[Federal Register: October 14, 2004 (Volume 69, Number 198)]
[Rules and Regulations]               
[Page 60957-60962]
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

RIN 1018-AT58

Subsistence Management Regulations for Public Lands in Alaska

AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service, 

ACTION: Final rule.


SUMMARY: This final rule clarifies the membership qualifications for 
Federal Subsistence Regional Advisory Councils established under 
Subsistence Management Regulations. The rulemaking is necessary because 
of an order entered by the U.S. District Court for Alaska. The final 
rule also removes the definition of ``regulatory year'' from Subpart A 
and places it in Subpart D of the regulations.

DATES: This final rule is effective November 15, 2004.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o

[[Page 60958]]

U.S. Fish and Wildlife Service, Attention: Thomas H. Boyd, Office of 
Subsistence Management; (907) 786-3888. For questions specific to 
National Forest System lands, contact Steve Kessler, Regional 
Subsistence Program Leader, USDA, Forest Service, Alaska Region, (907) 



    Title VIII of the Alaska National Interest Lands Conservation Act 
(ANILCA) (16 U.S.C. 3111-3126) requires that the Secretaries implement 
a program to grant a preference for subsistence uses of fish and 
wildlife resources on public lands, 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. The 
State implemented a program that the Department of the Interior 
previously found to be consistent with ANILCA. However, in December 
1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska 
that the rural preference in the State subsistence statute violated the 
Alaska Constitution. The Court's ruling in McDowell required the State 
to delete the rural preference from the subsistence statute and, 
therefore, negated State compliance with ANILCA. The Court stayed the 
effect of the decision until July 1, 1990.
    As a result of the McDowell decision, 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. On June 29, 1990, the Temporary Subsistence Management 
Regulations for Public Lands in Alaska were published in the Federal 
Register (55 FR 27114). With the State unable to create a program in 
compliance with Title VIII by May 29, 1992, the Departments published a 
final rule in the Federal Register (57 FR 22940). On January 8, 1999 
(64 FR 1276), the Departments published a final rule to extend 
jurisdiction to include waters in which there exists a Federal reserved 
water right. This amended rule became effective October 1, 1999, and 
conformed the Federal Subsistence Management Program to the Ninth 
Circuit's ruling in Alaska v. Babbitt.
    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 (Board) to administer the Federal Subsistence 
Management Program. The Board's composition consists of 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, U.S. National Park 
Service; the Alaska State Director, U.S. Bureau of Land Management; the 
Alaska Regional Director, U.S. Bureau of Indian Affairs; and the Alaska 
Regional Forester, USDA Forest Service. Through the Board, these 
agencies participate in the development of Federal Subsistence 
Management Regulations (Subparts A, B, C, and D).
    The Board has reviewed this rule. Because this rule relates to 
public lands managed by an agency or agencies in both the Departments 
of Agriculture and the Interior, identical text will be incorporated 
into 36 CFR part 242 and 50 CFR part 100.

Applicability of Subparts A, B, and C

    Subparts A, B, and C (unless otherwise amended) of the Subsistence 
Management Regulations for Public Lands in Alaska, 50 CFR 100.1 to 
100.24 and 36 CFR 242.1 to 242.24, remain effective and apply to this 
rule. Therefore, all definitions located at 50 CFR 100.4 and 36 CFR 
242.4 will apply to regulations found in this subpart.

