[Federal Register Volume 89, Number 38 (Monday, February 26, 2024)]
[Proposed Rules]
[Pages 14008-14015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03604]
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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
[Docket No. FWS-R7-SM-2024-0017; FXRS12610700000-234-FF07J00000]
RIN 1018-BH67
Subsistence Management Regulations for Public Lands in Alaska--
Subpart B; Federal Subsistence Board Membership
AGENCY: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would revise the regulations concerning the
composition of the Federal Subsistence Board (Board) by adding three
public members nominated or recommended by federally recognized Tribal
governments, requiring that those nominees have personal knowledge of
and direct experience with subsistence uses in rural Alaska including
Alaska Native subsistence uses, defining requirements used for the
selection of the Board Chair, affirming the Secretaries' authority to
replace members from the Board, and affirming the Secretaries'
responsibility and oversight regarding Board decisions while
incorporating a ratification requirement. In January 2022, the
Department of the Interior (DOI) and the U.S. Department of Agriculture
(USDA) held joint consultations with federally recognized Tribes of
Alaska and various Tribal Consortia. Later during October-November
2022, DOI leadership and the Department of Commerce, National Oceanic
and Atmospheric Administration, held joint consultations with various
Alaska Tribes regarding
[[Page 14009]]
fisheries. Approximately 445 individual subsistence users and
representatives from Alaska Native Tribes, Tribal consortia, Alaska
Native organizations, and Native corporations participated in the
consultations, and a majority of the commenters specifically requested
increasing the number of public members to five and adding more voting
members who represent Alaska Native Villages and have local knowledge
and direct subsistence experience.
DATES: Comments on this proposed rule must be received or postmarked by
April 26, 2024.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R7-SM-2024-0017,
which is the docket number for this rulemaking action. Then, click on
the Search button. On the resulting page, in the Search panel on the
left side of the screen, under the Document Type heading, check the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
By hard copy: Submit by U.S. mail or hand delivery: Public Comments
Processing, Attn: FWS-R7-SM-2024-0017; U.S. Fish and Wildlife Service;
5275 Leesburg Pike; MS: PRB (JAO/3W); Falls Church, VA 22041-3803.
We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Review Process--Comments below for more information).
FOR FURTHER INFORMATION CONTACT: Amee Howard, Deputy Assistant Regional
Director, Office of Subsistence Management; 907-786-3888;
[email protected]. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States. Please see Docket No. FWS-R7-SM-2024-
0017 on https://www.regulations.gov for a document that summarizes this
proposed rule.
SUPPLEMENTARY INFORMATION:
Background
When Alaska became a State in 1959, Alaska Natives held aboriginal
title to lands across the new State. Immediately after statehood,
Alaska Natives filed blanket protests to State land selections
authorized by the Statehood Act. Because the State's land selection
rights were only for ``vacant, unappropriated and unreserved lands,''
the Secretary of the Interior imposed a formal land freeze on any title
transfers to Alaska in 1969. After oil was discovered at Prudhoe Bay in
the late 1960s, an injunction against the Secretary of the Interior's
attempt to grant a right of way for the Trans-Alaska Pipeline made it
clear that Congress would have to settle aboriginal claims before an
oil pipeline across Alaska could be built. Congress then extinguished
aboriginal title in the Alaska Native Claims Settlement Act (ANCSA) in
1971. 43 U.S.C. 1603(b). The ANCSA conference report reflects that
Congress anticipated that the Secretary of the Interior would
``exercise his existing withdrawal authority'' to ``protect Native
subsistence needs and requirements.'' H. Conf. Rep. No. 92-746 at 37
(1971). The Secretary immediately reinitiated withdrawals to protect
subsistence while a solution was negotiated. In 1980, this issue, among
others, was addressed in the Alaska National Interest Lands
Conservation Act (ANILCA). Title VIII of ANILCA addressed the loss of
aboriginal hunting and fishing rights by providing rural residents,
including Alaska Native rural residents, with protections for
continuing use of subsistence uses on the public lands. The
congressional findings in ANILCA describe this intent and purpose:
The Congress finds and declares that--
. . . (4) in order to fulfill the policies and purposes of the
Alaska Native Claims Settlement Act and as a matter of equity, it is
necessary for the Congress to invoke its constitutional authority
over Native affairs and its constitutional authority under the
property clause and the commerce clause to protect and provide the
opportunity for continued subsistence uses on the public lands by
Native and non-Native rural residents; and
(5) the national interest in the proper regulation, protection,
and conservation of fish and wildlife on the public lands in Alaska
and the continuation of the opportunity for a subsistence way of
life by residents of rural Alaska require that an administrative
structure be established for the purpose of enabling rural 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 the public lands in Alaska.
