[Federal Register: April 8, 2005 (Volume 70, Number 67)]
[Rules and Regulations]               
[Page 18243-18250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 18243]]


Part VI

Department of the Interior


Fish and Wildlife Service


50 CFR Part 92

Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations for 
Migratory Birds in Alaska During the 2005 Season; Final Rule

[[Page 18244]]



Fish and Wildlife Service

50 CFR Part 92

RIN 1018-AT77

Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 
for Migratory Birds in Alaska During the 2005 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is 
establishing migratory bird subsistence harvest regulations in Alaska 
for the 2005 season. This final rule prescribes frameworks, or outer 
limits, for dates when harvesting of birds may occur, species that can 
be taken, and methods and means that would be 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 establishes 
regulations that start on April 2, 2005, and expire on August 31, 2005, 
for the subsistence harvest of migratory birds in Alaska.

DATES: Amendments to subparts A and C of 50 CFR part 92 become 
effective April 8, 2005. Amendments to subpart D of 50 CFR part 92 are 
effective April 2, 2005, through August 31, 2005.

ADDRESSES: The administrative record for this rule may be viewed at the 
office of the Regional Director, Alaska Region, U.S. Fish and Wildlife 
Service, 1011 E. Tudor Road, Anchorage, AK 99503.

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, or go to http://alaska.fws.gov/ambcc/index.htm



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 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 Has the Amended Treaty Accomplished?

    The major goals of the amended treaty with Canada were to allow 
traditional subsistence harvest and improve conservation of migratory 
birds by allowing effective regulation of this harvest. The amended 
treaty with Canada provides a means to allow 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 set the geographic baseline 
with lands north and west of the Alaska Range and within the Alaska 
Peninsula, Kodiak Archipelago, and the Aleutian Islands as the initial 
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 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 subsistence 
migratory bird harvest.
    The next step established the first 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 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, July 21, 2003, and 
April 2, 2004, final rules for additional background information on the 
subsistence harvest program for migratory birds in Alaska.
    On December 20, 2004, we published a proposed rule in the Federal 
Register (69 FR 76362) to establish annual spring/summer subsistence 
migratory bird harvest regulations for Alaska, for the 2005 season. We 
received written responses from two entities. One of the responses was 
from a Co-management Council regional management body, and the other 
was from a nongovernmental organization.
    This rulemaking is necessary because the migratory bird harvest 
season is closed unless opened and the regulations governing 

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harvest of migratory birds in Alaska are subject to public review and 
annual approval. The Co-management Council held a meeting in April 
2004, to develop recommendations for changes effective for the 2005 
harvest season. These recommendations were presented to the Service 
Regulations Committee (SRC) on July 28 and 29, 2004, for action.
    This rule establishes regulations for the taking of migratory birds 
for subsistence uses in Alaska during 2005. This rule lists migratory 
bird species that are open or closed to harvest, as well as season 
openings and closures by region. It also explains minor changes in the 
methods and means of taking migratory birds for subsistence purposes. 
We have amended 50 CFR 92.5 by adding three new communities to the list 
of included areas, and corresponding harvest areas and season dates to 
50 CFR 92.33.

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 (50 CFR 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 (50 
CFR 92.5). These geographical restrictions opened the initial 
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, in 2004, we 
added 13 additional communities based on the five criteria set forth in 
Sec.  92.5(c). These communities included: Gulkana, Gakona, Tazlina, 
Copper Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, 
Port Graham and Nanwalek, Tyonek and Hoonah (populations totaling 
2,766). For 2005, we added three additional communities for glaucous-
winged gull egg gathering only. These southeastern communities 
included: Craig, Hydaburg, and Yakutat, with a combined population of 
2,459. These new regions would increase the percentage of the State 
population included in the subsistence bird harvest to only 14 percent.
    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 Are the Changes for 2005?

    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 20.21) and 
Alaska (5AAC92.100) migratory bird hunting regulations. We included 
some exceptions to the Federal regulations 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 rule, we have incorporated the Bering 
Strait/Norton Sound region's request to add St. Lawrence Island to the 
list of areas where an exception allows the use of live decoys to 
harvest auklets.

How Did the Service Decide the List of Birds Open To Harvest and What 
Are the Changes for 2005?

