[Federal Register: August 5, 2002 (Volume 67, Number 150)]
[Rules and Regulations]               
[Page 50597-50600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Forest Service

36 CFR Part 242


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.


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.



    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 

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 
    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 


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 

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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