[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Proposed Rules]
[Pages 27144-27153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11032]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Proposed 2010-11 Migratory Game Bird Hunting 
Regulations (Preliminary) With Requests for Indian Tribal Proposals and 
Requests for 2011 Spring and Summer Migratory Bird Subsistence Harvest 
Proposals in Alaska; Proposed Rule

  Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[FWS-R9-MB-2010-0040]
[91200-1231-9BPP-L2]
RIN 1018-AX06


Migratory Bird Hunting; Proposed 2010-11 Migratory Game Bird 
Hunting Regulations (Preliminary) With Requests for Indian Tribal 
Proposals and Requests for 2011 Spring and 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 2010-11 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 2010-11 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 
2011 spring and summer migratory bird subsistence season in Alaska. 
Migratory game bird hunting seasons provide opportunities for 
recreation and sustenance; aid Federal, State, and tribal governments 
in the management of migratory game birds; and permit harvests at 
levels compatible with migratory game bird population status and 
habitat conditions.

DATES: You must submit comments on the proposed regulatory alternatives 
for the 2010-11 duck hunting seasons by June 25, 2010. Following 
subsequent Federal Register notices, you will be given an opportunity 
to submit comments for proposed early-season frameworks by July 31, 
2010, and for proposed late-season frameworks and subsistence migratory 
bird seasons in Alaska by August 31, 2010. Tribes must submit proposals 
and related comments by June 1, 2010. Proposals from the Co-management 
Council for the 2010 spring and summer migratory bird subsistence 
harvest season must be submitted to the Flyway Councils and the Service 
by June 15, 2010.

ADDRESSES: You may submit comments on the proposals by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FW-R9-MB-
2010-0040.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: 1018-AX06; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mailed or faxed comments. We will post all 
comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments section below for more information).
    Send your proposals for the 2011 spring and summer migratory bird 
subsistence season in Alaska 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 email 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 Service 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 process for adopting migratory game bird hunting regulations, 
located at 50 CFR 20, is constrained by three primary factors. Legal 
and administrative considerations dictate how long the rulemaking 
process will last. Most importantly, however, the biological cycle of 
migratory game birds controls the timing of data-gathering activities 
and thus the dates on which these results are available for 
consideration and deliberation.
    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 before 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

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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 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 2010-11 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 2010-11 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 2010-11 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 2010-11

    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 before 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 above in the Background and Overview section).
    Major steps in the 2010-11 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. Mottled Ducks
    viii. Wood Ducks
    ix. 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 2010-11 duck 
hunting seasons in mid-July. 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 16, 2010, and those for late seasons on or about September 15, 
2010.

Request for 2011 Spring and 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 1916 Convention and the subsequent 1936 Mexico Convention 
for the Protection of Migratory Birds and Game Mammals provide for the 
legal subsistence harvest of migratory birds and their eggs in Alaska 
and Canada during the closed season by indigenous inhabitants.
    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 and summer 
migratory bird subsistence harvest. Eligibility and inclusion 
requirements necessary to participate in the spring and 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, 2011, for the spring and

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summer subsistence harvest of migratory birds in Alaska. Each year, 
seasons will open on or after March 11 and close before September 1.

Alaska Spring and Summer Subsistence Harvest Proposal Procedures

    We will publish details of the Alaska spring and 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. The public may 
submit proposals to the Co-management Council during the period of 
November 1-December 15, 2010, to be acted upon for the 2011 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) The Co-management Council will submit proposed 2011 regulations 
to all Flyway Councils for review and comment. The Council's 
recommendations must be submitted before the Service Regulations 
Committee's last regular meeting of the calendar year in order to be 
approved for spring and 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. The Co-management Council will 
submit proposed annual regulations 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 and summer 
regulations for Alaska will be published in the Federal Register in the 
preceding winter after review and consideration of any public comments 
received.
    Because of the time required for review by us and the public, 
proposals from the Co-management Council for the 2011 spring and summer 
migratory bird subsistence harvest season must be submitted to the 
Flyway Councils and the Service by June 15, 2010, 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 2010-11 duck hunting seasons. This proposed 
rulemaking also describes other recommended changes or specific 
preliminary proposals that vary from the 2009-10 final frameworks (see 
August 25, 2009, Federal Register (74 FR 43008) for early seasons and 
September 24, 2009, Federal Register (74 FR 48822) 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 2010-11 
season. We seek additional information and comments on 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:
    Regions 1 and 8 (California, Idaho, Nevada, Oregon, Washington, 
Hawaii, and the Pacific Islands)--Brad Bortner, U.S. Fish and Wildlife 
Service, 911 N.E. 11th Avenue, Portland, OR 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, NM 87103; 
(505) 248-7885.
    Region 3 (Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, 
Ohio, and Wisconsin)--Jane West, U.S. Fish and Wildlife Service, 
Federal Building, One Federal Drive, Fort Snelling, MN 55111-4056; 
(612) 713-5432.
    Region 4 (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, 
Mississippi, North Carolina, Puerto Rico and Virgin Islands, South 
Carolina, and Tennessee)--David Viker, U.S. Fish and Wildlife Service, 
1875 Century Boulevard, Room 324, Atlanta, GA 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, MA 01035-9589; 
(413) 253-8576.
    Region 6 (Colorado, Kansas, Montana, Nebraska, North Dakota, South 
Dakota, Utah, and Wyoming)--James Dubovsky, U.S. Fish and Wildlife 
Service, P.O. Box 25486, Denver Federal Building, Denver, CO 80225; 
(303) 236-8145.
    Region 7 (Alaska)--Russ Oates, U.S. Fish and Wildlife Service, 1011 
East Tudor Road, Anchorage, AK 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

