Migratory Bird Hunting; Proposed 1998-1999 Migratory Game Bird Hunting Regulations (Preliminary) with Requests for Indian Tribal Seasons

SUMMARY: The U.S. Fish and Wildlife Service (hereinafter the Service)

proposes to establish annual hunting regulations for certain migratory

game birds. The Service also requests proposals from Indian tribes that

wish to establish special migratory bird hunting regulations. The

establishment of these regulations will permit the taking of the

designated species during the 1998-99 hunting season. The Service

annually prescribes outside limits (frameworks) within which States may

select hunting seasons. The Service has also employed guidelines to

establish special migratory bird hunting regulations on Federal Indian

reservations and ceded lands. These seasons provide hunting

opportunities for recreation and sustenance; aid Federal, State, and

tribal governments in the management of migratory game birds; and are

designed to permit harvests at levels compatible with migratory bird

population status and habitat conditions.

DATES: Tribes should submit proposals and related comments by June 2,

1998. The comment period for proposed early-season frameworks will end

on July 27, 1998; and for proposed late-season frameworks on September

7, 1998. The Service will hold a public hearing for early-season

frameworks on June 25, 1998, at 9 a.m. and late-season frameworks on

August 6, 1998, at 9 a.m.

ADDRESSES: The Service will hold both public hearings in the

Auditorium, Department of the Interior Building, 1849 C Street NW.,

Washington, DC. The public may submit written comments on the proposals

and notice of intention to testify at either hearing to the Chief,

Office of Migratory Bird Management, U.S. Fish and Wildlife Service,

Department of the Interior, ms 634--ARLSQ, 1849 C Street, NW.,

Washington, DC 20240. All comments received, including names and

addresses, will become part of the public record. The public may

inspect comments received during normal business hours in room 634,

Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia.

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

Bird Management, U.S. Fish and Wildlife Service, Department of the

Interior, ms 634--ARLSQ, 1849 C Street, NW., Washington, DC 20240 (703)

358-1714.

SUPPLEMENTARY INFORMATION: For administrative purposes, this document

consolidates the notice of intent and request for tribal proposals with

the preliminary proposals for the annual regulations-development

process. The Service will publish the remaining proposed and final

rulemaking documents separately. For inquiries on tribal guidelines and

proposals, please contact the following personnel.

--Region 1--Brad Bortner, U.S. Fish and Wildlife Service, 911 N.E. 11th

Avenue, Portland, Oregon 97232-4181; (503) 231-6164.

--Region 2--Jeff Haskins, U.S. Fish and Wildlife Service, P.O. Box

1306, Albuquerque, New Mexico 87103; (505) 248-7885.

--Region 3--Steve Wilds, U.S. Fish and Wildlife Service, Federal

Building, One Federal Drive, Fort Snelling, Minnesota 55111-4056; (612)

725-3737.

--Region 4--Frank Bowers, U.S. Fish and Wildlife Service, 1875 Century

Boulevard, Room 324, Atlanta, Georgia 30345; (404) 679-4000.

--Region 5--George Haas, U.S. Fish and Wildlife Service, 300 Westgate

Center Drive, Hadley, Massachusetts 01035-9589; (413) 253-8576.

--Region 6--John Cornely, U.S. Fish and Wildlife Service, P.O. Box

25486, Denver Federal Building, Denver, Colorado 80225; (303) 236-8145.

--Region 7--Robert Leedy, U.S. Fish and Wildlife Service, 1011 East

Tudor Road, Anchorage, Alaska 99503; (907) 786-3423.

Notice of Intent to Establish Open Seasons

This notice announces the intention of the Director, U.S. Fish and

Wildlife Service, to establish open hunting seasons and daily bag and

possession limits for certain designated groups or species of migratory

game birds for 1998-1999 in the contiguous United States, Alaska,

Hawaii, Puerto Rico, and the Virgin Islands, under Secs. 20.101 through

20.107, 20.109, and 20.110 of subpart K of 50 CFR part 20.

``Migratory game birds'' are those bird species so designated in

conventions between the United States and several foreign nations for

the protection and management of these birds. All other birds

designated as migratory (under 10.13 of Subpart B of 50 CFR Part 10) in

the aforementioned conventions may not be hunted. For the 1998-99

hunting season, the Service will propose regulations for certain

designated members of the avian families Anatidae (ducks, geese, and

swans); Columbidae (doves and pigeons); Gruidae (cranes); Rallidae

(rails, coots, moorhens, and gallinules); and Scolopacidae (woodcock

and snipe). These proposals are described under Proposed 1998-99

Migratory Game Bird Hunting Regulations (Preliminary) in this document.

