Federal Register, Volume 88 Issue 169 (Friday, September 1, 2023)

[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Rules and Regulations]
[Pages 60375-60383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19067]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[Docket No. FWS-HQ-MB-2022-0090; FF09M32000-234-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: Final rule.

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SUMMARY: As part of the rulemaking process for the 2023-2024 season for
migratory game bird hunting, the U.S. Fish and Wildlife Service
(hereinafter, Service or we) has revised the process for establishing
regulations for certain Tribes on Federal Indian reservations, off-
reservation trust lands, and ceded lands. The Service recognizes Tribal
treaty rights and the reserved hunting rights and management authority
of Indian Tribes and seeks to strengthen Tribal sovereignty. We will no
longer require that Tribes annually submit a proposal to the Service
for our review and approval and no longer publish in the Federal
Register the annual Tribal migratory bird hunting regulations. Instead,
the regulations now include elements of our current guidelines for
establishing migratory game bird hunting regulations on Federal Indian
reservations (including off-reservation trust lands) and ceded lands.
Since 1985, Tribal migratory bird harvest has been small with
negligible impact to bird population status, and we anticipate that
Tribal hunting of migratory birds will continue to have similar
negligible impacts to bird populations in the future. This rule will
reduce administrative burdens on both the Tribes and the Service while
continuing to sustain healthy migratory game bird populations for
future generations.

DATES: This rule takes effect September 1, 2023.

ADDRESSES: You may inspect comments received on the migratory bird
hunting regulations at https://www.regulations.gov at Docket No. FWS-
HQ-MB-2022-0090. You may obtain copies of referenced reports from the
Division of Migratory Bird Management's website at https://www.fws.gov/program/migratory-birds or at https://www.regulations.gov at Docket No.
FWS-HQ-MB-2022-0090.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, U.S. Fish and Wildlife
Service, Department of the Interior, (703) 358-2606. 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 outside
limits (hereinafter, Federal outside limits or Federal limits) for
season dates, season lengths, shooting hours, bag and possession
limits, and areas where migratory game bird hunting may occur. Hunting
seasons selected by the States and Tribes within these Federal limits
are set forth in regulations at 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 outside limits are necessary to allow harvest at levels
compatible with migratory game bird population status and habitat
conditions. To determine the appropriate outside limits for each
species, we consider factors such as population size and trend,
geographical distribution, annual breeding effort, condition of
breeding and wintering

[[Page 60376]]

habitat, number of hunters, and anticipated harvest. After Federal
limits are established, States may select migratory game bird hunting
seasons within these limits. States may always be more conservative in
their selections than the Federal limits, but never more liberal.

Previous Tribal Rulemaking Process

Beginning with the 1985-86 hunting season, we have employed
guidelines described in the June 4, 1985, Federal Register (50 FR 23459
at 23467) to establish special (independent from the State or States
where the reservation is located) migratory game bird hunting
regulations 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 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. Then, upon receipt of
information provided by the Tribes each year on the status of migratory
bird populations and expected migratory bird harvest, we evaluated the
potential impact of special Tribal hunting regulations on the migratory
bird resource. 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 the regulations. We have always
concluded that this harvest, when conducted within our guidelines, is
small and, therefore, would have a negligible impact to the bird
population status.
For the 2023-24 hunting season, we published proposed regulations
for certain migratory game birds on November 3, 2022 (87 FR 66247). In
that proposed rule, we stated that we would handle Tribal regulations
for the 2023-24 hunting season via a separate rulemaking process in
later Federal Register documents. Accordingly, on March 23, 2023, we
proposed 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 (88 FR
17511). That proposed rule initiated a process for developing special
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.