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States otherwise have reached agreement over hunting by nontribal 
members on non-Indian lands.
    Tribes usually have the authority to regulate migratory game bird 
hunting by nonmembers on Indian-owned reservation lands, subject to our 
approval. The question of jurisdiction is more complex on reservations 
that include lands owned by non-Indians, especially when the 
surrounding States have established or intend to establish regulations 
governing migratory bird hunting by non-Indians on these lands. In such 
cases, we encourage the tribes and States to reach agreement on 
regulations that would apply throughout the reservations. When 
appropriate, we will consult with a tribe and State with the aim of 
facilitating an accord. We also will consult jointly with tribal and 
State officials in the affected States where tribes may wish to 
establish special hunting regulations for tribal members on ceded 
lands. It is incumbent upon the tribe and/or the State to request 
consultation as a result of the proposal being published in the Federal 
Register. We will not presume to make a determination, without being 
advised by either a tribe or a State, that any issue is or is not 
worthy of formal consultation.
    One of the guidelines provides for the continuation of tribal 
members' harvest of migratory game birds on reservations where such 
harvest is a customary practice. We 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 2010-11 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 employed to 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 2010-11 hunting season 
should submit their proposals as soon as possible, but no later than 
June 1, 2010.
    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

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. Accordingly, we invite interested persons to submit written 
comments, suggestions, or recommendations regarding the proposed 
regulations. Before promulgation of final migratory game bird hunting 
regulations, we will take into consideration all comments we receive. 
Such comments, and any additional information we receive, may lead to 
final regulations that differ from these proposals.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. Finally, we will not consider hand-delivered 
comments that we do not receive, or mailed comments that are not 
postmarked, by the date specified in the DATES section.
    We will post all comments in their entirety--including your 
personal identifying information--on http://www.regulations.gov. Before 
including your address, phone number, e-mail address, or other personal 
identifying information in your comment, you should be aware that your 
entire comment - including your personal identifying information - may 
be made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Division of Migratory Bird Management, Room 4107, 
4501 North Fairfax Drive, Arlington, VA 22203.
    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 
we receive 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

[[Page 27148]]

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 FOR FURTHER INFORMATION CONTACT.
    In a notice published in the September 8, 2005, Federal Register 
(70 FR 53376), we announced our intent to develop a new Supplemental 
Environmental Impact Statement for the migratory bird hunting program. 
Public scoping meetings were held in the spring of 2006, as detailed in 
a March 9, 2006, Federal Register (71 FR 12216). We prepared a scoping 
report summarizing the scoping comments and scoping meetings. The 
report is available by either writing to the address indicated under 
FOR FURTHER INFORMATION CONTACT or by viewing on our website at http://www.fws.gov/migratorybirds.

Endangered Species Act Consideration

    Before issuance of the 2010-11 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 the Act 
may cause us to change proposals in this and future supplemental 
proposed rulemaking documents.

