[Federal Register Volume 74, Number 223 (Friday, November 20, 2009)]
[Proposed Rules]
[Pages 60228-60234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27870]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 92

[FWS-R7-MB-2009-0082] [91200-1231-9BPP-L2]
RIN 1018-AW67


Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 
for Migratory Birds in Alaska During the 2010 Season

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 
migratory bird subsistence harvest regulations in Alaska for the 2010 
season. These regulations will enable the continuation of customary and 
traditional subsistence uses of migratory birds in Alaska and prescribe 
regional information on when and where the harvesting of birds may 
occur. These regulations were developed under a co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives. The rulemaking is necessary because the 
regulations governing the subsistence harvest of migratory birds in 
Alaska are subject to annual review. This rulemaking proposes region-
specific regulations that go into effect on April 2, 2010, and expire 
on August 31, 2010.

DATES: We will accept comments received or postmarked on or before 
January 19, 2010. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
January 4, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R7-
MB-2009-0082.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-MB-2009-0082; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comment Procedures 
section below for more information).

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:

Public Comment Procedures

    To ensure that any final action resulting from this proposed rule 
will be as accurate and as effective as possible, we request that you 
send relevant information for our consideration. The comments that will 
be most useful and likely to influence our decisions are those that you 
support by quantitative information or studies and those that include 
citations to, and analyses of, the applicable laws and regulations. 
Please make your comments as specific as possible and explain the bases 
for them. In addition, please include sufficient information with your 
comments to allow us to authenticate any scientific or commercial data 
you include.
    You must submit your comments and materials concerning this 
proposed rule by one of the methods listed above in the ADDRESSES 
section. We will not accept comments sent by e-mail or fax or to an 
address not listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment--including any personal 
identifying information, such as your address, telephone number, or e-
mail address--will be posted on the Web site. Please note that comments 
submitted to this Web site are not immediately viewable. When you 
submit a comment, the system receives it immediately. However, the 
comment will not be publicly viewable until we post it, which might not 
occur until several days after submission.
    If you mail or hand-carry a hardcopy comment directly to us that 
includes personal information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. To ensure that the 
electronic docket for this rulemaking is complete and all comments we 
receive are publicly available, we will post all hardcopy comments on 
http://www.regulations.gov.
    In addition, comments and materials we receive, as well as 
supporting documentation used in preparing this proposed rule, will be 
available for public inspection in two ways:
     (1) You can view them on http://www.regulations.gov. In the Search 
Documents box, enter FWS-R7-MB-2009-0082, which is the docket number 
for this rulemaking. Then, in the Search panel on the left side of the 
screen, select the type of documents you want

[[Page 60229]]

to view under the Document Type heading.
     (2) You can make an appointment, during normal business hours, to 
view the comments and materials in person at the Division of Migratory 
Bird Management, U.S. Fish and Wildlife Service; 4501 N. Fairfax Drive, 
Room 4107, Arlington, VA 22203-1610.

Public Availability of Comments

    As stated above in more detail, before including your address, 
phone number, e-mail address, or other personal identifying information 
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly 
available at any time. Though you can ask us in your comment to 
withhold your personal identifying information from public review, we 
cannot guarantee that we will be able to do so.

Why Is This Rulemaking Necessary?

    This rulemaking is necessary because, by law, the migratory bird 
harvest season is closed unless opened by the Secretary of the 
Interior, and the regulations governing subsistence harvest of 
migratory birds in Alaska are subject to public review and annual 
approval. This rule proposes regulations for the taking of migratory 
birds for subsistence uses in Alaska during the spring and summer of 
2010. This rule lists proposed migratory bird season openings and 
closures in Alaska by region.

How Do I Find the History of These Regulations?

    Background information, including past events leading to this 
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:

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

    These final rules setting forth the annual harvest regulations, are 
available at http://alaska.fws.gov/ambcc/regulations.htm.

What Is the Process for Issuing Regulations for the Subsistence Harvest 
of Migratory Birds in Alaska?

