[Federal Register: July 21, 2003 (Volume 68, Number 139)]
[Rules and Regulations]               
[Page 43010-43030]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Parts 20, 21, and 92

RIN 1018-AI84

Migratory Bird Subsistence Harvest in Alaska; Spring/Summer 
Subsistence Harvest Regulations for Migratory Birds in Alaska During 
the 2003 Subsistence Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is 
establishing spring/summer migratory bird subsistence harvest 
regulations in

[[Page 43011]]

Alaska for the 2003 subsistence season. This rule establishes 
regulations that prescribe frameworks, or outer limits, for dates when 
harvesting of birds may occur, species that can be taken, and methods 
and means excluded from use. These regulations were developed under a 
new co-management process involving the Service, the Alaska Department 
of Fish and Game, and Alaska Native representatives. They are not 
intended to be a complete, all-inclusive set of regulations, but are 
intended to provide an initial framework to legalize 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 
public review. Certain provisions in this rulemaking expire on August 
31, 2003, for the spring/summer subsistence harvest of migratory birds 
in Alaska. In subsequent years, seasons will open after April 1 and 
will close prior to September 1.

DATES: This rule is effective July 21, 2003, except for Sec. Sec.  
92.31 through 92.33, which are effective July 21, 2003 until August 31, 

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.


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 commercial 
hunting for, 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 had occurred for centuries, was necessary 
to the subsistence way of life in the north and thus continued despite 
the closed season.
    The Canada treaty and the Mexico treaty, as well as migratory bird 
treaties with Japan (1972) and Russia (1976), have been implemented in 
the United States through the Migratory Bird Treaty Act (MBTA). The 
courts have ruled that the MBTA prohibits the Federal Government from 
permitting any harvest of migratory birds that is inconsistent with the 
terms of any of the migratory bird treaties. The more restrictive terms 
of the Canada and Mexico treaties thus prevented the Federal Government 
from permitting the traditional subsistence harvest of migratory birds 
during spring and summer in Alaska. To remedy this situation, the 
United States negotiated Protocols amending both the Canada and Mexico 
treaties to allow for spring/summer subsistence harvest of migratory 
birds by indigenous inhabitants of identified subsistence harvest areas 
in Alaska. The U.S. Senate approved the amendments to both treaties in 

What Will the Amended Treaty Accomplish?

    The major goals of the amended treaty with Canada are to allow for 
traditional subsistence harvest and to improve conservation of 
migratory birds by allowing effective regulation of this harvest. The 
amended treaty with Canada allows permanent residents of villages 
within subsistence harvest areas, regardless of race, to continue 
harvesting migratory birds between March 10 and September 1 as they 
have done for thousands of years. The Letter of Submittal of May 20, 
1996, from the Department of State to the White House that officially 
accompanied the treaty protocol explains that lands north and west of 
the Alaska Range and within the Alaska Peninsula, Kodiak Archipelago, 
and the Aleutian Islands generally qualify as subsistence harvest 
areas. Treaty language provides for further refinement of this 
determination by management bodies.
    The Letter of Submittal places limitations on who is eligible to 
harvest and where they can harvest migratory birds. Anchorage, the 
Matanuska-Susitna and Fairbanks North Star Boroughs, the Kenai 
Peninsula roaded area, the Gulf of Alaska roaded area, and Southeast 
Alaska generally do not qualify as subsistence harvest areas. Limited 
exceptions may be made so that some individual communities within these 
excluded areas may qualify for designation as subsistence harvest areas 
for specific purposes. For example, future regulations could allow some 
villages in Southeast Alaska to collect gull eggs.
    The amended treaty with Canada calls for 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. 
Together they will 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 will involve village councils to the maximum extent 
possible in all aspects of management.
    The management bodies will submit relevant recommendations to the 
Service and to the Flyway Councils. Restrictions in harvest levels for 
the purpose of conservation will be shared equitably by users in Alaska 
and users in other States, taking into account nutritional needs of 
subsistence users in Alaska. The treaty amendments are not intended to 
cause significant increases in the take of migratory birds relative to 
their continental population sizes. In addition, the amendments are not 
intended to create a preference in favor of any group of users in the 
United States or to modify any preference that may exist, nor do they 
create any private rights of action under U.S. law.

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 in order to provide the most effective and 
efficient involvement for subsistence users. We began by publishing a 
notice in the September 17, 1998, Federal Register (63 FR 49707) 
stating that we intended to establish management bodies to implement 
the spring and summer subsistence harvest. The Service, the Alaska 
Department of Fish and Game, and the Native Migratory Bird Working 
Group held public forums 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

[[Page 43012]]

the annual meeting of the Association of Village Council Presidents in 
Hooper Bay and for the Central Council of Tlingit & Haida Indian Tribes 
in Juneau. Staff members from National Wildlife Refuges in Alaska also 
conducted public meetings in the villages within their refuge areas and 
discussed the amended treaties at those meetings.
    On July 1, 1999, we published in the Federal Register (64 FR 35674) 
a notice of availability of an options document, entitled ``Forming 
management bodies to implement legal spring and summer migratory bird 
subsistence hunting in Alaska.'' This document described four possible 
models for establishing management bodies and was released to the 
public for review and comment. We mailed copies of the document to 
approximately 1,350 individuals and organizations, including all tribal 
councils and municipal governments in Alaska, Native regional 
corporations and their associated nonprofit organizations, the Alaska 
Department of Fish and Game, Federal land management agencies, 
representatives of the four Flyway Councils, conservation and other 
affected organizations, and interested businesses and individuals. We 
distributed an additional 600 copies at public meetings held in Alaska 
to discuss the four models. We also made the document available on the 
Service web page.
    During the public comment period, we received 60 written comments 
addressing the formation of management bodies. Of those 60 comments, 26 
were from tribal governments, 20 from individuals, 10 from 
nongovernmental organizations, 2 from the Federal Government, 1 from 
the State of Alaska, and 1 from the Native Migratory Bird Working 
Group. In addition to the 60 written comments, 9 of the 10 Federal 
Subsistence Regional Advisory Councils passed resolutions regarding the 
four models presented.
    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 
establishment and organization of management bodies.
    Based on the wide range of views expressed on the options document, 
the decision incorporated key aspects of two of the models. 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. Decisions and recommendations of this 
management body will be by consensus wherever possible; however, if a 
vote becomes necessary, each component, Federal, State, and Native, 
will have one vote. This body will set a framework for annual 
regulations for spring and summer subsistence harvest of migratory 
    The Alaska Regional Director of the Service divided Alaska into 12 
geographic regions based on common subsistence resource use patterns 
and the 12 Alaska Native Regional Corporation boundaries under the 
Alaska Native Claims Settlement Act. Despite using the Alaska Native 
Regional Corporation boundaries, we are not working directly with the 
Regional Corporations in this program, and are instead working with the 
Alaska Native nonprofit groups and local governments in those 
corresponding regions. Eleven regional bodies have elected to 
participate in the statewide management body at this time. Out of all 
of the regions represented in the statewide management body, only eight 
regions actually represent included areas (50 CFR 92.5). These eight 
eligible regions submitted proposals to open harvest in 2003.
    In April 2000, we met with the Alaska Department of Fish and Game 
and the Native Migratory Bird Working Group to discuss bylaws for the 
statewide management body. At that meeting, participants decided to 
name the statewide management body the ``Alaska Migratory Bird Co-
management Council.'' On October 30, 2000, the Co-management Council 
convened for the first time to establish organizational guidelines and 
to begin development of recommendations for regulations. On December 
17, 2001, the Co-management Council met to refine organizational 
procedures and to discuss Alaska Frameworks/Guidelines for development 
of regulations for the first harvest season.
    Over the winter of 2001-02, the regional management bodies 
submitted recommendations for regulating the harvest within their 
regions. Recommendations were received only from the eight regions with 
communities included in the 2003 proposed harvest. The other four 
regions did not send in recommendations. On May 14, 2002, the Co-
management Council met to make final recommendations on harvest dates 
and methods and means of harvest for the 2003 season as necessary to 
protect the migratory bird resource. The Co-management Council sent 
recommendations to the four Flyway Councils for comments, and 
presentations were made at July 2002 meetings of the Pacific and 
Central Flyway Councils. The Co-management Council's harvest 
recommendations were initially presented to the Service Regulations 
Committee (SRC) on August 31, 2002, with final SRC action on October 
24, 2002.
    On April 8, 2002, we published in the Federal Register (67 FR 
16709) a proposed rule to establish procedures for implementing a 
spring/summer migratory bird subsistence harvest in Alaska. The 
proposed rule provided for a public comment period of 46 days. We 
mailed copies of the proposed rule to more than 1,200 individuals and 
organizations that were on the project mailing list. We conducted two 
public meetings in Anchorage where people could ask questions or 
provide formal comment.
    By the close of the public comment period on May 24, 2002, we had 
received written responses from 11 entities. Four of the responses were 
from individuals, five from organizations, one from the Alaska 
Legislature, and one from the Alaska Department of Fish and Game. On 
August 16, 2002, we published in the Federal Register (67 FR 53511) a 
final rule at 50 CFR part 92, which established procedures for 
incorporating subsistence management into the continental migratory 
bird management program. These procedural regulations establish an 
annual procedure to develop harvest guidelines for implementation of a 
spring/summer migratory bird subsistence harvest.
    On February 10, 2003, we published a proposed rule in the Federal 
Register (68 FR 6697) to establish annual spring/summer subsistence 
migratory bird harvest regulations for Alaska, starting with the 2003 
season. By the close of the public comment period on March 12, 2003, we 
had received written responses from 30 entities. Seven of the responses 
were from individuals, 20 from organizations, 2 from regional Flyway 
Councils and 1 from the Alaska Department of Fish and Game.
    This is the first year that we are prescribing annual frameworks, 
or outer limits, for dates when subsistence harvest of birds may occur, 
the list of species that may be taken, methods and means excluded from 
use, etc. These frameworks are not intended to be a complete, all-
inclusive set of regulations, but are intended to provide an initial 
framework to legalize customary and traditional subsistence uses of 
migratory birds in Alaska during the spring and summer. This rulemaking 
is necessary because the regulations governing the subsistence harvest 
of migratory birds in Alaska are

[[Page 43013]]

subject to annual establishment and public review and because the 
season is closed unless opened. This rule establishes regulations for 
reorganization of the regional areas, harvest seasons, a list of 
subsistence species, emergency closure authority, and methods and means 
related to taking of migratory birds for subsistence uses in Alaska 
during the spring/summer of 2003. We have also made nonsubstantive 
changes to 50 CFR parts 20 and 21 that were necessitated by the 
creation of 50 CFR part 92.

How Did the Service Meet the International Aspects of the Migratory 
Bird Treaties?

    The Service's authority arises from the four international treaties 
implemented by the Migratory Bird Treaty Act. Formerly, the 1916 
Convention between the United States and Great Britain on behalf of 
Canada and the 1936 treaty with the United Mexican States contained 
language that precluded most spring/summer subsistence harvest of 
migratory birds in Alaska. Both of these treaties have now been amended 
to allow the U.S. government to implement subsistence harvests during 
the closed season by indigenous inhabitants of identified subsistence 
harvest areas in Alaska. Specifically, the Protocol with Canada, 
Article II of the Treaty was revised to allow migratory birds and their 
eggs to be harvested by the indigenous inhabitants of the State of 
Alaska, regardless of the closed season provisions in Article II.
    Although the Protocol with the United Mexican States was amended to 
allow for the taking of wild ducks by indigenous inhabitants of Alaska, 
the hunting season limitation specified in Article II Part C was not 
altered. Therefore, the length of the Alaskan spring/summer subsistence 
harvest of migratory birds cannot exceed the period specified within 
the Mexican convention, which is 4 months. Historically, we have 
interpreted this restriction as 124 days. Therefore, to be consistent 
with the Mexican Treaty, subsistence harvest between March 11 and 
September 1 must be limited to 124 days. The above interpretation of 
season length came late in this initial regulatory process. The Co-
management Council had developed season recommendations without being 
aware of a 124-day season limitation; therefore, the Service has 
elected to open the season as soon as this rule is published and allow 
the ``Closed Season Policy'' (53 FR 16877, May 12, 1988) to remain in 
effect until this rule takes effect. Under the ``Closed Season 
Policy,'' the emphasis is to protect those species for which there is 
greatest conservation concern. Following publication of this rule, the 
``Closed Season Policy'' will no longer be in effect. Certain 
provisions in this final rule will govern the spring/summer subsistence 
harvest from the effective date of this rule through August 31, 2003. 
The regulations in 50 CFR part 20 will apply to all migratory bird 
harvests by all people in Alaska from September 1, 2003, to March 11, 
    The 1974 Migratory Bird Treaty with Japan provides for ``taking of 
migratory birds by Eskimos, Indians, and Indigenous peoples of the 
Trust Territory of the Pacific Islands for their own food and 
clothing.'' The Japan Treaty further stipulates that ``Open seasons for 
harvesting migratory birds may be decided by each Contracting Party 
respectively. Such harvesting seasons shall be set so as to avoid their 
principal nesting seasons and to maintain their populations in optimum 
numbers.'' In conformance with this provision, the Service developed a 
provision that would allow the traditional subsistence harvesting of 
eggs while also providing protection during the most critical part of 
the production period. Using ducks and geese as the initial model (with 
applications later considered for seabirds), a 30-day closed period 
targets the last 2 weeks of the incubation period and the first 2 weeks 
of the brood-rearing period. This concept still permits an opportunity 
for traditional egg harvesting during the early period after egg 
laying, but protects the later developing eggs and newly hatched young. 
To determine the best protective closure periods for their harvest 
regions based on mean nest initiation and egg laying dates, regional 
management bodies within the Co-management Council worked with the 
Service's Division of Migratory Bird Management in Anchorage, Alaska. 
Closures in some regions were geographically subdivided to provide the 
best protection, while other regions were provided separate closures 
for waterfowl and seabirds (primarily murres).
    In this rule, the Yukon-Kuskokwim Delta region requested 
flexibility to set and announce the annual mid-season principal nesting 
closure period, based on local information, such as timing of snow melt 
and initiation of nesting. Thus, the closure period in the Yukon-
Kuskokwim Delta region will be announced by the Alaska Regional 
Director or his or her designee, after consultation with biologists in 
the field, local subsistence users, and the region'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.

