[Federal Register: August 31, 2009 (Volume 74, Number 167)]
[Rules and Regulations]
[Page 45031-45067]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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Part V
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 20
Migratory Bird Hunting; Early Seasons and Bag and Possession Limits
for Certain Migratory Game Birds in the Contiguous United States,
Alaska, Hawaii, Puerto Rico, and the Virgin Islands; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[FWS-R9-MB-2008-0124; 91200-1231-9BPP-L2]
RIN 1018-AW31
Migratory Bird Hunting; Early Seasons and Bag and Possession
Limits for Certain Migratory Game Birds in the Contiguous United
States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule prescribes the hunting seasons, hours, areas, and
daily bag and possession limits of mourning, white-winged, and white-
tipped doves; band-tailed pigeons; rails; moorhens and gallinules;
woodcock; common snipe; sandhill cranes; sea ducks; early (September)
waterfowl seasons; migratory game birds in Alaska, Hawaii, Puerto Rico,
and the Virgin Islands; and some extended falconry seasons. Taking of
migratory birds is prohibited unless specifically provided for by
annual regulations. This rule permits taking of designated species
during the 2009-10 season.
DATES: This rule is effective on September 1, 2009.
ADDRESSES: You may inspect comments received on the migratory bird
hunting regulations during normal business hours at the Service's
office in Room 4107, Arlington Square Building, 4501 N. Fairfax Drive,
Arlington, VA. You may obtain copies of referenced reports from the
street address above, or from the Division of Migratory Bird
Management's Web site at http://www.fws.gov/migratorybirds/, or at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Robert Blohm, Chief, or Ron W. Kokel,
Division of Migratory Bird Management, U.S. Fish and Wildlife Service,
(703) 358-1714.
SUPPLEMENTARY INFORMATION:
Regulations Schedule for 2009
On April 10, 2009, we published in the Federal Register (74 FR
16339) a proposal to amend 50 CFR part 20. The proposal provided a
background and overview of the migratory bird hunting regulations
process, and dealt with the establishment of seasons, limits, and other
regulations for hunting migratory game birds under Sec. Sec. 20.101
through 20.107, 20.109, and 20.110 of subpart K. Major steps in the
2009-10 regulatory cycle relating to open public meetings and Federal
Register notifications were also identified in the April 10 proposed
rule. Further, we explained that all sections of subsequent documents
outlining hunting frameworks and guidelines were organized under
numbered headings.
On May 27, 2009, we published in the Federal Register (74 FR 25209)
a second document providing supplemental proposals for early- and late-
season migratory bird hunting regulations, providing detailed
information on the 2009-10 regulatory schedule, and announcing the
Service Migratory Bird Regulations Committee (SRC) and Flyway Council
meetings.
On June 24 and 25, 2009, we held open meetings with the Flyway
Council Consultants at which the participants reviewed information on
the current status of migratory shore and upland game birds and
developed recommendations for the 2009-10 regulations for these species
plus regulations for migratory game birds in Alaska, Puerto Rico, and
the Virgin Islands; special September waterfowl seasons in designated
States; special sea duck seasons in the Atlantic Flyway; and extended
falconry seasons. In addition, we reviewed and discussed preliminary
information on the status of waterfowl as it relates to the development
and selection of the regulatory packages for the 2009-10 regular
waterfowl seasons. On July 24, 2009, we published in the Federal
Register (74 FR 36870) a third document specifically dealing with the
proposed frameworks for early-season regulations. On August 25, 2009,
we published in the Federal Register a final rule which contained final
frameworks for early migratory bird hunting seasons from which wildlife
conservation agency officials from the States, Puerto Rico, and the
Virgin Islands selected early-season hunting dates, hours, areas, and
limits.
On July 29-30, 2009, we held open meetings with the Flyway Council
Consultants at which the participants reviewed the status of waterfowl
and developed recommendations for the 2009-10 regulations for these
species. Proposed hunting regulations were discussed for late seasons.
We published proposed frameworks for the 2009-10 late-season migratory
bird hunting regulations in an August 13, 2009 Federal Register (74 FR
41008).
The final rule described here is the sixth in the series of
proposed, supplemental, and final rulemaking documents for migratory
game bird hunting regulations and deals specifically with amending
subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and
limits for mourning, white-winged, and white-tipped doves; band-tailed
pigeons; rails; moorhens and gallinules; woodcock; common snipe;
sandhill cranes; sea ducks; early (September) waterfowl seasons;
mourning doves in Hawaii; migratory game birds in Alaska, Puerto Rico,
and the Virgin Islands; youth waterfowl hunting day; and some extended
falconry seasons.