16 U.S.C. 3111 (emphasis added). Based on these findings, Congress
declared that there would be a subsistence priority for ``rural
residents'' on ``public lands'' in Alaska:
nonwasteful subsistence uses of fish and wildlife and other
renewable resources shall be the priority consumptive uses of all
such resources on the public lands of Alaska when it is necessary to
restrict taking in order to assure the continued viability of a fish
or wildlife population or the continuation of subsistence uses of
such population, the taking of such population for nonwasteful
subsistence uses shall be given preference on the public lands over
other consumptive uses;
16 U.S.C. 3112 (2). Congress's references to fulfilling the purposes of
ANCSA (where aboriginal hunting and fishing rights had been lost), and
its constitutional authority over Native affairs clarify that title
VIII's rural subsistence provisions are intended, among other purposes,
to address the loss of Alaska Native aboriginal hunting and fishing
rights. See Robert T. Anderson, The Katie John Litigation: A Continuing
Search for Alaska Native Fishing Rights After ANCSA, 51 Ariz. St. L.J.
506, 522 (2017).
Title VIII originally contemplated the State administering the
ANILCA rural subsistence priority. It outlined a State regulatory
structure to protect subsistence uses by rural Alaska residents,
providing that if, within one year of ANILCA's enactment, the State
``enacts and implements laws of general applicability which are
consistent with, and which provide for the definition, preference, and
participation specified in'' ANILCA for rural residents, then the
Secretary shall not implement the provisions of ANILCA directing the
establishment of regional advisory councils. 16 U.S.C. 3115(d). And
such State laws, ``unless and until repealed, shall supersede such
sections [of ANILCA] . . . for the taking of fish and wildlife on the
public lands for subsistence uses.'' Id.
However, the State was unable to implement title VIII through State
regulations. When ANILCA was enacted in 1980, an Alaska statute
provided a priority for nonwasteful subsistence use of wild, renewable
resources, but it did not limit the priority to ``rural Alaska
residents,'' as ANILCA requires. See Bobby v. Alaska, 718 F. Supp. 764,
767, 788-791 (D. Alaska 1989). The State promulgated regulations
recognizing the rural priority, and, after the Federal Government
reviewed and approved the regulatory scheme, the State became
responsible for overseeing implementation of title VIII. See id. at
767. Then, in 1985, the Alaska Supreme Court struck down the State
regulations' limitation of the subsistence priority to rural Alaska
residents. Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168 (Alaska
1985). Without that eligibility limitation, the State's subsistence
priority no longer complied
[[Page 14010]]
with ANILCA, and the Secretary of the Interior withdrew certification
of the State's regulatory scheme, pending enactment of State
subsistence-use legislation consistent with ANILCA. See Bobby, 718 F.
Supp. at 768. The Alaska Legislature then amended the State's
subsistence laws to remedy the inconsistency with ANILCA. See id.; see
also Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 314 (9th Cir.
1988). But in 1989, the Alaska Supreme Court voided the amended State
subsistence statute after finding that a rural priority violates
Alaska's Constitution. See McDowell v. State, 785 P.2d 1 (Alaska 1989).
As a result of Alaska's inability to satisfy ANILCA's requirements
for State management, the Secretaries of the Interior and Agriculture
were obligated under ANILCA to effectuate the rural subsistence
priority. See 16 U.S.C. 3115. ANILCA authorizes the Secretaries to
``prescribe such regulations as are necessary and appropriate to carry
out [their] responsibilities'' under title VIII. 16 U.S.C. 3124; see 16
U.S.C. 3102(12). In 1990, the Secretaries promulgated regulations
providing ``[s]ubsistence taking and uses of fish and wildlife on
public lands shall be administered by a Federal Subsistence Board.''
See Temporary Subsistence Management Regulations for Public Lands in
Alaska, 55 FR 27114 at 27123 (June 29, 1990); Final Regulations, 57 FR
22940 (May 29, 1992). As a result, pursuant to title VIII and its
regulations, which have been amended several times since 1992, the
Secretaries jointly implement the Federal Subsistence Management
Program (Program), which provides a priority for taking of fish and
wildlife resources for subsistence uses in Alaska. Only Alaska
residents of areas identified as rural are eligible to participate in
the Program.