New Process for Managing Tribal Migratory Bird Hunting

Under the regulations in this final rule, 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
stateofthebirds.org.). Based on the demonstrated successful
implementation of our Tribal guidelines since 1985 and the historical
and future expected minimal impacts to migratory game bird resources,
we have simplified the process for establishing special Tribal
migratory game bird hunting regulations for the upcoming hunting season
(2023-2024) and afterwards. We have removed 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 will no longer publish special Tribal migratory game bird hunting
regulations in the Federal Register (i.e., a proposed and final rule).
The regulations set forth in this rule adopt elements of our 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. However, if circumstances change and data
indicates migratory game bird populations are substantially declining
or Tribal hunting increases significantly, we will reevaluate this
regulation.
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. This rule will extend to Tribes with
reserved hunting rights the same autonomy as the States to
independently establish migratory game bird hunting seasons for
nontribal members within annually established, biologically appropriate
Federal outside limits. 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 coordinated with Tribes over the
past 2 years via letters and four webinars as we developed this new
regulatory approach for Tribal self-management of the harvest, and we
have received positive feedback. The new system 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 prior process, the new 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 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

[[Page 60377]]

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.
Tribal and State requests for consultation with the Service should be
sent to the Service's Assistant Director for the Migratory Bird
Program; see FOR FURTHER INFORMATION CONTACT. We note that our guidance
on resolving issues of concern between Tribes and States on
reservations and ceded lands is the same guidance we provided under the
previous Tribal regulation process.
The rule portion of this document includes requirements for Tribes
to follow if they establish special Tribal migratory game bird hunting
regulations, which are based on elements from the 1985 guidelines. The
regulations provide that all Federal hunting regulations in this part
apply to hunting by Tribal and nontribal members. We note that
migratory game birds are defined in 50 CFR 20.11(a) as those birds
included in the terms of conventions between the United States and any
foreign country for the protection of migratory birds, belonging to
certain families (Anatidae, Columbidae, Gruidae, Rallidae, and
Scolopacidae), and for which open seasons are prescribed in this part.
Open seasons for certain migratory game bird species are established by
the Service annually as appropriate based on the biological status of
these populations and published in the Federal Register as Federal
outside limits. Tribes are encouraged to review each year the Federal
outside limits to determine the list of migratory game bird species and
species groups with authorized open seasons, and any special concerns
regarding population status. Furthermore, annual review of the Federal
outside limits for migratory game bird hunting seasons ensures that
Tribal regulations for nontribal members on reservation lands comply
(as required by regulations) with opening and closing dates, season
length, and daily bag and possession limits established by the Service.
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 that allow swan hunting require that all
swan hunters successfully complete a course on swan identification and
conservation to minimize take of trumpeter swans during the swan
season.
These 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 (March 11 to August 31)
mandated by the 1916 Convention Between the United States and Great
Britain (for Canada) for the Protection of Migratory Birds and it is
not so large as to adversely affect the status of the migratory game
bird resource. Since the inception of the 1985 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 similar type of formal
agreement) on conducting short-term (possibly several years)
experimental hunting seasons using methods outside of the Federal
hunting methods at Sec. 20.21 for on-reservation and ceded lands
hunting by Tribal members. The Tribal-member-only experimental hunting
season would provide data and evaluation criteria specified in an
agreement for consideration if a Tribe would like to make the
additional hunting method operational. 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 regarding
hunting methods outside of the Federal regulations (see FOR FURTHER
INFORMATION CONTACT). While we intend to make proposed MOUs or other
agreements available for public comment through a notice of
availability, we might not use the public process for very minor or
nonsignificant MOUs or agreements. The Service will make all signed
agreements publicly available. If any individual Tribe wishes to make
these additional experimental hunting methods operational and the
Service agrees, the Service will conduct rulemaking (using any data
from the experimental hunting season) to amend 50 CFR part 20 to allow
Tribal members to use these additional hunting methods.
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 process would not apply to seasons for
subsistence take of migratory birds in Alaska.

Review of Public Comments for Tribal Proposed Rule

For the 2023-24 migratory bird hunting season and beyond, we
proposed regulations (88 FR 17511, March 23, 2023) that followed the
revised 1985 guidelines. The comment period for the March 23, 2023,
proposed rule closed on May 8, 2023.
We received a total of 10 written responses from 5 individuals, 3
Tribes, 1 State, and 1 organization. Five commenters supported the
proposed new process, and two commenters did not support the proposed
process. Three commenters were opposed to migratory bird hunting in
general. We grouped written comments of a similar nature and discuss
them below. We have incorporated, as appropriate, into the final rule
information obtained through the public comment period.
We also note that, in addition to the written comments, we received
substantial support for the new process via verbal comments (21
supporting, none opposed) during the 4 Tribal webinars during 2022 and
2023 where we explained the proposed new Federal process for
establishing Tribal hunting regulations. We also received five emails
or telephone calls in support of the new process, and none that were
opposed.
Comment 1: There is a potential conflict between harvesting wild
rice and hunting during September teal seasons, and this issue was not
adequately addressed by the Service in the proposed rule. Tribal
autonomy is needed to coordinate with Tribal farmers to ensure safety
as well as hunting success. A convention between States and Tribes may
be needed to find common ground in addressing this potential conflict.
Service response: We have since facilitated meetings with the
applicable Tribe and State to understand the potential conflict between
harvesting

