[Federal Register: February 10, 2003 (Volume 68, Number 27)]
[Proposed Rules]               
[Page 6697-6707]
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; Proposed Spring/
Summer Subsistence Harvest Regulations for Migratory Birds in Alaska 
During the 2003 Subsistence Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is 
proposing to establish spring/summer migratory bird subsistence harvest 
regulations in Alaska for the 2003 subsistence season. The proposed 
regulations 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 proposed 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. This rulemaking proposes regulations that expire on 
August 31, 2003, for the spring/summer subsistence harvest of migratory 
birds in Alaska. Seasons will open after April 1 and close prior to 
September 1.

DATES: You must submit comments on the proposed spring/summer harvest 
regulations for migratory birds in Alaska on or before March 12, 2003.

ADDRESSES: Send your comments on this proposed rule to the Regional 
Director, Alaska Region, U.S. Fish and Wildlife Service, 1011 E. Tudor 
Road, Anchorage, Alaska, 99503 or fax them to (907) 786-3641.

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, Alaska 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 took into account and 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

[[Page 6698]]

harvest areas in Alaska. The U.S. Senate approved the amendments to 
both treaties in 1997.

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 which 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 amendments are not intended to cause significant increases in 
the take of migratory birds relative to their continental population 
sizes. Therefore, 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 
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 Federal Register stating that we intended to establish 
management bodies to implement the spring and summer subsistence 
harvest (63 FR 49707, September 17, 1998). 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 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 
U.S. Fish and Wildlife 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 non-profit groups and local governments in those 

[[Page 6699]]

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 part 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 preparation for the 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 2001/2002, 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 
recommendations were sent 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, 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.
    This is the first year that we will prescribe 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. The proposed 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. The 
proposed rulemaking is necessary because the regulations governing the 
subsistence harvest of migratory birds in Alaska are subject to annual 
establishment and public review, i.e., the season is closed unless 
opened. This proposed rule introduces regulations for reorganization of 
the regional areas, harvest seasons, methods, and means related to 
taking of migratory birds for subsistence uses in Alaska during the 
spring/summer of 2003. The creation of part 92 also necessitates the 
need for nonsubstantive changes to parts 20 and 21, and we have 
proposed these changes in the rule portion of this document.

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 on April 2, 2003, and allow the ``Closed 
Season Policy'' (53 FR 16877, May 12, 1988) to remain in effect through 
April 1. Under the ``Closed Season Policy,'' the closed season is 
selectively enforced to protect those species for which there is 
greatest conservation concern. Following April 1, 2003, the ``Closed 
Season Policy'' will no longer be in effect. 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, 2004.
    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 two weeks of the incubation period and the first two 
weeks of the brood rearing period. This concept still permits an 
opportunity for traditional

[[Page 6700]]

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 proposed 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 
    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, or in areas 
north and west of the Alaska Range (50 CFR part 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 was declining due to increased 
commercial availability of alternative foods.
    Alaska Natives have long-standing conservation ethics and 
traditions that are passed from generation to generation through the 
teachings of elders. These 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 under 
reported due to 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 were not approved by the Office of Management and Budget 
(OMB). We are initiating the process to request OMB approval of these 
forms, and we will publish a notice in the Federal Register in the near 
future requesting public comment on this information collection. 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 shore birds.

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 (AS 16.05.940(17)) 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

[[Page 6701]]

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, these initial 2003 harvest regulations 
were not designed to be a complete, all-inclusive set of regulations, 
but intended 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 based on recommendations by 
their Technical Committee on an individual 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, it would be more difficult to add it 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. 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 they are not taken. 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 106 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 part 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. 
Due to 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). It identifies bird species at risk 
due to 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 (Pub. L. 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-
    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 

[[Page 6702]]

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 106 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. These species are included on the list of 
birds that could be hunted for subsistence at the request of the Co-
management Council based on a continuing history of customary and 
traditional use, and the fact that they will continue to be taken for 
subsistence in the future. Although designation of these species by the 
Service as ``birds of conservation concern'' or ``sensitive'' does not 
automatically exclude them from consideration for subsistence hunting, 
we believe that it is incumbent upon the Service to make sure that 
appropriate conditions are in place to ensure that a limited 
subsistence harvest of these species will not worsen their conservation 
    The following 23 species are birds of conservation concern or 
considered sensitive for other reasons. We request public comments as 
to whether or not these bird species should be removed from the list of 
birds open for the spring/summer subsistence harvest in Alaska.

