[Federal Register: January 12, 2004 (Volume 69, Number 7)]
[Proposed Rules]               
[Page 1686-1693]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 1686]]



Fish and Wildlife Service

50 CFR Part 92

RIN 1018-AJ27

Migratory Bird Subsistence Harvest in Alaska; Subsistence Harvest 
Regulations for Migratory Birds in Alaska During the Spring/Summer 2004 
Subsistence Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is 
proposing spring/summer migratory bird subsistence harvest regulations 
in Alaska for the 2004 subsistence season. This proposed rule would 
establish regulations that prescribe frameworks, or outer limits, for 
dates when harvesting of birds may occur, species that can be taken, 
and methods and means excluded from use. These regulations were 
developed under a co-management process involving the Service, the 
Alaska Department of Fish and Game, and Alaska Native representatives. 
These regulations are intended to provide a framework to enable the 
continuation of customary and traditional subsistence uses of migratory 
birds in Alaska. The rulemaking is necessary because the regulations 
governing the subsistence harvest of migratory birds in Alaska are 
subject to annual review. This rulemaking proposes regulations that 
start on April 2, 2004, and expire on August 31, 2004, for the spring/
summer subsistence harvest of migratory birds in Alaska.

DATES: You must submit comments on the proposed spring/summer harvest 
regulations for migratory birds in Alaska by February 11, 2004.

ADDRESSES: Send your comments on this proposed rule to the Regional 
Director, Alaska Region, U.S. Fish and Wildlife Service, 1011 E. Tudor 
Road, Anchorage, AK 99503, or fax to (907) 786-3306.

FOR FURTHER INFORMATION CONTACT: Fred Armstrong, (907) 786-3887, or 
Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 1011 E. 
Tudor Road, Mail Stop 201, Anchorage, AK 99503.



What Events Led to This Action?

    In 1916, the United States and Great Britain (on behalf of Canada) 
signed the Convention for the Protection of Migratory Birds in Canada 
and the United States (Canada Treaty). The treaty prohibited all 
commercial bird hunting and specified a closed season on the taking of 
migratory game birds between March 10 and September 1 of each year. In 
1936, the United States and Mexico signed the Convention for the 
Protection of Migratory Birds and Game Mammals (Mexico Treaty). The 
Mexico treaty prohibited the taking of wild ducks between March 10 and 
September 1. Neither treaty allowed adequately for the traditional 
harvest of migratory birds by northern peoples during the spring and 
summer months. This harvest, which has occurred for centuries, was and 
is necessary to the subsistence way of life in the north and thus 
continued despite the closed season.
    The Canada treaty and the Mexico treaty, as well as migratory bird 
treaties with Japan (1972) and Russia (1976), have been implemented in 
the United States through the Migratory Bird Treaty Act (MBTA). The 
courts have ruled that the MBTA prohibits the Federal Government from 
permitting any harvest of migratory birds that is inconsistent with the 
terms of any of the migratory bird treaties. The more restrictive terms 
of the Canada and Mexico treaties thus prevented the Federal Government 
from permitting the traditional subsistence harvest of migratory birds 
during spring and summer in Alaska. To remedy this situation, the 
United States negotiated Protocols amending both the Canada and Mexico 
treaties to allow for spring/summer subsistence harvest of migratory 
birds by indigenous inhabitants of identified subsistence harvest areas 
in Alaska. The U.S. Senate approved the amendments to both treaties in 

What Will the Amended Treaty Accomplish?

    The major goals of the amended treaty with Canada are to allow 
traditional subsistence harvest and improve conservation of migratory 
birds by allowing effective regulation of this harvest. The amended 
treaty with Canada allows permanent residents of villages within 
subsistence harvest areas, regardless of race, to continue harvesting 
migratory birds between March 10 and September 1 as they have done for 
thousands of years. The Letter of Submittal of May 20, 1996, from the 
Department of State to the White House that officially accompanied the 
treaty protocol explains that lands north and west of the Alaska Range 
and within the Alaska Peninsula, Kodiak Archipelago, and the Aleutian 
Islands generally qualify as subsistence harvest areas.

What Has the Service Accomplished Since Ratification of the Amended 

    In 1998, we began a public involvement process to determine how to 
structure management bodies to provide the most effective and efficient 
involvement for subsistence users. This process was concluded on March 
28, 2000, when we published in the Federal Register (65 FR 16405) the 
Notice of Decision: ``Establishment of Management Bodies in Alaska to 
Develop Recommendations Related to the Spring/Summer Subsistence 
Harvest of Migratory Birds.'' This notice described the establishment 
and organization of 12 regional management bodies plus the Alaska 
Migratory Bird Co-management Council (Co-management Council).
    Establishment of a spring/summer migratory bird subsistence harvest 
began on August 16, 2002, when we published in the Federal Register (67 
FR 53511) a final rule at 50 CFR part 92 that set procedures for 
incorporating subsistence management into the continental migratory 
bird management program. These regulations established an annual 
procedure to develop harvest guidelines to implement a spring/summer 
migratory bird subsistence harvest.
    The next step established the first spring/summer subsistence 
migratory bird harvest system. This was finalized on July 21, 2003, 
when we published in the Federal Register (68 FR 43010) a final rule at 
50 CFR parts 20, 21, and 92 that created the first annual harvest 
regulations for the 2003 spring/summer subsistence migratory bird 
season in Alaska. These annual frameworks were not intended to be a 
complete, all-inclusive set of regulations, but were intended to 
regulate continuation of customary and traditional subsistence uses of 
migratory birds in Alaska during the spring and summer. See the August 
16, 2002, and July 21, 2003, final rules for additional background 
information on the subsistence harvest program for migratory birds in 
    This current rulemaking is necessary because the migratory bird 
harvest season is closed unless opened and the regulations governing 
subsistence harvest of migratory birds in Alaska are subject to public 
review and annual approval. The Co-management Council held meetings in 
April, May, and July of 2003, to develop recommendations for changes 
effective for the 2004 harvest season. These recommendations were 
presented to the Service Regulations