Definitions of waterfowl flyways and mourning dove management units, as

well as a description of the data used in and the factors affecting the

regulatory process, were published in the March 14, 1990, Federal

Register (55 FR 9618).

Regulatory Schedule for 1998-1999

This is the first in a series of proposed and final rulemaking

documents for migratory game bird hunting regulations. The Service will

make proposals relating to the harvest of migratory game birds

initiated after publication of this proposed rulemaking available for

public review in supplemental proposed rulemakings published in the

Federal Register. Also, the Service will publish additional

supplemental proposals for public comment in the Federal Register as

population, habitat, harvest, and other information become available.

Because of the late dates when certain portions of these data

become available, the Service anticipates that comment periods on some

proposals will be necessarily abbreviated. Special circumstances limit

the amount of time which the Service can allow for public comment on

these regulations. Specifically, two considerations compress the time

for the rulemaking process: the need, on one hand, to establish final

rules at a time early enough in the summer to allow resource agencies

to select and publish season dates and bag limits prior to the hunting

seasons and, on the other hand, the lack of current data on the status

of most migratory game birds until later in the summer.

Because the process is strongly influenced by the times when

information is available for consideration, the overall regulations

process is divided into two segments. Early seasons are those seasons

that generally open prior to October 1, and include seasons in Alaska,

Hawaii, Puerto Rico, and the Virgin Islands. Late seasons are those

seasons opening in the remainder of the United States about

[[Page 13749]]

October 1 and later, and include most of the waterfowl seasons.

Major steps in the 1998-1999 regulatory cycle relating to public

hearings and Federal Register notifications are illustrated in the

accompanying diagram. Dates shown relative to publication of Federal

Register documents are target dates.

Sections of this and subsequent documents which outline hunting

frameworks and guidelines are organized under numbered headings. These

headings are:

1. Ducks

2. Sea Ducks

3. Mergansers

4. Canada Geese

5. White-fronted Geese

6. Brant

7. Snow and Ross's (Light) Geese

8. Swans

9. Sandhill Cranes

10. Coots

11. Moorhens and Gallinules

12. Rails

13. Snipe

14. Woodcock

15. Band-tailed Pigeons

16. Mourning Doves

17. White-winged and White-tipped Doves

18. Alaska

19. Hawaii

20. Puerto Rico

21. Virgin Islands

22. Falconry

23. Other

Later sections of this and subsequent documents will refer only to

numbered items requiring attention. Therefore, we will omit those items

requiring no attention and remaining numbered items will be

discontinuous and appear incomplete.

Public Hearings

Two public hearings pertaining to 1998-1999 migratory game bird

hunting regulations are scheduled. The Service will conduct both

hearings in accordance with 455 DM 1 of the Departmental Manual. On

June 25, the Service will hold a public hearing at 9 a.m. in the

Auditorium of the Department of the Interior Building, 1849 C Street

NW., Washington, DC. This hearing will review the status of migratory

shore and upland game birds and discuss proposed hunting regulations

for these species plus regulations for migratory game birds in Alaska,

Hawaii, Puerto Rico, and the Virgin Islands; special September

waterfowl seasons in designated States; special sea duck seasons in the

Atlantic Flyway; extended falconry seasons; and proposed regulatory

alternatives for the 1998-99 duck hunting season. On August 6, the

Service will hold a public hearing at 9 a.m. in the Auditorium of the

Department of the Interior Building, address above. This hearing will

review the status and proposed regulations for waterfowl not previously

discussed at the June 25 public hearing. The public is invited to

participate in both hearings. Persons wishing to make a statement at

these hearings should write to the address indicated under the caption

ADDRESSES.

Requests for Tribal Proposals

Background

Beginning with the 1985-86 hunting season, the Service has employed

guidelines described in the June 4, 1985, Federal Register (50 FR

23467) to establish special migratory bird hunting regulations on

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

ceded lands. The Service developed these guidelines in response 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 and nontribal members throughout their

reservations. The guidelines include possibilities for:

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

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

would have to be consistent with the annual March 10 to September 1

closed season mandated by the 1916 Convention Between the United States

and Great Britain (for Canada) for the Protection of Migratory Birds

(Convention). The guidelines are capable of application to those tribes

that have reserved hunting rights on Federal Indian reservations

(including off-reservation trust lands) and ceded lands. They also

apply to the establishment of migratory bird hunting regulations for

nontribal members on all lands within the exterior boundaries of

reservations where tribes have full wildlife management authority over

such hunting, or where the tribes and affected States otherwise have

reached agreement over hunting by nontribal members on non-Indian

lands.

