[Federal Register: September 27, 2004 (Volume 69, Number 186)]
[Rules and Regulations]
[Page 57751-57807]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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Part II
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
RIN 1018-AT53
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 2004-05 season.
DATES: This rule is effective on September 25, 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.
SUPPLEMENTARY INFORMATION:
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 23-24, 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 August 30, 2004,
we published a final rule in the Federal Register (69 FR 52970) that
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. Subsequently, on September 1, 2004, we
published a final rule in the Federal Register (69 FR 53564) amending
subpart K of title 50 CFR part 20 to set hunting seasons, hours, areas,
and limits for early seasons.
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). 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 2004-05 in a September 23, 2004, 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 2004-05 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.
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
ADDRESSES. 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 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
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$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
http://www.migratorybirds.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.
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 information obtained from 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. 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
We have determined that this rule will not unduly burden the
judicial system and 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 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, reduces 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 Migratory Bird Treaty Act (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. 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
regulations will take effect immediately upon publication.
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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 21, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
PART 20--[AMENDED]
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:
0
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742a-j, Pub. L. 106-
108.
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[FR Doc. 04-21485 Filed 9-24-04; 8:45 am]
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