[Federal Register Volume 86, Number 166 (Tuesday, August 31, 2021)]
[Proposed Rules]
[Pages 48649-48658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18742]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[Docket No. FWS-HQ-MB-2021-0057; FF09M22000-212-FXMB1231099BPP0]
RIN 1018-BF07
Migratory Bird Hunting; Proposed 2022-23 Migratory Game Bird
Hunting Regulations (Preliminary) With Requests for Indian Tribal
Proposals; Notification of Meetings
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 (Service or we) proposes to
establish annual hunting regulations for certain migratory game birds
for the 2022-23 hunting season. We annually prescribe outside limits
(frameworks) within which States may select hunting seasons. This
proposed rule provides the regulatory schedule, announces the Service
Migratory Bird Regulations Committee (SRC) and Flyway Council meetings,
describes the proposed regulatory alternatives for the 2022-23 general
duck seasons and preliminary proposals that vary from the 2021-22
hunting season regulations, and requests proposals from Indian Tribes
that wish to establish special migratory game bird hunting regulations
on Federal Indian reservations and ceded lands. Migratory 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:
Comments: You may comment on the general duck season regulatory
alternatives and other preliminary proposals for the 2022-23 season
until September 30, 2021. In subsequent Federal Register documents, you
will be given an opportunity to submit comments on the proposed
frameworks (see Schedule of Biological Information Availability,
Regulations Meetings and Federal Register Publications for the
[[Page 48650]]
2022-23 Hunting Season at the end of this proposed rule for further
information). Tribes must submit proposals and related comments on or
before December 1, 2021.
Meetings: The SRC will meet on September 28-29, 2021, to consider
and develop proposed regulations for the 2022-23 migratory game bird
hunting seasons. Meetings on both days will commence at approximately
11 a.m. (Eastern) and are open to the public.
ADDRESSES:
Comments: 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. FWS-HQ-
MB-2021-0057.
U.S. mail: Public Comments Processing, Attn: FWS-HQ-MB-
2021-0057; U.S. Fish and Wildlife Service; MS: PRB/3W; 5275 Leesburg
Pike; Falls Church, VA 22041-3803.
We will not accept emailed or faxed comments. We will post all
comments on http://www.regulations.gov. This generally means that your
entire submission--including any personal identifying information--will
be posted on the website. See Public Comments, below, for more
information.
Meetings: The September 28-29, 2021, SRC meeting will be conducted
in person and or by video-teleconference. The meeting is open to the
public. Meeting details and opportunities for the public to listen to
and observe the meeting will be posted at https://www.fws.gov/birds
when they become available.
Accommodation requests: The Service is committed to providing
access to the SRC meeting for all participants and observers. Please
direct all requests for sign language interpreting services, closed
captioning, or other accommodation needs to the person listed under FOR
FURTHER INFORMATION CONTACT by close of business on September 1, 2021.
If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service at 800-877-8339.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, U.S. Fish and Wildlife
Service, Department of the Interior, (202) 208-1050.
SUPPLEMENTARY INFORMATION:
Process for Establishing Annual Migratory Game Bird Hunting Regulations
As part of the Department of the Interior's 2015 retrospective
regulatory review, we changed our process for developing migratory game
bird hunting regulations with the goal of enabling the State agencies
to select and publish their season dates earlier than was allowed under
the prior process. We provided a detailed overview of this process in
the August 6, 2015, Federal Register (80 FR 47388). This proposed rule
is the first in a series of proposed and final rules that establish
regulations for the 2022-23 migratory bird hunting season.
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 such bird, or any part, nest, or egg'' of migratory game
birds can take place, and to adopt regulations for this purpose (16
U.S.C. 704(a)). 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'' (16 U.S.C. 704(a)), and are updated annually.
This responsibility has been delegated to the Service as the lead
Federal agency for managing and conserving migratory birds in the
United States. However, migratory bird management is a cooperative
effort of Federal, State, and Tribal governments.
The Service annually develops migratory game bird hunting
regulations by establishing the frameworks, or outside limits, for
season dates, season lengths, shooting hours, bag and possession
limits, and areas where migratory game bird hunting may occur. These
frameworks are necessary to allow harvest at levels compatible with
migratory game bird population status and habitat conditions.
