[Federal Register Volume 67, Number 67 (Monday, April 8, 2002)]
[Proposed Rules]
[Pages 16707-16714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-8384]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 92
RIN 1018-AH88
Procedures for Establishing Spring/Summer Subsistence Harvest
Regulations for Migratory Birds in Alaska
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) proposes
regulations establishing procedures for implementing a spring/summer
migratory bird subsistence harvest in Alaska. The 1916 Convention for
the Protection of Migratory Birds Between the United States and Great
Britain (for Canada) established a closed season for the taking of
migratory birds between March 10 and September 1. Residents of northern
Alaska and Canada traditionally harvested migratory birds for
nutritional purposes during the spring and summer months. The
governments of Canada, Mexico, and the United States recently amended
the 1916 Convention and the subsequent 1936 Mexico Convention for the
Protection of Migratory Birds and Game Mammals. The amended treaties
provide for the legal subsistence harvest of migratory birds and their
eggs in Alaska and Canada during the closed season. The proposed
regulations would establish procedures for implementing that change and
for incorporating subsistence management into the continental migratory
bird management program.
DATES: We will accept written comments until May 24, 2002.
ADDRESSES: Address comments to Regional Director, Alaska Region, U.S.
Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska,
99503, Attention: Bob Stevens, Stop 201. Electronic comments may be
addressed to FW7__MB__Counsel@fws.gov.
FOR FURTHER INFORMATION CONTACT: Bob Stevens, 907/786-3499 or Bill
Ostrand, 907/786-3849, U.S. Fish and Wildlife Service, 1011 E. Tudor
Road, Stop 201, Anchorage, Alaska 99503.
SUPPLEMENTARY INFORMATION:
What Events Led to This Action?
By the beginning of the twentieth century, this nation began to
witness the depletion of many species of migratory birds. Commercial or
``market'' hunting took a significant toll as restaurant owners paid
top dollar for wild birds and the millinery industry demanded large
numbers of feathers for hats. Individual States did not establish
regulations or other management programs to adequately protect the
migratory bird resources.
In 1916, the United States and Great Britain (on behalf of Canada)
signed the Convention for the Protection of Migratory Birds in Canada
and the United States. The treaty prohibited market hunting and
specified a closed season on taking migratory game birds between March
10 and September 1 of each year. In 1936, the United States and Mexico
signed the Convention for the Protection of Migratory Birds and Game
Mammals. The Mexico treaty prohibited the taking of wild ducks between
March 10 and September 1. Neither treaty, however, took into account
and allowed for the traditional harvest of migratory birds by northern
indigenous people during the spring and summer months. This harvest,
which had occurred for centuries, was necessary to the subsistence
lifestyle of the northern people and thus continued despite the closed
season.
The Canada treaty and the Mexico treaty, as well as the other
migratory bird treaties with Japan (1972) and Russia (1976), have been
implemented in the United States through the Migratory Bird Treaty Act
(MBTA). The courts have construed the MBTA as prohibiting the Federal
government from permitting any harvest of migratory birds that is
inconsistent with the terms of any of the migratory bird treaties. The
restrictive terms of the Canada and Mexico treaties thus prevented the
Federal government from permitting the traditional subsistence harvest
of migratory birds during spring and summer in Alaska. To remedy this
situation the United States therefore negotiated Protocols amending
both the Canada and Mexico treaties to allow for spring/summer
subsistence harvest of migratory birds by indigenous inhabitants of
identified subsistence zones in Alaska. The U. S. Senate approved the
amendments to both treaties in 1997.
What Will the Amended Treaty Accomplish?
The major goals of the amended treaty with Canada are to allow for
traditional subsistence harvest and to improve conservation of
migratory birds by allowing effective regulation of this harvest. The
amended treaty with Canada allows permanent residents of villages
within subsistence harvest areas, regardless of race, to continue
harvesting migratory birds in the spring and summer as they have done
for thousands of years. It states that lands north and west of the
Alaska Range and within the Alaska Peninsula, Kodiak Archipelago, and
the Aleutian Islands generally qualify as subsistence harvest areas.
Treaty language provides for further refinement of this determination
by management bodies.
The amendments, however, are not intended to cause significant
increases in the take of migratory birds relative to their continental
population sizes. Therefore, the Canada treaty places limitations on
who is eligible to harvest and where they can harvest migratory birds.
Anchorage, the Matanuska-Susitna and Fairbanks North Star
[[Page 16708]]
Boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded
area, and Southeast Alaska generally do not qualify as subsistence
harvest areas. Limited exceptions may be made so that some individual
communities within these excluded areas could qualify for designation
as subsistence harvest areas for specific purposes. For example, future
regulations could allow some villages in Southeast Alaska to collect
gull eggs.