Executive Order 12866

    The Office of Management and Budget has determined that this rule 
is significant and has reviewed this rule under Executive Order 12866. 
OMB bases its determination of regulatory significance upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.
    An economic analysis was prepared for the 2008-09 season. This 
analysis was based on data from the 2006 National Hunting and Fishing 
Survey, the most recent year for which data are available (see 
discussion in Regulatory Flexibility Act section below). This analysis 
estimated consumer surplus for three alternatives for duck hunting 
(estimates for other species are not quantified due to lack of data). 
The alternatives are (1) Issue restrictive regulations allowing fewer 
days than those issued during the 2007-08 season, (2) Issues moderate 
regulations allowing more days than those in alternative 1, and (3) 
Issue liberal regulations identical to the regulations in the 2007-08 
season. For the 2008-09 season, we chose alternative 3, with an 
estimated consumer surplus across all flyways of $205-$270 million. At 
this time, we are proposing no changes to the season frameworks for the 
2010-11 season, and as such, we will again consider these three 
alternatives. However, final frameworks will be dependent on population 
status information available later this year. For these reasons, we 
have not conducted a new economic analysis, but the 2008-09 analysis is 
part of the record for this rule and is available at http://www.fws.gov/migratorybirds/NewReportsPublications/SpecialTopics/SpecialTopics.html#HuntingRegs or at http://www.regulations.gov.

Regulatory Flexibility Act

    The 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. 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, 
2004, and 2008. 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 2008 
Analysis was based on the 2006 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 approximately 
$1.2 billion at small businesses in 2008. Copies of the Analysis are 
available upon request from the Division of Migratory Bird Management 
(see FOR FURTHER INFORMATION CONTACT) or from our website at http://www.fws.gov/migratorybirds/NewReportsPublications/SpecialTopics/SpecialTopics.html#HuntingRegs or at http://www.regulations.gov.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Small Business Regulatory Enforcement Fairness Act

    This 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 (44 U.S.C. 3501 et seq.). 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 our Migratory Bird Surveys and assigned 
control number 1018-0023 (expires 2/28/2011). 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 Alaska Subsistence Household Survey, an 
associated voluntary annual household survey used to determine

[[Page 27149]]

levels of subsistence take in Alaska, and assigned control number 1018-
0124 (expires 1/31/2010). 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 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

    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.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have evaluated possible effects on Federally-recognized Indian tribes 
and have determined that there are no effects on Indian trust 
resources. However, in this proposed rule, we solicit proposals for 
special migratory bird hunting regulations for certain Tribes on 
Federal Indian reservations, off-reservation trust lands, and ceded 
lands for the 2010-11 migratory bird hunting season. The resulting 
proposals will be contained in a separate proposed rule. By virtue of 
these actions, we have consulted with Tribes affected by this rule.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the Migratory Bird Treaty Act. We annually prescribe frameworks from 
which the States make selections regarding the hunting of migratory 
birds, and we employ guidelines to establish special regulations on 
Federal Indian reservations and ceded lands. This process preserves the 
ability of the States and tribes to determine which seasons meet their 
individual needs. Any State or 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.

Authority

    The rules that eventually will be promulgated for the 2010-11 
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: April 1, 2010
Thomas L. Strickland
Assistant Secretary for Fish Wildlife and Parks.

Proposed 2010-11 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 2009-10 frameworks established 
on August 25 and September 24, 2009 (74 FR 43008 and 74 FR 48822). 
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 using adaptive harvest management (AHM) to 
help determine appropriate duck-hunting regulations for the 2010-11 
season. AHM permits sound resource decisions in the face of uncertain 
regulatory impacts and provides a mechanism for reducing that 
uncertainty over time. We use AHM to evaluate four alternative 
regulatory levels for duck hunting based on the population status of 
mallards. (We enact special hunting restrictions for species of special 
concern, such as canvasbacks, scaup, and pintails).

1. Pacific, Central and Mississippi Flyways

    Until 2008, we based the prescribed regulatory alternative for the 
Pacific, Central, and Mississippi Flyways 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.) In 2008, we based hunting regulations upon 
the breeding stock that contributes primarily to each Flyway, as 
follows:
    (1) We set hunting regulations in the Pacific Flyway based on the 
status and dynamics of a newly defined stock of ``western'' mallards. 
(Western mallards are those breeding in Alaska (as based on Federal 
surveys in strata 1-12), and in California and Oregon (as based on 
State-conducted surveys).) (2) We set

[[Page 27150]]

hunting regulations for the Central and Mississippi Flyways based on 
the status and dynamics of mid-continent mallards. (Mid-continent 
mallards are those breeding in central North America not included in 
the Western mallard stock, as defined above.)
    For the 2010-11 season, we recommend continuing to use independent 
optimization to determine the optimum regulations. This means that we 
would develop regulations for mid-continent mallards and western 
mallards independently, based upon the breeding stock that contributes 
primarily to each Flyway. We detailed implementation of this new AHM 
decision framework in the July 24, 2008, Federal Register (73 FR 
43290).