Acknowledging regional differences in hunting conditions, the
Service has administratively divided the United States 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 within the Flyway, as well as Provinces in Canada that share
migratory bird populations with the Flyway. The Flyway Councils,
established through the Association of Fish and Wildlife Agencies, also
assist in researching and providing migratory game bird management
information for Federal, State, and Provincial governments, as well as
private conservation entities and the general public.
The process for adopting migratory game bird hunting regulations
(50 CFR part 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.
For the regulatory 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,
condition of breeding and wintering habitat, number of hunters, and
anticipated harvest. After frameworks are established, States may
select migratory game bird hunting seasons within these frameworks.
States may always be more conservative in their selections than the
Federal frameworks, but never more liberal.
Service Migratory Bird Regulations Committee Meetings
The SRC conducted an open meeting on April 6, 2021, to discuss
preliminary issues for the 2022-23 regulations, and will conduct
another meeting on September 28-29, 2021, to review information on the
current status of migratory game birds and develop 2022-23 migratory
game bird regulations recommendations for these species. In accordance
with Departmental policy, these meetings are open to public
observation. You may submit written comments to the Service on the
matters discussed. See DATES and ADDRESSES for information about these
meetings.
[[Page 48651]]
Notice of Intent To Establish Open Seasons
This document announces our intent to establish open hunting
seasons for certain designated groups or species of migratory game
birds for 2022-23 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
2022-23 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, and gallinules); and Scolopacidae (woodcock and
snipe). We describe these proposals under Proposed 2022-23 Migratory
Game Bird Hunting Regulations (Preliminary) in this document. We
annually publish definitions of flyways and management units, and a
description of the data used in and the factors affecting the
regulatory process in proposed and final rules later in the regulations
development process (see February 22, 2021, Federal Register, 86 FR
10622, for the latest definitions and descriptions).
Regulatory Schedule for 2022-23
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. Major steps in the 2022-23
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. Early Teal Seasons
ii. Early Teal/Wood Duck Seasons
iii. Black Ducks
iv. Canvasbacks
v. Pintails
vi. Scaup
vii. Mottled Ducks
viii. Wood Ducks
ix. Youth and Veterans-Active Military Personnel Hunting Days
x. Mallard Management Units
xi. Other
2. Sea Ducks
3. Mergansers
4. Canada Geese
A. Special Early 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. Gallinules
12. Rails
13. Snipe
14. Woodcock
15. Band-Tailed Pigeons
16. Doves
17. Alaska
18. Hawaii
19. Puerto Rico
20. Virgin Islands
21. Falconry
22. Other
This and subsequent documents will refer only to numbered items
requiring attention. We will omit those items not requiring attention,
and remaining numbered items may be discontinuous and appear
incomplete.
The proposed regulatory alternatives for the 2022-23 duck hunting
seasons are contained at the end of this document. We plan to publish
final regulatory alternatives for duck seasons about fall 2021,
proposed season frameworks about winter 2021, and final season
frameworks near the end of February 2022.
Review of Public Comments
This proposed rulemaking contains the proposed regulatory
alternatives for the 2022-23 general duck hunting seasons. This
proposed rulemaking also describes other recommended changes or
specific preliminary proposals that vary from the 2021-22 regulations
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 2022-23
season. We seek additional information and comments on this proposed
rule.
Consolidation of Rulemaking Documents
For administrative purposes, this document consolidates the notice
of our intent to establish open migratory game bird hunting seasons and
the request for Tribal proposals 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:
Gregory Fleming, U.S. Fish and Wildlife Service Headquarters,
Division of Migratory Bird Management, 5275 Leesburg Pike, Falls
Church, VA 22041; telephone: 703-358-2391; email:
gregory_fleming@fws.gov.
