[Federal Register Volume 69, Number 55 (Monday, March 22, 2004)]
[Proposed Rules]
[Pages 13440-13448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6315]



[[Page 13439]]

-----------------------------------------------------------------------

Part IV





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 20



Migratory Bird Hunting; Proposed 2004-05 Migratory Game Bird Hunting 
Regulations (Preliminary) With Requests for Indian Tribal Proposals and 
Requests for 2004 Spring/Summer Migratory Bird Subsistence Harvest 
Proposals in Alaska; Proposed Rule

  Federal Register / Vol. 69, No. 55 / Monday, March 22, 2004 / 
Proposed Rules  

[[Page 13440]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT53


Migratory Bird Hunting; Proposed 2004-05 Migratory Game Bird 
Hunting Regulations (Preliminary) With Requests for Indian Tribal 
Proposals and Requests for 2004 Spring/Summer Migratory Bird 
Subsistence Harvest Proposals in Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of supplemental information.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (hereinafter the Service or 
we) proposes to establish annual hunting regulations for certain 
migratory game birds for the 2004-05 hunting season. We annually 
prescribe outside limits (frameworks) within which States may select 
hunting seasons. This proposed rule provides the regulatory schedule, 
describes proposed changes to the regulatory alternatives for the 2004-
05 duck hunting seasons, requests proposals from Indian tribes that 
wish to establish special migratory game bird hunting regulations on 
Federal Indian reservations and ceded lands, requests proposals for the 
2004 spring/summer migratory bird subsistence season in Alaska, and 
announces the availability of an updated cost-benefit analysis. 
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 game bird population status and 
habitat conditions.

DATES: You must submit comments on the proposed regulatory alternatives 
for the 2004-05 duck hunting seasons and the updated cost/benefit 
analysis by May 15, 2004. Following later Federal Register notices, you 
will be given an opportunity to submit comments for proposed early-
season frameworks by July 30, 2004, and for proposed late-season 
frameworks and subsistence migratory bird seasons in Alaska by August 
30, 2004. Tribes must submit proposals and related comments by June 1, 
2004. Proposals from the Co-management Council for the 2005 spring/
summer migratory bird subsistence harvest season must be submitted to 
the Flyway Councils and the Service by June 15, 2004.

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 MBSP-4107-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 4107, Arlington Square 
Building, 4501 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 MBSP-4107-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 are 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 are updated annually. 
This responsibility has been delegated to the U.S. 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 game bird hunting regulations by 
establishing the frameworks, or outside limits, for season lengths, bag 
limits, and areas for migratory game bird hunting. Acknowledging 
regional differences in hunting conditions, the Service has 
administratively divided the nation into four Flyways for the primary 
purpose of managing migratory game birds. Each Flyway (Atlantic, 
Mississippi, Central, and Pacific) has a Flyway Council, a formal 
organization generally composed of one member from each State and 
Province in that Flyway. The Flyway Councils, established through the 
International Association of Fish and Wildlife Agencies (IAFWA), also 
assist in researching and providing migratory game bird management 
information for Federal, State, and Provincial Governments, as well as 
private conservation agencies and the general public.
    The migratory game bird hunting regulations, located at 50 CFR part 
20, are constrained by three primary factors. Legal and administrative 
considerations dictate how long the rulemaking process will last. Most 
importantly, however, the biological cycle of migratory game birds 
controls the timing of data-gathering activities and thus the dates on 
which these results are available for consideration and deliberation.
    The process includes two separate regulations-development 
schedules, based on early and late hunting season regulations. Early 
hunting seasons pertain to all migratory game bird species in Alaska, 
Hawaii, Puerto Rico, and the Virgin Islands; migratory game birds other 
than waterfowl (i.e., dove, woodcock, etc.); and special early 
waterfowl seasons, such as teal or resident Canada geese. Early hunting 
seasons generally begin prior to October 1. Late hunting seasons 
generally start on or after October 1 and include most waterfowl 
seasons not already established.
    There are basically no differences in the processes for 
establishing either early or late hunting seasons. For each cycle, 
Service biologists gather, analyze, and interpret biological survey 
data and provide this information to all those involved in the process 
through a series of published status reports and presentations to 
Flyway Councils and other interested parties. Because the Service is 
required to take abundance of migratory game birds and other factors 
into consideration, the Service undertakes a number of surveys 
throughout the year in conjunction with Service Regional Offices, the 
Canadian Wildlife Service, and State and Provincial wildlife-management 
agencies. To determine the appropriate frameworks for each species, we 
consider factors such as population size and trend, geographical 
distribution, annual breeding effort, the condition of breeding and 
wintering habitat, the number of hunters, and the anticipated harvest.
    After frameworks, or outside limits, are established for season 
lengths, bag limits, and areas for migratory game bird hunting, 
migratory game bird management becomes a cooperative effort of State 
and Federal governments. After Service establishment of final 
frameworks for hunting seasons, the States may select season dates, bag 
limits, and other regulatory options for the hunting seasons. States 
may always be more conservative in their selections

