[Federal Register: August 31, 1999 (Volume 64, Number 168)] [Notices] [Page 47512-47514] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr31au99-104] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Notice of Updated Policy Regarding Harvest of Migratory Birds in Alaska Between March 10 and September 1 AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The Fish and Wildlife Service (Service) is updating the 1988 policy regarding subsistence harvest of migratory birds in Alaska. The policy is a statement regarding enforcement priorities the Service follows in Alaska to conserve waterfowl between March 10 and September 1. The original policy concentrated enforcement efforts on violations that have the most serious impacts on the resource, with particular emphasis on the protection of four diminished populations of geese: cackling Canada geese, emperor geese, Pacific white-fronted geese, and black brant. Due to the status of some eider populations, this updated policy also includes spectacled and Steller's eiders in this first priority protection. In addition, the policy prohibits wasting any migratory bird, using private and charter aircraft to assist in hunting, and possessing lead shot while hunting waterfowl. In 1997, the United States Senate gave its advice and consent to ratification of two protocols amending, respectively, the 1916 Convention for the Protection of Migratory Birds in Canada and the United States (the ``Canada Treaty'') and the 1936 U.S.-Mexico Convention for the Protection of Migratory Birds and Game Mammals (the ``Mexico Treaty'') (together the ``Protocols''). These Protocols provide for legal, regulated spring subsistence hunting in Alaska. In particular, the Protocol with Canada provides in Article II that: In the case of the United States * * * [m]igratory birds and their eggs may be harvested by the indigenous inhabitants of the State of Alaska. Seasons and other regulations implementing the non- wasteful taking of migratory birds and the collection of their eggs by indigenous inhabitants of the State of Alaska shall be consistent with the customary and traditional uses by such indigenous inhabitants for their own nutritional and other essential needs. Similarly, Article I of the Protocol with Mexico provides that: [[Page 47513]] The establishment of a closed season for wild ducks from the tenth of March to the first of September, except in the State of Alaska, United States of America, where wild ducks and their eggs may be harvested by the indigenous inhabitants thereof provided that seasons and other regulations implementing the non-wasteful taking of wild ducks and their eggs in such cases shall be consistent with the customary and traditional uses by such indigenous inhabitants for their own nutritional and other essential needs. The Canada Protocol, which along with the Mexico Protocol will enter into force once the Parties exchange instruments of ratification, contemplates the establishment of management bodies in Alaska that will develop recommendations to the Service for specific hunting regulations. The Service is currently involved in an extensive public involvement process in Alaska to develop the required management bodies and the subsequent regulations allowing spring and summer harvest of migratory birds. The Service expects to have the management bodies in place in the year 2000 and specific hunting regulations in 2001. Until that time, consistent with the two Protocols and pursuant to existing statutory authority under 16 U.S.C. 712, this enforcement policy will guide our conservation measures. DATES: The Service's policy regarding harvest of migratory birds in Alaska during the closed season became effective on April 22, 1988. The policy, as updated, will remain in effect until regulations are promulgated to implement the 1997 Protocols to the migratory bird treaties with Canada and Mexico. ADDRESSES: Address correspondence to: Regional Director, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska 99503. FOR FURTHER INFORMATION CONTACT: Mimi Hogan, Migratory Bird Subsistence Coordinator, (907) 786-3673; or John Gavitt, Assistant Regional Director, Division of Law Enforcement, (907) 786-3311. SUPPLEMENTARY INFORMATION: In the Federal Register dated December 31, 1987, the Service gave notice of, and invited public comments on, a proposed policy statement regarding subsistence taking of migratory birds in Alaska during the closed season as required by the 1918 Treaty Act (16 U.S.C. 703 et seq.) and implemented by regulations. The notice also terminated a proposed rulemaking announced to the public on May 19, 1986, (51 FR 18349) to permit and regulate subsistence hunting for migratory birds in Alaska. The rulemaking was halted by an October 9, 1987, ruling from the U.S. Court of Appeals for the Ninth Circuit that any regulations for subsistence hunting of migratory birds promulgated pursuant to the 1978 Fish and Wildlife Improvement Act must be in accordance with the Canada Treaty implemented by the Treaty Act. The Canada Treaty specifically prohibits hunting for most migratory birds between March 10 and September 1. Finally, the notice indicated Service support for continuation of a Yukon-Kuskokwim Delta Goose Management Plan, a cooperative management agreement for the conservation of geese that nest primarily in western Alaska. Following the court decision, the Service worked toward legalizing subsistence harvest in Alaska during the closed season by proposing amendments to the Canada Treaty and the Mexico Treaty. The U.S. Senate gave its advice and consent to ratification of the Protocols on October 23, 1997, paving the way for ratification and a regulatory process to ensure proper implementation of these amendments. Issuance by the Service of a law enforcement policy is not subject to the notice and comment procedures of the Administrative Procedures Act. However, the legal status of subsistence hunting in Alaska was for years the subject of litigation that was confusing to the public. In light of this, and because of great interest in the issue and need for understanding of the policy, the Service believed that it would be beneficial in this instance to provide for public review of the proposed policy. Public comments were reviewed in the Final Policy Statement (53 FR 16878). Need for Policy and Relation to Yukon-Kuskokwim Delta Goose Management Plan The Treaty Act prohibits the taking of migratory birds except as permitted by regulations published by the Service. The Treaty Act further requires that the regulations must be consistent with the provisions of the 1916 Canada Treaty. Accordingly, the Service publishes regulations annually that establish open seasons and bag limits for migratory game birds within