[Federal Register Volume 67, Number 67 (Monday, April 8, 2002)]
[Proposed Rules]
[Pages 16707-16714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8384]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 92

RIN 1018-AH88


Procedures for Establishing Spring/Summer Subsistence Harvest 
Regulations for Migratory Birds in Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) proposes 
regulations establishing procedures for implementing a spring/summer 
migratory bird subsistence harvest in Alaska. The 1916 Convention for 
the Protection of Migratory Birds Between the United States and Great 
Britain (for Canada) established a closed season for the taking of 
migratory birds between March 10 and September 1. Residents of northern 
Alaska and Canada traditionally harvested migratory birds for 
nutritional purposes during the spring and summer months. The 
governments of Canada, Mexico, and the United States recently amended 
the 1916 Convention and the subsequent 1936 Mexico Convention for the 
Protection of Migratory Birds and Game Mammals. The amended treaties 
provide for the legal subsistence harvest of migratory birds and their 
eggs in Alaska and Canada during the closed season. The proposed 
regulations would establish procedures for implementing that change and 
for incorporating subsistence management into the continental migratory 
bird management program.

DATES: We will accept written comments until May 24, 2002.

ADDRESSES: Address comments to Regional Director, Alaska Region, U.S. 
Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska, 
99503, Attention: Bob Stevens, Stop 201. Electronic comments may be 
addressed to [email protected].

FOR FURTHER INFORMATION CONTACT: Bob Stevens, 907/786-3499 or Bill 
Ostrand, 907/786-3849, U.S. Fish and Wildlife Service, 1011 E. Tudor 
Road, Stop 201, Anchorage, Alaska 99503.

SUPPLEMENTARY INFORMATION:

What Events Led to This Action?

    By the beginning of the twentieth century, this nation began to 
witness the depletion of many species of migratory birds. Commercial or 
``market'' hunting took a significant toll as restaurant owners paid 
top dollar for wild birds and the millinery industry demanded large 
numbers of feathers for hats. Individual States did not establish 
regulations or other management programs to adequately protect the 
migratory bird resources.
    In 1916, the United States and Great Britain (on behalf of Canada) 
signed the Convention for the Protection of Migratory Birds in Canada 
and the United States. The treaty prohibited market hunting and 
specified a closed season on taking migratory game birds between March 
10 and September 1 of each year. In 1936, the United States and Mexico 
signed the Convention for the Protection of Migratory Birds and Game 
Mammals. The Mexico treaty prohibited the taking of wild ducks between 
March 10 and September 1. Neither treaty, however, took into account 
and allowed for the traditional harvest of migratory birds by northern 
indigenous people during the spring and summer months. This harvest, 
which had occurred for centuries, was necessary to the subsistence 
lifestyle of the northern people and thus continued despite the closed 
season.
    The Canada treaty and the Mexico treaty, as well as the other 
migratory bird treaties with Japan (1972) and Russia (1976), have been 
implemented in the United States through the Migratory Bird Treaty Act 
(MBTA). The courts have construed the MBTA as prohibiting the Federal 
government from permitting any harvest of migratory birds that is 
inconsistent with the terms of any of the migratory bird treaties. The 
restrictive terms of the Canada and Mexico treaties thus prevented the 
Federal government from permitting the traditional subsistence harvest 
of migratory birds during spring and summer in Alaska. To remedy this 
situation the United States therefore negotiated Protocols amending 
both the Canada and Mexico treaties to allow for spring/summer 
subsistence harvest of migratory birds by indigenous inhabitants of 
identified subsistence zones in Alaska. The U. S. Senate approved the 
amendments to both treaties in 1997.

What Will the Amended Treaty Accomplish?

    The major goals of the amended treaty with Canada are to allow for 
traditional subsistence harvest and to improve conservation of 
migratory birds by allowing effective regulation of this harvest. The 
amended treaty with Canada allows permanent residents of villages 
within subsistence harvest areas, regardless of race, to continue 
harvesting migratory birds in the spring and summer as they have done 
for thousands of years. It states that lands north and west of the 
Alaska Range and within the Alaska Peninsula, Kodiak Archipelago, and 
the Aleutian Islands generally qualify as subsistence harvest areas. 
Treaty language provides for further refinement of this determination 
by management bodies.
    The amendments, however, are not intended to cause significant 
increases in the take of migratory birds relative to their continental 
population sizes. Therefore, the Canada treaty places limitations on 
who is eligible to harvest and where they can harvest migratory birds. 
Anchorage, the Matanuska-Susitna and Fairbanks North Star

[[Page 16708]]

Boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded 
area, and Southeast Alaska generally do not qualify as subsistence 
harvest areas. Limited exceptions may be made so that some individual 
communities within these excluded areas could qualify for designation 
as subsistence harvest areas for specific purposes. For example, future 
regulations could allow some villages in Southeast Alaska to collect 
gull eggs.
    The amended treaty with Canada calls for creation of management 
bodies to ensure an effective and meaningful role for Alaska's 
indigenous inhabitants in the conservation of migratory birds. 
Management bodies are to include Alaska Native, Federal, and State of 
Alaska representatives as equals. They will develop recommendations 
for, among other things: seasons and bag limits, methods and means of 
take, law enforcement policies, population and harvest monitoring, 
education programs, research and use of traditional knowledge, and 
habitat protection. The management bodies will involve village councils 
to the maximum extent possible in all aspects of management.
    Relevant recommendations developed by the management bodies will be 
submitted to the Service and to the Flyway Councils. Restrictions in 
harvest levels for the purpose of conservation will be shared equitably 
by users in Alaska and users in other States, taking into account 
nutritional needs of subsistence users in Alaska. The treaty amendments 
are not intended to create a preference in favor of any group of users 
in the United States or to modify any preference that may exist.

What Has the Service Accomplished Since Ratification of the Amended 
Treaty?

    In 1998, we began a public involvement process to determine how to 
structure management bodies in order to provide the most effective and 
efficient involvement for subsistence users. We began by publishing a 
notice in the Federal Register stating that we intended to establish 
management bodies to implement the spring and summer subsistence 
harvest (63 FR 49707, Sept. 17, 1998). Public forums attended by the 
Service, 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. Staff 
members from Alaska national wildlife refuges conducted public meetings 
in the villages within their refuge areas and discussed the amended 
treaties at those meetings.
    On July 1, 1999, we published in the Federal Register (64 FR 35674) 
a notice of availability of an options document, entitled ``Forming 
management bodies to implement legal spring and summer migratory bird 
subsistence hunting in Alaska.'' This document describes four possible 
models for establishing management bodies and was released to the 
public for review and comment. We mailed copies of the document to 
approximately 1,350 individuals and organizations, including all tribal 
councils and municipal governments in Alaska, Native regional 
corporations and their associated nonprofit organizations, the Alaska 
Department of Fish and Game, Federal land management agencies, 
representatives of the four Flyway Councils, conservation and other 
affected organizations, and interested businesses and individuals. We 
distributed an additional 600 copies at public meetings held in Alaska 
to discuss the four models. We also made the document available on the 
Fish and Wildlife Service web page.
    During the public comment period, we received 60 written comments 
addressing the formation of management bodies. Of those 60 comments, 26 
were from tribal governments, 20 from individuals, 10 from non-
government organizations, 2 from the Federal Government, 1 from the 
State of Alaska, and 1 from the Native Migratory Bird Working Group. In 
addition to the 60 written comments, 9 of the 10 Federal Subsistence 
Regional Advisory Councils passed resolutions regarding the four models 
presented.
    On March 28, 2000, we published in the Federal Register (65 FR 
16405) the Notice of Decision, ``Establishment of Management Bodies in 
Alaska To Develop Recommendations Related to the Spring/Summer 
Subsistence Harvest of Migratory Birds.'' This notice described the 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 models. The 
decision established one statewide management body consisting of one 
Federal member, one State member, and 7-12 Alaska Native members, with 
each component serving as equals. Decisions and recommendations of the 
Council will be by consensus wherever possible; however, if a vote 
becomes necessary, each component, Federal, State, and Native, will 
have one vote. This body will set a framework for annual regulations 
for spring and summer subsistence harvest of migratory birds. Seven 
regional bodies, consisting of local subsistence users working within 
the framework, will forward their recommendations to the statewide 
management body. That body will act on those recommendations and 
forward its recommendations to the Service and to the Flyway Councils.
    In April 2000, we met with the Alaska Department of Fish and Game 
and the Native Migratory Bird Working Group to discuss bylaws for the 
statewide management body. At that meeting, we decided to name the 
statewide management body the ``Alaska Migratory Bird Co-management 
Council.'' On October 30, 2000, the Co-management Council convened for 
the first time and began preparation for the development of 
recommendations for regulations to be implemented in spring of 2003. 
The proposed regulations in this document will: (1) Provide the 
authority for the Co-management Council to operate; (2) establish the 
procedures by which the Co-management Council will conduct its 
business; (3) provide authority to the Co-management Council to make 
recommendations regarding applicability and scope of subsistence 
harvest and who is eligible to participate in subsistence harvest; (4) 
give the Co-management Council the authority to setup a process by 
which migratory birds can be used and possessed under subsistence 
harvest regulations; (5) define Regional management areas; (6) describe 
the relationship the rule has to the process for developing national 
hunting regulations for migratory birds; and (7) allow for future 
development of regulations pertaining to methods and means of harvest 
traditionally used for subsistence purposes. At future meetings, the 
Co-management Council will continue to develop recommendations on 
harvest and methods and means of harvest as necessary to protect the 
migratory bird resource.