The amended treaty with Canada calls for creation of management
bodies to ensure an effective and meaningful role for Alaska's
indigenous inhabitants in the conservation of migratory birds.
Management bodies are to include Alaska Native, Federal, and State of
Alaska representatives as equals. They will develop recommendations
for, among other things: seasons and bag limits, methods and means of
take, law enforcement policies, population and harvest monitoring,
education programs, research and use of traditional knowledge, and
habitat protection. The management bodies will involve village councils
to the maximum extent possible in all aspects of management.
Relevant recommendations developed by the management bodies will be
submitted to the Service and to the Flyway Councils. Restrictions in
harvest levels for the purpose of conservation will be shared equitably
by users in Alaska and users in other States, taking into account
nutritional needs of subsistence users in Alaska. The treaty amendments
are not intended to create a preference in favor of any group of users
in the United States or to modify any preference that may exist.
What Has the Service Accomplished Since Ratification of the Amended
Treaty?
In 1998, we began a public involvement process to determine how to
structure management bodies in order to provide the most effective and
efficient involvement for subsistence users. We began by publishing a
notice in the Federal Register stating that we intended to establish
management bodies to implement the spring and summer subsistence
harvest (63 FR 49707, Sept. 17, 1998). Public forums attended by the
Service, the Alaska Department of Fish and Game, and the Native
Migratory Bird Working Group were held to provide information regarding
the amended treaties and to listen to the needs of subsistence users.
The Native Migratory Bird Working Group was a consortium of Alaska
Natives formed by the Rural Alaska Community Action Program to
represent Alaska Native subsistence hunters of migratory birds during
the treaty negotiations. We held forums in Nome, Kotzebue, Fort Yukon,
Allakaket, Naknek, Bethel, Dillingham, Barrow, and Copper Center. We
led additional briefings and discussions at the annual meeting of the
Association of Village Council Presidents in Hooper Bay and for the
Central Council of Tlingit & Haida Indian Tribes in Juneau. Staff
members from Alaska national wildlife refuges conducted public meetings
in the villages within their refuge areas and discussed the amended
treaties at those meetings.
On July 1, 1999, we published in the Federal Register (64 FR 35674)
a notice of availability of an options document, entitled ``Forming
management bodies to implement legal spring and summer migratory bird
subsistence hunting in Alaska.'' This document describes four possible
models for establishing management bodies and was released to the
public for review and comment. We mailed copies of the document to
approximately 1,350 individuals and organizations, including all tribal
councils and municipal governments in Alaska, Native regional
corporations and their associated nonprofit organizations, the Alaska
Department of Fish and Game, Federal land management agencies,
representatives of the four Flyway Councils, conservation and other
affected organizations, and interested businesses and individuals. We
distributed an additional 600 copies at public meetings held in Alaska
to discuss the four models. We also made the document available on the
Fish and Wildlife Service web page.
During the public comment period, we received 60 written comments
addressing the formation of management bodies. Of those 60 comments, 26
were from tribal governments, 20 from individuals, 10 from non-
government organizations, 2 from the Federal Government, 1 from the
State of Alaska, and 1 from the Native Migratory Bird Working Group. In
addition to the 60 written comments, 9 of the 10 Federal Subsistence
Regional Advisory Councils passed resolutions regarding the four models
presented.
On March 28, 2000, we published in the Federal Register (65 FR
16405) the Notice of Decision, ``Establishment of Management Bodies in
Alaska To Develop Recommendations Related to the Spring/Summer
Subsistence Harvest of Migratory Birds.'' This notice described the way
in which management bodies would be established and organized.
Based on the wide range of views expressed on the options document,
the decision incorporated key aspects of two of the models. The
decision established one statewide management body consisting of one
Federal member, one State member, and 7-12 Alaska Native members, with
each component serving as equals. Decisions and recommendations of the
Council will be by consensus wherever possible; however, if a vote
becomes necessary, each component, Federal, State, and Native, will
have one vote. This body will set a framework for annual regulations
for spring and summer subsistence harvest of migratory birds. Seven
regional bodies, consisting of local subsistence users working within
the framework, will forward their recommendations to the statewide
management body. That body will act on those recommendations and
forward its recommendations to the Service and to the Flyway Councils.
In April 2000, we met with the Alaska Department of Fish and Game
and the Native Migratory Bird Working Group to discuss bylaws for the
statewide management body. At that meeting, we decided to name the
statewide management body the ``Alaska Migratory Bird Co-management
Council.'' On October 30, 2000, the Co-management Council convened for
the first time and began preparation for the development of
recommendations for regulations to be implemented in spring of 2003.
