[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Rules and Regulations]
[Pages 32778-32780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15338]
[[Page 32777]]
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Part X
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Parts 20 and 21
Migratory Bird Hunting: Withdrawal of Regulations Designed To Reduce
the Mid-Continent Light Goose Population; Final Rule
Federal Register / Vol. 64, No. 116 / Thursday, June 17, 1999 / Rules
and Regulations
[[Page 32778]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 20 and 21
RIN 1018-AF05
Migratory Bird Hunting; Withdrawal of Regulations Designed To
Reduce the Mid-Continent Light Goose Population
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final Rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or ``we'') is
withdrawing the regulations that authorized the use of additional
hunting methods (electronic calls and unplugged shotguns) to increase
take of mid-continent light geese. We are also withdrawing the
regulation that established a conservation order for the reduction of
mid-continent light goose populations.
DATES: This rule takes effect immediately upon publication on June 17,
1999.
ADDRESSES: Copies of the EA are available by writing to the Chief,
Office of Migratory Bird Management, U.S. Fish and Wildlife Service,
Department of the Interior, ms 634--ARLSQ, 1849 C Street NW.,
Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Jon Andrew, (703) 358-1714.
SUPPLEMENTARY INFORMATION: Because high populations of Mid-continent
light geese (MCLG), are leading to the habitat destruction described
below, we believe that management action is necessary. In fact, we
promulgated regulations on February 16, 1999, (64 FR 7507; 64 FR 7517)
that authorized additional methods of take of light geese and
established a conservation order for the reduction of the MLGP. In
issuing those regulations, we indicated that we would initiate
preparation of an Environmental Impact Statement (EIS) beginning in
2000 to consider the effects on the human environment of a range of
long-term resolutions for the MCLG population problem. Those
regulations were subsequently challenged in a United States District
Court by the Humane Society of the United States (HSUS) and other
groups. Though the judge refused to preliminarily enjoin the program,
he did indicate a likelihood that the plaintiffs might prevail on the
EIS issue when the lawsuit proceeded. In light of our earlier
commitment to prepare an EIS on the larger, long-term program and to
preclude further litigation on the issue, we have decided to withdraw
the regulations and to begin preparation of the EIS now.
Background
Lesser snow (Anser caerulescens caerulescens) and Ross' (Anser
rossii) geese that primarily migrate through the Mississippi and
Central Flyways are collectively referred to as Mid-continent light
geese (MCLG). They are referred to as ``light'' geese due to the light
coloration of the white-phase plumage form, as opposed to ``dark''
geese such as the white-fronted or Canada goose. We include both
plumage forms of lesser snow geese (white, or ``snow'' and dark, or
``blue'') under the designation light geese. MCLG breed in the central
and eastern arctic and subarctic regions of northern Canada. The total
MCLG population is experiencing a high population growth rate and has
become seriously injurious to its arctic and subarctic breeding grounds
through the feeding actions of geese. Our management goal is to reduce
the MCLG population by 50% by the year 2005 in order to prevent further
habitat degradation.
We have attempted to curb the growth of the total MCLG population
by increasing bag and possession limits and extending the open hunting
season length for light geese to 107 days, the maximum allowed by the
Migratory Bird Treaty. However, due to the rapid rise in the MCLG
population, low hunter success, and low hunter interest, harvest rate
(the percentage of the population that is harvested) has declined
despite evidence that the actual number of geese harvested has
increased (USFWS 1997b). The decline in harvest rate indicates that the
current management strategies are not sufficient to stabilize or reduce
the population growth rate.
On February 16, 1999, we published rules that: (1) authorized
additional methods of take of MCLG (electronic calls and unplugged
shotguns; 64 FR 7507); and (2) created a conservation order for the
reduction of the MCLG population (64 FR 7517). These actions were
designed to reduce the population of MCLG over a period of several
years in order to bring the population to a level that their breeding
habitat can support. We prepared an Environmental Assessment (EA) in
support of this program, which resulted in a Finding of No Significant
Impact.