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Committee (SRC) on July 30 and 31, 2003, for action.
    This rule proposes regulations for the taking of migratory birds 
for subsistence uses in Alaska during the spring/summer of 2004. This 
rule proposes to list migratory bird species that are open or closed to 
harvest, as well as season openings and closures by region. It also 
proposes minor changes in the methods and means of taking migratory 
birds for subsistence purposes. We propose to amend 50 CFR 92.5 by 
adding 13 new communities to the list of included areas, and to add 
corresponding harvest areas and season dates to 50 CFR 92.33. We also 
propose to amend 50 CFR 92.6 to allow for permits to be issued for 
possession of bird parts or eggs for scientific research or educational 

How Will the Service Continue To Ensure That the Subsistence Harvest 
Will Not Raise Overall Migratory Bird Harvest?

    The Service has an emergency closure provision (Sec.  92.21), so 
that if any significant increases in harvest are documented for one or 
more species in a region, an emergency closure can be requested and 
implemented. Eligibility to harvest under the regulations established 
in 2003 was limited to permanent residents, regardless of race, in 
villages located within the Alaska Peninsula, Kodiak Archipelago, the 
Aleutian Islands, and in areas north and west of the Alaska Range 
(Sec.  92.5). These geographical restrictions open the initial spring/
summer subsistence migratory bird harvest to only about 13 percent of 
Alaska residents. High-population areas such as Anchorage, the 
Matanuska-Susitna and Fairbanks North Star boroughs, the Kenai 
Peninsula roaded area, the Gulf of Alaska roaded area, and Southeast 
Alaska were excluded from the eligible subsistence harvest areas.
    Based on petitions requesting inclusion in the harvest, the Co-
Management Council at its April and May 2003 meetings recommended that 
13 additional communities be included starting in 2004 based on the 
five criteria set forth in Sec.  92.5(c). The Upper Copper River region 
would include the communities of Gulkana, Gakona, Tazlina, Copper 
Center, Mentasta Lake, Chitina, and Chistochina, totaling 1,172 people. 
The Gulf of Alaska region would include the Chugach communities of 
Tatitlek, Chenega, Port Graham, and Nanwalek, totaling 541 people. The 
Cook Inlet region proposed to add only the community of Tyonek, 
population 193, and the Southeast Alaska region proposed to add only 
the community of Hoonah, population 860. In addition, subsistence users 
of Hoonah are requesting only to continue their tradition of harvesting 
gull eggs. These new regions would increase the percentage of the State 
population included in the spring/summer subsistence bird harvest only 
to 13.5 percent.
    Upon publication of the 2003 proposed harvest regulations (68 FR 
6697), five Kodiak area organizations expressed a need to close the 
Kodiak road system starting in the 2003 season. Their primary concern 
was the likelihood of overharvesting, primarily by user groups that 
have not demonstrated customary and traditional uses of migratory birds 
and will have easy access to this resource. On the basis of public 
testimony and written comments, the Service left closed to harvesting a 
buffer zone around the Kodiak Island road system under Sec.  92.33(e). 
The conservation concern is the nontraditional access posed by the road 
system in a region where the migratory bird hunting is traditionally 
done by boat in marine waters. In April 2003, the Co-Management Council 
recommended extending this closure to include an additional buffer 
strip of 500 feet extending beyond the water's edge, to be effective 
during the 2004 season. Closing the road system and water's edge to the 
spring and summer subsistence migratory bird harvest will help ensure 
local increases in harvest do not occur under the 2004 regulations.
    Subsistence harvest has been monitored for the past 15 years 
through the use of annual household surveys in the most heavily used 
subsistence harvest areas, e.g., Yukon-Kuskokwim Delta. Continuation of 
this monitoring would enable tracking of any major changes or trends in 
levels of harvest and user participation after legalization of the 
harvest. In the March 3, 2003, Federal Register (68 FR 10024), we 
published a notice of intent to submit the Alaska Subsistence Household 
Survey Information Collection Forms to the Office of Management and 
Budget (OMB) for approval under the Paperwork Reduction Act, with a 
subsequent 60-day public comment period. In the July 31, 2003, Federal 
Register (68 FR 44961), we published a notice that the Alaska 
Subsistence Harvest Survey Information Collection Forms were submitted 
to OMB for approval under the Paperwork Reduction Act, with a 30-day 
public comment period. OMB approved the information collection on 
October 2, 2003, and assigned OMB control number 1018-0124, which 
expires on October 31, 2006.

How Did the Service Develop the Methods and Means Prohibitions, and 
What Is Proposed To Change for 2004?

    In development of the initial regulations (68 FR 6697), the Co-
Management Council encouraged the Service to adopt the existing methods 
and means prohibitions that occur in the Federal (50 CFR part 20.21) 
and Alaska (5AAC92.100) migratory bird hunting regulations. Some 
exceptions to the Federal regulations were made in the initial 
regulations and also in this proposed rule to allow the continuation of 
customary and traditional spring harvest methods, but not the creation 
of new proposed traditions. In this proposed rule, we have incorporated 
the Bristol Bay region's request to be added to the list of areas where 
use of air boats is prohibited for hunting or transporting hunters.

