[Federal Register Volume 67, Number 53 (Tuesday, March 19, 2002)]
[Proposed Rules]
[Pages 12501-12510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6527]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AI30


Migratory Bird Hunting; Proposed 2002-03 Migratory Game Bird 
Hunting Regulations (Preliminary) With Requests for Indian Tribal 
Proposals

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (hereinafter Service or we) 
proposes to establish annual hunting regulations for certain migratory 
game birds for the 2002-03 hunting season. We annually prescribe 
outside limits (frameworks) within which States may select hunting 
seasons. This proposed rule provides the regulatory schedule, announces 
the Flyway Council meetings, and describes proposed changes to the 
regulatory alternatives for the 2002-03 duck hunting seasons. We also 
request proposals from Indian tribes that wish to establish special 
migratory bird hunting regulations on Federal Indian reservations and 
ceded

[[Page 12502]]

lands. Migratory game bird hunting seasons provide hunting 
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 bird population 
status and habitat conditions.

DATES: You must submit comments on the proposed regulatory alternatives 
for the 2002-03 duck hunting seasons by May 1, 2002. You must submit 
comments for proposed early-season frameworks by July 30, 2002, and for 
proposed late-season frameworks by August 30, 2002. Tribes should 
submit proposals and related comments by June 1, 2002.

ADDRESSES: Send your comments on the proposals to the Chief, Division 
of Migratory Bird Management, U.S. Fish and Wildlife Service, 
Department of the Interior, ms 634-ARLSQ, 1849 C Street, NW, 
Washington, DC 20240. All comments received, including names and 
addresses, will become part of the public record. You may inspect 
comments during normal business hours in room 634, Arlington Square 
Building, 4401 North Fairfax Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Ron W. Kokel at: Division of Migratory 
Bird Management, U.S. Fish and Wildlife Service, Department of the 
Interior, ms 634-ARLSQ, 1849 C Street, NW, Washington, DC 20240, (703) 
358-1714.

SUPPLEMENTARY INFORMATION:   

Background and Overview

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

Notice of Intent To Establish Open Seasons

    This notice announces our intent to establish open hunting seasons 
and daily bag and possession limits for certain designated groups or 
species of migratory game birds for 2002-03 in the contiguous United 
States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands, under 
Secs. 20.101 through 20.107, 20.109, and 20.110 of subpart K of 50 CFR 
part 20.
    For the 2002-03 migratory game bird hunting season, we will propose 
regulations for certain designated members of the avian families 
Anatidae (ducks, geese, and swans); Columbidae (doves and pigeons); 
Gruidae (cranes); Rallidae (rails, coots, moorhens, and gallinules); 
and Scolopacidae (woodcock and snipe). We describe these proposals 
under Proposed 2002-03 Migratory Game Bird Hunting Regulations 
(Preliminary) in this document. We published definitions of waterfowl 
flyways and mourning dove management units, as well as a description of 
the data used in and the factors affecting the regulatory process, in 
the March 14, 1990, Federal Register (55 FR 9618).

Regulatory Schedule for 2002-03

    This document is the first in a series of proposed, supplemental, 
and final rulemaking documents for migratory game bird hunting 
regulations. We will publish additional supplemental proposals for 
public comment in the Federal Register as population, habitat, harvest, 
and other information become available.
    Because of the late dates when certain portions of these data 
become available, we anticipate abbreviated comment periods on some 
proposals. Special circumstances limit the amount of time we can allow 
for public comment on these regulations. Specifically, two 
considerations compress the time for the

[[Page 12503]]

rulemaking process: the need, on one hand, to establish final rules 
early enough in the summer to allow resource agencies to select and 
publish season dates and bag limits prior to the beginning of hunting 
seasons and, on the other hand, the lack of current status data on most 
migratory game birds until later in the summer. Because the regulatory 
process is strongly influenced by the times when information is 
available for consideration, we divide the regulatory process into two 
segments: early seasons and late seasons.
    Major steps in the 2002-03 regulatory cycle relating to open public 
meetings and Federal Register notifications are illustrated in the 
diagram at the end of this proposed rule. All publication dates of 
Federal Register documents are target dates.
    All sections of this and subsequent documents outlining hunting 
frameworks and guidelines are organized under numbered headings. These 
headings are:

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

    Later sections of this and subsequent documents will refer only to 
numbered items requiring your attention. Therefore, it is important to 
note that we will omit those items requiring no attention and remaining 
numbered items will be discontinuous and appear incomplete.
    We will publish final regulatory alternatives for the 2002-03 duck 
hunting seasons in early June. We will publish proposed early-season 
frameworks in mid-July and late-season frameworks in mid-August. We 
will publish final regulatory frameworks for early seasons on or about 
August 20, 2002, and those for late seasons on or about September 15, 
2002.

