23336 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

a petition under this section should also 

include in their comments to the ERD 

telephone numbers at which their 

representatives may be reached. 

Interested parties may submit their 

comments using any of the following 

methods: 

(1) E-mail to FRA at: 

RRS.Correspondence@fra.dot.gov. 

(2) Facsimile to FRA at: 202–493– 

6309. 

(3) Mail to the Docket Clerk, DOT 

Docket Management Facility, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Ave., SE., Washington, 

DC 20590 or electronically via the 

internet at http://www.regulations.gov. 

Any comments or information sent 

directly to FRA will be immediately 

provided to the DOT FeP for inclusion 

in the ERD. 

(i) Request for hearing. Although the 

Administrator may waive compliance 

with any part of a regulation prescribed 

or order issued without prior notice and 

comment, parties desiring a public 

hearing on any petition being processed 

under this section must notify FRA 

through the comment process identified 

in paragraph (h) of this section within 

72 hours from the close of business on 

the day that the petition is entered into 

and available on the FeP. In response to 

a request for a public hearing, FRA may: 

(1) Arrange a telephone conference 

between all interested parties to provide 

an opportunity for oral comment; 

(2) Arrange a public hearing pursuant 

to the provisions contained in 49 CFR 

part 211; or 

(3) Determine that a public hearing is 

unnecessary, inconsistent with safety, or 

not in the public interest. 

(j) Decisions. FRA may grant a 

petition for waiver without prior notice 

and comment if the Administrator 

determines that it is in the public 

interest to grant the waiver; the waiver 

is not inconsistent with railroad safety; 

and the waiver is necessary to address 

an actual or impending emergency 

situation or emergency event. The 

Administrator will state in the decision 

issued under this section the reasons for 

granting the waiver. 

(1) FRA reserves the right to reopen 

any docket and reconsider any decision 

made pursuant to these emergency 

procedures based upon its own 

initiative or based upon information or 

comments otherwise received. 

(2) FRA decision letters, either 

granting or denying a petition, will be 

posted in the appropriate ERD and will 

reference the document number of the 

petition to which it relates. 

(3) A waiver under this section may 

be issued for a period of not more that 

60 days and may be renewed upon 

application to the Administrator only 

after notice and an opportunity for a 

hearing on the waiver. The 

Administrator will immediately revoke 

the waiver if continuation of the waiver 

would not be consistent with the goals 

and objectives of this part. 

(4) In granting a waiver under this 

section, the Administrator will consult 

and coordinate with other Federal 

agencies, as appropriate, for matters that 

may significantly impact such agencies. 

Issued in Washington, DC, on May 13, 

2009. 

Joseph Szabo, 

Administrator, Federal Railroad 

Administration. 

[FR Doc. E9–11598 Filed 5–18–09; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 92 

[FWS–R7–MB–2008–0126; 91200–1231– 

9BPP–L2] 

RIN 1018–AW29 

Migratory Bird Subsistence Harvest in 

Alaska; Harvest Regulations for 

Migratory Birds in Alaska During the 

2009 Season 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (Service or we) establishes 

migratory bird subsistence harvest 

regulations in Alaska for the 2009 

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 comanagement 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 the date of 

publication in the Federal Register and 

expire on August 31, 2009. 

DATES: The amendments to subpart D of 

50 CFR part 92 are effective May 19, 

2009, through August 31, 2009. 

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 Current Rulemaking 

Necessary? 

This current rulemaking is necessary 

because, by law, the migratory bird 

harvest season is closed unless opened 

by the Secretary of the Interior, and the 

regulations governing subsistence 

harvest of migratory birds in Alaska are 

subject to public review and annual 

approval. The Alaska Migratory Bird Comanagement Council (Co-management 

Council) held a meeting in April 2008 

to develop recommendations for 

changes effective for the 2009 harvest 

season. These recommendations were 

presented to the Service Regulations 

Committee (SRC) on July 30 and 31, 

2008, and were subsequently proposed 

in a December 18, 2008, Federal 

Register (73 FR 76994). 

This rule finalizes regulations for the 

taking of migratory birds for subsistence 

uses in Alaska during the spring and 

summer of 2009. This rule lists 

migratory bird season openings and 

closures by region. 

How Do I Find the History of These 

Regulations? 

Background information, including 

past events leading to this action, 

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 

These documents, which are all final 

rules setting forth the annual harvest 

regulations, are available at http:// 

alaska.fws.gov/ambcc/regulations.htm. 

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 


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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 

subsistence migratory bird harvest to 

only about 13 percent of Alaska 

residents. High-population areas such as 

Anchorage, the Matanuska-Susitna and 

Fairbanks North Star boroughs, the 

Kenai Peninsula roaded area, the Gulf of 

Alaska roaded area, and Southeast 

Alaska were excluded from the eligible 

subsistence harvest areas. 

Based on petitions requesting 

inclusion in the harvest, in 2004, we 

added 13 additional communities based 

on 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. 

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. These removed 

communities reduced the percentage of 

the State population included in the 

subsistence harvest to 13 percent. 

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 15 years through the 

use of annual household surveys in the 

most heavily used subsistence harvest 

areas, such as the Yukon–Kuskokwim 

Delta. Continuation of this monitoring 

enables tracking of any major changes or 

trends in levels of harvest and user 

participation after legalization of the 

harvest. This final rule restricts hunting 

on the North Slope to times of day with 

sufficient daylight to enable hunters to 

distinguish and avoid shooting closed 

species. In addition, three conservation 

measures, which focus on increased 

migratory bird hunter outreach prior to 

hunts, increased regulatory enforcement 

and in-season harvest verification of 

Steller’s eider mortality, will provide 

additional protection for threatened 

spectacled and Steller’s eiders. Finally, 

we have an emergency closure provision 

(50 CFR 92.21) which specifies that the 

harvest may be closed or temporarily 

suspended upon a finding that a 

continuation of the regulation allowing 

the harvest would pose an imminent 

threat to the conservation of any 

endangered or threatened species or 

other migratory bird population. 

With regard to Steller’s eiders, the 

new regulation at 50 CFR 92.32 clarifies 

that we will take action under 50 CFR 

92.21 as is necessary to prevent further 

take of Steller’s eiders, which 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 

the Co-management Council when an 

emergency closure is being considered. 

Any emergency closure deemed 

necessary will be designed to minimize 

its impact on the subsistence harvest. 

What Is Different in the Region-Specific 

Regulations for 2009? 

Yellow-billed Loons 

This final rule implements the request 

of the North Slope Borough Fish and 

Game Management Committee and the 

recommendation of the Co-management 

Council to continue into 2009 the 

provisions originally established in 

2005 to allow subsistence use of yellowbilled loons inadvertently entangled in 

subsistence fishing (gill) nets on the 

North Slope. Yellow-billed loons are 

culturally important for the Inupiat 

Eskimo of the North Slope for use in 

traditional dance regalia. A maximum of 

20 yellow-billed loons may be caught in 

2009 under this provision. This provisio 

does not authorize intentional harvest of 

yellow-billed loons, but allows use of 

those loons inadvertently entangled 

during normal subsistence fishing 

activities. Individual reporting to the 

North Slope Borough Department of 

Wildlife is required by the end of each 

season. However, the North Slope 

Borough has asked fishermen, through 

announcements on the radio and 

through personal contact, to report 

inadvertent entanglements of loons as 

they occur, to better estimate the level 

of mortality caused by gill nets. In 2007, 

14 yellow-billed loons were reported 

taken in fishing nets and an additional 

2 were released alive. This provision, to 

allow subsistence possession and use of 

yellow-billed loons caught in fishing gill 

nets, is subject to annual review and 

renewal by the Service. 

Aleutian and Arctic Terns 

We are opening a season May 15–June 

30 for harvesting Aleutian and arctic 

tern eggs in the Yakutat Harvest area, 

from Icy Bay (Icy Cape to Point Riou) 

and the coastal islands bordering the 

Gulf of Alaska from Point Manby 

southeast to and including Dry Bay. The 

Yakutat Tlingit Tribe requested this 

proposal, stating that this regulation 

would legalize a traditional gathering of 

tern eggs that has occurred for hundreds 

of years. The Tlingit refer to the terns as 

‘‘sea pigeons’’ and gather eggs for 

sustenance during the salmon fishing 

season. ‘‘Pigeon eggs’’ are considered a 

highly desired food by many Native 

households in Yakutat. Harvested eggs 

are shared extensively throughout the 

community and especially with local 

Native elders. The Yakutat Tlingit Tribe 

has agreed to monitor the harvest of tern 

eggs and this summer will conduct a 

recall survey of the spring harvest. The 

Yakutat Ranger Station, U.S. Forest 

Service, in cooperation with the 

Service’s Alaska Office of Migratory 

Bird Management is developing 

methods for monitoring the Aleutian 

and arctic tern populations in the 

Yakutat area. Work on this project is 

under way. 