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, season length, and 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 11 to August 31 closed season
mandated by the 1916 Convention Between the United States and Great
Britain (for Canada) for the Protection of Migratory Birds, as amended
by the Protocol Between the Government of the United States of America
and the Government of Canada Amending the 1916 Convention Between the
United Kingdom and the United States of America for the Protection of
Migratory Birds in Canada and the United States. 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
[[Page 48652]]
such hunting, or where the Tribes and affected 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 are supportive of 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. These guidelines 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 2022-23 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;
and (3) Tribal capabilities to enforce migratory game bird hunting
regulations. For those situations where limited capabilities to enforce
regulations could result in harvest levels that significantly impact
the migratory game bird resource, we also request information on the
methods employed to monitor harvest and any potential measures to limit
harvest levels.
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
limit, possession limit, and season length for migratory game birds
that Federal regulations are likely to permit for 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, Tribes that desire special migratory game
bird hunting regulations for the 2022-23 hunting season should submit
their proposals no later than December 1, 2021. Tribes should direct
inquiries regarding the guidelines and proposals to the person listed
above under the caption Consolidation of Rulemaking Documents. 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 proposed rules.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We will not accept
comments sent by email or fax or to an address not listed in ADDRESSES.
Finally, we will not consider mailed comments that are not postmarked
by the date specified in DATES. We will post all comments in their
entirety--including your personal identifying information--on http://www.regulations.gov. Before including your address, phone number, email
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.
For each series of proposed rulemakings, we will establish specific
comment periods. We will consider, but 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.
National Environmental Policy Act (NEPA) Consideration
The programmatic document, ``Second Final Supplemental
Environmental Impact Statement: Issuance of Annual Regulations
Permitting the Sport Hunting of Migratory Birds (EIS 20130139),'' filed
with the Environmental Protection Agency (EPA) on May 24, 2013,
addresses NEPA compliance by the Service for issuance of the annual
framework regulations for hunting of migratory game bird species. We
published a notice of availability in the Federal Register on May 31,
2013 (78 FR 32686), and our Record of Decision on July 26, 2013 (78 FR
45376). We also address NEPA compliance for waterfowl hunting
frameworks through the annual preparation of separate environmental
assessments, the most recent being ``Duck Hunting Regulations for 2021-
22,'' with its corresponding March 2021
[[Page 48653]]
finding of no significant impact. 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 person listed above under the caption Consolidation
of Rulemaking Documents.
Endangered Species Act Consideration
Before issuance of the 2022-23 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
adversely 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 future supplemental
proposed rulemaking documents.
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) will review all significant
rules. OIRA has reviewed this rule and has determined that this rule is
significant because it would have an annual effect of $100 million or
more on the economy.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
E.O. 13563 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
An economic analysis was prepared for the 2022-23 migratory bird
hunting season. This analysis was based on data from the 2016 National
Survey of Fishing, Hunting, and Wildlife-Associated Recreation
(National Survey), the most recent year for which data are available
(see discussion under Regulatory Flexibility Act, below). This analysis
estimated consumer surplus for three alternatives for duck hunting
regulations. As defined by the U.S. Office of Management and Budget in
Circular A-4, consumers' surplus is the difference between what a
consumer pays for a unit of a good or service and the maximum amount
the consumer would be willing to pay for that unit. The duck hunting
regulatory alternatives are (1) issue restrictive regulations allowing
fewer days than those issued during the 2021-22 season, (2) issue
moderate regulations allowing more days than those in Alternative 1,
and (3) issue liberal regulations similar to the regulations in the
2021-22 season. For the 2021-22 season, we chose Alternative 3, with an
estimated consumer surplus across all flyways of $270-$358 million with
a mid-point estimate of $314 million. We also chose Alternative 3 for
the 2009-10 through 2020-21 seasons. The 2022-23 analysis is part of
the record for this rule and is available at http://www.regulations.gov
at Docket No. FWS-HQ-MB-2021-0057.
Regulatory Flexibility Act
The annual migratory bird hunting regulations have a significant
economic impact on substantial numbers of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An Initial
Regulatory Flexibility Analysis was prepared to analyze the economic
impacts of the annual hunting regulations on small business entities.
This analysis is updated annually. The primary source of information
about hunter expenditures for migratory game bird hunting is the
National Survey, which is generally conducted at 5-year intervals. The
2021 analysis is based on the 2016 National Survey and the U.S.
