[Federal Register: December 20, 2004 (Volume 69, Number 243)]

[Proposed Rules]               

[Page 76361-76368]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]


[[Page 76361]]


Part VI

Department of the Interior


Fish and Wildlife Service


50 CFR Part 92

Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations for 

Migratory Birds in Alaska During the 2005 Season; Proposed Rule

[[Page 76362]]



Fish and Wildlife Service

50 CFR Part 92

RIN 1018-AT77


Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 

for Migratory Birds in Alaska During the 2005 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is 

proposing migratory bird subsistence harvest regulations in Alaska for 

the 2005 season. This proposed rule would establish regulations that 

prescribe frameworks, or outer limits, for dates when harvesting of 

birds may occur, species that can be taken, and methods and means that 

would be excluded from use. These regulations were developed under a 

co-management process involving the Service, the Alaska Department of 

Fish and Game, and Alaska Native representatives. These regulations are 

intended to provide a framework to enable the continuation of 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 

review. This rulemaking proposes regulations that start on April 2, 

2005, and expire on August 31, 2005, for the subsistence harvest of 

migratory birds in Alaska.

DATES: You must submit comments on the proposed subsistence harvest 

regulations for migratory birds in Alaska by February 18, 2005.

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, AK 99503, or fax to (907) 786-3306 or e-mail to 


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 all 

commercial bird hunting 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 has occurred for centuries, was and 

is 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 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 Has the Amended Treaty Accomplished?

    The major goals of the amended treaty with Canada were to allow 

traditional subsistence harvest and improve conservation of migratory 

birds by allowing effective regulation of this harvest.

    The amended treaty with Canada provides a means to allow 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 set the 

geographic baseline with lands north and west of the Alaska Range and 

within the Alaska Peninsula, Kodiak Archipelago, and the Aleutian 

Islands as the initial subsistence harvest areas.

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 to provide the most effective and efficient 

involvement for subsistence users. This process was concluded on March 

28, 2000, when 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 12 regional management bodies plus the Alaska 

Migratory Bird Co-management Council (Co-management Council).

    Establishment of a migratory bird subsistence harvest began on 

August 16, 2002, when we published in the Federal Register (67 FR 

53511) a final rule at 50 CFR part 92 that set procedures for 

incorporating subsistence management into the continental migratory 

bird management program. These regulations established an annual 

procedure to develop harvest guidelines to implement a subsistence 

migratory bird harvest.

    The next step established the first subsistence migratory bird 

harvest system. This was finalized on July 21, 2003, when we published 

in the Federal Register (68 FR 43010) a final rule at 50 CFR parts 20, 

21 and 92 that created the first annual harvest regulations for the 

2003 subsistence migratory bird season in Alaska. These annual 

frameworks were not intended to be a complete, all-inclusive set of 

regulations, but were intended to regulate continuation of customary 

and traditional subsistence uses of migratory birds in Alaska during 

the spring and summer. See the August 16, 2002, July 21, 2003, and 

April 2, 2004, final rules for additional background information on the 

subsistence harvest program for migratory birds in Alaska.

    This current rulemaking is necessary because the migratory bird 

harvest season is closed unless opened and the regulations governing 

subsistence harvest of migratory birds in Alaska are subject to public 

review and annual approval. The Co-management Council held a meeting in 

April 2004, to develop recommendations for changes effective for the 

2005 harvest season. These recommendations were presented to the 

Service Regulations Committee (SRC) on July 28 and 29, 2004, for 


[[Page 76363]]

    This rule proposes regulations for the taking of migratory birds 

for subsistence uses in Alaska during 2005. This rule proposes to list 

migratory bird species that are open or closed to harvest, as well as 

season openings and closures by region. It also proposes minor changes 

in the methods and means of taking migratory birds for subsistence 

purposes. We propose to amend 50 CFR 92.5 by adding three new 

communities to the list of included areas, and to add corresponding 

harvest areas and season dates to 50 CFR 92.33.

How Will the Service Continue To Ensure That the Subsistence Harvest 

Will Not Raise Overall Migratory Bird Harvest?

    The Service has an emergency closure provision (Sec.  92.21), so 

that if any significant increases in harvest are documented for one or 

more species in a region, an emergency closure can be requested and 

implemented. Eligibility to harvest under the regulations established 

in 2003 was limited to permanent residents, regardless of race, in 

villages located within the Alaska Peninsula, Kodiak Archipelago, the 

Aleutian Islands and in areas north and west of the Alaska Range (Sec.  