[[Page 16709]]

Public Comments Solicited

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. If you wish to comment, you may submit your comments by any 
one of several methods. You may mail comments to the address indicated 
under the caption ADDRESSES. Please submit Internet comments as an 
ASCII file avoiding the use of special characters and any form of 
encryption. Please also include ``Attn: 1018-AH88 and your name and 
return address'' in your Internet message. If you do not receive a 
confirmation from the system that we have received your Internet 
message, contact us directly at the address indicated under the caption 
ADDRESSES. Finally, you may hand-deliver comments to the address 
indicated under the caption ADDRESSES. Our practice is to make 
comments, including names and home addresses of respondents, available 
for public review during regular business hours. Individual respondents 
may request that we withhold their home address from the rulemaking 
record, which we will honor to the extent allowable by law. In some 
circumstances, we would also withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    You may inspect comments received on the proposed regulations 
during normal business hours at the Service's office in Anchorage, 
Alaska. We will consider, but possibly may not respond in detail to, 
each comment. We will summarize all comments received during the 
comment period and respond to them after the closing date in any final 
rules.
    Because we conducted an extensive public involvement process prior 
to publishing the March 28, 2000, notice (65 FR 16405), we are 
soliciting comments on this proposed rule for only 30 days. We want to 
proceed with the development of seasonal regulations opening a legal 
subsistence harvest as soon as possible.

Statutory Authority

    We derive our authority to issue these proposed regulations from 
the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703 et seq.), which 
implements the 1916 Convention, as amended, between the United States 
and Great Britain (for Canada) for the protection of migratory birds.
    Specifically, these regulations are issued pursuant to 16 U.S.C. 
Sec. 712(1), which authorizes the Secretary of the Interior 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.''

Regulatory Planning and Review

    E.O. 12866 requires each agency to write regulations that are easy 
to understand. We invite your comments on how to make this proposed 
rule easier to understand, including answers to questions such as the 
following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    (5) Is the description of the rule in the ``Supplementary 
Information'' section of the preamble helpful in understanding the 
rule?
    (6) What else could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. 
You may also e-mail the comments to this address: [email protected]. 
The Office of Management and Budget (OMB) has determined that this 
document is not a significant rule subject to OMB review under E.O. 
12866.
    a. This proposed rule will not have an annual economic effect of 
$100 million or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. A cost-benefit and 
economic analysis is not required. This proposed rule is 
administrative, technical, and procedural in nature, establishing the 
procedures for implementing spring and summer harvest of migratory 
birds as provided for in the amended Convention with Canada. The 
proposed rule does not provide for new or additional hunting 
opportunities and therefore will have minimal economic or environmental 
impact.
    This proposed rule benefits those participants who engage in the 
subsistence harvest of migratory birds in Alaska in two identifiable 
ways: first, participants receive the consumptive value of the birds 
harvested and second, participants get the cultural benefit associated 
with the maintenance of a subsistence economy and way of life. The Fish 
and Wildlife Service can estimate the consumptive value for birds 
harvested under this rule but does not have a dollar value for the 
cultural benefit of maintaining a subsistence economy and way of life.
    The economic value derived from the consumption of the harvested 
migratory birds has been estimated using the results of a paper by 
Robert J. Wolfe titled ``Subsistence Food Harvests in Rural Alaska, and 
Food Safety Issues,'' August 13, 1996. Wolfe estimated the per capita 
consumption of birds harvested for subsistence to be approximately 24.4 
pounds. When multiplied by approximately 70,000 people depending on 
subsistence harvests, this amounts to over 1.7 million pounds of birds. 
The economic value for the equivalent nutrition, if purchased at local 
stores, would be nearly $6 million. This is the estimated economic 
benefit of the consumptive part of this rulemaking for participants in 
subsistence hunting.
    The cultural benefits of maintaining a subsistence economy and way 
of life can be of considerable value to the participants. This makes 
the $6 million estimate for the consumptive value of this rule an 
underestimate of the total benefit. However, we do not believe the 
total benefit would make this rule significant under the Executive 
Order.
    b. This proposed rule will not create inconsistencies with other 
agencies' actions. We are the Federal agency responsible for management 
of migratory birds, coordinating with the Alaska Department of Fish and 
Game on management programs within the State of Alaska. The State of 
Alaska is a member of the Alaska Migratory Bird Co-management Council.
    c. This proposed rule will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. The proposed rule does not affect entitlement 
programs.
    d. This proposed rule will not raise novel legal or policy issues. 
The subsistence harvest regulations will go

[[Page 16710]]

through the same National regulatory process as the existing migratory 
bird hunting regulations in 50 CFR part 20.

Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities as defined under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). An initial regulatory flexibility analysis is not 
required. Accordingly, a Small Entity Compliance Guide is not required. 
The proposed 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 proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act, as discussed in the 
Regulatory Planning and Review section above.
    a. This proposed rule does not have an annual effect on the economy 
of $100 million or more. It will legalize and regulate a traditional 
subsistence activity. It will not result in a substantial increase in 
subsistence harvest or a significant change in harvesting patterns.
    The commodities being regulated under this rule are migratory 
birds. This rulemaking 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. The Fish and Wildlife Service 
has no reason to believe that this rule will lead to a disproportionate 
distribution of benefits.
    b. This proposed rule will not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. This proposed rule does not 
deal with traded commodities and, therefore, does not have an impact on 
prices for consumers.
    c. This proposed rule does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This proposed 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 certify pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this proposed rule will not 
impose a cost of $100 million or more in any given year on local, 
State, or tribal governments or private entities. A statement 
containing the information required by this Act is therefore not 
necessary.
    Participation on regional management bodies and the Co-management 
Council will require travel expenses for some Alaska Native 
organizations and local governments. In addition they will assume some 
expenses related to coordinating involvement of village councils in the 
regulatory process. Total coordination and travel expenses for all 
Alaska Native organizations are estimated to be less than $300,000 per 
year. In the Notice of Decision, 65 FR 16405, March 28, 2000, we 
identified 12 partner organizations to be responsible for administering 
the regional programs. When possible, we will make annual grant 
agreements available to the partner organizations to help offset their 
expenses. The Alaska Department of Fish and Game will incur expenses 
for travel to the Co-management Council meetings and to meetings of the 
regional management bodies. In addition, the State will be required to 
provide technical staff support to each of the regional management 
bodies and to the Co-management Council. Expenses for the State's 
involvement may exceed $100,000 per year, but should not exceed 
$150,000 per year.

Paperwork Reduction Act

    This proposed rule has been examined under the Paperwork Reduction 
Act of 1995 and has been found to contain no information collection 
requirements. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

Federalism Effects

    As discussed in the Regulatory Planning and Review and Unfunded 
Mandates Reform Act sections above, this proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment under Executive Order 13132. We are working with 
the State of Alaska on development of these regulations.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of section 3 of the 
Order.

Takings Implication Assessment

    This proposed rule is not specific to particular land ownership, 
but applies to the harvesting of migratory bird resources throughout 
Alaska. Therefore, in accordance with Executive Order 12630, this 
proposed rule does not have significant takings implications.

Government-to-Government Relations With Native American Tribal 
Governments

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), and Executive Order 13175, 65 FR 67249 
(November 6, 2000), concerning consultation and coordination with 
Indian Tribal Governments, we have consulted with Alaska tribes, 
evaluated the proposed rule for possible effects on them and have 
determined that there are no significant effects. This proposed rule 
establishes procedures by which the individual tribes in Alaska will be 
able to become significantly involved in the annual regulatory process 
for spring and summer subsistence harvesting of migratory birds and 
their eggs. The proposed rule will legalize the subsistence harvest for 
tribal members, as well as for other indigenous inhabitants.

Endangered Species Act Consideration

    Prior to issuance of annual spring and summer subsistence 
regulations, we will consider provisions of the Endangered Species Act 
of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to 
ensure that harvesting is not likely to jeopardize the continued 
existence of any species designated as endangered or threatened or 
modify or destroy their critical habitats, and that it is consistent 
with conservation programs for those species. Consultations under 
Section 7 of this Act may cause us to change recommendations for annual 
regulations.

National Environmental Policy Act Consideration

    We determined that establishing the procedures for future 
development of subsistence harvest regulations does not require an 
environmental assessment because the impacts to the environment

[[Page 16711]]

are negligible. We therefore filed a categorical exclusion dated April 
30, 1999. Copies of the categorical exclusion are available at the 
address shown in the section of this document entitled, ADDRESSES. An 
environmental assessment will be prepared for the annual subsistence 
take regulations due to be published later as a proposed rule in the 
fall of 2001.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Because this rule only 
allows for traditional subsistence harvest and improves conservation of 
migratory birds by allowing effective regulation of this harvest, it is 
not a significant regulatory action under Executive Order 12866 and is 
not expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is a not significant energy action and no 
Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 92

    Hunting, Reporting and recordkeeping requirements, Subsistence, 
Treaties, Wildlife.

