MIGRATORY BIRD HUNTING; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 1997-98 Early Season

Federal RegisterSep 2, 1997

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AE14

MIGRATORY BIRD HUNTING; Migratory Bird Hunting Regulations on

Certain Federal Indian Reservations and Ceded Lands for the 1997-98

Early Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule prescribes special early season migratory bird

hunting regulations for certain tribes on Federal Indian reservations,

off-reservation trust lands and ceded lands. This responds to tribal

requests for U.S. Fish and Wildlife Service (hereinafter Service)

recognition of their authority to regulate hunting under established

guidelines. This rule allows the establishment of season bag limits

and, thus, harvest at levels compatible with populations and habitat

conditions.

DATE: This rule takes effect on September 1, 1997.

ADDRESSES: The public may inspect comments received, if any, on the

proposed special hunting regulations and tribal proposals during normal

business hours in Room 634, Arlington Square Building, 4401 N. Fairfax

Drive, Arlington, Virginia. The public should send communications

regarding the documents to: Director (FWS/MBMO), U.S. Fish and Wildlife

Service, ms 634--ARLSQ, 1849 C Street, NW., Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, Office of Migratory Bird

Management, U.S. Fish and Wildlife Service, (703/358-1714).

SUPPLEMENTARY INFORMATION: The Migratory Bird Treaty Act of July 3,

1918 (40 Stat. 755; 16 U.S.C. 703 et seq.), authorizes and directs the

Secretary of the Department of the Interior, having due regard for the

zones of temperature and for the distribution, abundance, economic

value, breeding habits, and times and lines of flight of migratory game

birds, to determine when, to what extent, and by what means such birds

or any part, nest or egg thereof may be taken, hunted, captured,

killed, possessed, sold, purchased, shipped, carried, exported or

transported.

In the August 11, 1997, Federal Register (62 FR 43042), the Service

proposed special migratory bird hunting regulations for the 1997-98

hunting season for certain Indian tribes, under the guidelines

described in the June 4, 1985, Federal Register (50 FR 23467). The

guidelines respond to tribal requests for Service recognition of their

reserved hunting rights, and for some tribes, recognition of their

authority to regulate hunting by both tribal members and nonmembers on

their reservations. The guidelines include possibilities for:

(1) on-reservation hunting by both tribal members and nonmembers,

with hunting by nontribal members on some reservations to take place

within Federal frameworks but on dates different from those selected by

the surrounding State(s);

(2) on-reservation hunting by tribal members only, outside of usual

Federal frameworks for season dates and length, and for daily bag and

possession limits; and

(3) off-reservation hunting by tribal members on ceded lands,

outside of usual framework dates and season length, with some added

flexibility in daily bag and possession limits.

In all cases, the regulations established under the guidelines must

be consistent with the March 10 - September 1 closed season mandated by

the 1916 Migratory Bird Treaty with Canada.

In the March 13, 1997, Federal Register (62 FR 2054), the Service

requested that tribes desiring special hunting regulations in the 1997-

98 hunting season submit a proposal including details on:

(1) requested season dates and other regulations to be observed;

(2) harvest anticipated under the requested regulations;

(3) methods that will be employed to measure or monitor harvest;

(4) steps that will be taken to limit level of harvest, where it

could be shown that failure to limit such harvest would impact

seriously on the migratory bird resource; and

(5) tribal capabilities to establish and enforce migratory bird

hunting regulations.

No action is required if a tribe wishes to observe the hunting

regulations established by the State(s) in which an Indian reservation

is located. The Service has successfully used the guidelines since the

1985-86 hunting season. The Service finalized the guidelines beginning

with the 1988-89 hunting season (August 18, 1988, Federal Register [53

FR 31612]).

Although the proposed rule included generalized regulations for

both early- and late-season hunting, this rulemaking addresses only the

early-season proposals. Late-season hunting will be addressed in late-

September. As a general rule, early seasons begin during September each

year and have a primary emphasis on such species as mourning and white-

winged dove. Late seasons begin about October 1 or later each year and

have a primary emphasis on waterfowl.

Comments and Issues Concerning Tribal Proposals

For the 1997-98 migratory bird hunting season, the Service proposed

regulations for 20 tribes and/or Indian groups that followed the 1985

guidelines and were considered appropriate for final rulemaking. Some

of the proposals submitted by the tribes had both early- and late-

season elements. However, as noted earlier, only those with early-

season proposals are included in this final rulemaking; 12 tribes have

proposals with early seasons. Comments and revised proposals received

to date are addressed in the following section. The comment period for

the proposed rule, published on August 11, 1997, closed on August 21,

1997. Because of the necessary brief comment period, the Service will

respond to any comments received on the proposed rule and/or these

early-season regulations not responded to herein in the September late-

season final rule.

