[Federal Register Volume 84, Number 146 (Tuesday, July 30, 2019)]
[Rules and Regulations]
[Pages 36840-36842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16053]



Fish and Wildlife Service

50 CFR Part 92

[Docket No. FWS-R7-MB-2019-0005; FXMB12610700000-190-FF07M01000]
RIN 1018-BD07

Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 
for Migratory Birds in Alaska During the 2019 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Affirmation of interim rule as final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service, are adopting as a 
final rule an interim rule that went into effect on April 2, 2019, and 
established migratory bird subsistence harvest regulations in Alaska 
for the 2019 season. These regulations allow for the continuation of 
customary and traditional subsistence uses of migratory birds in Alaska 
and prescribe regional information on when and where the harvesting of 
birds may occur. The rulemaking is necessary because the regulations 
governing the subsistence harvest of migratory birds in Alaska are 
subject to annual review. Therefore, for the reasons given in the 
interim rule and in this document, we are adopting the interim rule as 
a final rule without change.

DATES: The effective date for the interim rule that published April 3, 
2019, at 84 FR 12946, is affirmed as April 2, 2019.

ADDRESSES: Documents pertaining to this rulemaking action are available 
on the internet at the Federal eRulemaking Portal: http://www.regulations.gov at Docket No. FWS-R7-MB-2019-0005.

FOR FURTHER INFORMATION CONTACT: Eric J. Taylor, U.S. Fish and Wildlife 
Service, 1011 E Tudor Road, Mail Stop 201, Anchorage, AK 99503; (907) 



    On April 3, 2019, we, the U.S. Fish and Wildlife Service, published 
an interim rule in the Federal Register (84 FR 12946). The interim rule 
set forth regulations in title 50 of the Code of Federal Regulations 
(CFR) in part 92 pertaining to the take of migratory birds in Alaska 
for subsistence uses during the spring and summer of 2019. These 
regulations also set forth a list of migratory bird season openings and 
closures in Alaska by region. The interim rule was effective April 2, 
2019, and we solicited public comments on it until May 3, 2019. In this 
document, we address the comments received.
    This rulemaking is necessary because, by law, the migratory bird 
harvest season is closed unless opened by the Secretary of the 
Interior, and the regulations governing subsistence harvest of 
migratory birds in Alaska are subject to public review and annual 
approval. We derive our authority to issue these regulations from the 
Migratory Bird Treaty Act of 1918 (MBTA), at 16 U.S.C. 712(1), which 
authorizes the Secretary of the Interior, in accordance with the 
treaties with Canada, Mexico, Japan, and Russia, to issue regulations 
to ensure 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.'' Per the MBTA, the normal season for the subsistence 
harvest of migratory birds in Alaska begins on April 2 each year.

Interim Rule

    To meet the April 2 opening date for the 2019 season for Alaska 
subsistence harvest of migratory game birds, we published an interim 
rule. We were not able to publish a proposed rule due to unforeseen 
time constraints and publishing an interim rule allowed us to respect 
the subsistence harvest of many rural Alaskans for their cultural or 
religious exercise, sustenance, and/or collection of materials for 
cultural use (e.g., handicrafts). We regret any confusion that 
publishing an interim rule may have caused.
    The Alaska subsistence harvest regulations, which are set forth in 
50 CFR part 92, subpart D, have generally been similar the past several 
years, and with no significant controversy from the public. The 
provisions for 50 CFR part 92, subpart D, in the April 3, 2019, interim 
rule are the same as those set forth in our March 30, 2018, final rule 
(83 FR 13684). These regulations were developed under a co-management 
process involving the Service, the Alaska Department of Fish and Game 
(ADF&G), and Alaska Native representatives.

Conservation Issues

    We have monitored subsistence harvest for more than 25 years 
through the use of household surveys in the most heavily used 
subsistence harvest areas, such as the Yukon-Kuskokwim

[[Page 36841]]

Delta. Based on our monitoring of the migratory bird species and 
populations taken for subsistence, we find that this rule will provide 
for the preservation and maintenance of migratory bird stocks as 
required by the MBTA. Moreover, Alaska migratory bird subsistence 
harvest rates have continued to decline since the inception of the 
subsistence-harvest program, reducing concerns about the program's 
effect on the preservation and maintenance of stocks of migratory 
    Under the Endangered Species Act of 1973, as amended (ESA; 16 
U.S.C. 1531 et seq.), spectacled eiders (Somateria fischeri) and the 
Alaska-breeding population of Steller's eiders (Polysticta stelleri) 
are listed as threatened species. Their migration and breeding 
distribution overlap with areas where the spring and summer subsistence 
migratory bird harvest is open in Alaska. Both species are closed to 
hunting, although harvest surveys and Service documentation indicate 
both species are taken in several regions of Alaska.
    In accordance with section 7 of the ESA, we conducted an intra-
agency consultation with the Service's Fairbanks Fish and Wildlife 
Field Office on the interim rule. The consultation was completed with a 
biological opinion that concluded the interim rule and conservation 
measures are not likely to jeopardize the continued existence of 
Steller's and spectacled eiders or result in the destruction or adverse 
modification of designated critical habitat.
    We have reviewed the comments submitted on the interim rule, and we 
confirm the finding that this rule complies with the ESA. For detailed 
information about efforts to ensure conservation of these species, see 
the April 3, 2019, interim rule (84 FR 12946). See also below in this 
document our response to a comment on ESA-listed eiders.

