[Federal Register Volume 82, Number 140 (Monday, July 24, 2017)]
[Rules and Regulations]
[Pages 34263-34271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15465]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 92

[Docket No. FWS-R7-MB-2015-0172; FF07M01000-178-FXMB12310700000]
RIN 1018-BB24


Migratory Bird Subsistence Harvest in Alaska; Use of Inedible 
Bird Parts in Authentic Alaska Native Handicrafts for Sale

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is amending 
the permanent migratory bird subsistence-harvest regulations in Alaska. 
This rule enables Alaska Natives to sell authentic native articles of 
handicraft or clothing that contain inedible byproducts from migratory 
birds that were taken for food during the Alaska migratory bird 
subsistence-harvest season. This rule was developed under a co-
management process involving the Service, the Alaska Department of Fish 
and Game, and Alaska Native representatives.

DATES: This rule is effective August 23, 2017.

FOR FURTHER INFORMATION CONTACT: Donna Dewhurst, U.S. Fish and Wildlife 
Service, 1011 E. Tudor Road, Mail Stop

[[Page 34264]]

201, Anchorage, AK 99503; (907) 786-3499.

SUPPLEMENTARY INFORMATION: 

Background

    We are amending the permanent migratory bird subsistence-harvest 
regulations in Alaska. This rule was developed under a co-management 
process involving the Service, the Alaska Department of Fish and Game, 
and Alaska Native representatives.
    The Alaska Migratory Bird Co-management Council (Co-management 
Council) held meetings on April 8-9, 2015, to develop recommendations 
for changes that would take effect starting during the 2016 harvest 
season. Changes were recommended for the permanent regulations at 
subpart A of Title 50 of the Code of Federal Regulations (CFR) at 50 
CFR part 92 to allow sale of handicrafts that contain the inedible 
parts of birds taken for food during the Alaska spring and summer 
migratory bird subsistence harvest. These recommended changes were 
presented first to the Pacific Flyway Council and then to the Service 
Regulations Committee (SRC) for approval at the committee's meeting on 
July 31, 2015.
    We published a proposed rule to make the recommended changes to the 
regulations at subpart A of 50 CFR part 92 on June 17, 2016 (81 FR 
39618). We accepted public comments on the proposed rule for 60 days, 
ending August 16, 2016. A summary of the comments we received, and our 
responses to them, is provided below, under Summary of Comments and 
Responses.

This Final Rule

    This rule amends the regulations at 50 CFR 92.6 to enable Alaska 
Natives to sell authentic native articles of handicraft or clothing 
that contain inedible byproducts from migratory birds that were taken 
for food during the Alaska migratory bird subsistence-harvest season.
    At 50 CFR 92.4, we are adding definitions for ``Authentic Native 
article of handicraft or clothing,'' ``Migratory birds authorized for 
use in handicrafts or clothing,'' and ``Sale by consignment.'' We add 
these definitions to explain the terms we use in our changes to 50 CFR 
92.6, which are explained below.
    We are adding a provision to 50 CFR 92.6 to allow sale of 
handicrafts that contain the inedible parts of birds taken for food 
during the Alaska spring and summer migratory bird subsistence harvest. 
A request was made by Alaska Native artisans in Kodiak to use the 
inedible parts, primarily feathers, from birds taken for food during 
the subsistence hunt, and incorporate them into handicrafts for sale. 
Our June 17, 2016, proposed rule (81 FR 39618) was developed in a 
process involving a committee composed of Alaska Native representatives 
from Yukon-Kuskokwim Delta, Bering Straits, North Slope, Kodiak, 
Bristol Bay, Gulf of Alaska, Aleutian-Pribilof Islands, and Northwest 
Arctic; representatives from the Alaska Department of Fish and Game; 
and Service personnel.
    We derive our authority to issue these regulations from the four 
migratory bird treaties with Canada, Mexico, Japan, and Russia and from 
the Migratory Bird Treaty Act (MBTA) of 1918 (16 U.S.C. 703 et seq.). 
Specifically, we are issuing this final rule pursuant to 16 U.S.C. 
712(1), which authorizes the Secretary of the Interior, in accordance 
with these four treaties, to ``issue such regulations as may be 
necessary to assure that the taking of migratory birds and the 
collection of their eggs, by the indigenous inhabitants of the State of 
Alaska, shall be permitted for their own nutritional and other 
essential needs, as determined by the Secretary of the Interior, during 
seasons established so as to provide for the preservation and 
maintenance of stocks of migratory birds.'' Article II(4)(b) of the 
Protocol between the United States and Canada amending the 1916 
Convention for the Protection of Migratory Birds in Canada and the 
United States (``the Protocol'') provides a legal basis for Alaska 
Natives to be able to sell handicrafts that contain the inedible parts 
of birds taken for food during the Alaska spring and summer migratory 
bird subsistence harvest. The Letter of Submittal dated May 20, 1996, 
for the Treaty Protocol states: ``The provisions of Article II(4)(b) 
will be implemented so that birds are taken only for food. Non-edible 
by-products of birds taken for nutritional purposes incorporated into 
authentic articles of handicraft by Alaska Natives may be sold in 
strictly limited situations and pursuant to a regulation by the 
competent authority in cooperation with management bodies. Regulations 
allowing such harvest will be consistent with the customary and 
traditional uses of indigenous inhabitants for their nutritional and 
essential needs.''
    Allowing Alaska Natives a limited sale of handicrafts containing 
inedible migratory bird parts provides a small source of additional 
income that we conclude is necessary for the ``essential needs'' of 
Alaska Natives in predominantly rural Alaska. Moreover, we conclude, 
consistent with the language of the Protocol and as expressly noted in 
the Letter of Submittal, that this limited opportunity for sale is 
consistent with the customary and traditional uses of Alaska Natives. 
Finally, we conclude this regulation is consistent with the 
preservation and maintenance of migratory bird stocks. We previously 
concluded that our subsistence-hunting-season regulations at 50 CFR 
part 92 (issued most recently as the Migratory Bird Subsistence Harvest 
in Alaska; Harvest Regulations for Migratory Birds in Alaska During the 
2016 Season, April 1, 2016, 81 FR 18781) are consistent with the 
preservation and maintenance of migratory bird stocks. Here, this rule 
provides for only the additional use of inedible parts of certain 
species acquired during the legal Alaska subsistence harvest, not any 
additional hunting. Although we recognize that it is possible that this 
rule might provide an incentive for Alaska Natives to engage in 
additional harvest for nutritional purposes, we conclude that any such 
effect will be minimal. In addition, Alaska migratory bird subsistence 
harvest rates have continued to decline since the inception of the 
subsistence-harvest program, reducing concerns about the program's 
consistency with the preservation and maintenance of stocks of 
migratory birds. In the unlikely event that any of the 27 species of 
birds allowed show substantial population declines, FWS retains the 
ability both remove the eligible species at issue from Sec.  92.6(b), 
and/or to close the subsistence hunt under Sec.  92.21.
    The biggest challenge was developing a list of migratory birds that 
could be used in handicrafts. This required cross-referencing 
restricted species listed in the Treaties with Russia, Canada, Mexico, 
and Japan with those allowed to be taken in the subsistence harvest. 
Recognizing that the Japan Treaty was the most restrictive, the 
committee compiled a list of 27 species of migratory birds from which 
inedible parts could be used in handicrafts for sale. We proposed to 
allow the limited sale, including consignment sale, by Alaska Natives 
of handicrafts made using migratory bird parts. Our proposal included a 
requirement for the artist's tribal certification or Silver Hand 
insignia to limit counterfeiting of handicrafts.

