76362 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 92 

RIN 1018–AT77 

Migratory Bird Subsistence Harvest in 

Alaska; Harvest Regulations for 

Migratory Birds in Alaska During the 

2005 Season

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: The U.S. Fish and Wildlife 

Service (Service or we) is proposing 

migratory bird subsistence harvest 

regulations in Alaska for the 2005 

season. This proposed rule would 

establish regulations that prescribe 

frameworks, or outer limits, for dates 

when harvesting of birds may occur, 

species that can be taken, and methods 

and means that would be excluded from 

use. These regulations were developed 

under a co-management process 

involving the Service, the Alaska 

Department of Fish and Game, and 

Alaska Native representatives. These 

regulations are intended to provide a 

framework to enable the continuation of 

customary and traditional subsistence 

uses of migratory birds in Alaska. The 

rulemaking is necessary because the 

regulations governing the subsistence 

harvest of migratory birds in Alaska are 

subject to annual review. This 

rulemaking proposes regulations that 

start on April 2, 2005, and expire on 

August 31, 2005, for the subsistence 

harvest of migratory birds in Alaska.

DATES: You must submit comments on 

the proposed subsistence harvest 

regulations for migratory birds in Alaska 

by February 18, 2005.

ADDRESSES: Send your comments on 

this proposed rule to the Regional 

Director, Alaska Region, U.S. Fish and 

Wildlife Service, 1011 E. Tudor Road, 

Anchorage, AK 99503, or fax to (907) 

786–3306 or e-mail to ambcc@fws.gov.

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: 

Background 

What Events Led to This Action? 

In 1916, the United States and Great 

Britain (on behalf of Canada) signed the 

Convention for the Protection of 

Migratory Birds in Canada and the 

United States (Canada Treaty). The 

treaty prohibited all commercial bird 

hunting and specified a closed season 

on the taking of migratory game birds 

between March 10 and September 1 of 

each year. In 1936, the United States 

and Mexico signed the Convention for 

the Protection of Migratory Birds and 

Game Mammals (Mexico Treaty). The 

Mexico treaty prohibited the taking of 

wild ducks between March 10 and 

September 1. Neither treaty allowed 

adequately for the traditional harvest of 

migratory birds by northern peoples 

during the spring and summer months. 

This harvest, which has occurred for 

centuries, was and is necessary to the 

subsistence way of life in the north and 

thus continued despite the closed 

season. 

The Canada treaty and the Mexico 

treaty, as well as migratory bird treaties 

with Japan (1972) and Russia (1976), 

have been implemented in the United 

States through the Migratory Bird Treaty 

Act (MBTA). The courts have ruled that 

the MBTA prohibits the Federal 

Government from permitting any 

harvest of migratory birds that is 

inconsistent with the terms of any of the 

migratory bird treaties. The more 

restrictive terms of the Canada and 

Mexico treaties thus prevented the 

Federal Government from permitting the 

traditional subsistence harvest of 

migratory birds during spring and 

summer in Alaska. To remedy this 

situation, the United States negotiated 

Protocols amending both the Canada 

and Mexico treaties to allow for 

subsistence harvest of migratory birds 

by indigenous inhabitants of identified 

subsistence harvest areas in Alaska. The 

U.S. Senate approved the amendments 

to both treaties in 1997. 

What Has the Amended Treaty 

Accomplished? 

The major goals of the amended treaty 

with Canada were to allow traditional 

subsistence harvest and improve 

conservation of migratory birds by 

allowing effective regulation of this 

harvest.

The amended treaty with Canada 

provides a means to allow permanent 

residents of villages within subsistence 

harvest areas, regardless of race, to 

continue harvesting migratory birds 

between March 10 and September 1 as 

they have done for thousands of years. 

The Letter of Submittal of May 20, 1996, 

from the Department of State to the 

White House that officially 

accompanied the treaty protocol set the 

geographic baseline with lands north 

and west of the Alaska Range and 

within the Alaska Peninsula, Kodiak 

Archipelago, and the Aleutian Islands as 

the initial subsistence harvest areas. 

What Has the Service Accomplished 

Since Ratification of the Amended 

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 (Comanagement Council). 

Establishment of a migratory bird 

subsistence harvest began on August 16, 

2002, when we published in the Federal 

Register (67 FR 53511) a final rule at 50 

CFR part 92 that set procedures for 

incorporating subsistence management 

into the continental migratory bird 

management program. These regulations 

established an annual procedure to 

develop harvest guidelines to 

implement a subsistence migratory bird 

harvest. 