The proposed regulations in this document will: (1) Provide the
authority for the Co-management Council to operate; (2) establish the
procedures by which the Co-management Council will conduct its
business; (3) provide authority to the Co-management Council to make
recommendations regarding applicability and scope of subsistence
harvest and who is eligible to participate in subsistence harvest; (4)
give the Co-management Council the authority to setup a process by
which migratory birds can be used and possessed under subsistence
harvest regulations; (5) define Regional management areas; (6) describe
the relationship the rule has to the process for developing national
hunting regulations for migratory birds; and (7) allow for future
development of regulations pertaining to methods and means of harvest
traditionally used for subsistence purposes. At future meetings, the
Co-management Council will continue to develop recommendations on
harvest and methods and means of harvest as necessary to protect the
migratory bird resource.
[[Page 16709]]
Public Comments Solicited
The Department of the Interior's policy is, whenever practicable,
to afford the public an opportunity to participate in the rulemaking
process. If you wish to comment, you may submit your comments by any
one of several methods. You may mail comments to the address indicated
under the caption ADDRESSES. Please submit Internet comments as an
ASCII file avoiding the use of special characters and any form of
encryption. Please also include ``Attn: 1018-AH88 and your name and
return address'' in your Internet message. If you do not receive a
confirmation from the system that we have received your Internet
message, contact us directly at the address indicated under the caption
ADDRESSES. Finally, you may hand-deliver comments to the address
indicated under the caption ADDRESSES. Our practice is to make
comments, including names and home addresses of respondents, available
for public review during regular business hours. Individual respondents
may request that we withhold their home address from the rulemaking
record, which we will honor to the extent allowable by law. In some
circumstances, we would also withhold from the rulemaking record a
respondent's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comment. However, we will not consider anonymous
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
You may inspect comments received on the proposed regulations
during normal business hours at the Service's office in Anchorage,
Alaska. We will consider, but possibly may not respond in detail to,
each comment. We will summarize all comments received during the
comment period and respond to them after the closing date in any final
rules.
Because we conducted an extensive public involvement process prior
to publishing the March 28, 2000, notice (65 FR 16405), we are
soliciting comments on this proposed rule for only 30 days. We want to
proceed with the development of seasonal regulations opening a legal
subsistence harvest as soon as possible.
Statutory Authority
We derive our authority to issue these proposed regulations from
the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703 et seq.), which
implements the 1916 Convention, as amended, between the United States
and Great Britain (for Canada) for the protection of migratory birds.
Specifically, these regulations are issued pursuant to 16 U.S.C.
Sec. 712(1), which authorizes the Secretary of the Interior to ``issue
such regulations as may be necessary to assure that the taking of
migratory birds and the collection of their eggs, by the indigenous
inhabitants of the State of Alaska, shall be permitted for their own
nutritional and other essential needs, as determined by the Secretary
of the Interior, during seasons established so as to provide for the
preservation and maintenance of stocks of migratory birds.''
Regulatory Planning and Review
E.O. 12866 requires each agency to write regulations that are easy
to understand. We invite your comments on how to make this proposed
rule easier to understand, including answers to questions such as the
following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that
interferes with its clarity?
(3) Does the format of the rule (grouping and order of sections,
use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into
more (but shorter) sections?
(5) Is the description of the rule in the ``Supplementary
Information'' section of the preamble helpful in understanding the
rule?
(6) What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240.
You may also e-mail the comments to this address: Exsec@ios.doi.gov.
The Office of Management and Budget (OMB) has determined that this
document is not a significant rule subject to OMB review under E.O.
12866.
a. This proposed rule will not have an annual economic effect of
$100 million or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. A cost-benefit and
economic analysis is not required. This proposed rule is
administrative, technical, and procedural in nature, establishing the
procedures for implementing spring and summer harvest of migratory
birds as provided for in the amended Convention with Canada. The
proposed rule does not provide for new or additional hunting
opportunities and therefore will have minimal economic or environmental
impact.
This proposed rule benefits those participants who engage in the
subsistence harvest of migratory birds in Alaska in two identifiable
ways: first, participants receive the consumptive value of the birds
harvested and second, participants get the cultural benefit associated
with the maintenance of a subsistence economy and way of life. The Fish
and Wildlife Service can estimate the consumptive value for birds
harvested under this rule but does not have a dollar value for the
cultural benefit of maintaining a subsistence economy and way of life.
The economic value derived from the consumption of the harvested
migratory birds has been estimated using the results of a paper by
Robert J. Wolfe titled ``Subsistence Food Harvests in Rural Alaska, and
Food Safety Issues,'' August 13, 1996. Wolfe estimated the per capita
consumption of birds harvested for subsistence to be approximately 24.4
pounds. When multiplied by approximately 70,000 people depending on
subsistence harvests, this amounts to over 1.7 million pounds of birds.
