[Federal Register Volume 89, Number 38 (Monday, February 26, 2024)]
[Proposed Rules]
[Pages 14008-14015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03604]


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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; FXRS12610700000-234-FF07J00000]
RIN 1018-BH67


Subsistence Management Regulations for Public Lands in Alaska--
Subpart B; Federal Subsistence Board Membership

AGENCY:  Forest Service, Agriculture; Fish and Wildlife Service, 
Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise the regulations concerning the 
composition of the Federal Subsistence Board (Board) by adding three 
public members nominated or recommended by federally recognized Tribal 
governments, requiring that those nominees have personal knowledge of 
and direct experience with subsistence uses in rural Alaska including 
Alaska Native subsistence uses, defining requirements used for the 
selection of the Board Chair, affirming the Secretaries' authority to 
replace members from the Board, and affirming the Secretaries' 
responsibility and oversight regarding Board decisions while 
incorporating a ratification requirement. In January 2022, the 
Department of the Interior (DOI) and the U.S. Department of Agriculture 
(USDA) 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

[[Page 14009]]

fisheries. Approximately 445 individual subsistence users and 
representatives from Alaska Native Tribes, Tribal consortia, Alaska 
Native organizations, and 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.

DATES: Comments on this proposed rule must be received or postmarked by 
April 26, 2024.

ADDRESSES: You may submit comments by one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R7-SM-2024-0017, 
which is the docket number for this rulemaking action. Then, click on 
the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, check the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment.''
    By hard copy: Submit by U.S. mail or hand delivery: Public Comments 
Processing, Attn: FWS-R7-SM-2024-0017; U.S. Fish and Wildlife Service; 
5275 Leesburg Pike; MS: PRB (JAO/3W); Falls Church, VA 22041-3803.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Review Process--Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Amee Howard, Deputy Assistant Regional 
Director, Office of Subsistence Management; 907-786-3888; 
<a href="/cdn-cgi/l/email-protection#e192948392889295848f8284a1879692cf868e97"><span class="__cf_email__" data-cfemail="c2b1b7a0b1abb1b6a7aca1a782a4b5b1eca5adb4">[email protected]</span></a>. Individuals in the United States who are deaf, 
deafblind, 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. Please see Docket No. FWS-R7-SM-2024-
0017 on https://www.regulations.gov for a document that summarizes this 
proposed rule.

SUPPLEMENTARY INFORMATION:

Background

    When Alaska became a State in 1959, Alaska Natives held aboriginal 
title to lands across the new State. Immediately after statehood, 
Alaska Natives filed blanket protests to State land selections 
authorized by the Statehood Act. Because the State's land selection 
rights were only for ``vacant, unappropriated and unreserved lands,'' 
the Secretary of the Interior imposed a formal land freeze on any title 
transfers to Alaska in 1969. After oil was discovered at Prudhoe Bay in 
the late 1960s, an injunction against the Secretary of the Interior's 
attempt to grant a right of way for the Trans-Alaska Pipeline made it 
clear that Congress would have to settle aboriginal claims before an 
oil pipeline across Alaska could be built. Congress then extinguished 
aboriginal title in the Alaska Native Claims Settlement Act (ANCSA) in 
1971. 43 U.S.C. 1603(b). The ANCSA conference report reflects that 
Congress anticipated that the Secretary of the Interior would 
``exercise his existing withdrawal authority'' to ``protect Native 
subsistence needs and requirements.'' H. Conf. Rep. No. 92-746 at 37 
(1971). The Secretary immediately reinitiated withdrawals to protect 
subsistence while a solution was negotiated. In 1980, this issue, among 
others, was addressed in the Alaska National Interest Lands 
Conservation Act (ANILCA). Title VIII of ANILCA addressed the loss of 
aboriginal hunting and fishing rights by providing rural residents, 
including Alaska Native rural residents, with protections for 
continuing use of subsistence uses on the public lands. The 
congressional findings in ANILCA describe this intent and purpose:

    The Congress finds and declares that--
    . . . (4) in order to fulfill the policies and purposes of the 
Alaska Native Claims Settlement Act and as a matter of equity, it is 
necessary for the Congress to invoke its constitutional authority 
over Native affairs and its constitutional authority under the 
property clause and the commerce clause to protect and provide the 
opportunity for continued subsistence uses on the public lands by 
Native and non-Native rural residents; and
    (5) the national interest in the proper regulation, protection, 
and conservation of fish and wildlife on the public lands in Alaska 
and the continuation of the opportunity for a subsistence way of 
life by residents of rural Alaska require that an administrative 
structure be established for the purpose of enabling rural 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 the public lands in Alaska.

