Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations for Migratory Birds in Alaska During the 2019 Season

Federal Register, Volume 84 Issue 146 (Tuesday, July 30, 2019)
[Federal Register Volume 84, Number 146 (Tuesday, July 30, 2019)]
[Rules and Regulations]
[Pages 36840-36842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16053]
Fish and Wildlife Service
50 CFR Part 92
[Docket No. FWS-R7-MB-2019-0005; FXMB12610700000-190-FF07M01000]
RIN 1018-BD07
Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations
for Migratory Birds in Alaska During the 2019 Season
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Affirmation of interim rule as final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service, are adopting as a
final rule an interim rule that went into effect on April 2, 2019, and
established migratory bird subsistence harvest regulations in Alaska
for the 2019 season. These regulations allow for the continuation of
customary and traditional subsistence uses of migratory birds in Alaska
and prescribe regional information on when and where the harvesting of
birds may occur. The rulemaking is necessary because the regulations
governing the subsistence harvest of migratory birds in Alaska are
subject to annual review. Therefore, for the reasons given in the
interim rule and in this document, we are adopting the interim rule as
a final rule without change.
DATES: The effective date for the interim rule that published April 3,
2019, at 84 FR 12946, is affirmed as April 2, 2019.
ADDRESSES: Documents pertaining to this rulemaking action are available
on the internet at the Federal eRulemaking Portal: http://www.regulations.gov at Docket No. FWS-R7-MB-2019-0005.
FOR FURTHER INFORMATION CONTACT: Eric J. Taylor, U.S. Fish and Wildlife
Service, 1011 E Tudor Road, Mail Stop 201, Anchorage, AK 99503; (907)
    On April 3, 2019, we, the U.S. Fish and Wildlife Service, published
an interim rule in the Federal Register (84 FR 12946). The interim rule
set forth regulations in title 50 of the Code of Federal Regulations
(CFR) in part 92 pertaining to the take of migratory birds in Alaska
for subsistence uses during the spring and summer of 2019. These
regulations also set forth a list of migratory bird season openings and
closures in Alaska by region. The interim rule was effective April 2,
2019, and we solicited public comments on it until May 3, 2019. In this
document, we address the comments received.
    This rulemaking is necessary because, by law, the migratory bird
harvest season is closed unless opened by the Secretary of the
Interior, and the regulations governing subsistence harvest of
migratory birds in Alaska are subject to public review and annual
approval. We derive our authority to issue these regulations from the
Migratory Bird Treaty Act of 1918 (MBTA), 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 regulations
to ensure 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.'' Per the MBTA, the normal season for the subsistence
harvest of migratory birds in Alaska begins on April 2 each year.
Interim Rule
    To meet the April 2 opening date for the 2019 season for Alaska
subsistence harvest of migratory game birds, we published an interim
rule. We were not able to publish a proposed rule due to unforeseen
time constraints and publishing an interim rule allowed us to respect
the subsistence harvest of many rural Alaskans for their cultural or
religious exercise, sustenance, and/or collection of materials for
cultural use (e.g., handicrafts). We regret any confusion that
publishing an interim rule may have caused.
    The Alaska subsistence harvest regulations, which are set forth in
50 CFR part 92, subpart D, have generally been similar the past several
years, and with no significant controversy from the public. The
provisions for 50 CFR part 92, subpart D, in the April 3, 2019, interim
rule are the same as those set forth in our March 30, 2018, final rule
(83 FR 13684). These regulations were developed under a co-management
process involving the Service, the Alaska Department of Fish and Game
(ADF&G), and Alaska Native representatives.
Conservation Issues
    We have monitored subsistence harvest for more than 25 years
through the use of household surveys in the most heavily used
subsistence harvest areas, such as the Yukon-Kuskokwim
[[Page 36841]]
Delta. Based on our monitoring of the migratory bird species and
populations taken for subsistence, we find that this rule will provide
for the preservation and maintenance of migratory bird stocks as
required by the MBTA. Moreover, Alaska migratory bird subsistence
harvest rates have continued to decline since the inception of the
subsistence-harvest program, reducing concerns about the program's
effect on the preservation and maintenance of stocks of migratory
    Under the Endangered Species Act of 1973, as amended (ESA; 16
U.S.C. 1531 et seq.), 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 harvest is open in Alaska. Both species are closed to
hunting, although harvest surveys and Service documentation indicate
both species are taken in several regions of Alaska.
    In accordance with section 7 of the ESA, we conducted an intra-
agency consultation with the Service's Fairbanks Fish and Wildlife
Field Office on the interim rule. The consultation was completed with a
biological opinion that concluded the interim rule and conservation
measures are not likely to jeopardize the continued existence of
Steller's and spectacled eiders or result in the destruction or adverse
modification of designated critical habitat.
    We have reviewed the comments submitted on the interim rule, and we
confirm the finding that this rule complies with the ESA. For detailed
information about efforts to ensure conservation of these species, see
the April 3, 2019, interim rule (84 FR 12946). See also below in this
document our response to a comment on ESA-listed eiders.
Public Comments
    By the close of the comment period on the interim rule, we received
three comments, only one of which raised issues within the scope of
this rulemaking action.
    Issue: The commenter stated that the Service could have been more
explicit regarding its inability to follow the normal rulemaking
process and solicit public comment prior to promulgating the interim
rule. The commenter expressed the desire for the Service to revert to
its usual process of publishing a proposed rule and allowing a 30-day
comment period before publishing regulations.
