[Federal Register Volume 76, Number 60 (Tuesday, March 29, 2011)]
[Rules and Regulations]
[Pages 17353-17360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7334]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 92

[Docket No. FWS-R9-MB-2010-0082; 91200-1231-9BPP-L2]
RIN 1018-AX30


Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 
for Migratory Birds in Alaska During the 2011 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) establishes 
migratory bird subsistence harvest regulations in Alaska for the 2011 
season. These regulations will enable 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. These regulations were developed under a co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives. The rulemaking is necessary because the 
regulations governing the subsistence harvest of migratory birds in 
Alaska are subject to annual review. This rulemaking establishes 
region-specific regulations that go into effect on April 2, 2011, and 
expire on August 31, 2011.

DATES: The amendments to subpart D of 50 CFR part 92 are effective 
April 2, 2011, through August 31, 2011.

FOR FURTHER INFORMATION CONTACT: Fred Armstrong, (907) 786-3887, or 
Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 1011 E. 
Tudor Road, Mail Stop 201, Anchorage, AK 99503.

SUPPLEMENTARY INFORMATION:

Why is this rulemaking necessary?

    This rulemaking is necessary because, by law, the migratory bird 
harvest

[[Page 17354]]

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. This rule 
establishes regulations for the taking of migratory birds for 
subsistence uses in Alaska during the spring and summer of 2011. This 
rule establishes a list of migratory bird season openings and closures 
in Alaska by region.

How do I find the history of these regulations?

    Background information, including past events leading to this 
rulemaking, accomplishments since the Migratory Bird Treaties with 
Canada and Mexico were amended, and a history addressing conservation 
issues can be found in the following Federal Register documents:

------------------------------------------------------------------------
                  Date                      Federal Register citation
------------------------------------------------------------------------
August 16, 2002........................  67 FR 53511
July 21, 2003..........................  68 FR 43010
April 2, 2004..........................  69 FR 17318
April 8, 2005..........................  70 FR 18244
February 28, 2006......................  71 FR 10404
April 11, 2007.........................  72 FR 18318
March 14, 2008.........................  73 FR 13788
May 19, 2009...........................  74 FR 23336
April 13, 2010.........................  75 FR 18764
------------------------------------------------------------------------

    BLE]These documents, which are all final rules setting forth the 
annual harvest regulations, are available at http://alaska.fws.gov/ambcc/regulations.htm or by contacting one of the people listed under 
FOR FURTHER INFORMATION CONTACT.

What is the process for issuing regulations for the subsistence harvest 
of migratory birds in Alaska?

    The U.S. Fish and Wildlife Service (Service or we) are establishing 
migratory bird subsistence harvest regulations in Alaska for the 2011 
season. These regulations enable 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. These regulations were developed under a co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives.
    We opened the process to establish regulations for the 2011 spring 
and summer subsistence harvest of migratory birds in Alaska in a 
proposed rule published in the Federal Register on June 10, 2010 (75 FR 
32872). While that proposed rule dealt primarily with the regulatory 
process for hunting migratory birds for all purposes throughout the 
United States, we also discussed the background and history of Alaska 
subsistence regulations, explained the annual process for their 
establishment, and requested proposals for the 2011 season. The 
rulemaking processes for both types of migratory bird harvest are 
related, and the June 10, 2010, proposed rule explained the connection 
between the two.
    The Alaska Migratory Bird Co-management Council (Co-management 
Council) held a meeting in April 2010 to develop recommendations for 
changes that would take effect during the 2011 harvest season. These 
recommendations were presented first to the Flyway Councils and then to 
the Service Regulations Committee at the committee's meeting on July 28 
and 29, 2010.
    On October 26, 2010, we published in the Federal Register (75 FR 
65599) a proposed rule that provided our proposed migratory bird 
subsistence harvest regulations in Alaska for the 2011 season. 
Regulations presented in that proposed rule were identical to those for 
the 2010 harvest season.

Who is eligible to hunt under these regulations?

