Proposed Rule2023-05959
Migratory Bird Hunting; Migratory Game Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 23, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
As part of the rulemaking process for the 2023-2024 season, the U.S. Fish and Wildlife Service (hereinafter, Service or we) proposes a revised process for establishing special regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for migratory bird hunting seasons. We are proposing no longer to require that Tribes annually submit a proposal to the Service for our review and approval and no longer to publish in the Federal Register the annual Tribal migratory bird hunting regulations, and instead to adopt as regulations elements of our current guidelines for establishing special migratory game bird hunting regulations on Federal Indian reservations (including off-reservation trust lands) and ceded lands. The Service recognizes the reserved hunting rights and management authority of Indian Tribes. Since the 1985-86 hunting season, we have successfully employed guidelines to establish special migratory game bird hunting regulations on Federal Indian reservations and ceded lands. We conclude that Tribal migratory bird harvest has been small with negligible impact to bird population status. We anticipate that Tribal hunting of migratory birds will continue to have similar negligible impacts to bird populations in the future. By proposing these regulations, the Service seeks to strengthen Tribal sovereignty and to reduce administrative burdens on both the Tribes and the Service while continuing to sustain healthy migratory game bird populations for future generations.
Full Text
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<title>Federal Register, Volume 88 Issue 56 (Thursday, March 23, 2023)</title>
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[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17511-17515]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05959]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[Docket No. FWS-HQ-MB-2022-0090; FF09M30000-234-FXMB1231099BPP0]
RIN 1018-BF64
Migratory Bird Hunting; Migratory Game Bird Hunting Regulations
on Certain Federal Indian Reservations and Ceded Lands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: As part of the rulemaking process for the 2023-2024 season,
the U.S. Fish and Wildlife Service (hereinafter, Service or we)
proposes a revised process for establishing special regulations for
certain Tribes on Federal Indian reservations, off-reservation trust
lands, and ceded lands for migratory bird hunting seasons. We are
proposing no longer to require that Tribes annually submit a proposal
to the Service for our review and approval and no longer to publish in
the Federal Register the annual Tribal migratory bird hunting
regulations, and instead to adopt as regulations elements of our
current guidelines for establishing special
[[Page 17512]]
migratory game bird hunting regulations on Federal Indian reservations
(including off-reservation trust lands) and ceded lands. The Service
recognizes the reserved hunting rights and management authority of
Indian Tribes. Since the 1985-86 hunting season, we have successfully
employed guidelines to establish special migratory game bird hunting
regulations on Federal Indian reservations and ceded lands. We conclude
that Tribal migratory bird harvest has been small with negligible
impact to bird population status. We anticipate that Tribal hunting of
migratory birds will continue to have similar negligible impacts to
bird populations in the future. By proposing these regulations, the
Service seeks to strengthen Tribal sovereignty and to reduce
administrative burdens on both the Tribes and the Service while
continuing to sustain healthy migratory game bird populations for
future generations.
DATES: Submit comments by May 8, 2023.
ADDRESSES: Comment submission: You may submit comments by one of the
following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments on Docket No. FWS-HQ-
MB-2022-0090.
<bullet> U.S. mail: Public Comments Processing, Attn: FWS-HQ-MB-
2022-0090, U.S. Fish and Wildlife Service; MS: PRB (JAO/3W); 5275
Leesburg Pike; Falls Church, VA 22041-3803.
We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Document availability: Comments and materials we receive, as well
as supporting documentation we used in preparing this proposed rule,
will be available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
or by appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Division of Migratory Bird Management; 5275 Leesburg
Pike; Falls Church, VA 22041-3803.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, U.S. Fish and Wildlife
Service, Department of the Interior, 5275 Leesburg Pike, MS-MB, Falls
Church, VA 22041-3803; (703) 358-2506.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point of contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
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. Under the Migratory Bird
Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is
authorized to determine when ``hunting, taking, capture, killing,
possession, sale, purchase, shipment, transportation, carriage, or
export of any such bird, or any part, nest, or egg'' of migratory game
birds can take place and to adopt regulations for this purpose. These
regulations must give due regard to the zones of temperature and to the
distribution, abundance, economic value, breeding habits, and times and
lines of migratory flight of such birds (16 U.S.C. 704(a)). The
Secretary of the Interior has delegated to the Service the lead Federal
responsibility for managing and conserving migratory birds in the
United States; however, migratory bird management is a cooperative
effort of Federal, Tribal, and State governments. Federal regulations
pertaining to migratory bird hunting are located in title 50 of the
Code of Federal Regulations in part 20.
