Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 60375 

* * * * * 

■ 3. In § 172.102, amend paragraph 

(c)(1) by adding special provision 439 in 

numerical order to read as follows: 

§ 172.102 Special provisions. 

* * * * * 

(c) * * * 

(1) * * * 

439 UN1972 is not authorized for 

transportation by rail tank car until 

either issuance of a final rule 

concluding the rulemaking action 

proceeding under RIN 2137–AF54, or 

June 30, 2025, whichever occurs first. 

For information and the status of RIN 

2137–AF54, please refer to the Office of 

Management and Budget’s Office of 

Information and Regulatory Affairs at 

www.reginfo.gov. 

* * * * * 

Issued in Washington, DC, on August 23, 

2023, under authority delegated in 49 CFR 

1.97. 

Tristan H. Brown, 

Deputy Administrator, Pipeline and 

Hazardous Materials Safety Administration. 

[FR Doc. 2023–18569 Filed 8–31–23; 8:45 am] 

BILLING CODE 4910–60–P 

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. 

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 


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60376 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

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 offreservation 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 selfmanagement 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 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 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 shortterm (possibly several years) 

experimental hunting seasons using 

methods outside of the Federal hunting 

methods at § 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 


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60378 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

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-bycase 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 longterm 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 nonTribal 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 longestablished 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 § 20.21 remain available for 

ceded lands and add this clarification to 

§ 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 

(§ 20.110). 

Comment 9: The Service should 

continue to publish proposed Tribal 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 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 


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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 

§ 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 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 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 WildlifeAssociated Recreation (National 

Survey), the most recent year for which 

data are available. See discussion under 

Required Determinations, Regulatory 

Flexibility Act, below. This analysis 

estimated consumer surplus for four 

alternatives for duck hunting 

regulations. As defined by OMB in 

Circular A–4, consumers’ surplus is the 

difference between what a consumer 

pays for a unit of a good or service and 

the maximum amount the consumer 

would be willing to pay for that unit. 

The duck hunting regulatory 

alternatives are (1) not opening a 

hunting season, (2) issuing restrictive 

regulations that allow fewer days than 

the 2022–23 season, (3) issuing 

moderate regulations that allow more 

days than those in Alternative 2 but 

fewer days than the 2022–23 season, 

and (4) issuing liberal regulations that 

allow days similar to the 2022–23 

season. For the 2023–24 season, we 

chose Alternative 4, with an estimated 

consumer surplus across all flyways of 

$356 million. We also chose Alternative 

4 for the 2009–10 through 2022–2023 

seasons. The 2023–24 analysis is part of 

the record for this rulemaking action 

and is available at https://

www.regulations.gov at Docket No. 

FWS–HQ–MB–2022–0090. 

Regulatory Flexibility Act 

The annual migratory bird hunting 

regulations have a significant economic 

impact on substantial numbers of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). An initial 

regulatory flexibility analysis was 

prepared to analyze the economic 

impacts of the annual hunting 

regulations on small business entities. 

This analysis is updated annually. The 

primary source of information about 

hunter expenditures for migratory game 

bird hunting is the National Survey, 

which is generally conducted at 5-year 

intervals. The 2023–24 analysis is based 

on the 2011 and 2016 National Survey 

and the U.S. Department of Commerce’s 

County Business Patterns, from which it 

is estimated that migratory bird hunters 

would spend approximately $2.5 billion 

(2022$) at small businesses during the 

2023–24 migratory bird hunting season. 

Copies of the analysis are available 

upon request from the person listed 

above under FOR FURTHER INFORMATION

CONTACT or from https://

www.regulations.gov at Docket No. 

FWS–HQ–MB–2022–0090. 

Congressional Review Act 

Pursuant to subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act (also known as the 

Congressional Review Act or CRA), 5 

U.S.C. 801 et seq., OIRA designated the 

annual migratory bird hunting 

regulations as a major rule, as defined 

by 5 U.S.C. 804(2), because this activity 

is likely to result in an annual effect on 

the economy of $100 million or more. 

However, because this rule would 

establish a regulatory program for 

activity related to hunting and because 

hunting seasons are time sensitive, we 

do not plan to defer the effective date 

under the exemption in the CRA, 5 

U.S.C. 808(1). 

Paperwork Reduction Act 

This rule does not contain any new 

collection of information that requires 

approval by the OMB under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). OMB has 

previously approved the information 

collection requirements associated with 

migratory bird surveys and the 

procedures for establishing annual 

migratory bird hunting seasons under 

the following OMB control numbers: 

• 1018–0019, ‘‘North American 

Woodcock Singing Ground Survey’’ 

(expires 02/29/2024). 