Federal Subsistence Regional Advisory Councils

    Pursuant to the Record of Decision, Subsistence Management 
Regulations for Federal Public Lands in Alaska, April 6, 1992, and the 
Subsistence Management Regulations for Federal Public Lands in Alaska, 
36 CFR 242.11 (1999) and 50 CFR 100.11 (1999), and for the purposes 
identified therein, Alaska is divided into 10 subsistence resource 
regions, each of which is represented by a Federal Subsistence Regional 
Advisory Council. The Regional Councils provide a forum for rural 
residents with personal knowledge of local conditions and resource 
requirements to have a meaningful role in the subsistence management of 
fish and wildlife on Alaska public lands.
    The Board reviews applications for membership on the Councils and 
makes recommendations to the Secretaries on the appointments to the 
Councils. The appointments are actually made by the Secretary of the 
Interior with the concurrence of the Secretary of Agriculture. The 
Regional Council members represent varied geographical areas, cultures, 
interests, and resource users within each region. A Regional Council 
member must be a resident of the region in which he or she is appointed 
and be knowledgeable about the region and subsistence uses of the 
public lands therein.
    In 1998, Safari Club International and others filed suit in the 
U.S. District Court for the District of Alaska. This suit, as 
ultimately ruled upon, challenged the Board's customary and traditional 
use determination process, specific customary and traditional use 
determinations, and the balance of membership on the Regional Councils 
required by the Federal Advisory Committee Act (FACA) of 1972, Pub. L. 
92-463, 86 Stat. 770 (Safari Club v. Demientieff, No. A98-0414-CV). In 
the meantime, the Secretary of the Interior, as part of a national 
review of advisory councils and in response to inquiries related to the 
Federal Subsistence Regional Advisory Councils in Alaska, requested the 
Board to examine its process for selecting nominees, and ``see that'' 
groups such as ``residents of non-rural areas, commercial users of fish 
and wildlife resources and sportsmen are represented on the RACs.'' 
Based on Board recommendations following that in-depth examination, the 
Secretary of the Interior with concurrence of the Secretary of 
Agriculture in 2002 increased the size of nine of the Regional 
Councils; established the goal of making appointments to the Regional 
Council so as to achieve, where possible, a representation goal of 70% 
subsistence users and 30% sport/commercial users; revised the 
application/evaluation/selection process and forms; and approved a 3-
year implementation period.
    The Native Village of Venetie Tribal Government et al. were 
permitted to intervene in the Safari Club case and to challenge the 70/
30 ratio representational goals established by the Secretaries. In 
January 2004, the U.S. District Court for Alaska entered an order 
dismissing the first two of Safari Club's claims and staying 
proceedings on the balance of Regional Council membership. The court 
did note in part with respect to the Regional Councils ``that a council 
comprised of only subsistence users is not fairly balanced. Subsistence 
users are not the only persons directly affected by regional advisory 
council recommendations and subsistence users are not the only persons 
who might be interested in the management of fish and wildlife on 
federal lands * * * Non-subsistence users of fish and wildlife are 
directly affected by management of fish and wildlife for subsistence 
uses and have a legitimate interest in the proper scientific management 
of same * * *. While all points of view and all persons directly 
affected are not entitled to representation on a FACA committee, in

[[Page 60959]]

this instance, a cross-section of those affected by fish and wildlife 
management on federal public lands must be, in a reasonable and fair 
manner, afforded representation on regional advisory councils.''
    In ruling on a cross-claim of the Native Village of Venetie, the 
Court invalidated the Secretaries' policy of a goal of a 70/30 
(subsistence users/sport and commercial users) membership ratio for 
failure to procedurally comply with the provisions of the 
Administrative Procedure Act found at 5 U.S.C. 553, and found that the 
policy should have been put before the public for comment in a 
rulemaking process. The District Court also ordered that the 
Secretaries promptly initiate and conclude a rulemaking to promulgate 
an appropriate Regional Council regulation consistent with FACA after 
compliance with 5 U.S.C. 553. The Secretaries initiated action with a 
proposed rule published on April 15, 2004, (69 FR 19964) and received 
testimony on the proposed rule at a May 2004 public hearing.
    The underlying purpose of the change to Sec. --.11(b), while 
complying with the District Court's order, is to ensure continued 
compliance with both the fairly balanced representational requirements 
of FACA and the requirements and purposes of Title VIII of ANILCA in 
the appointments to the Regional Councils. In the change, the 
Secretaries recognize that some persons with interests other than 
subsistence uses are entitled under FACA to be represented on the 
Regional Councils, while recognizing that Congress intended in Title 
VIII for rural Alaska residents ``who have personal knowledge of local 
conditions and requirements * * * to have a meaningful role in the 
management of fish and wildlife and of subsistence uses on public lands 
in Alaska,'' and that Congress also intended that ``large urban 
population centers'' not be allowed to dominate the Regional Council 
system. The 70/30 representational goals of the change to Sec. --.11(b) 
assures the appropriate representation and meaningful majority role for 
rural Alaska residents, while providing an appropriate representation 
for the interests of nonrural residents and nonsubsistence users.
    The change to Sec. --.11(b) establishes representational goals only 
in recognition that the actual appointments are dependent on the 
receipt of applications and nominations of highly qualified 
individuals. The change also requires the Board to identify to the 
Secretaries the interests that the applicant would represent. The 
Secretaries retain their role in making the appointments to the 
Regional Councils. They also approve the Regional Council charters, 
wherein the size of each Regional Council is set. This is reflected in 
a change to identify the Secretaries as establishing the number of 
members for each Council. These changes to Sec. --.11(b) are consistent 
with FACA and ANILCA.
    Additionally, we modified the definition of ``regulatory year'' for 
fish and shellfish fisheries to mean April 1 through March 31 and 
shifted the placement of this definition from Sec. --.4 to Sec. --.25. 
This change in dates allows more opportunity for development of public 
booklets informing subsistence users of regulatory changes, and the 
shift in placement of the definition within the regulations allows the 
Board more flexibility to make adjustments in the future.