What Is New With Establishing Bird Harvest Limits?

    The Co-management Council recommended the current set of proposed 
regulations to the Service without setting harvest limits, with the 
recognition that setting limits by area or species may become 
necessary. These initial years' harvest regulations provide general 
frameworks to enable the customary and traditional subsistence uses of 
migratory birds in Alaska. Within these frameworks, the first step in 
limiting the overall subsistence harvest was to establish a closed 
species list that included regional restrictions. Establishing a 30-day 
closed period during the breeding season also limited the harvest 
impacts. The eventual need to further adjust levels of harvest, either 
regionally or overall, is recognized and will be addressed by the Co-
management Council on the basis of recommendations by the Council's 
Technical Committee on a species-by-species basis. These decisions will 
likely be based on bird population status and past subsistence harvest 
data. Concepts such as community harvest limits and/or designated 
hunters may be considered to accommodate customary and traditional 
subsistence harvest methods.

How Did the Service Decide the List of Birds Open to Harvest?

    The Service believed that it was necessary to develop a list of 
bird species that would be open to subsistence harvest during the 
spring/summer season. The original list was compiled from subsistence 
harvest data, with several species added based on their presence in 
Alaska without written records of subsistence take. The original

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intent was for the list to be reviewed by the regional management 
bodies as a check list. The list was adopted by the Co-management 
Council as part of the guidelines for the 2003 season. Most of the 
regions adopted the list as written; however, two regions created their 
own lists. One regional representative explained that it would take 
much more time than was available for his region to reduce the list and 
that, once a bird was removed, returning it to the list would be more 
difficult later. Going with the original list was viewed as protecting 
hunters from prosecution for the take of an unlisted bird. To 
understand this rationale, one must be aware that subsistence hunting 
is generally opportunistic and does not usually target individual 
species. Native language names for birds often group closely related 
species, with no separate names for species within these groups. Also, 
preferences for individual species differ greatly between villages and 
individual hunters. As a result, regions are hesitant to remove birds 
from the list open to harvest until they are certain the species are 
not taken for subsistence use. The list therefore contains some species 
that are taken infrequently and opportunistically, but this is still 
part of the subsistence tradition. The Co-Management Council initially 
decided to call this list ``potentially harvested birds'' versus 
``traditionally harvested birds'' because a detailed written 
documentation of the customary and traditional use patterns for the 
species listed had not yet been conducted. However, this terminology 
was leading to some confusion, so the Service renamed the list 
``subsistence birds'' to cover the birds open to harvest.
    The ``customary and traditional use'' of a wildlife species has 
been defined in Federal regulations (50 CFR part 100.4) as a long-
established, consistent pattern of use, incorporating beliefs and 
customs that have been transmitted from generation to generation. Much 
of the customary and traditional use information has not been 
documented in written form, but exists in the form of oral histories 
from elders, traditional stories, harvest methods taught to children, 
and traditional knowledge of the birds' natural history shared within a 
village or region. The only available empirical evidence of customary 
and traditional use of the harvested bird species comes from Alaska 
subsistence migratory bird harvest surveys conducted by Service 
personnel and contractors and transferred to a computerized database. 
Because of difficulties in bird species identification, shorebird 
harvest information has been lumped into ``large shorebird'' and 
``small shorebird'' categories. In reality, Alaska subsistence harvests 
are also conducted in this manner, generally with no targeting or even 
recognition of individual shorebird species in most cases. In addition, 
red-faced cormorants, trumpeter swans, Aleutian terns, whiskered 
auklets, short-eared owls, and others have not been targeted in 
subsistence harvest questionnaires, so little or no numerical harvest 
data exists.

How Does the Service Address the Birds of Conservation Concern Relative 
to the Subsistence Harvest?

    Birds of Conservation Concern (BCC) 2002 is the latest document in 
a continuing effort by the Service to assess and prioritize bird 
species for conservation purposes. It was published in the Federal 
Register on February 6, 2003 (68 FR 6179). The BCC list identifies bird 
species at risk because of inherently small populations, restricted 
ranges, severe population declines, or imminent threats. The species 
listed need increased conservation attention to maintain or stabilize 
populations. The legal authority for this effort is the Fish and 
Wildlife Conservation Act (FWCA) of 1980, as amended. Section 13(a)(3) 
of the FWCA, 16 U.S.C. 2912(a)(3), requires the Secretary of the 
Interior through the Service, to ``identify species, subspecies, and 
populations of all migratory nongame birds that, without additional 
conservation actions, are likely to become candidates for listing under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543).''
    The Co-management Council will continually review the list of 
subsistence birds. As appropriate, the Council will elevate hunter 
awareness of species that may have small or declining populations in an 
effort to directly involve subsistence hunters in conserving these 
vulnerable species.
    At a July 2003 meeting, the SRC decided three of the BCC species 
(bar-tailed godwits [Limosa lapponica], dunlin [Calidris alpina], and 
red-legged kittiwakes [Rissa brevirostris]) would remain on the list of 
birds open to harvest in 2004. The Service, however, has conservation 
concerns about allowing harvest of the remaining 12 species (11 BCC 
birds plus wandering tattler) and is soliciting additional public 
comments as well as Co-management Council documentation of past and 
present use and dependence on these birds. Based on this information, 
the Service will make a final decision prior to publication of the 
final rule for the 2004 regulations as to whether or not to leave these 
12 species open for harvest. The 12 species of conservation concern 