The next step established the first 

subsistence migratory bird harvest 

system. This was finalized on July 21, 

2003, when we published in the Federal 

Register (68 FR 43010) a final rule at 50 

CFR parts 20, 21 and 92 that created the 

first annual harvest regulations for the 

2003 subsistence migratory bird season 

in Alaska. These annual frameworks 

were not intended to be a complete, allinclusive set of regulations, but were 

intended to regulate continuation of 

customary and traditional subsistence 

uses of migratory birds in Alaska during 

the spring and summer. See the August 

16, 2002, July 21, 2003, and April 2, 

2004, final rules for additional 

background information on the 

subsistence harvest program for 

migratory birds in Alaska. 

This current rulemaking is necessary 

because the migratory bird harvest 

season is closed unless opened and the 

regulations governing subsistence 

harvest of migratory birds in Alaska are 

subject to public review and annual 

approval. The Co-management Council 

held a meeting in April 2004, to develop 

recommendations for changes effective 

for the 2005 harvest season. These 

recommendations were presented to the 

Service Regulations Committee (SRC) on 

July 28 and 29, 2004, for action. 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 76363

This rule proposes regulations for the 

taking of migratory birds for subsistence 

uses in Alaska during 2005. This rule 

proposes to list migratory bird species 

that are open or closed to harvest, as 

well as season openings and closures by 

region. It also proposes minor changes 

in the methods and means of taking 

migratory birds for subsistence 

purposes. We propose to amend 50 CFR 

92.5 by adding three new communities 

to the list of included areas, and to add 

corresponding harvest areas and season 

dates to 50 CFR 92.33. 

How Will the Service Continue To 

Ensure That the Subsistence Harvest 

Will Not Raise Overall Migratory Bird 

Harvest? 

The Service has an emergency closure 

provision (§ 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 (§ 92.5). These 

geographical restrictions opened the 

initial subsistence migratory bird 

harvest to only about 13 percent of 

Alaska residents. High-population areas 

such as Anchorage, the MatanuskaSusitna and Fairbanks North Star 

boroughs, the Kenai Peninsula roaded 

area, the Gulf of Alaska roaded area and 

Southeast Alaska were excluded from 

the eligible subsistence harvest areas. 

Based on petitions requesting 

inclusion in the harvest, in 2004, we 

added 13 additional communities based 

on the five criteria set forth in § 92.5(c). 

These communities included: Gulkana, 

Gakona, Tazlina, Copper Center, 

Mentasta Lake, Chitina, Chistochina, 

Tatitlek, Chenega, Port Graham and 

Nanwalek, Tyonek and Hoonah, 

populations totaling 2,766. For 2005, we 

propose to add three additional 

communities for glaucous-winged gull 

egg gathering only. These southeastern 

communities include Craig, Hydaburg, 

and Yakutat, with a combined 

population of 2,459. These new regions 

would increase the percentage of the 

State population included in the 

subsistence bird harvest only to 14 

percent.

Subsistence harvest has been 

monitored for the past 15 years through 

the use of annual household surveys in 

the most heavily used subsistence 

harvest areas, e.g., Yukon-Kuskokwim 

Delta. Continuation of this monitoring 

would enable tracking of any major 

changes or trends in levels of harvest 

and user participation after legalization 

of the harvest. In the March 3, 2003, 

Federal Register (68 FR 10024), we 

published a notice of intent to submit 

the Alaska Subsistence Household 

Survey Information Collection Forms to 

the Office of Management and Budget 

(OMB) for approval under the 

Paperwork Reduction Act, with a 

subsequent 60-day public comment 

period. In the July 31, 2003, Federal 

Register (68 FR 44961), we published a 

notice that the Alaska Subsistence 

Harvest Survey Information Collection 

Forms were submitted to OMB for 

approval under the Paperwork 

Reduction Act, with a 30-day public 

comment period. OMB approved the 

information collection on October 2, 

2003, and assigned OMB control 

number 1018–0124, which expires on 

October 31, 2006. 

How Did the Service Develop the 

Methods and Means Prohibitions, and 

What Is Proposed To Change for 2005? 

In development of the initial 

regulations (68 FR 6697), the Comanagement Council encouraged the 

Service to adopt the existing methods 

and means prohibitions that occur in 

the Federal (50 CFR 20.21) and Alaska 

(5AAC92.100) migratory bird hunting 

regulations. We included some 

exceptions to the Federal regulations in 

the initial regulations and include some 

in this proposed rule to allow the 

continuation of customary and 

traditional spring harvest methods, but 

not the creation of new proposed 

traditions. In this proposed rule, we 

have incorporated the Bering Strait/

Norton Sound region’s request to add St. 

