[Federal Register: December 20, 1999 (Volume 64, Number 243)]

[Rules and Regulations]               

[Page 71235-71239]

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

[DOCID:fr20de99-34]                         





[[Page 71235]]



_______________________________________________________________________



Part IV











Department of the Interior











_______________________________________________________________________







Fish and Wildlife Service







_______________________________________________________________________







50 CFR Parts 20 and 21







Migratory Bird Hunting; Regulations Designed to Reduce the Mid-

Continent Light Goose Population; Final Rule





[[Page 71236]]







DEPARTMENT OF THE INTERIOR



Fish and Wildlife Service



50 CFR Parts 20 and 21



RIN 1018-AF85



 

Migratory Bird Hunting; Regulations Designed To Reduce the Mid-

Continent Light Goose Population



AGENCY: Fish and Wildlife Service, Interior.



ACTION: Final rule.



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SUMMARY: This rule amends the Fish and Wildlife Service regulations 

based on recent Congressional action that effectively reinstated 

regulations intended to reduce the population of mid-continent light 

geese (MCLG). The new law authorizes the use of additional hunting 

methods (electronic calls and unplugged shotguns) to increase take of 

MCLG. In addition, a conservation order for the reduction of the MCLG 

population was authorized.



DATES: This rule is effective on December 20, 1999, and shall be in 

force until May 15, 2001, at the latest.



ADDRESSES: Copies of the Environmental Assessment 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, Chief, Office of Migratory 

Bird Management, Department of the Interior, ms 634--ARLSQ, 1849 C 

Street, NW., Washington, DC 20240; (703) 358-1714.



SUPPLEMENTARY INFORMATION: The Service (or ``we'') promulgated 

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

authorized additional methods of take of mid-continent light geese and 

established a conservation order for the reduction of the MCLG 

population. 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 published a Notice of 

Intent to begin immediate preparation of the EIS (May 13, 1999; 64 FR 

26268). Subsequent to this action, we withdrew the regulations 

promulgated on February 16, 1999 (June 17, 1999; 64 FR 32778). On 

November 10, 1999, Congress passed the Arctic Tundra Habitat Emergency 

Conservation Act (Act), which effectively reinstated the MCLG 

regulations that we withdrew on June 17, 1999. The Act was signed by 

the President on November 24, 1999 (Pub. L. 106-108). The Act stated 

that, ``the rules published by the Service on February 16, 1999, * * * 

shall have the force and effect of law.'' (Section 3(a)(1)). In 

addition, it provided that, (t)he Secretary, acting through the 

Director * * * shall take such action as is necessary to appropriately 

notify the public . . .'' We have determined that amending the CFR by 

use of this document is the most appropriate method.



Background



    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 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 

past management strategies were 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 

Impact.

    On February 25, 1999, several 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 EIS should have been prepared 

prior to implementation of the rules. In his memorandum opinion, the 

judge indicated that ``the scientific evidence regarding the 

overpopulation of snow geese strongly favors FWS'' and that we had 

exercised a reasonable use of our authority under the Migratory Bird 

Treaty Act to initiate population control measures. 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 decided to withdraw the regulations 

and begin immediate preparation of the EIS. On August 30, 1999, we 

published a schedule of nine public scoping meetings to receive public 

input on the issues and management alternatives that should be analyzed 

in the EIS. The public comment period for the scoping process ended on 

November 22, 1999. We anticipate publication of a draft EIS in late 

winter of 2000.

    On November 10, 1999, Congress passed and on November 24, 1999, the 

President signed into law the Arctic Tundra Habitat Emergency 

Conservation Act (Pub. L. 106-108) to ``reduce the population of mid-

continent light geese,'' and ``to assure the long-term conservation of 

mid-continent light geese and the biological diversity of the



[[Page 71237]]



ecosystem upon which many North American migratory birds depend'' (Pub. 

