Fish and Wildlife Service, Interior.
Proposed rule; supplemental.
The U.S. Fish and Wildlife Service (hereinafter, Service or we) proposed in an earlier document to establish annual hunting regulations for certain migratory game birds for the 2004-05 hunting season. This supplement to the proposed rule provides the regulatory schedule; announces the Service Migratory Bird Regulations Committee and Flyway Council meetings; provides Flyway Council recommendations resulting from their March meetings; and provides regulatory alternatives for the 2004-05 duck hunting seasons.
The Service Migratory Bird Regulations Committee will meet to consider and develop proposed regulations for early-season migratory bird hunting on June 23 and 24, 2004, and for late-season migratory bird hunting and the 2005 spring/summer migratory bird subsistence seasons in Alaska on July 28 and 29, 2004. All meetings will commence at approximately 8:30 a.m. Following later Federal Register notices, you will be given an opportunity to submit comments for proposed early-season frameworks by July 30, 2004, and for proposed late-season frameworks and subsistence migratory bird seasons in Alaska by August 30, 2004.
The Service Migratory Bird Regulations Committee will meet in room 200 of the U.S. Fish and Wildlife Service's Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia. 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.Start Further Info
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.End Further Info End Preamble Start Supplemental Information
Regulations Schedule for 2004
On March 22, 2004, we published in the Federal Register (69 FR 13440) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and dealt with the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. This document is the second in a series of proposed, supplemental, and final rules for migratory game bird hunting regulations. We will publish proposed early-season frameworks in early July and late-season frameworks in early August. We will publish final regulatory frameworks for early seasons on or about August 20, 2004, and for late seasons on or about September 15, 2004.
Service Migratory Bird Regulations Committee Meetings
The Service Migratory Bird Regulations Committee will meet June 23-24, 2004, to review information on the current status of migratory shore and upland game birds and develop 2004-05 migratory game bird regulations recommendations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands. The Committee will also develop regulations recommendations for special September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, the Committee will review and discuss preliminary information on the status of waterfowl.
At the July 28-29, 2004, meetings, the Committee will review information on the current status of waterfowl and develop 2004-05 migratory game bird regulations recommendations for regular waterfowl seasons and other species and seasons not previously discussed at the early-season meetings. In addition, the Committee will develop recommendations for the 2005 spring/summer migratory bird subsistence season in Alaska.
In accordance with Departmental policy, these meetings are open to public observation. You may submit written comments to the Service on the matters discussed.
Announcement of Flyway Council Meetings
Service representatives will be present at the individual meetings of the four Flyway Councils this July. Although agendas are not yet available, these meetings usually commence at 8 a.m. on the days indicated.
Atlantic Flyway Council: July 22-23, Sheraton Dover Hotel, Dover, Delaware.
Mississippi Flyway Council: July 24-25, Radisson Hotel, Duluth, Minnesota.
Central Flyway Council: July 22-23, Radisson Hotel and Suites, Austin, Texas.
Pacific Flyway Council: July 23, Sun Valley Lodge, Sun Valley, Idaho.
Review of Public Comments
This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the March 22, 2004, Federal Register. We have included only those recommendations requiring either new proposals or substantial modification of the preliminary proposals. This supplement does not include recommendations that simply support or oppose preliminary proposals and provide no recommended alternatives. We will consider these recommendations later in the regulations-development process. We will publish responses to all proposals and written comments when we develop final frameworks. In addition, this supplemental rulemaking contains the regulatory alternatives for the 2004-05 duck hunting seasons. We have included all Flyway Council recommendations received relating to the development of these alternatives.
We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items identified in the March 22, 2004, proposed rule. Only those categories requiring your attention or for which we received Flyway Council recommendations are discussed below.
Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy, (B) Regulatory Alternatives, including specification of framework dates, season length, and bag limits, (C) Zones and Split Seasons, and (D) Special Seasons/Species Management. Start Printed Page 32419
A. General Harvest Strategy
Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended limiting regulation changes to one step annually.
Service Response: We appreciate the continuing desire of the Mississippi Flyway Council to limit changes in annual regulations to one step. This constraint is expected to significantly reduce temporal variability in hunting regulations, as well as lower the prospect of closed hunting seasons. These benefits are expected to accrue with little or no impact to the size of the mallard population or harvest. However, the Central and Pacific Flyway Councils are on record as opposing the “one-step” constraint, principally because it would reduce the expected frequency of “liberal” seasons. We believe a consensus among the Flyway Councils regarding implementation of a constraint that would affect all Flyways is desirable. Currently, a task force of the International Association of Fish and Wildlife Agencies (http://www.iafwa.org/Attachments/ IAFWA%20AHM% 20TF%20Status%20Report% 209-12-03.pdf) is reviewing this and other strategic aspects of the adaptive-harvest management protocol and is expected to make its recommendations prior to the 2005 hunting season. We may be willing to reconsider our position on the one-step constraint in light of those recommendations and their acceptability to the Flyway Councils.
B. Regulatory Alternatives
Council Recommendations: The Atlantic and Pacific Flyway Councils and the Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that regulatory alternatives for duck-hunting seasons remain the same as those used in 2003.
