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 2005-06 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 2005-06 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 22 and 23, 2005, and for late-season migratory bird hunting and the 2006 spring/summer migratory bird subsistence seasons in Alaska on July 27 and 28, 2005. 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, 2005, and for proposed late-season frameworks and subsistence migratory bird seasons in Alaska by August 30, 2005.
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 2005
On April 6, 2005, we published in the Federal Register (70 FR 17574) 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, 2005, and for late seasons on or about September 15, 2005.
Service Migratory Bird Regulations Committee Meetings
The Service Migratory Bird Regulations Committee will meet June 22-23, 2005, to review information on the current status of migratory shore and upland game birds and develop 2005-06 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 27-28, 2005, meetings, the Committee will review information on the current status of waterfowl and develop 2005-06 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 2006 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 24-25, Regency and Harborside Hotels, Bar Harbor, Maine.
Mississippi Flyway Council: July 23-24, The Grand Casino, Tunica, Mississippi.
Central Flyway Council: July 21-22, Radisson Hotel and Suites, Helena, Montana.
Pacific Flyway Council: July 20, Utah Division of Wildlife Resources, 1594 W. North Temple, Salt Lake City, Utah.
Review of Public Comments
This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the April 6, 2005, 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 2005-06 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 April 6, 2005, 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 36795
A. General Harvest Strategy
Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that regulations changes be restricted to one step per year, both when restricting as well as liberalizing hunting regulations.
Service Response: Incorporation of a one-step constraint into the Adaptive Harvest Management (AHM) process was addressed by the AHM Task Force of the International Association of Fish and Wildlife Agencies (IAFWA) in its report and recommendations. This recommendation will be included in considerations of potential changes to the set of regulatory alternatives at a later time. See also our response under B. Regulatory Alternatives.
B. Regulatory Alternatives
Council Recommendations: The Atlantic Flyway Council recommended the use of the same regulatory alternatives for duck hunting seasons in 2005-06 as were used in 2004-05, except that: (1) black duck bag limits should be specified as “To be determined based on current status information”; and (2) all possession limits should be increased to four times the daily limit.
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 2004.
The Central Flyway Council recommended that the Service adopt Adaptive Harvest Management (AHM) duck regulations packages and additional species/sex restrictions for the Central Flyway in 2005-2006 that are the same as those used in the 2004-2005 season, with the following exception: for pintails and canvasbacks, regulations be implemented as described in their Hunter's Choice evaluation proposal (i.e., during 2005-06, a 39-day season length concurrent with the regular season zones and splits, one-bird daily bag limit for both species).
Service Response: On March 11, 2005 the AHM Task Force submitted a draft final report (http://migratorybirds.fws.gov/mgmt/ahm/taskforce/taskforce.htm) to the IAFWA Executive Committee concerning the future development and direction of AHM. The Task Force endeavored to develop a strategic approach that was comprehensive and integrative, that recognized the diverse perspectives and desires of stakeholders, that was consistent with resource monitoring and assessment capabilities, and that hopefully could be embraced by all four Flyways Councils. We appreciate the extensive discussion the report received at the Flyway Council meetings in Arlington, Virginia in March 2005 and look forward to continuing dialogue concerning the future strategic course for AHM.
Among the most widely debated issues now, as in the past, is the nature of the regulatory alternatives. The Task Force recommended a simpler and more conservative approach than is reflected in the regulatory alternatives used since 1997, which are essentially those proposed by the Service for the 2005-06 hunting season (April 6 Federal Register). As yet, however, no consensus has emerged among the Flyway Councils concerning modifications to the regulatory alternatives, and it seems clear that no such consensus will be achieved in time to select a regulatory alternative for the 2005-06 hunting season. Therefore, the regulatory alternatives proposed in the April 6 Federal Register will be used for the 2005-06 hunting season, with the following exception. Beginning this year, the AHM regulatory alternatives will consist only of the maximum season lengths, framework dates, and bag limits for total ducks and mallards. Restrictions for certain species within these frameworks that are not covered by existing harvest strategies, and the request from the Central Flyway Council concerning its desire to begin implementation of the “Hunters' Choice” bag-limit experiment, will be addressed during the late-season regulations process. For those species with existing harvest strategies (canvasbacks and pintails), the strategies to be used for the 2005-06 hunting season will be established during the early-season regulations process.
