Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2012-13 Early Season

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

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 rule responds to tribal requests for U.S. Fish and Wildlife Service (hereinafter Service or we) recognition of tribal 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.

DATES:

This rule takes effect on September 1, 2012.

ADDRESSES:

You may inspect comments received on the special hunting regulations and tribal proposals during normal business hours in room 4107, Arlington Square Building, 4501 N. Fairfax Drive, Arlington, VA or at http://www.regulations.gov at Docket No. FWS-R9-MB-2012-0005.

FOR FURTHER INFORMATION CONTACT:

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.

SUPPLEMENTARY INFORMATION:

The Migratory Bird Treaty Act (MBTA) 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 16, 2012, Federal Register (77 FR 49680), we proposed special migratory bird hunting regulations for the 2012-13 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. We have successfully used the guidelines since the 1985-86 hunting season. We finalized the guidelines beginning with the 1988-89 hunting season (August 18, 1988, Federal Register [53 FR 31612]).

In the April 17, 2012, Federal Register (77 FR 23094), we requested that tribes desiring special hunting regulations in the 2012-13 hunting season submit a proposal including details on:

(a) Harvest anticipated under the requested regulations;

(b) Methods that would be employed to measure or monitor harvest (such as bag checks, mail questionnaires, etc.);

(c) Steps that would be taken to limit level of harvest, where it could be shown that failure to limit such harvest would adversely impact the migratory bird resource; and

(d) 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. On August 16, 2012, we published a proposed rule (77 FR 49680) that included special migratory bird hunting regulations for 30 Indian tribes, based on the input we received in response to the April 17, 2012, proposed rule. All the regulations contained in this final rule were either submitted by the tribes or approved by the tribes and follow our proposals in the August 16 proposed rule.

Although the August 16 proposed rule included generalized regulations for both early- and late-season hunting, this rulemaking addresses only the early-season proposals. Therefore, it includes information for only 21 tribes. The letter designations for the paragraphs pertaining to each tribe in this rule are discontinuous because they follow the letter designations for the 30 tribes discussed in the August 8 proposed rule, which set forth paragraphs (a) through (dd). 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 doves. Late seasons begin about October 1 or later each year and have a primary emphasis on waterfowl.

Population Status and Harvest

Information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds, including detailed information on methodologies and results, is available at the address indicated under FOR FURTHER INFORMATION CONTACT or from our Web site at http://www.fws.gov/migratorybirds/NewsPublicationsReports.html.

Comments and Issues Concerning Tribal Proposals

For the 2012-13 migratory bird hunting season, we proposed regulations for 30 tribes and/or Indian groups that followed the 1985 guidelines. Only 26 tribes were considered appropriate for final rulemaking because we did not receive proposals from 4 of the tribes for whom we had proposed regulations. Some of the tribal proposals had both early- and late-season elements. However, as noted earlier, only those with early-season proposals are included in this final rulemaking; 21 tribes have proposals with early seasons. The comment period for the proposed rule, published on August 16, 2012, closed on August 27, 2012. Because of the necessary brief comment period, we will respond to any comments on the proposed rule and/or these regulations postmarked by August 27, but not received prior to final action by us, in the September late-season final rule. At this time, we have received three comments.

Great Lakes Indian Fish and Wildlife Commission's (GLIFWC) Proposal

We received two comments on GLIFWC's initial proposal from the State of Wisconsin and the Mississippi Flyway Council (MFC). We also received a subsequent comment from the GLIWFC in response to our August 16 proposed rule.