    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 (50 CFR 92.5). 
These geographical restrictions opened the initial migratory bird 
subsistence harvest to about 13 percent of Alaska residents. High 
populated 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 eligible 
subsistence harvest areas.
    Based on petitions requesting inclusion in the harvest, in 2004, we 
added 13 additional communities based on criteria set forth in 50 CFR 
92.5(c). These communities were Gulkana, Gakona, Tazlina, Copper 
Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, Port 
Graham, Nanwalek, Tyonek, and Hoonah, with a combined population of 
2,766. In 2005, we added three additional communities for glaucous-
winged gull egg gathering only, based on petitions requesting 
inclusion. These southeastern communities were Craig, Hydaburg, and 
Yakutat, with a combined population of 2,459, based on the latest 
census information at that time.
    In 2007, we enacted the Alaska Department of Fish and Game's 
request to expand the Fairbanks North Star Borough excluded area to 
include the Central Interior area. This action excluded the following 
communities from participation in this harvest: Big Delta/Fort Greely, 
Healy, McKinley Park/Village, and Ferry, with a combined population of 
2,812.

What is different in the region-specific regulations for 2011?

    As stated earlier, regulations presented in the October 26, 2010, 
proposed rule (75 FR 65599) were identical to those for the 2010 
harvest season. However, after reviewing public comments received on 
the proposed rule and further internal discussions, the Service is 
removing the shooting hours restriction effective for the North Coastal 
Zone of the North Slope of Alaska. A full justification of this 
decision and how we will monitor results are detailed later in this 
final rule.

How will the service ensure that the subsistence harvest will not raise 
overall migratory bird harvest or threaten the conservation of 
endangered and threatened species?

    We have monitored subsistence harvest for the past 25 years through 
the use of annual household surveys in the most heavily used 
subsistence harvest areas, such as the Yukon-Kuskokwim Delta. In recent 
years, more intensive surveys combined with outreach efforts focused on 
species identification have been added to improve the accuracy of 
information gathered from regions still reporting some subsistence 
harvest of listed or candidate species.

Spectacled and Steller's Eiders

    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 hunt 
is open in Alaska. Both species are closed to hunting, although harvest 
surveys and Service documentation indicate both species have been taken 
in several regions of Alaska.
    The Service has dual goals and responsibilities for authorizing a 
subsistence harvest while protecting migratory birds and threatened 
species. Although these goals continue to be challenging, they are not 
irreconcilable, providing sufficient recognition is given to the need 
to protect threatened species, measures to remedy documented threats 
are implemented,

[[Page 17355]]

