[Federal Register: April 2, 2004 (Volume 69, Number 64)]
[Rules and Regulations]               
[Page 17318-17329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 92

RIN 1018-AJ27

Migratory Bird Subsistence Harvest in Alaska; Subsistence Harvest 
Regulations for Migratory Birds in Alaska During the Spring/Summer 2004 
Subsistence Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is 
publishing spring/summer migratory bird subsistence harvest regulations 
in Alaska for the 2004 subsistence season. This final rule would set 
regulations that prescribe frameworks, or outer limits, for dates when 
harvesting of birds may occur, species that can be taken, and methods 
and means excluded from use. These regulations were developed under a 
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 promulgates regulations that start on April 2, 
2004, and expire on August 31, 2004, for the spring/summer subsistence 
harvest of migratory birds in Alaska.

DATES: The amendments to Subparts A and C of this rule become effective 
on April 2, 2004. The amendment to Subpart D is effective April 2, 2004 
through August 31, 2004.

ADDRESSES: The administrative record for this rule may be viewed at the 
office of the Regional Director, Alaska Region, U.S. Fish and Wildlife 
Service, 1011 East Tudor Road, Anchorage, Alaska 99503.

FOR FURTHER INFORMATION CONTACT: Fred Armstrong, (907) 786-3887, or 
Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 1011 
East 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

[[Page 17319]]

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 Canada and Mexico 
treaties thus prevented the Federal Government from permitting the 
traditional subsistence harvest of migratory birds during spring and 
summer in Alaska. To remedy this situation, the United States 
negotiated Protocols amending both the Canada and Mexico treaties to 
allow for spring/summer subsistence harvest of migratory birds by 
indigenous inhabitants of identified subsistence harvest areas in 
Alaska. The U.S. Senate approved the amendments to both treaties in 

What Has the Service Accomplished Under the Amended Treaty?

    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 spring/summer 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 spring/summer 
migratory bird subsistence harvest.
    The next step established the first spring/summer 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 spring/summer 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, and July 21, 2003, final rules for additional background 
information on the subsistence harvest program for migratory birds in 

Why Is This Rule Necessary and What Does It Do?

    This 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 meetings in 
April, May, and July of 2003, to develop recommendations for changes 
effective for the 2004 harvest season. These recommendations were 
presented to the Service Regulations Committee (SRC) on July 30 and 31, 
2003, for action.
    On January 12, 2004, we published a proposed rule in the Federal 
Register (69 FR 1686) to establish annual spring/summer subsistence 
migratory bird harvest regulations for Alaska for the 2004 season. We 
received written responses from 11 entities. One of the responses was 
from an individual, two from the Co-management Council, one from the 
National Park Service, six from nongovernmental organizations, and one 
from the Alaska Department of Fish and Game.
    This rule establishes regulations for the taking of migratory birds 
for subsistence uses in Alaska during the spring/summer of 2004. This 
rule lists migratory bird species that are open or closed to harvest, 
as well as season openings and closures by region. It also explains 
minor changes in the methods and means of taking migratory birds for 
subsistence purposes. This rule amends 50 CFR 92.5 by adding 13 new 
communities to the list of included areas, and adds corresponding 
harvest areas and season dates to 50 CFR 92.33. This rule also amends 
50 CFR 92.6 to allow for permits to be issued for possession of bird 
parts or eggs for scientific research or educational purposes and to 
prohibit the use of taxidermy.

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 open the initial spring/
summer 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, the Co-
management Council at its April and May 2003 meetings recommended that 
13 additional communities be included, starting in 2004, based on the 
five criteria set forth in Sec.  92.5(c). The Upper Copper River region 
would include the communities of Gulkana, Gakona, Tazlina, Copper 
Center, Mentasta Lake, Chitina, and Chistochina, totaling 1,172 people. 
The Gulf of Alaska region would include the Chugach communities of 
Tatitlek, Chenega, Port Graham, and Nanwalek, totaling 541 people. The 
Cook Inlet region proposed to add only the community of Tyonek, 
population 193, and the Southeast Alaska region proposed to add only 
the community of Hoonah, population 860. In addition, subsistence users 
of Hoonah are requesting only to continue their tradition of harvesting 
gull eggs. The land and waters of Glacier Bay National Park are 
regulated to remain closed to all subsistence harvesting (50 CFR part 
100.3). These new regions would increase the percentage of the State 
population included in the spring/

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summer subsistence bird harvest to 13.5 percent.
    Upon publication of the 2003 proposed harvest regulations (68 FR 
6697, February 10, 2003), five Kodiak area organizations expressed a 
need to close the Kodiak road system starting in the 2003 season. Their 
primary concern was the likelihood of overharvesting, primarily by user 
groups that have not demonstrated customary and traditional uses of 
migratory birds and will have easy access to this resource. On the 
basis of public testimony and written comments, the Service left closed 
to harvesting a buffer zone around the Kodiak Island road system under 
Sec.  92.33(e). The conservation concern is the nontraditional access 
posed by the road system in a region where the migratory bird hunting 
is traditionally done by boat in marine waters. In April 2003, the Co-
management Council recommended extending this closure to include an 
additional buffer strip of 500 feet extending beyond the water's edge, 
to be effective during the 2004 season. Closing the road system and 
water's edge to the spring and summer subsistence migratory bird 
harvest will help ensure that local increases in harvest do not occur 
under the 2004 regulations.
    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 Are the Changes for 2004?