Announcement of Flyway Council Meetings

    Service representatives will be present at the individual meetings 
of the four Flyway Councils this April. Although agendas are not yet 
available, these meetings usually commence at 8:00 a.m. on the days 
indicated. All meetings will be held April 2, 2002, at the Hyatt 
Regency at Reunion Center, 300 Reunion Boulevard, Dallas, Texas.

Review of Public Comments

    This proposed rulemaking contains the proposed regulatory 
alternatives for the 2002-03 duck hunting seasons. This proposed 
rulemaking also describes other recommended changes or specific 
preliminary proposals that vary from the 2001-02 frameworks 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. We seek additional information and 
comments on the recommendations in this proposed rule.

Consolidation of Notices

    For administrative purposes, this document consolidates the notice 
of intent to establish open migratory 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 the 
following personnel:
    Region 1--Brad Bortner, U.S. Fish and Wildlife Service, 911 N.E. 
11th Avenue, Portland, Oregon 97232-4181; (503) 231-6164.
    Region 2--Jeff Haskins, U.S. Fish and Wildlife Service, P.O. Box 
1306, Albuquerque, New Mexico 87103; (505) 248-7885.
    Region 3--Steve Wilds, U.S. Fish and Wildlife Service, Federal 
Building, One Federal Drive, Fort Snelling, Minnesota 55111-4056; (612) 
713-5432.
    Region 4--Frank Bowers, U.S. Fish and Wildlife Service, 1875 
Century Boulevard, Room 324, Atlanta, Georgia 30345; (404) 679-4000.
    Region 5--George Haas, U.S. Fish and Wildlife Service, 300 Westgate 
Center Drive, Hadley, Massachusetts 01035-9589; (413) 253-8576.
    Region 6--John Cornely, U.S. Fish and Wildlife Service, P.O. Box 
25486, Denver Federal Building, Denver, Colorado 80225; (303) 236-8145.
    Region 7--Robert Leedy, U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, Alaska 99503; (907) 786-3423.

Requests for Tribal Proposals

Background

    Beginning with the 1985-86 hunting season, we have employed 
guidelines described in the June 4, 1985, Federal Register (50 FR 
23467) to establish special migratory bird hunting regulations on 
Federal Indian reservations (including off-reservation trust lands) and 
ceded lands. We developed these guidelines in response to tribal 
requests for our recognition of their reserved hunting rights, and for 
some tribes, recognition of their authority to regulate hunting by both 
tribal and nontribal members throughout their reservations. The 
guidelines include possibilities for:
    (1) On-reservation hunting by both tribal and nontribal members, 
with hunting by nontribal members on some reservations to take place 
within Federal frameworks, but on dates different from those selected 
by the surrounding State(s);
    (2) On-reservation hunting by tribal members only, outside of usual 
Federal frameworks for season dates and length, and for daily bag and 
possession limits; and
    (3) Off-reservation hunting by tribal members on ceded lands, 
outside of usual framework dates and season length, with some added 
flexibility in daily bag and possession limits.
    In all cases, tribal regulations established under the guidelines 
must be consistent with the annual March 10 to September 1 closed 
season mandated by the 1916 Convention Between the United States and 
Great Britain (for Canada) for the Protection of Migratory Birds 
(Convention). The guidelines are applicable to those tribes that have 
reserved hunting rights on Federal Indian reservations (including off-
reservation trust lands) and ceded lands. They also may be applied to 
the establishment of migratory bird hunting regulations for nontribal 
members on all lands within the exterior boundaries of reservations 
where tribes have full wildlife management authority over such hunting, 
or where the tribes and affected States otherwise have reached

[[Page 12504]]