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 EPA on June 9, 1988. The Service published a Notice

of Availability in the June 16, 1988, Federal Register (53 FR 22582).

The Service published its Record of Decision on August 18, 1988 (53 FR

31341). Copies of these documents are available from the Service at the

address indicated under the caption ADDRESSES.

Endangered Species Act Consideration

As in the past, the Service designs hunting regulations to remove

or alleviate chances of conflict between migratory game bird hunting

seasons and the protection and conservation of endangered and

threatened species. Consultations were conducted to ensure that actions

resulting from these regulatory proposals will not likely jeopardize

the continued existence of endangered or threatened species or result

in the destruction or adverse modification of their critical habitat.

Findings from these consultations are included in a biological opinion

and may have caused modification of some regulatory measures previously

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proposed. The final frameworks reflect any modifications. The Service's

biological opinions resulting from its Section 7 consultation are

public documents available for public inspection in the Service's

Division of Endangered Species and MBMO, at the address indicated under

the caption ADDRESSES.

Executive Order (E.O.) 12866

Collectively, the rules covering the overall frameworks for

migratory bird hunting are economically significant and are reviewed by

the Office of Management and Budget (OMB) under E.O. 12866. This rule

is a small portion of the overall migratory bird hunting frameworks and

was not individually submitted and reviewed by the Office of Management

and Budget (OMB) under E.O. 12866.

Congressional Review

In accordance with Section 251 of the Small Business Regulatory

Enforcement Fairness Act of 1996 (5 U.S.C. 8), this rule has been

submitted to Congress and has been declared major. Because this rule

establishes hunting seasons, this rule qualifies for an exemption under

5 U.S.C. 808(1); therefore, the Department determines that this rule

shall take effect immediately.

Regulatory Flexibility Act

Overall, migratory bird hunting regulations have a significant

economic impact on a substantial number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601 et seq). In the March 13,

1997, Federal Register, the Service reported measures it took to comply

with requirements of the Act. One measure was to prepare a Small Entity

Flexibility Analysis (Analysis) in 1996 documenting the significant

beneficial economic effect on a substantial number of small entities.

The Analysis estimated that migratory bird hunters would spend between

$254 and $592 million at small businesses in 1996. Copies of the

Analysis are available upon request from the Office of Migratory Bird

Management.

Paperwork Reduction Act

The Department examined these regulations under the Paperwork

Reduction Act of 1995 and found no information collection requirements.

Regulations Promulgation

The rulemaking process for migratory game bird hunting must, by its

nature, operate under severe time constraints. However, the Service

intends that the public be given the greatest possible opportunity to

comment on the regulations. Thus, when the preliminary proposed

rulemaking was published, the Service established what it believed were

the longest periods possible for public comment. In doing this, the

Service recognized that when the comment period closed, time would be

of the essence. That is, if there were a delay in the effective date of

these regulations after this final rulemaking, the tribes would have

insufficient time to communicate these seasons to their member and non-

tribal hunters and to establish and publicize the necessary regulations

and procedures to implement their decisions.

Therefore, the Service, under the authority of the Migratory Bird

Treaty Act of July 3, 1918, as amended (40 Stat. 755; 16 U.S.C. 703 et

seq.), prescribes final hunting regulations for certain tribes on

Federal Indian reservations (including off-reservation trust lands),

and ceded lands. The regulations specify the species to be hunted and

establish season dates, bag and possession limits, season length, and

shooting hours for migratory game birds.

The Service therefore finds that ``good cause'' exists, within the

terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and

these frameworks will, therefore, take effect immediately upon

publication.

Unfunded Mandates Reform Act

The Service has determined and certifies in compliance with the

requirements of the Unfunded Mandates 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.

Civil Justice Reform--Executive Order 12988

The Department, in promulgating this rule, has determined that

these regulations meet the applicable standards provided in Sections

3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects in 50 CFR Part 20

Exports, Hunting, Imports, Reporting and recordkeeping

requirements, Transportation, Wildlife.

Accordingly, part 20, subchapter B, chapter I of Title 50 of the

Code of Federal Regulations is amended as follows:

PART 20--[AMENDED]

1. The authority citation for part 20 is revised to read as

follows:

1. Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742 a--j.

(Editorial Note: The following hunting regulations provided for by

Sec. 20.110 of 50 CFR part 20 will not appear in the Code of Federal

Regulations because of their seasonal nature).

