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[Federal Register Volume 66, Number 122 (Monday, June 25, 2001)]
[Rules and Regulations]
[Pages 33642-33645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15811]

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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 in-
season management actions 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. 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 closures and regulatory adjustments 
are effective June 3, 2001, through June 5, 2001, for District 1 alone 
and June 10, 2001, through June 12, 2001, for Districts 1 and 2. The 
Yukon River drainage closures are effective May 31, 2001, through July 
30, 2001, for District 1; June 3, 2001, through July 30, 2001, for 
District 2; and June 6, 2001, through July 30, 2001, for District 3.

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

[[Page 33643]]

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 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 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 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 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. 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 greatest chinook and chum salmon run strength in 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 River 
drainage. 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 while fishing for sheefish 
or pike, you must immediately release it. 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. Should the runs come in stronger than 
expected with spawning escapements and subsistence needs being met, the 
delegated field manager, as authorized by the Federal Subsistence 
Board, may remove this restriction.
    On June 1, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers initiated a 
second closure on Federal waters for the period from June 3, 2001, 
through June 5, 2001, in the Kuskokwim River drainage District 1 for 
the subsistence gillnet and fishwheel fisheries. This reduced the 
subsistence salmon fishing schedule to four days that week. In 
Kuskokwim River drainage District 1, fishing for whitefish, suckers and 
other non-salmon species during closed salmon fishing periods continues 
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 can 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 initiated a 
third closure on Federal waters for the period from June 10, 2001, 
through June 12, 2001, in the Kuskokwim River drainage Districts 1 and 
2 for the subsistence gillnet and fishwheel fisheries. In Kuskokwim 
River drainage District 1 and 2, fishing for whitefish, suckers and 
other non-salmon species during closed salmon fishing periods continues 
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 can be kept for subsistence uses.
    These regulatory actions are 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.

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

[[Page 33644]]

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 subsistence 
users (66 FR 32750, June 18, 2001). The effect of that action was 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 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 action was 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 escapements and 
subsistence needs being met, the delegated field manager, as authorized 
by the Federal Subsistence Board, 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.
    On May 31, 2001, the Federal Subsistence Board, acting through the 
delegated field official and in concert with ADF&G managers initiated a 
set of closures on Federal waters in Districts 1-3 of the Yukon River 
drainage for the subsistence fisheries. In Districts 1-3 the take of 
salmon is closed except for two 36-hour periods each week as follows. 
In Yukon River drainage District 1, salmon fishing is open for two 36-
hour periods per week from Thursday 8:00 p.m. through Saturday 8:00 
a.m. and Monday 8:00 p.m. through Wednesday 8:00 a.m. For District 2 
the open periods are from Sunday 8:00 p.m. through Tuesday 8:00 a.m. 
and Wednesday 8:00 p.m. through Friday 8:00 a.m. For District 3 the 
open periods are from Wednesday 8:00 p.m. through Friday 8:00 a.m. and 
Sunday 8:00 p.m. through Tuesday 8:00 a.m.
    This regulatory action is 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 reduced subsistence fishing schedules 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 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 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 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

[[Page 33645]]

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.

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: June 11, 2001.
Kenneth E. Thompson,
Subsistence Program Leader, USDA-Forest Service.
    Dated: June 12, 2001.
Peggy Fox,
Acting Chair, Federal Subsistence Board.
[FR Doc. 01-15811 Filed 6-22-01; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P
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