the September 1 to March 10 period provided by that treaty. Except in Alaska, the Service has always strictly enforced the prohibitions against taking migratory birds during closed seasons; that is, during those times of year outside the hunting seasons established in the annual hunting regulations. The Service has recognized for many years that residents of certain rural areas in Alaska depend on waterfowl and some other migratory birds as customary and traditional sources of food, primarily during spring and early summer. Because of this long established dependence, the Service generally has exercised its discretion to not strictly enforce the closed season in these areas provided that subsistence harvest of a particular species will not adversely affect its populations and that birds are not wasted. The Service recognizes the need for conservation measures to protect those species where population levels are of concern or are most susceptible to declines. Since 1984, efforts to halt declines of the four populations of geese on the Yukon-Kuskokwim Delta have been undertaken pursuant to a Yukon-Kuskokwim Delta Goose Management Plan which has been renewed annually until 1995, and biannually since then. The biannual renewal of the plan is an essential element in the conservation of the geese on their nesting grounds. It retains an established mechanism for communication with the subsistence hunters most affected by the policy and encourages the cooperation needed to achieve population objectives incorporated into previous plans. This cooperative management includes provisions to reduce sport harvest of these species and to reduce or minimize subsistence harvest that is not in accordance with the Plan. The Service views the plan as an effective mechanism in providing for cooperative management of geese on the Yukon-Kuskokwim Delta, and has therefore applied similar provisions to the policy that applies throughout the remainder of the state. The Closed Season Enforcement Policy in Alaska, in accordance with the Yukon-Kuskokwim Delta Management Plan, has changed somewhat from the original policy as populations of cackling Canada geese and Pacific white-fronted geese have increased. The updated policy reflects these population changes. In addition, there have been changes concerning other species. The spectacled eider was listed in 1993 as a threatened species under the Endangered Species Act of 1973, as amended, primarily on the basis of estimates that the number of nesting pairs on the Yukon- Kuskokwim Delta declined over 96% between the 1970s and the 1990s. The Alaska population of Steller's eider was listed as a threatened species in 1997 because of a decline in the number of birds breeding in Alaska. Spectacled and Steller's eiders were added to the list of species to receive special enforcement concern under the Service's closed season policy. In 1997, a Spectacled and Steller's Eider Management Plan, containing similar enforcement provisions, was added as [[Page 47514]] an attachment to the Yukon-Kuskokwim Delta Goose Management Plan. The Service recognizes that among subsistence users there is a wide range in the level of understanding of the impacts of spring and summer harvest of waterfowl and the need to reduce mortality, especially when populations become depressed. The Service will continue educational efforts to expand the understanding of this relationship and will consider the varying levels of understanding when carrying out enforcement efforts on a statewide basis. The Protocols allow regulations to be written opening the season on subsistence harvest of migratory birds between March 10 and September 1. The process to develop regulations is currently in progress and is expected to result in the establishment of management bodies in 2000 and specific hunting regulations in 2001. In the meantime, this Enforcement Policy will guide conservation. Closed Season Enforcement Policy in Alaska The enforcement policy described below applies only during the closed season, between March 10 and September 1. The policy applies only to residents of rural areas in Alaska where people have long relied on locally harvested waterfowl for food during spring and summer. On the Yukon-Kuskokwim Delta, we will engage in enforcement actions in accordance with the Yukon-Kuskokwim Delta Goose Management Plan. In areas other than those described above, we will enforce the closed season and all other regulations for hunting migratory birds from September 1 to March 10 as throughout the rest of the nation. Service enforcement efforts in Alaska during the closed season will concentrate on violations that have the most serious impacts on the resource. We will give special attention to the protection of spectacled and Steller's eiders, cackling Canada geese, emperor geese, Pacific white-fronted geese, and black brant. These species have suffered severe population declines in recent years and need special protection. Although all waterfowl hunters in Alaska have been required to use non-toxic shot since 1991, this has not been an enforcement priority in the past with regard to subsistence hunting. However, recent studies have confirmed lead shot poisoning in spectacled eiders and other species of waterfowl harvested by subsistence hunters in Alaska. Therefore anyone possessing lead shot while waterfowl hunting will be subject to enforcement action, regardless of time or place. Under the Closed Season Policy we will give enforcement priority to the following violations: <bullet> No taking of spectacled or Steller's eiders at any time; <bullet> No taking of emperor geese at any time; <bullet> No taking of cackling Canada geese or black brant during the nesting, brood-rearing, and flightless period; <bullet> No taking of Pacific white-fronted geese, in the coastal areas of western Alaska south of Norton Sound, during the nesting, brood-rearing, and flightless periods; <bullet> No taking of the eggs of spectacled or Steller's eiders, emperor geese, cackling Canada geese or black brant; <bullet> No wasting of any migratory bird; <bullet> No use of private or charter aircraft to assist hunting of any migratory bird; <bullet> No possession or use of lead shot while hunting waterfowl. Status of populations will guide identification of circumstances warranting additional protection for migratory birds during the closed season. This will involve consultation with affected interests. Of greatest concern will be situations involving continuing harvest of species of concern, waste or harvest exceeding reasonable levels of need under existing circumstances. Dated: August 20, 1999. David B. Allen, Regional Director, Anchorage, Alaska. [FR Doc. 99-22652 Filed 8-30-99; 8:45 am] BILLING CODE 4310-55-P