[Federal Register: June 17, 1999 (Volume 64, Number 116)]

[Rules and Regulations]               

[Page 32777-32780]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]


[[Page 32777]]


Part X

Department of the Interior


Fish and Wildlife Service


50 CFR Parts 20 and 21

Migratory Bird Hunting: Withdrawal of Regulations Designed To Reduce 

the Mid-Continent Light Goose Population; Final Rule

[[Page 32778]]



Fish and Wildlife Service

50 CFR Parts 20 and 21

RIN 1018-AF05


Migratory Bird Hunting; Withdrawal of Regulations Designed To 

Reduce the Mid-Continent Light Goose Population

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final Rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service or ``we'') is 

withdrawing the regulations that authorized the use of additional 

hunting methods (electronic calls and unplugged shotguns) to increase 

take of mid-continent light geese. We are also withdrawing the 

regulation that established a conservation order for the reduction of 

mid-continent light goose populations.

DATES: This rule takes effect immediately upon publication on June 17, 


ADDRESSES: Copies of the EA are available by writing to the Chief, 

Office of Migratory Bird Management, U.S. Fish and Wildlife Service, 

Department of the Interior, ms 634--ARLSQ, 1849 C Street NW., 

Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Jon Andrew, (703) 358-1714.

SUPPLEMENTARY INFORMATION: Because high populations of Mid-continent 

light geese (MCLG), are leading to the habitat destruction described 

below, we believe that management action is necessary. In fact, we 

promulgated regulations on February 16, 1999, (64 FR 7507; 64 FR 7517) 

that authorized additional methods of take of light geese and 

established a conservation order for the reduction of the MLGP. In 

issuing those regulations, we indicated that we would initiate 

preparation of an Environmental Impact Statement (EIS) beginning in 

2000 to consider the effects on the human environment of a range of 

long-term resolutions for the MCLG population problem. Those 

regulations were subsequently challenged in a United States District 

Court by the Humane Society of the United States (HSUS) and other 

groups. Though the judge refused to preliminarily enjoin the program, 

he did indicate a likelihood that the plaintiffs might prevail on the 

EIS issue when the lawsuit proceeded. In light of our earlier 

commitment to prepare an EIS on the larger, long-term program and to 

preclude further litigation on the issue, we have decided to withdraw 

the regulations and to begin preparation of the EIS now.


    Lesser snow (Anser caerulescens caerulescens) and Ross' (Anser 

rossii) geese that primarily migrate through the Mississippi and 

Central Flyways are collectively referred to as Mid-continent light 

geese (MCLG). They are referred to as ``light'' geese due to the light 

coloration of the white-phase plumage form, as opposed to ``dark'' 

geese such as the white-fronted or Canada goose. We include both 

plumage forms of lesser snow geese (white, or ``snow'' and dark, or 

``blue'') under the designation light geese. MCLG breed in the central 

and eastern arctic and subarctic regions of northern Canada. The total 

MCLG population is experiencing a high population growth rate and has 

become seriously injurious to its arctic and subarctic breeding grounds 

through the feeding actions of geese. Our management goal is to reduce 

the MCLG population by 50% by the year 2005 in order to prevent further 

habitat degradation.

    We have attempted to curb the growth of the total MCLG population 

by increasing bag and possession limits and extending the open hunting 

season length for light geese to 107 days, the maximum allowed by the 

Migratory Bird Treaty. However, due to the rapid rise in the MCLG 

population, low hunter success, and low hunter interest, harvest rate 

(the percentage of the population that is harvested) has declined 

despite evidence that the actual number of geese harvested has 

increased (USFWS 1997b). The decline in harvest rate indicates that the 

current management strategies are not sufficient to stabilize or reduce 

the population growth rate.

    On February 16, 1999, we published rules that: (1) authorized 

additional methods of take of MCLG (electronic calls and unplugged 

shotguns; 64 FR 7507); and (2) created a conservation order for the 

reduction of the MCLG population (64 FR 7517). These actions were 

designed to reduce the population of MCLG over a period of several 

years in order to bring the population to a level that their breeding 

habitat can support. We prepared an Environmental Assessment (EA) in 

support of this program, which resulted in a Finding of No Significant 


    On February 25, 1999, the HSUS and other groups filed a complaint 

in the District Court for the District of Columbia seeking an 

injunction against these regulations. On March 2, 1999, the plaintiffs 

filed a motion for a preliminary injunction against the two rules cited 

above. The lawsuit alleged that we had implemented the rules without 

adequate scientific evidence that MCLG were causing habitat 

destruction, that we did not have the authority under the Migratory 

Bird Treaty to allow take of MCLG after March 10, and that an 

Environmental Impact Statement (EIS) should have been prepared prior to 

implementation of the rules. Although the judge refused to issue an 

injunction, he did indicate a likelihood that plaintiffs might succeed 

on their argument that an EIS should have been prepared. In order to 

avoid further litigation, and because we had earlier indicated we would 

begin preparing in the year 2000 an EIS on the larger, long-term 

program, we have decided to withdraw the regulations and begin 

preparation of that EIS now.