[[Page 13441]]

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 2004-05 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 2004-05 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 2004-05 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 2004-05

    This document is the first in a series of proposed, supplemental, 
and final rulemaking documents for migratory game bird hunting 
regulations. We will publish additional supplemental proposals for 
public comment in the Federal Register as population, habitat, harvest, 
and other information become available. Because of the late dates when 
certain portions of these data become available, we anticipate 
abbreviated comment periods on some proposals. Special circumstances 
limit the amount of time we can allow for public comment on these 
regulations.
    Specifically, two considerations compress the time for the 
rulemaking process: The need, on one hand, to establish final rules 
early enough in the summer to allow resource agencies to select and 
publish season dates and bag limits prior to the beginning of hunting 
seasons and, on the other hand, the lack of current status data on most 
migratory game birds until later in the summer. Because the regulatory 
process is strongly influenced by the times when information is 
available for consideration, we divide the regulatory process into two 
segments: early seasons and late seasons (further described and 
discussed under the Background and Overview section).
    Major steps in the 2004-05 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 2004-05 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, 2004, and those for late seasons on or about September 15, 
2004.

Request for 2004 Spring/Summer Migratory Bird Subsistence Harvest 
Proposals in Alaska

Background

    The 1916 Convention for the Protection of Migratory Birds between 
the United States and Great Britain (for Canada) established a closed 
season for the taking of migratory birds between March 10 and September 
1. Residents of northern Alaska and Canada traditionally harvested 
migratory birds for nutritional purposes during the spring and summer 
months. The governments of Canada, Mexico, and the United States 
recently amended the 1916 Convention and the subsequent 1936 Mexico 
Convention for the Protection of Migratory Birds and Game Mammals. The 
amended treaties provide for the legal subsistence harvest of migratory 
birds and their eggs in Alaska and Canada during the closed season.
    On August 16, 2002, we published in the Federal Register (67 FR 
53511) a final rule that established procedures for incorporating 
subsistence management into the continental migratory bird management 
program. These regulations, developed under a new co-management process 
involving the Service, the Alaska Department of Fish and Game, and 
Alaska Native representatives, established an annual procedure to 
develop harvest guidelines for implementation of a spring/summer 
migratory bird subsistence harvest. Eligibility and inclusion 
requirements necessary to participate in the spring/summer migratory 
bird subsistence season in Alaska are outlined in 50 CFR part 92.
    This proposed rule calls for proposals for regulations that will 
expire on August 31, 2005, for the spring/summer subsistence harvest of 
migratory birds in Alaska. Each year, seasons will open after March 11 
and close prior to September 1.

Alaska Spring/Summer Subsistence Harvest Proposal Procedures

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

[[Page 13442]]

(a) Alaska Migratory Bird Co-Management Council

    Proposals may be submitted by the public to the Co-management 
Council during the period of November 1-December 15, 2004, to be acted 
upon for the 2005 migratory bird subsistence harvest season. Proposals 
should be submitted to the Executive Director of the Co-management 
Council, listed above under the caption ADDRESSES.

(b) Flyway Councils

    (1) Proposed 2005 regulations recommended by the Co-management 
Council will be submitted to all Flyway Councils for review and 
comment. The Council's recommendations must be submitted prior to the 
Service Regulations Committee's last regular meeting of the calendar 
year in order to be approved for spring/summer harvest beginning March 
11 of the following calendar year.
    (2) Alaska Native representatives may be appointed by the Co-
management Council to attend meetings of one or more of the four Flyway 
Councils to discuss recommended regulations or other proposed 
management actions.