Who is eligible to sell handicrafts containing migratory bird parts 
under this rule?

    Under Article II(4)(b) of the Protocol between the United States 
and Canada amending the 1916 Convention for the Protection of Migratory 
Birds in Canada and the United States, only Alaska

[[Page 34265]]

Natives are eligible to sell handicrafts that contain the inedible 
parts of birds taken for food during the Alaska spring and summer 
migratory bird subsistence harvest. The Protocol also dictates that 
sales will be under a strictly limited situation. Eligibility will be 
shown by a Tribal Enrollment Card, Bureau of Indian Affairs card, or 
membership in the Silver Hand program. The State of Alaska Silver Hand 
program helps Alaska Native artists promote their work in the 
marketplace and enables consumers to identify and purchase authentic 
Alaska Native art. The insignia indicates that the artwork on which it 
appears is created by hand in Alaska by an individual Alaska Native 
artist. Only original contemporary and traditional Alaska Native 
artwork, not reproductions or manufactured work, may be identified and 
marketed with the Silver Hand insignia. To be eligible for a 2-year 
Silver Hand permit, an Alaska Native artist must be a full-time 
resident of Alaska, be at least 18 years old, and provide documentation 
of membership in a federally recognized Alaska Native tribe. The Silver 
Hand insignia may only be attached to original work that is produced in 
the State of Alaska.

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

    Under this rule, Alaska Natives are permitted to only sell 
authentic native articles of handicraft or clothing that contain an 
inedible byproduct of migratory birds that were taken for food during 
the Alaska migratory bird subsistence-harvest season. Harvest and 
possession of these migratory birds must be conducted using nonwasteful 
taking.
    Under this rule, handicrafts may contain inedible byproducts from 
only bird species listed at 50 CFR 92.6(b)(1) that were taken for food 
during the Alaska migratory bird subsistence-harvest season. This list 
of 27 migratory bird species came from cross-referencing restricted 
(from sale) species listed in the Treaties with Russia, Canada, Mexico, 
and Japan with those allowed to be taken in the subsistence harvest. 
The migratory bird treaty with Japan was the most restrictive and thus 
dictated the subsistence harvest species from which inedible parts 
could be used in handicrafts for sale. None of the 27 species are 
currently ESA listed, are proposed for listing or are candidates for 
listing. In addition, all sales and transportation of sold items are 
restricted to within the United States (including territories).
    We have monitored subsistence harvest for over 25 years through the 
use of household surveys in the most heavily used subsistence harvest 
areas, such as the Yukon-Kuskokwim Delta. In recent years, more 
intensive harvest surveys combined with outreach efforts focused on 
species identification have been added to improve the accuracy of 
information gathered.

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 all forms of subsistence 
harvest and thus are not authorized to have their inedible parts used 
to make handicrafts for sale. Though use of both king and common eiders 
is permitted by this regulation, we do not expect that this regulation 
will have an adverse impact on listed eiders because: Listed eider 
density in the subsistence-hunt area is low; effects of waterfowl 
substance harvest are periodically evaluated; listed eiders remain 
closed to harvest under the MBTA; and we do not expect increased 
harvest of migratory birds, and consequently listed eiders.