    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. Some exceptions 
to the Federal regulations were made in the initial regulations and 
also in this rule to allow the continuation of customary and 
traditional spring harvest methods, but not the creation of new 
traditions. In this rule, we have incorporated the Bristol Bay region's 
request to be added to the list of areas where use of air boats is 
prohibited for hunting or transporting hunters.

What Is New With Establishing Bird Harvest Limits?

    The Co-management Council recommended the current set of 
regulations to the Service without setting harvest limits, with the 
recognition that setting limits by area or species may become 
necessary. These initial years' harvest regulations provide general 
frameworks to enable the customary and traditional subsistence uses of 
migratory birds in Alaska. Within these 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, either 
regionally or overall, is recognized and will be addressed by the Co-
management Council on the basis of recommendations by the Council's 
Technical Committee on a species-by-species basis. These decisions will 
likely be based on bird population status and past subsistence harvest 
data. Concepts such as community harvest limits and/or designated 
hunters may be considered to accommodate customary and traditional 
subsistence harvest methods.

How Did the Service Decide the List of Birds Open to Harvest?

    We 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 checklist. 
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 we 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 only available empirical evidence of customary 
and traditional use of the harvested bird species comes from Alaska 
subsistence migratory bird harvest surveys conducted by Service 
personnel and contractors and transferred to a computerized database. 
Because of difficulties in bird species identification, shorebird 
harvest information has been lumped into ``large shorebird'' and 
``small shorebird'' categories. In reality, Alaska subsistence harvests 
are also conducted in this manner, generally with no targeting or even 
recognition of individual shorebird species in most cases. In addition, 

[[Page 17321]]

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.

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. Notice of its availability 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).''
    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 Endangered Species Act. 
The BCC lists are intended to stimulate coordinated and collaborative 
proactive conservation actions (including research, monitoring, and 
management) among Federal, State, and private partners. By focusing 
attention on these highest priority species, the Service hopes to 
promote greater study and protection of the habitats and ecological 
communities upon which these species depend, thereby ensuring the 
future of healthy avian populations and communities.
    Last year, of the 108 species considered for establishing 
regulations allowing subsistence hunting in Alaska, 22 were on BCC 
lists at one or more scales (e.g., National, FWS Regions, or Bird 
Conservation Regions-Alaska). We considered one additional species not 
on the BCC list (Trumpeter Swan) to be ``sensitive'' because of its 
small population size and limited breeding distribution in Alaska. Of 
these 23 species, we authorized harvest of 14 BCC-listed species: Bar-
tailed Godwits (Limosa lapponica), Dunlin (Calidris alpina), Red-legged 
Kittiwakes (Rissa brevirostris), Black Oystercatchers (Haematopus 
bachmani), Whiskered Auklets (Aethia pygmaea), Arctic and Aleutian 
Terns (Sterna paradisaea and aleutica), Black Turnstones (Arenaria 
melanocephala), Upland Sandpipers (Bartramia longicauda), Solitary 
Sandpipers (Tringa solitaria), Red-throated Loons (Gavia stellata), Red 
Knots (Calidris canutus), Short-eared Owls (Asio flammeus), and Red-
faced Cormorants (Phalacrocorax urile). However, we stated that these 
species, as well as two non-BCC listed species recommended by the 
Alaska Department of Fish and Game, Wandering Tattler (Heteroscelus 
incanus) and the Northern Hawk-owl (Surnia ulula), should be given 
additional consideration by the Co-management Council over the coming 
year. We intended the Co-management Council to focus its attention on 
determining the importance of the harvest of these species for 
subsistence purposes, as well as any information on status that would 
be useful in future deliberations.
    At a July 2003 meeting, the SRC decided to propose that 3 of the 14 
BCC species (Bar-tailed Godwits [Limosa lapponica], Dunlin [Calidris 
alpina], and Red-legged Kittiwakes [Rissa brevirostris]) remain on the 
list of birds open to harvest in 2004. However, we continued to have 
conservation concerns about allowing harvest of the other 11 BCC-listed 
birds and the wandering tattler from last year's authorized harvest 
list and solicited additional public comments as well as Co-management 
Council documentation of past and present use and dependence on these 
birds. The Co-management Council pulled together regional documentation 
of traditional subsistence use of 9 of the 12 species in which we 
solicited additional comment: Black Oystercatchers, Whiskered Auklets, 
Arctic and Aleutian Terns, Black Turnstones, Wandering Tattlers, Upland 
Sandpipers, Red-throated Loons, and Red-faced Cormorants. Additional 
information received from the public and our decision is contained 

Summary of Public Involvement

    On January 12, 2004, we published in the Federal Register (69 FR 
1686) a proposed rule to establish spring/summer migratory bird 
subsistence harvest regulations in Alaska for the 2004 subsistence 
season. The proposed rule provided for a public comment period of 30 
days. We posted an announcement of the comment period dates for the 
proposed rule on the Council's internet homepage, as well as the rule 
itself and related historical documents. We issued a press release 
expressing the request for public comments and the pertinent deadlines 
for such comments, which was faxed to 26 members of the statewide 
media. By the close of the public comment period on February 11, 2004, 
we had received written responses from 11 entities. One of the 
responses was from an individual, two from the Co-management Council, 
one from the National Park Service, six from non-governmental 
organizations, and one from the Alaska Department of Fish and Game.

