[Federal Register Volume 85, Number 64 (Thursday, April 2, 2020)]
[Rules and Regulations]
[Pages 18455-18459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07034]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 92
[Docket No. FWS-R7-MB-2020-0008; FXMB12610700000-201-FF07M01000]
RIN 1018-BE24
Migratory Bird Subsistence Harvest in Alaska; Region-Specific
Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Interim rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is
establishing regulations for the subsistence harvest of migratory birds
in Alaska for the 2020 season and beyond. These regulations allow for
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
and are subject to public review. Based on any comments received, we
may revise this interim rule. The Alaska subsistence harvest season
begins on April 2, 2020.
DATES: This rule is effective April 2, 2020. We will accept comments
received or postmarked on or before April 13, 2020.
ADDRESSES: You may submit comments on this interim rule 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-2020-0008.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-MB-2020-0008; U.S. Fish and Wildlife Service; 5275
Leesburg Pike, MS: JAO/1N; Falls Church, VA 22041-3803.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
FOR FURTHER INFORMATION CONTACT: Cheryl A. Graves, U.S. Fish and
Wildlife Service, 1011 E. Tudor Road, Mail Stop 201, Anchorage, AK
99503; (907) 786-3887.
SUPPLEMENTARY INFORMATION:
Public Comments
We solicit comments or suggestions from the public. To ensure that
any action resulting from this interim 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 basis for them.
You must submit your comments and materials concerning this interim
rule by one of the methods listed above in ADDRESSES. We will not
accept comments sent by email 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 email address--will be posted on the
website. 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. All comments and
materials we receive will be available for public inspection in two
ways:
(1) Via http://www.regulations.gov. Search for FWS-R7-MB-2020-0008,
which is the docket number for this rulemaking.
(2) In-person viewing by appointment, during normal business hours,
at the Division of Migratory Bird Management, MS: MB, 5275 Leesburg
Pike, Falls Church, VA 22041-3803; (703) 358-1714.
Background
The Migratory Bird Treaty Act of 1918 (MBTA, 16 U.S.C. 703 et seq.)
was enacted to conserve certain species of migratory birds and gives
the Secretary of the Interior the authority to regulate the harvest of
these birds. The law further authorizes the Secretary to issue
regulations to ensure that the
[[Page 18456]]
indigenous inhabitants of the State of Alaska may take migratory birds
and collect their eggs for nutritional and other essential needs during
seasons established by the Secretary ``so as to provide for the
preservation and maintenance of stocks of migratory birds'' (16 U.S.C.
712(1)).
The take of migratory birds for subsistence uses in Alaska occurs
during the spring and summer, during which timeframe the sport harvest
of migratory birds is not allowed. Regulations governing the
subsistence harvest of migratory birds in Alaska are located in title
50 of the Code of Federal Regulations (CFR) in part 92. These
regulations allow for the continuation of customary and traditional
subsistence uses of migratory birds and prescribe regional information
on when and where the harvesting of birds in Alaska may occur.
The migratory bird subsistence harvest regulations are developed
cooperatively. The Alaska Migratory Bird Co-Management Council consists
of the U.S. Fish and Wildlife Service, the Alaska Department of Fish
and Game, and representatives of Alaska's Native population. The
Council's primary purpose is to develop recommendations pertaining to
the subsistence harvest of migratory birds.
Need for Interim Rule
This rulemaking is necessary because the general regulations in 50
CFR part 92 state that the specific regulations pertaining to migratory
bird season openings and closures by the Alaska region are subject to
public review and approval. The regulations in 50 CFR part 92, subpart
D, were last amended April 3, 2019 (84 FR 12946).
The provisions of this interim rule are the current regulations at
Sec. 92.31, with a minor administrative change discussed below.
Because the public had the opportunity to comment on these regulations
in three prior rulemaking actions, the public also had an opportunity
to comment on the substance of the current rule. The public comments
received on these rulemaking actions were addressed in the final rules:
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Proposed Rule Final Rule
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February 10, 2017 (82 FR 10316)........ April 4, 2017 (82 FR 16298).
February 1, 2018 (83 FR 4623).......... March 30, 2018 (83 FR 13684).
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Interim Rule Affirmation of Interim Rule
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April 3, 2019 (84 FR 12946)............ July 30, 2019 (84 FR 36840).
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The provisions proposed for Sec. 92.31 in all of these prior
rulemaking actions were the same, with two exceptions: (1) Each year we
changed the year referenced in the introductory paragraph to reflect
the current year, and (2) in the 2019 rule, we removed an obsolete
reference to a hunting season closure for cackling Canada goose at
Sec. 92.31(b)(3). (We should have removed this reference in the 2017
rule, but the error was inadvertently retained in the 2017 and 2018
rules.) In this document, the only change we are making to the current
regulations in Sec. 92.31 is to remove the reference to ``2019'' in
the introductory paragraph.
