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


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[Docket No. FWS-HQ-MB-2022-0090; FF09M32000-234-FXMB1231099BPP0]
RIN 1018-BF64


Migratory Bird Hunting; Migratory Game Bird Hunting Regulations 
on Certain Federal Indian Reservations and Ceded Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

DATES: This rule takes effect September 1, 2023.

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

FOR FURTHER INFORMATION CONTACT: Jerome Ford, U.S. Fish and Wildlife 
Service, Department of the Interior, (703) 358-2606. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point of contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

    Migratory game birds are those bird species so designated in 
conventions between the United States and several foreign nations for 
the protection and management of these birds. Under the Migratory Bird 
Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is 
authorized to determine when ``hunting, taking, capture, killing, 
possession, sale, purchase, shipment, transportation, carriage, or 
export of any such bird, or any part, nest, or egg'' of migratory game 
birds can take place and to adopt regulations for this purpose. These 
regulations must give due regard to the zones of temperature and to the 
distribution, abundance, economic value, breeding habits, and times and 
lines of migratory flight of such birds (16 U.S.C. 704(a)). The 
Secretary of the Interior has delegated to the Service the lead Federal 
responsibility for managing and conserving migratory birds in the 
United States; however, migratory bird management is a cooperative 
effort of Federal, Tribal, and State governments. Federal regulations 
pertaining to migratory bird hunting are located in title 50 of the 
Code of Federal Regulations in part 20.
    Acknowledging regional differences in hunting conditions, the 
Service has administratively divided the United States into four 
Flyways for the primary purpose of managing migratory game birds. Each 
Flyway (Atlantic, Mississippi, Central, and Pacific) has a Flyway 
Council, a formal organization generally composed of one member from 
each State within the Flyway, as well as Provinces in Canada that share 
migratory bird populations with the Flyway. The Flyway Councils, 
established through the Association of Fish and Wildlife Agencies, 
assist in researching and providing migratory game bird management 
information for Federal, Tribal, State, and Provincial governments, as 
well as private conservation entities and the general public.
    The Service annually develops migratory game bird hunting outside 
limits (hereinafter, Federal outside limits or Federal limits) for 
season dates, season lengths, shooting hours, bag and possession 
limits, and areas where migratory game bird hunting may occur. Hunting 
seasons selected by the States and Tribes within these Federal limits 
are set forth in regulations at 50 CFR part 20, subpart K. Because the 
Service is required to take abundance of migratory game birds and other 
factors into consideration, the Service undertakes several surveys 
throughout the year in conjunction with Service Regional Offices, the 
Canadian Wildlife Service, Tribes, and State and Provincial wildlife 
management agencies. For each annual regulatory cycle, Service 
biologists gather, analyze, and interpret biological survey data and 
provide this information through a series of published status reports 
and presentations to the Flyway Councils and other interested parties. 
The August 6, 2015, Federal Register at 80 FR 47388 provides a detailed 
overview of this process.
    The Federal outside limits are necessary to allow harvest at levels 
compatible with migratory game bird population status and habitat 
conditions. To determine the appropriate outside limits for each 
species, we consider factors such as population size and trend, 
geographical distribution, annual breeding effort, condition of 
breeding and wintering

[[Page 60376]]