Response to Public Comments

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

General Comments

    One respondent expressed opposition to all migratory bird 
subsistence hunting, citing that there is no legal tradition on which 
to base this action and that research shows that all migratory bird 
species are declining.
    Service Response: International migratory bird treaties clearly 
provide authority for migratory bird subsistence hunting, and these 
annual harvest regulations are the direct application of those 
    Two respondents urged the expeditious review of these public 
comments and the subsequent decisionmaking for the final rule 
publication. These respondents emphasized the importance to the SRC and 
Department of the Interior officials to open the harvest season by the 
scheduled April 2, 2004, date.
    Service Response: We concur and are making every effort to meet the 
scheduled harvest opening date.
    One commenter stated that the future public comment period should 
be expanded to 90 days to allow reasonable time for precise analysis 
and development of regional comments. The commenter also requested that 
the Secretary of the Interior ensure timely publication of the proposed 
rules so that these extended public comment periods can be 
    Service Response: We intend to allow for a 60-day public comment 
period in future rulemaking processes involving

[[Page 17322]]

Alaska migratory bird subsistence harvest regulations.

How Will the Service Continue To Ensure That the Subsistence Harvest 
Will Not Raise Overall Migratory Bird Harvest?

    One commenter expressed concern that no harvest data were collected 
in 2003 and said that a statistically sound plan for collecting harvest 
data should be implemented immediately.
    Service Response: Under the Paperwork Reduction Act, 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. We applied for and received OMB approval of the 
associated voluntary annual household surveys used to determine levels 
of subsistence take in October 2003; therefore, no harvest surveys 
could be collected during the 2003 spring/summer harvest season. In 
2004, the harvest survey program is being initiated and expanded to the 
subsistence eligible areas statewide based on a statistical plan 
developed by the Co-management Council's harvest survey committee.

How Did the Service Develop the Methods and Means Prohibitions, and 
What Are the Changes for 2004?

    One respondent expressed appreciation for expansion of the 
prohibition of airboats and jet skis for subsistence hunting to include 
the Bristol Bay region; however, this respondent felt that these means 
of transportation are not traditional for subsistence hunting anywhere 
in Alaska, and recommended adopting this prohibition statewide.
    Service Response: The Co-management Council discussed this exact 
issue last spring and decided it should be dealt with on a regional 
case-by-case basis where current problems have been identified. The 
Service concurs with the Co-management Council's recommendation at this 

How Did the Service Decide the List of Birds Open to Harvest?

    One commenter requested that Ivory Gulls be removed from the list 
of birds open to harvest. The commenter cited evidence from neighboring 
arctic regions that suggests subsistence harvest and global warming 
have caused a 90 percent population decline over the last 20 years.
    Service Response: The 2002 North American Waterbird Conservation 
Plan cites less than 2,400 breeding Ivory Gulls in North America, all 
in Canada's high arctic, placing them in a category of ``moderate'' 
conservation concern. Ivory Gulls winter in the polynyas in the Chukchi 
and Beaufort seas and move through these areas during spring migration 
back to their breeding grounds in Canada. They primarily feed on small 
fish, but can be attracted to marine mammal carcasses such as walrus, 
making them available on a limited basis for subsistence harvest, 
primarily from St. Lawrence and Little Diomede islands. Ivory Gulls are 
not on the Birds of Conservation Concern list on any scale. At this 
time, we do not believe removal of Ivory Gulls from the list of species 
open to harvest is warranted. However, we will continue to seek 
additional information on both the biology and distribution of these 
gulls in Alaskan marine waters and on the customary and traditional 
significance of this species. Proposals to remove them from the 2005 
harvest regulations can be submitted during the annual open period of 
November 1-December 15, 2004, and we will reconsidered them at that 
    One commenter emphasized a serious concern of a history of wasteful 
taking on Snowy Owls (e.g., birds being shot and killed or wounded with 
no attempts to retrieve) in Barrow along the road system. Supporting 
details are provided in the letter. The commenter has contacted the 
Service's law enforcement division to request an investigation and 
stepped-up enforcement efforts. The commenter is now requesting a 
voluntary regulatory closure of Snowy Owls from harvest in Barrow until 
this issue is resolved.
    Service Response: We are aware of the enforcement issue presented 
and are taking appropriate actions. Closing the legal subsistence 
harvest of Snowy Owls along the Barrow road system would not prevent 
the malicious shooting of these birds since they are likely not being 
shot with any intention of use for subsistence.
    One commenter offered general recommendations on how the Service 
should approach management of the subsistence harvest of all shorebird 
species. The commenter suggested: (1) Managing shorebirds in a global, 
year-round context; (2) managing species at the population or local 
level; (3) managing species conservatively; (4) restricting harvest to 
customary and traditional areas; (5) confirming the identity of 
traditional harvested species; (6) monitoring harvest at appropriate 
levels of resolution; and (7) initiating outreach activities with 
subsistence hunters.
    Service Response: We have initiated outreach with the subsistence 
users; however, initial efforts have focused on identification of the 
closed species. As this effort is expanded, efforts will focus on 
species groups with known hunter identification problems such as many 
of the shorebirds. We agree that the intention of the international 
migratory bird treaties is to promote species management between 
countries, but this regulatory process focuses primarily on Alaska at 
this time. Improving the harvest monitoring of subsistence-taken 
migratory birds in Alaska is a high priority for the Service, with a 
statistically sound plan being developed and implemented in 2004.
    One respondent tackled the entire issue of determining which bird 
species should be open for harvest. The respondent pointed out that 
this subject has consumed a substantial amount of time over the past 2 
years, and the respondent hopes that the 2004 regulations will 
establish a list of open species that will be generally acceptable for 
the next few years. The respondent expressed that the process of 
designating species open or closed for harvest has been inhibited by: 
(1) Pressure on the Co-management Council to reduce the overall number 
of species open to hunting; (2) a lack of population status and trends 
data to back conservation concerns for species in question; and (3) by 
the absence of species evaluation criteria based on both biology and 
treaty implementation guidelines. This respondent followed up with a 
recommendation that the Service and Co-management Council promptly 
develop a process and criteria for evaluating species open or closed to 
harvest. Criteria for evaluation should include: (1) A customary and 
traditional use determination; (2) species population status and trends 
data; (3) harvest data; and (4) other factors affecting the population 
such as habitat and climate changes and hunting in other portions of 
the species' range.
    This same respondent expresses appreciation that the public in 
other parts of the country may not understand the full scope of 
subsistence in Alaska and how we can manage this traditional harvest in 
a sustainable manner. In the respondent's view, during the 2003 and 
2004 regulatory cycles, too much pressure was placed on the regional 
groups to gather evidence of customary and traditional use, and then 
agency staff did not coordinate or supplement the largely anecdotal 
information that was submitted. The respondent feels that the Service 
needs to accept the responsibility for conducting research on 
traditional use, with appropriate expertise including the State, to 
develop thorough records from ethnographic