The retirements of two key Service employees and the inability to
fill these positions in a timely manner resulted in unforeseen time
constraints on the rulemaking process, thereby preventing publication
of a proposed rule for this rulemaking. To respect the subsistence hunt
of many rural Alaskans, either for their cultural or religious
exercise, sustenance, and/or materials for cultural use (e.g.,
handicrafts), the Department of the Interior finds that it is in the
public interest to publish this interim rule. Without this rule, the
subsistence hunting of migratory birds in Alaska during the normal
season, which begins on April 2 each year, would be in violation of the
MBTA.
The Administrative Procedure Act at 5 U.S.C. 553(b) allows an
agency to make a rule effective without a proposed rule for good cause
if notice and public procedure are ``contrary to the public interest.''
We find that the delay associated with public comment on a proposed
rule to open the Alaska migratory bird subsistence harvest by April 2
is contrary to the public interest, and therefore the ``good cause''
exception under 5 U.S.C. 553(b) applies.
In addition, we have good cause to waive the standard 30-day
effective date for this interim rule consistent with 5 U.S.C.
553(d)(3), and this rule will, therefore, take effect on the date
specified above in DATES. This rule relieves restrictions on Alaskans
seeking to conduct subsistence harvest during the season that begins
April 2, 2020. Delaying the effective date for 30 days would have
detrimental effects on them and on the businesses that support this
activity.
While we are taking these steps to ensure Alaskan subsistence
hunters do not violate the MBTA, we invite public comment as described
above in DATES and ADDRESSES. After we consider any comments received,
we may revise this interim rule.
Future Rulemaking
By removing any reference to a specific year, this rulemaking
action will establish general provisions in Sec. 92.31. Consequently,
this action establishes ``baseline'' provisions for the region-specific
regulations governing the subsistence harvest of migratory birds in
Alaska. Our intent is that the regulations at Sec. 92.31 will no
longer need to be promulgated annually. Instead, in the future we will
issue a proposed rule pertaining to Sec. 92.31 only when we have
determined that changes to specific provisions are appropriate and
necessary. This change in process, consistent with the MBTA and the
1996 Protocol with Canada amending the 1916 Convention, will allow the
Service to conserve resources in years when we expect no changes to
Sec. 92.31.
The Co-management Council recommended changes to the subsistence
harvest regulations in 2018 and 2019. Therefore, following the
conclusion of this rulemaking action, we will publish a proposed rule
to seek public comment on revisions to Sec. 92.31 recommended by the
Co-management Council. However, in future years, if the Co-management
Council does not recommend any changes to the region-specific
regulations, then we will not engage in rulemaking pertaining to the
Alaska subsistence harvest regulations.
Compliance With the MBTA and the Endangered Species Act
The Service has dual objectives and responsibilities for
authorizing a subsistence harvest while protecting migratory birds and
endangered and threatened species. Although these objectives continue
to be challenging, they are not irreconcilable, provided that: (1)
Regulations continue to protect endangered and threatened species; (2)
measures to address documented threats are implemented; and (3) the
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subsistence community and other conservation partners commit to working
together.
Mortality, sickness, and poisoning from lead exposure have been
documented in many waterfowl species, including threatened spectacled
and Steller's eiders. While lead shot has been banned nationally for
waterfowl hunting since 1991, Service staff have documented significant
availability of lead shot in waterfowl rounds for sale in communities
on the Yukon-Kuskokwim Delta and North Slope. The Service will work
with partners to increase our education, outreach, and enforcement
efforts to ensure that subsistence waterfowl hunting is conducted using
nontoxic shot.
Conservation Under the MBTA
We have monitored subsistence harvest for more than 25 years
through the use of household surveys in the most heavily used
subsistence harvest areas, such as the Yukon-Kuskokwim Delta. Based on
our monitoring of the migratory bird species and populations taken for
subsistence, we find that this rule will provide for the preservation
and maintenance of migratory bird stocks as required by the MBTA.
Communication and coordination between the Service, the Co-management
Council, and the Pacific Flyway Council have allowed us to set harvest
regulations to ensure the long-term viability of the migratory bird
stocks. In addition, Alaska migratory bird subsistence harvest rates
have continued to decline since the inception of the subsistence-
harvest program, reducing concerns about the program's consistency with
the preservation and maintenance of stocks of migratory birds.
Endangered Species Act Consideration
Spectacled eiders (Somateria fischeri) and the Alaska-breeding
population of Steller's eiders (Polysticta stelleri) are listed as
threatened species under the Endangered Species Act of 1973, as amended
(ESA; 16 U.S.C. 1531 et seq.). Their migration and breeding
distribution overlap with areas where the spring and summer subsistence
migratory bird hunt is open in Alaska. Neither species is included in
the list of subsistence migratory bird species at 50 CFR 92.22;
therefore, both species are closed to subsistence harvest. The Service
notes that progress is being made with other eider conservation
measures, including partnering with the North Slope Migratory Bird Task
Force, for increased waterfowl-hunter awareness, continued enforcement
of the regulations, and in-season verification of the harvest.