Department of Commerce's County Business Patterns, from which it is
estimated that migratory bird hunters would spend approximately $2.2
billion at small businesses in 2022. Copies of the analysis are
available upon request from the person listed above under the caption
Consolidation of Rulemaking Documents or from http://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.
Clarity of the Rule
We are required by E.O. 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 ADDRESSES. 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 proposed 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 would have an annual effect on the economy of $100
million or more. However, because this rule would establish hunting
seasons, which are time sensitive, we do not plan to defer the
effective date under the exemption contained in 5 U.S.C. 808(1).
Paperwork Reduction Act
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
previously approved the information collection requirements associated
with migratory bird surveys and the procedures for establishing annual
migratory bird hunting seasons under the following OMB control numbers:
1018-0019, ``North American Woodcock Singing Ground
Survey'' (expires 02/29/2024).
1018-0023, ``Migratory Bird Surveys, 50 CFR 20.20''
(expires 04/30/2023). Includes Migratory Bird Harvest Information
Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and
Parts Collection Survey.
1018-0171, ``Establishment of Annual Migratory Bird
Hunting Seasons, 50 CFR part 20'' (expires 02/29/2024).
You may view the information collection request(s) at http://www.reginfo.gov/public/do/PRAMain. An 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
[[Page 48654]]
U.S.C. 1502 et seq., that this proposed rulemaking would 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 E.O.
12988.
Takings Implication Assessment
In accordance with E.O. 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 would not result in the physical occupancy
of property, the physical invasion of property, or the regulatory
taking of any property. In fact, this rule would allow hunters to
exercise otherwise unavailable privileges and, therefore, would reduce
restrictions on the use of private and public property.
Energy Effects--Executive Order 13211
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. While this proposed rule is a
significant regulatory action under E.O. 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), E.O. 13175, and 512 DM 2, we have
evaluated possible effects on Federally recognized Indian Tribes and
have determined that there are de minimis 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 2022-23 migratory bird hunting season. The resulting
proposals are contained in a separate proposed rule published in spring
and final rule published in summer 2022. Through this process to
establish annual hunting regulations, we regularly coordinate with
Tribes that are 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 Tribe may be more restrictive in its
regulations 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 E.O. 13132,
these regulations do not have significant federalism effects and do not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
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 2022-23
hunting season are authorized under 16 U.S.C. 703-711, 712, and 742 a-
j.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
Proposed 2022-23 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. Due to the
coronavirus pandemic, several annual monitoring activities that provide
information used in developing regulatory recommendations have been
temporarily cancelled or otherwise impacted. We intend to follow
existing harvest management strategies to the extent possible, although
some modifications will be necessary due to the absence of status
information for 2021 for many species and populations of game birds.
Service staff are in the process of developing adjustments to the
strategies to accommodate this issue. Given the recent cancellations,
we cannot provide specific changes at this time, but will detail the
changes in subsequent rulemaking and notices published in the Federal
Register. Issues requiring early discussion, action, or the attention
of the States or Tribes are described 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 categories containing substantial
recommendations are discussed below.
A. General Harvest Strategy
We will continue to use adaptive harvest management (AHM) to help
determine appropriate duck-hunting regulations for the 2022-23 season.
AHM is a tool that permits sound resource decisions in the face of
uncertain regulatory impacts and provides a mechanism for reducing that
uncertainty over time. We use an AHM protocol (decision framework) to
evaluate four regulatory alternatives, each with a different expected
harvest level, and choose the optimal regulation for duck hunting based
on the status and demographics of mallards for the Mississippi,
Central, and Pacific Flyways, and based on the status and demographics
of a suite of four species (eastern waterfowl) in the Atlantic Flyway.
We have specific AHM protocols that guide appropriate bag limits and
season lengths for species of special concern, including black ducks,
scaup, and pintails, within the general duck season. These protocols
use the same outside season dates and lengths as those regulatory
alternatives for the 2022-23 general duck seasons.
