[Federal Register Volume 67, Number 120 (Friday, June 21, 2002)]
[Rules and Regulations]
[Pages 42185-42187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15735]
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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