Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations for Migratory Birds in Alaska During the 2009 Season, 23336-23349 [E9-11663]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23336-23349]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11663]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 92

[FWS-R7-MB-2008-0126; 91200-1231-9BPP-L2]
RIN 1018-AW29


Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations 
for Migratory Birds in Alaska During the 2009 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) establishes 
migratory bird subsistence harvest regulations in Alaska for the 2009 
season. These regulations will enable the continuation of customary and 
traditional subsistence uses of migratory birds in Alaska and prescribe 
regional information on when and where the harvesting of birds may 
occur. These regulations were developed under a co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives. The rulemaking is necessary because the 
regulations governing the subsistence harvest of migratory birds in 
Alaska are subject to annual review. This rulemaking establishes 
region-specific regulations that go into effect on the date of 
publication in the Federal Register and expire on August 31, 2009.

DATES: The amendments to subpart D of 50 CFR part 92 are effective May 
19, 2009, through August 31, 2009.

FOR FURTHER INFORMATION CONTACT: Fred Armstrong, (907) 786-3887, or
    Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 
1011 E. Tudor Road, Mail Stop 201, Anchorage, AK 99503.

SUPPLEMENTARY INFORMATION:

Why Is This Current Rulemaking Necessary?

    This current 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. The Alaska Migratory Bird Co-management Council (Co-
management Council) held a meeting in April 2008 to develop 
recommendations for changes effective for the 2009 harvest season. 
These recommendations were presented to the Service Regulations 
Committee (SRC) on July 30 and 31, 2008, and were subsequently proposed 
in a December 18, 2008, Federal Register (73 FR 76994).
    This rule finalizes regulations for the taking of migratory birds 
for subsistence uses in Alaska during the spring and summer of 2009. 
This rule lists migratory bird season openings and closures by region.

How Do I Find the History of These Regulations?

    Background information, including past events leading to this 
action, accomplishments since the Migratory Bird Treaties with Canada 
and Mexico were amended, and a history addressing conservation issues 
can be found in the following Federal Register documents:

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                   Date                       Federal Register Citation
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August 16, 2002                             67 FR 53511
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July 21, 2003                               68 FR 43010
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April 2, 2004                               69 FR 17318
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April 8, 2005                               70 FR 18244
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February 28, 2006                           71 FR 10404
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April 11, 2007                              72 FR 18318
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March 14, 2008                              73 FR 13788
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    These documents, which are all final rules setting forth the annual 
harvest regulations, are available at https://alaska.fws.gov/ambcc/regulations.htm.

Who Is Eligible To Hunt Under These Regulations?

    Eligibility to harvest under the regulations established in 2003 
was limited to permanent residents, regardless of race, in villages 
located

[[Page 23337]]

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

How Will the Service Ensure That the Subsistence Harvest Will Not Raise 
Overall Migratory Bird Harvest or Threaten the Conservation of 
Endangered and Threatened Species?

    We have monitored subsistence harvest for the past 15 years through 
the use of annual household surveys in the most heavily used 
subsistence harvest areas, such as the Yukon-Kuskokwim Delta. 
Continuation of this monitoring enables tracking of any major changes 
or trends in levels of harvest and user participation after 
legalization of the harvest. This final rule restricts hunting on the 
North Slope to times of day with sufficient daylight to enable hunters 
to distinguish and avoid shooting closed species. In addition, three 
conservation measures, which focus on increased migratory bird hunter 
outreach prior to hunts, increased regulatory enforcement and in-season 
harvest verification of Steller's eider mortality, will provide 
additional protection for threatened spectacled and Steller's eiders. 
Finally, we have an emergency closure provision (50 CFR 92.21) which 
specifies that the harvest may be closed or temporarily suspended upon 
a finding that a continuation of the regulation allowing the harvest 
would pose an imminent threat to the conservation of any endangered or 
threatened species or other migratory bird population.
    With regard to Steller's eiders, the new regulation at 50 CFR 92.32 
clarifies that we will take action under 50 CFR 92.21 as is necessary 
to prevent further take of Steller's eiders, which could include 
temporary or long-term closures of the harvest in all or a portion of 
the geographic area open to harvest. If mortality of threatened eiders 
occurs, we will evaluate each mortality event by criteria such as: 
cause, quantity, sex, age, location, and date. We will consult the Co-
management Council when an emergency closure is being considered. Any 
emergency closure deemed necessary will be designed to minimize its 
impact on the subsistence harvest.

What Is Different in the Region-Specific Regulations for 2009?

Yellow-billed Loons

    This final rule implements the request of the North Slope Borough 
Fish and Game Management Committee and the recommendation of the Co-
management Council to continue into 2009 the provisions originally 
established in 2005 to allow subsistence use of yellow-billed loons 
inadvertently entangled in subsistence fishing (gill) nets on the North 
Slope. Yellow-billed loons are culturally important for the Inupiat 
Eskimo of the North Slope for use in traditional dance regalia. A 
maximum of 20 yellow-billed loons may be caught in 2009 under this 
provision. This provisio does not authorize intentional harvest of 
yellow-billed loons, but allows use of those loons inadvertently 
entangled during normal subsistence fishing activities. Individual 
reporting to the North Slope Borough Department of Wildlife is required 
by the end of each season. However, the North Slope Borough has asked 
fishermen, through announcements on the radio and through personal 
contact, to report inadvertent entanglements of loons as they occur, to 
better estimate the level of mortality caused by gill nets. In 2007, 14 
yellow-billed loons were reported taken in fishing nets and an 
additional 2 were released alive. This provision, to allow subsistence 
possession and use of yellow-billed loons caught in fishing gill nets, 
is subject to annual review and renewal by the Service.

Aleutian and Arctic Terns

    We are opening a season May 15-June 30 for harvesting Aleutian and 
arctic tern eggs in the Yakutat Harvest area, from Icy Bay (Icy Cape to 
Point Riou) and the coastal islands bordering the Gulf of Alaska from 
Point Manby southeast to and including Dry Bay. The Yakutat Tlingit 
Tribe requested this proposal, stating that this regulation would 
legalize a traditional gathering of tern eggs that has occurred for 
hundreds of years. The Tlingit refer to the terns as ``sea pigeons'' 
and gather eggs for sustenance during the salmon fishing season. 
``Pigeon eggs'' are considered a highly desired food by many Native 
households in Yakutat. Harvested eggs are shared extensively throughout 
the community and especially with local Native elders. The Yakutat 
Tlingit Tribe has agreed to monitor the harvest of tern eggs and this 
summer will conduct a recall survey of the spring harvest. The Yakutat 
Ranger Station, U.S. Forest Service, in cooperation with the Service's 
Alaska Office of Migratory Bird Management is developing methods for 
monitoring the Aleutian and arctic tern populations in the Yakutat 
area. Work on this project is under way.

