[Federal Register Volume 70, Number 65 (Wednesday, April 6, 2005)]
[Proposed Rules]
[Pages 17574-17582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6816]



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Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Proposed 2005-06 Migratory Game Bird Hunting 
Regulations (Preliminary) With Requests for Indian Tribal Proposals and 
Requests for 2006 Spring/Summer Migratory Bird Subsistence Harvest 
Proposals in Alaska; Proposed Rule

  Federal Register / Vol. 70, No. 65 / Wednesday, April 6, 2005 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT76


Migratory Bird Hunting; Proposed 2005-06 Migratory Game Bird 
Hunting Regulations (Preliminary) With Requests for Indian Tribal 
Proposals and Requests for 2006 Spring/Summer Migratory Bird 
Subsistence Harvest Proposals in Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of supplemental information.

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SUMMARY: The U.S. Fish and Wildlife Service (hereinafter the Service or 
we) proposes to establish annual hunting regulations for certain 
migratory game birds for the 2005-06 hunting season. We annually 
prescribe outside limits (frameworks) within which States may select 
hunting seasons. This proposed rule provides the regulatory schedule, 
describes the proposed regulatory alternatives for the 2005-06 duck 
hunting seasons, requests proposals from Indian tribes that wish to 
establish special migratory game bird hunting regulations on Federal 
Indian reservations and ceded lands, and requests proposals for the 
2006 spring/summer migratory bird subsistence season in Alaska. 
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 2005-06 duck hunting seasons by May 1, 2005. Following later 
Federal Register Notices, you will be given an opportunity to submit 
comments for proposed early-season frameworks by July 30, 2005, and for 
proposed late-season frameworks and subsistence migratory bird seasons 
in Alaska by August 30, 2005. Tribes must submit proposals and related 
comments by June 1, 2005. Proposals from the Co-management Council for 
the 2006 spring/summer migratory bird subsistence harvest season must 
be submitted to the Flyway Councils and the Service by June 15, 2005.

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. Proposals for 
the 2006 spring/summer migratory bird subsistence season in Alaska 
should be sent to the Executive Director of the Co-management Council, 
U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 
99503, or fax to (907) 786-3306 or e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, at: Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, Department 
of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW, Washington, DC 
20240, (703) 358-1714. For information on the migratory bird 
subsistence season in Alaska, contact Fred Armstrong, (907) 786-3887, 
or Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 1011 
E. Tudor Road, Mail Stop 201, Anchorage, AK 99503.

SUPPLEMENTARY INFORMATION:

Background and Overview

    Migratory game birds are those bird species so designated in 
conventions between the United States and several foreign nations for 
the protection and management of these birds. Under the Migratory Bird 
Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is 
authorized to determine when ``hunting, taking, capture, killing, 
possession, sale, purchase, shipment, transportation, carriage, or 
export of any * * * bird, or any part, nest, or egg'' of migratory game 
birds can take place, and to adopt regulations for this purpose. These 
regulations are written after giving due regard to ``the zones of 
temperature and to the distribution, abundance, economic value, 
breeding habits, and times and lines of migratory flight of such 
birds'' and are updated annually (16 U.S.C. 704(a)). This 
responsibility has been delegated to the 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.

[[Page 17575]]

    After frameworks, or outside limits, are established for season 
lengths, bag limits, and areas for migratory game bird hunting, 
migratory game bird management becomes a cooperative effort of State 
and Federal governments. After Service establishment of final 
frameworks for hunting seasons, the States may select season dates, bag 
limits, and other regulatory options for the hunting seasons. States 
may always be more conservative in their selections than the Federal 
frameworks but never more liberal.

Notice of Intent To Establish Open Seasons

    This notice announces our intent to establish open hunting seasons 
and daily bag and possession limits for certain designated groups or 
species of migratory game birds for 2005-06 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 2005-06 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 2005-06 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 2005-06

    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 2005-06 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 2005-06 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 19, 2005, and those for late seasons on or about September 16, 
2005.

Request for 2006 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, 2006, for the spring/summer subsistence harvest of 
migratory birds in Alaska. Each year, seasons will open on or after 
March 11 and close prior to September 1.

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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:
    (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, 2005, to be acted upon for the 2007 
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 2006 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 (SRC) for their review and recommendation 
to the Service Director. Following the Service Director's review and 
recommendation, the proposals will be forwarded to the Department of 
the Interior for approval. Proposed annual regulations will then be 
published in the Federal Register for public review and comment, 
similar to the annual migratory game bird hunting regulations. Final 
spring/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 2006 spring/summer 
migratory bird subsistence harvest season must be submitted to the 
Flyway Councils and the Service by June 15, 2005, 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 2005-06 duck hunting seasons. This proposed 
rulemaking also describes other recommended changes or specific 
preliminary proposals that vary from the 2004-05 final frameworks (see 
August 30, 2004, Federal Register (69 FR 52970) for early seasons and 
September 23, 2004, Federal Register (69 FR 57140) 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 2005-06 
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 
N.E. 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, Minnesota, Missouri, 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)--E. J. Williams, 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)--Diane Pence, U.S. Fish and Wildlife 
Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035-9589; 
(413) 253-8576.
Region 6 (Colorado, Kansas, Montana, Nebraska, North Dakota, 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