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. As explained in previous rulemaking documents, it is incumbent 
upon the tribe and/or the State to request consultation as a result of 
the proposal being published in the Federal Register. We will not 
presume to make a determination, without being advised by either a 
tribe or a State, that any issue is or is not worthy of formal 
consultation.
    One of the guidelines provides for the continuation of tribal 
members' harvest of migratory game birds on reservations where such 
harvest is a customary practice. We do not oppose this harvest, 
provided it does not take place during the closed season required by 
the Convention, and it is not so large as to adversely affect the 
status of the migratory bird resource. For several years, we have 
reached annual agreement with tribes for migratory bird hunting by 
tribal members on their lands or on lands where they have reserved 
hunting rights. We will continue to consult with tribes that wish to 
reach a mutual agreement on hunting regulations for on-reservation 
hunting by tribal members.
    Tribes should not view the guidelines as inflexible. We believe 
that they provide appropriate opportunity to accommodate the reserved 
hunting rights and management authority of Indian tribes while ensuring 
that the migratory 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 2002-03 hunting season should submit a proposal 
that includes:
    (1) The requested hunting season dates and other details regarding 
the proposed regulations;
    (2) Harvest anticipated under the proposed regulations;
    (3) Methods that will be employed to measure or monitor harvest 
(mail-questionnaire survey, bag checks, etc.);
    (4) Steps that will be taken to limit level of harvest, where it 
could be shown that failure to limit such harvest would seriously 
impact the migratory bird resource; and
    (5) Tribal capabilities to establish and enforce migratory bird 
hunting regulations.
    A tribe that desires the earliest possible opening of the waterfowl 
season should specify this request in their 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, the proposal should request the 
same daily bag and possession limits and season length for ducks and 
geese that Federal regulations are likely to permit the States in the 
Flyway in which the reservation is located.

Tribal Proposal Procedures

    We will publish details of tribal proposals for public review in 
later Federal Register documents. Because of the time required for our 
and public review, Indian tribes that desire special migratory bird 
hunting regulations for the 2002-03 hunting season should submit their 
proposals as soon as possible, but no later than June 1, 2002. Tribes 
should direct inquiries regarding the guidelines and proposals to the 
appropriate Service Regional Office listed above under the caption 
Consolidation of Notices. Tribes that request special migratory game 
bird hunting regulations for tribal members on ceded lands should send 
a courtesy copy of the proposal to officials in the affected State(s).

Public Comments Solicited

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. Accordingly, we invite interested persons to submit written 
comments, suggestions, or recommendations regarding the proposed 
regulations. Before promulgation of final migratory game bird hunting 
regulations, we will take into consideration all comments received. 
Such comments, and any additional information received, may lead to 
final regulations that differ from these proposals. We invite 
interested persons to participate in this rulemaking by submitting 
written comments to the address indicated under the caption ADDRESSES.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There may also be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    You may inspect comments received on the proposed annual 
regulations during normal business hours at the Service's office in 
room 634, 4401 North Fairfax Drive, Arlington, Virginia. For each 
series of proposed rulemakings, we will establish specific comment 
periods. We will consider, but possibly may not respond in detail to, 
each comment. As in the past, we will summarize all comments received 
during the comment period and respond to them after the closing date in 
any final rules.

NEPA Consideration

    NEPA considerations are covered by the programmatic document, 
``Final Supplemental Environmental Impact Statement: Issuance of Annual 
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with the Environmental Protection Agency on June 9, 1988. 
We published Notice of Availability in the Federal Register on June 16, 
1988 (53 FR 22582). We published our Record of Decision on August 18, 
1988 (53 FR 31341). In addition, an August 1985 environmental 
assessment entitled ``Guidelines for Migratory Bird Hunting Regulations 
on Federal Indian Reservations and Ceded Lands'' is available from the 
address indicated under the caption ADDRESSES.
    In a proposed rule published in the April 30, 2001, Federal 
Register (66 FR 21298), we expressed our intent to begin

[[Page 12505]]

the process of developing a new EIS for the migratory bird hunting 
program. This issue is discussed below under ``Proposed 2002-03 
Migratory Game Bird Hunting Regulations.''