The State of Wisconsin, Department of Natural Resources (WIDNR) and MFC noted the long history of working cooperatively with GLIFWC and individual tribes in the conservation of Wisconsin's waterfowl and wetland resources. However, WIDNR and MFC believed the most significant problem with the GLIFWC proposal was the request to allow tribal members to hunt with the use of electronic calls for ducks and geese within the ceded territory. WIDNR and MFC believe that, since the ceded territory covers one-third of the State of Wisconsin, one-half of the State of Michigan, significant areas of Minnesota, and significant areas of public hunting grounds and waters in those States, the use of electronic calls by tribal hunters would put any nontribal hunters in violation of the law when hunting in these areas. Thus, GLIFWC's proposal would, in effect, close public lands to hunting, increase conflicts among the hunting public, and create a safety concern and an unmanageable law enforcement environment. WIDNR and MFC also opposed the extension of shooting hours to 60 minutes past sunset and removing species restrictions from the daily bag limit because of safety and resource concerns. WIDNR and MFC also believe that GLIFWC's proposal to remove all species restrictions in hunting regulations fails to recognize the different status and regulations of each species and as such is inconsistent with established cooperative management practices. WIDNR and MFC believe that management decisions could not be honored without species-level restrictions. WIDNR and MFC believe that a tribal tundra swan hunting season in the ceded territory should not be implemented in 2012 because additional biological evaluation and harvest planning should be conducted, especially in light of the trumpeter swan issues. WIDNR asks that the same criteria of not implementing duck hunting seasons prior to September 15 because of impacts to breeding ducks in Wisconsin be applied to tribal seasons as well. WIDNR also opposes the tribes being exempt from decoy restrictions.

GLIWFC reiterated that their proposal was consistent with their underlying treaty rights and values, and that their proposals were biologically sound and culturally appropriate. More specifically, they proposed allowing the use of electronic calls for geese from September 1 to 21, and for ducks from September 4 to 21 in the 1837 and 1842 Treaty areas. They stated that the proposed revision to their initial proposal would minimize any user conflicts since waterfowl seasons in Michigan, Minnesota, and Wisconsin are closed. They also offered to conduct a post-season harvest survey on the use of and harvest associated with electronic calls.

Regarding expanded shooting hours, GLIFWC proposed to extend shooting hours from 45 minutes before sunrise to 45 minutes after sunset, a reduction of 15 minutes from their initial proposal. They stated that this proposal was consistent with other Service-approved tribal proposals (69 FR 53990; September 3, 2004) and was consistent with recent changes in Wisconsin allowing the harvest of wolves at night.

GLIWFC also proposed changes to the swan hunting proposal. They requested the establishment of an experimental season in Ashland, Bayfield, Forest, and Oneida Counties in Wisconsin with a 2-bird daily bag limit, mandatory registration, and carcass verification.

Lastly, GLIFWC proposed to correct an oversight in the initial season proposal pertaining to mergansers and woodcock seasons. They amended the proposed season opening dates in the 1836 Treaty area for both species from September 4, rather than September 15.

Service Response: The GLIFWC 2012 proposal, and subsequent proposed revisions, had several significant changes from regulations approved last season. In the 1837 and 1842 Treaty Areas, the GLIFWC proposal would allow the use of electronic calls in September; would extend shooting hours by 15 minutes in both the morning and the evening to 45 minutes before sunrise and 45 minutes after sunset; would increase the daily bag limits to 50 ducks and remove all species restrictions within the daily bag limit for ducks; would allow the first harvest of sandhill cranes and tundra swans; would open the season (other than for geese) on September 4; and would remove restrictions for decoy use in Wisconsin. In the 1836 Treaty Area, the GLIFWC proposal would remove all species restrictions within the daily bag limit for ducks.

GLIFWC states that the regulatory changes are intended to provide tribal members a harvest opportunity within the scope of rights reserved in their various treaties and increase tribal subsistence harvest opportunities, while protecting migratory bird populations. Under the GLIFWC proposed regulations, GLIFWC expects total ceded territory harvest to be approximately 1,575 ducks, 300 geese, 50 sandhill cranes, and 50 tundra swans, which is roughly similar to anticipated levels in previous years for those species for which seasons were established. GLIWFC further anticipates that tribal harvest will remain low given the small number of tribal hunters and the limited opportunity to harvest more than a small number of birds on most hunting trips.

