[Federal Register: November 20, 2009 (Volume 74, Number 223)]
[Proposed Rules]
[Page 60228-60234]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no09-34]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 92
[FWS-R7-MB-2009-0082] [91200-1231-9BPP-L2]
RIN 1018-AW67
Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations
for Migratory Birds in Alaska During the 2010 Season
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) proposes
migratory bird subsistence harvest regulations in Alaska for the 2010
season. These regulations will enable the continuation of customary and
traditional subsistence uses of migratory birds in Alaska and prescribe
regional information on when and where the harvesting of birds may
occur. These regulations were developed under a co-management process
involving the Service, the Alaska Department of Fish and Game, and
Alaska Native representatives. The rulemaking is necessary because the
regulations governing the subsistence harvest of migratory birds in
Alaska are subject to annual review. This rulemaking proposes region-
specific regulations that go into effect on April 2, 2010, and expire
on August 31, 2010.
DATES: We will accept comments received or postmarked on or before
January 19, 2010. We must receive requests for public hearings, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
January 4, 2010.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R7-
MB-2009-0082.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-MB-2009-0082; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comment Procedures
section below for more information).
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.
SUPPLEMENTARY INFORMATION:
Public Comment Procedures
To ensure that any final action resulting from this proposed rule
will be as accurate and as effective as possible, we request that you
send relevant information for our consideration. The comments that will
be most useful and likely to influence our decisions are those that you
support by quantitative information or studies and those that include
citations to, and analyses of, the applicable laws and regulations.
Please make your comments as specific as possible and explain the bases
for them. In addition, please include sufficient information with your
comments to allow us to authenticate any scientific or commercial data
you include.
You must submit your comments and materials concerning this
proposed rule by one of the methods listed above in the ADDRESSES
section. We will not accept comments sent by e-mail or fax or to an
address not listed in ADDRESSES. If you submit a comment via http://
www.regulations.gov, your entire comment--including any personal
identifying information, such as your address, telephone number, or e-
mail address--will be posted on the Web site. Please note that comments
submitted to this Web site are not immediately viewable. When you
submit a comment, the system receives it immediately. However, the
comment will not be publicly viewable until we post it, which might not
occur until several days after submission.
If you mail or hand-carry a hardcopy comment directly to us that
includes personal information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. To ensure that the
electronic docket for this rulemaking is complete and all comments we
receive are publicly available, we will post all hardcopy comments on
http://www.regulations.gov.
In addition, comments and materials we receive, as well as
supporting documentation used in preparing this proposed rule, will be
available for public inspection in two ways:
(1) You can view them on http://www.regulations.gov. In the Search
Documents box, enter FWS-R7-MB-2009-0082, which is the docket number
for this rulemaking. Then, in the Search panel on the left side of the
screen, select the type of documents you want
[[Page 60229]]
to view under the Document Type heading.
(2) You can make an appointment, during normal business hours, to
view the comments and materials in person at the Division of Migratory
Bird Management, U.S. Fish and Wildlife Service; 4501 N. Fairfax Drive,
Room 4107, Arlington, VA 22203-1610.
Public Availability of Comments
As stated above in more detail, before including your address,
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly
available at any time. Though you can ask us in your comment to
withhold your personal identifying information from public review, we
cannot guarantee that we will be able to do so.
Why Is This Rulemaking Necessary?
This rulemaking is necessary because, by law, the migratory bird
harvest season is closed unless opened by the Secretary of the
Interior, and the regulations governing subsistence harvest of
migratory birds in Alaska are subject to public review and annual
approval. This rule proposes regulations for the taking of migratory
birds for subsistence uses in Alaska during the spring and summer of
2010. This rule lists proposed migratory bird season openings and
closures in Alaska by region.
How Do I Find the History of These Regulations?
