[Federal Register Volume 76, Number 213 (Thursday, November 3, 2011)]
[Proposed Rules]
[Pages 68264-68270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28556]



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Vol. 76

Thursday,

No. 213

November 3, 2011

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 92





Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations for 
Migratory Birds in Alaska During the 2012 Season; Proposed Rule

  Federal Register / Vol. 76 , No. 213 / Thursday, November 3, 2011 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 92

[Docket No. FWS-R7-MB-2011-0090; 91200-1231-9BPP-L2]
RIN 1018-AX55


Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 
for Migratory Birds in Alaska During the 2012 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 2012 
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, 2012, and expire 
on August 31, 2012.

DATES: We will accept comments received or postmarked on or before 
January 3, 2012. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
December 19, 2011.

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-2011-0090.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-MB-2011-0090; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 
2042-PDM; Arlington, VA 22203.
    We will not accept email 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 basis 
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 email 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 
email address--will be posted on the Web site. 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. Search for 
FWS-R7-MB-2011-0090, which is the docket number for this rulemaking.
    (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, email 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. While 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 
2012. This rule proposes a list of migratory bird season openings and 
closures in Alaska by region.

How do I find the history of these regulations?

    Background information, including past events leading to this 
rulemaking, accomplishments since the Migratory Bird Treaties with 
Canada and Mexico were amended, and a history, was originally addressed 
in the Federal Register on August 16, 2002 (67 FR 53511) and most 
recently on March 29, 2011 (76 FR 17353).
    Recent Federal Register documents, which are all final rules 
setting forth the annual harvest regulations, are available at http://alaska.fws.gov/ambcc/regulations.htm or by contacting one of the people 
listed under FOR FURTHER INFORMATION CONTACT.

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

    The U.S. Fish and Wildlife Service (Service or we) proposes to 
establish migratory bird subsistence harvest regulations in Alaska for 
the 2012 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 proposed regulations were developed under a co-
management process

[[Page 68265]]

involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives.
    We opened the process to establish regulations for the 2012 spring 
and summer subsistence harvest of migratory birds in Alaska in a 
proposed rule published in the Federal Register on April 8, 2011 (76 FR 
19876). While that proposed rule dealt primarily with the regulatory 
process for hunting migratory birds for all purposes throughout the 
United States, we also discussed the background and history of Alaska 
subsistence regulations, explained the annual process for their 
establishment, and requested proposals for the 2012 season. The 
rulemaking processes for both types of migratory bird harvest are 
related, and the April 8, 2011, proposed rule explained the connection 
between the two.
    The Alaska Migratory Bird Co-management Council (Co-management 
Council) held a meeting in June 2011 to develop recommendations for 
changes that would take effect during the 2012 harvest season. These 
recommendations were presented first to the Flyway Councils and then to 
the Service Regulations Committee at the committee's meeting on July 27 
and 28, 2011.

Who is eligible to hunt under these regulations?

    Eligibility to harvest under the regulations established in 2003 
was limited to permanent residents, regardless of race, in villages 
located within the Alaska Peninsula, Kodiak Archipelago, the Aleutian 
Islands, and in areas north and west of the Alaska Range (50 CFR 92.5). 
These geographical restrictions opened the initial migratory bird 
subsistence harvest to about 13 percent of Alaska residents. High 
populated areas such as Anchorage, the Matanuska-Susitna and Fairbanks 
North Star boroughs, the Kenai Peninsula roaded area, the Gulf of 
Alaska roaded area, and Southeast Alaska were excluded from eligible 
subsistence harvest areas.
    Based on petitions requesting inclusion in the harvest, in 2004, we 
added 13 additional communities based on criteria set forth in 50 CFR 
92.5(c). These communities were Gulkana, Gakona, Tazlina, Copper 
Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, Port 
Graham, Nanwalek, Tyonek, and Hoonah, with a combined population of 
2,766. In 2005, we added three additional communities for glaucous-
winged gull egg gathering only, based on petitions requesting 
inclusion. These southeastern communities were Craig, Hydaburg, and 
Yakutat, with a combined population of 2,459, based on the latest 
census information at that time.
    In 2007, we enacted the Alaska Department of Fish and Game's 
request to expand the Fairbanks North Star Borough excluded area to 
include the Central Interior area. This action excluded the following 
communities from participation in this harvest: Big Delta/Fort Greely, 
Healy, McKinley Park/Village, and Ferry, with a combined population of 
2,812.