L. 106-108). The Act further states that, ``the rules published by the 

Service on February 16, 1999, relating to use of additional hunting 

methods to increase the harvest of mid-continent light geese (64 FR 

7517-7528) and the establishment of a conservation order for the 

reduction of mid-continent light goose populations (64 FR 7514-7528), 

shall have the force and effect of law.'' The Act instructed the 

Secretary of Interior, acting through the Director of the Service, to 

take such action as is necessary to appropriately notify the public of 

the force and effect of the rules referenced above. The Act remains in 

effect until, ``the latest of--

    (A) The effective date of rules issued by the Service after such 

date of the enactment to control overabundant mid-continent light geese 

populations;

    (B) The date of the publication of a final environmental impact 

statement for such rules under section 102(2)(C) of the National 

Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)); and

    (C) May 15, 2001.''

    The Act further directs the Secretary to, ``prepare, and as 

appropriate implement, a comprehensive, long-term plan for the 

management of mid-continent light geese and the conservation of their 

habitat.'' The Act requires that, ``The plan shall apply principles of 

adaptive resource management and shall include--

    (1) A description of methods for monitoring the levels of 

populations and the levels of harvest of mid-continent light geese, and 

recommendations concerning long-term harvest levels;

    (2) Recommendations concerning other means for the management of 

mid-continent light goose populations, taking into account the reasons 

for the population growth specified in section 102(a)(3);

    (3) An assessment of, and recommendations relating to, conservation 

of the breeding habitat of mid-continent light geese;

    (4) An assessment of, and recommendations relating to, conservation 

of native species of wildlife adversely affected by the overabundance 

of mid-continent light geese, including the species specified in 

section 102(a)(5); and

    (5) An identification of methods for promoting collaboration with 

the Government of Canada, States, and other interested persons.''



Public Comment



    We are establishing this final rule without the standard notice for 

public comment. As required by the Administrative Procedure Act (5 

U.S.C. 553(b)(B)), we have found that the notice and public procedure 

required by the APA are impracticable, unnecessary, and contrary to the 

public interest for the following reasons: (1) We are reinstating the 

rule at the direction of Congress; (2) public comment can not change 

the Congressional action; and (3) providing an unnecessary comment 

period at this time might preclude some affected States from 

implementing the expanded hunting methods and conservation order on 

time.



Effective Date



    Under 5 U.S.C. 553 (d)(3), we find good cause to make the rule 

effective upon publication because, for the following reasons, it is 

unnecessary and not in the public interest. Reinstatement of these 

rules is being done as a result of a directive contained in law. We are 

reinstating rules with regard to light geese that were in place 

previously and which were adopted after notice and opportunity for 

public comment. In addition, under 5 U.S.C. Sec. 553 (d)(1), this is a 

substantive rule that relieves the current restrictions on taking light 

geese.



Required Determinations



    We published all of the required determinations in the February 16, 

1999, final rules (64 FR 7507; 64 FR 7517).

    Authorship. The primary author of this final rule is James R. 

Kelley, Jr., Office of Migratory Bird Management.



List of Subjects in 50 CFR Parts 20 and 21



    Exports, Hunting, Imports, Reporting and recordkeeping 

requirements, Transportation, Wildlife.



    For the reasons given in the preamble, we hereby amend Parts 20 and 

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

Regulations, as set forth below:



PART 20--[AMENDED]



    1. The authority citation for part 20 is revised to read as 

follows:



    Authority: 16 U.S.C 703-712; 16 U.S.C. 742 a-j; Pub. L. 106-108.



    2. Revise paragraphs (b) and (g) of Sec. 20.21 to read as follows:





Sec. 20.21  What hunting methods are illegal?



* * * * *

    (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. This restriction does not apply during a 

light-goose-only season (lesser snow and Ross' geese) when all other 

waterfowl and crane hunting seasons, excluding falconry, are closed 

while hunting light geese in Central and Mississippi Flyway portions of 

Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, 

Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, 

Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, 

Tennessee, Texas, Wisconsin, and Wyoming.

* * * * *

    (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. This restriction does not apply during a light-

goose-only season (lesser snow and Ross' geese) when all other 

waterfowl and crane hunting seasons, excluding falconry, are closed 

while hunting light geese in Central and Mississippi Flyway portions of 

Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, 

Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, 

Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, 

Tennessee, Texas, Wisconsin, and Wyoming.

* * * * *





Sec. 20.22  [Amended]



    3. In Sec. 20.22, the phrase ``except as provided in part 21'' is 

added following the word ``season'.