C. Zones and Split Seasons
Council Recommendations: The Atlantic Flyway Council recommended that the Service allow three zones, with two-way splits in each zone, as an additional option for duck season configurations in 2006-2010. Guidelines for zone-split configurations should be finalized by September 2005 so that States have adequate opportunity to consider possible changes for 2006.
The Upper-Region Regulations Committee of the Mississippi Flyway Council recommended that the Service allow three zones, with two-way splits in each zone, and four zones with no splits, as additional options for duck season configurations in 2006-2010. In addition, the Committee recommended that States with existing grandfathered status be allowed to retain that status.
D. Special Seasons/Species Management
iii. Black Ducks
Council Recommendations: The Atlantic Flyway Council requests the Service, in cooperation with the Atlantic and Mississippi Flyway Councils, develop a process to stratify black duck harvest using existing biological and harvest data to consider differential regulations among the Mississippi Flyway and appropriate regions of the Atlantic Flyway for the 2005 regulatory cycle.
Service Response: In 2003, we began working with the Atlantic Flyway Council and others to develop assessment methods that could be used to better inform black duck harvest management in the United States. Our goal is to assess the biological implications of any proposed changes to hunting regulations, as well as to complement the ongoing effort to develop an international program for the adaptive management of black duck harvests. The key components of the assessment methods would be: (1) A determination of sustainable harvest rates on a single, range-wide population of black ducks; and (2) a prediction of changes in harvest rates accompanying any regulatory proposals. The first task has largely been completed, but there have been technical obstacles in completing the second. We believe that successful completion of this technical work is a prerequisite to any effort to re-distribute the black duck harvest in the U.S.
We also wish to reiterate our obligate focus on a single, range-wide population of black ducks due to the limitations of current population monitoring programs. Moreover, the extent to which hunting regulations can be stratified to account for spatial variation in the harvest potential of black ducks is likely limited due to the mixing of birds from various breeding areas during the hunting seasons in the U.S. We are continuing to conduct technical assessment in cooperation with the Atlantic and Mississippi Flyway Councils that should help address this issue.
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 30 September become operational. The Council further recommended Start Printed Page 36796raising the possession limit of geese to four times the daily bag limit, except where currently more liberal.
The Central Flyway Council recommended that Oklahoma's Experimental September Canada Goose Hunting Season become operational for the time period beginning September 16-25, beginning with the September 2005 hunting season.
The Pacific Flyway Council recommended extending Idaho's geographically limited September season framework to a Statewide framework.
B. Regular Seasons
Council Recommendations: The Atlantic Flyway Council recommended raising the possession limit of geese to four times the daily bag limit, except where currently more liberal.
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 2005 and future years. If this recommendation is not approved, the Committees recommended that the framework opening date for all species of geese for the regular goose seasons in Michigan and Wisconsin be September 16, 2005.
5. White-Fronted Geese
Council Recommendations: The Atlantic Flyway Council recommended that the Service include white-fronted geese as part of Canada goose hunting regulation frameworks in the Atlantic Flyway to allow the legal take of this species.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the 2005-06 white-fronted goose regulations be consistent with the “base” regulations in the current White-fronted Goose Management Plan. This would result in regulations options of 72 days with two white-fronted geese per day or 86 days with one white-fronted goose per day. Their recommendation is contingent upon the same regulations being implemented in the eastern portion of the Central Flyway.
The Central Flyway Council recommended a season framework of 72 days with a daily bag limit of two white-fronted geese, or an alternative season of 86 days with a daily bag limit of one goose, in all East-tier States. States could split the season once, and the possession limit would be twice the daily bag limit. In the West-tier States, the Council recommended a season framework of 107 days with a daily bag limit of five white-fronted geese, except in the Western Goose Zone of Texas where the daily bag limit would be one white-fronted goose. States could split the season once, and the possession limit would be twice the daily bag limit.