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, and their 

migration and breeding distribution 

overlaps with the spring and summer 

subsistence harvest on the YukonKuskokwim Delta and the North Slope. 

Both spectacled and Steller’s eiders are 

closed to hunting in the subsistence 

harvest, but harvest surveys and Service 

documentation indicates substantial 

numbers of both species have been 

taken during recent subsistence harvests 

on the North Slope. 

The North Slope breeding population 

of spectacled eiders was estimated to be 

12,916 (10,942-14,890, 95% Confidence 

Limits) individual birds during 2002- 

2006 (Service unpublished data), and 

they nest relatively widely across the 

North Slope. It is estimated that 35 (33- 

40, 95% Confidence Limits) spectacled 

eiders were taken on the North Slope 

during the 2005 subsistence season 

(Service unpublished data, 2006); it is 

estimated 99 (44-155, 95% Confidence 

Limits) spectacled eiders were taken at 

Barrow in 2007 (Service, preliminary 

data). 

The North Slope breeding population 

of Steller’s eider was estimated to be 

576 (292-859, 90% Confidence Limits) 

individual birds during 1993-2008 


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(Service, unpublished data), and most of 

their nesting appears to be concentrated 

near Barrow, the northernmost point in 

Alaska. It is estimated that 19 (9-37, 

95% Confidence Limits) Steller’s eiders 

were taken on the North Slope during 

the 2005 subsistence season (Service 

unpublished data, 2006); it is estimated 

36 (10 reported, Service preliminary 

data)] Steller’s eiders were taken at 

Barrow in 2007. A subsistence harvest 

survey is not yet available for 2008, but 

the Service documented 20 Steller’s 

eiders shot at Barrow (with another 7 

Steller’s eiders found dead but too 

heavily scavenged to determine cause of 

death). 

Therefore, harvest survey estimates 

and direct observation of shot birds 

indicate that direct shooting occurs 

during the subsistence harvest, with 

impacts probably on the order of tens of 

each threatened eider species taken per 

year. Take is not authorized for either 

species during the subsistence harvest, 

and, in the case of Steller’s eider, this 

amount of shooting mortality is likely 

not sustainable for the small Alaskabreeding population. Because of the 

small Steller’s population size, their 

breeding concentration near Barrow, 

and the relatively high proportion of the 

estimated population shot during recent 

subsistence harvests, the Service 

focused on considering regulations and 

conservation efforts on the North Slope 

to benefit the Alaska-breeding 

population of Steller’s eiders. 

Several spectacled and Steller’s eider 

management needs are addressed by 

this final rule. It newly restricts hunting 

on the North Slope to time of day with 

sufficient daylight to ensure hunters can 

distinguish and avoid shooting closed 

species; it clarifies for subsistence users 

that Service law enforcement personnel 

have authority to verify species of birds 

possessed by hunters; it clarifies that it 

is illegal to possess any bird closed to 

harvest; and it describes how the 

Service’s existing authority of 

emergency closure would be 

implemented, if necessary, to protect 

Steller’s eiders. The regulations, 

implemented in accordance with 

conservation measures (described 

below), are considered the principal 

way in which threatened eider shooting 

mortality will be substantially reduced 

or eliminated. The emergency closure 

authority provides an additional level of 

assurance that, if an unexpected amount 

of Steller’s eider shooting mortality 

occurs, it will be curtailed to avoid 

approaching jeopardy to the existence of 

the species. 

The Service developed three 

conservation measures that are an 

integral part of the proposed harvest and 

were approved for implementation by 

the Alaska Regional Director on April 6, 

2009. The conservation measures 

substantially increase protection for 

spectacled and, particularly, Steller’s 

eiders on the North Slope in 2009, and 

describe how the Service will detect, 

remedy, and quickly curtail any 

shooting mortality or injury of Steller’s 

eiders that might occur during the 

harvest. In January 2009, the Service 

commenced planning for 

implementation of each measure in 

anticipation of the subsistence harvest. 

The three conservation measures are: 

1. Increase Migratory Bird Hunter 

Outreach Prior to the Hunts 

The Service with North Slope 

partners will provide migratory bird 

hunter outreach in Wainwright, Point 

Hope, Point Lay, and Barrow prior to 

the 2009 subsistence harvest. The 

outreach educational objectives will 

include: hunter understanding of the 

2009 hunting regulations; ability to 

distinguish among the open and closed 

species of eiders in flight; the need to 

reduce crippling loss; and an 

understanding of the Service’s role and 

obligation for enforcement and 

monitoring. 

2. Increased Service Enforcement of 

Migratory Bird Regulations 

The Service will sustain a law 

enforcement presence on the North 

Slope during the migratory bird hunts. 

The Service believes this is necessary to 

increase community understanding and 

acceptance of the shooting mortality 

problem, deter violations, and obtain 

compliance with the regulations. The 

Service will conduct real-time 

monitoring of the harvest to meet the 

primary objective of detecting Steller’s 

eider mortality during the hunts so 

appropriate and timely corrective action 

can be taken. Regulatory enforcement 

objectives will be achieved through a 

two-part strategy: (i) pre-season 

community and hunter education and 

outreach, and (ii) in-season 

implementation of the law enforcement 

portion of this plan and enforcement of 

all Service regulations. 

3. In-season Harvest Verification of 

Steller’s Eider Mortality and Injury 

Three types of monitoring efforts are 

necessary during the 2009 subsistence 

harvest and fall hunts on the North 

Slope: (i) Steller’s eider breeding 

surveys to inform the coordination of 

the conservation measures, (ii) harvest 

verification by Service law enforcement 

to meet the objective of detecting 

Steller’s eider mortality during the 

hunts so appropriate and timely 

corrective action can be taken to prevent 

further mortality; and (iii) monitoring 

for injured and dead birds to begin to 

quantify crippling rate and loss. All inseason monitoring information will be 

used to independently evaluate harvest 

survey reports, the efficiency of the 

regulations, conservation measures, and 

outreach efforts. 

To summarize, the Service has dual 

goals and responsibilities of authorizing 

a subsistence harvest while protecting 

migratory birds and threatened species. 

Although these goals are challenging, 

they are not irreconcilable with 

sufficient recognition of the need to 

protect threatened species, measures to 

remedy documented threats, and 

commitment from the subsistence 

community and other conservation 

partners to work together toward those 

dual goals. With these dual goals in 

mind, the Service has included in this 

final rule a provision that restricts 

hunting on the North Slope to times of 

day with sufficient daylight to enable 

hunters to avoid shooting closed 

species. Moreover, the Service, working 

with partners, developed additional 

measures to eliminate the potential for 

shooting mortality or injury of the 

Alaska-breeding population of Steller’s 

eider on the North Slope. These 

measures include: 1) increased 

waterfowl hunter outreach and 

community awareness; 2) increased 

enforcement of the migratory bird 

regulations that are protective of listed 

eiders; and 3) in-season Service 

verification of the harvest to detect any 

Steller’s eider mortality. In 2009, the 

Service and the community will 

immediately address and remedy any 

detected Steller’s eider mortality; and, 

as a matter of Service policy, any 

detected Steller’s eider shooting 

mortality will be curtailed at an amount 

estimated to be sustainable by the 

population. Further, by focusing these 

protections for Steller’s eiders at Barrow 

(location of the largest known 

concentration of Alaska-breeding 

Steller’s eiders), the Service is 

protecting the breeding population at its 

primary nesting area. 

Summary of Public Involvement 

On December 18, 2008, we published 

in the Federal Register a proposed rule 

(73 FR 76994) to establish spring and 

summer migratory bird subsistence 

harvest regulations in Alaska for the 

2009 subsistence season. The proposed 

rule provided for a public comment 

period of 30 days. We posted an 

announcement of the comment period 

dates for the proposed rule, as well as 

the rule itself and related historical 

documents, on the Council’s internet 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23339 

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 

www.Regulations.gov. 

By the close of the public comment 

period on January 20, 2009, we had 

received written responses from one 

individual and three organizations. 

There was a predominate request to 

extend the public comment period and 

to hold public hearings in the North 

Slope villages potentially impacted by 

the regulations. Based on these requests, 

we held four public meetings to record 

public comments on the proposed 

regulations: January 26, 2009, at the 

Inupiat Heritage Center, 5421 North Star 

St., Barrow; January 27, 2009, at the 

Robert James Community Center, 

Wainwright; January 28, 2009, at the 

Community Center, Point Lay; and 

January 29, 2009, at the Qargi 

Community Center, Point Hope. A 

second public meeting was held in 

Point Lay on March 10, 2009. 

We also reopened the public comment 

period until March 12, 2009, by 

publishing a notice in the February 10, 

2009, Federal Register (75 FR 6563). 