How Will the Service Ensure That This New Legalized Subsistence Harvest 
Will Not Raise Overall Migratory Bird Harvest?

    The Preamble of the Protocol amending the Canada Treaty states one 
of its goals is to allow a traditional subsistence hunt while also 
improving conservation of migratory birds through effective regulation 
of this hunt. In addition, the Preamble notes that, by sanctioning a 
traditional subsistence hunt, the Parties do not intend to cause 
significant increases in the take of migratory birds, relative to their 
continental population sizes, compared to the take that is presently 
occurring. Any such increase in take as a result of the types of 
hunting provided for in the Protocol would be inconsistent with the 
Convention. If the new subsistence harvest regulations result in 
increased harvest, management strategies will be implemented to ensure 
maintenance of continental populations.
    Eligibility to harvest under these new regulations is 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 open the initial spring/summer subsistence 
migratory bird harvest to only about 13% 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 are currently excluded from 
the eligible subsistence harvest areas. The eligible subsistence 
harvest areas were determined by a history of customary and traditional 
use of migratory birds during the spring and summer as provided in the 
Protocol amending the Canada Treaty. Adoption of annual harvest 
regulations will legalize the spring/summer subsistence harvest, but is 
not intended to initiate or somehow increase it, since subsistence 
harvest has a long history of prior use in these regions. In addition, 
some regions, such as Bristol Bay and the Northwest Arctic, indicated 
that local interest in harvesting birds is declining due to increased 
commercial availability of alternative foods.
    Alaska Natives have longstanding conservation ethics and traditions 
that are passed from generation to generation through the teachings of 
elders. These

[[Page 43014]]

customary and traditional teachings have provided for the perpetuation 
of migratory birds prior to the ratification of the Canada and Mexico 
treaty amendments and will continue to do so following the opening of 
the legal subsistence season. Ultimately it is these components of 
Native Alaskan culture, rather than regulations, that will provide the 
more restrictive limits on the harvest of migratory birds.
    We have long recognized that a legal and equitable harvest 
opportunity should be provided during traditional harvesting periods 
within a regulated framework that ensures conservation of the resource. 
Without regulating this ongoing activity, populations of the most 
heavily harvested species, principally waterfowl, could experience 
declines, and the recovery of depressed populations would be more 
difficult. Legalizing the subsistence harvest could make any 
documentation of the take easier and any reporting more accurate. In 
addition, the regulations will become part of the comprehensive, 
continental system of migratory bird management, thus integrating 
subsistence uses with other uses for the first time. Further, the 
Alaska subsistence migratory bird harvest is presently thought to 
constitute only approximately 2-3% of the aggregate national migratory 
bird harvest.
    Under the prior ``Closed Season Policy'' (53 FR 16877, May 12, 
1988), it was the position of the Service to emphasize enforcement of 
restrictions on species of greatest conservation concern. Since its 
implementation, information on the ``Closed Season Policy'' has been 
broadly distributed in Alaska. We believe it is reasonable to assume 
that most subsistence users were aware of the policy and continued 
their traditional harvest of non-protected migratory bird species, so 
few new subsistence users should be attracted by legalizing their 
customary and traditional harvests. Indications are that subsistence 
harvests of migratory birds have, in the past, been generally 
underreported because of fear of prosecution. Legalization of the 
harvest could make people more comfortable about reporting take. This 
could lead to more accurate reporting and ultimately help in regulation 
setting and bird conservation.
    Subsistence harvest has been monitored for the past 14 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 
significant changes or trends in levels of harvest and user 
participation after legalization of the harvest. The harvest survey 
forms that we used to collect information previously were not approved 
by the Office of Management and Budget (OMB). 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 OMB for approval under the Paperwork Reduction Act, with a 
subsequent 60-day public comment period. We will not conduct or sponsor 
these surveys until we obtain OMB approval of this information 
collection. If OMB approves the forms, we intend to begin a Statewide 
program to gather information that would provide a more comprehensive 
view of the overall subsistence harvest and more species-specific 
harvest data, especially on shorebirds.

How Did the Service Come Up With the Methods and Means Prohibitions?

    The Co-Management Council in general adopted the existing methods 
and means prohibitions that occur in the Federal (50 CFR part 20) and 
Alaska (5AAC92.100) migratory bird hunting regulations. Some exceptions 
were made to allow the continuation of customary and traditional spring 
harvest methods. For example, an exception was made to allow use of 
live birds as decoys for the harvest of auklets on Diomede Island.

Why Are No Daily Harvest Limits Proposed Under These Subsistence 

    The concept of harvest or bag limits is difficult to apply to the 
traditional subsistence harvest. A subsistence harvest involves 
opportunistic use of resources when they are available or abundant, 
usually for short periods such as bird migration stopovers. Also, 
subsistence hunting traditionally is often not for individual purposes, 
meaning hunters are taking birds to be shared within the community, 
among several families. Historically, local survival depended on 
sharing, which is a cultural value broadly taught and practiced both 
within and between communities. Often these designated village hunters 
are proficient in the techniques necessary to take specific species, 
for example, hunting murres from breeding areas along seacliff ledges. 
A restrictive daily limit for individual subsistence hunters would 
significantly constrain customary and traditional practices and limit 
opportunistic seasonal harvest opportunities within the Alaska 
subsistence communities.
    The Co-management Council does recognize that setting harvest 
limits may become necessary, especially within local areas and 
individual species. However, we did not design these initial 2003 
harvest regulations to be a complete, all-inclusive set of regulations, 
but intended for them to provide an initial framework to formally 
recognize and provide opportunities for the customary and traditional 
subsistence uses of migratory birds in Alaska. Within these initial 
frameworks, the first step in limiting the overall subsistence harvest 
was to establish a closed species list that included regional 
restrictions. Establishing a 30-day closed period during the breeding 
season also limited the harvest impacts. The eventual need to further 
adjust levels of harvest take, either regionally or overall, is 
recognized and will be dealt with by the Co-management Council on the 
basis of recommendations by the Council's Technical Committee on a 
species-by-species basis. These decisions will likely be based on bird 
population status and past subsistence harvest data. Concepts such as 
community harvest limits and/or designated hunters may be considered to 
accommodate customary and traditional subsistence harvest methods.

How Did the Service Come Up With the List of Birds Open to Harvest?

    The Service believed that it was necessary to develop a list of 
bird species that would be open to subsistence harvest during the 
spring/summer season. The original list was compiled from subsistence 
harvest data, with several species added based on their presence in 
Alaska without written records of subsistence take. The original intent 
was for the list to be reviewed by the regional management bodies as a 
check list. The list was adopted by the Co-management Council as part 
of the guidelines for the 2003 season. Most of the regions adopted the 
list as written; however, two regions created their own lists. One 
regional representative explained that it would take much more time 
than was available for his region to reduce the list and that, once a 
bird was removed, returning it to the list would be more difficult 
later. Going with the original list was viewed as protecting hunters 
from prosecution for the rare take of an unlisted bird. To understand 
this rationale, one must be aware that subsistence hunting is generally 
opportunistic and does not usually target individual species. Native 
language names for birds often group closely related species, with no 
separate names for species within these groups.

[[Page 43015]]

Also, preferences for individual species differ greatly between 
villages and individual hunters. As a result, regions are hesitant to 
remove birds from the list 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 in 2003.
    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 only available empirical evidence of customary 
and traditional use of the harvested bird species comes from Alaska 
subsistence migratory bird harvest surveys, conducted by Service 
personnel and contractors and transferred to a computerized database. 
Because of difficulties in bird species identification, shorebird 
harvest information has been lumped into ``large shorebird'' and 
``small shorebird'' categories. In reality, Alaska subsistence harvests 
are also conducted in this manner, generally with no targeting or even 
recognition of individual shorebird species in most cases. In addition, 
red-faced cormorants, trumpeter swans, Aleutian terns, whiskered 
auklets, short-eared owls, and others have not been targeted in 
subsistence harvest questionnaires, so little or no numerical harvest 
data exists. Available summaries of subsistence harvest data include 
Page and Wolf 1997; Trost and Drut 2001, 2002; Wentworth 1998; 
Wentworth and Wong 2001; and Wong and Wentworth 2001.

What Are Birds of Conservation Concern and How Do They Apply to 
Subsistence Harvest?

    Birds of Conservation Concern (BCC) 2002 (FWS 2002) is the latest 
document in a continuing effort by the Service to assess and prioritize 
bird species for conservation purposes (FWS 1982, 1987, 1995; and U.S. 
Department of the Interior 1990) and was published in the February 6, 
2003, Federal Register (68 FR 6179). It identifies bird species at risk 
because of inherently small populations or restricted ranges, severe 
population declines, or imminent threats, and thus in need of 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. The 1988 amendment (Public Law 100-653, 
Title VIII) to the FWCA requires the Secretary of the Interior (16 
U.S.C. 2901--2912), 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 (ESA) of 1973, 
as amended (16 U.S.C. 1531--1543).''
    In actuality, and fortunately, few of the species on the BCC lists 
are in such a precarious state that they will have to be considered for 
listing as endangered or threatened in the near future. Our goal is to 
implement preventive management measures that will serve to keep these 
species off the endangered species list. Proactive conservation clearly 
is more cost-effective than the extensive recovery efforts required 
once a species is federally listed under the ESA. The BCC lists are 
intended to stimulate coordinated and collaborative proactive 
conservation actions (including research, monitoring, and management) 
among Federal, State, and private partners. By focusing attention on 
these highest priority species, the Service hopes to promote greater 
study and protection of the habitats and ecological communities upon 
which these species depend, thereby ensuring the future of healthy 
avian populations and communities (for more detailed information on the 
exact criteria used to select species for consideration and inclusion 
on the BCC lists, see FWS 2002).
    Of the 108 species for which the Service proposes to establish 
regulations allowing subsistence hunting in Alaska, 22 are on BCC lists 
at one or more scales (e.g., National, FWS Regions, or Bird 
Conservation Regions-Alaska). The Service considers one additional 
species (Trumpeter Swan) to be ``sensitive'' because of its small 
population size and limited breeding distribution in Alaska. Of the 22 
species on BCC lists, 14 are technically considered ``gamebirds'' (as 
defined by bilateral migratory bird conventions with Canada and 
Mexico), although frameworks allowing sport hunting seasons have never 
been established for any of them in the 85-year history of the 
Migratory Bird Treaty Act.
    The following 23 species are birds of conservation concern or are 
considered sensitive for other reasons.

Family Gaviidae

    Red-throated Loon (Gavia stellata).
    Yellow-billed Loon (Gavia adamsii).

Family Phalacrocoracidae

    Red-faced Cormorant (Phalacrocorax urile).

Family Anatidae

    Trumpeter Swan (Cygnus buccinator).

Family Charadriidae

    American Golden-Plover (Pluvialis dominicus).
    Pacific Golden-Plover (Pluvialis fulva).

Family Haematopodidae

    Black Oystercatcher (Haematopus bachmani).

Family Scolopacidae

    Solitary Sandpiper (Tringa solitaria).
    Upland Sandpiper (Bartramia longicauda).
    Whimbrel (Numenius phaeopus).
    Bristle-thighed Curlew (Numenius tahitiensis).
    Hudsonian Godwit (Limosa haemastica).
    Bar-tailed Godwit (Limosa lapponica).
    Marbled Godwit (Limosa fedoa).
    Black Turnstone (Arenaria melanocephala).
    Red Knot (Calidris canutus).
    Dunlin (Calidris alpina).
    Buff-breasted Sandpiper (Tryngites subruficollis).

