Migratory Bird Hunting:

Federal Register: August 30, 2010 (Volume 75, Number 167)

Rules and Regulations

Page 52873-52890

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr30au10-9

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 50 CFR Part 20

Docket No. FWS-R9-MB-2010-0040; 91200-1231-9BPP-L2

RIN 1018-AX06

Migratory Bird Hunting; Final Frameworks for Early-Season

Migratory Bird Hunting Regulations

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

SUMMARY: This rule prescribes final early-season frameworks from which the States, Puerto Rico, and the Virgin Islands may select season dates, limits, and other options for the 2010-11 migratory bird hunting seasons. Early seasons are those that generally open prior to October 1, and include seasons in Alaska, Hawaii, Puerto Rico, and the Virgin

Islands. The effect of this final rule is to facilitate the selection of hunting seasons by the States and Territories to further the annual establishment of the early-season migratory bird hunting regulations.

DATES: This rule takes effect on August 30, 2010.

ADDRESSES: States and Territories should send their season selections to: Chief, Division of Migratory Bird Management, U.S. Fish and

Wildlife Service, ms MBSP-4107-ARLSQ, 1849 C Street, NW., Washington,

DC 20240. You may inspect comments during normal business hours at the

Service's office in room 4107, 4501 N. Fairfax Drive, Arlington,

Virginia, or at http://www.regulations.gov at Docket No. FWS-R9-MB- 2010-0040.

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 2010

On May 13, 2010, we published in the Federal Register (75 FR 27144) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and addressed 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 2010-11 regulatory cycle relating to open public meetings and Federal Register notifications were also identified in the May 13 proposed rule.

Further, we explained that all sections of subsequent documents outlining hunting frameworks and guidelines were organized under numbered headings. Subsequent documents will refer only to numbered items requiring attention. Therefore, it is important to note that we omit those items requiring no attention, and remaining numbered items might be discontinuous or appear incomplete.

On June 10, 2010, we published in the Federal Register (75 FR 32872) a second document providing supplemental proposals for early- and late-season migratory bird hunting regulations. The June 10 supplement also provided information on the 2010-11 regulatory schedule and announced the Service Regulations Committee (SRC) and summer Flyway

Council meetings.

On June 23 and 24, 2010, we held open meetings with the Flyway

Council Consultants where the participants reviewed information on the current status of migratory shore and upland game birds and developed recommendations for the 2010-11 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 2010-11 regular waterfowl seasons.

On July 29, 2010, we published in the Federal Register (75 FR 44856) a third document specifically dealing with the proposed frameworks for early-season regulations. We published the proposed frameworks for late-season regulations (primarily hunting seasons that start after October 1 and most waterfowl seasons not already established) in an August 25, 2010, Federal Register.

This document is the fifth in a series of proposed, supplemental, and final rulemaking documents. It establishes final frameworks from which States may select season dates, shooting hours, and daily bag and possession limits for the 2010-11 season. These selections will be published in the Federal Register as

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amendments to Sec. Sec. 20.101 through 20.107, and Sec. 20.109 of title 50 CFR part 20.

Review of Public Comments

The preliminary proposed rulemaking, which appeared in the May 13

Federal Register, opened the public comment period for migratory game bird hunting regulations. We have considered all pertinent comments received. Comments are summarized below and numbered in the order used in the May 13 proposed rule. We have included only the numbered items pertaining to early-season issues for which we received comments.

Consequently, the issues do not follow in successive numerical or alphabetical order. We received recommendations from all Flyway

Councils. Some recommendations supported continuation of last year's frameworks. Due to the comprehensive nature of the Councils' annual review of the frameworks, we assume Council support for continuation of last year's frameworks for items for which we received no recommendation. Council recommendations for changes are summarized below.

General

Written Comments: Several individual commenters protested the entire migratory bird hunting regulations process, the killing of all migratory birds, the Flyway Council process and the abbreviated public comment periods associated with these rules.

The Animal Legal Defense Fund (ALDF) urged us to reduce bag limits and institute a hunting moratorium for those species potentially affected by the Deepwater Horizon oil spill.

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 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.

Regarding the use of abbreviated public comment periods for these rules, the rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment.