National Environmental Protection Act (NEPA) Consideration
NEPA considerations are covered by the programmatic document
``Final Supplemental Environmental Impact Statement: Issuance of Annual
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with the Environmental Protection Agency on June 9, 1988.
We published a notice of availability in the Federal Register on June
16, 1988 (53 FR 22582). We published our record of decision on August
18, 1988 (53 FR 31341). In addition, an August 1985 environmental
assessment entitled ``Guidelines for Migratory Bird Hunting Regulations
on Federal Indian Reservations and Ceded Lands'' is available by
writing to the street address indicated under the caption ADDRESSES.
In a notice published in the September 8, 2005 Federal Register (70
FR 53376), we announced our intent to develop a new Supplemental
Environmental Impact Statement for the migratory bird hunting program.
Public scoping meetings were held in the spring of 2006, as detailed in
the March 9, 2006 Federal Register (71 FR 12216). A scoping report
summarizing the scoping comments and scoping meetings is available by
either writing to the street address indicated under ADDRESSES or by
viewing on our Web site at http://www.fws.gov/migratorybirds/.
Endangered Species Act Consideration
Section 7 of the Endangered Species Act, as amended (16 U.S.C.
1531-1543; 87 Stat. 884), provides that, ``The Secretary shall review
other programs administered by him and utilize such programs in
furtherance of the purposes of this Act'' (and) shall ``insure that any
action authorized, funded, or carried out * * * is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat. * * *.'' Consequently, we conducted formal
consultations to ensure that actions
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resulting from these regulations would not likely jeopardize the
continued existence of endangered or threatened species or result in
the destruction or adverse modification of their critical habitat.
Findings from these consultations are included in a biological opinion,
which concluded that the regulations are not likely to jeopardize the
continued existence of any endangered or threatened species.
Additionally, these findings may have caused modification of some
regulatory measures previously proposed, and the final frameworks
reflect any such modifications. Our biological opinions resulting from
this section 7 consultation are public documents available for public
inspection at the street address indicated under ADDRESSES.
Executive Order 12866
The Office of Management and Budget has determined that this rule
is significant and has reviewed this rule under Executive Order 12866.
OMB bases its determination of regulatory significance upon the
following four criteria:
a. Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
b. Whether the rule will create inconsistencies with other Federal
agencies' actions.
c. Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. Whether the rule raises novel legal or policy issues.
An Economic Analysis was prepared for the 2008-09 season. This
analysis was based on data from the 2006 National Hunting and Fishing
Survey, the most recent year for which data are available (see
discussion in Regulatory Flexibility Act section below). This analysis
estimates consumer surplus for three alternatives for duck hunting
(estimates for other species are not quantified due to lack of data).
The alternatives are (1) Issue restrictive regulations allowing fewer
days than those issued during the 2007-08 season, (2) Issue moderate
regulations allowing more days than those in alternative 1, and (3)
Issue liberal regulations identical to the regulations in the 2007-08
season. For the 2008-09 season, we chose alternative 3, with an
estimated consumer surplus across all flyways of $205-$270 million. For
the upcoming 2009-10 season, we again considered these three
alternatives and again chose alternative 3 for ducks. We made minor
modifications to the season frameworks for some other species, but
these do not significantly change the economic impacts of the rule,
which were not quantified for other species. For these reasons, we have
not conducted a new Economic Analysis, but the 2008-09 analysis is part
of the record for this rule and is available at http://www.fws.gov/
migratorybirds/NewReportsPublications/SpecialTopics/
SpecialTopics.html#HuntingRegs or at http://www.regulations.gov.
Regulatory Flexibility Act
The regulations have a significant economic impact on substantial
numbers of small entities under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). We analyzed the economic impacts of the annual
hunting regulations on small business entities in detail as part of the
1981 cost-benefit analysis. This analysis was revised annually from
1990-95. In 1995, the Service issued a Small Entity Flexibility
Analysis (Analysis), which was subsequently updated in 1996, 1998,
2004, and 2008. The primary source of information about hunter
expenditures for migratory game bird hunting is the National Hunting
and Fishing Survey, which is conducted at 5-year intervals. The 2008
Analysis was based on the 2006 National Hunting and Fishing Survey and
the U.S. Department of Commerce's County Business Patterns, from which
it was estimated that migratory bird hunters would spend approximately
$1.2 billion at small businesses in 2008. Copies of the Analysis are
available by writing to the street address indicated under ADDRESSES or
from our Web site at http://www.fws.gov/migratorybirds/
NewReportsPublications/SpecialTopics/SpecialTopics.html#HuntingRegs or
at http://www.regulations.gov.
