Migratory Bird Hunting; Final Frameworks for Late-Season Migratory Bird Hunting Regulations, 55602-55627 [E8-22439]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 187 (Thursday, September 25, 2008)]
[Rules and Regulations]
[Pages 55602-55627]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22439]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Final Frameworks for Late-Season Migratory Bird 
Hunting Regulations; Final Rule

Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[FWS-R9-MB-2008-0032; 91200-1231-9BPP-L2]
RIN 1018-AV62


Migratory Bird Hunting; Final Frameworks for Late-Season 
Migratory Bird Hunting Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service or we) prescribes final 
late-season frameworks from which States may select season dates, 
limits, and other options for the 2008-09 migratory bird hunting 
seasons. These late seasons include most waterfowl seasons, the 
earliest of which commences on September 27, 2008. The effect of this 
final rule is to facilitate the States' selection of hunting seasons 
and to further the annual establishment of the late-season migratory 
bird hunting regulations.

DATES: This rule takes effect on September 25, 2008.

ADDRESSES: States should send their season selections to: Chief, 
Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 
Department of the Interior, ms MBSP-4107-ARLSQ, 1849 C Street, NW., 
Washington, DC 20240. You may inspect comments during normal business 
hours at our office in room 4107, 4501 N. Fairfax Drive, Arlington, 
Virginia.

FOR FURTHER INFORMATION CONTACT: Robert Blohm, Chief, or Ron W. Kokel, 
Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 
(703) 358-1714.

SUPPLEMENTARY INFORMATION:

Regulations Schedule for 2008

    On May 28, 2008, we published in the Federal Register (73 FR 30712) 
a proposal to amend 50 CFR part 20. The proposal provided a background 
and overview of the migratory bird hunting regulations process, and 
dealt with the establishment of seasons, limits, and other regulations 
for hunting migratory game birds under Sec. Sec.  20.101 through 
20.107, 20.109, and 20.110 of subpart K. Major steps in the 2008-09 
regulatory cycle relating to open public meetings and Federal Register 
notifications were also identified in the May 28 proposed rule. 
Further, we explained that all sections of subsequent documents 
outlining hunting frameworks and guidelines were organized under 
numbered headings.
    On June 18, 2008, we published in the Federal Register (73 FR 
34692) a second document providing supplemental proposals for early- 
and late-season migratory bird hunting regulations. The June 18 
supplement also provided detailed information on the 2008-09 regulatory 
schedule and announced the SRC and Flyway Council meetings.
    On June 25 and 26, we held open meetings with the Flyway Council 
Consultants, at which the participants reviewed information on the 
current status of migratory shore and upland game birds and developed 
recommendations for the 2008-09 regulations for these species plus 
regulations for migratory game birds in Alaska, Puerto Rico, and the 
Virgin Islands; special September waterfowl seasons in designated 
States; special sea duck seasons in the Atlantic Flyway; and extended 
falconry seasons. In addition, we reviewed and discussed preliminary 
information on the status of waterfowl as it relates to the development 
and selection of the regulatory packages for the 2008-09 regular 
waterfowl seasons. On July 24, 2008, we published in the Federal 
Register (73 FR 43290) a third document specifically dealing with the 
proposed frameworks for early-season regulations. On August 27, 2008, 
we published in the Federal Register (73 FR 50678) a rulemaking 
establishing final frameworks for early-season migratory bird hunting 
regulations for the 2008-09 season. Subsequently, on August 29, 2008, 
we published a final rule in the Federal Register (73 FR 51088) 
amending subpart K of title 50 CFR part 20 to set hunting seasons, 
hours, areas, and limits for early seasons.
    On July 30-31, 2008, we held open meetings with the Flyway Council 
Consultants, at which the participants reviewed the status of waterfowl 
and developed recommendations for the 2008-09 regulations for these 
species. On August 29, 2008, we published in the Federal Register (73 
FR 51124) the proposed frameworks for the 2008-09 late-season migratory 
bird hunting regulations. This document establishes final frameworks 
for late-season migratory bird hunting regulations for the 2008-09 
season. We will publish State selections in the Federal Register as 
amendments to Sec. Sec.  20.101 through 20.107, and 20.109 of title 50 
CFR part 20.

Population Status and Harvest

    A brief summary of information on the status and harvest of 
waterfowl excerpted from various reports was included in the August 29 
supplemental proposed rule. For more detailed information on 
methodologies and results, complete copies of the various reports are 
available at the address indicated under ADDRESSES or from our Web site 
at https://www.fws.gov/migratorybirds/reports/reports.html.

Review of Public Comments and Flyway Council Recommendations

    The preliminary proposed rulemaking, which appeared in the May 28, 
2008, Federal Register, opened the public comment period for migratory 
game bird hunting regulations. The supplemental proposed rule, which 
appeared in the June 18, 2008, Federal Register, discussed the 
regulatory alternatives for the 2008-09 duck hunting season. Late-
season comments are summarized below and numbered in the order used in 
the May 28 and June 18 Federal Register documents. We have included 
only the numbered items pertaining to late-season issues for which we 
received written comments. Consequently, the issues do not follow in 
direct numerical or alphabetical order.
    We received recommendations from all four Flyway Councils. Some 
recommendations supported continuation of last year's frameworks. Due 
to the comprehensive nature of the annual review of the frameworks 
performed by the Councils, support for continuation of last year's 
frameworks is assumed for items for which no recommendations were 
received. Council recommendations for changes in the frameworks are 
summarized below.

General

    Written Comments: An individual commenter protested the entire 
migratory bird hunting regulations process, the killing of all 
migratory birds, and the Flyway Council process.
    Service Response: 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. Having taken 
into account the zones of temperature and the distribution, abundance, 
economic value, breeding habits, and times and lines of flight of 
migratory birds, we believe that the hunting seasons provided herein 
are compatible with the current status of migratory bird populations 
and long-term population goals. Additionally, we are obligated to, and 
do, give serious consideration to all

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information received as public comment. While there are problems 
inherent with any type of representative management of public-trust 
resources, we believe that the Flyway-Council system of migratory bird 
management has been a longstanding example of State-Federal cooperative 
management since its establishment in 1952. However, as always, we 
continue to seek new ways to streamline and improve the process.

