[Federal Register Volume 64, Number 243 (Monday, December 20, 1999)]
[Rules and Regulations]
[Pages 71236-71239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32685]



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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

  Federal Register / Vol. 64, No. 243 / Monday, December 20, 1999 / 
Rules and Regulations  

[[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.

-----------------------------------------------------------------------

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,

[[Page 71238]]

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]
BILLING CODE 4310-55-P