[Federal Register: April 10, 2009 (Volume 74, Number 68)]
[Proposed Rules]               
[Page 16339-16348]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 20

[FWS-R9-MB-2009-0124; 91200-1231-9BPP-L2]
RIN 1018-AW31

Migratory Bird Hunting; Proposed 2009-10 Migratory Game Bird 
Hunting Regulations (Preliminary) With Requests for Indian Tribal 
Proposals and Requests for 2010 Spring and Summer Migratory Bird 
Subsistence Harvest Proposals in Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of supplemental information.


SUMMARY: The U.S. Fish and Wildlife Service (hereinafter the Service or 
we) proposes to establish annual hunting regulations for certain 
migratory game birds for the 2009-10 hunting season. We annually 
prescribe outside limits (frameworks) within which States may select 
hunting seasons. This proposed rule provides the regulatory schedule, 
describes the proposed regulatory alternatives for the 2009-10 duck 
hunting seasons, requests proposals from Indian Tribes that wish to 
establish special migratory game bird hunting regulations on Federal 
Indian reservations and ceded lands, and requests proposals for the 
2010 spring and summer migratory bird subsistence season in Alaska. 
Migratory game bird hunting seasons provide opportunities for 
recreation and sustenance; aid Federal, State, and Tribal governments 
in the management of migratory game birds; and permit harvests at 
levels compatible with migratory game bird population status and 
habitat conditions.

DATES: You must submit comments on the proposed regulatory alternatives 
for the 2009-10 duck hunting seasons by June 26, 2009. Following 
subsequent Federal Register notices, you will be given an opportunity 
to submit comments for proposed early-season frameworks by July 31, 
2009, and for proposed late-season frameworks and subsistence migratory 
bird seasons in Alaska by August 31, 2009. Tribes must submit proposals 
and related comments by June 1, 2009. Proposals from the Co-management 
Council for the 2010 spring and summer migratory bird subsistence 
harvest season must be submitted to the Flyway Councils and the Service 
by June 15, 2009.

ADDRESSES: You may submit comments on the proposals by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. Mail or Hand-Delivery: Public Comments Processing, 
Attn: 1018-AW31; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mailed or faxed comments. We will post all 
comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments section below for more information).
    Proposals for the 2010 spring and summer migratory bird subsistence 
season in Alaska should be sent to the Executive Director of the Co-
management Council, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, 
Anchorage, AK 99503, or fax to (907) 786-3306, or e-mail to 

Migratory Bird Management, U.S. Fish and Wildlife Service, Department 
of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street,

[[Page 16340]]

NW., Washington, DC 20240, (703) 358-1714. For information on the 
migratory bird subsistence season in Alaska, contact Fred Armstrong, 
(907) 786-3887, or Donna Dewhurst, (907) 786-3499, U.S. Fish and 
Wildlife Service, 1011 E. Tudor Road, Mail Stop 201, Anchorage, AK 


Background and Overview

    Migratory game birds are those bird species so designated in 
conventions between the United States and several foreign nations for 
the protection and management of these birds. Under the Migratory Bird 
Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is 
authorized to determine when ``hunting, taking, capture, killing, 
possession, sale, purchase, shipment, transportation, carriage, or 
export of any * * * bird, or any part, nest, or egg'' of migratory game 
birds can take place, and to adopt regulations for this purpose. These 
regulations are written after giving due regard to ``the zones of 
temperature and to the distribution, abundance, economic value, 
breeding habits, and times and lines of migratory flight of such 
birds'' and are updated annually (16 U.S.C. 704(a)). This 
responsibility has been delegated to the Service as the lead Federal 
agency for managing and conserving migratory birds in the United 
    The Service develops migratory game bird hunting regulations by 
establishing the frameworks, or outside limits, for season lengths, bag 
limits, and areas for migratory game bird hunting. Acknowledging 
regional differences in hunting conditions, the Service has 
administratively divided the Nation into four Flyways for the primary 
purpose of managing migratory game birds. Each Flyway (Atlantic, 
Mississippi, Central, and Pacific) has a Flyway Council, a formal 
organization generally composed of one member from each State and 
Province in that Flyway. The Flyway Councils, established through the 
International Association of Fish and Wildlife Agencies (IAFWA), also 
assist in researching and providing migratory game bird management 
information for Federal, State, and Provincial Governments, as well as 
private conservation agencies and the general public.
    The process for adopting migratory game bird hunting regulations, 
located at 50 CFR 20, is constrained by three primary factors. Legal 
and administrative considerations dictate how long the rulemaking 
process will last. Most importantly, however, the biological cycle of 
migratory game birds controls the timing of data-gathering activities 
and thus the dates on which these results are available for 
consideration and deliberation.
    The process includes two separate regulations-development 
schedules, based on early and late hunting season regulations. Early 
hunting seasons pertain to all migratory game bird species in Alaska, 
Hawaii, Puerto Rico, and the Virgin Islands; migratory game birds other 
than waterfowl (i.e., dove, woodcock, etc.); and special early 
waterfowl seasons, such as teal or resident Canada geese. Early hunting 
seasons generally begin prior to October 1. Late hunting seasons 
generally start on or after October 1 and include most waterfowl 
seasons not already established.
    There are basically no differences in the processes for 
establishing either early or late hunting seasons. For each cycle, 
Service biologists gather, analyze, and interpret biological survey 
data and provide this information to all those involved in the process 
through a series of published status reports and presentations to 
Flyway Councils and other interested parties. Because the Service is 
required to take abundance of migratory game birds and other factors 
into consideration, the Service undertakes a number of surveys 
throughout the year in conjunction with Service Regional Offices, the 
Canadian Wildlife Service, and State and Provincial wildlife-management 
agencies. To determine the appropriate frameworks for each species, we 
consider factors such as population size and trend, geographical 
distribution, annual breeding effort, the condition of breeding and 
wintering habitat, the number of hunters, and the anticipated harvest.
    After frameworks, or outside limits, are established for season 
lengths, bag limits, and areas for migratory game bird hunting, 
migratory game bird management becomes a cooperative effort of State 
and Federal governments. After Service establishment of final 
frameworks for hunting seasons, the States may select season dates, bag 
limits, and other regulatory options for the hunting seasons. States 
may always be more conservative in their selections than the Federal 
frameworks but never more liberal.