Red-throated Loon (Gavia stellata)--Western Alaska BCC list
Red-faced Cormorant (Phalacrocorax urile)--Aleutians/Bering Sea Islands 
and Western Alaska BCC list
Black Oystercatcher (Haematopus bachmani)--National and Alaska-wide BCC 
Solitary Sandpiper (Tringa solitaria)--National BCC list
Wandering Tattler (Heteroscelus incanus)--not on BCC lists, but 
conservation issues were raised by the State of Alaska
Upland Sandpiper (Bartramia longicauda)--National BCC list
Black Turnstone (Arenaria melanocephala)--National and Alaska-wide BCC 
Red Knot (Calidris canutus)--Northern Pacific Forest and National BCC 
Arctic Tern (Sterna paradisaea)--Alaska-wide BCC list
Aleutian Tern (Sterna aleutica)--National and Alaska-wide BCC list
Whiskered Auklet (Aethia pygmaea)--National and Alaska-wide BCC list
Short-eared Owl (Asio flammeus)--National BCC list

    The Co-management Council has begun a systematic review of the 
customary and traditional use of these species and will recommend 
subsequent action based on its findings. The Co-management Council 
remains committed to including all stakeholders to determine the list 
of birds that will ultimately be open for subsistence harvest in 2004. 
Public comments are welcome on whether these 12 species should remain 
on the list of birds open to harvest in 2004. Any additional 
information would assist subsequent decisions made by the Service.

Public Comments Solicited

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. If you wish to comment, you may submit comments by any one of 
several methods. You may mail, fax, or hand-deliver comments to the 
address indicated under the caption ADDRESSES.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we will also 
withhold from the rulemaking record a

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respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. You may inspect comments 
received on the proposed regulations during normal business hours at 
the Service's office in Anchorage, Alaska.
    Because we conducted an extensive public involvement process prior 
to formulating this proposed rule, we are soliciting comments on it for 
only 30 days. We need to finalize this proposed rule as soon as 
possible to open the subsistence harvest season in April 2004. In 
developing the final rule, we will consider each comment received 
during the public comment period. In the final rule, we possibly may 
not respond in detail to each comment received during the comment 
period, but we will summarize all comments received and respond to 

Statutory Authority

    We derive our authority to issue these regulations from the four 
migratory bird treaties with Canada, Mexico, Japan, and Russia and from 
the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703 et seq.), that 
implements these treaties. Specifically, these regulations are issued 
pursuant to 16 U.S.C. 712(1), which authorizes the Secretary of the 
Interior, in accordance with these four treaties, to ``issue such 
regulations as may be necessary to assure that the taking of migratory 
birds and the collection of their eggs, by the indigenous inhabitants 
of the State of Alaska, shall be permitted for their own nutritional 
and other essential needs, as determined by the Secretary of the 
Interior, during seasons established so as to provide for the 
preservation and maintenance of stocks of migratory birds.''

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.,) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    (5) Is the description of the rule in the ``Supplementary 
Information'' section of the preamble helpful in understanding the 
    (6) What else could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. 
You may also e-mail the comments to this address: Exsec@ios.doi.gov.
    The Office of Management and Budget (OMB) has determined that this 
document is not a significant rule subject to OMB review under 
Executive Order 12866.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. The rule does not provide 
for new or additional hunting opportunities and therefore will have 
minimal economic or environmental impact. This rule benefits those 
participants who engage in the subsistence harvest of migratory birds 
in Alaska in two identifiable ways: first, participants receive the 
consumptive value of the birds harvested, and second, participants get 
the cultural benefit associated with the maintenance of a subsistence 
economy and way of life. The Service can estimate the consumptive value 
for birds harvested under this rule but does not have a dollar value 
for the cultural benefit of maintaining a subsistence economy and way 
of life.
    The economic value derived from the consumption of the harvested 
migratory birds has been estimated using the results of a paper by 
Robert J. Wolfe titled ``Subsistence Food Harvests in Rural Alaska, and 
Food Safety Issues'' (August 13, 1996). Using data from Wolfe's paper 
and applying it to the areas that will be included in this process, we 
determined a maximum economic value of $6 million. This is the 
estimated economic benefit of the consumptive part of this rule for 
participants in subsistence hunting. The cultural benefits of 
maintaining a subsistence economy and way of life can be of 
considerable value to the participants, and these benefits are not 
included in this figure.
    b. This rule will not create inconsistencies with other agencies' 
actions. We are the Federal agency responsible for the management of 
migratory birds, coordinating with the State of Alaska's Department of 
Fish and Game on management programs within Alaska. The State of Alaska 
is a member of the Alaska Migratory Bird Co-management Council.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
The rule does not affect entitlement programs.
    d. This rule will not raise novel legal or policy issues. The 
subsistence harvest regulations will go through the same National 
regulatory process as the existing migratory bird hunting regulations 
in 50 CFR part 20.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). An initial regulatory flexibility analysis is not required. 
Accordingly, a Small Entity Compliance Guide is not required. The rule 
legalizes a pre-existing subsistence activity, and the resources 
harvested will be consumed by the harvesters or persons within their 
local community.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act, as discussed in the 
Executive Order 12866 section above.
    a. This rule does not have an annual effect on the economy of $100 
million or more. It will legalize and regulate a traditional 
subsistence activity. It will not result in a substantial increase in 
subsistence harvest or a significant change in harvesting patterns. The 
commodities being regulated under this rule are migratory birds. This 
rule deals with legalizing the subsistence harvest of migratory birds 
and, as such, does not involve commodities traded in the marketplace. A 
small economic benefit from this rule derives from the sale of 
equipment and ammunition to carry out subsistence hunting. Most, if not 
all, businesses that sell hunting equipment in rural Alaska would 
qualify as small businesses. We have no reason to believe that this 
rule will lead to a disproportionate distribution of benefits.
    b. This rule will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions. This rule does not deal with traded