Recent GLIFWC harvest surveys (1996-98, 2001, 2004, 2007-08, and preliminary 2011) indicate that tribal off-reservation waterfowl harvest has averaged less than 1,050 ducks and 200 geese annually. In the latest survey year for which we have specific results (2004), an estimated 53 hunters took an estimated 421 trips and harvested 645 ducks (1.5 ducks per trip) and 84 geese (0.2 geese per trip). Analysis of hunter survey data over 1996-2004 indicates a general downward trend in both harvest and hunter participation.

Many of the components of the GLIFWC proposal are acceptable to the Service and are adopted in this rule. However, a number of the components are not in the best interest of the conservation of migratory birds. More specific discussion follows below.

Allowing Electronic Calls

As we stated last year (76 FR 54676, September 1, 2011), the issue of allowing electronic calls and other electronic devices for migratory game bird hunting has been highly debated and highly controversial over the last 40 years, similar to other prohibited hunting methods such as baiting. Electronic calls, i.e., the use or aid of recorded or electronic amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds to lure or attract migratory game birds to hunters, was Federally prohibited in 1957 because of its effectiveness in attracting and aiding the harvest of ducks and geese and is generally not considered a legitimate component of hunting. In 1999, after much debate, the migratory bird regulations were revised to allow the use of electronic calls for the take of light geese (lesser snow geese and Ross geese) during a light-goose-only season when all other waterfowl and crane hunting seasons, excluding falconry, were closed (64 FR 7507, February 16, 1999; 64 FR 71236, December 20, 1999; and 73 FR 65926, November 5, 2008). The regulations were subsequently changed also in 2006 to allow the use of electronic calls for the take of resident Canada geese during Canada-goose-only September seasons when all other waterfowl and crane seasons, excluding falconry, were closed (71 FR 45964, August 10, 2006). In both instances, these changes were made in order to significantly increase the take of these species for population management due to either serious population overabundance, or depredation issues, or public health and safety issues, or both.

Available information from the use of additional hunting methods, such as electronic calls, during the special light-goose seasons indicate that total harvest increased approximately 50-69 percent. On specific days when light-goose special regulations were in effect, the mean light goose harvest increased 244 percent. One research study found that lesser snow goose flocks were 5.0 times more likely to fly within gun range (≤50 meters) in response to electronic calls than to traditional calls and the mean number of snow geese killed per hour per hunter averaged 9.1 times greater for electronic calls than for traditional calls. While these results are only directly applicable to light geese, we believe these results are applicable to most waterfowl species, and indicative of some likely adverse harvest impacts on other geese and ducks.

Removal of the electronic call prohibition would be inconsistent with our long-standing conservation concerns. Given available evidence on the effectiveness of electronic calls, and the large biological uncertainty surrounding any widespread use of electronic calls, we believe the potential for overharvest could contribute to long-term population declines. Further, migratory patterns, distribution, and localized abundance of migratory birds could be affected and it is possible that hunter participation could increase beyond GLIFWC's estimates (50 percent) and could result in additional conservation impacts, particularly on local breeding populations. Thus, we do not support allowing the use of electronic calls in the 1837 and 1842 Treaty Areas.

Additionally, given the fact that tribal waterfowl hunting covered by this proposal would occur on ceded lands that are not in the ownership of the Tribes, we believe the use of electronic calls to take waterfowl would lead to confusion on the part of the public, wildlife-management agencies, and law enforcement officials in implementing the requirements of 50 CFR part 20. Restricting the proposal to September 4-21 does not alleviate these concerns. Similar to the impacts of baiting, uncertainties concerning the zone of influence attributed to the use of electronic calls could potentially increase harvest from nontribal hunters operating within areas electronic calls are being used, or were used, thereby posing risks to the migratory patterns and distribution of migratory waterfowl.