1. Ducks

    Categories used to discuss issues related to duck harvest 
management are: (A) Harvest Strategy Considerations, (B) Regulatory 
Alternatives, (C) Zones and Split Seasons, and (D) Special Seasons/
Species Management. The categories correspond to previously published 
issues/discussion, and only those containing substantial 
recommendations are discussed below.

A. Harvest Strategy Considerations

    Council Recommendations: The Atlantic and Pacific Flyway Councils 
and the Upper- and Lower-Regulations Committees of the Mississippi 
Flyway Council recommended the adoption of the ``liberal'' regulatory 
alternative.
    The Mississippi Flyway Council opposed the implementation of the 
western mallard Adaptive Harvest Management (AHM) protocol and 
recommended the midcontinent mallard AHM protocol should be used for 
all three western Flyways.
    The Central Flyway Council also recommended the ``liberal'' 
alternative. However, as part of their Hunter's Choice experiment, they 
recommended continuation of the following bag limits:
    In Colorado, Montana, Nebraska, New Mexico, and Oklahoma, the daily 
bag limit would be six ducks, with species and sex restrictions as 
follows: five mallards (no more than two of which may be females), two 
redheads, two scaup, two wood ducks, one pintail, one mottled duck, and 
one canvasback. For pintails and canvasbacks, the season length would 
be 39 days, which may be split according to applicable zones/split duck 
hunting configurations approved for each State.
    In Kansas, North Dakota, South Dakota, Texas, and Wyoming, the 
daily bag limit would be five ducks, with species and sex restrictions 
as follows: two scaup, two redheads, and two wood ducks, and only one 
from the following group--hen mallards, mottled ducks, pintails, 
canvasbacks.
    Written Comments: The Wisconsin Conservation Congress and the 
Wisconsin Waterfowl Association opposed the removal of the Alaskan 
mallards from the mid-continent mallard stock.
    Service Response: As we stated in the August 29 proposed rule, we 
are continuing development of an AHM protocol that would allow hunting 
regulations to vary among Flyways in a manner that recognizes each 
Flyway's unique breeding-ground derivation of mallards. In the July 24 
Federal Register, we described and adopted a protocol for regulatory 
decision-making for the newly defined stock of western mallards. For 
the 2008 hunting season, we believe that the prescribed regulatory 
choice for the Pacific Flyway should be based on the status of this 
western mallard breeding stock, while the regulatory choice for the 
Mississippi and Central Flyways should depend on the status of the 
recently redefined mid-continent mallard stock. In defining the western 
breeding stock, based on available data, mallards breeding in Alaska 
were disassociated with the mid-continent mallard stock and reassigned 
to the western stock. We also recommend that the regulatory choice for 
the Atlantic Flyway continue to depend on the status of eastern 
mallards.
    For the 2008 hunting season, we considered the same regulatory 
alternatives as those used last year. The nature of the restrictive, 
moderate, and liberal alternatives has remained essentially unchanged 
since 1997, except that extended framework dates have been offered in 
the moderate and liberal regulatory alternatives since 2002. Also, in 
2003, we agreed to place a constraint on closed seasons in the western 
three Flyways whenever the midcontinent mallard breeding-population 
size (as defined prior to 2008; traditional survey area plus Minnesota, 
Michigan, and Wisconsin) was >=5.5 million. As we described in the July 
24 Federal Register, redefinition of the midcontinent mallard stock 
through the removal of Alaska necessitated that both the population 
constraint (North American Waterfowl Management Plan goal plus 
Minnesota, Michigan, and Wisconsin) and the closed season constraint in 
the midcontinent mallard objective function be rescaled to 8.5 million 
and 4.75 million, respectively, in order to appropriately reflect the 
change in stock definition and to achieve performance of the mid-
continent mallard strategy that is comparable to performance prior to 
the stock redefinition.
    Optimal AHM strategies for the 2008 hunting season were calculated 
using: (1) Harvest-management objectives specific to each mallard 
stock; (2) the 2008 regulatory alternatives; and (3) current population 
models and associated weights for midcontinent, western, and eastern 
mallards. Based on this year's survey results of 7.87 million 
midcontinent mallards (traditional survey area minus Alaska plus 
Minnesota, Wisconsin, and Michigan), 3.06 million ponds in Prairie 
Canada, 913.8 thousand western mallards (381.1 and 532.4 thousand, 
respectively, in California-Oregon and Alaska), and 815 thousand 
eastern mallards, the prescribed regulatory choice for all four Flyways 
is the liberal alternative.
    Therefore, we concur with the recommendations of the Atlantic, 
Mississippi, Central, and Pacific Flyway Councils regarding selection 
of the ``liberal'' regulatory alternative and will adopt the 
``liberal'' regulatory alternative, as described in the June 18 Federal 
Register.
    Regarding Hunter's Choice, we support continuation of the Central 
Flyway Council's recommendation for a 3-year evaluation of the Central 
Flyway's Hunter's Choice duck bag limit. The Central Flyway's Hunter's 
Choice regulations are intended to limit harvest on pintails and 
canvasbacks in a manner similar to the season-within-a-season 
regulations. Hunter's Choice regulations should also reduce harvests of 
mottled ducks and hen mallards, while maintaining full hunting 
opportunity on abundant species such as drake mallards. For the species 
included in the aggregate bag limit, the harvest of one species is 
intended to ``buffer'' the harvest of the others, thus reducing the 
harvest of all species included in the one-bird category. The Central 
Flyway has accumulated 4 years of baseline information on harvests 
resulting from ``season-within-a-season'' regulations in the Central 
Flyway; the season length for pintails and canvasbacks in season-
within-a-season States under the ``liberal'' alternative will be 39 
days.
    Five States (Kansas, North Dakota, South Dakota, Texas, and 
Wyoming) were randomly assigned to Hunter's Choice regulations and the 
remaining five States (Colorado, Montana, Nebraska, New Mexico, and 
Oklahoma) serve as controls (season-within-a-season regulations) as the 
evaluation proceeds. The overall duck daily bag limit is reduced from 
six to five for the Hunter's Choice States.
    While we continue to support the Central Flyway's Hunter's Choice 
experiment, we reiterate that we believe implementation of this 
experiment should not preclude any future changes in hunting 
regulations that may be deemed necessary on an annual basis for any 
other duck species in the Central