On February 25, 1999, the HSUS and other groups filed a complaint
in the District Court for the District of Columbia seeking an
injunction against these regulations. On March 2, 1999, the plaintiffs
filed a motion for a preliminary injunction against the two rules cited
above. The lawsuit alleged that we had implemented the rules without
adequate scientific evidence that MCLG were causing habitat
destruction, that we did not have the authority under the Migratory
Bird Treaty to allow take of MCLG after March 10, and that an
Environmental Impact Statement (EIS) should have been prepared prior to
implementation of the rules. Although the judge refused to issue an
injunction, he did indicate a likelihood that plaintiffs might succeed
on their argument that an EIS should have been prepared. In order to
avoid further litigation, and because we had earlier indicated we would
begin preparing in the year 2000 an EIS on the larger, long-term
program, we have decided to withdraw the regulations and begin
preparation of that EIS now.
Effective Date
Under 5 U.S.C. 553 (b)(3)(B), we find that the notice required by
Sec. 553 (b) does not apply to this rule withdrawal because, for the
following reasons, it is unnecessary and not in the public interest. We
are reinstating rules with regard to light geese that have been in
place and implemented for many years and which were adopted after
notice and opportunity for public comment. In addition, the Service is
preparing an EIS that will address all of the larger, long-term issues
for light goose management, including take regulations, which will
involve significant opportunities for public involvement and comment.
Any regulations that may result from the EIS process would be adopted
only after notice and opportunity for public comment. Finally, it is in
the public interest because withdrawal of the regulations will allow us
to conclude the litigation initiated by the HSUS and avoid in-season
problems. Although the judge in that case did not preliminarily enjoin
the new regulations, he did indicate that a decision on the merits
might find them procedurally deficient. If that were to occur during
the 1999-2000 hunting season, States and their licensed hunters would
experience significant confusion and enforcement and administrative
problems. In addition, under 5 U.S.C. 553 (d), for the above reasons,
we find that good cause exists to put this rule into effect immediately
upon publication.
NEPA Considerations
In compliance with the requirements of section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the
Council on Environmental Quality's regulation for implementing NEPA (40
CFR 1500-1508), we prepared an Environmental Assessment in January
1999. This EA is available to the public at the location
[[Page 32779]]
indicated under the ADDRESSES caption. We will initiate the preparation
of an EIS to consider the effects on the human environment of a range
of alternatives for management of the MCLG population. A Notice of
Intent to prepare the EIS was published in the Federal Register on May
13, 1999 (64 FR 26268).
Endangered Species Act Consideration
Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16
U.S.C. 1531-1543; 87 Stat. 884) provides that ``Each Federal agency
shall, in consultation with the Secretary, insure that any action
authorized, funded, or carried out . . . is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of (critical) habitat
. . .'' We completed a Section 7 consultation under the ESA for the
rules that are being withdrawn. Withdrawal of the rules will not affect
any threatened, endangered, proposed or candidate species. The result
of our consultation under Section 7 of the ESA is available to the
public at the location indicated under the ADDRESSES caption.
Regulatory Flexibility Act
The economic impacts of this rulemaking will fall primarily on
small businesses because of the structure of the waterfowl hunting
related industries. The Regulatory Flexibility Act of 1980 (5 U.S.C.
601 et seq.) requires the preparation of flexibility analyses for rules
that will have a significant effect on a substantial number of small
entities. Data are not available to estimate the number of small
entities affected, but it is unlikely to be a substantial number on a
national scale. We estimated that implementation of these regulations
would have reduced the risk of light-goose season closures in the
Central and Mississippi Flyways, subsequently avoiding a $70 million
loss in output and reducing the possibility of increased agricultural
loss. We estimated that special MCLG population control efforts would
have created additional take opportunities that were expected to add
$18 million in output to local economies. We have determined that a
Regulatory Flexibility Act Analysis is not required.
Executive Order 12866
This rule was not subject to review by the Office of Management and
Budget under E.O. 12866. E.O. 12866 requires each agency to write
regulations that are easy to understand. The Service invites comments
on how to make this rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the rule
clearly stated? (2) Does the rule contain technical language or jargon
that interferes with its clarity? (3) Does the format of the rule
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Would the rule be easier to understand
if it were divided into more (but shorter) sections? (5) Is the
description of the rule in the ``Supplementary Information'' section of
the preamble helpful in understanding the rule? What else could the
Service do to make the rule easier to understand?