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)

    In addition to whether or not these birds should be open for 
subsistence hunting, we specifically request information and comments 
from the public on the following four questions regarding the above 
list of bird species. Responses may reflect personal knowledge or 
opinion, or be based on a review of historical or contemporary 
documents and published literature.
    1. What measurable impacts do you think a limited subsistence 
harvest would have on populations of these species?
    2. Which bird species are more important in terms of food value 
and/or customary and traditional uses?
    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?
    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 status of these species is 
maintained or improved? If so, what would you recommend?

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, 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 
    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 
    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.

Public Comments Solicited

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. If you wish to comment, you may submit your comments by any 
one of several

[[Page 6703]]

methods. You may mail or fax comments to the address indicated under 
the caption ADDRESSES. You may hand-deliver comments to the address 
indicated under the caption ADDRESSES. Our practice is to make 
comments, including names and home addresses of respondents, available 
for public review during regular business hours. Individual respondents 
may request that we withhold their home address from the rulemaking 
record, which we will honor to the extent allowable by law. In some 
circumstances, we would also withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    You may inspect comments received on the proposed regulations 
during normal business hours at the Service's office in Anchorage, 
Alaska. We will consider, but possibly may not respond in detail to, 
each comment. We will summarize all comments received during the 
comment period and respond to them after the closing date in any final 
    Because we conducted an extensive public involvement process prior 
to formulating these regulations, we are soliciting comments on this 
proposed rule for only 30 days. We need to finalize these regulations 
as soon as possible to open the first legal subsistence harvest in 
April 2003.

Statutory Authority

    We derive our authority to issue these proposed 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 the 1916 Convention, as amended, between the 
United States and Great Britain (for Canada) and other treaties for the 
protection of migratory birds. Specifically, these regulations are 
issued pursuant to 16 U.S.C. 712 (1), which authorizes the Secretary of 
the Interior 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 

Executive Order 12866

    The E.O. 12866 requires each agency to write regulations that are 
easy to understand. We invite your comments on how to make this rule 
easier to understand, including answers to questions such as the 
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.,) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    (5) Is the description of the rule in the ``Supplementary 
Information'' section of the preamble helpful in understanding the 
    (6) What else could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. 
You may also e-mail the comments to this address: Exsec@ios.doi.gov.
    The Office of Management and Budget (OMB) has determined that this 
document is not a significant rule subject to OMB review under E.O. 
    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 harvest of migratory birds as provided for in the 
amended Canada Treaty. 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 U.S. Fish and 
Wildlife 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.). An initial regulatory flexibility analysis is not required. 
Accordingly, a Small Entity Compliance Guide is not required. The rule 
legalizes a pre-existing subsistence activity, and the resources 
harvested will be consumed by the harvesters or persons within their 
local community.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act, as discussed in the E.O. 
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

[[Page 6704]]

traditional subsistence activity. It will not result in a substantial 
increase in subsistence harvest or a significant change in harvesting 
    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 U.S. Fish and Wildlife 
Service has no reason to believe that this rule will lead to a 
disproportionate distribution of benefits.
    b. This rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. This rule does not deal with traded 
commodities and, therefore, does not have an impact on prices for 
    c. This rule does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This rule deals with the harvesting of wildlife for 
personal consumption. It does not regulate the marketplace in any way 
to generate effects on the economy or the ability of businesses to 

Unfunded Mandates Reform Act

    We have determined and 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. We will publish a notice in the 
Federal Register in the near future requesting public comment on that 
information collection. 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 E.O. 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 are working 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

    Prior to issuance of annual spring and summer subsistence 
regulations, we will consider provisions of the Endangered Species Act 
of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to 
ensure that harvesting is not likely to jeopardize the continued 
existence of any species designated as endangered or threatened or 
modify or destroy their critical habitats, and that it is consistent 
with conservation programs for those species. Consultations under 
section 7 of this Act conducted in connection with the environmental 
assessment for the annual subsistence take regulations may cause us to 
change these regulations.

National Environmental Policy Act Consideration

    We previously determined that establishing the procedures for 
future development of subsistence harvest regulations does not require 
an environmental assessment because the impacts to the environment are 
negligible. We therefore filed a categorical exclusion dated April 30, 
1999. Copies of the categorical exclusion are available at the address 
shown in the section of this document entitled ADDRESSES. An 
environmental assessment was prepared in September 2002 for the 2003 
subsistence harvest regulations.