Endangered Species Act Consideration

    Prior to issuance of the 2002-03 migratory game bird hunting 
regulations, we will consider provisions of the Endangered Species Act 
of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to 
ensure that hunting is not likely to jeopardize the continued existence 
of any species designated as endangered or threatened or modify or 
destroy its critical habitat and is consistent with conservation 
programs for those species. Consultations under Section 7 of this Act 
may cause us to change proposals in this and future supplemental 
proposed rulemaking documents.

Executive Order (E.O.) 12866

    This rule is economically significant and was reviewed by the 
Office of Management and Budget (OMB) under E.O. 12866. The migratory 
bird hunting regulations are economically significant and are annually 
reviewed by OMB under E.O. 12866. As such, a cost/benefit analysis was 
prepared in 1998 and is further discussed below under the heading 
Regulatory Flexibility Act. Copies of the cost/benefit analysis are 
available upon request from the address indicated under the caption 
ADDRESSES.
    E.O. 12866 requires each agency to write regulations that are easy 
to understand. We invite comments on how to make this rule easier to 
understand, including answers to questions such as the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections?
    (5) Is the description of the rule in the ``Supplementary 
Information'' section of the preamble helpful in understanding the 
rule?
    (6) What else could we do to make the rule easier to understand?

Regulatory Flexibility Act

    These regulations have a significant economic impact on substantial 
numbers of small entities under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). We analyzed the economic impacts of the annual 
hunting regulations on small business entities in detail, and the 
Service issued a Small Entity Flexibility Analysis (Analysis) in 1998. 
The Analysis documented the significant beneficial economic effect on a 
substantial number of small entities. The primary source of information 
about hunter expenditures for migratory game bird hunting is the 
National Hunting and Fishing Survey, which is conducted at 5-year 
intervals. The Analysis utilized the 1996 National Hunting and Fishing 
Survey and the U.S. Department of Commerce's County Business Patterns 
from which it was estimated that migratory bird hunters would spend 
between $429 million and $1.084 billion at small businesses in 1998. 
Copies of the Analysis are available upon request from the Division of 
Migratory Bird Management.

Small Business Regulatory Enforcement Fairness Act

    This rule is a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. For the reasons outlined above, 
this rule has an annual effect on the economy of $100 million or more. 
However, because this rule establishes hunting seasons, we do not plan 
to defer the effective date under the exemption contained in 5 U.S.C. 
808 (1).

Paperwork Reduction Act

    We examined these regulations under the Paperwork Reduction Act of 
1995. The various recordkeeping and reporting requirements imposed 
under regulations established in 50 CFR part 20, Subpart K, are 
utilized in the formulation of migratory game bird hunting regulations. 
Specifically, OMB has approved the information collection requirements 
of the Migratory Bird Harvest Information Program and assigned 
clearance number 1018-0015 (expires 09/30/2004). This information is 
used to provide a sampling frame for voluntary national surveys to 
improve our harvest estimates for all migratory game birds in order to 
better manage these populations. OMB has also approved the information 
collection requirements of the Sandhill Crane Harvest Questionnaire and 
assigned clearance number 1018-0023 (expires 07/30/2003). The 
information from this survey is used to estimate the magnitude and the 
geographical and temporal distribution of the harvest, and the portion 
it constitutes of the total population.
    A Federal agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

Unfunded Mandates Reform Act

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

Civil Justice Reform--Executive Order 12988

    The Department, in promulgating this proposed rule, has determined 
that this rule will not unduly burden the judicial system and 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 will not result in the physical occupancy of 
property, the physical invasion of property, or the regulatory taking 
of any property. In fact, these rules allow hunters to exercise 
otherwise unavailable privileges and, therefore, reduce restrictions on 
the use of private and public property.

Energy Effects--E.O. 13211

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. 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.

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 and 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.

[[Page 12506]]

Any State or tribe may be more restrictive than the Federal frameworks 
at any time. The frameworks are developed in a cooperative process with 
the States and the Flyway Councils. This process allows States to 
participate in the development of frameworks from which they will make 
selections, thereby having an influence on their own regulations. These 
rules do not have a substantial direct effect on fiscal capacity, 
change the roles or responsibilities of Federal or State governments, 
or intrude on State policy or administration. Therefore, in accordance 
with 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 Assessment.

