[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


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

[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.


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 

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 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 
    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 
    (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/
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 

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.

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: 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]