Because the Program is a joint effort between the Departments of
the Interior and Agriculture (USDA), these regulations are located in
two different titles of the Code of Federal Regulations (CFR): The USDA
regulations are at title 36, ``Parks, Forests, and Public Property,''
and the DOI regulations are at title 50, ``Wildlife and Fisheries,'' at
36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. Consequently, to
indicate that identical changes are proposed for regulations in both
titles 36 and 50, in this document we present references to the
specific section of both titles of the CFR as: Sec. __.10.
The Program regulations contain subparts as follows: Subpart A,
General Provisions; Subpart B, Program Structure; Subpart C, Board
Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.
Consistent with subpart B of these regulations, the Secretaries
established a Federal Subsistence Board to administer the Program.
Subpart C sets forth important Board determinations regarding program
eligibility, i.e., which areas of Alaska are considered rural and which
species are harvested in those areas as part of a ``customary and
traditional use'' for subsistence purposes. Subpart D sets forth
specific harvest seasons and limits. Subparts A and B fall under the
purview of the Secretaries, but the Board participates in the
development of regulations for subparts C and D.
In administering the Program, the Secretaries divided Alaska into
10 subsistence resource regions, each of which is represented by a
Federal Subsistence Regional Advisory Council (Council). The 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 Federal public lands in
Alaska. The Council members represent varied geographical, cultural,
and user interests within each region.
The current Board comprises:
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;
The Alaska Regional Forester, USDA Forest Service; and
Two public members appointed by the Secretary of the Interior
with concurrence of the Secretary of Agriculture.
Proposed Rulemaking Action
In January 2022, DOI and USDA held joint consultations with
approximately 445 individual subsistence users and representatives from
federally recognized Tribes of Alaska, Tribal consortia, Native
organizations, and Alaska Native corporations. In October-November
2022, DOI leadership and the Department of Commerce, National Oceanic
and Atmospheric Administration, held joint consultations with various
Alaska Tribes regarding fisheries. During all of these consultations, a
primary request from commenters was to make changes to the Federal
Subsistence Board, including increasing the number of public members to
five and adding more voting members who represent Alaska Native
Villages and have local knowledge and direct subsistence experience.\1\
The report detailing the information received during these
consultations is the ``Federal Subsistence Policy Consultation Summary
Report,'' which can be found as a supplementary document in Docket No.
FWS-R7-SM-2024-0017 at https://www.regulations.gov.
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\1\ The references to ``commenters'' below refer to the comments
received from these same participants in connection with the
consultations.
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We propose to revise titles 36 (in part 242) and 50 (in part 100)
of the CFR at Sec. __.10 to be responsive to that request by defining
the requirements used for the selection of the Board Chair, increasing
the number of public members of the Board, and including a voice for
federally recognized Tribal governments to nominate or recommend a
certain number of the public members of the Board. We propose that the
Board Chair, like the two current public members, be required to
possess personal knowledge of and direct experience with subsistence
uses in rural Alaska. We further propose adding three public members to
the Board, all of whom will be required to possess personal knowledge
of and direct experience with subsistence uses in rural Alaska,
including Alaska Native subsistence uses, and will be nominated or
recommended by federally recognized Tribal governments.
As is currently required in the regulations, the Board Chair and
all public members will be appointed by the Secretary of the Interior
with the concurrence of the Secretary of Agriculture. Also as is
currently the case, the public members will become special governmental
employees for the purpose of serving on the Board. The Secretaries
retain the authority to remove public members from the Board, and also
retain their existing authorities to replace agency personnel on the
Board, and we have added language affirming those authorities in this
proposed rule. Because this proposed rule would increase the total
number of Board members, the number required for a quorum would
increase to six.
Lastly, consistent with title VIII, we propose clarifying that the
Secretaries retain the authority to modify, disapprove, or stay any
action taken by the Board, and also propose incorporating a requirement
for ratification. Recognizing that a Board's action may be time
sensitive, we propose that for temporary special actions (36 CFR
242.19(b) and 50 CFR
[[Page 14011]]
100.19(b)), Board actions will not become effective for 10 calendar
days, allowing an opportunity for the Secretaries to modify,
disapprove, stay, or expressly ratify Board actions. If the 10 calendar
days elapse without action by the Secretaries, the Board decision will
be deemed automatically ratified by the Secretaries (with the
Secretaries retaining discretion to revisit the ratification). For
emergency special actions (36 CFR 242.19(a) and 50 CFR 100.19(a)), the
Board action will likewise not become effective for 10 calendar days
unless the Board determines that the emergency situation calls for
responsive action within 24 hours to protect subsistence resources or
public safety. For other Board actions (i.e., actions that follow the
regular adoption process in 36 CFR 242.18 or 50 CFR 100.18), the
Secretaries retain, and will exercise when appropriate, their authority
to modify or disapprove actions prior to publication in the Federal
Register, as is the current practice.