• 1018–0023, ‘‘Migratory Bird 

Surveys, 50 CFR 20.20’’ (expires 05/31/ 

2026). Includes Migratory Bird Harvest 

Information Program, Migratory Bird 

Hunter Surveys, Sandhill Crane Survey, 

and Parts Collection Survey. 

• 1018–0171, ‘‘Establishment of 

Annual Migratory Bird Hunting 

Seasons, 50 CFR part 20’’ (expires 10/ 

31/2024). 

You may view the information 

collection request(s) at http://

www.reginfo.gov/public/do/PRAMain. 

An agency may not conduct or sponsor, 

and a person is not required to respond 

to, a collection of information unless it 

displays a currently valid OMB control 

number. 

Unfunded Mandates Reform Act 

We have determined and certify, in 

compliance with the requirements of the 

Unfunded Mandates Reform Act, 2 

U.S.C. 1501 et seq., that this final 

rulemaking does not include any 

Federal mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted for inflation) in any one year. 

Civil Justice Reform—Executive Order 

12988 

The Department, in promulgating this 

final rule, has determined that this rule 


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60382 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

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 

■ 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. 

■ 2. Revise § 20.110 to read as follows: 

§ 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 offreservation 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 onreservation 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 onreservation 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. 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 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 § 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 offreservation 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 230224–0053; RTID 0648– 

XD251] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by Trawl 

Catcher Vessels in the Western 

Regulatory Area of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by catcher vessels 

using trawl gear in the Western 

Regulatory Area of the Gulf of Alaska 

(GOA). This action is necessary to 

prevent exceeding the 2023 Pacific cod 

total allowable catch apportioned to 

trawl catcher vessels in the Western 

Regulatory Area of the GOA. 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), September 1, 2023, 

through 2400 hours, A.l.t., December 31, 

2023. 

FOR FURTHER INFORMATION CONTACT: 

Krista Milani, 907–581–2062. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. Regulations 

governing sideboard protections for 

GOA groundfish fisheries appear at 

subpart B of 50 CFR part 680. 

The 2023 Pacific cod total allowable 

catch (TAC) apportioned to trawl 

catcher vessels in the Western 

Regulatory Area of the GOA is 1,956 

metric tons (mt), as established by the 

final 2023 and 2024 harvest 

specifications for groundfish of the GOA 

(88 FR 13238, March 2, 2023). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator) has 

determined that the 2023 Pacific cod 

TAC apportioned to trawl catcher 

vessels in the Western Regulatory Area 

of the GOA will soon be reached. 

Therefore, the Regional Administrator is 

establishing a directed fishing 

allowance of 1,356 mt and is setting 

aside the remaining 600 mt as bycatch 

to support other anticipated groundfish 

fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Pacific cod by 

catcher vessels using trawl gear in the 

Western Regulatory Area of the GOA. 

While this closure is effective the 

maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

NMFS issues this action pursuant to 

section 305(d) of the Magnuson-Stevens 

Act. This action is required by 50 CFR 

part 679, which was issued pursuant to 

section 304(b), and is exempt from 

review under Executive Order 12866. 

Pursuant to 5 U.S.C. 553(b)(B), there 

is good cause to waive prior notice and 

an opportunity for public comment on 

this action, as notice and comment 

would be impracticable and contrary to 

the public interest, as it would prevent 

NMFS from responding to the most 

recent fisheries data in a timely fashion 

and would delay the directed fishing 

closure of Pacific cod by catcher vessels 

using trawl gear in the Western 

Regulatory Area of the GOA. NMFS was 

unable to publish a notice providing 

time for public comment because the 

most recent, relevant data only became 

available as of August 28, 2023. 

The Assistant Administrator for 

Fisheries, NOAA also finds good cause 

to waive the 30-day delay in the 

effective date of this action under 5 

U.S.C. 553(d)(3). This finding is based 

upon the reasons provided above for 

waiver of prior notice and opportunity 

for public comment. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: August 28, 2023. 

Jennifer M. Wallace, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2023–18910 Filed 8–31–23; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 230224–0053; RTID 0648– 

XD283] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Catcher Vessels Greater Than or Equal 

to 50 Feet Length Overall Using Hookand-Line Gear in the Central 

Regulatory Area of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting retention 

of Pacific cod by catcher vessels greater 

than or equal to 50 feet (15.2 meters (m)) 

length overall using hook-and-line 

(HAL) gear in the Central Regulatory 

Area of the Gulf of Alaska (GOA). This 

action is necessary because the 2023 

total allowable catch of Pacific cod 

apportioned to catcher vessels greater 

than or equal to 50 feet (15.2 m) length 

overall using HAL gear in the Central 

Regulatory Area of the GOA has been 

reached. 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), September 1, 2023, 

through 2400 hours, A.l.t., December 31, 

2023. 


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