[Federal Register Volume 63, Number 219 (Friday, November 13, 1998)]
[Rules and Regulations]
[Pages 63580-63585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30530]



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Part VI





Department of the Interior





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Fish and Wildlife Service



50 CFR Part 20



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

  Federal Register / Vol. 63, No. 219 / Friday, November 13, 1998 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR PART 20

RIN 1018-AE93


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 revises the waterfowl hunting frameworks and the 
season dates for those States in the Lower Region of the Mississippi 
Flyway. Taking of migratory birds is prohibited unless specifically 
provided for by annual regulations. This rule permits the taking of 
these designated species during the 1998-99 season.

DATE: This rule takes effect on November 13, 1998.

ADDRESSES: The public may inspect comments during normal business hours 
in room 634, Arlington Square Building, 4401 N. Fairfax Drive, 
Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Robert J. Blohm, Acting Chief, Office 
of Migratory Bird Management, U.S. Fish and Wildlife Service, 
Department of the Interior, ms 634-ARLSQ, 1849 C Street, NW., 
Washington, DC 20240, (703) 358-1714.

SUPPLEMENTARY INFORMATION:

Regulations Schedule for 1998

    On March 20, 1998, the Service published in the Federal Register 
(63 FR 13748) a proposal to amend 50 CFR part 20. The proposal dealt 
with the establishment of seasons, limits, and other regulations for 
migratory birds, designated as ``migratory game birds'' in conventions 
between the United States and several foreign nations for their 
protection and management, under Secs. 20.101 through 20.107, 20.109, 
and 20.110 of subpart K. All other birds designated as migratory (under 
10.13 of Subpart B of 50 CFR part 10) in the aforementioned conventions 
may not be hunted.
    On May 29, 1998, the Service published in the Federal Register (63 
FR 29518) a second document providing supplemental proposals for early- 
and late-season migratory bird hunting regulations frameworks and the 
proposed regulatory alternatives for the 1998-99 duck hunting season. 
The May 29 supplement also provided detailed information on the 1998-99 
regulatory schedule and announced the Service Migratory Bird 
Regulations Committee and Flyway Council meetings.
    On June 25, 1998, the Service held a public hearing in Washington, 
DC, as announced in the March 20 and May 29 Federal Registers to review 
the status of migratory shore and upland game birds. The Service 
discussed hunting regulations for these species and for other early 
seasons. On July 17, 1998, the Service published in the Federal 
Register (63 FR 38700) a third document specifically dealing with 
proposed early-season frameworks for the 1998-99 season. The July 17 
supplement also established the final regulatory alternatives for the 
1998-99 duck hunting season for all States except Alabama, Arkansas, 
Kentucky, Louisiana, Mississippi, and Tennessee. On August 5, 1998, the 
Service published in the Federal Register (63 FR 41926) a fourth 
document dealing specifically with the final regulatory alternatives 
for the 1998-99 duck hunting season for the States of Alabama, 
Arkansas, Kentucky, Louisiana, Mississippi, and Tennessee.
    On August 6, 1998, the Service held a second public hearing in 
Washington, DC, as announced in the March 20, May 29, and July 17 
Federal Registers, to review the status of waterfowl. Proposed hunting 
regulations were discussed for late seasons. On August 25, 1998, the 
Service published a fifth document in the Federal Register (63 FR 
45350) which dealt specifically with proposed frameworks for the 1998-
99 late-season migratory bird hunting regulations.
    On August 28, 1998, the Service published a sixth document in the 
Federal Register (63 FR 46124) containing 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 for the 1998-99 
season. A seventh document published in the August 31, 1998, Federal 
Register (63 FR 46336) amended subpart K of title 50 CFR part 20 to set 
hunting seasons, hours, areas, and limits for early seasons.
    The Service 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 1998-99 in the September 29, 1998, Federal Register (63 FR 
51998). A tenth document published in the September 30, 1998, Federal 
Register (63 FR 52322) amended subpart K of title 50 CFR part 20 to set 
hunting seasons, hours, areas, and limits for species subject to late-
season regulations and those for early seasons that States previously 
deferred.
    This document is the eleventh in the series of proposed, 
supplemental, and final rulemaking documents for migratory game bird 
hunting regulations for the 1998-99 season. It deals specifically with 
revising the current duck hunting frameworks in the Lower Region of the 
Mississippi Flyway and the previously-selected and published hunting 
season dates for those eligible States that opt to change their 
seasons, as directed by Congress in Division C, Title 1, Section 150 of 
the Omnibus Appropriations Bill.