I. Increase in Number of Public Board Members
The current Board includes a Chair, two public Board members, and
five Federal agency personnel. None of the current agency personnel,
nor any of their predecessors, are federally qualified subsistence
users while serving on the Board as a result of the urban location for
their duty location. The Secretaries are proposing to add three public
members nominated or recommended by Tribes, while also requiring that
they possess personal knowledge of and direct experience with
subsistence uses in rural Alaska, including Alaska Native subsistence
uses, for the purpose of ensuring adequate representation by members
with rural subsistence experience on the Board at any particular
meeting. Adding three public members to the Board could further the
goals of ANILCA and also could be responsive to commenters' requests
for: (1) an increase in the number of public board members to five; and
(2) adding more voting members who represent Alaska Native villages and
have local knowledge of direct subsistence experience.
Related to this, the Secretaries specifically request public
comments on the issues listed below:
(1) Are federally recognized Tribal governments the only groups
that should nominate/recommend public board members that possesses the
qualifications identified in this proposed rule? Should Alaska Native
Corporations and other entities also be included as entities to
nominate/recommend public board members, so long as the nominees
possess personal knowledge of and direct experience with subsistence
uses in rural Alaska (including Alaska Native subsistence uses)?
(2) Would it be preferable for federally recognized Tribes to
nominate/recommend only two of the three new public board members?
(3) How should the Secretaries solicit and receive nominations/
recommendations? Should the Secretaries broadly solicit nominations or
recommendations from federally recognized Tribal governments, or should
the Secretaries identify as a matter of their sole discretion one or
more specific federally recognized Tribal governments?
(4) Is the proposed quorum of six appropriate with the addition of
the three new public board members, or should it be increased?
Commenters also expressed concerns that the public Board members at
present do not have alternates who can stand in for them in times of
illness or unavailability due to conflicts with subsistence activities.
This is not the case for Federal agency personnel, who have qualified
designees who can act in their stead. This issue was specifically
raised by the Board in a meeting with the Secretary. While the
Secretaries preliminarily view the proposal to add additional public
board members as eliminating the need to further consider whether
public board members should have the ability to appoint alternates, the
Secretaries invite public comment on this issue.
Commenters also focused on the desirability of considering
Indigenous Knowledge in connection with Board decision making. The
Secretaries preliminarily view this approach/practice as consistent
with the Secretaries' policies and broader Federal Government policy.
For example, on November 22, 2022, the White House Office of Science
and Technology Policy and Council on Environmental Quality released the
``Guidance for Federal Departments and Agencies on Indigenous
Knowledge'' at the White House Tribal Nations Summit. The guidance and
accompanying implementation memorandum recognized that, to make the
best scientific and policy decisions, the Federal Government should
value and, as appropriate, respectfully consider Indigenous Knowledge
in the decision-making process. The implementation memorandum for all
Federal agencies noted that ``. . . the U.S. Government can fulfill its
trust responsibilities to Tribal Nations, recognize Tribal sovereignty
and self-governance, and honor its commitment to strengthening
relations with Indigenous Peoples by including Indigenous Knowledge in
Federal decision making.'' Further, the implementation memorandum
encouraged Federal agencies ``to pursue and promote inclusion of
Indigenous Knowledge in Federal scientific and policy decisions
consistent with this Guidance. . . .'' The Guidance started with the
following recognition:
The Federal Government recognizes the valuable contributions of
the Indigenous Knowledge that Tribal Nations and Indigenous Peoples
have gained and passed down from generation to generation and the
critical importance of ensuring that Federal departments and
agencies' (Agencies) consideration and inclusion of Indigenous
Knowledge is guided by respect for the sovereignty and self-
determination of Tribal Nations; the Nation-to-Nation relationship
between the United States and Tribal Nations and the United States'
trust responsibility; and the need for the consent of and honest
engagement with Tribal Nations and Indigenous Peoples.
As discussed further below, incorporating to a greater degree this
substantial and diverse body of Indigenous Knowledge into its decision
making might better enable the Board to address subsistence uses for
all federally qualified users in implementing the title VIII rural
subsistence priority.
