B-318738

October 8, 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 BirdHunting; Late Seasons and Bag and Possession Limits for Certain Migratory GameBirds

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;Late Seasons and Bag and Possession Limits for Certain Migratory Game Birds"(RIN: 1018-AW31). We received the ruleon September 22, 2009. It was publishedin the Federal Register as a finalrule on September 25, 2009. 74 Fed. Reg.49,244.

The final rule prescribes the hunting seasons, hours,areas, and daily bag and possession limits for general waterfowl seasons andthose early seasons for which states previously deferred selection. Taking of migratory birds is prohibitedunless specifically provided for by annual regulations. This rule permits the taking of designatedspecies 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 26,2009.

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: RonW. 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; LATE SEASONS AND
BAG AND POSSESSION LIMITS FOR
CERTAIN MIGRATORY GAME BIRDS"
(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 did not receive comments on these proposed rules. 74 Fed. Reg. 49,244. The Service found "good cause" under section553(d)(3) of title 5, allowing this final rule to take effect immediately onpublication.

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. OMBhas also approved the existing information collection requirements of theAlaska Subsistence Household Survey, an associated voluntary annual householdsurvey used to determine levels of subsistence take in Alaska, and assignedcontrol number 1018-0124, which expires on January 31, 2010.

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.