PART 21--[AMENDED]



    4. The authority citation for part 21 is revised to read as 

follows:



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

Pub. L. 106-108.



    5. Subpart E, consisting of Sec. 21.60, is added to read as 

follows:



Subpart E--Control of Overabundant Migratory Bird Populations





Sec. 21.60  Conservation order for mid-continent light geese.



    (a) Which waterfowl species are covered by this order? This 

conservation order addresses management of lesser snow (Anser c. 

caerulescens) and Ross' (Anser rossii) geese that breed, migrate, and 

winter in the mid-continent portion of North America, primarily in the 

Central and Mississippi Flyways (mid-continent light geese).

    (b) In what areas can the conservation order be implemented? (1) 

The following States, or portions of States,



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that are contained within the boundaries of the Central and Mississippi 

Flyways: Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, 

Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, 

Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South 

Dakota, Tennessee, Texas, Wisconsin, and Wyoming.

    (2) Tribal lands within the geographic boundaries in paragraph 

(b)(1) of this section.

    (3) The following areas within the boundaries in paragraph (b)(1) 

of this section are closed to the conservation order after 10 March of 

each year: Monte Vista National Wildlife Refuge (CO); Bosque del Apache 

National Wildlife Refuge (NM); the area within 5 miles of the Platte 

River from Lexington, Nebraska, to Grand Island, Nebraska; the 

following area in and around Aransas National Wildlife Refuge; those 

portions of Refugio, Calhoun, and Aransas Counties that lie inside a 

line extending from 5 nautical miles offshore to and including Pelican 

Island, thence to Port O'Conner, thence northwest along State Highway 

185 and southwest along State Highway 35 to Aransas Pass, thence 

southeast along State Highway 361 to Port Aransas, thence east along 

the Corpus Christi Channel, thence southeast along the Aransas Channel, 

extending to 5 nautical miles offshore; except that it is lawful to 

take mid-continent light geese after 10 March of each year within the 

Guadalupe WMA. If at any time we receive evidence that a need to close 

the areas in this paragraph (b)(3) no longer exists, we will publish a 

proposal to remove the closures in the Federal Register.

    (c) What is required in order for State/Tribal governments to 

participate in the conservation order? Any State or Tribal government 

responsible for the management of wildlife and migratory birds may, 

without permit, kill or cause to be killed under its general 

supervision, mid-continent light geese under the following conditions:

    (1) Activities conducted under this section may not affect 

endangered or threatened species as designated under the Endangered 

Species Act.

    (2) Control activities must be conducted clearly as such and are 

intended to relieve pressures on migratory birds and habitat essential 

to migratory bird populations only and are not to be construed as 

opening, reopening, or extending any open hunting season contrary to 

any regulations promulgated under section 3 of the Migratory Bird 

Treaty Act.

    (3) Control activities may be conducted only when all waterfowl and 

crane hunting seasons, excluding falconry, are closed.

    (4) Control measures employed through this section may be 

implemented only between the hours of one-half hour before sunrise to 

one-half hour after sunset.

    (5) Nothing in this section may limit or initiate management 

actions on Federal land without concurrence of the Federal agency with 

jurisdiction.

    (6) States and Tribes must designate participants who must operate 

under the conditions of this section.

    (7) States and Tribes must inform participants of the requirements/

conditions of this section that apply.

    (8) States and Tribes must keep records of activities carried out 

under the authority of this section, including the number of mid-

continent light geese taken under this section, the methods by which 

they were taken, and the dates they were taken. The States and Tribes 

must submit an annual report summarizing activities conducted under 

this section on or before August 30 of each year 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.

    (d) What is required for individuals to participate in the 

conservation order? Individual participants in State or tribal programs 

covered by this section are required to comply with the following 

requirements:

    (1) Nothing in this section authorizes the take of mid-continent 

light geese contrary to any State or Tribal laws or regulations, and 

none of the privileges granted under this section may be exercised 

unless persons acting under the authority of the conservation order 

possess whatever permit or other authorization(s) required for such 

activities by the State or Tribal government concerned.

    (2) Participants who take mid-continent light geese under this 

section may not sell or offer for sale those birds nor their plumage, 

but may possess, transport, and otherwise properly use them.

