E6-10776. Revision of Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest Regulations

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the Fish and Wildlife Service (Service, or we), revise the regulations governing the annual Migratory Bird Hunting and Conservation Stamp Contest [also known as the Federal Duck Stamp Contest (contest)]. Our amendments raise the contest entry fee by $25, to $125; update contest opening and entry deadline dates, locations, and mail and Internet site information; specify penalties for contestants who contact judges or copy designs from the Internet; relieve restrictions on our ability to announce judges' names; clarify ambiguous language in our regulations concerning matting of entries and minimum age of entrants; and update or correct technical advising for the contest, the common names and spelling of species on our list of contest design subjects, and minor grammar errors.

DATES:

This rule is effective on September 18, 2006.

FOR FURTHER INFORMATION CONTACT:

Patricia Fisher, Chief, Federal Duck Stamp Office, [phone] (phone), [e-mail] (e-mail), or [phone] (fax).

SUPPLEMENTARY INFORMATION:

We revise the regulations governing the annual Migratory Bird Hunting and Conservation Stamp Contest [also known as the Federal Duck Stamp Contest (contest)]. Our amendments raise the contest entry fee by $25, to $125, and update contest opening and entry deadline dates, locations, and mail and Internet site information, so that our regulations are brought up to date with our current and new practices. They also specify penalties for contestants who contact judges or copy designs from the Internet; relieve restrictions on our ability to announce judges' names; clarify ambiguous language in our regulations concerning matting of entries and minimum age of entrants; and update or correct contest technical advisor information, the treatment and spelling of species' common names on our contest design subject list, and minor grammar errors. We do not believe the changes have much impact on the body of the regulations, and, except for the plagiarism penalty, the increase in the entry fee, and the penalty for contacting judges, they relieve restrictions on the public, clarify existing and new practices, or make corrections.

Background

For the history of the Federal Duck Stamp Program and the contest, please see our proposed rule, which published in the Federal Register on April 12, 2006 (71 FR 18697).

Comments on and Change From the Proposed Rule

On April 12, 2006, we published our proposed rule (71 FR 18697) in the Federal Register and requested public comment. We received two comments on the proposed rule. The first commenter vehemently objected to the use of taxpayer dollars to support the duck stamp program. We have made no changes to the final rule in response to this comment. The second commenter supported our updates, but asked for greater clarity in our species list at § 91.4 regarding the Canada goose. Since the AOU has split the cackling goose into a separate species from the Canada goose, we are responding to the second commenter by amending our list at § 91.4 to add Cackling goose (Branta hutchinsii) as a separate species from Canada goose (Branta canadensis).

Changes to the Regulations at 50 CFR Part 91

We are making all the changes detailed in our proposed rule (71 FR 18697), plus the one additional change described above. The changes affect the regulations governing the contest, at 50 CFR part 91. Our amendments raise the entry fee from $100 to $125, to help offset the rising cost of administering the contest, update the contest regulations concerning opening and entry deadline dates, making the new dates earlier than the ones currently specified in part 91, and specify penalties for contestants who contact judges. Our revisions also remove a restriction governing our ability to announce names of judges. To update our regulations to reflect the ascendance of Internet technology, we also now expressly prohibit contestants from copying designs from the Internet. Although in the past we have held the contest solely in Washington, DC, from 2005 on, we have held and plan to continue to hold the contest in a different U.S. location each year. Therefore, we update contest location information. These changes also clarify ambiguous language in our regulations concerning matting of entries and minimum age of entrants. These amendments also update Service mail and Internet site information; update the common names and spellings of species on our list of potential contest design subjects; update the regulations to reflect a change in technical advising for the contest; and correct minor grammar errors.

Service Mailing Addresses; Location of Contest

We correct the address of the Duck Stamp Office as it appears at § 91.1(b) and § 91.16(b), because the office is no longer in Washington, DC, but is now located in Arlington, VA.

The current regulations at § 91.22 reflect the long tradition of the contest being held in Washington, DC, at the Main Interior Building auditorium. However, the 2006 contest is the second contest to take place outside of Washington, DC. We plan to hold future contests in various U.S. locations corresponding to flyways. Therefore, we are removing the sentence from § 91.22 that states that the contest is held in the Main Interior Building auditorium. Holding the contest in various geographic locations will help attract more attention to the program, hopefully increasing the number of contest entries and giving a greater number of people throughout the United States access to the contest. The overall goal is to increase duck stamp sales to gain additional funds with which to purchase waterfowl habitat. The 2005 contest was the first contest ever held outside Washington, DC, and took place at the Memphis College of Arts, in Memphis, TN. The 2006 contest is also in Memphis, at the same location.

