[Federal Register: April 10, 2008 (Volume 73, Number 70)]
[Rules and Regulations]               
[Page 19433-19437]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 19433]]



Forest Service

36 CFR Part 242


Fish and Wildlife Service

50 CFR Part 100

[FWS-R7-SM-2008-0052; 70101-1335-0064L6]

Subsistence Management Regulations for Public Lands in Alaska; 
Federal Subsistence Regional Advisory Council Membership

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

ACTION: Reaffirmation of current regulations.


SUMMARY: This document describes the membership makeup of Federal 
subsistence regional advisory councils established under subsistence 
management regulations. This document is the final step in an 
administrative action with respect to those regulations, made necessary 
because of an order entered by the U.S. District Court for Alaska. The 
U.S. District Court order made it necessary to give further 
consideration to alternative methods for assuring balance in membership 
for regional advisory councils and to provide a complete and thorough 
administrative record.

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



    Title VIII of the Alaska National Interest Lands Conservation Act 
(ANILCA) (16 U.S.C. 3111-3126) requires the Secretaries of the Interior 
and Agriculture to 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 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.
    As a result of the McDowell decision, on July 1, 1990, the 
Department of the Interior and the Department of Agriculture 
(Departments) assumed responsibility for implementation of Title VIII 
of ANILCA on Federal public lands and waters pursuant to temporary 
subsistence management regulations that were published on June 29, 1990 
(55 FR 27114). The Departments published final regulations in the 
Federal Register (57 FR 22940, May 29, 1992). 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 in order to conform the Federal Subsistence Management Program to 
the Ninth Circuit Court's ruling in Alaska v. Babbitt, 72 F. 3d 698 
    The subsistence management regulations, as revised January 8, 1999 
(64 FR 1276), 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, U.S. Forest Service. 
Through the Board, these agencies participate in the development of the 
Federal subsistence management regulations. Because these regulations 
are jointly administered by the Departments, they are found in two 
titles (36 and 50) of the Code of Federal Regulations.

Federal Subsistence Regional Advisory Councils

    The Federal subsistence management regulations divide Alaska into 
10 subsistence resource regions, each of which is represented by a 
Federal subsistence regional advisory council (councils) (36 CFR 242.11 
and 50 CFR 100.11). The 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 as described in ANILCA Sections 801 and 805.
    The Board reviews applications for membership on the 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 
council members represent varied geographical areas, cultures, 
interests, and resource users within each region. A council member must 
be a resident of the region in which he or she is appointed, have 
knowledge of the fish and wildlife resources in that region, and have 
knowledge of the subsistence uses of that region.


    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, contended that the membership on the councils was not balanced 
as 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 committees and in response to inquiries 
related to the Federal subsistence regional advisory councils in 
Alaska, independently requested that 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 councils.'' Based on Board 
recommendations following that in-depth examination, the Secretary of 
the Interior, with concurrence of the Secretary of Agriculture, in 
November 2003 increased the size of nine of the councils; established 
the goal of making appointments to the councils so as to achieve, where 
possible, a representation goal of 70 percent subsistence users and 30 
percent sport and commercial users; revised the application/evaluation/
selection process and forms; and approved a 3-year implementation 
    The Native Village of Venetie Tribal Government and others 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

[[Page 19434]]

the 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 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 
Tribal Government and others, the Court also invalidated the 
Secretaries' policy of a goal of a 70/30 (subsistence users/sport and 
commercial users) membership representation. The Court held that the 
Secretaries had failed to comply with the notice and comment provisions 
of the Administrative Procedure Act (5 U.S.C. 553) and ruled that the 
policy should have been put before the public for comment in a 
rulemaking process. The District Court ordered the Secretaries to 
conduct a rulemaking to promulgate an appropriate regional advisory 
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 Secretaries' underlying purpose in 
revising 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 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 councils. The Secretaries also recognized that Congress intended 
in Title VIII for 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 advisory 
council system. This rule established the 70/30 representational goal 
in the change to Sec. --.11(b).
    The Native Village of Venetie Tribal Government and others 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 regional advisory council 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.''