[[Page 60378]]

wild rice and teal hunting. These activities are not mutually
exclusive. Based on the facilitated meetings held, we remain optimistic
that those discussions will result in local solutions that minimize
potential conflicts into the future. For the specific area referred to
in the comment, an agreement has been reached and area restrictions
will be identified in State and Tribal regulations.
Comment 2: The Service should consider environmental impacts from
new hunting methods on the fish population, water quality, and
streambank preservation. For example, lead shot (which is currently
illegal) has a high potential to contaminate local waterways creating
dangerous drinking water and decimated fish populations.
Service response: We share the commenter's concern and do take into
consideration and address environmental impacts on a case-by-case basis
during the National Environmental Policy Act (NEPA) process for
migratory game bird hunting regulations. The Service would analyze
these possible environmental impacts as part of any short-term
experimental hunting season; and if a Tribe would like to make an
additional hunting method operational, the Service would also analyze
these possible environmental impacts when conducting rulemaking to
amend the regulations.
Comment 3: Several commenters oppose the entire migratory game bird
hunting regulations process and the killing of migratory birds and
questions the status and habitat data on which the migratory bird
hunting regulations are based.
Service response: As we indicate in the annual population status
and harvest reports, our long-term objectives continue to include
providing opportunities to harvest portions of certain migratory game
bird populations and to limit harvests to levels compatible with each
population's ability to maintain healthy, viable numbers. Sustaining
migratory bird populations and ensuring a variety of sustainable uses,
including harvest, is consistent with the guiding principles by which
migratory birds are to be managed under the conventions between the
United States and several foreign nations for the protection and
management of these birds. We have taken into account available
information and considered public comments and continue to conclude
that the hunting seasons provided for herein are compatible with the
current status of migratory bird populations and long-term population
goals. In regard to the regulations process, the Flyway Council system
of migratory bird management has been a longstanding example of State-
Federal cooperative management since its establishment in 1952 in the
regulation development process and bird population and habitat
monitoring. However, as always, we continue to seek new ways to
streamline and improve the process and ensure adequate conservation of
the resource.
Comment 4: Both Indigenous and non-Indigenous hunters need to be
addressed on reservations and ceded lands. The proposed rule mentions
the importance of this issue but does not address the various cases.
Service response: We have concluded that the regulatory framework
authorizing the establishment of Tribal hunting regulations does allow
Tribes to establish combined or separate regulations within certain
limits, and as appropriate for both Tribal and non-Tribal hunters on
reservations and ceded lands. This rule does address the various cases.
On reservations, nontribal members are subject to the Federal outside
limits for season dates, season length, and daily bag and possession
limits; Tribal members can have the same regulations as nontribal
members, or the Tribe can choose different regulations for Tribal
members only that may be outside of the Federal limits, subject to the
