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Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Final Frameworks for Migratory Bird Hunting Regulations

B-330115 Jun 12, 2018
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GAO reviewed the Department of the Interior, Fish and Wildlife Service's (Service) new rule on migratory bird hunting and final frameworks for migratory bird hunting regulations. GAO found that (1) the final rule (a) prescribes final frameworks from which states may select season dates, limits, and other options for the 2018-29 migratory bird hunting seasons; and (b) is meant to facilitate the states' selection of hunting seasons and to further the annual establishment of the migratory bird hunting regulations; and (2) Service complied with applicable requirements in promulgating the rule.

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B-330115

June 12, 2018

The Honorable John Barrasso
Chairman
The Honorable Tom Carper
Ranking Member
Committee on Environment and Public Works
United States Senate

The Honorable Rob Bishop
Chairman
The Honorable Raúl Grijalva
Ranking Member
Committee on Natural Resources
House of Representatives

Subject: Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Final Frameworks for Migratory Bird Hunting Regulations

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 (Service) entitled “Migratory Bird Hunting; Final Frameworks for Migratory Bird Hunting Regulations” (RIN: 1018-BB73).  We received the rule on May 30, 2018.  It was published in the Federal Register as a final rule on June 4, 2018.  83 Fed. Reg. 25,738. 

The final rule prescribes final frameworks from which states may select season dates, limits, and other options for the 2018-29 migratory bird hunting seasons.  This final rule is meant to facilitate the states’ selection of hunting seasons and to further the annual establishment of the migratory bird hunting regulations.  The Service annually prescribes frameworks, or outer limits, for dates and times when hunting may occur and the number of birds that may be taken and possessed in hunting seasons.  The Service views these frameworks as necessary to allow state selections of seasons and limits and to allow recreational harvest at levels compatible with population and habitat conditions. 

In general, the Congressional Review Act requires a 60-day delay in effective date of a major rule from the date of publication in the Federal Register or receipt of the rule by Congress, whichever is later.  5 U.S.C. § 801(a)(3)(A).  However, any rule that “establishes, modifies, opens, closes, or conducts a regulatory program for commercial, recreational, or subsistence activity related to hunting, fishing, or camping” is exempt from the 60-day delay requirement.  5 U.S.C. § 808(1).  This rule is related to hunting and, therefore, is exempt from the 60-day delay requirement.  The effective date of the rule is June 4, 2018.

Enclosed is our assessment of the Service’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 agency’s submissions to us indicates that the Service 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
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; Final Frameworks
for Migratory Bird Hunting Regulations

(RIN: 1018-BB73)

(i) Cost-benefit analysis

The Fish and Wildlife Service (Service) prepared an economic analysis for the 2018–19 season.  The Service stated that its analysis was based on data from the 2011 National Hunting and Fishing Survey, the most recent year for which data are available.  The Service’s 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 2017–18 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations identical to the regulations in the 2017–18 season.  For the 2018–19 season, the Service chose the third alternative, with an estimated consumer surplus across all flyways of $334 million to $400 million with a mid-point estimate of $387 million. 

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

The Service determined that this final rule will have a significant impact on a substantial number of small entities.  The Service relied on a small entity flexibility analysis that was last updated in 2018.  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 2018 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 2018.

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

The Service determined 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. §§ 551et seq.

On August 3, 2017, the Service published a proposal to amend the regulations governing migratory bird hunting.  82 Fed. Reg. 36,308.  On October 3, 2017, the Service published a second document providing proposals for migratory bird hunting regulations.  82 Fed. Reg. 46,011.  On October 17 and 18, 2017, the Service held open meetings with the Flyway Council consultants, at which the participants reviewed information on the current status of migratory game birds and developed recommendations for the 2018–19 regulations for these species.  On February 2, 2018, the Service published the proposed frameworks for the 2018–19 season migratory bird hunting regulations.  83 Fed. Reg. 4964.  The Service noted that there are no substantive changes from the February 2, 2018, proposed rule.

The Service stated that it believes that sufficient public notice and opportunity for involvement have been given to affected persons regarding the migratory bird hunting frameworks for the 2018–19 hunting seasons and that, if there were a delay in the effective date of this rule, the states might not be able to meet their own administrative needs and requirements.  For these reasons, the Service found that “good cause” exists under the Act for this rule to take effect immediately upon publication.

Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501 et seq.

The Service stated that this final rule contains a collection of information that has been submitted to the Office of Management and Budget (OMB) for review and approval.  The Service stated that OMB had previously approved the information collection requirements associated with migratory bird surveys and assigned control numbers: 1018–0019—North American Woodcock Singing Ground Survey (expires May 31, 2018) and 1018–0023—Migratory Bird Surveys (expires June 30, 2017).  The Service stated that OMB also reviewed and approved new reporting and recordkeeping requirements and assigned OMB control number 1018-0171—Establishment of Annual Migratory Bird Hunting Seasons, 50 C.F.R. part 20.

Statutory authorization for the rule

The Service promulgated this final rule under the authority of the Migratory Bird Treaty Act, as amended.  16 U.S.C. §§ 703–712.

Executive Order No. 12,866 (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)

The Service determined that this final rule will 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.

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