    We believed that it was necessary to develop a list of bird species 
that would be open to subsistence harvest. The original list was 
compiled from subsistence harvest data, with several species added 
based on their presence in Alaska. The original intent was for the list 
to be reviewed by the regional management bodies as a checklist. 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. Also, the scientific and corresponding common names 
of birds are constantly being adjusted by ornithologists, making it 
difficult to translate these taxonomic changes into the traditionally 
used Native bird names. 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 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 primary source of quantitative data on 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

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``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.
    Based on conservation concerns, in this rule we closed the harvest 
of tundra swans in Units 9(D) and 10 starting in 2005. This decision 
was made to protect a small resident population segment of fewer than 
500 tundra swans in the Izembek National Wildlife Refuge area. This 
small segment of the Pacific population is nonmigratory and appears to 
be morphologically distinct. Breeding pair surveys indicate that the 
local population has declined steadily over the past two decades and 
recruitment into the population is low.
    At the request of the North Slope Borough Fish and Game Management 
Committee, the Co-Management Council recommended adding a provision to 
allow subsistence use of yellow-billed loons inadvertently caught in 
subsistence fishing (gill) nets on the North Slope. Justification given 
by the proponent was that yellow-billed loons are culturally important 
for the Inupiat Eskimo of the North Slope for use in traditional dance 
regalia. The Service Regulations Committee met on July 29, 2004, and 
proposed to set a maximum of 20 yellow-billed loons inadvertently 
caught annually in the North Slope Region. Individual reporting to the 
North Slope Borough Department of Wildlife will be required by the end 
of the season. In addition, the North Slope Borough is planning to ask 
fishermen, through announcements on the radio and personal contact, to 
report all entanglements of loons to better estimate the levels of 
injury or mortality caused by gill nets. This provision to allow 
subsistence possession and use of yellow-billed loons caught in fishing 
gill nets is subject to annual review and renewal as part of 50 CFR 
part 92's Subpart D--Annual Regulations Governing Subsistence Harvest.

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 (16 U.S.C. 2901-
2912). 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.

Response to Public Comments

    Only the Region Specific Regulations section of the proposed rule 
was addressed by commenters.

Section 92.33 Region Specific Regulations

    Comment: One respondent expressed strong opposition to how the 
migratory bird subsistence harvest is being managed in the Delta 
Junction portion of the Interior Region. The commenter explained that 
the agricultural fields were mostly created in the 1970s and so hunting 
waterfowl in these fields should not be considered customary and 
traditional. The respondent requested that the harvest be closed in 
Unit 20(D) or at least that portion of Unit 20(D) south of the Tanana 
    Service Response: A similar proposal has been received to change 
the 2006 harvest regulations and will be discussed with a 
recommendation subsequently made by the Co-Management Council at their 
May 2005 meeting. Since this issue is already in the system to be 
discussed, we have decided to defer any action until after receiving a 
Co-Management Council recommendation.
    Comment: One commenter proposed to amend the 2005 regulations to 
close the season for black brant on August 16 versus August 31, only in 
the Cold Bay area, specifically Moffet and Glazenap lagoons, including 
Norma Bay and Applegate Cove. The commenter supported their proposal by 
describing an occurrence in the 2004 season in which two subsistence 
hunters harvested waterfowl, including black brant, in a way that was 
inconsistent with the community ethic of traditional sharing and taking 
only what was needed to satisfy subsistence needs.
    Service Response: The proposed response to this incident was 
suggested by a regional management body of the Co-Management Council; 
however, the entire Co-Management Council was not given the opportunity 
to discuss and make a recommendation on the proposed regulatory action. 
We have decided to take no regulatory action for the 2005 season and 
will defer continued discussion until the May 2005 Co-Management 
Council meeting.

Effective Date

    Under the Administrative Procedure Act, our normal practice is to 
publish rules with a 30-day delay in effective date. However, for this 
rule, we are using the ``good cause'' exemption under 5 U.S.C. 
553(d)(3) to make this rule effective immediately upon publication in 
order to ensure conservation of the resource for the upcoming spring/
summer subsistence harvest. The rule needs to be made effective 
immediately because the amended migratory bird treaty protocol allows 
for an April 2 opening of the subsistence harvest season. To limit 
negative impacts on the subsistence users, we need to open the harvest 
as close as possible to the originally agreed-upon opening date.

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

    The Office of Management and Budget (OMB) has determined that this 
action 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

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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 
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 (Alaska Native non-profits and 
local governments) to be responsible for administering the regional 
programs. The Alaska Department of Fish and Game will also 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. When funding permits, we make annual grant 
agreements available to the partner organizations and the Alaska 
Department of Fish and Game to help offset their expenses.

