[Federal Register Volume 73, Number 152 (Wednesday, August 6, 2008)]
[Proposed Rules]
[Pages 45689-45692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18003]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

[FWS-R9-MB-2008-0090; 91200-1231-9BPP-L2]
RIN 1018-AW19


Migratory Bird Hunting; Hunting Methods for Resident Canada Geese

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or ``we'') 
proposes to amend the regulations on resident Canada goose management. 
This proposed rule clarifies the requirements for use of expanded 
hunting methods during special September hunting seasons. One 
requirement in the regulations has been misinterpreted, and we are 
taking this action to make sure that our regulations are clear for the 
States and the public.

DATES: Comments on this proposed rule must be received by September 5, 
2008.

ADDRESSES: You may submit comments on the proposals by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: 1018-XXXX; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).
    You may obtain copies of the Final Environmental Impact Statement 
(FEIS) on resident Canada goose management from the above address or 
from the Division of Migratory Bird Management Web site at http://fws.gov/migratorybirds/issues/cangeese/finaleis.htm.

FOR FURTHER INFORMATION CONTACT: Robert Blohm, Chief, Division of 
Migratory Bird Management, or Ron Kokel (703) 358-1714 (see ADDRESSES).

SUPPLEMENTARY INFORMATION:

Authority and Responsibility

    Migratory birds are protected under four bilateral migratory bird 
treaties the United States entered into with Great Britain (for Canada 
in 1916 as amended in 1999), the United Mexican States (1936 as amended 
in 1972 and 1999), Japan (1972 as amended in 1974), and the Soviet 
Union (1978). Regulations allowing the take of migratory birds are 
authorized by the Migratory Bird Treaty Act (16 U.S.C. 703-711), and 
the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712). The 
Migratory Bird Treaty Act (Act), which implements the above-mentioned 
treaties, provides that, subject to and to carry out the purposes of 
the treaties, the Secretary of the Interior is authorized and directed 
to determine when, to what extent, and by what means allowing hunting, 
killing, and other forms of taking of migratory birds, their nests, and 
eggs is compatible with the conventions. The Act requires the Secretary 
to implement a determination by adopting regulations permitting and 
governing those activities.
    Canada geese are Federally protected by the Act by reason of the 
fact that they are listed as migratory birds in all four treaties. 
Because Canada geese are covered by all four treaties, regulations must 
meet the requirements of the most restrictive of the four. For Canada 
geese, this is the treaty with Canada. All regulations concerning 
resident Canada geese are compatible with its terms, with particular 
reference to Articles VII, V, and II.
    Each treaty not only permits sport hunting, but permits the take of 
migratory birds for other reasons, including scientific, educational, 
propagative, or other specific purposes consistent with the 
conservation principles of the various Conventions. More specifically, 
Article VII, Article II (paragraph 3), and Article V of ``The Protocol 
Between the Government of the United States of America and the 
Government of Canada Amending the 1916 Convention between the United 
Kingdom and the United States of America for the Protection of 
Migratory Birds in Canada and the United States'' provides specific 
limitations on

[[Page 45690]]

allowing the take of migratory birds for reasons other than sport 
hunting. Article VII authorizes permitting the take, kill, etc., of 
migratory birds that, under extraordinary conditions, become seriously 
injurious to agricultural or other interests. Article V relates to the 
taking of nests and eggs, and Article II, paragraph 3, states that, in 
order to ensure the long-term conservation of migratory birds, 
migratory bird populations shall be managed in accord with listed 
conservation principles.
    The other treaties are less restrictive. The treaties with both 
Japan (Article III, paragraph 1, subparagraph (b)) and the Soviet Union 
(Article II, paragraph 1, subparagraph (d)) provide specific exceptions 
to migratory bird take prohibitions for the purpose of protecting 
persons and property. The treaty with Mexico requires, with regard to 
migratory game birds, only that there be a ``closed season'' on hunting 
and that hunting be limited to 4 months in each year.
    Regulations governing the issuance of permits to take, capture, 
kill, possess, and transport migratory birds are promulgated in title 
50, Code of Federal Regulations (CFR), parts 13 and 21, and issued by 
the Service. The Service annually promulgates regulations governing the 
take, possession, and transportation of migratory birds under sport 
hunting seasons in 50 CFR part 20.

Background

    On August 10, 2006, we published in the Federal Register (71 FR 
45964), a final rule establishing regulations in 50 CFR parts 20 and 21 
authorizing State wildlife agencies, private landowners, and airports 
to conduct (or allow) indirect and/or direct population control 
management activities, including the take of birds, on resident Canada 
goose populations. On August 20, 2007, we published in the Federal 
Register (72 FR 46403), a final rule that clarified and slightly 
modified several program requirements in 50 CFR parts 20 and 21 
regarding eligibility, definitions, methodologies, and dates. This 
proposed rule further seeks to clarify the use of expanded hunting 
methods during special September hunting seasons.