    Response: The partial government lapse in appropriations prevented
the Service from publishing a proposed and final rule for the 2019
Alaska migratory bird subsistence harvest in time to meet the April 2,
2019, opening season date. To ensure that we could publish regulations
in time to meet that opening date, while getting comments from the
public, the Service engaged with stakeholders and reached agreement to
publish an interim rule. We do not intend to use an interim rule again
for this purpose, as doing so prevents modifications to the regulations
implemented in consultation with the Alaskan communities. In future
Alaska migratory bird subsistence harvest rulemaking actions, we expect
to have a proposed rule prepared earlier in the process to ensure that
we can have a final rule published in time to meet the April 2 opening
date for the season.
    Issue: The commenter expressed concern about the current system of
gathering information about the effects of the subsistence harvest by
sending household surveys to the area that uses the subsistence harvest
the most. The commenter suggested that we should consider instituting a
survey at the purchase of a hunting or fishing license or driver's
license, similar to the process used for purchasing a Federal duck
stamp, in an effort to get a more complete count of subsistence harvest
    Response: In collaboration with the ADF&G, the Service conducts an
annual migratory bird subsistence harvest survey. The migratory bird
subsistence harvest survey objectives, design, implementation,
analyses, and reporting were revised after completion of a 4-year
contract with Colorado State University.\1\ On their website, ADF&G
provides specific information on program overview, harvest and local
knowledge, research, annual harvest estimates, outreach and
communication, and annual survey methods: http://www.adfg.alaska.gov/index.cfm?adfg=subsistence.AMBCC.
    \1\ T. Luke George, D. Otis and P. Doherty. 2015. Review and
Revision of the Alaska Migratory Bird Council Subsistence Harvest
Survey. Department of Fish, Wildlife, and Conservation Biology,
Colorado State University Fort Collins, CO 80523: http://www.adfg.alaska.gov/static/home/subsistence/pdfs/05_Survey_Review%20II_2014-2018.pdf.
    Issue: The commenter stated that some spectacled eiders and
Steller's eiders, which are protected under the ESA, are harvested
during the subsistence harvest season and it is important for the
Service to engage in wider hunter education on the threatened nature of
these species and how to identify these birds prior to harvest, in
order to decrease the impact upon these delicate populations. The
commenter further stated that the Service must balance its obligations
to allow for subsistence harvest and its obligations under the MBTA and
the ESA and that increasing harvest inspections in the areas
surrounding the breeding habitats of these birds would increase
    Response: The Service appreciates the comments addressing
protection of threatened spectacled and Steller's eiders concurrent
with allowing the customary and traditional spring/summer subsistence
harvest of migratory birds in Alaska. On March 22, 2019, the Service
published the Biological Opinion for Migratory Subsistence Harvest:
Hunting Regulations for the Spring/Summer Harvest. The Service believes
the effectiveness of the migratory bird hunting regulations will be
ensured by compliance checks by the Service's Office of Law Enforcement
and by working to develop stewardship and voluntary efforts by hunters.
In addition, the Service will continue biological monitoring to gather
data critical to managers tasked with making informed management
decisions. In addition to the regulations, conservation measures will
be implemented to:
    1. Verify compliance with migratory bird hunting regulations,
including regulations prohibiting the use of lead shot for hunting
    2. Enhance a culture of conservation through continued education of
hunters; and
    3. Continue to gather data on listed eiders that enable more
informed management decisions. A copy of the Biological Opinion and the
administrative record of this consultation is available at http://www.regulations.gov in Docket No. FWS-R7-MB-2019-0005 and from the U.S.
Fish and Wildlife Service, Fairbanks Fish and Wildlife Field Office,
101 12th Avenue, Room 110, Fairbanks, Alaska 99701.
    Finally, the Service published and mailed 2,000 copies of the 2019
Alaska Subsistence Spring/Summer Migratory Bird Harvest booklets to
Federal, State, borough, Alaska Native, and other partner offices in
all regions containing eligible areas and villages. On page 15 of the
2019 regulations booklet, the Service states, ``Protect our Steller's
and Spectacled Eiders--Don't Shoot Them!'' and includes pictures of
both Steller's and spectacled eiders sitting on water and flying and
their names translated in Alaska Native languages. The Service
[[Page 36842]]
commits to continuing the outreach, education, and communication
programs that were developed, and are continually modified, by the
Service and its partners.
Required Determinations
    We hereby affirm our responses to the following determinations
required of the Federal rulemaking process as published in the April 3,
2019, interim rule (84 FR 12946):
 Executive Orders 12630, 12866, 12988, 13132, 13175, 13211,
13563, and 13771
 Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 601 et seq. and 804(2))
 Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
 Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
 National Environmental Policy Act (42 U.S.C. 4321 et seq.)
 Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951, and 512 DM 2)
List of Subjects in 50 CFR Part 92
    Hunting, Treaties, Wildlife.
Affirmation of Interim Rule
    Accordingly, the Department of the Interior affirms as a final
rule, without change, the interim rule amending 50 CFR part 92 that was
published at 84 FR 12946 on April 3, 2019.
    Authority:  16 U.S.C. 703-712.
    Dated: July 19, 2019.
Karen Budd-Falen,
Deputy Solicitor for Parks and Wildlife, Exercising the Authority of
the Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-16053 Filed 7-29-19; 8:45 am]