    For the reasons identified in the preamble, the U.S. Fish and 
Wildlife Service proposes to amend Subchapter G of Chapter 1, Title 50 
of the Code of Federal Regulations, by adding part 92 to read as 
follows:

PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA

Subpart A--General Provisions

Sec.
92.1   Purpose of regulations.
92.2   Authority.
92.3   Applicability and scope.
92.4   Definitions.
92.5   Who is eligible to participate?
92.6   Use and possession of migratory birds.
92.7-92.9   [Reserved]
Subpart B--Program Structure
92.10   Alaska Migratory Bird Co-management Council.
92.11  Regional management areas.
92.12  Relationship to the process for developing national hunting 
regulations for migratory game birds.
92.13-92.19   [Reserved]
Subpart C--Methods and Means
92.20-92.29   [Reserved]
Subpart D--Annual Regulations Governing Subsistence Harvest
92.30  General overview of regulations.
92.31-92.39   [Reserved]

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

Subpart A--General Provisions


Sec. 92.1  Purpose of regulations.

    The regulations in this part implement the Alaska migratory bird 
subsistence program as provided for in Article II(4)(b) of the 1916 
Convention for the Protection of Migratory Birds in Canada and the 
United States (the ``Canada Treaty''), as amended.


Sec. 92.2  Authority.

    The Secretary of the Interior issues these regulations under the 
authority granted to the Secretary by the Migratory Bird Treaty Act 
(MBTA), 16 U.S.C. 703-712.


Sec. 92.3  Applicability and scope.

    (a) In general. The regulations in this part apply to all eligible 
persons harvesting migratory birds and their eggs for subsistence 
purposes in Alaska between the dates of March 10 and September 1. The 
provisions in this part do not replace or alter the regulations set 
forth in part 20 of this chapter, which relate to the hunting of 
migratory game birds and crows during the regular open season between 
September 1 through March 10. The provisions set forth in this part 
implement the exception to the closed season, which authorizes the 
taking of migratory birds in Alaska for subsistence purposes between 
March 10 and September 1.
    (b) Land ownership. This part does not alter the legal authorities 
of Federal and State land managing agencies or the legal rights of 
private land owners to close their respective lands to the taking of 
migratory birds.
    (c) Federal public lands. The provisions of this part are in 
addition to, and do not supersede, any other provision of law or 
regulation pertaining to national wildlife refuges or other Federally 
managed lands.
    (d) Migratory bird permits. The provisions of this part do not 
alter the terms of any permit or other authorization issued pursuant to 
part 21 of this chapter.
    (e) State laws for the protection of migratory birds. No statute or 
regulation of the State of Alaska relieves a person from the 
restrictions, conditions, and requirements contained in this part. 
Nothing in this part, however, prevents the State of Alaska from making 
and enforcing laws or regulations that are consistent with the 
regulations in this part, the conventions between the United States and 
any foreign country for the protection of migratory birds, and the 
Migratory Bird Treaty Act, and that give further protection to 
migratory birds.


Sec. 92.4  Definitions.

    The following definitions apply to all regulations contained in 
this part: Alaska Native means a citizen of the United States who is a 
person of one-fourth degree or more Alaska Indian (including Tsimshian 
Indians not enrolled in the Metlaktla (sic) Indian Community) Eskimo, 
or Aleut blood, or combination thereof. The term includes any Native as 
so defined either or both of whose adoptive parents are not Natives. It 
also includes, in the absence of proof of a minimum blood quantum, any 
citizen of the United States who is regarded as an Alaska Native by the 
Native village or Native group of which he claims to be a member and 
whose father or mother is (or, if deceased, was) regarded as Native by 
any village or group, as defined in the Alaska Native Claims Settlement 
Act in 43 U.S.C. 1602(b)).
    Co-management Council means the Alaska Migratory Bird Co-management 
Council consisting of Alaska Native, Federal, and State of Alaska 
representatives as equals.
    Eligible person means an individual within the State of Alaska who 
qualifies to harvest migratory birds and their eggs for subsistence 
purposes.
    Excluded areas are defined in Sec. 92.5.
    Flyway Council means the Atlantic, Mississippi, Central, or Pacific 
Flyway Council.
    Immediate family means spouse, children, parents, grandparents, and 
siblings.
    Included areas are defined in Sec. 92.5.
    Indigenous inhabitant means a permanent resident of a village 
within a subsistence harvest area, regardless of race.
    Migratory bird, for the purposes of this part, means the same as 
defined in Sec. 10.12 of this chapter. Species are listed in Sec. 10.13 
of this chapter.
    Native means the same as ``Alaska Native'' as defined in this 
section.
    Non-wasteful taking means making a reasonable effort to retrieve 
all birds killed or wounded, and retaining such birds in possession 
between the place where taken and the hunter's permanent or temporary 
place of residence, or to the location where the birds will be consumed 
for food.
    Partner organization or regional partner means a regional or local 
organization, or a local or tribal government that has entered into a 
formal agreement with the U.S. Fish and Wildlife Service for the 
purpose of coordinating the regional programs necessary to involve 
subsistence hunters