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

Previous Tribal Rulemaking Process

    Beginning with the 1985-86 hunting season, we have employed 
guidelines described in the June 4, 1985, Federal Register (50 FR 23459 
at 23467) to establish special (independent from the State or States 
where the reservation is located) migratory game bird hunting 
regulations on Federal Indian reservations (including off-reservation 
trust lands) and ceded lands. We developed these guidelines in response 
to Tribal requests for our recognition of their reserved hunting 
rights, and for some Tribes, recognition of their authority to regulate 
hunting by both Tribal and nontribal members throughout their 
reservations. The guidelines provide appropriate opportunity to 
accommodate the reserved hunting rights and management authority of 
Indian Tribes while also ensuring that the migratory game bird resource 
receives necessary protection. The Service adopted the 1985 guidelines 
as final in 1988 (53 FR 31612, August 18, 1988).
    From the 1985 through 2022 hunting seasons, as part of our 
preliminary proposed rule to annually promulgate Federal migratory bird 
hunting regulations, we asked Tribes to submit their proposed migratory 
bird hunting regulations. Proposals were to include season dates and 
other regulations, methods to monitor harvest, anticipated harvest, 
steps taken to limit harvest levels, and capabilities to establish and 
enforce migratory bird hunting regulations. Then, upon receipt of 
information provided by the Tribes each year on the status of migratory 
bird populations and expected migratory bird harvest, we evaluated the 
potential impact of special Tribal hunting regulations on the migratory 
bird resource. Annually, we published in the Federal Register the 
special Tribal migratory bird hunting regulations as a proposed rule 
and, following review and consideration of any public comments, 
published a final rule setting forth the regulations. We have always 
concluded that this harvest, when conducted within our guidelines, is 
small and, therefore, would have a negligible impact to the bird 
population status.
    For the 2023-24 hunting season, we published proposed regulations 
for certain migratory game birds on November 3, 2022 (87 FR 66247). In 
that proposed rule, we stated that we would handle Tribal regulations 
for the 2023-24 hunting season via a separate rulemaking process in 
later Federal Register documents. Accordingly, on March 23, 2023, we 
proposed a revised process for establishing special regulations for 
certain Tribes on Federal Indian reservations, off-reservation trust 
lands, and ceded lands for migratory bird hunting seasons (88 FR 
17511). That proposed rule initiated a process for developing special 
migratory game bird hunting regulations on Federal Indian reservations 
(including off-reservation trust lands) and ceded lands for the 2023-24 
hunting season and beyond.

New Process for Managing Tribal Migratory Bird Hunting

    Under the regulations in this final rule, we anticipate that Tribal 
hunting will continue to have similar minimal impact to the migratory 
bird resource in the future due to declining trends in active hunters 
for some Tribes and also increasing population trends for many 
migratory game birds (as identified in the 2022 State of the Birds 
Report; see state-of-the-birds-2022-spreads.pdf at 
stateofthebirds.org.). Based on the demonstrated successful 
implementation of our Tribal guidelines since 1985 and the historical 
and future expected minimal impacts to migratory game bird resources, 
we have simplified the process for establishing special Tribal 
migratory game bird hunting regulations for the upcoming hunting season 
(2023-2024) and afterwards. We have removed the requirement that Tribes 
annually submit their proposed migratory game bird hunting regulations 
(and associated monitoring, anticipated harvest, and capabilities for 
regulation development and enforcement) for our review and approval. We 
also will no longer publish special Tribal migratory game bird hunting 
regulations in the Federal Register (i.e., a proposed and final rule). 
The regulations set forth in this rule adopt elements of our guidelines 
for establishing special migratory game bird hunting regulations on 
Federal Indian reservations (including off-reservation trust lands) and 
ceded lands. Tribes that comply with these regulations will be 
authorized to independently establish special Tribal migratory bird 
hunting regulations. However, if circumstances change and data 
indicates migratory game bird populations are substantially declining 
or Tribal hunting increases significantly, we will reevaluate this 
regulation.
    By allowing Tribes to independently establish special migratory 
bird hunting regulations, the Service recognizes Tribal sovereignty to 
exercise reserved hunting rights and, for some Tribes, recognition of 
their authority to regulate hunting by both Tribal and nontribal 
members on their reservation. This rule will extend to Tribes with 
reserved hunting rights the same autonomy as the States to 
independently establish migratory game bird hunting seasons for 
nontribal members within annually established, biologically appropriate 
Federal outside limits. As an alternative to promulgating special 
Tribal migratory game bird hunting regulations, Tribes may choose to 
observe the hunting regulations established by the State or States in 
which the reservation is located. We coordinated with Tribes over the 
past 2 years via letters and four webinars as we developed this new 
regulatory approach for Tribal self-management of the harvest, and we 
have received positive feedback. The new system will reduce the annual 
administrative burden on both the Tribes and the Service to propose, 
review, and publish special migratory game bird hunting regulations 
while continuing to sustain healthy migratory game bird populations for 
future generations.
    As with the prior process, the new regulations will be applicable 
to those Tribes that have reserved hunting rights on Federal Indian 
reservations (including off-reservation trust lands) and ceded lands. 
These regulations also may be applied to the establishment of migratory 
game bird hunting regulations for nontribal members on all lands within 
the reservations where Tribes have full wildlife-management authority 
over such hunting, or where the Tribes and affected States otherwise 
have reached agreement over hunting by nontribal members on non-Indian 
lands within the reservation. Tribes usually have the authority to 
regulate migratory game bird hunting by nonmembers on Indian-owned 
reservation lands. The question of jurisdiction is more complex on 
reservations that include lands owned by non-Indians, especially when 
the surrounding States have established or intend to establish 
regulations governing migratory game bird hunting by non-Indians on 
these lands. In those cases, we encourage the Tribes and States to 
reach agreement on regulations that would apply throughout the 
reservations. When appropriate, we will consult with a Tribe and State 
with the aim of facilitating an accord. We also will consult jointly 
with Tribal and State officials in the affected States

