[Federal Register: May 13, 2010 (Volume 75, Number 92)]
[Proposed Rules]
[Page 27143-27153]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my10-15]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 20
Migratory Bird Hunting; Proposed 2010-11 Migratory Game Bird Hunting
Regulations (Preliminary) With Requests for Indian Tribal Proposals and
Requests for 2011 Spring and Summer Migratory Bird Subsistence Harvest
Proposals in Alaska; Proposed Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[FWS-R9-MB-2010-0040]
[91200-1231-9BPP-L2]
RIN 1018-AX06
Migratory Bird Hunting; Proposed 2010-11 Migratory Game Bird
Hunting Regulations (Preliminary) With Requests for Indian Tribal
Proposals and Requests for 2011 Spring and Summer Migratory Bird
Subsistence Harvest Proposals in Alaska
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of supplemental information.
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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 2010-11 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 2010-11 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
2011 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 2010-11 duck hunting seasons by June 25, 2010. Following
subsequent Federal Register notices, you will be given an opportunity
to submit comments for proposed early-season frameworks by July 31,
2010, and for proposed late-season frameworks and subsistence migratory
bird seasons in Alaska by August 31, 2010. Tribes must submit proposals
and related comments by June 1, 2010. 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, 2010.
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 on Docket No. FW-R9-MB-
2010-0040.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: 1018-AX06; 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).
Send your proposals for the 2011 spring and summer migratory bird
subsistence season in Alaska 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 email to
ambcc@fws.gov.
FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, at: Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, Department
of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, 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 99503.
SUPPLEMENTARY INFORMATION:
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
States.
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 before 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
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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 2010-11 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 2010-11 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 2010-11 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 2010-11
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
regulations.
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 before 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 2010-11 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:
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 2010-11 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 16, 2010, and those for late seasons on or about September 15,
2010.
Request for 2011 Spring and Summer Migratory Bird Subsistence Harvest
Proposals in Alaska
Background
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
92.
This proposed rule calls for proposals for regulations that will
expire on August 31, 2011, for the spring and
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summer subsistence harvest of migratory birds in Alaska. Each year,
seasons will open on or after March 11 and close before 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, 2010, to be acted upon for the 2011 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 2011 regulations
to all Flyway Councils for review and comment. The Council's
recommendations must be submitted before 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
preceding 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 2011 spring and summer
migratory bird subsistence harvest season must be submitted to the
Flyway Councils and the Service by June 15, 2010, 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 2010-11 duck hunting seasons. This proposed
rulemaking also describes other recommended changes or specific
preliminary proposals that vary from the 2009-10 final frameworks (see
August 25, 2009, Federal Register (74 FR 43008) for early seasons and
September 24, 2009, Federal Register (74 FR 48822) 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 2010-11
season. We seek additional information and comments on this proposed
rule.
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 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 N.E. 11th Avenue, Portland, OR 97232-4181; (503) 231-6164.
Region 2 (Arizona, New Mexico, Oklahoma, and Texas)--Jeff Haskins,
U.S. Fish and Wildlife Service, P.O. Box 1306, Albuquerque, NM 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, MN 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, GA 30345; (404) 679-4000.
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, MA 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, CO 80225;
(303) 236-8145.
Region 7 (Alaska)--Russ Oates, U.S. Fish and Wildlife Service, 1011
East Tudor Road, Anchorage, AK 99503; (907) 786-3423.
Requests for Tribal Proposals
Background
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
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States otherwise have reached agreement over hunting by nontribal
members on non-Indian lands.
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 2010-11 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 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 2010-11 hunting season
should submit their proposals as soon as possible, but no later than
June 1, 2010.
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 we receive.
Such comments, and any additional information we receive, 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
we receive 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
[[Page 27148]]
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 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 website at http://
www.fws.gov/migratorybirds.
Endangered Species Act Consideration
Before issuance of the 2010-11 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 the 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.
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
recipients.
(d) Whether the rule raises novel legal or policy issues.
An economic analysis was prepared for the 2008-09 season. This
analysis was based on data from the 2006 National Hunting and Fishing
Survey, the most recent year for which data are available (see
discussion in Regulatory Flexibility Act section below). This analysis
estimated consumer surplus for three alternatives for duck hunting
(estimates for other species are not quantified due to lack of data).