Spectacled and Steller's Eiders

    Spectacled eiders (Somateria fischeri) and the Alaska-breeding 
population of Steller's eiders (Polysticta stelleri) are listed as 
threatened species, and their migration and breeding distribution 
overlaps with the spring and summer subsistence harvest on the Yukon-
Kuskokwim Delta and the North Slope. Both spectacled and Steller's 
eiders are closed to hunting in the subsistence harvest, but harvest 
surveys and Service documentation indicates substantial numbers of both 
species have been taken during recent subsistence harvests on the North 
Slope.
    The North Slope breeding population of spectacled eiders was 
estimated to be 12,916 (10,942-14,890, 95% Confidence Limits) 
individual birds during 2002-2006 (Service unpublished data), and they 
nest relatively widely across the North Slope. It is estimated that 35 
(33-40, 95% Confidence Limits) spectacled eiders were taken on the 
North Slope during the 2005 subsistence season (Service unpublished 
data, 2006); it is estimated 99 (44-155, 95% Confidence Limits) 
spectacled eiders were taken at Barrow in 2007 (Service, preliminary 
data).
    The North Slope breeding population of Steller's eider was 
estimated to be 576 (292-859, 90% Confidence Limits) individual birds 
during 1993-2008

[[Page 23338]]

(Service, unpublished data), and most of their nesting appears to be 
concentrated near Barrow, the northernmost point in Alaska. It is 
estimated that 19 (9-37, 95% Confidence Limits) Steller's eiders were 
taken on the North Slope during the 2005 subsistence season (Service 
unpublished data, 2006); it is estimated 36 (10 reported, Service 
preliminary data)] Steller's eiders were taken at Barrow in 2007. A 
subsistence harvest survey is not yet available for 2008, but the 
Service documented 20 Steller's eiders shot at Barrow (with another 7 
Steller's eiders found dead but too heavily scavenged to determine 
cause of death).
    Therefore, harvest survey estimates and direct observation of shot 
birds indicate that direct shooting occurs during the subsistence 
harvest, with impacts probably on the order of tens of each threatened 
eider species taken per year. Take is not authorized for either species 
during the subsistence harvest, and, in the case of Steller's eider, 
this amount of shooting mortality is likely not sustainable for the 
small Alaska-breeding population. Because of the small Steller's 
population size, their breeding concentration near Barrow, and the 
relatively high proportion of the estimated population shot during 
recent subsistence harvests, the Service focused on considering 
regulations and conservation efforts on the North Slope to benefit the 
Alaska-breeding population of Steller's eiders.
    Several spectacled and Steller's eider management needs are 
addressed by this final rule. It newly restricts hunting on the North 
Slope to time of day with sufficient daylight to ensure hunters can 
distinguish and avoid shooting closed species; it clarifies for 
subsistence users that Service law enforcement personnel have authority 
to verify species of birds possessed by hunters; it clarifies that it 
is illegal to possess any bird closed to harvest; and it describes how 
the Service's existing authority of emergency closure would be 
implemented, if necessary, to protect Steller's eiders. The 
regulations, implemented in accordance with conservation measures 
(described below), are considered the principal way in which threatened 
eider shooting mortality will be substantially reduced or eliminated. 
The emergency closure authority provides an additional level of 
assurance that, if an unexpected amount of Steller's eider shooting 
mortality occurs, it will be curtailed to avoid approaching jeopardy to 
the existence of the species.
    The Service developed three conservation measures that are an 
integral part of the proposed harvest and were approved for 
implementation by the Alaska Regional Director on April 6, 2009. The 
conservation measures substantially increase protection for spectacled 
and, particularly, Steller's eiders on the North Slope in 2009, and 
describe how the Service will detect, remedy, and quickly curtail any 
shooting mortality or injury of Steller's eiders that might occur 
during the harvest. In January 2009, the Service commenced planning for 
implementation of each measure in anticipation of the subsistence 
harvest. The three conservation measures are:

1. Increase Migratory Bird Hunter Outreach Prior to the Hunts

    The Service with North Slope partners will provide migratory bird 
hunter outreach in Wainwright, Point Hope, Point Lay, and Barrow prior 
to the 2009 subsistence harvest. The outreach educational objectives 
will include: hunter understanding of the 2009 hunting regulations; 
ability to distinguish among the open and closed species of eiders in 
flight; the need to reduce crippling loss; and an understanding of the 
Service's role and obligation for enforcement and monitoring.

2. Increased Service Enforcement of Migratory Bird Regulations

    The Service will sustain a law enforcement presence on the North 
Slope during the migratory bird hunts. The Service believes this is 
necessary to increase community understanding and acceptance of the 
shooting mortality problem, deter violations, and obtain compliance 
with the regulations. The Service will conduct real-time monitoring of 
the harvest to meet the primary objective of detecting Steller's eider 
mortality during the hunts so appropriate and timely corrective action 
can be taken. Regulatory enforcement objectives will be achieved 
through a two-part strategy: (i) pre-season community and hunter 
education and outreach, and (ii) in-season implementation of the law 
enforcement portion of this plan and enforcement of all Service 
regulations.