Purpose of This Notice

    The purpose of this notice is to fulfill the requirements of the 
District Court's August 8, 2006, order: To lay out a full 
administrative record, display a complete assessment of alternatives 
considered, and provide a more complete explanation for the option 
selected for providing a balanced membership on the councils. In order 
to meet the requirements of the District Court, the Secretaries and 
Board chose to involve the public and the regional advisory councils in 
a further gathering of ideas and alternative methods to meet all the 
requirements for Council makeup. The first step of this process was to 
solicit written comments and suggestions from the public in a formal 
request dated October 12, 2006 (71 FR 60095). Those comments and 
suggestions were summarized and presented to the regional advisory 
councils during their February and March 2007 meetings. At those 
meetings, the councils were then provided the opportunity to make 
recommendations to the Federal Subsistence Board for its consideration. 
The Board was presented a packet of materials with the public comment, 
Council recommendations, and staff summaries. At a meeting on May 10, 
2007, the Board considered two main options based on the packet of 
materials and additional testimony, including verbal recommendations of 
the council chairs or their designee. The Board selected one of those 
options, after deliberation, to recommend to the Secretaries. The 
Secretaries agree with that recommendation, as documented in this 

Selection Process Explanation

    The councils must have a balanced membership in accordance with 
FACA and the court's rulings. This necessitates that qualified 
representatives from groups such as commercial users of fish and 
wildlife resources and sportsmen should sit as members of the councils. 
In order to implement that balanced membership, the Secretaries must 
have some method of identifying which interest or interests a 
prospective council member would represent. The Secretaries believe 
that 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, and commercial fishermen 
may also be sport fishermen or hunters. Sport hunters may have personal 
use fishing permits, and 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 request that each applicant for a council 
identify a primary interest. In this way, the Secretaries can appoint 
applicants who would provide a balanced membership for each council.
    Even though FACA requires a membership balanced in viewpoints, the 
purpose of the 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'' (ANILCA, Title VIII). The 
Secretaries believe that, in order to fulfill this mandate, subsistence 
interests must constitute a clear majority of members on each council. 
Likewise, since sport and commercial users are also entitled to be 
represented (where such qualified individuals may be present), a 
council composed of only subsistence users is not a council that meets 
the requirements of FACA when other qualified representation is 
available. The Secretaries and the Board, in promulgating the October 
2004 rule, considered subsistence and sport and commercial membership 
ratios of 60/40, 70/30, 80/20, and 90/10 percent, respectively.

[[Page 19435]]

    The Secretaries did not adopt the 90/10 ratio, because a single 
individual on a 10-member 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 unable to travel due to 
inclement weather. If such a situation happens to the single person 
representing sport and commercial users, then there would be no 
representation of those viewpoints. The Secretaries also rejected the 
60/40 ratio. A council with a 60/40 ratio could easily be dominated by 
sport and commercial interests when one or two members representing 
subsistence interests are missing from the meeting. An obverse 
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 and still allows meaningful 
representation by sport and commercial interests. All council members 
are expected to examine each proposal, policy, or plan and contribute 
to the development of council recommendations based on recognized 
principles of fish and wildlife conservation, satisfaction of 
subsistence needs, and substantial evidence, consistent with Title VIII 
of ANILCA, and are not expected to act as single interest only 
    The councils were first constituted with a 70/30 membership 
representation goal before their winter 2004 meetings. Since then, the 
10 councils have held at least 70 regularly scheduled meetings. In 
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. The balanced councils are successful in 
part because persons representing the different interests depend on the 
same fish and wildlife resources, with conservation being the main 

Summary of Comments From Federal Subsistence Regional Advisory 
Councils, Other Organizations, and the Public

    As previously described, the Federal Subsistence Board sought 
public comment on October 12, 2006 (71 FR 60095). The Board received 
written comments from the Alaska Department of Fish and Game (ADF&G) 
and the public, including two tribal agencies, one Native organization, 
one sport fishing and hunting organization, and seven private citizens. 
Assisted by summaries of that comment, the Federal Subsistence regional 
advisory councils considered council composition at their February and 
March 2007 meetings. At the Board's May 10, 2007 meeting, eight 
councils made formal recommendations and two councils chose not to make 
a recommendation but submitted comments to the Board. In total there 
were approximately 43 different recommendations centered around three 
basic themes. These were considered by the Board during its May 10, 
2007 meeting. The recommendations and a response to those 
recommendations follow. The responses reflect the Secretaries' selected 
methodology for assuring balance in membership of the regional advisory 