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Flyway, if such changes are deemed necessary.
    Regarding the Mississippi Flyway Council's opposition to the 
western mallard AHM protocol, we have cooperated with the Pacific 
Flyway during the past several years to develop a protocol for managing 
the harvest of the western stock of mallards. As we discussed above, in 
July 2008, we formally adopted the western mallard protocol (73 FR 
43290). This decision resulted in Alaska mallards being removed from 
the midcontinent mallard stock and placing them in the western mallard 
stock. This change resulted in a 70 percent increase (10 to 17 percent) 
in the frequency of closed seasons in the Central and Mississippi 
Flyways under the midcontinent mallard AHM protocol. As we also 
discussed above, to address this concern, we modified the closed season 
constraint for midcontinent mallards from 5.25 to 4.75 million 
mallards. This change is also consistent with changes in mallard 
breeding populations in Alaska over the past 2 decades, and therefore, 
expresses the closed season constraint in terms of more contemporary 
mallard breeding distributions.
    We recognize the concerns expressed by the Mississippi Flyway 
Council with regard to implementation of the western mallard protocol. 
However, we believe that establishment of a western mallard protocol is 
justified, and we have made an appropriate adjustment to the 
midcontinent mallard protocol to reduce the impact of removing Alaska 
from that stock of birds. With regard to potential impacts of higher 
frequency of liberal seasons in the Pacific Flyway on midcontinent 
mallards, a preliminary joint optimization of western and midcontinent 
mallards was assessed. The preliminary analysis suggested that joint 
optimization does not result in a significant difference in the 
performance of either protocol. Therefore, we believe an independent 
harvest strategy for western mallards poses little risk to the 
midcontinent stock. With regard to the potential impacts of near-
permanent liberal regulations in the Pacific Flyway on other species of 
waterfowl, it is presently unclear how such impacts would be assessed. 
However, we are committed to monitoring of these potential impacts and 
will discuss any findings with all of the Flyway Councils prior to 
implementing any appropriate regulatory changes to address such 
impacts.

B. Regulatory Alternatives

    Council Recommendations: The Atlantic Flyway Council recommended 
that the Service propose a process and time line by June 2009 for 
review and modification of the regulatory alternatives for 
implementation by the 2011 season.
    Service Response: We plan to address this issue within the context 
of the new Supplemental Environmental Impact Statement (SEIS) for the 
migratory bird hunting program (see NEPA Consideration for further 
discussion) and anticipate the issuance of the draft SEIS by the date 
desired by the Atlantic Flyway Council.

D. Special Seasons/Species Management

iii. Black Ducks
    Council Recommendations: The Atlantic Flyway Council recommended 
that black duck harvest regulations remain unchanged for the 2008-09 
season.
    Service Response: In the July 24 Federal Register we described the 
black duck interim harvest strategy developed by U.S. and Canadian 
waterfowl managers that will be employed by both countries to make 
regulatory decisions over the next three seasons (2008-09 to 2010-11), 
allowing time for the development of a formal strategy based on the 
principles of AHM. The interim harvest strategy is prescriptive, in 
that it calls for no substantive changes in hunting regulations unless 
the black duck breeding population, averaged over the most recent 3 
years, exceeds or falls below the long-term average breeding population 
by 15 percent or more. The strategy is designed to share the black duck 
harvest equally between the two countries; however, recognizing 
incomplete control of harvest through regulations, it will allow 
realized harvest in either country to vary between 40 and 60 percent.
    The 2008 composite estimate (based on hierarchical modeling and 
both Service and Canadian Wildlife Service survey data) for the Eastern 
Survey Area is 683,400. The 1998-2007 mean estimate is 713,800 and the 
most recent 3-year running mean estimate is 721,6000. Based on these 
estimates, we agree with the Atlantic Flyway Council that no 
restriction or liberalization of harvest is warranted.
iv. Canvasbacks
    Council Recommendations: The Atlantic Flyway Council recommended a 
full season for canvasbacks consisting of a 1-bird daily bag limit and 
a 60-day season in the Atlantic Flyway.
    The Upper- and Lower-Region Regulations Committees of the 
Mississippi Flyway Council reiterated their recommended alternative 
canvasback harvest management strategy that uses threshold levels based 
on breeding population size in order to determine bag limits (detailed 
in the June 18 Federal Register). Using their strategy would result in 
a 1-bird daily bag limit and a 60-day season in the Mississippi Flyway.
    The Central Flyway Council, as part of their Hunter's Choice 
experiment, recommended a full season (74 days) for canvasbacks with a 
1-bird daily bag limit in Kansas, North Dakota, South Dakota, Texas, 
and Wyoming and a 39-day season with a 1-bird daily bag limit in 
Colorado, Montana, Nebraska, New Mexico, and Oklahoma.
    The Pacific Flyway Council recommended a closed season for 
canvasbacks.
    Written Comments: The Minnesota Department of Natural Resources 
(Minnesota) and the Wisconsin Department of Natural Resources 
(Wisconsin) expressed concern over our proposal to close the canvasback 
season. Minnesota believed that basing this decision solely on the 
results of the current model was inappropriate. They urged us to 
consider the Mississippi Flyway Council's recommendation. Wisconsin 
also supported the Mississippi Flyway Council's recommendation and 
suggested that our 2008 breeding population estimate was likely to be 
low.
    The Wisconsin Waterfowl Association stated that we had arbitrarily 
closed the canvasback season and that our survey figures were 
unacceptable and unbelievable. Similarly, the Wisconsin Wildlife 
Federation and the Wisconsin Conservation Congress also expressed 
frustration with the proposed canvasback closure and supported the 
Mississippi Flyway Council's recommendation for an open season using 
threshold levels based on breeding population size in order to 
determine bag limits.
    One individual expressed skepticism in the accuracy of the 
canvasback harvest strategy and population estimate.
    Service Response: Since 1994, we have followed a canvasback harvest 
strategy that if canvasback population status and production are 
sufficient to permit a harvest of one canvasback per day nationwide for 
the entire length of the regular duck season, while still attaining a 
projected spring population objective of 500,000 birds, the season on 
canvasbacks should be opened. A partial season would be permitted if 
the estimated allowable harvest was within the projected harvest for a 
shortened season. If neither of these conditions