For the 2022-23 hunting season, we will continue to use independent
optimizations to determine the appropriate regulatory alternative for
mallard stocks in the Mississippi, Central, and Pacific Flyways and for
eastern waterfowl in the Atlantic Flyway. This means that we will
develop regulations for mid-continent mallards, western mallards, and
eastern waterfowl independently based on the breeding stock that
contributes primarily to each Flyway. We detailed
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implementation of AHM protocols for mid-continent and western mallards
in the July 24, 2008, Federal Register (73 FR 43290), and for eastern
waterfowl in the September 21, 2018, Federal Register (83 FR 47868).
Due to the coronavirus pandemic and associated travel restrictions
and human health concerns in the United States and Canada, certain
migratory bird monitoring surveys have been cancelled in 2021. This
includes the Waterfowl Breeding Population and Habitat Survey, which
provides status information for many species of waterfowl, including
those used in our AHM protocols. Consequently, in some cases, we will
need to deviate from our AHM protocols and other decision processes to
address missing data from 2021. We will adjust our AHM protocols and
decision tools for general duck seasons and species of concern,
including pintails, scaup, black ducks, canvasbacks, and wood ducks
only to the extent necessary to inform the regulatory decisions for the
2022-23 season. For existing AHM protocols, we propose to use the
strategy for each flyway, but use the long-term data and models to
predict 2021 spring abundances of ducks and habitat conditions in place
of the spring 2021 data, which will not be available. The predicted
2021 breeding populations would be used in combination with the most
current policy matrix (e.g., breeding population and pond counts) to
develop recommendations for the 2022-23 hunting season. For other
decision support tools such as those used for canvasback and blue-
winged teal, similar to AHM protocols, we will develop statistical
predictions of the 2021 spring abundance of these species to inform
harvest regulation decisions for the 2022-23 hunting season. We will
work cooperatively with the Flyway Councils as we develop a plan for
addressing missing data in regulatory decision-making for the 2022-23
hunting season, and will post specific details about deviations from
our AHM protocols and decision support tools on our website at https://www.fws.gov/birds when they become available.
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 changing the opening date from
the Saturday nearest October 1 to the Saturday nearest September 24,
and by 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. In 2018, we
adopted a closing duck framework date of January 31 for the
``moderate'' and ``liberal'' alternatives in the Atlantic Flyway as
part of the Atlantic Flyway's eastern waterfowl AHM protocol (83 FR
47868; September 21, 2018). We subsequently extended the framework
closing date to January 31 across all four Flyways for the 2019-20
hunting season (84 FR 16152; April 17, 2019).
More recently, the John D. Dingell, Jr. Conservation, Management,
and Recreation Act of 2019 (Pub. L. 116-9, Dingell Act) amended the
Migratory Bird Treaty Act to establish that the closing framework date
for duck seasons will be January 31, unless a flyway chooses an earlier
closing date. Thus, in 2019, as directed by the Dingell Act, we
adjusted the framework closing date under each regulatory alternative
for all four Flyways to January 31 (84 FR 42996; August 19, 2019). In
2020, we agreed to move the opening framework date to one week earlier
in the restrictive regulatory alternative for the Mississippi and
Central Flyways beginning with the 2021-22 season based on their
recommendations (85 FR 15870; March 19, 2020).
For the 2022-23 general duck season, we propose to utilize the same
regulatory alternatives that are in effect for the 2021-22 season (see
table at the end of this proposed rule for specifics of the 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 plan to finalize AHM
regulatory alternatives for the 2022-23 season in the supplemental
proposed rule, which we plan to publish by fall of 2021 (see Schedule
of Biological Information Availability, Regulations Meetings and
Federal Register Publications for the 2022-23 Hunting Season at the end
of this proposed rule for further information). We will propose a
specific regulatory alternative in or around December 2021 for each of
the Flyways to use for their 2022-23 seasons after status information
and results from analytical adjustments to strategies become available
in about late August 2021.
D. Special Seasons/Species Management
xi. Other
For the Atlantic Flyway, under the eastern waterfowl AHM protocol
for the Atlantic Flyway, the mallard bag limit is not prescribed by the
regulatory alternative but is instead based on a separate assessment of
the harvest potential of eastern mallards. We will propose a specific
mallard bag limit for the Atlantic Flyway in or around December 2021.