2. Atlantic Flyway

    Since 2000, we have prescribed a regulatory alternative for the 
Atlantic Flyway 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). We recommend 
continuation of this protocol for the 2010-11 season.

3. Final 2010-2011 AHM Protocol

    We will detail the final AHM protocol for the 2010-11 season in the 
early-season proposed rule, which we will publish in mid-July (see 
Schedule of Regulations Meetings and Federal Register Publications at 
the end of this proposed rule for further information). We will propose 
a specific regulatory alternative for each of the Flyways during the 
2010-11 season after survey information becomes available in late 
summer. More information on AHM is located at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/AHM/AHM-intro.htm.

B. Regulatory Alternatives

    The basic structure of the current regulatory alternatives for AHM 
was adopted in 1997. In 2002, based upon recommendations from the 
Flyway Councils, we extended framework dates in the ``moderate'' and 
``liberal'' regulatory alternatives by:
    (1) Changing the opening date from the Saturday nearest October 1 
to the Saturday nearest September 24; and
    (2) 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 before considering any 
subsequent use (67 FR 12501).
    For 2010-11, 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 mid-
July. We will accept public comments until June 25, 2010, and you 
should send your comments to an address listed 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, we conducted a cooperative review and 
evaluation of the historical use of zone/split options. 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 experimental controls. 
Consequently, we established guidelines 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, we revised the guidelines to provide States greater 
flexibility in using their zone/split arrangements. In 2005, in further 
response to recommendations from the Flyway Councils, we considered 
changes to the zone/split guidelines. After our review, however, we 
concluded that the current guidelines continue to achieve their 
intended objectives while allowing States sufficient flexibility to 
address differences in physiography, climate, and other factors and 
that the guidelines need not be changed. We further stated that the 
guidelines would be used for all future open seasons (70 FR 55667).
    Open seasons for changes occurred in 1991, 1996, 2001, and 2006. 
The next open season for changes to zone/split configurations will be 
in 2011, for the 2011-15 period. We are providing the guidelines here 
in order to allow sufficient time for States to solicit public input 
regarding their selections of zone/split configurations in 2011. The 
guidelines are as follows:

Guidelines for Duck Zones and Split Seasons

    The following zone/split-season guidelines apply only for the 
regular duck season:
    a. 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.
    b. 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.
    c. Only minor (less than a county in size) boundary changes will be 
allowed for any grandfathered arrangement, and changes are limited to 
the open season.
    d. Once a zone/split option is selected during an open season, it 
must remain in place for the following 5 years.
    Any State may continue the configuration used in the previous 5-
year period. 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 (2-segment) split seasons in 
one or both zones.

Grandfathered Zone/Split Arrangements

    When we first implemented the zone/split guidelines in 1991, 
several States had completed experiments with zone/split arrangements 
different from Options 1-3 above. We offered those States a one-time 
opportunity to continue (``grandfather'') those arrangements, with the 
stipulation that only minor changes could be made to zone boundaries;. 
If any of those States now wish to change their zone/split arrangement:
    1. The new arrangement must conform to one of the 3 options 
identified above; and
    2. The State cannot go back to the grandfathered arrangement that 
it previously had in place.

D. Special Seasons/Species Management

v. Pintails

    Since 1997, we have used a prescriptive strategy to determine 
pintail regulations. However, as we have continually stated over the 
past several years, we remain committed to developing a framework for 
pintail harvest management based on a formal,

[[Page 27151]]