Background information, including past events leading to this
action, accomplishments since the Migratory Bird Treaties with Canada
and Mexico were amended, and a history addressing conservation issues
can be found in the following Federal Register documents:
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Date Federal Register Citation
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August 16, 2002........................... 67 FR 53511
July 21, 2003............................. 68 FR 43010
April 2, 2004............................. 69 FR 17318
April 8, 2005............................. 70 FR 18244
February 28, 2006......................... 71 FR 10404
April 11, 2007............................ 72 FR 18318
March 14, 2008............................ 73 FR 13788
May 19, 2009.............................. 74 FR 23336
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These final rules setting forth the annual harvest regulations, are
available at http://alaska.fws.gov/ambcc/regulations.htm.
What Is the Process for Issuing Regulations for the Subsistence Harvest
of Migratory Birds in Alaska?
The U.S. Fish and Wildlife Service (Service or we) proposes
migratory bird subsistence harvest regulations in Alaska for the 2010
season. These regulations will enable the continuation of customary and
traditional subsistence uses of migratory birds in Alaska and prescribe
regional information on when and where the harvesting of birds may
occur. These regulations were developed under a co-management process
involving the Service, the Alaska Department of Fish and Game, and
Alaska Native representatives.
We opened the process to establish regulations for the 2010 spring
and summer subsistence harvest of migratory birds in Alaska this past
spring in a proposed rule published in the Federal Register on April
10, 2009 (74 FR 16339). While that proposed rule dealt primarily with
the regulatory process for hunting migratory birds for all purposes
throughout the United States, we also discussed the background and
history of the Alaska subsistence regulations, explained the annual
process for their establishment, and requested proposals for the 2010
season. The rulemaking processes for both types of migratory bird
harvest are related, and the April 10, 2009, proposed rule explained
the connection between the two.
The Alaska Migratory Bird Co-management Council (Co-management
Council) held a meeting in April 2009 to develop recommendations for
changes effective for the 2010 harvest season. The April 10, 2009,
proposed rule set a deadline of June 15, 2009, for the Co-management
Council to submit proposals for the 2010 spring and summer migratory
bird subsistence harvest season to us and the Flyway Councils. This
timeframe allowed the Flyway Councils and the Service to consider the
proposals and present recommendations to the Service Regulations
Committee at the committee's meeting on July 29 and 30, 2009.
Who Is Eligible To Hunt Under These Regulations?
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 criteria set forth in 50 CFR
92.5(c). These communities were Gulkana, Gakona, Tazlina, Copper
Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, Port
Graham, Nanwalek, Tyonek, and Hoonah, with a combined population of
2,766. In 2005, we added three additional communities for glaucous-
winged gull egg gathering only, based on petitions requesting
inclusion. These southeastern communities were Craig, Hydaburg, and
Yakutat, with a combined population of 2,459.
In 2007, we enacted the Alaska Department of Fish and Game's
request to expand the Fairbanks North Star Borough excluded area to
include the Central Interior area. This action excluded the following
communities from participation in this harvest: Big Delta/Fort Greely,
Healy, McKinley Park/Village and Ferry, with a combined population of
2,812. These removed communities reduced the percentage of the State
population included in the subsistence harvest to 13 percent.
How Will the Service Ensure That the Subsistence Harvest Will Not Raise
Overall Migratory Bird Harvest or Threaten the Conservation of
Endangered and Threatened Species?
We have monitored subsistence harvest for the past 15 years through
the use of annual household surveys in the most heavily used
subsistence harvest areas, such as the Yukon-Kuskokwim Delta.
Continuation of this monitoring enables tracking of any major changes
or trends in levels of harvest and user participation after
legalization of the harvest. This rule proposes for the second year to
restrict hunting on the North Slope to times of day with sufficient
daylight to enable hunters to distinguish and avoid shooting closed
species. In addition, three conservation measures, which focus on
increased migratory bird hunter outreach prior to hunts, increased
regulatory enforcement and in-season harvest verification of Steller's
eider mortality, would continue to provide additional protection for
[[Page 60230]]
threatened spectacled and Steller's eiders. Finally, we have an
emergency closure provision (50 CFR 92.21),which specifies that the
harvest may be closed or temporarily suspended upon a finding that a
continuation of the regulation allowing the harvest would pose an
imminent threat to the conservation of any endangered or threatened
species or other migratory bird population.