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commodities and, therefore, does not have an impact on prices for 
    c. This rule does 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. This rule deals with the harvesting of wildlife for 
personal consumption. It does not regulate the marketplace in any way 
to generate effects on the economy or the ability of businesses to 

Unfunded Mandates Reform Act

    We have determined and certified pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.) that this rule will not impose a 
cost of $100 million or more in any given year on local, State, or 
tribal governments or private entities. A statement containing the 
information required by this Act is therefore not necessary. 
Participation on regional management bodies and the Co-management 
Council will require travel expenses for some Alaska Native 
organizations and local governments. In addition, they will assume some 
expenses related to coordinating involvement of village councils in the 
regulatory process. Total coordination and travel expenses for all 
Alaska Native organizations are estimated to be less than $300,000 per 
year. In the Notice of Decision (65 FR 16405, March 28, 2000) we 
identified 12 partner organizations to be responsible for administering 
the regional programs. When possible, we will make annual grant 
agreements available to the partner organizations to help offset their 
expenses. The Alaska Department of Fish and Game will incur expenses 
for travel to Co-management Council and regional management body's 
meetings. In addition, the State of Alaska will be required to provide 
technical staff support to each of the regional management bodies and 
to the Co-management Council. Expenses for the State's involvement may 
exceed $100,000 per year, but should not exceed $150,000 per year.

Paperwork Reduction Act

    This rule has been examined under the Paperwork Reduction Act of 
1995 and has been found to contain no information collection 
requirements. We have, however, received OMB approval of associated 
voluntary annual household surveys used to determine levels of 
subsistence take. The OMB control number for the information collection 
is 1018-0124, which expires on October 31, 2006. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

Federalism Effects

    As discussed in the Executive Order 12866 and Unfunded Mandates 
Reform Act sections above, this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment under Executive Order 13132. We worked with the State of 
Alaska on development of these regulations.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of Section 3 of the 

Takings Implication Assessment

    This rule is not specific to particular land ownership, but applies 
to the harvesting of migratory bird resources throughout Alaska. 
Therefore, in accordance with Executive Order 12630, this rule does not 
have significant takings implications.

Government-to-Government Relations With Native American Tribal 

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), and Executive Order 13175 (65 FR 67249, 
November 6, 2000), concerning consultation and coordination with Indian 
Tribal Governments, we have consulted with Alaska tribes and evaluated 
the rule for possible effects on tribes or trust resources, and have 
determined that there are no significant effects. The rule will 
legalize the subsistence harvest of migratory birds and their eggs for 
tribal members, as well as for other indigenous inhabitants.

Endangered Species Act Consideration

    Prior to issuance of annual spring and summer subsistence 
regulations, we will consider provisions of the Endangered Species Act 
of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to 
ensure that harvesting is not likely to jeopardize the continued 
existence of any species designated as endangered or threatened, or 
modify or destroy its critical habitats and that it is consistent with 
conservation programs for those species. Consultations under section 7 
of this Act conducted in connection with the environmental assessment 
for the annual subsistence take regulations may cause us to change 
these regulations. Our biological opinion resulting from the Section 7 
consultation is a public document available for public inspection at 
the address indicated under the caption ADDRESSES.

National Environmental Policy Act Consideration

    The annual regulations and options were considered in the 
Environmental Assessment, ``Managing Migratory Bird Subsistence Hunting 
in Alaska: Hunting Regulations for the First Legal Spring/Summer 
Harvest in 2004,'' issued September 8, 2003. Copies are available from 
the address indicated under the caption ADDRESSES.

Energy Supply, Distribution, or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Because this rule only 
allows for traditional subsistence harvest and improves conservation of 
migratory birds by allowing effective regulation of this harvest, it is 
not a significant regulatory action under Executive Order 12866. 
Consequently it is not expected to significantly affect energy 
supplies, distribution, and use. Therefore, this action is not a 
significant energy action under Executive Order 13211 and no Statement 
of Energy Effects is required.

List of Subjects in 50 CFR Part 92

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Subsistence, Treaties, Wildlife.

    For the reasons set out in the preamble, we propose to amend title 
50, chapter I, subchapter G, of the Code of Federal Regulations as 


    1.The authority citation for part 92 continues to read as follows:

    Authority: 16 U.S.C. 703-712.

Subpart A--General Provisions

    2. In subpart A, amend Sec.  92.4 by adding the definitions ``Game 
Management Unit,'' ``Seabirds,'' ``Shorebirds,'' and ``Waterfowl,'' to 
read as follows:

Sec.  92.4  Definitions

* * * * *
    Game Management Unit, also referred to simply as Unit, means 1 of 
the 26

[[Page 1691]]

geographical areas listed in the codified State of Alaska hunting and 
trapping regulations and on maps of the Alaska State Game Management 
* * * * *
    Seabirds refers to all bird species listed in Sec.  92.32 within 
the families Alcidae, Laridae, Procellariidae, and Phalacrocoracidae.
* * * * *
    Shorebirds refers to all bird species listed in Sec.  92.32 within 
the families Charadriidae, Haematopodidae, and Scolopacidae.
* * * * *
    Waterfowl refers to all bird species listed in Sec.  92.32 within 
the family Anatidae.
    3. In subpart A, amend Sec.  92.5 by revising paragraph (a) to read 
as follows:

Sec.  92.5  Who is eligible to participate?

