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a petition under this section should also application to the Administrator only Donna Dewhurst, (907) 786-3499, U.S. include in their comments to the ERD after notice and an opportunity for a Fish and Wildlife Service, 1011 E. telephone numbers at which their hearing on the waiver. The Tudor Road, Mail Stop 201, Anchorage, representatives may be reached. Administrator will immediately revoke AK 99503. Interested parties may submit their the waiver if continuation of the waiver SUPPLEMENTARY INFORMATION: comments using any of the following would not be consistent with the goals methods: and objectives of this part. Why Is This Current Rulemaking (1) E-mail to FRA at: (4) In granting a waiver under this Necessary? [email protected]. section, the Administrator will consult This current rulemaking is necessary (2) Facsimile to FRA at: 202–493– and coordinate with other Federal because, by law, the migratory bird 6309. agencies, as appropriate, for matters that harvest season is closed unless opened (3) Mail to the Docket Clerk, DOT may significantly impact such agencies. by the Secretary of the Interior, and the Docket Management Facility, West regulations governing subsistence Building Ground Floor, Room W12–140, Issued in Washington, DC, on May 13, 2009. harvest of migratory birds in Alaska are 1200 New Jersey Ave., SE., Washington, Joseph Szabo, subject to public review and annual DC 20590 or electronically via the approval. The Alaska Migratory Bird Co- internet at http://www.regulations.gov. Administrator, Federal Railroad Administration. management Council (Co-management Any comments or information sent Council) held a meeting in April 2008 [FR Doc. E9–11598 Filed 5–18–09; 8:45 am] directly to FRA will be immediately to develop recommendations for provided to the DOT FeP for inclusion BILLING CODE 4910–06–P changes effective for the 2009 harvest in the ERD. season. These recommendations were (i) Request for hearing. Although the presented to the Service Regulations Administrator may waive compliance DEPARTMENT OF THE INTERIOR Committee (SRC) on July 30 and 31, with any part of a regulation prescribed 2008, and were subsequently proposed Fish and Wildlife Service or order issued without prior notice and in a December 18, 2008, Federal comment, parties desiring a public Register (73 FR 76994). hearing on any petition being processed 50 CFR Part 92 This rule finalizes regulations for the under this section must notify FRA [FWS–R7–MB–2008–0126; 91200–1231– taking of migratory birds for subsistence through the comment process identified 9BPP–L2] uses in Alaska during the spring and in paragraph (h) of this section within summer of 2009. This rule lists 72 hours from the close of business on RIN 1018–AW29 migratory bird season openings and the day that the petition is entered into Migratory Bird Subsistence Harvest in closures by region. and available on the FeP. In response to Alaska; Harvest Regulations for a request for a public hearing, FRA may: How Do I Find the History of These (1) Arrange a telephone conference Migratory Birds in Alaska During the Regulations? between all interested parties to provide 2009 Season Background information, including an opportunity for oral comment; AGENCY: Fish and Wildlife Service, past events leading to this action, (2) Arrange a public hearing pursuant Interior. accomplishments since the Migratory to the provisions contained in 49 CFR Bird Treaties with Canada and Mexico ACTION: Final rule. part 211; or were amended, and a history addressing (3) Determine that a public hearing is SUMMARY: The U.S. Fish and Wildlife conservation issues can be found in the unnecessary, inconsistent with safety, or Service (Service or we) establishes following Federal Register documents: not in the public interest. migratory bird subsistence harvest (j) Decisions. FRA may grant a regulations in Alaska for the 2009 Federal Register Date Citation petition for waiver without prior notice season. These regulations will enable and comment if the Administrator the continuation of customary and August 16, 2002 67 FR 53511 determines that it is in the public traditional subsistence uses of migratory interest to grant the waiver; the waiver birds in Alaska and prescribe regional July 21, 2003 68 FR 43010 is not inconsistent with railroad safety; information on when and where the and the waiver is necessary to address harvesting of birds may occur. These April 2, 2004 69 FR 17318 an actual or impending emergency regulations were developed under a co- April 8, 2005 70 FR 18244 situation or emergency event. The management process involving the Administrator will state in the decision Service, the Alaska Department of Fish February 28, 2006 71 FR 10404 issued under this section the reasons for and Game, and Alaska Native granting the waiver. representatives. The rulemaking is April 11, 2007 72 FR 18318 (1) FRA reserves the right to reopen necessary because the regulations any docket and reconsider any decision March 14, 2008 73 FR 13788 governing the subsistence harvest of made pursuant to these emergency migratory birds in Alaska are subject to procedures based upon its own These documents, which are all final annual review. This rulemaking initiative or based upon information or rules setting forth the annual harvest establishes region-specific regulations comments otherwise received. regulations, are available at http:// that go into effect on the date of (2) FRA decision letters, either alaska.fws.gov/ambcc/regulations.htm. publication in the Federal Register and granting or denying a petition, will be expire on August 31, 2009. Who Is Eligible To Hunt Under These posted in the appropriate ERD and will Regulations? reference the document number of the DATES: The amendments to subpart D of petition to which it relates. 50 CFR part 92 are effective May 19, Eligibility to harvest under the (3) A waiver under this section may 2009, through August 31, 2009. regulations established in 2003 was be issued for a period of not more that FOR FURTHER INFORMATION CONTACT: Fred limited to permanent residents, 60 days and may be renewed upon Armstrong, (907) 786-3887, or regardless of race, in villages located

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within the Alaska Peninsula, Kodiak additional protection for threatened Aleutian and Arctic Terns Archipelago, the Aleutian Islands, and spectacled and Steller’s eiders. Finally, We are opening a season May 15–June in areas north and west of the Alaska we have an emergency closure provision 30 for harvesting Aleutian and arctic Range (50 CFR 92.5). These geographical (50 CFR 92.21) which specifies that the tern eggs in the Yakutat Harvest area, restrictions opened the initial harvest may be closed or temporarily from Icy Bay (Icy Cape to Point Riou) subsistence migratory bird harvest to suspended upon a finding that a and the coastal islands bordering the only about 13 percent of Alaska continuation of the regulation allowing Gulf of Alaska from Point Manby residents. High-population areas such as the harvest would pose an imminent southeast to and including Dry Bay. The Anchorage, the Matanuska-Susitna and threat to the conservation of any Yakutat Tlingit Tribe requested this Fairbanks North Star boroughs, the endangered or threatened species or proposal, stating that this regulation Kenai Peninsula roaded area, the Gulf of other migratory bird population. would legalize a traditional gathering of Alaska roaded area, and Southeast With regard to Steller’s eiders, the tern eggs that has occurred for hundreds Alaska were excluded from the eligible new regulation at 50 CFR 92.32 clarifies of years. The Tlingit refer to the terns as subsistence harvest areas. that we will take action under 50 CFR Based on petitions requesting ‘‘sea pigeons’’ and gather eggs for 92.21 as is necessary to prevent further sustenance during the salmon fishing inclusion in the harvest, in 2004, we take of Steller’s eiders, which could added 13 additional communities based season. ‘‘Pigeon eggs’’ are considered a include temporary or long-term closures highly desired food by many Native on criteria set forth in 50 CFR 92.5(c). of the harvest in all or a portion of the These communities were Gulkana, households in Yakutat. Harvested eggs geographic area open to harvest. If are shared extensively throughout the Gakona, Tazlina, Copper Center, mortality of threatened eiders occurs, Mentasta Lake, Chitina, Chistochina, community and especially with local we will evaluate each mortality event by Native elders. The Yakutat Tlingit Tribe Tatitlek, Chenega, Port Graham, criteria such as: cause, quantity, sex, Nanwalek, Tyonek, and Hoonah, with a has agreed to monitor the harvest of tern age, location, and date. We will consult eggs and this summer will conduct a combined population of 2,766. In 2005, the Co-management Council when an we added three additional communities recall survey of the spring harvest. The emergency closure is being considered. Yakutat Ranger Station, U.S. Forest for glaucous-winged gull egg gathering Any emergency closure deemed only, based on petitions requesting Service, in cooperation with the necessary will be designed to minimize Service’s Alaska Office of Migratory inclusion. These southeastern its impact on the subsistence harvest. communities were Craig, Hydaburg, and Bird Management is developing Yakutat, with a combined population of What Is Different in the Region-Specific methods for monitoring the Aleutian 2,459. Regulations for 2009? and arctic tern populations in the Yakutat area. Work on this project is In 2007, we enacted the Alaska Yellow-billed Loons Department of Fish and Game’s request under way. This final rule implements the request to expand the Fairbanks North Star Spectacled and Steller’s Eiders Borough excluded area to include the of the North Slope Borough Fish and Central Interior area. This action Game Management Committee and the Spectacled eiders (Somateria fischeri) excluded the following communities recommendation of the Co-management and the Alaska-breeding population of from participation in this harvest: Big Council to continue into 2009 the Steller’s eiders (Polysticta stelleri) are Delta/Fort Greely, Healy, McKinley provisions originally established in listed as threatened species, and their Park/Village and Ferry, with a combined 2005 to allow subsistence use of yellow- migration and breeding distribution population of 2,812. These removed billed loons inadvertently entangled in overlaps with the spring and summer communities reduced the percentage of subsistence fishing (gill) nets on the subsistence harvest on the Yukon- the State population included