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Proposed Rule

Migratory Bird Hunting; Supplemental Proposals for Migratory Game Bird Hunting Regulations for the 2010-11 Hunting Season; Notice of Meetings

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Fish and Wildlife Service, Interior.


Proposed rule; supplemental.


We, the U.S. Fish and Wildlife Service (Service), proposed in an earlier document to establish annual hunting regulations for certain migratory game birds for the 2010-11 hunting season. This supplement to the proposed rule provides the regulatory schedule, announces the Service Migratory Bird Regulations Committee and Flyway Council meetings, and provides Flyway Council recommendations resulting from their March meetings.


You must submit comments on the proposed regulatory alternatives for the 2010-11 duck hunting seasons by June 25, 2010. Following subsequent Federal Register documents, 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.

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, 2010, and for late-season migratory bird hunting and the 2011 spring/summer migratory bird subsistence seasons in Alaska on July 28 and 29, 2010. All meetings will commence at approximately 8:30 a.m.


You may submit comments on the proposals by one of the following methods:

  • Federal eRulemaking Portal: Follow the instructions for submitting comments on docket number FWS-R9-MB-2010-0040.
  • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R9-NB-2010-0040; 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-mail or faxes. We will post all comments on http://Start Printed Page This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

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 Dr., Arlington, VA.

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Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW, Washington, DC 20240; (703) 358-1714.

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Regulations Schedule for 2010

On May 13, 2010, we published in the Federal Register (75 FR 27144) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and addressed 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 16, 2010, and for late seasons on or about September 15, 2010.

Service Migratory Bird Regulations Committee Meetings

The Service Migratory Bird Regulations Committee will meet June 23-24, 2010, to review information on the current status of migratory shore and upland game birds and develop 2010-11 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 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, 2010, meetings, the Committee will review information on the current status of waterfowl and develop 2010-11 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 2011 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, Hilton Wilmington, Riverside, Wilmington, NC.

Mississippi Flyway Council: July 23-24, Radisson Admiral Semmes Hotel, Mobile, AL.

Central Flyway Council: July 21-23, Embassy Suites, Norman, OK.

Pacific Flyway Council: July 23, John Ascuaga's Nugget, Reno, NV.

Review of Public Comments

This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the May 13, 2010, Federal Register. We have included only those recommendations requiring either new proposals or substantial modification of the preliminary proposals and do not include recommendations that simply support or oppose preliminary proposals and provide no recommended alternatives. Our responses to some Flyway Council recommendations, but not others, are merely a clarification aid to the reader on the overall regulatory process, not a definitive response to the issue. We will publish responses to all proposals and written comments when we develop final frameworks.

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 May 13 proposed rule. Only those categories requiring your attention or for which we received Flyway Council recommendations are discussed below.

1. Ducks

Duck harvest management categories 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.

A. General Harvest Strategy

Council Recommendations: 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: As we stated in the May 13 Federal Register, the final Adaptive Harvest Management protocol for the 2010-11 season will be detailed in the early-season proposed rule, which will be published in mid-July.

B. Regulatory Alternatives

Council Recommendations: The Mississippi and Central Flyway Councils recommended that regulatory alternatives for duck hunting seasons remain the same as those used in 2009.

Service Response: As we stated in the May 13 Federal Register, the final regulatory alternatives for the 2010-11 season will be detailed in the early-season proposed rule, which will be published in mid-July.

C. Zones and Split Seasons

Council Recommendations: The Upper-Region Regulations Committee of the Mississippi Flyway Council and the Central and Pacific Flyway Councils recommended that the Service allow 3 zones, with 2-way splits in each zone, and 4 zones with no splits as additional zone/split-season options for duck seasons during 2011-15. In addition, it is recommended that States with existing grandfathered status be allowed to retain that status.