[[Page 60377]]

where Tribes may wish to establish special migratory game bird hunting 
regulations for Tribal members on ceded lands. It is incumbent upon the 
Tribe and/or the State to request consultation. We will not presume to 
make a determination, without being advised by either a Tribe or a 
State, that any issue is or is not worthy of formal consultation. 
Tribal and State requests for consultation with the Service should be 
sent to the Service's Assistant Director for the Migratory Bird 
Program; see FOR FURTHER INFORMATION CONTACT. We note that our guidance 
on resolving issues of concern between Tribes and States on 
reservations and ceded lands is the same guidance we provided under the 
previous Tribal regulation process.
    The rule portion of this document includes requirements for Tribes 
to follow if they establish special Tribal migratory game bird hunting 
regulations, which are based on elements from the 1985 guidelines. The 
regulations provide that all Federal hunting regulations in this part 
apply to hunting by Tribal and nontribal members. We note that 
migratory game birds are defined in 50 CFR 20.11(a) as those birds 
included in the terms of conventions between the United States and any 
foreign country for the protection of migratory birds, belonging to 
certain families (Anatidae, Columbidae, Gruidae, Rallidae, and 
Scolopacidae), and for which open seasons are prescribed in this part. 
Open seasons for certain migratory game bird species are established by 
the Service annually as appropriate based on the biological status of 
these populations and published in the Federal Register as Federal 
outside limits. Tribes are encouraged to review each year the Federal 
outside limits to determine the list of migratory game bird species and 
species groups with authorized open seasons, and any special concerns 
regarding population status. Furthermore, annual review of the Federal 
outside limits for migratory game bird hunting seasons ensures that 
Tribal regulations for nontribal members on reservation lands comply 
(as required by regulations) with opening and closing dates, season 
length, and daily bag and possession limits established by the Service.
    In addition, we encourage Tribes wanting to establish special 
migratory game bird hunting regulations to consider the elements we 
previously required in their proposals:
    (1) Season dates and other regulations;
    (2) anticipated harvest;
    (3) methods that will be employed to measure or monitor harvest;
    (4) steps that will be taken to limit the level of harvest, where 
it could be shown that failure to limit such harvest would have serious 
impacts on the migratory bird resource; and
    (5) Tribal capabilities to establish and enforce migratory bird 
hunting regulations.
    We recommend that Tribes that allow swan hunting require that all 
swan hunters successfully complete a course on swan identification and 
conservation to minimize take of trumpeter swans during the swan 
season.
    These regulations provide for the continuation of Tribal members' 
harvest of migratory game birds on reservations where such harvest is a 
customary practice. We are supportive of this harvest provided it does 
not take place during the closed season (March 11 to August 31) 
mandated by the 1916 Convention Between the United States and Great 
Britain (for Canada) for the Protection of Migratory Birds and it is 
not so large as to adversely affect the status of the migratory game 
bird resource. Since the inception of the 1985 guidelines, we have 
reached annual agreement with Tribes for migratory game bird hunting by 
Tribal members on their lands or on lands where they have reserved 
hunting rights.
    We will continue to consult with Tribes that wish to reach a mutual 
agreement (memorandum of understanding (MOU) or similar type of formal 
agreement) on conducting short-term (possibly several years) 
experimental hunting seasons using methods outside of the Federal 
hunting methods at Sec.  20.21 for on-reservation and ceded lands 
hunting by Tribal members. The Tribal-member-only experimental hunting 
season would provide data and evaluation criteria specified in an 
agreement for consideration if a Tribe would like to make the 
additional hunting method operational. Tribes should send such requests 
for consultation to the Service's Assistant Director for the Migratory 
Bird Program at least 9 months before the season or ceremony regarding 
hunting methods outside of the Federal regulations (see FOR FURTHER 
INFORMATION CONTACT). While we intend to make proposed MOUs or other 
agreements available for public comment through a notice of 
availability, we might not use the public process for very minor or 
nonsignificant MOUs or agreements. The Service will make all signed 
agreements publicly available. If any individual Tribe wishes to make 
these additional experimental hunting methods operational and the 
Service agrees, the Service will conduct rulemaking (using any data 
from the experimental hunting season) to amend 50 CFR part 20 to allow 
Tribal members to use these additional hunting methods.
    Starting with the 2023-2024 hunting season, annual Tribal hunting 
season regulations will no longer be published in the Federal Register, 
alleviating the administrative burden to both the Service and the 
Tribes of developing special Tribal migratory bird hunting regulation 
proposals, reviewing proposals, and publishing Tribal regulations as 
Federal regulations. This process would not apply to seasons for 
subsistence take of migratory birds in Alaska.