Moreover, under 50 CFR 92.21 and 92.32, the Service may implement
emergency closures, if necessary, to protect Steller's eiders or any
other endangered or threatened species or migratory bird population.
Section 7 of the ESA requires the Secretary of the Interior to
review other programs administered by the Department of the Interior
and utilize such programs in furtherance of the purposes of the ESA.
The Secretary is further required to insure that any action authorized,
funded, or carried out by the Department of the Interior 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.
The Alaska Division of Migratory Bird Management conducted an
intra-agency consultation with the Service's Fairbanks Fish and
Wildlife Field Office on this interim rule. The consultation was
completed with a biological opinion that concluded the interim rule and
conservation measures are not likely to jeopardize the continued
existence of endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat.
Therefore, we have determined that this rule complies with the ESA.
Required Determinations
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
This rule is not subject to the requirements of Executive Order
13771 (82 FR 9339, February 3, 2017) because this rule establishes
harvest limits related to routine hunting or fishing.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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.). A regulatory flexibility analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required. This rule
legalizes a pre-existing subsistence activity, and the resources
harvested will be consumed.
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 legalizes and regulates a traditional subsistence activity.
It will not result in a substantial increase in subsistence harvest or
a significant change in harvesting patterns. The commodities that will
be 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 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, will not have an impact on prices for
consumers.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. This
rule deals with the harvesting of wildlife for personal consumption. It
will not regulate the marketplace in any way to generate substantial
effects on
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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 will 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 requires travel expenses for some Alaska Native organizations
and local governments. In addition, they 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 a
notice of decision (65 FR 16405; March 28, 2000), we identified 7 to 12
partner organizations (Alaska Native nonprofits and local governments)
to administer the regional programs. The Alaska Department of Fish and
Game also incurs expenses for travel to Co-management Council and
regional management body meetings. In addition, the State of Alaska
would 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 will 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 summary impact statement. We discuss effects of this 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 summary impact statement 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
We implemented the amended treaty with Canada with a focus on local
involvement. The treaty calls for the creation of management bodies to
ensure an effective and meaningful role for Alaska's indigenous
inhabitants in the conservation of migratory birds. According to the
Letter of Submittal, management bodies are to include Alaska Native,
Federal, and State of Alaska representatives as equals. They develop
recommendations for, among other things: seasons and bag limits,
methods and means of take, law enforcement policies, population and
harvest monitoring, education programs, research and use of traditional
knowledge, and habitat protection. The management bodies involve
village councils to the maximum extent possible in all aspects of
management. To ensure maximum input at the village level, we required
each of the 12 participating regions to create regional management
bodies consisting of at least one representative from the participating
villages. The regional management bodies meet twice annually to review
and/or submit proposals to the Statewide body.
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we are
evaluating possible effects on Federally recognized Indian tribes. The
provisions in this interim rule are the same as those set forth in the
last 3 years' rulemaking actions, during which we consulted with the
tribes. This rulemaking process is collaborative with the Tribes, and
we will continue to consult with the Tribes as we revise or affirm the
interim rule.
Paperwork Reduction Act of 1995 (PRA)
This rule does not contain any new collections of information that
require Office of Management and Budget (OMB) approval under the PRA
(44 U.S.C. 3501 et seq.). OMB has previously approved the information
collection requirements associated with voluntary annual household
surveys used to determine levels of subsistence take and assigned OMB
Control Number 1018--0124, (expires August 31, 2022). You may view the
information collection requirements at http://www.reginfo.gov/public/do/PRAMain. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act Consideration (42 U.S.C. 4321 et
seq.)
The regulations and options are considered in a February 2020
environmental assessment, ``Managing Migratory Bird Subsistence Hunting
in Alaska: Hunting Regulations for the 2020 Spring/Summer Harvest.''
Copies are available from the person listed under FOR FURTHER
INFORMATION CONTACT or at http://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 allows
only for traditional subsistence harvest and improves 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, a Statement of Energy
Effects is not required.
List of Subjects in 50 CFR Part 92
Hunting, Treaties, Wildlife.
Regulation Promulgation
For the reasons set out in the preamble, we amend title 50, chapter
I, subchapter G, of the Code of Federal Regulations as follows:
PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA
0
1. The authority citation for part 92 continues to read as follows:
Authority: 16 U.S.C. 703-712.
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Sec. 92.31 [Amended]
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2. Amend Sec. 92.31 introductory text by removing ``2019''.
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-07034 Filed 4-1-20; 8:45 am]
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