16 U.S.C. 3111 (emphasis added). Based on these findings, Congress 
declared that there would be a subsistence priority for ``rural 
residents'' on ``public lands'' in Alaska:

nonwasteful subsistence uses of fish and wildlife and other 
renewable resources shall be the priority consumptive uses of all 
such resources on the public lands of Alaska when it is necessary to 
restrict taking in order to assure the continued viability of a fish 
or wildlife population or the continuation of subsistence uses of 
such population, the taking of such population for nonwasteful 
subsistence uses shall be given preference on the public lands over 
other consumptive uses;

16 U.S.C. 3112 (2). Congress's references to fulfilling the purposes of 
ANCSA (where aboriginal hunting and fishing rights had been lost), and 
its constitutional authority over Native affairs clarify that title 
VIII's rural subsistence provisions are intended, among other purposes, 
to address the loss of Alaska Native aboriginal hunting and fishing 
rights. See Robert T. Anderson, The Katie John Litigation: A Continuing 
Search for Alaska Native Fishing Rights After ANCSA, 51 Ariz. St. L.J. 
506, 522 (2017).
    Title VIII originally contemplated the State administering the 
ANILCA rural subsistence priority. It outlined a State regulatory 
structure to protect subsistence uses by rural Alaska residents, 
providing that if, within one year of ANILCA's enactment, the State 
``enacts and implements laws of general applicability which are 
consistent with, and which provide for the definition, preference, and 
participation specified in'' ANILCA for rural residents, then the 
Secretary shall not implement the provisions of ANILCA directing the 
establishment of regional advisory councils. 16 U.S.C. 3115(d). And 
such State laws, ``unless and until repealed, shall supersede such 
sections [of ANILCA] . . . for the taking of fish and wildlife on the 
public lands for subsistence uses.'' Id.
    However, the State was unable to implement title VIII through State 
regulations. When ANILCA was enacted in 1980, an Alaska statute 
provided a priority for nonwasteful subsistence use of wild, renewable 
resources, but it did not limit the priority to ``rural Alaska 
residents,'' as ANILCA requires. See Bobby v. Alaska, 718 F. Supp. 764, 
767, 788-791 (D. Alaska 1989). The State promulgated regulations 
recognizing the rural priority, and, after the Federal Government 
reviewed and approved the regulatory scheme, the State became 
responsible for overseeing implementation of title VIII. See id. at 
767. Then, in 1985, the Alaska Supreme Court struck down the State 
regulations' limitation of the subsistence priority to rural Alaska 
residents. Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168 (Alaska 
1985). Without that eligibility limitation, the State's subsistence 
priority no longer complied

[[Page 14010]]