Review of Public Comments for Tribal Proposed Rule

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

[[Page 60378]]

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

[[Page 60379]]

regulations in the Federal Register. This process should not be 
mutually exclusive with advances in recognition of Tribal sovereignty 
and pursuit of administrative efficiency. Further, should the Service 
determine that changes or efficiencies are needed in the existing 
process, we would recommend that States, Tribes, and Flyway Councils be 
engaged collectively to determine the best path forward for any 
modifications.
    Service response: Similar to this rulemaking, we will publish any 
subsequent proposed changes to Tribal migratory bird hunting 
regulations in the Federal Register for public review and comment.
    Regarding the regulations set forth in this final rule, we have 
determined that annual publication of Tribal regulations is not 
necessary so long as Tribal hunting seasons are consistent with our 
guidelines. As described above, beginning with the 1985-86 hunting 
season, we have employed guidelines described in the June 4, 1985, 
Federal Register (50 FR 23459 at 23467) to establish special migratory 
game bird hunting regulations (independent from the State or States 
where the reservation is located) on Federal Indian reservations 
(including off-reservation trust lands) and ceded lands. We developed 
these guidelines in response to Tribal requests for our recognition of 
their reserved hunting rights, and for some Tribes, recognition of 
their authority to regulate hunting by both Tribal and nontribal 
members throughout their reservations. The guidelines provide 
appropriate opportunity to accommodate the reserved hunting rights and 
management authority of Indian Tribes while also ensuring that the 
migratory game bird resource receives necessary protection. The Service 
adopted the 1985 guidelines as final in 1988 (53 FR 31612, August 18, 
1988).
    The regulations set forth in this final rule include elements of 
our current guidelines successfully employed since 1985 for 
establishing special migratory game bird hunting regulations on Federal 
Indian reservations (including off-reservation trust lands) and ceded 
lands. By incorporating these guidelines into regulations, Tribes are 
authorized to independently establish hunting seasons for migratory 
game birds, so long as they are within certain limits as specified in 
these regulations. This rule will extend to Tribes with reserved 
hunting rights the same autonomy as the States to independently 
establish migratory game bird hunting seasons for nontribal members 
within annually established, biologically appropriate Federal limits. 
This approach results in a more efficient promulgation process for both 
the Tribes and the Service. Resultant Tribal regulations for migratory 
game bird hunting are unchanged as a result of the new process. This 
rule does provide some flexibility for hunting by Tribal members on 
reservations and ceded lands to deviate from Federal regulations that 
apply in this part where such harvest is a customary practice, but 
these deviations are subject to an MOU between the Service and the 
Tribe or Federal rulemaking, both of which will be published in the 
Federal Register and subject to public review and comment. However, we 
may not use the public process for very minor or nonsignificant MOUs or 
agreements.
    Furthermore, each year from the 1985-86 hunting season through the 
2022-2023 hunting season, the Service received game bird harvest data 
from the Tribes. Using information on the status of migratory bird 
populations, the Service evaluated the potential impact of special 
Tribal hunting regulations on migratory game bird populations. 
Throughout that time, the Service concluded that annual Tribal harvest 
is small and, therefore, would have negligible impacts on the 