Lawrence Island to the list of areas 

where an exception allows the use of 

live decoys to harvest auklets. 

How Did the Service Decide the List of 

Birds Open To Harvest and What Is 

Proposed To Change for 2005? 

The Service believes it is necessary to 

develop a list of bird species that would 

be open to subsistence harvest. The 

original list was compiled from 

subsistence harvest data, with several 

species added based on their presence 

in Alaska. The original intent was for 

the list to be reviewed by the regional 

management bodies as a check list. The 

list was adopted by the Co-management 

Council as part of the guidelines for the 

2003 season. Most of the regions 

adopted the list as written; however, 

two regions created their own lists. One 

regional representative explained that it 

would take much more time than was 

available for his region to reduce the list 

and that, once a bird was removed, 

returning it to the list would be more 

difficult later. Going with the original 

list was viewed as protecting hunters 

from prosecution for the take of an 

unlisted bird. To understand this 

rationale, one must be aware that 

subsistence hunting is generally 

opportunistic and does not usually 

target individual species. Native 

language names for birds often group 

closely related species, with no separate 

names for species within these groups. 

Also, preferences for individual species 

differ greatly between villages and 

individual hunters. As a result, regions 

are hesitant to remove birds from the list 

open to harvest until they are certain the 

species are not taken for subsistence 

use. The list therefore contains some 

species that are taken infrequently and 

opportunistically, but this is still part of 

the subsistence tradition. The Comanagement Council initially decided 

to call this list ‘‘potentially harvested 

birds’’ versus ‘‘traditionally harvested 

birds’’ because a detailed written 

documentation of the customary and 

traditional use patterns for the species 

listed had not yet been conducted. 

However, this terminology was leading 

to some confusion, so the Service 

renamed the list ‘‘subsistence birds’’ to 

cover the birds open to harvest. 

The ‘‘customary and traditional use’’

of a wildlife species has been defined in 

Federal regulations (50 CFR 100.4) as a 

long-established, consistent pattern of 

use, incorporating beliefs and customs 

that have been transmitted from 

generation to generation. Much of the 

customary and traditional use 

information has not been documented 

in written form, but exists in the form 

of oral histories from elders, traditional 

stories, harvest methods taught to 

children, and traditional knowledge of 

the birds’ natural history shared within 

a village or region. The primary source 

of quantitative data on customary and 

traditional use of the harvested bird 

species comes from Alaska subsistence 

migratory bird harvest surveys 

conducted by Service personnel and 

contractors and transferred to a 

computerized database. Because of 

difficulties in bird species 

identification, shorebird harvest 

information has been lumped into 

‘‘large shorebird’’ and ‘‘small shorebird’’

categories. In reality, Alaska subsistence 

harvests are also conducted in this 

manner, generally with no targeting or 

even recognition of individual shorebird 

species in most cases. 

Based on conservation concerns, we 

propose to close the harvest of tundra 

swans in Units 9(D) and 10 starting in 

2005. This decision was made to protect 

a small resident population segment of 

76364 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 

fewer than 500 tundra swans in the 

Izembek National Wildlife Refuge area. 

This small segment of the Pacific 

population is nonmigratory and appears 

to be morphologically distinct. Breeding 

pair surveys indicate that the local 

population has declined steadily over 

the past two decades and recruitment 

into the population is low.

At the request of the North Slope 

Borough Fish and Game Management 

Committee, the Co-Management Council 

recommended adding a provision to 

allow subsistence use of yellow-billed 

loons inadvertently caught in 

subsistence fishing (gill) nets on the 

North Slope. Justification given by the 

proponent was that yellow-billed loons 

are culturally important for the Inupiat 

Eskimo of the North Slope for use in 

traditional dance regalia. The Service 

Regulations Committee met on July 29, 

2004, and proposed to set a maximum 

of 20 yellow-billed loons inadvertently 

caught annually in the North Slope 

Region. Individual reporting to the 

North Slope Borough Department of 

Wildlife will be required by the end of 

the season. In addition, the North Slope 

Borough is planning to ask fishermen, 

through announcements on the radio 

and through personal contact, to report 

all entanglements of loons to better 

estimate the levels of injury or mortality 

caused by gill nets. This provision to 

allow subsistence possession and use of 

yellow-billed loons caught in fishing gill 

nets is subject to annual review and 

renewal as part of Subpart D—Annual 

Regulations Governing Subsistence 

Harvest. 

How Does the Service Address the Birds 

of Conservation Concern Relative to the 

Subsistence Harvest?