3. In-season Harvest Verification of Steller's Eider Mortality and 
Injury

    Three types of monitoring efforts are necessary during the 2009 
subsistence harvest and fall hunts on the North Slope: (i) Steller's 
eider breeding surveys to inform the coordination of the conservation 
measures, (ii) harvest verification by Service law enforcement to meet 
the objective of detecting Steller's eider mortality during the hunts 
so appropriate and timely corrective action can be taken to prevent 
further mortality; and (iii) monitoring for injured and dead birds to 
begin to quantify crippling rate and loss. All in-season monitoring 
information will be used to independently evaluate harvest survey 
reports, the efficiency of the regulations, conservation measures, and 
outreach efforts.
    To summarize, the Service has dual goals and responsibilities of 
authorizing a subsistence harvest while protecting migratory birds and 
threatened species. Although these goals are challenging, they are not 
irreconcilable with sufficient recognition of the need to protect 
threatened species, measures to remedy documented threats, and 
commitment from the subsistence community and other conservation 
partners to work together toward those dual goals. With these dual 
goals in mind, the Service has included in this final rule a provision 
that restricts hunting on the North Slope to times of day with 
sufficient daylight to enable hunters to avoid shooting closed species. 
Moreover, the Service, working with partners, developed additional 
measures to eliminate the potential for shooting mortality or injury of 
the Alaska-breeding population of Steller's eider on the North Slope. 
These measures include: 1) increased waterfowl hunter outreach and 
community awareness; 2) increased enforcement of the migratory bird 
regulations that are protective of listed eiders; and 3) in-season 
Service verification of the harvest to detect any Steller's eider 
mortality. In 2009, the Service and the community will immediately 
address and remedy any detected Steller's eider mortality; and, as a 
matter of Service policy, any detected Steller's eider shooting 
mortality will be curtailed at an amount estimated to be sustainable by 
the population. Further, by focusing these protections for Steller's 
eiders at Barrow (location of the largest known concentration of 
Alaska-breeding Steller's eiders), the Service is protecting the 
breeding population at its primary nesting area.

Summary of Public Involvement

    On December 18, 2008, we published in the Federal Register a 
proposed rule (73 FR 76994) to establish spring and summer migratory 
bird subsistence harvest regulations in Alaska for the 2009 subsistence 
season. The proposed rule provided for a public comment period of 30 
days. 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 Council's internet

[[Page 23339]]

homepage. We issued a press release announcing our request for public 
comments and the pertinent deadlines for such comments, which was faxed 
to the media Statewide. Additionally, all documents were available on 
www.Regulations.gov.
    By the close of the public comment period on January 20, 2009, we 
had received written responses from one individual and three 
organizations. There was a predominate request to extend the public 
comment period and to hold public hearings in the North Slope villages 
potentially impacted by the regulations. Based on these requests, we 
held four public meetings to record public comments on the proposed 
regulations: January 26, 2009, at the Inupiat Heritage Center, 5421 
North Star St., Barrow; January 27, 2009, at the Robert James Community 
Center, Wainwright; January 28, 2009, at the Community Center, Point 
Lay; and January 29, 2009, at the Qargi Community Center, Point Hope. A 
second public meeting was held in Point Lay on March 10, 2009.
    We also reopened the public comment period until March 12, 2009, by 
publishing a notice in the February 10, 2009, Federal Register (75 FR 
6563). The public was informed that if they had submitted comments any 
time before March 12, 2009, they did not need to resubmit because we 
had already incorporated them into the public record and would consider 
them in preparation of our final determination. By the close of the 
second public comment period on March 12, 2009, we had received written 
responses from 40 individuals and 7 organizations.

Response to Public Comments

General Comments

    Comment: We received two general comments on the overall 
regulations that expressed strong opposition to the concept of allowing 
any harvest of migratory birds in Alaska.
    Service Response: For centuries, indigenous inhabitants of Alaska 
have harvested migratory birds for subsistence purposes during the 
spring and summer months. The Canada and Mexico migratory bird treaties 
were recently amended for the express purpose of allowing subsistence 
hunting for migratory birds during the spring and summer. The 
amendments indicate that the Service should issue regulations allowing 
such hunting as provided in the Migratory Bird Treaty Act, 16 U.S.C. 
712 (1). See Statutory Authority section for more details.
    The Preamble to the Protocol amending the Canada Treaty states that 
one of its goals is to allow a traditional subsistence hunt while also 
improving conservation of migratory birds through effective regulation 
of this hunt. In addition, the Preamble notes that, by sanctioning a 
traditional subsistence hunt, the Parties do not intend to cause 
significant increases in the take of migratory birds, relative to their 
continental population sizes, compared to the take that is presently 
occurring. Any significant increase in take as a result of the types of 
hunting provided for in the Protocol would be inconsistent with the 
Convention. If at some point the subsistence harvest regulations result 
in significantly increased harvest, management strategies will be 
implemented to ensure maintenance of continental populations.
    Comment: One commenter expressed: ``I was listening to some of 
these people that said they . . . have been giving out citations. And 
there was an incident two or three years ago, one of your agents 
violated one of the fishing nets that was out in the Inlet. Were there 
any citations or arrests made in that occasion? I don't think so. 
Because it was in the papers that they pull a net out just to release a 
loon that was tangled up in the net; left the net on the sand for the 
fish to rot.''
    Service Response: This was an isolated incident. We worked with the 
owner of the subsistence net and the North Slope Borough to resolve the 
issue.
    Comment: Two commenters requested that the public comment period be 
delayed past the holidays, and/or extended past 30 days.
    Service Response: We were not able to extend the original comment 
period, but we did reopen the public comment period until March 12, 
2009 by publishing a document in the February 10, 2009, Federal 
Register (75 FR 6563). The public was informed that if they had 
submitted comments any time before March 12, 2009, they did not need to 
resubmit because we had already incorporated them into the public 
record and would consider them in preparation of our final 
determination.
    Comment: Sixteen commenters explained the true value of subsistence 
to their way of life on the North Slope -- it includes both providing 
essential food and preserving the age-old customs and traditions 
associated with it.
    Service Response: We respectfully acknowledge the importance of the 
customs and traditions that go along with the subsistence way of life 
in rural Alaska. One of the mandates of the Migratory Bird Treaty 
Amendment Protocols with Canada and Mexico is to recognize and maintain 
the cultural and traditional lifestyle of the indigenous inhabitants of 
Alaska.
    Comment: In regard to the proposed new North Slope regulations, one 
commenter wrote, ``we believe the rule is unlikely to achieve its 
objectives in the medium to long term, and will likely create much 
mistrust between the community and your agency. This mistrust may 
affect the Service's ability to achieve its mission in regard to other 
species.''
    Service Response: We intend to make every attempt to maintain 
positive working relationships with the North Slope communities by 
developing conservation measures in a cooperative environment.
    Comment: Five commenters brought up that proposed changes in the 
regulations were not developed in coordination with the North Slope 
Borough or other North Slope organizations and the tribal entities in 
particular that have a right to have a government-to-government 
relationship.
    Service Response: We will continue to improve our coordination 
efforts as this situation dictates the need for special conservation 
provisions in the regulations for listed species. Given the mortality 
of Steller's eiders documented in Barrow in the summer of 2008, we 
determined that there was an urgent need to get preventative actions 
put in place before the start of the 2009 subsistence season. A process 
was established to develop consensus among Service analysts as to what 
actions to propose, but due to the controversy involved, the process 
took some time.
    Once we decided on a course of action, we went to Barrow in 
December to seek comments at a public meeting of the North Slope Fish 
and Game Advisory Committee. We conducted public meetings in Barrow, 
Wainwright, Point Lay, and Point Hope on January 26-29, 2009, and again 
in Point Lay on March 10, 2009, documenting public comments on the 
proposed actions. A meeting was held on February 6, 2009, in Anchorage 
between the Service, the Alaska Department of Fish and Game, the North 
Slope Borough Wildlife Department, the Native Village of Barrow, 
Inupiat Community of the Arctic Slope, Wainwright Traditional Council, 
and Ukpeagvik Inupiat Corporation to discuss the current situation and 
come up with options working toward a solution. The Alaska Regional 
Director made several trips to Barrow (February 10 and March 12 and 26, 
2009) to meet with all the leaders of the North Slope organizations and 
craft