Notice of Intent To Establish Open Seasons

    This notice announces our intent to establish open hunting seasons 
and daily bag and possession limits for certain designated groups or 
species of migratory game birds for 2009-10 in the contiguous United 
States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands, under 
Sec. Sec.  20.101 through 20.107, 20.109, and 20.110 of subpart K of 50 
CFR part 20.
    For the 2009-10 migratory game bird hunting season, we will propose 
regulations for certain designated members of the avian families 
Anatidae (ducks, geese, and swans); Columbidae (doves and pigeons); 
Gruidae (cranes); Rallidae (rails, coots, moorhens, and gallinules); 
and Scolopacidae (woodcock and snipe). We describe these proposals 
under Proposed 2009-10 Migratory Game Bird Hunting Regulations 
(Preliminary) in this document. We published definitions of waterfowl 
flyways and mourning dove management units, as well as a description of 
the data used in and the factors affecting the regulatory process, in 
the March 14, 1990, Federal Register (55 FR 9618).

Regulatory Schedule for 2009-10

    This document is the first in a series of proposed, supplemental, 
and final rulemaking documents for migratory game bird hunting 
regulations. We will publish additional supplemental proposals for 
public comment in the Federal Register as population, habitat, harvest, 
and other information become available. Because of the late dates when 
certain portions of these data become available, we anticipate 
abbreviated comment periods on some proposals. Special circumstances 
limit the amount of time we can allow for public comment on these 
    Specifically, two considerations compress the time for the 
rulemaking process: the need, on one hand, to establish final rules 
early enough in the summer to allow resource agencies to select and 
publish season dates and bag limits prior to the beginning of hunting 
seasons and, on the other hand, the lack of current status data on most 
migratory game birds until later in the summer. Because the regulatory 
process is strongly influenced by the times when information is 
available for consideration, we divide the regulatory process into two 
segments: early seasons and late seasons (further described and 
discussed above in the Background and Overview section).
    Major steps in the 2009-10 regulatory cycle relating to open public 
meetings and Federal Register notifications are illustrated in the 
diagram at the end of this proposed rule. All publication dates of 
Federal Register documents are target dates.
    All sections of this and subsequent documents outlining hunting 
frameworks and guidelines are organized under numbered headings. These 
headings are:

[[Page 16341]]

    1. Ducks.
    A. General Harvest Strategy.
    B. Regulatory Alternatives.
    C. Zones and Split Seasons.
    D. Special Seasons/Species Management.
    i. September Teal Seasons.
    ii. September Teal/Wood Duck Seasons.
    iii. Black Ducks.
    iv. Canvasbacks.
    v. Pintails.
    vi. Scaup.
    vii. Mottled Ducks.
    viii. Wood Ducks.
    ix. Youth Hunt.
    2. Sea Ducks.
    3. Mergansers.
    4. Canada Geese.
    A. Special Seasons.
    B. Regular Seasons.
    C. Special Late Seasons.
    5. White-fronted Geese.
    6. Brant.
    7. Snow and Ross's (Light) Geese.
    8. Swans.
    9. Sandhill Cranes.
    10. Coots.
    11. Moorhens and Gallinules.
    12. Rails.
    13. Snipe.
    14. Woodcock.
    15. Band-tailed Pigeons.
    16. Mourning Doves.
    17. White-winged and White-tipped Doves.
    18. Alaska.
    19. Hawaii.
    20. Puerto Rico.
    21. Virgin Islands.
    22. Falconry.
    23. Other.

