Rule2024-24088
Subsistence Management Regulations for Public Lands in Alaska-Subpart B, Federal Subsistence Board Membership
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 17, 2024
Effective
November 18, 2024
Issuing agencies
Agriculture DepartmentForest ServiceInterior DepartmentFish and Wildlife Service
Abstract
Based on requests during joint consultations with Alaska Native Tribes and others, the Departments of the Interior and Agriculture (Departments) revise the regulations concerning the composition of the Federal Subsistence Board (Board), which has authority to administer the subsistence taking and uses of fish and wildlife on public lands in Alaska, subject to the Department's oversight. The Departments add three public members nominated or recommended by federally recognized Tribal governments, require that those nominees have certain knowledge and experience, define requirements used to select the Board Chair, and affirm the Secretaries' authority to replace Board members and the Secretaries' responsibility and oversight regarding Board decisions. These regulatory revisions are responsive to the primary requests made to the Departments during the consultations.
Full Text
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<title>Federal Register, Volume 89 Issue 201 (Thursday, October 17, 2024)</title>
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[Federal Register Volume 89, Number 201 (Thursday, October 17, 2024)]
[Rules and Regulations]
[Pages 83622-83628]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24088]
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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; 245D0102DM DS61900000 DMSN00000.000000
DX61901; 70101-1261-0000L6]
RIN 1018-BH67
Subsistence Management Regulations for Public Lands in Alaska--
Subpart B, Federal Subsistence Board Membership
AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Final rule.
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SUMMARY: Based on requests during joint consultations with Alaska
Native Tribes and others, the Departments of the Interior and
Agriculture (Departments) revise the regulations concerning the
composition of the Federal Subsistence Board (Board), which has
authority to administer the subsistence taking and uses of fish and
wildlife on public lands in Alaska, subject to the Department's
oversight. The Departments add three public members nominated or
recommended by federally recognized Tribal governments, require that
those nominees have certain knowledge and experience, define
requirements used to select the Board Chair, and affirm the
Secretaries' authority to replace Board members and the Secretaries'
responsibility and oversight regarding Board decisions. These
regulatory revisions are responsive to the primary requests made to the
Departments during the consultations.
DATES: This rule is effective November 18, 2024.
ADDRESSES: Submitted comments and supporting documents are available
for review by going to the <a href="http://Regulations.gov">Regulations.gov</a> website at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and typing the docket number, FWS-R7-SM-2024-0017,
into the search block at the top of the page.
FOR FURTHER INFORMATION CONTACT: Crystal Leonetti, Acting Director,
Office of Subsistence Management; 907-786-3888; or
<a href="/cdn-cgi/l/email-protection#7b080e190812080f1e15181e3b121408551f1412551c140d"><span class="__cf_email__" data-cfemail="c0b3b5a2b3a9b3b4a5aea3a580a9afb3eea4afa9eea7afb6">[email protected]</span></a>. For questions specific to National Forest
System lands, contact Gregory Risdahl, Regional Subsistence Program
Leader, USDA, Forest Service, Alaska Region; 907-302-7354 or
<a href="/cdn-cgi/l/email-protection#c4a3b6a1a3abb6bdeab6adb7a0a5aca884b1b7a0a5eaa3abb2"><span class="__cf_email__" data-cfemail="8aedf8efede5f8f3a4f8e3f9eeebe2e6cafff9eeeba4ede5fc">[email protected]</span></a>. Individuals in the United States who are
deaf, blind, 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.