Alaska, given its vast and varied geography, has a wide variety of
subsistence uses based on place and seasons. The variations include
differences in species of fish, land mammals, and marine mammals
subject to harvest, in addition to seasonal availability of the same
resource, such as salmon, across different areas of the State. The
breadth of subsistence practices may indicate a need for a diversity of
subsistence use experiences on the Board to improve Federal decision
making.
Consistent with this, many commenters highlighted the importance of
Alaska Native ``ecological knowledge and observations by local
stakeholders to promote sustainable harvests and protect habitats.''
Federal Subsistence Policy Consultation Summary Report (June 14, 2022)
(bia.gov). One of the five questions asked of attendees to the January
2022 consultations on subsistence was ``How has climate change affected
subsistence? '' The followup question posed was ``What changes could be
made to subsistence policies, regulations, or laws to help you adapt to
those changes? '' The commenters requested the inclusion of Indigenous
Knowledge to inform decision making as noted above, and
[[Page 14012]]
they ``emphasized the need to make real-time management decisions that
are responsive to evolving, on-the-ground conditions and fluctuations
caused by climate change.'' Federal Subsistence Policy Consultation
Summary Report (June 14, 2022) (bia.gov).
These comments reflect the unprecedented challenges the Alaska
subsistence community is facing regarding the availability of
subsistence resources as a result of climate change and other factors.
The Secretaries acknowledge that the regional advisory councils provide
opportunities to incorporate Indigenous Knowledge into Board decision
making. The Secretaries view this proposed rule as creating another
structural path for providing Indigenous Knowledge to the Board.
Additional public board members who meet the specified qualifications
have the potential to expand and diversify the kinds of evidence and
knowledge available to the Board for critical decisions. See ``What is
``Indigenous Knowledge'' And Why Does It Matter? Integrating Ancestral
Wisdom and Approaches into Federal Decision-Making,'' available at
https://www.whitehouse.gov/ostp/news-updates/2022/12/02/ (last accessed
Oct. 24, 2023). The Secretaries again invite comments on all of these
issues.
The Secretaries' inclusion of recommendations/nominations from
federally recognized Tribes honors the Secretaries' political
relationship with Tribal Nations and their commitment to strengthening
relations with Indigenous Peoples. The Secretaries' consideration of
these nominations/recommendations also would recognize Tribes'
qualifications to identify individuals who possess personal knowledge
of and direct experience with subsistence uses in rural Alaska, both
Native and non-Native, and also to identify individuals who are best
able to present Indigenous Knowledge that can be included in the
Board's decision making. Tribal governments are well-situated to make
these recommendations in part because Alaska Natives comprise
approximately 55 percent of the rural population in all areas of the
State and constitute a much larger majority--82 percent of the
population--in the most remote and roadless regions. See James A. Fall,
Alaska Populations Trends and Patterns, 1960-2018 at 11, ADF&G Div. of
Subsistence, Alaska Dep't of Fish & Game (2019); Alaska Native
Population, Alaska Native Policy Center.\2\
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\2\ See also U.S. Census Bureau, Percent American Indian and
Alaska Native Alone or in Combination, Total Population by County:
2020, https://public.tableau.com/shared/NMZXRS84J?:showVizHome=n
(showing the Alaska Native population makes up 96.9% of the Kusilvak
Census Area, 88.5% of the Bethel Census Area, 88.1% of the Northwest
Arctic Borough, 82.6% of the Nome Census Area, 79.9% of the
Dillingham Census Area, and 77.2% of the Yukon-Koyukuk Census Area).
https://www.adfg.alaska.gov/static/home/library/pdfs/subsistence/Trends_in_Population_Summary_2019.pdf.
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In proposing this rule, the Secretaries acknowledge that they will
retain ultimate authority to decide whether to appoint to the Board the
particular individuals nominated or recommended by Tribes; the
Secretaries are not delegating their authority to appoint.
II. Qualifications of Chair
In addition, the Secretaries propose to require that the Board
Chair possess personal knowledge of and direct experience with
subsistence uses in rural Alaska.
III. Term Limits
The Secretaries also are considering whether to impose term limits
as to public Board members, including potentially the Chair. The
proposed regulatory text includes reference to the potential for the
Secretaries to establish term limits for service of Board members in
such circumstances as the Secretaries deem appropriate. The Secretaries
invite public comment on other possible approaches, such as including
specific term limit requirements, with or without staggered terms, in
the regulatory text that would apply when new appointments are made
(and not to existing members). The comments may address, for example,
what specific term limits may be appropriate (i.e., what duration
measured in years) and whether and how they should be renewable.