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can be met, the harvest strategy calls for a closed season on 
canvasbacks nationwide. In the July 24 Federal Register we announced 
our decision to modify the Canvasback Harvest Strategy to incorporate 
the option for a 2-bird daily bag limit for canvasbacks when the 
predicted breeding population the subsequent year exceeds 725,000 
birds.
    This year's spring survey resulted in an estimate of 489,000 
canvasbacks. This was 44 percent below the 2007 estimate of 865,000 
canvasbacks and 14 percent below the 1955-2007 average. The estimate of 
ponds in Prairie Canada was 3.06 million, which was 39 percent below 
last year and 11 percent below the long-term average. According to the 
Canvasback Harvest Strategy, the allowable harvest in the conterminous 
United States is 24,700 birds, which is less than the expected harvest 
in the United States for all four flyways under their respective 
restrictive season lengths (61,758 birds). Thus, the Canvasback Harvest 
Strategy stipulates a canvasback season closure for the upcoming 
season.
    Last year, the estimate of canvasback abundance was a record-high 
of 865,000 birds. In response to Flyway requests for additional harvest 
opportunities due to that estimate, we increased the daily bag limit to 
2 birds per day. As expected, the harvest of canvasbacks increased last 
year, but not to the extent that could explain the large decrease in 
the estimate of canvasback abundance this spring. We have conducted a 
comprehensive review of canvasback survey information, with a 
particular focus on the change in estimates between 2007 and 2008. 
Investigations into the estimation procedures for canvasbacks revealed 
that numbers of canvasbacks observed during the May survey increased 
across many survey areas last year, but counts were consistently lower 
in those same areas this spring. We found no anomalies in the data, 
leading us to conclude with confidence that the estimate this year is 
as reliable as previous estimates. Annual canvasback estimates 
typically have higher variances than for most other species counted 
during May, and large changes from year-to-year have happened 
historically. It is possible that the discrepancy between this year's 
estimate and last year's record-high estimate are purely the result of 
sampling variation, but other factors may have contributed.
    However, we support the completion of the Hunter's Choice 
experiment in the Central Flyway. For the last 2 years, the average 
harvest of canvasbacks in the U.S. portion of the Central Flyway has 
been about 14,800 birds. This, together with the average expected 
harvest in Alaska (350 birds), is below the allowable U.S. harvest 
resulting from the strategy this year. Thus, we will allow the States 
in the Central Flyway an open season on canvasbacks this year according 
to the Hunter's Choice experimental design, but the seasons on 
canvasbacks would be closed in the Atlantic, Mississippi, and Pacific 
Flyways.
v. Pintails
    Council Recommendations: The Atlantic and Pacific Flyway Councils 
and the Upper- and Lower-Region Regulations Committees of the 
Mississippi Flyway Council recommended a full season for pintails 
consisting of a 1-bird daily bag limit and a 60-day season in the 
Atlantic and Mississippi Flyways, and a 107-day season in the Pacific 
Flyway.
    The Central Flyway Council, as part of their Hunter's Choice 
experiment, recommended a full season (74 days) for pintails with a 1-
bird daily bag limit in Kansas, North Dakota, South Dakota, Texas, and 
Wyoming and a 39-day season with a 1-bird daily bag limit in Colorado, 
Montana, Nebraska, New Mexico, and Oklahoma.
    Service Response: Based on the current strategy, along with an 
observed spring breeding population of 2.61 million, an overflight-
bias-corrected breeding population of 4.24 million and a projected fall 
flight of 4.47 million pintails, the Pintail Harvest Strategy 
prescribes a full season and a 1-bird bag in all Flyways. Under the 
``liberal'' season length, this regulation is expected to result in a 
harvest of 569,000 pintails and an observed breeding population 
estimate of 3.53 million in 2009, not considering any potential effect 
from continuation of the Hunter's Choice evaluation in the Central 
Flyway.
    Furthermore, we agree with the Central Flyway Council's 
recommendation to adopt a 39-day ``season-within-a-season'' for 
pintails in Colorado, Montana, Nebraska, New Mexico, and Oklahoma. We 
understand that this departure from the pintail strategy is a necessary 
part of the experimental ``Hunter's Choice'' season.
vi. Scaup
    Council Recommendations: The Atlantic Flyway Council recommended 
that the following regulatory packages for scaup be allowed for the 
Atlantic Flyway for the next 3 years and that we use their harvest 
prediction methodology to predict scaup harvests in the Atlantic 
Flyway:
    (1) Under the restrictive harvest policy, a 40-day season with a 1-
bird daily bag and a 20-day season with a 2-bird daily bag. The 20 days 
with the 2 bird daily bag shall be 20 consecutive hunting days;
    (2) Under the moderate harvest policy, a 60-day season with a 2-
bird daily bag; and
    (3) Under the liberal harvest policy, a 60-day season with a 4-bird 
daily bag.
    For 2008-09, the Council recommended implementation of the 
restrictive season package, based on results of the scaup harvest 
model.
    The Upper- and Lower Regulations Committees of the Mississippi 
Flyway Council recommended a 60-day season with a 2-bird daily bag 
limit for the 2008-09 season. They further recommended a restrictive 
and moderate regulatory package of 60 days with a 2-bird daily bag 
limit and a liberal regulatory package of 60 days with a 4-bird daily 
bag limit.
    The Central Flyway Council recommended the continuation of the 
Hunter's Choice bag limit for the 2008-09 season. After completion of 
the Hunter's Choice experiment, the Central Flyway Council recommends 
the following potential scaup regulatory alternatives (season lengths 
and daily bag limits) for Central Flyway States:
    (1) Restrictive Policy--74 days with a 1-bird daily bag limit;
    (2) Moderate Policy--74 days with a 2-bird daily bag limit; and
    (3) Liberal Policy--74 days with a 6-bird daily bag limit.
    The Pacific Flyway Council recommended the adoption of the 
following scaup regulation packages for the Pacific Flyway for the next 
3 years:
    (1) Restrictive season package: 86 days, 2 bag limit.
    (2) Moderate season package: 86 days, 3 bag limit.
    (3) Liberal season package: 107 days, 7 bag limit.
    In addition, the Pacific Flyway Council requested that split and 
zone configurations be available to individual States for scaup 
seasons, similar to the split and zone options we previously provided 
for pintail seasons. For 2008-09, the Council recommended 
implementation of the restrictive season package, based on results of 
the scaup harvest model.
    Written Comments: The Mississippi Flyway Council requested 
consideration of an alternative restrictive regulatory option for the 
2008-09 season. The Council proposed a 45-day season with a 2-bird 
daily bag and a 15-day season with a 1-bird daily bag. Under their 
regulatory option, the Council estimates that the harvest would be 
84,000 scaup,