    Later sections of this and subsequent documents will refer only to 
numbered items requiring your attention. Therefore, it is important to 
note that we will omit those items requiring no attention, and 
remaining numbered items will be discontinuous and appear incomplete.
    We will publish final regulatory alternatives for the 2009-10 duck 
hunting seasons in mid-July. We will publish proposed early season 
frameworks in mid-July and late season frameworks in mid-August. We 
will publish final regulatory frameworks for early seasons on or about 
August 17, 2009, and those for late seasons on or about September 14, 

Request for 2010 Spring and Summer Migratory Bird Subsistence Harvest 
Proposals in Alaska


    The 1916 Convention for the Protection of Migratory Birds between 
the United States and Great Britain (for Canada) established a closed 
season for the taking of migratory birds between March 10 and September 
1. Residents of northern Alaska and Canada traditionally harvested 
migratory birds for nutritional purposes during the spring and summer 
months. The 1916 Convention and the subsequent 1936 Mexico Convention 
for the Protection of Migratory Birds and Game Mammals provide for the 
legal subsistence harvest of migratory birds and their eggs in Alaska 
and Canada during the closed season by indigenous inhabitants.
    On August 16, 2002, we published in the Federal Register (67 FR 
53511) a final rule that established procedures for incorporating 
subsistence management into the continental migratory bird management 
program. These regulations, developed under a new co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives, established an annual procedure to 
develop harvest guidelines for implementation of a spring and summer 
migratory bird subsistence harvest. Eligibility and inclusion 
requirements necessary to participate in the spring and summer 
migratory bird subsistence season in Alaska are outlined in 50 CFR part 
    This proposed rule calls for proposals for regulations that will 
expire on August 31, 2010, for the spring and summer subsistence 
harvest of migratory birds in Alaska. Each year, seasons will open on 
or after March 11 and close prior to September 1.

Alaska Spring and Summer Subsistence Harvest Proposal Procedures

    We will publish details of the Alaska spring and summer subsistence 
harvest proposals in later Federal Register documents under 50 CFR part 
92. The general relationship to the process for developing national 
hunting regulations for migratory game birds is as follows:

(a) Alaska Migratory Bird Co-Management Council

    The public may submit proposals to the Co-management Council during 
the period of November 1-December 15, 2009, to be acted upon for the 
2010 migratory bird subsistence harvest season. Proposals should be 
submitted to the Executive Director of the Co-management Council, 
listed above under the caption ADDRESSES.

(b) Flyway Councils

    (1) The Co-management Council will submit proposed 2010 regulations 
to all Flyway Councils for review and comment. The Council's 
recommendations must be submitted prior to the Service Regulations 
Committee's last regular meeting of the calendar year in order to be 
approved for spring and summer harvest beginning March 11 of the 
following calendar year.
    (2) Alaska Native representatives may be appointed by the Co-
management Council to attend meetings of one or more of the four Flyway 
Councils to discuss recommended regulations or other proposed 
management actions.

(c) Service Regulations Committee

    The Co-management Council will submit proposed annual regulations 
to the Service Regulations Committee (SRC) for their review and 
recommendation to the Service Director. Following the Service 
Director's review and recommendation, the proposals will be forwarded 
to the Department of the Interior for approval. Proposed annual 
regulations will then be published in the Federal Register for public 
review and comment, similar to the annual migratory game bird hunting 
regulations. Final spring and summer regulations for Alaska will be 
published in the Federal Register in the preceeding winter after review 
and consideration of any public comments received.
    Because of the time required for review by us and the public, 
proposals from the Co-management Council for the 2010 spring and summer 
migratory bird subsistence harvest season must be submitted to the 
Flyway Councils and the Service by June 15, 2009, for Council comments 
and Service action at the late-season SRC meeting.

Review of Public Comments

    This proposed rulemaking contains the proposed regulatory 
alternatives for the 2009-10 duck hunting seasons. This proposed 
rulemaking also describes other recommended changes or specific 
preliminary proposals that vary from the 2008-09 final frameworks (see 
August 27, 2008, Federal Register (73 FR 50678) for early seasons and 
September 25, 2008, Federal Register (73 FR 55602) for late seasons) 
and issues requiring early discussion, action, or the attention of the 
States or Tribes. We will publish responses to all proposals and 
written comments when we develop final frameworks for the 2009-10 
season. We seek additional information and comments on this proposed 

Consolidation of Notices

    For administrative purposes, this document consolidates the notice 
of intent to establish open migratory game bird hunting seasons, the 
request for Tribal proposals, and the request for Alaska migratory bird 
subsistence seasons with the preliminary proposals for the annual 
hunting regulations-development process. We will publish the remaining 
proposed and final rulemaking documents separately. For

[[Page 16342]]

inquiries on Tribal guidelines and proposals, Tribes should contact the 
following personnel:
    Regions 1 and 8 (California, Idaho, Nevada, Oregon, Washington, 
Hawaii, and the Pacific Islands)--Brad Bortner, U.S. Fish and Wildlife 
Service, 911 NE. 11th Avenue, Portland, Oregon 97232-4181; (503) 231-
    Region 2 (Arizona, New Mexico, Oklahoma, and Texas)--Jeff Haskins, 
U.S. Fish and Wildlife Service, P.O. Box 1306, Albuquerque, New Mexico 
87103; (505) 248-7885.
    Region 3 (Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, 
Ohio, and Wisconsin)--Jane West, U.S. Fish and Wildlife Service, 
Federal Building, One Federal Drive, Fort Snelling, Minnesota 55111-
4056; (612) 713-5432.
    Region 4 (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, 
Mississippi, North Carolina, Puerto Rico and Virgin Islands, South 
Carolina, and Tennessee)--David Viker, U.S. Fish and Wildlife Service, 
1875 Century Boulevard, Room 324, Atlanta, Georgia 30345; (404) 679-
    Region 5 (Connecticut, Delaware, Maine, Maryland, Massachusetts, 
New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, 
Vermont, Virginia, and West Virginia)--Diane Pence, U.S. Fish and 
Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 
01035-9589; (413) 253-8576.
    Region 6 (Colorado, Kansas, Montana, Nebraska, North Dakota, South 
Dakota, Utah, and Wyoming)--James Dubovsky, U.S. Fish and Wildlife 
Service, P.O. Box 25486, Denver Federal Building, Denver, Colorado 
80225; (303) 236-8145.
    Region 7 (Alaska)--Russ Oates, U.S. Fish and Wildlife Service, 1011 
East Tudor Road, Anchorage, Alaska 99503; (907) 786-3423.