annual March 11 to August 31 closed season mandated by the 1916
Convention. On ceded lands, Tribes may establish regulations for Tribal
members with hunting seasons that may be outside of Federal limits,
subject to the closed season mandate.
Comment 5: Highly pathogenic avian influenza (HPAI) is causing
avian mortality and may decimate bird populations. The most important
aspect for these hunting regulations is not only preventing extinction
for these species, but maintaining healthy population numbers to ensure
sustainable ecosystems.
Service response: We are working with partners to monitor HPAI
mortality of migratory birds, and we anticipate that our current
monitoring programs will detect any significant changes to migratory
game bird populations. The Service currently chairs the Interagency
Steering Committee for Avian Influenza Surveillance in Wild Migratory
Birds, which has increased avian influenza surveillance of wild birds
across the country. To ensure effective surveillance, we are
coordinating with partners so that there can be early detection; rapid
communications; quick and accurate laboratory diagnosis; efficient
relay of diagnostic findings back to the field, decision-makers, and
the public; and implementation of prevention and management actions
where necessary.
Comment 6: The Service is also considering changes to the current
hunting regulation promulgation process for States, and advancing the
two proposals on a similar timeline could be beneficial for commenters
as it is challenging to evaluate the full effect of the proposed rule
without being able to place it in a more complete context.
Service response: To better serve State partners and the hunting
public, we are working to develop a more efficient process for
promulgating and publishing annual migratory game bird hunting
regulations, while continuing to meet the legal requirements and
conservation purpose of the Migratory Bird Treaty Act. We are working
to make these improvements as soon as practicable, but this effort will
take some time and involves extensive coordination with the Service's
Office of Law Enforcement, the Department's Solicitor's Office, and the
Flyway Councils. Also, we note that any such changes are expected to
change only the Federal internal process for hunting regulation
promulgation and does not otherwise change the long-established
effective process of annually working with the Tribes, Flyway Councils,
and States to monitor the status of migratory game bird populations,
make informed regulatory decisions from established frameworks, or
change the process for Flyway Councils to make recommendations on
Federal outside limits.
Comment 7: The Service should add recognition of Tribal treaty
rights to migratory bird hunting regulations to ensure that impacts on
Tribal treaty rights are considered and protected.
Service response: We added a statement above in the preamble of
this final rule regarding recognition of Tribal treaty rights.
Comment 8: The rule should clarify that, for on-reservation lands,
hunting methods outside of the Federal hunting methods at Sec. 20.21
remain available for ceded lands and add this clarification to Sec.
20.110.
Service response: We agree that clarification is needed in the rule
in regard to hunting by Tribal members and also note that the proposed
regulations allowed for this change. For clarification, we have added
``and ceded lands'' to the preamble of this final rule under the
section ``New Process for Managing Tribal Migratory Bird Hunting'' and
to the final regulations that are set forth in this final rule (Sec.
20.110).
Comment 9: The Service should continue to publish proposed Tribal