    The U.S. Fish and Wildlife Service (Service or we) proposes 
migratory bird subsistence harvest regulations in Alaska for the 2010 
season. These regulations will enable the continuation of customary and 
traditional subsistence uses of migratory birds in Alaska and prescribe 
regional information on when and where the harvesting of birds may 
occur. These regulations were developed under a co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives.
    We opened the process to establish regulations for the 2010 spring 
and summer subsistence harvest of migratory birds in Alaska this past 
spring in a proposed rule published in the Federal Register on April 
10, 2009 (74 FR 16339). While that proposed rule dealt primarily with 
the regulatory process for hunting migratory birds for all purposes 
throughout the United States, we also discussed the background and 
history of the Alaska subsistence regulations, explained the annual 
process for their establishment, and requested proposals for the 2010 
season. The rulemaking processes for both types of migratory bird 
harvest are related, and the April 10, 2009, proposed rule explained 
the connection between the two.
    The Alaska Migratory Bird Co-management Council (Co-management 
Council) held a meeting in April 2009 to develop recommendations for 
changes effective for the 2010 harvest season. The April 10, 2009, 
proposed rule set a deadline of June 15, 2009, for the Co-management 
Council to submit proposals for the 2010 spring and summer migratory 
bird subsistence harvest season to us and the Flyway Councils. This 
timeframe allowed the Flyway Councils and the Service to consider the 
proposals and present recommendations to the Service Regulations 
Committee at the committee's meeting on July 29 and 30, 2009.

Who Is Eligible To Hunt Under These Regulations?

    Eligibility to harvest under the regulations established in 2003 
was limited to permanent residents, regardless of race, in villages 
located within the Alaska Peninsula, Kodiak Archipelago, the Aleutian 
Islands, and in areas north and west of the Alaska Range (50 CFR 92.5). 
These geographical restrictions opened the initial 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 rule proposes for the second year to 
restrict 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, would continue to provide additional protection for

[[Page 60230]]

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 proposed regulation at 50 CFR 
92.32, carried over from last year, 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 2010?

Yellow-billed Loons

    Consistent with the request of the North Slope Borough Fish and 
Game Management Committee and the recommendation of the Co-management 
Council, this proposed rule continues into 2010 the provisions 
originally established in 2005 to allow subsistence use of yellow-
billed loons (Gavia adamsii) inadvertently entangled in subsistence 
fishing (gill) nets on the North Slope. Yellow-billed loons are 
culturally important 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 2010 under this provision. This provision does not 
authorize intentional harvest of yellow-billed loons, but allows use of 
those loons inadvertently entangled during normal subsistence fishing 
activities. 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 2008, one yellow-billed loon was reported to be found 
dead in a fishing net; one severely injured yellow-billed loon was 
observed by Borough staff; and two were released uninjured from fishing 
nets by Borough staff.

Aleutian and Arctic Terns

    We propose to remove the provision that opened a season May 15-June 
30 for harvesting Aleutian (Onychoprion aleutica) and arctic tern 
(Sterna paradisaea) 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 regulation be removed at the April 2009 
Co-Management Council meeting, stating that they will not be able to 
adequately monitor the tern subsistence take as requested by the 
Service, so they would prefer to withdraw the regulation at this time.

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 Yukon-
Kuskokwim 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 indicate 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 2002-06 (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); 99 (44-155, 95% Confidence Limits) were taken during the 
2007 subsistence season; and 9 (1-25, 184% confidence limits) were 
taken during the 2008 subsistence season (Alaska Department of Fish and 
Game, preliminary data).
    The North Slope breeding population of Steller's eider was 
estimated to be 576 annually (292-859, 90% Confidence Limits) 
individual birds during 1993-2008 (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; 36 (1-85, 135% Confidence Limits) 
were taken during the 2007 subsistence season; and 0 were taken during 
the 2008 subsistence season (Alaska Department of Fish and Game, 
preliminary data). However, during the 2008 subsistence season, the 
Service documented 20 Steller's eiders shot at Barrow, with another 7 
found dead but too heavily scavenged to determine cause of death.
    Therefore, harvest survey estimates and direct observation of shot 
birds indicated 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 Alaska-breeding population. Because of the Steller's eider small 
breeding 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 proposed rule. It restricts hunting on the North 
Slope, from Barrow through Point Hope, to time of day with sufficient 
daylight to ensure hunters can distinguish and avoid shooting species 
closed for harvest; 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 shooting mortality of threatened eider 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 increased protection for spectacled 
and, particularly, Steller's eiders on the North Slope in 2009, and 
described how the Service would detect,

[[Page 60231]]

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 were:

1. Increase Migratory Bird Hunter Outreach Prior to the Hunts

    The Service with North Slope partners would provide migratory bird 
hunter outreach in Wainwright, Point Hope, Point Lay, and Barrow prior 
to each subsistence harvest. The outreach educational objectives 
included: hunter understanding of the 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. This was done prior 
to and during the 2009 subsistence season.