92.5). These geographical restrictions opened the initial subsistence 

migratory bird harvest to only about 13 percent of Alaska residents. 

High-population areas such as Anchorage, the Matanuska-Susitna and 

Fairbanks North Star boroughs, the Kenai Peninsula roaded area, the 

Gulf of Alaska roaded area and Southeast Alaska were excluded from the 

eligible subsistence harvest areas.

    Based on petitions requesting inclusion in the harvest, in 2004, we 

added 13 additional communities based on the five criteria set forth in 

Sec.  92.5(c). These communities included: Gulkana, Gakona, Tazlina, 

Copper Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, 

Port Graham and Nanwalek, Tyonek and Hoonah, populations totaling 

2,766. For 2005, we propose to add three additional communities for 

glaucous-winged gull egg gathering only. These southeastern communities 

include Craig, Hydaburg, and Yakutat, with a combined population of 

2,459. These new regions would increase the percentage of the State 

population included in the subsistence bird harvest only to 14 percent.

    Subsistence harvest has been monitored for the past 15 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 major changes or trends in 

levels of harvest and user participation after legalization of the 

harvest. 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 the Office of Management and 

Budget (OMB) for approval under the Paperwork Reduction Act, with a 

subsequent 60-day public comment period. In the July 31, 2003, Federal 

Register (68 FR 44961), we published a notice that the Alaska 

Subsistence Harvest Survey Information Collection Forms were submitted 

to OMB for approval under the Paperwork Reduction Act, with a 30-day 

public comment period. OMB approved the information collection on 

October 2, 2003, and assigned OMB control number 1018-0124, which 

expires on October 31, 2006.

How Did the Service Develop the Methods and Means Prohibitions, and 

What Is Proposed To Change for 2005?

    In development of the initial regulations (68 FR 6697), the Co-

management Council encouraged the Service to adopt the existing methods 

and means prohibitions that occur in the Federal (50 CFR 20.21) and 

Alaska (5AAC92.100) migratory bird hunting regulations. We included 

some exceptions to the Federal regulations in the initial regulations 

and include some in this proposed rule to allow the continuation of 

customary and traditional spring harvest methods, but not the creation 

of new proposed traditions. In this proposed rule, we have incorporated 

the Bering Strait/Norton Sound region's request to add St. Lawrence 

Island to the list of areas where an exception allows the use of live 

decoys to harvest auklets.

How Did the Service Decide the List of Birds Open To Harvest and What 

Is Proposed To Change for 2005?

    The Service believes it is necessary to develop a list of bird 

species that would be open to subsistence harvest. The original list 

was compiled from subsistence harvest data, with several species added 

based on their presence in Alaska. 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 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 open to harvest 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.

    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 primary source of quantitative data on 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.

    Based on conservation concerns, we propose to close the harvest of 

tundra swans in Units 9(D) and 10 starting in 2005. This decision was 

made to protect a small resident population segment of

[[Page 76364]]

fewer than 500 tundra swans in the Izembek National Wildlife Refuge 

area. This small segment of the Pacific population is nonmigratory and 

appears to be morphologically distinct. Breeding pair surveys indicate 

that the local population has declined steadily over the past two 

decades and recruitment into the population is low.

    At the request of the North Slope Borough Fish and Game Management 

Committee, the Co-Management Council recommended adding a provision to 

allow subsistence use of yellow-billed loons inadvertently caught in 

subsistence fishing (gill) nets on the North Slope. Justification given 

by the proponent was that yellow-billed loons are culturally important 

for the Inupiat Eskimo of the North Slope for use in traditional dance 

regalia. The Service Regulations Committee met on July 29, 2004, and 

proposed to set a maximum of 20 yellow-billed loons inadvertently 

caught annually in the North Slope Region. Individual reporting to the 

North Slope Borough Department of Wildlife will be required by the end 

of the season. In addition, the North Slope Borough is planning to ask 

fishermen, through announcements on the radio and through personal 

contact, to report all entanglements of loons to better estimate the 

levels of injury or mortality caused by gill nets. This provision to 

allow subsistence possession and use of yellow-billed loons caught in 

fishing gill nets is subject to annual review and renewal as part of 

Subpart D--Annual Regulations Governing Subsistence Harvest.

How Does the Service Address the Birds of Conservation Concern Relative 

to the Subsistence Harvest?