and the subsistence community and other conservation partners commit to 
working together. With these dual goals in mind, the Service, working 
with partners, developed measures in 2009 to further reduce the 
potential for shooting mortality or injury of closed species. These 
conservation measures included: (1) Increased waterfowl hunter outreach 
and community awareness partnering with the North Slope Migratory Bird 
Task Force; (2) continued enforcement of the migratory bird regulations 
that are protective of listed eiders; and (3) in-season Service 
verification of the harvest to detect Steller's eider mortality.
    This rule continues to focus on the North Slope from Barrow through 
Point Hope because Steller's eiders from the listed Alaska breeding 
population are known to breed and migrate there. These regulations were 
designed to address several ongoing eider management needs by 
clarifying for subsistence users that (1) service law enforcement 
personnel have authority to verify species of birds possessed by 
hunters, and (2) it is illegal to possess any bird closed to harvest. 
It also describes how the Service's existing authority of emergency 
closure would be implemented, if necessary, to protect Steller's 
eiders. We are willing to discuss many of the regulations with our 
partners on the North Slope to ensure the regulations protect closed 
species as well as provide subsistence hunters an opportunity to 
harvest migratory birds in a way that maintains the culture and 
traditional harvest of the community. The regulations pertaining to bag 
checks and possession of illegal birds are deemed necessary to verify 
compliance with not harvesting protected eider species.
    As for the shooting hours restriction, this regulation is similar 
to one in the State of Alaska's fall regulations, which take effect on 
September 1 each year. The goal of the shooting hours restrictions is 
to minimize the risk of inadvertent shooting of closed species when 
light levels are low and misidentification is more likely. The Service 
believes this regulation adds some level of conservation benefit for 
protected eiders. However, our co-management partners over the past 
couple of years have pointed out correctly that no Steller's eiders 
have been documented as taken during periods of low or no adequate 
light, and that the Service was addressing a non-problem with the 
shooting hours restrictions. It has been suggested that this action may 
be actually counterproductive to developing community understanding and 
support for conservation of Steller's eiders.
    The Service is aware and appreciates the considerable efforts by 
North Slope partners to raise awareness and educate hunters on 
Steller's eider conservation via the bird fair, meetings, radio shows, 
signs, school visits, and one-on-one contacts since 2008. We also 
recognize that no listed eiders have been documented shot in that last 
2 years, although we note that Steller's eiders did not have a 
significant breeding population in the Barrow area during this period. 
Also the Service acknowledges progress made with the other eider 
conservation measures including partnering with the North Slope 
Migratory Bird Task Force for increased waterfowl hunter awareness, 
continued enforcement of the regulations, and in-season verification of 
the harvest. At this time, the Service is removing the shooting hours 
restriction during subsistence harvest on the North Slope to foster 
moving forward with a stronger co-management approach to Steller's 
eider conservation. However, if evidence is gathered in the future 
indicating that shooting during times of low or no light is resulting 
in protected eider species being taken, then a return to the shooting 
hours restrictions will have to be considered. We plan to work closely 
with the North Slope Migratory Bird Task Force to develop and implement 
a harvest monitoring program that will verify that closed species are 
not being taken during the period when shooting hours would have been 
in effect. This monitoring program would be implemented starting this 
coming harvest season. Our primary strategy to reduce the threat of 
shooting mortality of threatened eiders continues to be working with 
North Slope partners to conduct education, outreach, and harvest 
monitoring, followed when necessary by law enforcement. In addition, 
the emergency closure authority provides another level of assurance if 
an unexpected amount of Steller's eider shooting mortality occurs (50 
CFR 92.21 and 50 CFR 92.32).
    In-season harvest monitoring information will be used to evaluate 
the efficacy of regulations, conservation measures, and outreach 
efforts. In 2009 and 2010, no Steller's eider harvest was reported on 
the North Slope, and no Steller's eiders were found shot during in-
season verification of the subsistence harvest. However, 2009 was a 
non-nesting year for Steller's eiders on the North Slope, and in 2010, 
only one active nest was found in the Barrow area. Based on these 
relative successes, the 2010 conservation measures will also be 
continued, although there will be some modification of the amount of 
effort and emphasis each will receive. Specifically, local communities 
have continued to develop greater responsibility for taking actions to 
ensure Steller's and spectacled eider conservation and recovery; and 
based on last year's observations, local hunters have demonstrated 
greater compliance with hunting regulations, so the Service's Office of 
Law Enforcement does not plan on maintaining a continuous presence in 
Barrow this season.
    The longstanding general emergency closure provision at 50 CFR 
92.21 specifies that the harvest may be closed or temporarily suspended 
upon finding that a continuation of the regulation allowing the harvest 
would pose an imminent threat to the conservation of any migratory bird 
population. With regard to Steller's eiders, the regulation at 50 CFR 
92.32, carried over from the past 2 years, would clarify that we will 
take action under 50 CFR 92.21 as is necessary to prevent further take 
of Steller's eiders, and that action could include temporary or long-
term closures of the harvest in all or a portion of the geographic area 
open to harvest. If mortality of threatened eiders occurs, we will 
evaluate each mortality event by criteria such as cause, quantity, sex, 
age, location, and date. We will consult with the Co-management Council 
when we are considering an emergency closure. If we determine that an 
emergency closure is necessary, we will design it to minimize its 
impact on the subsistence harvest.

Yellow-Billed Loon and Kittlitz's Murrelet

    Yellow-billed loon (Gavia adamsii) and Kittlitz's murrelet 
(Brachyramphus brevirostris) are candidate species for listing under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.). Their migration and breeding distribution overlaps with where 
the spring and summer migratory bird hunt is open in Alaska. Both 
species are closed to hunting, and there is no evidence Kittlitz's 
murrelets are harvested. On the other hand, harvest surveys have 
indicated that harvest of yellow-billed loons on the North Slope and 
St. Lawrence Island does occur. Most of the yellow-billed loons 
reported harvested on the North Slope were found to be entangled loons 
salvaged from subsistence fishing nets as described below. The Service 
will continue outreach efforts in both areas in 2011, engaging partners 
to improve harvest estimates and decrease take of yellow-billed loons.