SUPPLEMENTARY INFORMATION:
History of the Program
Under title VIII of the Alaska National Interest Lands Conservation
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and
the Secretary of Agriculture (Secretaries) jointly implement the
Federal Subsistence Management Program (Program). The Program provides
a preference for take of fish and wildlife resources for subsistence
uses on Federal public lands and waters in Alaska. The Secretaries
published temporary regulations to carry out the Program in the Federal
Register on June 29, 1990 (55 FR 27114), and final regulations were
published in the Federal Register on May 29, 1992 (57 FR 22940). The
Program regulations have subsequently been amended many times. Because
the Program is a joint effort between the Department of the Interior
(DOI) and the Department of Agriculture (collectively, ``the
Departments''), these regulations are located in two titles of the Code
of Federal Regulations (CFR): Title 36, ``Parks, Forests, and Public
Property,'' and Title 50, ``Wildlife and Fisheries,'' at 36 CFR 242.1-
28 and 50 CFR 100.1-28, respectively. The 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 (Board) to administer the
Program. The Board is currently made up of:
<bullet> A Chair appointed by the Secretary of the Interior with
concurrence of the Secretary of Agriculture;
<bullet> The Alaska Regional Director, U.S. Fish and Wildlife
Service;
<bullet> The Alaska Regional Director, National Park Service;
<bullet> The Alaska State Director, Bureau of Land Management;
<bullet> The Alaska Regional Director, Bureau of Indian Affairs;
<bullet> The Alaska Regional Forester, U.S. Forest Service; and
<bullet> Two public members appointed by the Secretary of the
Interior with concurrence of the Secretary of Agriculture.
Through the Board, these agencies and public members participate in
the development of regulations for subparts C and D, which, among other
things, set forth program eligibility and specific harvest seasons and
limits.
In administering the Program, the Secretaries divided Alaska into
10 subsistence resource regions, each of which is represented by a
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.
Background of This Rule
In January 2022, the Departments held joint consultations with
approximately 445 individual subsistence users and representatives from
federally recognized Tribes of Alaska, Tribal Consortia, Alaska Native
Organizations, and Alaska Native Corporations. In October-November
2022, DOI leadership and officials of 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.
As a result of this consultation process, the Departments proposed
to revise CFR titles 36 (in part 242) and 50 (in part 100) at Sec.
__.10 to be responsive to the requests to define the requirements used
for the selection of the Board Chair, increase the number of public
members of the Board, and include a voice for federally recognized
Tribal governments to nominate or recommend a certain number of the
public members of the Board (89 FR 14008, February 26, 2024). The
proposed rule also included a provision that the Board Chair, like the
two current public members, must possess personal knowledge of and
direct experience with subsistence uses in rural Alaska. The proposed
rule further required the three new public members to possess personal
knowledge of and direct experience with subsistence uses in rural
Alaska, including Alaska Native
[[Page 83623]]
subsistence uses, and to be nominated or recommended by federally
recognized Tribal governments.
As is currently required in the Program regulations, the Board
Chair and all public members were proposed to be appointed by the
Secretary of the Interior with the concurrence of the Secretary of
Agriculture. The Secretaries were to retain the authority to remove
public members from the Board and also would retain their existing
authorities to replace agency personnel on the Board. The proposed rule
also explained, as is currently the case, that the public members will
become special governmental employees for the purpose of serving on the
Board.
Lastly, consistent with title VIII of ANILCA, the proposed rule
confirmed that the Secretaries retain the authority to modify,
disapprove, or stay any action taken by the Board. For temporary
special actions, the proposed rule provided that such actions would not
become effective until at least 10 calendar days after the date of the
action to allow the Secretaries an opportunity to act, if needed. For
emergency special actions, the proposed rule provided that the Board
action would 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.
The February 26, 2024, proposed rule (89 FR 14008) opened a public
comment period that closed April 26, 2024. During the public comment
period, the Departments received 65 comments from a variety of
individuals and entities, including Federally Recognized Tribes of
Alaska and Alaska Native Corporations. The public comments and a report
detailing the information received during the 2022 joint consultations,
``Federal Subsistence Policy Consultation Summary Report,'' can be
found in Docket No. FWS-R7-SM-2024-0017 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Regulatory Revisions
The February 26, 2024, proposed rule (89 FR 14008) described the
regulatory revisions proposed by the Secretaries. The following
paragraphs summarize by subject matter the regulatory changes being
made in this final rule.
I. Increase in Number of Public Board Members
The current Board includes a Chair, two public Board members, and
five Federal agency personnel. The Secretaries will add three public
members nominated or recommended by federally recognized Tribes in
Alaska, 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.
