-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Parts 20 and 21
Migratory Bird Hunting and Permits; Regulations for Managing Resident Canada
Goose Populations; Final Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule and notice of record of decision.
-----------------------------------------------------------------------
SUMMARY: In recent years, the numbers of Canada geese that nest and/or reside
predominantly within the conterminous United States (resident
Canada geese) have undergone dramatic growth to levels that are increasingly
coming into conflict with people and human activities and causing personal and
public property damage, as well as public health concerns, in many parts of
the country. In February 2002, the U.S. Fish and Wildlife Service (Service or
``we'') completed a Draft Environmental Impact Statement (DEIS) on resident
Canada goose management. In August 2003, we published a proposed rule to establish
regulations to implement the DEIS proposed action, Alternative F. In November
2005, the notice of availability for a Final Environmental Impact Statement
(FEIS) was published, followed by a 30-day public review period. This final
rule sets forth regulations for implementing the FEIS preferred alternative,
Alternative F, which would authorize 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. The Record of Decision (ROD) is also published here.
DATES: This final rule will go into effect on September 11, 2006.
........................
Background
In recent years, numbers of Canada geese that nest and/or reside predominantly
within the conterminous United States (resident Canada geese) have undergone
dramatic growth to levels that are increasingly coming into conflict with people
and causing personal and public property damage. We believe that resident Canada
goose populations must be reduced, more effectively managed, and controlled
to reduce goose-related damages. This rule would establish a new regulation
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. The intent
of this rule is to allow State wildlife management agencies and the affected
public sufficient flexibility to deal with problems caused by resident Canada
geese and guide and direct resident Canada goose population growth and management
activities in the conterminous United States when traditional and otherwise
authorized management measures are unsuccessful in preventing injury to property,
agricultural crops, public health, and other interests.
.....................
Sec. 21.52 Public health control order for resident Canada geese.
(a) Which Canada geese are covered by this order? This regulation addresses
the control and management of resident Canada geese, as
defined in Sec. 21.3.
(b) What is the public health control order for resident Canada geese, and what
is its purpose? The public health control order for resident Canada geese authorizes
States, Tribes, and the District of Columbia, via the State or Tribal wildlife
agency, to conduct resident Canada goose control and management activities including
direct control strategies such as trapping and relocation, nest and egg destruction,
gosling and adult trapping and culling programs, or other lethal and non-lethal
wildlife damage-management strategies when resident Canada geese are posing
a direct threat to human health.
(c) What is a direct threat to human health? A direct threat to human health
is one where a Federal, State, Tribal, or local public health agency has determined
that resident Canada geese pose a specific, immediate human health threat by
creating conditions conducive to the transmission of human or zoonotic pathogens.
The State or Tribe may not use this control order for situations in which resident
Canada geese are merely causing a nuisance.
(d) Who may participate in the program? Only State and Tribal wildlife agencies
in the lower 48 States and the District of Columbia (or their employees or agents)
may conduct and implement the various components of the public health control
order for resident Canada geese.
(e) What are the restrictions of the public health depredation order for resident
Canada geese? The public health control order for resident Canada geese is subject
to the following restrictions:
(1) Authorized State and Tribal wildlife agencies should use nonlethal goose
management tools to the extent they deem appropriate.
(2)(i) Methods of take for the control of resident Canada geese are at the State's
and Tribe's discretion from among the following:
(A) Egg oiling,
(B) Egg and nest destruction,
(C) Shotguns,
(D) Lethal and live traps,
(E) Nets,
(F) Registered animal drugs, pesticides, and repellants,
(G) Cervical dislocation, and
(H) CO2 asphyxiation.
(ii) Birds caught live may be euthanized or transported and relocated to another
site approved by the State or Tribal wildlife agency, if required.
(iii) All techniques used must be in accordance with other Federal, State, Tribal,
and local laws, and their use must comply with any labeling restrictions.
(iv) Persons using shotguns must use nontoxic shot, as listed in Sec. 20.21(j)
of this subchapter.
(v) Persons using egg oiling must use 100 percent corn oil, a substance exempted
from regulation by the U.S. Environmental Protection Agency under the Federal
Insecticide, Fungicide, and Rodenticide Act.
(3) Authorized State and Tribal wildlife agencies and their employees and agents
may conduct management and control activities, involving the take of resident
Canada geese, under this section between April 1 and August 31. The destruction
of resident Canada goose nests and eggs may take place between March 1 and June
30.