Requests for Tribal Proposals


    Beginning with the 1985-86 hunting season, we have employed 
guidelines described in the June 4, 1985, Federal Register (50 FR 
23467) to establish special migratory game bird hunting regulations on 
Federal Indian reservations (including off-reservation trust lands) and 
ceded lands. We developed these guidelines in response to Tribal 
requests for our recognition of their reserved hunting rights, and for 
some Tribes, recognition of their authority to regulate hunting by both 
Tribal and nontribal members throughout their reservations. The 
guidelines include possibilities for:
    (1) On-reservation hunting by both Tribal and nontribal members, 
with hunting by nontribal members on some reservations to take place 
within Federal frameworks, but on dates different from those selected 
by the surrounding State(s);
    (2) On-reservation hunting by Tribal members only, outside of usual 
Federal frameworks for season dates and length, and for daily bag and 
possession limits; and
    (3) Off-reservation hunting by Tribal members on ceded lands, 
outside of usual framework dates and season length, with some added 
flexibility in daily bag and possession limits.
    In all cases, Tribal regulations established under the guidelines 
must be consistent with the annual March 10 to September 1 closed 
season mandated by the 1916 Convention Between the United States and 
Great Britain (for Canada) for the Protection of Migratory Birds 
(Convention). The guidelines are applicable to those Tribes that have 
reserved hunting rights on Federal Indian reservations (including off-
reservation trust lands) and ceded lands. They also may be applied to 
the establishment of migratory game bird hunting regulations for 
nontribal members on all lands within the exterior boundaries of 
reservations where Tribes have full wildlife management authority over 
such hunting, or where the Tribes and affected States otherwise have 
reached agreement over hunting by nontribal members on non-Indian 
    Tribes usually have the authority to regulate migratory game bird 
hunting by nonmembers on Indian-owned reservation lands, subject to our 
approval. The question of jurisdiction is more complex on reservations 
that include lands owned by non-Indians, especially when the 
surrounding States have established or intend to establish regulations 
governing migratory bird hunting by non-Indians on these lands. In such 
cases, we encourage the Tribes and States to reach agreement on 
regulations that would apply throughout the reservations. When 
appropriate, we will consult with a Tribe and State with the aim of 
facilitating an accord. We also will consult jointly with Tribal and 
State officials in the affected States where Tribes may wish to 
establish special hunting regulations for Tribal members on ceded 
lands. It is incumbent upon the Tribe and/or the State to request 
consultation as a result of the proposal being published in the Federal 
Register. We will not presume to make a determination, without being 
advised by either a Tribe or a State, that any issue is or is not 
worthy of formal consultation.
    One of the guidelines provides for the continuation of Tribal 
members' harvest of migratory game birds on reservations where such 
harvest is a customary practice. We do not oppose this harvest, 
provided it does not take place during the closed season required by 
the Convention, and it is not so large as to adversely affect the 
status of the migratory game bird resource. Since the inception of 
these guidelines, we have reached annual agreement with Tribes for 
migratory game bird hunting by Tribal members on their lands or on 
lands where they have reserved hunting rights. We will continue to 
consult with Tribes that wish to reach a mutual agreement on hunting 
regulations for on-reservation hunting by Tribal members.
    Tribes should not view the guidelines as inflexible. We believe 
that they provide appropriate opportunity to accommodate the reserved 
hunting rights and management authority of Indian Tribes while also 
ensuring that the migratory game bird resource receives necessary 
protection. The conservation of this important international resource 
is paramount. Use of the guidelines is not required if a Tribe wishes 
to observe the hunting regulations established by the State(s) in which 
the reservation is located.

Details Needed in Tribal Proposals

    Tribes that wish to use the guidelines to establish special hunting 
regulations for the 2009-10 migratory game bird hunting season should 
submit a proposal that includes:
    (1) The requested migratory game bird hunting season dates and 
other details regarding the proposed regulations;
    (2) Harvest anticipated under the proposed regulations;
    (3) Methods employed to monitor harvest (mail-questionnaire survey, 
bag checks, etc.);
    (4) Steps that will be taken to limit level of harvest, where it 
could be shown that failure to limit such harvest would seriously 
impact the migratory game bird resource; and
    (5) Tribal capabilities to establish and enforce migratory game 
bird hunting regulations.
    A Tribe that desires the earliest possible opening of the migratory 
game bird season for nontribal members should specify this request in 
its proposal, rather than request a date that might not be within the 
final Federal frameworks. Similarly, unless a Tribe wishes to set more 
restrictive regulations than Federal regulations will permit for 
nontribal members, the proposal should request the same daily bag and 
possession limits and season

[[Page 16343]]

length for migratory game birds that Federal regulations are likely to 
permit the States in the Flyway in which the reservation is located.