Birds of Conservation Concern (BCC) 

2002 is the latest document in a 

continuing effort by the Service to 

assess and prioritize bird species for 

conservation purposes. It was published 

in the Federal Register on February 6, 

2003 (68 FR 6179). The BCC list 

identifies bird species at risk because of 

inherently small populations, restricted 

ranges, severe population declines, or 

imminent threats. The species listed 

need increased conservation attention to 

maintain or stabilize populations. The 

legal authority for this effort is the Fish 

and Wildlife Conservation Act (FWCA) 

of 1980, as amended. Section 13(a)(3) of 

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

requires the Secretary of the Interior 

through the Service, to ‘‘identify 

species, subspecies and populations of 

all migratory nongame birds that, 

without additional conservation actions, 

are likely to become candidates for 

listing under the Endangered Species 

Act of 1973, as amended (16 U.S.C. 

1531–1543).’’

The Co-management Council will 

continually review the list of 

subsistence birds. As appropriate, the 

Council will elevate hunter awareness 

of species that may have small or 

declining populations in an effort to 

directly involve subsistence hunters in 

conserving these vulnerable species. 

Public Comments Solicited 

The Department of the Interior’s 

policy is, whenever practicable, to 

afford the public an opportunity to 

participate in the rulemaking process. If 

you wish to comment, you may submit 

comments by any one of several 

methods. You may mail, fax, or handdeliver comments to the address 

indicated under the caption ADDRESSES.

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. In 

some circumstances, we will also 

withhold from the rulemaking record a 

respondent’s identity, as allowable by 

law. If you wish us to withhold your 

name and/or address, you must state 

this prominently at the beginning of 

your comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

You may inspect comments received on 

the proposed regulations during normal 

business hours at the Service’s office in 

Anchorage, Alaska. 

In developing the final rule, we will 

consider each comment received during 

the public comment period. In the final 

rule, we may not respond in detail to 

each comment received during the 

comment period, but we will summarize 

all comments received and respond to 

them. 

Statutory Authority 

We derive our authority to issue these 

regulations from the four migratory bird 

treaties with Canada, Mexico, Japan and 

Russia and from the Migratory Bird 

Treaty Act of 1918 (16 U.S.C. 703 et 

seq.), that implements these treaties. 

Specifically, these regulations are issued 

pursuant to 16 U.S.C. 712 (1), which 

authorizes the Secretary of the Interior, 

in accordance with these four treaties, to 

‘‘issue such regulations as may be 

necessary to assure that the taking of 

migratory birds and the collection of 

their eggs, by the indigenous inhabitants 

of the State of Alaska, shall be permitted 

for their own nutritional and other 

essential needs, as determined by the 

Secretary of the Interior, during seasons 

established so as to provide for the 

preservation and maintenance of stocks 

of migratory birds.’’

Executive Order 12866

Executive Order 12866 requires each 

agency to write regulations that are easy 

to understand. We invite your 

comments on how to make this rule 

easier to understand, including answers 

to questions such as the following: 

(1) Are the requirements in the rule 

clearly stated? 

(2) Does the rule contain technical 

language or jargon that interferes with 

its clarity? 

(3) Does the format of the rule 

(grouping and order of sections, use of 

headings, paragraphing, etc.) aid or 

reduce its clarity? 

(4) Would the rule be easier to 

understand if it were divided into more 

(but shorter) sections? 

(5) Is the description of the rule in the 

‘‘Supplementary Information’’ section of 

the preamble helpful in understanding 

the rule? 

(6) What else could we do to make the 

rule easier to understand? 

Send a copy of any comments that 

concern how we could make this rule 

easier to understand to: Office of 

Regulatory Affairs, Department of the 

Interior, Room 7229, 1849 C Street NW., 

Washington, DC 20240. You may also email the comments to this address: 

Exsec@ios.doi.gov.

The Office of Management and Budget 

(OMB) has determined that this 

document is not a significant rule 

subject to OMB review under Executive 

Order 12866. 

a. This rule will not have an annual 

economic effect of $100 million or more 

or adversely affect an economic sector, 

productivity, jobs, the environment, or 

other units of government. The rule 

does not provide for new or additional 

hunting opportunities and therefore will 

have minimal economic or 

environmental impact. This rule 

benefits those participants who engage 

in the subsistence harvest of migratory 

birds in Alaska in two identifiable ways: 

First, participants receive the 

consumptive value of the birds 

harvested; and second, participants get 

the cultural benefit associated with the 

maintenance of a subsistence economy 

and way of life. The Service can 

estimate the consumptive value for 

birds harvested under this rule but does 

not have a dollar value for the cultural 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 76365

benefit of maintaining a subsistence 

economy and way of life. 