Summary of Comments Received on the Proposed Rule

    In addition to comments from the Regional Councils, we received 
written comments and/or oral testimony from 11 individuals or 
organizations. Their comments and the responses are summarized below.
    Comment: Participating in the rulemaking process is costly and time 
    Response: We appreciate the time and effort that many individuals 
and organizations have dedicated to reviewing and commenting on the 
proposed rule.
    Comment: The Regional Councils do not have the opportunity to 
comment on this rule. The comment period should be extended to allow 
the Councils to comment during their fall meetings.
    Response: We were aware that the comment period would not coincide 
with the regular Regional Council meeting cycle. However, the Court 
ordered us to proceed promptly with a rulemaking action. Therefore, we 
made special effort to brief each Regional Council on the content of 
the proposed rule during its winter meeting. We then provided each 
Council with an opportunity to ask questions and to offer comments. 
Further, members of the Councils also had opportunity to comment on 
this rule during the public comment period.
    Comment: The recommendations on this rule from the Regional 
Councils must be given deference in accordance with Section 805(c) of 
    Response: Section 805(c) requires the Secretaries to consider and 
give deference to Regional Councils' recommendations relative to the 
taking of fish and wildlife on the public lands. The proposed 
membership balance rule is not a policy or regulation addressing the 
taking of fish and wildlife on public lands, and therefore, is not 
subject to the requirements of Section 805(c). We have, however, fully 
considered the comments from the Regional Councils in making our 
decision in this final rule.
    Comment: The proposed change may potentially affect the interests 
of Tribal members. The proposed changes are subject to consultation 
with recognized tribes.
    Response: We have provided all Alaskan Tribes and Native 
organizations the opportunity to provide comments on the proposed rule. 
In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and Executive Order 13175 (November 6, 
2000) ``Consultation and Coordination with Indian Tribal Governments,'' 
government-to-government consultation is appropriate in cases where 
there is the potential for substantial direct effects on Tribes. In 
this case, redesignating a small number of seats to increase the 
diversity of viewpoints on the Regional Councils does not rise to the 
level of a substantial direct effect.
    Comment: Without a significant majority of subsistence users on the 
Councils, it is difficult to get subsistence proposal passed.
    Response: The 70/30 membership goal in the rule provides for a 
significant majority of members representing the subsistence interest 
on the Councils. The purpose of providing a goal for a minority of 
seats (30%) for sport and commercial interests is to ensure that those 
interests that are directly affected are represented on the Councils in 
compliance with FACA. We expect that all Regional Council members would 
continue to examine each proposal, policy, or plan and develop Regional 
Council recommendations based on recognized principles of fish and 
wildlife conservation, satisfaction of subsistence needs, and 
substantial evidence, consistent with Title VIII of ANILCA.
    Comment: Rural communities should be allocated one seat on the 
Council. Regional Council composition needs to be representative of the 
population base of the rural communities. The proposal rule leaves out 
rural Alaska Natives and other rural residents because urban areas 
outnumber rural residents.
    Response: This comment misconstrues both the statutory priority and 
the proposed rule. First, the statute creates a priority for all rural 
Alaska residents, not just rural Alaska Native residents. Further, by 
statute, all