Lastly, we remind GLIFWC that electronic calls are permitted for the take of resident Canada geese during Canada-goose-only September seasons when all other waterfowl and crane seasons are closed. In the case of GLIFWC's proposed seasons, electronic calls could only be used September 1-3 for resident Canada geese (as GLIFWC's duck and crane season begins September 4, as they proposed). This specific regulatory change was implemented in 2006 in order to significantly control resident Canada geese due to widespread population overabundance, depredation issues, and public health and safety issues..

Expanded Shooting Hours

Normally, shooting hours for migratory game birds are one-half hour before sunrise to sunset. A number of reasons and concerns have been cited for extending shooting hours past sunset. Potential impacts to some locally breeding populations (e.g., wood ducks), hunter safety, difficulty of identifying birds, retrieval of downed birds, and impacts on law enforcement are some of the normal concerns raised when discussing potential expansions of shooting hours. However, despite these concerns, in 2007, we supported the expansion of shooting hours by 15 minutes after sunset in the 1837, 1842, and 1836 Treaty Areas (72 FR 58452, October 15, 2007). We had previously supported this expansion in other tribal areas and have not been made aware of any wide-scale problems. At that time, we further believed that the continuation of a specific species restriction within the daily bag limit for mallards, and the implementation of a species restriction within the daily bag limit for wood ducks, would allay potential conservation concerns for these species. We supported the increase with the understanding that we would need to closely monitor tribal harvest through either GLIFWC's own increased harvest surveys or GLIFWC's assisting the Service to survey tribal hunters.

Last year, in deference to tribal traditions and in the interest of cooperation, we approved shooting 30 minutes after sunset (an extension of 15 minutes from the then-current 15 minutes after sunset) (76 FR 54676, September 1, 2011). This was consistent with other Tribes in the general area (Fond du Lac, Leech Lake, Oneida, Sault Ste Marie, and White Earth). Extending shooting hours on both the front end and the back end of the day to 45 minutes before sunrise and 45 minutes after sunset as GLIWFC has proposed would be contrary to public safety and only heightens our previously identified concerns. It is widely considered dark 45 minutes after sunset (and 45 minutes before sunrise), and we see no viable remedies to allay our concerns. Shooting this early or late would also significantly increase the potential take of non-game birds. Thus, we cannot support increasing the shooting hours by 15 minutes in the 1837 and 1842 Treaty Areas (to 45 minutes before sunrise and 45 minutes after sunset).

Regarding GLIFWC's comments concerning our consistency with other previous tribal proposals and recent changes in Wisconsin wolf hunting regulation, we note that the referenced approval of shooting hours 45 minutes after sunset was for on-reservation hunting only at Sokaogon Chippewa Community in Cranston, Wisconsin. Ceded lands were not part of the Sokaogon's proposal or our approval. Lastly, we view the State of Wisconsin's allowance for the hunting of wolves at night as a State prerogative and not germane to the hunting of migratory birds (to improve public safety, the Wisconsin Department of Natural Resources has imposed additional restrictions for night wolf hunting to include: (1) Using bait or predator call ,which the Service prohibits for waterfowl; and (2) from a stationary position). We also note that 29.185(6)(d) (published April 16, 2012) limits wolf night hunting until after the close of the deer season for safety concerns. This new State allowance does not alleviate our previously identified concerns.

