 season, 27 Special Actions were initiated by the 
Federal manager, 26 of these were identical to the State's Emergency 
Order (EO) actions. There were an additional eight Special Actions for 
the Kuskokwim River during the 2001 season. Seven of these were 
identical to the State's EO actions. In both river systems, most of 
these EO's involved setting fishing schedules or revising methods of 
harvest that protected spawning escapement while still allowing a 
subsistence harvest opportunity.
    The past two years of active Federal fisheries management have 
provided an opportunity for the Federal Program to evaluate its 
approach to enacting Special Actions in concert with the State's EO 
process. Past procedures required that each change in the fishing 
schedule take place by Special Action. This resulted in some confusion 
by various user groups and placed significant administrative and 
financial burden on the Federal Program, including excessive and 
frequently outdated publication of notices in the Federal Register.
    A streamlined approach was suggested by the regional Federal 
fisheries managers and reviewed by the three affected Regional Councils 
during their Winter 2002 meetings. The three Regional Councils were 
very supportive of such an approach. The Board, in public forum and 
after hearing testimony, considered and adopted, at its May 2002 
meeting, a temporary action whereby State EO's would apply to Federal 
waters in instances where the State and Federal managers are in 
agreement. The action provides that for the Yukon and Kuskokwim River 
drainages, Federal subsistence fishing schedules, openings, closings, 
and fishing methods will be the same as those issued for the 
subsistence taking of fish under Alaska Emergency Orders (5 AAC 
16.05.060), unless superseded by a Federal Special Action. Upon 
completion of the 2002 fishing season, this administrative streamlining 
approach will be evaluated and consideration given to including this as 
a statewide provision in the annual Federal subsistence fishing 
regulations.

Copper River--Chitina Subdistrict

    In December 2001, the Board adopted regulatory proposals 
establishing a new Federal subsistence fishery in the Chinita 
Subdistrict of the Copper River. This fishery is open to Federally 
qualified users having customary and traditional use of salmon in this 
Subdistrict. The State also conducts a subsistence fishery in this 
Subdistrict that is open to all Alaska residents.
    Management of the fishery is based on the numbers of salmon 
returning to the Copper River. A larger than predicted salmon run will 
allow additional fishing time. A smaller than predicted run will 
require restrictions to achieve upriver passage and spawning escapement 
goals. A run that approximates the pre-season forecast will allow 
fishing to proceed similar to the pre-season schedule with some 
adjustments made to fishing time based on in-season data. Adjustments 
to the preseason schedule are expected as a normal function of an 
abundance-based management strategy. State and Federal managers, 
reviewing and discussing all available in-season information, will make 
these adjustments.
    While Federal and State regulations currently differ for this 
Subdistrict, the Board indicated that Federal in-season management 
actions regarding fishing periods were expected to mirror State actions 
for the 2002 season. The State established a preseason schedule of 
allowable fishing periods based on daily projected sonar estimates. 
This preseason schedule is intended to distribute the harvest 
throughout the salmon run and provide salmon for upriver subsistence 
fisheries and the spawning escapement. State and Federal subsistence 
fisheries in this Subdistrict close simultaneously by regulation on 
September 30, 2002. No deviation from this date is anticipated.
    By Special Action, the State preseason schedule is adopted for the 
Federal subsistence fishery. This Special Action delays the opening for 
the taking of salmon in the Chitina Subdistrict of the Copper River and 
replaces that date with a fishing schedule starting June 7, 2002. 
Separate openings would each week until July 11, 2002, when continuous 
fishing would be allowed until the regularly scheduled end of the 
season (September 30, 2002.)
    The Board finds that additional public notice and comment 
requirements under the Administrative Procedure Act (APA) for these 
emergency closures 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,

[[Page 42187]]

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 wilflife 
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 be some local impacts on 
subsistence users, but the program is not likely to significant 
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 adjustment have been exempted from OMB review under Executive 
Order 12866.
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 501 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 Department certify that the adjustments will not have a significant 
economic effect on a substantial number of small entities within the 
measuring of the Regulatory Flexibility Act. Under the Small Business 
Regulatory Enforcement 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 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 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 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

    William Knauer 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; Ida Hildebrand, Alaska 
Regional Office, Bureau of Indian Affairs; and Ken Thompson, 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: May 28, 2002.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
Kenneth E. Thompson,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 02-15735 Filed 6-20-02; 8:45 am]
BILLING CODE 3410-11-M; 4310-55-M