Establishment of Management Bodies in Alaska To Develop Recommendations Related to the Spring/Summer Subsistence Harvest of Migratory Birds

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of decision.

SUMMARY:

The U.S. Fish and Wildlife Service (Service) published a Notice in the Federal Register, 64 FR 35674, July 1, 1999, inviting public comment on an options document entitled, “Forming Management Bodies to Implement Legal Spring and Summer Migratory Bird Subsistence Hunting in Alaska.” The document described four models for organizing management bodies as required by the amended migratory bird treaty with Canada. The comment period closed October 29 and, after reviewing the comments, the Alaska Regional Director decided to implement a system combining elements of models 1 and 3 as described in the options document.

DATES:

The decision described in this notice will become effective April 27, 2000.

ADDRESSES:

Correspondence may be addressed to the Alaska Regional Director, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 99503; Attn: Migratory Bird Management.

FOR FURTHER INFORMATION CONTACT:

Mimi Hogan, 907/786-3673, or Bob Stevens, 907/786-3499, at the above address.

SUPPLEMENTARY INFORMATION:

Background

In 1916 the U.S. Senate ratified the Convention Between the United States and Great Britain (on behalf of Canada) For The Protection Of Migratory Birds. A similar treaty was ratified with Mexico in 1936. The treaties specified a close season on the taking of migratory game birds between March 10 and September 1 of each year. The treaties did not take into account traditional harvests of migratory birds by northern indigenous people during the spring and summer months. This harvest, which had occurred for centuries, was a necessary part of the subsistence lifestyle of the northern people, and continued after the ratification of the treaties. After many years of attempts to change the treaties, the Senate approved Protocol amendments to both treaties in 1997, allowing for the subsistence harvest of migratory birds by indigenous inhabitants of identified subsistence zones in Alaska.

(a) What is the intent of the Protocol amendments? The goals of the Protocol are to allow a traditional subsistence harvest and to improve conservation of migratory birds by allowing for the effective regulation of this harvest. The action is not intended to cause significant increases in the take of migratory birds relative to their continental population sizes.

(b) Who is eligible to harvest in the spring and summer? The U.S. Senate confirmed its understanding at ratification that an eligible indigenous inhabitant is a permanent resident of a village within a subsistence harvest area, regardless of race.

(c) Where are the subsistence harvest areas? According to Protocol documents, most villages north and west of the Alaska range and within the Alaska Peninsula, Kodiak Archipelago, and the Aleutian Islands would qualify as subsistence harvest areas. Anchorage, Matanuska-Susitna and Fairbanks North Star Boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area and Southeast Alaska would generally not qualify for a spring or summer harvest.

(d) Are there exceptions to the eligible areas? Protocol language allows for limited exceptions so that some individual communities within excluded areas may qualify for designation as subsistence harvest areas for some limited purposes. For example, regulations could allow collecting of gull eggs by some villages in Southeast Alaska.

(e) What other changes does the Protocol mandate? The Protocol amendments call for participation of indigenous inhabitants on management bodies that will be created to ensure an effective and meaningful role for indigenous inhabitants in the conservation of migratory birds.

(f) Who will be on these management bodies and what will they do? The Secretary of State's submittal document accompanying the Protocol confirms that the management bodies will include Native, federal, and State of Alaska representatives as equals, and that they will develop recommendations for, among other things: seasons and bag limits; law enforcement policies; population and harvest monitoring; education programs; research and use of traditional knowledge; and habitat protection.

(g) Where do the recommendations go? Relevant recommendations will be submitted to the U.S. Fish and Wildlife Service and to the Flyway Councils.

