Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Late Seasons and Bag and Possession Limits for Certain Migratory Game Birds

GAO-15-145R: Oct 14, 2014

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GAO reviewed the Department of the Interior, Fish and Wildlife Service's (FWS) new rule on migratory bird hunting; late seasons and bag and possession limits for certain migratory game birds. GAO found that (1) the final rule prescribes final late-season hunting seasons, hours, areas, and daily bag and possession limits for general waterfowl seasons and those early seasons for which states previously deferred selection; and (2) FWS complied with the applicable requirements in promulgating the rule.

B-326293

October 14, 2014

The Honorable Barbara Boxer
Chairman
The Honorable David Vitter
Ranking Member
Committee on Environment and Public Works
United States Senate

The Honorable Doc Hastings
Chairman
The Honorable Peter DeFazio
Ranking Member
Committee on Natural Resources
House of Representatives

Subject: Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Late Seasons and Bag and Possession Limits for Certain Migratory Game Birds

Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a major rule promulgated by the Department of the Interior, Fish and Wildlife Service (FWS), entitled “Migratory Bird Hunting; Late Seasons and Bag and Possession Limits for Certain Migratory Game Birds” (RIN: 1018-AZ80). We received the rule on September 25, 2014. It was published in the Federal Register as a final rule on September 26, 2014. 79 Fed. Reg. 58,198.

The final rule prescribes final late-season 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 2014-15 season.

Section 808(1) of title 5, United States Code, exempts any rule that “establishes, modifies, opens, closes, or conducts a regulatory program for commercial, recreational, or subsistence activity related to hunting, fishing, or camping” from the 60-day delay in the effective date otherwise required by section 801(a)(3)(A). This is a rule relating to hunting and, therefore, the 60-day delay is not applicable. This final rule became effective on September 27, 2014.

Enclosed is our assessment of FWS’s compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. Our review of the procedural steps taken indicates that FWS complied with the applicable requirements.

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

signed

Robert J. Cramer
Managing Associate General Counsel

Enclosure

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


ENCLOSURE

REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE
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-AZ80)

(i) Cost-benefit analysis

The Fish and Wildlife Service (FWS) prepared an economic analysis for the 2013–14 season. This analysis was based on data from the 2011 National Hunting and Fishing Survey, the most recent year for which data are available. 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 2012–13 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations identical to the regulations in the 2012–13 season. For the 2013–14 season, FWS chose alternative 3, with an estimated consumer surplus across all flyways of $317.8–$416.8 million. For the 2014–15 season, FWS also chose alternative 3. FWS also pointed out that it also chose alternative 3 for the previous seasons since 2009-10. FWS included the 2013–14 analysis in the record for this rule.

(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 603-605, 607, and 609

FWS determined that this final rule will have a significant impact on a substantial number of small entities. FWS relied on a small entity flexibility analysis that was last updated in 2013. 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 2013 analysis was based on the 2011 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 $1.5 billion at small businesses in 2013.

(iii) Agency actions relevant to sections 202-205 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532-1535

FWS certified that this final rule will not impose a cost of $100 million or more in any given year on local or state government or private entities.

(iv) Other relevant information or requirements under acts and executive orders

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

On April 30, 2014, FWS published a proposed rule. 79 Fed. Reg. 24,512. On June 4, FWS published supplemental proposals for early- and late-season migratory bird hunting regulations. 79 Fed. Reg. 32,418. On July 31, 2014, FWS published the proposed framework for early-season regulations. 79 Fed. Reg. 44,580. Also on July 30 and July 31, 2014, FWS held open meetings with the Flyway Council Consultants. On August 22, 2014, FWS published the proposed frameworks for late-season regulations. 79 Fed. Reg. 50,512. FWS stated that it addressed all comments pertaining to late-season issues in the August proposed rule. FWS found “good cause” under section 553(d)(3) of title 5, allowing this final rule to take effect less than 30 days after publication.

Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501-3520

There are no new information collections under this final rule that would require the Office of Management and Budget’s (OMB) approval. OMB has approved the existing information collection requirements of the Migratory Bird Surveys and assigned control numbers 1018–0010—Mourning Dove Call Count Survey (discontinued July 29, 2014); 1018–0019—North American Woodcock Singing Ground Survey, which expires on April 30, 2015; and 1018–0023—Migratory Bird Surveys, which expires on June 30, 2017.

Statutory authorization for the rule

FWS promulgated this final rule under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended, 16 U.S.C. §§ 703-711.

Executive Order Nos. 12,866 and 13,563 (Regulatory Planning and Review)

OMB determined that this rule is a significant regulatory action because it would have an annual effect of $100 million or more on the economy and, therefore, has reviewed the rule under the Order.

Executive Order No. 13,132 (Federalism)

FWS determined that this final rule does 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, and, therefore, does not have significant federalism effects or sufficient federalism implications under the Order.

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