Updating Species' Common Names or Spellings

Section 91.4 contains our list of eligible species. For each year's contest, we choose five or fewer species from the list; one or more of those species (or a combination thereof; see § 91.14) are the only acceptable subjects for entries during that contest year. We announce each year's eligible species in a Federal Register notice, as well as in other materials we prepare and make available. Our list in § 91.4 contains scientific and common names accepted by the American Ornithologists' Union (AOU; http://www.aou.org/;;; see also the AOU Check-list at http://www.aou.org/​checklist/​birdlist46.pdf;​; this check-list is our standard reference on taxonomy, nomenclature, and capitalization). Since we first wrote our regulations, the AOU has changed the common name for the species Clangula hyemalis, from “Oldsquaw” to “Long-tailed Duck.” For Snow Goose (Chen caerulescens), we add the clarification that both “white” and “blue” morphs are on the list in § 91.4. We also add Cackling goose (Branta hutchinsii) as a separate species from Canada goose (Branta canadensis) (see “Comments on and Change from the Proposed Rule”). We make these changes, along with spelling corrections of some other names, to our list in § 91.4 so that this list will reflect the most current scientific and common names.

Contest Opening and Entry Deadline Dates

We are correcting § 91.11 of the regulations to bring the dates of the contest into alignment with current practices. The contest is now being held in early fall. Therefore, we now open the contest and start accepting entries on June 1 of each year, instead of July 1, as currently specified in the regulations. If you wish to enter a design in the contest, you must postmark your packaged entry no later than midnight on August 15. The current regulations give this deadline as September 15, but it is no longer correct.

When we first wrote our regulations and codified them in the Code of Federal Regulations (CFR), the Internet was not as widely used as it is today. Therefore, we are taking this opportunity to add to § 91.11(c) that you can obtain the most up-to-date contest information by viewing the Web site http://www.fws.gov/​duckstamps or by calling [phone].

Increase in Contest Entry Fee; Clarification of Minimum Age of Entrants

We propose to raise the contest entry fee from $100 to $125 (§ 91.12), to help offset the rising cost of administering the contest. This modest increase is our first since 1996. It will help us continue to improve the contest. We also propose to change the language specifying minimum age of contest entrants so that the minimum age will remain 18 no matter when the contest begins.

Clarification of Entry Format Requirements

We are revising our regulations concerning contest entry format to more specifically guide entrants on proper matting procedures. In the past, some entrants have used glue to affix matting to their pictures, or have used other incorrect practices. You must not permanently affix matting to your picture, because if you later sell your picture, someone who has bought it might want to put it in another mat for framing. However, it is best to present your entry for the contest with matting affixed to the front of it, because judges will be judging your entry as it appears with matting—i.e., the judges do not look at any part of the painting that may lie beneath the matting. We are revising our regulations at § 91.13 to say that you must affix matting to your picture with white or clear tape that can be removed later.

Preventing Internet Plagiarism; Including Noneligible Species in Designs

Existing § 91.14 specifies that “an entry design may not be copied or duplicated from previously published art, including photographs.” We now update this section to add that an entry design may not be copied or duplicated from images in any format on the Internet. This section also explains that a live portrayal of any bird(s) of the five or fewer identified eligible species must be the dominant feature of the design, but that the design may depict other appropriate things such as hunting dogs, as long as the eligible bird or birds are in the foreground and center of attention. We now add to this section that appropriate noneligible bird species are also allowed to appear in the background of the design. We have been verbally advising entrants that noneligible bird species are allowed in the background of designs; therefore, we simply want to codify the practice we have been following.

Penalties for Contestants Who Contact Judges; Broadening the Judge Selection Process

We are amending § 91.21 to add penalties for contestants who contact judges before or during the contest. The penalty will be disqualification from that year's contest. Also, that person will be prohibited from entering the following three (3) contests. Thus, the person would be prohibited from entering a total of four (4) contests. In this same section, we are removing a restriction governing our selection of judges by removing from § 91.21(a) the stipulation that we will announce judges' names on the first day of the contest. This change allows us to announce our judges prior to the start of each year's contest, rather than waiting until the contest actually starts, and thereby allows us to publicize the contest more widely.

Technical Advising for the Contest

In our current regulations at § 91.24, we state that the Bureau of Engraving and Printing analyzes contest finalists' entries and advises us of any serious anatomical problems or design problems from the perspective of an engraver. However, since we wrote those regulations, the Bureau of Engraving and Printing has ceased production of stamps. Therefore, we are revising § 91.24 to note that our technical advisor is now the U.S. Postal Service.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order (E.O.) 12866.

1. This rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

2. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rule deals solely with the contest. No other Federal agency has any role in regulating this endeavor.

3. This rule does not alter budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. There are no entitlements, grants, user fees, or loan programs associated with the regulation of the contest.

