[Federal Register: August 31, 1999 (Volume 64, Number 168)]
[Page 47512-47514]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Notice of Updated Policy Regarding Harvest of Migratory Birds in 
Alaska Between March 10 and September 1

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: The Fish and Wildlife Service (Service) is updating the 1988 
policy regarding subsistence harvest of migratory birds in Alaska. The 
policy is a statement regarding enforcement priorities the Service 
follows in Alaska to conserve waterfowl between March 10 and September 
1. The original policy concentrated enforcement efforts on violations 
that have the most serious impacts on the resource, with particular 
emphasis on the protection of four diminished populations of geese: 
cackling Canada geese, emperor geese, Pacific white-fronted geese, and 
black brant. Due to the status of some eider populations, this updated 
policy also includes spectacled and Steller's eiders in this first 
priority protection. In addition, the policy prohibits wasting any 
migratory bird, using private and charter aircraft to assist in 
hunting, and possessing lead shot while hunting waterfowl.
    In 1997, the United States Senate gave its advice and consent to 
ratification of two protocols amending, respectively, the 1916 
Convention for the Protection of Migratory Birds in Canada and the 
United States (the ``Canada Treaty'') and the 1936 U.S.-Mexico 
Convention for the Protection of Migratory Birds and Game Mammals (the 
``Mexico Treaty'') (together the ``Protocols''). These Protocols 
provide for legal, regulated spring subsistence hunting in Alaska. In 
particular, the Protocol with Canada provides in Article II that:

    In the case of the United States * * * [m]igratory birds and 
their eggs may be harvested by the indigenous inhabitants of the 
State of Alaska. Seasons and other regulations implementing the non-
wasteful taking of migratory birds and the collection of their eggs 
by indigenous inhabitants of the State of Alaska shall be consistent 
with the customary and traditional uses by such indigenous 
inhabitants for their own nutritional and other essential needs.

Similarly, Article I of the Protocol with Mexico provides that:

[[Page 47513]]

    The establishment of a closed season for wild ducks from the 
tenth of March to the first of September, except in the State of 
Alaska, United States of America, where wild ducks and their eggs 
may be harvested by the indigenous inhabitants thereof provided that 
seasons and other regulations implementing the non-wasteful taking 
of wild ducks and their eggs in such cases shall be consistent with 
the customary and traditional uses by such indigenous inhabitants 
for their own nutritional and other essential needs.

    The Canada Protocol, which along with the Mexico Protocol will 
enter into force once the Parties exchange instruments of ratification, 
contemplates the establishment of management bodies in Alaska that will 
develop recommendations to the Service for specific hunting 
regulations. The Service is currently involved in an extensive public 
involvement process in Alaska to develop the required management bodies 
and the subsequent regulations allowing spring and summer harvest of 
migratory birds. The Service expects to have the management bodies in 
place in the year 2000 and specific hunting regulations in 2001. Until 
that time, consistent with the two Protocols and pursuant to existing 
statutory authority under 16 U.S.C. 712, this enforcement policy will 
guide our conservation measures.

DATES: The Service's policy regarding harvest of migratory birds in 
Alaska during the closed season became effective on April 22, 1988. The 
policy, as updated, will remain in effect until regulations are 
promulgated to implement the 1997 Protocols to the migratory bird 
treaties with Canada and Mexico.

ADDRESSES: Address correspondence to: Regional Director, U.S. Fish and 
Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska 99503.

FOR FURTHER INFORMATION CONTACT: Mimi Hogan, Migratory Bird Subsistence 
Coordinator, (907) 786-3673; or John Gavitt, Assistant Regional 
Director, Division of Law Enforcement, (907) 786-3311.