Tribes usually have the authority to regulate migratory bird

hunting by nonmembers on Indian-owned reservation lands, subject to

Service approval. The question of jurisdiction is more complex on

reservations that include lands owned by non-Indians, especially when

the surrounding States have established or intend to establish

regulations governing hunting by non-Indians on these lands. In such

cases, the Service encourages the tribes and States to reach agreement

on regulations that would apply throughout the reservations. When

appropriate, the Service will consult with a tribe and State with the

aim of facilitating an accord. The Service also will consult jointly

with tribal and State officials in the affected States where tribes may

wish to establish special hunting regulations for tribal members on

ceded lands. As explained in previous rulemaking documents, it is

incumbent upon the tribe and/or the State to put forward a request for

consultation as a result of the proposal being published in the Federal

Register. The Service will not presume to make a determination, without

being advised by a tribe or a State, that any issue is/is not worthy of

formal consultation.

One of the guidelines provides for the continuation of harvest of

migratory game birds by tribal members on reservations where it is a

customary practice. The Service does not oppose this harvest, provided

it does not take place during the closed season required by the

Convention, and it is not so large as to adversely affect the status of

the migratory bird resource. For several years, the Service has reached

annual agreement with tribes for hunting by tribal members on their

lands or on lands where they have reserved hunting rights. The Service

will continue to consult with tribes that wish to reach a mutual

agreement on hunting regulations for on-reservation hunting by tribal

members.

The guidelines should not be viewed as inflexible. Nevertheless,

the Service believes that they provide appropriate opportunity to

accommodate the reserved hunting rights and management authority of

Indian tribes while ensuring that the migratory bird resource receives

necessary protection. The conservation of this important international

resource is paramount. Use of the guidelines is not required if a tribe

wishes to observe the hunting regulations established by the State(s)

in which the reservation is located.

[[Page 13750]]

Details Needed in Tribal Proposals

Tribes that wish to use the guidelines to establish special hunting

regulations for the 1998-99 hunting season must submit a proposal that

includes:

(1) the requested hunting season dates and other details regarding

regulations to be observed;

(2) harvest anticipated under the requested regulations;

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

(mail-questionnaire survey, bag checks, etc.);

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

could be shown that failure to limit such harvest would seriously

impact the migratory bird resource; and

(5) tribal capabilities to establish and enforce migratory bird

hunting regulations.

A tribe that desires the earliest possible opening of the waterfowl

season should specify this in the proposal, rather than request a date

that might not be within the final Federal frameworks. Similarly,

unless a tribe wishes to set more restrictive regulations than Federal

regulations will permit, the proposal should request the same daily bag

and possession limits and season length for ducks and geese that

Federal regulations are likely to permit the States in the Flyway in

which the reservation is located.

Tribal Proposal Procedures

The Service will publish pertinent details in tribal proposals for

public review in later Federal Register documents. Because of the time

required for Service and public review, Indian tribes that desire

special migratory bird hunting regulations for the 1998-99 hunting

season should submit their proposals as soon as possible, but no later

than June 2, 1998. Tribes should direct inquiries regarding the

guidelines and proposals to the appropriate Service Regional Office

listed under the caption Supplementary Information. Tribes that request

special hunting regulations for tribal members on ceded lands should

send a courtesy copy of the proposal to officials in the affected

State(s).

Public Comments Solicited

The policy of the Department of the Interior is, whenever

practicable, to afford the public an opportunity to participate in the

rulemaking process. Accordingly, interested persons are invited to

submit written comments, suggestions, or recommendations regarding the

proposed regulations. Promulgation of final migratory game bird hunting

regulations will take into consideration all comments received by the

Service. Such comments, and any additional information received, may

lead to final regulations that differ from these proposals. Interested

persons are invited to participate in this rulemaking by submitting

written comments to the address indicated under the caption ADDRESSES.

The public may inspect comments received on the proposed annual

regulations during normal business hours at the Service's office in

room 634, 4401 North Fairfax Drive, Arlington, Virginia. For each

series of proposed rulemakings, the Service will establish specific

comment periods. The Service will consider, but possibly may not

respond in detail to, each comment. As in the past, the Service will

summarize all comments received during the comment period and respond

to them after the closing date.