The alternatives are (1) Issue restrictive regulations allowing fewer
days than those issued during the 2007-08 season, (2) Issues moderate
regulations allowing more days than those in alternative 1, and (3)
Issue liberal regulations identical to the regulations in the 2007-08
season. For the 2008-09 season, we chose alternative 3, with an
estimated consumer surplus across all flyways of $205-$270 million. At
this time, we are proposing no changes to the season frameworks for the
2010-11 season, and as such, we will again consider these three
alternatives. However, final frameworks will be dependent on population
status information available later this year. For these reasons, we
have not conducted a new economic analysis, but the 2008-09 analysis is
part of the record for this rule and is available at http://
www.fws.gov/migratorybirds/NewReportsPublications/SpecialTopics/
SpecialTopics.html#HuntingRegs or at http://www.regulations.gov.
Regulatory Flexibility Act
The regulations have a significant economic impact on substantial
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 Division of Migratory Bird Management
(see FOR FURTHER INFORMATION CONTACT) or from our website at http://
www.fws.gov/migratorybirds/NewReportsPublications/SpecialTopics/
SpecialTopics.html#HuntingRegs or at http://www.regulations.gov.
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.
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.
808(1).
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
[[Page 27149]]
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 2010-11 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 2010-11
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: April 1, 2010
Thomas L. Strickland
Assistant Secretary for Fish Wildlife and Parks.
Proposed 2010-11 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 regulatory proposals. At this time, we
are proposing no changes from the final 2009-10 frameworks established
on August 25 and September 24, 2009 (74 FR 43008 and 74 FR 48822).
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 using adaptive harvest management (AHM) to
help determine appropriate duck-hunting regulations for the 2010-11
season. AHM permits sound resource decisions in the face of uncertain
regulatory impacts and provides a mechanism for reducing that
uncertainty over time. We use AHM to evaluate four alternative
regulatory levels for duck hunting based on the population status of
mallards. (We enact special hunting restrictions for species of special
concern, such as canvasbacks, scaup, and pintails).
1. Pacific, Central and Mississippi Flyways
Until 2008, we based the prescribed regulatory alternative for the
Pacific, Central, and Mississippi Flyways 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, we based hunting regulations upon
the breeding stock that contributes primarily to each Flyway, as
follows:
(1) We set hunting regulations in the Pacific Flyway based on the
status and dynamics of a newly defined stock of ``western'' mallards.
(Western mallards are those breeding in Alaska (as based on Federal
surveys in strata 1-12), and in California and Oregon (as based on
State-conducted surveys).) (2) We set
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hunting regulations for the Central and Mississippi Flyways based on
the status and dynamics of mid-continent mallards. (Mid-continent
mallards are those breeding in central North America not included in
the Western mallard stock, as defined above.)
For the 2010-11 season, we recommend continuing to use independent
optimization to determine the optimum regulations. This means that we
would develop regulations for mid-continent mallards and western
mallards independently, based upon the breeding stock that contributes
primarily to each Flyway. We detailed implementation of this new AHM
decision framework in the July 24, 2008, Federal Register (73 FR
43290).
2. Atlantic Flyway
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 recommend
continuation of this protocol for the 2010-11 season.
3. Final 2010-2011 AHM Protocol
We will detail the final AHM protocol for the 2010-11 season in the
early-season proposed rule, which we will publish 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
2010-11 season after survey information becomes available in late
summer. More information on AHM is located at http://www.fws.gov/
migratorybirds/CurrentBirdIssues/Management/AHM/AHM-intro.htm.
B. Regulatory Alternatives
The basic structure of the current regulatory alternatives for AHM
was adopted in 1997. In 2002, based upon recommendations from the
Flyway Councils, we extended framework dates in the ``moderate'' and
``liberal'' regulatory alternatives by:
(1) Changing the opening date from the Saturday nearest October 1
to the Saturday nearest September 24; and
(2) 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 before considering any
subsequent use (67 FR 12501).
For 2010-11, 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. We will accept public comments until June 25, 2010, and you
should send your comments to an address listed under the caption
ADDRESSES.