Acknowledging regional differences in hunting conditions, the
Service has administratively divided the United States into four
Flyways for the primary purpose of managing migratory game birds. Each
Flyway (Atlantic, Mississippi, Central, and Pacific) has a Flyway
Council, a formal organization generally composed of one member from
each State within the Flyway, as well as Provinces in Canada that share
migratory bird populations with the Flyway. The Flyway Councils,
established through the Association of Fish and Wildlife Agencies,
assist in researching and providing migratory game bird management
information for Federal, Tribal, State, and Provincial governments, as
well as private conservation entities and the general public.
The Service annually develops migratory game bird hunting
frameworks, or outside limits, for season dates, season lengths,
shooting hours, bag and possession limits, and areas where migratory
game bird hunting may occur (50 CFR part 20, subpart K). Because the
Service is required to take abundance of migratory game birds and other
factors into consideration, the Service undertakes several surveys
throughout the year in conjunction with Service Regional Offices, the
Canadian Wildlife Service, Tribes, and State and Provincial wildlife
management agencies. For each annual regulatory cycle, Service
biologists gather, analyze, and interpret biological survey data and
provide this information through a series of published status reports
and presentations to the Flyway Councils and other interested parties.
The August 6, 2015, Federal Register at 80 FR 47388 provides a detailed
overview of this process.
The Federal frameworks are necessary to allow harvest at levels
compatible with migratory game bird population status and habitat
conditions. To determine the appropriate frameworks for each species,
we consider factors such as population size and trend, geographical
distribution, annual breeding effort, condition of breeding and
wintering habitat, number of hunters, and anticipated harvest. After
frameworks are established, States may select migratory game bird
hunting seasons within these frameworks. States may always be more
conservative in their selections than the Federal frameworks, but never
more liberal.
On November 3, 2022, we published proposed hunting regulations for
certain migratory game birds for the 2023-24 hunting season (87 FR
66247). In that proposed rule, we stated that we would handle Tribal
regulations via a separate rulemaking process in later Federal Register
documents. Accordingly, this document begins the process for developing
migratory game bird hunting regulations on Federal Indian reservations
(including off-reservation trust lands) and ceded lands for the 2023-24
hunting season and beyond.
Current Tribal Rulemaking Process
Beginning with the 1985-86 hunting season, we have employed
guidelines described in the June 4, 1985, Federal Register (50 FR
23467) to establish special migratory game bird hunting regulations
(independent from the State or States where the reservation is located)
on Federal Indian reservations (including off-reservation trust lands)
and ceded lands. We developed these guidelines in response to Tribal
requests for our 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 provide appropriate opportunity to accommodate the reserved
hunting rights and management authority of Indian Tribes while also
ensuring that the migratory
[[Page 17513]]
game bird resource receives necessary protection. The Service adopted
the 1985 guidelines as final in 1988 (53 FR 31612, August 18, 1988).
From the 1985 through 2022 hunting seasons, as part of our
preliminary proposed rule to annually promulgate Federal migratory bird
hunting regulations, we asked Tribes to submit their proposed migratory
bird hunting regulations. Proposals were to include season dates and
other regulations, methods to monitor harvest, anticipated harvest,
steps taken to limit harvest levels, and capabilities to establish and
enforce migratory bird hunting regulations.
Each year, upon receipt of information on the status of migratory
bird populations and expected migratory bird harvest provided by the
Tribes, we evaluated the potential impact of special Tribal hunting
regulations on the migratory bird resource. We have always concluded
that this harvest is small and, therefore, would have a negligible
impact to the bird population status. Annually, we published in the
Federal Register the special Tribal migratory bird hunting regulations
as a proposed rule and, following review and consideration of any
public comments, published a final rule setting forth these
regulations.
Proposed New Process for Managing Tribal Migratory Bird Hunting
We anticipate that Tribal hunting will continue to have similar
minimal impact to the migratory bird resource in the future due to
declining trends in active hunters for some Tribes and also increasing
population trends for many migratory game birds (as identified in the
2022 State of the Birds Report; see state-of-the-birds-2022-spreads.pdf
at <a href="http://stateofthebirds.org">stateofthebirds.org</a>.). Based on the historical and future expected
minimal impacts to migratory game bird resources, we are proposing to
simplify the process for special Tribal migratory game bird hunting
regulations for the upcoming season (2023-2024) and afterwards. We
propose to remove the requirement that Tribes annually submit their
proposed migratory game bird hunting regulations (and associated
monitoring, anticipated harvest, and capabilities for regulation
development and enforcement) for our review and approval. We also
propose no longer to publish special Tribal migratory game bird hunting
regulations in the Federal Register (i.e., a proposed and final rule).