Background

    Current duck hunting frameworks provide for earliest opening and 
latest closing dates for duck seasons of October 1 and January 20 in 
the Atlantic Flyway, and the Saturday nearest October 1, and the Sunday 
nearest January 20 in the Mississippi, Central, and Pacific Flyways. 
January 20 (or the Sunday nearest) is the latest closing date that has 
been allowed since the flyway management system for waterfowl began in 
1948, except for an experimental extension of the framework closing 
date to January 31 in Mississippi during 1979-84.
    In March 1998, the Lower-Region Regulations Committee (representing 
the States of Alabama, Arkansas, Kentucky, Louisiana, Mississippi, and 
Tennessee) of the Mississippi Flyway Council recommended that the 
Service allow a January 31 framework closing date. The other three 
Flyway Councils and the Upper-Region Regulations Committee of the 
Mississippi Flyway Council recommended no change in the framework 
dates. However, the Upper-Region Regulations Committee recommended that 
if an extension were authorized, it should be coupled with a 
commensurate reduction in season length and/or bag limits in the 
participating States to offset the predicted increase in harvest.
    In order to address the request of the Lower-Region Regulations 
Committee of the Mississippi Flyway Council, the Service announced (May 
29 Federal Register) that it would consider extending the framework 
closing date for those six States only (Alabama, Arkansas, Kentucky, 
Louisiana, Mississippi, and Tennessee), with the requirement that the 
predicted additional harvest be offset with a reduction in season 
length. The States interested in this approach were to develop an 
analysis to assist the Service in predicting how many days of reduction 
in season length would be appropriate.

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    The proposal generated extensive public comment in opposition to 
the change, including comments from many State fish and wildlife 
agencies in all four Flyways (detailed comments are available in the 
August 5 Federal Register). The primary reasons for the opposition 
were:
    (1) A perception of inequity because the Service would not be 
offering other States the option of an extension;
    (2) Concern that the Flyway Councils did not have a role in 
developing the proposal and would not have the opportunity to meet and 
discuss concerns or alternatives before it was finalized; and
    (3) Concerns that the Service would not be able to predict the 
effects of the proposed extensions on harvest or duck populations and 
guarantee the season-length reduction would be sufficient to completely 
offset the expected increase in harvest.
    Because of the broad-based opposition to the proposal, the Service 
decided to withdraw it. The Service published the decision in the 
August 5 Federal Register. The Service further announced that it would 
support an overall review of framework dates by the Flyway Councils, 
the National Flyway Council, and the International Association of Fish 
and Wildlife Agencies. Interest in conducting such a review was 
recently expressed by the National Flyway Council, and the Service is 
committed to working with the above organizations to accomplish the 
review in time for consideration of duck-hunting regulatory 
alternatives for the 2000-2001 hunting season.

Congressional Action Subsequent to Final Frameworks

    As stated previously, the Service published final late-season 
frameworks for migratory game bird hunting regulations, from which all 
State wildlife conservation agency officials selected late-season 
hunting dates, hours, areas, and limits for 1998-99 in the September 
29, 1998, Federal Register. Duck hunting frameworks for the Mississippi 
Flyway, which includes the States of Alabama, Arkansas, Kentucky, 
Louisiana, Mississippi, and Tennessee, consisted of the following:

    ``Outside Dates: Between the Saturday nearest October 1 (October 
3) and the Sunday nearest January 20 (January 17).
    Hunting Seasons and Duck Limits: 60 days with a daily bag limit 
of 6 ducks, including no more than 4 mallards (no more than 2 of 
which may be females), 3 mottled ducks, 1 black duck, 1 pintail, 2 
wood ducks, 1 canvasback, and 2 redheads.''

    On October 19, 1998, Congress specified the following in Division 
C, Title I, Section 150 of the Omnibus Appropriations Bill:

``Sec. 150.
    (a) Extension of Agreement for State of MIssissippi.--The 
Secretary of the Interior shall offer to reinstate the Memorandum of 
Agreement between the Mississippi Department of Wildlife 
Conservation and the United States Fish and Wildlife Service 
concerning the framework closing dates for the 1979-1980 through 
1981-1982 duck hunting seasons, executed in November 1979, for the 
1998-1999 duck hunting season in the State of Mississippi, except 
that--
    (1) the duck hunting season shall end on January 31, 1999; and
    (2) the total number of days for the duck hunting season in the 
State of Mississippi shall not exceed 51 days.
    (b) Extension of Agreement to Other States.--At the request of 
any other State represented on the Lower Region Regulations 
Committee of the Mississippi Flyway Council, the Secretary of the 
Interior shall extend the agreement described in subsection (a) to 
that State for the 1998-1999 duck hunting season if the State agrees 
to reduce the total number of days of the duck hunting season in the 
State to the extent necessary to result in no net increase in the 
duck harvest in the State for that season.''

    Therefore, following the directive provided by Congress, the 
Service will reinstate the 1979 Memorandum of Agreement (MOA) between 
the Mississippi Department of Wildlife Conservation and the Service 
concerning the framework closing dates for the 1998-1999 duck hunting 
season in the State of Mississippi. The Service has also extended the 
offer to the other five States in the Lower Region of the Mississippi 
Flyway with the following guidelines:
    1. The extension will apply only to duck hunting seasons (ducks, 
mergansers, and coots).
    2. In participating States, the maximum season length will be 
reduced from 60 to 51 days.
    3. If a season closing date after the Sunday nearest January 20 is 
selected for any portion of a State, the 51-day maximum season length 
will apply throughout the State.
    Based on these guidelines, the States of Alabama, Mississippi, and 
Tennessee have opted to enter into a Memorandum of Agreement for the 
1998-1999 duck hunting season and extend the framework closing date to 
January 31. Arkansas, Kentucky, and Louisiana declined to participate 
in the framework extension. Revised season dates for Alabama, 
Mississippi, and Tennessee are included herein.

Public Comment

    The Service, by this rule, is revising the 1998-99 duck season 
hunting dates for the States of Alabama, Mississippi, and Tennessee 
without the standard notice for public comment. As required by the 
Administrative Procedure Act (5 U.S.C. 553(b)(B)), the Service has 
found that the notice and public procedure required by the APA are 
impracticable, and contrary to the public interest for the following 
reasons: (1) the Service is revising the frameworks at the direction of 
Congress; (2) public comment cannot change the Congressional action; 
(3) providing a comment period at this time would preclude the affected 
States from selecting and beginning their upcoming duck hunting seasons 
on time; and (4) the Service has already received extensive public 
comment on the issue.

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 EPA on June 9, 1988. The Service published a Notice 
of Availability in the June 16, 1988, Federal Register (53 FR 22582). 
The Service published its Record of Decision on August 18, 1988 (53 FR 
31341). Copies of these documents are available from the Service at the 
address indicated under the caption ADDRESSES.

Endangered Species Act Considerations

    As in the past, the Service designs hunting regulations to remove 
or alleviate chances of conflict between migratory game bird hunting 
seasons and the protection and conservation of endangered and 
threatened species. Consultations previously conducted regarding the 
1998-99 regulatory proposals also cover the regulatory actions herein. 
Findings from these consultations are included in a biological opinion 
and may have caused modification of some regulatory measures previously 
proposed. The final frameworks reflect any modifications. The Service's 
biological opinions resulting from its Section 7 consultation are 
public documents available for public inspection in the Service's 
Division of Endangered Species and MBMO, at the address indicated under 
the caption ADDRESSES.

Regulatory Flexibility Act

    In the March 20, 1998, Federal Register, the Service reported 
measures it took to comply with requirements of the Regulatory 
Flexibility Act. One measure was to update the 1996 Small Entity 
Flexibility Analysis (Analysis) documenting the significant beneficial 
economic effect on a substantial number of small entities. The 1996 
Analysis

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estimated that migratory bird hunters would spend between $254 and $592 
million at small businesses. The Service has updated the 1996 Analysis 
with information from the 1996 National Hunting and Fishing Survey. 
Nationwide, the Service now estimates that migratory bird hunters will 
spend between $429 and $1,084 million at small businesses in 1998. No 
negative or cost impacts are predicted as the result of the hunting 
season framework extension. Copies of the 1998 Analysis are available 
upon request from the Office of Migratory Bird Management.

Executive Order (E.O.) 12866

    This rule is economically significant and was reviewed by the 
Office of Management and Budget (OMB) under E.O. 12866.
    E.O. 12866 requires each agency to write regulations that are easy 
to understand. The Service invites comments on how to make this rule 
easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the Supplementary Information section of the preamble helpful in 
understanding the rule? What else could the Service do to make the rule 
easier to understand?
    Send a copy of any comments that concern how this rule could be 
made easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. 
Comments may also be e-mailed to: E[email protected].

Congressional Review

    In accordance with Section 251 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 8), this rule has been 
submitted to Congress and has been declared major. Because this rule 
establishes hunting seasons, this rule qualifies for an exemption under 
5 U.S.C. 808(1); therefore, the Department determines that this rule 
shall take effect immediately.

Paperwork Reduction Act

    The Service examined these regulations under the Paperwork 
Reduction Act of 1995. 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, the information collection 
requirements of the Migratory Bird Harvest Information Program have 
been approved by OMB and assigned clearance number 1018-0015 (expires 
09/30/2001). This information is used to provide a sampling frame for 
voluntary national surveys to improve Service harvest estimates for all 
migratory game birds in order to better manage these populations. The 
Service 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

    The Service has determined and certifies in compliance with the 
requirements of the Unfunded Mandates 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.

Civil Justice Reform--Executive Order 12988

    The Department, in promulgating this rule, has determined that 
these regulations meet the applicable standards provided in Sections 
3(a) and 3(b)(2) of Executive Order 12988.

Takings Implication Assessment

    In accordance with Executive Order 12630, these rules, authorized 
by the Migratory Bird Treaty Act, do not have significant takings 
implications and do not affect any constitutionally protected property 
rights. These rules 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 
privileges that would be otherwise unavailable; and, therefore, 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 Migratory Bird Treaty Act. The Service annually prescribes 
frameworks from which the States make selections and employs 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 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 allows States to participate 
in the development of frameworks from which they will make selections, 
thereby having an influence on their own regulation. 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 12612, these regulations do not have significant federalism 
effects and do not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

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) and 512 DM 2, we have evaluated possible 
effects on Federally-recognized Indian tribes and have determined that 
there are no effects.

Effective Date

    The rulemaking process for migratory game bird hunting must, by its 
nature, operate under severe time constraints. However, the Service 
intends that the public be given the greatest possible opportunity to 
comment on the regulations. Thus, when the preliminary proposed 
rulemaking was published, the Service established what it believed were 
the longest periods possible for public comment. In doing this, the 
Service 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 the final rulemaking, the States would have 
insufficient time to establish and publicize the necessary regulations 
and procedures to implement their decisions.
    Therefore, the Service finds that ``good cause'' exists, within the 
terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and 
these seasons 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.

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List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    Dated: November 6, 1998.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.

PART 20--[AMENDED]

    For the reasons set out in the preamble, the Service amends title 
50, chapter I, subchapter B, part 20, subpart K 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.

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