Small Business Regulatory Enforcement Fairness Act
This rule is a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. For the reasons outlined above, it
has an annual effect on the economy of $100 million or more.
Paperwork Reduction Act
We examined these regulations under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). The various recordkeeping and reporting
requirements imposed under regulations established in 50 CFR part 20,
subpart K, are utilized in the formulation of migratory game bird
hunting regulations. Specifically, OMB has approved the information
collection requirements of our Migratory Bird Surveys and assigned
control number 1018-0023 (expires 2/28/2011). This information is used
to provide a sampling frame for voluntary national surveys to improve
our harvest estimates for all migratory game birds in order to better
manage these populations. A Federal 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. 1502 et seq., that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State government or private entities. Therefore, this
rule is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act.
Civil Justice Reform--Executive Order 12988
The Department, in promulgating this rule, has determined that it
will not unduly burden the judicial system and that it meets the
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
Takings Implication Assessment
In accordance with Executive Order 12630, this rule, authorized by
the Migratory Bird Treaty Act, does not have significant takings
implications and does not affect any constitutionally protected
property rights. This rule will not result in the physical occupancy of
property, the physical invasion of property, or the regulatory taking
of any property. In fact, it allows hunters to exercise otherwise
unavailable privileges and, therefore, reduces restrictions on the use
of private and public property.
Energy Effects--Executive Order 13211
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. While this rule is a
significant regulatory action under Executive Order 12866, it is not
expected to adversely affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations
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with Native American Tribal Governments'' (59 FR 22951), Executive
Order 13175, and 512 DM 2, we have evaluated possible effects on
Federally-recognized Indian tribes and have determined that there are
no effects on Indian trust resources. However, in the April 10 Federal
Register, we solicited proposals for special migratory bird hunting
regulations for certain Tribes on Federal Indian reservations, off-
reservation trust lands, and ceded lands for the 2009-10 migratory bird
hunting season. The resulting proposals were contained in a separate
August 11, 2009, proposed rule (74 FR 36870). By virtue of these
actions, we have consulted with affected Tribes.
Federalism Effects
Due to the migratory nature of certain species of birds, the
Federal Government has been given responsibility over these species by
the Migratory Bird Treaty Act. We annually prescribe frameworks from
which the States make selections regarding the hunting of migratory
birds, and we employ guidelines to establish special regulations on
Federal Indian reservations and ceded lands. This process preserves the
ability of the States and Tribes to determine which seasons meet their
individual needs. Any State or Indian Tribe may be more restrictive
than the Federal frameworks at any time. The frameworks are developed
in a cooperative process with the States and the Flyway Councils. This
process allows States to participate in the development of frameworks
from which they will make selections, thereby having an influence on
their own regulations. These rules do not have a substantial direct
effect on fiscal capacity, change the roles or responsibilities of
Federal or State governments, or intrude on State policy or
administration. Therefore, in accordance with Executive Order 13132,
these regulations do not have significant federalism effects and do not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Regulations Promulgation
The rulemaking process for migratory game bird hunting must, by its
nature, operate under severe time constraints. However, we intend that
the public be given the greatest possible opportunity to comment. Thus,
when the preliminary proposed rulemaking was published, we established
what we believed were the longest periods possible for public comment.
In doing this, we recognized that when the comment period closed, time
would be of the essence. That is, if there were a delay in the
effective date of these regulations after this final rulemaking, States
would have insufficient time to select season dates and limits; to
communicate those selections to us; and to establish and publicize the
necessary regulations and procedures to implement their decisions. We
find that ``good cause'' exists, within the terms of 5 U.S.C. 553(d)(3)
of the Administrative Procedure Act, and therefore, under authority of
the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C.
703-711), these regulations will take effect immediately upon
publication. Accordingly, with each conservation agency having had an
opportunity to participate in selecting the hunting seasons desired for
its State or Territory on those species of migratory birds for which
open seasons are now prescribed, and consideration having been given to
all other relevant matters presented, certain sections of title 50,
chapter I, subchapter B, part 20, subpart K, are hereby amended as set
forth below.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Dated: August 20, 2009.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
0
For the reasons set out in the preamble, title 50, chapter I,
subchapter B, part 20, subpart K of the Code of Federal Regulations is
amended as follows:
PART 20--[AMENDED]
0
1. The authority citation for part 20 continues to read as follows:
Authority: Migratory Bird Treaty Act, 40 Stat. 755, 16 U.S.C.
703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742 a-j, Public
Law 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
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[FR Doc. E9-20739 Filed 8-28-09; 8:45 am]
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