Summary of Public Involvement

(a) What public process did you follow before writing the options document entitled, “Forming Management Bodies to Implement Legal Spring and Summer Migratory Bird Subsistence Hunting in Alaska”? To aid in the preparation of the options document entitled, “Forming Management Bodies to Implement Legal Spring and Summer Migratory Bird Subsistence Hunting in Alaska”, the Service, the Alaska Department of Fish and Game, and the Native Migratory Bird Working Group held public forums to discuss the amended treaty and to listen to the needs of the subsistence user. The Native Migratory Bird Working Group is a consortium of Alaska Natives, formed by the Rural Alaska Community Action Program to represent the Alaska Native subsistence hunters of migratory birds. Forum locations included Nome, Kotzebue, Fort Yukon, Allakaket, Naknek, Bethel, Dillingham, Barrow, and Copper Center. The Service led additional briefings and discussions at the annual meeting of the Association of Village Council Presidents in Hooper Bay, and for the Central Council of Tlingit & Haida in Juneau. Refuge staffs at the Yukon Delta, Togiak, and Kodiak National Wildlife Refuges conducted public meetings in the villages within their refuge areas and discussed the amended treaty at those meetings. We wrote the four models described in the options document based on what we heard at statewide meetings.

(b) Who received copies of “Forming Management Bodies to Implement Legal Spring and Summer Migratory Bird Subsistence Hunting in Alaska”? In May 1999 we released to the public for review and comment the options document describing four possible models for establishing management bodies. We mailed copies of that options document to approximately 1350 individuals and organizations on the project mail list, including all tribal councils and municipal governments in Alaska. We distributed an additional 600 copies at public meetings held to discuss the four models. Also, we made the document available on the Fish and Wildlife Service web page.

(c) How long was the public comment period? The comment period was open from the time the document was released the end of May until September 30, 1999. We then extended the opportunity to comment through October 29, 1999.

Analysis of Public Comments

(a) What was the response? We received 60 written comments addressing the formation of management bodies. Of those 60 comments 26 were from tribal governments, 20 from individuals, 10 from organizations, 2 from federal government, 1 from the State of Alaska, and 1 from the Native Migratory Bird Working Group. Comments reflected a wide range of views and did not show a definitive selection of any one model.

(b) What comments did you receive supporting or opposing Model 1? Model 1 proposed one statewide management body with 12 regional bodies providing representation to the statewide body. The statewide management body would consist of three federal, three state, and 12 Native members. Representative comments supporting Model 1: The management body is manageable in size and appears simple, well-balanced, and cost effective. The non-profit organizations identified as partners are well established and accustomed to working with one another. One management body promotes interregional cooperation for management of shared bird populations. It also can better develop interregional management programs and be more creative in resolving conservation issues. Also, one management body provides incentive to reconcile differences instate rather than presenting dissenting views to the Flyway Councils and to the Service Regulations Committee.

Representative comments opposing Model 1: This project adds too much workload on the non-profit agencies leading to limited representation for the more remote villages. The representatives on the management body would need to know all the relative issues statewide resulting in reduced ability to focus on the regional issues. Decisions would not be made at the regional level. People outside the region would be too influential leading to the possibility that the statewide group would override regional needs. The statewide body is too removed from the village. Along that same line, the non-profit agencies should be acting on behalf of its regional people and not have statewide responsibility.

(c) What comments did you receive supporting or opposing Model 2? Model 2 proposed one statewide management body with 10 regional bodies. The Federal Subsistence Regional Advisory Councils would serve as the regional bodies. The statewide management body would consist of two federal, two state, and 10 Native members. Representative comments supporting Model 2: The ten Regional Advisory Councils are already organized and familiar to subsistence users. They obtain local input better than most other groups. Using the Regional Advisory Councils would be efficient, cost effective, the least disruptive, and quickly implemented. One management body would improve communication among all areas of the state and would provide a diversity of views on the management body. It would give each geographic area an opportunity to get a clearer view of the big picture of migratory bird management. One management body would represent Alaska with one unified voice.

Representative comments opposing Model 2: All of the ten Regional Advisory Council representatives would need to know all the issues statewide and not just those of their respective regions. The Regional Advisory Councils are already overworked, especially with the addition of fisheries management issues. Using groups formed pursuant to the Alaska National Interest Lands Conservation Act (ANILCA) to manage a resource for which subsistence harvest is governed by international treaty and regulations promulgated thereunder could be confusing to the management body members as well as to the subsistence hunters.

