[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17511-17515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05959]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[Docket No. FWS-HQ-MB-2022-0090; FF09M30000-234-FXMB1231099BPP0]
RIN 1018-BF64


Migratory Bird Hunting; Migratory Game Bird Hunting Regulations 
on Certain Federal Indian Reservations and Ceded Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: As part of the rulemaking process for the 2023-2024 season, 
the U.S. Fish and Wildlife Service (hereinafter, Service or we) 
proposes a revised process for establishing special regulations for 
certain Tribes on Federal Indian reservations, off-reservation trust 
lands, and ceded lands for migratory bird hunting seasons. We are 
proposing no longer to require that Tribes annually submit a proposal 
to the Service for our review and approval and no longer to publish in 
the Federal Register the annual Tribal migratory bird hunting 
regulations, and instead to adopt as regulations elements of our 
current guidelines for establishing special

[[Page 17512]]

migratory game bird hunting regulations on Federal Indian reservations 
(including off-reservation trust lands) and ceded lands. The Service 
recognizes the reserved hunting rights and management authority of 
Indian Tribes. Since the 1985-86 hunting season, we have successfully 
employed guidelines to establish special migratory game bird hunting 
regulations on Federal Indian reservations and ceded lands. We conclude 
that Tribal migratory bird harvest has been small with negligible 
impact to bird population status. We anticipate that Tribal hunting of 
migratory birds will continue to have similar negligible impacts to 
bird populations in the future. By proposing these regulations, the 
Service seeks to strengthen Tribal sovereignty and to reduce 
administrative burdens on both the Tribes and the Service while 
continuing to sustain healthy migratory game bird populations for 
future generations.

DATES: Submit comments by May 8, 2023.

ADDRESSES: Comment submission: You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-HQ-
MB-2022-0090.
     U.S. mail: Public Comments Processing, Attn: FWS-HQ-MB-
2022-0090, U.S. Fish and Wildlife Service; MS: PRB (JAO/3W); 5275 
Leesburg Pike; Falls Church, VA 22041-3803.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Document availability: Comments and materials we receive, as well 
as supporting documentation we used in preparing this proposed rule, 
will be available for public inspection on https://www.regulations.gov, 
or by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Division of Migratory Bird Management; 5275 Leesburg 
Pike; Falls Church, VA 22041-3803.

FOR FURTHER INFORMATION CONTACT:  Jerome Ford, U.S. Fish and Wildlife 
Service, Department of the Interior, 5275 Leesburg Pike, MS-MB, Falls 
Church, VA 22041-3803; (703) 358-2506.
    Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point of contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Background

    Migratory game birds are those bird species so designated in 
conventions between the United States and several foreign nations for 
the protection and management of these birds. Under the Migratory Bird 
Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is 
authorized to determine when ``hunting, taking, capture, killing, 
possession, sale, purchase, shipment, transportation, carriage, or 
export of any such bird, or any part, nest, or egg'' of migratory game 
birds can take place and to adopt regulations for this purpose. These 
regulations must give due regard to the zones of temperature and to the 
distribution, abundance, economic value, breeding habits, and times and 
lines of migratory flight of such birds (16 U.S.C. 704(a)). The 
Secretary of the Interior has delegated to the Service the lead Federal 
responsibility for managing and conserving migratory birds in the 
United States; however, migratory bird management is a cooperative 
effort of Federal, Tribal, and State governments. Federal regulations 
pertaining to migratory bird hunting are located in title 50 of the 
Code of Federal Regulations in part 20.
    Acknowledging regional differences in hunting conditions, the 
Service has administratively divided the United States into four 
Flyways for the primary purpose of managing migratory game birds. Each 
Flyway (Atlantic, Mississippi, Central, and Pacific) has a Flyway 
Council, a formal organization generally composed of one member from 
each State within the Flyway, as well as Provinces in Canada that share 
migratory bird populations with the Flyway. The Flyway Councils, 
established through the Association of Fish and Wildlife Agencies, 
assist in researching and providing migratory game bird management 
information for Federal, Tribal, State, and Provincial governments, as 
well as private conservation entities and the general public.
    The Service annually develops migratory game bird hunting 
frameworks, or outside limits, for season dates, season lengths, 
shooting hours, bag and possession limits, and areas where migratory 
game bird hunting may occur (50 CFR part 20, subpart K). Because the 
Service is required to take abundance of migratory game birds and other 
factors into consideration, the Service undertakes several surveys 
throughout the year in conjunction with Service Regional Offices, the 
Canadian Wildlife Service, Tribes, and State and Provincial wildlife 
management agencies. For each annual regulatory cycle, Service 
biologists gather, analyze, and interpret biological survey data and 
provide this information through a series of published status reports 
and presentations to the Flyway Councils and other interested parties. 
The August 6, 2015, Federal Register at 80 FR 47388 provides a detailed 
overview of this process.
    The Federal frameworks are necessary to allow harvest at levels 
compatible with migratory game bird population status and habitat 
conditions. To determine the appropriate frameworks for each species, 
we consider factors such as population size and trend, geographical 
distribution, annual breeding effort, condition of breeding and 
wintering habitat, number of hunters, and anticipated harvest. After 
frameworks are established, States may select migratory game bird 
hunting seasons within these frameworks. States may always be more 
conservative in their selections than the Federal frameworks, but never 
more liberal.
    On November 3, 2022, we published proposed hunting regulations for 
certain migratory game birds for the 2023-24 hunting season (87 FR 
66247). In that proposed rule, we stated that we would handle Tribal 
regulations via a separate rulemaking process in later Federal Register 
documents. Accordingly, this document begins the process for developing 
migratory game bird hunting regulations on Federal Indian reservations 
(including off-reservation trust lands) and ceded lands for the 2023-24 
hunting season and beyond.