[[Page 17356]]

    Consistent with the request of the North Slope Borough Fish and 
Game Management Committee and the recommendation of the Co-management 
Council, this final rule would continue into 2011 the provisions 
originally established in 2005 to allow subsistence use of yellow-
billed loons (Gavia adamsii) inadvertently entangled in subsistence 
fishing (gill) nets on the North Slope. Yellow-billed loons are 
culturally important to the Inupiat Eskimo of the North Slope for use 
in traditional dance regalia. A maximum of 20 yellow-billed loons may 
be kept if found entangled in fishing nets in 2011 under this 
provision. This provision does not authorize intentional harvest of 
yellow-billed loons, but allows use of those loons inadvertently 
entangled during normal subsistence fishing activities. Service support 
of this proposal is contingent upon the North Slope Region 
representative collaborating with the Service and Co-management Council 
provide a scientifically defensible estimate of yellow-billed loons 
inadvertently entangled by North Slope subsistence fishers and kept for 
use during the 2011 season. Additional information is needed relative 
to species and number of loons entangled in subsistence nets, 
distribution across the North Slope Region, age of birds entangled 
(adult vs. young-of-year), status of loons when found entangled, and 
dates of capture. These data will allow the Service to better assess 
the potential effects of subsistence fishing on this species. 
Currently, individual reporting to the North Slope Borough Department 
of Wildlife is required by the end of each season. In 2009, two yellow-
billed loons were reported entangled and found dead in fishing nets, 
while two others were released from fishing nets by the North Slope 
Borough staff.

Endangered Species Act Consideration

    Section 7 of the Endangered Species Act (16 U.S.C. 1536) requires 
the Secretary of the Interior to ``review other programs administered 
by him and utilize such programs in furtherance of the purposes of the 
Act'' and to ``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 * * *.'' We conducted an 
intra-agency consultation with the Fairbanks Fish and Wildlife Field 
Office on this harvest as it will be managed in accordance with this 
final rule and the conservation measures. The consultation was 
completed with a biological opinion dated March 23, 2011, that 
concluded the final rule and conservation measures are not likely to 
jeopardize the continued existence of Steller's eider, spectacled 
eider, yellow-billed loon, or Kittlitz's murrelet, or result in the 
destruction or adverse modification of designated critical habitat for 
Steller's eider or spectacled eider.

Summary of Public Involvement

    On October 26, 2010, we published in the Federal Register a 
proposed rule (75 FR 65599) to establish spring and summer migratory 
bird subsistence harvest regulations in Alaska for the 2011 subsistence 
season. The proposed rule provided for a public comment period of 60 
days. We posted an announcement of the comment period dates for the 
proposed rule, as well as the rule itself and related historical 
documents, on the Co-management Council's Internet homepage. We issued 
a press release announcing our request for public comments and the 
pertinent deadlines for such comments, which was faxed to the media 
Statewide. Additionally, all documents were available on http://www.regulations.gov. The Service received two comments, both from 
organizations.

Response to Public Comments

General Comments

    Comment: We received one comment on the operations of the Service 
Regulation Committee (SRC) in making regulatory decisions. The 
commenter stated that during the last 2 years the SRC has met behind 
closed doors and decided to reject both the recommendations of the 
Flyway Council and the Co-management Council for the North Slope eider 
regulations, creating a lack of transparency.
    Service Response: The SRC meetings are public meetings, and the 
process allows for input from the four North American Flyway Councils 
and the Co-management Council to provide additional information on 
their recommendations. The SRC, the Service, and the Department then 
have to consider all sides and issues before making decisions in 
counsel with technical staff. The SRC strives to make the best 
decisions to ensure the long-term conservation of the resource in 
compliance with mandates imposed by law.

Law Enforcement

    Comment: One commenter stated that efforts to promote cultural 
sensitivity with the Service's law enforcement actions seem to have had 
little success. The commenter added that interactions between local 
hunters and law enforcement agents continue to generate angry 
reactions.
    Service Response: For several years, the Service's Office of Law 
Enforcement and Divisions of Endangered Species and Migratory Bird 
Management have worked with many groups and individuals in the greater 
North Slope area, and Barrow specifically, to provide information on 
the regulatory requirements and enforcement of the regulations. This 
last year our approach focused on significant outreach efforts, 
including public meetings, radio talk show opportunities, posted 
fliers, and brochures followed by a reduced reliance on enforcement 
actions and law enforcement presence. The Service and its partners 
continue to take part in these activities in an effort to increase 
hunter awareness and to promote cultural sensitivity from our law 
enforcement officers, especially when they are interacting with 
hunters. Based on last year's observations, the Service expects hunter 
compliance with the regulations to continue and does not plan on having 
a continuous presence in Barrow this season.