population status of migratory game birds. For each species/species 
group reported, Tribal harvest was less than one-half a percent of the 
total U.S. harvest, and for several species/species groups was less 
than one-tenth a percent as indicated in the NEPA review process.
    Comment 10: The Service should include a presumption that Tribes 
have reserved hunting rights on Federal Indian reservations and trust 
lands. Unless a treaty or Federal statute clearly revokes a Tribe's 
rights to hunt or fish, those rights are reserved to the Tribe. See, 
e.g., United States v. Winans, 198 U.S. 371 (1905). The Service should 
make the following clarification to paragraph (b) of the regulatory 
text regarding applicability: Unless a Tribe's hunting rights have been 
expressly revoked by Congress, special Tribal migratory game bird 
hunting regulations may be established by Tribes that have reserved 
hunting rights on Federal Indian reservations.
    Service response: We conclude that the proposed regulation 
authorizing, within limits, certain Tribes to establish hunting seasons 
for migratory game birds on Federal Indian reservations, off-
reservation trust lands, and ceded lands give Tribes more flexibility, 
consistent with Tribal sovereignty and in recognition of Tribal treaty 
rights. Further, the Service has been charged by Congress to manage 
migratory birds and given authority over associated migratory bird 
hunting regulations. We also conclude that Congress' process to revoke 
the hunting rights for Tribal migratory bird hunting is outside the 
scope of these regulations. In this final rule, we have retained the 
language from the proposed rule for paragraph (b).
    Comment 11: The United States Code (16 U.S.C. 704(a)) requires the 
Service to consider certain factors in authorizing and regulating 
migratory bird harvest, including: zones of temperature and the 
distribution, abundance, economic value, breeding habits, and times and 
lines of migratory flight of migratory birds. Under the proposed rule, 
it is not clear how the Service will continue to assess these factors 
with respect to Tribal migratory bird regulations moving forward.
    Service response: The new process for authorizing, within limits, 
Tribal regulations for migratory game bird hunting seasons will not 
change resultant Tribal regulations or cooperative monitoring programs 
to evaluate migratory game bird population status. Also, it will not 
change the established decision frameworks for informing Federal 
outside limits or the Tribal, State, and Federal collaborative process 
for establishing these Federal limits. The Federal limits allow Tribal 
and State selections of hunting seasons and limits and the opportunity 
for harvest at levels compatible with population status and habitat 
conditions.
    Comment 12: The proposed rule is predicated on the Service's 
anticipation that Tribal harvest will always have minimal impacts on 
migratory bird resources in the future due to declining trends in 
Tribal hunting participation and increasing trends for many migratory 
bird populations. The potential exists that circumstances, which 
underlie the Service's conclusion, may change. The proposed rule does 
not clarify what steps the Service may take if such change in 
circumstances occurs.
    Service response: To address this issue, we have stated above in 
the preamble of this final rule that, if circumstances change and data 
indicates that migratory game bird populations are substantially 
declining or Tribal hunting increases significantly, we intend to 
reevaluate this regulation. Also, we note that the regulations as set 
forth in this final rule provide that regulations for nontribal members 
on reservations must be within the annual outside limits for migratory 
bird hunting seasons established by the Service, and all Federal 
hunting regulations in this part also apply to nontribal hunters. The

[[Page 60380]]