Current Tribal Rulemaking Process

    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 
(independent from the State or States where the reservation is located) 
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 provide appropriate opportunity to accommodate the reserved 
hunting rights and management authority of Indian Tribes while also 
ensuring that the migratory

[[Page 17513]]

game bird resource receives necessary protection. The Service adopted 
the 1985 guidelines as final in 1988 (53 FR 31612, August 18, 1988).
    From the 1985 through 2022 hunting seasons, as part of our 
preliminary proposed rule to annually promulgate Federal migratory bird 
hunting regulations, we asked Tribes to submit their proposed migratory 
bird hunting regulations. Proposals were to include season dates and 
other regulations, methods to monitor harvest, anticipated harvest, 
steps taken to limit harvest levels, and capabilities to establish and 
enforce migratory bird hunting regulations.
    Each year, upon receipt of information on the status of migratory 
bird populations and expected migratory bird harvest provided by the 
Tribes, we evaluated the potential impact of special Tribal hunting 
regulations on the migratory bird resource. We have always concluded 
that this harvest is small and, therefore, would have a negligible 
impact to the bird population status. Annually, we published in the 
Federal Register the special Tribal migratory bird hunting regulations 
as a proposed rule and, following review and consideration of any 
public comments, published a final rule setting forth these 
regulations.