[[Page 55606]]

a level similar to the Service's target harvest level of 83,000 scaup 
for the Mississippi Flyway.
    The Minnesota Department of Natural Resources (Minnesota) and the 
Wisconsin Department of Natural Resources (Wisconsin) both expressed 
concern over implementation of the proposed scaup harvest strategy and 
requested the Service reconsider its proposal. Minnesota recognized the 
declines in the scaup population but believed that reduction in harvest 
are not likely to lead to future breeding population increases. They 
further question the use of the scaup harvest strategy and support the 
Mississippi Flyway Council's recommendation. Wisconsin also supported 
efforts to reverse the long-term decline in scaup populations but 
believed that harvest is not the driving factor. They believe the 
Service's proposal is unreasonably restrictive.
    The Wisconsin Waterfowl Association expressed support for the 
Mississippi Flyway Council's recommendation of a 45-day season with a 
2-bird daily bag and a 15-day season with a 1-bird daily bag. The 
Wisconsin Conservation Congress supported a 60-day season with a 2-bird 
daily bag limit.
    Delta Waterfowl Foundation recommended delaying implementation of 
the scaup harvest strategy until the Service could fully consider the 
recommendations of the scaup harvest strategy review panel (see July 24 
Federal Register). They remain deeply opposed to both the process in 
and the implementation of the scaup harvest strategy.
    The Oneida Lake Association opposed proposals for scaup harvest 
reductions and urged the Service to develop an improved harvest model 
supported by all stakeholders.
    Twelve individuals expressed displeasure with the proposed 
implementation of the scaup harvest strategy. They raised various 
concerns related to the potential impacts of the strategy on diving 
duck hunters and the validity of the scaup harvest model. Most did not 
believe that harvest reductions were warranted this season. Several 
other individuals expressed support for our proposal.
    Service Response: As we have stated over the last several years, 
the continental scaup (greater Aythya marila and lesser Aythya affinis 
combined) population has experienced a long-term decline over the past 
20 years. Over the past several years in particular, we have continued 
to express our growing concern about the status of scaup (see the May 
28 Federal Register for a review of the actions we have taken over the 
last few years to synthesize data relevant to scaup harvest management 
and frame a scientifically-sound scaup harvest strategy or for a 
complete list of reports see https://www.fws.gov/migratorybirds/reports/
reports.html).
    In the July 24 Federal Register, we adopted a scaup harvest 
strategy that resulted from 5 years of development and review in 
cooperation with the Flyway Councils. The 2008 scaup breeding 
population estimate was 3.74 million. Total estimated scaup harvest in 
2007-08 was 295,000. Employing these estimates as the input to the 
scaup harvest strategy, the optimal harvest for the 2008-09 hunting 
season is 200,000 (including the 40,000 scaup harvest expected in 
Canada and Alaska). The available harvest results in a recommendation 
for a restrictive package in all four Flyways (except Alaska).
    We appreciate the time and attention that the Flyways have given 
this issue. We further support the recommendations received from the 
Atlantic, Central and Pacific Flyways for their restrictive, moderate 
and liberal packages for scaup. We also support the packages 
recommended by the Mississippi Flyway for their moderate and liberal 
packages. However, the restrictive package originally recommended by 
the Mississippi Flyway (see Council Recommendations above) is not 
projected to be sufficient to achieve the required harvest reductions. 
In further consultation with the Mississippi Flyway Consultants at the 
July SRC meeting, we accepted the same season structure recommended by 
the Atlantic Flyway for restrictive seasons in the Mississippi Flyway 
that is expected to result in a harvest that is within the allowable 
allocation for the Mississippi Flyway (as a portion of the 200,000 
indicated above).
    In addition, we have adopted the alternative harvest prediction 
models suggested by the Atlantic, Central, and Pacific Flyway Councils 
(see July 24 Federal Register for additional discussion). We also 
support the proposal by the Pacific Flyway to afford States the 
opportunity to use their existing zone/split rules for their respective 
States when choosing scaup season frameworks.
    Regarding the new recommendation from the Mississippi Flyway 
Council in response to our August 29 proposed rule (see Written 
Comments above), as we stated above, we continue to support the 
recommendations for scaup season structures of the Atlantic, Central 
and Pacific Flyway Councils, but do not support the new recommendation 
offered by the Mississippi Flyway Council. Alternatively, we proposed 
in the August 29 Federal Register a scaup season structure for the 
Mississippi Flyway that met the established guidelines. While we 
appreciate the additional comments from the States of Minnesota and 
Wisconsin, and the Mississippi Flyway Council offering an alternative 
season structure to both their original recommendation and the season 
structure we proposed, this new proposal does not conform to the 
guidelines. Thus, we do not support the recommendation. We reaffirm our 
support for employing the general scaup harvest strategy adopted this 
year and for continuing efforts to improve and refine this strategy. 
However, in consideration of the concerns expressed by the Mississippi 
Flyway Council and the two member States, we will continue to work with 
all four Flyway Councils to re-examine the guidelines for structuring 
scaup seasons during the next regulatory cycle. For the coming season, 
we will adopt scaup season structures as initially proposed.
vii. Mottled Ducks
    Council Recommendations: The Upper- and Lower Regulations 
Committees of the Mississippi Flyway Council recommended continuation 
of a 60-day season and a 3-bird daily bag limit for mottled ducks for 
the 2008-09 waterfowl season. They further recommended that given 
adequate justification for a 30 percent reduction in harvest, and no 
further analyses of effects of harvest regulations on mottled duck 
harvests sometime in the future, the following:
    (a) Season length of 45 days with a daily bag limit of 1 per day in 
years when AHM prescribes a liberal or moderate regulations package.
    (b) Season length of 30 days with a daily bag limit of 2 per day in 
years when AHM prescribes a restrictive regulations package.
    (c) Outside the mottled duck breeding range, mottled duck season 
length and bag limits would be the same as for hen mallards.
    The Central Flyway Council recommended that no further harvest 
reductions were warranted at this time.
    Service Response: We did not propose any changes to mottled duck 
regulations for the 2008-09 season. Because of our long-standing 
concern about the status of mottled ducks, we are encouraged by the 
progress made to date on improving population monitoring programs for 
this species in the Gulf Coast region. We look forward to working with 
the Flyways on continued development of such surveys. Further, we 
appreciate the