Family Laridae

    Red-legged Kittiwake (Rissa brevirostris).
    Arctic Tern (Sterna paradisaea).
    Aleutian Tern (Sterna aleutica).

Family Alcidae

    Whiskered Auklet (Aethia pygmaea).

Family Strigidae

    Short-eared Owl (Asio flammeus).

Literature Cited

Paige, A., and R. Wolfe. 1997. The subsistence harvest of migratory 
birds in Alaska--compendium and 1995 update. Tech. Paper Series, 
ADF&G, Div. of Subsistence, Juneau, AK.;
Trost, R.E. and M.S. Drut, Compilers. 2002. 2002 Pacific Flyway data 
book--Waterfowl harvests and status,

[[Page 43016]]

hunter participation and success, and certain hunting regulations in 
the Pacific Flyway and United States. Unpubl. Rpt., U.S. Fish Wildl. 
Serv., Portland, OR. 145 pp.;
Trost, R.E. and M.S. Drut, Compilers. 2001. 2001 Pacific Flyway data 
book--Waterfowl harvests and status, hunter participation and 
success, and certain hunting regulations in the Pacific Flyway and 
United States. Unpubl. Rpt., U.S. Fish Wildl. Serv., Portland, OR. 
127 pp.;
U.S. Department of the Interior. 1990. Report of the Secretary of 
the Interior to the Congress of the United States on the Federal 
conservation of migratory nongame birds pursuant to Section 13 of 
Public Law 96-366, the Fish and Wildlife Conservation Act of 1980, 
as revised. U.S. Fish Wildl. Serv., Wash., DC. 61 pp.
U.S. Fish and Wildlife Service. 1982. Nongame migratory bird species 
with unstable or decreasing population trends in the United States. 
Office of Migratory Bird Mgt., Wash., DC. 24 pp.
U.S. Fish and Wildlife Service. 1987. Migratory nongame birds of 
management concern in the United States: the 1987 list. Office of 
Migratory Bird Mgt, Wash., DC. 25 pp.
U.S. Fish and Wildlife Service. 1995. Migratory nongame birds of 
management concern in the United States: the 1995 List. Office of 
Migratory Bird Mgt., U.S. Fish Wildl. Serv., Arlington, VA. 22 pp.
U.S. Fish and Wildlife Service. 2002. Birds of conservation concern 
2002. Division of Migratory Bird Mgt., Arlington, VA. 102 pp.
Wentworth, C. 1998. Subsistence waterfowl harvest survey,. Yukon-
Kuskokwium Delta, 1987-1997. U.S. Fish Wildl. Serv., Migratory Bird 
Mgt. Div., and Yukon Delta NWR, Anchorage, AK.
Wentworth, C. and D. Wong. 2001. Subsistence waterfowl harvest 
survey--Yukon-Kuskokwim Delta, 1995-1999. U.S. Fish Wildl. Serv. and 
Yukon Delta NWR, Anchorage, AK.
Wong, D. and C. Wentworth. 2001. Subsistence migratory bird harvest 
survey, Bristol Bay, 1995-1999. U.S. Fish Wildl. Serv., Migratory 
Bird Mgt. Div., Alaska Peninsula NWR, Togiak NWR., and Bristol Bay 
Native Assoc., Anchorage, AK.

Summary of Public Involvement

    On February 10, 2003, we published in the Federal Register (68 FR 
6697) a proposed rule to establish spring/summer migratory bird 
subsistence harvest regulations in Alaska for the 2003 subsistence 
season. The proposed rule provided for a public comment period of 30 
days. We mailed copies of the proposed rule to more than 60 individuals 
and organizations that were determined to be direct stakeholders in 
this process. We established an internet homepage posting the proposed 
rule and related historical documents. We issued a press release and 
radio public service announcement expressing the request for public 
comments and the pertinent deadlines for such comments, which was faxed 
to 26 members of the statewide media. We presented the proposed rule 
and related materials at public meetings conducted by Federal 
Subsistence Regional Advisory Councils in Kotzebue, Barrow, Kodiak, 
Dillingham, Unalakleet, Chevak, and Nenana, Alaska, requesting further 
written public comments. By the close of the public comment period on 
March 12, 2003, we had received written responses from 30 entities. 
Seven of the responses were from individuals, 20 from organizations, 2 
from regional Flyway Councils, and 1 from the Alaska Department of Fish 
and Game.

Response to Public Comments

    Most sections of the proposed rule were addressed by commenters. 
This discussion addresses comments section by section beginning with 
those of a general nature.

General Comments

    Two respondents requested that groups other than government 
agencies and Native groups be represented on the Co-management Council, 
specifically mentioning Audubon and Ducks Unlimited.
    Service Response: An extensive public process took place July 1999 
through March 2000, during which the composition of the statewide 
management body, the Co-management Council, was decided. The Co-
management Council's composition has been established by regulation (67 
FR 53511) and is not being reconsidered in this rule. All Co-management 
Council meetings are public, and any interested parties can participate 
and testify.
    Two respondents requested that the regulations in the proposed rule 
be cross-referenced with Title VIII of the Alaska National Interest 
Lands Conservation Act (ANILCA) subsistence regulations, such as by 
adding the guidance ``* * * consistent with sound management 
principles, and the conservation of healthy populations of fish and 
wildlife * * *,'' adding emergency closure authority, and adding the 
words ``non-wasteful subsistence.''
    Service Response: Development of the spring/summer subsistence 
migratory bird harvest regulations is guided solely by amendments to 
the international migratory bird treaties, and not by ANILCA 
legislation. Cross-referencing guiding principles and management 
objectives would only serve to further confuse the two very separate 
programs. However, in the final rule, we have added an emergency 
closure authority to ensure prompt corrective actions on conservation 
concerns, similar to that used in both part 20 and part 100.
    One individual referenced the Administrative Procedure Act and how 
it is stated within the proposed rule ``The Department of the 
Interior's policy is, whenever practicable, to afford the public 
opportunity to participate in the rulemaking process'' and how this 
sounds like the Department is doing the public some kind of favor, when 
by law it is required. The individual further cites mandates within the 
Administrative Procedure Act and how it spells out public notice 
    Service Response: This language does not appear in the final rule, 
but we will take this into consideration when drafting other Federal 
Register documents. See the Public Involvement Section under 
Supplementary Information for a summary of the Service's efforts to 
seek public involvement under the Administrative Procedure Act.
    One respondent stated that more funds are needed to adequately 
monitor spring and summer subsistence harvest of migratory birds as 
well as to promote the effective and meaningful role for Alaska's 
indigenous inhabitants in the conservation of migratory birds through 
the participation in the Co-management Council and its related 
    Service Response: Funding levels to support the efforts of the Co-
management Council, which include harvest monitoring and Native 
participation, are provided by Congress annually and are not dictated 
by Federal regulations.
    One respondent brought up the issue of the Migratory Bird Hunting 
and Conservation Stamp Act and how it would require subsistence hunters 
to purchase a Federal Migratory Bird Hunting and Conservation Stamp. 
One of the major goals of the amended migratory bird treaty with Canada 
was to allow for traditional subsistence harvests, and acquiring a 
hunting license or duck stamp is not customary and traditional. This 
respondent expressed the need to modify the Duck Stamp Act to exempt 
subsistence hunters from the requirement.
    Service Response: The only way to change the requirement to possess 
a Federal Migratory Bird Hunting and Conservation Stamp is if the 
Migratory Bird Hunting and Conservation Stamp Act is modified by 

[[Page 43017]]

    One individual requested that the introductory information be 
corrected to reflect that there is evidence that the needs of northern 
peoples to harvest migratory birds in the spring and summer were 
considered at the time of the original treaty with Canada. The 
individual noted the participation of E.W. Nelson, who helped establish 
the original Yukon Delta Reservation in 1909 and was the principal 
negotiator for the 1916 treaty.
    Service Response: We have changed the introductory language to 
read: ``Neither treaty allowed adequately for the traditional harvest 
of migratory birds by northern peoples. . .''
    Two commenters suggested that subsistence area migratory bird 
management plans should be required for each subsistence harvest 
region, complete with sustainable population and habitat protection 
goals, and a reporting requirement. The person further suggested using 
the Yukon-Kuskokwim Delta Goose Management Plan as a model.
    Service Response: The Co-Management Council is tasked to develop 
management plans as needed and requested. No immediate plans exist to 
write management plans for each region. The Co-management Council has 
directed a working group to review and update, if necessary, the 
Emperor Goose Management Plan.
    Two commenters suggested that the cooperation of Native subsistence 
hunting groups should be sought in establishing sanctuaries for 
migrating or nesting birds when concentrated or particularly vulnerable 
to disturbance or over-harvest.
    Service Response: These subsistence harvest regulations do not 
dictate Federal or State land management practices such as designating 
sanctuaries; however, any concerning individual or party can petition 
to close a specific area to the spring/summer subsistence migratory 
bird harvest.
    One individual stated that the proposed regulations are a 
ridiculous extension of the initial concept of legalizing a small 
traditional harvest for sustenance, primarily by Native people.
    Service Response: The Federal Government is obligated to implement 
the amendments to the international migratory bird treaties. The 
executive branch does not have the authority to change the treaties; 
that responsibility lies with Congress and the treaty participants.
    Two commenters suggested that the Service should be required to 
publish jointly with the Co-management Council an annual harvest report 
complete with details of what is working and not working and what 
corrective actions need to be taken.
    Service Response: Subsistence harvest survey data is collected with 
reports published annually summarizing the data on a regional basis. 
This Alaska subsistence harvest data is also available in the annual 
Service's Pacific Flyway Data Book.
    One individual complained that the statement ``Alaska Natives have 
longstanding conservation ethics'' is not substantiated or explained in 
the rule document. The individual stated that the complete elimination 
of the rich deltas' goose populations surrounding Kotzebue and Norton 
sounds and the historical lack of interest in restoration of nesting 
geese there does not suggest any form of good management either now or 
in the past.
    Service Response: Although there have been declines in the 
populations of nesting geese in the deltas surrounding Kotzebue and 
Norton Sounds and subsistence is one source of goose mortality in these 
regions, it has not been identified as a major cause of the population 
declines. The Native communities of these regions are now actively 
participating in the Co-Management Council and recovery efforts. 
Development of this new subsistence harvest program has involved active 
participation by 11 regional Native organizations.
    One individual commented that the statement of subsistence take 
constituting 2-3% of the national migratory bird take is misleading, 
and for some species groups such as seabirds and shorebirds, the 
subsistence take may equal 90-100% of the national harvest.
    Service Response: We believe the 2-3% quoted is valid when the 
entire migratory bird harvest is considered, and did not see the need 
to break this down per species group, since it is well documented that 
harvests for some species groups do not exist outside Alaska.
    Two commenters specifically supported the 30-day harvest closure 
for breeding birds.
    Service Response: None needed.
    Two commenters suggested that the Co-management Council should 
organize ``Migratory Bird Conservation Committees'' in each subsistence 
area that would include subsistence harvesters, government 
representatives, and the local conservation organizations. One of the 
functions of these committees would be to organize subsistence hunters 
in migratory bird population surveys and censuses in close cooperation 
with the Service.
    Service Response: We would like to clarify that local migratory 
bird conservation committees already exist in the form of regional 
management bodies or partners, with 11 actively contributing to the Co-
management Council.
    Two commenters requested increased public education efforts and 
enforcement of harvest regulations, especially in communities shared by 
nonconsumptive users such as birdwatchers. One commenter cited a June 
2002 incident in Barrow, in which a group that was watching pectoral 
sandpipers saw a truck with two individuals pull up and begin shooting 
at a bird with a high-powered rifle. The individuals from the truck had 
no means to retrieve the bird (no boots for wading). The group also 
watched the same individuals shooting at birds between the shore and 
pack ice.
    Service Response: Once this initial phase of regulation development 
is completed, we plan to launch an extensive education and outreach 
campaign targeting the communities within the subsistence harvest 
areas. Outreach efforts will focus on educating all residents of the 
new regulations and emphasize regulatory protection of those migratory 
bird species of the greatest conservation concern.
    Three respondents supported the proposed regulations for 
subsistence harvest in Alaska as permitted under the revised Migratory 
Bird Treaty. They commended the Service's efforts to improve frameworks 
for regulation of these harvests and for improving information on 
subsistence use of these resources.
    Service Response: None needed.
    One commenter complained that the 30-day public comment period was 
not sufficient time to collect harvest information for the 23 bird 
species on the Birds of Conservation Concern list. The commenter argued 
that rushing the process will further erode the existing credibility of 
the meaningful role indigenous inhabitants have in development of these 
regulations. The commenter requested that the Secretary of the Interior 
grant a 90-day extension on the public comment period for the proposed 
    Service Response: We were not able to grant this requested 
extension, because we need to publish final regulations as close as 
possible to the requested April 2 start date of the 2003 harvest 
season. The future plan is to merge into the ``late season'' waterfowl 
regulatory cycle for Service Regulation Committee meetings and 
subsequent publication in the Federal Register. Under this cycle, we 
would publish the next Proposed