with ANILCA, and the Secretary of the Interior withdrew certification 
of the State's regulatory scheme, pending enactment of State 
subsistence-use legislation consistent with ANILCA. See Bobby, 718 F. 
Supp. at 768. The Alaska Legislature then amended the State's 
subsistence laws to remedy the inconsistency with ANILCA. See id.; see 
also Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 314 (9th Cir. 
1988). But in 1989, the Alaska Supreme Court voided the amended State 
subsistence statute after finding that a rural priority violates 
Alaska's Constitution. See McDowell v. State, 785 P.2d 1 (Alaska 1989).
    As a result of Alaska's inability to satisfy ANILCA's requirements 
for State management, the Secretaries of the Interior and Agriculture 
were obligated under ANILCA to effectuate the rural subsistence 
priority. See 16 U.S.C. 3115. ANILCA authorizes the Secretaries to 
``prescribe such regulations as are necessary and appropriate to carry 
out [their] responsibilities'' under title VIII. 16 U.S.C. 3124; see 16 
U.S.C. 3102(12). In 1990, the Secretaries promulgated regulations 
providing ``[s]ubsistence taking and uses of fish and wildlife on 
public lands shall be administered by a Federal Subsistence Board.'' 
See Temporary Subsistence Management Regulations for Public Lands in 
Alaska, 55 FR 27114 at 27123 (June 29, 1990); Final Regulations, 57 FR 
22940 (May 29, 1992). As a result, pursuant to title VIII and its 
regulations, which have been amended several times since 1992, the 
Secretaries jointly implement the Federal Subsistence Management 
Program (Program), which provides a priority for taking of fish and 
wildlife resources for subsistence uses in Alaska. Only Alaska 
residents of areas identified as rural are eligible to participate in 
the Program.
    Because the Program is a joint effort between the Departments of 
the Interior and Agriculture (USDA), these regulations are located in 
two different titles of the Code of Federal Regulations (CFR): The USDA 
regulations are at title 36, ``Parks, Forests, and Public Property,'' 
and the DOI regulations are at title 50, ``Wildlife and Fisheries,'' at 
36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. Consequently, to 
indicate that identical changes are proposed for regulations in both 
titles 36 and 50, in this document we present references to the 
specific section of both titles of the CFR as: Sec.  __.10.
    The Program 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 to administer the Program. 
Subpart C sets forth important Board determinations regarding program 
eligibility, i.e., which areas of Alaska are considered rural and which 
species are harvested in those areas as part of a ``customary and 
traditional use'' for subsistence purposes. Subpart D sets forth 
specific harvest seasons and limits. Subparts A and B fall under the 
purview of the Secretaries, but the Board participates in the 
development of regulations for subparts C and D.
    In administering the Program, the Secretaries divided Alaska into 
10 subsistence resource regions, each of which is represented by a 
Federal 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.
    The current Board comprises:

<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, USDA Forest Service; and
<bullet> Two public members appointed by the Secretary of the Interior 
with concurrence of the Secretary of Agriculture.

Proposed Rulemaking Action

    In January 2022, DOI and USDA held joint consultations with 
approximately 445 individual subsistence users and representatives from 
federally recognized Tribes of Alaska, Tribal consortia, Native 
organizations, and Alaska Native corporations. In October-November 
2022, DOI leadership and 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.\1\ 
The report detailing the information received during these 
consultations is the ``Federal Subsistence Policy Consultation Summary 
Report,'' which can be found as a supplementary document in Docket No. 
FWS-R7-SM-2024-0017 at https://www.regulations.gov.
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    \1\ The references to ``commenters'' below refer to the comments 
received from these same participants in connection with the 
consultations.
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    We propose to revise titles 36 (in part 242) and 50 (in part 100) 
of the CFR at Sec.  __.10 to be responsive to that request by defining 
the requirements used for the selection of the Board Chair, increasing 
the number of public members of the Board, and including a voice for 
federally recognized Tribal governments to nominate or recommend a 
certain number of the public members of the Board. We propose that the 
Board Chair, like the two current public members, be required to 
possess personal knowledge of and direct experience with subsistence 
uses in rural Alaska. We further propose adding three public members to 
the Board, all of whom will be required to possess personal knowledge 
of and direct experience with subsistence uses in rural Alaska, 
including Alaska Native subsistence uses, and will be nominated or 
recommended by federally recognized Tribal governments.
    As is currently required in the regulations, the Board Chair and 
all public members will be appointed by the Secretary of the Interior 
with the concurrence of the Secretary of Agriculture. Also as is 
currently the case, the public members will become special governmental 
employees for the purpose of serving on the Board. The Secretaries 
retain the authority to remove public members from the Board, and also 
retain their existing authorities to replace agency personnel on the 
Board, and we have added language affirming those authorities in this 
proposed rule. Because this proposed rule would increase the total 
number of Board members, the number required for a quorum would 
increase to six.
    Lastly, consistent with title VIII, we propose clarifying that the 
Secretaries retain the authority to modify, disapprove, or stay any 
action taken by the Board, and also propose incorporating a requirement 
for ratification. Recognizing that a Board's action may be time 
sensitive, we propose that for temporary special actions (36 CFR 
242.19(b) and 50 CFR