2. Section 20.110 is revised to read as follows:

Sec. 20.110 Seasons, limits and other regulations for certain Federal

Indian reservations, Indian Territory, and ceded lands.

(a) Colorado River Indian Tribes, Parker, Arizona (Tribal Members and

Non-tribal Hunters)

Doves

Season Dates: Open September 1, close September 15, 1997; then open

November 16, close January 15, 1998.

Daily Bag and Possession Limits: For the early season, daily bag

limit is 10 mourning or 10 white-winged doves, singly, or in the

aggregate. For the late season, the daily bag limit is 10 mourning

doves. Possession limits are twice the daily bag limits.

General Conditions: A valid Colorado River Indian Reservation

hunting permit is required for all persons 14 years and older and must

be in possession before taking any wildlife on tribal lands. Any person

transporting game birds off the Colorado River Indian Reservation must

have a valid transport declaration form. Other tribal regulations

apply, and may be obtained at the Fish and Game Office in Parker,

Arizona.

(b) Fond du Lac Band of Lake Superior Chippewa Indians, Cloquet,

Minnesota (Tribal Members Only)

Ducks

Minnesota 1854 Zone:

Season Dates: Open September 13, close November 23, 1997.

Daily Bag Limit: 20 ducks, including no more than 10 mallards; only

5 of which may be hen mallards; 4 black ducks; 4 redheads, 4 pintails

and 2 canvasbacks.

Mergansers

Minnesota 1854 Zone:

Season Dates: Open September 13, close November 23, 1997.

Daily Bag Limit: 5 mergansers, including no more than 1 hooded

merganser.

Geese

Minnesota 1854 Zone:

Season Dates: Open September 6, close November 23, 1997.

Daily Bag Limit: 10 geese.

Coots and Common Moorhens (Gallinule)

Minnesota 1854 Zone:

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Season Dates: Open September 13, close November 23, 1997.

Daily Bag Limit: 20 coots and common moorhens, singly or in the

aggregate.

Sora and Virginia Rails

Minnesota 1854 Zone:

Season Dates: Open September 6, close November 23, 1997.

Daily Bag Limit: 25 sora and Virginia rails, singly or in the

aggregate. The possession limit is 25.

Common Snipe

Minnesota 1854 Zone:

Season Dates: Open September 1, close November 23, 1997.

Daily Bag Limit: 8 snipe.

Woodcock

Minnesota 1854 Zone:

Season Dates: Open September 1, close November 23, 1997.

Daily Bag Limit: 5 woodcock.

General Conditions:

(i) While hunting waterfowl, a tribal member must carry on his/her

person a valid tribal waterfowl hunting permit.

(ii) Except as otherwise noted, tribal members will be required to

comply with tribal codes that will be no less restrictive than the

provisions of Chapter 10 of the Model Off--Reservation Code. This Model

Code was the subject of the stipulation in Lac Courte Oreilles v. State

of Wisconsin regarding migratory bird hunting. Except as modified

herein, these amended regulations parallel Federal requirements, 50 CFR

Part 20, and shooting hour regulations in 50 CFR Part 20, subpart K, as

to hunting methods, transportation, sale, exportation and other

conditions generally applicable to migratory bird hunting.

(iii) Tribal members in each zone will comply with State

regulations providing for closed and restricted waterfowl hunting

areas.

(iv) Minnesota--Duck Blinds and Decoys. Tribal members hunting in

Minnesota will comply with tribal codes that contain provisions

parallel to applicable State statutes.

(v) Possession limits for each species are double the daily bag

limit, except on the opening day of the season, when the possession

limit equals the daily bag limit, unless otherwise specified.

(vi) Possession limits are applicable only to transportation and do

not include birds which are cleaned, dressed, and at a member's primary

residence. For purposes of enforcing bag and possession limits, all

migratory birds in the possession or custody of tribal members on ceded

lands will be considered to have been taken on those lands unless

tagged by a tribal or State conservation warden as having been taken

on-reservation. In Wisconsin, such tagging will comply with applicable

State statutes. All migratory birds which fall on reservation lands

will not count as part of any off-reservation bag or possession limit.

Michigan (Tribal Members Only)

Ducks

Michigan, 1836 Treaty Zone:

Season Dates: Open September 20, 1997, close January 20, 1998.

Daily Bag Limit: 10 ducks, which may include no more than 1

pintail, 1 canvasback, 1 black duck, 1 hooded merganser, 2 wood ducks,

2 redheads, and 5 mallards (only 2 hen mallards).