(4) Authorized State and Tribal wildlife agencies and their employees and agents
may possess, transport, and otherwise dispose of resident Canada geese taken
under this section. Disposal of birds taken under this order may be by donation
to public museums or public institutions for scientific or educational purposes,
processing for human consumption and subsequent distribution free of charge
to charitable organizations, or burial or incineration. States, their employees,
and designated agents may not sell, offer for sale, barter, or ship for the
purpose of sale or barter any resident Canada geese taken under this section,
nor their plumage or eggs. Any specimens needed for scientific purposes as determined
by the Regional Director
must not be destroyed, and information on birds carrying metal leg bands must
be submitted to the Bird Banding Laboratory by means of a toll-free telephone
number at 1-800-327-BAND (or 2263).
(5) Resident Canada geese may be taken only within the specified area of the
direct threat to human health.
(6) Authorized State and Tribal wildlife agencies, and their employees and agents
operating under the provisions of this section may not use decoys, calls, or
other devices to lure birds within gun range.
(7) No person conducting activities under this section should construe the program
as authorizing the killing of resident Canada geese or destruction of their
nests and eggs contrary to any State law or regulation, nor may any control
activities be conducted on any Federal land without specific authorization by
the responsible management agency. No person may exercise the privileges granted
under this section unless they possess any permits required for such activities
by any State or Federal land manager.
(8) Any State or Tribal employee or designated agent authorized to carry out
activities under this section must have a copy of the State's or Tribal authorization
and designation in their possession when carrying out any activities. If the
State or Tribe is conducting operations on private property, the State or Tribe
must also require the property owner or occupant on whose premises resident
Canada goose activities are being conducted to allow, at all reasonable times,
including during actual operations, free and unrestricted access to any Service
special agent or refuge officer, State or Tribal wildlife or deputy wildlife
agent, warden, protector, or other wildlife law enforcement officer on the premises
where they are, or were, conducting
activities. Furthermore, any State or Tribal employee or designated agent conducting
such activities must promptly furnish whatever information is required concerning
such activities to any such wildlife officer.
(9) States and Tribes exercising the privileges granted by this section must
submit an annual report summarizing activities, including the numbers and County
of birds taken, by December 31 of each year to the Regional Migratory Bird Permit
Office listed in Sec. 2.2 of this subchapter.
(10) Authorized State and Tribal wildlife agencies may not undertake any actions
under this section if the activities adversely affect other migratory birds
or species designated as endangered or threatened under the authority of the
Endangered Species Act. Persons operating under this order must immediately
report the take of any species protected under the Endangered Species Act to
the Service. Further, to protect certain species from being adversely affected
by management actions, State and Tribal wildlife agencies must:
(i) Follow the Federal-State Contingency Plan for the whooping crane;
(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi
sandhill crane nest;
(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management
guidelines for all management activities;
(iv) Contact the Arizona Fish and Wildlife Service Ecological Services Office
(for the Colorado River and Arizona sites) or the Carlsbad Fish and Wildlife
Office (for Salton Sea sites) if control activities are proposed in or around
occupied habitats (cattail or cattail bulrush marshes) to discuss the proposed
activity and ensure that implementation will not adversely affect clapper rails
or their habitats; and
(v) In California, any control activities of resident Canada geese in areas
used by the following species listed under the Endangered Species Act must be
done in coordination with the appropriate local FWS field office and in accordance
with standard local operating procedures for avoiding adverse effects to the
species or its critical habitat:
(A) Birds: Light-footed clapper rail, California clapper rail, Yuma clapper
rail, California least tern, southwestern willow flycatcher, least Bell's vireo,
western snowy plover, California gnatcatcher.
(B) Amphibians: California red-legged frog and California tiger salamander.
(C) Insects: Valley elderberry longhorn beetle and delta green ground beetle.
(D) Crustaceans: Vernal pool fairy shrimp, conservancy fairy shrimp, longhorn
fairy shrimp, vernal pool tadpole shrimp, San Diego fairy shrimp, and Riverside
fairy shrimp.
(E) Plants: Butte County meadowfoam, large-flowered wooly meadowfoam, Cook's
lomatium, Contra Costa goldfields, Hoover's spurge, fleshy owl's clover, Colusa
grass, hairy Orcutt grass, Solano grass, Greene's tuctoria, Sacramento Valley
Orcutt grass, San Joaquin Valley Orcutt grass, slender Orcutt grass, California
Orcutt grass, spreading navarretia, and San Jacinto Valley crownscale.
