[Federal Register: September 25, 2009 (Volume 74, Number 185)]
[Rules and Regulations]
[Page 49243-49289]
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; Late Seasons and Bag and Possession Limits for
Certain Migratory Game Birds; 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; Late Seasons and Bag and Possession
Limits for Certain Migratory Game Birds
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 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 2009-10 season.
DATES: This rule is effective on September 26, 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, Virginia. 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. Subsequent documents will refer only to numbered
items requiring attention. Therefore, it is important to note that we
will omit those items requiring no attention, and remaining numbered
items will be discontinuous and appear incomplete.
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. The May 27 supplement also
provided detailed information on the 2009-10 regulatory schedule and
announced 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 (74 FR 43008) a rulemaking
establishing final frameworks for early-season migratory bird hunting
regulations for the 2009-10 season. Subsequently, on August 31, 2009,
we published a final rule in the Federal Register (74 FR 45032)
amending subpart K of title 50 CFR part 20 to set hunting seasons,
hours, areas, and limits for early seasons.
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. On August 13, 2009, we published in the Federal Register (74
FR 41008) the proposed frameworks for the 2009-10 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 2009-10, in a late September 2009 Federal
Register.
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 2009-10 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). 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
a 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 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 consultations
to ensure that actions resulting from these regulations would not
likely jeopardize the continued
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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 the Section 7 Consultation on
the Proposed 2009-10 Migratory Game Bird Hunting Regulations (dated
August 24, 2009). The consultation concluded that the 2009-10
regulations are not likely to jeopardize the continued existence of
either the whooping crane or Steller's eider. To prevent take of
whooping cranes, the Contingency Plan for Federal-State Cooperative
Protection of whooping cranes provides a protective program in 13
States. In addition, the State of Kansas will implement specific
restrictions to avoid accidental shootings. To prevent take of
Steller's eiders, the 2009-10 regulations include the continued
implementation of measures initiated and outlined under the 2009 Alaska
migratory bird subsistence regulations. These measures include Service
initiated conservation measures that increase migratory bird hunter
outreach prior to the opening of the hunting season, increased Service
enforcement of migratory bird regulations, and conducting in-season
harvest verification of Steller's eider mortality and injury.
Additionally, any modifications resulting from this consultation may
have caused modification of some regulatory measures previously
proposed. The final frameworks reflect any modifications. Our
biological opinions resulting from this section 7 consultation are
public documents available for public inspection in the Service's
Division of Endangered Species and Division of Migratory Bird
Management, 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 upon request from 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,
this rule 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. OMB has also approved the information
collection requirements of the Alaska Subsistence Household Survey, an
associated voluntary annual household survey used to determine levels
of subsistence take in Alaska, and assigned control number 1018-0124
(expires 1/31/2010). 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.
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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
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 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 40138). By virtue of these actions, we have
consulted with 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 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
therefore find that ``good cause'' exists, within the terms of 5 U.S.C.
553(d)(3) of the Administrative Procedure Act, and these frameworks
will, therefore, take effect immediately upon publication. Therefore,
under authority of the Migratory Bird Treaty Act (July 3, 1918), as
amended (16 U.S.C. 703-711), we prescribe final frameworks setting
forth the species to be hunted, the daily bag and possession limits,
the shooting hours, the season lengths, the earliest opening and latest
closing season dates, and hunting areas, from which State conservation
agency officials will select hunting season dates and other options.
Upon receipt of season selections from these officials, we will publish
a final rulemaking amending 50 CFR part 20 to reflect seasons, limits,
and shooting hours for the conterminous United States for the 2009-10
season.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Dated: September 16, 2009.
Thomas L. Strickland,
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. 742a-j; Pub. L.
106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
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[FR Doc. E9-22874 Filed 9-24-09; 8:45 am]
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