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

[[Page 6705]]

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

Part 20

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

Part 21

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

Part 92

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

    For the reasons set out in the preamble, we propose to amend title 
50, chapter I, subchapters B and F, of the Code of Federal Regulations 
as follows:

PART 20--Migratory Bird Hunting

    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 are not applicable to the migratory bird subsistence harvest 
in Alaska issued pursuant to part 92 unless specifically referenced in 
part 92 of this subchapter.
    3. Amend Sec.  20.22 by revising the existing paragraph to read as 

Sec.  20.22  Closed seasons.

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

Sec.  20.132  [Removed and Reserved]

    4. Remove and reserve Sec.  20.132.


    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. Amend Sec.  21.11 by revising the section 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, or as permitted by regulations in 
this part, or part 20 of this subchapter (the hunting regulations), or 
part 92 of subchapter F of this chapter (the spring/summer subsistence 
harvest regulations). Birds taken or possessed under this part in 
subsistence included areas of Alaska are subject to this part and not 
to part 92. Subsistence included areas are defined in Sec.  92.5(a).


    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 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 U.S. Fish and Wildlife Service any 
recommendations to designate a community as a spring and summer 
subsistence harvest area. The U.S. Fish and Wildlife Service will 
publish any approved recommendations to designate a community as a 
spring and summer subsistence harvest area in subpart D of this part. 
All areas outside Alaska are ineligible.
* * * * *
    (d) Participation by permanent residents of excluded areas. 
Immediate family members that 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 amend Sec.  92.6 by revising the section 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 non-commercial 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 paragraphs (a) and 
(b) introductory text to read as follows:

Sec.  92.11  Regional management areas.

    (a) Regions identified. To allow for maximum participation by 
residents of

[[Page 6706]]

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 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.  92.20 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 this subchapter);
    (h) Shooting while on or across any road or highway.

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 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, modify these harvest regulations on an annual basis, working 
within the schedule of the Federal late season waterfowl regulations.
* * * * *
    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 open regions. When birds are 
listed only to the species level, assume all subspecies existing in 
Alaska are open to harvest.

Family Gaviidae

Red-throated Loon (Gavia stellata)
Arctic Loon (Gavia arctica)
Pacific Loon (Gavia pacifica)
Common Loon (Gavia immer)
Yellow-billed Loon (Gavia adamsii)

Family Podicipedidae

Horned Grebe (Podiceps auritus)
Red-necked Grebe (Podiceps grisegena)

Family Procellariidae

Northern Fulmar (Fulmarus glacialis)

Family Phalacrocoracidae

Double-crested Cormorant (Phalacrocorax auritus)
Red-faced Cormorant (Phalacrocorax urile)
Pelagic Cormorant (Phalacrocorax pelagicus)

Family Anatidae

Greater White-fronted Goose (Anser albifrons)
Snow Goose (Chen caerulescens)
Lesser Canada Goose (Branta canadensis parvipes)
Taverner's Canada Goose (Branta canadensis taverneri)
Aleutian Canada Goose (Branta canadensis leucopareia)--except in the 
Semidi Islands
Cackling Canada Goose (Branta canadensis minima)--except no egg 
gathering is permitted
Black Brant (Branta bernicla nigricans)--except no egg gathering is 
permitted in the Yukon/Kuskokwim Delta and the North Slope Regions
Trumpeter Swan (Cygnus buccinator)
Tundra Swan (Cygnus columbianus)
Gadwall (Anas strepera)
Eurasian Wigeon (Anas penelope)
American Wigeon (Anas americana)
Mallard (Anas platyrhynchos)
Blue-winged Teal (Anas discors)
Northern Shoveler (Anas clypeata)
Northern Pintail (Anas acuta)
Green-winged Teal (Anas crecca)
Canvasback (Aythya valisineria)
Redhead (Aythya americana)
Ring-necked Duck (Aythya collaris)
Greater Scaup (Aythya marila)
Lesser Scaup (Aythya affinis)
King Eider (Somateria spectabilis)
Common Eider (Somateria mollissima)
Harlequin Duck (Histrionicus histrionicus)
Surf Scoter (Melanitta perspicillata)
White-winged Scoter (Melanitta fusca)
Black Scoter (Melanitta nigra)
Long-tailed Duck (Clangula hyemalis)
Bufflehead (Bucephala albeola)
Common Goldeneye (Bucephala clangula)
Barrow's Goldeneye (Bucephala islandica)
Hooded Merganser (Lophodytes cucullatus)