Endangered Species Act Consideration

    Section 7 of the Endangered Species Act (16 U.S.C. 1536) requires 
the Secretary of the Interior to ``review other programs administered 
by him and utilize such programs in furtherance of the purposes of the 
Act'' and to ``insure that any action authorized, funded, or carried 
out * * * is not likely to jeopardize the continued existence of any 
endangered species or threatened species or result in the destruction 
or adverse modification of [critical] habitat.'' We conducted an intra-
agency consultation with the Service's Fairbanks Fish and Wildlife 
Field Office on this action as it will be managed in accordance with 
this final rule and the conservation measures. The consultation on 
handicraft sales was completed with a Letter of Concurrence dated 
December 29, 2015 on a not-likely-to-adversely-affect determination for 
spectacled and Steller's eiders.

Summary of Comments and Responses

    On June 17, 2016, we published in the Federal Register a proposed 
rule (81 FR 39618) to amend our regulations to allow Alaska Natives to 
sell authentic Native articles of handicraft or clothing that contain 
inedible byproducts from migratory birds taken for food during the 
Alaska spring and summer migratory bird subsistence harvest. We 
accepted public comments on the proposed rule for 60 days, ending 
August 16, 2016. We posted an announcement of the comment-period dates 
for the proposed rule, as well as the rule itself and related 
historical documents, on the Co-management Council's Internet homepage. 
By facsimile (fax), we issued a press release, announcing our request 
for public comments and the pertinent deadlines for such comments, to 
the media Statewide in Alaska. Additionally, we made all relevant 
documents available on http://www.regulations.gov. In response to the 
proposed rule, the Service received 6 responses. The comments are 
addressed below by topic.
    Comment (1): We received one comment strongly supporting the 
proposed rule and commending the co-management process that led to its 
development.
    Service Response: We thank the commenter for the show of support 
for this process.
    Comment (2): We received one comment questioning how we would 
ensure that birds taken for inedible parts are not wasted.
    Service Response: This rule allows the use in handicrafts of 
inedible parts obtained from migratory birds that have been taken for 
human consumption. The rule does not allow birds to be taken only for 
their inedible parts. Moreover, the regulations at 50 CFR 92.6(a) 
require that all migratory birds harvested for subsistence be taken 
using nonwasteful techniques, meaning that all edible meat must be 
retained until the birds have been transported to where they will be 
consumed, processed, or preserved as human food (see definition of 
Nonwasteful taking at 50 CFR 92.4). Using the inedible parts in craft-
making does not exempt the taking from this requirement.
    Comment (3): We received one comment questioning who would be going 
to the gift shops and identifying the specific species taken and how 
they will identify species from the feathers only. The commenter added 
that it is already difficult to protect Alaska Native crafts from being 
made by non-Native crafters, and that the proposed rule would bring 
further complications and more need for enforcement that is not 
available.
    Service Response: Our law enforcement agents are trained to 
identify migratory birds from feathers and other parts. As always, our 
agents will monitor the trade by proactive enforcement and by 
responding to

[[Page 34266]]