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

Effective Date

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

Required Determinations

National Environmental Policy Act (NEPA) Consideration

    The programmatic document, ``Second Final Supplemental 
Environmental Impact Statement: Issuance of Annual Regulations 
Permitting the Sport Hunting of Migratory Birds (EIS 20130139),'' filed 
with the Environmental Protection Agency (EPA) on May 24, 2013, 
addresses NEPA compliance by the Service for issuance of the annual 
outside limits for hunting of migratory game bird species. We published 
a notice of availability in the Federal Register on May 31, 2013 (78 FR 
32686), and our Record of Decision on July 26, 2013 (78 FR 45376). We 
also address NEPA compliance for waterfowl hunting outside limits 
through the annual preparation of separate environmental assessments, 
the most recent being ``Duck Hunting Regulations for 2023-24,'' with 
its corresponding finding of no significant impact. Both of these 
documents are available at https://www.regulations.gov at Docket No. 
FWS-HQ-MB-2022-0090.
    We completed a Biological Review and NEPA Categorical Exclusion 
Analysis in 2023 for this final rule available at https://www.regulations.gov at Docket No. FWS-HQ-MB-2022-0090. We analyzed this 
rule in accordance with the criteria of the National Environmental 
Policy Act of 1969 (NEPA; 42 U.S.C. 4332(C)), 43 CFR part 46, and 516 
Departmental Manual (DM) 8. In addition, an August 1985 environmental 
assessment entitled ``Guidelines for Migratory Bird Hunting Regulations 
on Federal Indian Reservations and Ceded Lands'' is available from the 
person listed above

[[Page 60381]]

under FOR FURTHER INFORMATION CONTACT.

Endangered Species Act Consideration

    Section 7 of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.), provides that the Secretary shall insure that any 
action authorized, funded, or carried out is not likely to jeopardize 
the continued existence of any endangered species or threatened species 
or result in the destruction or adverse modification of critical 
habitat.
    After we published the March 23, 2023, proposed rule, we conducted 
formal consultations to ensure that actions resulting from this 
regulation, and other Federal fall-winter hunting regulations, would 
not likely jeopardize the continued existence of endangered or 
threatened species or result in the destruction or adverse modification 
of their critical habitat. Findings from these consultations are 
included in a biological opinion, which concluded that this regulation, 
and other Federal fall-winter hunting regulations, are not likely to 
jeopardize the continued existence of any endangered or threatened 
species. The biological opinion resulting from this section 7 
consultation is available for public inspection at the address 
indicated under ADDRESSES.

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

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

Regulatory Flexibility Act

    The annual migratory bird hunting regulations have a significant 
economic impact on substantial numbers of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial 
regulatory flexibility analysis was prepared to analyze the economic 
impacts of the annual hunting regulations on small business entities. 
This analysis is updated annually. The primary source of information 
about hunter expenditures for migratory game bird hunting is the 
National Survey, which is generally conducted at 5-year intervals. The 
2023-24 analysis is based on the 2011 and 2016 National Survey and the 
U.S. Department of Commerce's County Business Patterns, from which it 
is estimated that migratory bird hunters would spend approximately $2.5 
billion (2022$) at small businesses during the 2023-24 migratory bird 
hunting season. Copies of the analysis are available upon request from 
the person listed above under FOR FURTHER INFORMATION CONTACT or from 
https://www.regulations.gov at Docket No. FWS-HQ-MB-2022-0090.

Congressional Review Act

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

Paperwork Reduction Act

    This rule does not contain any new collection of information that 
requires approval by the OMB under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). OMB has previously approved the information 
collection requirements associated with migratory bird surveys and the 
procedures for establishing annual migratory bird hunting seasons under 
the following OMB control numbers:
    <bullet> 1018-0019, ``North American Woodcock Singing Ground 
Survey'' (expires 02/29/2024).
    <bullet> 1018-0023, ``Migratory Bird Surveys, 50 CFR 20.20'' 
(expires 05/31/2026). Includes Migratory Bird Harvest Information 
Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and 
Parts Collection Survey.
    <bullet> 1018-0171, ``Establishment of Annual Migratory Bird 
Hunting Seasons, 50 CFR part 20'' (expires 10/31/2024).
    You may view the information collection request(s) at http://www.reginfo.gov/public/do/PRAMain. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

Unfunded Mandates Reform Act

    We have determined and certify, in compliance with the requirements 
of the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq., that this 
final rulemaking does not include any Federal mandate that may result 
in the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
for inflation) in any one year.

Civil Justice Reform--Executive Order 12988

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

[[Page 60382]]

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

Takings Implication Assessment--Executive Order 12630

    In accordance with E.O. 12630, this final rule, authorized by the 
Migratory Bird Treaty Act, does not have significant takings 
implications and does not affect any constitutionally protected 
property rights. This rule would not result in the physical occupancy 
of property, the physical invasion of property, or the regulatory 
taking of any property. In fact, this rule would allow hunters to 
exercise otherwise unavailable privileges and, therefore, would reduce 
restrictions on the use of private and public property.