With regard to Steller's eiders, the proposed regulation at 50 CFR
92.32, carried over from last year, clarifies that we will take action
under 50 CFR 92.21 as is necessary to prevent further take of Steller's
eiders, which could include temporary or long-term closures of the
harvest in all or a portion of the geographic area open to harvest. If
mortality of threatened eiders occurs, we will evaluate each mortality
event by criteria such as: cause, quantity, sex, age, location, and
date. We will consult the Co-management Council when an emergency
closure is being considered. Any emergency closure deemed necessary
will be designed to minimize its impact on the subsistence harvest.
What Is Different in the Region-Specific Regulations for 2010?
Yellow-billed Loons
Consistent with the request of the North Slope Borough Fish and
Game Management Committee and the recommendation of the Co-management
Council, this proposed rule continues into 2010 the provisions
originally established in 2005 to allow subsistence use of yellow-
billed loons (Gavia adamsii) inadvertently entangled in subsistence
fishing (gill) nets on the North Slope. Yellow-billed loons are
culturally important for the Inupiat Eskimo of the North Slope for use
in traditional dance regalia. A maximum of 20 yellow-billed loons may
be caught in 2010 under this provision. This provision does not
authorize intentional harvest of yellow-billed loons, but allows use of
those loons inadvertently entangled during normal subsistence fishing
activities. Individual reporting to the North Slope Borough Department
of Wildlife is required by the end of each season. However, the North
Slope Borough has asked fishermen, through announcements on the radio
and through personal contact, to report inadvertent entanglements of
loons as they occur, to better estimate the level of mortality caused
by gill nets. In 2008, one yellow-billed loon was reported to be found
dead in a fishing net; one severely injured yellow-billed loon was
observed by Borough staff; and two were released uninjured from fishing
nets by Borough staff.
Aleutian and Arctic Terns
We propose to remove the provision that opened a season May 15-June
30 for harvesting Aleutian (Onychoprion aleutica) and arctic tern
(Sterna paradisaea) eggs in the Yakutat Harvest area, from Icy Bay (Icy
Cape to Point Riou) and the coastal islands bordering the Gulf of
Alaska from Point Manby southeast to and including Dry Bay. The Yakutat
Tlingit Tribe requested this regulation be removed at the April 2009
Co-Management Council meeting, stating that they will not be able to
adequately monitor the tern subsistence take as requested by the
Service, so they would prefer to withdraw the regulation at this time.
Spectacled and Steller's Eiders
Spectacled eiders (Somateria fischeri) and the Alaska-breeding
population of Steller's eiders (Polysticta stelleri) are listed as
threatened species, and their migration and breeding distribution
overlaps with the spring and summer subsistence harvest on the Yukon-
Kuskokwim Delta and the North Slope. Both spectacled and Steller's
eiders are closed to hunting in the subsistence harvest, but harvest
surveys and Service documentation indicate substantial numbers of both
species have been taken during recent subsistence harvests on the North
Slope.
The North Slope breeding population of spectacled eiders was
estimated to be 12,916 (10,942-14,890, 95% Confidence Limits)
individual birds during 2002-06 (Service unpublished data), and they
nest relatively widely across the North Slope. It is estimated that 35
(33-40, 95% Confidence Limits) spectacled eiders were taken on the
North Slope during the 2005 subsistence season (Service unpublished
data, 2006); 99 (44-155, 95% Confidence Limits) were taken during the
2007 subsistence season; and 9 (1-25, 184% confidence limits) were
taken during the 2008 subsistence season (Alaska Department of Fish and
Game, preliminary data).
The North Slope breeding population of Steller's eider was
estimated to be 576 annually (292-859, 90% Confidence Limits)
individual birds during 1993-2008 (Service, unpublished data), and most
of their nesting appears to be concentrated near Barrow, the
northernmost point in Alaska. It is estimated that 19 (9-37, 95%
Confidence Limits) Steller's eiders were taken on the North Slope
during the 2005 subsistence season; 36 (1-85, 135% Confidence Limits)
were taken during the 2007 subsistence season; and 0 were taken during
the 2008 subsistence season (Alaska Department of Fish and Game,
preliminary data). However, during the 2008 subsistence season, the
Service documented 20 Steller's eiders shot at Barrow, with another 7
found dead but too heavily scavenged to determine cause of death.