in the North Slope. Yellow-billed loons are Kuskokwim Delta and the North Slope. subsistence harvest to 13 percent. culturally important for the Inupiat Both spectacled and Steller’s eiders are Eskimo of the North Slope for use in closed to hunting in the subsistence How Will the Service Ensure That the traditional dance regalia. A maximum of harvest, but harvest surveys and Service Subsistence Harvest Will Not Raise 20 yellow-billed loons may be caught in documentation indicates substantial Overall Migratory Bird Harvest or 2009 under this provision. This provisio numbers of both species have been Threaten the Conservation of does not authorize intentional harvest of taken during recent subsistence harvests Endangered and Threatened Species? yellow-billed loons, but allows use of on the North Slope. We have monitored subsistence those loons inadvertently entangled The North Slope breeding population harvest for the past 15 years through the during normal subsistence fishing of spectacled eiders was estimated to be use of annual household surveys in the activities. Individual reporting to the 12,916 (10,942-14,890, 95% Confidence most heavily used subsistence harvest North Slope Borough Department of Limits) individual birds during 2002- areas, such as the Yukon–Kuskokwim Wildlife is required by the end of each 2006 (Service unpublished data), and Delta. Continuation of this monitoring season. However, the North Slope they nest relatively widely across the enables tracking of any major changes or Borough has asked fishermen, through North Slope. It is estimated that 35 (33- trends in levels of harvest and user announcements on the radio and 40, 95% Confidence Limits) spectacled participation after legalization of the through personal contact, to report eiders were taken on the North Slope harvest. This final rule restricts hunting inadvertent entanglements of loons as during the 2005 subsistence season on the North Slope to times of day with they occur, to better estimate the level (Service unpublished data, 2006); it is sufficient daylight to enable hunters to of mortality caused by gill nets. In 2007, estimated 99 (44-155, 95% Confidence distinguish and avoid shooting closed 14 yellow-billed loons were reported Limits) spectacled eiders were taken at species. In addition, three conservation taken in fishing nets and an additional Barrow in 2007 (Service, preliminary measures, which focus on increased 2 were released alive. This provision, to data). migratory bird hunter outreach prior to allow subsistence possession and use of The North Slope breeding population hunts, increased regulatory enforcement yellow-billed loons caught in fishing gill of Steller’s eider was estimated to be and in-season harvest verification of nets, is subject to annual review and 576 (292-859, 90% Confidence Limits) Steller’s eider mortality, will provide renewal by the Service. individual birds during 1993-2008

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(Service, unpublished data), and most of were approved for implementation by corrective action can be taken to prevent their nesting appears to be concentrated the Alaska Regional Director on April 6, further mortality; and (iii) monitoring near Barrow, the northernmost point in 2009. The conservation measures for injured and dead birds to begin to Alaska. It is estimated that 19 (9-37, substantially increase protection for quantify crippling rate and loss. All in- 95% Confidence Limits) Steller’s eiders spectacled and, particularly, Steller’s season monitoring information will be were taken on the North Slope during eiders on the North Slope in 2009, and used to independently evaluate harvest the 2005 subsistence season (Service describe how the Service will detect, survey reports, the efficiency of the unpublished data, 2006); it is estimated remedy, and quickly curtail any regulations, conservation measures, and 36 (10 reported, Service preliminary shooting mortality or injury of Steller’s outreach efforts. data)] Steller’s eiders were taken at eiders that might occur during the To summarize, the Service has dual Barrow in 2007. A subsistence harvest harvest. In January 2009, the Service goals and responsibilities of authorizing survey is not yet available for 2008, but commenced planning for a subsistence harvest while protecting the Service documented 20 Steller’s implementation of each measure in migratory birds and threatened species. eiders shot at Barrow (with another 7 anticipation of the subsistence harvest. Although these goals are challenging, Steller’s eiders found dead but too The three conservation measures are: they are not irreconcilable with heavily scavenged to determine cause of sufficient recognition of the need to 1. Increase Migratory Bird Hunter death). protect threatened species, measures to Therefore, harvest survey estimates Outreach Prior to the Hunts remedy documented threats, and and direct observation of shot birds The Service with North Slope commitment from the subsistence indicate that direct shooting occurs partners will provide migratory bird community and other conservation during the subsistence harvest, with hunter outreach in Wainwright, Point partners to work together toward those impacts probably on the order of tens of Hope, Point Lay, and Barrow prior to dual goals. With these dual goals in each threatened eider species taken per the 2009 subsistence harvest. The mind, the Service has included in this year. Take is not authorized for either outreach educational objectives will final rule a provision that restricts species during the subsistence harvest, include: hunter understanding of the hunting on the North Slope to times of and, in the case of Steller’s eider, this 2009 hunting regulations; ability to day with sufficient daylight to enable amount of shooting mortality is likely distinguish among the open and closed hunters to avoid shooting closed not sustainable for the small Alaska- species of eiders in flight; the need to species. Moreover, the Service, working breeding population. Because of the reduce crippling loss; and an with partners, developed additional small Steller’s population size, their understanding of the Service’s role and measures to eliminate the potential for breeding concentration near Barrow, obligation for enforcement and shooting mortality or injury of the and the relatively high proportion of the monitoring. Alaska-breeding population of Steller’s estimated population shot during recent eider on the North Slope. These 2. Increased Service Enforcement of subsistence harvests, the Service measures include: 1) increased Migratory Bird Regulations focused on considering regulations and waterfowl hunter outreach and conservation efforts on the North Slope The Service will sustain a law community awareness; 2) increased to benefit the Alaska-breeding enforcement presence on the North enforcement of the migratory bird population of Steller’s eiders. Slope during the migratory bird hunts. regulations that are protective of listed Several spectacled and Steller’s eider The Service believes this is necessary to eiders; and 3) in-season Service management needs are addressed by increase community understanding and verification of the harvest to detect any this final rule. It newly restricts hunting acceptance of the shooting mortality Steller’s eider mortality. In 2009, the on the North Slope to time of day with problem, deter violations, and obtain Service and the community will sufficient daylight to ensure hunters can compliance with the regulations. The immediately address and remedy any distinguish and avoid shooting closed Service will conduct real-time detected Steller’s eider mortality; and, species; it clarifies for subsistence users monitoring of the harvest to meet the as a matter of Service policy, any that Service law enforcement personnel primary objective of detecting Steller’s detected Steller’s eider shooting have authority to verify species of birds eider mortality during the hunts so mortality will be curtailed at an amount possessed by hunters; it clarifies that it appropriate and timely corrective action estimated to be sustainable by the is illegal to possess any bird closed to can be taken. Regulatory enforcement population. Further, by focusing these harvest; and it describes how the objectives will be achieved through a protections for Steller’s eiders at Barrow Service’s existing authority of two-part strategy: (i) pre-season (location of the largest known emergency closure would be community and hunter education and concentration of Alaska-breeding implemented, if necessary, to protect outreach, and (ii) in-season Steller’s eiders), the Service is Steller’s eiders. The regulations, implementation of the law enforcement protecting the breeding population at its implemented in accordance with portion of this plan and enforcement of primary nesting area. conservation measures (described all Service regulations. below), are considered the principal Summary of Public Involvement way in which threatened eider shooting 3. In-season Harvest Verification of On December 18, 2008, we published mortality will be substantially reduced Steller’s Eider Mortality and Injury in the Federal Register a proposed rule or eliminated. The emergency closure Three types of monitoring efforts are (73 FR 76994) to establish spring and authority provides an additional level of necessary during the 2009 subsistence summer migratory bird subsistence assurance that, if an unexpected amount harvest and fall hunts on the North harvest regulations in Alaska for the of Steller’s eider shooting mortality Slope: (i) Steller’s eider breeding 2009 subsistence season. The proposed occurs, it will be curtailed to avoid surveys to inform the coordination of rule provided for a public comment approaching jeopardy to the existence of the conservation measures, (ii) harvest period of 30 days. We posted an the species. verification by Service law enforcement announcement of the comment period The Service developed three to meet the objective of detecting dates for the proposed rule, as well as conservation measures that are an Steller’s eider mortality during the the rule itself and related historical integral part of the proposed harvest and hunts so appropriate and timely documents, on the Council’s internet