[[Page 23340]]

a Memorandum of Understanding between the Service and partnering North 
Slope organizations.
    Comment: Seven commenters expressed concern that the new proposed 
regulations for the North Slope did not go through the Alaska Migratory 
Bird Co-Management Council and ``if regulations are put in place that 
are unilaterally put in by the Service without going through the Co-
Management Council that helps defeat the purpose of the Co-Management 
Council; it doesn't engender trust; it doesn't engender respect, and 
after all it is a co-management council where the partners are supposed 
to be working together and the Steller's eiders regulations in 2009 
have not gone through that co-management process. . . . But using the 
Co-Management Council as an umbrella, as a cover for the unilateral 
decisions that the Service is making in this case, is not appropriate 
and perhaps a better way to do these regulations would be to go through 
the Section 7 consultation instead of in the Co-Management Council's 
own regulations.'' Another commenter explained: ``Going outside of the 
co-management process for development of significant rule changes 
erodes confidence and legitimacy in the co-management process.''
    Service Response: The Co-Management Council was briefed on 
Steller's eider issues and the situation on the North Slope at its fall 
meeting on September 24-25, 2008. Reviewing the incidence of human-
caused Steller's eider mortality documented in Barrow in the summer of 
2008, we determined that there was an urgent need to put preventative 
actions in place before the start of the 2009 subsistence season. 
Regulatory changes were developed later in the fall to serve as 
preventative actions. The Co-Management Council members were then 
informed on the details of the proposed actions upon publication of the 
proposed rule and encouraged to submit comments during the public 
comment period.
    Comment: Eight commenters expressed concern that the Service needs 
to work with the North Slope Borough, Ukpeagvik Inupiat Corporation 
(UIC), tribal entities, and the City of Barrow to come up with a 
solution together.
    Service Response: We agree on the importance of developing a plan 
of action together with the organizations representing the involved 
public. A meeting was held on February 6, 2009, in Anchorage between 
the Service, the Alaska Department of Fish and Game, the North Slope 
Borough Wildlife Department, the Native Village of Barrow, Inupiat 
Community of the Arctic Slope, Wainwright Traditional Council, and UIC 
to discuss the current situation and come up with options working 
toward a solution. A Memorandum of Understanding is to be signed by 
these parties prior to the opening of the season.
    Comment: One commenter questioned that we did not exercise due 
diligence in consulting with tribal authorities under Executive Order 
13175 and Secretarial Order 3225 regarding the Endangered Species Act 
and its application to Alaska Native subsistence. Six additional 
commenters expressed concern that we have not consulted nor coordinated 
with North Slope tribal governments to evaluate the new regulations for 
possible effects on tribes or trust resources. One commenter also 
brought up the 2004 Consolidated Appropriations Act (Section 16) 
requiring consultations with Alaska Native Corporations on the same 
basis as Indian tribes.
    Service Response: We are strongly committed to a public process 
that's includes input from everyone affected by its regulatory 
decisions. We also recognize that Alaska's tribes have a special, 
unique legal and political relationship with the Federal government as 
exemplified by Executive Order 13175. However, because the takings 
exemption in the Migratory Bird Treaty Act applies to all indigenous 
inhabitants of the subsistence harvest areas, regardless of tribal 
status, we disagree that formal government to government consultation 
is required. Nevertheless, we chose to consult with tribes in the 
development of the program structure implementing the Co-management 
program as described in our 2002 final rule (67 FR 53517, August 16, 
2002). The Co-management Council was formed in part to serve as the 
venue for meaningful dialogue with duly appointed regional 
representatives whose principal duty is to carry forward 
recommendations from Alaska Natives, including representatives of 
Federally-recognized tribes and Alaska Native Corporations, throughout 
their region. Five additional elements were added to the proposed 
regulation beyond the elements considered by the Co-management Council. 
To ensure input was received from affected Federally recognized tribes 
and Alaska Native Corporations regarding these five elements, the 
Service held public meetings in Barrow, Wainwright, Point Lay, and 
Point Hope. While scheduling these meetings, members of the Service 
contacted various Federally-recognized tribal government officials and 
offered to meet with them separately to hear information about the 
proposed regulation and to provide additional opportunity for the 
tribal government or Alaska Native Corporation representative to 
comment. In addition, we contacted each affected tribal government and 
Alaska Native Corporation and provided a copy of the proposed 
regulations, encouraging them to submit any comments in writing. At the 
request of Point Lay Tribal Council members, we held one additional 
public meeting in Point Lay during a time when more tribal council 
members could be present. To date, we have conducted 28 meetings on the 
North Slope with the affected tribal governments and other partners to 
foster agreement and cooperation on the strengthened efforts to 
conserve Steller's eiders.
    The five additional elements were added to conserve and protect 
species listed under the Endangered Species Act. However, this 
regulation establishes restrictions applicable only to listed species 
and is submitted under the authority of the Migratory Bird Treaty Act 
and not the Endangered Species Act. Consequently, the proper authority 
for consultation is Executive Order 13175. To the extent Executive 
Order 13175 or the 2004 and 2005 appropriations bill language applies, 
consultation was conducted as described above.
    Comment: One commenter cited Executive Order 12866, and asked 
whether the rule will create inconsistencies with other Federal 
agencies' actions (per section 3(f)(2)) and entitlements, grants, user 
fees, loan programs, rights, and obligations of their recipients (per 
section 3(f)(3)). Under Executive Order 12630, the commenter stated 
that this rule does have significant taking implications.
    Service Response: The Office of Management and Budget has 
established and published criteria for determining whether or not a 
rule is significant under Executive Order 12866 (see Required 
Determinations section for more details). Inconsistencies will not be 
created via this rulemaking with other Federal agencies' actions. This 
rule will not have an annual effect of $100 million on the economy. 
Also this rule will not materially impact entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
With regard to Executive Oder 12630 (Takings), this rule applies to the 
harvesting of migratory birds and has no impact on land ownership.
    Comment: One commenter brought up concerns under the Unfunded 
Mandates Reform Act stating: ``In developing the