Canada Geese

Michigan, 1836 Treaty Zone:

Season Dates: Open September 1, close November 30, 1997, and open

January 1, 1998, close February 8, 1998.

Daily Bag Limit: 5 geese.

General Conditions: A valid Grand Traverse Band Tribal license is

required for all persons 12 years and older and must be in possession

before taking any wildlife. All other basic regulations contained in 50

CFR part 20 are valid. Other tribal regulations apply, and may be

obtained at the tribal office in Suttons Bay, Michigan.

Sora Rails

Michigan 1836 Treaty Zone:

Season Dates: Open September 1, close November 14, 1997.

Daily Bag Limit: 5 rails.

Common Snipe

Michigan 1836 Treaty Zone:

Season Dates: Open September 1, close November 14, 1997.

Daily Bag Limit: 5 snipe.

Woodcock

Michigan 1836 Treaty Zone:

Season Dates: Open September 1, close November 14, 1997.

Daily Bag Limit: 5 woodcock.

(d) Great Lakes Indian Fish and Wildlife Commission, Odanah, Wisconsin

(Tribal Members Only)

Ducks

Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 20 ducks, including no more than 10 mallards; only

5 of which may be hen mallards; 4 black ducks; 4 redheads, 4 pintails

and 2 canvasbacks.

Michigan 1836 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 10 ducks, including no more than 5 mallards; only

2 of which may be hen mallards; 2 black ducks; 2 redheads, 2 pintails

and 1 canvasback.

Mergansers

Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 5 mergansers.

Michigan 1836 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 5 mergansers, including no more than 1 hooded

merganser.

Canada Geese

Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 10 geese, minus the number of blue, snow or white-

fronted geese taken.

Michigan 1836 and 1842 Treaty Zone:

Season Dates: Open September 15, close December 1, 1997. In

addition, the same dates and season length permitted the State of

Michigan during the Special September Canada goose Season.

Daily Bag Limit: 10 Canada geese, minus the number of blue, snow or

white-fronted geese taken. In addition, the same bag limit permitted

the State of Michigan during the Special September Canada goose Season.

Geese: Blue, Snow and White-fronted Geese

A. Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 10 geese, minus the number of Canada geese taken.

B. Michigan 1836 and 1842 Treaty Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 10 geese, minus the number of Canada geese taken.

[[Page 46423]]

Other Migratory Birds: Coots and Common Moorhens (Common Gallinules)

A. Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 20 coots and common moorhens (common gallinules),

singly or in the aggregate.

B. Michigan 1836 and 1842 Treaty Zones:

Season Dates: Open September 15, December 1, 1997.

Daily Bag Limit: 20 coots and common moorhens (common gallinules),

singly or in the aggregate.

Sora and Virginia Rails

A. Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 25 sora and Virginia rails singly, or in the

aggregate.

B. Michigan 1836 and 1842 Treaty Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 25 sora and Virginia rails singly, or in the

aggregate.

Common Snipe

A. Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 8 common snipe.

B. Michigan 1836 and 1842 Treaty Zones:

Season Dates: Open September 15, close December 1, 1997.

Daily Bag Limit: 8 common snipe.

Woodcock

A. Wisconsin and Minnesota 1837 and 1842 Zones:

Season Dates: Open September 2, close November 30, 1997.

Daily Bag Limit: 5 woodcock.

B. Michigan 1836 and 1842 Treaty Zones:

Season Dates: Open September 1, close December 1, 1997.

Daily Bag Limit: 5 woodcock.

General Conditions:

(i) While hunting waterfowl, a tribal member must carry on his/her

person a valid tribal waterfowl hunting permit.

(ii) Except as otherwise noted, tribal members will be required to

comply with tribal codes that will be no less restrictive than the

provisions of Chapter 10 of the Model Off-Reservation Code. This Model

Code was the subject of the stipulation in Lac Courte Oreilles v. State

of Wisconsin regarding migratory bird hunting. Except as modified

herein, these amended regulations parallel Federal requirements, 50 CFR

Part 20, and shooting hour regulations in 50 CFR Part 20, subpart K, as

to hunting methods, transportation, sale, exportation and other

conditions generally applicable to migratory bird hunting.

(iii) Tribal members in each zone will comply with tribal

regulations providing for closed and restricted waterfowl hunting

areas. These regulations generally incorporate the same restrictions

contained in parallel state regulations.

(iv) Minnesota and Michigan--Duck Blinds and Decoys. Tribal members

hunting in Minnesota will comply with tribal codes that contain

provisions parallel to applicable State statutes. Tribal members

hunting in Michigan will comply with tribal codes that contain

provisions parallel to Michigan law regarding duck blinds and decoys.