II. Qualifications of Chair
In addition, the Secretaries will require that the Board Chair
possess personal knowledge of and direct experience with subsistence
uses in rural Alaska.
III. Term Limits
The Secretaries may establish term limits for service of Board
members in such circumstances as the Secretaries deem appropriate.
IV. Oversight Responsibility and Ratification Requirement
For Board actions (e.g., cyclic regulation revisions, customary and
traditional use determinations, subsistence resource regions, rural
determinations, and requests for reconsideration), the Secretaries
retain, and will exercise when appropriate, their authority to modify
or disapprove actions prior to publication in the Federal Register, as
has been the practice.
In regard to special actions, we acknowledge that the Board's
decisions are often time-sensitive regarding harvest opportunities for
rural Alaskans or critical population issues of a species. Therefore,
special actions, both emergency and temporary, are valid upon decision
by the Board. However, the final rule makes explicit that Secretaries
may at any time rescind, modify, disapprove, or stay a special action.
Summary of Comments and Response to Comments
In response to the proposed rule, the Departments received general
comments and comments specific to four questions asked in the proposed
rule. Of the 65 public comments received, 56 supported the proposed
rule, 7 opposed the proposed regulatory revisions or opposed them
unless modified, and 2 were outside the scope of the proposed rule.
Many of the comments were specific to how to implement additional
public Board membership. These comments were responsive to the
questions posed in the proposed rule, and they will be useful as the
Departments navigate the nomination and appointment process. Other
comments were specific to regulation promulgation and the legality of
the proposed rule, and we respond to those comments below.
Questions 1 and 2 are closely tied in the comments received. While
they ask two specific questions, the comments received tended to
address both questions, and we address both together in this document.
Question 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)?
Question 2: Would it be preferable for federally recognized Tribes
to nominate/recommend only two of the three new public board members?
Comments: Eight comments received in response to questions 1 and 2
indicated a preference for nominations by federally recognized Tribal
governments only. Other comments were in support of full or at least
some Alaska Native Corporation participation or expressed desire to
open the nominations to all rural residents of Alaska. An additional
comment suggested that all Tribes, including those who are not
federally recognized, should be able to provide the nominations.
Response: The final rule regulatory language maintains that the
additional public members be nominated by federally recognized Tribal
governments in Alaska. The Secretaries' limitation of nominations from
federally recognized Tribes tracks the Secretaries' political
relationship with Tribal Nations and responsibility for maintaining a
government-to-government relationship. This language does not limit the
nominations to Alaska Natives or a member of a federally recognized
Tribe, nor does it preclude Alaska Native Corporations or other Alaska
Native entities that are not federally recognized Tribes from providing
input to Tribes during nominee selection. Further, the language does
not affect the nomination or recommendation process for the other
public member positions who do not have this nomination requirement. No
changes were made to the final regulations as a result of these
comments.
Comments: Additional comments suggested requirements that should be
put in place if Alaska Native
[[Page 83624]]
Corporations are allowed to nominate, suggesting that they should be
required to consult with Tribes or should get approval of their
nominees from Tribes first.
Response: The Departments note that neither the proposed rule nor
the final rule provides for nominations from Alaska Native
Corporations.
Comments: Four commenters expressed concern that requiring the
additional public members to be nominated or recommended by a Tribal
government constitutes a racial classification. One of these commenters
further expressed concern that the new public members would ``represent
Native villages.''
Response: Both of these concerns reflect a misreading of the
proposed rule, which does not include a requirement that a nominee be
Alaska Native or a member of a federally recognized Tribe. A federally
recognized Tribal government may recommend a person of any race or
ethnicity and may also recommend a person who is not a Tribal member.
Tribal membership, in any case, is a political identity based on
membership in a sovereign government, not a racial classification
warranting heightened scrutiny. See, e.g., Morton v. Mancari, 417 U.S.