The economic value for the equivalent nutrition, if purchased at local
stores, would be nearly $6 million. This is the estimated economic
benefit of the consumptive part of this rulemaking for participants in
subsistence hunting.
The cultural benefits of maintaining a subsistence economy and way
of life can be of considerable value to the participants. This makes
the $6 million estimate for the consumptive value of this rule an
underestimate of the total benefit. However, we do not believe the
total benefit would make this rule significant under the Executive
Order.
b. This proposed rule will not create inconsistencies with other
agencies' actions. We are the Federal agency responsible for management
of migratory birds, coordinating with the Alaska Department of Fish and
Game on management programs within the State of Alaska. The State of
Alaska is a member of the Alaska Migratory Bird Co-management Council.
c. This proposed rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. The proposed rule does not affect entitlement
programs.
d. This proposed rule will not raise novel legal or policy issues.
The subsistence harvest regulations will go
[[Page 16710]]
through the same National regulatory process as the existing migratory
bird hunting regulations in 50 CFR part 20.
Regulatory Flexibility Act
The Department of the Interior certifies that this proposed rule
will not have a significant economic effect on a substantial number of
small entities as defined under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). An initial regulatory flexibility analysis is not
required. Accordingly, a Small Entity Compliance Guide is not required.
The proposed rule legalizes a pre-existing subsistence activity, and
the resources harvested will be consumed by the harvesters or persons
within their local community.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act, as discussed in the
Regulatory Planning and Review section above.
a. This proposed rule does not have an annual effect on the economy
of $100 million or more. It will legalize and regulate a traditional
subsistence activity. It will not result in a substantial increase in
subsistence harvest or a significant change in harvesting patterns.
The commodities being regulated under this rule are migratory
birds. This rulemaking deals with legalizing the subsistence harvest of
migratory birds and, as such, does not involve commodities traded in
the marketplace. A small economic benefit from this rule derives from
the sale of equipment and ammunition to carry out subsistence hunting.
Most, if not all, businesses that sell hunting equipment in rural
Alaska would qualify as small businesses. The Fish and Wildlife Service
has no reason to believe that this rule will lead to a disproportionate
distribution of benefits.
b. This proposed rule will not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. This proposed rule does not
deal with traded commodities and, therefore, does not have an impact on
prices for consumers.
c. This proposed rule does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This proposed rule deals with the harvesting of wildlife
for personal consumption. It does not regulate the marketplace in any
way to generate effects on the economy or the ability of businesses to
compete.
Unfunded Mandates Reform Act
We have determined and certify pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this proposed rule will not
impose a cost of $100 million or more in any given year on local,
State, or tribal governments or private entities. A statement
containing the information required by this Act is therefore not
necessary.
Participation on regional management bodies and the Co-management
Council will require travel expenses for some Alaska Native
organizations and local governments. In addition they will assume some
expenses related to coordinating involvement of village councils in the
regulatory process. Total coordination and travel expenses for all
Alaska Native organizations are estimated to be less than $300,000 per
year. In the Notice of Decision, 65 FR 16405, March 28, 2000, we
identified 12 partner organizations to be responsible for administering
the regional programs. When possible, we will make annual grant
agreements available to the partner organizations to help offset their
expenses. The Alaska Department of Fish and Game will incur expenses
for travel to the Co-management Council meetings and to meetings of the
regional management bodies. In addition, the State will be required to
provide technical staff support to each of the regional management
bodies and to the Co-management Council. Expenses for the State's
involvement may exceed $100,000 per year, but should not exceed
$150,000 per year.
Paperwork Reduction Act
This proposed rule has been examined under the Paperwork Reduction
Act of 1995 and has been found to contain no information collection
requirements. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.
Federalism Effects
As discussed in the Regulatory Planning and Review and Unfunded
Mandates Reform Act sections above, this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment under Executive Order 13132. We are working with
the State of Alaska on development of these regulations.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of section 3 of the
Order.
Takings Implication Assessment
This proposed rule is not specific to particular land ownership,
but applies to the harvesting of migratory bird resources throughout
Alaska. Therefore, in accordance with Executive Order 12630, this
proposed rule does not have significant takings implications.
Government-to-Government Relations With Native American Tribal
Governments
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), and Executive Order 13175, 65 FR 67249
(November 6, 2000), concerning consultation and coordination with
Indian Tribal Governments, we have consulted with Alaska tribes,
evaluated the proposed rule for possible effects on them and have
determined that there are no significant effects. This proposed rule
establishes procedures by which the individual tribes in Alaska will be
able to become significantly involved in the annual regulatory process
for spring and summer subsistence harvesting of migratory birds and
their eggs. The proposed rule will legalize the subsistence harvest for
tribal members, as well as for other indigenous inhabitants.