[[Page 17323]]

studies, biological data, and sources of local knowledge.
    Service Response: The species selection process occurs annually in 
Co-management Council deliberations and the Service's regulatory 
process. These recommendations will be brought to the attention of the 
Co-management Council to develop a course of action for a more 
consistent deliberation process in regard to the list of bird species 
open to harvest. We are currently researching the best way to gather 
and bring together traditional ecological knowledge. A workshop on this 
subject is scheduled for the April 2004 meeting of the Co-management 

How Does the Service Address the Birds of Conservation Concern Relative 
to the Subsistence Harvest?

    Two respondents reminded the Service that 7 of the 12 species of 
conservation concern are also on the Audubon Watchlist because of well-
documented population declines, giving further support for removal of 
these species from the harvest list. However, one respondent did 
recognize the need to consider traditional use and dependence on these 
species and recommended that if they are left open to harvest, then (1) 
harvest lists should be regionalized and (2) the Service should specify 
that only traditional uses of these birds are permitted.
    Service Response: The issue of regionalizing bird harvest lists has 
been proposed for the 2005 harvest season, and the Co-management 
Council will be making recommendations on this issue in April 2004. As 
for requiring only traditional uses of birds, the Migratory Bird Treaty 
Amendments and current regulations already specify that birds may be 
taken for human consumption only, with nonedible byproducts available 
to be used for other purposes, except taxidermy. In addition, no 
migratory birds, their parts, or their eggs may be sold, offered for 
sale, or purchased.
    Bar-tailed Godwits, Dunlin, and Red-legged Kittiwakes: Two 
respondents recommended that the Service reconsider removing Bar-tailed 
Godwits, Dunlin, and Red-legged Kittiwakes from the list of birds open 
to harvest. It was pointed out that no justification was offered in the 
Federal Register documents to justify the prior decision of the SRC to 
keep them open to harvest. In the case of Dunlin, the primary concern 
is the arctic race (Calidris alpina articola), which is on the Audubon 
WatchList. The respondents also stated that for Bar-tailed Godwits, the 
concern is poor reproductive success and the ``look-alike'' issue with 
the other Godwits.
    One additional respondent also requested reconsideration for Bar-
tailed Godwits. This respondent explained that they are concerned with 
subsistence harvest of the Bar-tailed Godwit because of the high 
likelihood that the current level of harvest is above that which is 
sustainable. First, post-breeding surveys suggest that large-scale 
reproductive failures have occurred repeatedly during the past five 
years within the Alaska breeding population for unknown reasons. 
Secondly, Godwits from this population are harvested for subsistence in 
other portions of the flyway (e.g., China and New Zealand) in addition 
to Alaska; the levels of such harvest and their cumulative impacts on 
the population are largely unknown but could be significant. In 
addition, allowing hunting of Bar-tailed Godwits may result in 
incidental harvest of closely related hudsonian and marbled godwits. 
This respondent further requests that the Service: (1) Develop a 
population-viability model to estimate the effect of the harvest on the 
population; (2) set up an international agreement on the level of 
subsistence harvest among all countries hosting significant portions of 
the species population; (3) acquire harvest data from the other 
countries involved in take of this species; and (4) acquire accurate 
subsistence harvest data from villages in the key staging areas in 
western Alaska.
    Service Response: As for reconsideration for Bar-tailed Godwits, 
Dunlin, and Red-legged Kittiwakes, the Service decided to keep these on 
the list of birds open to harvest in 2004, based on a comparison of 
documented traditional take and subsistence importance with the 
population data used to place these birds on the BCC list. Red-legged 
Kittiwakes are of well-documented importance in the Pribilof Islands, 
and continued harvest actually promotes closer protection of their 
nesting habitat among the local residents. Bar-tailed Godwits are an 
important subsistence resource for a small number of villages in the 
Yukon-Kuskokwim Delta, where there is little overlap with the other 
godwit species. Dunlin are lumped with other small shorebirds in the 
harvest data, but this harvest is documented as locally important for 
some small, coastal villages in the Yukon-Kuskokwim Delta and the 
Bering Straits region. For all three of these species, a significant 
local dependence was well documented; however, their actual reported 
take was very low relative to the species' population size and limited 
in scope to only a few small communities in western Alaska. We note 
that proposals can be submitted to request removal of these species 
with further justification for future seasons, and these proposals will 
be reconsidered at that time.
    Service Response Note: Because of the wide-ranging views and 
comments we received on the remainder of this subject, we have 
responded to these additional concerns at the end of this summary of 
public comments (Sec.  92.32).
    Solitary Sandpiper: One respondent requests removal from the list 
of birds open to harvest. Despite having one of the largest breeding 
ranges of any North American sandpiper, the current continental 
population of the Solitary Sandpiper is estimated to be only 25,000 
individuals. The respondent explains that the estimated population size 
of the Alaskan-breeding race, T. s. cinnamomea, is only 4,000 
individuals. If accurate, this population estimate indicates that the 
Alaskan-breeding race of the Solitary Sandpiper is among the most rare 
shorebirds in North America. Breeding Bird Survey data from Alaska 
since 1980 reveal a population decline of 4.1 percent per year, 
suggesting that the Alaskan population today is only a third as large 
as it was a quarter century ago.
    Black Oystercatcher: One commenter requests removal from the list 
of birds open to harvest. The commenter explains that the worldwide 
population of the Black Oystercatcher is estimated to number fewer than 
11,000 individuals, with 60 percent of those residing in Alaska. 
Oystercatchers are completely dependent upon a narrow coastal area 
throughout their life cycle, where they are highly susceptible to human 
disturbance and oil spills. Their strong fidelity to breeding 
territories, easy accessibility, conspicuous behavior, and limited 
reproductive potential make them particularly vulnerable to local 
extirpation through persistent subsistence harvest of either breeding 
adults or eggs.
    Red Knot: One commenter requests removal from the list of birds 
open to harvest. The commenter explains that recent evidence suggests 
that populations of at least three of the five subspecies of Red Knot 
have been declining, some precipitously so, within the past 3 years. 
Little is known about the distribution or status of the population 
occurring in Alaska (C. c. roselaari), but its population size is 
thought to total only about 20,000 individuals. This subspecies may mix 
on some wintering areas in South America with the subspecies C. c. 
rufa, whose population size plummeted by 47 percent 2000-02 and whose 