Comments on Original Region-Specific Regulations

    Comment: One commenter requested that criteria be written to 
provide guidance as to when the North Slope could see a return to pre-
2009 regulations. More specifically the commenter would like these 
criteria to include Barrow's outreach efforts and the lack of 
intentional shooting since 2008. The commenter was further concerned 
that the criteria should not include a requirement for the Steller's 
eider population to increase before the regulations could be reversed. 
A second commenter asked that the Service not implement shooting hour 
regulations on the North Slope unless hunters understand and support 
the concept.
    Service Response: The commenters seem to be defining ``success'' as 
a return to the 2008 regulations, which did not have any additional 
eider conservation regulations on the North Slope. Our definition of 
success for the North Slope subsistence harvest includes: (1) Continued 
opportunity for subsistence hunting on the North Slope; (2) compliance 
with the regulations, including no harvest or possession of closed 
species and adherence to the closed season; and (3) no use of lead 
shot. We are willing to discuss the regulations with our partners on 
the North Slope to ensure the regulations protect closed species as 
well as provide subsistence hunters an opportunity to harvest migratory 
birds in a way that

[[Page 17357]]

maintains the cultural and traditional lifestyle they have enjoyed for 
centuries. However, whatever regulatory changes are made, we must point 
out that to ensure success and verify compliance, the regulations 
pertaining to bag checks and possession of illegal birds will remain in 
place.
    As for the shooting hours restrictions, this regulation is similar 
to one in the State of Alaska's fall hunt regulations, which take 
effect on September 1 each year. The goal of restricting shooting hours 
was to minimize the risk of inadvertent shooting of closed species when 
light levels are low and misidentification is more likely. However, 
commenters over the past couple of years have correctly pointed out 
that no Steller's eiders were ever documented as taken during periods 
of low or no adequate light, and that the Service was solving a non-
problem with the shooting hours restrictions. It has been suggested 
that this action may be counterproductive to developing community 
understanding and support for conservation of Steller's eiders.
    The Service is aware of and appreciates the considerable efforts by 
North Slope partners to raise awareness and educate hunters on 
Steller's eider conservation via the bird fair, meetings, radio shows, 
signs, school visits, and one-on-one contacts since 2008. We also 
recognize that no listed eiders have been documented shot in that last 
2 years, although we note that Steller's eiders did not have a 
significant breeding population in the Barrow area during this period. 
At this time, the Service is willing to remove the shooting hours 
restriction during subsistence harvest on the North Slope to foster 
moving forward with a stronger co-management approach to Steller's 
eider conservation. However, if evidence is gathered in the future 
indicating that shooting during times of low or no light is resulting 
in protected eider species being taken, then a return to the shooting 
hours restrictions will have to be considered. It is the Service's 
intention to work closely with the North Slope Migratory Bird Task 
Force to develop and implement a program that will verify that closed 
species are not being taken during the period when shooting hours would 
have been in effect. This monitoring program would be implemented 
starting this coming harvest season.
    Comment: One commenter asked that the Service continue using the 
provisions in 50 CFR 92.31(g)(4) (originally established in 2005) to 
allow subsistence use of yellow-billed loons inadvertently entangled in 
subsistence fishing nets on the North Slope. Yellow-billed loons remain 
an important part of the Inupiaq culture. Another commenter requested 
that yellow-billed loon regulations not be contingent upon a completed 
revision of the harvest survey in 2011.
    Service Response: We are currently working with the State, the 
North Slope Borough, and the Co-management Council to develop a 
stronger harvest survey design for the North Slope. We are retaining 
the yellow-billed loon provision for the North Slope for the 2011 
season, allowing for the use of yellow-billed loons inadvertently 
entangled in subsistence fishing nets on the North Slope.

Statutory Authority

    We derive our authority to issue these regulations from the 
Migratory Bird Treaty Act of 1918, 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 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.''