(f) Can the control order be suspended? We reserve the right to suspend or revoke
a State's or Tribe's authority under this program if we find that the terms
and conditions specified in the depredation order have not been adhered to by
that agency. Final decisions to revoke authority will be made by the appropriate
Regional Director. The criteria and procedures for suspension, revocation, reconsideration,
and appeal are outlined in Sec. Sec. 13.27 through 13.29 of this subchapter.
For the purposes of this section, "issuing officer" means the Regional
Director and "permit" means the authority to act under this control
order. For purposes of Sec. 13.29(e), appeals must be made to the Director.
Additionally, at such time that we determine that
resident Canada geese populations no longer pose direct threats to human health,
we may choose to terminate part or all of the control
order by subsequent regulation. In all cases, we will annually review the necessity
and effectiveness of the control order.
11. Add Sec. 21.61 to subpart E to read as follows:
Sec. 21.61 Population control of resident Canada geese.
(a) Which Canada geese are covered by this regulation? This regulation addresses
the population control of resident Canada geese, as defined in Sec. 21.3.
(b) What is the resident Canada goose population control program, and what is
its purpose? The resident Canada goose population control program is a managed
take program implemented under the authority of the Migratory Bird Treaty Act
to reduce and stabilize resident Canada goose populations when traditional and
otherwise authorized management measures are unsuccessful, not feasible for
dealing with, or applicable, in preventing injury to property, agricultural
crops, public health, and other interests from resident Canada geese. The Director
is authorized to allow States and Tribes to implement a population control,
or managed take, program to remedy these injuries. When authorized by the Director,
managed take allows additional methods of taking resident Canada geese, allows
shooting hours for resident Canada geese to extend to one-half hour after sunset,
and removes daily
bag limits for resident Canada geese inside or outside the migratory bird hunting
season frameworks as described in this section. The intent of the program is
to reduce resident Canada goose populations in order to protect personal property
and agricultural crops and other interests from injury and to resolve potential
concerns about human health. The management and control activities allowed or
conducted under the program are intended to relieve or prevent damage and injurious
situations. No person should construe this program as opening, reopening, or
extending any hunting season contrary to any regulations established under section
3 of the Migratory Bird Treaty Act.
(c) What areas are eligible to participate in the program? When approved by
the Director, the State and Tribal wildlife agencies 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 Jersey, New Mexico, New York,
North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South
Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia,
Wisconsin, and Wyoming may implement the resident Canada goose population control
program components in the Atlantic, Central, and Mississippi Flyway portions
of these States.
(d) What is required in order for State governments to participate in a managed
take program? Following the conclusion of the first full operational year of
Sec. Sec. 21.49 through 21.52 of this part, any wildlife agency from a State
listed in 21.61(c) may request approval for the population control program.
A request must include a discussion of the State's or Tribe's efforts to address
its injurious situations utilizing the methods approved in this rule or a discussion
of the reasons why the methods authorized by these rules are not feasible for
dealing with, or applicable to, the injurious situations that require further
action. Discussions should be detailed and provide the Service with a clear
understanding of the injuries that continue, why the
authorized methods utilized have not worked, and why methods not utilized could
not effectuate resolution of the injuries. A State's request for approval may
be for an area or areas smaller than the entire State. Upon written approval
by the Director, 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, resident Canada geese under the following conditions:
(1) Activities conducted under the managed take program may not affect endangered
or threatened species as designated under the Endangered Species Act.
(2) Control activities may be conducted under this section only between August
1 and August 30.
(3) 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.
(4) Nothing in the program may limit or initiate management actions on Federal
land without concurrence of the Federal agency with jurisdiction.
(5) States and Tribes must designate participants who must operate under the
conditions of the managed take program.
(6) States and Tribes must inform participants of the requirements/conditions
of the program that apply.
(7) States and Tribes must keep annual records of activities carried out under
the authority of the program. Specifically, information must be collected on:
(i) The number of individuals participating in the program;
(ii) The number of days individuals participated in the program;
(iii) The total number of resident Canada geese shot and retrieved during the
program; and
(iv) The number of resident Canada geese shot but not retrieved. The States
and Tribes must submit an annual report summarizing activities conducted under
the program and an assessment of the continuation of the injuries on or before
June 1 of each year to the Chief, Division of Migratory Bird Management, 4401
North Fairfax Drive, ms-MBSP-4107, Arlington, Virginia 22203.
(e) What is required for individuals to participate in the program?