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

Details Needed in Tribal Proposals

    Tribes that wish to use the guidelines to establish special hunting 
regulations for the 2005-06 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 2005-06 hunting season 
should submit their proposals as soon as possible, but no later than 
June 1, 2005.
    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

[[Page 17578]]

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

Endangered Species Act Consideration

    Prior to issuance of the 2005-06 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, updated in 1998 and updated again in 2004. 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. Copies of 
the cost/benefit analysis are available upon request from the address 
indicated under ADDRESSES or from our Web site at http://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. Copies of the Analysis are available upon request from the 
address indicated under ADDRESSES or from our Web site at http://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 2/29/2008). 
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 11/30/
2007). 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

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

Energy Effects--Executive Order 13211

    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 2005-06 
hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712, 
and 16 U.S.C. 742a-j.

    Dated: March 17, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.

Proposed 2005-06 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 2004-05 frameworks established 
on August 30 and September 23, 2004 (69 FR 52970 and 57140). 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 2005-06 
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 in 2003. 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 2005-06 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).
    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 1, 2005, and should be 
sent to the address under the caption ADDRESSES.
C. Zones and Split Seasons
    In 1990, because of concerns about the proliferation of zones and 
split seasons for duck hunting, a cooperative review and evaluation of 
the historical use of zone/split options was conducted. This review did 
not show that the proliferation of these options had increased harvest 
pressure; however, the ability to detect the impact of zone/split 
configurations was poor because of unreliable response variables, the 
lack of statistical tests to differentiate between real and perceived 
changes, and the absence of adequate

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experimental controls. Consequently, guidelines were established to 
provide a framework for controlling the proliferation of changes in 
zone/split options. The guidelines identified a limited number of zone/
split configurations that could be used for duck hunting and restricted 
the frequency of changes in these configurations to 5-year intervals. 
In 1996, the guidelines were revised to provide States greater 
flexibility in using their zone/split arrangements.
    The next open season for changes to zone/split configurations will 
be in 2006, for the 2006-2010 period. In order to allow sufficient time 
for States to solicit public input regarding their selections of zone/
split configurations in 2006, we will finalize the guidelines during 
the 2005 late-season regulations process. For the 2006-2010 period, we 
propose to continue with the guidelines used for 2001-2005. These are 
as follows:
    The following zone/split-season guidelines apply only for the 
regular duck season:
    1. A zone is a geographic area or portion of a State, with a 
contiguous boundary, for which independent dates may be selected for 
the regular duck season.
    2. Consideration of changes for management-unit boundaries is not 
subject to the guidelines and provisions governing the use of zones and 
split seasons for ducks.
    3. Only minor (less than a county in size) boundary changes will be 
allowed for any grandfather arrangement, and changes are limited to the 
open season.
    4. Once a zone/split option is selected during an open season, it 
must remain in place for the following 5 years.
    For the 2006-2010 period, any State may continue the configuration 
used in 2001-2005. If changes are made, the zone/split-season 
configuration must conform to one of the following options:
    1. Three zones with no splits,
    2. Split seasons (no more than 3 segments) with no zones, or
    3. Two zones with the option for 2-way split seasons in one or both 
zones.
    At the end of 5 years after any changes in splits or zones, States 
will be required to provide the Service with a review of pertinent data 
(e.g., estimates of harvest, hunter numbers, hunter success, etc.). 
This review does not have to be the result of a rigorous experimental 
design, but nonetheless should assist us in ascertaining whether major 
undesirable changes in harvest or hunter activity occurred as a result 
of split and zone regulations.
D. Special Seasons/Species Management
    iii. Black ducks. We continue to encourage the development of 
assessment procedures that can be used to inform black duck harvest 
management in the United States. We appreciate the progress being made 
by the Service's Division of Migratory Bird Management and the Atlantic 
and Mississippi Flyway Councils in determining optimal harvest rates 
and how these compare with our desire to meet population goals. We 
reiterate that any proposed changes to black duck hunting regulations 
at this time be accompanied by predicted changes in black duck harvest 
rates and consider their appropriateness towards meeting management 
objectives.

4. Canada Geese

B. Regular Seasons
    In the Pacific Flyway, the current status and population trend 
information for Cackling Canada geese suggest that regulatory changes 
may be warranted this year.

6. Brant

    In the Pacific Flyway, the current status and population trend 
information for Pacific Black Brant suggest that regulatory changes may 
be warranted this year.

9. Sandhill Cranes

    During last year's waterfowl and sandhill crane hunting season, a 
group of hunters in Kansas accidentally shot at some whooping cranes. 
Two of the whooping cranes from this flock sustained injuries and were 
subsequently captured and treated by agency and university personnel. 
One of these birds died soon after capture and the other was 
transported to a captive-rearing facility in Maryland, however this 
second bird also died as a result of injuries sustained in the 
shooting. Service staff are working with staff from the Kansas 
Department of Wildlife and Parks to review this incident and make 
recommendations to minimize the potential conflicts with whooping 
cranes and hunting in this area. Pending the outcome of these 
discussions, regulatory changes for the Mid-Continent Population of 
sandhill cranes may be proposed this year.
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