[[Page 16712]]

in the regulatory process described in this part.
    Service Regulations Committee means the Migratory Bird Regulations 
Committee of the Fish and Wildlife Service.
    State means State of Alaska.
    Subsistence means the customary and traditional harvest and use of 
migratory birds and their eggs by eligible indigenous inhabitants for 
their own nutritional and other essential needs.
    Subsistence harvest areas encompass customary and traditional 
hunting areas of villages in Alaska that qualify for a spring or summer 
subsistence harvest of migratory birds under this part.
    Village is defined as a permanent settlement with one or more year-
round residents.


Sec. 92.5   Who is eligible to participate?

    If you are a permanent resident of a village within a subsistence 
harvest area, you will be eligible to harvest migratory birds and their 
eggs for subsistence purposes in the spring and summer.
    (a) Included areas. Village areas located within the Alaska 
Peninsula, Kodiak Archipelago, the Aleutian Islands, or in areas north 
and west of the Alaska Range are subsistence harvest areas, except that 
villages within these areas not meeting the criteria for a subsistence 
harvest area as identified in paragraph (c) of this section will be 
excluded from the spring and summer subsistence harvest. Any person may 
request the Co-management Council to recommend that an otherwise 
included area be excluded by submitting a petition stating how the area 
does not meet the criteria identified in paragraph (c) of this section. 
The Co-management Council will consider each petition and will submit 
to the Fish and Wildlife Service any recommendations to exclude areas 
from the spring and summer subsistence harvest. The Fish and Wildlife 
Service will publish any approved recommendations to exclude in subpart 
D of this part.
    (b) Excluded areas. Village areas located in Anchorage, the 
Matanuska-Susitna or Fairbanks North Star Boroughs, the Kenai Peninsula 
roaded area, the Gulf of Alaska roaded area, or Southeast Alaska 
generally do not qualify for a spring or summer harvest. Communities 
located within one of these areas may petition the Co-management 
Council through their designated regional management body for 
designation as a subsistence harvest area. The petition must state how 
the community meets the criteria identified in paragraph (c) of this 
section. The Co-management Council will consider each petition and will 
submit to the Fish and Wildlife Service any recommendations to 
designate a community as a subsistence harvest area. The Fish and 
Wildlife Service will publish any approved recommendations to designate 
a community as a subsistence area in subpart D of this part.
    (c) Criteria for determining designation as a subsistence harvest 
area. A community may be included in the spring/summer harvest 
regulations if the preponderance of evidence shows that the community 
demonstrates:

(1) A pattern of use recurring in the spring and summer of each year 
prior to 1916, excluding interruptions by circumstances beyond the 
user's control;
(2) The consistent harvest and use of migratory birds on or near the 
user's permanent residence;
(3) A use pattern which includes the handing down of knowledge of 
hunting skills and values from generation to generation;
(4) A use pattern in which migratory birds are shared or distributed 
among others within a definable community of persons; a community 
for purposes of subsistence uses may include specific villages or 
towns, with a historical pattern of subsistence use; and
(5) A use pattern which includes reliance for subsistence purposes 
upon migratory birds or their eggs, and which meets nutritional and 
other essential needs including, but not limited to, cultural, 
social and economic elements of the subsistence way of life.

    (d) Participation by residents in excluded areas. In cases where it 
is appropriate to assist indigenous inhabitants in meeting their 
nutritional and other essential needs, or for the teaching of cultural 
knowledge to or by their family members, residents of excluded areas 
may participate in the customary spring and summer subsistence harvest 
in a village's subsistence harvest area. Eligibility for participation 
will be developed and recommended by the Co-management Council and 
adopted or amended by regulation published in subpart D of this part.


Sec. 92.6  Use and possession of migratory birds.