    Birds of Conservation Concern (BCC) 2002 is the latest document in 

a continuing effort by the Service to assess and prioritize bird 

species for conservation purposes. It was published in the Federal 

Register on February 6, 2003 (68 FR 6179). The BCC list identifies bird 

species at risk because of inherently small populations, restricted 

ranges, severe population declines, or imminent threats. The species 

listed need 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. Section 13(a)(3) 

of the FWCA, 16 U.S.C. 2912(a)(3), requires the Secretary of the 

Interior 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 of 1973, as amended (16 U.S.C. 1531-1543).''

    The Co-management Council will continually review the list of 

subsistence birds. As appropriate, the Council will elevate hunter 

awareness of species that may have small or declining populations in an 

effort to directly involve subsistence hunters in conserving these 

vulnerable species.

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 comments by any one of 

several methods. You may mail, fax, or 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 addresses from the rulemaking record, which we will honor to 

the extent allowable by law. In some circumstances, we will 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.

    In developing the final rule, we will consider each comment 

received during the public comment period. In the final rule, we may 

not respond in detail to each comment received during the comment 

period, but we will summarize all comments received and respond to 


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.), that 

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.''

Executive Order 12866

    Executive Order 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 following:

    (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 

Executive Order 12866.

    a. This rule will not have an annual economic effect of $100 

million or more or adversely affect an economic sector, productivity, 

jobs, the environment, or other units of government. 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

[[Page 76365]]

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, we 

determined a maximum economic value of $6 million. 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 

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. We have 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 certified 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 (Alaska Native non-profits and 

local governments) to be responsible for administering the regional 

programs. The Alaska Department of Fish and Game will also incur 

expenses for travel to Co-management Council and regional management 

body's meetings. In addition, the State of Alaska will be required to 

provide technical staff support to each of the regional management 

bodies and to the Co-management Council. Expenses for the State's 

involvement may exceed $100,000 per year, but should not exceed 

$150,000 per year. When funding permits, we make annual grant 

agreements available to the partner organizations and the Alaska 

Department of Fish and Game to help offset their expenses.

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 have, however, received OMB approval of associated 

voluntary annual household surveys used to determine levels of 

subsistence take. The OMB control number for the information collection 

is 1018-0124, which expires on October 31, 2006. 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,

[[Page 76366]]

November 6, 2000), concerning consultation and coordination with Indian 

Tribal Governments, we have consulted with Alaska tribes and evaluated 

the rule for possible effects on tribes or trust resources, and have 

determined that there are no significant effects. The rule will legally 

recognize the subsistence harvest of migratory birds and their eggs for 

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 its 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. Our biological opinion resulting from the Section 7 

consultation is a public document 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 2005,'' issued August 15, 2004. 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 not a 

significant energy action under Executive Order 13211 and no Statement 

of Energy Effects is required.

List of Subjects in 50 CFR Part 92

    Exports, Hunting, Imports, Reporting and recordkeeping 

requirements, Subsistence, Treaties, Wildlife.

    For the reasons set out in the preamble, we propose to amend title 

50, chapter I, subchapter G, of the Code of Federal Regulations as 



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

    Authority: 16 U.S.C. 703-712.

Subpart A--General Provisions

    2. In subpart A, amend Sec.  92.5 by revising paragraph (a)(2) 

introductory text and adding paragraph (a)(3) to read as follows:

Sec.  92.5  Who is eligible to participate?

* * * * *

    (a) * * *

    (2) Based on petitions for inclusion recommended by the Co-

management Council in 2003, the Service added the following communities 

to the included areas under this part starting in the 2004 harvest 


* * * * *

    (3) Based on petitions for inclusion recommended by the Co-

management Council in 2004, the Service is adding the following 

communities to the included areas under this part starting in the 2005 

harvest season:

    (i) Southeast Region--Craig, Hydaburg and Yakutat.

    (ii) [Reserved.]

Subpart C--General Regulations Governing Subsistence Harvest

    3. In subpart C, amend Sec.  92.20 by revising paragraph (d) to 

read as follows:

Sec.  92.20  Methods and means.

* * * * *

    (d) Taking waterfowl and other species using live birds as decoys, 

except for auklets on Diomede and St. Lawrence islands (Use of live 

birds as decoys is a customary and traditional means of harvesting 

auklets on Diomede and St. Lawrence islands.);

* * * * *

Subpart D--Annual Regulations Governing Subsistence Harvest

    4. 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 Cackling Goose Branta hutchinsii leucopareia)--Semidi 

Islands only.

