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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.

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 § § 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

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57753

$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. 

57754 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

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]

■ 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: 16 U.S.C. 703–712 and 16 

U.S.C. 742a–j, Pub. L. 106–108. 

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