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homepage. We issued a press release The Preamble to the Protocol Migratory Bird Treaty Amendment announcing our request for public amending the Canada Treaty states that Protocols with Canada and Mexico is to comments and the pertinent deadlines one of its goals is to allow a traditional recognize and maintain the cultural and for such comments, which was faxed to subsistence hunt while also improving traditional lifestyle of the indigenous the media Statewide. Additionally, all conservation of migratory birds through inhabitants of Alaska. documents were available on effective regulation of this hunt. In Comment: In regard to the proposed www.Regulations.gov. addition, the Preamble notes that, by new North Slope regulations, one By the close of the public comment sanctioning a traditional subsistence commenter wrote, ‘‘we believe the rule period on January 20, 2009, we had hunt, the Parties do not intend to cause is unlikely to achieve its objectives in received written responses from one significant increases in the take of the medium to long term, and will likely individual and three organizations. migratory birds, relative to their create much mistrust between the There was a predominate request to continental population sizes, compared community and your agency. This extend the public comment period and to the take that is presently occurring. mistrust may affect the Service’s ability to hold public hearings in the North Any significant increase in take as a to achieve its mission in regard to other Slope villages potentially impacted by result of the types of hunting provided species.’’ Service Response: We intend to make the regulations. Based on these requests, for in the Protocol would be every attempt to maintain positive we held four public meetings to record inconsistent with the Convention. If at working relationships with the North public comments on the proposed some point the subsistence harvest Slope communities by developing regulations: January 26, 2009, at the regulations result in significantly conservation measures in a cooperative Inupiat Heritage Center, 5421 North Star increased harvest, management strategies will be implemented to ensure environment. St., Barrow; January 27, 2009, at the Comment: Five commenters brought Robert James Community Center, maintenance of continental populations. Comment: One commenter expressed: up that proposed changes in the Wainwright; January 28, 2009, at the ‘‘I was listening to some of these people regulations were not developed in Community Center, Point Lay; and that said they . . . have been giving out coordination with the North Slope January 29, 2009, at the Qargi citations. And there was an incident two Borough or other North Slope Community Center, Point Hope. A or three years ago, one of your agents organizations and the tribal entities in second public meeting was held in violated one of the fishing nets that was particular that have a right to have a Point Lay on March 10, 2009. out in the Inlet. Were there any citations government-to-government relationship. We also reopened the public comment or arrests made in that occasion? I don’t Service Response: We will continue to period until March 12, 2009, by think so. Because it was in the papers improve our coordination efforts as this publishing a notice in the February 10, that they pull a net out just to release situation dictates the need for special 2009, Federal Register (75 FR 6563). a loon that was tangled up in the net; conservation provisions in the The public was informed that if they left the net on the sand for the fish to regulations for listed species. Given the had submitted comments any time rot.’’ mortality of Steller’s eiders documented before March 12, 2009, they did not Service Response: This was an in Barrow in the summer of 2008, we need to resubmit because we had isolated incident. We worked with the determined that there was an urgent already incorporated them into the owner of the subsistence net and the need to get preventative actions put in public record and would consider them North Slope Borough to resolve the place before the start of the 2009 in preparation of our final issue. subsistence season. A process was determination. By the close of the Comment: Two commenters requested established to develop consensus among second public comment period on that the public comment period be Service analysts as to what actions to March 12, 2009, we had received delayed past the holidays, and/or propose, but due to the controversy written responses from 40 individuals extended past 30 days. involved, the process took some time. and 7 organizations. Service Response: We were not able to Once we decided on a course of extend the original comment period, but action, we went to Barrow in December Response to Public Comments we did reopen the public comment to seek comments at a public meeting of General Comments period until March 12, 2009 by the North Slope Fish and Game publishing a document in the February Advisory Committee. We conducted Comment: We received two general 10, 2009, Federal Register (75 FR 6563). public meetings in Barrow, Wainwright, comments on the overall regulations The public was informed that if they Point Lay, and Point Hope on January that expressed strong opposition to the had submitted comments any time 26–29, 2009, and again in Point Lay on concept of allowing any harvest of before March 12, 2009, they did not March 10, 2009, documenting public migratory birds in Alaska. need to resubmit because we had comments on the proposed actions. A Service Response: For centuries, already incorporated them into the meeting was held on February 6, 2009, indigenous inhabitants of Alaska have public record and would consider them in Anchorage between the Service, the harvested migratory birds for in preparation of our final Alaska Department of Fish and Game, subsistence purposes during the spring determination. the North Slope Borough Wildlife and summer months. The Canada and Comment: Sixteen commenters Department, the Native Village of Mexico migratory bird treaties were explained the true value of subsistence Barrow, Inupiat Community of the recently amended for the express to their way of life on the North Slope Arctic Slope, Wainwright Traditional purpose of allowing subsistence hunting — it includes both providing essential Council, and Ukpeagvik Inupiat for migratory birds during the spring food and preserving the age-old customs Corporation to discuss the current and summer. The amendments indicate and traditions associated with it. situation and come up with options that the Service should issue regulations Service Response: We respectfully working toward a solution. The Alaska allowing such hunting as provided in acknowledge the importance of the Regional Director made several trips to the Migratory Bird Treaty Act, 16 U.S.C. customs and traditions that go along Barrow (February 10 and March 12 and 712 (1). See STATUTORY AUTHORITY with the subsistence way of life in rural 26, 2009) to meet with all the leaders of section for more details. Alaska. One of the mandates of the the North Slope organizations and craft

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

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rules, the Department of the Interior Service Response: The primary area and Barrow specifically to provide certified that this rule ‘ ... does not have purpose of the preferred alternative in information on the regulatory a significant or unique effect on state, the existing Environmental Assessment requirements and enforcement of the local, or tribal governments or the (EA) for the 2009 season is to open a regulations. Our approach has focused private sector’ under the Unfunded season that allows for continuation of a on significant outreach efforts, Mandates Reform Act. In contrast, we customary and traditional harvest of including public meetings, radio talk believe the rule will have unique effects, migratory birds by qualified Alaska show opportunities, posted fliers, and in two ways. First, obtrusive observation residents, including non-Natives. brochures followed by a phased-in, by enforcement personnel will change Another purpose is to avoid negative increased reliance on enforcement subsistence harvesting patterns, likely impacts on threatened or endangered actions. leading to active avoidance of not only migratory birds. The EA evaluates the We are working closely with North enforcement personnel but also others potential impacts of regulations Slope communities and Tribal entities in the area, such as agency biologists, proposed for the 2009 season. The only to formulate a comprehensive researchers, and staff of the regional new regulation for the North Slope that conservation strategy for Steller’s eider government.... Second, as the Service could limit the subsistence harvest of conservation that focuses on public relies on harvest figures from the birds is the shooting hours restriction outreach, harvest monitoring, and when Borough migratory bird household prohibiting shooting in the dark, which necessary, enforcement. We are hopeful surveys, the new regulations will likely applies only during the last 11 (Barrow) that this increased emphasis on depress community support for surveys to 21 (Point Hope) days in August. collaboration will allow the hunting in general.... As a result, the ‘best We do not have adequate information public to participate fully in the available science’ will be more difficult to evaluate how many birds are process. to collect and of questionable normally taken in the dark, or how Comment: One commenter questioned reliability.’’ much of an impact this will have on the whether the enforcement officers can Service Response: The Unfunded families partially or entirely dependent identify the different eiders. The Mandates Reform Act addresses only on subsistence foods. However, this commenter said that the officers should economic impacts of more than $100 impact will still be far less than that be trained in bird identification before million on local, State, or tribal imposed by the other alternatives contacting hunters. governments. This rule results in no considered, such as not opening the Service Response: All of the Service such economic impacts. See the subsistence hunt statewide or opening a law enforcement officers detailed to hunt that parallels the sport hunt by UNFUNDED MANDATES REFORM ACT section work on the North Slope of Alaska are including species bag limits plus of the preamble for more details. trained and proficient in waterfowl restriction on shooting hours. So even Comment: One commenter expressed: identification, including eiders. given the potential negative impacts on ‘‘We want to see more employment with Comment: Two commenters question subsistence users of the affected North our own Native people and my tribal how the new regulations for the Slope communities, we would still members. We want to see more funds subsistence migratory bird hunt can be choose the same preferred alternative coming in . . . having Fish and Wildlife enforced on private lands in and around and do not see a need to reinitiate the people that are tribal members so that EA process for the 2009 season. In the Barrow, and one commenter added we can regulate what’s going on out event of a limited harvest closure on the concern that violators, if caught, could there and be a part of it . . . .’’ North Slope issued under our go to Federal prison. Service Response: We agree that it is Emergency Closure authority, we will Service Response: The Migratory Bird desirable for the Federal Government to meet the National Environmental Policy Treaty Act gives the Federal employ more local people and we have Act requirements by following Government, namely the Service, the sought opportunities to do so. Since published emergency procedures jurisdiction to enforce all regulations 2005, the Office of the Co-management culminating in an Environmental Action regarding the taking of migratory birds Council has funded North Slope Statement. within the United States. Enforcement subsistence migratory bird harvest of these regulations is neither dictated surveys through the North Slope Law Enforcement or in any way restricted by land or water Borough, which has involved the hiring Comment: We received nine ownership. Most violations of the of local surveyors in the villages. The comments regarding the enforcement of subsistence migratory bird regulations Native Village of Barrow recently the migratory bird subsistence are misdemeanors involving only submitted an application for a tribal regulations in the Barrow area. monetary fines with an optional wildlife grant, and an award is expected Commenters indicated that they believe appearance in Federal Court. in March or April 2009. This grant enforcement was ‘‘too aggressive,’’ that Comment: One commenter expressed provides funding to hire one or more the killing of Steller’s eiders during the opinion that law enforcement is individuals to conduct eider monitoring 2008 was not done by subsistence counterproductive in subsistence hunts. and outreach in Barrow for the season. hunters, and that the community and The commenter explains: ‘‘Clearly for We are also in the process of contracting the Service should work together to find commercial fishing and commercial for a community liaison representative solutions and not resort to law hunting and guided hunts you need to reside in Barrow. enforcement. enforcement agents, but I think there’s Comment: One commenter opined Service Response: Since the Migratory good evidence that enforcement in a that it is necessary to revise the Bird Treaty Amendments and Co- subsistence hunt is counterproductive . Environmental Assessment before management Council regulations . . . There’s lot of scientific literature proceeding with this rulemaking process has been implemented, the that indicates that enforcement in a document. The commenter believes that Service’s Office of Law Enforcement and subsistence setting is not helpful.’’ the existing Environmental Assessment Divisions of Endangered Species and Service Response: We balance failed to adequately consider the effects Migratory Bird Management have education, outreach, and enforcement of the ruling on North Slope public worked with many groups and with a goal of encouraging voluntary health and safety. individuals in the greater North Slope compliance. We believe that the

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penalties imposed for violations serve as Comment: One commenter explained subsequent years and have no evidence a deterrent and encourage conservation. that the Steller’s eider hen and of females switching from one continent Comment: One commenter remarked ducklings found left in a pile were put to another for breeding. Males probably that: ‘‘The department in promulgating there deliberately by subsistence switch between continents, following this rule has determined it will not hunters for law enforcement to find. A females. We have the responsibility to unduly burden the judicial system and second commenter adds: ‘‘the steller’s conserve the population listed as it meets the requirements of section 3(a) eider deaths are not unintended take threatened, which is the North and section 3(b)(2) of Executive Order resulting from the subsistence hunt; American breeding population. 12988. And this is not true. There will they are an illegal deliberate take Comment: Ten commenters expressed be a burden on the judicial system . . . resulting from individuals breaking the concern that the real cause of the if people have to go through courts and law. The proposed rule punishes not Steller’s eider decline in the Barrow the systems.’’ only those individuals responsible for area was not being addressed, namely Service Response: In 2008, eight killing eiders, but the entire the effects of predators such as gulls, Violation Notices (tickets) were issued community....’’ A third commenter jeagers, ravens, and arctic foxes. One on the North Slope for migratory bird echoed that these birds were shot in commenter suggested using local harvest violations. These violations are response to negative interactions hunters to kill foxes around Barrow in classified as misdemeanors, and the between hunters and enforcement. the winter and shoot gulls in the Service, through the issuance of Service Response: Under the summer. Another commenter added: Violation Notices, seeks only monetary Endangered Species Act, incidental take ‘‘Predator control seems like a fines. A hunter who is given a Violation is defined as the taking of a protected reasonable idea using local hunters, Notice has the option to appear in species not for the purpose of, but only both the avian and ground predators, Federal Court to contest the charge. incidental to, the carrying out of an outreach of course suggested, but that Only more serious violations require a otherwise lawful activity. The Steller’s could be enhanced, possibly some mandatory court appearance. These eiders found dead in Barrow last year habitat enhancement. It’s interesting changes should not pose any significant comprised take relative to the that the highest nesting density is in a additional burden on the judicial subsistence hunt, malicious take, drained lake out here along the Gaswell system. accidents, and unknown causes. When Road.’’ we find birds that have been shot and How Will the Service Ensure That the Service Response: The Steller’s Eider abandoned, it is difficult to determine Subsistence Harvest Will Not Raise Recovery Plan lists a number of factors why. These regulations are intended to Overall Migratory Bird Harvest or contributing to the species’ decline, add protection by minimizing take Threaten the Conservation of including predators. Arctic foxes are associated with the subsistence hunt. Endangered and Threatened Species? Comment: One commenter brought up documented to be the primary nest Comment: We received six comments the point that Steller’s eiders have a predator. Our fox control program has acknowledging the need for Steller’s history of not nesting every year in the had some success in reducing fox eider conservation on the North Slope. Barrow area, and that if they don’t nest numbers in the Barrow nesting area. We Service Response: We appreciate the in 2009, then the new regulations would are continuing discussions with our shared concern for this threatened not be necessary and should be North Slope partners to explore other species. eliminated for the remainder of the 2009 means to control predators as necessary. Comment: We received six comments season. Comment: One commenter expressed that the new regulations created to Service Response: Even in failed concern about a statement the Service conserve Steller’s eiders are creating a nesting years, protected eiders may had made saying that Steller’s eiders problem for the subsistence users on the continue to stay in the area before only reside in the Barrow area. The North Slope. The commenters stated migrating south, and birds nesting commenter countered that subsistence that local people depend on harvest of further east will migrate through the hunters have seen them all over the marine mammals, birds, fish, and other area. North Slope and that calling them subsistence animals, and that the new Comment: We received two comments endangered is misleading because they proposed regulations could result in that local elders had provided testimony are abundant in other parts of the world. negative impacts to the local people, but that Steller’s eiders were abundant in Service Response: We acknowledge that it is not clear whether these Barrow in some years and not in others, that there may have been a proposals are going to help raise the suggesting that Barrow may be on the misunderstanding between the population of the threatened eiders. outer range of these birds, which would commenter and what was stated by the Service Response: Under the explain inconsistencies in nesting. A Service representative. It is well Migratory Bird Treaty Act and the second commenter added: ‘‘You must documented that Steller’s eiders range Endangered Species Act, we have a also account for the possibility that throughout the coastal North Slope, but compound mandate emphasizing eiders from Russia may come to Barrow primarily west of Nuiqsut. Steller’s conservation of migratory birds and the and northern Alaska to nest every once eiders are divided into Atlantic and protection of threatened and endangered in a while.’’ Pacific populations; the Pacific species, while providing for the Service Response: We agree that population is further divided into the customary and traditional taking of Alaska is on the outer edge of the more abundant Russia-breeding migratory birds for subsistence use. The species’ current breeding range. We population along the Russian eastern intent of the new North Slope believe that inconsistencies in nesting arctic coastal plain, and the threatened regulations is to fulfill these competing arise from the species’ association with Alaska-breeding population. Service mandates, while eliminating or brown lemmings and their predators, aerial survey information has minimizing take of threatened eiders which vary in abundance from year to documented a concentration of breeding during the subsistence harvest. In year. This appears to be true in Russia birds in and around Barrow. We season monitoring will determine the as well as in Alaska. We have some welcome additional information and effectiveness of these regulations and evidence to suggest that females that will incorporate it into future analyses other efforts. nest in Alaska return to Alaska in as feasible.