    (5) Tundra Swan Cygnus columbianus)--Units 9(D) and 10 only.

    (6) Yellow-billed Loon Gavia adamsii)--except North Slope Region. 

(Requirements for harvest and reporting are described in Sec.  


    (b) In addition, you may not gather eggs from the following 


    (1) Cackling Goose Branta hutchinsii 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 Anatidae

    (1) Greater White-fronted Goose (Anser albifrons).

    (2) Snow Goose (Chen caerulescens).

    (3) Black Brant (Branta bernicla nigricans)--except no egg 

gathering is permitted in the Yukon/Kuskokwim Delta and the North 

Slope regions.

    (4) Taverner's Cackling Goose (Branta hutchinsii taverneri).

    (5) Aleutian Cackling Goose (Branta hutchinsii leucopareia)--

except in the Semidi Islands.

    (6) Cackling Goose (Branta hutchinsii minima)--except no egg 

gathering is permitted.

    (7) Lesser Canada Goose (Branta canadensis parvipes).

    (8) Tundra Swan (Cygnus columbianus)--except in Units 9(D) and 


    (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).

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    (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).

(b) Family Gaviidae

    (1) Red-throated Loon (Gavia stellata).

    (2) Arctic Loon (Gavia arctica).

    (3) Pacific Loon (Gavia pacifica).

    (4) Common Loon (Gavia immer).

    (5) Yellow-billed Loon (Gavia adamsii)--North Slope Region only. 

(Requirements for harvest and reporting are described in Sec.  


(c) Family Podicipedidae

    (1) Horned Grebe (Podiceps auritus).

    (2) Red-necked Grebe (Podiceps grisegena).

(d) Family Procellariidae

    (1) Northern Fulmar (Fulmarus glacialis).

    (2) [Reserved].

(e) Family Phalacrocoracidae

    (1) Double-crested Cormorant (Phalacrocorax auritus).

    (2) Pelagic Cormorant (Phalacrocorax pelagicus).

(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) Spotted Sandpiper (Actitis macularia).

    (4) Bar-tailed Godwit (Limosa lapponica).

    (5) Ruddy Turnstone (Arenaria interpres).

    (6) Semipalmated Sandpiper (Calidris pusilla).

    (7) Western Sandpiper (Calidris mauri).

    (8) Least Sandpiper (Calidris minutilla).

    (9) Baird's Sandpiper (Calidris bairdii).

    (10) Sharp-tailed Sandpiper (Calidris acuminata).

    (11) Dunlin (Calidris alpina).

    (12) Long-billed Dowitcher (Limnodromus scolopaceus).

    (13) Common Snipe (Gallinago gallinago).

    (14) Red-necked phalarope (Phalaropus lobatus).

    (15) 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 scandiacus).

    (2) Snowy Owl (Nyctea scandiaca).

Sec.  92.33  Region-specific regulations.

    The 2005 season dates for the eligible subsistence regions are as 


    (a) Aleutian/Pribilof Islands Region.

    (1) Northern Unit (Pribilof Islands):

    (i) Season: April 2-June 30.

    (ii) Closure: July 1-August 31.

    (2) Central Unit (Aleut Region's eastern boundary on the Alaska 

Peninsula westward to and including Unalaska Island):

    (i) Season: April 2-June 15 and July 16-August 31.

    (ii) Closure: June 16-July 15.

    (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 and radio and television stations and 

posted in village post offices and stores.

    (c) Bristol Bay Region.

    (1) Season: April 2-June 14 and July 16-August 31 (general season); 

April 2-July 15 for seabird egg gathering only.

    (2) Closure: June 15-July 15 (general season); July 16-August 31 

(seabird egg gathering).

    (d) Bering Strait/Norton Sound Region.

    (1) Stebbins/St. Michael Area (Point Romanof to Canal Point):

    (i) Season: April 15-June 14 and July 16-August 31.

    (ii) Closure: June 15-July 15.

    (2) Remainder of the region:

    (i) Season: April 2-June 14 and July 16-August 31 for waterfowl; 

April 2-July 19 and August 21-August 31 for all other birds.

    (ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for 

all other birds.