information provided by concerned citizens. As for the concern of non-
Native crafters, the Silver Hand program will aid in identifying crafts 
made from Alaska Natives. Also see our response below on Comment (8) on 
the authentication requirements.
    Comment (4): We received one comment stating that the proposed rule 
declined to list individual Alaska Native entities consulted with, and 
that the consultation appeared to leave out all Athabaskan people.
    Service Response: Consistent with Executive Order 13175 (65 FR 
67249; November 6, 2000), titled ``Consultation and Coordination with 
Indian Tribal Governments,'' and with the Department of the Interior 
Policy on Consultation with Indian Tribes (Secretarial Order No. 3317; 
December 1, 2011), on June 23, 2016, we sent letters via electronic 
mail to all 229 Alaska Federally recognized Indian tribes, including 
Athabaskan tribes (which we sent to their official email address), 
soliciting their input as to whether or not they would like the Service 
to consult with them on the proposed rule to enable Alaska Natives to 
sell authentic native articles of handicraft or clothing that contain 
inedible byproducts from migratory birds. Consistent with Congressional 
direction (Pub. L. 108-199, div. H, sec. 161, Jan. 23, 2004, 118 Stat. 
452, as amended by Pub. L. 108-447, div. H, title V, sec. 518, Dec. 8, 
2004, 118 Stat. 3267), we also sent similar letters to approximately 
200 Alaska Native corporations and other tribal entities Statewide in 
Alaska. We did not receive any requests to consult.
    Comment (5): We received two comments that stated that the proposed 
rule opens up commercial use of migratory birds for the first time and 
is at odds with the language of the Migratory Bird Treaty Act and the 
Treaty Protocols. The commenters stated that if we amend our 
regulations, which already provide for harvest for food, so as to allow 
commercial sale of bird parts, we must make the two required findings 
that doing so is necessary to provide for ``essential needs'' of Alaska 
Natives and is also consistent with the ``preservation and maintenance 
of stocks of migratory birds.'' The commenters further stated that 
nowhere in Article II(4)(b) of the Protocol is commercial sale 
authorized.
    Service Response: The commenter is correct that the Article 
II(4)(b) does not expressly authorize commercial sale. However, Article 
II(4)(b)(i) recognizes the authority of the United States to promulgate 
``other regulations'' regarding take that are ``consistent with the 
customary and traditional uses [of Alaska Natives for their] other 
essential needs.'' Any ambiguity as to whether the Protocol 
contemplates commercial sale is resolved by the Letter of Submittal 
discussed above. Allowing Alaska Natives a limited sale of handicrafts 
containing inedible migratory bird parts provides a small source of 
additional income that would meet ``essential needs'' in predominantly 
rural Alaska. Similarly, Senate Report 105-5 recognized this in that 
``Commercial use would not be permitted aside from limited sales of 
inedible by-products of birds taken for food which are then 
incorporated into authentic, traditional handicraft items. Such use 
would be strictly controlled by the competent authorities. This 
interpretation of takings for ``nutritional and other essential needs'' 
can also be traced back to the U.S.-U.S.S.R. Treaty.'' The MBTA itself 
allows the Secretary to issue regulations necessary to assure that 
taking by Alaska Natives will be permitted for their ``nutritional and 
other essential needs, as determined by the Secretary . . ., during 
seasons established so as to provide for the preservation and 
maintenance of stocks of migratory birds.'' 16 U.S.C. 712(1).
    As discussed in the ``This Final Rule'' section, above, we have 
concluded that this regulation is necessary for the essential needs of 
Alaska Natives, and that this regulation, and the underlying take for 
nutritional purposes, is consistent with the preservation and 
maintenance of migratory bird stocks. To the extent that the commenters 
are asserting that we are required to issue separate, formal 
``findings'' documents, we disagree. Nothing in the Protocol or the 
MBTA suggests such a requirement.
    Comment (6): We received one comment that the proposed rule only 
addresses inedible bird parts that were obtained through the 
subsistence harvest and does not address commercial use of inedible 
bird parts obtained without taking birds.
    Service Response: Article II(4)(b) of the Protocol between the 
United States and Canada amending the 1916 Convention for the 
Protection of Migratory Birds in Canada and the United States (``the 
Protocol'') provides a legal basis for Alaska Natives to be able to 
sell handicrafts that contain the inedible parts of birds taken for 
food during the Alaska spring and summer migratory bird subsistence 
harvest. The Protocol also dictates that sales must be under a strictly 
limited situation pursuant to a regulation by a competent authority in 
cooperation with management bodies. The Protocol does not authorize the 
taking of migratory birds for commercial purposes. Under the Protocol, 
only Alaska Natives are eligible to sell handicrafts that contain the 
inedible parts of birds taken for food during the Alaska spring and 
summer migratory bird subsistence harvest.
    We interpret Article II(4)(b) to narrowly require the use of bird 
parts be from birds taken as part of the subsistence harvest, and use 
of bird parts obtained in any other manner (found parts) would not be 
allowed. The Protocol discusses subsistence hunting and, as explained 
by the Letter of Submittal, specifically allows only for the ``sale of 
non-edible byproducts of birds taken for nutritional purposes 
incorporated into authentic articles of handicraft.'' The Protocol does 
not expand the sale of non-edible bird parts in to handicraft for birds 
parts obtained in any other manner.
    Comment (7): One commenter stated that other than its publication 
in the Federal Register, they were unaware of the Service providing 
meaningful public notice of the rulemaking and felt that the Service 
should reopen the comment period and provide broader notice of the 
proposed rule's availability to more meaningfully engage those members 
of the public.
    Service Response: We published our proposed rule in the Federal 
Register on June 17, 2016 (81 FR 39618). The Federal Register is the 
official daily publication for rules, proposed rules, and notices of 
Federal agencies and organizations, as well as Executive Orders and 
other presidential documents. One purpose of Federal Register 
publication is to give interested persons an opportunity to participate 
in the rulemaking process prior to the adoption of a final rule. We 
accepted public comments on our June 17, 2016, proposed rule for 60 
days, ending August 16, 2016.
    In addition, we posted an announcement of the comment period dates 
for the proposed rule, as well as the rule itself and related 
historical documents, on the Co-management Council's Web site at http://www.fws.gov/alaska/ambcc/news.htm. By facsimile (fax), we issued a 
press release, announcing our request for public comments and the 
pertinent deadlines for such comments, to the media Statewide in 
Alaska. Further, we made all relevant documents available on http://www.regulations.gov. These measures constitute adequate notice of our 
proposed amendments to the regulations, and we thus provided adequate 
opportunities for meaningful engagement to members of the public in the 
rulemaking process.

[[Page 34267]]

