Department of the Interior, Fish and Wildlife Service: 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

GAO-09-1030R, Sep 14, 2009

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GAO reviewed the Department of the Interior, Fish and Wildlife Service's (FWS) new rule on Migratory Bird Hunting; Early Seasons and Bag and Possession Limits for Certain Migratory Game Birds. GAO found that (1) the final 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; and that this rule permits the taking of designated species during the 2009-10 season; and (2) FWS complied with the applicable requirements in promulgating the rule.

Department of the Interior, Fish and Wildlife Service: 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, GAO-09-1030R, September 14, 2009

B-318658

September 14, 2009

The Honorable BarbaraBoxer
Chairman
The Honorable James M. Inhofe
Ranking Minority Member
Committee on Environment and Public Works
United States Senate

The Honorable Nick J.Rahall II
Chairman
The Honorable Doc Hastings
Ranking Minority Member
Committee on Natural Resources
House of Representatives

Subject: Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Early Seasons and Bag and Possession Limits for Certain Migratory GameBirds in the Contiguous United States, Alaska, Hawaii, Puerto Rico, and theVirgin Islands

Pursuant to section801(a)(2)(A) of title 5, United States Code, this is our report on a major rulepromulgated by the Department of the Interior, Fish and Wildlife Service (Service),entitled "Migratory Bird Hunting; EarlySeasons and Bag and Possession Limits for Certain Migratory Game Birds in theContiguous United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands"(RIN: 1018-AW31). We received the ruleon August 26, 2009. It was published inthe Federal Register as a final ruleon August31, 2009. 74 Fed. Reg. 45,032.

The final rule prescribes the hunting seasons, hours,areas, and daily bag and possession limits of mourning, white-winged, andwhite-tipped doves; band-tailed pigeons; rails; moorhens and gallinules;woodcock; common snipe; sandhill cranes; sea ducks; early (September) waterfowlseasons; migratory game birds in Alaska, Hawaii, Puerto Rico, and the VirginIslands; and some extended falconry seasons.Taking of migratory birds is prohibited unless specifically provided forby annual regulations. This rule permitsthe taking of designated species during the 2009-10 season.

Enclosed is our assessment of the Interior's compliancewith the procedural steps required by section 801(a)(1)(B)(i) through (iv) oftitle 5 with respect to the rule. Ourreview of the procedures taken indicates that Interior complied with theapplicable requirements.

Section808(1) of title 5, United State Code, exempts any rule that "establishes,modifies, opens, closes, or conducts a regulatory program for a commercial,recreational, or subsistence activity related to hunting, fishing, or camping"from the 60-day delay in the effective date otherwise required by section801(a)(3)(A). This is a rule related tohunting; therefore, the 60-day delay is not applicable. The final rule is effective on September 1,2009.

If you have any questions about this report or wish tocontact GAO officials responsible for the evaluation work relating to thesubject matter of the rule, please contact Shirley A. Jones, Assistant GeneralCounsel, at (202) 512-8156.

signed

Robert J. Cramer
Managing Associate General Counsel

Enclosure

cc: RonaldW. Kokel
Wildlife Biologist
U.S. Fish and Wildlife Service
Department of the Interior


ENCLOSURE

REPORT UNDER 5 U.S.C. sect.801(a)(2)(A) ON A MAJORRULE
ISSUED BY THE
DEPARTMENT OF THE INTERIOR,
FISH AND WILDLIFE SERVICE
ENTITLED
"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"
(RIN: 1018-AW31)

(i) Cost-benefit analysis

The Service relied on the economic analysis that wasprepared for the 2008-2009 season, because it chose to issue identicalregulations to past seasons for ducks and made only minor modifications to theseason frameworks for some other species.According to the Service, the modifications will not significantlychange the economic impacts of the rule which were not quantified for otherspecies. The Service estimated aconsumer surplus of $205--$270 million.

(ii) Agency actions relevant to the RegulatoryFlexibility Act, 5 U.S.C. sections603-605, 607, and 609

TheService determined that the regulations will have a significant impact on asubstantial number of small entities under the Regulatory Flexibility Act. The Service issued a Small Entity FlexibilityAnalysis (Analysis) to comply with the requirements of the Act. The Analysis as relates to all migratory birdhunting was last updated in 2008. The2008 Analysis was based on the 2006 National Hunting and Fishing Survey and theU.S. Department of Commerce's County Business Patterns. The 2008 Analysisestimated that migratory bird hunters would spend approximately $1.2 billion atsmall businesses in 2008.

(iii) Agency actions relevant to sections 202-205 ofthe Unfunded Mandates Reform Act of 1995, 2 U.S.C. sections1532-1535

The Service determined and has certified that therulemaking will not impose a cost of more than $100 million dollars in anygiven year on local or state governments or private entities. As a result, the rule is not a significantregulatory action under the Unfunded Mandates Reform Act of 1995.

(iv) Other relevantinformation or requirements under acts and executive orders

Administrative ProcedureAct, 5 U.S.C. sections551 et seq.

The Service published a series of proposed rules relating tolate-season migratory bird hunting from April 10, 2009, to August 13,2009. 74 Fed. Reg. 16,339 (April 10,2009); 74 Fed. Reg. 25,209 (May 27, 2009); 74 Fed. Reg. 36,870 (July 24, 2009);74 Fed. Reg. 41,008 (August 13, 2009).The Service received comments on these proposed rules, to which theyresponded in the final rule. 74 Fed.Reg. 45,032. The Service found "goodcause" under section 553(d)(3) of title 5, allowing this final rule to takeeffect immediately on publication.

Paperwork Reduction Act, 44 U.S.C. sections3501-3520

There are no new information collections under this rulethat would require the Office of Management and Budget's (OMB) approval. OMB has approved the existing informationcollection requirements of the Migratory Bird Surveys and assigned controlnumber 1018-0023, which expires on February 28, 2011.

Statutory authorization for the rule

Therules concerning migratory bird hunting are authorized by the Migratory BirdTreaty Act, sections 703 to 711 of title 16, United States Code.

Executive Order No. 12,866 (Regulatory Planning andReview)

The final rule was determined tobe economically significant by the Service and was reviewed by the Office ofManagement and Budget under Executive Order No. 12,866. The Service relied on its cost-benefitanalysis from the 2008-09 season.

Executive Order No. 13,132 (Federalism)

TheService determined that the regulations do not have sufficient federalismimplications to warrant the preparation of a federalism assessment under theOrder.