[[Page 60960]]

members of a Regional Council must be residents of the region. Since 
most regions contain no nonrural areas, all members of those Councils 
will be rural Alaska residents. Even where the region includes nonrural 
areas, 70% of the members representing subsistence interests on the 
Council will likely be rural residents. Additionally, Alaska Natives 
are seated on every Regional Council. To have one representative from 
each rural community in Alaska sitting on the Councils would create 
excessively large and unworkable bodies. The current size of the 
Regional Councils and the diversity of their members provide good 
representation for the users in each region.
    Comment: Sport users should be banned from sitting on these 
Councils. FACA's balanced representational requirement doesn't require 
the appointment of sport and commercial interests to the Councils. 
Representation from other interest groups (i.e., commercial and sport 
interests) dilutes the purpose of the Councils.
    Response: The U.S. District Court for Alaska found that FACA 
requires that a cross-section of those affected must be afforded 
reasonable representation on the Regional Councils. The court also 
stated that a Council comprised only of subsistence users is not fairly 
balanced and that sport and commercial users have legitimate points of 
view that must be considered. Consequently, inclusion of 
representatives of sport and commercial users is required and assures a 
diversity of views on the Regional Councils.
    Comment: The wording should be modified as follows: ``* * *the 
Board will strive to ensure that no more than 70 percent of the members 
represent subsistence interests within a region and no less than 30 
percent of the members represent commercial and sports interests within 
a region. The not less than 30 percent of the membership who represent 
the commercial and sport interests shall include at least one 
representative from the sport hunting community and one representative 
from the commercial fishing community in regions where these interests 
    Response: We have modified the wording from the proposed rule to 
reflect that we shall include at least one representative from the 
sport community and one representative from the commercial community 
where possible. We have not made the other suggested change, believing 
it to be an unnecessarily restrictive stipulation.
    Comment: Regional Councils should have an 80/20 representational 
    Response: We have engaged in a thorough review and do not believe 
an 80/20 split would generally provide the best cross-section of 
interests and balanced membership. The 70/30 ratio provides a clear 
majority for subsistence users and a meaningful representation for 
other users. We have retained the 70/30 balance as a reasonable 
approach to providing the cross-section of interests suggested by the 
court ruling.
    Comment: The Councils are already balanced because many members 
already participate in and represent various interests. The 
representational balance should be derived from the percentage of each 
individual member's activities. FACA does not require that each member 
make an arbitrary declaration of intent to support a single interest. 
An individual who primarily considers himself a subsistence user cannot 
represent the commercial fishing community simply because he holds a 
commercial fishing license. Similarly, a recreational hunter cannot 
represent the subsistence community simply because he eats the meat 
from the animal that he has hunted.
    Response: We recognize that there are and have been individuals 
serving on the Councils who may participate in many types of uses 
(subsistence, sport and commercial) and are knowledgeable about the 
different interests. However, we are required by FACA to demonstrate 
that the Regional Advisory Councils continue to be fairly balanced in 
terms of points of view represented and the functions to be performed 
by the Council. Consequently, we have requested that people applying 
for Council seats declare their primary interest because it is the 
individual applicant who is the most knowledgeable about his/her 
viewpoints. This declaration should be supported by the information 
provided by the applicant and by an evaluation of the applicant's 
qualifications. This declaration assists the Federal Subsistence Board 
and the Secretaries in determining whether or not appointments to the 
Councils comply with the FACA requirements for balance.
    Comment: Each Regional Council should have at least one member who 
will represent the public interest in the management of those Park 
Service units open to subsistence activities.
    Response: In addition to the Regional Councils, ANILCA also 
designated a separate system of Subsistence Resource Commissions (16 
U.S.C. 3118) to provide advice and recommendations for National Parks 
and Monuments where subsistence occurs. It has been our experience that 
the Regional Councils carefully consider recommendations of the 
Subsistence Resource Commissions. The Regional Councils whose regions 
include national park or monument lands represented by an SRC also 
appoint three members to the nine-member SRC.
    Comment: A ``cross section of those affected'' requires inclusion 
of other interests, such as conservation, Native heritage, and 
recreation interests. The Councils should include representation for 
the majority of people who do not want to see wildlife killed.
    Response: ANILCA Title VIII is a statute that provides for the 
taking of fish and wildlife on Federal lands and waters. Therefore, on 
a committee providing advice on the taking of fish and wildlife 
resources, only representatives of groups involved in various aspects 
of consumptive use of the resources are appropriate members. Groups and 
individuals representing other interests have opportunity to express 
their opinions by providing public testimony at Regional Council and 
Board meetings.
    Comment: Guidelines for Council composition should also maintain 
ethnic, gender, and geographical balance.
    Response: Other than the guidelines for membership balance, there 
are no additional regulatory guidelines used by the Federal Subsistence 
Board in making appointment recommendations to the Secretaries. 
However, the Board does consider and attempt to maximize various 
diversity factors when making its recommendations. The Secretaries 
consider the Board's recommendations and must follow FACA and ANILCA 
requirements when making their appointments.
    Comment: Current subsistence representatives should not be 
displaced by appointments representing sport or commercial interests.
    Response: The 70/30 policy is to be implemented under a 3-year 
phase-in period to avoid displacement of sitting members. All members 
may conclude their current terms. We will maintain the FACA balance 
through appointment to open seats over a 3-year period.
    Comment: The Seward Peninsula Regional Council should be increased 
in size from 10 to 13.
    Response: The Board will examine this issue during the charter 
renewal process that will start at the fall 2004 meeting and conclude 
with charter approval by the Secretaries in 2005.
    Comment: Evaluation panel guidelines should also include 
consideration of an applicant's command of traditional ecological 
    Response: Evaluation panel guidelines are not a part of this

