Subsistence Management Regulations for Public Lands in Alaska-Subpart B, Federal Subsistence Board Membership, 83622-83628 [2024-24088]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service
• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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 [www.gpo.gov]
[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 Regulations.gov website at https://www.regulations.gov 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 
[email protected]. For questions specific to National Forest 
System lands, contact Gregory Risdahl, Regional Subsistence Program 
Leader, USDA, Forest Service, Alaska Region; 907-302-7354 or 
[email protected]. 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:
     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, National Park Service;
     The Alaska State Director, Bureau of Land Management;
     The Alaska Regional Director, Bureau of Indian Affairs;
     The Alaska Regional Forester, U.S. Forest Service; and
     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 https://www.regulations.gov.

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

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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

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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

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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