What is different in the region-specific regulations for 2012?

    Regulations proposed in this rule are identical to those for the 
2011 harvest season. However, at the June 2, 2011 Co-Management Council 
meeting, the Yukon/Kuskokwim Delta and Kodiak Archipelago regional 
representatives requested to remove their respective regions from 2012 
regulations by not approving the consent agenda. Annually, the 
migratory bird subsistence season in Alaska is closed until regulations 
are passed that open the upcoming season. If regulations do not change 
from year to year, the 11 Alaska regions opt to vote a consent agenda 
whereby regulations from the previous year (2011) are accepted for the 
following year (2012).
    The justification provided at the Co-Management Council Meeting by 
the Yukon/Kuskokwim Delta representative was that the region could not 
support regulations that included the duck stamp requirement. The 
representative indicated that there was a conflict in the application 
of other federal requirements to the Alaska Migratory Bird Co-
Management Council (AMBCC) regulations and that the Federal Government 
does not take into consideration other Native laws that could apply to 
the regulatory program. The representative also indicated that there is 
widespread opposition to the Federal duck stamp requirement and that he 
does not support any regulation requiring the Federal duck stamp to 
hunt waterfowl.
    The justification provided by the Kodiak Archipelago Representative 
was that the Kodiak Island representative expressed concerns that he 
was not familiar with the AMBCC process and was not familiar with the 
history of the regional regulations. In discussions with local elders 
he indicated that they are not supportive of the closure areas or dates 
and could not support them. He indicated that there is egg gathering in 
the Kodiak Island region and that was another reason why he could not 
support a closure that would stop that activity.
    After the Co-Management Council meeting, the Alaska Regional 
Director and his staff contacted both regional representatives to 
inform them that the Service Regulations Committee would have to 
implement regulations to provide harvest opportunities for subsistence 
users who take migratory birds in those areas and elsewhere. The 
Service Regulations Committee met on July 28, 2011, and does not 
support the lack of subsistence regulations in the Yukon-Kuskokwim and 
Kodiak Archipelago Regions. Therefore, the Service is proposing to 
continue the 2011 regulations for those two regions through the 2012 
season without change. Justification to propose these regulations was 
to provide a continuity of the regulations affecting subsistence 
harvesters in those areas.

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

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

Spectacled and Steller's Eiders

    Spectacled eiders (Somateria fischeri) and the Alaska-breeding 
population of Steller's eiders (Polysticta stelleri) are listed as 
threatened species; their migration and breeding distribution overlap 
with areas where the spring and summer subsistence migratory bird hunt 
is open in Alaska. Both species are closed to hunting, although harvest 
surveys and Service documentation indicate both species have been taken 
in several regions of Alaska.
    The Service has dual goals and responsibilities for authorizing a 
subsistence harvest while protecting migratory birds and threatened 
species. Although these goals continue to be challenging, they are not 
irreconcilable, providing sufficient recognition is given to the need 
to protect threatened species, measures to remedy documented threats 
are implemented, and the subsistence community and other conservation 
partners commit to working together. With these dual goals in mind, the 
Service, working with partners, developed measures in 2009 to further 
reduce the potential for shooting