[[Page 43018]]

Rule late this coming fall, which should allow for a 60-day comment 

Why Are No Daily Harvest Limits Proposed Under These Subsistence 

    Three commenters questioned the assumption that no increase in 
subsistence harvest is anticipated following adoption of the spring-
summer season regulations, since all rural residents, not just Alaska 
Natives, will be included in the harvests. The cumulative effect of 
adding these hunters who did not traditionally participate in the 
subsistence harvest has been underestimated. While another individual 
was concerned that, since harvest reporting will not be conducted this 
first year, no scientific evaluation of whether the harvest has 
increased or is having a detrimental effect, is possible. Also, the 
harvest reporting done on the Yukon-Kuskokwim Delta missed many other 
rural communities in interior Alaska.
    Service Response: Upon OMB approval of the survey forms, we are 
planning to expand the harvest monitoring to a Statewide effort with a 
statistical model for stratifying the survey area. We hope that this 
effort will provide a means to monitor and report any significant 
increases in harvest activity. The regulations were intended to be a 
foundation for the spring/summer subsistence harvest of migratory birds 
in Alaska. If conservation concerns arise such that future harvest 
restrictions have to be imposed, the Co-management Council will act 
    Four respondents expressed concern about the lack of harvest limits 
presented in these regulations. One individual recognized the 
difficulty in applying bag or harvest limits to traditional subsistence 
harvests, but stated that limits will be necessary to ensure that 
Statewide cumulative harvests of species are not excessive. The 
respondents also recognized that if bag limits are not incorporated in 
the 2003 regulations, the Co-management Council will need to move in 
this direction in the future. In addition, if species on the Birds of 
Conservation Concern list and/or Audubon Watchlist are included in the 
2003 harvest, then small bag limits should be set immediately. Two 
commenters specifically mentioned sea ducks as an area of special 
concern with regard to lack of bag limits. Another commenter suggested 
using proxy hunting as administered by the State of Alaska as an 
example of formatting harvest limits to allow for sharing among 
    Service Response: These initial 2003 harvest regulations are 
designed to provide an initial framework and the first steps taken to 
limit the subsistence harvest. These steps will include establishing a 
closed species list and a 30-day closed period during the breeding 
season. In the future, concepts such as community harvest limits, proxy 
hunting, and/or designated hunters will likely be considered to 
accommodate customary and traditional subsistence harvest methods, if 
further species-specific harvest limits are needed.
    One commenter was supportive of there being no harvest limits, 
because they do not fit with customary and traditional practices. 
Frequently a person goes hunting and returns with food for extended 
families, so harvest or bag limits would not be suitable or appropriate 
for the North Slope region.
    Service Response: The Co-management Council agrees with this 
assessment of the situation and is not recommending harvest limits to 
be set for this initial 2003 season, but may consider them when 
specifically requested or needed for a localized area or species of 
conservation concern.

How Did the Service Come Up With the List of Birds Open to Harvest?

    One respondent suggested that some Native language names for birds, 
group closely related species, and there may or may not be separate 
names for species within these groups. In a 1958 UAF paper titled ``On 
the Naming of Birds by Eskimos,'' Lawrence Irving documents different 
Inupiaq names for all the locally-occurring species of loons, scoters, 
shorebirds, and even the two species of scaup. Thus, in this region, 
this degree of differentiation was reflected in the language.
    Service Response: In developing the subsistence harvest survey 
collection forms, we have found that some confusion does exist 
concerning local Native names for specific bird species, just as it 
does when common names are used for international species. In some 
cases, neighboring local regions use different Native names for the 
same species. When at all possible, we have given all known extant 
Native names for a species in our education materials.
    One commenter suggested that the existing wording referencing 
availability of empirical evidence is inaccurate. As stated, ``the only 
available empirical evidence of customary and traditional use of the 
harvested bird species comes from Alaska subsistence migratory bird 
surveys, conducted by Service personnel and contractors and transferred 
to a computerized database.'' The commenter noted that, to the 
contrary, there is ample information in the ethnographic literature 
documenting bird harvest and use practices from most regions of the 
State. There is a considerable amount of archaeological literature 
describing pre-contact harvest patterns, including species of birds 
harvested as well as implements used for bird harvest. Also, a large 
body of contemporary and traditional knowledge exists among subsistence 
users themselves.
    Service Response: We agree that additional information is available 
from both contemporary and archaeological sources, yet we disagree that 
this available information is able to provide numerical summaries of 
bird harvest down to the species level.
    One commenter expressed concern over the apparent absence of any 
internal review process by the Service's migratory bird specialists and 
urged that an intra-agency review process be involved in developing the 
Final Rule.
    Service Response: The Co-management Council can only make 
recommendations to the Service as far as regulations development, with 
all final decisions made by the Service Regulations Committee. Prior to 
the Service Regulations Committee finalizing any new regulations, there 
is an extensive, two-part internal review process in which the 
Service's migratory bird management division and its biologists are 
extensively involved.

Section 20.22 Closed Seasons

    One commenter stated that this amendment implies that subsistence 
hunting under part 92 occurs during closed seasons, when, in fact, part 
92 establishes open seasons. The commenter suggested that the section 
should read: ``* * * during the closed season established in this part 
except as provided in * * * ''
    Service Response: We concur and have made the recommended wording 

Section 92.30 General Overview of Regulations

    One respondent recommended revising text to read: ``The Co-
management Council will review and, as necessary, recommend 
modifications to these regulations * * * working within the schedule of 
the Federal late season migratory game bird hunting regulations.''
    Service Response: We concur and have made the recommended wording 

[[Page 43019]]

Section 20.132 Subsistence Use in Alaska

    One commenter suggested that removal of this section eliminates 
authorized fall and winter harvests of snowy owls and cormorants for 
food or clothing that have been in place for many years. The commenter 
did not believe there had been adequate public notice of this proposed 
action; it has not been substantively considered by the Co-management 
Council and was not part of the widely distributed package of 
recommended subsistence regulations. The commenter recommended that the 
Service retain Sec.  20.132(b) until such time as fall and winter 
subsistence needs can be assessed and there is adequate involvement of 
the Alaska public and Co-management Council.
    Service Response: The commenter has identified an oversight 
potentially restricting the winter subsistence harvest of snowy owls 
and cormorants in Alaska with this action. We modified the section to 
retain subsection (b) while making it effective only from September 1 
through April 1 in the final rule.

Section 92.5 Who Is Eligible To Participate?

    Five respondents, all representing separate Kodiak area 
organizations, expressed an urgent need to close the Kodiak road system 
starting in the 2003 season. The primary and most common concern 
expressed was the likelihood of overharvesting, primarily by user 
groups that do not demonstrate customary and traditional uses of 
migratory birds and will have easy access to this resource. Other 
concerns brought up were the potential conflicts between consumptive 
and nonconsumptive users that could negatively affect the local tourism 
industry, and subsistence harvesting posing a public safety concern in 
regard to hunting within a populated area.
    Service Response: On the basis of public testimony and written 
comments received, we are closing to harvest a buffer zone around the 
Kodiak Island road system under Sec.  92.33(e). The conservation 
concern is the nontraditional access posed by the road system in a 
region where the migratory bird hunting is traditionally done by boat 
in marine waters. Acts of civil disobedience with respect to other 
hunting regulations and road access have been documented. Closing the 
road system to the spring and summer subsistence migratory bird harvest 
will help ensure no local increases in harvest occur in implementation 
of the new regulations. Offshore islands and waters will remain open to 
    One commenter requested that all road systems, such as Kodiak and 
Nome, should be closed to subsistence harvests, with the primary 
concern being the conflicts between consumptive and nonconsumptive 
users along roads frequented by tourists, birdwatchers, and others. The 
issue of the Nome road system was only brought up by one commenter, and 
has not been supported by the regional management body, nor mentioned 
in any other public comments.
    Service Response: We are taking no action on restricting harvest 
along the Nome road system for the 2003 regulations; however, the issue 
may be revisited by petition for a rule change in the future, should 
the need arise.
    One respondent requested exclusion of the community of Tok, most of 
whose residents have no customary and traditional history of bird 
harvesting in the spring/summer. The respondent explained that 
legalizing the harvest will significantly increase the level of take of 
waterfowl and owls in the Upper Tanana Valley, especially if no harvest 
limits are imposed.
    Service Response: There is a petition process to exclude a 
community from subsistence bird harvesting. Petitions are accepted 
annually and acted upon by the Co-management Council and subsequently 
by the Service Regulations Committee for the upcoming season. In 
addition, we added an emergency closure provision in Sec.  92.21, so 
that if a significant increase is documented for waterfowl and owls in 
this or any other region, an emergency closure can be requested and 
    Five respondents questioned the definition of ``indigenous 
inhabitant'' used in the regulations. One of the commenters stated that 
the current definition is erroneous, immoral, and unjust and could 
result in an increased harvest of birds during the spring and summer. 
The second commenter stated that the regulations should only apply to 
residents of the proposed area whose families have a tradition of 
harvesting migratory birds in the area. The third commenter charged 
that this loophole, which includes populations of recent rural 
immigrants and their invited relatives, will cast suspicion on the 
whole program, and that the Native community should define the term 
``indigenous.'' The commenter added that the Service should consider 
the impact of immigrants into the included villages when stating that 
it is not the intent of these regulations to increase the harvest. 
Also, the Native community itself is increasing, adding many new 
hunters to increase the take. Another individual commented that the 
phrase ``permanent inhabitants'' is not defined, thus allowing 
participation by anyone with a rural ZIP Code, regardless of cultural 
heritage, local tenure, annual income, or subsistence need. Still 
another commenter added that if hunting pressure needs to be limited, 
the harvest should be returned to its original intent.
    Service Response: The term ``indigenous inhabitant'' was defined in 
Congress' ratification of the Treaty amendments, which are binding on 
the Service. Defining the term as the commenters requests would 
misconstrue Congress' explicit intent in ratifying the Treaty 
    One respondent expressed strong concern that the Secretary of the 
Interior lacks the legal authority to open the spring/summer hunt to 
non-Native village residents, despite Alaska's former U.S. Senator's 
desire for this to be accomplished through amendments to the Canada and 
Mexico Migratory Bird Treaties.
    Service Response: Same as above.

Section 92.20 Methods and Means

    Two commenters requested that subsistence hunters age 16 and 
younger should be required to be accompanied by an adult both in the 
interest of safety and to avoid abuse of the subsistence privilege. In 
addition, they suggested that young hunters should be encouraged to 
obtain a firearms safety certificate before being allowed to hunt.
    Service Response: We intend to encourage participation in the 
State's hunter safety program by subsistence hunters of all ages 
through our program's long-term education and outreach efforts.
    Two individuals expressed concern because rifles, especially .22 
caliber, are not a currently prohibited method. One of the commenters 
explained that allowing these types of weapons creates a situation in 
which male youths with .22 caliber rifles can have an open season on 
all birds with little regard for salvage of edible meat. The commenter 
added that people lacking identification skills will likely shoot 
anything that flies, and that lack of identification and marksman 
skills could cause wounding losses from rifle use to be substantial.
    Service Response: The issue of use of small caliber rifles was 
discussed by the Co-management Council, and it was recommended that we 
do not prohibit their use. It was also stated that small caliber rifles 
are traditional tools for subsistence use and that they are most 
commonly used to dispatch wounded or crippled birds. Outreach and 
educational efforts of the Co-management Council will be focusing

[[Page 43020]]

on improving the hunter identification of individual bird species at 
both long and short distances.
    One respondent requested that we prohibit the use of air boats and 
personal watercraft (e.g. jet skis) for spring/summer migratory bird 
hunting on the Tetlin Refuge, at least in the Scotty/Desper drainage 
and other sensitive areas in the region. The respondent explained that 
use of air boats and jet skis is already established in the area, and 
that use during the fall sport season on lakes accessible from the 
Alaska Highway has been an increasing issue. The use of air boats or 
personal watercraft is extremely disturbing to nesting and brood 
rearing waterfowl and other species, and has the potential to alter and 
damage critical habitat. Abuses will occur and law enforcement will be 
extremely difficult. In addition, use of air boat or personal water 
craft is not customary and traditional for harvesting migratory birds 
in the spring and summer.
    Service Response: We concur and have added a regional prohibition 
on the use of air boats and jet skis under Sec.  92.20.
    One commenter brought up the concern that it has not been made 
clear what licenses or permits are going to be required, and that 
education and outreach have not been allocated to inform the 
subsistence users about the new regulations. The commenter requested 
that the Secretary of the Interior initiate a discretionary enforcement 
policy to continue for 2 years after the Final Rule is published and 
provide adequate funding to the regions to coordinate outreach and 
education efforts.
    Service Response: We concur that we did not make general hunter 
requirements explicit and have clarified that by modifying the Final 
Rule to make Sec.  20.2 (a), (b), (c), and (d) applicable to persons 
hunting under part 92. Under separate Federal regulations (16 U.S.C. 
718a), Federal migratory bird stamps are required for hunters 16 years 
of age and older for taking migratory bird waterfowl. We also concur 
that additional education and outreach are needed.
    One commenter from the Yukon-Kuskokwim Delta explained that village 
residents should be allowed to take waterfowl from a boat under power, 
especially for waterfowl frequenting the river. Village residents 
should also be allowed to use a boat under power to hunt bay ducks like 
scaup and scoters, which are easier to take from a moving boat. The 
same commenter added that they assumed if something was not listed 
specifically as prohibited under this section, then it is allowed, such 
as traditional methods like use of bird nets or bolos.
    Service Response: The current regulations do not prohibit hunting 
from a boat under power, but do prohibit using a boat to drive or 
concentrate birds. In addition, the use of bird nets or bolos are not 
prohibited harvest methods at this time.
    One respondent requested that regulations be added to prohibit 
subsistence hunters from commercially guiding other subsistence 
hunters, especially in regard to sea ducks.
    Service Response: Commercial guiding is governed by State 
regulations, so no action is being taken under these Federal 
    One commenter requested that it be made clear that the sale or 
trade of migratory birds and their parts taken under this Part is 
    Service Response: We concur. This is already addressed under Sec.  
92.6 of the Procedural Regulations.