The economic value derived from the 

consumption of the harvested migratory 

birds has been estimated using the 

results of a paper by Robert J. Wolfe 

titled ‘‘Subsistence Food Harvests in 

Rural Alaska, and Food Safety Issues’’

(August 13, 1996). Using data from 

Wolfe’s paper and applying it to the 

areas that will be included in this 

process, we determined a maximum 

economic value of $6 million. This is 

the estimated economic benefit of the 

consumptive part of this rule for 

participants in subsistence hunting. The 

cultural benefits of maintaining a 

subsistence economy and way of life 

can be of considerable value to the 

participants, and these benefits are not 

included in this figure. 

b. This rule will not create 

inconsistencies with other agencies’

actions. We are the Federal agency 

responsible for the management of 

migratory birds, coordinating with the 

State of Alaska’s Department of Fish and 

Game on management programs within 

Alaska. The State of Alaska is a member 

of the Alaska Migratory Bird Comanagement Council. 

c. This rule will not materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. The rule does not 

affect entitlement programs. 

d. This rule will not raise novel legal 

or policy issues. The subsistence harvest 

regulations will go through the same 

National regulatory process as the 

existing migratory bird hunting 

regulations in 50 CFR part 20. 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities as 

defined under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). An initial 

regulatory flexibility analysis is not 

required. Accordingly, a Small Entity 

Compliance Guide is not required. The 

rule legalizes a pre-existing subsistence 

activity, and the resources harvested 

will be consumed by the harvesters or 

persons within their local community. 

Small Business Regulatory Enforcement 

Fairness Act

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act, as 

discussed in the Executive Order 12866 

section above. 

a. This rule does not have an annual 

effect on the economy of $100 million 

or more. It will legalize and regulate a 

traditional subsistence activity. It will 

not result in a substantial increase in 

subsistence harvest or a significant 

change in harvesting patterns. The 

commodities being regulated under this 

rule are migratory birds. This rule deals 

with legalizing the subsistence harvest 

of migratory birds and, as such, does not 

involve commodities traded in the 

marketplace. A small economic benefit 

from this rule derives from the sale of 

equipment and ammunition to carry out 

subsistence hunting. Most, if not all, 

businesses that sell hunting equipment 

in rural Alaska would qualify as small 

businesses. We have no reason to 

believe that this rule will lead to a 

disproportionate distribution of 

benefits. 

b. This rule will not cause a major 

increase in costs or prices for 

consumers; individual industries; 

Federal, State, or local government 

agencies; or geographic regions. This 

rule does not deal with traded 

commodities and, therefore, does not 

have an impact on prices for consumers. 

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 foreignbased 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 

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 Comanagement Council will require travel 

expenses for some Alaska Native 

organizations and local governments. In 

addition, they will assume some 

expenses related to coordinating 

involvement of village councils in the 

regulatory process. Total coordination 

and travel expenses for all Alaska 

Native organizations are estimated to be 

less than $300,000 per year. In the 

Notice of Decision (65 FR 16405, March 

28, 2000) we identified 12 partner 

organizations (Alaska Native non-profits 

and local governments) to be 

responsible for administering the 

regional programs. The Alaska 

Department of Fish and Game will also 

incur expenses for travel to Comanagement Council and regional 

management body’s meetings. In 

addition, the State of Alaska will be 

required to provide technical staff 

support to each of the regional 

management bodies and to the Comanagement Council. Expenses for the 

State’s involvement may exceed 

$100,000 per year, but should not 

exceed $150,000 per year. When 

funding permits, we make annual grant 

agreements available to the partner 

organizations and the Alaska 

Department of Fish and Game to help 

offset their expenses. 

Paperwork Reduction Act

This rule has been examined under 

the Paperwork Reduction Act of 1995 

and has been found to contain no 

information collection requirements. We 

have, however, received OMB approval 

of associated voluntary annual 

household surveys used to determine 

levels of subsistence take. The OMB 

control number for the information 

collection is 1018–0124, which expires 

on October 31, 2006. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

Federalism Effects 

As discussed in the Executive Order 

12866 and Unfunded Mandates Reform 

Act sections above, this rule does not 

have sufficient federalism implications 

to warrant the preparation of a 

Federalism Assessment under Executive 

Order 13132. We worked with the State 

of Alaska on development of these 

regulations. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

that it meets the requirements of Section 

3 of the Order. 