[[Page 23341]]

rules, the Department of the Interior certified that this rule ` ... 
does not have a significant or unique effect on state, local, or tribal 
governments or the private sector' under the Unfunded Mandates Reform 
Act. In contrast, we believe the rule will have unique effects, in two 
ways. First, obtrusive observation by enforcement personnel will change 
subsistence harvesting patterns, likely leading to active avoidance of 
not only enforcement personnel but also others in the area, such as 
agency biologists, researchers, and staff of the regional 
government.... Second, as the Service relies on harvest figures from 
the Borough migratory bird household surveys, the new regulations will 
likely depress community support for surveys in general.... As a 
result, the `best available science' will be more difficult to collect 
and of questionable reliability.''
    Service Response: The Unfunded Mandates Reform Act addresses only 
economic impacts of more than $100 million on local, State, or tribal 
governments. This rule results in no such economic impacts. See the 
Unfunded Mandates Reform Act section of the preamble for more details.
    Comment: One commenter expressed: ``We want to see more employment 
with our own Native people and my tribal members. We want to see more 
funds coming in . . . having Fish and Wildlife people that are tribal 
members so that we can regulate what's going on out there and be a part 
of it . . . .''
    Service Response: We agree that it is desirable for the Federal 
Government to employ more local people and we have sought opportunities 
to do so. Since 2005, the Office of the Co-management Council has 
funded North Slope subsistence migratory bird harvest surveys through 
the North Slope Borough, which has involved the hiring of local 
surveyors in the villages. The Native Village of Barrow recently 
submitted an application for a tribal wildlife grant, and an award is 
expected in March or April 2009. This grant provides funding to hire 
one or more individuals to conduct eider monitoring and outreach in 
Barrow for the season. We are also in the process of contracting for a 
community liaison representative to reside in Barrow.
    Comment: One commenter opined that it is necessary to revise the 
Environmental Assessment before proceeding with this rulemaking 
document. The commenter believes that the existing Environmental 
Assessment failed to adequately consider the effects of the ruling on 
North Slope public health and safety.
    Service Response: The primary purpose of the preferred alternative 
in the existing Environmental Assessment (EA) for the 2009 season is to 
open a season that allows for continuation of a customary and 
traditional harvest of migratory birds by qualified Alaska residents, 
including non-Natives. Another purpose is to avoid negative impacts on 
threatened or endangered migratory birds. The EA evaluates the 
potential impacts of regulations proposed for the 2009 season. The only 
new regulation for the North Slope that could limit the subsistence 
harvest of birds is the shooting hours restriction prohibiting shooting 
in the dark, which applies only during the last 11 (Barrow) to 21 
(Point Hope) days in August.
    We do not have adequate information to evaluate how many birds are 
normally taken in the dark, or how much of an impact this will have on 
the families partially or entirely dependent on subsistence foods. 
However, this impact will still be far less than that imposed by the 
other alternatives considered, such as not opening the subsistence hunt 
statewide or opening a hunt that parallels the sport hunt by including 
species bag limits plus restriction on shooting hours. So even given 
the potential negative impacts on subsistence users of the affected 
North Slope communities, we would still choose the same preferred 
alternative and do not see a need to reinitiate the EA process for the 
2009 season. In the event of a limited harvest closure on the North 
Slope issued under our Emergency Closure authority, we will meet the 
National Environmental Policy Act requirements by following published 
emergency procedures culminating in an Environmental Action Statement.

Law Enforcement

    Comment: We received nine comments regarding the enforcement of the 
migratory bird subsistence regulations in the Barrow area. Commenters 
indicated that they believe enforcement was ``too aggressive,'' that 
the killing of Steller's eiders during 2008 was not done by subsistence 
hunters, and that the community and the Service should work together to 
find solutions and not resort to law enforcement.
    Service Response: Since the Migratory Bird Treaty Amendments and 
Co-management Council regulations process has been implemented, the 
Service's Office of Law Enforcement and Divisions of Endangered Species 
and Migratory Bird Management have worked with many groups and 
individuals in the greater North Slope area and Barrow specifically to 
provide information on the regulatory requirements and enforcement of 
the regulations. Our approach has focused on significant outreach 
efforts, including public meetings, radio talk show opportunities, 
posted fliers, and brochures followed by a phased-in, increased 
reliance on enforcement actions.
    We are working closely with North Slope communities and Tribal 
entities to formulate a comprehensive conservation strategy for 
Steller's eider conservation that focuses on public outreach, harvest 
monitoring, and when necessary, enforcement. We are hopeful that this 
increased emphasis on collaboration will allow the hunting public to 
participate fully in the process.
    Comment: One commenter questioned whether the enforcement officers 
can identify the different eiders. The commenter said that the officers 
should be trained in bird identification before contacting hunters.
    Service Response: All of the Service law enforcement officers 
detailed to work on the North Slope of Alaska are trained and 
proficient in waterfowl identification, including eiders.
    Comment: Two commenters question how the new regulations for the 
subsistence migratory bird hunt can be enforced on private lands in and 
around Barrow, and one commenter added concern that violators, if 
caught, could go to Federal prison.
    Service Response: The Migratory Bird Treaty Act gives the Federal 
Government, namely the Service, the jurisdiction to enforce all 
regulations regarding the taking of migratory birds within the United 
States. Enforcement of these regulations is neither dictated or in any 
way restricted by land or water ownership. Most violations of the 
subsistence migratory bird regulations are misdemeanors involving only 
monetary fines with an optional appearance in Federal Court.
    Comment: One commenter expressed the opinion that law enforcement 
is counterproductive in subsistence hunts. The commenter explains: 
``Clearly for commercial fishing and commercial hunting and guided 
hunts you need enforcement agents, but I think there's good evidence 
that enforcement in a subsistence hunt is counterproductive . . . . 
There's lot of scientific literature that indicates that enforcement in 
a subsistence setting is not helpful.''
    Service Response: We balance education, outreach, and enforcement 
with a goal of encouraging voluntary compliance. We believe that the