Section 92.32 Subsistence Migratory Bird Species

    Because of the wide-ranging views and comments we received on this 
subject, we have responded to the concerns of the public at the end of 
this summary of public comments (Sec.  92.32).
    Two commenters requested that any species appearing on the BCC list 
be removed from those open to subsistence harvest in 2003, because they 
may be threatened. One of these commenters further suggested that the 
harvest should be limited to bird species for which population levels 
and harvest levels are known and can be monitored, and that birds with 
little population information should be protected from harvest. The 
other commenter suggested allowing an incidental/accidental harvest 
(less than 1% of the population) of birds taken resulting from hunter 
misidentification. They also stated that if these BCC birds are allowed 
to be harvested, then a massive educational campaign should be launched 
to promote conservation of these species by redirecting harvest efforts 
to the more viable species.
    Two commenters deferred to the expertise of the Service and the Co-
management Council on evaluating the effects of the subsistence harvest 
on the 23 species in question.
    One individual was alarmed and concerned over the number of nongame 
species included in this hunt, especially without written records of 
past subsistence harvest. They recommended that the following taxonomic 
families be removed from the harvest list: Gaviidae (loons), 
Podicipedidae (grebes), Charadriidae (plovers), Haematopodidae 
(oystercatchers), and Scolopacidae (sandpipers), as well as the 
following species: all terns, red-legged kittiwakes, ivory gulls, 
whiskered auklets, and all owls except snowy owls. The commenter 
further questioned why the Service would bother identifying species of 
conservation concern only to foster the hunting of the same species.
    One commenter requested that 13 of the 23 species be deleted from 
the subsistence harvest list because of their presence on the Alaska 
Audubon Watchlist. These species include: red-throated and yellow-
billed loons, red-faced cormorants, Pacific golden plovers, black 
oystercatchers, bristle-thighed curlews, Hudsonian and marbled godwits, 
black turnstones, buff-breasted sandpipers, red-legged kittiwakes, 
Aleutian terns, and whiskered auklets. The recommendation was for the 
Service to take a precautionary approach and protect these species from 
harvest until it can be demonstrated that a subsistence harvest would 
not jeopardize existing population levels.
    Two individuals requested that all 23 species of conservation 
concern should be removed from harvest because all races of residents 
are allowed to hunt. One commenter added that allowing these species to 
be taken would be a breach of faith with generations of 
conservationists that have struggled to make a place for large edible 
birds in our world. The second commenter explained that any additional 
harvest for some populations that have undergone a decline over recent 
years, such as mid-continental white-fronted geese in northwest Alaska, 
should not be taken lightly. And that with virtually no constraints in 
place under the proposed regulations, both Natives and non-Natives will 
take full advantage of birds that congregate at open water during 
spring migration, regardless of actual need for sustenance.
    One respondent expressed concern that a long list of migratory 
birds is being institutionalized into regulations in the absence of 
past population or harvest information. They also stated that no 
species of conservation concern should be allowed for harvest except 
under strict controls in special cases. Also, the Service should be 
required to publish such a list annually and seek Native involvement in 
recovery efforts.
    One commenter from the Yukon-Kuskokwim Delta was against removing 
birds from the harvest list because the idea of limiting species hunted 
to what is considered game birds is contrary to the treaty that says 
the hunt will be customary and traditional. There have

[[Page 43021]]

been times that all hunters in a village died from influenza, 
diphtheria, small pox, and tuberculosis. During these times, it was 
necessary for women and children to take nongame birds. This led to a 
continued use as a way to remember the past. There is no large take of 
these birds. Only a few elders may take them these days and this will 
likely not expand to any level of concern. In most cases the birds 
listed are taken more often by gulls than by humans. The Native people 
of western Alaska have always hunted birds in the spring. ``When the 
ice is rotten and you can't go after sea mammals or fish, God has 
provided birds that fly to us.''
    One respondent from the Seward Peninsula/Norton Sound area stated 
that they traditionally harvest 16 of the 23 species of concern; and 
that, they would not support removing any of these species from the 
harvest list until ample time is given to document evidence of 
traditional and current harvest.
    Two commenters requested that all 22 species on the BCC list, as 
well as an additional 5 species (Aleutian Canada geese, common and king 
eiders, long-tailed ducks, and black scoters) should be removed from 
the subsistence harvest. These additional five species are on the 
Alaska Audubon Watchlist.
    Two commenters requested that the lists of birds open to harvest 
should be smaller and more area specific, with a clear distinction 
between those species that can be hunted and those whose eggs may be 
gathered. The commenter recognized the importance of subsistence 
harvest traditions, and felt that those who have traditionally 
harvested are in the best position to identify the most important 
species and incorporate this information on a regional or local basis 
into the harvest species list.
    One commenter mentioned that legalizing the take of birds on the 
BCC and overlapping Audubon Alaska Watchlist sets back years of 
conservation efforts. At least 19 of the BCC birds overlap with the 
Watchlist because they are undergoing population declines, have small 
breeding populations, and/or have a very limited breeding distribution. 
Special consideration should be given to these species, especially 
since subsistence-caused declines may lead to costly management 
actions, litigation, or other undesirable results.
    One commenter from the Kotzebue region supports removal of the 
seabird species listed as birds of conservation concern. People don't 
hunt seabirds in this area, and the other species in question are only 
taken when there is no other food source, or if an elder asks for it. 
The BCC seabird species are not considered everyday food, but from time 
to time an elder craves certain foods, often associated with a 
particular season. The commenter expressed that the declines noted in 
these particular birds are more caused by natural predators such as 
jaegers (``wolves of the sky''), bears, and foxes. The commenter 
suggests that predator control would allow these species to increase.
    One respondent was frustrated because the Service has belatedly 
introduced concerns for 23 of the species proposed for spring and 
summer hunting. Despite repeated requests over the past 2 years, the 
Service is only now explicitly identifying which species are of concern 
in this regulatory process. The Co-management Council was not accorded 
an opportunity to thoughtfully review these species and reasons for 
concern because the full list was not declared and no substantive 
briefing material was provided for most species. This precluded 
effective dialogue with subsistence users and regional co-management 
committees, and recommendations from the Co-management Council. An even 
more important problem, considering the current national review of 
these regulations, is the incomplete and inadequate information in the 
Federal Register or other documents on the basis for concerns about 
these 23 species. The Service especially solicits public opinions on 
whether they should be hunted. Presumably, the most valuable comments 
will come from agencies, public interest groups, and individuals that 
evaluate the status of bird populations in relation to current and 
future harvests. However, readers do not have access to available 
source documents that will provide information necessary to form sound 
opinions, raising concern that commenters will simply ``vote'' yes or 
no based on subjective assumptions or their dispositions on subsistence 
or hunting in general.
    The same commenter further adds that in the Supplemental 
Information, it states that 22 of these species are on regional or 
national lists of Birds of Conservation Concern (BCC). The Service 
published the long-awaited ``Birds of Conservation Concern 2002'' in 
December. Essentially, this document only contains BCC lists by 
national and regional categories, a description of criteria that were 
used for listing, and references to some of the source documents on 
which listings were based. In some cases, there are no formal source 
documents--the listings were based on consultations with experts and 
regional staff. In other cases, the reader has to find and consult a 
wide array of documents, ranging from field survey reports and regional 
summaries to continental conservation plans by the major bird 
initiatives (Partners in Flight, U.S. Shorebird Conservation Plan, 
North American Waterbird Conservation Plan) and regional step-down 
plans. This referencing approach does not provide reasonable public 
access to salient information on the status of populations from which 
the public can assess potential effects of subsistence hunting. Given 
the disparate level of available information, data, and details 
associated with these species of concern, together with the 
insufficient compilation and synthesis of materials, the commenter 
strongly recommended that the Service develop a summary that includes 
an objective analysis of these species, along with the strengths and 
weaknesses of available supporting data. In the development of these 
comments, the respondent not only encountered difficulty finding status 
information on the 23 highlighted species, but also found that the 
quality of information was often poor and subjective. The Supplemental 
Information says that the 22 BCC species proposed for hunting were 
listed because they are ``at risk due to inherently small populations 
or restricted ranges, severe population declines, or imminent 
threats,'' yet the respondent found no estimates of population size or 
speculations on orders of magnitude; little or no reliable information 
on population trends; and poor information on size and changes in 
seasonal ranges. The descriptions of perceived threats to populations 
were particularly vague, subjective, and in some cases prejudicial 
(e.g., degradation of winter habitat, exposure to contaminants, and 
seasonal occurrence in foreign countries). In most cases, there was 
little evidence that threats were imminent or substantial for the 
species. The respondent rarely found specific information from which to 
determine whether the population, range, or threat criteria for BCC 
species were met. While the respondent recognized that inadequate 
information could be reason enough for pursuing conservation actions, 
they preferred to have more definitive information with which to make 
this assessment. To this end, the respondent recommended that the 
Service develop strategies and timelines for obtaining information with 
which to make responsible decisions concerning subsistence harvests of 
species of concern.
    Loons--Two commenters requested that all loon species be removed 

[[Page 43022]]