[[Page 17324]]

survival rate dropped by 37 percent 2000-01. Knots are taken for food 
in some regions of South America, especially in the Guianas, and for 
sport in Barbados. The extent of this take is suspected to be 
substantial. All of the major migration staging sites and most of the 
major nonbreeding range are on temperate coastlines where sea level 
change is predicted to be greatest. Concentration of the entire 
population of Knots at these few staging sites also makes them 
vulnerable to habitat degradation.
    One respondent requests that harvest should be continued for 
Wandering Tattlers, Upland Sandpipers and Black Turnstones only if: (1) 
Subsistence harvest is allowed only within the regions in which there 
is documented customary and traditional harvest; and (2) accurate 
subsistence harvest data are gathered at the regional level to monitor 
possible impacts of such harvest on the populations. The respondent 
explained that harvest of geographically restricted or isolated 
populations could result in local extirpation, and that accurate 
harvest data would be necessary to monitor potential impacts.
    One commenter requests that all of the 12 birds with conservation 
concerns remain open to subsistence harvest except for Red-faced 
Cormorants and Black Oystercatchers, based on information that the 
indigenous people of the Bering Strait/Norton Sound continue to utilize 
these species for subsistence purposes. The commenter believes that 
regional harvests of these birds in question do not have an overall 
negative impact on the species' population. The commenter also explains 
that despite the SRC's request for customary and traditional use 
information on these species, funding was not made available to gather 
this information, so information used is of a more general nature.
    One commenter requests that all of the 12 species with conservation 
concerns remain open to harvest in 2004 except for Wandering Tattler, 
because it is identified as a species of high conservation concern in 
the 2001 United States Shorebird Conservation Plan. The commenter also 
suggests that concerns about the continued harvest of the other species 
of concern may be mitigated by establishing regional species 
    The Co-management Council responded to the Service's request for 
documentation of traditional use of the BCC birds by providing written 
testimony of traditional subsistence use of 9 of the 12 species: Black 
Oystercatchers, Whiskered Auklets, Arctic and Aleutian Terns, Black 
Turnstones, Wandering Tattlers, Upland Sandpipers, Red-throated Loons, 
and Red-faced Cormorants. Based on the data provided, the Co-management 
Council petitioned the Service to keep 5 of the 12 species in question 
on the list of birds open to harvest. These five species were: Red-
throated Loons, Black Oystercatchers, Arctic and Aleutian Terns, and 
Whiskered Auklets. The Co-management Council remained silent on the 
remaining seven species.
    Service Response: We considered the broad array of public sentiment 
received and carefully weighed the biological details of the 
conservation concerns with the information provided on the traditional 
use and dependence on these species and the subsistence mandates given 
us through the amended migratory bird treaty protocol. Based on this 
thorough analysis, we have determined that harvest will be allowed in 
2004 on the five species petitioned by the Co-management Council. The 
substantial documentation provided on subsistence traditional use and 
dependence on these species supported allowing continued harvest at 
this time. In most cases, a strong, local dependence on these species 
was well documented; however, their actual reported take was very low 
relative to the species' population size and limited in scope, such as 
the use of oystercatchers and terns primarily for egg gathering.
    Harvest will not be allowed in 2004 on the other seven species of 
birds with conservation concerns listed in the proposed rule: Red-faced 
Cormorants, Solitary Sandpipers, Wandering Tattlers, Upland Sandpipers, 
Black Turnstones, Red Knots, and Short-eared Owls. Due to the limited 
amount of documented subsistence use and dependence on these species, 
the conservation concerns warranted removal from the harvest list.