(d) What comments did you receive supporting or opposing Model 3? Model 3 proposed creating seven management bodies using common resource use patterns to form the boundaries. Membership on the seven management bodies would total 12 federal, 12 state, and 48 Native members. Representative comments supporting Model 3: This model would allow for geographic differences in culture, traditions, hunting styles, and management needs. Input would be more readily received from local subsistence users and decisions would be made regionally. Travel to regional meetings would be affordable.

Representative comments opposing Model 3: With this model no unified voice would be speaking for the subsistence hunter in Alaska. Conflicting recommendations would go forward to the Flyway Councils and the Service Regulations Committee, causing decisions to be made outside Alaska. So many management bodies would tax communication among the regions in the state. This model would be too expensive to administer.

(e) What comments did you receive supporting or opposing Model 4? Model 4 proposed creating three management bodies using shared bird populations to form the boundaries. Membership on the three bodies would total three federal, three state, and 13 Native members. Representative comments supporting Model 4: This model provides strong relationships with the Flyway Councils. It is aligned well for management of shared species and similar harvest patterns.

Representative comments opposing Model 4: The culture of the people in the Interior region and the bird populations are too different to be combined with those of the Northwest and Arctic Slope. Village leaders are very busy with a wide range of responsibilities to uphold. There are not enough leaders in the rural communities to accommodate the needs created by this model. The workload generated by this model is too much for the non-profit organizations, impacting their ability to adequately involve their people.

(f) Did the Federal Subsistence Regional Advisory Councils provide comments? Yes. In addition to the 60 written comments, 9 of the 10 Federal Subsistence Regional Advisory Councils passed resolutions regarding the four models presented. Five of the councils approved the model using the Regional Advisory Councils to provide a representative to one statewide management body. Reasons for supporting that model included a concern for adequate communication if too many different groups became involved in management of subsistence resources. They also felt that they were the most knowledgeable about subsistence issues and that they would be able to begin management more quickly since they already had an organization in place. Four of the Regional Advisory Councils opposed the model involving them. Reasons given for their opposition included a lack of time or the feeling that the regional non-profit organizations had already been involved in the treaty amendments and were more knowledgeable of the issues specific to migratory bird subsistence hunting. One Regional Advisory Council decided not to comment.

(g) How did you address suggestions that did not fit any specific model? We received a few comments that were in the form of recommendations and neither supported nor opposed any of the four models. One comment suggested that the number of agency representatives on the management body remain flexible. We agree. In the May document we stated that both the federal and state governments would place one representative on the management body for each five Native representatives. Our final decision is to place one federal and one state representative on the management body. Regardless of the number of representatives serving on the management body, the Native, federal, and state components included on the management body will serve as equals.

A second comment suggested that the proposals formulated by the management body be submitted to the Board of Game. The Letter of Submittal accompanying the Protocol to the White House stated that recommendations from the management body would be submitted to the U.S. Fish and Wildlife Service and to the Flyway Councils. The Regional Director's decision discussed below incorporates this mandate into the process to be followed.

A third comment suggested that the state representative on the management body be a member of the Alaska Board of Game. It is not the purpose of this Notice to specify who will serve on the management body or how those selections should be made. In the case of the State of Alaska, representatives will be selected by the Commissioner of the Department of Fish and Game.

A fourth comment suggested that the Fish and Wildlife Service have an ad hoc member from the lower 48 states on the management body. A primary purpose of the management body is to afford the indigenous inhabitants of the State of Alaska an effective and meaningful role in the conservation of migratory birds including the development and implementation of regulations affecting the non-wasteful taking of migratory birds and the collection of their eggs. The management body will formulate recommendations after reviewing technical information of local and national significance. This information will be provided by federal and state technical support staff. Flyway Councils and Fish and Wildlife Service staff in the lower 48 states will review the recommendations before regulations are promulgated. This process assures protection of the national interest while initiating regulations at the local level.

A fifth comment to be addressed suggested that the state fish and game advisory councils and the Alaska Board of Game be involved in the regulatory process, possibly through an intergovernmental agreement. Management body meetings, as well as regional meetings, will be conducted as a part of a public process. The meetings will be open to public comment, and organizations as well as individuals will be encouraged to participate. By participating in this manner the fish and game advisory councils and the Alaska Board of Game can become involved in the initial stages of the regulatory process. As with all waterfowl regulations, the State Board of Game will establish state regulations.