[[Page 23342]]

penalties imposed for violations serve as a deterrent and encourage 
conservation.
    Comment: One commenter remarked that: ``The department in 
promulgating this rule has determined it will not unduly burden the 
judicial system and it meets the requirements of section 3(a) and 
section 3(b)(2) of Executive Order 12988. And this is not true. There 
will be a burden on the judicial system . . . if people have to go 
through courts and the systems.''
    Service Response: In 2008, eight Violation Notices (tickets) were 
issued on the North Slope for migratory bird harvest violations. These 
violations are classified as misdemeanors, and the Service, through the 
issuance of Violation Notices, seeks only monetary fines. A hunter who 
is given a Violation Notice has the option to appear in Federal Court 
to contest the charge. Only more serious violations require a mandatory 
court appearance. These changes should not pose any significant 
additional burden on the judicial system.

How Will the Service Ensure That the Subsistence Harvest Will Not Raise 
Overall Migratory Bird Harvest or Threaten the Conservation of 
Endangered and Threatened Species?

    Comment: We received six comments acknowledging the need for 
Steller's eider conservation on the North Slope.
    Service Response: We appreciate the shared concern for this 
threatened species.
    Comment: We received six comments that the new regulations created 
to conserve Steller's eiders are creating a problem for the subsistence 
users on the North Slope. The commenters stated that local people 
depend on harvest of marine mammals, birds, fish, and other subsistence 
animals, and that the new proposed regulations could result in negative 
impacts to the local people, but that it is not clear whether these 
proposals are going to help raise the population of the threatened 
eiders.
    Service Response: Under the Migratory Bird Treaty Act and the 
Endangered Species Act, we have a compound mandate emphasizing 
conservation of migratory birds and the protection of threatened and 
endangered species, while providing for the customary and traditional 
taking of migratory birds for subsistence use. The intent of the new 
North Slope regulations is to fulfill these competing mandates, while 
eliminating or minimizing take of threatened eiders during the 
subsistence harvest. In season monitoring will determine the 
effectiveness of these regulations and other efforts.
    Comment: One commenter explained that the Steller's eider hen and 
ducklings found left in a pile were put there deliberately by 
subsistence hunters for law enforcement to find. A second commenter 
adds: ``the steller's eider deaths are not unintended take resulting 
from the subsistence hunt; they are an illegal deliberate take 
resulting from individuals breaking the law. The proposed rule punishes 
not only those individuals responsible for killing eiders, but the 
entire community....'' A third commenter echoed that these birds were 
shot in response to negative interactions between hunters and 
enforcement.
    Service Response: Under the Endangered Species Act, incidental take 
is defined as the taking of a protected species not for the purpose of, 
but only incidental to, the carrying out of an otherwise lawful 
activity. The Steller's eiders found dead in Barrow last year comprised 
take relative to the subsistence hunt, malicious take, accidents, and 
unknown causes. When we find birds that have been shot and abandoned, 
it is difficult to determine why. These regulations are intended to add 
protection by minimizing take associated with the subsistence hunt.
    Comment: One commenter brought up the point that Steller's eiders 
have a history of not nesting every year in the Barrow area, and that 
if they don't nest in 2009, then the new regulations would not be 
necessary and should be eliminated for the remainder of the 2009 
season.
    Service Response: Even in failed nesting years, protected eiders 
may continue to stay in the area before migrating south, and birds 
nesting further east will migrate through the area.
    Comment: We received two comments that local elders had provided 
testimony that Steller's eiders were abundant in Barrow in some years 
and not in others, suggesting that Barrow may be on the outer range of 
these birds, which would explain inconsistencies in nesting. A second 
commenter added: ``You must also account for the possibility that 
eiders from Russia may come to Barrow and northern Alaska to nest every 
once in a while.''
    Service Response: We agree that Alaska is on the outer edge of the 
species' current breeding range. We believe that inconsistencies in 
nesting arise from the species' association with brown lemmings and 
their predators, which vary in abundance from year to year. This 
appears to be true in Russia as well as in Alaska. We have some 
evidence to suggest that females that nest in Alaska return to Alaska 
in subsequent years and have no evidence of females switching from one 
continent to another for breeding. Males probably switch between 
continents, following females. We have the responsibility to conserve 
the population listed as threatened, which is the North American 
breeding population.
    Comment: Ten commenters expressed concern that the real cause of 
the Steller's eider decline in the Barrow area was not being addressed, 
namely the effects of predators such as gulls, jeagers, ravens, and 
arctic foxes. One commenter suggested using local hunters to kill foxes 
around Barrow in the winter and shoot gulls in the summer. Another 
commenter added: ``Predator control seems like a reasonable idea using 
local hunters, both the avian and ground predators, outreach of course 
suggested, but that could be enhanced, possibly some habitat 
enhancement. It's interesting that the highest nesting density is in a 
drained lake out here along the Gaswell Road.''
    Service Response: The Steller's Eider Recovery Plan lists a number 
of factors contributing to the species' decline, including predators. 
Arctic foxes are documented to be the primary nest predator. Our fox 
control program has had some success in reducing fox numbers in the 
Barrow nesting area. We are continuing discussions with our North Slope 
partners to explore other means to control predators as necessary.
    Comment: One commenter expressed concern about a statement the 
Service had made saying that Steller's eiders only reside in the Barrow 
area. The commenter countered that subsistence hunters have seen them 
all over the North Slope and that calling them endangered is misleading 
because they are abundant in other parts of the world.
    Service Response: We acknowledge that there may have been a 
misunderstanding between the commenter and what was stated by the 
Service representative. It is well documented that Steller's eiders 
range throughout the coastal North Slope, but primarily west of 
Nuiqsut. Steller's eiders are divided into Atlantic and Pacific 
populations; the Pacific population is further divided into the more 
abundant Russia-breeding population along the Russian eastern arctic 
coastal plain, and the threatened Alaska-breeding population. Service 
aerial survey information has documented a concentration of breeding 
birds in and around Barrow. We welcome additional information and will 
incorporate it into future analyses as feasible.