C. Zones and Split Seasons
In 1990, because of concerns about the proliferation of zones and
split seasons for duck hunting, we conducted a cooperative review and
evaluation of the historical use of zone/split options. This review did
not show that the proliferation of these options had increased harvest
pressure; however, the ability to detect the impact of zone/split
configurations was poor because of unreliable response variables, the
lack of statistical tests to differentiate between real and perceived
changes, and the absence of adequate experimental controls.
Consequently, we established guidelines to provide a framework for
controlling the proliferation of changes in zone/split options. The
guidelines identified a limited number of zone/split configurations
that could be used for duck hunting and restricted the frequency of
changes in these configurations to 5-year intervals.
In 1996, we revised the guidelines to provide States greater
flexibility in using their zone/split arrangements. In 2005, in further
response to recommendations from the Flyway Councils, we considered
changes to the zone/split guidelines. After our review, however, we
concluded that the current guidelines continue to achieve their
intended objectives while allowing States sufficient flexibility to
address differences in physiography, climate, and other factors and
that the guidelines need not be changed. We further stated that the
guidelines would be used for all future open seasons (70 FR 55667).
Open seasons for changes occurred in 1991, 1996, 2001, and 2006.
The next open season for changes to zone/split configurations will be
in 2011, for the 2011-15 period. We are providing the guidelines here
in order to allow sufficient time for States to solicit public input
regarding their selections of zone/split configurations in 2011. The
guidelines are as follows:
Guidelines for Duck Zones and Split Seasons
The following zone/split-season guidelines apply only for the
regular duck season:
a. A zone is a geographic area or portion of a State, with a
contiguous boundary, for which independent dates may be selected for
the regular duck season.
b. Consideration of changes for management-unit boundaries is not
subject to the guidelines and provisions governing the use of zones and
split seasons for ducks.
c. Only minor (less than a county in size) boundary changes will be
allowed for any grandfathered arrangement, and changes are limited to
the open season.
d. Once a zone/split option is selected during an open season, it
must remain in place for the following 5 years.
Any State may continue the configuration used in the previous 5-
year period. If changes are made, the zone/split-season configuration
must conform to one of the following options:
1. Three zones with no splits,
2. Split seasons (no more than 3 segments) with no zones, or
3. Two zones with the option for 2-way (2-segment) split seasons in
one or both zones.
Grandfathered Zone/Split Arrangements
When we first implemented the zone/split guidelines in 1991,
several States had completed experiments with zone/split arrangements
different from Options 1-3 above. We offered those States a one-time
opportunity to continue (``grandfather'') those arrangements, with the
stipulation that only minor changes could be made to zone boundaries;.
If any of those States now wish to change their zone/split arrangement:
1. The new arrangement must conform to one of the 3 options
identified above; and
2. The State cannot go back to the grandfathered arrangement that
it previously had in place.
D. Special Seasons/Species Management
v. Pintails
Since 1997, we have used a prescriptive strategy to determine
pintail regulations. However, as we have continually stated over the
past several years, we remain committed to developing a framework for
pintail harvest management based on a formal,
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derived strategy and clearly articulated management objectives.
Over the past 2 years, scientists from the U.S. Geological Survey
(USGS) and the Service, in consultation with the Flyway Councils, have
collaborated in developing an adaptive, derived framework for pintail
harvest management. This draft framework was offered for Flyway
consideration via presentations made at the AHM Working Group meeting
in November 2007, the Service Regulations Committee (SRC) meeting in
January 2008, and Flyway Technical Committee meetings in March 2008.
The draft framework was revised a number of times in response to
comments by the Flyways.
Last year, we again expressed a desire to re-engage with the
Flyways to address unresolved issues with the goal of implementing a
derived, adaptive strategy for pintail harvest management during the
2010-11 regulatory cycle. In the September 24, 2009, Federal Register
(74 FR 48822), we stated that, for the implementation of the new
derived strategy to be successful, the Service and Flyway Councils must
reach agreement on several key issues. These issues included: (1)
Determination of the harvest management objective, (2) identification
of any constraints that would be included in the strategy (e.g.,
closure constraint), and (3) a decision regarding specific inclusion of
a harvest allocation process. To that end, we made technical
information regarding aspects of the derived strategy available at the
December 2009 AHM Working Group Meeting.
