[Federal Register Volume 73, Number 213 (Monday, November 3, 2008)]
[Rules and Regulations]
[Pages 65274-65277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26153]


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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: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service or ``we'') is 
amending the regulations on resident Canada goose management. This 
final 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: This rule is effective on December 3, 2008.

ADDRESSES: You may view comments received on the proposed rule at 
http://www.regulations.gov or you may inspect them during normal 
business hours at the Service's Division of Migratory Bird Management 
office in room 4107, Arlington Square Building, 4501 N. Fairfax Drive, 
Arlington, Virginia. 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://www.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 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

[[Page 65275]]

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. On August 
6, 2008, we published in the Federal Register (73 FR 45689) a proposed 
rule further seeking to clarify the use of expanded hunting methods 
during special September hunting seasons. The final rule described here 
addresses the comments we received on the August 6 proposed rule and 
amends 50 CFR part 20.

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 Rule

    We became 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 are amending 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 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

    In the August 6, 2008, proposed rule we solicited comments from the 
public. The public comment period ended on September 5, 2008. We 
received one comment. The individual commenter believed that the entire 
migratory bird hunting regulations process was run by those interested 
in profit and that the killing of all migratory birds should be 
eliminated.
    Service Response: Our long-term objectives continue to include 
providing opportunities to harvest portions of certain migratory game 
bird populations and to limit harvests to levels compatible with each 
population's ability to maintain healthy, viable numbers. We annually 
take into account the zones of temperature and the distribution, 
abundance, economic value, breeding habits, and times and lines of 
flight of migratory birds before we establish hunting seasons. We 
believe that all such seasons are compatible with the current status of 
migratory bird populations and long-term population goals. 
Additionally, we are obligated to, and do, give serious consideration 
to all information received as public comment. While there are problems 
inherent with any type of representative management of public-trust 
resources, we believe that the Flyway-Council system of migratory bird 
management has been a longstanding example of State-Federal cooperative 
management since its establishment in 1952. However, as always, we 
continue to seek new ways to streamline and improve the process.

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,

[[Page 65276]]

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 
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 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 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 (UMRA) requires agencies 
to assess the effects of Federal regulatory actions on State, local, 
and tribal governments and the private sector. The purpose of the UMRA 
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 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 final 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

[[Page 65277]]

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.

0
For the reasons stated in the preamble, we amend part 20 of subchapter 
B, chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 20--[AMENDED]

0
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 Pub. L. 
106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.


0
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: October 16, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-26153 Filed 10-31-08; 8:45 am]
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