Endangered Species Act Consideration
Prior to issuance of annual spring and summer subsistence
regulations, we will consider provisions of the Endangered Species Act
of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to
ensure that harvesting is not likely to jeopardize the continued
existence of any species designated as endangered or threatened or
modify or destroy their critical habitats, and that it is consistent
with conservation programs for those species. Consultations under
Section 7 of this Act may cause us to change recommendations for annual
regulations.
National Environmental Policy Act Consideration
We determined that establishing the procedures for future
development of subsistence harvest regulations does not require an
environmental assessment because the impacts to the environment
[[Page 16711]]
are negligible. We therefore filed a categorical exclusion dated April
30, 1999. Copies of the categorical exclusion are available at the
address shown in the section of this document entitled, ADDRESSES. An
environmental assessment will be prepared for the annual subsistence
take regulations due to be published later as a proposed rule in the
fall of 2001.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Because this rule only
allows for traditional subsistence harvest and improves conservation of
migratory birds by allowing effective regulation of this harvest, it is
not a significant regulatory action under Executive Order 12866 and is
not expected to significantly affect energy supplies, distribution, and
use. Therefore, this action is a not significant energy action and no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 92
Hunting, Reporting and recordkeeping requirements, Subsistence,
Treaties, Wildlife.
For the reasons identified in the preamble, the U.S. Fish and
Wildlife Service proposes to amend Subchapter G of Chapter 1, Title 50
of the Code of Federal Regulations, by adding part 92 to read as
follows:
PART 92--MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA
Subpart A--General Provisions
Sec.
92.1 Purpose of regulations.
92.2 Authority.
92.3 Applicability and scope.
92.4 Definitions.
92.5 Who is eligible to participate?
92.6 Use and possession of migratory birds.
92.7-92.9 [Reserved]
Subpart B--Program Structure
92.10 Alaska Migratory Bird Co-management Council.
92.11 Regional management areas.
92.12 Relationship to the process for developing national hunting
regulations for migratory game birds.
92.13-92.19 [Reserved]
Subpart C--Methods and Means
92.20-92.29 [Reserved]
Subpart D--Annual Regulations Governing Subsistence Harvest
92.30 General overview of regulations.
92.31-92.39 [Reserved]
Authority: 16 U.S.C. 703-712.
Subpart A--General Provisions
Sec. 92.1 Purpose of regulations.
The regulations in this part implement the Alaska migratory bird
subsistence program as provided for in Article II(4)(b) of the 1916
Convention for the Protection of Migratory Birds in Canada and the
United States (the ``Canada Treaty''), as amended.
Sec. 92.2 Authority.
The Secretary of the Interior issues these regulations under the
authority granted to the Secretary by the Migratory Bird Treaty Act
(MBTA), 16 U.S.C. 703-712.
Sec. 92.3 Applicability and scope.
(a) In general. The regulations in this part apply to all eligible
persons harvesting migratory birds and their eggs for subsistence
purposes in Alaska between the dates of March 10 and September 1. The
provisions in this part do not replace or alter the regulations set
forth in part 20 of this chapter, which relate to the hunting of
migratory game birds and crows during the regular open season between
September 1 through March 10. The provisions set forth in this part
implement the exception to the closed season, which authorizes the
taking of migratory birds in Alaska for subsistence purposes between
March 10 and September 1.
(b) Land ownership. This part does not alter the legal authorities
of Federal and State land managing agencies or the legal rights of
private land owners to close their respective lands to the taking of
migratory birds.
(c) Federal public lands. The provisions of this part are in
addition to, and do not supersede, any other provision of law or
regulation pertaining to national wildlife refuges or other Federally
managed lands.
(d) Migratory bird permits. The provisions of this part do not
alter the terms of any permit or other authorization issued pursuant to
part 21 of this chapter.
(e) State laws for the protection of migratory birds. No statute or
regulation of the State of Alaska relieves a person from the
restrictions, conditions, and requirements contained in this part.
Nothing in this part, however, prevents the State of Alaska from making
and enforcing laws or regulations that are consistent with the
regulations in this part, the conventions between the United States and
any foreign country for the protection of migratory birds, and the
Migratory Bird Treaty Act, and that give further protection to
migratory birds.
Sec. 92.4 Definitions.
The following definitions apply to all regulations contained in
this part: Alaska Native means a citizen of the United States who is a
person of one-fourth degree or more Alaska Indian (including Tsimshian
Indians not enrolled in the Metlaktla (sic) Indian Community) Eskimo,
or Aleut blood, or combination thereof. The term includes any Native as
so defined either or both of whose adoptive parents are not Natives. It
also includes, in the absence of proof of a minimum blood quantum, any
citizen of the United States who is regarded as an Alaska Native by the
Native village or Native group of which he claims to be a member and
whose father or mother is (or, if deceased, was) regarded as Native by
any village or group, as defined in the Alaska Native Claims Settlement
Act in 43 U.S.C. 1602(b)).