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 2002-03 
hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712, 
and 16 U.S.C. 742 a-j.

    Dated: February 1, 2002.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.

Proposed 2002-03 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. With the 
exception of modifying the framework opening and closing dates within 
the regulatory alternatives, we are proposing no change from the final 
2001-02 frameworks of August 21 and September 27, 2001 (66 FR 44010 and 
49478). Other issues requiring early discussion, action, or the 
attention of the States or tribes are contained below:

1. Ducks

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

A. General Harvest Strategy

    We recommend the continued use of adaptive harvest management (AHM) 
to help determine appropriate duck-hunting regulations for the 2002-03 
season. The current AHM protocol is used to evaluate five alternative 
regulatory levels based on the population status of mallards (special 
hunting restrictions are enacted for species of special concern, such 
as canvasbacks and pintails). The regulatory alternative in the 
Mississippi, Central, and Pacific Flyways is prescribed based on the 
status of mallards and breeding-habitat conditions in central North 
America (Federal survey strata 1-18, 20-50 and 75-77, and State surveys 
in Minnesota, Wisconsin, and Michigan). The recommended regulatory 
alternative for the Atlantic Flyway is based on the population status 
of mallards breeding in eastern North America (Federal survey strata 
51-54 and 56, and State surveys in New England and the mid-Atlantic 
region) and, thus, may differ from that in the remainder of the 
country. A specific regulatory alternative for each of the Flyways 
during the 2002-03 season will be proposed after survey information 
becomes available in late summer.
    Last year, the AHM Working Group (an interagency, technical 
advisory committee) identified a number of concerns with the current 
AHM protocol for mallards. These concerns focused on the models of 
population dynamics used to evaluate various regulatory options, and 
include: (1) Evidence that all models of mallard population dynamics 
may predict biased annual growth rates; (2) indications that the 
current method of comparing predicted and observed population sizes may 
unrealistically inflate the rate at which we can identify the most 
accurate population model; and (3) the need for improved survival and 
reproductive models that more effectively capture the range of possible 
population dynamics and effects of harvest. These concerns have 
important management implications, and we expect to propose remedial 
measures for the 2002-03 hunting season. Our proposals will be based on 
consultations with the AHM Working Group and the Flyway Councils, and 
will be made available for public comment later in the year.
    Finally, we expressed our desire last year to begin the process of 
developing a new Environmental Impact Statement for migratory bird 
hunting (66 FR 21302). We reiterate the need to focus on three key 
themes:
    (1) Goal setting--AHM can produce optimal regulatory decisions in 
the face of uncertainty, if and only if, there is agreement about the 
goals and objectives of harvest management. Clearly, the goals of duck 
harvest management extend well beyond simple measures of hunter success 
and population size, and many of the difficulties in duck harvest 
management today probably relate more to ambiguity in objectives, 
rather than to uncertainty about biological impacts. Disagreement about 
management objectives poses a serious threat to the long-term viability 
of AHM.
    (2) Limits to system control--There are both theoretical and 
practical limits to our ability to predict, control, and measure the 
size of waterfowl populations and harvest and, as a consequence, 
operational constraints on short-term hunting opportunity and on the 
learning needed to increase long-term performance. The waterfowl 
management community needs to better explore, understand, and 
acknowledge these limits, and to develop regulatory alternatives and 
strategies that avoid the most undesirable consequences of those 
limits, while meeting reasonable demands for hunting opportunity.
    (3) Management scale--The history of duck harvest management has 
been characterized by efforts to account for increasingly more spatial, 
temporal, and taxonomic variability in waterfowl demographics in a 
continuing effort to maximize hunting opportunity. We have begun to 
question the wisdom of this approach, given the inevitable tradeoff 
between harvest benefits and the direct and indirect costs of managing 
at progressively finer scales. The level of resolution that ultimately 
will be most appropriate in the AHM process remains to be seen, but we 
are increasingly concerned about what we see as unrealistic 
expectations for accommodating small-scale variation in waterfowl 
population dynamics.
    We look forward to exploring these and other duck-harvest 
management issues with the Flyway Councils, other stakeholders, and the 
general public during the coming year.