* * * * *
    (a) Included areas. Village areas located within the Alaska 
Peninsula, Kodiak Archipelago, the Aleutian Islands, or in areas north 
and west of the Alaska Range are subsistence harvest areas, except that 
villages within these areas not meeting the criteria for a subsistence 
harvest area as identified in paragraph (c) of this section will be 
excluded from the spring and summer subsistence harvest.
    (1) Any person may request the Co-management Council to recommend 
that an otherwise included area be excluded by submitting a petition 
stating how the area does not meet the criteria identified in paragraph 
(c) of this section. The Co-management Council will forward petitions 
to the appropriate regional management body for review and 
recommendation. The Co-management Council will then consider each 
petition and will submit to the U.S. Fish and Wildlife Service any 
recommendations to exclude areas from the spring and summer subsistence 
harvest. The U.S. Fish and Wildlife Service will publish any approved 
recommendations to exclude areas in subpart D of this part.
    (2) Based on petitions for inclusion recommended by the Co-
Management Council in 2003, the Service is proposing to add the 
following communities to the included areas under this part starting in 
the 2004 harvest season:
    (i) Upper Copper River Region--Gulkana, Gakona, Tazlina, Copper 
Center, Mentasta Lake, Chitina, Chistochina.
    (ii) Gulf of Alaska Region--Chugach Community of Tatitlek, Chugach 
Community of Chenega, Chugach Community of Port Graham, Chugach 
Community of Nanwalek.
    (iii) Cook Inlet Region--Tyonek.
    (iv) Southeast Alaska Region--Hoonah.
* * * * *
    4. In subpart A, revise Sec.  92.6 to read as follows:

Sec.  92.6  Use and possession of migratory birds.

    You may not sell, offer for sale, purchase, or offer to purchase 
migratory birds, their parts, or their eggs taken under this part.
    (a) Eligible persons. Under this part, you may take birds for human 
consumption only. Harvest and possession of migratory birds must be 
done using nonwasteful taking. Nonedible byproducts of migratory birds 
taken for food may be used for other purposes.
    (b) Noneligible persons. You may receive portions of birds or their 
eggs not kept for human consumption from eligible persons only if you 
have a valid permit issued under Sec.  21.27 for scientific research or 
education, and consistent with the terms and conditions of that permit.

Subpart C--General Regulations Governing Subsistence Harvest

    5. In subpart C, amend Sec.  92.20 by revising paragraph (i) to 
read as follows:

Sec.  92.20  Methods and means

* * * * *
    (i) Using an air boat (Interior and Bristol Bay Regions only) or 
jet ski (Interior Region only) for hunting or transporting hunters.

Subpart D--Annual Regulations Governing Subsistence Harvest

    6. In Subpart D, add Sec. Sec.  92.31 through 92.33 to read as 

Sec.  92.31  Migratory bird species not authorized for subsistence 

    (a) You may not harvest birds or gather eggs from the following 
    (1) Spectacled Eider (Somateria fischeri).
    (2) Steller's Eider (Polysticta stelleri).
    (3) Emperor Goose (Chen canagica).
    (1)Aleutian Canada Goose (Branta canadensis leucopareia)--Semidi 
Islands only.
    (b) In addition, you may not gather eggs from the following 
    (1) Cackling Canada Goose (Branta canadensis minima).
    (2) Black Brant (Branta bernicla nigricans)--in the Yukon/Kuskokwim 
Delta and North Slope regions only.

Sec.  92.32  Subsistence migratory bird species.

    You may harvest birds or gather eggs from the following species, 
listed in taxonomic order, within all included regions. When birds are 
listed only to the species level, all subspecies existing in Alaska are 
open to harvest.
    (a) Family Gaviidae.
    (1) Red-throated Loon (Gavia stellata).
    (2) Arctic Loon (Gavia arctica).
    (3) Pacific Loon (Gavia pacifica).
    (4) Common Loon (Gavia immer).
    (b) Family Podicipedidae.
    (1) Horned Grebe (Podiceps auritus).
    (2) Red-necked Grebe (Podiceps grisegena).
    (c) Family Procellariidae.
    (1) Northern Fulmar (Fulmarus glacialis).
    (2) [Reserved].
    (d) Family Phalacrocoracidae.
    (1) Double-crested Cormorant (Phalacrocorax auritus).
    (2) Red-faced Cormorant (Phalacrocorax urile).
    (3) Pelagic Cormorant (Phalacrocorax pelagicus).
    (e) Family Anatidae.
    (1) Greater White-fronted Goose (Anser albifrons).
    (2) Snow Goose (Chen caerulescens).
    (3) Lesser Canada Goose (Branta canadensis parvipes).
    (4) Taverner's Canada Goose (Branta canadensis taverneri).
    (5) Aleutian Canada Goose (Branta canadensis leucopareia)--except 
in the Semidi Islands.
    (6) Cackling Canada Goose (Branta canadensis minima)--except no egg 
gathering is permitted.
    (7) Black Brant (Branta bernicla nigricans)--except no egg 
gathering is permitted in the Yukon/Kuskokwim Delta and the North Slope 
    (8) Tundra Swan (Cygnus columbianus).
    (9) Gadwall (Anas strepera).
    (10) Eurasian Wigeon (Anas penelope).
    (11) American Wigeon (Anas americana).
    (12) Mallard (Anas platyrhynchos).
    (13) Blue-winged Teal (Anas discors).
    (14) Northern Shoveler (Anas clypeata).
    (15) Northern Pintail (Anas acuta).
    (16) Green-winged Teal (Anas crecca).
    (17) Canvasback (Aythya valisineria).
    (18) Redhead (Aythya americana).
    (19) Ring-necked Duck (Aythya collaris).
    (20) Greater Scaup (Aythya marila).
    (21) Lesser Scaup (Aythya affinis).
    (22) King Eider (Somateria spectabilis).
    (23) Common Eider (Somateria mollissima).
    (24) Harlequin Duck (Histrionicus histrionicus).
    (25) Surf Scoter (Melanitta perspicillata).

