[Federal Register Volume 66, Number 211 (Wednesday, October 31, 2001)]
[Rules and Regulations]
[Pages 54931-54934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27341]


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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; Emergency Closures and Adjustments--Kuskokwim River Drainage

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

ACTION: Emergency closures and adjustments.

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SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management actions to protect chinook and chum salmon escapement 
in the Kuskokwim River drainage. These regulatory adjustments and the 
closures provide an exception to the Subsistence Management Regulations 
for Public Lands in Alaska, published in the Federal Register on 
February 13, 2001. Those regulations established seasons, harvest 
limits, methods, and means relating to the taking of fish and shellfish 
for subsistence uses during the 2001 regulatory year.

DATES: The fourth Kuskokwim River drainage closure and regulatory 
adjustment was effective June 17, 2001, through June 19, 2001, for 
Districts 1 and 2. The fifth Kuskokwim River drainage closure and 
regulatory adjustment was effective June 24, 2001, through June 26, 
2001, for Districts 1 and 2. The sixth Kuskokwim River drainage closure 
and regulatory adjustment was effective July 1, 2001, through July 10, 
2001, for Districts 1 and 2. The seventh Kuskokwim River drainage 
closure and regulatory adjustment was effective July 11, 2001, through 
July 31, 2001, for Districts 1 and 2. The eighth Kuskokwim River 
drainage closure and regulatory adjustment was effective July 27, 2001, 
through July 31, 2001, for Districts 1 and 2.

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 2001 fishing seasons, harvest limits, and methods and means 
were published on February 13, 2001, (66 FR 10142). 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 emergency closures (restricted subsistence fishing schedules) 
and adjustments were necessary because of predictions of extremely weak 
returns of chinook and chum salmon in the Kuskokwim River drainage. 
These

[[Page 54932]]

emergency actions are authorized and in accordance with 50 CFR 
100.19(d) and 36 CFR 242.19(d).