2. Increased Service Enforcement of Migratory Bird Regulations

    During the 2009 subsistence season, the Service sustained a law 
enforcement presence on the North Slope during the migratory bird 
hunts. The Service believes this action was necessary to increase 
community understanding and acceptance of the shooting mortality 
problem, deter violations, and obtain compliance with the regulations. 
The Service conducted real-time monitoring of the harvest to meet the 
primary objective of detecting Steller's eider mortality during the 
hunts so that appropriate and timely corrective action could be taken. 
Regulatory enforcement objectives will continue to 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 were used 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. We will continue to use all 
in-season monitoring information 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 were and continue to be 
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 these dual goals. With 
these dual goals in mind, the Service is proposing to continue the 
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.
    For the 2009 season, the Service and the community planned to 
immediately address and remedy any detected Steller's eider mortality; 
and, as a matter of Service policy, any detected Steller's eider 
shooting mortality was curtailed to an amount estimated to be 
sustainable by the population. The summer of 2009 was not a breeding 
year for Steller's eiders in the Barrow area. Even so, the Service 
conducted an extensive outreach program including eight public meetings 
in all of the affected eider communities, three radio shows, and five 
newspaper articles. The Service increased its law enforcement presence 
in Barrow as well as harvest monitoring. No Steller's eiders were found 
shot during monitoring of the subsistence harvest.
    In 2009, the Service also continued working into July refining and 
implementing the Memorandum of Understanding (MOU) established between 
the Service and North Slope government and Native organizations. The 
reason to initiate an MOU was to increase involvement by Alaska Native 
organizations in the conservation of Steller's eiders on the North 
Slope of Alaska. The purposes outlined were to: (1) conserve and manage 
Steller's eiders; (2) preserve the customary and traditional 
subsistence hunt, and (3) reduce or eliminate the take of Steller's 
eiders.
    A review of the conservation strategy implemented by the Service in 
2009 based on the conservation measures developed, showed that overall 
the Service made advancements in several areas. These conservation 
measures and the subsequent MOU engaged our partners on the North 
Slope, encouraging local ownership of the conservation goal, and 
ultimately heightening awareness of what actions were necessary to move 
in a positive direction to protect Steller's eiders. Based on these 
successes, the Service proposes to continue these conservation measures 
into the 2010 season with some modification as to the amount of effort 
and emphasis each will receive. The Service also proposes to continue 
the regulatory changes implemented in 2009 for the North Slope through 
the 2010 subsistence season, including the emergency closure 
provisions.

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.

[[Page 60232]]

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12988)

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

Government-to-Government Relations With Native American Tribal 
Governments

    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 meetings with the affected tribes and tribal nonprofit 
organizations to discuss the proposed changes in the regulations 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). We held meetings with the Alaska Department of Fish and Game and 
the Native Migratory Bird Working Group to provide information 
regarding the amended treaties and to listen to the needs of 
subsistence users. The Native Migratory Bird Working Group was a 
consortium of Alaska Natives formed by the Rural Alaska Community 
Action Program to represent Alaska Native subsistence hunters of 
migratory birds during the treaty negotiations. We held forums in Nome, 
Kotzebue, Fort Yukon, Allakaket, Naknek, Bethel, Dillingham, Barrow, 
and Copper Center. We led additional briefings and discussions at the 
annual meeting of the Association of Village Council Presidents in 
Hooper Bay and

[[Page 60233]]

for the Central Council of Tlingit & Haida Indian Tribes in Juneau.
    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 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 and does not contain new collections of information that require 
Office of Management and Budget approval. OMB has approved our 
collection of information associated with the voluntary annual 
household surveys used to determine levels of subsistence take. The OMB 
control number is 1018-0124, which expires 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

    Prior to issuance of annual spring and summer subsistence 
regulations, we will consult under section 7 of the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to 
ensure that the 2010 subsistence harvest is not likely to jeopardize 
the continued existence of any species designated as endangered or 
threatened, or modify or destroy its critical habitats, and that the 
regulations are consistent with conservation programs for those 
species. Consultation under section 7 of the Act for the annual 
subsistence take regulations may cause us to change these regulations. 
Our biological opinion resulting from the section 7 consultation is a 
public document available from the person listed under FOR FURTHER 
INFORMATION CONTACT.