Section 92.5 Who Is Eligible to Participate?

    The respondent endorses inclusion of the listed communities that 
petitioned the Co-management Council for participation in the harvest 
beginning in 2004. In general, the petitions were well supported with 
documentation of customary and traditional harvests, concurrence with 
basic regulations (e.g., species open to hunting, methods, etc.), 
cooperative development of practical boundaries of hunt areas, and 
application of conservation measures for some species of concern (i.e., 
Tule White-fronted Geese, Dusky Canada Geese).
    Given that the 2004 regulations cycle provided the first examples 
of petitions from excluded areas, the Co-management Council gained some 
appreciation for the particular issues to be considered and recognized 
some potential problems that need further attention. The respondent, 
however, is concerned that, in the absence of harvest quantity 
regulations, the Co-management Council is faced with an ``all or 
nothing'' decision in evaluating petitions from communities that have a 
historic pattern of minor spring harvest, but request full 
participation. Although some communities have requested limited 
harvests of specific resources (e.g., Hoonah and only gull eggs), 
others may request broad hunting seasons on all species regardless that 
most of their historic harvest has been in fall and winter. The 
respondent recognizes that seasonal harvest patterns are a matter of 
degree, and does not want to overly restrict traditional harvest 
patterns. However, without more detailed criteria for regulating 
harvest by petitioning communities, there is a potential for 
authorizing harvests that exceed traditional levels or that include 
more diverse resources than those taken in the past. The respondent 
recommends that the Service and Co-management Council work toward 
development of criteria that more specifically evaluate levels of 
significance of traditional spring and summer harvests in considering 
petitions for inclusion; regulations that result from positive findings 
should more precisely authorize traditional patterns of resource use.
    Service Response: We concur with these observations and suggestions 
and, using a sub-committee from the Co-management Council, are in the 
initial phases of developing a draft set of inclusion/exclusion 
criteria to be used for future decisions.

Section 92.6 Use and Possession of Migratory Birds

    The Co-management Council requested that language be added to 
prohibit possession of taxidermy mounts (in lifelike representations) 
of subsistence-taken birds, since it is not a customary and traditional 
use of these birds. They also stated that they do not want to restrict 
use of taxidermy techniques to preserve bird parts for use in 
traditional crafts such as the making of clothing, nor do they want to 
restrict birds from being used under permit for scientific research or 
education. One additional commenter also supported the view of the Co-
management Council requesting that taxidermy be prohibited.
    Service Response: We concur with this request and have added 
prohibitory language to this section as well as

[[Page 17325]]

defining taxidermy under Sec.  92.4 Definitions.
    One respondent supported allowing access to subsistence-harvested 
birds for research and educational purposes; however, this respondent 
also expressed that, given that these birds must be, by regulation, 
harvested as food, it may be more emphatic to word the regulation as 
permission to ``receive portions of birds or their eggs not salvaged 
for human consumption * * *.'' We need to prevent harvest and transfer 
of birds by persons having no intent to consume the primary edible 
    Service Response: We do not concur with this request for a wording 
change. In paragraph (a) of this section, it clearly states that birds 
may be taken for human consumption only. Also, the term ``salvage'' has 
very different definitions and connotations in State and Federal 
Harvest regulations. Currently in Federal regulations, it refers to the 
retrieving of birds found already dead, whereas in State regulations it 
refers to what animal parts constitute ``edible'' portions and must be 
retrieved from the field. Inserting this word into the possession 
regulations without it being clearly defined elsewhere could create an 
ambiguity for the reader.

Section 92.33 Region-Specific Regulations

    One commenter complimented the new proposed language describing the 
egg collection area for Hoonah, but requested that language be added to 
the preamble clarifying that Glacier Bay National Park will remain 
closed and explain the rationale for this regulatory language.
    Service Response: We concur with this request and have added this 
language to the preamble.
    One respondent supported the additional closure of a water buffer 
zone around the Kodiak roaded area but expressed that the offshore 
islands should also be closed due to their easy access by Kodiak town 
residents, many of whom are nontraditional users.
    Service Response: Testimony has been documented at past Co-
management Council meetings expressing that use of the islands and 
their surrounding waters is the primary customary and traditional use 
zone within the Kodiak roaded area. More documentation of conservation 
concerns would be necessary to justify closing this customary and 
traditional harvest area.
    One respondent requested that all the resident-zone communities of 
Wrangell-St. Elias National Park be included in the list of communities 
eligible for harvest in the Copper River Basin. The additional 
communities would be: Chisana, Glennallen, Gakona Junction, Kenny Lake, 
Lower Tonsina, McCarthy, Nebesna, Slana, and Tonsina. The respondent 
explained that listing only half of the area communities is unwise and 
goes against the spirit of the Alaska National Interest Lands 
Conservation Act (ANILCA).
    Service Response: Development of the spring/summer subsistence 
migratory bird harvest regulations is guided solely by the 
international migratory bird treaties, and not by ANILCA legislation. 
New communities can be granted eligibility only by petitioning to the 
Co-management Council and the Service for inclusion (50 CFR Part 92.5). 
We have received no formal requests by the above-listed additional 
communities to be included in the subsistence migratory bird harvest.