[[Page 60961]]

rulemaking process. However, the evaluation guidelines used by the 
Board do include an applicant's knowledge of subsistence customs and 
    Comment: The Board should evaluate all applicants by the same 
    Response: The Board evaluates all applicants on these same five 
criteria: knowledge of fish and wildlife resources in the region, 
knowledge of subsistence customs and traditions, knowledge of 
recreational and/or commercial uses, leadership, and communication.
    Comment: The appointment of members creates divisiveness in rural 
communities. In every group or community there are always different 
    Response: We expect that the persons appointed for membership are 
individuals who can overlook factionalism and engage in a meaningful 
dialog that considers the views of various users in their area.
    Comment: The ethics disclosure requirement in the Regional Council 
charters is being applied too restrictively.
    Response: The application of the ethics disclosure requirement is 
coordinated with the Department of the Interior's Office of the 
Solicitor and is not a part of this current rulemaking process.

Conformance With Statutory and Regulatory Authorities

National Environmental Policy Act Compliance

    A Draft Environmental Impact Statement (DEIS) for developing a 
Federal Subsistence Management Program was distributed for public 
comment on October 7, 1991. That document described the major issues 
associated with Federal subsistence management as identified through 
public meetings, written comments, and staff analysis, and examined the 
environmental consequences of four alternatives. Proposed regulations 
(Subparts A, B, and C) that would implement the preferred alternative 
were included in the DEIS as an appendix. The DEIS and the proposed 
administrative regulations presented a framework for an annual 
regulatory cycle regarding subsistence hunting and fishing regulations 
(Subpart D). The Final Environmental Impact Statement (FEIS) was 
published on February 28, 1992.
    Based on the public comment received, the analysis contained in the 
FEIS, and the recommendations of the Federal Subsistence Board and the 
Department of the Interior's Subsistence Policy Group, the Secretary of 
the Interior, with the concurrence of the Secretary of Agriculture, 
through the U.S. Department of Agriculture-Forest Service, implemented 
Alternative IV as identified in the DEIS and FEIS (Record of Decision 
on Subsistence Management for Federal Public Lands in Alaska (ROD), 
signed April 6, 1992). The DEIS and the selected alternative in the 
FEIS defined the administrative framework of an annual regulatory cycle 
for subsistence hunting and fishing regulations. The final rule for 
Subsistence Management Regulations for Public Lands in Alaska, Subparts 
A, B, and C (57 FR 22940, published May 29, 1992, and amended January 
8, 1999, 64 FR 1276; June 12, 2001, 66 FR 31533; May 7, 2002, 67 FR 
30559; and February 18, 2003, 68 FR 7703) implemented the Federal 
Subsistence Management Program and included a framework for an annual 
cycle for subsistence hunting and fishing regulations.

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 may have some local impacts on subsistence uses, but 
the program is not likely to significantly restrict subsistence uses.
    There is nothing in this rulemaking that affects the prior NEPA or 
Section 810 analysis and so no additional analysis is required for this 

Paperwork Reduction Act

    These changes do not contain information collection requirements 
subject to Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act of 1995. We may not conduct or sponsor, and you 
are not required to respond to, an information collection request 
unless it displays a currently valid OMB control number.