The public was informed that if they 

had submitted comments any time 

before March 12, 2009, they did not 

need to resubmit because we had 

already incorporated them into the 

public record and would consider them 

in preparation of our final 

determination. By the close of the 

second public comment period on 

March 12, 2009, we had received 

written responses from 40 individuals 

and 7 organizations. 

Response to Public Comments 

General Comments 

Comment: We received two general 

comments on the overall regulations 

that expressed strong opposition to the 

concept of allowing any harvest of 

migratory birds in Alaska. 

Service Response: For centuries, 

indigenous inhabitants of Alaska have 

harvested migratory birds for 

subsistence purposes during the spring 

and summer months. The Canada and 

Mexico migratory bird treaties were 

recently amended for the express 

purpose of allowing subsistence hunting 

for migratory birds during the spring 

and summer. The amendments indicate 

that the Service should issue regulations 

allowing such hunting as provided in 

the Migratory Bird Treaty Act, 16 U.S.C. 

712 (1). See STATUTORY AUTHORITY

section for more details. 

The Preamble to the Protocol 

amending the Canada Treaty states that 

one of its goals is to allow a traditional 

subsistence hunt while also improving 

conservation of migratory birds through 

effective regulation of this hunt. In 

addition, the Preamble notes that, by 

sanctioning a traditional subsistence 

hunt, the Parties do not intend to cause 

significant increases in the take of 

migratory birds, relative to their 

continental population sizes, compared 

to the take that is presently occurring. 

Any significant increase in take as a 

result of the types of hunting provided 

for in the Protocol would be 

inconsistent with the Convention. If at 

some point the subsistence harvest 

regulations result in significantly 

increased harvest, management 

strategies will be implemented to ensure 

maintenance of continental populations. 

Comment: One commenter expressed: 

‘‘I was listening to some of these people 

that said they . . . have been giving out 

citations. And there was an incident two 

or three years ago, one of your agents 

violated one of the fishing nets that was 

out in the Inlet. Were there any citations 

or arrests made in that occasion? I don’t 

think so. Because it was in the papers 

that they pull a net out just to release 

a loon that was tangled up in the net; 

left the net on the sand for the fish to 

rot.’’ 

Service Response: This was an 

isolated incident. We worked with the 

owner of the subsistence net and the 

North Slope Borough to resolve the 

issue. 

Comment: Two commenters requested 

that the public comment period be 

delayed past the holidays, and/or 

extended past 30 days. 

Service Response: We were not able to 

extend the original comment period, but 

we did reopen the public comment 

period until March 12, 2009 by 

publishing a document in the February 

10, 2009, Federal Register (75 FR 6563). 

The public was informed that if they 

had submitted comments any time 

before March 12, 2009, they did not 

need to resubmit because we had 

already incorporated them into the 

public record and would consider them 

in preparation of our final 

determination. 

Comment: Sixteen commenters 

explained the true value of subsistence 

to their way of life on the North Slope 

— it includes both providing essential 

food and preserving the age-old customs 

and traditions associated with it. 

Service Response: We respectfully 

acknowledge the importance of the 

customs and traditions that go along 

with the subsistence way of life in rural 

Alaska. One of the mandates of the 

Migratory Bird Treaty Amendment 

Protocols with Canada and Mexico is to 

recognize and maintain the cultural and 

traditional lifestyle of the indigenous 

inhabitants of Alaska. 

Comment: In regard to the proposed 

new North Slope regulations, one 

commenter wrote, ‘‘we believe the rule 

is unlikely to achieve its objectives in 

the medium to long term, and will likely 

create much mistrust between the 

community and your agency. This 

mistrust may affect the Service’s ability 

to achieve its mission in regard to other 

species.’’ 

Service Response: We intend to make 

every attempt to maintain positive 

working relationships with the North 

Slope communities by developing 

conservation measures in a cooperative 

environment. 

Comment: Five commenters brought 

up that proposed changes in the 

regulations were not developed in 

coordination with the North Slope 

Borough or other North Slope 

organizations and the tribal entities in 

particular that have a right to have a 

government-to-government relationship. 

Service Response: We will continue to 

improve our coordination efforts as this 

situation dictates the need for special 

conservation provisions in the 

regulations for listed species. Given the 

mortality of Steller’s eiders documented 

in Barrow in the summer of 2008, we 

determined that there was an urgent 

need to get preventative actions put in 

place before the start of the 2009 

subsistence season. A process was 

established to develop consensus among 

Service analysts as to what actions to 

propose, but due to the controversy 

involved, the process took some time. 

Once we decided on a course of 

action, we went to Barrow in December 

to seek comments at a public meeting of 

the North Slope Fish and Game 

Advisory Committee. We conducted 

public meetings in Barrow, Wainwright, 

Point Lay, and Point Hope on January 

26–29, 2009, and again in Point Lay on 

March 10, 2009, documenting public 

comments on the proposed actions. A 

meeting was held on February 6, 2009, 

in Anchorage between the Service, the 

Alaska Department of Fish and Game, 

the North Slope Borough Wildlife 

Department, the Native Village of 

Barrow, Inupiat Community of the 

Arctic Slope, Wainwright Traditional 

Council, and Ukpeagvik Inupiat 

Corporation to discuss the current 

situation and come up with options 

working toward a solution. The Alaska 

Regional Director made several trips to 

Barrow (February 10 and March 12 and 

26, 2009) to meet with all the leaders of 

the North Slope organizations and craft 


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a Memorandum of Understanding 

between the Service and partnering 

North Slope organizations. 

Comment: Seven commenters 

expressed concern that the new 

proposed regulations for the North 

Slope did not go through the Alaska 

Migratory Bird Co-Management Council 

and ‘‘if regulations are put in place that 

are unilaterally put in by the Service 

without going through the CoManagement Council that helps defeat 

the purpose of the Co-Management 

Council; it doesn’t engender trust; it 

doesn’t engender respect, and after all it 

is a co-management council where the 

partners are supposed to be working 

together and the Steller’s eiders 

regulations in 2009 have not gone 

through that co-management process. 

. . . But using the Co-Management 

Council as an umbrella, as a cover for 

the unilateral decisions that the Service 

is making in this case, is not appropriate 

and perhaps a better way to do these 

regulations would be to go through the 

Section 7 consultation instead of in the 

Co-Management Council’s own 

regulations.’’ Another commenter 

explained: ‘‘Going outside of the comanagement process for development of 

significant rule changes erodes 

confidence and legitimacy in the comanagement process.’’ 

Service Response: The CoManagement Council was briefed on 

Steller’s eider issues and the situation 

on the North Slope at its fall meeting on 

September 24-25, 2008. Reviewing the 

incidence of human-caused Steller’s 

eider mortality documented in Barrow 

in the summer of 2008, we determined 

that there was an urgent need to put 

preventative actions in place before the 

start of the 2009 subsistence season. 

Regulatory changes were developed 

later in the fall to serve as preventative 

actions. The Co-Management Council 

members were then informed on the 

details of the proposed actions upon 

publication of the proposed rule and 

encouraged to submit comments during 

the public comment period. 

Comment: Eight commenters 

expressed concern that the Service 

needs to work with the North Slope 

Borough, Ukpeagvik Inupiat 

Corporation (UIC), tribal entities, and 

the City of Barrow to come up with a 

solution together. 

Service Response: We agree on the 

importance of developing a plan of 

action together with the organizations 

representing the involved public. A 

meeting was held on February 6, 2009, 

in Anchorage between the Service, the 

Alaska Department of Fish and Game, 

the North Slope Borough Wildlife 

Department, the Native Village of 

Barrow, Inupiat Community of the 

Arctic Slope, Wainwright Traditional 

Council, and UIC to discuss the current 

situation and come up with options 

working toward a solution. A 

Memorandum of Understanding is to be 

signed by these parties prior to the 

opening of the season. 

Comment: One commenter questioned 

that we did not exercise due diligence 

in consulting with tribal authorities 

under Executive Order 13175 and 

Secretarial Order 3225 regarding the 

Endangered Species Act and its 

application to Alaska Native 

subsistence. Six additional commenters 

expressed concern that we have not 

consulted nor coordinated with North 

Slope tribal governments to evaluate the 

new regulations for possible effects on 

tribes or trust resources. One commenter 

also brought up the 2004 Consolidated 

Appropriations Act (Section 16) 

requiring consultations with Alaska 

Native Corporations on the same basis 

as Indian tribes. 

Service Response: We are strongly 

committed to a public process that’s 

includes input from everyone affected 

by its regulatory decisions. We also 

recognize that Alaska’s tribes have a 

special, unique legal and political 

relationship with the Federal 

government as exemplified by Executive 

Order 13175. However, because the 

takings exemption in the Migratory Bird 

Treaty Act applies to all indigenous 

inhabitants of the subsistence harvest 

areas, regardless of tribal status, we 

disagree that formal government to 

government consultation is required. 