535 (1974); United States v. Cooley, 593 U.S. 345, 349 (2021) (``Long
ago we described Indian tribes as ``distinct, independent political
communities'' exercising sovereign authority.'' Worcester v. Georgia,
31 U.S. 515, 6 Pet. 515, 559, 8 L. Ed. 483 (1832)).
The addition of three public members to be nominated or recommended
by federally recognized Tribes reflects the following goals: To add
public members so that the Federal Subsistence Board is more balanced
between public and Federal agency members; to increase community input
into Board recommendations; and to improve Board decisions by adding
persons with personal knowledge of and direct experience with
subsistence uses in rural Alaska, including Alaska Native subsistence
uses. The Secretaries' inclusion of nominations from federally
recognized Tribes is consistent with the Secretaries' political
relationship with Tribal Nations. The Secretaries' consideration of
these nominations/recommendations recognizes 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 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 of the high proportion of Alaska
Natives in the rural areas of the State and particularly in the most
remote and roadless regions.
Comments: Two commenters highlighted the existing high levels of
Alaska Native participation in the Federal Subsistence Management
Program, through the Subsistence Resource Commissions (SRCs), Regional
Advisory Councils (RACs), and the current public Board members and
questioned the need for three additional public members nominated by
Tribes.
Response: The Departments gave careful consideration to the level
of current participation and experience on the SRCs, RACs, and Board,
by both Native and non-Native rural subsistence users. As stated above,
the addition of three public members to be nominated or recommended by
federally recognized Tribes is consistent with the Secretaries'
political relationship with Tribal Nations and reflects an effort to
add more balance between public and Federal agency members, to increase
community input into Board recommendations, and to improve Board
decisions by ensuring balance of rural representation by having persons
with personal knowledge of and direct experience with subsistence uses
in rural Alaska, including Alaska Native subsistence uses.
Additionally, most of rural Alaska consists of the Unorganized
Borough, which in turn comprises 11 census areas; these areas are for
statistical analysis but have no regional governments of their own.
Tribal governments are a primary form of local government in much of
rural Alaska. The requirement that a nomination or recommendation come
from a Tribal government thus functions as a community recommendation
that the candidate has the necessary knowledge and expertise. Further,
the rule still provides that the Chair and two other public seats are
available, outside of this nomination process, to others with the
preexisting qualifications.
Comments: Four commenters expressed concern, without providing any
details, that allowing Tribal governments to nominate or recommend
public members violated the Constitution, Civil Rights Act of 1964,
and/or ANILCA.
Response: The Departments believe that allowing federally
recognized Tribal governments to nominate or recommend persons with
relevant qualifications to be considered for appointment to the Federal
Subsistence Board is consistent with the Constitution, the Civil Rights
Act of 1964, and ANILCA. It is consistent with the federal government's
political relationship with federally recognized Tribes and there is no
requirement that a nominee be Alaska Native or a member of a federally
recognized Tribe. Moreover, the Secretaries 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.
Comment: Another commenter noted that the additional seats should
be available to all rural Alaskans, not just those nominated by Tribes.
Response: As noted above, under the rule, the Chair and two other
public members are not subject to this new nomination process.
Additionally, as noted above, there is no requirement that a nominee be
Alaska Native or a member of a federally recognized Tribe, nor must a
nominee ``represent Native villages'' as alleged by one commenter. A
federally recognized Tribal government may recommend a person of any
race or ethnicity and may also recommend a person who is not a Tribal
member. Accordingly, the final rule has not been changed from the
proposed rule as a result of these comments.
Question 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?
Comments: Eight comments received in response to question 3
indicated a preference for regional representation of appointees and
offered many routes to achieve a cadre of public members that would
ensure the representation on the Board is not biased to just one part
of the State.
Response: These suggestions were not included in the final
regulations because the Departments will take these comments into
consideration during the implementation phase. However, the commenters
did not indicate that limited numbers of Tribal governments should be
selected to submit nominations. The final rule regulatory language
regarding who can nominate three new public Board members will remain
inclusive of all Alaska federally recognized Tribal governments.
Question 4: Is the proposed quorum of six appropriate with the
addition of the three new public board members, or should it be
increased?
Comments: On the question of quorum size, two commenters wanted to
[[Page 83625]]
ensure there was always public member representation within the quorum.