D. Special Seasons/Species Management

i. Special Teal Seasons

Council Recommendations: The Upper-Region Regulations Committee of the Mississippi Flyway Council recommended that the Service explore options for providing production States an opportunity to harvest teal outside the regular duck season frameworks as part of the teal season assessment that is currently being conducted.

vi. Pintails

Council Recommendations: The Atlantic Flyway Council recommended adoption of a derived Northern Pintail Harvest Strategy and provided the following pintail harvest objectives for the Atlantic Flyway and for individual Atlantic Flyway States: (1) The harvest objective for northern pintails should be Maximum Sustained Yield (MSY); (2) constrain closed seasons to breeding populations below 1.75 million birds; Start Printed Page 32874and (3) regulatory alternatives should include a closed season, a liberal season with a 1-bird daily bag limit, and a liberal season with a 2-bird daily bag limit. These objectives were captured in Scenario #39 in the Service's draft Northern Pintail Harvest Strategy (Draft Strategy) (available at​migratorybirds/​NewsPublicationsReports.html).

The Mississippi Flyway Council recommended use of the Draft Strategy's harvest management Scenarios #39, #29, or #39(b) to develop an optimal harvest policy. The Council remains concerned regarding the following: (1) The Service does not provide performance metrics for harvest management Scenarios #39 and #39(b) with no closed seasons until the pintail BPOP falls to 1.0 million birds; (2) the method for integrating the preferred alternatives from other Flyways into a single harvest policy is not defined and reviewed; (3) additional weighting exercises that address more fundamental harvest objectives, such as simplified regulations, maintaining/expanding hunting opportunity for pintails, and maximizing harvest, have not yet been conducted; and (4) there is uncertainty about the consistency of the harvest strategy for pintails with the fundamental objectives addressed through the North American Waterfowl Management Plan (NAWMP) revision.

The Central Flyway Council recommended continued discussions on the potential structure and use of a derived harvest strategy for pintails. They recommend a one-year implementation of Scenario #39 in the Draft Strategy until a number of issues are resolved.

The Pacific Flyway Council recommended that harvest management for pintails be based on a derived strategy that: (1) uses MSY as a harvest objective; (2) constrains closed seasons to breeding populations below 1.75 million birds; and (3) eliminates partial seasons (shorter pintail seasons within a longer general duck season). Specifically, the Council recommended Scenario #39 as its preferred strategy for regulations in 2010-11 and further review for the next year. The Council supported a derived strategy that does not have an explicit allocation of harvest among the flyways. The Council also recommended that Alaska's exclusion from the pintail harvest management process be continued.

The Council further recommended the use of historic proportions of harvest to weight the inputs from the flyways should that input differ in the future. They noted that we proposed to consider inputs from all flyways equally, but the absolute and relative abundance of pintail is highest in the Pacific Flyway, and regulatory alternatives have a different effect there. They continued to support more work on alternative underlying population models because they do not believe that the model set in the strategy includes a model that addresses the effect of harvest regulation changes on pintail survival rates in a manner similar to ultra-structural models. The Council has recommended in the past that we investigate the usefulness of sex-specific regulations for pintails as a way to increase hunting opportunity on male pintails.

Lastly, the Council recognized that all of the analyzed strategies predict the perpetuation of the pintail breeding population between 2.78 and 3.57 million pintails, but that the differences among the strategies center largely on effects on the hunting public. These effects include the frequency of closed and partial seasons, larger daily bag limits, and annual regulation changes. The Council has limited information on hunter preferences about the trade-offs inherent in the analyzed derived strategies.

Service Response: We greatly appreciate the time and attention that all four Flyway Councils have devoted to review and consideration of the various alternatives for implementing a derived pintail harvest strategy. We note that all four flyways have recommended the same alternative derived strategy be implemented this year. Therefore, we propose adoption of alternative 39 as described and evaluated in the Service's report “Proposal for a Derived and Adaptive Harvest Strategy for Northern Pintails (January 2010)” and incorporated in a “Proposed Northern Pintail Harvest Strategy (May 2010)” (both available at​migratorybirds/​NewsPublicationsReports.html) for the 2010-11 hunting season. Numerous variations of the final proposed harvest strategy were evaluated and deliberated by the Service and Flyway Councils that differed in their expression of management objectives and regulatory alternatives, but that shared a common scientific underpinning. Alternative 39 was deemed to best balance tradeoffs among fundamental objectives identified for pintail harvest management. We note that additional technical work became available to the Councils and their technical committees very late in the process.