    Harvest and possession of migratory birds must be done using non-
wasteful taking. You may not take birds for purposes other than human 
consumption. You may not sell, offer for sale, purchase or offer to 
purchase migratory birds, their parts, or their eggs taken under this 
part. Non-edible by-products of migratory birds taken for food may be 
used for other purposes only by individuals qualified to possess those 
birds. You may possess migratory birds, their parts, and their eggs, 
taken under this part, only if you are an eligible participant as 
determined in Sec. 92.5.


Secs. 92.7-92.9  [Reserved]

Subpart B--Program Structure.


Sec. 92.10  Alaska Migratory Bird Co-management Council.

    (a) Establishment. The U.S. Fish and Wildlife Service hereby 
establishes, as mandated by the Protocol amending the Canada Treaty, a 
statewide management body to be known as the Alaska Migratory Bird Co-
management Council.
    (b) Membership. The Co-management Council must include Alaska 
Native, Federal, and State of Alaska representatives, as equals.
    (1) The Federal and State governments will each seat one 
representative. The Federal representative will be appointed by the 
Alaska Regional Director of the U.S. Fish and Wildlife Service, and the 
State representative will be appointed by the Commissioner of the 
Alaska Department of Fish and Game. Regional partner organizations will 
seat one representative from each of the seven regions identified in 
Sec. 92.11(a), except that a region having more than one partner 
organization may send a representative from each partner organization 
for a maximum of 12 regional representatives.
    (2) The Federal and State representatives and the collective Native 
representatives will each have one vote, for a total of three votes for 
the entire council.
    (c) Roles and responsibilities. The Co-management Council is 
authorized to:
    (1) Hold public meetings for the purpose of conducting business 
related to spring and summer subsistence harvest of migratory birds;
    (2) Develop recommendations for regulations governing the spring 
and summer subsistence harvest of migratory birds and their eggs;
    (3) Develop recommendations for, among other things, law 
enforcement policies, population and harvest monitoring, education 
programs, research and use of traditional knowledge, and habitat 
protection;
    (4) Develop procedures and criteria by which areas and communities 
can be determined to be eligible or ineligible for a spring/summer 
subsistence harvest;
    (5) Provide guidelines to the regional management bodies each year 
for formulation of annual regulations;
    (6) Consolidate regional recommendations and resolve interregional 
differences in order to prepare statewide recommendations;

[[Page 16713]]

    (7) Establish committees to gather or review data, develop plans 
for Co-management Council actions, and coordinate programs with 
regional management bodies;
    (8) Send Alaska Native Co-management Council representatives to 
meetings of the Pacific Flyway Council and to meetings of the other 
Flyway Councils as needed, and to meetings of the Service Regulations 
Committee;
    (9) Elect officers; and
    (10) Conduct other business as the Council may determine is 
necessary to accomplish its purpose.
    (d) Meetings. The Co-management Council will:
    (1) Hold meetings at least twice annually;
    (2) Conduct meetings in accordance with bylaws approved by the Co-
management Council;
    (3) Provide opportunity at each meeting for public comment;
    (4) Establish the dates, times, and locations of meetings; and
    (5) Maintain a written record of all meetings.
    (e) Staff support. Administrative support for the Co-management 
Council will be provided by the U.S. Fish and Wildlife Service and will 
include, but not be limited to:
    (1) Making arrangements for the meeting rooms and associated 
logistics related to Co-management Council meetings;
    (2) Preparing public notices announcing Co-management Council 
meetings;
    (3) Maintaining records of discussions and actions taken by the Co-
management Council;
    (4) Coordinating with the Alaska Department of Fish and Game to 
provide technical information needed by the Co-management Council for 
its deliberations;
    (5) Preparing documents and gathering information needed by the Co-
management Council for its meetings; and
    (6) Preparing the annual subpart D regulations package recommended 
by the Co-management Council for submission to the flyway councils and 
the Service Regulations Committee.


Sec. 92.11  Regional management areas.

    (a) Regions identified. The Alaska Regional Director of the U.S. 
Fish and Wildlife Service hereby establishes seven geographic regions 
based on common subsistence resource use patterns. You may obtain maps 
delineating the boundaries of the seven regions from the U.S. Fish and 
Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 99503. The regions 
are identified as follows:

(1) Southeast, Gulf of Alaska and Cook Inlet;
(2) Aleutian/Pribilof Islands and Kodiak Archipelago;
(3) Bristol Bay;
(4) Yukon-Kuskokwim Delta;
(5) Bering Straits;
(6) Northwest Arctic and Arctic Slope; and
(7) Interior.

