[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32778-32780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15338]



[[Page 32777]]

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Part X





Department of the Interior





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Fish and Wildlife Service



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50 CFR Parts 20 and 21



Migratory Bird Hunting: Withdrawal of Regulations Designed To Reduce 
the Mid-Continent Light Goose Population; Final Rule

  Federal Register / Vol. 64, No. 116 / Thursday, June 17, 1999 / Rules 
and Regulations  

[[Page 32778]]


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DEPARTMENT OF THE INTERIOR

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.

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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, 
1999.

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.

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 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 
Impact.
    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/
2002).

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.

Authorship

    The primary author of this final rule is James R. Kelley, Jr., 
Office of Migratory Bird Management.

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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:

PART 20--[AMENDED]

    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.

PART 21--[AMENDED]

    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)).

SUBPART E--[REMOVED]

    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]
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