The Alaska Department of Fish and Game supported Model 1, believing that one management body would be more effective and could be more creative in developing regulations and working on conservation issues. One management body would also provide incentive to resolve regional differences within Alaska and before recommendations are forwarded to the Flyway Councils and the Service Regulations Committee. The State also endorsed consensus as the primary means of decision making and full involvement of the public in the process. The State strongly supported the establishment of state migratory bird hunting regulations within frameworks provided in federal regulations.

The Native Migratory Bird Working Group (NMBWG) proposed a fifth model. They proposed seven regional management bodies, using boundaries as proposed in Model 3. Each of the seven bodies would have Native, federal, and state representation. A statewide management body would coordinate overlapping regional issues and provide for sharing information between regions. The NMBWG could serve initially to represent subsistence hunters on the statewide body until the partner organizations appoint or select their representatives.

The NMBWG made several additional comments. They proposed that the management bodies address all issues related to migratory birds for all seasons and not be limited to spring/summer hunting. Article II(4)(b)(ii) of the Protocol provides for an exception to the close season on migratory game birds between March 10 and September 1 found in Article II(1). The intent of amending the Migratory Bird Treaty with Canada has always been to provide for a spring/summer subsistence harvest during the close season. The management of the hunt for this period (March 10-September 1) will be done through management bodies established in the amendment. Recommendations from the management bodies will address regulations for spring and summer harvest only.

The NMBWG proposed an official seat for a Native representative on the Flyway Council and the Technical Committee of each of the four Flyway Councils. The Service cannot provide an official seat for a representative on any of the Flyway Councils or Technical Committees. The Flyway Councils and Flyway Technical Committees are comprised of administrative and technical representatives, respectively, from each state wildlife agency. Flyway Councils are governed by by-laws, and members are comprised mostly of state agency directors or their designated representatives. While there is Service participation in Flyway meetings, final recommendations are formulated by the state personnel involved. It is our understanding that representatives of the Alaska Management Body probably would be welcome on the Flyway Technical Committees, but that decision is up to the respective Flyway Councils, not the Service.

The NMBWG requested that a Native representative be provided a meaningful role on the Service Regulations Committee. Only Service officials serve on the Regulations Committee. We propose that two representatives from the Statewide Management Body attend the Service Regulations Committee to provide technical information and to answer questions regarding spring and summer harvest regulations for Alaska.

The NMBWG suggested that the Service Regulations Committee provide its concerns in writing if a recommendation is rejected. Whenever a proposal is sent to the Service Regulations Committee, the Service responds in writing stating its position.

The NMBWG suggested a voting system that would tend to avoid 2 to 1 votes on the management bodies when consensus could not be reached. Details regarding the role of voting on the management bodies will be determined when the management bodies have an opportunity to develop an operations manual outlining their policies and procedures.

The NMBWG requested that neither the State Board of Game nor the Federal Subsistence Board have any jurisdiction over the subsistence migratory bird harvest—spring, summer, or fall. The Federal Subsistence Board will not be a part of the management body organization. However, the states are actively involved in migratory game bird management and have considerable involvement in regulatory matters. This relationship is longstanding and assures that state interests are considered fully, if not always satisfied, in the exercise of federal authority to promulgate regulations governing migratory bird hunting. The Service affirms the State's right, as defined in Section 708 of the Migratory Bird Treaty Act, to make or enforce laws or regulations as long as they are not inconsistent with federal laws or regulations.

Decision on Format of Management Bodies

(a) Which of the 4 models in the options document did you choose? In our options document, “Forming Management Bodies to Implement Legal Spring and Summer Migratory Bird Subsistence Hunting in Alaska” , we said that additional models or a combination of models would be considered, depending on the comments received during the review period. What we heard during the comment period were strong statements for (1) the need for a unified statewide body in order to coordinate overlapping issues and to communicate with subsistence hunters from all over the state; and (2) the need to keep discussion and decision-making regarding regional issues at the regional level where the user could be more involved. In order to address those two needs, we have decided to combine elements of model 1, (one statewide management body with 12 regions providing one representative each) with elements of model 3, (seven management bodies representing seven geographic areas.) Details on how we propose to combine and modify the two models follows.

