[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32750-32752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15284]


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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 and Yukon 
River Drainages

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 
emergency closures to protect chinook and chum salmon escapement in the 
Kuskokwim River drainage and chinook and summer-run chum salmon 
escapement in the Yukon River drainage. The Board included authority 
for the Federal in-season managers to lift these restrictions if salmon 
run strengths are higher than predicted and conservation and 
subsistence needs are likely to be met. This also provides notice of 
the Board's action to remove an unneeded requirement for the removal of 
the dorsal fin of chinook taken for subsistence purposes in a portion 
of the Yukon River. This regulatory adjustment 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 Kuskokwim River drainage closure and the Yukon River 
drainage regulatory adjustment and closure are effective June 1, 2001, 
through July 30, 2001.

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 and adjustments are necessary because of 
predictions of extremely weak returns of chinook and chum salmon in the 
Kuskokwim River drainage and of chinook and summer-run chum salmon in 
the Yukon River drainage. These 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 are 
concerned that not enough chinook and chum salmon will be returning to 
the Kuskokwim River and its tributaries in 2001 to meet spawning 
escapement objectives or 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 three years. The expected low runs 
and poor spawning escapements in 2001 could jeopardize the viability of 
future returns. Federal and State Biologists anticipate that the 2001 
salmon returns will 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 has 
indicated that no commercial fishing periods are being considered for 
June and July for the Kuskokwim River, that they intend to limit the 
sport fishery to one salmon per person per day, and that they may close 
the sport fishery for salmon in the

[[Page 32751]]

entire Kuskokwim River drainage if the runs are as weak as expected. 
The ADF&G biologists and U.S. Fish & Wildlife Service personnel have 
been conducting public meetings, producing information posters, and 
publishing 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 an emergency action closing the 
chinook and chum salmon fishery on Federal waters in the Kuskokwim 
River drainage to all users except those Federally-qualified 
subsistence users. The closure is 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. This is the period of the greatest chinook and 
chum salmon run strength in the river. The effect of that action is 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 River drainage. Although commercial fisheries are 
currently closed and ADF&G has indicated that an opening in June or 
July is highly unlikely, this action would prevent any such opening 
from occurring on Federal waters. Additionally, any chinook or chum 
salmon taken incidentally in another fishery must be released 
immediately. In other words, if you catch a chinook or chum salmon 
while fishing for sheefish or pike, you must immediately release it. 
This regulatory action is necessary to assure the continued viability 
of the chinook and chum salmon runs and provide a subsistence priority 
during a period of limited harvest opportunity. Should the runs come in 
stronger than expected with spawning escapement and subsistence needs 
being met, the delegated field manager may remove this restriction.

Yukon River Drainage

    Returns of chinook and summer chum salmon to the Yukon River are 
again expected to be at or below the record lows of 2000. Very low 
catches of chinook and chum salmon were reported by many subsistence 
fishermen in 2000. Chinook and summer chum salmon escapement monitoring 
projects in 2000 showed that the returns of these species were very 
weak throughout most of the Yukon River drainage. Federal and State 
Managers and most subsistence users in the region have strong concerns 
that not enough chinook or summer chum salmon will reach their spawning 
grounds in 2001. There are similar concerns that subsistence needs in 
some areas may not be met.
    At their January 2001 meeting, the BOF identified the Yukon River 
chinook and chum salmon as stocks of concern and for the first time 
implemented a reduced subsistence fishing schedule due to conservation 
concerns. In addition, ADF&G has indicated that any commercial fishing 
periods are highly unlikely for the Yukon River and that they may close 
the sport fishery for chinook salmon if the runs are weak. The ADF&G 
biologists and U.S. Fish & Wildlife Service personnel have been 
conducting public meetings, producing information posters, and 
publishing 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 an emergency action closing the 
chinook and summer chum salmon fishery on all Federal waters in the 
Yukon River drainage 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, to all users except those Federally-qualified. The effect of 
that action is to close the sport take for chinook and summer chum 
salmon on Federal waters in the Yukon River drainage and to close 
subsistence harvest on those same waters by any residents living 
outside the Yukon River drainage or the community of Stebbins. Although 
Yukon River commercial salmon fisheries are currently closed and ADF&G 
has indicated that an opening is highly unlikely, this action would 
prevent any such opening from occurring on Federal waters. 
Additionally, any chinook or summer chum salmon taken incidentally to 
another fishery must be released immediately. In other words, if you 
catch a chinook or chum salmon while fishing for sheefish or pike, you 
must immediately release it.
    This action is necessary to assure the continued viability of the 
chinook and summer chum salmon runs and to provide a subsistence 
priority during a period of limited harvest opportunity. Should the 
runs come in stronger than expected with spawning escapement and 
subsistence needs being met, the delegated field manager may remove 
this restriction. Additionally, with no commercial harvest scheduled or 
expected for the 2001 season, the requirement found at 50 CFR 
100.27(i)(3)(xxi) and 36 CFR 242.27(i)(3)(xxi) to remove the dorsal fin 
of subsistence-caught chinook salmon becomes an unnecessary burden upon 
the subsistence user. The Board therefore temporarily suspended this 
requirement during the same period as the closure.
    The Board finds that additional public notice and comment 
requirements under the Administrative Procedures 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 June 1, 2001.

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

[[Page 32752]]

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 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 
under the definition in this Act . 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), E.O. 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.

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 30, 2001.
Kenneth E. Thompson,
Subsistence Program Leader, USDA-Forest Service.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
[FR Doc. 01-15284 Filed 6-15-01; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P