Effective Date

    Under the Administrative Procedure Act, our normal practice is to 
publish rules with a 30-day delay in effective date. However, for this 
rule, we are using the ``good cause'' exemption under 5 U.S.C. 553 
(d)(3) to make this rule effective immediately upon publication in 
order to ensure conservation of the resource for the upcoming spring/
summer subsistence harvest. The rule needs to be made effective 
immediately for the following reason. The amended migratory bird treaty 
protocol allows for an April 2 opening of the subsistence harvest 
season. To limit negative impacts on the subsistence users, we need to 
open the harvest as close as possible to the original agreed-upon 
opening date.

Statutory Authority

    We derive our authority to issue these regulations from the 
Migratory Bird Treaty Act of 1918 (16 U.S.C. 703 et seq.), which 
implements the four migratory bird treaties with Canada, Mexico, Japan, 
and Russia. Specifically, these regulations are issued consistent with 
the applicable treaties 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

    The Office of Management and Budget (OMB) has determined that this 
document is not a significant rule subject to OMB review under 
Executive Order 12866.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. The rule does not provide 
for new or additional hunting opportunities and therefore will have 
minimal economic or environmental impact. This rule benefits those 
participants who engage in the subsistence harvest of migratory birds 
in Alaska in two identifiable ways: first, participants receive the 
consumptive value of the birds harvested, and second, participants get 
the cultural benefit associated with the maintenance of a subsistence 
economy and way of life. The Service can estimate the consumptive value 
for birds harvested under this rule but does not have a dollar value 
for the cultural benefit of maintaining a subsistence economy and way 
of life. The economic value derived from the consumption of the 
harvested migratory birds has been estimated using the results of a 
paper by Robert J. Wolfe titled ``Subsistence Food Harvests in Rural 
Alaska, and Food Safety Issues'' (August 13, 1996). Using data from 
Wolfe's paper and applying it to the areas that will be included in 
this process, 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.

[[Page 17326]]

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 used 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 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 Co-management Council and regional management bodies' 
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.

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, 
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 
legalize the subsistence harvest of migratory birds and their eggs for 
tribal members, as well as for other indigenous inhabitants.

Endangered Species Act Consideration

    Section 7 of the Endangered Species Act, as amended (16 U.S.C. 
1531-1543; 87 Stat. 884), provides that, ``The Secretary shall review 
other programs administered by him and utilize such programs in 
furtherance of the purposes of the Act'' and shall ``insure that any 
action authorized, funded, or carried out * * * is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat. * * *'' Consequently, we consulted with the 
Anchorage Fish and Wildlife Field Office of the Service to ensure that 
actions resulting from these regulations would not likely jeopardize 
the continued existence of Spectacled or Steller's Eiders or result in 
the destruction or adverse modification of their critical habitat. 
Findings from this consultation are included as an appendix to the 
Biological Opinion on the Effects of Legalization of a Spring and 
Summer Subsistence Harvest of Birds on the Threatened Steller's and 
Spectacled Eiders (dated March 30, 2003). The appended consultation 
concluded that changes from the 2003 regulations are not likely to 
adversely affect either the Steller's or Spectacled Eider. 
Additionally, any modifications

[[Page 17327]]

resulting from this consultation to regulatory measures previously 
proposed are reflected in the final rule. The complete administrative 
record for this consultation is on file at the Anchorage Fish and 
Wildlife Field Office and is also 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 2004,'' issued September 16, 2003, modified, with a Finding 
of No Significant Impact issued February 18, 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 amend title 50, chapter I, 
subchapter G, of the Code of Federal Regulations as follows:


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.  92.4 by adding the definitions ``Game 
Management Unit,'' ``Seabirds,'' ``Shorebirds,'' ``Taxidermy,'' and 
``Waterfowl,'' to read as follows:

Sec.  92.4  Definitions

* * * * *
    Game Management Unit, also referred to simply as Unit, means 1 of 
the 26 geographical areas listed in the codified State of Alaska 
hunting and trapping regulations and on maps of the Alaska State Game 
Management Units.
* * * * *
    Seabirds refers to all bird species listed in Sec.  92.32 within 
the families Alcidae, Laridae, Procellariidae, and Phalacrocoracidae.
* * * * *
    Shorebirds refers to all bird species listed in Sec.  92.32 within 
the families Charadriidae, Haematopodidae, and Scolopacidae.
* * * * *
    Taxidermy refers to birds preserved and mounted in lifelike 
representations. Taxidermy does not include preserving bird parts to be 
integrated into traditional arts and crafts.
* * * * *
    Waterfowl refers to all bird species listed in Sec.  92.32 within 
the family Anatidae.

3. In subpart A, amend Sec.  92.5 by revising paragraph (a) to read as 

Sec.  92.5  Who is eligible to participate?

