[Federal Register: October 12, 2006 (Volume 71, Number 197)]
[Proposed Rules]               
[Page 60095-60098]
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; 
Federal Subsistence Regional Advisory Council Membership

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

ACTION: Request for comments.


SUMMARY: This notice solicits written comments and suggestions on the 
membership qualifications for Federal Subsistence Regional Advisory 
Councils established under Subsistence Management Regulations. The 
Federal Advisory Committee Act (FACA) requires that advisory councils 
be constituted with a balanced membership. The current Federal 
regulations set a goal of 70 percent subsistence users to 30 percent 
sport and commercial users on the Federal Subsistence Regional Advisory 
Councils. This notice is the first step in an administrative action 
with respect to that regulation, made necessary because of an order 
entered by the U.S. District Court for Alaska. Because the U.S. 
District Court has enjoined application of the current 70/30 percent 
goal after 2006, it is necessary to give further reconsideration to 
alternative methods for assuring balance in membership for Regional 
Advisory Councils in time to make any decision applicable to the 2007 
appointments. Therefore, no

[[Page 60096]]

extension of the review deadline will be granted.

DATES: The Federal Subsistence Board must receive your written public 
comments and suggestions on this proposed rule no later than November 
13, 2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:
    1. E-mail: Subsistence@fws.gov. See SUPPLEMENTARY INFORMATION for 
file formats and other information.
    2. U.S. mail or hand-delivery: Office of Subsistence Management, 
3601 C Street, Suite 1030, Anchorage, AK 99503.
    3. You may submit comments via the Federal E-Rulemaking Portal at 

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Pete Probasco, 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) 

SUPPLEMENTARY INFORMATION: Electronic submission of comments to 
Subsistence@fws.gov is preferred. You may submit comments and suggested 

alternatives and other data as Adobe Acrobat (PDF) or MS Word files, 
avoiding the use of any special characters and any form of encryption.


    Title VIII of the Alaska National Interest Lands Conservation Act 
(ANILCA) (16 U.S.C. 3111-3126) requires that the Secretaries of the 
Interior and Agriculture implement a program to grant a preference for 
subsistence uses of fish and wildlife resources on Federal public lands 
and waters, 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 Federal public lands and waters. 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 certain 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.
    In 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 the Federal Subsistence Management Regulations (Subparts 
A, B, C, and D).

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 the 
residents of the particular region with personal knowledge of local 
conditions and resource requirements to have a meaningful role in the 
subsistence management of fish and wildlife on Alaska Federal public 
lands and waters.
    The Board reviews applications for membership on the Regional 
Councils and makes recommendations to the Secretaries on the 
appointments to the Councils. The appointments themselves are then 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 Federal public lands and waters therein.
    In 1998, Safari Club International and others filed suit in the 
U.S. District Court for the District of Alaska. This suit, among other 
things, challenged the balance of membership on the Regional Councils 
required by the Federal Advisory Committee Act (FACA) of 1972, Public 
Law 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 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 
percent subsistence users and 30 percent sport/commercial users; 
revised the application/evaluation/selection process and forms; and 
approved a 3-year implementation period (67 FR 30559, May 7, 2002).
    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 
recognizing that with respect to the Regional Councils ``* * * 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

[[Page 60097]]