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact 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. This rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more. It will legalize and regulate a traditional subsistence 
activity. It will not result in a substantial increase in subsistence 
harvest or a significant change in harvesting patterns. The commodities 
being regulated under this rule are migratory birds. This rule deals 
with legalizing the subsistence harvest of migratory birds and, as 
such, does not involve commodities traded in the marketplace. A small 
economic benefit from this rule derives from the sale of equipment and 
ammunition to carry out subsistence hunting. Most, if not all, 
businesses that sell hunting equipment in rural Alaska would qualify as 
small businesses. We have no reason to believe that this rule will lead 
to a disproportionate distribution of benefits.
    (b) 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 
consumers.
    (c) 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 compete.

Unfunded Mandates Reform Act

    We have determined and certified under 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. The rule does not have a significant 
or unique effect on State, local, or tribal governments or the private 
sector. A statement containing the information required by the

[[Page 17358]]

Unfunded Mandates Reform Act is not required. 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 a Notice of 
Decision (65 FR 16405; March 28, 2000), we identified 12 partner 
organizations (Alaska Native nonprofits and local governments) to 
administer the regional programs. The Alaska Department of Fish and 
Game will also incur expenses for travel to Co-management Council and 
regional management body meetings. In addition, the State of Alaska 
will be required to provide technical staff support to each of the 
regional management bodies and to the Co-management Council. Expenses 
for the State's involvement may exceed $100,000 per year, but should 
not exceed $150,000 per year. When funding permits, we make annual 
grant agreements available to the partner organizations and the Alaska 
Department of Fish and Game to help offset their expenses.

Takings (Executive Order 12630)

    Under the criteria in Executive Order 12630, this rule does not 
have significant takings implications. This rule is not specific to 
particular land ownership, but applies to the harvesting of migratory 
bird resources throughout Alaska. A takings implication assessment is 
not required.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. We discuss effects of this rule on the State of 
Alaska in the Unfunded Mandates Reform Act section above. We worked 
with the State of Alaska to develop these regulations. Therefore, a 
Federalism Assessment is not required.

Civil Justice Reform (Executive Order 12988)

    The Department, in promulgating this rule, has determined that it 
will not unduly burden the judicial system and that it meets the 
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Government-to-Government Relations With Native American Tribal 
Governments

    In keeping with the spirit of 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 implemented the amended treaty with 
Canada with a focus on local involvement. The treaty calls for the 
creation of management bodies to ensure an effective and meaningful 
role for Alaska's indigenous inhabitants in the conservation of 
migratory birds. According to the Letter of Submittal, management 
bodies are to include Alaska Native, Federal, and State of Alaska 
representatives as equals. They will develop recommendations for among 
other things: Seasons and bag limits, methods and means of take, law 
enforcement policies, population and harvest monitoring, education 
program, research and use of traditional knowledge, and habitat 
protection. The management bodies will involve village councils to the 
maximum extent possible in all aspects of management. To ensure maximum 
input at the village level, we required each of the 11 participating 
regions to create regional management bodies consisting of at least one 
representative from the participating villages. The regional management 
bodies meet twice annually to review and/or submit proposals to the 
statewide body.
    The rule will legally recognize the subsistence harvest of 
migratory birds and their eggs for indigenous inhabitants including 
tribal members. In 1998, we began a public involvement process to 
determine how to structure management bodies in order to provide the 
most effective and efficient involvement of subsistence users. We began 
by publishing in the Federal Register stating that we intended to 
establish management bodies to implement the spring and summer 
subsistence harvest (63 FR 49707, September 17, 1998). We held meetings 
with the Alaska Department of Fish and Game and the Native Migratory 
Bird Working Group to provide information regarding the amended 
treaties and to listen to the needs of subsistence users. The Native 
Migratory Bird Working Group was a consortium of Alaska Natives formed 
by the Rural Alaska Community Action Program to represent Alaska Native 
subsistence hunters of migratory birds during the treaty negotiations. 
We held forums in Nome, Kotzebue, Fort Yukon, Allakaket, Naknek, 
Bethel, Dillingham, Barrow, and Copper Center. We led additional 
briefings and discussions at the annual meeting of the Association of 
Village Council Presidents in Hooper Bay and for the Central Council of 
Tlingit & Haida Indian Tribes in Juneau.
    On March 28, 2000, we published in the Federal Register (65 FR 
16405) a Notice of Decision entitled, ``Establishment of Management 
Bodies in Alaska To Develop Recommendations Related to the Spring/
Summer Subsistence Harvest of Migratory Birds.'' This notice described 
the way in which management bodies would be established and organized. 
Based on the wide range of views expressed on the options document, the 
decision incorporated key aspects of two of the modules. The decision 
established one Statewide management body consisting of 1 Federal 
member, 1 State member, and 7-12 Alaska Native members, with all 
components serving as equals.