    (b) Regional partnerships. The Fish and Wildlife Service will 
establish partner agreements with at least one partner organization in 
each of the seven regions. The partner organization identified must be 
willing and able to coordinate the regional program on behalf of the 
subsistence hunters within that region. A regional partner will:
    (1) Organize or identify one or more management bodies within the 
region in which it is located.
    (2) Determine how the management body for the region should be 
organized and the manner in which it should function and determine its 
size, who serves on it, the length of terms, methods of involving 
subsistence users, and other related matters.
    (3) Coordinate regional meetings and the solicitation of proposals.
    (4) Ensure appointment of a person to represent the region by 
serving on the Co-management Council. If a region consists of more than 
one partner organization, each partner organization may appoint a 
member to sit on the Co-management Council.
    (5) Keep the residents of villages within the region informed of 
issues related to the subsistence harvest of migratory birds.
    (6) Work cooperatively with the U.S. Fish and Wildlife Service and 
the Alaska Department of Fish and Game to gather harvest data, numbers 
of subsistence users, and other management data and traditional 
knowledge for the benefit of the management bodies.
    (c) Regional management bodies. (1) Regional management bodies must 
provide a forum for the collection and expression of opinions and 
recommendations regarding spring and summer subsistence harvesting of 
migratory birds. They must develop requests and recommendations from 
the region to be presented to the Co-management Council for 
deliberation. They must provide for public participation in the 
meetings at which recommendations and requests are formulated.
    (2) Requests and recommendations to the Co-management Council may 
involve seasons and bag limits, methods and means, law enforcement 
policies, population and harvest monitoring, education programs, 
research and use of traditional knowledge, habitat protection, and 
other concerns related to migratory bird subsistence programs.
    (3) Regional management bodies may be established specifically for 
the purpose of carrying out the responsibilities identified in this 
part, or they may be existing entities that can add these 
responsibilities to their existing duties.


Sec. 92.12  Relationship to the process for developing national hunting 
regulations for migratory game birds.

    (a) Flyway councils. (1) Proposed annual regulations recommended by 
the Co-management Council will be submitted to all flyway councils for 
review and comment. The flyway councils may forward comments to the 
Service Regulations Committee for consideration before proposed 
regulations are issued in final.
    (2) Alaska Native representatives may be appointed by the Co-
management Council to attend meetings of one or more of the four flyway 
councils to discuss recommended regulations or other proposed 
management actions.
    (b) Service Regulations Committee. Proposed annual regulations 
recommended by the Co-management Council will be submitted to the 
Service Regulations Committee to be incorporated into the 
recommendations for national migratory bird hunting regulations (found 
in part 20 of this chapter) and published in this part 92. The 
Council's recommendations must be submitted prior to the Committee's 
last regular meeting of the calendar year in order to be approved for 
spring/summer harvest beginning March 11 of the following calendar 
year. Proposed spring/summer subsistence regulations for Alaska may be 
published in the Federal Register with either the proposed rule for the 
early-season or the proposed rule for the late-season national 
regulations. After comments are incorporated from the proposed rules, 
the spring/summer regulations for Alaska will then be published in the 
Federal Register with either the early-season final rule or late-season 
final rule, for the national regulations.


Secs. 92.13-92.19  [Reserved]

Subpart C--Methods and Means


Secs. 92.20-92.29  [Reserved]

Subpart D--Annual Regulations Governing Subsistence Harvest


Sec. 92.30  General overview of regulations.

    (a) The taking, possession, transportation, and other uses of 
migratory birds are generally prohibited unless specifically authorized 
by

[[Page 16714]]

regulation developed in accordance with the Migratory Bird Treaty Act. 
Therefore, harvesting migratory birds is prohibited unless regulations 
are established ensuring the protection of the various populations of 
migratory birds. Migratory bird population levels, production, and 
habitat conditions vary annually. These conditions differ within Alaska 
and throughout North America. Therefore, the regulations governing 
migratory bird hunting may include annual adjustments to keep harvests 
within acceptable levels.
    (b) The development of the regulations in this part 92, like the 
development of the national regulations in part 20 of this chapter, 
involves annual data gathering programs to determine migratory bird 
population status and trends, evaluate habitat conditions, determine 
harvests, and consider other factors having an impact on the 
anticipated size of annual populations.
    (c) The Service proposes national hunting regulations in the 
Federal Register in the spring for the regulatory year beginning 
September 1. Following consideration of additional biological 
information and public comment, the Service publishes supplemental 
proposals throughout the summer. These are also open to public comment. 
Public hearings are held for the purpose of providing additional 
opportunity for public participation in the rulemaking process.
    (d) Sections 92.31 through 92.39, provide for the annual harvest of 
migratory birds and their eggs during spring and summer for subsistence 
users in Alaska.


Secs. 92.31--92.39  [Reserved]

    Dated: March 18, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-8384 Filed 4-5-02; 8:45 am]
BILLING CODE 4310-55-P