Nevertheless, we chose to consult with 

tribes in the development of the 

program structure implementing the Comanagement program as described in 

our 2002 final rule (67 FR 53517, 

August 16, 2002). The Co-management 

Council was formed in part to serve as 

the venue for meaningful dialogue with 

duly appointed regional representatives 

whose principal duty is to carry forward 

recommendations from Alaska Natives, 

including representatives of Federallyrecognized tribes and Alaska Native 

Corporations, throughout their region. 

Five additional elements were added to 

the proposed regulation beyond the 

elements considered by the Comanagement Council. To ensure input 

was received from affected Federally 

recognized tribes and Alaska Native 

Corporations regarding these five 

elements, the Service held public 

meetings in Barrow, Wainwright, Point 

Lay, and Point Hope. While scheduling 

these meetings, members of the Service 

contacted various Federally-recognized 

tribal government officials and offered 

to meet with them separately to hear 

information about the proposed 

regulation and to provide additional 

opportunity for the tribal government or 

Alaska Native Corporation 

representative to comment. In addition, 

we contacted each affected tribal 

government and Alaska Native 

Corporation and provided a copy of the 

proposed regulations, encouraging them 

to submit any comments in writing. At 

the request of Point Lay Tribal Council 

members, we held one additional public 

meeting in Point Lay during a time 

when more tribal council members 

could be present. To date, we have 

conducted 28 meetings on the North 

Slope with the affected tribal 

governments and other partners to foster 

agreement and cooperation on the 

strengthened efforts to conserve Steller’s 

eiders. 

The five additional elements were 

added to conserve and protect species 

listed under the Endangered Species 

Act. However, this regulation 

establishes restrictions applicable only 

to listed species and is submitted under 

the authority of the Migratory Bird 

Treaty Act and not the Endangered 

Species Act. Consequently, the proper 

authority for consultation is Executive 

Order 13175. To the extent Executive 

Order 13175 or the 2004 and 2005 

appropriations bill language applies, 

consultation was conducted as 

described above. 

Comment: One commenter cited 

Executive Order 12866, and asked 

whether the rule will create 

inconsistencies with other Federal 

agencies’ actions (per section 3(f)(2)) 

and entitlements, grants, user fees, loan 

programs, rights, and obligations of their 

recipients (per section 3(f)(3)). Under 

Executive Order 12630, the commenter 

stated that this rule does have 

significant taking implications. 

Service Response: The Office of 

Management and Budget has established 

and published criteria for determining 

whether or not a rule is significant 

under Executive Order 12866 (see 

REQUIRED DETERMINATIONS section for 

more details). Inconsistencies will not 

be created via this rulemaking with 

other Federal agencies’ actions. This 

rule will not have an annual effect of 

$100 million on the economy. Also this 

rule will not materially impact 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. With regard to 

Executive Oder 12630 (Takings), this 

rule applies to the harvesting of 

migratory birds and has no impact on 

land ownership. 

Comment: One commenter brought up 

concerns under the Unfunded Mandates 

Reform Act stating: ‘‘In developing the 


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rules, the Department of the Interior 

certified that this rule ‘ ... does not have 

a significant or unique effect on state, 

local, or tribal governments or the 

private sector’ under the Unfunded 

Mandates Reform Act. In contrast, we 

believe the rule will have unique effects, 

in two ways. First, obtrusive observation 

by enforcement personnel will change 

subsistence harvesting patterns, likely 

leading to active avoidance of not only 

enforcement personnel but also others 

in the area, such as agency biologists, 

researchers, and staff of the regional 

government.... Second, as the Service 

relies on harvest figures from the 

Borough migratory bird household 

surveys, the new regulations will likely 

depress community support for surveys 

in general.... As a result, the ‘best 

available science’ will be more difficult 

to collect and of questionable 

reliability.’’ 

Service Response: The Unfunded 

Mandates Reform Act addresses only 

economic impacts of more than $100 

million on local, State, or tribal 

governments. This rule results in no 

such economic impacts. See the 

UNFUNDED MANDATES REFORM ACT section 

of the preamble for more details. 

Comment: One commenter expressed: 

‘‘We want to see more employment with 

our own Native people and my tribal 

members. We want to see more funds 

coming in . . . having Fish and Wildlife 

people that are tribal members so that 

we can regulate what’s going on out 

there and be a part of it . . . .’’ 

Service Response: We agree that it is 

desirable for the Federal Government to 

employ more local people and we have 

sought opportunities to do so. Since 

2005, the Office of the Co-management 

Council has funded North Slope 

subsistence migratory bird harvest 

surveys through the North Slope 

Borough, which has involved the hiring 

of local surveyors in the villages. The 

Native Village of Barrow recently 

submitted an application for a tribal 

wildlife grant, and an award is expected 

in March or April 2009. This grant 

provides funding to hire one or more 

individuals to conduct eider monitoring 

and outreach in Barrow for the season. 

We are also in the process of contracting 

for a community liaison representative 

to reside in Barrow. 

Comment: One commenter opined 

that it is necessary to revise the 

Environmental Assessment before 

proceeding with this rulemaking 

document. The commenter believes that 

the existing Environmental Assessment 

failed to adequately consider the effects 

of the ruling on North Slope public 

health and safety. 

Service Response: The primary 

purpose of the preferred alternative in 

the existing Environmental Assessment 

(EA) for the 2009 season is to open a 

season that allows for continuation of a 

customary and traditional harvest of 

migratory birds by qualified Alaska 

residents, including non-Natives. 

Another purpose is to avoid negative 

impacts on threatened or endangered 

migratory birds. The EA evaluates the 

potential impacts of regulations 

proposed for the 2009 season. The only 

new regulation for the North Slope that 

could limit the subsistence harvest of 

birds is the shooting hours restriction 

prohibiting shooting in the dark, which 

applies only during the last 11 (Barrow) 

to 21 (Point Hope) days in August. 

We do not have adequate information 

to evaluate how many birds are 

normally taken in the dark, or how 

much of an impact this will have on the 

families partially or entirely dependent 

on subsistence foods. However, this 

impact will still be far less than that 

imposed by the other alternatives 

considered, such as not opening the 

subsistence hunt statewide or opening a 

hunt that parallels the sport hunt by 

including species bag limits plus 

restriction on shooting hours. So even 

given the potential negative impacts on 

subsistence users of the affected North 

Slope communities, we would still 

choose the same preferred alternative 

and do not see a need to reinitiate the 

EA process for the 2009 season. In the 

event of a limited harvest closure on the 

North Slope issued under our 

Emergency Closure authority, we will 

meet the National Environmental Policy 

Act requirements by following 

published emergency procedures 

culminating in an Environmental Action 

Statement. 

Law Enforcement 

Comment: We received nine 

comments regarding the enforcement of 

the migratory bird subsistence 

regulations in the Barrow area. 

Commenters indicated that they believe 

enforcement was ‘‘too aggressive,’’ that 

the killing of Steller’s eiders during 

2008 was not done by subsistence 

hunters, and that the community and 

the Service should work together to find 

solutions and not resort to law 

enforcement. 

Service Response: Since the Migratory 

Bird Treaty Amendments and Comanagement Council regulations 

process has been implemented, 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. Our approach has focused 

on significant outreach efforts, 

including public meetings, radio talk 

show opportunities, posted fliers, and 

brochures followed by a phased-in, 

increased reliance on enforcement 

actions. 

We are working closely with North 

Slope communities and Tribal entities 

to formulate a comprehensive 

conservation strategy for Steller’s eider 

conservation that focuses on public 

outreach, harvest monitoring, and when 

necessary, enforcement. We are hopeful 

that this increased emphasis on 

collaboration will allow the hunting 

public to participate fully in the 

process. 

Comment: One commenter questioned 

whether the enforcement officers can 

identify the different eiders. The 

commenter said that the officers should 

be trained in bird identification before 

contacting hunters. 

Service Response: All of the Service 

law enforcement officers detailed to 

work on the North Slope of Alaska are 

trained and proficient in waterfowl 

identification, including eiders. 

Comment: Two commenters question 

how the new regulations for the 

subsistence migratory bird hunt can be 

enforced on private lands in and around 

Barrow, and one commenter added 

concern that violators, if caught, could 

go to Federal prison. 

Service Response: The Migratory Bird 

Treaty Act gives the Federal 

Government, namely the Service, the 

jurisdiction to enforce all regulations 

regarding the taking of migratory birds 

within the United States. Enforcement 

of these regulations is neither dictated 

or in any way restricted by land or water 

ownership. Most violations of the 

subsistence migratory bird regulations 

are misdemeanors involving only 

monetary fines with an optional 

appearance in Federal Court. 

Comment: One commenter expressed 

the opinion that law enforcement is 

counterproductive in subsistence hunts. 

The commenter explains: ‘‘Clearly for 

commercial fishing and commercial 

hunting and guided hunts you need 

enforcement agents, but I think there’s 

good evidence that enforcement in a 

subsistence hunt is counterproductive . 