Paperwork Reduction Act

    This rule has been examined under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.) and does not contain any new collections 
of information that require Office of Management and Budget approval. 
OMB has approved our collection of information associated with the 
voluntary annual household surveys used to determine levels of 
subsistence take. The OMB control number is 1018-0124, which expires 
April 30, 2013. 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.

National Environmental Policy Act (42 U.S.C. 4321 et seq.) 
Consideration

    The annual regulations and options were considered in the 
environmental assessment, ``Managing Migratory Bird Subsistence Hunting 
in Alaska: Hunting Regulations for the 2011 Spring/Summer Harvest,'' 
October 18, 2010. Copies are available from the person listed under FOR 
FURTHER INFORMATION CONTACT or at http://www.regulations.gov.

Energy Supply, Distribution, or Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This is not a 
significant regulatory action under this Executive Order; it would 
allow only for traditional subsistence harvest and

[[Page 17359]]

would improve conservation of migratory birds by allowing effective 
regulation of this harvest. Further, this rule is not expected to 
significantly affect energy supplies, distribution, or 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:

PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA

0
1. The authority citation for part 92 continues to read as follows:

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

Subpart D--Annual Regulations Governing Subsistence Harvest

0
2. In subpart D, add Sec.  92.31 to read as follows:


Sec.  92.31  Region-specific regulations.

    The 2011 season dates for the eligible subsistence harvest areas 
are as follows:
    (a) Aleutian/Pribilof Islands Region.
    (1) Northern Unit (Pribilof Islands):
    (i) Season: April 2-June 30.
    (ii) Closure: July 1-August 31.
    (2) Central Unit (Aleut Region's eastern boundary on the Alaska 
Peninsula westward to and including Unalaska Island):
    (i) Season: April 2-June 15 and July 16-August 31.
    (ii) Closure: June 16-July 15.
    (iii) Special Black Brant Season Closure: August 16-August 31, only 
in Izembek and Moffet lagoons.
    (iv) Special Tundra Swan Closure: All hunting and egg gathering 
closed in units 9(D) and 10.
    (3) Western Unit (Umnak Island west to and including Attu Island):
    (i) Season: April 2-July 15 and August 16-August 31.
    (ii) Closure: July 16-August 15.
    (b) Yukon/Kuskokwim Delta Region.
    (1) Season: April 2-August 31.
    (2) Closure: 30-day closure dates to be announced by the Service's 
Alaska Regional Director or his designee, after consultation with local 
subsistence users, field biologists, and the Association of Village 
Council President'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.
    (3) Special Black Brant and Cackling Goose Season Hunting Closure: 
From the period when egg laying begins until young birds are fledged. 
Closure dates to be announced by the Service's Alaska Regional Director 
or his designee, after consultation with field biologists and the 
Association of Village Council President's Waterfowl Conservation 
Committee. A press release announcing the actual closure dates will be 
forwarded to regional newspapers and radio and television stations and 
posted in village post offices and stores.
    (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, which 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 30 and July 31-August 31 for seabirds; 
April 2-June 20 and July 22-August 31 for all other birds.
    (2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all 
other birds.
    (f) Northwest Arctic Region.
    (1) Season: April 2-June 9 and August 15-August 31 (hunting in 
general); waterfowl egg gathering May 20-June 9 only; seabird egg 
gathering May 20-July 12 only; hunting molting/non-nesting waterfowl 
July 1-July 31 only.
    (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' W and 
south of the latitude line 70[deg]45' N to the west bank of the 
Ikpikpuk River, and everything south of the latitude line 69[deg]45' N 
between the west bank of the Ikpikpuk River to the east bank of 
Sagavinirktok River):
    (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.
    (iii) Special Black Brant Hunting Opening: From June 20-July 5. The 
open area would consist of the coastline, from mean high water line 
outward to include open water, from Nokotlek Point east to longitude 
line 158[deg]30' W. This includes Peard Bay, Kugrua Bay, and Wainwright 
Inlet, but not the Kuk and Kugrua river drainages.
    (2) Northern Unit (At Peard Bay, everything east of the longitude 
line 158[deg]30' W and north of the latitude line 70[deg]45' N to west 
bank of the Ikpikpuk River, and everything north of the latitude line 
69[deg]45' N 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; April 2-June 15 and July 16-August 31 for all other birds.
    (ii) Closure: June 7-July 6 for king and common eiders; June 16-
July 15 for all other birds.
    (3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
    (i) Season: April 2-June 19 and July 20-August 31.
    (ii) Closure: June 20-July 19.
    (4) All Units: yellow-billed loons. Annually, up to 20 yellow-
billed loons total for the region may be inadvertently entangled in 
subsistence fishing nets in the North Slope Region and kept for 
subsistence use.
    (5) North Coastal Zone (Cape Thompson north to Point Hope and east 
along the Arctic Ocean coastline around Point Barrow to Ross Point, 
including Iko Bay, and 5 miles inland).
    (i) No person may at any time, by any means, or in any manner, 
possess or have in custody any migratory bird or part thereof, taken in 
violation of subpart C and D of this part.