Also, although not part of any current harvest management strategy,
we propose to allow South Dakota and Nebraska to continue to conduct a
pilot study during the 2022-23 duck season of a two-tier regulation
system as described in the March 19, 2020, proposed rule (85 FR 15870).
This would be the second year of a planned 4-year pilot study. The
intent of the two-tier license study is to evaluate whether regulations
that relax hunters' requirement to identify duck species can improve
waterfowl hunter recruitment and retention. Declines in waterfowl
hunter numbers have been of concern to the Service and the Flyway
Councils, prompting the development of recruitment, retention, and
reactivation (R3) efforts in the conservation community. The study
would allow each person to obtain one of two license types during the
duck season. The first license type would allow a daily bag limit as
specified in the current duck regulations (six ducks), along with
attendant species and sex restrictions. The second license type would
allow a daily bag limit of only three ducks, but they could be of any
species or sex. Additional years of study would be contingent on
whether results from the first duck season (2021-22) warrant additional
investigation. Memoranda of agreements between the Service and the two
States specify the purpose of the study and the roles and
responsibilities of each party while conducting the pilot study.
2. Sea Ducks
During the April 6, 2021, SRC meeting, the Atlantic Flyway Council
recommended three changes to the special sea duck season in the
Atlantic Flyway: (1) Elimination of the special sea duck season; (2)
reduction of the sea duck daily bag limit within the regular duck
season to 4 ducks in the aggregate of which no more than 3 may be
scoters, long-tailed ducks, or eiders, and no more than 1 may be a hen
eider; and (3) retention of the exception that allows shooting of
crippled waterfowl from a boat under power in the currently defined
special sea duck areas in the Atlantic Flyway. The Atlantic Flyway
Council and SRC will again discuss and consider proposing sea duck
harvest regulations during the September 28-29, 2021, SRC meeting. Any
resultant
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recommended regulations will be included in the proposed season
frameworks published in or around December 2021 (see Schedule of
Biological Information Availability, Regulations Meetings and Federal
Register Publications for the 2022-23 Hunting Season at the end of this
proposed rule). We are announcing these possible changes to sea duck
hunting regulations in the Atlantic Flyway starting with the 2022-23
season now to allow the greatest opportunity for public review and
comment.
Special season regulations are used to provide additional hunting
opportunity for species considered to be under-utilized or to address
nuisance problems with overabundant species. We have authorized a
special sea duck season (including eiders, long-tailed duck, and
scoters) in the Atlantic Flyway since 1938. By 1973, 13 of the 17
Atlantic Flyway States allowed special seasons consisting of 107 days
with a daily bag limit of 7 sea ducks. We reduced the scoter daily bag
limit to 4 ducks in 1993. In 2016, we reduced the season length from
107 to 60 days and the daily bag limit from 6 to 5 sea ducks of which
no more than 4 may be eiders, long-tailed ducks, or scoters. The 2016
restrictions were anticipated to reduce average annual sea duck harvest
by approximately 25 percent compared to average annual harvest during
the period 2011-2015. See the March 28, 2016, Federal Register (81 FR
17305) for a discussion of the Sea Duck Harvest Potential Assessment
completed at that time.
The changes to the Atlantic Flyway sea duck regulations did not
achieve the target reduction in total sea duck harvest. Therefore, we
are considering the changes recommended by the Atlantic Flyway Council
due to the continued concern regarding the status and trends of sea
duck populations in the Atlantic Flyway, and our desire to reduce sea
duck harvest in the Atlantic Flyway below the average annual harvest
observed during 2011-2015. Regarding the Council's recommendation to
retain the regulation exception that allows shooting of crippled
waterfowl from a boat under power in the currently defined special sea
duck area, we provide that the purpose of this regulation is to protect
human safety and minimize duck crippling loss associated with hunting
ducks at sea in the Atlantic Flyway regardless of the special sea duck
season.
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[FR Doc. 2021-18742 Filed 8-30-21; 8:45 am]
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