[[Page 14011]]

100.19(b)), Board actions will not become effective for 10 calendar 
days, allowing an opportunity for the Secretaries to modify, 
disapprove, stay, or expressly ratify Board actions. If the 10 calendar 
days elapse without action by the Secretaries, the Board decision will 
be deemed automatically ratified by the Secretaries (with the 
Secretaries retaining discretion to revisit the ratification). For 
emergency special actions (36 CFR 242.19(a) and 50 CFR 100.19(a)), the 
Board action will 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. For other Board actions (i.e., actions that follow the 
regular adoption process in 36 CFR 242.18 or 50 CFR 100.18), 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.

I. Increase in Number of Public Board Members

    The current Board includes a Chair, two public Board members, and 
five Federal agency personnel. None of the current agency personnel, 
nor any of their predecessors, are federally qualified subsistence 
users while serving on the Board as a result of the urban location for 
their duty location. The Secretaries are proposing to add three public 
members nominated or recommended by Tribes, 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. Adding three public members to the Board could further the 
goals of ANILCA and also could be responsive to commenters' requests 
for: (1) an increase in the number of public board members to five; and 
(2) adding more voting members who represent Alaska Native villages and 
have local knowledge of direct subsistence experience.
    Related to this, the Secretaries specifically request public 
comments on the issues listed below:
    (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)?
    (2) Would it be preferable for federally recognized Tribes to 
nominate/recommend only two of the three new public board members?
    (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?
    (4) Is the proposed quorum of six appropriate with the addition of 
the three new public board members, or should it be increased?
    Commenters also expressed concerns that the public Board members at 
present do not have alternates who can stand in for them in times of 
illness or unavailability due to conflicts with subsistence activities. 
This is not the case for Federal agency personnel, who have qualified 
designees who can act in their stead. This issue was specifically 
raised by the Board in a meeting with the Secretary. While the 
Secretaries preliminarily view the proposal to add additional public 
board members as eliminating the need to further consider whether 
public board members should have the ability to appoint alternates, the 
Secretaries invite public comment on this issue.
    Commenters also focused on the desirability of considering 
Indigenous Knowledge in connection with Board decision making. The 
Secretaries preliminarily view this approach/practice as consistent 
with the Secretaries' policies and broader Federal Government policy. 
For example, on November 22, 2022, the White House Office of Science 
and Technology Policy and Council on Environmental Quality released the 
``Guidance for Federal Departments and Agencies on Indigenous 
Knowledge'' at the White House Tribal Nations Summit. The guidance and 
accompanying implementation memorandum recognized that, to make the 
best scientific and policy decisions, the Federal Government should 
value and, as appropriate, respectfully consider Indigenous Knowledge 
in the decision-making process. The implementation memorandum for all 
Federal agencies noted that ``. . . the U.S. Government can fulfill its 
trust responsibilities to Tribal Nations, recognize Tribal sovereignty 
and self-governance, and honor its commitment to strengthening 
relations with Indigenous Peoples by including Indigenous Knowledge in 
Federal decision making.'' Further, the implementation memorandum 
encouraged Federal agencies ``to pursue and promote inclusion of 
Indigenous Knowledge in Federal scientific and policy decisions 
consistent with this Guidance. . . .'' The Guidance started with the 
following recognition:

    The Federal Government recognizes the valuable contributions of 
the Indigenous Knowledge that Tribal Nations and Indigenous Peoples 
have gained and passed down from generation to generation and the 
critical importance of ensuring that Federal departments and 
agencies' (Agencies) consideration and inclusion of Indigenous 
Knowledge is guided by respect for the sovereignty and self-
determination of Tribal Nations; the Nation-to-Nation relationship 
between the United States and Tribal Nations and the United States' 
trust responsibility; and the need for the consent of and honest 
engagement with Tribal Nations and Indigenous Peoples.