Response: The Departments considered this concern but ultimately
declined to increase the quorum size or base the quorum on the Board
member status because the Board Chair, who is a public member,
essentially ensures that at least one public member is represented in
the quorum. Recognizing the timeline involved in nominating,
appointing, and onboarding new Board members, the Departments decided
to create a sliding scale for its quorum, starting at the current
regulatory quorum of five and building to six. This approach keeps the
quorum at greater than 50 percent but also avoids unintentionally
creating a situation where a quorum may be difficult to achieve before
all new Board positions are filled. The Departments made a change from
the proposed rule to the final rule and elected to set the quorum at
five when there are nine or fewer Board members and six when there are
10 or more Board members.
Comments: A related comment noted that the additional three members
would create a public member majority, thus outnumbering the agency
members who manage the land. A further comment noted that this
situation makes it more likely that Board regulations will conflict
with bureau regulations, recommending a way to avoid such conflicts.
Response: When finalizing the rule, the Departments considered the
potential implications of having a public member majority, including
the increased likelihood of conflicting regulations, and determined
that the benefits from the additional public members outweigh concerns
about a public member majority on the Board. Existing Board regulations
at 50 CFR 100.3 and 36 CFR 242.3 already provide clarity on how to
handle conflicting regulations. Accordingly, the final rule remains
unchanged from the proposed rule regarding the number of public members
as a result of these comments.
Term Limits
Comments: The Departments received comments regarding implementing
term limits, including recommendations for 3-year staggered terms
without term limits, 3-year to 5-year staggered terms, and 5-year term
limits, each with varying recommendations for the requirements for re-
nomination, re-application, and re-appointment.
Response: After considering the range of opinions on terms and term
limits without any one approach garnering more support than any other,
the Departments found no compelling reasons to change course and
elected to retain the proposed regulatory text in the final rule
regulation, which provides the Secretaries flexibility to apply term
limits to Board members as the Secretaries deem appropriate.
Qualifications of Appointed Public Board Members
Comments: Seven commenters primarily requested that appointed Board
members possess firsthand knowledge of subsistence practices, with some
commenters suggesting that knowledge should include Alaska Native
subsistence uses.
Response: The rule already incorporates these concerns as it
requires that all five public members ``possess personal knowledge of
and direct experience with subsistence uses in rural Alaska'' and the
three new public members ``shall possess personal knowledge of and
direct experience with subsistence uses in rural Alaska (including
Alaska Native subsistence uses).'' The remainder of the four
qualifications mentioned by commenters were specific to implementation
of additional Board members and may be considered during the nomination
and evaluation process. Thus, no change to the final rule was needed
because those concerns and suggestions will be addressed during that
process.
Comment: One commenter stated that non-Tribal members should be
able to be nominated.
Response: The rule allows for federally recognized Tribal
governments to nominate anyone meeting the basic qualifications,
including non-Tribal persons. Accordingly, the final rule remains
unchanged from the proposed rule as a result of this comment.
Public Member Resources
Comments: Four commenters remarked that public members should have
alternates to serve in their place if they are absent and suggested
that the alternates attend all of the Board meetings so that the
alternates are more effective when filling in for appointed members.
Three commenters said that the public members should be assigned staff
assistants like agency Board members.
Response: These suggestions were not included in the final rule
regulations because the required quorum number accounts for any
absences or vacancies, and because these provisions would significantly
affect the budget for the new rule, but the Departments will take the
comments concerning additional administrative support and related
funding into consideration during the implementation phase.
Secretarial Ratification Period for Board Special Actions
Comments: Two commenters expressed concern about the ratification
period, specifically related to the conservation of fish and wildlife
populations.
Response: Based on this feedback, the Departments further
considered the practical impact of delaying the effective date of Board
actions for 10 calendar days and whether the emergency situation
exception would resolve any concerns. In reviewing the special actions
approved by the Board in the last 2 years, not including delegations of
authority to agency field officials for in-season management, more than
half (7 of 13) of the special action requests required implementation
in less than 10 days following Board action. Of those, two of the seven
involved action that was required within 24 hours of the Board action.
