[Federal Register: September 1, 2004 (Volume 69, Number 169)]
[Rules and Regulations]               
[Page 53563-53582]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 53563]]


Part V

Department of the Interior


Fish and Wildlife Service


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 Virgi

[[Page 53564]]

n Islands; Final Rule



Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT53

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.


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 2004-05 season.

DATES: This rule is effective on September 1, 2004.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, or Ron W. Kokel, 
Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 
(703) 358-1714.


Regulations Schedule for 2004

    On March 22, 2004, we published in the Federal Register (69 FR 
13440) 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, the 
proposed regulatory alternatives for the 2004-05 duck hunting season, 
and other regulations for migratory game birds under Sec. Sec.  20.101 
through 20.107, 20.109, and 20.110 of subpart K. On June 9, 2004, we 
published in the Federal Register (69 FR 32418) a second document 
providing supplemental proposals for early- and late-season migratory 
bird hunting regulations frameworks and the regulatory alternatives for 
the 2004-05 duck hunting season. The June 9 supplement also provided 
detailed information on the 2004-05 regulatory schedule and announced 
the Service Migratory Bird Regulations Committee (SRC) meetings.
    On June 23 and 24, 2004, 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 2004-05 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 2004-05 regular 
waterfowl seasons. On July 21, 2004, we published in the Federal 
Register (69 FR 43694) a third document specifically dealing with the 
proposed frameworks for early-season regulations.
    On July 28-29, 2004, we held open meetings with the Flyway Council 
Consultants at which the participants reviewed the status of waterfowl 
and developed recommendations for the 2004-05 regulations for these 
species. Proposed hunting regulations were discussed for late seasons. 
We published proposed frameworks for the 2004-05 late-season migratory 
bird hunting regulations on August 24, 2004, in the Federal Register 
(69 FR 52128). On August 30, 2004, we published a fifth document in the 
Federal Register 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.
    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.

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) and our Record of Decision on August 18, 1988 
(53 FR 31341). Copies are available from the address indicated under 
    Additionally, in a proposed rule published in the April 30, 2001, 
Federal Register (66 FR 21298), we expressed our intent to begin the 
process of developing a new EIS for the migratory bird hunting program. 
We plan to begin the public scoping process in 2005.

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 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 adversely affect any endangered or threatened 
species. Additionally, these findings may have caused modification of 
some regulatory measures previously proposed, and the final frameworks 
reflect any such modifications. Our biological opinions resulting from 
this Section 7 consultation are public documents available for public 
inspection at the address indicated under ADDRESSES.

Executive Order 12866

    The migratory bird hunting regulations are economically significant 
and were reviewed by the Office of Management and Budget (OMB) under 
Executive Order 12866. As such, a cost/benefit analysis was initially 
prepared in 1981. This analysis was subsequently revised annually from 
1990-1996, and then updated in 1998. We have updated again this year. 
It is further discussed below under the heading Regulatory Flexibility 
Act. Results from the 2004 analysis indicate that the expected

[[Page 53565]]

welfare benefit of the annual migratory bird hunting frameworks is on 
the order of $734 million to $1.064 billion, with a midpoint estimate 
of $899 million. Copies of the cost/benefit analysis are available upon 
request from the address indicated under ADDRESSES or from our Web site 
at http://www.migratorybirds.gov.

Regulatory Flexibility Act

    These 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 discussed under Executive Order 12866. This 
analysis was revised annually from 1990 through 1995. In 1995, the 
Service issued a Small Entity Flexibility Analysis (Analysis), which 
was subsequently updated in 1996, 1998, and 2004. 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 2004 Analysis was based on the 2001 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 between $481 million and $1.2 billion at small 
businesses in 2004. Copies of the Analysis are available upon request 
from the address indicated under ADDRESSES or from our Web site at 

Small Business Regulatory Enforcement Fairness Act

    This rule is a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. For the reasons outlined above, 
this rule has an annual effect on the economy of $100 million or more. 
However, because this rule establishes hunting seasons, we do not plan 
to defer the effective date required by 5 U.S.C. 801 under the 
exemption contained in 5 U.S.C. 808 (1).

Paperwork Reduction Act

    We examined these regulations under the Paperwork Reduction Act of 
1995. We utilize the various recordkeeping and reporting requirements 
imposed under regulations established in 50 CFR part 20, Subpart K, in 
the formulation of migratory game bird hunting regulations. 
Specifically, OMB has approved the information collection requirements 
of the Migratory Bird Harvest Information Program and assigned 
clearance number 1018-0015 (expires 10/31/2004).
    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. OMB has also 
approved the information collection requirements of the Sandhill Crane 
Harvest Questionnaire and assigned clearance number 1018-0023 (expires 
10/31/2004). The information from this survey is used to estimate the 
magnitude and the geographical and temporal distribution of harvest, 
and the portion it constitutes of the total population.
    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 ``significantly or uniquely'' affect small 
governments, and will not produce a Federal mandate 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.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have evaluated possible effects on Federally recognized Indian tribes 
and have determined that there are no effects.

Energy Effects--Executive Order 13211

    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. While this rule is a 
significant regulatory action under Executive Order 12866, it is not 
expected to adversely affect energy supplies, distribution, or use. 
Thus, this action is not a significant energy action and no Statement 
of Energy Effects is required.

Takings Implication Assessment

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

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given responsibility over these species by 
the MBTA. Annually, we prescribe frameworks from which the States make 
selections and employ guidelines to establish special regulations on 
Federal Indian reservations and ceded lands. We develop the frameworks 
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 ultimately make season selections, thereby having 
an influence on their own regulations. This process preserves the 
ability of the States and Tribes to determine which seasons meet their 
individual needs. Further, any State or Tribe may be more restrictive 
than the Federal frameworks at any time. 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 on the 
regulations. 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 
was a delay in the effective date

[[Page 53566]]

of these regulations after this final rulemaking, the States would have 
insufficient time to implement their selected season dates and limits 
and start their seasons in a timely manner. We therefore find that 
``good cause'' exists, within the terms of 5 U.S.C. 553(d)(3) of the 
Administrative Procedure Act, and these regulations will, therefore, 
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 25, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.

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:


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

    Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j, Pub. L. 106-

[[Page 53567]]


[[Page 53568]]


[[Page 53569]]


[[Page 53570]]


[[Page 53571]]


[[Page 53572]]


[[Page 53573]]


[[Page 53574]]


[[Page 53575]]


[[Page 53576]]


[[Page 53577]]


[[Page 53578]]


[[Page 53579]]


[[Page 53580]]


[[Page 53581]]


[[Page 53582]]


[FR Doc. 04-19896 Filed 8-31-04; 8:45 am]