B. Regulatory Alternatives

    The Service regulates the earliest and latest dates within which 
States can select duck-hunting seasons. Historically, these dates have 
been approximately October 1 to January 20. The effects of extending 
these dates so that seasons could open earlier and/or later have been 
the subject of extensive debate within the waterfowl management 
community. Biological impacts and impacts on harvest resulting from 
such changes remain uncertain.
    In 1998, Congress specified that the 1998-99 hunting season in 
Alabama, Arkansas, Kentucky, Louisiana, Mississippi, and Tennessee 
could

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extend to January 31, with a 9-day reduction from the 60-day season 
established for other States. The 9-day reduction was intended to 
offset the anticipated increase in harvest that was expected to occur. 
Since 1998, Alabama, Mississippi, and Tennessee chose to use this 
extended closing date (January 31) with the 9-day offset. We have 
continued to monitor duck harvests in these States but do not yet have 
sufficient data to determine definitively whether the magnitude of 
season-length reduction is accomplishing its intended purpose.
    In August 2000, the Flyway Council Consultants to the Service 
Regulations Committee requested that the Service evaluate the projected 
impacts of extending the framework opening date for duck hunting from 
the Saturday nearest October 1 to the Saturday nearest September 24 and 
extending the closing date from the Sunday nearest January 20 to the 
last Sunday in January. The evaluation, completed in January 2001, was 
based on a canvassing of all Flyways to determine which States would 
use the extension. The principal conclusion of this review reaffirmed 
earlier assessments that nationwide use of framework-date extensions 
might significantly reduce the frequency of more liberal duck hunting 
seasons. This is primarily a result of greater uncertainty in our 
ability to predict the impacts of such fundamental changes in the 
regulations.
    In 2001, the National Flyway Council (NFC) submitted a letter 
signed by the Atlantic, Central, and Pacific Flyway Councils, and the 
Lower-Region Regulations Committee of the Mississippi Flyway Council, 
that formally recommended an experimental framework opening date of the 
Saturday nearest September 24 and a framework closing date of the last 
Sunday in January, with no offsets, in the ``moderate'' and ``liberal'' 
regulatory packages, for the 2001-03 duck seasons. The letter further 
recommended that the framework dates be applicable either Statewide or 
in zones and that the Service use an evaluation of the framework date 
extensions for the next 3 years as a basis for establishing future 
framework dates.
    We considered the recommendation, but declined to offer any changes 
to existing framework dates for duck hunting in the 2001-02 hunting 
season (66 FR 38498) due to a number of unresolved issues. Among those 
were: (1) Uncertainty about changes in mallard harvest rates that might 
occur with implementation of framework-date extensions; (2) the need 
for a reliable monitoring program for estimating realized harvest rates 
of mallards, i.e., current estimates of band-reporting rates; (3) the 
potential for adverse biological impacts to species other than 
mallards, such as wood ducks, and especially those below objective 
levels (e.g., pintails, scaup); and (4) certain administrative and 
procedural issues involved in extending framework dates, particularly 
the timing of key meetings, publication of proposed and final rules, 
and the availability of adequate public notice and opportunity for 
comment. Other long-standing concerns were: (1) Changes in distribution 
of the harvest both within and among Flyways; (2) the need to maintain 
stability of regulatory packages; and (3) the potential impact of late-
season extensions on ducks returning to the breeding grounds in the 
spring. We also emphasized that any uncertainty surrounding the impact 
of framework-date extensions on mallard numbers could be addressed most 