[[Page 1692]]

    (26) White-winged Scoter (Melanitta fusca).
    (27) Black Scoter (Melanitta nigra).
    (28) Long-tailed Duck (Clangula hyemalis).
    (29) Bufflehead (Bucephala albeola).
    (30) Common Goldeneye (Bucephala clangula).
    (31) Barrow's Goldeneye (Bucephala islandica).
    (32) Hooded Merganser (Lophodytes cucullatus).
    (33) Common Merganser (Mergus merganser).
    (34) Red-breasted Merganser (Mergus serrator).
    (f) Family Gruidae.
    (1) Sandhill Crane (Grus canadensis).
    (2) [Reserved].
    (g) Family Charadriidae.
    (1) Black-bellied Plover (Pluvialis squatarola).
    (2) Common Ringed Plover (Charadrius hiaticula).
    (h) Family Haematopodidae.
    (1) Black Oystercatcher (Haematopus bachmani).
    (2) [Reserved].
    (i) Family Scolopacidae.
    (1) Greater Yellowlegs (Tringa melanoleuca).
    (2) Lesser Yellowlegs (Tringa flavipes).
    (3) Solitary Sandpiper (Tringa solitaria).
    (4) Wandering Tattler (Heteroscelus incanus).
    (5) Spotted Sandpiper (Actitis macularia).
    (6) Upland Sandpiper (Bartramia longicauda).
    (7) Bar-tailed Godwit (Limosa lapponica).
    (8) Ruddy Turnstone (Arenaria interpres).
    (9) Black Turnstone (Arenaria melanocephala).
    (10) Red Knot (Calidris canutus).
    (11) Semipalmated Sandpiper (Calidris pusilla).
    (12) Western Sandpiper (Calidris mauri).
    (13) Least Sandpiper (Calidris minutilla).
    (14) Baird's Sandpiper (Calidris bairdii).
    (15) Sharp-tailed Sandpiper (Calidris acuminata).
    (16) Dunlin (Calidris alpina).
    (17) Long-billed Dowitcher (Limnodromus scolopaceus).
    (18) Common Snipe (Gallinago gallinago).
    (19) Red-necked phalarope (Phalaropus lobatus).
    (20) Red phalarope (Phalaropus fulicaria).
    (j) Family Laridae.
    (1) Pomarine Jaeger (Stercorarius pomarinus).
    (2) Parasitic Jaeger (Stercorarius parasiticus).
    (3) Long-tailed Jaeger (Stercorarius longicaudus).
    (4) Bonaparte's Gull (Larus philadelphia).
    (5) Mew Gull (Larus canus).
    (6) Herring Gull (Larus argentatus).
    (7) Slaty-backed Gull (Larus schistisagus).
    (8) Glaucous-winged Gull (Larus glaucescens).
    (9) Glaucous Gull (Larus hyperboreus).
    (10) Sabine's Gull (Xema sabini).
    (11) Black-legged Kittiwake (Rissa tridactyla).
    (12) Red-legged Kittiwake (Rissa brevirostris).
    (13) Ivory Gull (Pagophila eburnea).
    (14) Arctic Tern (Sterna paradisaea).
    (15) Aleutian Tern (Sterna aleutica).
    (k) Family Alcidae.
    (1) Common Murre (Uria aalge).
    (2) Thick-billed Murre (Uria lomvia).
    (3) Black Guillemot (Cepphus grylle).
    (4) Pigeon Guillemot (Cepphus columba).
    (5) Cassin's Auklet (Ptychoramphus aleuticus).
    (6) Parakeet Auklet (Aethia psittacula).
    (7) Least Auklet (Aethia pusilla).
    (8) Whiskered Auklet (Aethia pygmaea).
    (9) Crested Auklet (Aethia cristatella).
    (10) Rhinoceros Auklet (Cerorhinca monocerata).
    (11) Horned Puffin (Fratercula corniculata).
    (12) Tufted Puffin (Fratercula cirrhata).
    (I) Family Strigidae.
    (1) Great Horned Owl (Bubo virginianus).
    (2) Snowy Owl (Nyctea scandiaca).
    (3) Short-eared Owl (Asio flammeus).

Sec.  92.33  Region-specific regulations.