Thus, when the preliminary proposed rulemaking was published in May, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. Any delays in either extending public comment periods or in the effective date of these regulations after this final rulemaking would seriously compromise the

States abilities to implement these decisions. States would have insufficient time to select season dates and limits; to communicate those selections to us; and to establish and publicize the necessary regulations and procedures to implement their decisions.

Regarding the Deepwater Horizon oil spill, the release of oil into the Gulf of Mexico following the explosion and sinking of the Deepwater

Horizon mobile offshore drilling unit and impacts to Gulf wetlands and wildlife has led to concerns about the potential for increased mortality in waterfowl and other migratory game birds, particularly in the fall and winter when local populations increase. This potential for increased mortality of migrating and wintering game birds has led to further questions regarding the need to impose precautionary regulatory restrictions in anticipation of increased spill-related mortality.

However, it is important to remember that waterfowl migration and habitat use are highly variable from year to year, not only at the

Flyway level but at regional and local levels, and dependent on any number of environmental factors. It is also important to recognize that populations of many species of North American waterfowl naturally undergo large population fluctuations in response to variability in breeding habitat conditions across their range, especially within the important prairie-parkland region. In fact, during the drought-stricken years of the 1980s and early 1990s, many North American waterfowl species declined to population sizes less than one-half those recently experienced as a result of natural declines in productivity and ongoing mortality.

Fortunately, waterfowl management has a rich and successful history of monitoring and assessment programs which provide annual updates on the status and health of waterfowl populations. Programs such as the

May aerial breeding population survey, the continental bird banding program, the mid-winter waterfowl surveys, and the hunter harvest surveys, among others, all provide important pieces of information on the population status, productivity, and distribution of important waterfowl species. These data are integral in the process of establishing hunting regulations for waterfowl and other migratory game birds. Through the Adaptive Harvest Management process we currently utilize to establish waterfowl seasons, and other associated species- specific harvest strategies, monitoring and assessment data are explicitly linked to regulatory decision making, ensuring that appropriate regulatory actions will be taken if warranted by changes in continental population status. Therefore, from both a National and

Flyway harvest-management perspective, we intend to respond to the

Deepwater Horizon oil spill as we would any other non-hunting factor with potentially substantial effects on mortality or reproduction

(e.g., hurricane, disease, prairie drought, habitat loss), by monitoring abundance and vital rates of waterfowl and other migratory game birds and adjusting harvest regulations as needed on the basis of existing harvest strategies. We believe this is the most prudent course of action, and further, firmly believe that our existing monitoring and assessment programs are sufficient to help safeguard the long-term conservation of any potentially-affected waterfowl or other migratory game birds.

Recently obtained results of annual spring waterfowl population surveys indicate that population sizes of most duck species and breeding habitat conditions are good this year. While we believe that regulatory restrictions are currently unnecessary, we remain very concerned about both the short and long-term impacts of the oil spill on migratory birds, their habitats, and the resources upon which birds depend. There remains considerable uncertainty regarding the short-term and long-term impacts this spill will have on waterfowl and other migratory game birds that utilize the impacted region during all or part of their annual life cycle. We have been heavily engaged in the immediate response to the BP oil

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spill. The intent of these efforts is to document and minimize impacts to natural resources including migratory birds and their habitats.

Large-scale efforts to influence bird migration and distribution at the flyway-level are likely fruitless given the importance of weather and photoperiod on the timing and speed of bird migrations. It is possible that re-distribution of birds at smaller scales could help reduce some oil exposure. Working with conservation partners, we are preparing to implement a range of on-the-ground habitat conservation or management measures near the oil-impact area intended to minimize the entrance of oil into managed habitats along the Gulf and to enhance the availability of food resources outside the oil impact area. The provision of additional, reliable food sources could also help buffer against the worst-case scenario of an early winter in northern portions of the Mississippi and Central Flyways and dry habitat conditions in the northern Mississippi Alluvial Valley that would result in large wintering waterfowl populations along the Gulf Coast. We are working with partners to determine what portion of these projects should be available as ``sanctuary'' (areas closed to hunting) to encourage bird use of these areas and minimize redistribution due to disturbance.