Effective Date

    Under 5 U.S.C. 553 (b)(3)(B), we find that the notice required by 

Sec. 553 (b) does not apply to this rule withdrawal because, for the 

following reasons, it is unnecessary and not in the public interest. We 

are reinstating rules with regard to light geese that have been in 

place and implemented for many years and which were adopted after 

notice and opportunity for public comment. In addition, the Service is 

preparing an EIS that will address all of the larger, long-term issues 

for light goose management, including take regulations, which will 

involve significant opportunities for public involvement and comment. 

Any regulations that may result from the EIS process would be adopted 

only after notice and opportunity for public comment. Finally, it is in 

the public interest because withdrawal of the regulations will allow us 

to conclude the litigation initiated by the HSUS and avoid in-season 

problems. Although the judge in that case did not preliminarily enjoin 

the new regulations, he did indicate that a decision on the merits 

might find them procedurally deficient. If that were to occur during 

the 1999-2000 hunting season, States and their licensed hunters would 

experience significant confusion and enforcement and administrative 

problems. In addition, under 5 U.S.C. 553 (d), for the above reasons, 

we find that good cause exists to put this rule into effect immediately 

upon publication.

NEPA Considerations

    In compliance with the requirements of section 102(2)(C) of the 

National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the 

Council on Environmental Quality's regulation for implementing NEPA (40 

CFR 1500-1508), we prepared an Environmental Assessment in January 

1999. This EA is available to the public at the location

[[Page 32779]]

indicated under the ADDRESSES caption. We will initiate the preparation 

of an EIS to consider the effects on the human environment of a range 

of alternatives for management of the MCLG population. A Notice of 

Intent to prepare the EIS was published in the Federal Register on May 

13, 1999 (64 FR 26268).

Endangered Species Act Consideration

    Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16 

U.S.C. 1531-1543; 87 Stat. 884) provides that ``Each Federal agency 

shall, in consultation with the Secretary, insure that any action 

authorized, funded, or carried out . . . is not likely to jeopardize 

the continued existence of any endangered or threatened species or 

result in the destruction or adverse modification of (critical) habitat 

. . .'' We completed a Section 7 consultation under the ESA for the 

rules that are being withdrawn. Withdrawal of the rules will not affect 

any threatened, endangered, proposed or candidate species. The result 

of our consultation under Section 7 of the ESA is available to the 

public at the location indicated under the ADDRESSES caption.

Regulatory Flexibility Act

    The economic impacts of this rulemaking will fall primarily on 

small businesses because of the structure of the waterfowl hunting 

related industries. The Regulatory Flexibility Act of 1980 (5 U.S.C. 

601 et seq.) requires the preparation of flexibility analyses for rules 

that will have a significant effect on a substantial number of small 

entities. Data are not available to estimate the number of small 

entities affected, but it is unlikely to be a substantial number on a 

national scale. We estimated that implementation of these regulations 

would have reduced the risk of light-goose season closures in the 

Central and Mississippi Flyways, subsequently avoiding a $70 million 

loss in output and reducing the possibility of increased agricultural 

loss. We estimated that special MCLG population control efforts would 

have created additional take opportunities that were expected to add 

$18 million in output to local economies. We have determined that a 

Regulatory Flexibility Act Analysis is not required.

Executive Order 12866

    This rule was not subject to review by the Office of Management and 

Budget under E.O. 12866. E.O. 12866 requires each agency to write 

regulations that are easy to understand. The Service invites comments 

on how to make this rule easier to understand, including answers to 

questions such as the following: (1) Are the requirements in the rule 

clearly stated? (2) Does the rule contain technical language or jargon 

that interferes with its clarity? (3) Does the format of the rule 

(grouping and order of sections, use of headings, paragraphing, etc.) 

aid or reduce its clarity? (4) Would the rule be easier to understand 

if it were divided into more (but shorter) sections? (5) Is the 

description of the rule in the ``Supplementary Information'' section of 

the preamble helpful in understanding the rule? What else could the 

Service do to make the rule easier to understand?