[[Page 60379]]

regulations in the Federal Register. This process should not be
mutually exclusive with advances in recognition of Tribal sovereignty
and pursuit of administrative efficiency. Further, should the Service
determine that changes or efficiencies are needed in the existing
process, we would recommend that States, Tribes, and Flyway Councils be
engaged collectively to determine the best path forward for any
modifications.
Service response: Similar to this rulemaking, we will publish any
subsequent proposed changes to Tribal migratory bird hunting
regulations in the Federal Register for public review and comment.
Regarding the regulations set forth in this final rule, we have
determined that annual publication of Tribal regulations is not
necessary so long as Tribal hunting seasons are consistent with our
guidelines. As described above, beginning with the 1985-86 hunting
season, we have employed guidelines described in the June 4, 1985,
Federal Register (50 FR 23459 at 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 game bird resource receives necessary protection. The Service
adopted the 1985 guidelines as final in 1988 (53 FR 31612, August 18,
1988).
The regulations set forth in this final rule include elements of
our current guidelines successfully employed since 1985 for
establishing special migratory game bird hunting regulations on Federal
Indian reservations (including off-reservation trust lands) and ceded
lands. By incorporating these guidelines into regulations, Tribes are
authorized to independently establish hunting seasons for migratory
game birds, so long as they are within certain limits as specified in
these regulations. This rule will extend to Tribes with reserved
hunting rights the same autonomy as the States to independently
establish migratory game bird hunting seasons for nontribal members
within annually established, biologically appropriate Federal limits.
This approach results in a more efficient promulgation process for both
the Tribes and the Service. Resultant Tribal regulations for migratory
game bird hunting are unchanged as a result of the new process. This
rule does provide some flexibility for hunting by Tribal members on
reservations and ceded lands to deviate from Federal regulations that
apply in this part where such harvest is a customary practice, but
these deviations are subject to an MOU between the Service and the
Tribe or Federal rulemaking, both of which will be published in the
Federal Register and subject to public review and comment. However, we
may not use the public process for very minor or nonsignificant MOUs or
agreements.
Furthermore, each year from the 1985-86 hunting season through the
2022-2023 hunting season, the Service received game bird harvest data
from the Tribes. Using information on the status of migratory bird
populations, the Service evaluated the potential impact of special
Tribal hunting regulations on migratory game bird populations.
Throughout that time, the Service concluded that annual Tribal harvest
is small and, therefore, would have negligible impacts on the
population status of migratory game birds. For each species/species
group reported, Tribal harvest was less than one-half a percent of the
total U.S. harvest, and for several species/species groups was less
than one-tenth a percent as indicated in the NEPA review process.
Comment 10: The Service should include a presumption that Tribes
have reserved hunting rights on Federal Indian reservations and trust
lands. Unless a treaty or Federal statute clearly revokes a Tribe's
rights to hunt or fish, those rights are reserved to the Tribe. See,
e.g., United States v. Winans, 198 U.S. 371 (1905). The Service should
make the following clarification to paragraph (b) of the regulatory
text regarding applicability: Unless a Tribe's hunting rights have been
expressly revoked by Congress, special Tribal migratory game bird
hunting regulations may be established by Tribes that have reserved
hunting rights on Federal Indian reservations.
Service response: We conclude that the proposed regulation
authorizing, within limits, certain Tribes to establish hunting seasons
for migratory game birds on Federal Indian reservations, off-
reservation trust lands, and ceded lands give Tribes more flexibility,
consistent with Tribal sovereignty and in recognition of Tribal treaty
rights. Further, the Service has been charged by Congress to manage
migratory birds and given authority over associated migratory bird
hunting regulations. We also conclude that Congress' process to revoke
the hunting rights for Tribal migratory bird hunting is outside the
scope of these regulations. In this final rule, we have retained the
language from the proposed rule for paragraph (b).
Comment 11: The United States Code (16 U.S.C. 704(a)) requires the
Service to consider certain factors in authorizing and regulating
migratory bird harvest, including: zones of temperature and the
distribution, abundance, economic value, breeding habits, and times and
lines of migratory flight of migratory birds. Under the proposed rule,
it is not clear how the Service will continue to assess these factors
with respect to Tribal migratory bird regulations moving forward.
Service response: The new process for authorizing, within limits,
Tribal regulations for migratory game bird hunting seasons will not
change resultant Tribal regulations or cooperative monitoring programs
to evaluate migratory game bird population status. Also, it will not
change the established decision frameworks for informing Federal
outside limits or the Tribal, State, and Federal collaborative process
for establishing these Federal limits. The Federal limits allow Tribal
and State selections of hunting seasons and limits and the opportunity
for harvest at levels compatible with population status and habitat
conditions.
Comment 12: The proposed rule is predicated on the Service's
anticipation that Tribal harvest will always have minimal impacts on
migratory bird resources in the future due to declining trends in
Tribal hunting participation and increasing trends for many migratory
bird populations. The potential exists that circumstances, which
underlie the Service's conclusion, may change. The proposed rule does
not clarify what steps the Service may take if such change in
circumstances occurs.
Service response: To address this issue, we have stated above in
the preamble of this final rule that, if circumstances change and data
indicates that migratory game bird populations are substantially
declining or Tribal hunting increases significantly, we intend to
reevaluate this regulation. Also, we note that the regulations as set
forth in this final rule provide that regulations for nontribal members
on reservations must be within the annual outside limits for migratory
bird hunting seasons established by the Service, and all Federal
hunting regulations in this part also apply to nontribal hunters. The