effectively using an adaptive management approach. This approach would 
not only help identify the effects of framework-date extensions but 
also ensure that we can account for uncertainty associated with harvest 
and population impacts in each regulatory decision.
    On October 11, 2001, upon reconsideration of the previously 
established ``liberal'' regulatory alternative, we proposed (66 FR 
51919) a framework opening date of September 29 and a closing date of 
January 31, with no reduction (offset) in season length, for the 2001-
02 hunting season in the States of Alabama, Arkansas, Kentucky, 
Louisiana, Mississippi, and Tennessee. This proposal was in contrast to 
framework-date extensions existing since 1998 in Alabama, Mississippi, 
and Tennessee, of a closing date of January 31, accompanied by a 9-day 
reduction in season length.
    The vast majority of comments received during the comment period 
were strongly opposed to this proposal. Consequently, we withdrew the 
proposal on November 23, 2001 (66 FR 58707) and stated that we would 
begin immediately to work with the Flyway Councils to develop a 
resolution to the framework-date issue prior to the 2002-03 duck 
hunting season.
    On December 2, 2001, we met in Wichita, Kansas, with a newly formed 
working group of the International Association of Fish and Wildlife 
Agencies (IAFWA). This group, comprised of State representatives, 
including representatives from each Flyway Council, was formed to 
facilitate early coordination with the Flyway Councils and States. The 
discussion focused on the original 2001 recommendation submitted 
through the NFC and how the current regulations-setting process and 
schedule would need to be changed in order to accommodate changes in 
frameworks dates should such a proposal be adopted through the usual 
regulatory process. This early coordination was considered necessary 
since meetings throughout the process, which are scheduled well in 
advance, might have to be changed. It was concluded that changes to the 
current process could be made to allow for earlier and later season 
extensions as proposed by the Flyway Councils.
    Based on discussions with Flyway Council representatives, and using 
the above recommendation to extend season dates, we propose the 
following: (1) To modify the current set of regulatory alternatives 
changing the framework opening date from the Saturday nearest October 1 
to the Saturday nearest September 24 and change the closing date from 
the Sunday nearest January 20 to the last Sunday in January, with no 
offset in days or bag limits, in the ``moderate'' and ``liberal'' 
regulatory alternatives; (2) to keep these changes to framework dates 
in place for 3 years to allow for a reasonable opportunity to monitor 
the impacts of these extensions on harvest distribution and rates of 
harvest prior to considering any subsequent use; (3) to make any 
changes to frameworks within the context of AHM; and (4) to hold the 
Flyway Technical Committee and Council meetings and the Service 
Regulations Committee meeting for late-season hunting proposals 
approximately 1 week earlier than normally scheduled to accommodate 
administrative and procedural requirements.
    Based on our recent assessment, ``Framework-date Extensions for 
Duck Hunting in the United States: Projected Impacts & Coping With 
Uncertainty (January 2001)'', we expect this proposal to result in some 
redistribution of the harvest, increases in harvest of mallards and 
perhaps other species, and potentially less frequent liberal 
regulations. These impacts were summarized in the June 14, 2001, 
Federal Register (66 FR 32297).
    Regarding administrative and procedural issues, the Service 
underscores the need to proceed carefully with modifications to the 
existing timetable for regulations development. That is, if additional 
changes to the schedule become necessary, beyond those already proposed 
to accommodate early-season framework extensions, significant problems 
could arise. Included in these concerns would be the availability of

