[Federal Register: September 21, 2007 (Volume 72, Number 183)]
[Rules and Regulations]               
[Page 54157-54202]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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Part III

Department of the Interior


Fish and Wildlife Service


50 CFR Part 20

 Migratory Bird Hunting; Late Seasons and Bag and Possession Limits for 
Certain Migratory Game Birds; Final Rule

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Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AV12

Migratory Bird Hunting; Late Seasons and Bag and Possession 
Limits for Certain Migratory Game Birds

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: This rule prescribes the hunting seasons, hours, areas, and 
daily bag and possession limits for general waterfowl seasons and those 
early seasons for which States previously deferred selection. Taking of 
migratory birds is prohibited unless specifically provided for by 
annual regulations. This rule permits the taking of designated species 
during the 2007-08 season.

DATES: This rule is effective on September 22, 2007.

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, Virginia. You may obtain copies of referenced reports from 
the address above or from the Division of Migratory Bird Management's 
Web site at http://www.fws.gov/migratorybirds/reports/reports.html.

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.


Regulations Schedule for 2007

    On April 11, 2007, we published in the Federal Register (72 FR 
18328) 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, proposed 
regulatory alternatives for the 2007-08 duck hunting season, 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 
2007-08 regulatory cycle relating to open public meetings and Federal 
Register notifications were also identified in the April 11 proposed 
    On June 8, 2007, we published in the Federal Register (72 FR 31789) 
a second document providing supplemental proposals for early- and late-
season migratory bird hunting regulations and the regulatory 
alternatives for the 2007-08 duck hunting season. The June 8 supplement 
also provided detailed information on the 2007-08 regulatory schedule 
and announced the Service Migratory Bird Regulations Committee (SRC) 
and Flyway Council meetings.
    On June 20 and 21, 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 2007-08 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 2007-08 regular 
waterfowl seasons. On July 23, 2007, we published in the Federal 
Register (72 FR 40194) a third document specifically dealing with the 
proposed frameworks for early-season regulations. In the August 28, 
2007, Federal Register (72 FR 49622), we published final frameworks for 
early migratory bird hunting seasons from which wildlife conservation 
agency officials from the States, Puerto Rico, and the Virgin Islands 
selected 2007-08 early-season hunting dates, hours, areas, and limits. 
On August 30, 2007, we published a final rule in the Federal Register 
(72 FR 50164) amending subpart K of title 50 CFR part 20 to set hunting 
seasons, hours, areas, and limits for early seasons.
    On August 1-2, 2007, we held open meetings with the Flyway Council 
Consultants, at which the participants reviewed the status of waterfowl 
and developed recommendations for the 2007-08 regulations for these 
species. On August 31, 2007, we published in the Federal Register (72 
FR 50613) the proposed frameworks for the 2007-08 late-season migratory 
bird hunting regulations. We published final late-season frameworks for 
migratory game bird hunting regulations, from which State wildlife 
conservation agency officials selected late-season hunting dates, 
hours, areas, and limits for 2007-08, in a September 2007, Federal 
    The final rule described here is the final in the series of 
proposed, supplemental, and final rulemaking documents for migratory 
game bird hunting regulations for 2007-08 and deals specifically with 
amending subpart K of 50 CFR part 20. It sets hunting seasons, hours, 
areas, and limits for species subject to late-season regulations and 
those for early seasons that States previously deferred.

National Environmental Policy 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). Annual NEPA considerations are covered under a 
separate Environmental Assessment (EA), ``Duck Hunting Regulations for 
2007-08,'' and an August 27, 2007, Finding of No Significant Impact 
(FONSI). Copies of the EA and FONSI are available upon request from the 
address indicated under 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 we 
announced in a March 9, 2006, Federal Register notice (71 FR 12216). A 
scoping report summarizing the scoping comments and scoping meetings is 
available either at the address indicated under ADDRESSES or 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 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

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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 

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 
1990-96, updated in 1998, and updated again in 2004. It is further 
discussed below under the heading Regulatory Flexibility Act. Results 
from the 2004 analysis indicate that the expected welfare benefit of 
the annual migratory bird hunting frameworks is on the order of $734 
million to $1.064 billion, with a mid-point 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.fws.gov/migratorybirds/reports/SpecialTopics/EconomicAnalysis-Final-2004.pdf

    This year, due to limited data availability, we partially updated 
the 2004 analysis, but restricted our analysis to duck hunting. Results 
indicate that the total consumer surplus of the annual duck hunting 
frameworks is on the order of $222 to $360 million, with a mid-point 
estimate of $291 million. We plan to perform a full update of the 
analysis in 2008. Copies of the updated analysis are available upon 
request from the address indicated under ADDRESSES or from our Web site 
at http://www.fws.gov/migratorybirds/reports/SpecialTopics/EconomicAnalysis-2007Update.pdf

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 1990-95. 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 http://www.fws.gov/migratorybirds/reports/SpecialTopics/EconomicAnalysis-Final-2004.pdf

    This year, due to limited data availability, we partially updated 
the 2004 analysis, but restricted our analysis to duck hunting. Results 
indicate that the duck hunters would spend between $291 million and 
$473.5 million at small businesses in 2007. We plan to perform a full 
update of the analysis in 2008, when the full results from the 2006 
National Hunting and Fishing Survey are available. Copies of the 
updated analysis are available upon request from the address indicated 
under ADDRESSES or from our Web site at http://www.fws.gov/migratorybirds/reports/SpecialTopics/EconomicAnalysis-2007Update.pdf

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 under the exemption contained in 5 U.S.C. 

Paperwork Reduction Act

    We examined these regulations under the Paperwork Reduction Act of 
1995 (PRA). There are no new information collections in this rule that 
would require OMB approval under the PRA. The existing 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 the surveys 
associated with the Migratory Bird Harvest Information Program and 
assigned clearance number 1018-0015 (expires 2/29/2008). 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 this 
rule 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, these rules allow hunters to exercise 
otherwise unavailable privileges and, therefore, reduce restrictions on 
the use of private and public property.

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. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Government-to-Government Relationship With Tribes

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given

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responsibility over these species by the Migratory Bird Treaty Act. 
Thus, 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 on Indian trust 
resources. However, in the April 11 proposed rule 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 2007-08 migratory bird hunting season. The 
resulting proposals were contained in a separate rulemaking. By virtue 
of these actions, we have consulted with all the Tribes affected by 
this rule.

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 ensuring the maximum opportunity for public involvement in the 
annual process, we recognize that it limits the amount of lead time for 
final establishment of these seasons. That is, if there were a delay in 
the effective date of the State selections of season dates and limits, 
the opening of these seasons and the opportunity for the public to hunt 
migratory birds would be delayed. 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 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: September 14, 2007.
David M. Verhey,
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-

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[FR Doc. 07-4660 Filed 9-20-07; 8:45 am]