[[Page 60380]]

annual establishment of Federal limits for migratory game bird hunting
seasons ensures harvest each year is at levels compatible with game
bird population status and habitat conditions (see the response to the
previous comment for more details).
Comment 13: Due to the unique shared nature of migratory bird
resources, there is benefit in Tribes continuing to share information
(including proposed regulations, anticipated harvest, harvest
monitoring methods, steps that will be taken to limit harvest if
necessary to avoid harm to migratory bird resources, and enforcement
capabilities) with the Service but the commenter recognized that there
may be other ways of facilitating this information exchange compared to
what is currently required. Additionally, it would add clarity if all
expectations related to data gathering and consideration are relocated
from the nonbinding explanatory text to the rule itself.
Service response: We conclude that the Tribal information sharing
pertaining to migratory game bird hunter activity and harvest is not
necessary to ensure harvest is sustainable within the limits specified
within our authorizing regulations set forth in this final rule. Our
conclusion on annual information sharing is based on Tribal harvests
having negligible impacts on the population status of migratory game
birds as noted in this final rule. However, any new proposed
experimental hunting would require an agreement with specific
evaluation criteria, and any new Federal regulations would require
rulemaking. Both of these proposals would be published in the Federal
Register and be subject to public review and comment prior to any final
agreement or regulations. Regarding experimental hunting, the
requirement for a formal agreement has been incorporated into 50 CFR
20.110 for certain Federal Indian reservations and ceded lands. Also,
we note that, in accordance with 50 CFR 20.20(c), Migratory Bird
Harvest Information Program--Tribal exemptions, the regulations'
general provisions for information collection and sharing does not
apply to Tribal members on Federal Indian reservations or to Tribal
members hunting on ceded lands. However, our regulations do not
preclude the Tribes from sharing hunter activity and harvest
information. Tribes may voluntarily share information with the Service
and/or States or post this information on Tribal websites for public
review.
Finally, we continue to work with the Tribes, Flyway Councils, and
States to annually monitor the status of migratory game bird
populations and habitat conditions and to make informed regulatory
decisions on appropriate Federal outside limits. This monitoring data
is the most informative information available on the status of these
managed populations, and significant reductions in population status
should first be identified in these long-term monitoring data sets.
Further, this rule will not change the established decision frameworks
for informing Federal outside limits from monitoring data or the
Tribal, State, and Federal collaborative process for establishing these
Federal limits.
Comment 14: Formal consultation between States and Tribes may be
appropriate in certain circumstances, and the rule is silent on this
topic. It is unclear when consultation may be requested and what
process would be applied. Additionally, because advanced notice of
proposed Tribal regulations may not be required, there is potential
that States may not have timely or sufficient information to make a
consultation request.
Service response: We agree that Tribes should notify the associated
State as soon as reasonably possible before hunting seasons begin
regarding regulations for Tribal members on ceded lands to maximize the
opportunity to coordinate with State law enforcement and minimize the
time needed for hunter checks in the field. We clarified the regulation
in this regard (see Sec. 20.110(d)). Further, we encourage Tribes to
consult with States on any significant changes in hunting regulations
for Tribal members on ceded lands before adopting such regulations.
Also, States may request formal consultation directly with the Tribe,
and vice versa, at any time there is concern regarding appropriate
hunting regulations for Tribal members on ceded lands, or Tribal
members on reservations, with the aim of facilitating an accord. We may
consult with a Tribe and State at the request of either party to help
resolve any relevant migratory game bird hunting regulation issues.
Regarding hunting regulations for nontribal members on reservations, we
have noted throughout this final rule that regulations for nontribal
members on reservations must be within the annually established,
biologically appropriate Federal limits for migratory bird hunting
seasons, and all Federal hunting regulations in this part also apply to
nontribal hunters. The annual establishment of outside limits for
migratory game bird hunting seasons allows harvest at levels compatible
with game bird population status and habitat conditions.

Effective Date

We are making this substantive rule effective immediately upon its
publication because this rule: (1) Relieves a restriction that Tribes
annually submit a proposal to the Service for our review and approval
to establish annual regulations for hunting migratory game birds; (2)
reduces the administrative burden on Tribes and the Service; and (3) is
necessary to allow hunting seasons to begin as soon as September 1,
2023. For the reasons cited above, we find that ``good cause'' exists,
within the terms of the Administrative Procedure Act at 5 U.S.C.
553(d)(3), for these regulations to take effect immediately upon
publication.