The Central Flyway Council recommended that if the status of pintails and canvasbacks results in prescriptions for seasons-within-seasons or closed seasons for these species, the Service adopt regulatory alternatives that are the same as those used in 2003, accounting for other Central Flyway Council recommended modifications to the pintail and canvasback harvest strategies (see D. Special Seasons/Species Management sections on iv. Canvasbacks and v. Pintails). If season-long harvest of pintails and canvasbacks is permitted for the 2004-2005 duck season, the Council recommended the adoption of duck hunting frameworks for the Central Flyway that provides for a “Hunters Choice Bag Limit” with the following modifications to duck regulations packages for the Central Flyway:
Within the “liberal” and “moderate” regulatory alternatives, the daily bag limit would be 5 ducks, with species and sex restrictions as follows: scaup—3; redhead and wood duck—2; only 1 duck from the following group—hen mallard, mottled duck, pintail, canvasback. Within the “restrictive” regulatory alternative, the daily bag limit would be 3 ducks, with species and sex restrictions as follows: redhead and wood duck—2; only 1 duck from the following group—hen mallard, mottled duck, pintail, canvasback. The possession limit in all alternatives would be twice the daily bag limit.
The Council also recommended the cooperative development, by March 2005, of an evaluation plan to assess the effectiveness of this approach in reducing harvests of pintails, mottled ducks, and canvasbacks. This plan would be implemented as an experimental season for a period of 5 years, beginning with the 2005-2006 hunting season.
Service Response: With regard to the “Hunters Choice Bag Limit,” we believe that it is a concept that warrants further exploration. In particular, we are interested in: (a) Seeing additional details concerning the predicted effects on duck harvests and how those effects would be evaluated; (b) hearing whether the other three Flyways believe that the concept is desirable and practicable; and (c) understanding how the concept fits within larger strategic considerations for multiple-species management. We intend to work with Flyway Councils and the task force of the International Association of Fish and Wildlife Agencies over the next year to address these issues.
After considering all recommendations, we have concluded that it would be premature at this time to modify the regulatory alternatives for adaptive harvest management. Therefore, all aspects of the 2004 regulatory alternatives will remain as proposed in the March 22 Federal Register.
We will respond to specific aspects of the pintail and canvasback harvest strategies in supplemental Federal Register documents.
D. Special Seasons/Species Management
i. September Teal Seasons
Council Recommendations: The Central Flyway Council recommended that the Service change the status of the Nebraska September teal season from experimental to operational beginning with the 2004-05 hunting season. Criteria for Nebraska's September teal season would be the same as for other non-production Central Flyway states and confined to that area opened to teal hunting during the experimental phase. The Council believes that pre-sunrise shooting hours are justified given results from evaluation of non-target attempt rates.
Council Recommendations: The Atlantic Flyway Council and the Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended modifying the current Canvasback Harvest Strategy to allow partial seasons within the regular duck season. The harvest management strategy would include 3 levels: closed, restrictive season length, and full season.
The Central Flyway Council recommended managing canvasbacks with the “Hunters Choice Bag Limit” (aggregate daily bag limit of 1 hen mallard, mottled duck, pintail, or canvasback). The Council further recommends that until the “Hunter Choice Bag Limit” becomes available the current strategy should be modified to include three levels of harvest opportunity: full, closed, and partial seasons. The partial season would consist of the restrictive season length (39 days in the Central Flyway).
The Pacific Flyway Council recommended modifying the current canvasback harvest management strategy to allow partial canvasback seasons within regular duck season frameworks. The harvest management strategy would include four levels for the Pacific Flyway: Liberal-107 days, Moderate-86 days, Restrictive-60 days, and Closed seasons. The Council also recommended that the strategy include a statement specifying that Alaska's season will maintain a fixed restriction of 1 canvasback daily in lieu of the annual prescriptions from the strategy.
Council Recommendations: The Atlantic Flyway Council recommended modifying the Interim Strategy for Northern Pintail Harvest Management to allow partial seasons within the regular duck season. The Council recommended using partial seasons to allow hunting opportunity for this species when (1) a full season is predicted to return a breeding population below 1.5 million (the threshold for season closure) and (2) when a partial season is expected to return a breeding population at or above 1.5 million.
The Upper- and Lower-Region Regulations Committees of the Start Printed Page 32420Mississippi Flyway Council recommended that the current interim pintail harvest management strategy be modified to allow partial seasons within the regular duck hunting season. The harvest management strategy would include 3 levels: closed, restrictive season length, and full season.
The Central Flyway Council recommended that the interim pintail harvest strategy be revised as follows:
In the Central Flyway, pintails will be included in a “Hunters Choice” daily bag limit (hen mallard, or mottled duck, or pintail, or canvasback—daily bag of 1). When the interim pintail harvest strategy model projections allow for a daily bag of ≥2, pintails will be removed from the 1-bird aggregate bag and the prescribed daily bag limit will be selected.