IV. Oversight Responsibility and Ratification Requirement
Consistent with title VIII, the Secretaries propose clarifying that
the Secretary of the Interior, or the Secretary of Agriculture with
respect to a unit of the National Forest System, retains the authority
to modify, disapprove, stay, or expressly ratify any action taken by
the Board. The Secretaries also propose to incorporate a requirement
for ratification. Under the proposal, recognizing that the Board may
need to act quickly in response to changed circumstances, temporary
special actions of the Board will not become effective for 10 calendar
days (or any longer period specified by the Board when taking the
action), allowing an opportunity for the Secretaries to modify,
disapprove, stay, or expressly ratify the actions. For emergency
special actions (36 CFR 242.19(a) and 50 CFR 100.19(a)), the Board
action will likewise not become effective for 10 calendar days unless
the Board determines that the emergency situation calls for responsive
action within 24 hours to protect subsistence resources or public
safety. If the Secretaries do not take action (i.e., to modify,
disapprove, stay, or expressly affirm) during the 10 calendar days (or
the longer period), the Board decision will be deemed automatically
ratified by the Secretary for purposes of the proposed regulation (with
the Secretary retaining discretion to revisit prior express or
automatic ratifications). For other Board actions (i.e., actions that
follow the regular adoption process in 36 CFR 242.18 and 50 CFR
100.18), the Secretaries retain, and will exercise when appropriate,
their authority to modify or disapprove actions prior to publication in
the Federal Register, as is the current practice.
The Secretaries provide proposed draft regulatory text for this
specific proposal at the end of this document, but also invite public
comment on this proposal and expressly request comments on the
following:
(1) Should the Secretaries consider adopting a different framework
that, while not requiring ratification, allows for review of emergency
and temporary Board actions? For example, should the Secretaries
consider a framework in which the effective date of Board actions would
be delayed to allow the Secretaries a limited time to review those
actions (and potentially stay the action for a further limited time to
facilitate decision making concerning whether to modify or disapprove
the action)?
(2) Are the proposed timeframes for ratification of special actions
and emergency actions sufficient to allow for the Board to respond to
evolving resource and subsistence issues in real time while allowing
for appropriate Secretarial oversight and approval?
(3) What specific mechanism(s) should the Secretaries use to
modify, disapprove, stay, or expressly affirm an emergency or temporary
Board action (i.e., what would be the form of the Secretary of the
Interior's action, and how would it best be communicated to the Board
and public)?
(4) Would it be helpful and/or necessary for the Secretaries to
make any conforming changes to the other regulations in 36 CFR part 242
and 50 CFR part 100, such as the regulation governing Board
reconsideration of actions (36 CFR 242.20 and 50 CFR 100.20), if the
ratification requirement is included in the final rule?
[[Page 14013]]
Public Review Process--Comments
You may submit written comments and materials concerning this
proposed rule by one of the methods listed in ADDRESSES. If you submit
a comment via https://www.regulations.gov, your entire comment,
including any personal identifying information, will be posted on the
website. If you submit a hardcopy comment that includes personal
identifying information, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy comments on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov at
Docket No. FWS-R7-SM-2024-0017.
Tribal Consultation and Comment
As expressed in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' the Federal officials
that have been delegated authority by the Secretaries are committed to
honoring the unique government-to-government political relationship
that exists between the Federal Government and federally recognized
Indian Tribes (Tribes) as listed in 82 FR 4915 (January 17, 2017).
Consultation with Alaska Native corporations is based on Public Law
108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by
Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat.
3267, which provides that: ``The Director of the Office of Management
and Budget and all Federal agencies shall hereafter consult with Alaska
Native corporations on the same basis as Indian Tribes under Executive
Order No. 13175.''
Because Tribal members are affected by subsistence regulations, the
Secretaries will provide federally recognized Tribes of Alaska and
Alaska Native corporations an opportunity to consult on this proposed
rule.
As stated above, the Secretaries previously conducted consultations
where the subject of Board membership was addressed. The Secretaries
have directed that DOI and USDA representatives will hold joint
consultations regarding this rulemaking effort. The Secretaries will
engage in outreach efforts for this proposed rule, including a
notification letter, to ensure that Tribes and Alaska Native
corporations are advised of the mechanisms by which they can
participate. The Secretaries will commit to efficiently and adequately
providing an opportunity to Tribes and Alaska Native corporations for
consultation regarding this subsistence rulemaking.
The Secretaries will consider Tribes of Alaska and Alaska Native
corporations' information, input, and recommendations, and will address
their concerns as much as practicable.