Therefore, harvest survey estimates and direct observation of shot
birds indicated that direct shooting occurs during the subsistence
harvest, with impacts probably on the order of tens of each threatened
eider species taken per year. Take is not authorized for either species
during the subsistence harvest, and, in the case of Steller's eider,
this amount of shooting mortality is likely not sustainable for the
small Alaska-breeding population. Because of the Steller's eider small
breeding population size, their breeding concentration near Barrow, and
the relatively high proportion of the estimated population shot during
recent subsistence harvests, the Service focused on considering
regulations and conservation efforts on the North Slope to benefit the
Alaska-breeding population of Steller's eiders.
Several spectacled and Steller's eider management needs are
addressed by this proposed rule. It restricts hunting on the North
Slope, from Barrow through Point Hope, to time of day with sufficient
daylight to ensure hunters can distinguish and avoid shooting species
closed for harvest; it clarifies for subsistence users that Service law
enforcement personnel have authority to verify species of birds
possessed by hunters; it clarifies that it is illegal to possess any
bird closed to harvest; and it describes how the Service's existing
authority of emergency closure would be implemented, if necessary, to
protect Steller's eiders. The regulations, implemented in accordance
with conservation measures (described below), are considered the
principal way in which shooting mortality of threatened eider will be
substantially reduced or eliminated. The emergency closure authority
provides an additional level of assurance that, if an unexpected amount
of Steller's eider shooting mortality occurs, it will be curtailed to
avoid approaching jeopardy to the existence of the species.
The Service developed three conservation measures that are an
integral part of the proposed harvest and were approved for
implementation by the Alaska Regional Director on April 6, 2009. The
conservation measures substantially increased protection for spectacled
and, particularly, Steller's eiders on the North Slope in 2009, and
described how the Service would detect,
[[Page 60231]]
remedy, and quickly curtail any shooting mortality or injury of
Steller's eiders that might occur during the harvest. In January 2009,
the Service commenced planning for implementation of each measure in
anticipation of the subsistence harvest. The three conservation
measures were:
1. Increase Migratory Bird Hunter Outreach Prior to the Hunts
The Service with North Slope partners would provide migratory bird
hunter outreach in Wainwright, Point Hope, Point Lay, and Barrow prior
to each subsistence harvest. The outreach educational objectives
included: hunter understanding of the hunting regulations; ability to
distinguish among the open and closed species of eiders in flight; the
need to reduce crippling loss; and an understanding of the Service's
role and obligation for enforcement and monitoring. This was done prior
to and during the 2009 subsistence season.
2. Increased Service Enforcement of Migratory Bird Regulations
During the 2009 subsistence season, the Service sustained a law
enforcement presence on the North Slope during the migratory bird
hunts. The Service believes this action was necessary to increase
community understanding and acceptance of the shooting mortality
problem, deter violations, and obtain compliance with the regulations.
The Service conducted real-time monitoring of the harvest to meet the
primary objective of detecting Steller's eider mortality during the
hunts so that appropriate and timely corrective action could be taken.
Regulatory enforcement objectives will continue to be achieved through
a two-part strategy: (i) pre-season community and hunter education and
outreach, and (ii) in-season implementation of the law enforcement
portion of this plan and enforcement of all Service regulations.
3. In-season Harvest Verification of Steller's Eider Mortality and
Injury
Three types of monitoring efforts were used during the 2009
subsistence harvest and fall hunts on the North Slope: (i) Steller's
eider breeding surveys to inform the coordination of the conservation
measures, (ii) harvest verification by Service law enforcement to meet
the objective of detecting Steller's eider mortality during the hunts
so appropriate and timely corrective action can be taken to prevent
further mortality; and (iii) monitoring for injured and dead birds to
begin to quantify crippling rate and loss. We will continue to use all
in-season monitoring information to independently evaluate harvest
survey reports, the efficiency of the regulations, conservation
measures, and outreach efforts.