Increasing the Overall Daily Bag Limit for Ducks

Based on the proposed increased daily bag limits (from 30 to 50 ducks per day in the 1837 and 1842 Treaty Areas), GLIFWC is estimating a relatively small additional duck harvest (1,050 to 1,575 ducks). While it is possible that hunter participation and harvest could increase beyond their estimates (50 percent), we do not anticipate such an increase given their relatively small average daily harvest (2.2 ducks per day) and the GLIWFC proposals we are adopting. Further, GLIFWC reports that the largest number of ducks reportedly harvested in a single day was 20. Thus, we do not anticipate any large-scale harvest shifts or significant biological conservation impacts with GLIFWC's proposal. However, we also note that GLIFWC's own dated harvest data indicates that present daily bag limits do not appear to be a hindrance or limiting factor for Tribal harvest, and increasing the daily bag limit to 50 ducks from the present 30-duck daily bag limit would be far in excess of anything we currently have experience with regarding tribal migratory bird hunting regulations. We further note that in 2007, in an effort to obtain the necessary information, we implemented a pilot expansion of the daily bag limit for ducks to 30 birds per day in the 1837 and 1842 Treaty Areas. We supported this change with the understanding that we would need to closely monitor tribal harvest through either GLIFWC's own increased harvest surveys or GLIFWC's assisting the Service to survey tribal hunters. We have reiterated our request over the past several years for GLIFWC to continue their current harvest survey based on our implementation of this pilot bag limit increase for ducks in the 1837 and 1842 Treaty Areas in 2007, particularly for species such as mallards, the bag limits for which were subsequently significantly increased in 2008 (from 10 to 30 per day). To date, we have not been presented with any new final reports since the 2008 harvest survey results.

Remove Restrictions on Decoy Use in Wisconsin

In Wisconsin, State law requires that decoys may not be placed more than an hour before legal shooting hours or left out more than 20 minutes after legal shooting hours. As we stated last year concerning a similar decoy restriction in Michigan (76 FR 54676, September 1, 2011), while we believe that there may be safety concerns with elimination of such a restriction, we take no position on the relative need or lack of need for such a restriction. Other than regulations on National Wildlife Refuges and other Federal lands, there are no Federal restrictions requiring the removal of unattended decoys.

Additionally, given the fact that tribal waterfowl hunting covered by this rule would occur on ceded lands that are not in the ownership of the Tribes, we believe the use of unattended decoys to “reserve” hunting areas in public waters (i.e., those lands in the ceded territories outside of lands directly controlled by the Tribes) could lead to confusion and frustration on the part of the public, hunters, wildlife-management agencies, and law enforcement officials due to the inherent difficulties of different sets of hunting regulations for different areas and groups of hunters. However, we view this issue as a Tribal-State issue, and the Service takes no position on it in this rule.

Removal of Species Restrictions for Ducks

We have several concerns with GLIFWC's proposal to remove all species restrictions within the overall duck daily bag limits in the 1837 and 1842 Treaty Areas. We have a number of duck species that are either showing long-term downward population trends (pintails and black ducks), or other species for which an increased daily bag limit of 50 birds per day could potentially have conservation impacts (scaup, canvasbacks), particularly on locally breeding ducks (mallards and wood ducks). Overharvest of these species in localized areas due to removal of species restrictions could contribute to long-term declines. However, while we believe the proposal to eliminate all species restrictions within the daily bag limit for ducks could potentially have resource conservation impacts on locally breeding duck populations, and would prefer not to implement such a change at this time, we are willing to remove the restrictions for tribal harvest in the 1836, 1837, and 1842 ceded areas. As we stated last year regarding the removal of possession limits (76 FR 54676, September 1, 2011), we make this change with some trepidation. However, we see no significant conservation implications given the relatively small numbers of tribal hunters, and in the interest of our long-term relationship with GLIWFC and the high importance GLIWFC has placed on this issue, we would agree with this important change. We note that, should resource conservation impacts be discovered, or should a particular species” population status warrant action, we would expect that the lack of species restrictions would be revisited and adjusted accordingly, especially if a particular species warranted a nationwide closed season (e.g., canvasbacks).