In January 2010, we distributed to the Flyways a report entitled
``Proposal for a Derived and Adaptive Harvest Strategy for Northern
Pintails'' (available at http://www.fws.gov/migratorybirds/
NewsPublicationsReports.html). The report was also presented and
discussed at the February 3, 2010, SRC meeting in Denver. In this
report, we have attempted to reframe the issue in a multiple-objective
decision making context. We hope this will refocus the discussion on
the fundamental objectives of pintail harvest management, allow
acceptance of the inherent tradeoffs, and result in a harvest strategy
that best balances the objectives of the Flyways, the Service, the
States, and the public. We hope that the Flyways will discuss this
proposal at upcoming 2010 Winter meetings and provide specific feedback
on the draft process.
If there is reasonable agreement between what the individual
Flyways propose and the combined results from all four Flyways, the
draft strategy could be reviewed at the June 2010 SRC meeting, and
potentially published in the proposed early season regulations as a
proposal for use during this regulatory cycle. Alternately, if this
schedule is too compressed for adequate consultation, or if
disagreements arise that require a longer period of discussion,
implementation could wait until the 2011-12 hunting season.
14. Woodcock
In 2008, we completed a review of available woodcock population
databases to assess their utility for developing a woodcock harvest
strategy. Concurrently, we requested that the Atlantic, Mississippi,
and Central Flyway Councils appoint members to a working group to
cooperate with us on developing a woodcock harvest strategy. In
February 2010, the working group completed a draft interim harvest
strategy for consideration by the Flyway Councils at their March
meetings.
The working group's draft interim harvest strategy provides a
transparent framework for making regulatory decisions for woodcock
season length and bag limit while we work to improve monitoring and
assessment protocols for this species. While the strategy's objective
is to set woodcock harvest at a level commensurate with population,
data limitations preclude accurately assessing harvest potential at
this time. Thus, the strategy's thresholds for regulations changes are
based on the premise that further population declines would result in
decreased harvest, while population increases would allow for
additional harvest. Specifics of the draft interim harvest strategy can
be found at http://www.fws.gov/migratorybirds/
NewsPublicationsReports.html.
The working group recommended that the interim harvest strategy be
implemented for the 2011-12 hunting season and be in effect for 5 years
(2011-15). They further recommended that the Service and Flyway
Councils evaluate the strategy after 5 years and continue to assess the
feasibility of developing a derived harvest strategy. Following review
and comment by the Flyway Councils, we will announce our intentions
whether to propose the strategy following the June 23-24, 2010, SRC
meeting.
16. Mourning Doves
In 2006 (see July 28, 2006, Federal Register, 71 FR 43008), we
approved guidelines for the use of zone/split seasons for doves with
implementation beginning in the 2007-08 season. While the initial
period was for 4 years (2007-10), we further stated that beginning in
2011, zoning would conform to a 5-year period.
The next open season for changes to dove zone/split configurations
will be in 2011, for the 2011-15 period. We are providing the
guidelines here in order to allow sufficient time for States to solicit
public input regarding their selections of zone/split configurations in
2011. The guidelines are as follows:
Guidelines for Dove Zones and Split Seasons in the Eastern and Central
Mourning Dove Management Units
1. A zone is a geographic area or portion of a State, with a
contiguous boundary, for which independent seasons may be selected for
dove hunting.
2. States may select a zone/split option during an open season. The
option must remain in place for the following 5 years except that
States may make a one-time change and revert to their previous zone/
split configuration in any year of the 5-year period. Formal approval
will not be required, but States must notify the Service before making
the change.
3. Zoning periods for dove hunting will conform to those years used
for ducks, e.g., 2006-10.
4. The zone/split configuration consists of two zones with the
option for 3-way (3-segment) split seasons in one or both zones. As a
grandfathered arrangement, Texas will have three zones with the option
for 2-way (2-segment) split seasons in one, two, or all three zones.
5. States that do not wish to zone for dove hunting may split their
seasons into no more than 3 segments.
For the 2011-15 period, any State may continue the configuration
used in 2007-10. If changes are made, the zone/split-season
configuration must conform to one of the options listed above.
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