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mortality or injury of closed species. These conservation measures 
included: (1) Increased waterfowl hunter outreach and community 
awareness through partnering with the North Slope Migratory Bird Task 
Force; (2) continued enforcement of the migratory bird regulations that 
are protective of listed eiders; and (3) in-season Service verification 
of the harvest to detect Steller's eider mortality.
    This proposed rule continues to focus on the North Slope from 
Barrow through Point Hope because Steller's eiders from the listed 
Alaska breeding population are known to breed and migrate there. These 
proposed regulations were designed to address several ongoing eider 
management needs by clarifying for subsistence users that (1) Service 
law enforcement personnel have authority to verify species of birds 
possessed by hunters, and (2) it is illegal to possess any bird closed 
to harvest. This proposal also describes how the Service's existing 
authority of emergency closure would be implemented, if necessary, to 
protect Steller's eiders. We are willing to discuss many of the 
proposed regulations with our partners on the North Slope to ensure the 
proposed regulations protect closed species as well as provide 
subsistence hunters an opportunity to harvest migratory birds in a way 
that maintains the culture and traditional harvest of the community. 
The proposed regulations pertaining to bag checks and possession of 
illegal birds are deemed necessary to verify compliance with not 
harvesting protected eider species.
    The Service is aware and appreciates the considerable efforts by 
North Slope partners to raise awareness and educate hunters on 
Steller's eider conservation via the bird fair, meetings, radio shows, 
signs, school visits, and one-on-one contacts. We also recognize that 
no listed eiders have been documented shot in the last 3 years, even 
with the first significant breeding season for Steller's eiders 
occurring in the Barrow area this past summer. The Service acknowledges 
progress made with the other eider conservation measures including 
partnering with the North Slope Migratory Bird Task Force for increased 
waterfowl hunter awareness, continued enforcement of the regulations, 
and in-season verification of the harvest. Our primary strategy to 
reduce the threat of shooting mortality of threatened eiders is to 
continue working with North Slope partners to conduct education, 
outreach, and harvest monitoring. In addition, the emergency closure 
authority provides another level of assurance if an unexpected amount 
of Steller's eider shooting mortality occurs (50 CFR 92.21 and proposed 
50 CFR 92.32).
    In-season harvest monitoring information will be used to evaluate 
the efficacy of regulations, conservation measures, and outreach 
efforts. During 2009 through 2011, no Steller's eider harvest was 
reported on the North Slope, and no Steller's eiders were found shot 
during in-season verification of the subsistence harvest. Based on 
these successes, the 2011 conservation measures will also be continued, 
although there will be some modification of the amount of effort and 
emphasis each will receive. Specifically, local communities have 
continued to develop greater responsibility for taking actions to 
ensure Steller's and spectacled eider conservation and recovery, and 
based on last year's observations, local hunters have demonstrated 
greater compliance with hunting regulations.
    The longstanding general emergency closure provision at 50 CFR 
92.21 specifies that the harvest may be closed or temporarily suspended 
upon finding that a continuation of the regulation allowing the harvest 
would pose an imminent threat to the conservation of any migratory bird 
population. With regard to Steller's eiders, the proposed regulation at 
50 CFR 92.32, carried over from the past 2 years, would clarify that we 
will take action under 50 CFR 92.21 as is necessary to prevent further 
take of Steller's eiders, and that action could include temporary or 
long-term closures of the harvest in all or a portion of the geographic 
area open to harvest. If mortality of threatened eiders occurs, we will 
evaluate each mortality event by criteria such as cause, quantity, sex, 
age, location, and date. We will consult with the Co-management Council 
when we are considering an emergency closure. If we determine that an 
emergency closure is necessary, we will design it to minimize its 
impact on the subsistence harvest.

