[Federal Register: April 15, 2004 (Volume 69, Number 73)]
[Proposed Rules]               
[Page 19964-19968]
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: Proposed rule.


SUMMARY: This proposed rule would clarify the membership qualifications 
for Federal Subsistence Regional Advisory Councils established under 
Subsistence Management Regulations. The rulemaking is necessary because 
of a judgment by the U.S. District Court for Alaska. The proposed rule 
would also remove the definition of ``regulatory year'' from Subpart A 
and place it in Subpart D of the regulations.

DATES: The Federal Subsistence Board must receive your written public 
comments on this proposed rule no later than June 1, 2004. Because the 
U.S. District Court is requiring prompt action on the membership 
qualifications for Regional Advisory Councils, no extension of this 
review deadline will be granted.
    The Federal Subsistence Board will hold a public meeting on May 19, 
2004, to receive comments on this proposed rule. See SUPPLEMENTARY 
INFORMATION for additional information on the public meeting.

ADDRESSES: You may submit electronic comments to Subsistence@fws.gov. 
See SUPPLEMENTARY INFORMATION for file formats and other information 
about electronic filing. You may submit written comments and proposals 
to the Office of Subsistence Management, 3601 C Street, Suite 1030, 
Anchorage, Alaska 99503.

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

[[Page 19965]]

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) 


Public Review Process--Regulation Comments and Public Meeting

    Electronic filing of comments: You may submit electronic comments 
to Subsistence@fws.gov. Please submit your comments as either an MS 
Word or WordPerfect file, avoiding the use of any special characters 
and any form of encryption.
    The Federal Subsistence Board (Board) will receive comments on this 
proposed rule during a public meeting to be held at the Millennium 
Alaska Hotel in Anchorage on May 19, 2004, at 1:30 p.m. You may provide 
oral testimony before the Board at that time. The Board will then 
review all comments received and forward its recommendations to the 
Secretary of the Interior and the Secretary of Agriculture 
(Secretaries) for final action.


    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 includes a Chair appointed by the Secretary of the Interior 
with concurrence of the Secretary of Agriculture; the Alaska Regional 
Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, 
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 proposed 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 (RAC). 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 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 challenging 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, 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 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 
coming from 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 proceeding 
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

[[Page 19966]]

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 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. This rulemaking will provide a clear 
mechanism and focus for public comments either directly in writing, or 
orally at the May 2004 public hearing.
    The underlying purpose of the proposed 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 proposed 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 proposed change to 
Sec.  ----.11(b) would 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 proposed change to Sec.  ----.11(b) would establish goals only 
in recognition that the actual appointments are dependent on the 
submission of applications by and nominations of highly qualified 
individuals, and the actual appointment by the Secretaries of specific 
individuals. The change would also require the Board to identify to the 
Secretaries the interest(s) that the applicant would represent. The 
Secretaries will retain their role in making the appointments to the 
Regional Councils. Other alternatives to the proposed change could be 
considered or could be developed based on comments received. However, 
the final action resulting in a change to Sec.  ----.11(b) must be 
consistent with FACA and ANILCA.
    Additionally, we propose that the definition of ``regulatory year'' 
for fish and shellfish fisheries be modified to mean April 1 through 
March 31, and that the placement of this definition be shifted from 
Sec.  ----.4 to Sec.  ----.25. This change in dates will allow more 
opportunity for development of public booklets informing subsistence 
users of regulatory changes, and the shift in placement of the 
definition within the regulations will allow the Board more flexibility 
to make adjustments in the future.

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.

Paperwork Reduction Act

    These proposed 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 

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

[[Page 19967]]

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 
    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, 
``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 proposes to amend 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.

    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) is revised to read as follows:

Sec.  ----.11  Regional advisory councils.

    (a) * * *
    (b) Establishment of Regional Councils; membership. (1) The Board 
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. 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.
* * * * *

[[Page 19968]]

    Dated: April 9, 2004.
Gale A Norton,
Secretary of the Interior, Department of the Interior.

    Dated: February 23, 2004.
Steven A. Brink,
Regional Forester, Acting, USDA-Forest Service.
[FR Doc. 04-8569 Filed 4-14-04; 8:45 am]