[[Page 55607]]

Mississippi Flyway Council's recommendations on potential regulatory 
packages that could serve to reduce harvest pressure on mottled ducks 
if deemed necessary at some future date. We will take under 
consideration the Council's recommendation regarding regulations in 
areas outside the mottled duck breeding range. We also recognize that 
the Central Flyway Council has taken voluntary restrictions in mottled 
duck regulations in the past and, together with reductions in harvest 
resulting from the Hunter's Choice experiment, have reduced harvest 
pressure on mottled ducks, primarily in Texas.
viii. Wood Ducks
    Council Recommendations: The Atlantic and Central Flyway Councils 
and the Upper- and Lower-Region Regulations Committees of the 
Mississippi Flyway Council recommended that the wood duck bag limit in 
the Atlantic, Mississippi, and Central Flyways be increased to 3 birds 
per day during the regular duck season for an experimental 3-year 
period beginning in 2008.
     Service Response: We support the proposal to increase the daily 
bag limit for wood ducks from 2 to 3 birds in the Atlantic, 
Mississippi, and Central Flyways beginning in 2008. We do not, however, 
believe that this change warrants an experiment because the assessment 
work that justifies the bag limit increase has already been done. 
However, we recognize the importance of maintaining the current wood 
duck banding effort that is needed to assess the effects of the change. 
Further, we look forward to continuing involvement by the Flyways in 
developing a wood duck harvest strategy, including (1) determining 
specific harvest management objectives; (2) determining regulatory 
alternatives; (3) designation of and support for appropriate population 
monitoring programs; and (4) designation of the appropriate test 
criteria for making management decisions. We would like the Flyways to 
develop this strategy for implementation during the 2010-2011 hunting 
season.
viii. Youth Hunt
     Council Recommendations: The Atlantic Flyway Council recommended 
that the Service allow States to select any 2 weekend days, holidays or 
other non-school days for their youth waterfowl hunting days.
     Service Response: We do not support the Atlantic Flyway's proposal 
to allow the selection of any 2 weekend days, holidays, or other non-
school days for their youth waterfowl hunting days. In 2000, we 
expanded the special youth waterfowl hunt to 2 consecutive days in 
order to reduce travel and scheduling conflicts for youth hunt 
participants--issues identified by the Flyways as problems with 
promoting participation under the original 1-day youth hunt guidelines 
(65 FR 51496). The following year, we further supported a change to 2 
consecutive hunting days to address the inability of some States in the 
Atlantic Flyway to hunt on Sundays (66 FR 44010). As we stated in 2003 
when presented with a similar proposal by the Atlantic Flyway, we 
believe the proposal is inconsistent with the original purpose put 
forth by the Flyway Councils in 2000 to facilitate travel and 
scheduling of youth hunt participants (68 FR 51658).

4. Canada Geese

B. Regular Seasons

    Council Recommendations: The Atlantic Flyway Council forwarded a 
number of recommendations concerning Canada geese. First, the Council 
recommended that we modify the existing criteria for delineation of 
Atlantic Flyway Resident Population (AFRP) Canada goose hunting zones 
in the Atlantic Flyway by proposing that AFRP hunting zones may not 
contain more than 10 percent of all Atlantic Population (AP) band 
recoveries, or more than 10 percent of all North Atlantic Population 
(NAP) recoveries, within a State from 2002-2007.
    Second, the Council recommended that we adopt the following 
criteria for evaluation of AFRP hunting zones in the Atlantic Flyway 
during 2008-2010:
    (1) All areas holding an AFRP regular season must collectively 
account for no more than a 1 percent direct recovery rate for adults 
for any migrant goose population during the open AFRP regular seasons. 
Areas contributing disproportionately to the cumulative recovery rate 
will be identified and these areas may be eliminated to stay below the 
1 percent threshold;
    (2) AFRP hunting zones must not account for more than 10 percent of 
all AP band recoveries, or more than 10 percent of all NAP recoveries, 
in any State during the 3-year period 2008-2010;
    (3) If a season is closed for any migrant population, AFRP hunting 
zones would remain open as long as they do not result in exceeding the 
cumulative 1 percent adult recovery rate threshold; and
    (4) Band recovery data will be examined annually, and at 3-year 
intervals all available data will be examined to determine if zone 
modifications and/or changes to opening and closing framework dates are 
needed to ensure continued compliance with the above criteria.
    As a result of the above delineation criteria modifications, the 
Council recommended modifications to existing AFRP hunting zones in New 
York, Pennsylvania, and Maryland beginning in 2008, and that we extend 
the opening and closing framework dates for Canada geese in AFRP 
harvest zones in Pennsylvania (from the fourth Saturday in October to 
March 10), Maryland and Virginia (from November 15 to March 10), and 
North Carolina (from October 1 to March 10). They also recommended 
allowing Connecticut and New York to establish new AFRP harvest zones 
with framework dates between 1 October and 15 February and bag limits 
of 5 geese per day.
    With regard to frameworks in Southern James Bay Population (SJBP) 
harvest zones, the Council recommended allowing Pennsylvania a 70-day 
Canada goose hunting season, with a 3-bird daily bag limit, between the 
second Saturday in October and February 15; Virginia, a 40-day season 
between November 15 and January 14 with a 3-bird daily bag limit and an 
experimental season between January 15-February 15 with a 5-bird daily 
bag limit; and North Carolina a 70-day season with a 5-bird daily bag 
limit between October 1 and December 31. In addition, they recommended 
modifying the SJBP harvest zone in Pennsylvania to include the former 
Pymatuning Zone and that portion of Mercer, Crawford and Erie Counties 
north of Interstate 80 and west of Interstate 79 including Lake Erie, 
Presque Isle, and the area within 150 yards of the Lake Erie shoreline.
    The Upper- and Lower-Region Regulations Committees of the 
Mississippi Flyway Council recommended a number of changes in Canada 
goose zones, seasons lengths, and bag limits for several States in the 
Flyway. These changes are a result of approved revisions to the 
Southern James Bay Population (SJBP) Canada goose harvest strategy and 
management plan that were made in agreement with the Atlantic Flyway. 
These changes are consistent with the revised harvest strategies for 
Canada geese in the Mississippi Flyway.
    The Pacific Flyway Council recommended revising Idaho zone 
designations for 2 counties (Adams and Valley Counties from Zone 2 to 
Zone 1), and reducing the bag limit on dark geese in Wyoming from 4 to 
3 geese.
     Written Comments: The Virginia Department of Game and Inland 
Fisheries requested a change in the zone

