[Federal Register: October 12, 2006 (Volume 71, Number 197)]
[Proposed Rules]
[Page 60095-60098]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc06-21]
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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
Subsistence Management Regulations for Public Lands in Alaska;
Federal Subsistence Regional Advisory Council Membership
AGENCIES: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Request for comments.
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SUMMARY: This notice solicits written comments and suggestions on the
membership qualifications for Federal Subsistence Regional Advisory
Councils established under Subsistence Management Regulations. The
Federal Advisory Committee Act (FACA) requires that advisory councils
be constituted with a balanced membership. The current Federal
regulations set a goal of 70 percent subsistence users to 30 percent
sport and commercial users on the Federal Subsistence Regional Advisory
Councils. This notice is the first step in an administrative action
with respect to that regulation, made necessary because of an order
entered by the U.S. District Court for Alaska. Because the U.S.
District Court has enjoined application of the current 70/30 percent
goal after 2006, it is necessary to give further reconsideration to
alternative methods for assuring balance in membership for Regional
Advisory Councils in time to make any decision applicable to the 2007
appointments. Therefore, no
[[Page 60096]]
extension of the review deadline will be granted.
DATES: The Federal Subsistence Board must receive your written public
comments and suggestions on this proposed rule no later than November
13, 2006.
ADDRESSES: If you wish to comment, you may submit your comments and
materials by any one of several methods:
1. E-mail: Subsistence@fws.gov. See SUPPLEMENTARY INFORMATION for
file formats and other information.
2. U.S. mail or hand-delivery: Office of Subsistence Management,
3601 C Street, Suite 1030, Anchorage, AK 99503.
3. You may submit comments via the Federal E-Rulemaking Portal at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o
U.S. Fish and Wildlife Service, Attention: Pete 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: Electronic submission of comments to
Subsistence@fws.gov is preferred. You may submit comments and suggested
alternatives and other data as Adobe Acrobat (PDF) or MS Word files,
avoiding the use of any special characters and any form of encryption.
Background
Title VIII of the Alaska National Interest Lands Conservation Act
(ANILCA) (16 U.S.C. 3111-3126) requires that the Secretaries of the
Interior and Agriculture 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 previously found to be
consistent with ANILCA. However, in December 1989, the Alaska Supreme
Court ruled in McDowell v. State of Alaska that the rural preference in
the State subsistence statute violated the Alaska Constitution. The
Court's ruling in McDowell required the State to delete the rural
preference from the subsistence statute and, therefore, negated State
compliance with ANILCA. The Court stayed the effect of the decision
until July 1, 1990.
As a result of the McDowell decision, the Department of the
Interior and the Department of Agriculture (Departments) assumed, on
July 1, 1990, responsibility for implementation of Title VIII of ANILCA
on Federal public lands and waters. On June 29, 1990, the Temporary
Subsistence Management Regulations for Public Lands in Alaska were
published in the Federal Register (55 FR 27114). With the State unable
to create a program in compliance with Title VIII by May 29, 1992, the
Departments published a final rule in the Federal Register (57 FR
22940). On January 8, 1999 (64 FR 1276), the Departments published a
final rule to extend jurisdiction to include certain waters in which
there exists a Federal reserved water right. This amended rule became
effective October 1, 1999, and conformed the Federal Subsistence
Management Program to the Ninth Circuit's ruling in Alaska v. Babbitt.
In Subparts A, B, and C of these regulations, as revised January 8,
1999 (64 FR 1276), the Departments established a Federal Subsistence
Board (Board) to administer the Federal Subsistence Management Program.
The Board's composition 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, USDA
Forest Service. Through the Board, these agencies participate in the
development of the Federal Subsistence Management Regulations (Subparts
A, B, C, and D).