(c) Service Regulations Committee

    Proposed annual regulations recommended by the Co-management 
Council will be submitted to the Service Regulations Committee for 
their review and recommendation to the Service Director. Following the 
Service Director's review and recommendation, the proposals will be 
forwarded to the Department of the Interior for approval. Proposed 
annual regulations will then be published in the Federal Register for 
public review and comment, similar to the annual migratory game bird 
hunting regulations. Final spring/summer regulations for Alaska will be 
published in the Federal Register in the preceding fall.
    Because of the time required for review by us and the public, 
proposals from the Co-management Council for the 2005 spring/summer 
migratory bird subsistence harvest season must be submitted to the 
Flyway Councils and the Service by June 15, 2004, for Council comments 
and Service action at the late-season SRC meeting.

Review of Public Comments

    This proposed rulemaking contains the proposed regulatory 
alternatives for the 2004-05 duck hunting seasons. This proposed 
rulemaking also describes other recommended changes or specific 
preliminary proposals that vary from the 2003-04 final frameworks (see 
August 27, 2003, Federal Register (68 FR 51658) for early seasons and 
September 26, 2003, Federal Register (68 FR 55784) for late seasons) 
and issues requiring early discussion, action, or the attention of the 
States or tribes. We will publish responses to all proposals and 
written comments when we develop final frameworks for the 2004-05 
season. 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 game bird hunting seasons, the 
request for tribal proposals, and the request for Alaska migratory bird 
subsistence seasons with the preliminary proposals for the annual 
hunting regulations-development process. We will publish the remaining 
proposed and final rulemaking documents separately. For inquiries on 
tribal guidelines and proposals, tribes should contact the following 
personnel:

Region 1 (California, Idaho, Nevada, Oregon, Washington, Hawaii, and 
the Pacific Islands)--Brad Bortner, U.S. Fish and Wildlife Service, 911 
NE. 11th Avenue, Portland, Oregon 97232-4181; (503) 231-6164.
Region 2 (Arizona, New Mexico, Oklahoma, and Texas)--Jeff Haskins, U.S. 
Fish and Wildlife Service, P.O. Box 1306, Albuquerque, New Mexico 
87103; (505) 248-7885.
Region 3 (Illinois, Indiana, Iowa, Michigan, Missouri, Minnesota, Ohio, 
and Wisconsin)--Steve Wilds, U.S. Fish and Wildlife Service, Federal 
Building, One Federal Drive, Fort Snelling, Minnesota 55111-4056; (612) 
713-5432.
Region 4 (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, 
Mississippi, North Carolina, Puerto Rico/Virgin Islands, South 
Carolina, and Tennessee)--Frank Bowers, U.S. Fish and Wildlife Service, 
1875 Century Boulevard, Room 324, Atlanta, Georgia 30345; (404) 679-
4000.
Region 5 (Connecticut, Delaware, Maine, Maryland, Massachusetts, New 
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, 
Virginia, and West Virginia)--George Haas, U.S. Fish and Wildlife 
Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035-9589; 
(413) 253-8576.
Region 6 (Colorado, Kansas, Montana, North Dakota, Nebraska, South 
Dakota, Utah, and Wyoming)--John Cornely, U.S. Fish and Wildlife 
Service, P.O. Box 25486, Denver Federal Building, Denver, Colorado 
80225; (303) 236-8145.
Region 7 (Alaska)--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 game bird hunting regulations on 
Federal Indian reservations (including off-reservation trust lands) and 
ceded lands. We developed these guidelines in response to tribal 
requests for our recognition of their reserved hunting rights, and for 
some tribes, recognition of their authority to regulate hunting by both 
tribal and nontribal members throughout their reservations. The 
guidelines include possibilities for:
    (1) On-reservation hunting by both tribal and nontribal members, 
with hunting by nontribal members on some reservations to take place 
within Federal frameworks, but on dates different from those selected 
by the surrounding State(s);
    (2) On-reservation hunting by tribal members only, outside of usual 
Federal frameworks for season dates and length, and for daily bag and 
possession limits; and
    (3) Off-reservation hunting by tribal members on ceded lands, 
outside of usual framework dates and season length, with some added 
flexibility in daily bag and possession limits.
    In all cases, tribal regulations established under the guidelines 
must be consistent with the annual March 10 to September 1 closed 
season mandated by the 1916 Convention Between the United States and 
Great Britain (for Canada) for the Protection of Migratory Birds 
(Convention). The guidelines are applicable to those tribes that have 
reserved hunting rights on Federal Indian reservations (including off-
reservation trust lands) and ceded lands. They also may be applied to 
the establishment of migratory game bird hunting regulations for 
nontribal members on all lands within the exterior boundaries of 
reservations where tribes have full wildlife management authority over 
such hunting, or where the tribes and affected States otherwise have 
reached agreement over hunting by nontribal members on non-Indian 
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