[[Page 55608]]

boundary between the AP and SJBP Canada goose hunting zones based on 
concerns from farmers that large numbers of Canada geese are 
depredating crops. They requested the zone boundary between the two 
populations be moved further east to allow more liberal regulations 
(i.e., longer season or larger bag limit) in the area of concern.
    The Louisiana Department of Wildlife and Fisheries requested 
removal of the requirement to issue a permit for Canada goose hunting. 
They stated that recent changes to their licensing structure 
effectively meet this requirement.
    The Virginia Farm Bureau supported the request to move the zone 
boundary between the AP and SJBP Canada goose hunting zones. They 
further supported extending the season into February and March to 
address depredation concerns and expanding the daily bag limit for AP 
geese from 2 to 3 per day.
     Service Response: We concur with the Atlantic Flyway Council's 
recommendations to modify existing criteria for delineation and 
subsequent evaluation of AFRP hunting zones. Evaluations of AFRP 
seasons since 2002 have demonstrated that these seasons have met the 
established criteria of less than a 1 percent direct recovery rate of 
migrant geese. We note that a migrant (AP, NAP, SJBP) direct recovery 
rate of 0.35 percent was realized for the 2005-2007 period. AFRP zones 
have resulted in higher hunter opportunity and higher AFRP goose 
harvests, and current North Atlantic Population Canada Goose Low 
Harvest zones have shown to be effective in minimizing NAP harvest. The 
Atlantic Flyway Council's proposed modification to allow certain 
portions of existing NAP Harvest zones to become AFRP zones will allow 
for greater harvest opportunity on AFRP geese while further protecting 
NAP stocks. Current direct recovery rates of NAP geese in the United 
States are 2.9 percent, equating to a harvest rate of < 6 percent. As 
band return data accumulate, adjustments to existing AFRP zones and 
establishment of new zones should utilize these data. We will continue 
to evaluate these AFRP seasons annually through leg band recoveries and 
at 3-year intervals a comprehensive evaluation of all available data 
will occur to ensure compliance with established criteria. Lastly, we 
note that these proposed modifications for delineation of new AFRP 
zones in certain portions of existing NAP harvest zones are in 
accordance with the current North Atlantic Population Canada Goose 
Management Plan.
    We also concur with the Atlantic Flyway Council's recommendations 
to modify AFRP hunting zones in Maryland, New York, and Pennsylvania, 
establish new AFRP zones in Connecticut and Long Island, New York, and 
modify the AFRP zone season opening and closing framework dates in 
Maryland, North Carolina, Pennsylvania, and Virginia. These recommended 
changes all conform to the existing criteria, as amended above, for 
delineating AFRP hunting zones and establishing AFRP season framework 
dates. We further note that resident Canada geese are overabundant in 
many areas of the Atlantic Flyway and currently number approximately 
1.0 million birds, significantly above the goal in the Atlantic Flyway 
Resident Canada Goose Management Plan of 650,000 geese. All of the 
Flyway's objectives to increase the harvest of resident Canada geese 
are consistent with those identified in the Service's 2005 Final 
Environmental Impact Statement on Resident Canada Goose Management (70 
FR 69985, November 18, 2005).
    We also concur with the Atlantic Flyway Council's recommended 
frameworks for the SJBP harvest zones in the Atlantic Flyway. We note 
that the SJBP Management Plan was recently revised and approved by both 
the Atlantic and Mississippi Flyway Councils and guides management 
decisions in both flyways. The plan goal is to maintain the SJBP at a 
level that can sustain use throughout its current range, while allowing 
for the management of resident Canada geese. A key part of the plan is 
a harvest strategy designed to test the resident Canada goose buffering 
hypothesis. This hypothesis states that large populations of resident 
Canada geese are now buffering the harvest of SJBP geese, and therefore 
liberalization in hunting regulations will result in more harvest of 
resident Canada geese, and not SJBP Canada geese. Further, genetic 
studies and analysis of band recoveries indicate SJBP harvest zones in 
many States no longer function as concentration zones for SJBP geese 
and may therefore be ineffective at protecting SJBP geese. We agree 
that these reductions in hunting opportunity and hunting pressure on 
resident Canada geese may not be warranted when many SJBP harvest zones 
hold a smaller proportion of SJBP geese than they did historically. The 
newly revised SJBP plan also calls for holding regulations stable for a 
5-year period (2008-2013). If the spring population estimate falls 
below 50,000 in combination with either an unabated negative trend in 
the estimate over 3 years or more, and evidence of unsustainable 
harvest rates, then appropriate regulation changes will be implemented 
as/when necessary in both the Atlantic and Mississippi Flyways. We 
believe that these proposed regulation changes will provide for 
increased hunting opportunity and harvest of AFRP geese, while 
maintaining the SJBP at levels identified in the 2008 plan.
    We do not agree with the requests from the Virginia Department of 
Game and Inland Fisheries and the Virginia Farm Bureau for moving the 
zone boundary between the AP and SJBP Canada goose hunting zones. We 
have no biological information to warrant such a change, and a request 
of this nature should be brought through the Atlantic Flyway Council. 
We also do not support the request to increase the daily bag limit of 
AP geese in Virginia. The Atlantic Flyway Council considered the status 
of the AP Canada goose population and concluded that no liberalization 
of hunting regulations was warranted for that population, and we concur 
with their conclusion.
    Regarding the request from the Louisiana Department of Wildlife and 
Fisheries to remove the requirement for a permit to hunt Canada geese, 
we concur. As they stated in their comment, recent changes to their 
licensing structure effectively meet this requirement.
    We also concur with all of the recommendations forwarded by the 
Pacific Flyway Council. Some of these changes are designed to afford 
greater protection to Tule white-fronted geese and the Service strongly 
supports these efforts (see discussion under 5. White-fronted Geese). 
In addition, the other changes in Canada goose seasons are relatively 
minor and are being undertaken for administrative reasons and are not 
expected to impact populations.