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

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Service Response: The Migratory Bird samples are taken, the hide may be (Steller’s) eiders, you know, by accident Treaty with Japan dictates that birds made available for customary and . . . is that going to affect Wainwright or must be protected during their principal traditional uses such as replicating a Barrow?’’ Another commenter stated nesting season. The Service, working historical garment made of eiders. that ‘‘the Service should consider a with the Co-management Council, has Comment: Two commenters realistic threshold for take including agreed that a 30–day closure is the questioned the proposed regulation non-hunting mortalities... by which to minimum necessary to adequately requiring subsistence hunters to present measure the efficacy of subsistence protect the nesting birds. We deferred to their birds upon request of a Service law hunting restrictions to protect the the North Slope partners to specify the enforcement officer. One commenter Steller’s eider.’’ dates of the closure. questioned whether this requirement Service Response: We continue to would provide additional information work diligently with our North Slope What Is Different in the Region-Specific on the harvest and how this would be partners to avoid any emergency harvest Regulations for 2009? – Yellow-billed applied outside of Barrow. Another closure. If Stellar’s eider mortalities Loons and Aleutian Terns commenter explained their opposition occur, we will evaluate each mortality Comment: One commenter expressed to the regulation: ‘‘and again I see by event by criteria such as: cause, support of the proposal to continue force proposed...that’s what I heard quantity, sex, age, location, and date. If allowing possession of inadvertently tonight with number 4, must present to we find that an imminent threat is caught yellow-billed loons on the North the officer for species identification. To posed to the eiders, we will take action Slope. me that’s called a fool; a fool that wants necessary to prevent further take of Service Response: We appreciate the to go to jail. I certainly don’t want to go Steller’s eiders, which could include continued support on this regulation. to jail for any reason, especially for just temporary or long-term closures. We Comment: One commenter supported killing a bird.’’ will consult the Co-management the new tern egg harvest in the Yakutat Service Response: An important Council when an emergency harvest area, but cautioned that the Service component of the conservation strategy closure is being considered. Any should annually assess the harvest’s being developed is to enable publishing emergency closure deemed necessary impact on overall tern productivity in of the annual regulations to open the will be designed to minimize its impact the affected colonies to ensure that subsistence harvest. A key component on subsistence harvest. harvest practices are efficient and on the North Slope will be our ability Comment: One commenter questioned minimally disruptive to the terns. to monitor and verify the ongoing why 50 CFR 92.32, which authorizes Service Response: The U.S. Forest harvest. This requirement will enable emergency closures to protect Steller’s Service is partnering with us to ensure our officers to effectively verify harvest eiders, is a necessary addition to the that annual monitoring of the affected composition when contacting hunters in already published regulation at 50 CFR tern colonies will be conducted. In the field. 92.21. addition, the Yakutat tribe has agreed to Comment: One commenter explained Service Response: We are clarifying monitor the subsistence harvest. that both the requirement to present that the Alaska Regional Director has birds taken to law enforcement officers the authority to initiate an emergency What Is Different in the Region-Specific and the prohibition on simple closure to minimize take of threatened Regulations for 2009? – Steller’s Eiders possession of a Steller’s eider ‘‘are eiders. Comment: Six commenters did not redundant with existing authorities. The Comment: Five commenters stated like the new North Slope regulation provisions seem unnecessary to make concern over the negative impacts any making it illegal to simply possess a possession of illegal birds a violation, emergency closure would have over Steller’s eider, stating that culturally and they would not alter requirements customs and traditions affecting Barrow they are not a wasteful people and will for search and seizure to compel and other coastal communities. One salvage a bird even if they did not kill presentation of birds.’’ commenter explained it this way: it. One commenter clarified: ‘‘It’s our Service Response: Both are already ‘‘successful whaling captains have a customary and traditional practice to legal requirements, but not explicitly responsibility...to feed the community. pick up animals that are edible, and if spelled out in the migratory bird And the first serving that they do is it happens to be a spectacled or Steller’s subsistence regulations. Publication in going to be soup, and that soup is going eider, we’re going to use it for food and the Federal Register reinforces and to be ducks, king and common eider, we shouldn’t be cited for stuff like that. clarifies these requirements for the geese, caribou, and other things, but the The other one is at least I was raised North Slope subsistence user. majority of it is going to be migratory when you see an animal suffering that Comment: Six commenters expressed birds. We have a harvest quota of 22 or may have hit a power line and it concern about the emergency closure more animals or bowhead whales per happens to be a spectacled or Steller’s provision regarding Steller’s eiders year, and we could have up to that eider, we should have every right to kill stating that there is no definition as to many (Nalukataq—summer blanket toss that bird and use it for subsistence what is needed to trigger the closure. festivals) ..., but we have a lot of people because we do not let our animals One commenter clarified: ‘‘we are to feed. And if these proposed suffer. That’s the way we were raised, concerned that the provisions in regulations are going to impact our and that’s what those regulations should proposed 50 CFR 92.32 are not whaling, you know, to be able to serve be.’’ sufficiently defined. In particular, FWS the soup, you’re going to have a big Service Response: This regulation should clarify what level of mortality or problem on your hand(s).’’ Another clarifies a point that it is already illegal other activity would constitute an commenter explained that ‘‘if the under the Migratory Bird Treaty Act to imminent threat to the conservation of Service determines that the hunt should possess any bird closed to harvest. You threatened Steller’s eiders.... FWS be curtailed to protect the Steller’s may not possess birds that are illegally should specify what action it will take eider, it should leave room for the harvested. We agree that birds should to abate that threat once such a finding Inupiat to continue their practice of not be wasted and we use recovered is made.’’ Another commenter nalukataq.’’ Two other commenters carcasses for additional scientific specifically wanted to know ‘‘If our explained about the importance of duck studies and educational purposes. After people in Point Lay take spectacled hunting while spring whaling, because

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the birds are used directly to feed the agree that closing the Barrow roads to activities. In the case of the Steller’s whalers while out on the ice for long all subsistence bird hunting might not eider, the new regulations apply during periods. accomplish the desired effect of the subsistence harvest, when the listed Service Response: We will make every protecting nesting Steller’s eiders, and population of Steller’s eiders are practical attempt to avoid closing the we have eliminated the closure from migrating and breeding on the North subsistence harvest of birds. These this final rule. The 30–day harvest Slope. regulations are designed to provide closure to protect nesting birds is Comment: Four commenters did not opportunity for spring and summer already in place in these regulations and like the definition of the North Coastal subsistence harvest of migratory birds will be enforced. We believe this Zone and opposed having it range up to while protecting listed eiders. We agree existing regulatory provision, when 5 miles inland. One commenter that an emergency closure would impact carried out, will protect nesting eiders. suggested changing it to only @ mile that opportunity locally. Any emergency We will work with partners to inform inland. closure deemed necessary will be hunters of this provision. Service Response: We defined the designed to minimize that impact. Comments: Fifteen commenters North Coastal Zone as the area of likely Comments: One commenter stated expressed concern about expanding the Steller’s eider occupancy during the that ‘‘of all the new regulations to Steller’s eider specific regulations to nesting season. We do know Steller’s protect the Steller’s eider, the closure of Point Lay, Point Hope, and Wainwright, eiders are documented by both the all migratory bird hunting along some simply because eiders migrate past these aerial and ground surveys to occur at roads near Barrow is most likely to villages. Many of the commenters least 5 miles inland in the Barrow area. reduce inadvertent and vandalistic opined that there needs to be more They may very well occur farther inland shooting of eiders on their primary evidence to justify the expanded than that, but we believe that a 5-mile nesting areas.’’ restrictions. One commenter brought up limit is a reasonable compromise of One commenter said that the Barrow that recent harvest surveys indicate take regulation coverage and likely location road closure was not clear enough, only for Barrow through Wainwright, of occurrence for the bird. clarifying that ‘‘not closing the ocean and do not warrant harvest restrictions Commenst: Nine commenters especially for springtime hunting is west of Wainwright. Another opposed instituting subsistence important and leaving areas in the commenter suggested that the migratory bird shooting hours. One lagoon, out at duck camp, out at Piquniq regulations should apply when Steller’s commenter questioned the logic of open for shooting is also important.’’ A eiders are actually present. daylight regulated shooting hours when second commenter expressed a similar Service Response: We have limited there is continuous 24–hour daylight on sentiment by recommending that the the Steller’s eider specific regulations to the North Slope for much of the closure be truncated to allow hunting the villages in the geographic area used summer. Another commenter went within c mile of Elson Lagoon and the by migrating and possibly nesting further on this thought by stating that Chukchi Sea Coast. Alaska-breeding Steller’s eiders (the ‘‘the latitude of the North Coast Zone... One commenter questioned whether listed population). Although we produces light conditions that are the Service had conducted ground recognize the species is now thought to seldom limiting’’ due primarily to truthing to justify the Barrow road nest primarily in the vicinity of Barrow, protracted Civil Twilight. The closure plus 1-mile buffer zone. the four coastal villages are included commenter further questioned whether One commenter was against closing because the listed population migrates this was just another attempt to apply Gaswell Road to migratory bird hunting past all those villages twice during the sport hunting regulations to the explaining: ‘‘I’ve been hunting on that subsistence harvest. We would like to subsistence hunt. Another commenter Gaswell Road . . . and it’s up to 18 miles. know more about the actual risk to explained their opposition: ‘‘The brant, . . . I walk bringing ducks home all the listed eiders by shooting in the villages the time I go hunting, is very early in way from the shooting station, carrying of Point Lay, Point Hope, and the morning; it’ll be dark, and when I . . . my shotgun, you know, just to feed Wainwright and would welcome leave, I’ll still be hunting during the my family....’’ A second commenter collection of village-specific subsistence dark. It will be sun time, but then that’s further explained: ‘‘If there is an area harvest information to assist in setting not when they’re flying. I’ll wait until it closure for subsistence hunting as future regulations. gets dark again, and then that’s when proposed in Barrow, it should be only Comments: Four commenters wanted they’ll fly again. So when you say you along Cakeeater, Gaswell, and to know why other communities and can’t hunt during the dark, after the sun Freshwater Lake Roads and only during regions where Steller’s eider are found goes down, that is very bad. I think you the nesting and breeding season. were not included in these new guys need to change that.’’ Stevenson Road, the Beach Road should regulations. One commenter elaborated: Service Response: We understand the not be included in the road closure. ‘‘If you guys are so concerned about the complications of dealing with the Spring hunting of king and common survival of the Steller’s eiders . . . , you extended twilight period on the North eiders on the spring ice just west of must also strictly regulate all other Slope. In response, we are developing Stevenson Road in Barrow and late activities that occur in the birds’ range individual sunrise/sunset tables for summer and fall hunting of these same and not just North Slope subsistence Point Hope, Point Lay, Wainwright, and birds at Piquniq are essential traditional, hunters.’’ Another commenter stated Barrow to be published in the public cultural, and subsistence activities. that Steller’s eiders migrate along the regulations booklets. These shooting Goose hunting in the spring should entire coast of western Alaska and hours will start on the date in the never be closed. Accidental shooting of regulating the North Slope villages, but summer when the National Weather Steller’s eiders during goose hunting not the western coast villages appears to Service considers periods of ‘‘true dark’’ does not occur because the Steller’s be arbitrary. to exist, and continue until August 31. eiders are not present at that time when Service Response: We do consider and Comment: One commenter asked if the geese are.’’ review the regulations statewide the Service is considering any parallel Service Response: This response regarding species protected under the regulatory changes to 50 CFR 20 to addresses the previous four comments Endangered Species Act, and all other protect Steller’s eiders during the fall regarding the Barrow road closure: We Federally authorized or funded season starting September 1, 2009. The

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commenter adds ‘‘If the Service has loan programs, or the rights and Unfunded Mandates Reform Act concerns about the fall season and is obligations of their recipients. We have determined and certified considering regulatory changes that (d) Whether the rule raises novel legal under the Unfunded Mandates Reform transcend the two hunting seasons, we or policy issues. Act (2 U.S.C. 1501 et seq.) that this rule would like to start this discussion so will not impose a cost of $100 million Regulatory Flexibility Act that Steller’s eider issues can be or more in any given year on local, addressed as the Pacific Flyway early The Department of the Interior State, or tribal governments or private season regulations process begins in entities. The rule does not have a early March.’’ certifies that this rule will not have a significant economic impact on a significant or unique effect on State, Service Response: Most of the new local, or tribal governments or the North Slope regulations in 50 CFR 92.31 substantial number of small entities as defined under the Regulatory Flexibility private sector. A statement containing already parallel those regulating the fall the information required by the hunting season starting September 1, Act (5 U.S.C. 601 et seq.). An initial regulatory flexibility analysis is not Unfunded Mandates Reform Act is not 2009, such as the provisions for required. Participation on regional shooting hours, possession restriction, required. Accordingly, a Small Entity Compliance Guide is not required. The management bodies and the Co- and mandatory bag checks. If the Alaska management Council will require travel Regional Director institutes an rule legalizes a pre-existing subsistence activity, and the resources harvested expenses for some Alaska Native emergency closure under 50 CFR 92.32 organizations and local governments. In to go into effect during the 2009 will be consumed by the harvesters or persons within their local community. addition, they will assume some subsistence season, then the Service expenses related to coordinating Director may elect to continue this Small Business Regulatory Enforcement involvement of village councils in the closure into the fall season under his Fairness Act regulatory process. Total coordination authority established in 50 CFR 20.26. and travel expenses for all Alaska This action, if deemed necessary, will This rule is not a major rule under 5 Native organizations are estimated to be be done in consultation with the Co- U.S.C. 804(2), the Small Business less than $300,000 per year. In the management Council and the Pacific Regulatory Enforcement Fairness Act. Notice of Decision (65 FR 16405; March Flyway. This rule: 28, 2000), we identified 12 partner Statutory Authority (a) Will not have an annual effect on organizations (Alaska Native nonprofits the economy of $100 million or more. It and local governments) to administer We derive our authority to issue these will legalize and regulate a traditional the regional programs. The Alaska regulations from the Migratory Bird subsistence activity. It will not result in Department of Fish and Game will also Treaty Act of 1918, 16 U.S.C. 712(1), incur expenses for travel to Co- which authorizes the Secretary of the a substantial increase in subsistence management Council and regional Interior, in accordance with the treaties harvest or a significant change in management body meetings. In with Canada, Mexico, Japan, and Russia, harvesting patterns. The commodities addition, the State of Alaska will be to ‘‘issue such regulations as may be being regulated under this rule are required to provide technical staff necessary to assure that the taking of migratory birds. This rule deals with support to each of the regional migratory birds and the collection of legalizing the subsistence harvest of management bodies and to the Co- their eggs, by the indigenous inhabitants migratory birds and, as such, does not management Council. Expenses for the of the State of Alaska, shall be permitted involve commodities traded in the State’s involvement may exceed for their own nutritional and other marketplace. A small economic benefit $100,000 per year, but should not essential needs, as determined by the from this rule derives from the sale of exceed $150,000 per year. When Secretary of the Interior, during seasons equipment and ammunition to carry out funding permits, we make annual grant established so as to provide for the subsistence hunting. Most, if not all, agreements available to the partner preservation and maintenance of stocks businesses that sell hunting equipment organizations and the Alaska of migratory birds.’’ in rural Alaska would qualify as small businesses. We have no reason to Department of Fish and Game to help Required Determinations believe that this rule will lead to a offset their expenses. Regulatory Planning and Review disproportionate distribution of Takings (Executive Order 12630) (Executive Order 12866) benefits. Under the criteria in Executive Order The Office of Management and Budget (b) Will not cause a major increase in 12630, this rule does not have (OMB) has determined that this rule is costs or prices for consumers; significant takings implications. This not significant and has not reviewed individual industries; Federal, State, or rule is not specific to particular land this rule under Executive Order 12866 local government agencies; or ownership, but applies to the harvesting (E.O. 12866). OMB bases its geographic regions. This rule does not of migratory bird resources throughout determination upon the following four deal with traded commodities and, Alaska. A takings implication criteria: therefore, does not have an impact on assessment is not required. (a) Whether the rule will have an prices for consumers. annual effect of $100 million or more on (c) Does not have significant adverse Federalism (Executive Order 13132) the economy or adversely affect an effects on competition, employment, Under the criteria in Executive Order economic sector, productivity, jobs, the investment, productivity, innovation, or 13132, this rule does not have sufficient environment, or other units of the the ability of U.S.-based enterprises to federalism implications to warrant the government. compete with foreign-based enterprises. preparation of a Federalism Assessment. (b) Whether the rule will create This rule deals with the harvesting of We discuss effects of this final rule on inconsistencies with other Federal wildlife for personal consumption. It the State of Alaska in the Executive agencies’ actions. does not regulate the marketplace in any Order 12866 and Unfunded Mandates (c) Whether the rule will materially way to generate effects on the economy Reform Act sections above. We worked affect entitlements, grants, user fees, or the ability of businesses to compete. with the State of Alaska to develop