The Departments gave careful thought to the difficulty in timely
assembling the Board to thoughtfully consider and deliberate about
emergent situations. Seasonal and regional conservation issues
regarding fish and wildlife arise across approximately 230 million
acres of Federal public lands and waters under Federal subsistence
management and include multiple species of fish and wildlife that are
subject to a dynamic and complicated range of partially or fully
overlapping Federal and State hunting and fishing regulations. The
Departments also considered the short duration of special actions,
including that emergency special actions are limited to a maximum of 60
days, and temporary special actions extend no longer than determined by
the Board to be necessary and are limited to the end of the current
regulatory cycle (maximum of 2 years and a number of which are
effective for only a few months). Additionally, the Departments
considered the negative impacts of imposing a delay on effective dates
of Board special actions and concluded they should be avoided in light
of the provision in the proposed rule, carried forward to the final
rule, acknowledging that the Secretaries retain authority to (at any
time) stay, modify, or disapprove any action taken by the Board. The
Departments also considered the exemption in the proposed rule for
situations where responsive action is necessary within 24 hours to
protect subsistence resources, but the information described above
indicates that that proposed exemption may
[[Page 83626]]
sometimes be insufficient to address the negative impacts of a delay.
Ultimately, in light of the comments and concerns noted above, the
Departments decided to modify the ratification period to provide the
Board with additional flexibility and eliminate the costs that would
have been associated with the practical limitations of the proposed
rule. As modified, a ratification period of 10 days would apply to
emergency and temporary special actions as a general matter, but the
Board would have the flexibility to establish a shorter period of time
for any given action (including making the action immediately
effective). The Departments conclude that this revised approach to the
ratification period will provide the benefits of maximizing the
opportunity for Secretarial oversight without unduly constraining the
Board from taking prompt action when necessary. While Board actions
will be deemed automatically ratified if the Secretaries do not modify,
disapprove, stay, or expressly ratify the action within the time period
specified by the Board in the action, the Secretaries may revisit a
prior ratification (express or automatic) at any time.
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 75 FR 60810 (October 1, 2010) and
the relationship required by statute for consultation and coordination
with Alaska Native Corporations. 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.''
The Departments are committed to efficiently and adequately
providing opportunities to Tribes and Alaska Native Corporations for
consultation with regard to subsistence rulemaking. In January 2022,
officials from DOI and the U.S. Department of Agriculture 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 fisheries. Approximately 445 individual subsistence users and
representatives from Alaska Native Tribes, Tribal Consortia, Alaska
Native Organizations, and Alaska 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.
The Departments considered Tribes' and Alaska Native Corporations'
information, input, and recommendations, and addressed their concerns
as much as practicable in this rulemaking action.
Changes From the Proposed Rule
Based on the public and Tribal comment received, the final rule
diverges from the proposed rule in regard to proposed paragraph Sec.
__.10(d)(12). While the proposed regulations at that paragraph provided
for a 10-day delay in Board actions taking effect to allow the
Secretaries the opportunity to modify, disapprove, stay, or expressly
ratify actions taken by the Board, in this final rule we have modified
the waiting period provision to provide more flexibility to the Board
while maximizing the opportunity for Secretarial oversight. This change
is based on public and Council input that the waiting period provision
in the proposed rule might interfere with the purposes of the order and
subsistence management goals. For example, in some circumstances, a
waiting period could allow for a fish run to be completed before
subsistence users had an opportunity to harvest any fish as described
in the preceding section.
The Department also made a change to the quorum at paragraph Sec.
__.10(d)(2). Recognizing the timeline involved in nominating,
appointing, and onboarding new Board members, the Departments decided
to create a sliding scale for its quorum, starting at the current
regulatory quorum of five and building to six. This approach keeps the
quorum at greater than 50 percent but also avoids unintentionally
creating a situation where a quorum may be difficult to achieve before
all new Board positions are filled. The Departments made a change in
this final rule by electing to set the quorum at five when there are
nine or fewer Board members and six when there are 10 or more Board
members.
Other than the changes just described, we have made no other
revisions to the proposed regulatory text in this final rule.