Congressional Review
This is not a major rule under the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801-808), this rule has been
submitted to Congress. Because this rule deals with our migratory bird
hunting program, this rule qualifies for an exemption under 5 U.S.C.
808(1); therefore, the Department determines that this rule shall take
effect immediately.
Paperwork Reduction Act and Information Collection
This regulation does not require any information collection for
which OMB approval is required under the Paperwork Reduction Act.
Information collection for any light goose harvest that occurred prior
to the withdrawal of these regulations is covered by an existing OMB
approval number. Agencies may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number. The OMB approved the
information collection of the conservation order prior to withdrawal of
the regulation and assigned clearance number 1018-0103 (expires 01/31/
2002).
Unfunded Mandates
We have determined and certify, in compliance with the requirements
of the Unfunded Mandates Act (2 U.S.C. 1502 et seq.), that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State government or private entities. This rule will
not ``significantly or uniquely'' affect small governments. No
governments below the State level will be affected by this rule. A
Small Government Agency Plan is not required. This rule will not
produce a Federal mandate of $100 million or greater in any year, i.e.,
it is not a ``significant regulatory action'' under Unfunded Mandates.
Civil Justice Reform--Executive Order 12988
The Department, in promulgating this rule, has determined that
these regulations meet the applicable standards provided in Sections
3(a) and 3(b)(2) of Executive Order 12988. This rule has been reviewed
by the Office of the Solicitor. Specifically, this rule has been
reviewed to eliminate errors and ambiguity, has been written to
minimize litigation, provides a clear legal standard for affected
conduct, and specifies in clear language the effect on existing Federal
law or regulation. We do not anticipate that this rule will require any
additional involvement of the justice system beyond enforcement of
provisions of the Migratory Bird Treaty Act of 1918 that have already
been implemented through previous rulemakings.
Takings Implication Assessment
In accordance with Executive Order 12630, this rule, authorized by
the Migratory Bird Treaty Act, does not have significant takings
implications and does not affect any constitutionally protected
property rights. The rule will not result in the physical occupancy of
property, the physical invasion of property, or the regulatory taking
of any property.
Federalism Effects
Due to the migratory nature of certain species of birds, the
Federal government has been given responsibility over these species by
the Migratory Bird Treaty Act. These rules do not have a substantial
direct effect on fiscal capacity, change the roles or responsibilities
of Federal or State governments, or intrude on State policy or
administration. Therefore, in accordance with Executive Order 12612,
these regulations do not have significant federalism effects and do not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible
effects on Federally recognized Indian Tribes and have determined that
there are no effects.
Authorship
The primary author of this final rule is James R. Kelley, Jr.,
Office of Migratory Bird Management.
[[Page 32780]]
List of Subjects in 50 CFR Parts 20 and 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
For the reasons stated in the preamble, we hereby amend parts 20
and 21, of the subchapter B, chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
PART 20--[AMENDED]
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703-712; and 16 U.S.C 742a-j.
2. Revise paragraphs (b) and (g) of Sec. 20.21 Hunting methods to
read as follows:
Sec. 20.21 Hunting methods
* * * * *
(b) With a shotgun of any description capable of holding more than
three shells, unless it is plugged with a one-piece filler, incapable
of removal without disassembling the gun, so its total capacity does
not exceed three shells;
* * * * *
(g) By the use or aid of recorded or electrically amplified bird
calls or sounds, or recorded or electrically amplified imitations of
bird calls or sounds;
* * * * *
3. Revise Sec. 20.22 Closed seasons to read as follows:
Sec. 20.22 Closed seasons
No person shall take migratory game birds during the closed season.
PART 21--[AMENDED]
1. The authority citation for part 21 continues to read as follows:
Authority: Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)).
SUBPART E--[REMOVED]
2. Remove Subpart E, consisting of Sec. 21.60.
Dated: June 3, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-15338 Filed 6-16-99; 8:45 am]
BILLING CODE 4310-55-P
