[Federal Register Volume 67, Number 150 (Monday, August 5, 2002)]
[Rules and Regulations]
[Pages 50597-50600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19620]
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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, Afognak Bay,
Southeastern Alaska Rivers
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-
season management actions to protect sockeye salmon escapement in
Afognak Lake and in the Copper River, while still providing for a
subsistence harvest opportunity. It also suspends the coho harvest
regulations for three rivers in Southeastern Alaska where there are
legal uncertainties and a possible conflict with an international
treaty. The 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
[[Page 50598]]
shellfish for subsistence uses during the 2002 regulatory year.
DATES: The Afognak Bay action is effective June 13, 2002, through
August 12, 2002. The second Copper River action is effective June 2,
2002, through July 31, 2002. The third Copper River action is effective
June 8, 2002, through August 7, 2002. The fourth Copper River action is
effective June 13, 2002, through August 12, 2002. The fifth Copper
River action is effective June 20, 2002, through August 12, 2002. The
sixth Copper River action is effective June 29, 2002, through August
28, 2002. The seventh Copper River action is effective July 8, 2002,
through September 7, 2002. The eighth Copper River action is effective
July 10, 2002, through August 31, 2002. The suspension of the coho
harvest for the Stikine Taku and Alsek Rivers is effective July 10,
2002, through February 28, 2003.
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 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
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 (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 Copper 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).
Afognak Bay
The 2002 return of sockeye salmon to the Afognak River drainage is
one of the lowest observed since 1986. Current weir counts and run
timing allow managers to project that the total escapement may be
substantially below the minimum escapement goal of 40,000 fish. In
response to this poor return at this time, the Alaska Department of
Fish and Game (ADF&G) has closed the State sport, commercial, and
subsistence fisheries targeting sockeye salmon within Afognak Bay
waters. After consultation with subsistence users and ADF&G managers,
closure of the Federal subsistence seine and gill net fishery for
salmon within the Afognak Bay waters of the Alaska Maritime National
Wildlife Refuge is the responsible course of action as all remaining
sockeye salmon entering Afognak Bay are required to achieve spawning
escapement goals. Subsistence fishing with rod and reel for all species
except sockeye salmon continues to be permitted. This closure action is
taken to ensure the conservation of the Afognak River sockeye salmon
stock.
Copper River--Chitina Subdistrict
In December 2001, the Board adopted regulatory proposals
establishing a new Federal subsistence fishery in the Chitina
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
[[Page 50599]]
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.
Special Actions 2--8, adopted the changing State preseason schedule
for the Federal subsistence fishery, adjusting the weekly or daily
harvest period to protect the sockeye salmon run or to provide
additional harvest opportunity as more fish entered the river. Each
Special Action superseded the previous one. Continuous fishing with no
additional adjustments is presently anticipated until the regularly
scheduled end of the season (September 30, 2002.)
Southeastern Alaska Rivers
In December 2001, the Federal Subsistence Board adopted a proposal
that established regulations for the taking of coho salmon throughout
Southeast Alaska including on the Stikine, Taku and Alsek Rivers. The
salmon resources on these three transboundary rivers are managed under
the auspices of the Pacific Salmon Treaty (PST), an agreement for
management of salmon stocks that are harvested by both the United
States and Canada. The most recent agreement (the 1999 PST Revised
Annexes) negotiated by the Pacific Salmon Commission, the
administrative and management authority of the PST, has been
interpreted as prohibiting the establishment of new fisheries until
abundance based management plans are developed. There are legal
uncertainties regarding the exact relationship of Title VIII of ANILCA
to the PST and whether these fisheries are a matter of domestic
allocation or constitute new fisheries. Action by the Federal
Subsistence Board in December 2001 to establish a subsistence fishery
in the transboundary rivers may violate the principles in Annex IV,
Chapter 1 of the PST. The Board, therefore, acted to suspend the
harvest for the remainder of the regulatory year for that portion of
the requirements (50 CFR 100.27(i)(13)(vi) and 36 CFR
242.27(i)(13)(vi)) that allows a subsistence coho salmon fishery within
the three transboundary rivers. The Board will continue to work within
established international protocols through the PSC and the
Transboundary Panel to provide future subsistence fisheries in these
three transboundary rivers.
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, 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 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; 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 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.
[[Page 50600]]
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 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
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: July 16, 2002.
Kenneth E. Thompson,
Subsistence Program Leader, USDA-Forest Service.
Dated: July 17, 2002.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
[FR Doc. 02-19620 Filed 8-2-02; 8:45 am]
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