Over the coming year, we will review this choice of alternative 39 based on one year of experience, as well as input received from the Councils, public, and Service technical staff, to determine if a different alternative will better insure the long-term conservation of northern pintails and meet the interests of the hunting public. Changes, if warranted, would be implemented for the 2011-12 regulations cycle.

4. Canada Geese

A. Special Seasons

Council Recommendations: The Mississippi Flyway Council recommended that the closing date for the September Canada goose season in Minnesota be September 22 Statewide.

The Central Flyway Council recommended that we increase the daily bag limit framework from 5 to 8 for the Central Flyway States of South Dakota, Nebraska, Kansas and Oklahoma during the Special Early Canada Goose hunting season.

B. Regular Seasons

Council Recommendations: The Mississippi Flyway Council recommended that the framework opening date for all species of geese for the regular goose seasons in Michigan and Wisconsin be September 16, 2010.

9. Sandhill Cranes

Council Recommendations: The Mississippi, Central, and Pacific Flyway Councils recommended a sandhill crane hunting season for mid-continent sandhill cranes in northwest Minnesota in 2010, following guidelines outlined in the 2006 Cooperative Management Plan for mid-continent sandhill cranes.

The Central and Pacific Flyway Councils recommend using the 2010 Rocky Mountain Population (RMP) sandhill crane harvest allocation of 1,979 birds as proposed in the allocation formula using the 2007-09 3-year running average.

The Pacific Flyway Council recommended initiating a limited hunt for Lower Colorado River Valley (LCRV) Sandhill Cranes in Arizona with a goal of a limited harvest of 9 cranes during the 2010-11 hunting season. Arizona will issue permits to hunters and require mandatory check-in of all harvested cranes. The Service previously approved the hunt in 2007.

14. Woodcock

Council Recommendations: The Atlantic and Mississippi Flyway Councils recommended adoption of the Interim American Woodcock Harvest Strategy (available at​migratorybirds/​NewsPublicationsReports.html) for implementation in the 2011-12 hunting season.

The Central Flyway Council recommended that the interim harvest Start Printed Page 32875strategy outlined in the Draft American Woodcock Harvest Strategy be implemented for a period of 5 years (2011-15).

16. Mourning Doves

Council Recommendations: The Atlantic and Mississippi Flyway Councils recommended use of the “moderate” season framework for States within the Eastern Management Unit population of mourning doves resulting in a 70-day season and 15-bird daily bag limit. The daily bag limit could be composed of mourning doves and white-winged doves, singly or in combination.

The Mississippi and Central Flyway Councils recommend the use of the standard (or “moderate”) season package of a 15-bird daily bag limit and a 70-day season for the 2010-11 mourning dove season in the States within the Central Management Unit.

The Pacific Flyway Council recommended use of the “moderate” season framework for States in the Western Management Unit (WMU) population of mourning doves, which represents no change from last year's frameworks.

Public Comments

The Department of the Interior's policy is, whenever possible, 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 promulgating final migratory game bird hunting regulations, we will consider all comments we receive. These 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 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, 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 the preambles of any final rules.

NEPA Consideration

NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),'' filed with the Environmental Protection Agency on June 9, 1988. We published notice of availability in the Federal Register on June 16, 1988 (53 FR 22582). We published our Record of Decision on August 18, 1988 (53 FR 31341). In addition, an August 1985 environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian 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​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) Issue 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 depend 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​migratorybirds/​Start Printed Page 32876NewReportsPublications/​SpecialTopics/​SpecialTopics.html#HuntingRegs or at

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​migratorybirds/​NewReportsPublications/​SpecialTopics/​SpecialTopics.html#HuntingRegs or at

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 used in formulating migratory game bird hunting regulations. 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 levels of subsistence take in Alaska, and assigned control number 1018-0124 (expires 4/30/2013).

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. We solicited 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 in the May 13, Federal Register. 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 (16 U.S.C. 703 et seq.). 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 Start Printed Page 32877developed 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.

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List of Subjects in 50 CFR Part 20

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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.

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Dated: May 28, 2010

Thomas L. Strickland,

Assistant Secretary for Fish and Wildlife and Parks.

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[FR Doc. 2010-13956 Filed 6-9-10; 8:45 am]