Compliance with Statutory and Regulatory Authorities
National Environmental Policy Act
A draft environmental impact statement that described four
alternatives for developing a Federal Subsistence Management Program
was distributed for public comment on October 7, 1991. The final
environmental impact statement (FEIS) was published on February 28,
1992. The Record of Decision (ROD) on Subsistence Management for
Federal Public Lands in Alaska was signed April 6, 1992. The selected
alternative in the FEIS (alternative IV) defined the administrative
framework of an annual regulatory cycle for subsistence regulations.
A 1997 environmental assessment dealt with the expansion of Federal
jurisdiction over fisheries and is available by contacting: U.S. Fish
and Wildlife Service, Office of Subsistence Management, 1011 E Tudor
Road, MS 121, Anchorage, Alaska 99503-6199. The Secretary of the
Interior, with concurrence of the Secretary of Agriculture, determined
that expansion of Federal jurisdiction does not constitute a major
Federal action significantly affecting the human environment and,
therefore, signed a finding of no significant impact.
Similarly, this proposed rule does not constitute a major Federal
action significantly affecting the quality of the human environment.
Further, a detailed statement under the National Environmental Policy
Act of 1969 is not required because the rule is covered by a
categorical exclusion under 43 CFR 46.210(i): ``Policies, directives,
regulations, and guidelines: that are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process,
either collectively or case-by-case.'' We have also determined that the
proposed rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under the
National Environmental Policy Act.
Section 810 of ANILCA
An ANILCA section 810 analysis was completed as part of the FEIS
process on the Program. 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 restrictions are necessary to conserve
healthy fish and wildlife populations. The final section 810 analysis
determination appeared in the April 6, 1992, ROD and concluded that the
Federal Subsistence Management Program, under alternative IV with an
annual process for setting subsistence regulations, may have some local
impacts on subsistence uses, but will not restrict subsistence uses
significantly.
During the subsequent environmental assessment process for
extending fisheries jurisdiction, an evaluation of the effects of the
subsistence program regulations was conducted in accordance with
section 810. That evaluation also supported the Secretaries'
determination that the regulations will not reach the ``may
significantly restrict'' threshold that would require notice and
hearings under ANILCA section 810(a).
Paperwork Reduction Act of 1995 (PRA)
This proposed rule contains existing information collections. All
information collections require approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA, 44
U.S.C. 3501 et seq.). We may not conduct or sponsor, and you are not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. OMB has reviewed and approved the
information collection requirements associated with this rulemaking and
assigned the OMB Control Number 1018-0075 (expires January 31, 2024,
and, in accordance with 5 CFR 1320.10, an agency may continue to
conduct or sponsor this collection of information while the submission
is pending at OMB). This proposed rule makes no substantive changes to
the currently approved information collections. We anticipate a minor
increase in the estimated number of annual responses and annual burden
hours associated with the currently approved FWS Form 3-2321,
Membership Application. We estimate the total burden associated with
this information collection to be 15,429 annual responses, 6,953 annual
burden hours, and no non-hour cost burden.
[[Page 14014]]
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. We have developed this proposed rule in a
manner consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this proposed rulemaking action is not
significant.
Regulatory Flexibility Act
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 impact on a substantial number of small entities,
which include small businesses, organizations, or governmental
jurisdictions. The revised Board composition put forward under this
proposed rule would not result in effects to the economy. The
Departments certify that this rulemaking will not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act.
Congressional Review Act
Under the Congressional Review Act (5 U.S.C. 804 (2)), this
proposed rule is not a major rule. It will 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 will 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.
Executive Order 12630
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 in Alaska. Likewise,
these proposed regulations have no potential takings of private
property implications as defined by Executive Order 12630.
Unfunded Mandates Reform Act
The Secretaries have determined and certify pursuant to the
Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed
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 proposed rule would be by Federal agencies, with
no cost imposed on any State or local entities or Tribal governments.
Executive Order 12988
The Secretaries have determined that these proposed regulations
meet the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988, regarding civil justice reform.
Executive Order 13132
In accordance with Executive Order 13132, this proposed 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 public lands unless it meets certain requirements.
Executive Order 13175
As described above under Tribal Consultation and Comment, the
Secretaries will provide federally recognized Tribes of Alaska and
Alaska Native corporations a variety of opportunities for consultation,
commenting on proposed changes to the existing regulations, and
providing input in person, by mail or email, at any time during the
rulemaking process.
Executive Order 13211
This Executive order requires agencies to prepare statements of
energy effects when undertaking certain actions. However, this proposed
rule is not a significant regulatory action under E.O. 13211, affecting
energy supply, distribution, or use, and no statement of energy effects
is required.