4. This rule does not raise novel legal or policy issues. This rule is primarily a reorganization and clarification of existing regulations. New provisions proposed in the rule are in compliance with other laws, policies, and regulations.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The changes are intended primarily to clarify the requirements for the contest. In addition, these changes do not affect the information collected. These changes will affect individuals, not businesses or other small entities as defined in the RFA. The fee increase to $125 per entrant from $100 per entrant represents a $25.00 total increase per entrant. In recent years we have received an average of 250 entries per year. If this average remains constant, then approximately $6,250.00 is the estimated annual increase to the public to participate in the program.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

1. Does not have an annual effect on the economy of $100 million or more.

2. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

3. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

In accordance with E.O. 12630, this rule does not have significant takings implications. A takings implication assessment is not required.

Federalism (E.O. 13132)

In accordance with E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. A Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

In accordance with E.O. 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This rule does not contain new or revised information collections for which Office of Management and Budget approval is required under the Paperwork Reduction Act. 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.

National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4371 et seq.) is therefore not required.

Government-to-Government Relationship With Tribes

Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects.

Energy Supply, Distribution or Use

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule proposes to revise the current regulations in 50 CFR part 91 that govern the contest. This rule is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 91

• Hunting
• Wildlife

Regulation Promulgation

Accordingly, we amend part 91, subchapter G of chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 91—[AMENDED]

1. The authority citation for part 91 continues to read as follows:

Authority: 5 U.S.C. 301; 16 U.S.C. 718j; 31 U.S.C. 9701.

2. Amend § 91.1(b) by revising the second sentence and adding a third sentence to read as follows:

§ 91.1

Purpose of regulations.

* * * * *

(b) * * * A copy of the regulations, along with the Reproduction Rights Agreement and Display and Participation Agreement, may be requested from the Federal Duck Stamp Office, U.S. Fish and Wildlife Service, 4401 N. Fairfax Dr. MBSP-4070, Arlington, VA 22203-1622. These documents can also be downloaded from our Web site: http://www.fws.gov/​duckstamps/​.

* * * * *

3. Amend § 91.2 by revising the definition of “Display and participation agreement” to read as follows:

§ 91.2

Definitions.

* * * * *

Display and participation agreement—a document that each contestant must complete, sign, and submit with the entry. The signed agreement allows the Service to display the entry at various locations for promotional purposes, and requires the artist to participate in events on behalf of the Federal Duck Stamp Program.

* * * * *

4. Revise § 91.4 to read as follows:

§ 91.4

Eligible species.

Five or fewer of the species listed below will be identified as eligible each year; those eligible species will be provided to each contestant with the information provided in § 91.1.

(a) Whistling-Ducks. (1) Fulvous Whistling-Duck (Dendrocygna bicolor)

(2) Black-bellied Whistling-Duck (Dendrocygna autumnalis)

(b) Swans. (1) Trumpeter Swan (Cygnus buccinator)

(2) Tundra Swan (Cygnus columbianus)

(c) Geese. (1) Greater White-fronted Goose (Anser albifrons)

(2) Snow Goose (including “white” and “blue” morphs) (Chen caerulescens)

(3) Ross's Goose (Chen rossii)

(4) Emperor Goose (Chen canagica)

(5) Canada Goose (Branta canadensis)

(6) Cackling Goose (Branta hutchinsii)

(d) Brant. (1) Brant (Branta bernicla)

(e) Dabbling Ducks. (1) Wood Duck (Aix sponsa)

(2) American Wigeon (Anas americana)

(3) Gadwall (Anas strepera)

(4) American Green-winged Teal (Anas crecca carolinensis)

(5) Mallard (Anas platyrhynchos)

(6) Mottled Duck (Anas fulvigula)

(7) American Black Duck (Anas rubripes)

(8) Northern Pintail (Anas acuta)

(9) Blue-winged Teal (Anas discors)

(10) Cinnamon Teal (Anas cyanoptera)

(11) Northern Shoveler (Anas clypeata)

(f) Diving Ducks. (1) Canvasback (Aythya valisineria)

(2) Redhead (Aythya americana)

(3) Ring-necked Duck (Aythya collaris)

(4) Greater Scaup (Aythya marila)

(5) Lesser Scaup (Aythya affinis)

(g) Sea-Ducks. (1) Common Eider (Somateria mollissima)

(2) King Eider (Somateria spectabilis)

(3) Spectacled Eider (Somateria fischeri)

(4) Steller's Eider (Polysticta stelleri)

(5) Harlequin Duck (Histrionicus histrionicus)

(6) Long-tailed Duck (Clangula hyemalis)

(7) Black Scoter (Melanitta nigra)

(8) Surf Scoter (Melanitta perspicillata)

(9) White-winged Scoter (Melanitta fusca)

(10) Bufflehead (Bucephala albeola)

(11) Barrow's Goldeneye (Bucephala islandica)

(12) Common Goldeneye (Bucephala clangula)

(h) Mergansers. (1) Hooded Merganser (Lophodytes cucullatus)

(2) Red-breasted Merganser (Mergus serrator)

(3) Common Merganser (Mergus merganser)

(i) Stiff Tails. (1) Ruddy Duck (Oxyura jamaicensis)

5. Revise § 91.11 to read as follows:

§ 91.11

Contest opening date and entry deadline.