Energy Effects--Executive Order 13211

    E.O. 13211 requires agencies to prepare statements of energy 
effects when undertaking certain actions. This final rule is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy and is not a significant energy action. Therefore, no 
statement of energy effects is required.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have 
evaluated possible effects on federally recognized Indian Tribes and 
have determined that there are de minimis effects on Indian trust 
resources. Through the process to establish annual hunting regulations, 
we regularly coordinate with Tribes, and we coordinated with Tribes on 
the development of this new regulatory process.

Federalism Effects--Executive Order 13132

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the Migratory Bird Treaty Act. We annually prescribe Federal limits 
from which Tribes and States may establish hunting seasons for 
migratory game birds, and we employ guidelines to establish special 
regulations on Federal Indian reservations and ceded lands. This 
process preserves the ability of the States and Tribes to determine 
which seasons meet their individual needs. Any State or Tribe may be 
more restrictive in its regulations than the Federal limits. The 
Federal limits are developed annually in a cooperative process with the 
Tribes, States, and Flyway Councils. This process allows Tribes and 
States to participate in the development of Federal limits from which 
they will make selections, thereby having an influence on their own 
regulations. These rules do not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with E.O. 13132, 
these regulations do not have federalism implications and do not 
warrant the preparation of a federalism summary impact statement.

Signing Authority

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

List of Subjects in 50 CFR Part 20

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

Regulation Promulgation

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

PART 20--MIGRATORY BIRD HUNTING

0
1. The authority citation for part 20 continues to read as follows:

    Authority:  16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.


0
2. Revise Sec.  20.110 to read as follows:


Sec.  20.110   Regulations for certain Federal Indian reservations and 
ceded lands.

    (a) Tribal sovereignty. The Service recognizes Tribal sovereignty 
to exercise reserved hunting rights and, for some Tribes, recognition 
of their authority to regulate hunting by both Tribal and nontribal 
members on their reservation. Accordingly, Tribes may independently 
establish special (separate from the State or States in which the 
reservation is located) migratory game bird hunting regulations. 
Migratory birds may be taken if the take is consistent with the 
regulations in this section and applicable Tribal hunting regulations.
    (b) Applicability. Special Tribal migratory game bird hunting 
regulations may be established by Tribes that have reserved hunting 
rights on Federal Indian reservations (including off-reservation trust 
lands) and ceded lands. These regulations also may be applied to the 
establishment of migratory game bird hunting regulations for nontribal 
members on all lands within the reservations where Tribes have full 
wildlife-management authority over such hunting, or where the Tribes 
and affected States otherwise have reached agreement over hunting by 
nontribal members on non-Indian lands within the reservation.
    (c) Special regulations. Special Tribal migratory game bird hunting 
regulations must be consistent with the annual March 11 to August 31 
closed season mandated by the 1916 Convention Between the United States 
and Great Britain (for Canada) for the Protection of Migratory Birds, 
as amended by the Protocol Between the Government of Canada and the 
Government of the United States of America Amending the 1916 Convention 
Between the United Kingdom and the United States of America for the 
Protection of Migratory Birds in Canada and the United States, and with 
these provisions:
    (1) Tribes may establish on-reservation hunting regulations, for 
both Tribal and nontribal members, with hunting seasons that may differ 
from those in the State(s) in which the reservations are located.
    (i) Regulations for both Tribal and nontribal members: Opening and 
closing dates, season length, and daily bag and possession limits for 
nontribal members on the reservations must be within the Federal limits 
for migratory bird hunting seasons established by the Service, and all 
Federal hunting regulations in this part also apply to nontribal 
hunters. Tribes may choose to set the same opening and closing dates, 
season length, and daily bag and possession limits for hunting by 
Tribal members and nontribal members on their reservations, or, in 
accordance with the provisions in paragraph (c)(1)(ii) of this section, 
Tribes may choose to establish regulations for Tribal members only.
    (ii) Regulations for Tribal members only: Tribes may establish on-
reservation hunting regulations by Tribal members only, with hunting 
seasons that may be outside of Federal limits for season dates, season 
length, and daily bag and possession limits. All Federal hunting 
regulations in this part apply.

[[Page 60383]]

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

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