    Comment (8): The Service should consider whether and how allowing 
the commercial trade in otherwise protected bird parts under the 
proposed rule could inadvertently serve as a vehicle to provide cover 
for broader unlawful trade in bird parts both in Alaska and elsewhere.
    Service Response: Each handicraft item for sale must be accompanied 
by authentication that it was created by an Alaska Native craft person. 
These items can be sold by the Alaska Native themselves or by a 
consignee for the Native craft person, and cannot be resold. The Indian 
Arts and Crafts Act of 1990 (Pub. L. 101-644) is a truth-in-advertising 
law that prohibits misrepresentation in marketing of Indian arts and 
crafts products within the United States. It is illegal to offer or 
display for sale, or sell any art or craft product in a manner that 
falsely suggests it is Indian produced, an Indian product, or the 
product of a particular Indian or Indian Tribe or Indian arts and 
crafts organization, resident within the United States. For a first-
time violation of the Act, an individual can face civil or criminal 
penalties of up to $250,000 in fines and 5-year prison term. Also, see 
the above Comment (3) on law enforcements efforts to identify bird 
parts.
    Comment (9): One commenter was concerned that the proposed rule 
would set a precedent for allowing the commercialization of migratory 
birds. The commenter believes that allowing such sales would increase 
the potential for other requests in the future, especially from tribal 
members in the lower 48 States that also make handicrafts.
    Service Response: The proposed rule, and this final rule, is 
authorized by Treaty Protocol specific to Alaska. The Letter of 
Submittal dated May 20, 1996, for the Treaty Protocol, specifically 
Article II(4)(b) of the Protocol between the United States and Canada 
amending the 1916 Convention for the Protection of Migratory Birds in 
Canada and the United States (``the Protocol'') provides a legal basis 
for Alaska Natives to be able to sell handicrafts that contain the 
inedible parts of birds taken for food during the Alaska spring and 
summer migratory bird subsistence harvest. See above Comments (5) and 
(6) for more on the Protocol. Expanding this opportunity to sales by 
other American Native tribes would require new, additional 
congressional legislation for authorization.
    Comment (10): We received one comment stating that the proposed 
rule is subject to insufficient public and environmental review under 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
    Service Response: Article II(b)(ii) of the amended Treaty Protocol 
specifies that ``indigenous inhabitants of the State of Alaska shall be 
afforded an effective and meaningful role in the conservation of 
migratory birds including the development and implementation of 
regulations affecting the non-wasteful taking of migratory birds and 
the collection of their eggs, by participating on relevant management 
bodies.'' In response to the direction of the Protocol, in 1998, 
Service initiated Statewide public meetings in Alaska to determine what 
system of implementation would best meet the needs of the local 
harvesters. Based on input from the public process, the Service 
established an organizational structure to meet the mandates of the 
Treaty. That structure is composed of three key elements. First, the 
Alaska Migratory Bird Co-management Council (Co-management Council) was 
established including Federal, State, and Alaska Native. Second, 
regional management bodies, consisting of local people, were 
established. The regional bodies provide representatives to the Co-
management Council. Third, partner organizations were identified within 
each region; these partner organizations are responsible for compiling 
and coordinating communications between their local residents and the 
Council.
    In December 2011 Alaska Native artisans in Kodiak requested to be 
authorized to use the nonedible parts, mostly feathers, from birds 
taken for food during the subsistence hunt, and incorporate them into 
handicrafts for sale. Over a 4-year period, proposed regulations were 
developed in a process involving a committee composed of Alaska Native 
representatives from eight rural regions in Alaska (Yukon-Kuskokwim 
Delta, Bering Straits-Norton Sound, North Slope, Kodiak, Bristol Bay, 
Gulf of Alaska, Aleutian-Pribilof Islands, Northwest Arctic) and 
representatives from the Alaska Department of Fish and Game and the 
Service. This lengthy process involved over 45 public meetings over the 
course of the development period. All public meetings were announced in 
advance via press releases.
    Regarding the environmental review, we prepared an environmental 
assessment (EA) and made it available for public review during the 
comment period on the June 17, 2016, proposed rule (81 FR 39618). We 
received one public comment specific to the analysis contained in our 
EA (see Comment (11), below). After evaluation of the public comment, 
we made a finding of no significant impact (FONSI) for this final rule, 
in accordance with 43 CFR 46.325. Thus, we have met the requirements of 
NEPA.
    Comment (11): One commenter pointed out that the environmental 
assessment did not include a detailed analysis of the species proposed 
for harvest including population size, harvest levels, and what impacts 
harvest might have on these species. In addition, the commenter stated 
that there should have been an additional alternative discussed: To 
open the commercial use of inedible parts only from birds with 
populations known to be stable or increasing.
    Service Response: This rule allows inedible byproducts of certain 
migratory birds taken for food during the Alaska migratory bird 
subsistence harvest to be used in the making of authentic Native 
articles of handicraft or clothing. The relevant migratory bird species 
are set forth at 50 CFR 92.6(b)(1). The 2016 annual subsistence harvest 
regulations are covered in an October 2015 environmental assessment 
(EA), ``Managing Migratory Bird Subsistence Hunting in Alaska: Hunting 
Regulations for the 2016 Spring/Summer Harvest,'' dated October 9, 
2015. A thorough description of the affected environment of the 
subsistence harvest is included in this EA, which covers the migratory 
bird resource, including: Population information; relationship of 
Alaska subsistence and waterfowl to the four flyways and Canada; 
relationship of Alaska subsistence and seabirds to the Pacific Flyway, 
Canada, and Russia; migratory bird habitat; involved peoples; and the 
social-economic characteristics of the Alaska subsistence migratory 
bird harvests.
    There is some overlap between species eligible to be harvested in 
the subsistence harvest and the list of Service's Birds of Conservation 
Concern (2008). We discussed this issue in a final rule published in 
the Federal Register on April 2, 2004 (69 FR 17318). If an alternative 
had been posed in the EA to allow use of inedible parts only from bird 
species known to be stable or increasing, it would significantly 
undermine the intended purpose of the proposed regulations, which is to 
allow the productive use in handicrafts of inedible parts of birds, 
taken for subsistence purposes, to help Alaska Natives meet their 
essential needs. We do not expect that allowing Alaska Natives a 
limited sale of handicrafts containing inedible parts of migratory 
birds taken during the subsistence season will significantly increase 
harvest rates or have a significant impact on any of the bird species 
listed

[[Page 34268]]