Comments Regarding Council Structure

Recommendations Regarding a Percentage Quota

    By a ratio of 2 to 1, the commenters and councils opposed setting a 
ratio of any kind. Their comments noted that: (1) The councils were 
created for subsistence users who otherwise have little say in the 
management of their resources; (2) since the purpose of the councils is 
for recommendations on subsistence management, councils should be 
composed of subsistence persons familiar with local uses and needs; (3) 
single-interest representation is not a realistic mirror of Alaskan 
resource users who are not neatly divided into groups.
    Those who support designating a percentage of seats on each council 
for different user groups noted that: (1) The percentage should reflect 
each region's demographics, and (2) no less than 30 percent of council 
members should be commercial and sport use representatives and no more 
than 70 percent should be subsistence use representatives.
    Response: The Secretaries conclude that using a ratio to fill 
council seats provides a process which clearly demonstrates their 
desire for diverse representation of users on the councils. The 70/30 
ratio allows commercial and sport use representatives a meaningful 
participation on the councils while maintaining (and protecting) a 
majority voice for subsistence users. This ratio system of 
representation worked well during the years it was used. The ratio is a 
goal rather than an absolute requirement. The council member selection 
process is dependent on the applications received, and some regions do 
not have a sufficient number of resident commercial and sport use 
applicants to fill 30 percent of the seats. The Secretaries recognize 
that a majority of applicants do participate in commercial or sport and 
subsistence activities, and the Departments generally approve for 
appointment those applicants with the most comprehensive knowledge of 
resource uses. The Secretaries intend that at no time will selections 
be made with less than a 70/30 ratio, favoring subsistence 

Other Comments Regarding Council Structure

    Some commenters recommended amending ANILCA to exempt the councils 
from FACA and to conduct a formal rulemaking for the balanced 
membership plan, which would include public hearings and consultation 
with tribal governments that have an interest in this regulation.
    Response: Amendments to ANILCA are beyond the scope of this notice. 
The Federal Subsistence Management Program has conducted a formal 
rulemaking concerning council membership, of which this notice is a 
part. The rule balances the requirements of FACA and ANILCA.
    Other recommendations were to (1) Include designated seats for 
tribal members; (2) designate seats to be nominated by the governor, 
Federal Subsistence Board, and State fish and game advisory committees; 
(3) add State subsistence and personal use, and animal protectionists, 
to the categories represented; (4) create separate councils for hunting 
and fishing in each region to allow more commercial and sport 
    Response: ANILCA Title VIII priorities are established for all 
rural residents of Alaska and do not provide preference based on 
ethnicity. Under current regulations, anyone may nominate members for 
the Secretaries' consideration. However, the Secretaries have always 
reserved for themselves the authority to make final appointments.
    FACA requires diverse viewpoints to be represented on the councils, 
but also requires that the membership be balanced with the purpose of 
the councils, which is to provide a forum for interested persons to 
advise the Board regarding any matter pertaining to subsistence uses 
and needs. FACA also states that not all interested user groups or 
individuals can expect membership on a Federal advisory committee.

[[Page 19436]]

 Recommendations Regarding the Member Appointment Process

    The commenters made recommendations related to the appointment 
process that are summarized as follows: (1) Expand outreach to diverse 
applicants; (2) revise applicant evaluation criteria to encourage 
diversity; (3) balance should also consider age, gender, ethnicity, 
income, education, geographic residence, and other factors; (4) require 
applicants to designate the interest group they feel most qualified to 
represent; and (5) maintain a contact list of various organizations, 
and contact each one regarding each applicant and verify with the 
community that the applicant would represent community resources use 
    Response: Since inception of the councils, the Secretaries have 
considered age, gender, education, and geographic residence when making 
appointments. Beginning with the 2003 nomination cycle, the Board 
expanded outreach to commercial and sport use organizations, the 
application forms were modified to allow for self designation of user 
group representation, and the applicant evaluation criteria were 
modified to accommodate commercial and sport use representatives. The 
nominations process does include a thorough interview of the 
applicants, their references, and key regional contacts to determine 
whether applicants are qualified and able to represent their 
communities and regions.

Recommendations Regarding Individual Member Criteria

    The commenters made recommendations related to membership 
evaluation criteria. Recommendations included: (1) Eliminate the 
requirement for all members to be knowledgeable about the subsistence 
uses of public lands in the region; (2) clearly identify the financial 
interests of members; (3) require all members to uphold ANILCA and 
protect subsistence uses; and (4) require all appointees to have a 
comprehensive understanding of Federal and State subsistence management 
systems, ANILCA, the user group issues, regional subsistence uses and 
areas, and Robert's Rules of Order.
    Response: The requirement for all members to know subsistence uses 
is imbedded in ANILCA and can only be removed by Congress. ANILCA Title 
VIII and the implementing regulations require all council members to be 
residents of the region they serve, to have knowledge of that region, 
and to have knowledge of the subsistence uses of that region. This 
knowledge is necessary for the councils to fulfill their purpose. The 
Department of the Interior's ethics policy for its many advisory 
committee members neither requires nor encourages financial disclosure, 
but it does require disclosure of lawsuits, land use permits, and 
certain other interactions with Department agencies in which the member 
is a named party. All members are expected to work within the framework 
of Title VIII and to uphold the law. The applicant evaluation process 
seeks those with the most comprehensive knowledge of the region's 
resources and resource uses and leadership qualities and experience. 
New council members are provided orientation training and an operations 
manual, and all councils have staff provided to facilitate a free flow 
of information and assistance to all council members.