Yellow-Billed Loon and Kittlitz's Murrelet

    Yellow-billed loon (Gavia adamsii) and Kittlitz's murrelet 
(Brachyramphus brevirostris) are candidate species for listing under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.). Their migration and breeding distribution overlaps with where 
the spring and summer migratory bird hunt is open in Alaska. Both 
species are closed to hunting, and there is no evidence Kittlitz's 
murrelets are harvested. On the other hand, harvest surveys have 
indicated that harvest of yellow-billed loons on the North Slope and 
St. Lawrence Island does occur. Most of the yellow-billed loons 
reported harvested on the North Slope were found to be entangled loons 
salvaged from subsistence fishing nets as described below. The Service 
will continue outreach efforts in both areas in 2012, engaging partners 
to improve harvest estimates and decrease take of 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 rule proposes to continue through 2012 the provisions 
originally established in 2005 to allow subsistence use of yellow-
billed loons inadvertently entangled in subsistence fishing (gill) nets 
on the North Slope. Yellow-billed loons are culturally important to the 
Inupiat Eskimo of the North Slope for use in traditional dance regalia. 
A maximum of 20 yellow-billed loons may be kept if found entangled in 
fishing nets in 2012 under this proposed provision. This proposed 
provision does not authorize intentional harvest of yellow-billed 
loons, but would allow use of those loons inadvertently entangled 
during normal subsistence fishing activities.
    In 2010, the Service Regulations Committee continued support of 
this proposal was contingent on the North Slope Borough collaborating 
with the Service and the Co-Management Council to design and implement 
in 2011 a scientifically defensible survey to estimate the number of 
yellow-billed loons entangled in subsistence fishing nets. During June 
2011, the North Slope submitted a proposal entitled ``Assessment of 
Yellow-Billed Loons Inadvertently Entangled in Subsistence Fishing Nets 
in the North Slope Borough'' that has been endorsed by the Alaska 
Department of Fish and Game and the Service. The Service Regulations 
Committee met on July 28, 2011, and appreciated the efforts by the 
North Slope Borough to develop a scientifically defensible yellow-
billed loon entanglement survey and therefore supported the proposed 
continuation of the provision to allow subsistence use of up to 20 
yellow-billed loons inadvertently caught in subsistence fishing nets.

Endangered Species Act Consideration

    Section 7 of the Endangered Species Act (16 U.S.C. 1536) requires 
the Secretary of the Interior to ``review other programs administered 
by him and utilize such programs in furtherance of the purposes of the 
Act'' and to ``insure that any action authorized, funded, or carried 
out * * * is not likely to

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jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat * * *.'' 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 (Act), to ensure that the 
2012 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 either person listed under FOR FURTHER INFORMATION 
CONTACT.

Statutory Authority

    We derive our authority to issue these regulations from the 
Migratory Bird Treaty Act of 1918, 16 U.S.C. 712(1), which authorizes 
the Secretary of the Interior, in accordance with the treaties with 
Canada, Mexico, Japan, and Russia, to ``issue such regulations as may 
be necessary to assure that the taking of migratory birds and the 
collection of their eggs, by the indigenous inhabitants of the State of 
Alaska, shall be permitted for their own nutritional and other 
essential needs, as determined by the Secretary of the Interior, during 
seasons established so as to provide for the preservation and 
maintenance of stocks of migratory birds.''

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

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

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). An initial regulatory flexibility analysis is not required. 
Accordingly, a Small Entity Compliance Guide is not required. The 
proposed rule would legalize a pre-existing subsistence activity, and 
the resources harvested would be consumed by the harvesters or persons 
within their local community.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:

    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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 proposes to 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 proposed 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 proposed 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 
proposed 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 proposed 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 
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 certified under the Unfunded Mandates Reform 
Act (2 U.S.C. 1501 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. The proposed 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 a 
Notice of Decision (65 FR 16405; March 28, 2000), we identified 12 
partner organizations (Alaska Native nonprofits and local governments) 
to administer the regional programs. The Alaska Department of Fish and 
Game will also incur expenses for travel to Co-management Council and 
regional management body meetings. In addition, the State of Alaska 
will be required to provide technical staff support to each of the 
regional management bodies and to the Co-management Council. Expenses 
for the State's involvement may exceed $100,000 per year, but should 
not exceed $150,000 per year. When

[[Page 68268]]

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 proposed rule 
does not have significant takings implications. This proposed 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 proposed rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. 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 proposed regulations. Therefore, a federalism summary 
impact statement is not required.