[[Page 23343]]

    Comment: One commenter expressed concern that ``on the Energy 
Supply, Distribution or Use, Executive Order 13211, you have the oil 
companies you're protecting that come down here and do a whole bunch of 
flying all over the area around the nesting areas and probably are 
killing some off too.'' Three other commenters also brought up oil and 
gas exploration and expressed concern that the Service was not fully 
considering the possible impacts on the endangered eiders by increasing 
development.
    Service Response: We hold all North Slope users to the same 
standards in regard to the take of protected species. Under the 
Endangered Species Act, the definition of ``take'' includes 
disturbance. Every federal agency is required to consult with the 
Service under Section 7 of the Endangered Species Act to ensure that 
any action authorized, funded or carried out by such agency is not 
likely to jeopardize the continued existence of any threatened or 
endangered species, such as spectacled and Steller's eiders, and is not 
likely to result in the destruction or adverse modification of 
designated critical habitat Accordingly, we regularly review oil and 
gas activities authorized, funded or carried out by federal agencies in 
these consultations under Section 7.
    Comment: Two commenters brought up the issue of decreasing sea ice 
and the likely increase in tourism and other shipping, and that the 
Service should be evaluating what this may do to the endangered eiders 
using the North Slope.
    Service Response: As the climate and habitat changes, any new users 
of the area will also be subject to the Service's review of their 
activities in accordance with the requirements of Section 7 of the 
Endangered Species Act.
    Comment: Four commenters expressed doubts concerning the Steller's 
eider population model cited in the proposed rule with one commenter 
stating that ``the results of the model actually show that the 
population could go extinct in 10 years, but it also shows that the 
population could increase. There's so much variability in the data and 
the model is not good enough that it shouldn't be used to support the 
decision.'' Two commenters complained that neither the model nor the 
analyses on which it is based were made available to the public, nor 
was the model peer reviewed. Another commenter expressed ``there is 
uncertainty surrounding the population size, survival rate, 
reproductive rate, estimates used to develop this model.'' Yet another 
commenter pointed out deficiencies in the model, including very sparse 
data sets on breeding and productivity parameters and low sample sizes 
for clutch size, hatching success, and fledging success.
    Service Response: We agree with some of these concerns and, 
consequently, we do not intend to use or cite the Steller's eider 
population model again until it has been peer reviewed, and we have 
confirmed that it represents the best available science.
    Comment: Two commenters stated concern over the incidental damage 
caused to nesting Steller's eiders by the Service's research and 
monitoring efforts around Barrow, from nest abandonment to actually 
stepping on eggs. There should be equal disclosure on incidental and 
accidental damage done during the research each year, and that they had 
heard over 10 were killed last year alone during the course of 
conducting research.
    Service Response: We acknowledge that research and monitoring, even 
when performed by professional biologists, impacts nesting birds. 
Generally this impact is of small magnitude. However, although every 
reasonable effort is made to keep it minimal, acquiring needed 
information for biological studies makes some disturbance unavoidable. 
Few quantitative estimates of the extent of detrimental effects exist 
for waterfowl, particularly for eiders in tundra environments. However, 
we have been monitoring and reporting all documented or suspected 
detrimental effects of their studies on Steller's eiders in the Barrow 
area, according to research permit requirements. Those effects over the 
years have been minimal (Rojek 2008), but do include the possible loss 
of one nest in 2008. In other areas, the depredation rate on eggs or 
nests in a Brant colony was not found to be influenced by researcher 
nest visits (Sedinger 1990). A similar study found minimal effects on 
egg loss (<0.7%) by nest visits in a Snow Goose colony (Bety and 
Gauthier 2001), in spite of increased activity by glaucous gulls in the 
visited colony in one of two years of study. Daily survival rates were 
slightly smaller (but not significantly so in either of two years) for 
marked visited nests compared to remotely monitored Spectacled Eider 
nests (Grand and Flint 1997).
    Recently, more sensitive statistical analysis procedures have been 
derived to detect and correct for observer effects on daily survival 
rates (Rotella 2000), although large samples are needed to detect 
differences. Using this method, studies of nesting in King Eiders 
confirmed a short-term negative effect associated with observer visits 
to nests (Bentzen et al. 2008). Even if hard to quantify, the influence 
of visitation is recognized by biologists and continued efforts are 
made to minimize harm by reducing visitation frequency and not 
unnecessarily flushing incubating birds. There is more concern that 
change in predator populations associated with development or other 
activities could have larger effects (Truett 1997). Increased predator 
populations would potentially influence success of all nests, not just 
the small proportion of nests that are studied by biologists.
    Comment: One commenter expressed concern over growing ``invasive'' 
species such as the ``Canada white geese'' (snow geese) overgrazing in 
some areas and out-competing other species out of the habitat.
    Service Response: There has been no documented evidence that snow 
geese compete with eiders for either food or habitat. We are not aware 
of any adverse impacts to protected eiders by invasive bird species on 
the North Slope.
    Comment: One commenter questioned if the Service understood the 
bigger picture of what has happened to the Steller's eiders. The 
commenter explained that for people in Barrow, their diet is mainly 
snow geese, king eider's, and occasionally, the common eiders. ``But we 
don't hunt these Steller's, and we know that the population is low.'' 
Furthermore, ``The elders tells us that sometimes they come lots and 
sometimes they come few. They also said maybe . . . they're going down 
south, something happening and not--and it's not in the Arctic, but 
when they go down south to eat--maybe something's coming from the ocean 
or Aleutian or natural gas seepage or what, I don't know.''
    Service Response: We agree that the original cause of the decline 
in Steller's eiders in Alaska is unknown; however, eider adult 
mortality from all causes has a significant impact on threatened North 
American breeding populations. The changes in harvest regulations for 
the North Slope are an attempt by us to minimize adult mortality 
incidental to the subsistence harvest.

Comments on Original Region-Specific Regulations

    Comment: One commenter opposed the closed season for nesting birds 
in the Barrow area explaining: ``And the dates that it's open and 
closed: I hunt well before these dates on birds and I hunt well after 
that it's closed. So I hunt well before April...all the way until 
October. I hunt all summer days. So I think you guys need to change 
that.''

[[Page 23344]]

    Service Response: The Migratory Bird Treaty with Japan dictates 
that birds must be protected during their principal nesting season. The 
Service, working with the Co-management Council, has agreed that a 30-
day closure is the minimum necessary to adequately protect the nesting 
birds. We deferred to the North Slope partners to specify the dates of 
the closure.