Tribal Proposal Procedures

    We will publish details of Tribal proposals for public review in 
later Federal Register documents. Because of the time required for 
review by us and the public, Indian Tribes that desire special 
migratory game bird hunting regulations for the 2009-10 hunting season 
should submit their proposals as soon as possible, but no later than 
June 1, 2009.
    Tribes should direct inquiries regarding the guidelines and 
proposals to the appropriate Service Regional Office listed above under 
the caption Consolidation of Notices. Tribes that request special 
migratory game bird hunting regulations for Tribal members on ceded 
lands should send a courtesy copy of the proposal to officials in the 
affected State(s).

Public Comments

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. Accordingly, we invite interested persons to submit written 
comments, suggestions, or recommendations regarding the proposed 
regulations. Before promulgation of final migratory game bird hunting 
regulations, we will take into consideration all comments received. 
Such comments, and any additional information received, may lead to 
final regulations that differ from these proposals.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. Finally, we will not consider hand-delivered 
comments that we do not receive, or mailed comments that are not 
postmarked, by the date specified in the DATES section.
    We will post all comments in their entirety--including your 
personal identifying information--on http://www.regulations.gov. Before 
including your address, phone number, e-mail address, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Division of Migratory Bird Management, Room 4107, 
4501 North Fairfax Drive, Arlington, VA 22203.
    For each series of proposed rulemakings, we will establish specific 
comment periods. We will consider, but possibly may not respond in 
detail to, each comment. As in the past, we will summarize all comments 
received during the comment period and respond to them after the 
closing date in any final rules.

NEPA Consideration

    NEPA considerations are covered by the programmatic document 
``Final Supplemental Environmental Impact Statement: Issuance of Annual 
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with the Environmental Protection Agency on June 9, 1988. 
We published notice of availability in the Federal Register on June 16, 
1988 (53 FR 22582). We published our Record of Decision on August 18, 
1988 (53 FR 31341). In addition, an August 1985 environmental 
assessment entitled ``Guidelines for Migratory Bird Hunting Regulations 
on Federal Indian Reservations and Ceded Lands'' is available from the 
address indicated under the caption FOR FURTHER INFORMATION CONTACT.
    In a notice published in the September 8, 2005, Federal Register 
(70 FR 53376), we announced our intent to develop a new Supplemental 
Environmental Impact Statement for the migratory bird hunting program. 
Public scoping meetings were held in the spring of 2006, as detailed in 
a March 9, 2006, Federal Register (71 FR 12216). We have prepared a 
scoping report summarizing the scoping comments and scoping meetings. 
The report is available by either writing to the address indicated 
under FOR FURTHER INFORMATION CONTACT or by viewing on our Web site at 

Endangered Species Act Consideration

    Prior to issuance of the 2009-10 migratory game bird hunting 
regulations, we will comply with provisions of the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to 
ensure that hunting is not likely to jeopardize the continued existence 
of any species designated as endangered or threatened or modify or 
destroy its critical habitat and is consistent with conservation 
programs for those species. Consultations under Section 7 of this Act 
may cause us to change proposals in this and future supplemental 
proposed rulemaking documents.

Executive Order 12866

    The Office of Management and Budget has determined that this rule 
is significant and has reviewed this rule under Executive Order 12866. 
A regulatory cost-benefit analysis has been prepared and is available 
at http://www.fws.gov/migratorybirds/reports/reports.html or at http://
www.regulations.gov. OMB bases its determination of regulatory 
significance upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    (d) Whether the rule raises novel legal or policy issues.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Regulatory Flexibility Act

    The regulations have a significant economic impact on substantial

[[Page 16344]]

numbers of small entities under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). We analyzed the economic impacts of the annual 
hunting regulations on small business entities in detail as part of the 
1981 cost-benefit analysis. This analysis was revised annually from 
1990-95. In 1995, the Service issued a Small Entity Flexibility 
Analysis (Analysis), which was subsequently updated in 1996, 1998, 
2004, and 2008. The primary source of information about hunter 
expenditures for migratory game bird hunting is the National Hunting 
and Fishing Survey, which is conducted at 5-year intervals. The 2008 
Analysis was based on the 2006 National Hunting and Fishing Survey and 
the U.S. Department of Commerce's County Business Patterns, from which 
it was estimated that migratory bird hunters would spend approximately 
$1.2 billion at small businesses in 2008. Copies of the Analysis are 
available upon request from the address indicated under ADDRESSES or 
from our Web site at http://www.fws.gov/migratorybirds/reports/
reports.html or at http://www.regulations.gov.

Small Business Regulatory Enforcement Fairness Act

    This rule is a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. For the reasons outlined above, 
this rule has an annual effect on the economy of $100 million or more. 
However, because this rule establishes hunting seasons, we do not plan 
to defer the effective date under the exemption contained in 5 U.S.C. 

