[Federal Register: June 14, 2001 (Volume 66, Number 115)]
[Rules and Regulations]               
[Page 32264-32267]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Parts 20 and 21

RIN 1018-AI00

Migratory Bird Hunting; Regulations Designed to Reduce the Mid-
Continent Light Goose Population

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: This rule is intended to notify the public of a clarification 
of the expiration date of regulations imposed by Congress to reduce the 
population of mid-continent light geese (MCLG). In this rule we clarify 
the expiration date of special regulations pertaining to hunting 
methods (electronic calls and unplugged shotguns) for taking mid-
continent light geese. We also clarify the expiration date of the 
conservation order for the reduction of the mid-continent light goose 

DATES: This rule takes effect immediately upon publication on June 14, 

ADDRESSES: Copies of the Environmental Assessment are available by 
writing to the Chief, Division of Migratory Bird Management, U.S. Fish 
and Wildlife Service, Dept. of the Interior, ms 634--ARLSQ, 1849 C 
Street NW., Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Jon Andrew, Chief, Division of 
Migratory Bird Management, Dept. 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 MCLG 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) on light goose management 
beginning in 2000. The light goose regulations were subsequently 
challenged in a United States District Court by several 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 light goose management and to preclude further litigation on the 
issue, we published a Notice of Intent to begin immediate preparation 
of the EIS on May 13, 1999 (64 FR 26268). Subsequent to this action, on 
June 17, 1999, we withdrew the regulations promulgated on February 16, 
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. On 
December 20, 1999 (64 FR 71236) we published a final rule that 
reinstated the MCLG regulations in the CFR and stipulated that such 
regulations would remain in effect until May 15, 2001 at the latest. 
However, this stipulation is contrary to the expiration date that 
Congress mandated in the Act.


    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). 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 sub-Arctic 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 and impacts to other species.
    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, 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 (the latest date allowable under the 
Treaty), 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. We concluded the public scoping phase 
of the EIS process on November 22, 1999. We anticipate publication of a 
draft EIS in the summer of 2001.
    On November 10, 1999, Congress passed 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

[[Page 32265]]

biological diversity of the ecosystem upon which many North American 
migratory birds depend''. 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 Fed. Reg. 7507-7517) and the establishment 
of a conservation order for the reduction of mid-continent light 
goose populations (64 Fed. Reg. 7517-7528), shall have the force and 
effect of law.

    The Act instructed the Secretary of the 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. Furthermore, these provisions of the Act are to apply 

the latest [emphasis is ours] 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 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.

    We initiated preparation of an EIS on light goose management on May 
13, 1999 (64 FR 26268). Nine public scoping meetings were held 
throughout the country during September and October, 1999 (64 FR 
47332). We are currently completing an internal review of a draft EIS, 
and expect to release the draft for public comment by June 2001. 
However, we do not expect to publish a final EIS until at least the 
fall of 2001. Therefore, new rules that would implement our proposed 
alternative for controlling light goose populations will not be 
developed until after the fall of 2001. Because the milestones in 
paragraphs (A) and (B) will not be reached prior to May 15, 2001, 
paragraph (C) above is no longer germane. During preparation of our 
December 20, 1999 final rule (64 FR 71236), we mis-interpreted the 
language in the Act pertaining to expiration dates of light goose 
regulations and incorrectly identified May 15, 2001 as the latest of 
the milestones. In fact, May 15, 2001 is the earliest of the 
milestones, and therefore cannot serve as the expiration date of 
special light goose regulations. We note that the House Resources 
Committee report on the bill and some of the floor debate on the 
legislation identified May 15, 2001, as a ``sunset''. However, the law 
does not establish a ``sunset'' date and provides that ``force and 
effect'' will expire when the last of the three triggers occurs. 
Therefore, according to the Act, the light goose regulations shall 
remain in effect until the latest of paragraphs (A) and (B) above. As 
we stated above, that is expected to be some time after the fall of 
2001. Because in the December 20, 1999, final rule (64 FR 71236), we 
had erroneously added an expiration date of May 15, 2001, to the 
effective dates of certain paragraphs in 50 CFR 20.21, 20.22, and 
21.60, those paragraphs have now expired. Through this rule, we are 
adding those paragraphs back to the CFR.

Effective Date

    Under 5 U.S.C. 553(b)(3)(B) and 5 U.S.C. 553 (d)(3), we find good 
cause to take this action without prior notice and public procedure and 
to make this action effective upon publication because, for the 
following reasons, notice and public procedure are unnecessary and 
contrary to the public interest. We are clarifying, in the nature of a 
correction, the effective date of rules that were reinstated as a 
result of a directive contained in law. As we noted in our December 20, 
1999, Federal Register notice (64 FR 71236), the rules with regard to 
light geese were in place previously and were adopted after notice and 
opportunity for public comment. Finally, the law imposing these rules 
requires that they remain effective as is provided herein.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. As this 
rule is not expected to significantly affect energy supplies, 
distribution, or use, this action is not a significant energy action 
and no Statement of Energy Effects is required.

Other Required Determinations

    We published all of the required determinations in the February 16, 
1999, final rules (64 FR 7507; 64 FR 7517).

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 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. 742 a-j; Pub. L. 

    2. Add 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.

    3. Revise Sec. 20.22 to read as follows:

Sec. 20.22  Closed seasons.

    No person shall take migratory game birds during the closed season 
except as provided in part 21.


    4. 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)); 
Pub. L. 106-108.

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

[[Page 32266]]

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, 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, re-opening, 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 
    (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, 
Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 
ms 634--ARLSQ, 1849 C Street NW., Washington, DC 20240.
    (d) What is required in order 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 
    (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 
possesses 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 
    (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 
    (v) By the use or aid of live birds as decoys; although not limited 
to, it shall 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,

[[Page 32267]]

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 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 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 
    (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 utilized 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: June 7, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-15019 Filed 6-13-01; 8:45 am]