SUPPLEMENTARY INFORMATION: In the Federal Register dated December 31, 
1987, the Service gave notice of, and invited public comments on, a 
proposed policy statement regarding subsistence taking of migratory 
birds in Alaska during the closed season as required by the 1918 Treaty 
Act (16 U.S.C. 703 et seq.) and implemented by regulations. The notice 
also terminated a proposed rulemaking announced to the public on May 
19, 1986, (51 FR 18349) to permit and regulate subsistence hunting for 
migratory birds in Alaska. The rulemaking was halted by an October 9, 
1987, ruling from the U.S. Court of Appeals for the Ninth Circuit that 
any regulations for subsistence hunting of migratory birds promulgated 
pursuant to the 1978 Fish and Wildlife Improvement Act must be in 
accordance with the Canada Treaty implemented by the Treaty Act. The 
Canada Treaty specifically prohibits hunting for most migratory birds 
between March 10 and September 1. Finally, the notice indicated Service 
support for continuation of a Yukon-Kuskokwim Delta Goose Management 
Plan, a cooperative management agreement for the conservation of geese 
that nest primarily in western Alaska.
    Following the court decision, the Service worked toward legalizing 
subsistence harvest in Alaska during the closed season by proposing 
amendments to the Canada Treaty and the Mexico Treaty. The U.S. Senate 
gave its advice and consent to ratification of the Protocols on October 
23, 1997, paving the way for ratification and a regulatory process to 
ensure proper implementation of these amendments.
    Issuance by the Service of a law enforcement policy is not subject 
to the notice and comment procedures of the Administrative Procedures 
Act. However, the legal status of subsistence hunting in Alaska was for 
years the subject of litigation that was confusing to the public. In 
light of this, and because of great interest in the issue and need for 
understanding of the policy, the Service believed that it would be 
beneficial in this instance to provide for public review of the 
proposed policy. Public comments were reviewed in the Final Policy 
Statement (53 FR 16878).

Need for Policy and Relation to Yukon-Kuskokwim Delta Goose 
Management Plan

    The Treaty Act prohibits the taking of migratory birds except as 
permitted by regulations published by the Service. The Treaty Act 
further requires that the regulations must be consistent with the 
provisions of the 1916 Canada Treaty. Accordingly, the Service 
publishes regulations annually that establish open seasons and bag 
limits for migratory game birds within the September 1 to March 10 
period provided by that treaty. Except in Alaska, the Service has 
always strictly enforced the prohibitions against taking migratory 
birds during closed seasons; that is, during those times of year 
outside the hunting seasons established in the annual hunting 
    The Service has recognized for many years that residents of certain 
rural areas in Alaska depend on waterfowl and some other migratory 
birds as customary and traditional sources of food, primarily during 
spring and early summer. Because of this long established dependence, 
the Service generally has exercised its discretion to not strictly 
enforce the closed season in these areas provided that subsistence 
harvest of a particular species will not adversely affect its 
populations and that birds are not wasted. The Service recognizes the 
need for conservation measures to protect those species where 
population levels are of concern or are most susceptible to declines.
    Since 1984, efforts to halt declines of the four populations of 
geese on the Yukon-Kuskokwim Delta have been undertaken pursuant to a 
Yukon-Kuskokwim Delta Goose Management Plan which has been renewed 
annually until 1995, and biannually since then. The biannual renewal of 
the plan is an essential element in the conservation of the geese on 
their nesting grounds. It retains an established mechanism for 
communication with the subsistence hunters most affected by the policy 
and encourages the cooperation needed to achieve population objectives 
incorporated into previous plans. This cooperative management includes 
provisions to reduce sport harvest of these species and to reduce or 
minimize subsistence harvest that is not in accordance with the Plan. 
The Service views the plan as an effective mechanism in providing for 
cooperative management of geese on the Yukon-Kuskokwim Delta, and has 
therefore applied similar provisions to the policy that applies 
throughout the remainder of the state.
    The Closed Season Enforcement Policy in Alaska, in accordance with 
the Yukon-Kuskokwim Delta Management Plan, has changed somewhat from 
the original policy as populations of cackling Canada geese and Pacific 
white-fronted geese have increased. The updated policy reflects these 
population changes. In addition, there have been changes concerning 
other species.
    The spectacled eider was listed in 1993 as a threatened species 
under the Endangered Species Act of 1973, as amended, primarily on the 
basis of estimates that the number of nesting pairs on the Yukon-
Kuskokwim Delta declined over 96% between the 1970s and the 1990s. The 
Alaska population of Steller's eider was listed as a threatened species 
in 1997 because of a decline in the number of birds breeding in Alaska. 
Spectacled and Steller's eiders were added to the list of species to 
receive special enforcement concern under the Service's closed season 
policy. In 1997, a Spectacled and Steller's Eider Management Plan, 
containing similar enforcement provisions, was added as