The contest will officially open on June 1 of each year. Entries must be postmarked no later than midnight, August 15. For the latest information on contest time and place as well as all deadlines, please visit our Web site at www.fws.gov/​duckstamps or call [phone].

6. Revise § 91.12 to read as follows:

§ 91.12

Contest eligibility.

United States citizens, nationals, or resident aliens are eligible to participate in the contest. Any person who has won the contest during the preceding 3 years will be ineligible to submit an entry in the current year's contest. All entrants must be at least 18 years of age by the contest opening date (see § 91.11) to participate in the contest. Contest judges and their relatives are ineligible to submit an entry. All entrants must submit a nonrefundable fee of $125.00 by cashier's check, certified check, or money order made payable to U.S. Fish and Wildlife Service. (Personal checks will not be accepted.) All entrants must submit a signed Reproduction Rights Agreement and a signed Display and Participation Agreement.

7. Revise § 91.13 to read as follows:

§ 91.13

Technical requirements for design and submission of entry.

The design must be a horizontal drawing or painting 7 inches high and 10 inches wide. The entry may be drawn in any medium desired by the contestant and may be either multicolored or black and white. No scrollwork, lettering, bird band numbers, signatures or initials may appear on the design. Each entry must be matted (on the front only) with a 9 inch by 12 inch white mat, 1 inch wide. The matting must be affixed with clear or white tape holding the matting to the picture. Entries must not be framed, or under glass, or have any protective covering (other than the matting) attached to them. The entire entry cannot exceed 1/4 inch in total thickness.

8. Revise § 91.14 to read as follows:

§ 91.14

Restrictions on subject matter for entry.

A live portrayal of any bird(s) of the five or fewer identified eligible species must be the dominant feature of the design. The design may depict more than one of the eligible species. Designs may include, but are not limited to, hunting dogs, hunting scenes, use of waterfowl decoys, National Wildlife Refuges as the background of habitat scenes, noneligible species, or other designs that depict uses of the stamp for sporting, conservation, and collecting purposes. The overall mandate will be to select the best design that will make an interesting, useful, and attractive duck stamp that will be accepted and prized by hunters, stamp collectors, conservationists, and others. The design must be the contestant's original hand-drawn creation. The entry design may not be copied or duplicated from previously published art, including photographs, or from images in any format published on the Internet. Photographs, computer-generated art, or art produced from a computer printer or other computer/mechanical output device (airbrush method excepted) are not eligible to be entered into the contest and will be disqualified. An entry submitted in a prior contest that was not selected for a Federal or State stamp design may be submitted in the current contest if the entry meets the above criteria.

9. Revise § 91.16(b) to read as follows:

§ 91.16

Submission procedures for entry.

* * * * *

(b) Each entry should be appropriately wrapped to protect the artwork and then either hand-delivered or sent by registered mail, certified mail, express mail, or overnight delivery service to the address in § 91.1(b) of this part.

10. Revise § 91.17 to read as follows:

§ 91.17

Property insurance for contest entries.

Each contestant is responsible for obtaining adequate insurance coverage for his/her entry. Neither the Service nor the Department of the Interior will insure the entries, nor is the Service or Department responsible for loss or damage unless such is caused by Service or Department negligence or willful misconduct. The Service and Department reserve the right to determine whether negligence or willful misconduct led to artwork being damaged. Entry fees for the subsequent year's contest may be waived for artists whose artwork we determine to be damaged by any negligence on our part. This waiver remains at our discretion.

11. Amend § 91.21 by removing the final sentence from paragraph (a) and adding a new paragraph (c), to read as follows:

§ 91.21

Selection and qualification of contest judges.

* * * * *

(c) Disqualification. Any contestant who contacts a judge prior to or during the contest will automatically be disqualified from the current year's contest and barred from entering the three contests that come after the current year's contest.

12. Revise § 91.22 to read as follows:

§ 91.22

Display of contest entries.

The Federal Duck Stamp Office assigns all eligible entries a number as entries are received. That office displays the entries in numerical order at the contest site.

13. Amend § 91.24(f) by removing the words “Bureau of Engraving and Printing” and adding the words “U.S. Postal Service” in their place.

Dated: June 28, 2006.

Matt Hogan,

Acting Assistant Secretary for Fish and Wildlife and Parks.