Flyway Council Meetings

Departmental representatives will be present at the following

winter meetings of the various Flyway Councils:

DATE: March 19 and 20, 1998

--Central Flyway Council, 8:00 a.m.

DATE: March 19 and 23, 1998

--National Waterfowl Council, 1:00 p.m.

DATE: March 20, 1998

--Atlantic Flyway Council, 8:00 a.m.

--Mississippi Flyway Council, 10:30 a.m.

DATE: March 21 and 22, 1998

--Pacific Flyway Council, 3:00 p.m. and 9:30 a.m., respectively

The Council meetings will be held at the Omni Rosen Hotel, 9840

International Drive, Orlando, Florida 32819-8122.

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.

Notice of Availability was published in the Federal Register on June

16, 1988 (53 FR 22582). The Service's Record of Decision was published

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 Service at the address indicated under the caption

ADDRESSES.

Endangered Species Act Consideration

Prior to issuance of the 1998-99 migratory game bird hunting

regulations, the Service will consider 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 the Service to change proposals in this and

future supplemental proposed rulemaking documents.

Executive Order (E.O.) 12866

This rule is economically significant and was reviewed by the

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

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.). The economic impacts of the annual hunting

regulations on small business entities were analyzed in detail and a

Small Entity Flexibility Analysis (Analysis) was issued by the Service

in 1996. The Analysis documented the significant beneficial economic

effect on a substantial number of small entities. 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 Analysis utilized the 1991 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 $254 and $592 million at small businesses in 1996.

Copies of the Analysis are available upon request from the Office

of Migratory Bird Management. The address is indicated under the

caption ADDRESSES.

Paperwork Reduction Act

The Department examined these regulations under the Paperwork

Reduction Act of 1995 and found no information collection requirements.

Unfunded Mandates

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.

[[Page 13751]]

Civil Justice Reform--Executive Order 12988

The Department, in promulgating this proposed rule, has determined

that these regulations meet the applicable standards found 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.

The rules that eventually will be promulgated for the 1998-99

hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712,

and 16 U.S.C. 742 a--j.

Dated: March 4, 1998

Donald Barry,

Acting Assistant Secretary for Fish and Wildlife and Parks.

Proposed 1998-1999 Migratory Game Bird Hunting Regulations

(Preliminary)

Pending current information on populations, harvest, and habitat

conditions, and receipt of recommendations from the four Flyway

Councils, specific framework proposals (including opening and closing

dates, seasons lengths, and bag limits) may be deferred. Unless

otherwise specified, no change from the final 1997-98 frameworks of

August 20 and September 26, 1997, (62 FR 44229 and 50660) is proposed.

Specific preliminary proposals that vary from the 1997-98 frameworks

and issues requiring early discussion, action, or the attention of the

States or tribes are contained below:

1. Ducks

A. Harvest Strategy Considerations

Adaptive harvest management (AHM) was introduced in 1995 to help

managers better understand the impacts of regulations on waterfowl

harvest and population levels. In addition, AHM is intended to provide:

(1) a more objective, better informed, and less contentious decision-

making process; (2) an explicitly defined role for monitoring programs

in setting regulations; and (3) a formal and coherent framework for

addressing controversial harvest-management issues.

Since 1995, the AHM process has focused primarily on midcontinent

mallards. However, there continues to be considerable interest in

accounting for mallards breeding eastward and westward of the

midcontinent region. The ultimate goal is to develop Flyway-specific

harvest strategies, which represent an average of optimal strategies

for each mallard breeding stock, weighted by the relative contribution

of each stock to the respective Flyways. The Service and States also

have expressed interest in extending the AHM protocol to other

important species such as pintails, teal, and black ducks.

Harvest strategies that account for important biological

differences in duck stocks are expected to yield the highest management

benefits, but also are characterized by relatively high monitoring and

assessment costs. Thus, the Service believes objective assessments of

the tradeoff in costs and benefits are necessary for deciding when the

AHM protocol should be extended to various duck stocks. Preliminary

investigations using the tools of decision-theory suggest that

management benefits may be less sensitive to biological differences in

duck stocks than commonly believed. If so, cost considerations will

motivate managers to implement AHM strategies based explicitly on just

a few stocks (e.g., western, midcontinent, and eastern mallards).