    (e) Kodiak Archipelago Region, except for the Kodiak Island roaded 

area, is open to the harvesting of migratory birds and their eggs. The 

closed area consists of all lands and waters (including exposed 

tidelands) east of a line extending from Crag Point in the north to the 

west end of Saltery Cove in the south and all lands and water south of 

a line extending from Termination Point along the north side of Cascade 

Lake extending to Anton Larson Bay. Waters adjacent to the closed area 

are closed to harvest within 500 feet from the water's edge. The 

offshore islands are open to harvest.

    (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 (Southwestern North Slope regional boundary east 

to Peard Bay, everything west of the longitude line 158[deg]30' S and 

south of the latitude line 70[deg]45' E to west bank of the Ikpikpuk 

River, and everything south of the latitude line 69[deg]45' E between 

the west bank of the Ikpikpuk River to the east bank of Sagavinirktok 


    (i) Season: April 2-June 29 and July 30-August 31 for seabirds; 

April 2-June

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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 (At Peard Bay, everything east of the longitude 

line 158[deg]30' S and north of the latitude line 70[deg]45' E to west 

bank of the Ikpikpuk River, and everything north of the latitude line 

69[deg]45' E between the west bank of the Ikpikpuk River to the east 

bank of Sagavinirktok River):

    (i) Season: April 6-June 6 and July 7-August 31 for king and common 

eiders 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 (East of eastern bank of the Sagavanirktok River):

    (i) Season: April 2-June 19 and July 20-August 31.

    (ii) Closure: June 20-July 19.

    (4) All Units: yellow-billed loons. Annually, up to 20 yellow-

billed loons may be caught inadvertently in subsistence fishing nets in 

the North Slope Region and kept for subsistence use. Individuals must 

report each yellow-billed loon inadvertently caught while subsistence 

gill net fishing to the North Slope Borough Department of Wildlife 

Management by the end of the season.

    (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.

    (i) Upper Copper River (Harvest Area: State of Alaska Game 

Management Units 11 and 13) (Eligible communities: Gulkana, Chitina, 

Tazlina, Copper Center, Gakona, Mentasta Lake, Chistochina and 


    (1) Season: April 15-May 26 and June 27-August 31.

    (2) Closure: May 27-June 26.

    (3) The Copper River Basin communities listed in this paragraph 

also documented traditional use harvesting birds in Unit 12, making 

them eligible to hunt in this unit using the seasons specified in 

paragraph (h)(i) of this section.

    (j) Gulf of Alaska Region.

    (1) Prince William Sound Area (Harvest area: Unit 6 [D]), (Eligible 

Chugach communities: Chenega Bay, Tatitlek).

    (i) Season: April 2-May 31 and July 1-August 31.

    (ii) Closure: June 1-30.

    (2) Kachemak Bay Area (Harvest area: Unit 15[C] South of a line 

connecting the tip of Homer Spit to the mouth of Fox River) (Eligible 

Chugach Communities: Port Graham, Nanwalek).

    (i) Season: April 2-May 31 and July 1-August 31.

    (ii) Closure: June 1-30.

    (k) Cook Inlet (Harvest area: portions of Unit 16[B] as specified 

in this paragraph (k).) (Eligible communities: Tyonek only).

    (1) Season: April 2-May 31-That portion of Unit 16(B) south of the 

Skwentna River and west of the Yentna River and August 1-31-That 

portion of Unit 16(B) south of the Beluga River, Beluga Lake and the 

Triumvirate Glacier.

    (2) Closure: June 1-July 31.

    (l) Southeast Alaska

    (1) Community of Hoonah (Harvest area: Lands in Icy Strait and 

Cross Sound, including Middle Pass Rock near the Inian Islands, Table 

Rock in Cross Sound and other traditional locations on the coast of 

Yakobi Island. The land and waters of Glacier Bay National Park remain 

closed to all subsistence harvesting [50 CFR 100.3]).

    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 


    (ii) Closure: July 1-August 31.

    (2) Communities of Craig and Hydaburg (Harvest area: small islands 

and adjacent shoreline of western Prince of Wales Island from Point 

Baker to Cape Chacon, but also including Coronation and Warren 


    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 


    (ii) Closure: July 1-August 31.

    (3) Community of Yakutat (Harvest area: Icy Bay [Icy Cape to Pt. 

Riou] and coastal lands and islands bordering the Gulf of Alaska from 

Pt. Manby southeast to and including Dry Bay.

    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 


    (ii) Closure: July 1-August 31.

    Dated: December 10, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 04-27776 Filed 12-17-04; 8:45 am]