    The 2004 season dates for the eligible subsistence regions are as 
    (a) Aleutian/Pribilof Islands Region.
    (1) Northern Unit (Pribilof Islands):
    (i) Season: April 2-June 30.
    (ii) Closure: July 1-August 31.
    (2) Central Unit (Aleut Region's eastern boundary on the Alaska 
Peninsula westward to and including Unalaska Island):
    (i) Season: April 2-June 15 and July 16-August 31.
    (ii) Closure: June 16-July 15.
    (3) Western Unit (Umnak Island west to and including Attu Island):
    (i) Season: April 2-July 15 and August 16-August 31.
    (ii) Closure: July 16-August 15.
    (b) Yukon/Kuskokwim Delta Region.
    (1) Season: April 2-August 31.
    (2) Closure: 30-day closure dates to be announced by the Alaska 
Regional Director or his designee, after consultation with local 
subsistence users and the region's Waterfowl Conservation Committee. 
This 30-day period will occur between June 1 and August 15 of each 
year. A press release announcing the actual closure dates will be 
forwarded to regional newspapers and radio and television stations and 
posted in village post offices and stores.
    (c) Bristol Bay Region.
    (1) Season: April 2-June 14 and July 16-August 31 (general season); 
April 2-July 15 for seabird egg gathering only.
    (2) Closure: June 15-July 15 (general season); July 16-August 31 
(seabird egg gathering).
    (d) Bering Strait/Norton Sound Region.
    (1) Stebbins/St. Michael Area (Point Romanof to Canal Point):
    (i) Season: April 15-June 14 and July 16-August 31.
    (ii) Closure: June 15-July 15.
    (2) Remainder of the region:
    (i) Season: April 2-June 14 and July 16-August 31 for waterfowl; 
April 2-July 19 and August 21-August 31 for all other birds.
    (ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for 
all other birds.
    (e) Kodiak Archipelago Region, except the Kodiak Island roaded area 
is closed to the harvesting of migratory birds and their eggs. The 
closed area is depicted on a map and consists of all lands and water 
east of a line extending from Crag Point in the north to the west end 
of Saltery Cove in the south and all lands and water south of a line 
extending from Termination Point along the north side of Cascade Lake 
extending to Anton Larson Bay. Waters adjacent to the closed area are 
closed to harvest within 500 feet from the water's edge. The offshore 
islands are open to harvest.
    (1) Season: April 2-June 20 and July 22-August 31, egg gathering: 
May 1-June 20.
    (2) Closure: June 21-July 21.
    (f) Northwest Arctic Region.
    (1) Season: April 2-August 31 (in general); waterfowl egg gathering 
May 20-June 9; seabird egg gathering July 3-July 12; molting/non-
nesting waterfowl July 1-July 31.
    (2) Closure: June 10-August 14, except for the taking of seabird 
eggs and molting/non-nesting waterfowl as provided in paragraph (f)(1) 
of this section.
    (g) North Slope Region.
    (1) Southern Unit (Southwestern North Slope regional boundary east 
to Peard Bay, everything west of the longitude line 158[deg]30[min]S 
and south of the

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latitude line 70[deg]45[min]E to west bank of the Ikpikpuk River, and 
everything south of the latitude line 69[deg]45[min]E between the west 
bank of the Ikpikpuk River to the east bank of Sagavinirktok River):
    (i) Season: April 2-June 29 and July 30-August 31 for seabirds; 
April 2-June 19 and July 20-August 31 for all other birds.
    (ii) Closure: June 30-July 29 for seabirds; June 20-July 19 for all 
other birds.
    (2) Northern Unit (At Peard Bay, everything east of the longitude 
line 158[deg]30[min]S and north of the latitude line 70[deg]45[min]E to 
west bank of the Ikpikpuk River, and everything north of the latitude 
line 69[deg]45[min]E between the west bank of the Ikpikpuk River to the 
east bank of Sagavinirktok River):
    (i) Season: April 6-June 6 and July 7-August 31 for king and common 
eiders and
    April 2-June 15 and July 16-August 31 for all other birds.
    (ii) Closure: June 7-July 6 for king and common eiders and June 16-
July 15 for all other birds.
    (3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
    (i) Season: April 2-June 19 and July 20-August 31.
    (ii) Closure: June 20-July 19.
    (h) Interior Region.
    (1) Season: April 2-June 14 and July 16-August 31; egg gathering 
May 1-June 14.
    (2) Closure: June 15-July 15.
    (i) Upper Copper River (Harvest Area: State of Alaska Game 
Management Units 11 and 13) (Eligible communities: Gulkana, Chitina, 
Tazlina, Copper Center, Gakona, Mentasta Lake, Chistochina and 
    (1) Season: April 15-May 26 and June 27-August 31.
    (2) Closure: May 27-June 26.
    (3) Note: The Copper River Basin communities listed above also 
documented traditional use harvesting birds in Unit 12, making them 
eligible to hunt in this unit using the seasons specified in paragraph 
(h)(1) of this section.
    (j) Gulf of Alaska Region.
    (1) Prince William Sound Area (Harvest area: Unit 6 [D]), (Eligible 
Chugach communities: Chenega Bay, Tatitlek).
    (i) Season: April 2-May 31 and July 1-August 31.
    (ii) Closure: June 1-30.
    (2) Kachemak Bay Area (Harvest area: Unit 15[C] South of a line 
connecting the tip of Homer Spit to the mouth of Fox River) (Eligible 
Chugach Communities: Port Graham, Nanwalek).
    (i) Season: April 2-May 31 and July 1-August 31.
    (ii) Closure: June 1-30.
    (k) Cook Inlet (Harvest area: portions of Unit 16[B] as specified 
below) (Eligible communities: Tyonek only)
    (1) Season: April 2-May 31--That portion of Unit 16(B) south of the 
Skwentna River and west of the Yentna River and August 1-31--that 
portion of Unit 16(B) south of the Beluga River, Beluga Lake, and the 
Triumvirate Glacier.
    (2) Closure: June 1-July 31.
    (l) Southeast Alaska (Harvest area: National Forest lands in Icy 
Strait and Cross Sound including Middle Pass Rock near the Inian 
Islands, Table Rock in Cross Sound, and other traditional locations on 
the coast of Yakobi Island) (Eligible communities: Hoonah only).
    (1) Season: glaucous-winged gull egg gathering only: May 15-June 
    (2) Closure: July 1-August 31.

    Dated: November 28, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-535 Filed 1-9-04; 8:45 am]