Kuskokwim River Drainage

    The Federal Subsistence Board, ADF&G, and subsistence users were 
very concerned that not enough chinook and chum salmon would be 
returning to the Kuskokwim River and its tributaries in 2001 to meet 
both spawning escapement objectives and subsistence needs. Adequate 
spawning escapement is necessary to assure sustaining the population. 
Last year, subsistence salmon harvests in the Kuskokwim River were 
among the lowest in the past 12 years. Returns of chinook and chum 
salmon have been extremely poor over the last 3 years. The expected low 
runs and poor spawning escapements in 2001 could jeopardize the 
viability of future returns. Federal and State biologists anticipated 
that the 2001 salmon returns would be critically low, and subsistence 
needs in some areas may not be met.
    The BOF met in January 2001 to review the status of salmon returns 
on the Kuskokwim River and identified Kuskokwim River chinook and chum 
salmon as stocks of concern. The BOF then took action to establish a 
salmon rebuilding plan for the Kuskokwim River. In addition, ADF&G 
indicated that no commercial fishing periods were being considered for 
June and July for the Kuskokwim River, that they intended to limit the 
sport fishery to one salmon per person per day, and that they would 
close the sport fishery for salmon in the entire Kuskokwim River 
drainage if the runs were weaker than expected. The ADF&G and U.S. Fish 
& Wildlife Service personnel conducted public meetings, produced 
information posters, and published news articles to let the local users 
know about concerns regarding the expected low salmon returns and 
advise them regarding the restrictions and closures to protect spawning 
escapement.
    On May 10, 2001, in public forum and after hearing testimony, the 
Federal Subsistence Board adopted the first emergency action closing 
the chinook and chum salmon fishery on Federal waters in the Kuskokwim 
River drainage to all users except Federally-qualified subsistence 
users. That closure was for 60 days (the maximum amount of time allowed 
under 50 CFR 100.19(d) and 36 CFR 242.19(d)) from June 1, 2001, to July 
30, 2001 (66 FR 32750, June 18, 2001). This is the period of the 
majority of chinook and chum salmon run passage through the river. The 
effect of that action was to close the sport take for chinook and chum 
salmon in the Kuskokwim River drainage within the boundaries of the 
Yukon Delta National Wildlife Refuge, within or adjacent to Denali 
National Park and Preserve, and within or adjacent to Lake Clark 
National Park and Preserve and to close subsistence harvest on those 
same waters by any residents living outside the Kuskokwim Fishery 
Management Area. Additionally, any chinook or summer chum salmon taken 
incidentally in another fishery must be released immediately. In other 
words, if you catch a chinook or chum salmon in Federal waters while 
fishing for sheefish or pike, you must immediately release it. Although 
commercial fisheries were closed and ADF&G indicated that an opening in 
June or July was highly unlikely, this action would prevent any such 
opening from occurring on Federal waters. Should the runs have come in 
stronger than expected with spawning escapements and subsistence needs 
being met, the delegated field manager, as authorized by the Federal 
Subsistence Board, could have removed this restriction.
    On June 1, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
Kuskokwim River Salmon Management Working Group (KRSMWG), initiated a 
second closure on Federal waters for the period from June 3, 2001, 
through June 5, 2001, in the Kuskokwim Area District 1 for the 
subsistence gillnet and fishwheel fisheries (66 FR 33642, June 25, 
2001). This reduced the subsistence salmon fishing schedule to four 
days that week. In Kuskokwim Area District 1, fishing for whitefish, 
suckers and other non-salmon species during closed salmon fishing 
periods continued to be allowed seven days per week with gillnets of 4 
inches or less stretch mesh that are 60 feet or less in length. Salmon 
caught incidentally in those nets could be kept for subsistence uses.
    On June 8, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
KRSMWG initiated a third closure on Federal waters for the period from 
June 10, 2001, through June 12, 2001, in the Kuskokwim Area Districts 1 
and 2 for the subsistence gillnet and fishwheel fisheries (66 FR 33642, 
June 25, 2001). In Kuskokwim Area District 1 and 2, fishing for 
whitefish, suckers and other non-salmon species during closed salmon 
fishing periods continued to be allowed seven days per week with 
gillnets of 4 inches or less stretch mesh that are 60 feet or less in 
length. Salmon caught incidentally in those nets could be kept for 
subsistence uses.
    On June 14, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
KRSMWG initiated a fourth closure on Federal waters for the period from 
June 17, 2001, through June 19, 2001, in the Kuskokwim Aera Districts 
1and 2 for the subsistence gillnet and fishwheel fisheries. In 
Kuskokwim Area District 1 and 2, fishing for whitefish, suckers and 
other non-salmon species during closed salmon fishing periods continued 
to be allowed seven days per week with gillnets of 4 inches or less 
stretch mesh that are 60 feet or less in length. Salmon caught 
incidentally in those nets could be kept for subsistence uses.
    On June 22, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
KRSMWG initiated a fifth closure on Federal waters for the period from 
June 24, 2001, through June 26, 2001, in the Kuskokwim Area Districts 
1and 2 for the subsistence gillnet and fishwheel fisheries. This action 
was necessary due to continued low returns. In Kuskokwim Area District 
1 and 2, fishing for whitefish, suckers and other non-salmon species 
during closed salmon fishing periods continued to be allowed seven days 
per week with gillnets of 4 inches or less stretch mesh that are 60 
feet or less in length. Salmon caught incidentally in those nets could 
be kept for subsistence uses.
    On June 28, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
KRSMWG initiated a sixth closure (Sunday through Tuesday of each week) 
on Federal waters for the period from July 1, 2001, through July 10, 
2001, in the Kuskokwim Area Districts 1 and 2 for the subsistence 
gillnet and fishwheel fisheries. This action was necessary due to 
continued low returns. In Kuskokwim Area District 1 and 2, fishing for 
whitefish, suckers and other non-salmon species during closed salmon 
fishing periods continued to be allowed seven days per week with 
gillnets of 4 inches or less stretch mesh that are 60 feet or less in 
length. Salmon caught incidentally in those nets could be kept for 
subsistence uses.
    On July 10, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
KRSMWG initiated a seventh closure (Friday through Tuesday of each 
week) on Federal waters for the period from July 11, 2001, through July 
10, 2001, in the Kuskokwim Area Districts 1and 2 for the subsistence 
gillnet and fishwheel

[[Page 54933]]

fisheries. This action was necessary due to continued low returns. In 
Kuskokwim Area District 1 and 2, fishing for whitefish, suckers and 
other non-salmon species during closed salmon fishing periods continued 
to be allowed seven days per week with gillnets of 4 inches or less 
stretch mesh that are 60 feet or less in length. Salmon caught 
incidentally in those nets could be kept for subsistence uses.
    On July 25, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers and the 
KRSMWG initiated an eighth action (establishing four days of each week) 
on Federal waters for the period from July 27, 2001, through July 31, 
2001, in the Kuskokwim Area Districts 1and 2 for the subsistence 
gillnet and fishwheel fisheries. In Kuskokwim Area District 1 and 2, 
fishing for whitefish, suckers and other non-salmon species during 
closed salmon fishing periods continued to be allowed seven days per 
week with gillnets of 4 inches or less stretch mesh that are 60 feet or 
less in length. Salmon caught incidentally in those nets could be kept 
for subsistence uses.
    These regulatory actions were necessary to assure the continued 
viability of the chinook and chum salmon runs and provide a long-term 
subsistence priority during a period of limited harvest opportunity. 
These closures and adjustments brought the Federal subsistence fishing 
regulations in line with the similar ADF&G action for unified 
management and minimized confusion under the dual management system.
    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) 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) 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 adjustment and emergency closures 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 guides and boat, fishing tackle, 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 adjustment and emergency 
closures will not have a significant economic effect on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act.
    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 
and emergency closures 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 adjustment and 
emergency closures 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 and emergency 
closures 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 adjustment and 
emergency closures 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,

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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: October 4, 2001.
Kenneth E. Thompson,
Subsistence Program Leader, USDA-Forest Service.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
[FR Doc. 01-27341 Filed 10-30-01; 8:45 am]
BILLING CODE 3410-11-P and 4310-55-P