55630 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Rules and Regulations 

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; 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 2008–09 season. 

DATES: This rule is effective on 

September 26, 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 §§ 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. Further, we explained that all 

sections of subsequent documents 

outlining hunting frameworks and 

guidelines were organized under 

numbered headings. 

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, 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 in 

the Federal Register (73 FR 50678) a 

rulemaking establishing final 

frameworks for early-season migratory 

bird hunting regulations for the 2008–09 

season. Subsequently, on August 29, 

2008, we published a final rule in the 

Federal Register (73 FR 51088) 

amending subpart K of title 50 CFR part 

20 to set hunting seasons, hours, areas, 

and limits for early seasons. 

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. 

On August 29, 2008, we published in 

the Federal Register (73 FR 51124) the 

proposed frameworks for the 2008–09 

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 2008– 

09, in a late September 2008, 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 2008–09 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 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 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). 

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 ADDRESSES 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 

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 

jeopardize any endangered or 


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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 

ADDRESSES 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. 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 

May 28 proposed rule we solicited 

proposals for special migratory bird 

hunting regulations for certain Tribes on 

Federal Indian reservations, offreservation trust lands, and ceded lands 

for the 2008–09 migratory bird hunting 

season. The resulting proposals were 

contained in a separate proposed rule 

(73 FR 48097; August 15, 2008). By 

virtue of these actions, we have 

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 


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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 

ensuring the maximum opportunity for 

public involvement in the annual 

process, we recognize that it limits the 

amount of lead time for final 

establishment of these seasons. That is, 

if there were a delay in the effective date 

of the State selections of season dates 

and limits, the opening of these seasons 

and the opportunity for the public to 

hunt migratory birds would be delayed. 

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. 

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 18, 2008. 

Lyle Laverty, 

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: 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. E8–22436 Filed 9–24–08; 8:45 am] 

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