7. Snow and Ross's (Light) Geese
Council Recommendations: The Atlantic Flyway Council recommended raising the possession limit of geese to four times the daily bag limit, except where currently more liberal.
9. Sandhill Cranes
Council Recommendations: The Central Flyway Council recommended using the 2005 Rocky Mountain Population sandhill crane harvest allocation of 906 birds as proposed in the allocation formula using the 2002-2004 three-year running average. In addition, the Council recommended no changes in the Mid-continent Population sandhill crane hunting frameworks.
16. Mourning Doves
Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that zoning remain an option for States in their management of mourning dove harvest. The Council recommends the following elements should be noted or made part of any change in zoning policy by the Service:
(1) There is no strong biological basis to establish a latitudinal line below which zoning is mandatory in the Eastern Management Unit;
(2) Use of September 20th as the earliest opening date for a South Zone has no biological basis; and
(3) Limiting the frequency that a State can select or change zoning options is supported, but the time period between changes should not exceed 5 years and States selecting zoning should be able to revert back to a non-zoning option for any remaining years left before zoning is again a regulatory option.
The Central Flyway Council recommends the following guidelines for mourning dove hunting zones and periods in the Central Management Unit (CMU):
(1) The time interval between changes in zone boundaries or periods within States in the CMU should not exceed 5 years consistent with the review schedule for duck zones and periods (i.e., 2006-2010, 2011-2015, etc);
(2) States may select two zones and three segments except Texas has the option to select three zones and two segments; and
(3) The opening date of September 20 in the South Zone in Texas with the three zone option will remain unchanged.
The Council further recommends adopting the document, “Implementation of Mourning Dove National Strategic Harvest Management Plan.” The document provides guidance for addressing priority information needs referenced in the “National Mourning Dove Strategic Harvest Management Plan” (National Plan).
17. White-Winged and White-Tipped Doves
Council Recommendations: The Central Flyway Council recommends the boundary for the White-winged Dove Area in Texas be extended to include the area south and west of Interstate Highway 37 and U.S. Highway 90 with an aggregate daily bag limit of 12 doves, no more than 3 of which may be mourning doves. All other regulations would remain unchanged.
Council Recommendations: The Pacific Flyway Council recommended that the Canvasback Harvest Strategy include a statement to the effect that, “In general, Alaska may annually select a canvasback season with limits of one daily, three in possession in lieu of annual prescriptions from this strategy. In the event that the breeding population declines to a level that indicates seasons will be closed for several years, the Service will consult with the Pacific Flyway Council to decide whether Alaska seasons should be closed.” The Council and Service should appreciate that if season closure decisions are made during the late season process, Alaska will have to implement regulation changes by emergency orders, which will conflict with widely distributed public regulations summaries produced in July.
Further, the Council recommended removal of the Canada goose closure in the Aleutian Islands (Unit 10), reduction of dark goose limits in Units 18 and 9(E) to four daily with no more than two cackling/Canada geese, and reduction in the brant season length in Unit 9(D) from 107 days to 30 days. The Council's latter two recommendations are contingent on concomitant restrictions on primary migration and wintering areas in the lower 48 states.
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 Start Printed Page 36797responsive 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 program. We plan to begin the public scoping process in 2005.
Endangered Species Act Consideration
Prior to issuance of the 2005-06 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species. Consultations under section 7 of the Act may cause us to change proposals in this and future supplemental proposed rulemaking documents.
Executive Order 12866
The migratory bird hunting regulations are economically significant and were reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. As such, a cost/benefit analysis was initially prepared in 1981. This analysis was subsequently revised annually from 1990-96, updated in 1998, and updated again in 2004. It is further discussed below under the heading Regulatory Flexibility Act. Results from the 2004 analysis indicate that the expected welfare benefit of the annual migratory bird hunting frameworks is on the order of $734 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 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 Start Printed Page 36798would 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 2/29/2008). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Sandhill Crane Harvest Survey and assigned clearance number 1018-0023 (expires 11/30/2007). The information from this survey is used to estimate the magnitude and the geographical and temporal distribution of the harvest, and the portion it constitutes of the total population. 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 energy 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: June 10, 2005.
Assistant Secretary for Fish and Wildlife and Parks.
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