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DEPARTMENT OF THE INTERIOR 

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 

http://www.regulations.gov. 

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. 

SUPPLEMENTARY INFORMATION: 

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 §§ 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 lateseason 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 

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 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 recipients. 

(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/ 

migratorybirds/ 

NewReportsPublications/SpecialTopics/ 

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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49246 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Rules and Regulations 

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 Federallyrecognized 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, offreservation 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 season. 

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: 

PART 20—[AMENDED] 

■ 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] 

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