Paperwork Reduction Act

    We examined these regulations under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). The various recordkeeping and reporting 
requirements imposed under regulations established in 50 CFR part 20, 
subpart K, are utilized in the formulation of migratory game bird 
hunting regulations. Specifically, OMB has approved the information 
collection requirements of our Migratory Bird Surveys and assigned 
control number 1018-0023 (expires 2/28/2011). This information is used 
to provide a sampling frame for voluntary national surveys to improve 
our harvest estimates for all migratory game birds in order to better 
manage these populations. OMB has also approved the information 
collection requirements of the Alaska Subsistence Household Survey, an 
associated voluntary annual household survey used to determine levels 
of subsistence take in Alaska, and assigned control number 1018-0124 
(expires 1/31/2010). A Federal agency may not conduct or sponsor and a 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

Unfunded Mandates Reform Act

    We have determined and certify, in compliance with the requirements 
of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State government or private entities. Therefore, this 
rule is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act.

Civil Justice Reform--Executive Order 12988

    The Department, in promulgating this proposed rule, has determined 
that this proposed rule will not unduly burden the judicial system and 
that it meets the requirements of sections 3(a) and 3(b)(2) of 
Executive Order 12988.

Takings Implication Assessment

    In accordance with Executive Order 12630, this proposed rule, 
authorized by the Migratory Bird Treaty Act, does not have significant 
takings implications and does not affect any constitutionally protected 
property rights. This rule will not result in the physical occupancy of 
property, the physical invasion of property, or the regulatory taking 
of any property. In fact, these rules allow hunters to exercise 
otherwise unavailable privileges and, therefore, reduce restrictions on 
the use of private and public property.

Energy Effects--Executive Order 13211

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. While this proposed 
rule is a significant regulatory action under Executive Order 12866, it 
is not expected to adversely affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have evaluated possible effects on Federally-recognized Indian Tribes 
and have determined that there are no effects on Indian trust 
resources. However, in this proposed rule we solicit proposals for 
special migratory bird hunting regulations for certain Tribes on 
Federal Indian reservations, off-reservation trust lands, and ceded 
lands for the 2009-10 migratory bird hunting season. The resulting 
proposals will be contained in a separate proposed rule. By virtue of 
these actions, we have consulted with Tribes affected by this rule.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the Migratory Bird Treaty Act. We annually prescribe frameworks from 
which the States make selections regarding the hunting of migratory 
birds, and we employ guidelines to establish special regulations on 
Federal Indian reservations and ceded lands. This process preserves the 
ability of the States and Tribes to determine which seasons meet their 
individual needs. Any State or Indian Tribe may be more restrictive 
than the Federal frameworks at any time. The frameworks are developed 
in a cooperative process with the States and the Flyway Councils. This 
process allows States to participate in the development of frameworks 
from which they will make selections, thereby having an influence on 
their own regulations. These rules do not have a substantial direct 
effect on fiscal capacity, change the roles or responsibilities of 
Federal or State governments, or intrude on State policy or 
administration. Therefore, in accordance with Executive Order 13132, 
these regulations do not have significant federalism effects and do not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    Authority: The rules that eventually will be promulgated for the 
2009-10 hunting season are authorized under 16 U.S.C. 703-711, 16 
U.S.C. 712, and 16 U.S.C. 742 a-j.

    Dated: March 5, 2009.
Jane Lyder,
Assistant Deputy Secretary.

Proposed 2009-10 Migratory Game Bird Hunting Regulations (Preliminary)

    Pending current information on populations, harvest, and habitat 
conditions, and receipt of recommendations from the four Flyway 
Councils, we may defer specific

[[Page 16345]]

regulatory proposals. At this time, we are proposing no changes from 
the final 2008-09 frameworks established on August 27 and September 25, 
2008 (73 FR 50678 and 73 FR 55602). Other issues requiring early 
discussion, action, or the attention of the States or Tribes are 
contained below:

1. Ducks

    Categories used to discuss issues related to duck harvest 
management are: (A) General Harvest Strategy, (B) Regulatory 
Alternatives, (C) Zones and Split Seasons, and (D) Special Seasons/
Species Management. Only those containing substantial recommendations 
are discussed below.

