[Federal Register: February 27, 2002 (Volume 67, Number 39)]
[Rules and Regulations]               
[Page 8891-8892]
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; Emergency Action--Klawock River and Lake

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

ACTION: Emergency action.


SUMMARY: This provides notice of the Federal Subsistence Board's in-
season management action to protect coho salmon escapement in the 
Klawock River and Lake. This regulatory adjustment provides 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: This closure is effective November 2, 2001, through December 31, 

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 provides 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.
    This emergency action was necessary because of predictions of low 
returns of coho salmon in the Klawock River and Lake. This emergency 
action is authorized and in accordance with 50 CFR 100.19(d) and 36 CFR 

Klawock River and Lake

    To date, the total return has been 4,381 coho salmon. This 
represents approximately 75% of the escapement objective of 6,000 coho 
salmon. Coho salmon are still entering the system and have been seen in 
the system as late as February. Fishing pressure at this time is low. 
Along with an Emergency Order issued by the Alaska Department of Fish 
and Game closing sport fishing, reducing the daily harvest coho salmon 
while conserving stocks needed to reach spawning escapement goals.
    On November 2, 2001, the Federal Subsistence Board, acting through 
the delegated field official, initiated a coho salmon action reducing 
the daily harvest limit to two fish in the Klawock River and Lake for 
the period from November 2, 2001, through December 31, 2001. This 
action was necessary due to low coho salmon returns.
    This regulatory action was necessary to assure the continued 
viability of the coho salmon runs and provide a long-term subsistence 
priority during a period of limited harvest opportunity.
    The Board finds that additional public notice and comment 

[[Page 8892]]

under the Administrative Procedure Act (APA) for this emergency closure 
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 this action and pursuant to 5 U.S.C. 553(d) to make this 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 

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 oft he 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 emergency closure does not contain information collection 
requirements subject to Office of Management and Budget (OMB) approval 
under the Paperwork Reduction Act of 1995.

Other Requirements

    The emergency closure has 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 business, 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. 
The Departments certify that the emergency closure 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 emergency 
closure has no potential takings of private property implications as 
defined by Executive Order 12630.
    The Servicer has determined and certifies pursuant to the Unfunded 
Mandates Reform Act, 2 U.S.C. 1502 et seq. that the emergency closure 
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 emergency closure meets 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 emergency closure 
does not have sufficient federalism implications to warrant the 
preparation of 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 effects 
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 when undertaking certain actions. As this action is not expected 
to significantly affect energy supply, distribution, or use, it is not 
a significant energy action and no Statement of Energy Effects is 

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 Simons, 
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, 3103-3126; 18 U.S.C. 
3551-3586; 43 U.S.C. 1733.

    Dated: November 16, 2001.
Thomas H. Boyd,
Acting Chair, Federal Subsistence Board.
    Dated: November 16, 2001.
Kenneth E. Thompson,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 02-4538 Filed 2-26-02; 8:45 am]
BILLING CODE 3410-11-M and 4310-55-M