[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Rules and Regulations]
[Pages 51088-51123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20080]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 20



Migratory Bird Hunting; Early Seasons and Bag and Possession Limits for 
Certain Migratory Game Birds in the Contiguous United States, Alaska, 
Hawaii, Puerto Rico, and the Virgin Islands; Final Rule; Proposed 
Frameworks for Late-Season Migratory Bird Hunting Regulations; Proposed 
Rule

Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[FWS-R9-MB-2008-0032; 91200-1231-9BPP-L2]
RIN 1018-AV62


Migratory Bird Hunting; Early Seasons and Bag and Possession 
Limits for Certain Migratory Game Birds in the Contiguous United 
States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands

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 of mourning, white-winged, and white-
tipped doves; band-tailed pigeons; rails; moorhens and gallinules; 
woodcock; common snipe; sandhill cranes; sea ducks; early (September) 
waterfowl seasons; migratory game birds in Alaska, Hawaii, Puerto Rico, 
and the Virgin Islands; and some extended falconry seasons. Taking of 
migratory birds is prohibited unless specifically provided for by 
annual regulations. This rule permits taking of designated species 
during the 2008-09 season.

DATES: This rule is effective on September 1, 2008.

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 address above or from the Division of Migratory Bird Management's 
Web site at http://www.fws.gov/migratorybirds/reports/reports.html.

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 2008

    On May 28, 2008, we published in the Federal Register (73 FR 30712) 
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 Sec. Sec.  20.101 through 
20.107, 20.109, and 20.110 of subpart K. Major steps in the 2008-09 
regulatory cycle relating to open public meetings and Federal Register 
notifications were also identified in the May 28 proposed rule.
    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 June 18, 2008, we published in the Federal Register (73 FR 
34692) a second document providing supplemental proposals for early- 
and late-season migratory bird hunting regulations. The June 18 
supplement also provided detailed information on the 2008-09 regulatory 
schedule and announced the SRC and Flyway Council meetings.
    On June 25 and 26, 2008, 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 2008-09 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 2008-09 regular 
waterfowl seasons. On July 24, 2008, we published in the Federal 
Register (73 FR 43290) a third document specifically dealing with the 
proposed frameworks for early-season regulations. On August 27, 2008, 
we published a fourth document in the Federal Register which 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.
    On July 30-31, 2008, we held open meetings with the Flyway Council 
Consultants at which the participants reviewed the status of waterfowl 
and developed recommendations for the 2008-09 regulations for these 
species. Proposed hunting regulations were discussed for late seasons. 
We will publish proposed frameworks for the 2008-09 late-season 
migratory bird hunting regulations in a late August 2008 Federal 
Register.
    The final rule described here is the sixth in the series of 
proposed, supplemental, and final rulemaking documents for migratory 
game bird hunting regulations and deals specifically with amending 
subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and 
limits for mourning, white-winged, and white-tipped doves; band-tailed 
pigeons; rails; moorhens and gallinules; woodcock; common snipe; 
sandhill cranes; sea ducks; early (September) waterfowl seasons; 
mourning doves in Hawaii; migratory game birds in Alaska, Puerto Rico, 
and the Virgin Islands; youth waterfowl hunting day; and some extended 
falconry seasons.

National Environmental Protection 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 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 from the 
address indicated under the caption FOR FURTHER INFORMATION CONTACT.
    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). We have prepared a 
scoping report summarizing the scoping comments and scoping meetings. 
The report is available by either writing to the address indicated 
under FOR FURTHER INFORMATION CONTACT or by viewing on 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

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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 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 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.

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 discussed under Executive Order 12866. 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 
address indicated under FOR FURTHER INFORMATION CONTACT or from our Web 
site at http://www.fws.gov/migratorybirds/reports/reports.html 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. 
However, because this rule establishes hunting seasons, we do not plan 
to defer the effective date 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 (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

    In promulgating this rule, we have 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.

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

    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. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Government-to-Government Relationship With Tribes

    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. Thus, 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 
on Indian trust resources. However, in the April 11 proposed rule we 
solicited proposals for special migratory bird hunting regulations for 
certain Tribes on Federal Indian reservations, off-reservation trust 
lands, and ceded lands for the 2008-09 migratory bird hunting season. 
The resulting proposals will be contained in a separate proposed rule. 
By virtue of these actions, we have

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consulted with all the 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 tribe may be more restrictive than the 
Federal frameworks. 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 regulations 
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.

List of Subjects in 50 CFR Part 20

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

    Dated: August 25, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.

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:

PART 20--[AMENDED]

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. 742 a-j, Public Law 
106-108.
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[FR Doc. E8-20080 Filed 8-28-08; 8:45 am]
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