Co-management Council means the Alaska Migratory Bird Co-management
Council consisting of Alaska Native, Federal, and State of Alaska
representatives as equals.
Eligible person means an individual within the State of Alaska who
qualifies to harvest migratory birds and their eggs for subsistence
purposes.
Excluded areas are defined in Sec. 92.5.
Flyway Council means the Atlantic, Mississippi, Central, or Pacific
Flyway Council.
Immediate family means spouse, children, parents, grandparents, and
siblings.
Included areas are defined in Sec. 92.5.
Indigenous inhabitant means a permanent resident of a village
within a subsistence harvest area, regardless of race.
Migratory bird, for the purposes of this part, means the same as
defined in Sec. 10.12 of this chapter. Species are listed in Sec. 10.13
of this chapter.
Native means the same as ``Alaska Native'' as defined in this
section.
Non-wasteful taking means making a reasonable effort to retrieve
all birds killed or wounded, and retaining such birds in possession
between the place where taken and the hunter's permanent or temporary
place of residence, or to the location where the birds will be consumed
for food.
Partner organization or regional partner means a regional or local
organization, or a local or tribal government that has entered into a
formal agreement with the U.S. Fish and Wildlife Service for the
purpose of coordinating the regional programs necessary to involve
subsistence hunters
[[Page 16712]]
in the regulatory process described in this part.
Service Regulations Committee means the Migratory Bird Regulations
Committee of the Fish and Wildlife Service.
State means State of Alaska.
Subsistence means the customary and traditional harvest and use of
migratory birds and their eggs by eligible indigenous inhabitants for
their own nutritional and other essential needs.
Subsistence harvest areas encompass customary and traditional
hunting areas of villages in Alaska that qualify for a spring or summer
subsistence harvest of migratory birds under this part.
Village is defined as a permanent settlement with one or more year-
round residents.
Sec. 92.5 Who is eligible to participate?
If you are a permanent resident of a village within a subsistence
harvest area, you will be eligible to harvest migratory birds and their
eggs for subsistence purposes in the spring and summer.
(a) Included areas. Village areas located within the Alaska
Peninsula, Kodiak Archipelago, the Aleutian Islands, or in areas north
and west of the Alaska Range are subsistence harvest areas, except that
villages within these areas not meeting the criteria for a subsistence
harvest area as identified in paragraph (c) of this section will be
excluded from the spring and summer subsistence harvest. Any person may
request the Co-management Council to recommend that an otherwise
included area be excluded by submitting a petition stating how the area
does not meet the criteria identified in paragraph (c) of this section.
The Co-management Council will consider each petition and will submit
to the Fish and Wildlife Service any recommendations to exclude areas
from the spring and summer subsistence harvest. The Fish and Wildlife
Service will publish any approved recommendations to exclude in subpart
D of this part.
(b) Excluded areas. Village areas located in Anchorage, the
Matanuska-Susitna or Fairbanks North Star Boroughs, the Kenai Peninsula
roaded area, the Gulf of Alaska roaded area, or Southeast Alaska
generally do not qualify for a spring or summer harvest. Communities
located within one of these areas may petition the Co-management
Council through their designated regional management body for
designation as a subsistence harvest area. The petition must state how
the community meets the criteria identified in paragraph (c) of this
section. The Co-management Council will consider each petition and will
submit to the Fish and Wildlife Service any recommendations to
designate a community as a subsistence harvest area. The Fish and
Wildlife Service will publish any approved recommendations to designate
a community as a subsistence area in subpart D of this part.
(c) Criteria for determining designation as a subsistence harvest
area. A community may be included in the spring/summer harvest
regulations if the preponderance of evidence shows that the community
demonstrates:
(1) A pattern of use recurring in the spring and summer of each year
prior to 1916, excluding interruptions by circumstances beyond the
user's control;
(2) The consistent harvest and use of migratory birds on or near the
user's permanent residence;
(3) A use pattern which includes the handing down of knowledge of
hunting skills and values from generation to generation;
(4) A use pattern in which migratory birds are shared or distributed
among others within a definable community of persons; a community
for purposes of subsistence uses may include specific villages or
towns, with a historical pattern of subsistence use; and
(5) A use pattern which includes reliance for subsistence purposes
upon migratory birds or their eggs, and which meets nutritional and
other essential needs including, but not limited to, cultural,
social and economic elements of the subsistence way of life.