the subsistence harvest because of identification problems between red-
throated and yellow-billed loons and common, Pacific, and arctic loons.
    One commenter requested that all loons be removed from the harvest 
list because, even if there may not be a biological reason to do so 
now, in 20 years there will be, and by then the users will say ``we 
have done this for a long time'' so it is better for us to stop it now. 
The commenter added that most places are trying to save loons while the 
Service is allowing a certain few to harvest them.
    Red-throated Loons--One commenter stated that a few people in the 
Aleutian/Pribilof Islands gather these eggs, but likely have little or 
no effect on the population of these species, and recommended that an 
accurate account of the harvest be made to support the stance that it 
is minor relative to the overall population.
    One commenter supported red-throated loons' being left on the 
harvest list, citing that subsistence harvests on the North Slope are 
never large and loons figure prominently in several of their dances and 
legends. Aerial breeding pair surveys on the North Slope show that the 
red-throated loon population is increasing.
    One commenter requested that red-throated loons be removed from 
harvest until their population is stabilized, citing a more than 50% 
decline in the last 20 years, according to the Audubon Alaska 
    Yellow-billed Loons--One commenter stated that a few people in the 
Aleutian/Pribilof Islands gather these eggs, but likely have little or 
no effect on the population of these species, and recommended that an 
accurate account of the harvest be made to support the stance that it 
is minor relative to the overall population.
    One commenter supported yellow-billed loons' being left on the 
harvest list, citing that subsistence harvests on the North Slope are 
never large and loons figure prominently in several Native dances and 
legends. Aerial breeding pair surveys on the North Slope show that the 
yellow-billed loon population is currently stable.
    Trumpeter Swans--One commenter provided a detailed statement 
justifying why Trumpeter Swans should be removed from the list of birds 
open to harvest in 2003. Cited was the ongoing 70-year effort to 
restore the population in North America and how the population had only 
grown to 18,000 by the end of the 20th century. Concern was expressed 
that trumpeters could be subject to population reductions if taken or 
regularly disturbed during the nesting and brood rearing period, 
because of certain breeding behavior characteristics, such as the way 
they pair, select, and defend nesting territories, and their inability 
to renest successfully at high latitudes. Trumpeters have shown their 
best population growth in Alaska, but the people in this area are 
increasing rapidly and do not have a long-established, consistent 
pattern of use of these birds. In addition, threats on the wintering 
grounds in the lower 48 states such as urban sprawl, agricultural 
development, and lead poisoning threaten the overall security of the 
population, warranting protection of these birds from subsistence 
harvest in Alaska.
    One respondent recognized trumpeter swans as a subsistence 
resource, but did not support a spring and summer open season at this 
time. The principal concerns expressed were: (1) Insufficient 
information on the extent of recent subsistence harvest; (2) the 
current lack of regulations limiting harvest quantity by qualified 
hunters; and (3) the potential for overharvest of this small population 
with low productivity.
    One individual requested that trumpeter swans be protected from 
harvest with the justification that it has already been proved that it 
is not the grace of God but the grace of man that has allowed a tiny 
population to increase and repopulate the nesting territories where 
spring hunting will be allowed.
    Aleutian Canada Geese--One respondent expressed that if the 
prohibition on taking Aleutian Canada Geese is ever extended to the 
Yukon-Kuskokwim Delta, it would be very difficult for hunters to 
distinguish this species from other subspecies.
    King eiders--One individual requested that king eiders be 
restricted in the harvest, stating that North American numbers have 
been in a steady decline for the past several years. There is so much 
concern that Senator Ted Stevens just appropriated $100,000 to study 
the decline of king eiders on the North Slope. To help protect the 
remaining numbers, there needs to be a restricted take on the North 
Slope, particularly in the Barrow region.
    Canvasbacks--One individual requested that a one bird or no bird 
limit be placed on canvasbacks in the subsistence hunt, stating that 
all people should share in the conservation of this great bird.
    Shorebirds--One respondent from the Yukon-Kuskokwim Delta explained 
that young boys have traditionally hunted many of the smaller birds on 
the subsistence harvest list, especially shorebirds such as sandpipers, 
plovers, curlews, and godwits. It is known that these boys bring their 
catch to their grandmothers to cook and eat, which has been done for 
generations. Elders in the villages in the past harvested many of these 
shorebird species for subsistence foods, especially when these birds 
are migrating along the shoreline in flocks.
    Black Oystercatchers--One commenter stated that a few people in the 
Aleutian/Pribilof Islands gather these eggs, but likely have little or 
no effect on the population of this species, and recommended that an 
accurate account of the harvest be made to support the stance that it 
is minor relative to the overall population. In addition, 10 
subsistence hunter testimonials were received from the Aleutian/
Pribilof region stating that some people do gather black oystercatcher 
eggs, but that the limited take likely has little to no effect on the 
population. On the other hand, one commenter expressed special local 
concern for this species because of its small population (2,500), 
limited range, and vulnerability to disturbance at coastal breeding 
sites and from oil spills. The Kodiak Archipelago is home to the 
largest concentration of black oystercatchers and should be afforded 
special protection from both hunting and egg gathering. Further cited 
was the oystercatcher's low reproductive rate, inability to re-nest, 
and vulnerability to egg gathering.
    Red-legged Kittiwakes--Sixteen hunter testimonials were received 
stating that this species is customarily and traditionally harvested in 
the Pribilof Islands (primarily St. George Island), with minimum 
impacts to the population. This harvest is done with no waste and there 
is no reason to close or restrict the harvest. These hunters 
recommended an accurate count of the birds and eggs taken be maintained 
to support the stance that the take is very minor in relation to the 
overall species population. One St. George hunter specified that he 
takes less than 60 kittiwakes per season, consisting of a mix of black-
legged and red-legged kittiwakes, and shares these birds with another 
household. Interviews of 11 kittiwakes hunters indicated that they take 
an average of 37 red-legged kittiwakes each per season. To demonstrate 
the customary and traditional nature of these hunts, one commenter from 
St. George explained, ``I've been involved with red-legged kittiwake 
hunts since I was 6 years old. I was a gatherer for my grandfather; he 
shot the birds on the wing and I

[[Page 43023]]

gathered them up from where they had fallen. I did this for him until I 
was 10 years old and the following year I started hunting by myself and 
have done so ever since. I hunt the same areas as my grandfather did 
and spend no more time in the hunts than we did 44 years ago, which 
indicates to me that the abundance has not changed very much or not at 
    Arctic and Aleutian Terns--One commenter requested that both 
species be protected from the subsistence harvest and that they be 
treated together since they nest commonly in mixed colonies, and eggs 
from the two species are not readily distinquishable. Decreases in the 
arctic tern population are widely reported but poorly documented in 
arctic regions; however, large declines have occurred in Greenland 
where a traditional harvest is unregulated. In Alaska, recent declines 
have been reported from the Gulf of Alaska and coastal sites along the 
Beaufort Sea, while waterfowl surveys of the North Slope and Yukon-
Kuskokwim Delta have shown increases. Perennial harvesting of adults 
could have serious impacts on local populations. The 30-day closures 
may provide some protection for the eggs, but they are probably set too 
late to provide adequate protection in the Aleutians and Kodiak.
    Owls--One commenter expressed concern that the residents of Tok may 
dramatically affect local owl populations with the subsistence harvest. 
The commenter sites a Service management plan for Alaska's raptors that 
states, ``with few exceptions, we are woefully ignorant and lack 
sufficient information to make management decisions or assess 
population status of raptors based on scientific data.'' The commenter 
requested that all owl species be removed from harvest except in areas 
where their customary and traditional use has been documented and shown 
not to impact Statewide population levels.
    One commenter requested that all owls be removed from the harvest 
list because, even if there may not be a biological reason to do so 
now, in 20 years there will be, and by then the users will say ``we 
have done this for a long time,'' so it is best to stop it now. The 
commenter added that most places are trying to save owls while the 
Service is allowing a certain few to harvest them.
1. What Measurable Impacts Do You Think a Limited Subsistence Harvest 
Would Have on Populations of These Species?
    Two respondents answered that for any species with very small 
populations, any harvest added to normal mortality could be 
significant. The Service would be ill-advised to authorize harvest of 
species with populations this small, particularly given that birds 
harvested in the spring/summer have survived the prior winter and in 
many cases are likely breeders. Specifically in regard to shorebirds, 
the commenter responded that biology has not been studied with respect 
to the ability of populations to sustain harvests.
    One individual responded that the Service lacks the ability to 
determine the impact of hunting on these species.
    In regard to arctic terns, one commenter responded that the killing 
of adults could have serious impacts on local populations.
2. Which Bird Species Are More Important in Terms of Food Value and/or 
Customary and Traditional Uses?
    One commenter claimed not to have found evidence that harvesting 
arctic terns has particular cultural significance, nor did the 
commenter find evidence that harvesting occurs in ways that minimize 
    One individual stated that these birds are not important species in 
the hunt for food, but if hunting them were legal, that would encourage 
a try at taking them.
3. Apart From Their Designation as ``Birds of Conservation Concern,'' 
Are There Particular Reasons Why Subsistence Harvest Should Be 
Restricted or Closed for Any of These Species?
    Two respondents answered that there is the potential for adverse 
public reaction if it becomes widely known that species that are rare, 
vulnerable, or declining are being harvested, particularly if such 
hunts are sanctioned by management authorities. In addition, some of 
these species are charismatic such as puffins, loons, terns, and owls, 
which only increases the sensitivity of such decisions. Populations of 
species that are open for harvest must be sufficiently large to justify 
any harvest.
    One individual responded that these are all species trying to find 
a place in a world dominated by man and whose population levels are 
substantially lower than when they were first described.
4. In the Event that Subsistence Hunting were Allowed for Some or All 
of These Species, Do You Believe that Certain Conditions Should be 
Imposed to Ensure that the Population Statuses of these Species are 
Maintained or Improved? If so, What Would you Recommend?
    One commenter expressed that this would be like putting the cart 
before the horse, because as subsistence hunters, nothing is wasted and 
there is no overhunting even if an abundance of birds present 
themselves during the hunt.
    One individual responded that with the exception of Trumpeter 
swans, the Service lacks the ability to determine if the population of 
any of these birds is being maintained or improved.
    One respondent suggested that subsistence users should participate 
in a registration system to provide a means to follow up with harvest 
surveys and more accurately determine the composition and levels of 
subsistence harvests.
    One respondent suggested that harvest quotas and bag limits should 
be required in each subsistence harvest area to avoid overharvests.
    Service Response: Subsistence hunting of migratory birds was 
authorized by recent amendments to the migratory bird treaties with 
Canada and Mexico. A proposed rule was developed after extensive 
consultation with the interested parties in Alaska through the newly 
formed Co-management Council and other interested constituencies. 
Comments have been received and reviewed regarding this proposal. The 
main issue to emerge during development was the number and species of 
migratory birds to be included in the list of birds open to subsistence 
harvest for the coming year. The Service highlighted 23 species of 
birds in the proposed rule for public comment, including 22 species 
that also occur on the Service's list of Birds of Conservation Concern 
(BCC), and the Trumpeter Swan.
    Based on the comments received and internal Service analysis, we 
have decided to remove the following species from the list of species 
open to subsistence take for the reasons stated:
    Yellow-billed Loon: Yellow-billed Loons have a limited distribution 
in Alaska and are found primarily along the Arctic Coastal Plain. The 
highest density of breeding Yellow-billed Loons are found within the 
National Petroleum Reserve. Yellow-billed Loons have a low relative 
abundance, and the Alaska population is estimated to be about 2,500 
birds. Threats to Yellow-billed

[[Page 43024]]

Loons include oil and gas development, oil pollution, contaminants, 
gill-net fisheries, and overharvest. The Service is in the process of 
completing a Status Assessment for this species.
    Trumpeter Swan: This species was significantly reduced and 
extirpated from much of its range during the 19th Century. The current 
world population is between 20,000 and 25,000, approximately 90% of 
which summer and nest in Alaska. The population is increasing and 
active efforts are underway to restore breeding populations to parts of 
the former range. However, in recent years, significant losses caused 
by lead poisoning have been documented in that portion of the winter 
range associated with Alaskan breeding Trumpeter Swans.
    Pacific Golden-plover: The Pacific Golden-plover is of primary 
importance within the Alaska Region because of its small population 
size, 16,000 birds, and because its North American breeding range is 
restricted to Alaska (Johnson and Connors 1996). This species occurs 
only in western Alaska. Like the American Golden-plover, the species is 
especially susceptible to hunting because of its high visibility and 
tendency to remain near humans when they enter its territory.
    American Golden-plover: The American Golden-plover is listed as a 
species of moderate concern in the Alaska Shorebird Plan (ASWG 2000) 
and of high concern within the U.S. Shorebird Conservation Plan (Brown 
et al. 2001). This ranking reflects a population decline and high 
threats to the species on nonbreeding areas. We believe its removal 
from the list is appropriate due to possible misidentification problems 
with the Pacific Golden-plover mentioned above.
    Bristle-thighed Curlew: This species is of interest because it 
nests only in Alaska in 2 relatively small, disjunct regions, the 
Andreafsky Wilderness near the north Yukon Delta and the central Seward 
Peninsula. The total breeding population is among the smallest of all 
shorebirds and estimated at 3,200 pairs (Handel et al. 1990). Numerous 
lines of evidence suggest the population is being affected by 
anthropogenic factors on areas outside the nesting grounds (Marks and 
Redmond 1994, Gill 1998). The Bristle-thighed Curlew is listed as a 
species of high concern within the U.S. and Alaska Shorebird 
Conservation Plans. This ranking reflects a very low population size 
and restricted breeding range.
    Hudsonian Godwit: Alaska is important to this species because as 
much as 30% of the population may breed in the region (McCaffery 1996; 
McCaffery and Harwood in press). Recent findings suggest Alaska birds 
may warrant subspecies status (Haig et al. 1997). The Hudsonian Godwit 
is listed as a species of high concern within the U.S. and Alaska 
Shorebird Conservation Plans. This ranking reflects a low population 
size, threats on nonbreeding areas, and restricted breeding and non-
breeding distributions.
    Marbled Godwit: Alaska hosts a small (probably <3,000 birds), 
highly disjunct breeding population of sufficiently different 
morphology to warrant subspecies (Limosa fedoa beringiae) designation 
(Gibson and Kessel 1989). The Marbled Godwit is listed as a species of 
high concern within the U.S. and Alaska Shorebird Conservation Plans. 
This ranking reflects a declining population and threats on breeding 
and nonbreeding areas.
    Buff-breasted Sandpiper: The regional importance of this species is 
based on the high proportion of breeding birds in the State and the 
marked decline in the population, which is now thought to number less 
than 15,000 birds (Lanctot and Laredo 1994, R. Lanctot, pers. comm.). 
The Buff-breasted Sandpiper is listed as a species of high concern 
within the U.S. and Alaska Shorebird Conservation Plans. This ranking 
reflects a declining and extremely low population size, threats on 
nonbreeding areas, and a restricted nonbreeding range.
    Whimbrel: The Whimbrel is of primary importance in the Alaska 
Region because the majority of a subspecies (Numenius phaeopus 
rufiventris) breeds in Alaska (Gibson and Kessel 1997; Engelmoer and 
Roselaar 1998). The species population is estimated at about 60,000 
birds, of which as many as 40,000 occur in Alaska. The Whimbrel is 
listed as a species of high concern within the U.S. and Alaska 
Shorebird Conservation Plans. This ranking reflects a declining and low 
population size. The Service's determination is based primarily on the 
fact that this species overlaps the distribution of the Bristle-thighed 
Curlew and we believe it will be difficult, if not impossible, for 
subsistence hunters to distinguish between the 2 species.
    Harvest of these 9 species will not be authorized in 2003. Harvest 
will be allowed on the other 15 species of birds listed in the proposed 
rule as being of conservation concern, as well as 2 species recommended 
by the State of Alaska, the Northern Hawk-owl and Wandering Tattler. 
However, these species will be given additional consideration by Co-
management Council for over the coming year. We intend the Co-
management Council to focus its attention on determining the importance 
of the harvest of these species for subsistence purposes, as well as 
any information on status that would be useful in future deliberations. 
In the case of the Bar-tailed Godwit, which we understand is an 
important species in the subsistence harvest, we are concerned about 
incidental take of 2 similar species-Hudsonian and Marbled Godwits-for 
which no harvest will be authorized. The Co-management Council should 
address actions that have, or can be, taken to minimize incidental take 
of the Hudsonian and Marbled godwits in the event that the Bar-tailed 
Godwit remains on the list submitted to the Service for consideration 
of subsistence harvest in future years.