Proposed New Process for Managing Tribal Migratory Bird Hunting

    We anticipate that Tribal hunting will continue to have similar 
minimal impact to the migratory bird resource in the future due to 
declining trends in active hunters for some Tribes and also increasing 
population trends for many migratory game birds (as identified in the 
2022 State of the Birds Report; see state-of-the-birds-2022-spreads.pdf 
at stateofthebirds.org.). Based on the historical and future expected 
minimal impacts to migratory game bird resources, we are proposing to 
simplify the process for special Tribal migratory game bird hunting 
regulations for the upcoming season (2023-2024) and afterwards. We 
propose to remove the requirement that Tribes annually submit their 
proposed migratory game bird hunting regulations (and associated 
monitoring, anticipated harvest, and capabilities for regulation 
development and enforcement) for our review and approval. We also 
propose no longer to publish special Tribal migratory game bird hunting 
regulations in the Federal Register (i.e., a proposed and final rule). 
We further propose to adopt as regulations elements of our current 
guidelines for establishing special migratory game bird hunting 
regulations on Federal Indian reservations (including off-reservation 
trust lands) and ceded lands. Tribes that comply with these regulations 
will be authorized to independently establish special Tribal migratory 
bird hunting regulations.
    By allowing Tribes to independently establish special migratory 
bird hunting regulations, the Service recognizes Tribal sovereignty to 
exercise reserved hunting rights and, for some Tribes, recognition of 
their authority to regulate hunting by both Tribal and nontribal 
members on their reservation. As an alternative to promulgating special 
Tribal migratory game bird hunting regulations, Tribes may choose to 
observe the hunting regulations established by the State or States in 
which the reservation is located. We have been coordinating with Tribes 
on this proposed regulatory approach for Tribal self-management of the 
harvest, and we have received positive feedback thus far. The proposed 
action will reduce the annual administrative burden on both the Tribes 
and the Service to propose, review, and publish special migratory game 
bird hunting regulations while continuing to sustain healthy migratory 
game bird populations for future generations.
    As with the current process, these proposed regulations will be 
applicable to those Tribes that have reserved hunting rights on Federal 
Indian reservations (including off-reservation trust lands) and ceded 
lands. These proposed regulations also may be applied to the 
establishment of migratory game bird hunting regulations for nontribal 
members on all lands within the reservations where Tribes have full 
wildlife-management authority over such hunting, or where the Tribes 
and affected States otherwise have reached agreement over hunting by 
nontribal members on non-Indian lands within the reservation. Tribes 
usually have the authority to regulate migratory game bird hunting by 
nonmembers on Indian-owned reservation lands. 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 game bird 
hunting by non-Indians on these lands. In those 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 migratory game bird hunting 
regulations for Tribal members on ceded lands. It is incumbent upon the 
Tribe and/or the State to request consultation. 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.
    In the rule portion of this document, we have included the 
requirements for Tribes to follow if they establish special Tribal 
migratory bird hunting regulations, based on elements from the 1985 
guidelines. In addition, we encourage Tribes wanting to establish 
special migratory game bird hunting regulations to consider the 
elements we previously required in their proposals: (1) Season dates 
and other regulations; (2) anticipated harvest; (3) methods that will 
be employed to measure or monitor harvest; (4) steps that will be taken 
to limit the level of harvest, where it could be shown that failure to 
limit such harvest would have serious impacts on the migratory bird 
resource; and (5) Tribal capabilities to establish and enforce 
migratory bird hunting regulations. We recommend that Tribes allowing 
swan hunting require all swan hunters to successfully complete a course 
on swan identification and conservation to minimize take of trumpeter 
swans during the swan season.
    The proposed regulations provide for the continuation of Tribal 
members' harvest of migratory game birds on reservations where such 
harvest is a customary practice. We are supportive of this harvest 
provided it does not take place during the closed season required by 
the Convention and it is not so large as to adversely affect the status 
of the migratory game bird resource. Since the inception of the 
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 (memorandum of 
understanding (MOU) or something similar) on conducting short-term 
(possibly several years) experimental hunting using methods outside of 
the Federal hunting methods at Sec.  20.21 for on-reservation hunting 
by Tribal members.
    The experimental hunting period by a Tribe will provide data to the 
Service for future consideration if a Tribe would like to make the 
additional hunting method permanent. Tribes should send such requests 
for consultation to the Service's Assistant Director for the Migratory 
Bird Program at least 9 months before the season or ceremony

[[Page 17514]]

regarding hunting methods outside of these proposed Federal regulations 
(see FOR FURTHER INFORMATION CONTACT). We intend to make any proposed 
MOU or other agreement available through a notice of availability to 
allow for public comment; however, we may not use the public process 
for very minor or nonsignificant MOUs or agreements. The Service will 
make all signed MOUs or agreements public. If any individual Tribe 
wishes to make these additional experimental hunting methods permanent 
and the Service agrees, the Service will conduct rulemaking (using any 
data from the experimental hunt) to amend 50 CFR part 20 to allow 
Tribal members to use these additional hunting methods.
    If this proposed rule is finalized, starting with the 2023-2024 
hunting season, annual Tribal hunting season regulations will no longer 
be published in the Federal Register, alleviating the administrative 
burden to both the Service and the Tribes of developing special Tribal 
migratory bird hunting regulation proposals, reviewing proposals, and 
publishing Tribal regulations as Federal regulations. This proposed 
process would not apply to seasons for subsistence take of migratory 
birds in Alaska.

Public Comments

    We invite interested persons to submit written comments, 
suggestions, or recommendations regarding the proposed regulations for 
the 2023-2024 season and beyond. Before finalizing this proposed rule, 
we will consider all comments we receive. These comments, and any 
additional information we receive, may lead to final regulations that 
differ from this proposal.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We will not accept 
comments sent by email or fax. We will not consider mailed comments 
that are not postmarked by the date specified in DATES. We will post 
all comments in their entirety--including your personal identifying 
information--on https://www.regulations.gov. Before including your 
address, phone number, email address, or other personal identifying 
information in your comment, you should be aware that your entire 
comment--including your personal identifying information--may be made 
publicly available at any time. While you can ask us in your comment to 
withhold your personal identifying information from public review, we 
cannot guarantee that we will be able to do so.