[[Page 12508]]

survey information prior to the development of regulatory proposals.
    In light of the uncertainty about the impacts of extended framework 
dates, we support the recommendation of the Flyway Councils that 
changes must be accomplished within the context of AHM. Several years 
ago (April 1999), the AHM Working Group considered an adaptive approach 
to framework-date extensions and developed a set of principles and 
general guidelines, which we continue to support. Those principles are: 
(1) The need for stability in regulatory alternatives so that 
associated levels of duck harvest can be estimated reliably; (2) the 
advisability of framework-date proposals with minimal complexity (i.e., 
few, if any, special cases or dispensations); (3) the specification of 
framework regulations that are uniform within Flyways; (4) the need for 
improved resource monitoring to provide necessary feedback; and (5) a 
cautionary statement that regulatory changes far beyond the realm of 
experience undermine our ability to make data-based predictions about 
harvest impacts and, thus, undermine the integrity of the AHM process.
    In light of these concerns, we are requesting the AHM Working Group 
to evaluate the framework-date proposal contained herein, and to 
recommend appropriate changes to the current AHM technical protocol. At 
a minimum, we believe that the AHM Working Group should: (1) Review and 
update the predictions of mallard harvest rates under the current 
regulatory alternatives (without framework-date extensions); (2) 
determine how we will account for the uncertainty about the impacts of 
extended framework dates; (3) recommend changes to resource monitoring 
programs that will be necessary to permit an evaluation of framework-
date extensions; and (4) provide guidelines for assessing impacts to 
species other than mallards (especially those species below objective 
levels). Finally, in evaluating the current framework-date proposal, we 
urge all interested parties to consider how improvements to resource 
monitoring programs would be funded, whether the risk of more 
restrictive hunting seasons (i.e., shorter season lengths and smaller 
bag limits) is acceptable, and whether some re-distribution of duck 
harvest to more northerly and more southerly States is desirable.
    In conclusion, the Service re-emphasizes its commitment to 
monitoring the impacts of these proposed extensions of framework dates 
over a 3-year period, particularly with regard to any effects on 
harvest distribution and rates of harvest. It is essential, therefore, 
that improvements to existing monitoring programs, such as the need to 
estimate the rate at which hunters voluntarily report band encounters 
(band reporting rate), be in place during this evaluation period. 
Resulting improvements in the estimation of harvest rates of mallards 
and other duck species, along with other elements of ongoing survey 
activities, will play a major role in the evaluation effort. Any 
decision to continue these framework extensions, or implement more 
restrictive hunting seasons, will be contingent on the outcome of this 
assessment.
    Thus, as indicated above, for the 2002-03 season, we are proposing 
to modify the four regulatory alternatives used last year (see 
accompanying table for specifics of the proposed regulatory 
alternatives). Alternatives are specified for each Flyway and are 
designated as ``VERY RES'' for the very restrictive, ``RES'' for the 
restrictive, ``MOD'' for the moderate, and ``LIB'' for the liberal 
alternative. We will announce final regulatory alternatives in early 
June. Public comments will be accepted until May 1, 2002, and should be 
sent to the address under the caption ADDRESSES.

D. Special Seasons/Species Management

iv. Canvasbacks
    Since 1994, the Service has followed a canvasback harvest strategy 
such that, if population status and production are sufficient to permit 
a harvest of one canvasback per day nationwide for the entire length of 
the regular duck season, while attaining a spring population objective 
of 500,000 birds, the season on canvasbacks should be opened. 
Otherwise, the season on canvasbacks should be closed nationwide. Lat 
spring, the estimate of canvasback abundance was 580,000 birds and the 
number of ponds in Prairie Canada in May (2.7 million) was 20% below 
the long-term average. The size of the spring population, together with 
natural mortality and below-average expected production due to the 
relatively dry conditions, was insufficient to offset expected 
mortality associated with a canvasback season lasting the entire length 
of the ``liberal'' regulatory alternative and still attain the 
population objective of 500,000 canvasbacks in the spring of 2002.
    While we continued to support the harvest strategy and the model 
adopted in 1994, despite the reduced numbers and below-average 
production forecast last year, we believed there was still some 
opportunity to allow a limited harvest last fall without compromising 
the population's ability to reach 500,000 canvasbacks this spring. 
Thus, we allowed a very restrictive, shortened canvasback season for 
2001-02. In the Atlantic and Mississippi Flyways, the season length was 
20 days, in the Central Flyway, 25 days, and in the Pacific Flyway, 38 
days. Our objective was to provide some hunting opportunity while still 
maintaining the spring population above the 500,000 objective level.
    We also expressed a willingness to revisit the guidelines outlined 
in the strategy and asked that any proposed changes have broad-based 
support and reflect the interests of all stakeholders. In addition, we 
urged the Flyway Councils to begin internal discussions regarding 
species-specific restrictions in the existing AHM framework. In 2002, 
we will again consider the size of the spring population and model-
based predictions of production and harvest in development of 
regulations proposals for canvasbacks. However, absent the broad-based 
support by the Flyway Councils to revise the strategy, we intend to 
follow the 1994 model-based prescriptions originally developed for 
canvasbacks.
v. Pintails
    We presently utilize an interim strategy to manage the harvest of 
pintails. In the current strategy, the determination of appropriate bag 
limits is based, in part, on the harvest predicted by a set of models 
that were developed from historical data relating harvest to bag limit 
and season length. However, since the interim strategy was implemented 
in 1997, the predicted harvest has consistently been lower than the 
estimated harvest from the U.S. and Canadian Federal harvest surveys. 
We will work with the Flyway Councils to review the current method of 
determining bag limits with the intent of making appropriate 
adjustments to the strategy to better reflect the realized harvest of 
pintails.
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