To summarize, the Service has dual goals and responsibilities of
authorizing a subsistence harvest while protecting migratory birds and
threatened species. Although these goals were and continue to be
challenging, they are not irreconcilable with sufficient recognition of
the need to protect threatened species, measures to remedy documented
threats, and commitment from the subsistence community and other
conservation partners to work together toward these dual goals. With
these dual goals in mind, the Service is proposing to continue the
provision that restricts hunting on the North Slope to times of day
with sufficient daylight to enable hunters to avoid shooting closed
species. Moreover, the Service, working with partners, developed
additional measures to eliminate the potential for shooting mortality
or injury of the Alaska-breeding population of Steller's eider on the
North Slope. These measures include: (1) increased waterfowl hunter
outreach and community awareness; (2) increased enforcement of the
migratory bird regulations that are protective of listed eiders; and
(3) in-season Service verification of the harvest to detect any
Steller's eider mortality.
For the 2009 season, the Service and the community planned to
immediately address and remedy any detected Steller's eider mortality;
and, as a matter of Service policy, any detected Steller's eider
shooting mortality was curtailed to an amount estimated to be
sustainable by the population. The summer of 2009 was not a breeding
year for Steller's eiders in the Barrow area. Even so, the Service
conducted an extensive outreach program including eight public meetings
in all of the affected eider communities, three radio shows, and five
newspaper articles. The Service increased its law enforcement presence
in Barrow as well as harvest monitoring. No Steller's eiders were found
shot during monitoring of the subsistence harvest.
In 2009, the Service also continued working into July refining and
implementing the Memorandum of Understanding (MOU) established between
the Service and North Slope government and Native organizations. The
reason to initiate an MOU was to increase involvement by Alaska Native
organizations in the conservation of Steller's eiders on the North
Slope of Alaska. The purposes outlined were to: (1) conserve and manage
Steller's eiders; (2) preserve the customary and traditional
subsistence hunt, and (3) reduce or eliminate the take of Steller's
eiders.
A review of the conservation strategy implemented by the Service in
2009 based on the conservation measures developed, showed that overall
the Service made advancements in several areas. These conservation
measures and the subsequent MOU engaged our partners on the North
Slope, encouraging local ownership of the conservation goal, and
ultimately heightening awareness of what actions were necessary to move
in a positive direction to protect Steller's eiders. Based on these
successes, the Service proposes to continue these conservation measures
into the 2010 season with some modification as to the amount of effort
and emphasis each will receive. The Service also proposes to continue
the regulatory changes implemented in 2009 for the North Slope through
the 2010 subsistence season, including the emergency closure
provisions.
Statutory Authority
We derive our authority to issue these regulations from the
Migratory Bird Treaty Act of 1918, 16 U.S.C. 712(1), which authorizes
the Secretary of the Interior, in accordance with the treaties with
Canada, Mexico, Japan, and Russia, 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.''
Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other
Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
[[Page 60232]]
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact 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. This rule:
(a) Will 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) 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
consumers.
(c) 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 compete.
Unfunded Mandates Reform Act
We have determined and certified under 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. The rule does not have a significant
or unique effect on State, local, or tribal governments or the private
sector. A statement containing the information required by the Unfunded
Mandates Reform Act is not required. 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 nonprofits and local governments) to
administer the regional programs. The Alaska Department of Fish and
Game will also incur expenses for travel to Co-management Council and
regional management body 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.
Takings (Executive Order 12630)
Under the criteria in Executive Order 12630, this rule does not
have significant takings implications. This rule is not specific to
particular land ownership, but applies to the harvesting of migratory
bird resources throughout Alaska. A takings implication assessment is
not required.
Federalism (Executive Order 13132)
Under the criteria in Executive Order 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment. We discuss effects of this proposed rule on the
State of Alaska in the Unfunded Mandates Reform Act section above. We
worked with the State of Alaska to develop these regulations.
Therefore, a Federalism Assessment is not required.