Civil Justice Reform (Executive Order 12988)

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

Government-to-Government Relations With Native American Tribal 
Governments

    In keeping with the spirit of the President's memorandum of April 
29, 1994, ``Government-to-Government Relations With Native American 
Tribal Governments'' (59 FR 22951), and Executive Order 13175 (65 FR 
67249; November 6, 2000), concerning consultation and coordination with 
Indian Tribal Governments, we implemented the amended treaty with 
Canada with a focus on local involvement. The treaty calls for the 
creation of management bodies to ensure an effective and meaningful 
role for Alaska's indigenous inhabitants in the conservation of 
migratory birds. According to the Letter of Submittal, management 
bodies are to include Alaska Native, Federal, and State of Alaska 
representatives as equals. They will develop recommendations for among 
other things: seasons and bag limits, methods and means of take, law 
enforcement policies, population and harvest monitoring, education 
program, research and use of traditional knowledge, and habitat 
protection. The management bodies will involve village councils to the 
maximum extent possible in all aspects of management. To ensure maximum 
input at the village level, we required each of the 11 participating 
regions to create regional management bodies consisting of at least one 
representative from the participating villages. The regional management 
bodies meet twice annually to review and/or submit proposals to the 
Statewide body.
    This proposed rule would legally recognize the subsistence harvest 
of migratory birds and their eggs for indigenous inhabitants including 
tribal members. In 1998, we began a public involvement process to 
determine how to structure management bodies in order to provide the 
most effective and efficient involvement of subsistence users. We began 
by publishing in the Federal Register stating that we intended to 
establish management bodies to implement the spring and summer 
subsistence harvest (63 FR 49707, September 17, 1998). We held meetings 
with the Alaska Department of Fish and Game and the Native Migratory 
Bird Working Group to provide information regarding the amended 
treaties and to listen to the needs of subsistence users. The Native 
Migratory Bird Working Group was a consortium of Alaska Natives formed 
by the Rural Alaska Community Action Program to represent Alaska Native 
subsistence hunters of migratory birds during the treaty negotiations. 
We held forums in Nome, Kotzebue, Fort Yukon, Allakaket, Naknek, 
Bethel, Dillingham, Barrow, and Copper Center. We led additional 
briefings and discussions at the annual meeting of the Association of 
Village Council Presidents in Hooper Bay and for the Central Council of 
Tlingit & Haida Indian Tribes in Juneau.
    On March 28, 2000, we published in the Federal Register (65 FR 
16405) a Notice of Decision entitled, ``Establishment of Management 
Bodies in Alaska To Develop Recommendations Related to the Spring/
Summer Subsistence Harvest of Migratory Birds.'' This notice described 
the way in which management bodies would be established and organized. 
Based on the wide range of views expressed on the options document, the 
decision incorporated key aspects of two of the modules. The decision 
established one Statewide management body consisting of 1 Federal 
member, 1 State member, and 7 to 12 Alaska Native members, with all 
components serving as equals.
    In the development of this proposed rule, the Service has adopted a 
policy to involve Alaska tribes in the consultation process to the 
extent possible. Alaska is home to more than 230 federally recognized 
tribes. The majority of tribes are located in rural Alaska which has no 
road access. Accessibility is limited to air transportation, which is 
cost prohibitive to conduct face-to-face consultation, especially with 
over 200 tribes. An important factor to consider is that consulting 
with tribes prior to the publication of migratory bird subsistence 
harvest regulations limits our options dramatically. Because of this 
time constraint, the Service has determined that consultation will be 
conducted via teleconference. Annually, prior to the publication of a 
proposed rule, the AMBCC will send out letters to each federally 
recognized tribe soliciting their input as to whether or not they would 
like to consult with the Service on upcoming subsistence harvest 
regulations. The letter will include a request for: (1) Name of the 
tribe, (2) list of tribal representatives involved in the consultation, 
(3) contact numbers of the tribal office, and (4) preferred date and 
time for consultation. The Service is confident that the proposed rule 
process, which includes a 60-day comment period and the opportunities 
for tribes to be involved in the rulemaking process through 
consultation, increases tribal involvement immensely.