. . . There’s lot of scientific literature 

that indicates that enforcement in a 

subsistence setting is not helpful.’’ 

Service Response: We balance 

education, outreach, and enforcement 

with a goal of encouraging voluntary 

compliance. We believe that the 


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penalties imposed for violations serve as 

a deterrent and encourage conservation. 

Comment: One commenter remarked 

that: ‘‘The department in promulgating 

this rule has determined it will not 

unduly burden the judicial system and 

it meets the requirements of section 3(a) 

and section 3(b)(2) of Executive Order 

12988. And this is not true. There will 

be a burden on the judicial system . . . 

if people have to go through courts and 

the systems.’’ 

Service Response: In 2008, eight 

Violation Notices (tickets) were issued 

on the North Slope for migratory bird 

harvest violations. These violations are 

classified as misdemeanors, and the 

Service, through the issuance of 

Violation Notices, seeks only monetary 

fines. A hunter who is given a Violation 

Notice has the option to appear in 

Federal Court to contest the charge. 

Only more serious violations require a 

mandatory court appearance. These 

changes should not pose any significant 

additional burden on the judicial 

system. 

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? 

Comment: We received six comments 

acknowledging the need for Steller’s 

eider conservation on the North Slope. 

Service Response: We appreciate the 

shared concern for this threatened 

species. 

Comment: We received six comments 

that the new regulations created to 

conserve Steller’s eiders are creating a 

problem for the subsistence users on the 

North Slope. The commenters stated 

that local people depend on harvest of 

marine mammals, birds, fish, and other 

subsistence animals, and that the new 

proposed regulations could result in 

negative impacts to the local people, but 

that it is not clear whether these 

proposals are going to help raise the 

population of the threatened eiders. 

Service Response: Under the 

Migratory Bird Treaty Act and the 

Endangered Species Act, we have a 

compound mandate emphasizing 

conservation of migratory birds and the 

protection of threatened and endangered 

species, while providing for the 

customary and traditional taking of 

migratory birds for subsistence use. The 

intent of the new North Slope 

regulations is to fulfill these competing 

mandates, while eliminating or 

minimizing take of threatened eiders 

during the subsistence harvest. In 

season monitoring will determine the 

effectiveness of these regulations and 

other efforts. 

Comment: One commenter explained 

that the Steller’s eider hen and 

ducklings found left in a pile were put 

there deliberately by subsistence 

hunters for law enforcement to find. A 

second commenter adds: ‘‘the steller’s 

eider deaths are not unintended take 

resulting from the subsistence hunt; 

they are an illegal deliberate take 

resulting from individuals breaking the 

law. The proposed rule punishes not 

only those individuals responsible for 

killing eiders, but the entire 

community....’’ A third commenter 

echoed that these birds were shot in 

response to negative interactions 

between hunters and enforcement. 

Service Response: Under the 

Endangered Species Act, incidental take 

is defined as the taking of a protected 

species not for the purpose of, but only 

incidental to, the carrying out of an 

otherwise lawful activity. The Steller’s 

eiders found dead in Barrow last year 

comprised take relative to the 

subsistence hunt, malicious take, 

accidents, and unknown causes. When 

we find birds that have been shot and 

abandoned, it is difficult to determine 

why. These regulations are intended to 

add protection by minimizing take 

associated with the subsistence hunt. 

Comment: One commenter brought up 

the point that Steller’s eiders have a 

history of not nesting every year in the 

Barrow area, and that if they don’t nest 

in 2009, then the new regulations would 

not be necessary and should be 

eliminated for the remainder of the 2009 

season. 

Service Response: Even in failed 

nesting years, protected eiders may 

continue to stay in the area before 

migrating south, and birds nesting 

further east will migrate through the 

area. 

Comment: We received two comments 

that local elders had provided testimony 

that Steller’s eiders were abundant in 

Barrow in some years and not in others, 

suggesting that Barrow may be on the 

outer range of these birds, which would 

explain inconsistencies in nesting. A 

second commenter added: ‘‘You must 

also account for the possibility that 

eiders from Russia may come to Barrow 

and northern Alaska to nest every once 

in a while.’’ 

Service Response: We agree that 

Alaska is on the outer edge of the 

species’ current breeding range. We 

believe that inconsistencies in nesting 

arise from the species’ association with 

brown lemmings and their predators, 

which vary in abundance from year to 

year. This appears to be true in Russia 

as well as in Alaska. We have some 

evidence to suggest that females that 

nest in Alaska return to Alaska in 

subsequent years and have no evidence 

of females switching from one continent 

to another for breeding. Males probably 

switch between continents, following 

females. We have the responsibility to 

conserve the population listed as 

threatened, which is the North 

American breeding population. 

Comment: Ten commenters expressed 

concern that the real cause of the 

Steller’s eider decline in the Barrow 

area was not being addressed, namely 

the effects of predators such as gulls, 

jeagers, ravens, and arctic foxes. One 

commenter suggested using local 

hunters to kill foxes around Barrow in 

the winter and shoot gulls in the 

summer. Another commenter added: 

‘‘Predator control seems like a 

reasonable idea using local hunters, 

both the avian and ground predators, 

outreach of course suggested, but that 

could be enhanced, possibly some 

habitat enhancement. It’s interesting 

that the highest nesting density is in a 

drained lake out here along the Gaswell 

Road.’’ 

Service Response: The Steller’s Eider 

Recovery Plan lists a number of factors 

contributing to the species’ decline, 

including predators. Arctic foxes are 

documented to be the primary nest 

predator. Our fox control program has 

had some success in reducing fox 

numbers in the Barrow nesting area. We 

are continuing discussions with our 

North Slope partners to explore other 

means to control predators as necessary. 

Comment: One commenter expressed 

concern about a statement the Service 

had made saying that Steller’s eiders 

only reside in the Barrow area. The 

commenter countered that subsistence 

hunters have seen them all over the 

North Slope and that calling them 

endangered is misleading because they 

are abundant in other parts of the world. 

Service Response: We acknowledge 

that there may have been a 

misunderstanding between the 

commenter and what was stated by the 

Service representative. It is well 

documented that Steller’s eiders range 

throughout the coastal North Slope, but 

primarily west of Nuiqsut. Steller’s 

eiders are divided into Atlantic and 

Pacific populations; the Pacific 

population is further divided into the 

more abundant Russia-breeding 

population along the Russian eastern 

arctic coastal plain, and the threatened 

Alaska-breeding population. Service 

aerial survey information has 

documented a concentration of breeding 

birds in and around Barrow. We 

welcome additional information and 

will incorporate it into future analyses 

as feasible. 


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Comment: One commenter expressed 

concern that ‘‘on the Energy Supply, 

Distribution or Use, Executive Order 

13211, you have the oil companies 

you’re protecting that come down here 

and do a whole bunch of flying all over 

the area around the nesting areas and 

probably are killing some off too.’’ Three 

other commenters also brought up oil 

and gas exploration and expressed 

concern that the Service was not fully 

considering the possible impacts on the 

endangered eiders by increasing 

development. 

Service Response: We hold all North 

Slope users to the same standards in 

regard to the take of protected species. 

Under the Endangered Species Act, the 

definition of ‘‘take’’ includes 

disturbance. Every federal agency is 

required to consult with the Service 

under Section 7 of the Endangered 

Species Act to ensure that any action 

authorized, funded or carried out by 

such agency is not likely to jeopardize 

the continued existence of any 

threatened or endangered species, such 

as spectacled and Steller’s eiders, and is 

not likely to result in the destruction or 

adverse modification of designated 

critical habitat Accordingly, we 

regularly review oil and gas activities 

authorized, funded or carried out by 

federal agencies in these consultations 

under Section 7. 

Comment: Two commenters brought 

up the issue of decreasing sea ice and 

the likely increase in tourism and other 

shipping, and that the Service should be 

evaluating what this may do to the 

endangered eiders using the North 

Slope. 

Service Response: As the climate and 

habitat changes, any new users of the 

area will also be subject to the Service’s 

review of their activities in accordance 

with the requirements of Section 7 of 

the Endangered Species Act. 

Comment: Four commenters 

expressed doubts concerning the 

Steller’s eider population model cited in 

the proposed rule with one commenter 

stating that ‘‘the results of the model 

actually show that the population could 

go extinct in 10 years, but it also shows 

that the population could increase. 

There’s so much variability in the data 

and the model is not good enough that 

it shouldn’t be used to support the 

decision.’’ Two commenters complained 

that neither the model nor the analyses 

on which it is based were made 

available to the public, nor was the 

model peer reviewed. Another 

commenter expressed ‘‘there is 

uncertainty surrounding the population 

size, survival rate, reproductive rate, 

estimates used to develop this model.’’ 