(d) Participation by residents in excluded areas. In cases where it
is appropriate to assist indigenous inhabitants in meeting their
nutritional and other essential needs, or for the teaching of cultural
knowledge to or by their family members, residents of excluded areas
may participate in the customary spring and summer subsistence harvest
in a village's subsistence harvest area. Eligibility for participation
will be developed and recommended by the Co-management Council and
adopted or amended by regulation published in subpart D of this part.
Sec. 92.6 Use and possession of migratory birds.
Harvest and possession of migratory birds must be done using non-
wasteful taking. You may not take birds for purposes other than human
consumption. You may not sell, offer for sale, purchase or offer to
purchase migratory birds, their parts, or their eggs taken under this
part. Non-edible by-products of migratory birds taken for food may be
used for other purposes only by individuals qualified to possess those
birds. You may possess migratory birds, their parts, and their eggs,
taken under this part, only if you are an eligible participant as
determined in Sec. 92.5.
Secs. 92.7-92.9 [Reserved]
Subpart B--Program Structure.
Sec. 92.10 Alaska Migratory Bird Co-management Council.
(a) Establishment. The U.S. Fish and Wildlife Service hereby
establishes, as mandated by the Protocol amending the Canada Treaty, a
statewide management body to be known as the Alaska Migratory Bird Co-
management Council.
(b) Membership. The Co-management Council must include Alaska
Native, Federal, and State of Alaska representatives, as equals.
(1) The Federal and State governments will each seat one
representative. The Federal representative will be appointed by the
Alaska Regional Director of the U.S. Fish and Wildlife Service, and the
State representative will be appointed by the Commissioner of the
Alaska Department of Fish and Game. Regional partner organizations will
seat one representative from each of the seven regions identified in
Sec. 92.11(a), except that a region having more than one partner
organization may send a representative from each partner organization
for a maximum of 12 regional representatives.
(2) The Federal and State representatives and the collective Native
representatives will each have one vote, for a total of three votes for
the entire council.
(c) Roles and responsibilities. The Co-management Council is
authorized to:
(1) Hold public meetings for the purpose of conducting business
related to spring and summer subsistence harvest of migratory birds;
(2) Develop recommendations for regulations governing the spring
and summer subsistence harvest of migratory birds and their eggs;
(3) Develop recommendations for, among other things, law
enforcement policies, population and harvest monitoring, education
programs, research and use of traditional knowledge, and habitat
protection;
(4) Develop procedures and criteria by which areas and communities
can be determined to be eligible or ineligible for a spring/summer
subsistence harvest;
(5) Provide guidelines to the regional management bodies each year
for formulation of annual regulations;
(6) Consolidate regional recommendations and resolve interregional
differences in order to prepare statewide recommendations;
[[Page 16713]]
(7) Establish committees to gather or review data, develop plans
for Co-management Council actions, and coordinate programs with
regional management bodies;
(8) Send Alaska Native Co-management Council representatives to
meetings of the Pacific Flyway Council and to meetings of the other
Flyway Councils as needed, and to meetings of the Service Regulations
Committee;
(9) Elect officers; and
(10) Conduct other business as the Council may determine is
necessary to accomplish its purpose.
(d) Meetings. The Co-management Council will:
(1) Hold meetings at least twice annually;
(2) Conduct meetings in accordance with bylaws approved by the Co-
management Council;
(3) Provide opportunity at each meeting for public comment;
(4) Establish the dates, times, and locations of meetings; and
(5) Maintain a written record of all meetings.
(e) Staff support. Administrative support for the Co-management
Council will be provided by the U.S. Fish and Wildlife Service and will
include, but not be limited to:
(1) Making arrangements for the meeting rooms and associated
logistics related to Co-management Council meetings;
(2) Preparing public notices announcing Co-management Council
meetings;
(3) Maintaining records of discussions and actions taken by the Co-
management Council;
(4) Coordinating with the Alaska Department of Fish and Game to
provide technical information needed by the Co-management Council for
its deliberations;
(5) Preparing documents and gathering information needed by the Co-
management Council for its meetings; and
(6) Preparing the annual subpart D regulations package recommended
by the Co-management Council for submission to the flyway councils and
the Service Regulations Committee.
Sec. 92.11 Regional management areas.
(a) Regions identified. The Alaska Regional Director of the U.S.
Fish and Wildlife Service hereby establishes seven geographic regions
based on common subsistence resource use patterns. You may obtain maps
delineating the boundaries of the seven regions from the U.S. Fish and
Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 99503. The regions
are identified as follows:
(1) Southeast, Gulf of Alaska and Cook Inlet;
(2) Aleutian/Pribilof Islands and Kodiak Archipelago;
(3) Bristol Bay;
(4) Yukon-Kuskokwim Delta;
(5) Bering Straits;
(6) Northwest Arctic and Arctic Slope; and
(7) Interior.