Public Comments

    By the close of the comment period on the interim rule, we received 
three comments, only one of which raised issues within the scope of 
this rulemaking action.
    Issue: The commenter stated that the Service could have been more 
explicit regarding its inability to follow the normal rulemaking 
process and solicit public comment prior to promulgating the interim 
rule. The commenter expressed the desire for the Service to revert to 
its usual process of publishing a proposed rule and allowing a 30-day 
comment period before publishing regulations.
    Response: The partial government lapse in appropriations prevented 
the Service from publishing a proposed and final rule for the 2019 
Alaska migratory bird subsistence harvest in time to meet the April 2, 
2019, opening season date. To ensure that we could publish regulations 
in time to meet that opening date, while getting comments from the 
public, the Service engaged with stakeholders and reached agreement to 
publish an interim rule. We do not intend to use an interim rule again 
for this purpose, as doing so prevents modifications to the regulations 
implemented in consultation with the Alaskan communities. In future 
Alaska migratory bird subsistence harvest rulemaking actions, we expect 
to have a proposed rule prepared earlier in the process to ensure that 
we can have a final rule published in time to meet the April 2 opening 
date for the season.
    Issue: The commenter expressed concern about the current system of 
gathering information about the effects of the subsistence harvest by 
sending household surveys to the area that uses the subsistence harvest 
the most. The commenter suggested that we should consider instituting a 
survey at the purchase of a hunting or fishing license or driver's 
license, similar to the process used for purchasing a Federal duck 
stamp, in an effort to get a more complete count of subsistence harvest 
    Response: In collaboration with the ADF&G, the Service conducts an 
annual migratory bird subsistence harvest survey. The migratory bird 
subsistence harvest survey objectives, design, implementation, 
analyses, and reporting were revised after completion of a 4-year 
contract with Colorado State University.\1\ On their website, ADF&G 
provides specific information on program overview, harvest and local 
knowledge, research, annual harvest estimates, outreach and 
communication, and annual survey methods: http://www.adfg.alaska.gov/index.cfm?adfg=subsistence.AMBCC.

    \1\ T. Luke George, D. Otis and P. Doherty. 2015. Review and 
Revision of the Alaska Migratory Bird Council Subsistence Harvest 
Survey. Department of Fish, Wildlife, and Conservation Biology, 
Colorado State University Fort Collins, CO 80523: http://www.adfg.alaska.gov/static/home/subsistence/pdfs/05_Survey_Review%20II_2014-2018.pdf.

    Issue: The commenter stated that some spectacled eiders and 
Steller's eiders, which are protected under the ESA, are harvested 
during the subsistence harvest season and it is important for the 
Service to engage in wider hunter education on the threatened nature of 
these species and how to identify these birds prior to harvest, in 
order to decrease the impact upon these delicate populations. The 
commenter further stated that the Service must balance its obligations 
to allow for subsistence harvest and its obligations under the MBTA and 
the ESA and that increasing harvest inspections in the areas 
surrounding the breeding habitats of these birds would increase 
    Response: The Service appreciates the comments addressing 
protection of threatened spectacled and Steller's eiders concurrent 
with allowing the customary and traditional spring/summer subsistence 
harvest of migratory birds in Alaska. On March 22, 2019, the Service 
published the Biological Opinion for Migratory Subsistence Harvest: 
Hunting Regulations for the Spring/Summer Harvest. The Service believes 
the effectiveness of the migratory bird hunting regulations will be 
ensured by compliance checks by the Service's Office of Law Enforcement 
and by working to develop stewardship and voluntary efforts by hunters. 
In addition, the Service will continue biological monitoring to gather 
data critical to managers tasked with making informed management 
decisions. In addition to the regulations, conservation measures will 
be implemented to:
    1. Verify compliance with migratory bird hunting regulations, 
including regulations prohibiting the use of lead shot for hunting 
    2. Enhance a culture of conservation through continued education of 
hunters; and
    3. Continue to gather data on listed eiders that enable more 
informed management decisions. A copy of the Biological Opinion and the 
administrative record of this consultation is available at http://www.regulations.gov in Docket No. FWS-R7-MB-2019-0005 and from the U.S. 
Fish and Wildlife Service, Fairbanks Fish and Wildlife Field Office, 
101 12th Avenue, Room 110, Fairbanks, Alaska 99701.
    Finally, the Service published and mailed 2,000 copies of the 2019 
Alaska Subsistence Spring/Summer Migratory Bird Harvest booklets to 
Federal, State, borough, Alaska Native, and other partner offices in 
all regions containing eligible areas and villages. On page 15 of the 
2019 regulations booklet, the Service states, ``Protect our Steller's 
and Spectacled Eiders--Don't Shoot Them!'' and includes pictures of 
both Steller's and spectacled eiders sitting on water and flying and 
their names translated in Alaska Native languages. The Service

[[Page 36842]]

commits to continuing the outreach, education, and communication 
programs that were developed, and are continually modified, by the 
Service and its partners.

Required Determinations

    We hereby affirm our responses to the following determinations 
required of the Federal rulemaking process as published in the April 3, 
2019, interim rule (84 FR 12946):

 Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, 
13563, and 13771
 Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 601 et seq. and 804(2))
 Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
 Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
 National Environmental Policy Act (42 U.S.C. 4321 et seq.)
 Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951, and 512 DM 2)

List of Subjects in 50 CFR Part 92

    Hunting, Treaties, Wildlife.

Affirmation of Interim Rule

    Accordingly, the Department of the Interior affirms as a final 
rule, without change, the interim rule amending 50 CFR part 92 that was 
published at 84 FR 12946 on April 3, 2019.

    Authority:  16 U.S.C. 703-712.

    Dated: July 19, 2019.
Karen Budd-Falen,
Deputy Solicitor for Parks and Wildlife, Exercising the Authority of 
the Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-16053 Filed 7-29-19; 8:45 am]