Paperwork Reduction Act

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

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

    The annual regulations and options were considered in the 
environmental assessment, ``Managing Migratory Bird Subsistence Hunting 
in Alaska: Hunting Regulations for the 2012 Spring/Summer Harvest,'' 
October 25, 2011. Copies are available from either the person listed 
under FOR FURTHER INFORMATION CONTACT or at http://www.regulations.gov.

[[Page 68269]]

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 proposed 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

    Hunting, Treaties, Wildlife.

Proposed Regulation Promulgation

    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. Amend subpart D by adding Sec.  92.31 to read as follows:


Sec.  92.31  Region-specific regulations.

    The 2012 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 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.
    (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.
    (c) Bristol Bay Region.
    (1) Season: April 2-June 14 and July 16-August 31 (general season); 
April 2-July 15 for seabird egg gathering only.
    (2) Closure: June 15-July 15 (general season); July 16-August 31 
(seabird egg gathering).
    (d) Bering Strait/Norton Sound Region.
    (1) Stebbins/St. Michael Area (Point Romanof to Canal Point):
    (i) Season: April 15-June 14 and July 16-August 31.
    (ii) Closure: June 15-July 15.
    (2) Remainder of the region:
    (i) Season: April 2-June 14 and July 16-August 31 for waterfowl; 
April 2-July 19 and August 21-August 31 for all other birds.
    (ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for 
all other birds.
    (e) Kodiak Archipelago Region, except for the Kodiak Island roaded 
area, which is closed to the harvesting of migratory birds and their 
eggs. The closed area consists of all lands and waters (including 
exposed tidelands) east of a line extending from Crag Point in the 
north to the west end of Saltery Cove in the south and all lands and 
water south of a line extending from Termination Point along the north 
side of Cascade Lake extending to Anton Larson Bay. Waters adjacent to 
the closed area are closed to harvest within 500 feet from the water's 
edge. The offshore islands are open to harvest.
    (1) Season: April 2-June 30 and July 31-August 31 for seabirds; 
April 2-June 20 and July 22-August 31 for all other birds.
    (2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all 
other birds.
    (f) Northwest Arctic Region.
    (1) Season: April 2-June 9 and August 15-August 31 (hunting in 
general); waterfowl egg gathering May 20-June 9 only; seabird egg 
gathering May 20-July 12 only; hunting molting/non-nesting waterfowl 
July 1-July 31 only.
    (2) Closure: June 10-August 14, except for the taking of seabird 
eggs and molting/non-nesting waterfowl as provided in paragraph (f)(1) 
of this section.
    (g) North Slope Region.
    (1) Southern Unit (Southwestern North Slope regional boundary east 
to Peard Bay, everything west of the longitude line 158[deg]30' W and 
south of the latitude line 70[deg]45' N to the west bank of the 
Ikpikpuk River, and everything south of the latitude line 69[deg]45' N 
between the west bank of the Ikpikpuk River to the east bank of 
Sagavinirktok River):
    (i) Season: April 2-June 29 and July 30-August 31 for seabirds; 
April 2-June 19 and July 20-August 31 for all other birds.
    (ii) Closure: June 30-July 29 for seabirds; June 20-July 19 for all 
other birds.
    (iii) Special Black Brant Hunting Opening: From June 20-July 5. The 
open area would consist of the coastline, from mean high water line 
outward to include open water, from Nokotlek Point east to longitude 
line 158[deg]30' W. This includes Peard Bay, Kugrua Bay, and Wainwright 
Inlet, but not the Kuk and Kugrua river drainages.
    (2) Northern Unit (At Peard Bay, everything east of the longitude 
line 158[deg]30' W and north of the latitude line 70[deg]45' N to west 
bank of the Ikpikpuk River, and everything north of the latitude line 
69[deg]45' N between the west bank of the Ikpikpuk River to the east 
bank of Sagavinirktok River):
    (i) Season: April 6-June 6 and July 7-August 31 for king and common 
eiders; April 2-June 15 and July 16-August 31 for all other birds.
    (ii) Closure: June 7-July 6 for king and common eiders; June 16-
July 15 for all other birds.
    (3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
    (i) Season: April 2-June 19 and July 20-August 31.
    (ii) Closure: June 20-July 19.
    (4) All Units: Yellow-billed loons. Annually, up to 20 yellow-
billed loons total for the region may be inadvertently entangled in 
subsistence fishing nets in the North Slope Region and kept for 
subsistence use.
    (5) North Coastal Zone (Cape Thompson north to Point Hope and east 
along the Arctic Ocean coastline around Point Barrow to Ross Point, 
including Iko Bay, and 5 miles inland).