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 2010 Spring/Summer Harvest,'' 
issued October 9, 2009. Copies are available from the person listed 
under FOR FURTHER INFORMATION CONTACT or at www.Regulations.gov.

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

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This is not a 
significant regulatory action under this Executive Order; it would 
allow only for traditional subsistence harvest and 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 propose to amend title 
50, chapter I, subchapter G, of the Code of Federal Regulations as 
follows:

PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA

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

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

Subpart D--Annual Regulations Governing Subsistence Harvest

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


Sec.  92.31  Region-specific regulations.

    The 2010 season dates for the eligible subsistence harvest areas 
are as follows:
     (a) Aleutian/Pribilof Islands Region.
    (1) Northern Unit (Pribilof Islands):
     (i) Season: April 2-June 30.
     (ii) Closure: July 1-August 31.
    (2) Central Unit (Aleut Region's eastern boundary on the Alaska 
Peninsula westward to and including Unalaska Island):
     (i) Season: April 2-June 15 and July 16-August 31.
     (ii) Closure: June 16-July 15.
     (iii) Special Black Brant Season Closure: August 16-August 31, 
only in Izembek and Moffet lagoons.
     (iv) Special Tundra Swan Closure: All hunting and egg gathering 
closed in units 9(D) and 10.
    (3) Western Unit (Umnak Island west to and including Attu Island):
     (i) Season: April 2-July 15 and August 16-August 31.
     (ii) Closure: July 16-August 15.
     (b) Yukon/Kuskokwim Delta Region.
     (1) Season: April 2-August 31.
     (2) Closure: 30-day closure dates to be announced by the Service's 
Alaska Regional Director or his designee, after consultation with local 
subsistence users, field biologists, and the Association of Village 
Council President's Waterfowl Conservation Committee. This 30-day 
period will occur between June 1 and August 15 of each year. A press 
release announcing the actual closure dates will be forwarded to 
regional newspapers and radio and television stations and posted in 
village post offices and stores.
     (3) Special Black Brant and Cackling Goose Season Hunting Closure: 
From the period when egg laying begins until young birds are fledged. 
Closure dates to be announced by the Service's Alaska Regional Director 
or his designee, after consultation with field biologists and the 
Association of Village Council President's Waterfowl Conservation 
Committee. A press release announcing the actual closure dates will be 
forwarded to regional newspapers and radio and television stations and 
posted in village post offices and stores.
     (c) Bristol Bay Region.
     (1) Season: April 2-June 14 and July 16-August 31 (general 
season); April 2-July 15 for seabird egg gathering only.
     (2) Closure: June 15-July 15 (general season); July 16-August 31 
(seabird egg gathering).
     (d) Bering Strait/Norton Sound Region.
    (1) Stebbins/St. Michael Area (Point Romanof to Canal Point):
     (i) Season: April 15-June 14 and July 16-August 31.
     (ii) Closure: June 15-July 15.
    (2) Remainder of the region:
     (i) Season: April 2-June 14 and July 16-August 31 for waterfowl; 
April 2-July 19 and August 21-August 31 for all other birds.
     (ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for 
all other birds.
     (e) Kodiak Archipelago Region, except for the Kodiak Island roaded 
area, which is closed to the harvesting of migratory birds and their 
eggs. The closed area consists of all lands and waters (including 
exposed tidelands) east of a line extending from Crag Point in the 
north to the west end of Saltery Cove in the south and all lands and 
water south of a line extending from Termination Point along the north 
side of Cascade Lake extending to Anton Larson Bay. Waters adjacent to 
the closed area are closed to harvest within 500 feet from the water's 
edge. The offshore islands are open to harvest.