Civil Justice Reform (Executive Order 12988)
The Department, in promulgating this rule, has determined that it
will not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
Government-to-Government Relations With Native American Tribal
Governments
Because eligibility to hunt under these regulations is not limited
to tribal members, but rather extends to all indigenous inhabitants of
the subsistence harvest areas, we are not required to engage in formal
consultation with tribes. However, in keeping with the spirit of 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
conducted meetings with the affected tribes and tribal nonprofit
organizations to discuss the proposed changes in the regulations 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 indigenous
inhabitants including tribal members. In 1998, we began a public
involvement process to determine how to structure management bodies in
order to provide the most effective and efficient involvement of
subsistence users. We began by publishing in the Federal Register
stating that we intended to establish management bodies to implement
the spring and summer subsistence harvest (63 FR 49707, September 17,
1998). We held meetings with the Alaska Department of Fish and Game and
the Native Migratory Bird Working Group to provide information
regarding the amended treaties and to listen to the needs of
subsistence users. The Native Migratory Bird Working Group was a
consortium of Alaska Natives formed by the Rural Alaska Community
Action Program to represent Alaska Native subsistence hunters of
migratory birds during the treaty negotiations. We held forums in Nome,
Kotzebue, Fort Yukon, Allakaket, Naknek, Bethel, Dillingham, Barrow,
and Copper Center. We led additional briefings and discussions at the
annual meeting of the Association of Village Council Presidents in
Hooper Bay and
[[Page 60233]]
for the Central Council of Tlingit & Haida Indian Tribes in Juneau.
On March 28, 2000, 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 way
in which management bodies would be established and organized. Based on
the wide range of views expressed on the options document, the decision
incorporated key aspects of two of the modules. The decision
established one statewide management body consisting of 1 Federal
member, 1 State member, and 7-12 Alaska Native members, with each
component serving as equals.
Paperwork Reduction Act
This rule has been examined under the Paperwork Reduction Act of
1995 and does not contain new collections of information that require
Office of Management and Budget approval. OMB has approved our
collection of information associated with the voluntary annual
household surveys used to determine levels of subsistence take. The OMB
control number is 1018-0124, which expires on January 31, 2010. 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.
Endangered Species Act Consideration
Prior to issuance of annual spring and summer subsistence
regulations, we will consult under section 7 of the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to
ensure that the 2010 subsistence harvest 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 the
regulations are consistent with conservation programs for those
species. Consultation under section 7 of the Act 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 from the person listed under FOR FURTHER
INFORMATION CONTACT.
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 2010 Spring/Summer Harvest,''
issued October 9, 2009. Copies are available from the person listed
under FOR FURTHER INFORMATION CONTACT or at www.Regulations.gov.
Energy Supply, Distribution, or Use (Executive Order 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This is not a
significant regulatory action under this Executive Order; it would
allow only for traditional subsistence harvest and would improve
conservation of migratory birds by allowing effective regulation of
this harvest. Further, this rule is not expected to significantly
affect energy supplies, distribution, or 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
follows:
PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA
1. The authority citation for part 92 continues to read as follows:
Authority: 16 U.S.C. 703-712.
Subpart D--Annual Regulations Governing Subsistence Harvest
2. In subpart D, add Sec. 92.31 to read as follows:
Sec. 92.31 Region-specific regulations.
The 2010 season dates for the eligible subsistence harvest areas
are as follows:
(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.
(iii) Special Black Brant Season Closure: August 16-August 31,
only in Izembek and Moffet lagoons.
(iv) Special Tundra Swan Closure: All hunting and egg gathering
closed in units 9(D) and 10.
(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 Service's
Alaska Regional Director or his designee, after consultation with local
subsistence users, field biologists, and the Association of Village
Council President'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.
(3) Special Black Brant and Cackling Goose Season Hunting Closure:
From the period when egg laying begins until young birds are fledged.
Closure dates to be announced by the Service's Alaska Regional Director
or his designee, after consultation with field biologists and the
Association of Village Council President's Waterfowl Conservation
Committee. 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 for the Kodiak Island roaded
area, which is closed 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.
[[Page 60234]]
(1) Season: April 2-June 30 and July 31-August 31 for seabirds;
April 2-June 20 and July 22-August 31 for all other birds.
