[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]
[DOCID:fr10ap08-3]
[[Page 19433]]
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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
[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,
Interior.
ACTION: Reaffirmation of current regulations.
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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)
786-3592.
SUPPLEMENTARY INFORMATION:
Background
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
(1995).
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.
Litigation
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
period.
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
notice.
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
representatives.
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
concern.
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
councils.
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
representatives.
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
representation.
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
activities.
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]
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