Yet another commenter pointed out 

deficiencies in the model, including 

very sparse data sets on breeding and 

productivity parameters and low sample 

sizes for clutch size, hatching success, 

and fledging success. 

Service Response: We agree with 

some of these concerns and, 

consequently, we do not intend to use 

or cite the Steller’s eider population 

model again until it has been peer 

reviewed, and we have confirmed that 

it represents the best available science. 

Comment: Two commenters stated 

concern over the incidental damage 

caused to nesting Steller’s eiders by the 

Service’s research and monitoring 

efforts around Barrow, from nest 

abandonment to actually stepping on 

eggs. There should be equal disclosure 

on incidental and accidental damage 

done during the research each year, and 

that they had heard over 10 were killed 

last year alone during the course of 

conducting research. 

Service Response: We acknowledge 

that research and monitoring, even 

when performed by professional 

biologists, impacts nesting birds. 

Generally this impact is of small 

magnitude. However, although every 

reasonable effort is made to keep it 

minimal, acquiring needed information 

for biological studies makes some 

disturbance unavoidable. Few 

quantitative estimates of the extent of 

detrimental effects exist for waterfowl, 

particularly for eiders in tundra 

environments. However, we have been 

monitoring and reporting all 

documented or suspected detrimental 

effects of their studies on Steller’s eiders 

in the Barrow area, according to 

research permit requirements. Those 

effects over the years have been minimal 

(Rojek 2008), but do include the 

possible loss of one nest in 2008. In 

other areas, the depredation rate on eggs 

or nests in a Brant colony was not found 

to be influenced by researcher nest 

visits (Sedinger 1990). A similar study 

found minimal effects on egg loss 

(<0.7%) by nest visits in a Snow Goose 

colony (Bety and Gauthier 2001), in 

spite of increased activity by glaucous 

gulls in the visited colony in one of two 

years of study. Daily survival rates were 

slightly smaller (but not significantly so 

in either of two years) for marked 

visited nests compared to remotely 

monitored Spectacled Eider nests 

(Grand and Flint 1997). 

Recently, more sensitive statistical 

analysis procedures have been derived 

to detect and correct for observer effects 

on daily survival rates (Rotella 2000), 

although large samples are needed to 

detect differences. Using this method, 

studies of nesting in King Eiders 

confirmed a short-term negative effect 

associated with observer visits to nests 

(Bentzen et al. 2008). Even if hard to 

quantify, the influence of visitation is 

recognized by biologists and continued 

efforts are made to minimize harm by 

reducing visitation frequency and not 

unnecessarily flushing incubating birds. 

There is more concern that change in 

predator populations associated with 

development or other activities could 

have larger effects (Truett 1997). 

Increased predator populations would 

potentially influence success of all 

nests, not just the small proportion of 

nests that are studied by biologists. 

Comment: One commenter expressed 

concern over growing ‘‘invasive’’ 

species such as the ‘‘Canada white 

geese’’ (snow geese) overgrazing in some 

areas and out-competing other species 

out of the habitat. 

Service Response: There has been no 

documented evidence that snow geese 

compete with eiders for either food or 

habitat. We are not aware of any adverse 

impacts to protected eiders by invasive 

bird species on the North Slope. 

Comment: One commenter questioned 

if the Service understood the bigger 

picture of what has happened to the 

Steller’s eiders. The commenter 

explained that for people in Barrow, 

their diet is mainly snow geese, king 

eider’s, and occasionally, the common 

eiders. ‘‘But we don’t hunt these 

Steller’s, and we know that the 

population is low.’’ Furthermore, ‘‘The 

elders tells us that sometimes they come 

lots and sometimes they come few. They 

also said maybe . . . they’re going down 

south, something happening and not— 

and it’s not in the Arctic, but when they 

go down south to eat—maybe 

something’s coming from the ocean or 

Aleutian or natural gas seepage or what, 

I don’t know.’’ 

Service Response: We agree that the 

original cause of the decline in Steller’s 

eiders in Alaska is unknown; however, 

eider adult mortality from all causes has 

a significant impact on threatened North 

American breeding populations. The 

changes in harvest regulations for the 

North Slope are an attempt by us to 

minimize adult mortality incidental to 

the subsistence harvest. 

Comments on Original Region-Specific 

Regulations 

Comment: One commenter opposed 

the closed season for nesting birds in 

the Barrow area explaining: ‘‘And the 

dates that it’s open and closed: I hunt 

well before these dates on birds and I 

hunt well after that it’s closed. So I hunt 

well before April...all the way until 

October. I hunt all summer days. So I 

think you guys need to change that.’’ 


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Service Response: The Migratory Bird 

Treaty with Japan dictates that birds 

must be protected during their principal 

nesting season. The Service, working 

with the Co-management Council, has 

agreed that a 30–day closure is the 

minimum necessary to adequately 

protect the nesting birds. We deferred to 

the North Slope partners to specify the 

dates of the closure. 

What Is Different in the Region-Specific 

Regulations for 2009? – Yellow-billed 

Loons and Aleutian Terns 

Comment: One commenter expressed 

support of the proposal to continue 

allowing possession of inadvertently 

caught yellow-billed loons on the North 

Slope. 

Service Response: We appreciate the 

continued support on this regulation. 

Comment: One commenter supported 

the new tern egg harvest in the Yakutat 

area, but cautioned that the Service 

should annually assess the harvest’s 

impact on overall tern productivity in 

the affected colonies to ensure that 

harvest practices are efficient and 

minimally disruptive to the terns. 

Service Response: The U.S. Forest 

Service is partnering with us to ensure 

that annual monitoring of the affected 

tern colonies will be conducted. In 

addition, the Yakutat tribe has agreed to 

monitor the subsistence harvest. 

What Is Different in the Region-Specific 

Regulations for 2009? – Steller’s Eiders 

Comment: Six commenters did not 

like the new North Slope regulation 

making it illegal to simply possess a 

Steller’s eider, stating that culturally 

they are not a wasteful people and will 

salvage a bird even if they did not kill 

it. One commenter clarified: ‘‘It’s our 

customary and traditional practice to 

pick up animals that are edible, and if 

it happens to be a spectacled or Steller’s 

eider, we’re going to use it for food and 

we shouldn’t be cited for stuff like that. 

The other one is at least I was raised 

when you see an animal suffering that 

may have hit a power line and it 

happens to be a spectacled or Steller’s 

eider, we should have every right to kill 

that bird and use it for subsistence 

because we do not let our animals 

suffer. That’s the way we were raised, 

and that’s what those regulations should 

be.’’ 

Service Response: This regulation 

clarifies a point that it is already illegal 

under the Migratory Bird Treaty Act to 

possess any bird closed to harvest. You 

may not possess birds that are illegally 

harvested. We agree that birds should 

not be wasted and we use recovered 

carcasses for additional scientific 

studies and educational purposes. After 

samples are taken, the hide may be 

made available for customary and 

traditional uses such as replicating a 

historical garment made of eiders. 

Comment: Two commenters 

questioned the proposed regulation 

requiring subsistence hunters to present 

their birds upon request of a Service law 

enforcement officer. One commenter 

questioned whether this requirement 

would provide additional information 

on the harvest and how this would be 

applied outside of Barrow. Another 

commenter explained their opposition 

to the regulation: ‘‘and again I see by 

force proposed...that’s what I heard 

tonight with number 4, must present to 

the officer for species identification. To 

me that’s called a fool; a fool that wants 

to go to jail. I certainly don’t want to go 

to jail for any reason, especially for just 

killing a bird.’’ 

Service Response: An important 

component of the conservation strategy 

being developed is to enable publishing 

of the annual regulations to open the 

subsistence harvest. A key component 

on the North Slope will be our ability 

to monitor and verify the ongoing 

harvest. This requirement will enable 

our officers to effectively verify harvest 

composition when contacting hunters in 

the field. 

Comment: One commenter explained 

that both the requirement to present 

birds taken to law enforcement officers 

and the prohibition on simple 

possession of a Steller’s eider ‘‘are 

redundant with existing authorities. The 

provisions seem unnecessary to make 

possession of illegal birds a violation, 

and they would not alter requirements 

for search and seizure to compel 

presentation of birds.’’ 

Service Response: Both are already 

legal requirements, but not explicitly 

spelled out in the migratory bird 

subsistence regulations. Publication in 

the Federal Register reinforces and 

clarifies these requirements for the 

North Slope subsistence user. 

Comment: Six commenters expressed 

concern about the emergency closure 

provision regarding Steller’s eiders 

stating that there is no definition as to 

what is needed to trigger the closure. 