derived strategy and clearly articulated management objectives.
    Over the past 2 years, scientists from the U.S. Geological Survey 
(USGS) and the Service, in consultation with the Flyway Councils, have 
collaborated in developing an adaptive, derived framework for pintail 
harvest management. This draft framework was offered for Flyway 
consideration via presentations made at the AHM Working Group meeting 
in November 2007, the Service Regulations Committee (SRC) meeting in 
January 2008, and Flyway Technical Committee meetings in March 2008. 
The draft framework was revised a number of times in response to 
comments by the Flyways.
    Last year, we again expressed a desire to re-engage with the 
Flyways to address unresolved issues with the goal of implementing a 
derived, adaptive strategy for pintail harvest management during the 
2010-11 regulatory cycle. In the September 24, 2009, Federal Register 
(74 FR 48822), we stated that, for the implementation of the new 
derived strategy to be successful, the Service and Flyway Councils must 
reach agreement on several key issues. These issues included: (1) 
Determination of the harvest management objective, (2) identification 
of any constraints that would be included in the strategy (e.g., 
closure constraint), and (3) a decision regarding specific inclusion of 
a harvest allocation process. To that end, we made technical 
information regarding aspects of the derived strategy available at the 
December 2009 AHM Working Group Meeting.
    In January 2010, we distributed to the Flyways a report entitled 
``Proposal for a Derived and Adaptive Harvest Strategy for Northern 
Pintails'' (available at http://www.fws.gov/migratorybirds/NewsPublicationsReports.html). The report was also presented and 
discussed at the February 3, 2010, SRC meeting in Denver. In this 
report, we have attempted to reframe the issue in a multiple-objective 
decision making context. We hope this will refocus the discussion on 
the fundamental objectives of pintail harvest management, allow 
acceptance of the inherent tradeoffs, and result in a harvest strategy 
that best balances the objectives of the Flyways, the Service, the 
States, and the public. We hope that the Flyways will discuss this 
proposal at upcoming 2010 Winter meetings and provide specific feedback 
on the draft process.
    If there is reasonable agreement between what the individual 
Flyways propose and the combined results from all four Flyways, the 
draft strategy could be reviewed at the June 2010 SRC meeting, and 
potentially published in the proposed early season regulations as a 
proposal for use during this regulatory cycle. Alternately, if this 
schedule is too compressed for adequate consultation, or if 
disagreements arise that require a longer period of discussion, 
implementation could wait until the 2011-12 hunting season.

14. Woodcock

    In 2008, we completed a review of available woodcock population 
databases to assess their utility for developing a woodcock harvest 
strategy. Concurrently, we requested that the Atlantic, Mississippi, 
and Central Flyway Councils appoint members to a working group to 
cooperate with us on developing a woodcock harvest strategy. In 
February 2010, the working group completed a draft interim harvest 
strategy for consideration by the Flyway Councils at their March 
meetings.
    The working group's draft interim harvest strategy provides a 
transparent framework for making regulatory decisions for woodcock 
season length and bag limit while we work to improve monitoring and 
assessment protocols for this species. While the strategy's objective 
is to set woodcock harvest at a level commensurate with population, 
data limitations preclude accurately assessing harvest potential at 
this time. Thus, the strategy's thresholds for regulations changes are 
based on the premise that further population declines would result in 
decreased harvest, while population increases would allow for 
additional harvest. Specifics of the draft interim harvest strategy can 
be found at http://www.fws.gov/migratorybirds/NewsPublicationsReports.html.
    The working group recommended that the interim harvest strategy be 
implemented for the 2011-12 hunting season and be in effect for 5 years 
(2011-15). They further recommended that the Service and Flyway 
Councils evaluate the strategy after 5 years and continue to assess the 
feasibility of developing a derived harvest strategy. Following review 
and comment by the Flyway Councils, we will announce our intentions 
whether to propose the strategy following the June 23-24, 2010, SRC 
meeting.

16. Mourning Doves

    In 2006 (see July 28, 2006, Federal Register, 71 FR 43008), we 
approved guidelines for the use of zone/split seasons for doves with 
implementation beginning in the 2007-08 season. While the initial 
period was for 4 years (2007-10), we further stated that beginning in 
2011, zoning would conform to a 5-year period.
    The next open season for changes to dove zone/split configurations 
will be in 2011, for the 2011-15 period. We are providing the 
guidelines here in order to allow sufficient time for States to solicit 
public input regarding their selections of zone/split configurations in 
2011. The guidelines are as follows:

Guidelines for Dove Zones and Split Seasons in the Eastern and Central 
Mourning Dove Management Units

    1. A zone is a geographic area or portion of a State, with a 
contiguous boundary, for which independent seasons may be selected for 
dove hunting.
    2. States may select a zone/split option during an open season. The 
option must remain in place for the following 5 years except that 
States may make a one-time change and revert to their previous zone/
split configuration in any year of the 5-year period. Formal approval 
will not be required, but States must notify the Service before making 
the change.
    3. Zoning periods for dove hunting will conform to those years used 
for ducks, e.g., 2006-10.
    4. The zone/split configuration consists of two zones with the 
option for 3-way (3-segment) split seasons in one or both zones. As a 
grandfathered arrangement, Texas will have three zones with the option 
for 2-way (2-segment) split seasons in one, two, or all three zones.
    5. States that do not wish to zone for dove hunting may split their 
seasons into no more than 3 segments.
    For the 2011-15 period, any State may continue the configuration 
used in 2007-10. If changes are made, the zone/split-season 
configuration must conform to one of the options listed above.
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