Congressional Review

    This is not a major rule under the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 U.S.C. 801-808), this rule has been 

submitted to Congress. Because this rule deals with our migratory bird 

hunting program, this rule qualifies for an exemption under 5 U.S.C. 

808(1); therefore, the Department determines that this rule shall take 

effect immediately.

Paperwork Reduction Act and Information Collection

    This regulation does not require any information collection for 

which OMB approval is required under the Paperwork Reduction Act. 

Information collection for any light goose harvest that occurred prior 

to the withdrawal of these regulations is covered by an existing OMB 

approval number. Agencies may not conduct or sponsor, and a person is 

not required to respond to, a collection of information unless it 

displays a currently valid OMB control number. The OMB approved the 

information collection of the conservation order prior to withdrawal of 

the regulation and assigned clearance number 1018-0103 (expires 01/31/


Unfunded Mandates

    We have determined and certify, in compliance with the requirements 

of the Unfunded Mandates Act (2 U.S.C. 1502 et seq.), that this 

rulemaking will not impose a cost of $100 million or more in any given 

year on local or State government or private entities. This rule will 

not ``significantly or uniquely'' affect small governments. No 

governments below the State level will be affected by this rule. A 

Small Government Agency Plan is not required. This rule will not 

produce a Federal mandate of $100 million or greater in any year, i.e., 

it is not a ``significant regulatory action'' under Unfunded Mandates.

Civil Justice Reform--Executive Order 12988

    The Department, in promulgating this rule, has determined that 

these regulations meet the applicable standards provided in Sections 

3(a) and 3(b)(2) of Executive Order 12988. This rule has been reviewed 

by the Office of the Solicitor. Specifically, this rule has been 

reviewed to eliminate errors and ambiguity, has been written to 

minimize litigation, provides a clear legal standard for affected 

conduct, and specifies in clear language the effect on existing Federal 

law or regulation. We do not anticipate that this rule will require any 

additional involvement of the justice system beyond enforcement of 

provisions of the Migratory Bird Treaty Act of 1918 that have already 

been implemented through previous rulemakings.

Takings Implication Assessment

    In accordance with Executive Order 12630, this rule, authorized by 

the Migratory Bird Treaty Act, does not have significant takings 

implications and does not affect any constitutionally protected 

property rights. The rule will not result in the physical occupancy of 

property, the physical invasion of property, or the regulatory taking 

of any property.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 

Federal government has been given responsibility over these species by 

the Migratory Bird Treaty Act. These rules do 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. Therefore, in accordance with Executive Order 12612, 

these regulations do not have significant federalism effects and do not 

have sufficient federalism implications to warrant the preparation of a 

Federalism Assessment.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 

``Government-to-Government Relations with Native American Tribal 

Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible 

effects on Federally recognized Indian Tribes and have determined that 

there are no effects.


    The primary author of this final rule is James R. Kelley, Jr., 

Office of Migratory Bird Management.

[[Page 32780]]

List of Subjects in 50 CFR Parts 20 and 21

    Exports, Hunting, Imports, Reporting and recordkeeping 

requirements, Transportation, Wildlife.

    For the reasons stated in the preamble, we hereby amend parts 20 

and 21, of the subchapter B, chapter I, title 50 of the Code of Federal 

Regulations, as set forth below:


    1. The authority citation for part 20 continues to read as follows:

    Authority: 16 U.S.C. 703-712; and 16 U.S.C 742a-j.

    2. Revise paragraphs (b) and (g) of Sec. 20.21 Hunting methods to 

read as follows:

Sec. 20.21  Hunting methods

* * * * *

    (b) With a shotgun of any description capable of holding more than 

three shells, unless it is plugged with a one-piece filler, incapable 

of removal without disassembling the gun, so its total capacity does 

not exceed three shells;

* * * * *

    (g) By the use or aid of recorded or electrically amplified bird 

calls or sounds, or recorded or electrically amplified imitations of 

bird calls or sounds;

* * * * *

    3. Revise Sec. 20.22 Closed seasons to read as follows:

Sec. 20.22  Closed seasons

    No person shall take migratory game birds during the closed season.


    1. The authority citation for part 21 continues to read as follows:

    Authority: Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)).


    2. Remove Subpart E, consisting of Sec. 21.60.

    Dated: June 3, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-15338 Filed 6-16-99; 8:45 am]