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 


    This rule is not specific to particular land ownership, but applies 
to the harvesting of migratory bird resources

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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 legally 
recognize the subsistence harvest of migratory birds and their eggs for 
tribal members, as well as for other indigenous inhabitants.

Endangered Species Act Consideration

    Section 7 of the Endangered Species Act, as amended (16 U.S.C. 
1531-1543; 87 Stat. 884), provides that, ``The Secretary shall review 
other programs administered by him and utilize such programs in 
furtherance of the purposes of the Act'' and shall ``insure that any 
action authorized, funded, or carried out * * * is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat. * * *'' Consequently, we consulted with the 
Anchorage Fish and Wildlife Field Office of the Service to ensure that 
actions resulting from these regulations would not likely jeopardize 
the continued existence of Spectacled or Steller's Eiders or result in 
the destruction or adverse modification of their critical habitat. 
Findings from this consultation are included in the Biological Opinion 
on the Effects of the Proposed 2005 Spring and Summer Subsistence 
Harvest of Birds on the Threatened Steller's and Spectacled Eiders 
(dated March 1, 2005).
    The consultation concluded that the 2005 regulations are not likely 
to jeopardize the continued existence of either the Steller's or 
Spectacled Eider. Additionally, any modifications resulting from this 
consultation to regulatory measures previously proposed are reflected 
in the final rule.
    The complete administrative record for this consultation is on file 
at the Anchorage Fish and Wildlife Field Office and is also available 
for public inspection at the address indicated under the caption 

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 2005,'' issued August 15, 2004, with a Finding of No 
Significant Impact issued March 2, 2005. 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 
allows only 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 amend title 50, chapter I, 
subchapter G, of the Code of Federal Regulations as follows:


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.  92.5 by revising paragraph (a)(2) 
introductory text and adding paragraph (a)(3) to read as follows:

Sec.  92.5  Who is eligible to participate?

* * * * *
    (a) * * *
    (2) Based on petitions for inclusion recommended by the Co-
management Council in 2003, the Service added the following communities 
to the included areas under this part starting in the 2004 harvest 
* * * * *
    (3) Based on petitions for inclusion recommended by the Co-
management Council in 2004, the Service added the following communities 
to the included areas under this part starting in the 2005 harvest 
    (i) Southeast Region--Craig, Hydaburg, Yakutat.
    (ii) [Reserved]

Subpart C--General Regulations Governing Subsistence Harvest

3. In subpart C, amend Sec.  92.20 by revising paragraph (d) to read as 

Sec.  92.20  Methods and means.

* * * * *
    (d) Taking waterfowl and other species using live birds as decoys, 
except for auklets on Diomede and St. Lawrence islands (Use of live 
birds as decoys is a customary and traditional means of harvesting 
auklets on Diomede and St. Lawrence islands.);
* * * * *

Subpart D--Annual Regulations Governing Subsistence Harvest

4. In Subpart D, add Sec. Sec.  92.31 through 92.33 to read as follows:

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).
    (4) Aleutian Cackling Goose (Branta hutchinsii leucopareia)--Semidi 
Islands only.
    (5) Tundra Swan (Cygnus columbianus)--Units 9(D) and 10 only.
    (6) Yellow-billed Loon (Gavia adamsii)--except North Slope Region. 
(Requirements for harvest and reporting are described in Sec.  
    (b) In addition, you may not gather eggs from the following 
    (1) Cackling Goose (Branta hutchinsii 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 Anatidae.