at 50 CFR 92.6(b)(1) or on the environment. There are several reasons 
for this. First, Alaska subsistence harvest rates have continued to 
decline over the past years, similarly to declining Alaska sport-
hunting harvest rates. Second, as discussed above, handcraft items must 
be created by hand by an Alaska Native, so there would be limited 
producers of handicrafts. Third, product sales will be limited to being 
conducted by Alaska Natives or their consignees. Fourth, the market for 
traditional Alaska Native art is limited and not a major item of 
commerce, especially when international sale is prohibited. Also, 
continued monitoring of the subsistence harvest will enable tracking 
trends in harvest levels. Thus in the unlikely event that any of the 27 
species of birds allowed show substantial population declines, FWS 
retains the ability both to remove the eligible species at issue from 
Sec.  92.6(b), and to close the subsistence hunt under Sec.  92.21.
    Comment (12): One commenter was concerned that the Service has a 
limited ability to track subsistence harvest in Alaska and also has no 
mechanism in place to monitor changes in bird population levels in 
response to this new activity. The commenter also felt that the Service 
should specify what levels of harvest and/or bird abundance would 
trigger a regulatory response to ensure conservation of individual 
species.
    Service Response: We have monitored subsistence harvest for the 
past 25 years through the use of 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 reporting some 
subsistence harvest of threatened species. Future survey efforts will 
concentrate on providing Statewide estimates of harvest.
    As for monitoring bird population levels, the Service's Migratory 
Bird Program and its partners developed and continue to carry out a 
long-term comprehensive survey of migratory bird abundance, the Aerial 
Waterfowl Breeding Population and Habitat Survey. This survey monitors 
changes in waterfowl population levels throughout North America, 
including all primary waterfowl production areas in Alaska. Additional 
breeding-population surveys on the Yukon Delta and the Arctic Coastal 
Plain provide annual assessments of waterfowl population size and trend 
with relatively high levels of precision. Because migratory birds range 
widely over their annual cycles within Alaska, the Service also 
conducts monitoring surveys during migration and midwinter periods. 
Results from these surveys are reported annually to the Flyways and are 
posted on Service's Web site at: https://www.fws.gov/birds/news/160810waterfowl-status.php.
    We do not agree that setting express numerical triggers for a 
regulatory response would be helpful. Under 50 CFR 92.21, the Service 
has the authority to close, on an emergency basis, any subsistence 
harvest activity upon finding that the activity poses an imminent 
threat to the conservation of any endangered or threatened bird species 
or other migratory bird population. None of the 27 species are 
currently ESA listed, proposed for listing, or candidates for listing.
    Comment (13): One commenter was concerned that the proposed 
regulations would increase the harvest for the sole purpose of profit 
and would expand the economic market for use of the inedible bird parts 
in Native handicrafts.
    Service Response: Under this rule, handicrafts may contain inedible 
byproducts from only birds taken for food during the Alaska migratory 
bird subsistence harvest season. We do not expect that allowing Alaska 
Natives a limited sale of handicrafts containing inedible parts of 
migratory birds taken during the subsistence season will significantly 
increase migratory bird harvest rates. There are several reasons for 
this. First, Alaska subsistence harvest rates have continued to decline 
over the past years. Second, as discussed above, handcraft items must 
be created by hand by an Alaska Native, so there would be limited 
producers of handicrafts. Third, product sales will be limited to being 
conducted by Alaska Natives or their consignees. Fourth, the market for 
traditional Alaska Native art is limited and not a major item of 
commerce, especially when international sale is prohibited. This rule 
will increase the market for Alaska Native handicrafts containing 
inedible bird parts given currently there is no legal market; however, 
we conclude that the increase will not pose a significant environmental 
impact. Our law enforcement agents will be monitoring sales closely 
during and after implementation. Also, continued monitoring of the 
subsistence harvest will enable tracking trends in harvest levels.

Summary of Changes From Proposed Rule

    We amended the last sentence for clarification in the definition of 
``Sales by Consignment'' to: The consignment seller need not be an 
Alaska Native and the Alaska Native craftsman retains ownership of the 
item and will receive money for the item when it is sold. We then also 
struck ``(Alaska Native or non-Alaska Native)'' from the beginning of 
the definition.

Statutory Authority

    We derive our authority to issue these regulations from the 
Migratory Bird Treaty Act of 1918, at 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.''
    Article II(4)(b) of the Protocol between the United States and 
Canada amending the 1916 Convention for the Protection of Migratory 
Birds in Canada and the United States provides a legal basis for Alaska 
Natives to be able sell handicrafts that contain the inedible parts of 
birds taken for food during the Alaska spring and summer migratory bird 
subsistence harvest. The Protocol also dictates that sales would be 
under a strictly limited situation pursuant to a regulation by a 
competent authority in cooperation with management bodies. The Protocol 
does not authorize the taking of migratory birds for commercial 
purposes.

Required Determinations

Executive Order 13771

    This final rule is considered to be an Executive Order (E.O.) 13771 
deregulatory action (82 FR 9339, February 3, 2017). The net benefits 
associated with the implementation of this final rule are estimated to 
be $362,200 per year.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs (OIRA) will review all significant rules. The OIRA has 
determined that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for

[[Page 34269]]

improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)), 
whenever a Federal agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions) (5 U.S.C. 601 et 
seq.). However, no regulatory flexibility analysis is required if the 
head of an agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. Thus, for a 
regulatory flexibility analysis to be required, impacts must exceed a 
threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA 
amended the Regulatory Flexibility Act to require Federal agencies to 
provide a statement of the factual basis for certifying that a rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This final rule will affect Alaska Natives selling authentic native 
articles of handicraft or clothing such as headdresses, native masks, 
and earrings. We estimate that the majority of Alaska natives selling 
authentic native articles of handicraft or clothing are small 
businesses. Alaska Native small businesses within the manufacturing 
industry, such as Pottery, Ceramics, and Plumbing Fixture Manufacturing 
(NAICS 327110 small businesses have <750 employees), Leather and Hide 
Tanning and Finishing (NAICS 316110), Jewelry and Silverware 
Manufacturing (NAICS 339910 small businesses have <500 employees), and 
all other Miscellaneous Wood Product Manufacturing (NAICS 321999 small 
businesses have <500 employees), may benefit from some increased 
revenues generated by additional sales. We expect that additional sales 
or revenue will be generated by Alaska Native small businesses 
embellishing or adding feathers to some of the existing handicrafts, 
which may slightly increase profit. The number of small businesses 
potentially impacted can be estimated by using data from the Alaska 
State Council of the Arts, which reviews Silver Hand permits. 
Currently, there are about 1,800 Silver Hand permit holders, of which 
less than 1 percent sell more than 100 items annually, and they 
represent a small number of businesses within the manufacturing 
industry. Due to the small number of small businesses affected and the 
small increase in overall revenue anticipated from this final rule, it 
is unlikely that a substantial number of small entities will have more 
than a small economic effect (benefit). Therefore, we certify that this 
rule will not have a significant economic effect on a substantial 
number of small entities as defined under the Regulatory Flexibility 
Act. Therefore, a regulatory flexibility analysis is not required. 
Accordingly, a small entity compliance guide is not required.