5. White-Fronted Geese

    Council Recommendations: The Pacific Flyway Council recommended the 
following area, bag, and season length changes described below:
    (1) In the Lake County portion of the Harney, Lake, and Malheur 
County Zone reduce the daily bag limit for white-fronted geese from 2 
to 1;
    (2) In the Klamath County Zone of Oregon, for hunting days 
occurring after the last Sunday in January, change the daily bag limit 
of 2 white-fronted geese to a bag limit of 1 white-fronted goose and 3 
white geese;
    (3) Reduce the bag limit on dark geese in Wyoming from 4 to 3 
geese.

[[Page 55609]]

     Service Response: We concur with the proposed changes in goose 
frameworks proposed by the Pacific Flyway Council. In general, these 
changes are designed to afford greater protection to Tule white-fronted 
geese and we strongly support these efforts. Tule greater white-fronted 
geese continue to be of concern because of low population numbers. In 
Oregon, Tule white-fronted geese are predominantly encountered in Lake 
County where the bag limit for white-fronted geese has been two for 
some time. Because of the continued concern for Tule geese, and 
uncertainty about their true population size, we agree with the Pacific 
Flyway Council that a reduction in harvest is warranted. This change 
will keep Tule goose harvest in Oregon at minimum levels and support 
ongoing research efforts to assess population status.
    We note, however, that indices to the Pacific population of white-
fronted geese exceed management plan goals and this population is 
responsible for numerous agricultural depredation complaints in the 
Klamath Basin as well. However, given the concerns over the status of 
population of Tule white-fronted geese, which, as documented through 
telemetry observations, are present in at least very low numbers in the 
Oregon portion of the Klamath Basin during this time period, further 
assessment is warranted.

6. Brant

    Council Recommendations: The Atlantic Flyway Council recommends a 
60-day season with a 3-bird daily bag limit for Atlantic brant.
     Service Response: We concur with the Atlantic Flyway Council's 
recommendation. The 2008 Mid-Winter Index (MWI) for Atlantic brant was 
160,618 brant. The Brant Management Plan prescribes a 60-day season 
with a 3-bird daily bag limit when the MWI estimate is above 150,000 
and productivity and food supplies are deemed sufficient to sustain 
additional harvest opportunity. We note that productivity for 2008 
looks very good on the main breeding grounds and that productivity in 
2007 was good, with approximately 28-31 percent young in the fall 
productivity surveys. Thus, we agree with the Council that an increase 
of 10 days with the associated daily bag limit increase is the proper 
approach for the upcoming season.

7. Snow and Ross's (Light) Geese

    Council Recommendations: The Pacific Flyway Council recommended 
several area, bag, and season length changes for light geese:
    (1) In the States of California, Oregon, and Washington, increase 
the light goose season length to 107 days, and in the States of 
California and Oregon, increase the bag limit to 6 light geese per day 
and extend the light goose framework ending date to March 10; in 
Washington, the light goose bag limit remains at 4;
    (2) Increase the bag limit to 10 light geese per day in all other 
States of the Pacific Flyway with a framework ending date of March 10; 
and
    (3) In the Klamath County Zone of Oregon, for hunting days 
occurring after the last Sunday in January, change the daily bag limit 
of 2 white-fronted geese to a bag limit of 1 white-fronted goose and 3 
white geese.
    Service Response: We support the proposed changes for light geese 
in the Pacific Flyway. Last year the Flyway's December goose count 
exceeded 1 million for the first time, representing a doubling of this 
index since 1999. Light goose indices (Snow and Ross' geese combined) 
indicate that all recognized populations currently exceed management 
plan goals. In some areas of the Pacific Flyway, these goose 
populations are leading to increasing depredation complaints. In 
addition, numbers of light geese breeding on Wrangle Island, Russia, a 
colony that has been of concern in the past, has recovered to near 
record levels in the past few years. We support efforts to increase 
harvest of these geese in aid of limiting further population growth and 
perhaps avoiding the overabundance problems associated with the species 
that have been documented in the mid-continent region.

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 ADDRESSES.
    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 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 have prepared a 
scoping report summarizing the scoping comments and scoping meetings. 
The report is available by either writing to the address indicated 
under ADDRESSES or by viewing on our Web site at https://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 adversely affect 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.

Executive Order 12866

    The Office of Management and Budget has determined that this rule 
is significant and has reviewed this rule under Executive Order 12866. 
OMB bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.

[[Page 55610]]

    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    The 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 address indicated under ADDRESSES or 
from our Web site at https://www.fws.gov/migratorybirds/reports/
reports.html or at https://www.regulations.gov.

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 has an annual effect on the economy of $100 million or more. 
However, because this rule establishes hunting seasons, we do not plan 
to defer 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 2/28/2011). 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

    In promulgating this rule, we have determined that it 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, these rules allow hunters to exercise 
otherwise unavailable privileges and, therefore, reduce restrictions on 
the use of private and public property.

Energy Effects--Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. 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

    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. Thus, 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 May 28 proposed rule 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 2008-09 migratory bird hunting season. 
By virtue of these actions, we have consulted with all the 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 tribe may be more restrictive than the 
Federal frameworks. The frameworks are developed