(2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all
other birds.
(f) Northwest Arctic Region.
(1) Season: April 2-June 9 and August 15-August 31 (hunting in
general); waterfowl egg gathering May 20-June 9 only; seabird egg
gathering May 20-July 12 only; hunting molting/non-nesting waterfowl
July 1-July 31 only.
(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'W and
south of the latitude line 70[deg]45'N to the west bank of the Ikpikpuk
River, and everything south of the latitude line 69[deg]45'N 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.
(iii) Special Black Brant Hunting Opening: From June 20-July 5.
The open area would consist of the coastline, from mean high water line
outward to include open water, from Nokotlek Point east to longitude
line 158[deg]30'W. This includes Peard Bay, Kugrua Bay, and Wainwright
Inlet, but not the Kuk and Kugrua river drainages.
(2) Northern Unit (At Peard Bay, everything east of the longitude
line 158[deg]30'W and north of the latitude line 70[deg]45'N to west
bank of the Ikpikpuk River, and everything north of the latitude line
69[deg]45'N 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; April 2-June 15 and July 16-August 31 for all other
birds.
(ii) Closure: June 7-July 6 for king and common eiders; 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 total for the region may be inadvertently entangled in
subsistence fishing nets in the North Slope Region and kept for
subsistence use. Individuals must report each yellow-billed loon
inadvertently entangled while subsistence gill net fishing to the North
Slope Borough Department of Wildlife Management by the end of the
season.
(5) North Coastal Zone (Cape Thompson north to Point Hope and east
along the Arctic Ocean coastline around Point Barrow to Ross Point,
including Iko Bay, and 5 miles inland).
(i) Migratory bird hunting is permitted from one-half hour before
sunrise until sunset, during August.
(ii) No person may at any time, by any means, or in any manner,
possess or have in custody any migratory bird or part thereof, taken in
violation of subpart C and D of this part.
(iii) Upon request from a Service law enforcement officer, hunters
taking, attempting to take, or transporting migratory birds taken
during the subsistence harvest season must present them to the officer
for species identification.
(h) Interior Region.
(1) Season: April 2-June 14 and July 16-August 31; egg gathering
May 1-June 14 only.
(2) Closure: June 15-July 15.
(i) Upper Copper River Region (Harvest Area: 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 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) 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).
That portion of(1) Season: April 2-May 31 Unit 16(B) south of the
Skwentna River and west of the Yentna RiverThat, and August 1-31
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: 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. The land and waters of Glacier Bay National
Park remain closed to all subsistence harvesting (50 CFR Part
100.3(a)).
(i) Season: glaucous-winged gull egg gathering only: May 15-June
30.
(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
islands).
(i) Season: glaucous-winged gull egg gathering only: May 15-June
30.
(ii) Closure: July 1-August 31.
(3) Community of Yakutat (Harvest area: Icy Bay (Icy Cape to Point
Riou), and coastal lands and islands bordering the Gulf of Alaska from
Point Manby southeast to Dry Bay).
(i) Season: glaucous-winged gull egg gathering: May 15-June 30.
(ii) Closure: July 1-August 31.
3. In subpart D, add Sec. 92.32 to read as follows:
Sec. 92.32 Emergency regulations to protect Steller's eiders.
Upon finding that continuation of these subsistence regulations
would pose an imminent threat to the conservation of threatened
Steller's eiders (Polysticta stelleri), the U.S. Fish and Wildlife
Service Alaska Regional Director, in consultation with the Co-
management Council, will immediately under Sec. 92.21 take action as
is necessary to prevent further take. Regulation changes implemented
could range from a temporary closure of duck hunting in a small
geographic area to large-scale regional or State-wide long-term
closures of all subsistence migratory bird hunting. Such closures or
temporary suspensions will remain in effect until the Regional
Director, in consultation with the Co-management Council, determines
that the potential for additional Steller's eiders to be taken no
longer exists.
Dated: November 3, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-27870 Filed 11-19-09; 8:45 am]
BILLING CODE 4310-55-S