Small Business Regulatory Enforcement Fairness Act

    This final 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. Alaska Native tribes will have a small economic benefit 
through being allowed to incorporate inedible bird parts into their 
authentic handicrafts or handmade clothing and to sell the products. 
However, the birds must have been harvested for food as part of the 
existing subsistence hunt, and only a limited list of 27 species may be 
used. The intent is to allow limited benefits from salvage of the 
inedible parts, not to provide an incentive for increasing the harvest. 
This rule should not result in a substantial increase in subsistence 
harvest or a significant change in harvesting patterns. The commodities 
regulated under this final rule are inedible parts of migratory birds 
taken for food under the subsistence harvest that are incorporated into 
Native handicrafts. Most, if not all, businesses that sell the 
authentic Alaska Native handicrafts qualify as small businesses. We 
have no reason to believe that this final 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 final rule does deal with the 
sale of authentic Alaska Native handicrafts, but should not have any 
impact on prices for consumers.
    (c) Will 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 
final rule does not regulate the marketplace in any way to generate 
substantial 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 final 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 final 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.

Takings (Executive Order 12630)

    Under the criteria in E.O. 12630, this final rule will not have 
significant takings implications. This final rule is not specific to 
particular land ownership, but applies to the use of the inedible parts 
of 27 migratory bird species in authentic Alaska Native handicrafts. A 
takings implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in E.O. 13132, this final rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. We worked with the State of Alaska 
to develop this final rule.

Civil Justice Reform (Executive Order 12988)

    The Department, in promulgating this final 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 E.O. 12988.

Government-to-Government Relations With Native American Tribal 
Governments

    Consistent with E.O. 13175 (65 FR 67249; November 6, 2000), titled 
``Consultation and Coordination with Indian Tribal Governments,'' and 
Department of the Interior Policy on

[[Page 34270]]

Consultation with Indian Tribes (December 1, 2011), on June 23, 2016, 
we sent letters via electronic mail to all 229 Alaska Federally 
recognized Indian tribes soliciting their input as to whether or not 
they would like the Service to consult with them on the proposed 
regulations to allow Alaska Natives to sell authentic Native articles 
of handicraft or clothing that contain inedible byproducts from 
migratory birds that were taken for food during the Alaska migratory 
bird subsistence harvest (81 FR 39618; June 17, 2016). Consistent with 
Congressional direction (Pub. L. 108-199, div. H, sec. 161, Jan. 23, 
2004, 118 Stat. 452, as amended by Pub. L. 108-447, div. H, title V, 
sec. 518, Dec. 8, 2004, 118 Stat. 3267), we also sent similar letters 
to approximately 200 Alaska Native corporations and other tribal 
entities in Alaska. We did not receive any requests to consult.

Paperwork Reduction Act of 1995 (PRA)

    This final rule contains a collection of information that we have 
submitted to the Office of Management and Budget (OMB) for review and 
approval under the PRA (44 U.S.C. 3501 et seq.). We may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
OMB has reviewed and approved the information collection requirements 
in this rule and assigned OMB Control Number 1018-0168, which expires 
01/31/2020.
    This final rule requires that a certification (FWS Form 3-2484) or 
a Silver Hand insignia accompany each Alaska Native article of 
handicraft or clothing that contains inedible migratory bird parts. It 
also requires that all consignees, sellers, and purchasers retain this 
documentation with each item and produce it upon the request of a law 
enforcement officer. We have reviewed FWS Form 3-2484 and determined 
that it is a simple certification, which is not subject to the PRA. We 
are requesting that OMB approve the recordkeeping requirement to retain 
the certification or Silver Hand insignia with each item and the 
requirement that artists and sellers/consignees provide the 
documentation to buyers.
    Title: Alaska Native Handicrafts, 50 CFR 92.6.
    OMB Control Number: 1018-0168.
    Service Form Number(s): None.
    Type of Request: Request for a new OMB control number.
    Description of Respondents: Individuals and businesses.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: Ongoing.
    Estimated Number of Respondents: 8,749 (7,749 buyers and 1,000 
artists, sellers, and consignees).
    Estimated Number of Annual Responses: 18,081.
    Estimated Completion Time per Response: 5 minutes.
    Estimated Total Annual Burden Hours: 1,507 hours.
    Estimated Total Nonhour Burden Cost: None.
    We accepted public comments on the information collection aspects 
of our June 17, 2016, proposed rule for 30 days, ending July 18, 2016. 
We did not receive any comments on the information collection aspects 
of the proposed rule.
    The public may comment, at any time, on the accuracy of the 
information collection burden in this rule and may submit any comments 
to the Information Collection Clearance Officer, U.S. Fish and Wildlife 
Service, ATTN; BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

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

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This is not a significant 
regulatory action under this Executive Order. Further, we do not expect 
this final rule to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action under 
E.O. 13211, and a Statement of Energy Effects is not required.