Required Determinations

    Based on our most current data, we are affirming our required 
determinations made in the November 3, 2022, proposed rule (87 FR 
66247); please see that document for descriptions of our actions to 
ensure compliance with the following statutes and Executive Orders:
     National Environmental Policy Act;
     Endangered Species Act;
     Regulatory Flexibility Act;
     Small Business Regulatory Enforcement Fairness Act;
     Paperwork Reduction Act of 1995;
     Unfunded Mandates Reform Act; and
     Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, 
and 13563.

List of Subjects in 50 CFR Part 20

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

Proposed Regulation Promulgation

    Accordingly, for the reasons described in the preamble, we propose 
to amend title 50, chapter I, subchapter B, of the Code of Federal 
Regulations as follows:

PART 20--MIGRATORY BIRD HUNTING

0
1. The authority citation for part 20 continues to read as follows:

    Authority: 16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.

0
2. Revise Sec.  20.110, including the section heading, to read as 
follows:


Sec.  20.110  Regulations for certain Federal Indian reservations and 
ceded lands.

    (a) Tribal sovereignty. The Service recognizes Tribal sovereignty 
to exercise reserved hunting rights and, for some Tribes, recognition 
of their authority to regulate hunting by both Tribal and nontribal 
members on their reservation. Accordingly, Tribes may independently 
(separate from the State or States in which the reservation is located) 
establish special migratory game bird hunting regulations. Migratory 
birds may be taken if the take is consistent with the regulations in 
this section and applicable Tribal hunting regulations.
    (b) Applicability. Special Tribal migratory game bird hunting 
regulations may be established by Tribes that have reserved hunting 
rights on Federal Indian reservations (including off-reservation trust 
lands) and ceded lands. These regulations also may be applied to the 
establishment of migratory game bird hunting regulations for nontribal 
members on all lands within the reservations where Tribes have full 
wildlife-management authority over such hunting, or where the Tribes 
and affected States otherwise have reached agreement over hunting by 
nontribal members on non-Indian lands within the reservation.
    (c) Special regulations. Special Tribal migratory game bird hunting 
regulations must be consistent with the annual March 11 to August 31 
closed season mandated by the 1916 Convention Between the United States 
and Great Britain (for Canada) for the Protection of Migratory Birds, 
as amended by the Protocol Between the Government of Canada and the 
Government of the United States of America Amending the 1916 Convention 
Between the United Kingdom and the United States of America for the 
Protection of Migratory Birds in Canada and the United States, and with 
these provisions:
    (1) Tribes may establish on-reservation hunting regulations, for 
both Tribal and nontribal members, with hunting seasons that may differ 
from those in the State(s) in which the reservations are located.
    (i) Regulations for both Tribal and nontribal members: Opening and 
closing dates, season length, and daily bag and possession limits for 
nontribal members on the reservations must be within the annual 
frameworks for migratory bird hunting seasons established by the 
Service, and all Federal hunting regulations in this part also apply to 
nontribal hunters. Tribes may choose to set the same opening and 
closing dates, season length, and daily bag and possession limits for 
hunting by Tribal members and nontribal members on their reservations, 
or, in accordance with the provisions in paragraph (c)(1)(ii) of this 
section, Tribes may choose to establish regulations for Tribal members 
only.
    (ii) Regulations for Tribal members only: Tribes may establish on-
reservation hunting regulations by Tribal members only, with hunting 
seasons that may be outside of annual frameworks for season dates, 
season length, and daily bag and possession limits. All Federal hunting 
regulations in this part apply. For a short-term experimental hunt, a 
Tribe and the Service may formally agree on allowed methods of take, 
notwithstanding the regulations in Sec.  20.21. The Service will make 
public any such formal agreement.
    (2) Tribes may establish off-reservation hunting regulations by 
Tribal members on ceded lands, with hunting seasons that may be outside 
of annual frameworks for season dates, season length, and daily bag and 
possession limits.
    (d) Provisions for ceded lands. Tribes that have special migratory 
game bird

[[Page 17515]]

hunting regulations for Tribal members on ceded lands must send a copy 
of the Tribal regulations to officials in the affected State(s) prior 
to the season opening.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-05959 Filed 3-22-23; 8:45 am]
BILLING CODE 4333-15-P