Required Determinations

National Environmental Policy Act (NEPA) Consideration

The programmatic document, ``Second Final Supplemental
Environmental Impact Statement: Issuance of Annual Regulations
Permitting the Sport Hunting of Migratory Birds (EIS 20130139),'' filed
with the Environmental Protection Agency (EPA) on May 24, 2013,
addresses NEPA compliance by the Service for issuance of the annual
outside limits for hunting of migratory game bird species. We published
a notice of availability in the Federal Register on May 31, 2013 (78 FR
32686), and our Record of Decision on July 26, 2013 (78 FR 45376). We
also address NEPA compliance for waterfowl hunting outside limits
through the annual preparation of separate environmental assessments,
the most recent being ``Duck Hunting Regulations for 2023-24,'' with
its corresponding finding of no significant impact. Both of these
documents are available at https://www.regulations.gov at Docket No.
FWS-HQ-MB-2022-0090.
We completed a Biological Review and NEPA Categorical Exclusion
Analysis in 2023 for this final rule available at https://www.regulations.gov at Docket No. FWS-HQ-MB-2022-0090. We analyzed this
rule in accordance with the criteria of the National Environmental
Policy Act of 1969 (NEPA; 42 U.S.C. 4332(C)), 43 CFR part 46, and 516
Departmental Manual (DM) 8. 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
person listed above

[[Page 60381]]

under FOR FURTHER INFORMATION CONTACT.

Endangered Species Act Consideration

Section 7 of the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.), provides that the Secretary 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.
After we published the March 23, 2023, proposed rule, we conducted
formal consultations to ensure that actions resulting from this
regulation, and other Federal fall-winter hunting 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 this regulation,
and other Federal fall-winter hunting regulations, are not likely to
jeopardize the continued existence of any endangered or threatened
species. The biological opinion resulting from this section 7
consultation is available for public inspection at the address
indicated under ADDRESSES.

Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094

Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. We have developed this final rule in a manner
consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. The annual migratory bird hunting regulations are considered a
``significant regulatory action,'' as defined under section 3(f)(1) of
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879, April 11, 2023).
An economic analysis was prepared for the 2023-24 migratory bird
hunting season. This analysis was based on data from the 2011 and 2016
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation
(National Survey), the most recent year for which data are available.
See discussion under Required Determinations, Regulatory Flexibility
Act, below. This analysis estimated consumer surplus for four
alternatives for duck hunting regulations. As defined by OMB in
Circular A-4, consumers' surplus is the difference between what a
consumer pays for a unit of a good or service and the maximum amount
the consumer would be willing to pay for that unit. The duck hunting
regulatory alternatives are (1) not opening a hunting season, (2)
issuing restrictive regulations that allow fewer days than the 2022-23
season, (3) issuing moderate regulations that allow more days than
those in Alternative 2 but fewer days than the 2022-23 season, and (4)
issuing liberal regulations that allow days similar to the 2022-23
season. For the 2023-24 season, we chose Alternative 4, with an
estimated consumer surplus across all flyways of $356 million. We also
chose Alternative 4 for the 2009-10 through 2022-2023 seasons. The
2023-24 analysis is part of the record for this rulemaking action and
is available at https://www.regulations.gov at Docket No. FWS-HQ-MB-
2022-0090.

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.). An initial
regulatory flexibility analysis was prepared to analyze the economic
impacts of the annual hunting regulations on small business entities.
This analysis is updated annually. The primary source of information
about hunter expenditures for migratory game bird hunting is the
National Survey, which is generally conducted at 5-year intervals. The
2023-24 analysis is based on the 2011 and 2016 National Survey and the
U.S. Department of Commerce's County Business Patterns, from which it
is estimated that migratory bird hunters would spend approximately $2.5
billion (2022$) at small businesses during the 2023-24 migratory bird
hunting season. Copies of the analysis are available upon request from
the person listed above under FOR FURTHER INFORMATION CONTACT or from
https://www.regulations.gov at Docket No. FWS-HQ-MB-2022-0090.

Congressional Review Act

Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act (also known as the Congressional Review Act or CRA), 5
U.S.C. 801 et seq., OIRA designated the annual migratory bird hunting
regulations as a major rule, as defined by 5 U.S.C. 804(2), because
this activity is likely to result in an annual effect on the economy of
$100 million or more. However, because this rule would establish a
regulatory program for activity related to hunting and because hunting
seasons are time sensitive, we do not plan to defer the effective date
under the exemption in the CRA, 5 U.S.C. 808(1).