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 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 the cross-claim of the Native Village of Venetie, the 
Court also invalidated the Secretaries' policy of a goal of a 70/30 
(subsistence users/sport and commercial users) membership 
representation 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.
    On October 14, 2004, the Secretaries published a final rule in the 
Federal Register (69 FR 60957). The underlying purpose of the change to 
Sec.  ----.11(b), while complying with the District Court's order, was 
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 recognized 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. This rule established the 70/30 
representational goal in the change to Sec.  ----.11(b). The purpose 
was to assure 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 interveners then challenged the final rule, and on August 8, 
2006, the Court declared the 70/30 membership structure to be arbitrary 
and capricious because the Secretaries and the Board had failed to 
adequately explain the analysis of the relevant factors and to 
articulate their rationale in adopting the final rule. That order 
stated that ``the court has not concluded that the 70/30 rule for RAC 
membership is contrary to law. The court's holding is that defendants 
have not submitted to the court an administrative record that provides 
a rationale for that rule.''
    The purpose of the process that the Secretaries and the Board are 
undertaking, in this notice, is to fulfill the requirements of the 
district court's August 8, 2006, decision, to lay out a full 
administrative record, display a complete assessment of alternatives 
considered, and provide a fuller explanation for the option selected 
for providing a balanced membership on the Regional Councils.
    The Regional Councils must have a balanced membership in accordance 
with FACA and the court's rulings. This necessitates that 
representatives from groups such as commercial users of fish and 
wildlife resources and sportsmen must be sitting as members of each 
Council. In order to implement that balanced membership, the 
Secretaries and the Board must have some method of identifying which 
interest or interests a prospective Council member would represent. 
Self-identification by an applicant is the best way to obtain that 
information. Many individuals using the fish and wildlife resources of 
Alaska do so within different user groups. Subsistence fishermen 
frequently hold commercial fishing licenses; commercial fishermen may 
also be sport fishermen or hunters. Sport hunters may have personal use 
fishing permits, while hunting guides may also hold sport fishing 
licenses. In almost all cases, however, an individual usually holds 
certain convictions and beliefs that would cause him or her to 
represent one of his or her interests more strongly than another 
interest when making recommendations on potential regulations or 
policies that would impact his or her use of the resource. For that 
reason, the Secretaries and the Board requested that each applicant for 
a Regional Council identify a primary interest. In this way, the Board 
can identify and recommend to the Secretaries applicants who would 
provide a balanced membership for each Regional Council.
    Even though FACA requires a membership balanced in viewpoints, the 
purpose of the Regional Councils is to provide 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.'' The Secretaries believe 
that, in order to fulfill this mandate, subsistence interests must 
constitute a majority of members on each Regional Council. Likewise, 
since sport and commercial users are also entitled to be represented 
(where such qualified individuals may be present), a Regional Council 
composed of only subsistence users is not a Regional Council that meets 
the requirements of FACA. The Secretaries and the Board, in adopting 
the current regulations, therefore, considered subsistence, sport, and 
commercial membership ratios of 60/40, 70/30, 80/20, and 90/10 percent, 
    The Secretaries discarded the 90/10 ratio because a single 
individual on a 10-member Regional Council could not adequately 
represent both sport and commercial interests and could easily be 
intimidated by the remaining 90 percent of the Council. Council 
meetings are routinely held in remote villages and some Council members 
have difficulty attending meetings, particularly if they are engaged in 
harvesting fish or wildlife resources at the time or are weathered out. 
If that is the single person representing sport and commercial users 
when that happens, then there is no representation of those viewpoints. 
The Board also discarded the 60/40 ratio. A Council with a 60/40 ratio 
with one or two members representing subsistence missing from the 
meeting could easily be dominated by sport and commercial interests. 
The same domineering situation could exist with an 80/20 membership 
ratio if one of the sport or commercial representatives were absent. A 
70/30 membership ratio provides a majority representation for 
subsistence users without domination by sport or commercial interests, 
but the 30 percent membership would also allow both sport and 
commercial interests to be meaningfully represented. All Regional 
Council members are still expected 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,

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consistent with Title VIII of ANILCA, and are not expected to act as 
only single interest representatives.
    The Regional Councils were first constituted with a 70/30 
membership representation goal before their winter 2004 meetings. Since 
then, the 10 Regional Councils have held 50 regularly scheduled 
meetings. In almost every instance, these meetings have occurred 
without rancor or hostility among represented interests. Many members 
have expressed gratitude for the opportunity to associate and learn 
from members representing other interests. Part of the success of the 
balanced Councils results from the fact that all these interests depend 
on the same fish and wildlife resources, with conservation the main 
    By way of this notice, the Board and Secretaries are requesting 
your comments on the existing 70/30 representational membership goal 
that is currently in regulation for the Regional Councils. This 
membership requirement is set forth at 36 CFR 242.11(b) and 50 CFR 
100.11(b). Your suggestions for any modifications to the existing 70/30 
goal are also sought. The Board and Secretaries also invite you to 
submit any suggested alternative ideas for providing a balanced 
membership that complies with FACA, while still meeting the intent of 
ANILCA. Following the close of the comment period as identified in the 
DATES section, the public comments, suggestions, and identified 
alternatives will be presented to the Regional Councils during their 
winter 2007 meetings. This procedure will allow both the Regional 
Councils and the public to have an opportunity to present ideas and 
testimony related to the issue of a methodology for achieving balanced 
Regional Councils. This is not required by Section 805(c) of ANILCA and 
any recommendations the Councils may make are not recommendations 
subject to Section 805(c). Any suggestions, alternatives, or 
recommendations from the Regional Councils will then be presented to 
the Federal Subsistence Board at its May 2007 meeting. There will also 
be another opportunity for the public to submit suggestions or 
alternatives at this Board meeting. Following public testimony and 
Council recommendations, the Board will deliberate various options and 
recommend a course of action to the Secretaries. A formal rulemaking 
process would follow, if necessary. The recommendation may also be to 
make no changes to the current regulations but merely to offer further 
explanation of that rule.

Drafting Information

    William Knauer drafted this notice under the guidance of Pete 
Probasco of the Office of Subsistence Management, Alaska Regional 
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Chuck 
Ardizzone, Alaska State Office, Bureau of Land Management; Greg Bos, 
Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish and 
Wildlife Service; Sandy Rabinowitch and Nancy Swanton, Alaska Regional 
Office, National Park Service; Warren Eastland and Dr. Glenn Chen, 
Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, 
Alaska Regional Office, USDA-Forest Service, provided additional 

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

    Dated: September 19, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 06-8594 Filed 10-11-06; 8:45 am]