[[Page 60234]]

     (1) Season: April 2-June 30 and July 31-August 31 for seabirds; 
April 2-June 20 and July 22-August 31 for all other birds.
     (2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all 
other birds.
     (f) Northwest Arctic Region.
     (1) Season: April 2-June 9 and August 15-August 31 (hunting in 
general); waterfowl egg gathering May 20-June 9 only; seabird egg 
gathering May 20-July 12 only; hunting molting/non-nesting waterfowl 
July 1-July 31 only.
     (2) Closure: June 10-August 14, except for the taking of seabird 
eggs and molting/non-nesting waterfowl as provided in paragraph (f)(1) 
of this section.
     (g) North Slope Region.
    (1) Southern Unit (Southwestern North Slope regional boundary east 
to Peard Bay, everything west of the longitude line 158[deg]30'W and 
south of the latitude line 70[deg]45'N to the west bank of the Ikpikpuk 
River, and everything south of the latitude line 69[deg]45'N between 
the west bank of the Ikpikpuk River to the east bank of Sagavinirktok 
River):
     (i) Season: April 2-June 29 and July 30-August 31 for seabirds; 
April 2-June 19 and July 20-August 31 for all other birds.
     (ii) Closure: June 30-July 29 for seabirds; June 20-July 19 for 
all other birds.
     (iii) Special Black Brant Hunting Opening: From June 20-July 5. 
The open area would consist of the coastline, from mean high water line 
outward to include open water, from Nokotlek Point east to longitude 
line 158[deg]30'W. This includes Peard Bay, Kugrua Bay, and Wainwright 
Inlet, but not the Kuk and Kugrua river drainages.
    (2) Northern Unit (At Peard Bay, everything east of the longitude 
line 158[deg]30'W and north of the latitude line 70[deg]45'N to west 
bank of the Ikpikpuk River, and everything north of the latitude line 
69[deg]45'N between the west bank of the Ikpikpuk River to the east 
bank of Sagavinirktok River):
     (i) Season: April 6-June 6 and July 7-August 31 for king and 
common eiders; April 2-June 15 and July 16-August 31 for all other 
birds.
     (ii) Closure: June 7-July 6 for king and common eiders; June 16-
July 15 for all other birds.
    (3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
     (i) Season: April 2-June 19 and July 20-August 31.
     (ii) Closure: June 20-July 19.
     (4) All Units: yellow-billed loons. Annually, up to 20 yellow-
billed loons total for the region may be inadvertently entangled in 
subsistence fishing nets in the North Slope Region and kept for 
subsistence use. 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 may at any time, by any means, or in any manner, 
possess or have in custody any migratory bird or part thereof, taken in 
violation of subpart C and D of this part.
     (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.
     (k) Cook Inlet (Harvest area: portions of Unit 16[B] as specified 
below) (Eligible communities: Tyonek only).
     That portion of(1) Season: April 2-May 31 Unit 16(B) south of the 
Skwentna River and west of the Yentna RiverThat, and August 1-31 
portion of Unit 16(B) south of the Beluga River, Beluga Lake, and the 
Triumvirate Glacier.
     (2) Closure: June 1-July 31.
     (l) Southeast Alaska.
     (1) Community of Hoonah (Harvest area: National Forest lands in 
Icy Strait and Cross Sound, including Middle Pass Rock near the Inian 
Islands, Table Rock in Cross Sound, and other traditional locations on 
the coast of Yakobi Island. The land and waters of Glacier Bay National 
Park remain closed to all subsistence harvesting (50 CFR Part 
100.3(a)).
     (i) Season: glaucous-winged gull egg gathering only: May 15-June 
30.
     (ii) Closure: July 1-August 31.
     (2) Communities of Craig and Hydaburg (Harvest area: small islands 
and adjacent shoreline of western Prince of Wales Island from Point 
Baker to Cape Chacon, but also including Coronation and Warren 
islands).
     (i) Season: glaucous-winged gull egg gathering only: May 15-June 
30.
     (ii) Closure: July 1-August 31.
     (3) Community of Yakutat (Harvest area: Icy Bay (Icy Cape to Point 
Riou), and coastal lands and islands bordering the Gulf of Alaska from 
Point Manby southeast to Dry Bay).
     (i) Season: glaucous-winged gull egg gathering: May 15-June 30.
     (ii) Closure: July 1-August 31.
    3. In subpart D, add Sec.  92.32 to read as follows:


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

    Upon finding that continuation of these subsistence regulations 
would pose an imminent threat to the conservation of threatened 
Steller's eiders (Polysticta stelleri), the U.S. Fish and Wildlife 
Service Alaska Regional Director, in consultation with the Co-
management Council, will immediately under Sec.  92.21 take action as 
is necessary to prevent further take. Regulation changes implemented 
could range from a temporary closure of duck hunting in a small 
geographic area to large-scale regional or 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: November 3, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-27870 Filed 11-19-09; 8:45 am]
BILLING CODE 4310-55-S