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 

Governments 

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, 

76366 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 

November 6, 2000), concerning 

consultation and coordination with 

Indian Tribal Governments, we have 

consulted with Alaska tribes and 

evaluated the rule for possible effects on 

tribes or trust resources, and have 

determined that there are no significant 

effects. The rule will legally recognize 

the subsistence harvest of migratory 

birds and their eggs for tribal members, 

as well as for other indigenous 

inhabitants. 

Endangered Species Act Consideration 

Prior to issuance of annual spring and 

summer subsistence regulations, we will 

consider provisions of the Endangered 

Species Act of 1973, as amended, (16 

U.S.C. 1531–1543; hereinafter the Act) 

to ensure that harvesting is not likely to 

jeopardize the continued existence of 

any species designated as endangered or 

threatened, or modify or destroy its 

critical habitats and that it is consistent 

with conservation programs for those 

species. Consultations under Section 7 

of this Act conducted in connection 

with the environmental assessment for 

the annual subsistence take regulations 

may cause us to change these 

regulations. Our biological opinion 

resulting from the Section 7 

consultation is a public document 

available for public inspection at the 

address indicated under the caption 

ADDRESSES. 

National Environmental Policy Act 

Consideration 

The annual regulations and options 

were considered in the Environmental 

Assessment, ‘‘Managing Migratory Bird 

Subsistence Hunting in Alaska: Hunting 

Regulations for the First Legal Spring/

Summer Harvest in 2005,’’ issued 

August 15, 2004. Copies are available 

from the address indicated under the 

caption ADDRESSES. 

Energy Supply, Distribution, or Use 

(Executive Order 13211) 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. Because 

this rule only allows for traditional 

subsistence harvest and improves 

conservation of migratory birds by 

allowing effective regulation of this 

harvest, it is not a significant regulatory 

action under Executive Order 12866. 

Consequently it is not expected to 

significantly affect energy supplies, 

distribution and use. Therefore, this 

action is not a significant energy action 

under Executive Order 13211 and no 

Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 92 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Subsistence, Treaties, Wildlife.

For the reasons set out in the 

preamble, we propose to amend title 50, 

chapter I, subchapter G, of the Code of 

Federal Regulations as follows:

PART 92—MIGRATORY BIRD 

SUBSISTENCE HARVEST IN ALASKA 

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 § 92.5 by 

revising paragraph (a)(2) introductory 

text and adding paragraph (a)(3) to read 

as follows:

§ 92.5 Who is eligible to participate?

* * * * *

(a) * * * 

(2) Based on petitions for inclusion 

recommended by the Co-management 

Council in 2003, the Service added the 

following communities to the included 

areas under this part starting in the 2004 

harvest season:

* * * * *

(3) Based on petitions for inclusion 

recommended by the Co-management 

Council in 2004, the Service is adding 

the following communities to the 

included areas under this part starting 

in the 2005 harvest season: 

(i) Southeast Region—Craig, Hydaburg 

and Yakutat. 

(ii) [Reserved.]

Subpart C—General Regulations 

Governing Subsistence Harvest 

3. In subpart C, amend § 92.20 by 

revising paragraph (d) to read as 

follows:

§ 92.20 Methods and means.

* * * * *

(d) Taking waterfowl and other 

species using live birds as decoys, 

except for auklets on Diomede and St. 

Lawrence islands (Use of live birds as 

decoys is a customary and traditional 

means of harvesting auklets on Diomede 

and St. Lawrence islands.);

* * * * *

Subpart D—Annual Regulations 

Governing Subsistence Harvest 

4. In Subpart D, add §§ 92.31 through 

92.33 to read as follows:

§ 92.31 Migratory bird species not 

authorized for subsistence harvest. 

(a) You may not harvest birds or 

gather eggs from the following species: 

(1) Spectacled Eider Somateria 

fischeri). 

(2) Steller’s Eider Polysticta stelleri). 

(3) Emperor Goose Chen canagica). 

(4) Aleutian Cackling Goose Branta 

hutchinsii leucopareia)—Semidi Islands 

only. 

(5) Tundra Swan Cygnus 

columbianus)—Units 9(D) and 10 only. 

(6) Yellow-billed Loon Gavia 

adamsii)—except North Slope Region. 

(Requirements for harvest and reporting 

are described in § 92.33(g)(4).). 

(b) In addition, you may not gather 

eggs from the following species: 

(1) Cackling Goose Branta hutchinsii 

minima). 

(2) Black Brant Branta bernicla 

nigricans)—in the Yukon/Kuskokwim 

Delta and North Slope regions only.

§ 92.32 Subsistence migratory bird 

species. 