* * * * *
    (a) Included areas. Village areas located within the Alaska 
Peninsula, Kodiak Archipelago, the Aleutian Islands, or in areas north 
and west of the Alaska Range are subsistence harvest areas, except that 
villages within these areas not meeting the criteria for a subsistence 
harvest area as identified in paragraph (c) of this section will be 
excluded from the spring and summer subsistence harvest.
    (1) Any person may request the Co-management Council to recommend 
that an otherwise included area be excluded by submitting a petition 
stating how the area does not meet the criteria identified in paragraph 
(c) of this section. The Co-management Council will forward petitions 
to the appropriate regional management body for review and 
recommendation. The Co-management Council will then consider each 
petition and will submit to the U.S. Fish and Wildlife Service any 
recommendations to exclude areas from the spring and summer subsistence 
harvest. The U.S. Fish and Wildlife Service will publish any approved 
recommendations to exclude areas in subpart D of this part.
    (2) Based on petitions for inclusion recommended by the Co-
management Council in 2003, the Service is adding the following 
communities to the included areas under this part starting in the 2004 
harvest season:
    (i) Upper Copper River Region--Gulkana, Gakona, Tazlina, Copper 
Center, Mentasta Lake, Chitina, Chistochina.
    (ii) Gulf of Alaska Region--Chugach Community of Tatitlek, Chugach 
Community of Chenega, Chugach Community of Port Graham, Chugach 
Community of Nanwalek.
    (iii) Cook Inlet Region--Tyonek.
    (iv) Southeast Alaska Region--Hoonah.
* * * * *

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

Sec.  92.6  Use and possession of migratory birds.

    You may not sell, offer for sale, purchase, or offer to purchase 
migratory birds, their parts, or their eggs taken under this part.
    (a) Eligible persons. Under this part, you may take birds for human 
consumption only. Harvest and possession of migratory birds must be 
done using nonwasteful taking. Nonedible byproducts of migratory birds 
taken for food may be used for other purposes, except that taxidermy is 
not allowed.
    (b) Noneligible persons. You may receive portions of birds or their 
eggs not kept for human consumption from eligible persons only if you 
have a valid permit issued under 50 CFR 21.27 for scientific research 
or education, and consistent with the terms and conditions of that 

Subpart C--General Regulations Governing Subsistence Harvest

5. In subpart C, amend Sec.  92.20 by revising paragraph (i) to read as 

Sec.  92.20  Methods and means.

* * * * *
    (i) Using an air boat (Interior and Bristol Bay Regions only) or 
jet ski (Interior Region only) for hunting or transporting hunters.

Subpart D--Annual Regulations Governing Subsistence Harvest

6. In Subpart D, add Sec. Sec.  92.31 through 92.33 to read as follows:

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.

[[Page 17328]]

    (b) In addition, you may not gather eggs from the following 
    (1) Cackling Canada Goose (Branta canadensis minima).
    (2) Black Brant (Branta bernicla nigricans)--in the Yukon/Kuskokwim 
Delta and North Slope regions only.

Sec.  92.32  Subsistence migratory bird species.

    You may harvest birds or gather eggs from the following species, 
listed in taxonomic order, within all included regions. When birds are 
listed only to the species level, all subspecies existing in Alaska are 
open to harvest.
    (a) Family Anatidae.
    (1) Greater White-fronted Goose (Anser albifrons).
    (2) Snow Goose (Chen caerulescens).
    (3) Lesser Canada Goose (Branta canadensis parvipes).
    (4) Taverner's Canada Goose (Branta canadensis taverneri).
    (5) Aleutian Canada Goose (Branta canadensis leucopareia)--except 
in the Semidi Islands.
    (6) Cackling Canada Goose (Branta canadensis minima)--except no egg 
gathering is permitted.
    (7) Black Brant (Branta bernicla nigricans)--except no egg 
gathering is permitted in the Yukon/Kuskokwim Delta and the North Slope 
    (8) Tundra Swan (Cygnus columbianus).
    (9) Gadwall (Anas strepera).
    (10) Eurasian Wigeon (Anas penelope).
    (11) American Wigeon (Anas americana).
    (12) Mallard (Anas platyrhynchos).
    (13) Blue-winged Teal (Anas discors).
    (14) Northern Shoveler (Anas clypeata).
    (15) Northern Pintail (Anas acuta).
    (16) Green-winged Teal (Anas crecca).
    (17) Canvasback (Aythya valisineria).
    (18) Redhead (Aythya americana).
    (19) Ring-necked Duck (Aythya collaris).
    (20) Greater Scaup (Aythya marila).
    (21) Lesser Scaup (Aythya affinis).
    (22) King Eider (Somateria spectabilis).
    (23) Common Eider (Somateria mollissima).
    (24) Harlequin Duck (Histrionicus histrionicus).
    (25) Surf Scoter (Melanitta perspicillata).
    (26) White-winged Scoter (Melanitta fusca).
    (27) Black Scoter (Melanitta nigra).
    (28) Long-tailed Duck (Clangula hyemalis).
    (29) Bufflehead (Bucephala albeola).
    (30) Common Goldeneye (Bucephala clangula).
    (31) Barrow's Goldeneye (Bucephala islandica).
    (32) Hooded Merganser (Lophodytes cucullatus).
    (33) Common Merganser (Mergus merganser).
    (34) Red-breasted Merganser (Mergus serrator).
    (b) Family Gaviidae.
    (1) Red-throated Loon (Gavia stellata).
    (2) Arctic Loon (Gavia arctica).
    (3) Pacific Loon (Gavia pacifica).
    (4) Common Loon (Gavia immer).
    (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 2004 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.

[[Page 17329]]

    (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 closed 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 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.
    (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) Note: The Copper River Basin communities listed in this 
paragraph (i) also documented traditional use harvesting birds in Unit 
12, making them eligible to hunt in this unit using the seasons 
specified in paragraph (h)(1) 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 (Harvest area: National Forest 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]). 
(Eligible communities: Hoonah only).
    (1) Season: glaucous-winged gull egg gathering only: May 15-June 
    (2) Closure: July 1-August 31.

    Dated: March 25, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-7307 Filed 4-1-04; 8:45 am]