Document Headings

                    Document headings vary by document type but may contain                    the following:                  
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###### Department of the Interior

###### Fish and Wildlife Service

          - 50 CFR Part 20
          - [Docket No. FWS-R9-MB-2010-0040; 91200-1231-9BPP-L2]
          - RIN 1018-AX06

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Final rule.

# 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 2010-11 season.

# DATES:

This rule is effective on September 1, 2010.

# 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, VA. 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*                         at Docket No. FWS-R9-MB-2010-0040.                    

# 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 2010

                    On May 13, 2010, we published in the                     **Federal Register**                     (75 FR 27144) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and addressed 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 2010-11 regulatory cycle relating to open public meetings and                     **Federal Register**                     notifications were also identified in the May 13 proposed rule. Further, we explained that all sections of subsequent documents outlining hunting frameworks and guidelines were organized under numbered headings.                

                    On June 10, 2010, we published in the                     **Federal Register**                     (75 FR 32872) a second document providing supplemental proposals for early- and late-season migratory bird hunting regulations. The June 10 supplement also provided detailed information on the 2010-11 regulatory schedule and announced the Service Migratory Bird Regulations Committee (SRC) and Flyway Council meetings.                

                    On June 23 and 24, 2010, 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 2010-11 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 2010-11 regular waterfowl seasons. On July 29, 2010, we published in the                     **Federal Register**                     (75 FR 44856) a third document specifically dealing with the proposed frameworks for early-season regulations. On August 30, 2010, we published in the                     **Federal Register**                     a final rule 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 28-29, 2010, we held open meetings with the Flyway Council Consultants at which the participants reviewed the status of waterfowl and developed recommendations for the 2010-11 regulations for these species. Proposed hunting regulations were discussed for late seasons. We published proposed frameworks for the 2010-11 late-season migratory bird hunting regulations in an August 25, 2010                     **Federal Register**                     (75 FR 52398).                

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 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 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 (SEIS) for the migratory bird hunting program.                           ( print page 53227)                        Public scoping meetings were held in the spring of 2006, as detailed in a March 9, 2006,                     **Federal Register**                     (71 FR 12216). We released the draft SEIS on July 9, 2010 (75 FR 39577). The draft SEIS 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 the continued existence of 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 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 estimated 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. At this time, we are proposing no changes to the season frameworks for the 2010-11 season, and as such, we will again consider these three alternatives. However, final frameworks will depend on population status information available later this year. 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*                     at Docket No. FWS-R9-MB-2010-0040.                

## 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 Division of Migratory Bird Management (                    *see***FOR FURTHER INFORMATION CONTACT**                    ) or from our Web site at                     *http://www.fws.gov/​migratorybirds/​NewReportsPublications/​SpecialTopics/​SpecialTopics.html#HuntingRegs*                     or at                     *http://www.regulations.gov*                     at Docket No. FWS-R9-MB-2010-0040.                

## 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 4/30/2013). 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.                          ( print page 53228)    

## Civil Justice Reform—Executive Order 12988

The Department, in promulgating this rule, has determined that this rule 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

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 Federally-recognized Indian Tribes and have determined that there are no effects on Indian trust resources. However, in the May 13                     **Federal Register**                    , 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 2010-11 migratory bird hunting season. The resulting proposals were contained in an August 6, 2010, proposed rule (75 FR 47682). 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 find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and therefore, under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703-711), 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: August 25, 2010.

Will Shafroth,

Acting 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. 742 a-j, Pub. L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
      ( print page 53229)          ( print page 53230)          ( print page 53231)          ( print page 53232)          ( print page 53233)          ( print page 53234)          ( print page 53235)          ( print page 53236)          ( print page 53237)          ( print page 53238)          ( print page 53239)          ( print page 53240)          ( print page 53241)          ( print page 53242)          ( print page 53243)          ( print page 53244)          ( print page 53245)          ( print page 53246)          ( print page 53247)          ( print page 53248)          ( print page 53249)          ( print page 53250)          ( print page 53251)          ( print page 53252)          ( print page 53253)          ( print page 53254)          ( print page 53255)          ( print page 53256)          ( print page 53257)          ( print page 53258)          ( print page 53259)          ( print page 53260)    

BILLING CODE 4310-55-P

[FR Doc. 2010-21711 Filed 8-30-10; 8:45 am]

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