You may harvest birds or gather eggs 

from the following species, listed in 

taxonomic order, within all included 

regions. When birds are listed only to 

the species level, all subspecies existing 

in Alaska are open to harvest.

(a) Family Anatidae 

(1) Greater White-fronted Goose (Anser 

albifrons). 

(2) Snow Goose (Chen caerulescens). 

(3) Black Brant (Branta bernicla 

nigricans)—except no egg gathering is 

permitted in the Yukon/Kuskokwim Delta 

and the North Slope regions. 

(4) Taverner’s Cackling Goose (Branta 

hutchinsii taverneri). 

(5) Aleutian Cackling Goose (Branta 

hutchinsii leucopareia)—except in the 

Semidi Islands. 

(6) Cackling Goose (Branta hutchinsii 

minima)—except no egg gathering is 

permitted. 

(7) Lesser Canada Goose (Branta 

canadensis parvipes). 

(8) Tundra Swan (Cygnus columbianus)—

except in Units 9(D) and 10. 

(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). 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 76367

(26) White-winged Scoter (Melanitta 

fusca). 

(27) Black Scoter (Melanitta nigra). 

(28) Long-tailed Duck (Clangula hyemalis). 

(29) Bufflehead (Bucephala albeola). 

(30) Common Goldeneye (Bucephala 

clangula). 

(31) Barrow’s Goldeneye (Bucephala 

islandica). 

(32) Hooded Merganser (Lophodytes 

cucullatus). 

(33) Common Merganser (Mergus 

merganser). 

(34) Red-breasted Merganser (Mergus 

serrator). 

(b) Family Gaviidae 

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

(2) Arctic Loon (Gavia arctica). 

(3) Pacific Loon (Gavia pacifica).

(4) Common Loon (Gavia immer). 

(5) Yellow-billed Loon (Gavia adamsii)—

North Slope Region only. (Requirements for 

harvest and reporting are described in 

§ 92.33(g)(4).). 

(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).

§ 92.33 Region-specific regulations. 

The 2005 season dates for the eligible 

subsistence regions are as follows: 

(a) Aleutian/Pribilof Islands Region. 

(1) Northern Unit (Pribilof Islands): 

(i) Season: April 2–June 30. 

(ii) Closure: July 1–August 31. 

(2) Central Unit (Aleut Region’s 

eastern boundary on the Alaska 

Peninsula westward to and including 

Unalaska Island): 

(i) Season: April 2–June 15 and July 

16–August 31. 

(ii) Closure: June 16–July 15. 

(3) Western Unit (Umnak Island west 

to and including Attu Island): 

(i) Season: April 2–July 15 and August 

16–August 31. 

(ii) Closure: July 16–August 15. 

(b) Yukon/Kuskokwim Delta Region. 

(1) Season: April 2—August 31. 

(2) Closure: 30-day closure dates to be 

announced by the Alaska Regional 

Director or his designee, after 

consultation with local subsistence 

users and the region’s Waterfowl 

Conservation Committee. This 30-day 

period will occur between June 1 and 

August 15 of each year. A press release 

announcing the actual closure dates will 

be forwarded to regional newspapers 

and radio and television stations and 

posted in village post offices and stores. 

(c) Bristol Bay Region. 

(1) Season: April 2–June 14 and July 

16–August 31 (general season); April 2–

July 15 for seabird egg gathering only. 

(2) Closure: June 15–July 15 (general 

season); July 16–August 31 (seabird egg 

gathering). 

(d) Bering Strait/Norton Sound 

Region. 

(1) Stebbins/St. Michael Area (Point 

Romanof to Canal Point): 

(i) Season: April 15–June 14 and July 

16–August 31. 

(ii) Closure: June 15–July 15. 

(2) Remainder of the region: 

(i) Season: April 2–June 14 and July 

16–August 31 for waterfowl; April 2–

July 19 and August 21–August 31 for all 

other birds. 

(ii) Closure: June 15–July 15 for 

waterfowl; July 20–August 20 for all 

other birds. 

(e) Kodiak Archipelago Region, except 

for the Kodiak Island roaded area, is 

open to the harvesting of migratory 

birds and their eggs. The closed area 

consists of all lands and waters 

(including exposed tidelands) east of a 

line extending from Crag Point in the 

north to the west end of Saltery Cove in 

the south and all lands and water south 

of a line extending from Termination 

Point along the north side of Cascade 

Lake extending to Anton Larson Bay. 

Waters adjacent to the closed area are 

closed to harvest within 500 feet from 

the water’s edge. The offshore islands 

are open to harvest. 