A. General Harvest Strategy

    We propose to continue use of adaptive harvest management (AHM) to 
help determine appropriate duck-hunting regulations for the 2009-10 
season. AHM is a tool that permits sound resource decisions in the face 
of uncertain regulatory impacts, as well as providing a mechanism for 
reducing that uncertainty over time. The current AHM protocol is used 
to evaluate four alternative regulatory levels based on the population 
status of mallards (special hunting restrictions are enacted for 
species of special concern, such as canvasbacks, scaup, and pintails).
    Until last year, the prescribed regulatory alternative for the 
Pacific, Central, and Mississippi Flyways was based on the status of 
mallards and breeding-habitat conditions in central North America 
(Federal survey strata 1-18, 20-50, and 75-77, and State surveys in 
Minnesota, Wisconsin, and Michigan). In 2008, however, we implemented 
the western mallard AHM protocol for the 2008-09 hunting season. This 
new protocol sets hunting regulations in the Pacific Flyway based on 
the status and dynamics of a newly defined stock of ``western'' 
mallards. Currently, western mallards are defined as those breeding in 
Alaska (as based on Federal surveys in strata 1-12), and in California 
and Oregon (as based on State-conducted surveys). As we detailed in the 
July 24, 2008, Federal Register (73 FR 43290), implementation of this 
new AHM decision framework for western mallards required several 
further considerations. First, the new protocol necessitated that we 
``rescale'' the closed season constraint in the existing mid-continent 
mallard (identified above as those breeding in central North America) 
AHM strategy from 5.50 to 4.75 million mallards and the population 
objective from 8.8 to 8.5 million mallards. These ``rescalings'' were 
necessary to adjust for removing mallards breeding in Alaska from the 
mid-continent population and assigning them to the western mallard 
population. Second, the optimal regulatory policies for western 
mallards (and mid-continent mallards) are based on independent 
optimization. That is, the optimum regulations for mid-continent 
mallards and western mallards are determined independently, and based 
upon the breeding stock that contributes primarily to each Flyway 
(western mallards for the Pacific Flyway and mid-continent mallards for 
the Central and Mississippi Flyways). Third, that the current 
regulatory alternatives remain in place for the Pacific Flyway, while 
we continue to work with the Pacific Flyway to develop regulatory 
options necessary to effect a substantive increase or decrease in the 
harvest rate of western mallards. And lastly, regulations in Alaska 
would continue to be addressed as an early season issue, and future 
consideration of Alaska regulatory changes would be based on the status 
of the western mallards rather than mid-continent mallards. We are 
recommending a continuation of this protocol for the 2009-10 season.
    Finally, since 2000, we have prescribed a regulatory alternative 
for the Atlantic Flyway based on the population status of mallards 
breeding in eastern North America (Federal survey strata 51-54 and 56, 
and State surveys in New England and the mid-Atlantic region). We are 
recommending a continuation of this protocol for the 2009-10 season.
    The final AHM protocol for the 2009-10 season will be detailed in 
the early-season proposed rule, which will be published in mid-July 
(see Schedule of Regulations Meetings and Federal Register Publications 
at the end of this proposed rule for further information).
    We will propose a specific regulatory alternative for each of the 
Flyways during the 2009-10 season after survey information becomes 
available in late summer. More information on AHM is located at http://

B. Regulatory Alternatives

    The basic structure of the current regulatory alternatives for AHM 
was adopted in 1997. The alternatives remained largely unchanged until 
2002, when we (based on recommendations from the Flyway Councils) 
extended framework dates in the ``moderate'' and ``liberal'' regulatory 
alternatives by changing the opening date from the Saturday nearest 
October 1 to the Saturday nearest September 24, and changing the 
closing date from the Sunday nearest January 20 to the last Sunday in 
January. These extended dates were made available with no associated 
penalty in season length or bag limits. At that time we stated our 
desire to keep these changes in place for 3 years to allow for a 
reasonable opportunity to monitor the impacts of framework-date 
extensions on harvest distribution and rates of harvest prior to 
considering any subsequent use (67 FR 12501).
    For 2009-10, we are proposing to maintain the same regulatory 
alternatives that were in effect last year (see accompanying table for 
specifics of the proposed regulatory alternatives). Alternatives are 
specified for each Flyway and are designated as ``RES'' for the 
restrictive, ``MOD'' for the moderate, and ``LIB'' for the liberal 
alternative. We will announce final regulatory alternatives in mid-
July. Public comments will be accepted until June 26, 2009, and should 
be sent to an address listed under the caption ADDRESSES.

D. Special Seasons/Species Management

v. Pintails
    As we have stated over the past several years, we remain committed 
to the development of a framework to inform pintail harvest management 
based on a formal, derived strategy and clearly articulated management 
objectives. In collaboration with scientists from the U.S. Geological 
Survey, we developed a fully adaptive harvest management protocol for 
pintails and forwarded the technical details to the Flyway Councils for 
their review in 2008. We are requesting the Flyways conclude their 
review and provide any modifications or adjustments they believe are 
warranted no later than November 2009. We will then modify the proposed 
derived strategy based on these comments. We anticipate making the 
revised strategy available for review by Flyway Councils and the public 
with the intent of implementing a revised harvest strategy for pintails 
during the 2010-11 regulatory cycle.
vi. Scaup
    The continental scaup (greater Aythya marila and lesser Aythya 
affinis combined) population has experienced a long-term decline over 
the past 20 years. Over the past several years in particular, we have 
continued to express our growing concern about the status of scaup (see 
the May 28, 2008, Federal Register, 73 FR 30712, for a review of 
actions we have taken over the last few