Expanded Hunting Methods During September Special Seasons

    One of the components in the resident Canada goose management 
program is to provide expanded hunting methods and opportunities to 
increase the sport harvest of resident Canada geese above that which 
results from existing September special Canada goose seasons. The 
regulatory changes in Sec.  20.21(b) and (g) codified in the August 10, 
2006, and August 20, 2007, final rules provide State wildlife 
management agencies and Tribal entities the option of authorizing the 
use of unplugged shotguns (paragraph (b)) and electronic calls 
(paragraph (g)) during the first portion of existing, operational 
September Canada goose seasons (i.e., September 1-15, Sec.  
20.21(b)(2)(i) and Sec.  20.21(g)(2)(i)). The final rules also stated 
that utilization of these additional hunting methods during any new 
special seasons or other existing, operational special seasons (i.e., 
September 16-30, Sec.  20.21(b)(2)(ii) and Sec.  20.21(g)(2)(ii)) can 
be approved by the Service and require demonstration of a minimal 
impact to migrant Canada goose populations. Further, we will authorize 
these seasons (i.e., those after September 15) on a case-by-case basis 
through the normal migratory bird hunting regulatory process.
    All of these expanded hunting methods and opportunities must be 
conducted outside of any other open waterfowl season (i.e., when all 
other waterfowl and crane hunting seasons are closed). Thus, any State 
listed in Sec.  20.21(b)(2) and (g)(2) may select the use of these 
expanded hunting methods during September 1-15 without annual Service 
approval, and during September 16-30 with annual Service approval.

This Proposed Rule

    We have become aware of concerns that, as written, the regulations 
in Sec.  20.21(b)(2) and (g)(2) do not require annual promulgation in 
the Federal Register of a State's decision to use these expanded 
hunting methods during the period September 1-15. Language in Sec.  
20.21(b)(2)(ii) and (g)(2)(ii) requires that any decision by the States 
to use these expanded hunting methods during the period of September 
16-20 be incorporated in the annual migratory bird hunting regulations. 
The result is that the States are required to notify us of their 
decision. Because this same language does not appear in Sec.  
20.21(b)(2)(i) and (g)(2)(i), the existing regulations could be 
interpreted as requiring notification by a State only for the period 
September 16-20 and not for the period September 1-15. We codify all 
the other season dates, daily bag limits, area restrictions, shooting 
hours, etc., annually in late August, so this interpretation of the 
regulations was clearly not our intention.
    Therefore, we propose to amend Sec.  20.21(b)(2)(i) and (g)(2)(i) 
by adding the phrase ``when approved in the annual regulatory schedule 
in subpart K of this part'' to expressly require States to inform us of 
their annual selections on the use of these expanded hunting methods 
during the period of September 1-15. This is the same language that 
currently exists in Sec.  20.21(b)(2)(ii) and (g)(2)(ii) that requires 
such notification by the States for the period September 16-30. As a 
result of these proposed amendments, all State selections, or 
nonselections, of these expanded hunting methods during September would 
require publication in the annual regulatory schedule in subpart K of 
part 20.

Public Comments Solicited

    The Department of the Interior's policy is, whenever practicable, 
to afford the public an opportunity to participate in the rulemaking 
process. Accordingly, we invite interested persons to submit written 
comments, suggestions, or recommendations regarding the proposed 
regulations. Before promulgation of a final regulation, we will take 
into consideration all comments received. Such comments, and any 
additional information received, may lead to final regulations that 
differ from these proposals.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. We will not accept anonymous comments; your 
comment must include your first and last name, city, State, country, 
and postal (zip) code. Finally, we will not consider hand-delivered 
comments that we do not receive, or mailed comments that are not 
postmarked, by the date specified in the DATES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in addition to the required items 
specified in the previous paragraph, such as your street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Division of Migratory Bird Management, Room 4107, 
4501 North Fairfax Drive, Arlington, VA 22203.

[[Page 45691]]

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 published the availability of a Draft Environmental 
Impact Statement (DEIS) on March 7, 2002 (67 FR 10431), followed by a 
91-day comment period. We subsequently reopened the comment period for 
60 additional days (68 FR 50546, August 21, 2003). On November 18, 
2005, both the Service and the Environmental Protection Agency 
published notices of availability for the FEIS in the Federal Register 
(70 FR 69966 and 70 FR 69985). On August 10, 2006, we published our 
Record of Decision (ROD) in the Federal Register (71 FR 45964). The 
FEIS is available to the public (see ADDRESSES). The proposed changes 
to the resident Canada goose regulations fall within the scope of the 
FEIS.

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 and with the assistance of the Secretary, 
insure that any action authorized, funded, or carried out * * * is not 
likely to jeopardize the continued existence of any endangered species 
or threatened species or result in the destruction or adverse 
modification of [critical] habitat * * *.'' We completed a biological 
evaluation and informal consultation (both available upon request; see 
ADDRESSES) under Section 7 of the ESA for the action described in the 
August 10 final rule. In the letter of concurrence between the Division 
of Migratory Bird Management and the Division of Endangered Species, we 
concluded that the inclusion of specific conservation measures in the 
final rule satisfied concerns about certain species and that the action 
was not likely to adversely affect any threatened, endangered, or 
candidate species. This proposed change falls within the scope of that 
informal consultation.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires the preparation of flexibility analyses for actions that will 
have a significant economic impact on a substantial number of small 
entities, which includes small businesses, organizations, or 
governmental jurisdictions. We discussed these impacts in the August 10 
final rule. For the reasons detailed in that rule, we have determined 
that a Regulatory Flexibility Act analysis is not required.

