[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]
[[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
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.
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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,
[[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]
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