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    (1) Greater White-fronted Goose (Anser albifrons).
    (2) Snow Goose (Chen caerulescens).
    (3) Black Brant (Branta bernicla nigricans)--except no egg 
gathering is permitted in the Yukon/Kuskokwim Delta and the North Slope 
    (4) Taverner's Cackling Goose (Branta hutchinsii taverneri).
    (5) Aleutian Cackling Goose (Branta hutchinsii leucopareia)--except 
in the Semidi Islands.
    (6) Cackling Goose (Branta hutchinsii minima)--except no egg 
gathering is permitted.
    (7) Lesser Canada Goose (Branta canadensis parvipes).
    (8) Tundra Swan (Cygnus columbianus)--except in Units 9(D) and 10.
    (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).
    (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).
    (b) Family Gaviidae.
    (1) Red-throated Loon (Gavia stellata).
    (2) Arctic Loon (Gavia arctica).
    (3) Pacific Loon (Gavia pacifica).
    (4) Common Loon (Gavia immer).
    (5) Yellow-billed Loon (Gavia adamsii)--North Slope Region only. 
(Requirements for harvest and reporting are described in Sec.  
    (c) Family Podicipedidae.
    (1) Horned Grebe (Podiceps auritus).
    (2) Red-necked Grebe (Podiceps grisegena).
    (d) Family Procellariidae.
    (1) Northern Fulmar (Fulmarus glacialis).
    (2) [Reserved].
    (e) Family Phalacrocoracidae.
    (1) Double-crested Cormorant (Phalacrocorax auritus).
    (2) Pelagic Cormorant (Phalacrocorax pelagicus).
    (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) Spotted Sandpiper (Actitis macularius).
    (4) Bar-tailed Godwit (Limosa lapponica).
    (5) Ruddy Turnstone (Arenaria interpres).
    (6) Semipalmated Sandpiper (Calidris pusilla).
    (7) Western Sandpiper (Calidris mauri).
    (8) Least Sandpiper (Calidris minutilla).
    (9) Baird's Sandpiper (Calidris bairdii).
    (10) Sharp-tailed Sandpiper (Calidris acuminata).
    (11) Dunlin (Calidris alpina).
    (12) Long-billed Dowitcher (Limnodromus scolopaceus).
    (13) Wilson's Snipe (Gallinago delicata).
    (14) Red-necked phalarope (Phalaropus lobatus).
    (15) 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).
    (l) Family Strigidae.
    (1) Great Horned Owl (Bubo scandiacus).
    (2) Snowy Owl (Nyctea scandiaca).

Sec.  92.33  Region-specific regulations.

    The 2005 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.

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    (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 for the Kodiak Island roaded 
area, is open to the harvesting of migratory birds and their eggs. The 
closed area consists of all lands and waters (including exposed 
tidelands) 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' S and 
south of the latitude line 70[deg]45' E to west bank of the Ikpikpuk 
River, and everything south of the latitude line 69[deg]45' E between 
the west bank of the Ikpikpuk River to the east bank of Sagavinirktok 
    (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' S and north of the latitude line 70[deg]45' E to west 
bank of the Ikpikpuk River, and everything north of the latitude line 
69[deg]45' E between the west bank of the Ikpikpuk River to the east 
bank of Sagavinirktok River):
    (i) Season: April 2-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.
    (4) All Units: yellow-billed loons. Annually, up to 20 yellow-
billed loons may be caught inadvertently in subsistence fishing nets in 
the North Slope Region and kept for subsistence use. Individuals must 
report each yellow-billed loon inadvertently caught while subsistence 
gill net fishing to the North Slope Borough Department of Wildlife 
Management by the end of the season.
    (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 
    Units 11 and 13) (Eligible communities: Gulkana, Chitina, Tazlina, 
Copper Center, Gakona, Mentasta Lake, Chistochina, and Cantwell).
    (1) Season: April 15-May 26 and June 27-August 31.
    (2) Closure: May 27-June 26.
    (3) The Copper River Basin communities listed in this paragraph 
also documented traditional use harvesting birds in Unit 12, making 
them eligible to hunt in this unit using the seasons specified in 
paragraph (h) 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 
in this paragraph (k).) (Eligible communities: Tyonek only).
    (1) Season: April 2-May 31 for that portion of Unit 16(B) south of 
the Skwentna River and west of the Yentna River, and August 1-31 for 
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
    (1) Community of Hoonah (Harvest area: 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. The land and waters of Glacier Bay National Park remain 
closed to all subsistence harvesting [50 CFR 100.3]).
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
    (ii) Closure: July 1-August 31.
    (2) Communities of Craig and Hydaburg (Harvest area: Small islands 
and adjacent shoreline of western Prince of Wales Island from Point 
Baker to Cape Chacon, but also including Coronation and Warren 
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
    (ii) Closure: July 1-August 31.
    (3) Community of Yakutat (Harvest area: Icy Bay [Icy Cape to Pt. 
Riou] and coastal lands and islands bordering the Gulf of Alaska from 
Pt. Manby southeast to and including Dry Bay).
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
    (ii) Closure: July 1-August 31.

    Dated: March 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-6987 Filed 4-7-05; 8:45 am]