List of Subjects
36 CFR Part 242
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
50 CFR Part 100
Administrative practice and procedure, Alaska, Fish, National
forests, Public lands, Reporting and recordkeeping requirements,
Wildlife.
Proposed Regulation Promulgation
For the reasons set out in the preamble, the Secretaries of the
Interior and Agriculture propose to amend 36 CFR part 242 and 50 CFR
part 100 as set forth below.
PART __--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN
ALASKA
0
1. The authority citation for 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.
Subpart B--Program Structure
0
2. In subpart B of 36 CFR part 242 and 50 CFR part 100, amend Sec.
__.10 by:
0
a. Revising paragraphs (a), (b), and (d)(2); and
0
b. Adding paragraphs (d)(11) through (13).
The revisions and additions read as follows:
Sec. __.10 Federal Subsistence Board.
(a) Authority. The Secretary of the Interior and the Secretary of
Agriculture hereby establish a Federal Subsistence Board and delegate
to it the authority for administering the subsistence taking and uses
of fish and wildlife on public lands and the related promulgation and
signature authority for regulations of subparts C and D of this part.
The Secretaries retain their existing authority to restrict or
eliminate hunting, fishing, or trapping activities that occur on lands
or waters in Alaska other than public lands when such activities
interfere with subsistence hunting, fishing, or trapping on the public
lands to such an extent as to result in a failure to provide the
subsistence priority. The Secretaries also retain the ultimate
responsibility for compliance with title VIII of ANILCA and other
applicable laws and maintain oversight of the Board.
(b) Membership. (1) The voting members of the Board are: A Chair
who possesses personal knowledge of and direct experience with
subsistence uses in rural Alaska to be appointed by the Secretary of
the Interior with the concurrence of the Secretary of Agriculture; five
public members who possess personal knowledge of and direct experience
with subsistence uses in rural Alaska, three of whom shall be nominated
or recommended by federally recognized Tribal governments in Alaska and
shall possess personal knowledge of and direct experience with
subsistence uses in rural Alaska
[[Page 14015]]
(including Alaska Native subsistence uses), to be appointed by the
Secretary of the Interior with the 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 Regional Forester, U.S. Forest Service; the Alaska State
Director, Bureau of Land Management; and the Alaska Regional Director,
Bureau of Indian Affairs. Each Federal agency member of the Board may
appoint a designee.
(2) Public board members serve at the will of the Secretaries. The
Secretaries maintain their authorities for replacement of Federal
agency members, public board members, or any designees.
* * * * *
(d) * * *
(2) A quorum consists of six members.
* * * * *
(11) The Secretary of the Interior, or the Secretary of Agriculture
with respect to a unit of the National Forest System, retains authority
to (at any time) stay, modify, or disapprove any action taken by the
Board.
(12) Temporary special actions of the Board are not effective
unless ratified by the Secretary of the Interior or the Secretary of
Agriculture with respect to a unit of the National Forest System. To
allow an opportunity for the Secretaries to modify, disapprove, stay,
or expressly ratify any temporary action taken by the Board, such Board
actions will not become effective until at least 10 calendar days after
the date of the action (or any longer period specified by the Board
when taking the action). For emergency special actions, the Board
action will likewise not become effective for 10 calendar days (or any
longer period specified by the Board when taking the action) unless the
Board determines that the emergency situation calls for responsive
action within 24 hours to protect subsistence resources or public
safety. If no action is taken by the Secretary to modify, disapprove,
stay, or expressly ratify within 10 days (or the longer period
specified by the Board), the emergency or temporary Board action will
be deemed automatically ratified for purposes of this subpart. The
Secretaries may revisit a prior ratification (express or automatic) of
a Board action at any time. For other Board actions (i.e., actions that
follow the regular adoption process in Sec. __.18), the Secretaries
retain, and will exercise when appropriate, their authority to modify
or disapprove actions prior to publication in the Federal Register, as
is the current practice.
(13) The Secretaries may establish term limits for service of Board
members in such circumstances as the Secretaries deem appropriate.
* * * * *
Joan Mooney,
Principal Deputy Assistant Secretary for Policy, Management, and
Budget, Department of the Interior.
Homer L. Wilkes,
Under Secretary, Natural Resources and Environment U.S. Department of
Agriculture.
[FR Doc. 2024-03604 Filed 2-23-24; 8:45 am]
BILLING CODE 3411-15-P; 4333-15-P