One commenter clarified: ‘‘we are 

concerned that the provisions in 

proposed 50 CFR 92.32 are not 

sufficiently defined. In particular, FWS 

should clarify what level of mortality or 

other activity would constitute an 

imminent threat to the conservation of 

threatened Steller’s eiders.... FWS 

should specify what action it will take 

to abate that threat once such a finding 

is made.’’ Another commenter 

specifically wanted to know ‘‘If our 

people in Point Lay take spectacled 

(Steller’s) eiders, you know, by accident 

. . . is that going to affect Wainwright or 

Barrow?’’ Another commenter stated 

that ‘‘the Service should consider a 

realistic threshold for take including 

non-hunting mortalities... by which to 

measure the efficacy of subsistence 

hunting restrictions to protect the 

Steller’s eider.’’ 

Service Response: We continue to 

work diligently with our North Slope 

partners to avoid any emergency harvest 

closure. If Stellar’s eider mortalities 

occur, we will evaluate each mortality 

event by criteria such as: cause, 

quantity, sex, age, location, and date. If 

we find that an imminent threat is 

posed to the eiders, we will take action 

necessary to prevent further take of 

Steller’s eiders, which could include 

temporary or long-term closures. We 

will consult the Co-management 

Council when an emergency harvest 

closure is being considered. Any 

emergency closure deemed necessary 

will be designed to minimize its impact 

on subsistence harvest. 

Comment: One commenter questioned 

why 50 CFR 92.32, which authorizes 

emergency closures to protect Steller’s 

eiders, is a necessary addition to the 

already published regulation at 50 CFR 

92.21. 

Service Response: We are clarifying 

that the Alaska Regional Director has 

the authority to initiate an emergency 

closure to minimize take of threatened 

eiders. 

Comment: Five commenters stated 

concern over the negative impacts any 

emergency closure would have over 

customs and traditions affecting Barrow 

and other coastal communities. One 

commenter explained it this way: 

‘‘successful whaling captains have a 

responsibility...to feed the community. 

And the first serving that they do is 

going to be soup, and that soup is going 

to be ducks, king and common eider, 

geese, caribou, and other things, but the 

majority of it is going to be migratory 

birds. We have a harvest quota of 22 or 

more animals or bowhead whales per 

year, and we could have up to that 

many (Nalukataq—summer blanket toss 

festivals) ..., but we have a lot of people 

to feed. And if these proposed 

regulations are going to impact our 

whaling, you know, to be able to serve 

the soup, you’re going to have a big 

problem on your hand(s).’’ Another 

commenter explained that ‘‘if the 

Service determines that the hunt should 

be curtailed to protect the Steller’s 

eider, it should leave room for the 

Inupiat to continue their practice of 

nalukataq.’’ Two other commenters 

explained about the importance of duck 

hunting while spring whaling, because 


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the birds are used directly to feed the 

whalers while out on the ice for long 

periods. 

Service Response: We will make every 

practical attempt to avoid closing the 

subsistence harvest of birds. These 

regulations are designed to provide 

opportunity for spring and summer 

subsistence harvest of migratory birds 

while protecting listed eiders. We agree 

that an emergency closure would impact 

that opportunity locally. Any emergency 

closure deemed necessary will be 

designed to minimize that impact. 

Comments: One commenter stated 

that ‘‘of all the new regulations to 

protect the Steller’s eider, the closure of 

all migratory bird hunting along some 

roads near Barrow is most likely to 

reduce inadvertent and vandalistic 

shooting of eiders on their primary 

nesting areas.’’ 

One commenter said that the Barrow 

road closure was not clear enough, 

clarifying that ‘‘not closing the ocean 

especially for springtime hunting is 

important and leaving areas in the 

lagoon, out at duck camp, out at Piquniq 

open for shooting is also important.’’ A 

second commenter expressed a similar 

sentiment by recommending that the 

closure be truncated to allow hunting 

within c mile of Elson Lagoon and the 

Chukchi Sea Coast. 

One commenter questioned whether 

the Service had conducted ground 

truthing to justify the Barrow road 

closure plus 1-mile buffer zone. 

One commenter was against closing 

Gaswell Road to migratory bird hunting 

explaining: ‘‘I’ve been hunting on that 

Gaswell Road . . . and it’s up to 18 miles. 

. . . I walk bringing ducks home all the 

way from the shooting station, carrying 

. . . my shotgun, you know, just to feed 

my family....’’ A second commenter 

further explained: ‘‘If there is an area 

closure for subsistence hunting as 

proposed in Barrow, it should be only 

along Cakeeater, Gaswell, and 

Freshwater Lake Roads and only during 

the nesting and breeding season. 

Stevenson Road, the Beach Road should 

not be included in the road closure. 

Spring hunting of king and common 

eiders on the spring ice just west of 

Stevenson Road in Barrow and late 

summer and fall hunting of these same 

birds at Piquniq are essential traditional, 

cultural, and subsistence activities. 

Goose hunting in the spring should 

never be closed. Accidental shooting of 

Steller’s eiders during goose hunting 

does not occur because the Steller’s 

eiders are not present at that time when 

the geese are.’’ 

Service Response: This response 

addresses the previous four comments 

regarding the Barrow road closure: We 

agree that closing the Barrow roads to 

all subsistence bird hunting might not 

accomplish the desired effect of 

protecting nesting Steller’s eiders, and 

we have eliminated the closure from 

this final rule. The 30–day harvest 

closure to protect nesting birds is 

already in place in these regulations and 

will be enforced. We believe this 

existing regulatory provision, when 

carried out, will protect nesting eiders. 

We will work with partners to inform 

hunters of this provision. 

Comments: Fifteen commenters 

expressed concern about expanding the 

Steller’s eider specific regulations to 

Point Lay, Point Hope, and Wainwright, 

simply because eiders migrate past these 

villages. Many of the commenters 

opined that there needs to be more 

evidence to justify the expanded 

restrictions. One commenter brought up 

that recent harvest surveys indicate take 

only for Barrow through Wainwright, 

and do not warrant harvest restrictions 

west of Wainwright. Another 

commenter suggested that the 

regulations should apply when Steller’s 

eiders are actually present. 

Service Response: We have limited 

the Steller’s eider specific regulations to 

the villages in the geographic area used 

by migrating and possibly nesting 

Alaska-breeding Steller’s eiders (the 

listed population). Although we 

recognize the species is now thought to 

nest primarily in the vicinity of Barrow, 

the four coastal villages are included 

because the listed population migrates 

past all those villages twice during the 

subsistence harvest. We would like to 

know more about the actual risk to 

listed eiders by shooting in the villages 

of Point Lay, Point Hope, and 

Wainwright and would welcome 

collection of village-specific subsistence 

harvest information to assist in setting 

future regulations. 

Comments: Four commenters wanted 

to know why other communities and 

regions where Steller’s eider are found 

were not included in these new 

regulations. One commenter elaborated: 

‘‘If you guys are so concerned about the 

survival of the Steller’s eiders . . . , you 

must also strictly regulate all other 

activities that occur in the birds’ range 

and not just North Slope subsistence 

hunters.’’ Another commenter stated 

that Steller’s eiders migrate along the 

entire coast of western Alaska and 

regulating the North Slope villages, but 

not the western coast villages appears to 

be arbitrary. 

Service Response: We do consider and 

review the regulations statewide 

regarding species protected under the 

Endangered Species Act, and all other 

Federally authorized or funded 

activities. In the case of the Steller’s 

eider, the new regulations apply during 

the subsistence harvest, when the listed 

population of Steller’s eiders are 

migrating and breeding on the North 

Slope. 

Comment: Four commenters did not 

like the definition of the North Coastal 

Zone and opposed having it range up to 

5 miles inland. One commenter 

suggested changing it to only @ mile 

inland. 

Service Response: We defined the 

North Coastal Zone as the area of likely 

Steller’s eider occupancy during the 

nesting season. We do know Steller’s 

eiders are documented by both the 

aerial and ground surveys to occur at 

least 5 miles inland in the Barrow area. 

They may very well occur farther inland 

than that, but we believe that a 5-mile 

limit is a reasonable compromise of 

regulation coverage and likely location 

of occurrence for the bird. 

Commenst: Nine commenters 

opposed instituting subsistence 

migratory bird shooting hours. One 

commenter questioned the logic of 

daylight regulated shooting hours when 

there is continuous 24–hour daylight on 

the North Slope for much of the 

summer. Another commenter went 

further on this thought by stating that 

‘‘the latitude of the North Coast Zone... 

produces light conditions that are 

seldom limiting’’ due primarily to 

protracted Civil Twilight. The 

commenter further questioned whether 

this was just another attempt to apply 

sport hunting regulations to the 

subsistence hunt. Another commenter 

explained their opposition: ‘‘The brant, 

the time I go hunting, is very early in 

the morning; it’ll be dark, and when I 

leave, I’ll still be hunting during the 

dark. It will be sun time, but then that’s 

not when they’re flying. I’ll wait until it 

gets dark again, and then that’s when 

they’ll fly again. So when you say you 

can’t hunt during the dark, after the sun 

goes down, that is very bad. I think you 

guys need to change that.’’ 