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has reviewed this rule under Executive 
Order 12866. OMB bases its determination upon the following four 
criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not have an 
annual effect on the economy of $100 million or more; nor will it cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions. It will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Paperwork Reduction Act and Information Collection

    This proposed rule does not contain any new information collection 
or recordkeeping requirements subject to the Paperwork Reduction Act of 
1995 (44 U.S.C. 3507(d). OMB has approved and assigned control number 
1018-0133, which expires on 08/31/2009, to the regulations concerning 
the control and management of resident Canada geese.
    We may not conduct or sponsor and you are not required to respond 
to a collection of information unless it displays a currently valid OMB 
control number.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
assess the effects of Federal regulatory actions on State, local, and 
tribal governments and the private sector. The purpose of the act is to 
strengthen the partnership between the Federal Government and State, 
local, and tribal governments and to end the imposition, in the absence 
of full consideration by Congress, of Federal mandates on these 
governments without adequate Federal funding, in a manner that may 
displace other essential governmental priorities. We have determined, 
in compliance with the requirements of the Unfunded Mandates Reform 
Act, 2 U.S.C. 1502 et seq., that this action will not ``significantly 
or uniquely'' affect small governments, and will not produce a Federal 
mandate of $100 million or more in any given year on local or State 
government or private entities. Therefore, this action is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

Civil Justice Reform--Executive Order 12988

    We have determined that these regulations meet the applicable 
standards provided in Sections 3(a) and 3(b)(2) of Executive Order 
12988. 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 action, authorized 
by the Migratory Bird Treaty Act, does not have significant takings 
implications and does not affect any constitutionally protected 
property rights. This action will not result in the physical occupancy 
of property, the physical invasion of property, or the regulatory 
taking of any property. In fact, this action will help alleviate 
private and public property damage and concerns related to public 
health and safety and allow the exercise of otherwise unavailable 
privileges.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given statutory responsibility over these 
species by the Migratory Bird Treaty Act. While legally this 
responsibility rests solely with the Federal Government, it is in the 
best interest of the migratory bird resource

[[Page 45692]]

for us to work cooperatively with the Flyway Councils and States to 
develop and implement the various migratory bird management plans and 
strategies.
    The August 10 final rule and this proposed rule were developed 
following extensive input from the Flyway Councils, States, and 
Wildlife Services. Individual Flyway management plans were developed 
and approved by the four Flyway Councils, and States actively 
participated in the scoping process for the DEIS. This rule does 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. The rule allows States the latitude to 
develop and implement their own resident Canada goose management action 
plan within the frameworks of the selected alternative. Therefore, in 
accordance with Executive Order 13132, this rule does not have 
significant federalism effects and does 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), Executive Order 13175, and 512 DM 2, we 
have determined that this rule has no effects on Federally-recognized 
Indian tribes.

Energy Effects--Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not a 
significant regulatory action under Executive Order 12866 and is not 
expected to adversely affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    For the reasons stated in the preamble, we hereby propose to amend 
part 20 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 continues to read as follows:

    Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 
703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Public Law 
106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

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


Sec.  20.21  What hunting methods are illegal?

* * * * *
    (b) * * *
    (2) A Canada goose only season when all other waterfowl and crane 
hunting seasons, excluding falconry, are closed in the Atlantic, 
Central, and Mississippi Flyway portions of Alabama, Arkansas, 
Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, 
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, 
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New 
Hampshire, New Mexico, New Jersey, New York, North Carolina, North 
Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, 
South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, 
Wisconsin, and Wyoming, as set forth below:
    (i) During the period of September 1 to September 15, when approved 
in the annual regulatory schedule in subpart K of this part; and
    (ii) During the period of September 16 to September 30, when 
approved in the annual regulatory schedule in subpart K of this part.
* * * * *
    (g) * * *
    (2) A Canada goose only season when all other waterfowl and crane 
hunting seasons, excluding falconry, are closed in the Atlantic, 
Central, and Mississippi Flyway portions of Alabama, Arkansas, 
Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, 
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, 
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New 
Hampshire, New Mexico, New Jersey, New York, North Carolina, North 
Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, 
South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, 
Wisconsin, and Wyoming, as set forth below:
    (i) During the period of September 1 to September 15, when approved 
in the annual regulatory schedule in subpart K of this part; and
    (ii) During the period of September 16 to September 30, when 
approved in the annual regulatory schedule in subpart K of this part.
* * * * *

    Dated: July 23, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-18003 Filed 8-5-08; 8:45 am]
BILLING CODE 4310-55-P