Other Requirements

    Economic Effects--This rule is not a significant rule subject to 
OMB review under Executive Order 12866. This rulemaking will impose no 
significant costs on small entities; this rule is administrative in 
nature only and does not restrict any existing sport or commercial 
fishery on the public lands, and subsistence fisheries will continue at 
essentially the same levels as they presently occur. The number of 
businesses and the amount of trade that will result from this Federal 
land related activity is unknown but expected to be insignificant.
    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 economic effect on a substantial number of small entities, 
which include small businesses, organizations, or governmental 
jurisdictions. The Departments certify that this rulemaking 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 priority on public lands. The scope of this program is 
limited by definition to certain public lands. Likewise, these 
regulations have no potential takings of private property implications 
as defined by Executive Order 12630.
    The Secretaries have determined and certify pursuant to the 
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. The 
implementation of this rule is by Federal agencies and there is no cost 
imposed on any State or local entities or tribal governments.
    The Secretaries have determined that these regulations 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 rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. Title VIII of ANILCA precludes the State from 
exercising subsistence management authority over fish and wildlife 
resources on Federal lands unless their program meets certain 
    In accordance with the President's memorandum of April 29, 1994,

[[Page 60962]]

``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 this rule is not a 
significant regulatory action under Executive Order 13211, affecting 
energy supply, distribution, or use, this action is not a significant 
action and no Statement of Energy Effects is required.

Drafting Information

    William Knauer drafted these regulations 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; Greg Bos, 
Carl Jack, and Rod Simmons, Alaska Regional Office, U.S. Fish and 
Wildlife Service; Sandy Rabinowitch and Bob Gerhard, Alaska Regional 
Office, National Park Service; Warren Eastland and Dr. Glenn Chen, 
Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, 
USDA-Forest Service, provided additional guidance.

List of Subjects

36 CFR Part 242

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 

50 CFR Part 100

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 

For the reasons presented in the preamble, the Federal Subsistence 
Board amends Title 36, part 242, and Title 50, part 100, of the Code of 
Federal Regulations, as set forth below.


1. The authority citation for both 36 CFR part 242 and 50 CFR part 100 
continues to read as follows:

    Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 
3551-3586; 43 U.S.C. 1733.

Sec.  --.4  [Amended]

2. In Subpart A of 36 CFR part 242 and 50 CFR part 100, Sec. --.4, the 
definition of ``Regulatory year'' is removed.

3. In Subpart B of 36 CFR part 242 and 50 CFR part 100, 
Sec. --.11(b)(1) is revised to read as follows:

Sec.  --.11  Regional advisory councils.

    (a) * * *
    (b) Establishment of Regional Councils; membership. (1) The 
Secretaries, based on Board recommendation, will establish the number 
of members for each Regional Council. To ensure that each Council 
represents a diversity of interests, the Board will strive to ensure 
that 70 percent of the members represent subsistence interests within a 
region and 30 percent of the members represent commercial and sport 
interests within a region. The portion of membership that represents 
the commercial and sport interests shall include, where possible, at 
least one representative from the sport community and one 
representative from the commercial community. A Regional Council member 
must be a resident of the region in which he or she is appointed and 
must be knowledgeable about the region and subsistence uses of the 
public lands therein. The Board will accept nominations and make 
recommendations to the Secretaries for membership on the Regional 
Councils. In making their recommendations, the Board will identify the 
interest(s) the applicants propose to represent on the respective 
Regional Councils. The Secretary of the Interior with the concurrence 
of the Secretary of Agriculture will make the appointments to the 
Regional Councils.
* * * * *

4. In Subpart D of 36 CFR part 242 and 50 CFR part 100, Sec. --.25(a) 
is amended by adding the definition ``Regulatory year'' immediately 
before the definition ``Ring net'' to read as follows:

Sec.  --.25  Subsistence taking of fish, wildlife, and shellfish: 
general regulations.

    (a) * * *
    Regulatory year means July 1 through June 30, except for fish and 
shellfish for which it means April 1 through March 31.
* * * * *

    Dated: September 20, 2004.
Gale A Norton,
Secretary of the Interior, Department of the Interior.
    Dated: September 30, 2004.
Dennis E. Bschor,
Regional Forester, USDA-Forest Service.
[FR Doc. 04-22820 Filed 10-13-04; 8:45 am]