    (3) Participants acting under the authority of this section must 

permit at all reasonable times, including during actual operations, any 

Federal or State game or deputy game agent, warden, protector, or other 

game law enforcement officer free and unrestricted access over the 

premises on which such operations have been or are being conducted, and 

must promptly furnish whatever information an officer requires 

concerning the operation.

    (4) Participants acting under the authority of this section may 

take mid-continent light geese by any method except those prohibited as 

follows:

    (i) With a trap, snare, net, rifle, pistol, swivel gun, shotgun 

larger than 10 gauge, punt gun, battery gun, machine gun, fish hook, 

poison, drug, explosive, or stupefying substance;

    (ii) From or by means, aid, or use of a sinkbox or any other type 

of low-floating device having a depression affording the person a means 

of concealment beneath the surface of the water;

    (iii) From or by means, aid, or use of any motor vehicle, motor-

driven land conveyance, or aircraft of any kind, except that 

paraplegics and persons missing one or both legs may take from any 

stationary motor vehicle or stationary motor-driven land conveyance;

    (iv) From or by means of any motorboat or other craft having a 

motor attached, or any sailboat, unless the motor has been completely 

shut off and the sails furled, and its progress therefrom has ceased. A 

craft under power may be used only to retrieve dead or crippled birds; 

however, the craft may not be used under power to shoot any crippled 

birds;

    (v) By the use or aid of live birds as decoys; although not limited 

to, it will be a violation of this paragraph for any person to take 

mid-continent light geese on an area where tame or captive live geese 

are present unless such birds are and have been for a period of 10 

consecutive days before the taking, confined within an enclosure that 

substantially reduces the audibility of their calls and totally 

conceals the birds from the sight of mid-continent light geese;

    (vi) By means or aid of any motor-driven land, water, or air 

conveyance, or any sailboat used for the purpose of or resulting in the 

concentrating, driving, rallying, or stirring up of mid-continent light 

geese;

    (vii) By the aid of baiting, or on or over any baited area. As used 

in this paragraph, ``baiting'' means the placing, exposing, depositing, 

distributing, or scattering of shelled, shucked, or unshucked corn, 

wheat or other grain, salt, or other feed so as to constitute for such 

birds a lure, attraction, or enticement to, on, or over any areas where 

hunters are attempting to take them; and ``baited area'' means any area 

where shelled, shucked, or unshucked corn, wheat, or other grain, salt, 

or other feed capable of luring, attracting, or enticing such birds is 

directly or indirectly placed, exposed, deposited, distributed, or 

scattered; and such area shall remain a baited area for 10 days 

following complete removal of all such



[[Page 71239]]



corn, wheat or other grain, salt, or other feed. However, nothing in 

this paragraph prohibits the taking of mid-continent light geese on or 

over standing crops, flooded standing crops (including aquatics), 

flooded harvested croplands, grain crops properly shucked on the field 

where grown, or grains found scattered solely as the result of normal 

agricultural planting or harvesting; or

    (viii) Participants may not possess shot (either in shotshells or 

as loose shot for muzzleloading) other than steel shot, or bismuth-tin, 

or other shots that are authorized in 50 CFR 20.21(j). Season 

limitations in that section do not apply to participants acting under 

this order.

    (e) Under what conditions would the conservation order be revoked? 

The Service will annually assess the overall impact and effectiveness 

of the conservation order to ensure compatibility with long-term 

conservation of this resource. If at any time we receive evidence that 

clearly demonstrates a serious threat of injury to the area or areas 

involved no longer exists, we will initiate action to revoke the 

conservation order.

    (f) Will information concerning the conservation order be 

collected? The information collection requirements of the conservation 

order have been approved by OMB and assigned clearance number 1018-

0103. 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 recordkeeping and reporting 



requirements imposed under regulations established in this subpart E 

will be used to administer this program, particularly in the assessment 

of impacts alternative regulatory strategies may have on mid-continent 

light geese and other migratory bird populations. The information 

collected will be required to authorize State and Tribal governments 

responsible for migratory bird management to take Mid-continent light 

geese within the guidelines provided by the Service.



    Dated: December 10, 1999.

Stephen C. Saunders,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-32685 Filed 12-17-99; 8:45 am]

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