[[Page 6707]]

Common Merganser (Mergus merganser)
Red-breasted Merganser (Mergus serrator)

Family Gruidae

Sandhill Crane (Grus canadensis)

Family Charadriidae

Black-bellied Plover (Pluvialis squatarola)
American Golden-Plover (Pluvialis dominicus)
Pacific Golden-Plover (Pluvialis fulva)
Common Ringed Plover (Charadrius hiaticula)

Family Haematopodidae

Black Oystercatcher (Haematopus bachmani)

Family Scolopacidae

Greater Yellowlegs (Tringa melanoleuca)
Lesser Yellowlegs (Tringa flavipes)
Solitary Sandpiper (Tringa solitaria)
Wandering Tattler (Heteroscelus incanus)
Spotted Sandpiper (Actitis macularia)
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)
Ruddy Turnstone (Arenaria interpres)
Black Turnstone (Arenaria melanocephala)
Red Knot (Calidris canutus)
Semipalmated Sandpiper (Calidris pusilla)
Western Sandpiper (Calidris mauri)
Least Sandpiper (Calidris minutilla)
Baird's Sandpiper (Calidris bairdii)
Sharp-tailed Sandpiper (Calidris acuminata)
Dunlin (Calidris alpina)
Buff-breasted Sandpiper (Tryngites subruficollis)
Long-billed Dowitcher (Limnodromus scolopaceus)
Common Snipe (Gallinago gallinago)
Red-necked phalarope (Phalaropus lobatus)
Red phalarope (Phalaropus fulicaria)

Family Laridae

Pomarine Jaeger (Stercorarius pomarinus)
Parasitic Jaeger (Stercorarius parasiticus)
Long-tailed Jaeger (Stercorarius longicaudus)
Bonaparte's Gull (Larus philadelphia)
Mew Gull (Larus canus)
Herring Gull (Larus argentatus)
Slaty-backed Gull (Larus schistisagus)
Glaucous-winged Gull (Larus glaucescens)
Glaucous Gull (Larus hyperboreus)
Sabine's Gull (Xema sabini)
Black-legged Kittiwake (Rissa tridactyla)
Red-legged Kittiwake (Rissa brevirostris)
Ivory Gull (Pagophila eburnea)
Arctic Tern (Sterna paradisaea)
Aleutian Tern (Sterna aleutica)

Family Alcidae

Common Murre (Uria aalge)
Thick-billed Murre (Uria lomvia)
Black Guillemot (Cepphus grylle)
Pigeon Guillemot (Cepphus columba)
Cassin's Auklet (Ptychoramphus aleuticus)
Parakeet Auklet (Aethia psittacula)
Least Auklet (Aethia pusilla)
Whiskered Auklet (Aethia pygmaea)
Crested Auklet (Aethia cristatella)
Rhinoceros Auklet (Cerorhinca monocerata)
Horned Puffin (Fratercula corniculata)
Tufted Puffin (Fratercula cirrhata)

Family Strigidae

Great Horned Owl (Bubo virginianus)
Snowy Owl (Nyctea scandiaca)
Northern Hawk Owl (Surnia ulula)
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 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 Attu Island):
    (i) Season: April 2-July 15 and August 16-August 31.
    (ii) Closure: July 16-August 15.
    (b) Yukon/Kuskokwim Delta Region.
    (1) Season: April 2-August 31.
    (2) Closure: 30-day closure dates to be announced by the Alaska 
Regional Director or his designee, after consultation with local 
subsistence users and the region's Waterfowl Conservation Committee. 
This 30-day period will occur between June 1 and August 15 of each 
year. A press release announcing the actual closure dates will be 
forwarded to regional newspapers and radio and television stations and 
posted in village post offices and stores.
    (c) Bristol Bay Region.
    (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.
    (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 19 and July 20-August 31 for waterfowl; 
April 2-June 29 and July 30-August 31 for seabirds.
    (ii) Closure: June 20-July 19 for waterfowl, June 30-July 29 for 
    (2) Northern Unit (Barrow to Nuiqsut):
    (i) Season: April 2-June 15 and July 16-August 31.
    (ii) Closure: June 16-July 15.
    (3) Eastern Unit (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: January 31, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-3235 Filed 2-6-03; 1:29 pm]