If this recommendation is not approved, the Council recommended the following modification to the existing harvest strategy:
When the May Breeding Population Survey in the traditional survey areas is below 1.5 million or the projected fall flight is predicted to be below 2 million (as calculated by the models in the interim strategy), adopt the Restrictive AHM package season length (39 days in the Central Flyway) with a daily bag limit of 1, if these regulations are projected to produce harvest at levels that would provide for the 6% annual growth identified as an objective in the strategy. If the Restrictive package regulations are expected to provide for <6% population growth, the season on pintails will be closed.
The Pacific Flyway Council recommended maintaining the Interim Northern Pintail Harvest Strategy as originally adopted by the Service.
4. Canada Geese
A. Special Seasons
Council Recommendations: The Atlantic Flyway Council recommended that Connecticut's September goose season framework dates of 1 September to 25 September become operational.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that Michigan be granted operational status for the September 1-10 early Canada goose season with a 5-bird daily limit within Huron, Tuscola, and Saginaw Counties.
The Central Flyway Council recommended allowing a 3-year experimental late September Canada goose season in eastern Nebraska. The Council also recommended that South Dakota's 2000-02 3-year Experimental Late-September Canada Goose Hunting Season (September 16-30) become operational in 20 eastern South Dakota counties beginning with the September 2004 hunting season.
The Pacific Flyway Council recommended expanding the September season in Wyoming to include the entire Pacific Flyway portion of Wyoming, reducing the daily bag limit from 3 to 2, and eliminating the quota on the number of geese harvested.
B. Regular Seasons
Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the framework opening date for all species of geese for the regular goose seasons be September 16 in 2004 and future years. If this recommendation is not approved, the Council recommended that the framework opening date for all species of geese for the regular goose seasons in Michigan and Wisconsin be September 16, 2004.
9. Sandhill Cranes
Council Recommendations: The Central Flyway Council recommended using the 2004 Rocky Mountain Population sandhill crane harvest allocation of 656 birds as proposed in the allocation formula using the 2001-2003 three year running average.
The Central and Pacific Flyway Councils recommended that Colorado be allowed to establish a season on Rocky Mountain sandhill cranes in the San Luis Valley (Saguache, Rio Grande, Alamosa, Conejos, and Costilla Counties).
16. Mourning Doves
Council Recommendations: The Pacific Flyway Council recommended that the daily bag limit in Utah be changed from 10 mourning doves to 10 mourning and white-winged doves in the aggregate.
Council Recommendations: The Pacific Flyway Council recommends that the tundra swan season in Unit 17 become operational.
Public Comment Invited
The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. We intend that adopted final rules be as responsive as possible to all concerned interests and, therefore, seek the comments and suggestions of the public, other concerned governmental agencies, nongovernmental organizations, and other private interests on these proposals. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations to the address indicated under the caption ADDRESSES.
Special circumstances involved in the establishment of these regulations limit the amount of time that we can allow for public comment. Specifically, two considerations compress the time in which the rulemaking process must operate: (1) the need to establish final rules at a point early enough in the summer to allow affected State agencies to appropriately adjust their licensing and regulatory mechanisms; and (2) the unavailability, before mid-June, of specific, reliable data on this year's status of some waterfowl and migratory shore and upland game bird populations. Therefore, we believe that to allow comment periods past the dates specified is contrary to the public interest.
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.
You may inspect comments received on the proposed annual regulations during normal business hours at the Service's 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.
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the Federal Register on June 16, 1988 (53 FR 22582). We published our Record of Decision on August 18, 1988 (53 FR 31341). In addition, an August 1985 environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian Reservations and Ceded Lands” is available from the address indicated under the caption ADDRESSES.
In a proposed rule published in the April 30, 2001, Federal Register (66 FR 21298), we expressed our intent to begin the process of developing a new Supplemental Environmental Impact Statement for the migratory bird hunting Start Printed Page 32421program. We plan to begin the public scoping process in 2005.
Endangered Species Act Consideration
Prior to issuance of the 2004-05 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species. Consultations under section 7 of this Act may cause us to change proposals in this and future supplemental proposed rulemaking documents.
Executive Order 12866
The migratory bird hunting regulations are economically significant and were reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. As such, a cost/benefit analysis was initially prepared in 1981. This analysis was subsequently revised annually from 1990-96, and then updated in 1998. We have updated again this year. It is further discussed below under the heading Regulatory Flexibility Act. Results from the 2004 analysis indicate that the expected welfare benefit of the annual migratory bird hunting frameworks is on the order of $734 million to $1.064 billion, 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: Exsec@ios.doi.gov.
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 (PRA). There are no new information collections in this proposed rule that would require OMB approval under the PRA. OMB has approved the information collection requirements of the surveys associated with the Migratory Bird Harvest Information Program and assigned clearance number 1018-0015 (expires 10/31/2004). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Sandhill Crane Harvest Survey and assigned clearance number 1018-0023 (expires 10/31/2004). The information from this survey is used to estimate the magnitude and the geographical and temporal distribution of the harvest, and the portion it constitutes of the total population. 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
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 Start Printed Page 32422energy action and no Statement of Energy Effects is required.
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.Start List of Subjects
List of Subjects in 50 CFR Part 20End List of Subjects Start Signature
Dated: May 28, 2004.
Assistant Secretary for Fish and Wildlife and Parks.
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