Service Response: We understand the 

complications of dealing with the 

extended twilight period on the North 

Slope. In response, we are developing 

individual sunrise/sunset tables for 

Point Hope, Point Lay, Wainwright, and 

Barrow to be published in the public 

regulations booklets. These shooting 

hours will start on the date in the 

summer when the National Weather 

Service considers periods of ‘‘true dark’’ 

to exist, and continue until August 31. 

Comment: One commenter asked if 

the Service is considering any parallel 

regulatory changes to 50 CFR 20 to 

protect Steller’s eiders during the fall 

season starting September 1, 2009. The 


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commenter adds ‘‘If the Service has 

concerns about the fall season and is 

considering regulatory changes that 

transcend the two hunting seasons, we 

would like to start this discussion so 

that Steller’s eider issues can be 

addressed as the Pacific Flyway early 

season regulations process begins in 

early March.’’ 

Service Response: Most of the new 

North Slope regulations in 50 CFR 92.31 

already parallel those regulating the fall 

hunting season starting September 1, 

2009, such as the provisions for 

shooting hours, possession restriction, 

and mandatory bag checks. If the Alaska 

Regional Director institutes an 

emergency closure under 50 CFR 92.32 

to go into effect during the 2009 

subsistence season, then the Service 

Director may elect to continue this 

closure into the fall season under his 

authority established in 50 CFR 20.26. 

This action, if deemed necessary, will 

be done in consultation with the Comanagement Council and the Pacific 

Flyway. 

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 

Unfunded Mandates Reform Act is not 

required. 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 nonprofits 

and local governments) to administer 

the regional programs. The Alaska 

Department of Fish and Game will also 

incur expenses for travel to Comanagement 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 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. 

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 final rule on 

the State of Alaska in the Executive 

Order 12866 and Unfunded Mandates 

Reform Act sections above. We worked 

with the State of Alaska to develop 


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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 

Because eligibility to hunt under 

these regulations is not limited to tribal 

members, but rather extends to all 

indigenous inhabitants of the 

subsistence harvest areas, we are not 

required to engage in formal 

consultation with tribes. However, 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 

conducted statewide meetings with 

tribes and tribal and nonprofit 

organizations to evaluate 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 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). 

Meetings with the Alaska Department of 

Fish and Game and the Native Migratory 

Bird Working Group were held 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 FR16405) 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 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 

each component serving as equals. 

Paperwork Reduction Act 

This rule has been examined under 

the Paperwork Reduction Act of 1995. 

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 on January 31, 

2010. 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. 

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. . . .’’ An intra-agency 

consultation with the Fairbanks Fish 

and Wildlife Field Office was conducted 

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 April 6, 2009 

that concluded the final rule and 

conservation measures, as proposed, are 

not likely to jeopardize the continued 

existence of spectacled or Steller’s 

eiders or result in the destruction or 

adverse modification of designated 

critical habitat. 

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 2009 Spring/ 

Summer Harvest,’’ issued November 21, 

2008. 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 Executive Order 

12866; it would allow only for 

traditional subsistence harvest and 

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 

■ 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 

■ 2. In subpart D, add § 92.31 to read 

as follows: 

§ 92.31 Region-specific regulations. 

The 2009 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. 


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(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°30’W and south of 

the latitude line 70°45’N to the west 

bank of the Ikpikpuk River, and 

everything south of the latitude line 

69°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°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°30’W and north of the latitude line 

70°45’N to west bank of the Ikpikpuk 

River, and everything north of the 

latitude line 69°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. Individuals must report 

each yellow-billed loon inadvertently 

entangled while subsistence gill net 

fishing to the North Slope Borough 

Department of Wildlife Management by 

the end of the season. 

(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) Migratory bird hunting is permitted 

from one-half hour before sunrise until 

sunset, during August. 

(ii) No person shall 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. 

(iii) 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. 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23349 

(k) Cook Inlet (Harvest area: portions 

of Unit 16[B] as specified below) 

(Eligible communities: Tyonek only). 

(1) That portion of Unit 16(B) south of 

theSeason: April 2–May 31 Skwentna 

River and west of the Yentna RiverThat 

portion of Unit 16(B), and August 1–31 

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 Part 

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 Point Riou], 

and coastal lands and islands bordering 

the Gulf of Alaska from Point Manby 

southeast to Dry Bay). 

(i) Season: glaucous-winged gull, 

aleutian and arctic tern egg gathering: 

May 15–June 30. 

(ii) Closure: July 1–August 31. 

■ 3. In subpart D, add § 92.32 to read 

as follows: 

§ 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, the U.S. Fish and Wildlife 

Service Alaska Regional Director, in 

consultation with the Co-management 

Council, will immediately under § 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 State-wide long-term 

closures of all subsistence migratory 

bird hunting. Such 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: May 12, 2009. 

Will Shafroth, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E9–11663 Filed 5–18–09; 8:45 am] 

BILLING CODE 4310-55-S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 070717352–8886–02] 

RIN 0648–AV65 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Pelagic Longline Take 

Reduction Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) announces its 

determination that the pelagic longline 

fishery has a high level of mortality and 

serious injury across a number of 

marine mammal stocks, and issues the 

final Atlantic Pelagic Longline Take 

Reduction Plan (PLTRP) and 

implementing regulations to reduce 

serious injuries and mortalities of pilot 

whales and Risso’s dolphins in the 

Atlantic pelagic longline fishery. The 

PLTRP is based on consensus 

recommendations submitted by the 

Atlantic Pelagic Longline Take 

Reduction Team (PLTRT). The PLTRP is 

intended to meet the statutory mandates 

and requirements of the Marine 

Mammal Protection Act (MMPA) 

through both regulatory and nonregulatory measures, including a special 

research area, gear modifications, 

outreach material, observer coverage, 

and captains’ communications. 

DATES: This final rule is effective June 

18, 2009. 

ADDRESSES: Copies of the Final 

Environmental Assessment (EA), the 

Regulatory Impact Review (RIR), and the 

Final Regulatory Flexibility Act (FRFA) 

analysis are available from Protected 

Resources Division, NMFS, Southeast 

Region, 263 13th Avenue South, St. 

Petersburg, FL 33701–5505. The PLTRP 

Compliance guide and Pelagic Longline 

Take Reduction Team (PLTRT) meeting 

summaries may be obtained by writing 

to Erin Fougeres, NMFS, Southeast 

Region, 263 13th Avenue South, St. 

Petersburg, FL 33701–5505. 

This final rule, its references, and 

background documents for the PLTRP 

can be downloaded from the Take 

Reduction web site at http:// 

www.nmfs.noaa.gov/pr/interactions/trt/ 

pl-trt.htm and the NMFS Southeast 

Regional Office website at http:// 

sero.nmfs.noaa.gov/pr/pr.htm. 

FOR FURTHER INFORMATION CONTACT: Erin 

Fougeres or Jennifer Lee, NMFS, 

Southeast Region, 727–824–5312, or 

Kristy Long, NMFS, Office of Protected 

Resources, 301–713–2322. Individuals 

who use telecommunications devices 

for the deaf (TDD) may call the Federal 

Information Relay Service at 1–800– 

877–8339 between 8 a.m. and 4 p.m. 

eastern time, Monday through Friday, 

excluding Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule, which serves as the 

final PLTRP, implements regulatory and 

non-regulatory measures recommended 

by the PLTRT to satisfy the 

requirements of the MMPA. Details 

concerning the justification for and 

development of this PLTRP were 

provided in the preamble to the 

proposed rule (73 FR 35623, June 24, 

2008) and are not repeated here. The 

proposed rule provided a 90–day public 

comment period to provide feedback to 

NMFS via electronic submission, 

postmarked mail, or facsimile. In 

addition, one PLTRT meeting was 

conducted during the 90 day public 

comment period. Based on comments 

received (see ‘‘Comments and 

Responses’’ section), NMFS made minor 

changes to the proposed rule. Changes 

between the proposed and final rule are 

noted in the ‘‘Changes from the 

Proposed Rule’’ section. 

Distribution, Stock Structure, and 

Abundance of Pilot Whales 

In the mid-Atlantic bight (MAB), (i.e., 

the area bounded by straight lines 

connecting the mid-Atlantic states’ 

internal waters and extending to 71 W. 

long. between 35° N. lat. and 43° N. lat), 

the Atlantic pelagic longline fishery 

interacts with two species of pilot 

whales. Long-finned pilot whales are 

distributed worldwide in cold temperate 

waters in both the Northern (North 

Atlantic) and Southern Hemispheres. In 

the North Atlantic, the species is 

broadly distributed and thought to occur 

from 40° to 75° N. lat. in the eastern 

North Atlantic and from 35° to 65° N. 

lat. in the western North Atlantic 

(Abend and Smith, 1999). Short-finned 

pilot whales are also distributed 

worldwide in warm temperate and 

tropical waters. In U.S. Atlantic waters, 


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