List of Subjects in 50 CFR Part 92

    Hunting, Treaties, Wildlife.

Regulation Promulgation

    For the reasons set out in the preamble, we amend title 50, chapter 
I, subchapter G, of the Code of Federal Regulations as follows:

PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA

0
1. The authority citation for part 92 continues to read as follows:

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

0
2. Amend Sec.  92.4 by adding, in alphabetical order, definitions for 
``Authentic Native article of handicraft or clothing,'' ``Migratory 
birds authorized for use in handicrafts or clothing,'' and ``Sale by 
consignment'' to read as follows:


Sec.  92.4  Definitions.

* * * * *
    Authentic Native article of handicraft or clothing means any item 
created by an Alaska Native to which inedible parts of migratory birds 
authorized for use in handicrafts or clothing are incorporated and 
which is fashioned by hand, or with limited use of machines, provided 
no mass production occurs.
* * * * *
    Migratory birds authorized for use in handicrafts or clothing means 
the species of birds listed at Sec.  92.6(b) that were taken for food 
in a nonwasteful manner during the Alaska subsistence-harvest season by 
an eligible person of an included area.
* * * * *
    Sale by consignment means that an Alaska Native sends or supplies 
an authentic Native article of handicraft or clothing to a person who 
sells the item for the Alaska Native. The consignment seller need not 
be an Alaska Native and the Alaska Native craftsman retains ownership 
of the item and will receive money for the item when it is sold.
* * * * *

0
3. Revise Sec.  92.6 to read as follows:


Sec.  92.6  Use and possession of migratory birds.

    You may not sell, offer for sale, purchase, or offer to purchase 
migratory birds, their parts, or their eggs taken under this part, 
except as provided in this section.
    (a) Giving and receiving migratory birds. Under this part, you may 
take migratory birds for human consumption only. Harvest and possession 
of migratory birds must be conducted using nonwasteful taking. Edible 
meat of migratory birds may be given to immediate family members by 
eligible persons. Inedible byproducts of migratory birds taken for food 
may be used for other purposes, except that taxidermy is prohibited, 
and these byproducts may only be given to other eligible persons or 
Alaska Natives.
    (b) Authentic native articles of handicraft or clothing. (1) Under 
this section, authentic native articles of handicraft or clothing may 
be produced for sale only from the following bird species:
    (i) Tundra swan (Cygnus columbianus).
    (ii) Blue-winged teal (Anas discors).
    (iii) Redhead (Aythya americana).
    (iv) Ring-necked duck (Aythya collaris).
    (v) Greater scaup (Aythya marila).
    (vi) Lesser scaup (Aythya affinis).
    (vii) King eider (Somateria spectabilis).
    (viii) Common eider (Somateria mollissima).
    (ix) Surf scoter (Melanitta perspicillata).

[[Page 34271]]

    (x) White-winged scoter (Melanitta fusca).
    (xi) Barrow's goldeneye (Bucephala islandica).
    (xii) Hooded merganser (Lophodytes cucullatus).
    (xiii) Pacific loon (Gavia pacifica).
    (xiv) Common loon (Gavia immer).
    (xv) Double-crested cormorant (Phalacrocorax auritus).
    (xvi) Black oystercatcher (Haematopus bachmani).
    (xvii) Lesser yellowlegs (Tringa flavipes).
    (xviii) Semipalmated sandpiper (Calidris semipalmatus).
    (xix) Western sandpiper (Calidris mauri).
    (xx) Wilson's snipe (Gallinago delicata).
    (xxi) Bonaparte's gull (Larus philadelphia).
    (xxii) Mew gull (Larus canus).
    (xxiii) Red-legged kittiwake (Rissa brevirostris).
    (xxiv) Arctic tern (Sterna paradisaea).
    (xxv) Black guillemot (Cepphus grylle).
    (xxvi) Cassin's auklet (Ptychoramphus aleuticus).
    (xxvii) Great horned owl (Bubo virginianus).
    (2) Only Alaska Natives may sell or re-sell any authentic native 
article of handicraft or clothing that contains an inedible byproduct 
of a bird listed in paragraph (b)(1) of this section that was taken for 
food during the Alaska migratory bird subsistence harvest season. 
Eligibility under this paragraph (b)(2) can be shown by a Tribal 
Enrollment Card, Bureau of Indian Affairs card, or membership in the 
Silver Hand program. All sales and transportation of sold items are 
restricted to within the United States. Each sold item must be 
accompanied by either a certification (FWS Form 3-2484) signed by the 
artist or a Silver Hand insignia. Purchasers must retain this 
documentation and produce it upon the request of a law enforcement 
officer.
    (3) Sales by consignment are allowed. Each consigned item must be 
accompanied by either a certification (FWS Form 3-2484) signed by the 
artist or Silver Hand insignia. All consignees, sellers, and purchasers 
must retain this documentation with each item and produce it upon the 
request of a law enforcement officer. All consignment sales are 
restricted to within the United States.
    (4) The Office of Management and Budget reviewed and approved the 
information collection requirements contained in this section and 
assigned OMB Control No. 1018-0168. We use the information to monitor 
and enforce the regulations. We may not conduct or sponsor and you are 
not required to respond to a collection of information unless it 
displays a currently valid OMB control number. You may send comments on 
the information collection requirements to the Information Collection 
Clearance Officer, U.S. Fish and Wildlife Service, at the address 
listed at 50 CFR 2.1(b).

    Dated: June 13, 2017.
Virginia H. Johnson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-15465 Filed 7-21-17; 8:45 am]
 BILLING CODE 4333-15-P