Individual participants in State and Tribal programs covered by the managed
take program must comply with the following requirements:
(1) Participants must comply with all applicable State and Tribal laws or regulations
including possession of whatever permit(s) or other authorization(s) may be
required by the State or Tribal government concerned.
(2) Participants who take resident Canada geese under the program may not sell
or offer for sale those birds or their plumage, but may possess, transport,
and otherwise properly use them.
(3) Participants must permit at all reasonable times, including during actual
operations, any Service special agent or refuge officer, State or Tribal wildlife
or deputy wildlife agent, warden, protector, or other wildlife 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 may take resident Canada 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 paraplegic persons 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 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. No person may take resident Canada
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 resident Canada 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 resident Canada geese.
(vii) By the aid of baiting, or on or over any baited area, where a person knows
or reasonably should know that the area is or has been baited as described in
Sec. 20.11(j) and (k) of this part. Resident Canada geese may not be taken on
or over lands or areas that are baited areas, and where grain or other feed
has been distributed or scattered solely as the result of manipulation of an
agricultural crop or other feed on the land where grown, or solely as the result
of a normal agricultural operation as described in Sec. 20.11(h) and (l) of
this part. However, nothing in this paragraph prohibits the taking of resident
Canada geese on or over the following lands or areas that are not otherwise
baited areas:
(A) Standing crops or flooded standing crops (including aquatics); standing,
flooded, or manipulated natural vegetation; flooded harvested croplands; or
lands or areas where seeds or grains have been scattered solely as the result
of a normal agricultural planting, harvesting, post-harvest manipulation or
normal soil stabilization practice as described in Sec. 20.11(g), (i), (l),
and (m) of this part;
(B) From a blind or other place of concealment camouflaged with natural vegetation;
(C) From a blind or other place of concealment camouflaged with vegetation from
agricultural crops, as long as such camouflaging does not result in the exposing,
depositing, distributing, or scattering of grain or other feed; or
(D) Standing or flooded standing agricultural crops where grain is inadvertently
scattered solely as a result of a hunter entering or exiting a hunting area,
placing decoys, or retrieving downed birds.
(E) Participants may not possess shot (either in shotshells or as loose shot
for muzzleloading) other than steel shot, bismuth-tin, tungsten-iron, tungsten-polymer,
tungsten-matrix, tungsten-nickel iron, or other shots that are authorized in
Sec. 20.21(j) of this part.
(f) Under what conditions would we suspend the managed take program? Following
authorization by the Director, we will annually assess the overall impact and
effectiveness of the program on resident Canada goose populations to ensure
compatibility with long-term conservation of this resource. If at any time evidence
is presented that clearly demonstrates that resident Canada geese populations
no longer need to be reduced in order to allow resolution or prevention of injury
to people, property, agricultural crops, or other interests, the Director, in
writing, will suspend the program for the resident Canada goose population in
question. However, resumption of injuries caused by growth of the population
and not otherwise addressable by the methods available in part 21 may warrant
reinstatement of such regulations. A State must reapply for approval, including
the same information and
discussions noted in 21.61(d). Depending on the location of the injury or threat
or injury, the Director, in writing, may suspend or reinstate this authorization
for one or more resident Canada goose populations, but not others.
(g) What population information is the State or Tribe required to collect concerning
the resident Canada goose managed take program?
Participating States and Tribes must provide an annual estimate of the breeding
population and distribution of resident Canada geese in their State. The States
and Tribes must submit this estimate on or before August 1 of each year, to
the Chief, Division of Migratory Bird Management, 4401 N. Fairfax Dr., MBSP-4107,
Arlington, Virginia 22203.
(h) What are the general program conditions and restrictions? The program is
subject to the conditions elsewhere in this section, and, unless otherwise specifically
authorized, the following conditions:
(1) Nothing in this section applies to any Federal land within a State's or
Tribe's boundaries without written permission of the Federal agency with jurisdiction.
(2) States may not undertake any actions under this section if the activities
adversely affect other migratory birds or species designated as endangered or
threatened under the authority of the Endangered Species Act. Persons operating
under this section must immediately report the take of any species protected
under the Endangered Species Act to the Service. Further, to protect certain
species from being adversely affected by management actions, States must:
(i) Follow the Federal State Contingency Plan for the whooping crane;
(ii) Conduct no activities within 300 meters of a whooping crane or Mississippi
sandhill crane nest; and
(iii) Follow all Regional (or National when available) Bald Eagle Nesting Management
guidelines for all management activities.