    As discussed further below, incorporating to a greater degree this 
substantial and diverse body of Indigenous Knowledge into its decision 
making might better enable the Board to address subsistence uses for 
all federally qualified users in implementing the title VIII rural 
subsistence priority.
    Alaska, given its vast and varied geography, has a wide variety of 
subsistence uses based on place and seasons. The variations include 
differences in species of fish, land mammals, and marine mammals 
subject to harvest, in addition to seasonal availability of the same 
resource, such as salmon, across different areas of the State. The 
breadth of subsistence practices may indicate a need for a diversity of 
subsistence use experiences on the Board to improve Federal decision 
making.
    Consistent with this, many commenters highlighted the importance of 
Alaska Native ``ecological knowledge and observations by local 
stakeholders to promote sustainable harvests and protect habitats.'' 
Federal Subsistence Policy Consultation Summary Report (June 14, 2022) 
(bia.gov). One of the five questions asked of attendees to the January 
2022 consultations on subsistence was ``How has climate change affected 
subsistence? '' The followup question posed was ``What changes could be 
made to subsistence policies, regulations, or laws to help you adapt to 
those changes? '' The commenters requested the inclusion of Indigenous 
Knowledge to inform decision making as noted above, and

[[Page 14012]]

they ``emphasized the need to make real-time management decisions that 
are responsive to evolving, on-the-ground conditions and fluctuations 
caused by climate change.'' Federal Subsistence Policy Consultation 
Summary Report (June 14, 2022) (bia.gov).
    These comments reflect the unprecedented challenges the Alaska 
subsistence community is facing regarding the availability of 
subsistence resources as a result of climate change and other factors. 
The Secretaries acknowledge that the regional advisory councils provide 
opportunities to incorporate Indigenous Knowledge into Board decision 
making. The Secretaries view this proposed rule as creating another 
structural path for providing Indigenous Knowledge to the Board. 
Additional public board members who meet the specified qualifications 
have the potential to expand and diversify the kinds of evidence and 
knowledge available to the Board for critical decisions. See ``What is 
``Indigenous Knowledge'' And Why Does It Matter? Integrating Ancestral 
Wisdom and Approaches into Federal Decision-Making,'' available at 
https://www.whitehouse.gov/ostp/news-updates/2022/12/02/ (last accessed 
Oct. 24, 2023). The Secretaries again invite comments on all of these 
issues.
    The Secretaries' inclusion of recommendations/nominations from 
federally recognized Tribes honors the Secretaries' political 
relationship with Tribal Nations and their commitment to strengthening 
relations with Indigenous Peoples. The Secretaries' consideration of 
these nominations/recommendations also would recognize 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 also 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 Alaska Natives comprise 
approximately 55 percent of the rural population in all areas of the 
State and constitute a much larger majority--82 percent of the 
population--in the most remote and roadless regions. See James A. Fall, 
Alaska Populations Trends and Patterns, 1960-2018 at 11, ADF&G Div. of 
Subsistence, Alaska Dep't of Fish & Game (2019); Alaska Native 
Population, Alaska Native Policy Center.\2\
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    \2\ See also U.S. Census Bureau, Percent American Indian and 
Alaska Native Alone or in Combination, Total Population by County: 
2020, https://public.tableau.com/shared/NMZXRS84J?:showVizHome=n 
(showing the Alaska Native population makes up 96.9% of the Kusilvak 
Census Area, 88.5% of the Bethel Census Area, 88.1% of the Northwest 
Arctic Borough, 82.6% of the Nome Census Area, 79.9% of the 
Dillingham Census Area, and 77.2% of the Yukon-Koyukuk Census Area). 
https://www.adfg.alaska.gov/static/home/library/pdfs/subsistence/Trends_in_Population_Summary_2019.pdf.
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    In proposing this rule, the Secretaries acknowledge that they will 
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.

II. Qualifications of Chair

    In addition, the Secretaries propose to require that the Board 
Chair possess personal knowledge of and direct experience with 
subsistence uses in rural Alaska.

