B-318739

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; Migratory Bird Hunting Regulations on Certain Federal IndianReservations and Ceded Lands for the 2009-10 Late Season

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; Migratory Bird Hunting Regulationson Certain Federal Indian Reservations and Ceded Lands for the 2009-10 LateSeason" (RIN: 1018-AW31). We receivedthe rule on September 22, 2009. It waspublished in the Federal Register as afinal rule on September 25, 2009. 74Fed. Reg. 49,292.

The final rule prescribes special late-season migratorybird hunting regulations for certain tribes on federal Indian reservations,off-reservation trust lands, and ceded lands.The final rule also allows the establishment of season bag limits and,thus, harvest at levels compatible with populations and habitat conditions.

Enclosed is our assessment of the Service'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 the Service 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 25,2009.

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; MIGRATORY BIRD HUNTING
REGULATIONS ON CERTAIN FEDERAL INDIAN RESERVATIONS
AND CEDED LANDS FOR THE 2009-10 LATE SEASON"
(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.

On April 10, 2009, the Service published in the Federal Register a request that tribesdesiring special hunting regulations in the 2009-10 hunting season submit aproposal. 74 Fed. Reg. 16,339. The Service issued a proposed rulemaking onAugust 11, 2009. 74 Fed. Reg.40,138. In the final rule, the Servicestates that it did not receive any comments on the proposed rule. 74 Fed. Reg. 49,292. 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

Thereare no new information collections under this rule that would require theOffice 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. OMB has also approved the existinginformation collection requirements of the Alaska Subsistence Household Survey,an associated voluntary annual household survey used to determine levels ofsubsistence take in Alaska, and assigned control number 1018-0124, whichexpires 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.