[[Page 13443]]

more complex on reservations that include lands owned by non-Indians, 
especially when the surrounding States have established or intend to 
establish regulations governing migratory bird hunting by non-Indians 
on these lands. In such cases, we encourage the tribes and States to 
reach agreement on regulations that would apply throughout the 
reservations. When appropriate, we will consult with a tribe and State 
with the aim of facilitating an accord. We also will consult jointly 
with tribal and State officials in the affected States where tribes may 
wish to establish special hunting regulations for tribal members on 
ceded lands. It is incumbent upon the tribe and/or the State to request 
consultation as a result of the proposal being published in the Federal 
Register. We will not presume to make a determination, without being 
advised by either a tribe or a State, that any issue is or is not 
worthy of formal consultation.
    One of the guidelines provides for the continuation of tribal 
members' harvest of migratory game birds on reservations where such 
harvest is a customary practice. We do not oppose this harvest, 
provided it does not take place during the closed season required by 
the Convention, and it is not so large as to adversely affect the 
status of the migratory game bird resource. Since the inception of 
these guidelines, we have reached annual agreement with tribes for 
migratory game bird hunting by tribal members on their lands or on 
lands where they have reserved hunting rights. We will continue to 
consult with tribes that wish to reach a mutual agreement on hunting 
regulations for on-reservation hunting by tribal members.
    Tribes should not view the guidelines as inflexible. We believe 
that they provide appropriate opportunity to accommodate the reserved 
hunting rights and management authority of Indian tribes while also 
ensuring that the migratory game bird resource receives necessary 
protection. The conservation of this important international resource 
is paramount. Use of the guidelines is not required if a tribe wishes 
to observe the hunting regulations established by the State(s) in which 
the reservation is located.

Details Needed in Tribal Proposals

    Tribes that wish to use the guidelines to establish special hunting 
regulations for the 2003-04 migratory game bird hunting season should 
submit a proposal that includes:
    (1) The requested migratory game bird hunting season dates and 
other details regarding the proposed regulations;
    (2) Harvest anticipated under the proposed regulations;
    (3) Methods 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 game bird resource; and
    (5) Tribal capabilities to establish and enforce migratory game 
bird hunting regulations.
    A tribe that desires the earliest possible opening of the migratory 
game bird season for nontribal members should specify this request in 
its proposal, rather than request a date that might not be within the 
final Federal frameworks. Similarly, unless a tribe wishes to set more 
restrictive regulations than Federal regulations will permit for 
nontribal members, the proposal should request the same daily bag and 
possession limits and season length for migratory game birds that 
Federal regulations are likely to permit the States in the Flyway in 
which the reservation is located.

Tribal Proposal Procedures

    We will publish details of tribal proposals for public review in 
later Federal Register documents. Because of the time required for 
review by us and the public, Indian tribes that desire special 
migratory game bird hunting regulations for the 2004-05 hunting season 
should submit their proposals as soon as possible, but no later than 
June 1, 2004.
    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 Division of 
Migratory Bird Management office in room 4107, 4501 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 the process of 
developing a new Supplemental Environmental Impact Statement for the 
migratory bird hunting

[[Page 13444]]

program. We plan to begin the public scoping process in 2005.

Endangered Species Act Consideration

    Prior to issuance of the 2004-05 migratory game bird hunting 
regulations, we will comply with provisions of the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to 
ensure that hunting is not likely to jeopardize the continued existence 
of any species designated as endangered or threatened or modify or 
destroy its critical habitat and is consistent with conservation 
programs for those species. Consultations under section 7 of this Act 
may cause us to change proposals in this and future supplemental 
proposed rulemaking documents.

Executive Order 12866

    The migratory bird hunting regulations are economically significant 
and were reviewed by the Office of Management and Budget (OMB) under 
Executive Order 12866. As such, a cost/benefit analysis was initially 
prepared in 1981. This analysis was subsequently revised annually from 
1990-96, and then updated in 1998. We have updated again this year. It 
is further discussed below under the heading Regulatory Flexibility 
Act. Results from the 2004 analysis indicate that the expected welfare 
benefit of the annual migratory bird hunting frameworks is on the order 
of $734 to $1,064 million, with a mid-point estimate of $899 million. 
To make our cost/benefit analysis as complete as possible, we seek 
additional information and comments. You must submit comments on the 
analysis by May 15, 2004. Copies of the cost/benefit analysis are 
available upon request from the address indicated under ADDRESSES or 
from our Web site at www.migratorybirds.gov.
    Executive Order 12866 also 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?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You may also e-mail the comments to this address: [email protected].