Section 92.33 Region-specific regulations

    One commenter from the North Slope requested that the season for 
the Northern Unit should be amended to include a specific season for 
king and common eiders: open April 2-June 6, and July 7--August 31, and 
closed June 7--July 6. This change will allow for customary and 
traditional eider harvest practices.
    Service Response: We concur with this request and have added this 
season under Sec.  92.33 (g)(2) in the Final Rule.
    One respondent recommended the following changes in the 
regulations: Aleutian/Pribilofs Region, Section (2): clarify that 
Unalaska is included in the Central Unit (e.g., ``* * * to and 
including Unalaska''). Section (3): clarify that Attu is in the Western 
    Service Response: We have not made the requested changes regarding 
geographical boundaries. These regulations do not have distinct 
geographic boundaries for harvest areas, but instead define included 
community subsistence harvest areas. For example, the village of 
Nuiqsut could hunt on both sides of the Colville River; however if its 
members hunt as far east as the Arctic National Wildlife Refuge, it 
would have to follow the Eastern Unit season dates.
    One commenter representing a Yukon-Kuskokwim village suggested that 
the nesting closure period for the Yukon-Kuskokwim region be simplified 
to parallel the Bristol Bay region: June 15-July 15.
    Service Response: The Co-management Council struggled to set up a 
flexible system to adjust the dates of the 30-day harvest closure 
around annual seasonal variations, to be determined by the Alaska 

[[Page 43025]]

Director or his designee, after consultation with local subsistence 
users and the region's Waterfowl Conservation Committee. Simplifying 
the closure dates to those requested would eliminate the flexibility 
and local consultation benefits of the current regulations.

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.), 
which 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.''

Effective Date

    Under the Administrative Procedure Act, our normal practice is to 
publish rules with a 30-day delay in effective date. But in this case, 
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 
for the following reason. The Service Regulations Committee approved 
the April 2, 2003, harvest start date at a phone conference on March 
31, 2003, and publication of this rule well after April 2 has delayed 
the actual commencement of the legal harvest season. We need to open 
the harvest as close as possible to the original agreed-upon date. The 
expediency of the publication of this first set of annual regulations 
will ensure prompt follow-through on the process to start the first 
legally recognized spring/summer subsistence migratory bird harvest 
season in Alaska.

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
document is not a significant rule subject to OMB review under 
Executive Order 12866.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. This rule is administrative, technical, and 
procedural in nature, establishing the procedures for implementing 
spring and summer subsistence harvest of migratory birds as provided 
for in the amended Canada and Mexican Treaties. The rule does not 
provide for new or additional hunting opportunities and therefore will 
have minimal economic or environmental impact.
    This rule benefits those participants who engage in the subsistence 
harvest of migratory birds in Alaska in two identifiable ways: First, 
participants receive the consumptive value of the birds harvested, and 
second, participants get the cultural benefit associated with the 
maintenance of a subsistence economy and way of life. The Service can 
estimate the consumptive value for birds harvested under this rule but 
does not have a dollar value for the cultural benefit of maintaining a 
subsistence economy and way of life.
    The economic value derived from the consumption of the harvested 
migratory birds has been estimated using the results of a paper by 
Robert J. Wolfe titled ``Subsistence Food Harvests in Rural Alaska, and 
Food Safety Issues'' (August 13, 1996). Using data from Wolfe's paper 
and applying it to the areas that will be included in this process, a 
maximum economic value of $6 million is determined. 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.). A 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. The Service has no reason to 
believe that this rule will lead to a disproportionate distribution of 
    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 

[[Page 43026]]

Unfunded Mandates Reform Act

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

Paperwork Reduction Act

    This rule has been examined under the Paperwork Reduction Act of 
1995 and has been found to contain no information collection 
requirements. We are, however, beginning the process to request OMB 
approval of associated voluntary annual household surveys used to 
determine levels of subsistence take. In the March 3, 2003, Federal 
Register, we published a notice of intent to submit the Alaska 
Subsistence Harvest Survey Information Collection Forms to OMB for 
approval (68 FR 10024) under the Paperwork Reduction Act, with a 60-day 
public comment period. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

Federalism Effects

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

Civil Justice Reform--Executive Order 12988

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

Takings Implication Assessment

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

Government-to-Government Relations With Native American Tribal 

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), and Executive Order 13175, 65 FR 67249 
(November 6, 2000), concerning consultation and coordination with 
Indian Tribal Governments, we have consulted with Alaska tribes, 
evaluated the rule for possible effects on tribes or trust resources 
and have determined that there are no significant effects. This rule 
establishes procedures by which the individual tribes in Alaska will be 
able to become significantly involved in the annual regulatory process 
for spring and summer subsistence harvesting of migratory birds and 
their eggs. The rule will legalize the subsistence harvest 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 conducted formal 
consultations to ensure that actions resulting from these regulations 
would not likely jeopardize the continued existence of endangered or 
threatened species or result in the destruction or adverse modification 
of their critical habitat. Findings from these consultations are 
included in a biological opinion that concluded that the regulations 
are not likely to adversely affect any endangered or threatened 
species. Additionally, these findings may have caused modification of 
some regulatory measures previously proposed, and the final rule 
reflects such modifications. Our biological opinions resulting from the 
section 7 consultation are public documents available for public 
inspection at the address indicated under the caption ADDRESSES.

National Environmental Policy Act Consideration

    The annual regulations and options were considered in the 
Environmental Assessment, ``Managing Migratory Bird Subsistence Hunting 
in Alaska: Hunting Regulations for the First Legal Spring/Summer 
Harvest in 2003'' issued August 7, 2002, modified, with a Finding of No 
Significant Impact issued May 7, 2003. Copies are available from the 
address indicated under the caption ADDRESSES.

Energy Supply, Distribution or Use (Executive Order 13211)

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

List of Subjects

50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

50 CFR Part 21

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

50 CFR Part 92

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

[[Page 43027]]

For the reasons set out in the preamble, we are amending title 50, 
chapter I, subchapters B and F, of the Code of Federal Regulations as 


1. The authority citation for part 20 continues to read as follows:

    Authority: 16 U.S.C. 703-712 and 742 a-j; Pub. L. 106-108.

2. Amend Sec.  20.2 by adding paragraph (e) to read as follows:

Sec.  20.2  Relation to other provisions.

* * * * *
    (e) Migratory bird subsistence harvest in Alaska. The provisions of 
this part, except for paragraphs (a) through (d) of this section, are 
not applicable to the regulations governing the migratory bird 
subsistence harvest in Alaska (part 92 of this subchapter) unless 
specifically referenced in part 92 of subchapter G of this chapter.

3. Revise Sec.  20.22 to read as follows:

Sec.  20.22  Closed seasons.

    No person may take migratory game birds during the closed season 
established in this part except as provided in parts 21 and 92 of this 

4. Revise Sec.  20.132 to read as follows:

Sec.  20.132  Subsistence use in Alaska.

    In Alaska, any person may, for subsistence purposes, take, possess, 
and transport, in any manner, from September 1 through April 1, snowy 
owls and cormorants for food and their skins for clothing, but birds 
and their parts may not be sold or offered for sale.


5. The authority citation for part 21 continues to read as follows:

    Authority: Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); 
Pub. L. 106-108.

6. Revise Sec.  21.11 to read as follows:

Sec.  21.11  General permit requirements.

    No person may take, possess, import, export, transport, sell, 
purchase, barter, or offer for sale, purchase, or barter, any migratory 
bird, or the parts, nests, or eggs of such bird except as may be 
permitted under the terms of a valid permit issued pursuant to the 
provisions of this part and part 13 of this chapter, or as permitted by 
regulations in this part, or part 20 of this subchapter (the hunting 
regulations), or part 92 of subchapter G of this chapter (the Alaska 
subsistence harvest regulations). Birds taken or possessed under this 
part in ``included areas'' of Alaska as defined in Sec.  92.5(a) are 
subject to this part and not to part 92 of subchapter G of this 


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

    Authority: 16 U.S.C. 703-712.

Subpart A--General Provisions

8. In subpart A amend Sec.  92.4 by revising the definition for 
``Migratory bird'' to read as follows:

Sec.  92.4  Definitions.

* * * * *
    Migratory bird, for the purposes of this part, means the same as 
defined in Sec.  10.12 of subchapter B of this chapter. Species 
eligible to harvest are listed in Sec.  92.32.
* * * * *

9. In subpart A amend Sec.  92.5 by revising paragraphs (b) and (d) to 
read as follows:

Sec.  92.5  Who is eligible to participate?

* * * * *
    (b) Excluded areas. Village areas located in Anchorage, the 
Matanuska-Susitna or Fairbanks North Star Boroughs, the Kenai Peninsula 
roaded area, the Gulf of Alaska roaded area, or Southeast Alaska 
generally do not qualify for a spring or summer harvest. Communities 
located within one of these areas may petition the Co-management 
Council through their designated regional management body for 
designation as a spring and summer subsistence harvest area. The 
petition must state how the community meets the criteria identified in 
paragraph (c) of this section. The Co-management Council will consider 
each petition and will submit to the Service any recommendations to 
designate a community as a spring and summer subsistence harvest area. 
The Service will publish any approved new designations of communities 
as spring and summer subsistence harvest areas in subpart D of this 
part. All areas outside Alaska are ineligible.
* * * * *

    (d) Participation by permanent residents of excluded areas. 
Immediate family members who are permanent residents of excluded areas 
may participate in the customary spring and summer subsistence harvest 
in a village's subsistence harvest area with the permission of the 
village council, where it is appropriate to assist indigenous 
inhabitants in meeting their nutritional and other essential needs or 
for the teaching of cultural knowledge to or by their immediate family 
members. Eligibility for participation will be developed and 
recommended by the Co-management Council and adopted or amended by 
regulations published in subpart D of this part.

10. In subpart A revise Sec.  92.6 to read as follows:

Sec.  92.6  Use and possession of migratory birds.

    Harvest and possession of migratory birds must be done using 
nonwasteful taking. You may not take birds for purposes other than 
human consumption. You may not sell, offer for sale, purchase, or offer 
to purchase migratory birds, their parts, or their eggs taken under 
this part. Nonedible by-products of migratory birds taken for food may 
be used for other noncommercial purposes only by individuals qualified 
to possess those birds. You may possess migratory birds, their parts, 
and their eggs, taken under this part, only if you are an eligible 
person as determined in Sec.  92.5.

Subpart B--Program Structure

11. In subpart B amend Sec.  92.10 by revising paragraph (b)(1) to read 
as follows:

Sec.  92.10  Alaska Migratory Bird Co-management Council.

* * * * *
    (b) * * *
    (1) The Federal and State governments will each seat one 
representative. The Federal representative will be appointed by the 
Alaska Regional Director of the U.S. Fish and Wildlife Service, and the 
State representative will be appointed by the Commissioner of the 
Alaska Department of Fish and Game. Regional partner organizations may 
seat 1 representative from each of the 12 regions identified in Sec.  
* * * * *

12. In subpart B, amend Sec.  92.11 by revising paragraph (a) and the 
introductory text of paragraph (b) to read as follows:

Sec.  92.11  Regional management areas.