What Is Different in the Region-Specific Regulations for 2009? - 
Yellow-billed Loons and Aleutian Terns

    Comment: One commenter expressed support of the proposal to 
continue allowing possession of inadvertently caught yellow-billed 
loons on the North Slope.
    Service Response: We appreciate the continued support on this 
regulation.
    Comment: One commenter supported the new tern egg harvest in the 
Yakutat area, but cautioned that the Service should annually assess the 
harvest's impact on overall tern productivity in the affected colonies 
to ensure that harvest practices are efficient and minimally disruptive 
to the terns.
    Service Response: The U.S. Forest Service is partnering with us to 
ensure that annual monitoring of the affected tern colonies will be 
conducted. In addition, the Yakutat tribe has agreed to monitor the 
subsistence harvest.

What Is Different in the Region-Specific Regulations for 2009? - 
Steller's Eiders

    Comment: Six commenters did not like the new North Slope regulation 
making it illegal to simply possess a Steller's eider, stating that 
culturally they are not a wasteful people and will salvage a bird even 
if they did not kill it. One commenter clarified: ``It's our customary 
and traditional practice to pick up animals that are edible, and if it 
happens to be a spectacled or Steller's eider, we're going to use it 
for food and we shouldn't be cited for stuff like that. The other one 
is at least I was raised when you see an animal suffering that may have 
hit a power line and it happens to be a spectacled or Steller's eider, 
we should have every right to kill that bird and use it for subsistence 
because we do not let our animals suffer. That's the way we were 
raised, and that's what those regulations should be.''
    Service Response: This regulation clarifies a point that it is 
already illegal under the Migratory Bird Treaty Act to possess any bird 
closed to harvest. You may not possess birds that are illegally 
harvested. We agree that birds should not be wasted and we use 
recovered carcasses for additional scientific studies and educational 
purposes. After samples are taken, the hide may be made available for 
customary and traditional uses such as replicating a historical garment 
made of eiders.
    Comment: Two commenters questioned the proposed regulation 
requiring subsistence hunters to present their birds upon request of a 
Service law enforcement officer. One commenter questioned whether this 
requirement would provide additional information on the harvest and how 
this would be applied outside of Barrow. Another commenter explained 
their opposition to the regulation: ``and again I see by force 
proposed...that's what I heard tonight with number 4, must present to 
the officer for species identification. To me that's called a fool; a 
fool that wants to go to jail. I certainly don't want to go to jail for 
any reason, especially for just killing a bird.''
    Service Response: An important component of the conservation 
strategy being developed is to enable publishing of the annual 
regulations to open the subsistence harvest. A key component on the 
North Slope will be our ability to monitor and verify the ongoing 
harvest. This requirement will enable our officers to effectively 
verify harvest composition when contacting hunters in the field.
    Comment: One commenter explained that both the requirement to 
present birds taken to law enforcement officers and the prohibition on 
simple possession of a Steller's eider ``are redundant with existing 
authorities. The provisions seem unnecessary to make possession of 
illegal birds a violation, and they would not alter requirements for 
search and seizure to compel presentation of birds.''
    Service Response: Both are already legal requirements, but not 
explicitly spelled out in the migratory bird subsistence regulations. 
Publication in the Federal Register reinforces and clarifies these 
requirements for the North Slope subsistence user.
    Comment: Six commenters expressed concern about the emergency 
closure provision regarding Steller's eiders stating that there is no 
definition as to what is needed to trigger the closure. One commenter 
clarified: ``we are concerned that the provisions in proposed 50 CFR 
92.32 are not sufficiently defined. In particular, FWS should clarify 
what level of mortality or other activity would constitute an imminent 
threat to the conservation of threatened Steller's eiders.... FWS 
should specify what action it will take to abate that threat once such 
a finding is made.'' Another commenter specifically wanted to know ``If 
our people in Point Lay take spectacled (Steller's) eiders, you know, 
by accident . . . is that going to affect Wainwright or Barrow?'' 
Another commenter stated that ``the Service should consider a realistic 
threshold for take including non-hunting mortalities... by which to 
measure the efficacy of subsistence hunting restrictions to protect the 
Steller's eider.''
    Service Response: We continue to work diligently with our North 
Slope partners to avoid any emergency harvest closure. If Stellar's 
eider mortalities occur, we will evaluate each mortality event by 
criteria such as: cause, quantity, sex, age, location, and date. If we 
find that an imminent threat is posed to the eiders, we will take 
action necessary to prevent further take of Steller's eiders, which 
could include temporary or long-term closures. We will consult the Co-
management Council when an emergency harvest closure is being 
considered. Any emergency closure deemed necessary will be designed to 
minimize its impact on subsistence harvest.
    Comment: One commenter questioned why 50 CFR 92.32, which 
authorizes emergency closures to protect Steller's eiders, is a 
necessary addition to the already published regulation at 50 CFR 92.21.
    Service Response: We are clarifying that the Alaska Regional 
Director has the authority to initiate an emergency closure to minimize 
take of threatened eiders.
    Comment: Five commenters stated concern over the negative impacts 
any emergency closure would have over customs and traditions affecting 
Barrow and other coastal communities. One commenter explained it this 
way: ``successful whaling captains have a responsibility...to feed the 
community. And the first serving that they do is going to be soup, and 
that soup is going to be ducks, king and common eider, geese, caribou, 
and other things, but the majority of it is going to be migratory 
birds. We have a harvest quota of 22 or more animals or bowhead whales 
per year, and we could have up to that many (Nalukataq--summer blanket 
toss festivals) ..., but we have a lot of people to feed. And if these 
proposed regulations are going to impact our whaling, you know, to be 
able to serve the soup, you're going to have a big problem on your 
hand(s).'' Another commenter explained that ``if the Service determines 
that the hunt should be curtailed to protect the Steller's eider, it 
should leave room for the Inupiat to continue their practice of 
nalukataq.'' Two other commenters explained about the importance of 
duck hunting while spring whaling, because

[[Page 23345]]

the birds are used directly to feed the whalers while out on the ice 
for long periods.
    Service Response: We will make every practical attempt to avoid 
closing the subsistence harvest of birds. These regulations are 
designed to provide opportunity for spring and summer subsistence 
harvest of migratory birds while protecting listed eiders. We agree 
that an emergency closure would impact that opportunity locally. Any 
emergency closure deemed necessary will be designed to minimiz