(b) Regional partnerships. The Fish and Wildlife Service will
establish partner agreements with at least one partner organization in
each of the seven regions. The partner organization identified must be
willing and able to coordinate the regional program on behalf of the
subsistence hunters within that region. A regional partner will:
(1) Organize or identify one or more management bodies within the
region in which it is located.
(2) Determine how the management body for the region should be
organized and the manner in which it should function and determine its
size, who serves on it, the length of terms, methods of involving
subsistence users, and other related matters.
(3) Coordinate regional meetings and the solicitation of proposals.
(4) Ensure appointment of a person to represent the region by
serving on the Co-management Council. If a region consists of more than
one partner organization, each partner organization may appoint a
member to sit on the Co-management Council.
(5) Keep the residents of villages within the region informed of
issues related to the subsistence harvest of migratory birds.
(6) Work cooperatively with the U.S. Fish and Wildlife Service and
the Alaska Department of Fish and Game to gather harvest data, numbers
of subsistence users, and other management data and traditional
knowledge for the benefit of the management bodies.
(c) Regional management bodies. (1) Regional management bodies must
provide a forum for the collection and expression of opinions and
recommendations regarding spring and summer subsistence harvesting of
migratory birds. They must develop requests and recommendations from
the region to be presented to the Co-management Council for
deliberation. They must provide for public participation in the
meetings at which recommendations and requests are formulated.
(2) Requests and recommendations to the Co-management Council may
involve seasons and bag limits, methods and means, law enforcement
policies, population and harvest monitoring, education programs,
research and use of traditional knowledge, habitat protection, and
other concerns related to migratory bird subsistence programs.
(3) Regional management bodies may be established specifically for
the purpose of carrying out the responsibilities identified in this
part, or they may be existing entities that can add these
responsibilities to their existing duties.
Sec. 92.12 Relationship to the process for developing national hunting
regulations for migratory game birds.
(a) Flyway councils. (1) Proposed annual regulations recommended by
the Co-management Council will be submitted to all flyway councils for
review and comment. The flyway councils may forward comments to the
Service Regulations Committee for consideration before proposed
regulations are issued in final.
(2) Alaska Native representatives may be appointed by the Co-
management Council to attend meetings of one or more of the four flyway
councils to discuss recommended regulations or other proposed
management actions.
(b) Service Regulations Committee. Proposed annual regulations
recommended by the Co-management Council will be submitted to the
Service Regulations Committee to be incorporated into the
recommendations for national migratory bird hunting regulations (found
in part 20 of this chapter) and published in this part 92. The
Council's recommendations must be submitted prior to the Committee's
last regular meeting of the calendar year in order to be approved for
spring/summer harvest beginning March 11 of the following calendar
year. Proposed spring/summer subsistence regulations for Alaska may be
published in the Federal Register with either the proposed rule for the
early-season or the proposed rule for the late-season national
regulations. After comments are incorporated from the proposed rules,
the spring/summer regulations for Alaska will then be published in the
Federal Register with either the early-season final rule or late-season
final rule, for the national regulations.
Secs. 92.13-92.19 [Reserved]
Subpart C--Methods and Means
Secs. 92.20-92.29 [Reserved]
Subpart D--Annual Regulations Governing Subsistence Harvest
Sec. 92.30 General overview of regulations.
(a) The taking, possession, transportation, and other uses of
migratory birds are generally prohibited unless specifically authorized
by
[[Page 16714]]
regulation developed in accordance with the Migratory Bird Treaty Act.
Therefore, harvesting migratory birds is prohibited unless regulations
are established ensuring the protection of the various populations of
migratory birds. Migratory bird population levels, production, and
habitat conditions vary annually. These conditions differ within Alaska
and throughout North America. Therefore, the regulations governing
migratory bird hunting may include annual adjustments to keep harvests
within acceptable levels.
(b) The development of the regulations in this part 92, like the
development of the national regulations in part 20 of this chapter,
involves annual data gathering programs to determine migratory bird
population status and trends, evaluate habitat conditions, determine
harvests, and consider other factors having an impact on the
anticipated size of annual populations.
(c) The Service proposes national hunting regulations in the
Federal Register in the spring for the regulatory year beginning
September 1. Following consideration of additional biological
information and public comment, the Service publishes supplemental
proposals throughout the summer. These are also open to public comment.
Public hearings are held for the purpose of providing additional
opportunity for public participation in the rulemaking process.
(d) Sections 92.31 through 92.39, provide for the annual harvest of
migratory birds and their eggs during spring and summer for subsistence
users in Alaska.
Secs. 92.31--92.39 [Reserved]
Dated: March 18, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-8384 Filed 4-5-02; 8:45 am]
BILLING CODE 4310-55-P