(b) What is the format for management bodies? A single Statewide Management Body will be formed consisting of representatives from each of seven regional bodies and one representative each from the Fish and Wildlife Service and the Alaska Department of Fish and Game. Membership on the seven regional bodies will be comprised of subsistence users from each of the seven regions. The Service will contract with 12 partner organizations (see(e)), to organize and administer the regional bodies. The Native Migratory Bird Working Group will serve initially to represent migratory bird subsistence users on the statewide body until the regional bodies appoint or select their representatives.

(c) What is the function of the Statewide Management Body? The Statewide Management Body will provide meaningful input in the development of recommendations on regulations for spring and summer harvest and conservation of migratory birds in Alaska. In doing so, it will provide guidelines within which the regional bodies can create recommendations. An example of a guideline would be no hunting of spectacled or Steller's eiders because their populations are listed as threatened. Another statewide guideline might prohibit harvest during the nesting season but the regions would have flexibility to determine dates that recognize differences in timing and distribution of migratory birds. We believe the guidelines will be relatively stable and might need little modification from year to year. The regional bodies will recommend regulations based on regional needs but the recommendations must be within the broad guidelines established by the Statewide Management Body. The Statewide Management Body will coordinate the recommendations from the seven regional bodies and forward them to the Service and Flyway Councils.

(d) How will the Statewide Management Body operate? The Statewide Management Body will include Native, federal, and state representatives as equals. The Statewide Management Body will strive for consensus on all decisions. The Statewide Management Body will develop an operating manual providing options for voting on issues that are not reached by consensus. All meetings will be open and accessible to the public. Any member of the public will be able to file proposals and statements with the Statewide Management Body; and any member of the public may speak at the meeting, consistent with the operating procedures.

(e) Who are the regional bodies? Consistent with the recommendation of the Native Migratory Bird Working Group, the seven regional bodies will be organized along the lines of Model 3. The seven regional bodies will be made up of subsistence users and will be organized by the following 12 partner organizations that will be responsible for administering the regional programs:

1. Chugachmiut, Cook Inlet Tribal Council, Copper River Native Association, and Central Council, Tlingit & Haida Indian Tribes

2. Aleutian/Pribilof Islands Association, Kodiak Area Native Association

3. Bristol Bay Native Association

4. Association of Village Council Presidents

5. Kawerak

6. Maniilaq Association & the North Slope Borough

7. Tanana Chiefs Conference

(f) What are the responsibilities of the 12 partner organizations? Each of the partner organizations listed above will work with the subsistence users within its region to establish membership on each of the regional bodies. They will be responsible for coordinating meetings within their regions, soliciting proposals and keeping the villages informed.

(g) What are the functions of the regional bodies? The regional bodies have all the functions as the Statewide Management Body as described in the Protocol Letter of Submittal. These are: develop recommendations, for among other things, seasons and bag limits; law enforcement policies; population and harvest monitoring; education programs; research and use of traditional knowledge; and habitat protection.

Each regional body will provide at least one representative to the Statewide Management Body consistent with paragraph (b). However the three regional bodies with more than one administrative partner organization (see (e)) may provide a representative from each of the partner organizations. For example, the regional body administered by Maniilaq Association & the North Slope Borough could choose to send just one representative to the Statewide Management Body to represent the regional body or they could choose one representative from Maniilaq region and one from the North Slope Borough. Total regional representation on the Statewide Management Body could range from seven to 12 members.

(h) How will the regional bodies operate? Each region can decide on the size of its organization, who serves on it, the length of terms, methods of involving subsistence users, and related matters. The state and federal partners will provide technical assistance to the regional bodies but will not serve as members of the regional body or be involved in the decision making of the regional body. As long as the regional bodies operate within the guidelines provided by the Statewide Management Body, the final decision for recommendations that affect only one region would be made solely by that regional body. Regional body recommendations for regulations will be forwarded to the Statewide Management Body. The Statewide Management Body may choose to reject the recommendation from a regional body only when it does not conform with the statewide guidelines.