(1) Season: April 2–June 20 and July 

22–August 31, egg gathering: May 1–

June 20. 

(2) Closure: June 21–July 21. 

(f) Northwest Arctic Region. 

(1) Season: April 2–August 31 (in 

general); waterfowl egg gathering May 

20–June 9; seabird egg gathering July 3–

July 12; molting/non-nesting waterfowl 

July 1–July 31. 

(2) Closure: June 10–August 14, 

except for the taking of seabird eggs and 

molting/non-nesting waterfowl as 

provided in paragraph (f)(1) of this 

section. 

(g) North Slope Region. 

(1) Southern Unit (Southwestern 

North Slope regional boundary east to 

Peard Bay, everything west of the 

longitude line 158°30′ S and south of 

the latitude line 70°45′ E to west bank 

of the Ikpikpuk River, and everything 

south of the latitude line 69°45′ E 

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 

76368 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Proposed Rules 

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°30′ S and north of the latitude line 

70°45′ E to west bank of the Ikpikpuk 

River, and everything north of the 

latitude line 69°45′ E between the west 

bank of the Ikpikpuk River to the east 

bank of Sagavinirktok River): 

(i) Season: April 6–June 6 and July 7–

August 31 for king and common eiders 

and April 2–June 15 and July 16–August 

31 for all other birds.

(ii) Closure: June 7–July 6 for king and 

common eiders and June 16–July 15 for 

all other birds. 

(3) Eastern Unit (East of eastern bank 

of the Sagavanirktok River): 

(i) Season: April 2–June 19 and July 

20–August 31. 

(ii) Closure: June 20–July 19. 

(4) All Units: yellow-billed loons. 

Annually, up to 20 yellow-billed loons 

may be caught inadvertently in 

subsistence fishing nets in the North 

Slope Region and kept for subsistence 

use. Individuals must report each 

yellow-billed loon inadvertently caught 

while subsistence gill net fishing to the 

North Slope Borough Department of 

Wildlife Management by the end of the 

season. 

(h) Interior Region. 

(1) Season: April 2–June 14 and July 

16–August 31; egg gathering May 1–June 

14. 

(2) Closure: June 15–July 15. 

(i) Upper Copper River (Harvest Area: 

State of Alaska Game Management Units 

11 and 13) (Eligible communities: 

Gulkana, Chitina, Tazlina, Copper 

Center, Gakona, Mentasta Lake, 

Chistochina and 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 in this paragraph 

also documented traditional use 

harvesting birds in Unit 12, making 

them eligible to hunt in this unit using 

the seasons specified in paragraph (h)(i) 

of this section. 

(j) Gulf of Alaska Region. 

(1) Prince William Sound Area 

(Harvest area: Unit 6 [D]), (Eligible 

Chugach communities: Chenega Bay, 

Tatitlek). 

(i) Season: April 2–May 31 and July 

1–August 31. 

(ii) Closure: June 1–30. 

(2) Kachemak Bay Area (Harvest area: 

Unit 15[C] South of a line connecting 

the tip of Homer Spit to the mouth of 

Fox River) (Eligible Chugach 

Communities: Port Graham, Nanwalek). 

(i) Season: April 2–May 31 and July 

1–August 31. 

(ii) Closure: June 1–30. 

(k) Cook Inlet (Harvest area: portions 

of Unit 16[B] as specified in this 

paragraph (k).) (Eligible communities: 

Tyonek only). 

(1) Season: April 2–May 31–That 

portion of Unit 16(B) south of the 

Skwentna River and west of the Yentna 

River and August 1–31–That portion of 

Unit 16(B) south of the Beluga River, 

Beluga Lake and the Triumvirate 

Glacier. 

(2) Closure: June 1–July 31. 

(l) Southeast Alaska 

(1) Community of Hoonah (Harvest 

area: Lands in Icy Strait and Cross 

Sound, including Middle Pass Rock 

near the Inian Islands, Table Rock in 

Cross Sound and other traditional 

locations on the coast of Yakobi Island. 

The land and waters of Glacier Bay 

National Park remain closed to all 

subsistence harvesting [50 CFR 100.3]). 

(i) Season: Glaucous-winged gull egg 

gathering only: May 15–June 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 Pt. Riou] and 

coastal lands and islands bordering the 

Gulf of Alaska from Pt. Manby southeast 

to and including Dry Bay. 

(i) Season: Glaucous-winged gull egg 

gathering only: May 15–June 30. 

(ii) Closure: July 1–August 31.

Dated: December 10, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

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

BILLING CODE 4310–55–P