III. Term Limits

    The Secretaries also are considering whether to impose term limits 
as to public Board members, including potentially the Chair. The 
proposed regulatory text includes reference to the potential for the 
Secretaries to establish term limits for service of Board members in 
such circumstances as the Secretaries deem appropriate. The Secretaries 
invite public comment on other possible approaches, such as including 
specific term limit requirements, with or without staggered terms, in 
the regulatory text that would apply when new appointments are made 
(and not to existing members). The comments may address, for example, 
what specific term limits may be appropriate (i.e., what duration 
measured in years) and whether and how they should be renewable.

IV. Oversight Responsibility and Ratification Requirement

    Consistent with title VIII, the Secretaries propose clarifying that 
the Secretary of the Interior, or the Secretary of Agriculture with 
respect to a unit of the National Forest System, retains the authority 
to modify, disapprove, stay, or expressly ratify any action taken by 
the Board. The Secretaries also propose to incorporate a requirement 
for ratification. Under the proposal, recognizing that the Board may 
need to act quickly in response to changed circumstances, temporary 
special actions of the Board will not become effective for 10 calendar 
days (or any longer period specified by the Board when taking the 
action), allowing an opportunity for the Secretaries to modify, 
disapprove, stay, or expressly ratify the actions. For emergency 
special actions (36 CFR 242.19(a) and 50 CFR 100.19(a)), the Board 
action will 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. If the Secretaries do not take action (i.e., to modify, 
disapprove, stay, or expressly affirm) during the 10 calendar days (or 
the longer period), the Board decision will be deemed automatically 
ratified by the Secretary for purposes of the proposed regulation (with 
the Secretary retaining discretion to revisit prior express or 
automatic ratifications). For other Board actions (i.e., actions that 
follow the regular adoption process in 36 CFR 242.18 and 50 CFR 
100.18), 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.
    The Secretaries provide proposed draft regulatory text for this 
specific proposal at the end of this document, but also invite public 
comment on this proposal and expressly request comments on the 
following:
    (1) Should the Secretaries consider adopting a different framework 
that, while not requiring ratification, allows for review of emergency 
and temporary Board actions? For example, should the Secretaries 
consider a framework in which the effective date of Board actions would 
be delayed to allow the Secretaries a limited time to review those 
actions (and potentially stay the action for a further limited time to 
facilitate decision making concerning whether to modify or disapprove 
the action)?
    (2) Are the proposed timeframes for ratification of special actions 
and emergency actions sufficient to allow for the Board to respond to 
evolving resource and subsistence issues in real time while allowing 
for appropriate Secretarial oversight and approval?
    (3) What specific mechanism(s) should the Secretaries use to 
modify, disapprove, stay, or expressly affirm an emergency or temporary 
Board action (i.e., what would be the form of the Secretary of the 
Interior's action, and how would it best be communicated to the Board 
and public)?
    (4) Would it be helpful and/or necessary for the Secretaries to 
make any conforming changes to the other regulations in 36 CFR part 242 
and 50 CFR part 100, such as the regulation governing Board 
reconsideration of actions (36 CFR 242.20 and 50 CFR 100.20), if the 
ratification requirement is included in the final rule?

[[Page 14013]]

Public Review Process--Comments

    You may submit written comments and materials concerning this 
proposed rule by one of the methods listed in ADDRESSES. If you submit 
a comment via https://www.regulations.gov, your entire comment, 
including any personal identifying information, will be posted on the 
website. If you submit a hardcopy comment that includes personal 
identifying information, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov at 
Docket No. FWS-R7-SM-2024-0017.

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 82 FR 4915 (January 17, 2017). 
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.''
    Because Tribal members are affected by subsistence regulations, the 
Secretaries will provide federally recognized Tribes of Alaska and 
Alaska Native corporations an opportunity to consult on this proposed 
rule.
    As stated above, the Secretaries previously conducted consultations 
where the subject of Board membership was addressed. The Secretaries 
have directed that DOI and USDA representatives will hold joint 
consultations regarding this rulemaking effort. The Secretaries will 
engage in outreach efforts for this proposed rule, including a 
notification letter, to ensure that Tribes and Alaska Native 
corporations are advised of the mechanisms by which they can 
participate. The Secretaries will commit to efficiently and adequately 
providing an opportunity to Tribes and Alaska Native corporations for 
consultation regarding this subsistence rulemaking.
    The Secretaries will consider Tribes of Alaska and Alaska Native 
corporations' information, input, and recommendations, and will address 
their concerns as much as practicable.