Federal Subsistence Regional Advisory Councils
Pursuant to the Record of Decision, Subsistence Management
Regulations for Federal Public Lands in Alaska, April 6, 1992, and the
Subsistence Management Regulations for Federal Public Lands in Alaska,
36 CFR 242.11 (1999) and 50 CFR 100.11 (1999), and for the purposes
identified therein, Alaska is divided into 10 subsistence resource
regions, each of which is represented by a Federal Subsistence Regional
Advisory Council. The Regional 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.
The Board reviews applications for membership on the Regional
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 Regional Council members represent varied
geographical areas, cultures, interests, and resource users within each
region. A Regional Council member must be a resident of the region in
which he or she is appointed and be knowledgeable about the region and
subsistence uses of the Federal public lands and waters therein.
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, challenged the balance of membership on the Regional Councils
required by the Federal Advisory Committee Act (FACA) of 1972, Public
Law 92-463, 86 Stat. 770 (Safari Club v. Demientieff, No. A98-0414-CV).
In the meantime, the Secretary of the Interior, as part of a national
review of advisory councils and in response to inquiries related to the
Federal Subsistence Regional Advisory Councils in Alaska, requested the
Board examine its process for selecting nominees, and ``see that''
groups such as ``residents of non-rural areas, commercial users of fish
and wildlife resources and sportsmen are represented on the RACs.''
Based on Board recommendations following that in-depth examination, the
Secretary of the Interior, with concurrence of the Secretary of
Agriculture, in 2002 increased the size of nine of the Regional
Councils; established the goal of making appointments to the Regional
Council so as to achieve, where possible, a representation goal of 70
percent subsistence users and 30 percent sport/commercial users;
revised the application/evaluation/selection process and forms; and
approved a 3-year implementation period (67 FR 30559, May 7, 2002).
The Native Village of Venetie Tribal Government et al. were
permitted to intervene in the Safari Club case and to challenge the 70/
30 ratio representational goals established by the Secretaries. In
January 2004, the U.S. District Court for Alaska entered an order
recognizing that with respect to the Regional 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
[[Page 60097]]
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, the
Court also invalidated the Secretaries' policy of a goal of a 70/30
(subsistence users/sport and commercial users) membership
representation for failure to procedurally comply with the provisions
of the Administrative Procedure Act found at 5 U.S.C. 553, and found
that the policy should have been put before the public for comment in a
rulemaking process. The District Court also ordered that the
Secretaries promptly initiate and conclude a rulemaking to promulgate
an appropriate Regional Council regulation consistent with FACA after
compliance with 5 U.S.C. 553. 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 underlying purpose of the change to
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 Regional 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 Regional Councils, while recognizing that Congress
intended in Title VIII for rural Alaska residents ``who have personal
knowledge of local conditions and requirements * * * to have a
meaningful role in the management of fish and wildlife and of
subsistence uses on public lands in Alaska,'' and that Congress also
intended that ``large urban population centers'' not be allowed to
dominate the Regional Council system. This rule established the 70/30
representational goal in the change to Sec. ----.11(b). The purpose
was to assure the appropriate representation and meaningful majority
role for rural Alaska residents, while providing an appropriate
representation for the interests of nonrural residents and
nonsubsistence users.
The interveners 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 RAC
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.''
The purpose of the process that the Secretaries and the Board are
undertaking, in this notice, is to fulfill the requirements of the
district court's August 8, 2006, decision, to lay out a full
administrative record, display a complete assessment of alternatives
considered, and provide a fuller explanation for the option selected
for providing a balanced membership on the Regional Councils.
The Regional Councils must have a balanced membership in accordance
with FACA and the court's rulings. This necessitates that
representatives from groups such as commercial users of fish and
wildlife resources and sportsmen must be sitting as members of each
Council. In order to implement that balanced membership, the
Secretaries and the Board must have some method of identifying which
interest or interests a prospective Council member would represent.
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; commercial fishermen may
also be sport fishermen or hunters. Sport hunters may have personal use
fishing permits, while 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 and the Board requested that each applicant for
a Regional Council identify a primary interest. In this way, the Board
can identify and recommend to the Secretaries applicants who would
provide a balanced membership for each Regional Council.