[[Page 17360]]

    (ii) Upon request from a Service law enforcement officer, hunters 
taking, attempting to take, or transporting migratory birds taken 
during the subsistence harvest season must present them to the officer 
for species identification.
    (h) Interior Region.
    (1) Season: April 2-June 14 and July 16-August 31; egg gathering 
May 1-June 14 only.
    (2) Closure: June 15-July 15.
    (i) Upper Copper River Region (Harvest Area: Units 11 and 13) 
(Eligible communities: Gulkana, Chitina, Tazlina, Copper Center, 
Gakona, Mentasta Lake, Chistochina and Cantwell).
    (1) Season: April 15-May 26 and June 27-August 31.
    (2) Closure: May 27-June 26.
    (3) The Copper River Basin communities listed above also documented 
traditional use harvesting birds in Unit 12, making them eligible to 
hunt in this unit using the seasons specified in paragraph (h) 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 
below) (Eligible communities: Tyonek only):
    (1) Season: April 2-May 31--That portion of Unit 16(B) south of the 
Skwentna River and west of the Yentna River, and August 1-31--That 
portion of Unit 16(B) south of the Beluga River, Beluga Lake, and the 
Triumvirate Glacier:
    (2) Closure: June 1-July 31.
    (l) Southeast Alaska.
    (1) Community of Hoonah (Harvest area: 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(a)):
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
30.
    (ii) Closure: July 1-August 31.
    (2) Communities of Craig and Hydaburg (Harvest area: Small islands 
and adjacent shoreline of western Prince of Wales Island from Point 
Baker to Cape Chacon, but also including Coronation and Warren 
islands):
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
30.
    (ii) Closure: July 1-August 31.
    (3) Community of Yakutat (Harvest area: Icy Bay (Icy Cape to Point 
Riou), and coastal lands and islands bordering the Gulf of Alaska from 
Point Manby southeast to Dry Bay):
    (i) Season: Glaucous-winged gull egg gathering: May 15-June 30.
    (ii) Closure: July 1-August 31.
0
3. In subpart D, add Sec.  92.32 to read as follows:

Sec.  92.32  Emergency regulations to protect Steller's eiders.

    Upon finding that continuation of these subsistence regulations 
would pose an imminent threat to the conservation of threatened 
Steller's eiders (Polysticta stelleri), the U.S. Fish and Wildlife 
Service Alaska Regional Director, in consultation with the Co-
management Council, will immediately under Sec.  92.21 take action as 
is necessary to prevent further take. Regulation changes implemented 
could range from a temporary closure of duck hunting in a small 
geographic area to large-scale regional or Statewide longterm closures 
of all subsistence migratory bird hunting. These closures or temporary 
suspensions will remain in effect until the Regional Director, in 
consultation with the Co-management Council, determines that the 
potential for additional Steller's eiders to be taken no longer exists.

    Dated: February 23, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-7334 Filed 3-28-11; 8:45 am]
BILLING CODE 4310-55-P