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 as part of the 
1981 cost-benefit analysis discussed under Executive Order 12866. This 
analysis was revised annually from 1990-95. In 1995, the Service issued 
a Small Entity Flexibility Analysis (Analysis), which was subsequently 
updated in 1996, 1998, and 2004. 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 2004 Analysis was based on the 2001 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 $481 million and $1.2 billion at small businesses in 
2004. To make our cost/benefit analysis as complete as possible, we 
seek additional information and comments. You must submit comments on 
the analysis by May 15, 2004. Copies of the Analysis are available upon 
request from the address indicated under ADDRESSES or from our Web site 
at www.migratorybirds.gov.

Small Business Regulatory Enforcement Fairness Act

    This rule is a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. For the reasons outlined above, 
this rule has an annual effect on the economy of $100 million or more. 
However, because this rule establishes hunting seasons, we do not plan 
to defer the effective date under the exemption contained in 5 U.S.C. 
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 surveys associated with the Migratory Bird Harvest Information 
Program and assigned clearance number 1018-0015 (expires 10/31/2004). 
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 Survey and assigned clearance number 1018-0023 (expires 10/31/
2004). 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. 
Lastly, OMB has approved the information collection requirements of the 
Alaska Subsistence Household Survey, an associated voluntary annual 
household survey used to determine levels of subsistence take in 
Alaska. The OMB control number for the information collection is 1018-
0124 (expires 10/31/2006).
    A Federal agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

Unfunded Mandates Reform Act

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

Civil Justice Reform--Executive Order 12988

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

Takings Implication Assessment

    In accordance with Executive Order 12630, this proposed rule, 
authorized by the Migratory Bird Treaty Act, does not have significant 
takings implications and does not affect any constitutionally protected 
property rights. This rule will not result in the physical occupancy of 
property, the physical invasion of property, or the regulatory taking 
of any

[[Page 13445]]

property. In fact, these rules allow hunters to exercise otherwise 
unavailable privileges and, therefore, reduce restrictions on the use 
of private and public property.

Energy Effects--Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. While this proposed 
rule is a significant regulatory action under Executive Order 12866, it 
is not expected to adversely affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Federalism Effects

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

List of Subjects in 50 CFR Part 20

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

    The rules that eventually will be promulgated for the 2004-05 
hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712, 
and 16 U.S.C. 742 a-j.

    Dated: March 5, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.

Proposed 2004-05 Migratory Game Bird Hunting Regulations (Preliminary)

    Pending current information on populations, harvest, and habitat 
conditions, and receipt of recommendations from the four Flyway 
Councils, we may defer specific regulatory proposals. At this time, we 
are proposing no changes from the final 2003-04 frameworks established 
on August 27 and September 26, 2003 (68 FR 51658 and 55784). Other 
issues requiring early discussion, action, or the attention of the 
States or tribes are contained below:

1. Ducks

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

A. General Harvest Strategy

    We propose to continue use of adaptive harvest management (AHM) to 
help determine appropriate duck-hunting regulations for the 2004-05 
season. AHM is a tool that permits sound resource decisions in the face 
of uncertain regulatory impacts, as well as providing a mechanism for 
reducing that uncertainty over time. The current AHM protocol is used 
to evaluate four alternative regulatory levels based on the population 
status of mallards (special hunting restrictions are enacted for 
species of special concern, such as canvasbacks, scaup, and pintails).
    The prescribed regulatory alternative for the Mississippi, Central, 
and Pacific Flyways would be 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). We propose to continue the constraint on 
closed seasons enacted last year. This constraint explicitly excludes 
from consideration closed hunting seasons in the Mississippi, Central, 
and Pacific Flyways whenever the mid-continent mallard population is at 
least 5.5 million. Closed seasons targeted at particular species or 
populations could still be necessary in some situations regardless of 
the status of mallards.
    The prescribed regulatory alternative for the Atlantic Flyway would 
be 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.
    We will propose a specific regulatory alternative for each of the 
Flyways during the 2004-05 season after survey information becomes 
available in late summer. More information on AHM is located at http://migratorybirds.fws.gov/mgmt/ahm/ahm-intro.htm.