Compliance with Statutory and Regulatory Authorities

National Environmental Policy Act

    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 (ROD) 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 by contacting: U.S. Fish 
and Wildlife Service, Office of Subsistence Management, 1011 E Tudor 
Road, MS 121, Anchorage, Alaska 99503-6199. 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 proposed 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 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 
proposed rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under the 
National Environmental Policy Act.

Section 810 of ANILCA

    An ANILCA section 810 analysis was completed as part of the FEIS 
process on the 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 restrictions are 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 
Federal Subsistence Management Program, under alternative IV with an 
annual process for setting subsistence regulations, may have some local 
impacts on subsistence uses, but will not 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 of 1995 (PRA)

    This proposed 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 the OMB Control Number 1018-0075 (expires January 31, 2024, 
and, in accordance with 5 CFR 1320.10, an agency may continue to 
conduct or sponsor this collection of information while the submission 
is pending at OMB). This proposed 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.

[[Page 14014]]

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, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. We have developed this proposed rule 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 the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this proposed rulemaking action 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 economic impact on a substantial number of small entities, 
which include small businesses, organizations, or governmental 
jurisdictions. The revised Board composition put forward under this 
proposed rule would not result in effects to the economy. The 
Departments certify that this rulemaking will not have a significant 
economic impact 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 
proposed 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 this program is 
limited by definition to certain public lands in Alaska. Likewise, 
these proposed 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 proposed 
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 proposed rule would be by Federal agencies, with 
no cost imposed on any State or local entities or Tribal governments.

Executive Order 12988

    The Secretaries have determined that these proposed 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, this proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism assessment. Title VIII of ANILCA precludes the State 
from exercising subsistence management authority over fish and wildlife 
resources on Federal public lands unless it meets certain requirements.

Executive Order 13175

    As described above under Tribal Consultation and Comment, the 
Secretaries will provide federally recognized Tribes of Alaska and 
Alaska Native corporations a variety of opportunities for consultation, 
commenting on proposed changes to the existing regulations, and 
providing input in person, by mail or email, at any time during the 
rulemaking process.

Executive Order 13211

    This Executive order requires agencies to prepare statements of 
energy effects when undertaking certain actions. However, this proposed 
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.

List of Subjects

36 CFR Part 242

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 
Wildlife.

50 CFR Part 100

    Administrative practice and procedure, Alaska, Fish, National 
forests, Public lands, Reporting and recordkeeping requirements, 
Wildlife.

Proposed Regulation Promulgation

    For the reasons set out in the preamble, the Secretaries of the 
Interior and Agriculture propose to amend 36 CFR part 242 and 50 CFR 
part 100 as set forth below.

PART __--SUBSISTENCE MANAGEMENT REGULATIONS FOR PUBLIC LANDS IN 
ALASKA

0
1. The authority citation for 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 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

[[Page 14015]]

(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 six members.
* * * * *
    (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) Temporary 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 temporary action taken by the Board, such Board 
actions will not become effective until at least 10 calendar days after 
the date of the action (or any longer period specified by the Board 
when taking the action). For emergency special actions, the Board 
action will likewise not become effective for 10 calendar days (or any 
longer period specified by the Board when taking the action) unless the 
Board determines that the emergency situation calls for responsive 
action within 24 hours to protect subsistence resources or public 
safety. If no action is taken by the Secretary to modify, disapprove, 
stay, or expressly ratify within 10 days (or the longer period 
specified by the Board), the emergency or temporary Board 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) 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 for Policy, Management, and 
Budget, Department of the Interior.
Homer L. Wilkes,
Under Secretary, Natural Resources and Environment U.S. Department of 
Agriculture.
[FR Doc. 2024-03604 Filed 2-23-24; 8:45 am]
BILLING CODE 3411-15-P; 4333-15-P


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