Conformance With Statutory and Regulatory Authorities
National Environmental Policy Act Compliance
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 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 at the office listed under
FOR FURTHER INFORMATION CONTACT. 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 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 (NEPA; 42 U.S.C. 4321 et seq.) 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 rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA.
Section 810 of ANILCA
An ANILCA section 810 analysis was completed as part of the FEIS
process on the Federal Subsistence Management
[[Page 83627]]
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 restriction is 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 Program, under
Alternative IV with an annual process for setting subsistence
regulations, may have some local impacts on subsistence uses, but will
not likely 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
This 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 OMB Control Number 1018-0075 (expires March 31, 2027). This
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.
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 and E.O.
13563. Regulatory analysis, as practicable and appropriate, shall
recognize distributive impacts and equity, to the extent permitted by
law. E.O. 13563 emphasizes further that regulations must be based on
the best available science and that the rulemaking process must allow
for public participation and an open exchange of ideas. The Secretaries
conducted this rulemaking 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 OMB
will review all significant rules. OIRA has determined that this final
rule 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 effect on a substantial number of small entities, which
include small businesses, organizations, or governmental jurisdictions.
In general, this final rule will not result in effects to the economy.
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.
Congressional Review Act
Under the Congressional Review Act (5 U.S.C. 804(2)), this 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 the 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.
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
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.
Executive Order 12988
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.
Executive Order 13132
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. Title VIII of ANILCA precludes the
State from exercising subsistence management authority over fish and
wildlife resources on Federal lands unless it meets certain
requirements.
Executive Order 13175
Title VIII of ANILCA does not provide specific rights to Tribes for
the subsistence taking of wildlife, fish, and shellfish. However, the
Departments provided federally recognized Tribes and Alaska Native
Corporations opportunities to consult on this rule. Consultation with
Alaska Native Corporations are 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.''
As stated previously under Tribal Consultation and Comment,
regarding this rulemaking, the Departments held joint consultations,
starting in January 2022, 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
federally recognized Tribes in Alaska regarding fisheries.
Executive Order 13211
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. However, this 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.
[[Page 83628]]
List of Subjects
36 CFR Part 242
Administrative practice and procedure, Alaska, Fish and shellfish,
National forests, Public lands, Reporting and recordkeeping
requirements, Wildlife.
50 CFR Part 100
Administrative practice and procedure, Alaska, Fish and shellfish,
National forests, Public lands, Reporting and recordkeeping
requirements, Wildlife.
Regulation Promulgation
For the reasons set out in the preamble, the Secretaries amend
title 36, part 242, and title 50, part 100, of the Code of Federal
Regulations, as set forth below.
PART __--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN
ALASKA
0
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.
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 (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 (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 five members when the total number of
Board members is nine or fewer and six members when the total number of
Board members is 10 or higher.
* * * * *
(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) 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 emergency or temporary special action taken by the
Board, such Board actions generally will not become effective until 10
calendar days after the date of the action (or any longer period
specified by the Board when taking the action), unless the Board
determines that the situation calls for responsive action within a
shorter period of time. If no action is taken by the Secretary to
modify, disapprove, stay, or expressly ratify within 10 days (or the
longer or shorter period specified by the Board), the emergency or
temporary special 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) For Board actions such as cyclic regulation revisions,
customary and traditional use determinations, subsistence resource
regions, rural determinations, and requests for reconsideration, when
the Secretaries deem appropriate, they will exercise their authority to
modify or disapprove the actions prior to publication of the actions in
the Federal Register. The Board's special actions, both emergency and
temporary, are often based on time-sensitive harvest opportunities for
rural Alaskans or critical conservation concerns for a species and are
valid upon decision by the Board. However, the Secretaries may at any
time rescind, modify, disapprove, or stay a special action by the
Board.
(14) 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, Exercising the Delegated
Authority of the Assistant Secretary--Policy, Management and Budget,
Department of the Interior.
Dr. Homer Wilkes,
Undersecretary, Natural Resources and Environment, Department of
Agriculture.
[FR Doc. 2024-24088 Filed 10-15-24; 4:15 pm]
BILLING CODE 4334-13-P; 3410-11-P
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