Earlier Duck Season Opening Date

The Migratory Bird Treaty allows the hunting of migratory game birds beginning September 1. Generally, we have tried to guide Tribes to select an opening date for duck hunting of no earlier than September 15. This guidance is based on our concern that hunting prior to September 15 significantly increases the potential for taking ducks that have not yet fully fledged (normally the result of late-nesting or renesting hens) or species misidentification due to the fact that some species and/or sexes are not yet readily distinguishable. While these impacts primarily concern locally breeding ducks, the potential does exist for the take of molt migrants, i.e., birds that have specifically migrated to an area to complete the molting process. We would prefer that GLIFWC adhere to this guidance and would prefer not to implement such a change at this time. However, we see no significant conservation implications given the relatively small numbers of tribal hunters and are willing to allow GLIFWC to begin the duck season on September 4 in the 1836, 1837, and 1842 ceded areas. We are implementing this change in the interest of our long-term relationship with GLIWFC and the understanding that if significant conservation impacts are discovered, we would adjust the duck season opening date accordingly.

Sandhill Crane Season

We have no objections to the establishment of a sandhill crane season in the 1837 and 1842 Treaty Areas. We note that at least one other Tribe currently has a sandhill crane season (see (c) Fond du Lac Band of Lake Superior Chippewa in Minnesota elsewhere in this rule) and another proposed establishing a new season this year (see (d) Grand Traverse Band of Ottawa and Chippewa in Michigan elsewhere in this rule). All cranes in these current and new hunt areas are Eastern Population (EP) sandhill cranes. EP sandhill cranes rebounded from near extirpation in the late 1800s to more than 30,000 cranes by 1996. As of last year, the current 3-year average population index for EP cranes was 51,217 cranes. As a result of this rebound and their continued range expansion, the Atlantic and Mississippi Flyway Councils developed a cooperative management plan for this population, and criteria were developed describing when hunting seasons could be opened. The State of Kentucky held its first hunting season on this population in 2011-12 and harvested 50 cranes. Further, allowance for Tribal harvest is specifically considered in the EP plan.

GLIFWC estimates that no more than 50 cranes will be harvested during the season. We note that two cranes were harvested last year in the inaugural Fond du Lac sandhill crane season. We support the establishment of GLIFWC's new sandhill crane season. However, given the need to closely monitor the harvest of this species, we requested that GLIFWC implement either a special crane harvest tag or crane harvest reporting system/survey to track crane harvest, similar to that implemented by Fond du Lac last year, and requested of Grand Traverse this year (see (d) Grand Traverse Band of Ottawa and Chippewa Indians in Michigan elsewhere in this rule).

Tundra Swan Season

As we stated with sandhill cranes, we are not opposed to the establishment of a tundra swan season in Wisconsin. However, unlike the sandhill crane issue, the establishment of a new tundra swan season in the ceded territory areas in question involves several significant concerns and special considerations. We believe these concerns need further study and consideration before any implementation of a new tundra swan season in the ceded territories.

First, the GLIFWC proposed areas in question are also home to trumpeter swans. Many cooperators, including GLIFWC, worked together to reestablish a breeding trumpeter swan population in the Great Lakes. These efforts have been largely successful with the removal of this species from the Wisconsin endangered species list in 2009. After a 25-year recovery program, there are currently about 200 breeding pairs in Wisconsin. However, it is very difficult to distinguish between tundra and trumpeter swans unless swans vocalize in flight. We have significant concerns over the accidental harvest of trumpeter swans by tribal hunters hunting during a tundra swan season. Further, within Wisconsin, the northern ceded territory is an area of high trumpeter swan use containing over 80 percent of the breeding pairs. We believe such areas should be avoided either temporally or geographically to the extent possible. When a hunting season on tundra swans is ultimately implemented, we believe it would be best to focus hunting efforts on the primary tundra swan migration concentration areas while avoiding areas of significant trumpeter swan numbers. Unfortunately, most such areas are located outside of the ceded territories of northern Wisconsin.

In addition to the concerns about potential impacts to trumpeter swans, we believe it is imperative that any tribal tundra swan hunting proposal follow the Eastern Population of tundra swans management plan including a quota permit system and harvest reporting. The EP tundra swan management plan was cooperatively developed by the Atlantic, Central, and Mississippi Flyway Councils in 2007 and guides the management and harvest of EP tundra swans.