Federal Subsistence Board Recommendation

    During the Federal Subsistence Board's public meeting on May 10, 
2007, after reviewing staff reports, recommendations, and comments by 
the regional advisory councils, public comments, and public testimony 
presented during the meeting, the Board developed and considered two 
distinct options: (1) The first option would lead to councils composed 
of individuals who each hold a variety of viewpoints, and (2) the other 
option would provide a variety of viewpoints by a membership composed 
of distinct single-use representatives.
    Option 1. Councils composed of individuals, each of whom holds a 
variety of viewpoints. This option would seat members who have a 
comprehensive knowledge of the subsistence, commercial, and sport uses 
within their respective regions.
    In combination, the majority of commenters and councils preferred 
this option. Most past and current council members participate in 
multiple resource uses. These members were able to represent the 
multiple viewpoints of the resource uses within their regions and offer 
a comprehensive perspective.
    Option 2. Provide a variety of viewpoints by a membership composed 
of distinct single-use representatives. This option would maintain the 
goal of seating a specific percentage of commercial and sport use 
representatives on the subsistence regional advisory councils.
    Among councils and commenters that favor this option, the ratio 
most mentioned is a ratio of 70/30 subsistence to commercial and sport 
users. This option would clearly show that commercial and sport uses 
are represented on the councils. Councils and public commenters wanted 
the Board to consider that some regions have little or no commercial or 
sport use; therefore, the percentage ratio should remain a goal rather 
than establish designated seats. If no qualified commercial or sport 
use representatives apply in any given year, seats could then be filled 
by subsistence use representatives, and the percentage ratio goal would 
be sought with the next year's appointments.
    After deliberation, the Board voted 6-0 on Option 2, to recommend 
to the Secretaries the final rule as published on October 14, 2004 (69 
FR 60957).

Secretarial Conclusion

    The Secretaries concur with the recommendation of the Federal 
Subsistence Board. In deciding on the option which uses percentages for 
council membership, the Secretaries jointly conclude that percentages 
would serve as a guide and not a requirement. It is understood that 
filling seats representing other user groups may be difficult, if not 
impossible, at all times in certain regions of the State. The 
Secretaries agree that defining specific seats by user groups could be 
a divisive factor if applied in a rigid context. However, recent 
experience has shown that communities can be unified by having 
additional viewpoints brought into the discussion and by providing a 
forum for competing interests to work together to find common ground. 
In addition, the designation of specific seats adds clarity to the 
overall management of the program and assists the Secretaries in their 
selection process.
    The Secretaries concur that this notice expresses their view in 
choosing the 70/30 ratio over others such as 60/40 or 80/20; that the 
current council composition accomplishes their goal to include diverse 
viewpoints on the councils and balance the councils' knowledge with the 
councils' functions; that the 70/30 ratio, as previously implemented, 
was working well and that in many cases this ratio supported stronger, 
more defensible recommendations and helped to unify people on the 
issues at hand; and that the differing viewpoints of the diverse 
membership lead to better discussions. The Secretaries consider the 70/
30 ratio as a guideline and understand that in some regions it may be 
difficult to achieve that ratio due to regional demographics.

[[Page 19437]]

Drafting Information

    Theo Matuskowitz drafted this notice under the guidance of Peter J. 
Probasco of the Office of Subsistence Management, Alaska Regional 
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Charles 
Ardizzone, Alaska State Office, Bureau of Land Management; Sandy 
Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park 
Service; Drs. Warren Eastland and Glenn Chen, Alaska Regional Office, 
Bureau of Indian Affairs; Jerry Berg and Carl Jack, Alaska Regional 
Office, U.S. Fish and Wildlife Service; and Steve Kessler, Alaska 
Regional Office, U.S. Forest Service, provided additional assistance.

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

    Dated: April 3, 2008.
P. Lynn Scarlett,
Deputy Secretary of the Interior, Department of the Interior.
    Dated: March 27, 2008.
Mark Rey,
Under Secretary for Natural Resources and Environment, Department of 
Agriculture, Forest Service.
[FR Doc. E8-7580 Filed 4-9-08; 8:45 am]