Even though FACA requires a membership balanced in viewpoints, the
purpose of the Regional 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.'' The Secretaries believe
that, in order to fulfill this mandate, subsistence interests must
constitute a majority of members on each Regional Council. Likewise,
since sport and commercial users are also entitled to be represented
(where such qualified individuals may be present), a Regional Council
composed of only subsistence users is not a Regional Council that meets
the requirements of FACA. The Secretaries and the Board, in adopting
the current regulations, therefore, considered subsistence, sport, and
commercial membership ratios of 60/40, 70/30, 80/20, and 90/10 percent,
respectively.
The Secretaries discarded the 90/10 ratio because a single
individual on a 10-member Regional 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 weathered out.
If that is the single person representing sport and commercial users
when that happens, then there is no representation of those viewpoints.
The Board also discarded the 60/40 ratio. A Council with a 60/40 ratio
with one or two members representing subsistence missing from the
meeting could easily be dominated by sport and commercial interests.
The same domineering 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,
but the 30 percent membership would also allow both sport and
commercial interests to be meaningfully represented. All Regional
Council members are still expected to examine each proposal, policy, or
plan and develop Regional Council recommendations based on recognized
principles of fish and wildlife conservation, satisfaction of
subsistence needs, and substantial evidence,
[[Page 60098]]
consistent with Title VIII of ANILCA, and are not expected to act as
only single interest representatives.
The Regional Councils were first constituted with a 70/30
membership representation goal before their winter 2004 meetings. Since
then, the 10 Regional Councils have held 50 regularly scheduled
meetings. In almost 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. Part of the success of the
balanced Councils results from the fact that all these interests depend
on the same fish and wildlife resources, with conservation the main
concern.
By way of this notice, the Board and Secretaries are requesting
your comments on the existing 70/30 representational membership goal
that is currently in regulation for the Regional Councils. This
membership requirement is set forth at 36 CFR 242.11(b) and 50 CFR
100.11(b). Your suggestions for any modifications to the existing 70/30
goal are also sought. The Board and Secretaries also invite you to
submit any suggested alternative ideas for providing a balanced
membership that complies with FACA, while still meeting the intent of
ANILCA. Following the close of the comment period as identified in the
DATES section, the public comments, suggestions, and identified
alternatives will be presented to the Regional Councils during their
winter 2007 meetings. This procedure will allow both the Regional
Councils and the public to have an opportunity to present ideas and
testimony related to the issue of a methodology for achieving balanced
Regional Councils. This is not required by Section 805(c) of ANILCA and
any recommendations the Councils may make are not recommendations
subject to Section 805(c). Any suggestions, alternatives, or
recommendations from the Regional Councils will then be presented to
the Federal Subsistence Board at its May 2007 meeting. There will also
be another opportunity for the public to submit suggestions or
alternatives at this Board meeting. Following public testimony and
Council recommendations, the Board will deliberate various options and
recommend a course of action to the Secretaries. A formal rulemaking
process would follow, if necessary. The recommendation may also be to
make no changes to the current regulations but merely to offer further
explanation of that rule.
Drafting Information
William Knauer drafted this notice under the guidance of Pete
Probasco of the Office of Subsistence Management, Alaska Regional
Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Chuck
Ardizzone, Alaska State Office, Bureau of Land Management; Greg Bos,
Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish and
Wildlife Service; Sandy Rabinowitch and Nancy Swanton, Alaska Regional
Office, National Park Service; Warren Eastland and Dr. Glenn Chen,
Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler,
Alaska Regional Office, USDA-Forest Service, provided additional
guidance.
Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C.
3551-3586; 43 U.S.C. 1733.
Dated: September 19, 2006.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
Steve Kessler,
Subsistence Program Leader, USDA-Forest Service.
[FR Doc. 06-8594 Filed 10-11-06; 8:45 am]
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