    (a) Regions identified. To allow for maximum participation by 
residents of subsistence eligible areas, the Alaska Regional Director 
of the Service established 12 geographic regions based on common 
subsistence resource use patterns and the 12 Alaska Native regional 
corporation boundaries established under the Alaska Native Claims 
Settlement Act. Despite using the Alaska Native regional corporation 
boundaries, we are not working directly

[[Page 43028]]

with the regional corporations in this program and are instead working 
with the Alaska Native nonprofit groups and local governments in those 
corresponding regions. You may obtain records and maps delineating the 
boundaries of the 12 regions from the U.S. Department of the Interior, 
Bureau of Land Management, Alaska State Office, 222 West 7th Ave., No. 
13, Anchorage, AK 99513. The regions are identified as follows:

(1) Aleutian/Pribilof Islands;
(2) Kodiak Archipelago;
(3) Bristol Bay;
(4) Yukon/Kuskokwim Delta;
(5) Bering Strait/Norton Sound;
(6) Northwest Arctic;
(7) North Slope;
(8) Interior;
(9) Southeast;
(10) Gulf of Alaska;
(11) Upper Copper River; and
(12) Cook Inlet.
    (b) Regional partnerships. The U.S. Fish and Wildlife Service will 
establish partner agreements with at least 1 partner organization in 
each of the 12 regions. The partner organization identified must be 
willing and able to coordinate the regional program on behalf of all 
subsistence hunters within that region. A regional partner will:
* * * * *

Subpart C--General Regulations Governing Subsistence Harvest

13. In subpart C, add Sec. Sec.  92.20 and 92.21 to read as follows:

Sec.  92.20  Methods and means.

    You may not use the following devices and methods to harvest 
migratory birds:
    (a) Swivel guns, shotguns larger than 10 gauge, punt guns, battery 
guns, machine guns, fish hooks, poisons, drugs, explosives, or 
stupefying substances;
    (b) Shooting from a sinkbox or any other type of low-floating 
device that affords the hunter a means of concealment beneath the 
surface of the water;
    (c) Hunting from any type of aircraft;
    (d) Taking waterfowl and other species using live birds as decoys, 
except for auklets on Diomede Island (Use of live birds as decoys is a 
customary and traditional means of harvesting auklets on Diomede 
    (e) Hunting with the aid of recorded bird calls;
    (f) Using any type of vehicle, aircraft, or boat for the purpose of 
concentrating, driving, rallying, or stirring up of any migratory bird, 
except boats may be used to position a hunter;
    (g) The possession or use of lead or other toxic shot while hunting 
all migratory birds (Approved nontoxic shot types are listed in Sec.  
20.21(j) of subchapter B.);
    (h) Shooting while on or across any road or highway; or
    (g) Using an air boat or jet ski for hunting or transporting 
hunters (Interior Region only).

Sec.  92.21  Emergency closures.

    (a) The Regional Director, after consultation with the Co-
management Council, may close or temporarily suspend any regulation 
established under subparts C or D of this part:
    (1) Upon finding that a continuation of the regulation would pose 
an imminent threat to the conservation of any endangered or threatened 
species or other migratory bird population; and
    (2) Upon issuance of local public notice by such means as 
publication in local newspapers of general circulation, posting of the 
areas affected, notifying the State wildlife conservation agency, and 
announcement on the internet and local radio and television.
    (b) The Service will also announce any such closure or temporary 
suspension by publication of a notice in the Federal Register 
simultaneously with the local public notice referred to in paragraph 
(a)(2) of this section. However, in the event that publishing a Federal 
Register notice simultaneously with the local public notice is 
impractical, we will publish in the Federal Register as soon as 
possible after the steps outlined in paragraph (a) of this section are 
    (c) Any closure or temporary suspension under this section will be 
effective on the date of publication of the Federal Register notice; or 
if such notice is not published simultaneously with the notification 
methods described in paragraph (a) of this section, then on the date 
and at the time specified in the local notification to the public given 
under paragraph (a)(2) of this section. Every notice of closure or 
temporary suspension will include the date and time of the closing, the 
area or areas affected, and the species affected. In the case of a 
temporary suspension, the date and time when the harvest may be resumed 
will also be provided by local notification to the public and by 
publication in the Federal Register as provided for in paragraphs (a) 
and (b) of this section.

Subpart D--Annual Regulations Governing Subsistence Harvest

14. In subpart D, amend Sec.  92.30 by adding an introductory paragraph 
to read as follows:

Sec.  92.30  General overview of the regulations.

    These regulations establish a spring/summer migratory bird 
subsistence harvest in Alaska. The regulations list migratory bird 
species that are authorized for harvest, species that are not 
authorized for harvest, season dates, and dates for a 30-day closure to 
protect nesting birds. The Co-management Council will review and, if 
necessary, recommend modifications to these harvest regulations on an 
annual basis, working within the schedule of the Federal late-season 
regulations for migratory game bird hunting.
* * * * *

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

Sec.  92.31  Migratory bird species not authorized for subsistence 

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

Sec.  92.32  Subsistence migratory bird species.

    You may harvest birds or gather eggs from the following species, 
listed in taxonomic order, within all included regions. When birds are 
listed only to the species level, all subspecies existing in Alaska are 
open to harvest.

(a) Family Gaviidae.

    (1) Red-throated Loon (Gavia stellata).
    (2) Arctic Loon (Gavia arctica).
    (3) Pacific Loon (Gavia pacifica).
    (4) Common Loon (Gavia immer).

(b) Family Podicipedidae.

    (1) Horned Grebe (Podiceps auritus).
    (2) Red-necked Grebe (Podiceps grisegena).

(c) Family Procellariidae.

    (1) Northern Fulmar (Fulmarus glacialis).
    (2) [Reserved].

(d) Family Phalacrocoracidae.

    (1) Double-crested Cormorant (Phalacrocorax auritus).
    (2) Red-faced Cormorant (Phalacrocorax urile).

[[Page 43029]]

    (3) Pelagic Cormorant (Phalacrocorax pelagicus).

(e) Family Anatidae.

    (1) Greater White-fronted Goose (Anser albifrons).
    (2) Snow Goose (Chen caerulescens).
    (3) Lesser Canada Goose (Branta canadensis parvipes).
    (4) Taverner's Canada Goose (Branta canadensis taverneri).
    (5) Aleutian Canada Goose (Branta canadensis leucopareia)--except 
in the Semidi Islands.
    (6) Cackling Canada Goose (Branta canadensis minima)--except no egg 
gathering is permitted.
    (7) Black Brant (Branta bernicla nigricans)--except no egg 
gathering is permitted in the Yukon/Kuskokwim Delta and the North Slope 
    (8) Tundra Swan (Cygnus columbianus).
    (9) Gadwall (Anas strepera).
    (10) Eurasian Wigeon (Anas penelope).
    (11) American Wigeon (Anas americana).
    (12) Mallard (Anas platyrhynchos).
    (13) Blue-winged Teal (Anas discors).
    (14) Northern Shoveler (Anas clypeata).
    (15) Northern Pintail (Anas acuta).
    (16) Green-winged Teal (Anas crecca).
    (17) Canvasback (Aythya valisineria).
    (18) Redhead (Aythya americana).
    (19) Ring-necked Duck (Aythya collaris).
    (20) Greater Scaup (Aythya marila).
    (21) Lesser Scaup (Aythya affinis).
    (22) King Eider (Somateria spectabilis).
    (23) Common Eider (Somateria mollissima).
    (24) Harlequin Duck (Histrionicus histrionicus).
    (25) Surf Scoter (Melanitta perspicillata).
    (26) White-winged Scoter (Melanitta fusca).
    (27) Black Scoter (Melanitta nigra).
    (28) Long-tailed Duck (Clangula hyemalis).
    (29) Bufflehead (Bucephala albeola).
    (30) Common Goldeneye (Bucephala clangula).
    (31) Barrow's Goldeneye (Bucephala islandica).
    (32) Hooded Merganser (Lophodytes cucullatus).
    (33) Common Merganser (Mergus merganser).
    (34) Red-breasted Merganser (Mergus serrator).

(f) Family Gruidae.

    (1) Sandhill Crane (Grus canadensis).
    (2) [Reserved].

(g) Family Charadriidae.

    (1) Black-bellied Plover (Pluvialis squatarola).
    (2) Common Ringed Plover (Charadrius hiaticula).

(h) Family Haematopodidae.

    (1) Black Oystercatcher (Haematopus bachmani).
    (2) [Reserved].

(i) Family Scolopacidae.

    (1) Greater Yellowlegs (Tringa melanoleuca).
    (2) Lesser Yellowlegs (Tringa flavipes).
    (3) Solitary Sandpiper (Tringa solitaria).
    (4) Wandering Tattler (Heteroscelus incanus).
    (5) Spotted Sandpiper (Actitis macularia).
    (6) Upland Sandpiper (Bartramia longicauda).
    (7) Bar-tailed Godwit (Limosa lapponica).
    (8) Ruddy Turnstone (Arenaria interpres).
    (9) Black Turnstone (Arenaria melanocephala).
    (10) Red Knot (Calidris canutus).
    (11) Semipalmated Sandpiper (Calidris pusilla).
    (12) Western Sandpiper (Calidris mauri).
    (13) Least Sandpiper (Calidris minutilla).
    (14) Baird's Sandpiper (Calidris bairdii).
    (15) Sharp-tailed Sandpiper (Calidris acuminata).
    (16) Dunlin (Calidris alpina).
    (17) Long-billed Dowitcher (Limnodromus scolopaceus).
    (18) Common Snipe (Gallinago gallinago).
    (19) Red-necked phalarope (Phalaropus lobatus).
    (20) Red phalarope (Phalaropus fulicaria).

(j) Family Laridae.

    (1) Pomarine Jaeger (Stercorarius pomarinus).
    (2) Parasitic Jaeger (Stercorarius parasiticus).
    (3) Long-tailed Jaeger (Stercorarius longicaudus).
    (4) Bonaparte's Gull (Larus philadelphia).
    (5) Mew Gull (Larus canus).
    (6) Herring Gull (Larus argentatus).
    (7) Slaty-backed Gull (Larus schistisagus).
    (8) Glaucous-winged Gull (Larus glaucescens).
    (9) Glaucous Gull (Larus hyperboreus).
    (10) Sabine's Gull (Xema sabini).
    (11) Black-legged Kittiwake (Rissa tridactyla).
    (12) Red-legged Kittiwake (Rissa brevirostris).
    (13) Ivory Gull (Pagophila eburnea).
    (14) Arctic Tern (Sterna paradisaea).
    (15) Aleutian Tern (Sterna aleutica).

(k) Family Alcidae.

    (1) Common Murre (Uria aalge).
    (2) Thick-billed Murre (Uria lomvia).
    (3) Black Guillemot (Cepphus grylle).
    (4) Pigeon Guillemot (Cepphus columba).
    (5) Cassin's Auklet (Ptychoramphus aleuticus).
    (6) Parakeet Auklet (Aethia psittacula).
    (7) Least Auklet (Aethia pusilla).
    (8) Whiskered Auklet (Aethia pygmaea).
    (9) Crested Auklet (Aethia cristatella).
    (10) Rhinoceros Auklet (Cerorhinca monocerata).
    (11) Horned Puffin (Fratercula corniculata).
    (12) Tufted Puffin (Fratercula cirrhata).

(l) Family Strigidae.

    (1) Great Horned Owl (Bubo virginianus).
    (2) Snowy Owl (Nyctea scandiaca).
    (3) Northern Hawk Owl (Surnia ulula).
    (4) Short-eared Owl (Asio flammeus).

Sec.  92.33  Region-specific regulations.

    The season dates for the 2003 season for eight subsistence regions 
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 westwards 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

[[Page 43030]]

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.
    (2) Closure: June 15-July 15.
    (d) Bering Strait/Norton Sound Region.
    (1) Stebbins/St. Michael Area (Point Romanof to Canal Point):
    (i) Season: April 15-June 14 and July 16-August 31.
    (ii) Closure: June 15-July 15.
    (2) Remainder of the region:
    (i) Season: April 2-June 14 and July 16-August 31 for waterfowl; 
April 2-July 19 and August 21-August 31 for all other birds.
    (ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for 
all other birds.
    (e) Kodiak Archipelago Region, except the Kodiak Island roaded area 
is closed to the harvesting of migratory birds and their eggs. The 
closed area is depicted on a map and consists of all lands and water 
east of a line extending from Crag Point in the north to the west end 
of Saltery Cove in the south and all lands and water south of a line 
extending from Termination Point along the north side of Cascade Lake 
extending to Anton Larson Bay. Offshore islands and waters adjacent to 
the closed area will remain 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 (Pt. Hope to Wainwright, along the Chuckchi 
coast, south and east to Atqasuk and Anaktuvuk Pass):
    (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 (Barrow to Nuiqsut):
    (i) Season: April 6-June 6 and July 7-August 31 for king and common 
eiders and April 2-June 15 and July 16-August 31 for all other birds.
    (ii) Closure: June 7-July 6 for king and common eiders and June 16-
July 15 for all other birds.
    (3) Eastern Unit (Communities east of Nuiqsut):
    (i) Season: April 2-June 19 and July 20-August 31.
    (ii) Closure: June 20-July 19.
    (h) Interior Region.
    (1) Season: April 2-June 14 and July 16-August 31; egg gathering 
May 1-June 14.
    (2) Closure: June 15-July 15.

    Dated: June 16, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-18097 Filed 7-18-03; 8:45 am]