Determining the degree to which AHM strategies should account for

important sources of biological variation is an incredibly difficult

challenge, and one that will require considerable effort and focus by

the AHM Working Group. The AHM Working Group is comprised of

representatives from the U.S. Fish and Wildlife Service, the four

Flyway Councils, and the Canadian Wildlife Service and was established

in 1992 to assist with implementation of AHM. The working group

continues to meet at least once a year to pursue AHM conceptual

development and to consider technical and communication issues for the

current regulatory cycle.

The Service believes requests for further changes to the set of

regulatory alternatives established in 1997 likely would delay

extension of AHM to stocks other than midcontinent mallards. Therefore,

future proposals to change the regulatory alternatives will be viewed

critically and reasons for change should be compelling. This means that

proposals should enjoy broad-based support and should be accompanied by

strong rationale, including a recognition of impacts on both harvest

and learning rates, as well as on other AHM priorities.

B. Framework dates

During 1997 the Service attempted to address concerns about the set

of regulatory alternatives that had been used for AHM since the 1995

hunting season. Based on extensive input from the Flyway Councils and

others, the regulatory alternatives considered for the 1997 season were

modified to include: (1) a ``very restrictive'' alternative; (2)

additional days and a higher total-duck daily bag limit in the

``moderate'' and ``liberal'' alternatives; and (3) an increase in the

bag limit of hen mallards in the ``moderate'' and ``liberal''

alternatives. No changes were made to the traditional framework dates

of roughly October 1 to January 20.

The Service received extensive public comment both supporting and

opposing extensions of traditional framework dates. By August of last

year, the issue had became highly divisive and politically-charged.

Ultimately, the Service was directed by the U.S. Congress to review

existing information on framework extensions and to consult further

with the States and International Association of Fish & Wildlife

Agencies.

Following the guidance provided by Congress, the Service has

prepared a summary of the effects of framework extensions in

Mississippi and Iowa, and of predicted impacts of large-scale framework

extensions on the regulation of mallard harvests. Available data

generally reflect increases in the harvest of most duck species due to

framework extensions in Mississippi and Iowa, although the magnitude of

the increases could not be estimated precisely. Based on these results,

large-scale extensions of framework dates could decrease the frequency

of years with liberal regulations from 70 to 15 percent, while

increasing the frequency of years with restrictive regulations from 11

to 42 percent. The Service's report is now available to the Flyway

Councils, States, and public for further consultation.

G. Special Seasons/Species Management

i. Canvasbacks

The Service continues to support the canvasback harvest strategy

adopted in 1994. Last year, the Service noted its intent to review

recent data and assess how well observed harvests and population

abundance were predicted by the strategy (62 FR 50662). The assessment

is nearing completion, and will be available for review by the Flyway

Technical Sections at their meetings during February and March, 1998.

ii. September Teal/Wood Duck Seasons

These experimental seasons have been held in Florida, Kentucky, and

Tennessee since 1981. The Service has consistently stated that

continuation of September wood duck seasons is contingent on the

development of regional wood duck population monitoring programs, as

well as evaluation and decision criteria for these seasons. The final

report of the

[[Page 13752]]

``Wood Duck Population Monitoring Initiative'' (Initiative) completed

in July 1997 indicated that monitoring programs at geographic scales

below the flyway level are not meeting requisite sample sizes.

Therefore, harvest management strategies aimed at scales below the

flyway level likely is not feasible.

An evaluation of September wood duck seasons was recently completed

and a draft report will be made available to the Atlantic and

Mississippi Flyway Councils for their review during February 1998.

Results from the evaluation indicate that estimates of population

parameters for individual states are usually imprecise, which often

precludes drawing meaningful conclusions. In light of these results, as

well as those from the Initiative, the Service may propose suspension

of September wood duck seasons this year.

2. Sea Ducks

A. Special Sea Duck Seasons in the Atlantic Flyway

At the request of the Atlantic Flyway Council, the Service has

investigated the effects of bag limit restrictions on scoters that were

initiated in the Atlantic Flyway in 1993. In addition, the Service has

reviewed other features of this special season and the biological

status of sea ducks in eastern North America. A draft report, titled

``Status of Sea Ducks in Eastern North America and a Review of the

Special Sea Duck Season in the Atlantic Flyway'' will be available from

the Office of Migratory Bird Management by late-February, 1998. This

report recommends consideration of several changes to sea duck hunting

seasons in the Atlantic Flyway, including changes to sea duck hunting

zones, bag limits, and season lengths. The Service seeks from the

Atlantic Flyway Council and others comments on the draft report,

consideration of changes to sea duck seasons in 1998 in the Atlantic

Flyway, and progress toward development of management goals for sea

ducks.

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