While we appreciate GLIFWC's proposed revisions to their initial tundra swan season proposal (area restrictions, mandatory registration, and carcass verification), we continue to believe that a tribal tundra swan hunting season in the ceded territory should not be implemented this year. Given that all these concerns can be worked through over the next year, we do not believe that implementation of a tundra swan season next season is unrealistic. We note that both the Service and the State wildlife agencies have considerable trumpeter swan information that would be helpful in conducting additional biological evaluation and harvest planning and are available to work with GLIFWC on resolution of these issues. We would prefer that all these issues be carefully considered and resolved by all involved parties to ensure that whatever action permitted for tundra swans in the future is not detrimental to trumpeter swans. We encourage GLIFWC to contact the Service early next year to cooperatively work through the issues involved with implementing a tundra swan season in the ceded territories.

Correction to Merganser and Woodcock Seasons

As we stated regarding the earlier duck season opening date, while we would prefer that GLIFWC not implement such a change at this time, we see no significant conservation implications given the relatively small numbers of tribal hunters and are willing to allow GLIFWC to begin both the merganser and woodcock seasons on September 4 in the 1836 Treaty ceded areas. We are implementing this change in the interest of our long-term relationship with GLIWFC and the understanding that if significant conservation impacts are discovered, we would adjust the season opening dates accordingly.

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 a 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 (SEIS) 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 released the draft SEIS on July 9, 2010 (75 FR 39577). The draft SEIS is available either by writing to the address indicated under FOR FURTHER INFORMATION CONTACT or by viewing our Web site at http://www.fws.gov/migratorybirds.

Endangered Species Act Consideration

Section 7 of the Endangered Species Act, as amended (16 U.S.C. 1531-1543; 87 Stat. 884), provides that, “The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (and) shall “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. * * *.”

Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would 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, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks reflect any such modifications. Our biological opinions resulting from this section 7 consultation are public documents available for public inspection at the address indicated under ADDRESSES.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is significant because it will have an annual effect of $100 million or more on the economy.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

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. We also chose alternative 3 for the 2009-10 and the 2010-11 seasons. At this time, we are proposing no changes to the season frameworks for the 2012-13 season, and as such, we will again consider these three alternatives. However, final frameworks for waterfowl will be dependent 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 http://www.fws.gov/migratorybirds/NewReportsPublications/SpecialTopics/SpecialTopics.html#HuntingRegs or at http://www.regulations.gov at Docket No. FWS-R9-MB-2012-0005.

Regulatory Flexibility Act

The annual migratory bird hunting 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 ADDRESSES) or from our Web site at http://www.fws.gov/migratorybirds/NewReportsPublications/SpecialTopics/SpecialTopics.html#HuntingRegs or at http://www.regulations.gov at Docket No. FWS-R9-MB-2012-0005.

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 will have an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we are not deferring 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 utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of our Migratory Bird Surveys and assigned control number 1018-0023 (expires 4/30/2014). 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. 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 rule, has determined that this 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 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, this rule allows 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 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. However, in the April 17 Federal Register, 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 2012-13 migratory bird hunting season. The resulting proposals were contained in a separate August 16, 2012, proposed rule (77 FR 49680). 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. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Regulations Promulgation

The rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published, we established what we believed were the longest periods possible for public comment. In doing this, we 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, States and Tribes would have insufficient time to select season dates and limits; to communicate those selections to us; and to establish and publicize the necessary regulations and procedures to implement their decisions. We therefore find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and these seasons will, therefore, take effect less than 30 days after the date of publication.

Accordingly, with each participating Tribe having had an opportunity to participate in selecting the hunting seasons desired for its reservation or ceded territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.

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 continues to read as follows:

Authority: Migratory Bird Treaty Act, 40 Stat. 755, 16 U.S.C. 703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Pub. L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

Note:

The following hunting regulations provided for by 50 CFR 20.110 will not appear in the Code of Federal Regulations because of their seasonal nature.

2. Section 20.110 is revised to read as follows: