Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2016-17 Season

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

This rule prescribes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands. This rule responds to tribal requests for U.S. Fish and Wildlife Service (hereinafter Service or we) recognition of their authority to regulate hunting under established guidelines. This rule allows the establishment of season bag limits and, thus, harvest at levels compatible with populations and habitat conditions.

DATES:

This rule takes effect on September 9, 2016.

ADDRESSES:

You may inspect comments received on the special hunting regulations and Tribal proposals during normal business hours at U.S. Fish and Wildlife Headquarters, 5275 Leesburg Pike, Falls Church, VA 22041-3803, or at http://www.regulations.gov at Docket No. FWS-HQ-MB-2015-0034.

FOR FURTHER INFORMATION CONTACT:

Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS: MB, 5275 Leesburg Pike, Falls Church, VA 22041-3803; (703) 358-1967.

SUPPLEMENTARY INFORMATION:

Background

The Migratory Bird Treaty Act of July 3, 1918 (16 U.S.C. 703 et seq.), authorizes and directs the Secretary of the Department of the Interior, having due regard for the zones of temperature and for the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory game birds, to determine when, to what extent, and by what means such birds or any part, nest, or egg thereof may be taken, hunted, captured, killed, possessed, sold, purchased, shipped, carried, exported, or transported.

In the May 27, 2016, Federal Register (81 FR 34226), we proposed special migratory bird hunting regulations for the 2016-17 hunting season for certain Indian tribes, under the guidelines described in the June 4, 1985, Federal Register (50 FR 23467). The guidelines respond to tribal requests for Service recognition of their reserved hunting rights, and for some tribes, recognition of their authority to regulate hunting by both tribal members and nonmembers on their reservations. The guidelines include possibilities for:

(1) On-reservation hunting by both tribal members and nonmembers, with hunting by nontribal members on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);

(2) On-reservation hunting by tribal members only, outside of usual Federal frameworks for season dates and length, and for daily bag and possession limits; and

(3) Off-reservation hunting by tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits. In all cases, the regulations established under the guidelines must be consistent with the March 10-September 1 closed season mandated by the 1916 Migratory Bird Treaty with Canada.

In the August 6, 2015, Federal Register (80 FR 47388), we requested that tribes desiring special hunting regulations in the 2016-17 hunting season submit a proposal including details on:

(1) Harvest anticipated under the requested regulations;

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

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

(4) Tribal capabilities to establish and enforce migratory bird hunting regulations.

No action is required if a tribe wishes to observe the hunting regulations established by the State(s) in which an Indian reservation is located. We have successfully used the guidelines since the 1985-86 hunting season. We finalized the guidelines beginning with the 1988-89 hunting season (August 18, 1988, Federal Register [53 FR 31612]).

The final rule described here is the final in the series of proposed and final rulemaking documents for Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2016-17 Season. It sets hunting seasons, hours, areas, and limits for migratory game bird species on reservations and ceded territories. This final rule is the culmination of the rulemaking process for the Tribal migratory game bird hunting seasons, which started with the August 6, 2015, proposed rule. As discussed elsewhere in this document, we proposed special migratory bird hunting regulations for the 2016-17 hunting season for certain Indian tribes, on May 27, 2016. This final rule sets the Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2016-17 Season.

Status of Populations

Information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds, including detailed information on methodologies and results, was discussed in the December 11, 2015, Federal Register (80 FR 77088) and is available at the address indicated under FOR FURTHER INFORMATION CONTACT or from our Web site at http://www.fws.gov/migratorybirds/NewsPublicationsReports.html.

Comments and Issues Concerning Tribal Proposals

For the 2016-17 migratory bird hunting season, we proposed regulations for 23 Tribes or Indian groups that followed the 1985 guidelines and were considered appropriate for final rulemaking. We noted in the May 27 proposed rule that we were proposing seasons for seven Tribes who have submitted proposals in past years but from whom we had not yet received proposals this year. We did not receive proposals from five of those Tribes and, therefore, have not included them in this final rule. No other changes were made to this final rule.

The comment period for the May 27 proposed rule closed on June 27, 2016. We received nine comments on our May 27 proposed rule, which announced proposed seasons for migratory bird hunting by American Indian Tribes. Similar comments were combined below.

Written Comments: The Village of Hobart requested we explore Wisconsin Department of Natural Resource (WIDNR) guidelines for hunting and fishing, and consider the following: (1) Cease our Migratory Bird Program as an unnecessary and costly replication of State hunting and fishing guidelines; and/or (2) rescind section (p) of the proposed rule specific to the Oneida Nation where their tribal lands are significantly less than 10 percent of the municipal boundary. The Village also expressed concern that during the hunting season tribal members could potentially trespass on land in the Village or on/around the Austin Straubel Airport.

Service Response: We have approved of Oneida Nation's proposed regulations, or regulations similar to those proposed, since 1991. To our knowledge, this is only the second time that the Village has opposed these special migratory bird hunting regulations. Also, to our knowledge, there have been no indications of conflicts (e.g., arrests for trespass, etc.) on these lands during Oneida Nation's hunting season since their inception in 1991. Similarly, we note that the Airport property is a fenced and secured facility so potential conflict is unlikely. Lastly, we disagree with the Village's assertions that the Oneida Reservation has been disestablished or diminished. Our position is consistent with the Department calling an election for the Oneida Nation under Section 18 of the Indian Reorganization Act (“IRA”) and the Department's subsequent approval of its constitution under the IRA in 1936. Most recently in May 2016, the Department's Interior Board of Indian Appeals (IBIA) reaffirmed its earlier ruling that the Oneida Nation was organized in accordance with the IRA. Dillenburg v. Midwest Regional Director, Bureau of Indian Affairs,63 IBIA 56, (2016); see also, Village of Hobart v. Acting Midwest Regional Director,57 IBIA 4, (2013). For these reasons, we have decided to finalize Oneida's regulations as proposed. We encourage both the Village and Oneida to meet with us before special tribal regulations for the 2017-18 season are proposed in early 2017 if they still have questions related to the status of Oneida reservation and treaty rights; and to address any perceived conflicts with Oneida's hunting activity.

Written Comments: We received one comment from the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) on the May 27 proposed rule. GLIFWC comments that we have maintained that confusion on the part of the public, law enforcement, and other reasons justify our denial of the tribes' proposal to use electronic calls to hunt migratory birds, and GLIFWC contends that the courts have ruled that tribal treaty rights can be limited only when and if they can be shown to be detrimental to the conservation of natural resources or represent a threat to human health and safety. GLIFWC believes that, contrary to case law, we continue to apply inappropriate constraints and an unfounded rationale in our consideration of the tribes' proposal. GLFWC gives specific examples of this from the commentary in the proposed rule, which included:

• In the discussion regarding the proposed use of electronic calls, we state, “we do not believe that allowing the use of electronic calls . . . is in the best interest of the conservation of migratory birds.” This statement is made without providing any evidence of the negative impacts to migratory bird resource that might be caused by the highly limited application of this technique that the tribes proposed.
• We also state that electronic calls “are not generally considered a legitimate component of hunting.” This is a cultural statement made through a lens that views the harvest of migratory birds as a sport activity. It has no place in the evaluation of tribal subsistence regulations (as “legitimacy” is an ethical consideration that is not consistent with biological impact), and this language continues to be offensive to the tribes.
• We also state that we remain very concerned that the use of electronic calls would “lead to confusion on the part of the public, wildlife management agencies, and law enforcement officials.” Again, no evidence is provided to support this concern (and the fact that a wide range of tribal harvesting regulations have differed from those for State hunters for decades without “confusion” is overlooked). It also disregards the case law on treaty rights that “confusion” is not a valid reason to restrict the treaty-rights exercise, even if it should exist.

GLFWC also believes the proposed rule falls short of meeting the Service's responsibility to the tribes in other ways as well. For example, we state that the Service “continue[s] to be concerned about the large biological uncertainty surrounding any widespread use of electronic calls,” and yet rejected a very limited experimental application of electronic calls that could provide the very evidence needed to reduce that uncertainty. No acceptable alternative to the tribes' proposal was suggested. The Service indicated that “discussions are ongoing” with the tribes over various management issues; however, the Service made no effort to engage in government-to-government consultation with the tribes about the season proposal before publishing the proposed rule. Lack of government-to-government consultation on a regulation directly affecting tribal interests constitutes an agency action contravening Executive Order 13175, a memorandum to Federal agencies by President Obama reaffirming Executive Order 13175, and official policy of the Department of the Interior and the Service, and is contrary to the 2011 Service Tribal Consultation Handbook.

Notably, the Service rejected provisions regarding baiting, trapping, and hunting at night without providing any discussion, any evidence of biological or safety impacts, or making any effort to consult with the tribes on these issues—despite the recent ruling by the Seventh Circuit in the Lac Courte Oreille case and the above-mentioned Executive Order and department- and agency-level policies.

GLIFWC requests that we issue a final rule that approves the tribes' original proposal for migratory bird harvesting in the 1837 and 1842 ceded territories. If we have legitimate natural resource, or public health or safety, concerns about the tribes' proposal, the tribes would welcome the opportunity to discuss those concerns in greater detail. However, as described above, GLIFWC asserts that the justification provided in the proposed rule does not appear to support a denial of the tribes' proposal.

Service Response: The GLIFWC 2016-17 proposal has one specific proposed change from regulations approved last season: in the 1837 and 1842 Treaty Areas, the GLIFWC proposal would allow the use of electronic calls. GLIFWC's proposal also mentions developing regulations to allow for the night hunting and baiting of waterfowl, and the trapping of migratory birds. However, no specificity or development timetable is contained in their proposal. Thus, we will largely defer our response to those latter items until the appropriate time. However, we hope to continue discussions with GLIFWC in the near future on these important issues.

GLIFWC states that the specific proposed regulatory changes are intended to provide tribal members a harvest opportunity within the scope of rights reserved in their various treaties and increase tribal subsistence harvest opportunities, while protecting migratory bird populations. Under the GLIFWC's proposed regulations, GLIFWC expects total ceded territory harvest to be approximately 1,650 ducks, 375 geese, 20 sandhill cranes, and 20 swans, which is roughly similar to anticipated levels in previous years for those species for which seasons were established. GLIFWC further anticipates that tribal harvest will remain low given the small number of tribal hunters and the limited opportunity to harvest more than a small number of birds on most hunting trips.

Recent GLIFWC harvest surveys (1996-98, 2001, 2004, 2007-08, 2011, and 2012) indicate that tribal off-reservation waterfowl harvest has averaged fewer than 1,100 ducks and 250 geese annually. Two sandhill cranes were reported harvested in each of the first three tribal crane seasons (2014-16). In the latest survey year for which we have specific results (2012), an estimated 86 hunters took an estimated 1,090 trips and harvested 1,799 ducks (1.7 ducks per trip) and 822 geese. Analysis of hunter survey data over 1996-2012 indicates a general downward trend in both harvest and hunter participation. We note that GLIFWC also mentions a 2015 hunter survey that has not yet been completed.

GLIFWC cites United States v. Bresette (D.Minn. 1991) and Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin (7th Cir. 2014) as cases that the Migratory Bird Treaty Act (MBTA) does not abrogate their treaty rights, and that the Service should permit the use of electronic calls, baiting, night hunting, and trapping as they have either specifically proposed this year (electronic calls) or have proposed developing regulations allowing for future implementation (baiting, night hunting, and trapping). While we agree that the MBTA does not abrogate the tribe's treaty rights, we disagree with GLIFWC's conclusion that the tribe is therefore entitled to use electronic calls, baiting, night hunting, and trapping. We still retain the authority to reasonably regulate the manner of take for migratory bird hunting on ceded lands. For example, the Bresette case involved a defense to a criminal prosecution and did not address the issue of the manner in which tribal members were permitted to take birds.

Similarly in the Lac Courte Oreilles case, the 7th Circuit required the State of Wisconsin to justify its rationale for safety concerns prohibiting the night hunting of deer when other surrounding States allowed for deer night hunting. We believe this case is distinguishable in that no night waterfowl hunting is currently allowed anywhere, nor has it ever been allowed in the past. Further, night deer hunting uses spotlights that enable hunters to specifically identify intended targets. Waterfowl are much smaller targets than deer, and hunters should be required to reasonably identify their target to avoid the unintentional take of non-game species. Shooting at night makes target identification impractical and would significantly increase the potential take of non-game and other protected birds, including the potential take of threatened and endangered species.

In addition to conservation concerns relating to the unintentional take of protected species, we have also continually cited significant safety concerns related to migratory bird hunting outside of the normal allowed shooting hours. Normally, shooting hours for migratory game birds are one-half hour before sunrise to sunset. Potential impacts to hunter safety, difficulty of identifying birds, retrieval of downed birds, and impacts on law enforcement are some of the concerns we have raised when discussing potential expansions of shooting hours. In 2012, in deference to tribal traditions and in the interest of cooperation, and in spite of our previously identified concerns regarding species identification, retrieval of downed birds, hunter safety, and law enforcement impacts, we approved shooting 30 minutes after sunset (an extension of 15 minutes from the then-current 15 minutes after sunset) (77 FR 54451, September 5, 2012). This was consistent with other Tribes in the general area (Fond du Lac, Leech Lake, Oneida, Sault Ste Marie, and White Earth). However, we stated in 2014 (79 FR 52226, September 3, 2014) that any further extension of shooting hours on either the front end or the back end of the day would be contrary to public safety and would only heighten our previously identified safety and conservation concerns. We are unaware of any other migratory bird hunting that occurs more than 30 minutes after sunset. Thus, we conclude that for safety and conservation concerns, it is appropriate for us to deny GLIFWC's proposed request to develop regulations allowing the night hunting of waterfowl.

Regarding GLIWFC's request to develop regulations allowing the baiting of waterfowl and the trapping of migratory birds, as we noted above, the lack of specificity or a development timetable in their proposal makes this request difficult to adequately respond to at this time. We do not believe that a large-scale discussion of the merits and practicality, or lack thereof, of such practices is appropriate at this time, but would rather have further discussions with GLIFWC on these issues. Thus, we will defer our response to these items until such appropriate time. Further discussion on allowing the use of electronic calls is contained below.

Allowing Electronic Calls

As we have stated the last 5 years (76 FR 54676, September 1, 2011; 77 FR 54451, September 5, 2012; 78 FR 53218, August 28, 2013; 79 FR 52226, September 3, 2014; 80 FR 52663, September 1, 2015), the issue of allowing electronic calls and other electronic devices for migratory game bird hunting has been highly debated and highly controversial over the last 40 years, similar to other prohibited hunting methods such as baiting. Electronic calls, i.e., the use or aid of recorded or electronic amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds to lure or attract migratory game birds to hunters, was Federally prohibited in 1957, because of their effectiveness in attracting and aiding the harvest of ducks and geese and are generally not considered a legitimate component of hunting. In 1999, after much debate, the migratory bird regulations were revised to allow the use of electronic calls for the take of light geese (lesser snow geese and Ross geese) during a light-goose-only season when all other waterfowl and crane hunting seasons, excluding falconry, were closed (64 FR 7507, February 16, 1999; 64 FR 71236, December 20, 1999; 73 FR 65926, November 5, 2008). The regulations were also changed in 2006, to allow the use of electronic calls for the take of resident Canada geese during Canada-goose-only September seasons when all other waterfowl and crane seasons, excluding falconry, were closed (71 FR 45964, August 10, 2006). In both instances, these changes were made in order to significantly increase the take of these species due to serious population overabundance, habitat degradation due to high populations, depredation issues, or public health and safety issues, or a combination of these.

In our previous responses on this issue, we discussed available information from the use of electronic calls during the special light-goose seasons its applicability to most waterfowl species. We have also provided information to GLIWFC regarding the availability of using electronic calls for resident Canada geese in early-September or during special light-goose seasons when all other waterfowl seasons are closed. To our knowledge, GLIFWC members have not utilized electronic calls during either the special light-goose season or the early-September resident Canada goose season. We note that these opportunities would seem to provide a perfect opportunity to gauge not only hunter interest and participation, but the effectiveness of the methodology.

Further, given available evidence on the effectiveness of electronic calls, we continue to be concerned about the large biological uncertainty surrounding any widespread use of electronic calls. The Treaty areas of Michigan, Minnesota, and Wisconsin covered by GLIWFC's proposal are a large area subject to widely varying degrees of hunting pressure. These factors logically lead us to a large degree of uncertainty surrounding any widespread use of electronic calls in such an area.

Additionally, we remained concerned that tribal waterfowl hunting covered by GLIFWC's proposal would occur on ceded lands that are not in the ownership of the Tribes. We continue to believe that the use of electronic calls to take waterfowl would likely lead to significantly increased confusion on the part of the public, wildlife-management agencies, and law-enforcement officials in implementing the requirements of 50 CFR part 20. Further, similar to the impacts of baiting, uncertainties concerning the zone of influence attributed to the use of electronic calls could potentially increase harvest from nontribal hunters operating within areas electronic calls are being used during the dates of the general hunt.

Lastly, and perhaps most importantly, GLIFWC has repeatedly stated that tribal hunter participation is low, and that the proposals for electronic calls are intended to increase migratory bird hunting participation and harvest by tribal members. While we also have concerns over hunter-participation numbers and a common desire to increase hunter recruitment and retention of not only tribal hunters but migratory bird sport hunters, GLIFWC has not defined these goals nor presented any evidence that their proposals would help achieve this intended goal. Further, GLIWFC has provided no evidence or data that tribal migratory bird hunting has increased because of recently proposed and implemented harvest liberalizations over the past few years (increased bag limits; removal of species restrictions; increased shooting hours; longer seasons; implementation of tundra swan, sandhill crane, and dove seasons; removal of possession limits; and removal of shot-shell limits); nor any evidence that the cause of low tribal hunter interest in hunting migratory birds is due to restrictive harvest regulations. Likewise, GLIFWC has not shown that they have utilized electronic calls for existing goose seasons where they may be used (discussed above) in an effort to increase hunter interest, participation, and harvest.

Many State and Federal wildlife agencies, as well as other nongovernmental organizations, have devoted considerable resources to the topic of hunter recruitment and retention. However, the most recent research indicates that changes in hunting regulations are not very effective in recruiting hunters. Thus, given this research information and the lack of evidence that GLIFWC's proposals will help achieve their stated objective, we cannot justify the acceptance of the inherent risks to migratory bird conservation associated with this proposal at this time. However, we would be glad to review any data or information GLIWFC may have that would help address these concerns and we would welcome opportunities to work with GLIFWC on our common desire to increase hunter recruitment and retention.

Notwithstanding our concerns, we understand GLIFWC's position on this issue, their desire to increase tribal hunter opportunity, harvest, and participation, and the importance that GLIFWC has ascribed to these issues. In our recent discussions with them over the past year or more, they have expressed a willingness to work with us to further discuss these issues, all the uncertainties and difficulties surrounding them, and the overall Federal-Tribal process for addressing these and other such issues. As a first step in this process, we have begun work on a memorandum of understanding that further defines and clarifies the overall process, the administrative roles and responsibilities, and the communications process between us. However, this process is only the first step and we are not yet at a point in these discussions that would allow our approval of this proposal, or any such proposal. Further, it would be premature at this time to approve such a measure, or any such measure, until we finalize the Federal-Tribal process, roles, and responsibilities for addressing this and other such issues. It is our hope that over the next year, we can continue these discussions. We remain hopeful that we can reach a mutually agreeable resolution.

Thus, at this time, removal of the electronic-call prohibition, even with the GLIFWC's proposed limited and experimental design, would be inconsistent with our long-standing conservation concerns, and we do not support allowing the use of electronic calls in the 1837 and 1842 Treaty Areas for any open waterfowl season

Written Comments: The Wisconsin Department of Natural Resources (WIDNR) and the Mississippi Flyway Council (MFC) expressed opposition to GLIFWC's proposal allowing the use of electronic calls, night hunting and baiting for waterfowl, and the trapping of migratory birds. Both expressed continued concerns about the potential negative impacts to local waterbird populations, the increased potential for take of nongame species, the incompatibility with Federal and State waterfowl management, public safety, potential user conflicts, law-enforcement problems, and the potential to place non-tribal hunters in violation of migratory game bird hunting regulations. Both further questioned GLIFWC's justification for proposed additional hunting methods to achieve an objective of increased migratory-bird-hunting participation by tribal members in the absence of evidence. However, the MFC welcomed opportunities to work with GLIFWC on their common desire to increase hunter recruitment and retention.

Service Response: We agree with the MFC and the WIDNR about continuing concerns over declining hunter participation and our common desire to increase hunter recruitment and retention of not only tribal hunters but migratory bird sport hunters. Many State and Federal wildlife agencies, as well as other nongovernmental organizations, have devoted considerable resources to this topic. However, we agree with the MFC that the most recent research indicates that changes in hunting regulations are not very effective in recruiting hunters.

As we stated earlier, GLIFWC has repeatedly stated that tribal participation is low, but presents no evidence that tribal migratory bird hunting has increased because of recent liberalizations over the past few years, nor that tribal members have stated that restrictive regulations are the cause of low tribal hunter interest in hunting migratory birds. Given the lack of evidence that GLIFWC's proposals will help achieve their stated objective, we agree that there is no justification to accept the inherent risks to migratory bird conservation and public safety associated with GLIFWC's proposals. However, like the MFC, we would welcome opportunities to work with GLIFWC on our common desire to increase hunter recruitment and retention.

Written Comments: Three commenters protested the entire migratory bird hunting regulations process, the killing of all migratory birds, and the status and habitat data on which the migratory bird hunting regulations are based. Two commenters believed certain migratory bird species such as sandhill cranes, woodcock, and mourning doves should not ever be hunted.

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. Further, there exists a long history of establishing hunting seasons for migratory game bird species such as waterfowl, cranes, woodcock, doves, and migratory shore and upland game birds. Tribes, such as those included in this final rule, have hunted these species before and since the inception of our establishment of migratory game bird hunting seasons. These seasons are culturally important to them, and applicable treaties allow for hunting of these species.

Having taken into account the zones of temperature and the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory game birds, we believe that the hunting seasons provided for 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. We continue to believe that the current Flyway-Council system of migratory bird management is one of the most longstanding, successful examples of State-Federal cooperative management since its establishment in 1952. Likewise, the establishment of special tribal migratory bird hunting regulations has been a successful Federal-Tribal partnership since 1988. However, as always, we continue to seek new ways to improve the process.

National Environmental Policy Act (NEPA)

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 framework regulations 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 frameworks through the annual preparation of separate environmental assessments, the most recent being “Duck Hunting Regulations for 2016-17,” with its corresponding January 2016 finding of no significant impact. 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 indicated under the caption 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 review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (and) shall “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. * * *.” Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks reflect any such modifications. Our biological opinions resulting from this section 7 consultation are public documents available for public inspection at the address indicated under ADDRESSES.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

An updated economic analysis was prepared for the 2013-14 season. This analysis was based on data from the newly released 2011 National Hunting and Fishing Survey, the most recent year for which data are available (see discussion in Regulatory Flexibility Act section below). This analysis estimated consumer surplus for three alternatives for duck hunting (estimates for other species are not quantified due to lack of data). The alternatives were: (1) Issue restrictive regulations allowing fewer days than those issued during the 2012-13 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations identical to the regulations in the 2012-13 season. For the 2013-14 season, we chose Alternative 3, with an estimated consumer surplus across all flyways of $317.8-$416.8 million. For the 2016-17 season, we have also chosen alternative 3. We also chose alternative 3 for the 2009-10, the 2010-11, the 2011-12, the 2012-13, the 2014-15, and the 2015-16 seasons. The 2013-14 analysis is part of the record for this rule and is available at http://www.regulations.gov at Docket No. FWS-HQ-MB-2015-0034.

Regulatory Flexibility Act

The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). We analyzed the economic impacts of the annual hunting regulations on small business entities in detail as part of the 1981 cost-benefit analysis. This analysis was revised annually from 1990-95. In 1995, the Service issued a Small Entity Flexibility Analysis (Analysis), which was subsequently updated in 1996, 1998, 2004, 2008, and 2013. 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 2013 Analysis was based on the 2011 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 $1.5 billion at small businesses in 2013. Copies of the Analysis are available upon request from the person listed under FOR FURTHER INFORMATION CONTACT, from our Web site at http://www.fws.gov/migratorybirds,, or at http://www.regulations.gov at Docket No. FWS-HQ-MB-2015-0034.

Small Business Regulatory Enforcement Fairness Act

This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule will have an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we are not deferring the effective date under the exemption contained in 5 U.S.C. 808(1).

Paperwork Reduction Act

This final rule does not contain any new information collection that requires approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has reviewed and approved the information collection requirements associated with migratory bird surveys and assigned the following OMB control numbers:

• 1018-0019—North American Woodcock Singing Ground Survey (expires 5/31/2018).
• 1018-0023—Migratory Bird Surveys (expires 6/30/2017). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.

Unfunded Mandates Reform Act

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Civil Justice Reform—Executive Order 12988

The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Takings Implication Assessment

In accordance with Executive Order 12630, this rule, authorized by the Migratory Bird Treaty Act (16 U.S.C. 703-711), does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule allows hunters to exercise otherwise unavailable privileges and, therefore, reduces restrictions on the use of private and public property.

Energy Effects—Executive Order 13211

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects on Indian trust resources. However, in the August 6, 2015, Federal Register (80 FR 47388), 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 2016-17 migratory bird hunting season. The resulting proposals were contained in a separate May 27, 2016, proposed rule (81 FR 34226). By virtue of these actions, we have consulted with affected Tribes.

Federalism Effects

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Regulation Promulgation

The rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. That is, if there were a delay in the effective date of these regulations after this final rulemaking, Tribes would have insufficient time to publicize the necessary regulations and procedures to their hunters. We therefore find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and this rule will, therefore, take effect immediately upon publication.

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

List of Subjects in 50 CFR Part 20

• Exports
• Hunting
• Imports
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

Accordingly, part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations is amended as follows:

PART 20—MIGRATORY BIRD HUNTING

1. The authority citation for part 20 continues to read as follows:

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

Note:

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

2. Section 20.110 is revised to read as follows: