[Federal Register Volume 69, Number 186 (Monday, September 27, 2004)]
[Rules and Regulations]
[Pages 57752-57807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21485]



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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

  Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / 
Rules and Regulations  

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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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