[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]



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.


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.

    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.

    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-
     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 
    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.


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 
    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 

[[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 
    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 

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: 

Requests for Tribal Proposals


    Beginning with the 1985-86 hunting season, we have employed 
guidelines described in the June 4, 1985, Federal Register (50 FR 
23467) to establish special migratory game bird hunting regulations on 
Federal Indian reservations (including off-reservation trust lands) and 
ceded lands. We developed these guidelines in response to Tribal 
requests for our recognition of their reserved hunting rights, and for 
some Tribes, recognition of their authority to regulate hunting by both 
Tribal and nontribal members throughout their reservations. The 
guidelines include possibilities for:
    (1) On-reservation hunting by both Tribal and nontribal members, 
with hunting by nontribal members on some reservations to take place 
within Federal frameworks, but on dates different from those selected 
by the surrounding State(s);
    (2) On-reservation hunting by Tribal members only, outside of usual 
Federal frameworks for season dates, 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 
    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 

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. 

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.


    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-

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 

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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 
    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 

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[FR Doc. 2021-18742 Filed 8-30-21; 8:45 am]