We further propose to adopt as regulations elements of our current
guidelines for establishing special migratory game bird hunting
regulations on Federal Indian reservations (including off-reservation
trust lands) and ceded lands. Tribes that comply with these regulations
will be authorized to independently establish special Tribal migratory
bird hunting regulations.
By allowing Tribes to independently establish special migratory
bird hunting regulations, the Service recognizes Tribal sovereignty to
exercise reserved hunting rights and, for some Tribes, recognition of
their authority to regulate hunting by both Tribal and nontribal
members on their reservation. As an alternative to promulgating special
Tribal migratory game bird hunting regulations, Tribes may choose to
observe the hunting regulations established by the State or States in
which the reservation is located. We have been coordinating with Tribes
on this proposed regulatory approach for Tribal self-management of the
harvest, and we have received positive feedback thus far. The proposed
action will reduce the annual administrative burden on both the Tribes
and the Service to propose, review, and publish special migratory game
bird hunting regulations while continuing to sustain healthy migratory
game bird populations for future generations.
As with the current process, these proposed regulations will be
applicable to those Tribes that have reserved hunting rights on Federal
Indian reservations (including off-reservation trust lands) and ceded
lands. These proposed regulations also may be applied to the
establishment of migratory game bird hunting regulations for nontribal
members on all lands within the 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 within the reservation. Tribes
usually have the authority to regulate migratory game bird hunting by
nonmembers on Indian-owned reservation lands. 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 migratory game bird
hunting by non-Indians on these lands. In those cases, we encourage the
Tribes and States to reach agreement on regulations that would apply
throughout the reservations. When appropriate, we will consult with a
Tribe and State with the aim of facilitating an accord. We also will
consult jointly with Tribal and State officials in the affected States
where Tribes may wish to establish special migratory game bird hunting
regulations for Tribal members on ceded lands. It is incumbent upon the
Tribe and/or the State to request consultation. We will not presume to
make a determination, without being advised by either a Tribe or a
State, that any issue is or is not worthy of formal consultation.
In the rule portion of this document, we have included the
requirements for Tribes to follow if they establish special Tribal
migratory bird hunting regulations, based on elements from the 1985
guidelines. In addition, we encourage Tribes wanting to establish
special migratory game bird hunting regulations to consider the
elements we previously required in their proposals: (1) Season dates
and other regulations; (2) anticipated harvest; (3) methods that will
be employed to measure or monitor harvest; (4) steps that will be taken
to limit the level of harvest, where it could be shown that failure to
limit such harvest would have serious impacts on the migratory bird
resource; and (5) Tribal capabilities to establish and enforce
migratory bird hunting regulations. We recommend that Tribes allowing
swan hunting require all swan hunters to successfully complete a course
on swan identification and conservation to minimize take of trumpeter
swans during the swan season.
The proposed regulations provide for the continuation of Tribal
members' harvest of migratory game birds on reservations where such
harvest is a customary practice. We are supportive of 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 game bird resource. Since the inception of the
guidelines, we have reached annual agreement with Tribes for migratory
game bird hunting by Tribal members on their lands or on lands where
they have reserved hunting rights. We will continue to consult with
Tribes that wish to reach a mutual agreement (memorandum of
understanding (MOU) or something similar) on conducting short-term
(possibly several years) experimental hunting using methods outside of
the Federal hunting methods at Sec. 20.21 for on-reservation hunting
by Tribal members.
The experimental hunting period by a Tribe will provide data to the
Service for future consideration if a Tribe would like to make the
additional hunting method permanent. Tribes should send such requests
for consultation to the Service's Assistant Director for the Migratory
Bird Program at least 9 months before the season or ceremony
[[Page 17514]]
regarding hunting methods outside of these proposed Federal regulations
(see FOR FURTHER INFORMATION CONTACT). We intend to make any proposed
MOU or other agreement available through a notice of availability to
allow for public comment; however, we may not use the public process
for very minor or nonsignificant MOUs or agreements. The Service will
make all signed MOUs or agreements public. If any individual Tribe
wishes to make these additional experimental hunting methods permanent
and the Service agrees, the Service will conduct rulemaking (using any
data from the experimental hunt) to amend 50 CFR part 20 to allow
Tribal members to use these additional hunting methods.
If this proposed rule is finalized, starting with the 2023-2024
hunting season, annual Tribal hunting season regulations will no longer
be published in the Federal Register, alleviating the administrative
burden to both the Service and the Tribes of developing special Tribal
migratory bird hunting regulation proposals, reviewing proposals, and
publishing Tribal regulations as Federal regulations. This proposed
process would not apply to seasons for subsistence take of migratory
birds in Alaska.