[[Page 47514]]

an attachment to the Yukon-Kuskokwim Delta Goose Management Plan.
    The Service recognizes that among subsistence users there is a wide 
range in the level of understanding of the impacts of spring and summer 
harvest of waterfowl and the need to reduce mortality, especially when 
populations become depressed. The Service will continue educational 
efforts to expand the understanding of this relationship and will 
consider the varying levels of understanding when carrying out 
enforcement efforts on a statewide basis.
    The Protocols allow regulations to be written opening the season on 
subsistence harvest of migratory birds between March 10 and September 
1. The process to develop regulations is currently in progress and is 
expected to result in the establishment of management bodies in 2000 
and specific hunting regulations in 2001. In the meantime, this 
Enforcement Policy will guide conservation.

Closed Season Enforcement Policy in Alaska

    The enforcement policy described below applies only during the 
closed season, between March 10 and September 1. The policy applies 
only to residents of rural areas in Alaska where people have long 
relied on locally harvested waterfowl for food during spring and 
summer. On the Yukon-Kuskokwim Delta, we will engage in enforcement 
actions in accordance with the Yukon-Kuskokwim Delta Goose Management 
Plan. In areas other than those described above, we will enforce the 
closed season and all other regulations for hunting migratory birds 
from September 1 to March 10 as throughout the rest of the nation.
    Service enforcement efforts in Alaska during the closed season will 
concentrate on violations that have the most serious impacts on the 
resource. We will give special attention to the protection of 
spectacled and Steller's eiders, cackling Canada geese, emperor geese, 
Pacific white-fronted geese, and black brant. These species have 
suffered severe population declines in recent years and need special 
    Although all waterfowl hunters in Alaska have been required to use 
non-toxic shot since 1991, this has not been an enforcement priority in 
the past with regard to subsistence hunting. However, recent studies 
have confirmed lead shot poisoning in spectacled eiders and other 
species of waterfowl harvested by subsistence hunters in Alaska. 
Therefore anyone possessing lead shot while waterfowl hunting will be 
subject to enforcement action, regardless of time or place.
    Under the Closed Season Policy we will give enforcement priority to 
the following violations:
    <bullet> No taking of spectacled or Steller's eiders at any time;
    <bullet> No taking of emperor geese at any time;
    <bullet> No taking of cackling Canada geese or black brant during 
the nesting, brood-rearing, and flightless period;
    <bullet> No taking of Pacific white-fronted geese, in the coastal 
areas of western Alaska south of Norton Sound, during the nesting, 
brood-rearing, and flightless periods;
    <bullet> No taking of the eggs of spectacled or Steller's eiders, 
emperor geese, cackling Canada geese or black brant;
    <bullet> No wasting of any migratory bird;
    <bullet> No use of private or charter aircraft to assist hunting of 
any migratory bird;
    <bullet> No possession or use of lead shot while hunting waterfowl.
    Status of populations will guide identification of circumstances 
warranting additional protection for migratory birds during the closed 
season. This will involve consultation with affected interests. Of 
greatest concern will be situations involving continuing harvest of 
species of concern, waste or harvest exceeding reasonable levels of 
need under existing circumstances.

    Dated: August 20, 1999.
David B. Allen,
Regional Director, Anchorage, Alaska.
[FR Doc. 99-22652 Filed 8-30-99; 8:45 am]