Simultaneous with immediate response efforts, we are also working with partners to assess potential pathways for long-term acute and sub- lethal effects of the BP oil spill on the full suite of migratory birds utilizing Gulf (or other impacted) habitats during some portion of their life cycle. Effects may result from direct exposure of birds to oil or to the long-term accumulation of polycyclic aromatic hydrocarbons or other toxins at levels sufficient to cause physiological disorders impacting productivity or survival. The intent of this assessment is to assist in identifying potential mitigation and conservation measures as well as long-term monitoring and assessment needs for migratory birds.

Regardless of the eventual impact of the BP oil spill on migratory game birds, we recognize the importance of working with the States as well as other governmental and non-governmental conservation partners to ensure that reasonable and science-based measures are implemented in the face of the ongoing crisis in the Gulf, and that the rationale for decisions regarding harvest regulations or other actions are clearly communicated to the public. We will continue to do so. 1. Ducks

Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy; (B) Regulatory

Alternatives, including specification of framework dates, season lengths, and bag limits; (C) Zones and Split Seasons; and (D) Special

Seasons/Species Management. The categories correspond to previously published issues/discussions, and only those containing substantial recommendations are discussed below.

D. Special Seasons/Species Management i. Special Teal Seasons

Council Recommendations: The Upper-Region Regulations Committee of the Mississippi Flyway Council recommended that the Service explore options for providing production States an opportunity to harvest teal outside the regular duck season frameworks as part of the teal season assessment that is currently being conducted.

Service Response: Last year, we noted that an assessment of the cumulative effects of all teal harvest, including harvest during special September seasons, had never been conducted. As such, we committed to a thorough assessment of the harvest potential for both blue-winged and green-winged teal, as well as an assessment of the impacts of current special September seasons on these two species. We requested that the Atlantic, Mississippi, and Central Flyway Councils designate representatives to assist Service staff with the technical aspects of these assessments. Our goal is to complete this important assessment work within 3 years.

The Mississippi Flyway Council's request to include an assessment of potential teal harvest opportunities for production States in the ongoing teal assessment, and the additional work associated with this request, would likely delay the completion of our original task. As we noted above, the original purpose of this assessment was to assess the harvest potential of the three teal species. The Council's request would entail not only an evaluation of the potential effects of production States' teal harvest on those species, but the possibility of impacts to nontarget species as well. However, we understand the production States' concern about teal harvest opportunities. Therefore, we will compile information and analyses from historic reports that address teal seasons and, particularly, issues related to duck harvests from production and non-production States, and provide them to the

Flyways for consideration during the upcoming winter flyway meetings.

The intent of this review would be to summarize historical analyses and dialogue regarding the issue of early-season teal harvest opportunities in production States and provide a common understanding of the issues that would have to be reconsidered to fully address the Mississippi

Flyway Council's recommendation. With this information, the Flyways could more fully assess how they may want to approach teal harvest opportunities for their States in the future, following completion of the current teal assessment.

Regarding the regulations for this year, utilizing the criteria developed for the teal season harvest strategy, this year's estimate of 6.3 million blue-winged teal from the traditional survey area indicates that a 16-day September teal season in the Atlantic, Central, and

Mississippi Flyways is appropriate for 2010. 4. Canada Geese

A. Special Seasons

Council Recommendations: The Mississippi Flyway Council recommended that the closing date for the September Canada goose season in

Minnesota be September 22 Statewide.

The Central Flyway Council recommended that we increase the daily bag limit framework from 5 to 8 for the Central Flyway States of South

Dakota, Nebraska, Kansas, and Oklahoma during the Special Early Canada

Goose hunting season.

Service Response: We agree with the Mississippi Flyway Council's recommendation to extend Minnesota's framework closing date for their

September Canada goose season to September 22. In 2007, Minnesota began a 3-year experiment to assess the proportion of migrant geese harvested during September 16-22 in the Northwest Goose Zone. The remainder of

Minnesota already has an operational September goose season that extends from September 1 through 22. Results from the 3-year experimental season evaluation showed that migrant geese comprised 7 percent of the Canada goose harvest in the Northwest Goose Zone during

September 16-22, below the 10 percent threshold level established by the Service for allowing special early Canada goose seasons. This result is consistent with the proportion of migrant geese harvested in other areas of Minnesota (