Public Comments
We invite interested persons to submit written comments,
suggestions, or recommendations regarding the proposed regulations for
the 2023-2024 season and beyond. Before finalizing this proposed rule,
we will consider all comments we receive. These comments, and any
additional information we receive, may lead to final regulations that
differ from this proposal.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We will not accept
comments sent by email or fax. We will not consider mailed comments
that are not postmarked by the date specified in DATES. We will post
all comments in their entirety--including your personal identifying
information--on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Before including your
address, phone number, email 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.
Required Determinations
Based on our most current data, we are affirming our required
determinations made in the November 3, 2022, proposed rule (87 FR
66247); please see that document for descriptions of our actions to
ensure compliance with the following statutes and Executive Orders:
<bullet> National Environmental Policy Act;
<bullet> Endangered Species Act;
<bullet> Regulatory Flexibility Act;
<bullet> Small Business Regulatory Enforcement Fairness Act;
<bullet> Paperwork Reduction Act of 1995;
<bullet> Unfunded Mandates Reform Act; and
<bullet> Executive Orders 12630, 12866, 12988, 13132, 13175, 13211,
and 13563.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, for the reasons described in the preamble, we propose
to amend title 50, chapter I, subchapter B, of the Code of Federal
Regulations as follows:
PART 20--MIGRATORY BIRD HUNTING
0
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.
0
2. Revise Sec. 20.110, including the section heading, to read as
follows:
Sec. 20.110 Regulations for certain Federal Indian reservations and
ceded lands.
(a) Tribal sovereignty. The Service recognizes Tribal sovereignty
to exercise reserved hunting rights and, for some Tribes, recognition
of their authority to regulate hunting by both Tribal and nontribal
members on their reservation. Accordingly, Tribes may independently
(separate from the State or States in which the reservation is located)
establish special migratory game bird hunting regulations. Migratory
birds may be taken if the take is consistent with the regulations in
this section and applicable Tribal hunting regulations.
(b) Applicability. Special Tribal migratory game bird hunting
regulations may be established by Tribes that have reserved hunting
rights on Federal Indian reservations (including off-reservation trust
lands) and ceded lands. These regulations also may be applied to the
establishment of migratory game bird hunting regulations for nontribal
members on all lands within the 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 within the reservation.
(c) Special regulations. Special Tribal migratory game bird hunting
regulations must be consistent with the annual March 11 to August 31
closed season mandated by the 1916 Convention Between the United States
and Great Britain (for Canada) for the Protection of Migratory Birds,
as amended by the Protocol Between the Government of Canada and the
Government of the United States of America Amending the 1916 Convention
Between the United Kingdom and the United States of America for the
Protection of Migratory Birds in Canada and the United States, and with
these provisions:
(1) Tribes may establish on-reservation hunting regulations, for
both Tribal and nontribal members, with hunting seasons that may differ
from those in the State(s) in which the reservations are located.
(i) Regulations for both Tribal and nontribal members: Opening and
closing dates, season length, and daily bag and possession limits for
nontribal members on the reservations must be within the annual
frameworks for migratory bird hunting seasons established by the
Service, and all Federal hunting regulations in this part also apply to
nontribal hunters. Tribes may choose to set the same opening and
closing dates, season length, and daily bag and possession limits for
hunting by Tribal members and nontribal members on their reservations,
or, in accordance with the provisions in paragraph (c)(1)(ii) of this
section, Tribes may choose to establish regulations for Tribal members
only.
(ii) Regulations for Tribal members only: Tribes may establish on-
reservation hunting regulations by Tribal members only, with hunting
seasons that may be outside of annual frameworks for season dates,
season length, and daily bag and possession limits. All Federal hunting
regulations in this part apply. For a short-term experimental hunt, a
Tribe and the Service may formally agree on allowed methods of take,
notwithstanding the regulations in Sec. 20.21. The Service will make
public any such formal agreement.
(2) Tribes may establish off-reservation hunting regulations by
Tribal members on ceded lands, with hunting seasons that may be outside
of annual frameworks for season dates, season length, and daily bag and
possession limits.
(d) Provisions for ceded lands. Tribes that have special migratory
game bird
[[Page 17515]]
hunting regulations for Tribal members on ceded lands must send a copy
of the Tribal regulations to officials in the affected State(s) prior
to the season opening.
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-05959 Filed 3-22-23; 8:45 am]
BILLING CODE 4333-15-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.