B. Regulatory Alternatives

    The basic structure of the current regulatory alternatives for AHM 
was adopted in 1997. The alternatives remained largely unchanged until 
2002, when we (based on recommendations from the Flyway Councils) 
extended framework dates in the ``moderate'' and ``liberal'' regulatory 
alternatives by changing the opening date from the Saturday nearest 
October 1 to the Saturday nearest September 24, and changing the 
closing date from the Sunday nearest January 20 to the last Sunday in 
January. These extended dates were made available with no associated 
penalty in season length or bag limits. At that time we stated our 
desire to keep these changes in place for 3 years to allow for a 
reasonable opportunity to monitor the impacts of framework-date 
extensions on harvest distribution and rates of harvest prior to 
considering any subsequent use (67 FR 12501). Last year, based on 
recommendations from the Flyway Councils, we eliminated the ``very 
restrictive'' alternative. Expected harvest rates under the ``very 
restrictive'' alternative did not differ significantly from those under 
the ``restrictive'' alternative, and moreover, the ``very restrictive'' 
alternative would be expected to be prescribed for only about 5 percent 
or less of all hunting seasons.
    For 2004-05, we are proposing to maintain the same regulatory 
alternatives that were in effect last year (see accompanying table for 
specifics of the proposed regulatory alternatives). Alternatives are 
specified for each Flyway and are designated as ``RES'' for the 
restrictive, ``MOD'' for the moderate, and ``LIB'' for the liberal 
alternative. We will announce final regulatory alternatives in early 
June. Public comments will be accepted until May 15, 2004, and should 
be sent to the address under the caption ADDRESSES.

[[Page 13446]]

D. Special Seasons/Species Management

iv. Canvasbacks
    In the past few seasons, the Flyway Councils have recommended that 
the Service depart from the Canvasback Harvest Strategy (adopted in 
1994) and adopt a strategy to allow for a limited harvest when the 
population and habitat conditions would not support a full season 
length set for ducks. We have accommodated these requests by allowing a 
shortened season at the ``restrictive'' regulatory-alternative level. 
However, rather than continuing to depart from the current strategy, we 
believe that the strategy should be amended to address these types of 
situations. Last year, we agreed (68 FR 55786) to work with Flyway 
Councils in the coming year to consider modification of the current 
strategy for years when a full season would not be allowed, with the 
intent to reduce harvest and allow the population to attain the spring-
abundance objective. Therefore, we would appreciate Flyway Councils 
reviewing the current Canvasback Harvest Strategy and propose any 
modification during the early-season regulations process, to allow for 
proposed changes to be incorporated into the strategy for this year's 
late-season regulations process.
v. Pintails
    The Service and the majority (3 of 4) of the Flyway Councils have 
recommended and the Service subsequently adopted regulations that 
depart from a specific provision in the interim pintail harvest 
strategy during the past two seasons. We have stated that we would like 
to amend the existing strategy to reflect this modified approach and 
have requested that the Councils review the specific provision that 
recommends seasons that are projected to reduce subsequent breeding 
populations in the existing strategy. Specifically, we are seeking the 
Councils' input on the provision that recommends a 1-bird daily bag 
limit on pintails in all Flyways when the May Breeding Population 
Survey in the traditional survey areas is above 1.5 million or the 
projected fall flight is predicted to be at least 2 million (as 
calculated by the models in the interim strategy). This is the level 
established as the closure threshold for pintails in the strategy. The 
practice that we have followed in the past two seasons has been to 
adopt the season length in each flyway that was projected to keep 
harvest at levels that would provide for the 6 percent annual growth 
identified as an objective in the strategy. Season-length choices have 
been limited to the 4 alternative season lengths available in the AHM 
regulatory alternatives. We would appreciate the Councils' review and 
recommendation regarding this provision of the interim strategy during 
the early-season regulations process, to allow for any proposed changes 
to be incorporated into the strategy for this year's late-season 
regulations process.

BILLING CODE 4310-55-P

[[Page 13447]]

[GRAPHIC] [TIFF OMITTED] TP22MR04.000


[[Page 13448]]


[GRAPHIC] [TIFF OMITTED] TP22MR04.001

[FR Doc. 04-6315 Filed 3-19-04; 8:45 am]
BILLING CODE 4310-55-C