Although they are referred to as regional bodies for the purpose of this Notice the regional bodies may adopt any name that reflects their mission in their region. For example, the Waterfowl Conservation Committee of the Association of Village Council Presidents is already in existence on the Yukon-Kuskokwim Delta and has been instrumental in the negotiations of the Protocol amendments.

(i) How will the this program be funded? The Service will negotiate annual funding agreements with the administrative partner organizations (see (e) above) to help cover the cost of meetings, travel, village council coordination and training. An important part of this program is monitoring the spring and summer subsistence harvest in order to properly manage migratory birds. Annual funding agreements with Alaska Native Organizations, the Alaska Department of Fish and Game, and others will be used to accomplish harvest monitoring.

(j) How will the Statewide Management Body interact with the Flyways? The State of Alaska is most associated with Pacific coast states and is a member of the Pacific Flyway Council. As necessary, Alaska coordinates with the Atlantic Flyway on tundra swans, the Mississippi Flyway on ducks, and the Central Flyway on mid-continent white-fronted geese, sandhill cranes and ducks. Two representatives from the Statewide Management Body will attend Pacific and Central Flyway Council meetings and can request membership to their Technical Committees that provide the individual Flyway Councils with advice on biological matters. In addition, the responsibilities of the two representatives will include attending the Service Regulations Committee meetings. Representatives will be expected to provide technical information and to answer questions regarding spring and summer harvest regulations for Alaska.

(k) What is the relationship to the federal and state systems for managing migratory birds? The regulations adopted to manage spring and summer subsistence hunting of migratory birds in Alaska will become part of the annual regulatory process currently used by the Service and the State. The Service Regulations Committee will consider the proposed regulations at the same time as those for fall and winter seasons.

The process of developing these regulations begins in January with a meeting of the Service Regulations Committee. Preliminary regulatory proposals are developed for the coming year and published in the Federal Register as a notice of proposed rulemaking. The Flyway Councils and their Technical Committees, as well as individual states and the public, then have an opportunity to respond to these proposals. Federal migratory bird hunting regulations are divided into “early season” and “late season” regulations. Early season regulations presently cover all of Alaska's migratory bird seasons, opening as early as September 1. The state adopts migratory bird hunting regulations within the federal frameworks.

Late season regulations cover the normal waterfowl, crane and snipe seasons in the lower-48 states and generally begin on or after October 1. In the next phase, the Service Regulations Committee meets; public hearings are held; proposed frameworks are developed and published in the Federal Register; and an abbreviated open comment period is established. Following this comment period, final frameworks are established and published in the Federal Register. The Federal Register final rule represents the final product of the regulations development process. Alaska's spring and summer regulations could be a part of “late season” regulations schedule in order to coordinate with the Flyway Councils and Service Regulations Committee. This means regulations would be published in the fall for the following spring and summer. If this proves too unresponsive, the schedule will be revised.

(l) When would the Statewide Management Body and the regional bodies meet? A schedule which interacts with the present regulatory system might look like this:

November: Statewide Management Body meets, reviews population and harvest information, and prepares guidelines. Issues a request to the regions for regional recommendations that are within guidelines.

January: Regional bodies meet, review population and harvest information and prepare recommendations for regional regulations and management programs.

February: Statewide Management Body meets and reviews recommendations from regional bodies. Sends recommendations to Pacific Flyway, Central Flyway and the Service.

March: Representatives from the Statewide Management Body attend Flyway Technical Committee and Council meetings.

July: Representatives from Statewide Management Body represent Alaska and provide technical information to the Flyway Councils and Service Regulations Committee.

September: Final rules are published for the following spring and summer. Cycle starts again.

(m) How will the general public be involved in the process of setting spring and summer regulations for migratory birds in Alaska? The Statewide Management Body and the supporting regional bodies will be open to recommendations from all user groups. The meetings will be open to the public and there will be opportunities for public comment on proposals. In the present continental migratory bird regulatory system there are periods open for public comment. All the comments and recommendations are taken into consideration before hunting regulations are proposed and finalized.