[[Page 68270]]

    (i) No person may at any time, by any means, or in any manner, 
possess or have in custody any migratory bird or part thereof, taken in 
violation of subpart C and D of this part.
    (ii) Upon request from a Service law enforcement officer, hunters 
taking, attempting to take, or transporting migratory birds taken 
during the subsistence harvest season must present them to the officer 
for species identification.
    (h) Interior Region.
    (1) Season: April 2-June 14 and July 16-August 31; egg gathering 
May 1-June 14 only.
    (2) Closure: June 15-July 15.
    (i) Upper Copper River Region (Harvest Area: Units 11 and 13) 
(Eligible communities: Gulkana, Chitina, Tazlina, Copper Center, 
Gakona, Mentasta Lake, Chistochina and Cantwell).
    (1) Season: April 15-May 26 and June 27-August 31.
    (2) Closure: May 27-June 26.
    (3) The Copper River Basin communities listed above also documented 
traditional use harvesting birds in Unit 12, making them eligible to 
hunt in this unit using the seasons specified in paragraph (h) of this 
section.
    (j) Gulf of Alaska Region.
    (1) Prince William Sound Area (Harvest area: Unit 6 [D]), (Eligible 
Chugach communities: Chenega Bay, Tatitlek):
    (i) Season: April 2-May 31 and July 1-August 31.
    (ii) Closure: June 1-30.
    (2) Kachemak Bay Area (Harvest area: Unit 15[C] South of a line 
connecting the tip of Homer Spit to the mouth of Fox River) (Eligible 
Chugach Communities: Port Graham, Nanwalek):
    (i) Season: April 2-May 31 and July 1-August 31.
    (ii) Closure: June 1-30.
    (k) Cook Inlet (Harvest area: portions of Unit 16[B] as specified 
below) (Eligible communities: Tyonek only):
    (1) Season: April 2-May 31--That portion of Unit 16(B) south of the 
Skwentna River and west of the Yentna River, and August 1-31--That 
portion of Unit 16(B) south of the Beluga River, Beluga Lake, and the 
Triumvirate Glacier:
    (2) Closure: June 1-July 31.
    (l) Southeast Alaska.
    (1) Community of Hoonah (Harvest area: National Forest lands in Icy 
Strait and Cross Sound, including Middle Pass Rock near the Inian 
Islands, Table Rock in Cross Sound, and other traditional locations on 
the coast of Yakobi Island. The land and waters of Glacier Bay National 
Park remain closed to all subsistence harvesting (50 CFR 100.3(a)):
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
30.
    (ii) Closure: July 1-August 31.
    (2) Communities of Craig and Hydaburg (Harvest area: small islands 
and adjacent shoreline of western Prince of Wales Island from Point 
Baker to Cape Chacon, but also including Coronation and Warren 
islands):
    (i) Season: Glaucous-winged gull egg gathering only: May 15-June 
30.
    (ii) Closure: July 1-August 31.
    (3) Community of Yakutat (Harvest area: Icy Bay (Icy Cape to Point 
Riou), and coastal lands and islands bordering the Gulf of Alaska from 
Point Manby southeast to Dry Bay):
    (i) Season: Glaucous-winged gull egg gathering: May 15-June 30.
    (ii) Closure: July 1-August 31.
    3. Amend subpart D by adding Sec.  92.32 to read as follows:


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

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

    Dated: October 17, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-28556 Filed 11-2-11; 8:45 am]
BILLING CODE 4310-55-P