[[Page 16346]]

years to synthesize data relevant to scaup harvest management and frame 
a scientifically sound scaup harvest strategy, or see http://
www.fws.gov/migratorybirds/reports/reports.html for a complete list of 
reports). While the breeding population estimate for scaup was 3.74 
million last spring, this estimate was not significantly different from 
2007 and remained 27 percent below the long-term average.
    In the July 24, 2008, Federal Register (73 FR 43290), we adopted a 
scaup harvest strategy that resulted from five years of development and 
review in cooperation with the Flyway Councils. One of the outcomes of 
our communication efforts with the Flyways was an agreement to consider 
an alternative model that represents the belief that the scaup 
population will continue to decline to a new equilibrium level and that 
harvest has no effect on the decline. The results from the alternative 
model, along with the existing model, would then be compared and 
weighted through an adaptive process while forming a basis for the 
derivation of an optimal harvest strategy.
    We have begun preliminary scoping of the technical and policy 
issues associated with incorporating such an alternative. However, the 
harvest management implications of developing an adaptive decision 
process that accommodates ongoing system change are largely unexplored 
and will likely require a significant amount of effort to evaluate. 
Additional technical work is necessary and policy guidance will be 
required throughout model development. We will rely on technical 
feedback from the waterfowl management community to reach a consensus 
on the final model. At this time it is unclear when such a model will 
be available for use.
    During last year's regulatory cycle we solicited proposals from the 
Flyways regarding the configuration of their restrictive, moderate and 
liberal regulatory packages for scaup. Such packages were to remain in 
place for 3 years, at which time their performance was to be evaluated. 
All Flyway Councils eventually submitted proposals that met criteria we 
had established; however, some State agencies expressed dissatisfaction 
with the process. Consequently, we indicated our willingness to revisit 
the process for the 2009-10 regulatory cycle, and we have provided 
Flyway Councils with guidelines to be used in developing new packages 
(see http://www.regulations.gov for guidelines provided to Flyway 
Councils), if they choose to do so. The suite of packages adopted 
during this current regulatory cycle will remain in place for the next 
3 years and will be evaluated at the end of that period. These 
restrictions will also apply to Flyways that choose not to reconfigure 
their regulatory packages. To facilitate our review of any new 
regulatory packages, we request that Flyway Councils provide us 
information on potential changes to scaup regulatory packages either in 
writing prior to, or at the early-season Service Regulations Committee 
meeting in June 2009. We look forward to continued cooperation with the 
Flyways in further development of the scaup harvest management 
vii. Mottled Ducks
    The Service and other agencies have been concerned about the status 
of mottled ducks since the late 1990s. This long-term concern stems 
from negative trends in population survey data, growth rate modeling 
based on banding and parts collection data, loss and degradation of 
habitat, interbreeding with captive-reared and feral mallards, and 
increased harvest rates as the result of longer hunting seasons since 
1997. In the past, we have expressed our desire to work with the States 
to develop a harvest-management strategy for mottled ducks. Since 2005, 
several workshops have been convened with State agencies, the U.S. 
Geological Survey, and others to discuss the status of mottled ducks, 
population structure and delineation, and to evaluate current 
monitoring programs and plan for the development of new population 
surveys. A major conclusion from these workshops was that mottled ducks 
should be managed as two separate populations, a Florida Population and 
a Western Gulf Coast Population. Secondarily, the lack of a range-wide 
population survey for Western Gulf Coast mottled ducks is a significant 
impediment to management. Additionally, a report expanding on analyses 
first presented at the 2005 Workshop has recently been released 
(available at http://www.fws.gov/migratorybirds/reports/reports.html) 
and distributed to the Central and Mississippi Flyways. This report 
included an assessment of available data and suggested that there has 
been a reduction in the harvest potential for this population.
    We are encouraged by the progress that has been made toward 
development of monitoring systems to improve assessment capabilities 
for mottled ducks. We provided the Flyway Councils with analyses of 
harvest data that examined potential harvest restrictions to reduce 
harvest rates (available at http://www.fws.gov/migratorybirds/reports/
reports.html), should that be deemed necessary, and we appreciate the 
responses from the Flyways on this analysis. However, after 
consideration of long-term population trends for this population, 
recent harvest levels, and this year's breeding habitat conditions 
(especially on the Texas Gulf Coast), we believe that a reduction in 
harvest levels for this population may be appropriate. Thus, we 
strongly encourage the Central and Mississippi Flyway Councils to 
examine the status of mottled ducks and assess the potential need for 
any regulatory actions for the 2009-10 season.
viii. Wood Ducks
    As we stated last year, we look forward to continuing involvement 
by the Flyways in developing a wood duck harvest strategy, including 
(1) determining specific harvest management objectives; (2) determining 
regulatory alternatives; (3) designation of and support for appropriate 
population monitoring programs; and (4) designation of the appropriate 
test criteria for making management decisions. We would like the 
Flyways to develop this strategy for implementation during the 2010-11 
hunting season.

14. Woodcock

    In 2008, we completed a review of available woodcock population 
databases. Concurrently, we requested the Atlantic, Mississippi, and 
Central Flyway Councils to appoint members to a task group to work with 
the Service on developing a woodcock harvest strategy. The task group 
is currently evaluating potential approaches as to how available 
databases could be utilized in a woodcock harvest strategy. It is 
anticipated that a draft harvest strategy would be available for 
consideration for the 2010-2011 hunting season.

[[Page 16347]]


[[Page 16348]]


 [FR Doc. E9-7840 Filed 4-9-09; 8:45 am]