Paperwork Reduction Act

This rule does not contain any new collection of information that
requires approval by the OMB under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). OMB has previously approved the information
collection requirements associated with migratory bird surveys and the
procedures for establishing annual migratory bird hunting seasons under
the following OMB control numbers:
1018-0019, ``North American Woodcock Singing Ground
Survey'' (expires 02/29/2024).
1018-0023, ``Migratory Bird Surveys, 50 CFR 20.20''
(expires 05/31/2026). Includes Migratory Bird Harvest Information
Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and
Parts Collection Survey.
1018-0171, ``Establishment of Annual Migratory Bird
Hunting Seasons, 50 CFR part 20'' (expires 10/31/2024).
You may view the information collection request(s) at http://www.reginfo.gov/public/do/PRAMain. An 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. 1501 et seq., that this
final rulemaking does not include any Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
for inflation) in any one year.

Civil Justice Reform--Executive Order 12988

The Department, in promulgating this final rule, has determined
that this rule

[[Page 60382]]

will not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

Takings Implication Assessment--Executive Order 12630

In accordance with E.O. 12630, this final 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 would not result in the physical occupancy
of property, the physical invasion of property, or the regulatory
taking of any property. In fact, this rule would allow hunters to
exercise otherwise unavailable privileges and, therefore, would reduce
restrictions on the use of private and public property.

Energy Effects--Executive Order 13211

E.O. 13211 requires agencies to prepare statements of energy
effects when undertaking certain actions. This final rule is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy and is not a significant energy action. Therefore, 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), E.O. 13175, and 512 DM 2, we have
evaluated possible effects on federally recognized Indian Tribes and
have determined that there are de minimis effects on Indian trust
resources. Through the process to establish annual hunting regulations,
we regularly coordinate with Tribes, and we coordinated with Tribes on
the development of this new regulatory process.

Federalism Effects--Executive Order 13132

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 Federal limits
from which Tribes and States may establish hunting seasons for
migratory game 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 Tribe may be
more restrictive in its regulations than the Federal limits. The
Federal limits are developed annually in a cooperative process with the
Tribes, States, and Flyway Councils. This process allows Tribes and
States to participate in the development of Federal limits from which
they will make selections, thereby having an influence on their own
regulations. These rules do not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O. 13132,
these regulations do not have federalism implications and do not
warrant the preparation of a federalism summary impact statement.

Signing Authority

Shannon Estenoz, Assistant Secretary for Fish and Wildlife and
Parks, approved this action on August 7, 2023, for publication. On
August 24, 2023, Shannon Estenoz authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
the Interior.

List of Subjects in 50 CFR Part 20

Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.

Regulation Promulgation

Accordingly, for the reasons described in the preamble, we hereby
amend title 50, chapter I, subchapter B, part 20, of the Code of
Federal Regulations as set forth below:

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 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
establish special (separate from the State or States in which the
reservation is located) 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 Federal limits
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 Federal limits for season dates, season
length, and daily bag and possession limits. All Federal hunting
regulations in this part apply.

[[Page 60383]]

(A) For a short-term experimental hunting season, a Tribe and the
Service may formally agree on allowed methods of take, notwithstanding
the regulations in Sec. 20.21 for on-reservation and ceded lands
hunting by Tribal members. The Service will make public any such formal
agreement.
(B) A Tribe that would like to make an additional hunting method
operational would need to provide data to the Service for
consideration. If the Service agrees with the Tribe's proposal, the
Service will conduct rulemaking to amend the regulations in this part
to allow Tribal members to use the additional hunting method.
(2) Tribes may establish off-reservation hunting regulations by
Tribal members on ceded lands, with hunting seasons that may be outside
of Federal limits for season dates, season length, and daily bag and
possession limits.
(d) Provisions for ceded lands. Tribes that have special migratory
game bird hunting regulations for Tribal members on ceded lands must
send a copy of the Tribal regulations to officials in the affected
State(s) as soon as reasonably possible prior to the season opening.

Maureen D. Foster,
Chief of Staff, Office of the Assistant Secretary for Fish and Wildlife
and Parks.
[FR Doc. 2023-19067 Filed 8-30-23; 4:15 pm]
BILLING CODE 4333-15-P