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these regulations. Therefore, a Bay and for the Central Council of Assessment, ‘‘Managing Migratory Bird Federalism Assessment is not required. Tlingit & Haida Indian Tribes in Juneau. Subsistence Hunting in Alaska: Hunting On March 28, 2000, we published in Regulations for the 2009 Spring/ Civil Justice Reform (Executive Order the Federal Register (65 FR16405) the Summer Harvest,’’ issued November 21, 12988) Notice of Decision: ‘‘Establishment of 2008. Copies are available from the The Department, in promulgating this Management Bodies in Alaska To person listed under FOR FURTHER rule, has determined that it will not Develop Recommendations Related to INFORMATION CONTACT or at http:// unduly burden the judicial system and the Spring/Summer Subsistence Harvest www.Regulations.gov. that it meets the requirements of of Migratory Birds.’’ This notice sections 3(a) and 3(b)(2) of Executive described the way in which Energy Supply, Distribution, or Use Order 12988. management bodies would be (Executive Order 13211) Executive Order 13211 requires Government-to-Government Relations established and organized. Based on the agencies to prepare Statements of With Native American Tribal wide range of views expressed on the Energy Effects when undertaking certain Governments options document, the decision incorporated key aspects of two of the actions. This is not a significant Because eligibility to hunt under modules. The decision established one regulatory action under Executive Order these regulations is not limited to tribal statewide management body consisting 12866; it would allow only for members, but rather extends to all of 1 Federal member, 1 State member, traditional subsistence harvest and indigenous inhabitants of the and 7–12 Alaska Native members, with would improve conservation of subsistence harvest areas, we are not each component serving as equals. migratory birds by allowing effective required to engage in formal regulation of this harvest. Further, this consultation with tribes. However, in Paperwork Reduction Act rule is not expected to significantly keeping with the spirit of the President’s This rule has been examined under affect energy supplies, distribution, or memorandum of April 29, 1994, the Paperwork Reduction Act of 1995. use. Therefore, this action is not a ‘‘Government-to-Government Relations OMB has approved our collection of significant energy action under With Native American Tribal information associated with the Executive Order 13211 and no Governments’’ (59 FR 22951), and voluntary annual household surveys Statement of Energy Effects is required. Executive Order 13175 (65 FR 67249; used to determine levels of subsistence List of Subjects in 50 CFR Part 92 November 6, 2000), concerning take. The OMB control number is 1018– consultation and coordination with 0124, which expires on January 31, Exports, Hunting, Imports, Reporting Indian Tribal Governments, we 2010. An agency may not conduct or and recordkeeping requirements, conducted statewide meetings with sponsor and a person is not required to Subsistence, Treaties, Wildlife. tribes and tribal and nonprofit respond to a collection of information ■ organizations to evaluate the rule for For the reasons set out in the unless it displays a currently valid OMB preamble, we amend title 50, chapter I, possible effects on tribes or trust control number. resources, and have determined that subchapter G, of the Code of Federal there are no significant effects. The rule Endangered Species Act Consideration Regulations as follows: will legally recognize the subsistence Section 7 of the Endangered Species PART 92—MIGRATORY BIRD harvest of migratory birds and their eggs Act (16 U.S.C. 1536), requires the SUBSISTENCE HARVEST IN ALASKA for indigenous inhabitants including Secretary of the Interior to ‘‘review other tribal members. In 1998, we began a programs administered by him and ■ 1. The authority citation for part 92 public involvement process to utilize such programs in furtherance of continues to read as follows: determine how to structure management the purposes of the Act’’ and to ‘‘insure Authority: 16 U.S.C. 703–712. bodies in order to provide the most that any action authorized, funded, or effective and efficient involvement of carried out... is not likely to jeopardize Subpart D—Annual Regulations subsistence users. We began by the continued existence of any Governing Subsistence Harvest publishing in the Federal Register endangered species or threatened stating that we intended to establish species or result in the destruction or ■ 2. In subpart D, add § 92.31 to read management bodies to implement the adverse modification of [critical] as follows: spring and summer subsistence harvest habitat. . . .’’ An intra-agency § 92.31 Region-specific regulations. (63 FR 49707, September 17, 1998). consultation with the Fairbanks Fish The 2009 season dates for the eligible Meetings with the Alaska Department of and Wildlife Field Office was conducted Fish and Game and the Native Migratory subsistence harvest areas are as follows: on this harvest as it will be managed in (a) Aleutian/Pribilof Islands Region. Bird Working Group were held to accordance with this final rule and the provide information regarding the (1) Northern Unit (Pribilof Islands): conservation measures. The (i) Season: April 2–June 30. amended treaties and to listen to the consultation was completed with a (ii) Closure: July 1–August 31. needs of subsistence users. The Native biological opinion dated April 6, 2009 (2) Central Unit (Aleut Region’s Migratory Bird Working Group was a that concluded the final rule and eastern boundary on the Alaska consortium of Alaska Natives formed by conservation measures, as proposed, are Peninsula westward to and including the Rural Alaska Community Action not likely to jeopardize the continued Unalaska Island): Program to represent Alaska Native existence of spectacled or Steller’s (i) Season: April 2–June 15 and July subsistence hunters of migratory birds eiders or result in the destruction or 16–August 31. during the treaty negotiations. We held adverse modification of designated (ii) Closure: June 16–July 15. forums in Nome, Kotzebue, Fort Yukon, critical habitat. (iii) Special Black Brant Season Allakaket, Naknek, Bethel, Dillingham, Closure: August 16–August 31, only in Barrow, and Copper Center. We led National Environmental Policy Act Izembek and Moffet lagoons. additional briefings and discussions at Consideration (iv) Special Tundra Swan Closure: All the annual meeting of the Association of The annual regulations and options hunting and egg gathering closed in Village Council Presidents in Hooper were considered in the Environmental units 9(D) and 10.

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(3) Western Unit (Umnak Island west Larson Bay. Waters adjacent to the (ii) Closure: June 20–July 19. to and including Attu Island): closed area are closed to harvest within (4) All Units: yellow-billed loons. (i) Season: April 2–July 15 and August 500 feet from the water’s edge. The Annually, up to 20 yellow-billed loons 16–August 31. offshore islands are open to harvest. total for the region may be inadvertently (ii) Closure: July 16–August 15. (1) Season: April 2–June 30 and July entangled in subsistence fishing nets in (b) Yukon/Kuskokwim Delta Region. 31–August 31 for seabirds; April 2–June the North Slope Region and kept for (1) Season: April 2–August 31. 20 and July 22–August 31 for all other subsistence use. Individuals must report (2) Closure: 30–day closure dates to be birds. each yellow-billed loon inadvertently announced by the Service’s Alaska (2) Closure: July 1–July 30 for entangled while subsistence gill net Regional Director or his designee, after seabirds; June 21–July 21 for all other fishing to the North Slope Borough consultation with local subsistence birds. Department of Wildlife Management by users, field biologists, and the (f) Northwest Arctic Region. the end of the season. Association of Village Council (1) Season: April 2–June 9 and August (5) North Coastal Zone (Cape President’s Waterfowl Conservation 15–August 31 (hunting in general); Thompson north to Point Hope and east Committee. This 30–day period will waterfowl egg gathering May 20–June 9 along the Arctic Ocean coastline around occur between June 1 and August 15 of only; seabird egg gathering May 20–July Point Barrow to Ross Point, including each year. A press release announcing 12 only; hunting molting/non-nesting Iko Bay, and 5 miles inland). the actual closure dates will be waterfowl July 1–July 31 only. (i) Migratory bird hunting is permitted forwarded to regional newspapers and (2) Closure: June 10–August 14, from one-half hour before sunrise until radio and television stations and posted except for the taking of seabird eggs and sunset, during August. in village post offices and stores. molting/non-nesting waterfowl as (ii) No person shall at any time, by (3) Special Black Brant and Cackling provided in paragraph (f)(1) of this any means, or in any manner, possess or Goose Season Hunting Closure: From section. have in custody any migratory bird or the period when egg laying begins until (g) North Slope Region. part thereof, taken in violation of young birds are fledged. Closure dates to (1) Southern Unit (Southwestern subpart C and D of this part. North Slope regional boundary east to be announced by the Service’s Alaska (iii) Upon request from a Service law Peard Bay, everything west of the Regional Director or his designee, after enforcement officer, hunters taking, longitude line 158°30’W and south of consultation with field biologists and attempting to take, or transporting the latitude line 70°45’N to the west the Association of Village Council migratory birds taken during the bank of the Ikpikpuk River, and President’s Waterfowl Conservation subsistence harvest season must present everything south of the latitude line Committee. A press release announcing them to the officer for species 69°45’N between the west bank of the the actual closure dates will be identification. Ikpikpuk River to the east bank of forwarded to regional newspapers and (h) Interior Region. Sagavinirktok River): radio and television stations and posted (1) Season: April 2–June 14 and July (i) Season: April 2–June 29 and July in village post offices and stores. 16–August 31; egg gathering May 1–June 30–August 31 for seabirds; April 2–June (c) Bristol Bay Region. 14 only. (1) Season: April 2–June 14 and July 19 and July 20–August 31 for all other (2) Closure: June 15–July 15. 16–August 31 (general season); April 2– birds. (i) Upper Copper River Region July 15 for seabird egg gathering only. (ii) Closure: June 30–July 29 for (Harvest Area: Units 11 and 13) (Eligible (2) Closure: June 15–July 15 (general seabirds; June 20–July 19 for all other communities: Gulkana, Chitina, Tazlina, season); July 16–August 31 (seabird egg birds. Copper Center, Gakona, Mentasta Lake, gathering). (iii) Special Black Brant Hunting (d) Bering Strait/Norton Sound Opening: From June 20–July 5. The Chistochina and Cantwell). Region. open area would consist of the (1) Season: April 15–May 26 and June (1) Stebbins/St. Michael Area (Point coastline, from mean high water line 27–August 31. Romanof to Canal Point): outward to include open water, from (2) Closure: May 27–June 26. (i) Season: April 15–June 14 and July Nokotlek Point east to longitude line (3) The Copper River Basin 16–August 31. 158°30’W. This includes Peard Bay, communities listed above also (ii) Closure: June 15–July 15. Kugrua Bay, and Wainwright Inlet, but documented traditional use harvesting (2) Remainder of the region: not the Kuk and Kugrua river drainages. birds in Unit 12, making them eligible (i) Season: April 2–June 14 and July (2) Northern Unit (At Peard Bay, to hunt in this unit using the seasons 16–August 31 for waterfowl; April 2– everything east of the longitude line specified in paragraph (h) of this July 19 and August 21–August 31 for all 158°30’W and north of the latitude line section. other birds. 70°45’N to west bank of the Ikpikpuk (j) Gulf of Alaska Region. (ii) Closure: June 15–July 15 for River, and everything north of the (1) Prince William Sound Area waterfowl; July 20–August 20 for all latitude line 69°45’N between the west (Harvest area: Unit 6 [D]), (Eligible other birds. bank of the Ikpikpuk River to the east Chugach communities: Chenega Bay, (e) Kodiak Archipelago Region, except bank of Sagavinirktok River): Tatitlek). for the Kodiak Island roaded area, (i) Season: April 6–June 6 and July 7– (i) Season: April 2–May 31 and July which is closed to the harvesting of August 31 for king and common eiders; 1–August 31. migratory birds and their eggs. The April 2–June 15 and July 16–August 31 (ii) Closure: June 1–30. closed area consists of all lands and for all other birds. (2) Kachemak Bay Area (Harvest area: waters (including exposed tidelands) (ii) Closure: June 7–July 6 for king and Unit 15[C] South of a line connecting east of a line extending from Crag Point common eiders; June 16–July 15 for all the tip of Homer Spit to the mouth of in the north to the west end of Saltery other birds. Fox River) (Eligible Chugach Cove in the south and all lands and (3) Eastern Unit (East of eastern bank Communities: Port Graham, Nanwalek). water south of a line extending from of the Sagavanirktok River): (i) Season: April 2–May 31 and July Termination Point along the north side (i) Season: April 2–June 19 and July 1–August 31. of Cascade Lake extending to Anton 20–August 31. (ii) Closure: June 1–30.

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(k) Cook Inlet (Harvest area: portions Dated: May 12, 2009. This final rule, its references, and of Unit 16[B] as specified below) Will Shafroth, background documents for the PLTRP (Eligible communities: Tyonek only). Assistant Secretary for Fish and Wildlife and can be downloaded from the Take (1) That portion of Unit 16(B) south of Parks. Reduction web site at http:// theSeason: April 2–May 31 Skwentna [FR Doc. E9–11663 Filed 5–18–09; 8:45 am] www.nmfs.noaa.gov/pr/interactions/trt/ River and west of the Yentna RiverThat BILLING CODE 4310-55-S pl-trt.htm and the NMFS Southeast portion of Unit 16(B), and August 1–31 Regional Office website at http:// south of the Beluga River, Beluga Lake, sero.nmfs.noaa.gov/pr/pr.htm. and the Triumvirate Glacier. DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Erin (2) Closure: June 1–July 31. Fougeres or Jennifer Lee, NMFS, (l) Southeast Alaska. National Oceanic and Atmospheric Southeast Region, 727–824–5312, or (1) Community of Hoonah (Harvest Administration Kristy Long, NMFS, Office of Protected area: National Forest lands in Icy Strait Resources, 301–713–2322. Individuals and Cross Sound, including Middle Pass 50 CFR Part 229 who use telecommunications devices Rock near the Inian Islands, Table Rock [Docket No. 070717352–8886–02] for the deaf (TDD) may call the Federal in Cross Sound, and other traditional Information Relay Service at 1–800– RIN 0648–AV65 locations on the coast of Yakobi Island. 877–8339 between 8 a.m. and 4 p.m. The land and waters of Glacier Bay Taking of Marine Mammals Incidental eastern time, Monday through Friday, National Park remain closed to all excluding Federal holidays. subsistence harvesting [50 CFR Part to Commercial Fishing Operations; 100.3]. Atlantic Pelagic Longline Take SUPPLEMENTARY INFORMATION: (i) Season: glaucous-winged gull egg Reduction Plan Background gathering only: May 15–June 30. AGENCY: National Marine Fisheries This final rule, which serves as the (ii) Closure: July 1–August 31. Service (NMFS), National Oceanic and (2) Communities of Craig and final PLTRP, implements regulatory and Atmospheric Administration (NOAA), non-regulatory measures recommended Hydaburg (Harvest area: small islands Commerce. and adjacent shoreline of western Prince by the PLTRT to satisfy the ACTION: of Wales Island from Point Baker to Final rule. requirements of the MMPA. Details concerning the justification for and Cape Chacon, but also including SUMMARY: The National Marine Coronation and Warren islands). development of this PLTRP were Fisheries Service (NMFS) announces its provided in the preamble to the (i) Season: glaucous-winged gull egg determination that the pelagic longline gathering only: May 15–June 30. proposed rule (73 FR 35623, June 24, fishery has a high level of mortality and 2008) and are not repeated here. The (ii) Closure: July 1–August 31. serious injury across a number of (3) Community of Yakutat (Harvest proposed rule provided a 90–day public marine mammal stocks, and issues the comment period to provide feedback to area: Icy Bay [Icy Cape to Point Riou], final Atlantic Pelagic Longline Take and coastal lands and islands bordering NMFS via electronic submission, Reduction Plan (PLTRP) and postmarked mail, or facsimile. In the Gulf of Alaska from Point Manby implementing regulations to reduce southeast to Dry Bay). addition, one PLTRT meeting was serious injuries and mortalities of pilot conducted during the 90 day public (i) Season: glaucous-winged gull, whales and Risso’s dolphins in the aleutian and arctic tern egg gathering: comment period. Based on comments Atlantic pelagic longline fishery. The received (see ‘‘Comments and May 15–June 30. PLTRP is based on consensus (ii) Closure: July 1–August 31. Responses’’ section), NMFS made minor recommendations submitted by the ■ changes to the proposed rule. Changes 3. In subpart D, add § 92.32 to read Atlantic Pelagic Longline Take as follows: between the proposed and final rule are Reduction Team (PLTRT). The PLTRP is noted in the ‘‘Changes from the § 92.32 Emergency regulations to protect intended to meet the statutory mandates Proposed Rule’’ section. Steller’s eiders. and requirements of the Marine Upon finding that continuation of Mammal Protection Act (MMPA) Distribution, Stock Structure, and these subsistence regulations would through both regulatory and non- Abundance of Pilot Whales pose an imminent threat to the regulatory measures, including a special In the mid-Atlantic bight (MAB), (i.e., conservation of threatened Steller’s research area, gear modifications, the area bounded by straight lines eiders, the U.S. Fish and Wildlife outreach material, observer coverage, connecting the mid-Atlantic states’ Service Alaska Regional Director, in and captains’ communications. internal waters and extending to 71 W. consultation with the Co-management DATES: This final rule is effective June long. between 35° N. lat. and 43° N. lat), Council, will immediately under § 92.21 18, 2009. the Atlantic pelagic longline fishery take action as is necessary to prevent ADDRESSES: Copies of the Final interacts with two species of pilot further take. Regulation changes Environmental Assessment (EA), the whales. Long-finned pilot whales are implemented could range from a Regulatory Impact Review (RIR), and the distributed worldwide in cold temperate temporary closure of duck hunting in a Final Regulatory Flexibility Act (FRFA) waters in both the Northern (North small geographic area to large-scale analysis are available from Protected Atlantic) and Southern Hemispheres. In regional or State-wide long-term Resources Division, NMFS, Southeast the North Atlantic, the species is closures of all subsistence migratory Region, 263 13th Avenue South, St. broadly distributed and thought to occur bird hunting. Such closures or Petersburg, FL 33701–5505. The PLTRP from 40° to 75° N. lat. in the eastern temporary suspensions will remain in Compliance guide and Pelagic Longline North Atlantic and from 35° to 65° N. effect until the Regional Director, in Take Reduction Team (PLTRT) meeting lat. in the western North Atlantic consultation with the Co-management summaries may be obtained by writing (Abend and Smith, 1999). Short-finned Council, determines that the potential to Erin Fougeres, NMFS, Southeast pilot whales are also distributed for additional Steller’s eiders to be taken Region, 263 13th Avenue South, St. worldwide in warm temperate and no longer exists. Petersburg, FL 33701–5505. tropical waters. In U.S. Atlantic waters,

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