[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)]
[Rules and Regulations]
[Pages 34419-34426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15471]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[Docket No. FWS-HQ-MB-2013-0070; FF09M21200-134-FXMB1231099BPP0]
RIN 1018-AZ69
Migratory Bird Permits; Control Order for Introduced Migratory
Bird Species in Hawaii
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: Introduced, nonnative, alien, and invasive species in Hawaii
displace, compete with, and consume native species, some of which are
endangered, threatened, or otherwise in need of additional protection
in order to increase or maintain viable populations. To protect native
species, we establish a control order for cattle egrets (Bubulcus ibis)
and barn owls (Tyto alba), two invasive migratory bird species in
Hawaii, under the direction of Executive Order 13112. We also make
available the supporting final environmental assessment, the finding of
no significant impact, and public comments for this control order.
DATES: This rule is effective August 24, 2017.
FOR FURTHER INFORMATION CONTACT: Jerry Thompson, at 703-358-2016.
[[Page 34420]]
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Fish and Wildlife Service (Service) is delegated with the
primary responsibility of conserving migratory birds through
protection, restoration, and management. This delegation is authorized
by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.), which
implements conventions with Great Britain (for Canada), Mexico, Japan,
and the Soviet Union (Russia). We implement the provisions of the MBTA
through regulations in parts 10, 13, 20, 21, and 22 of title 50 of the
Code of Federal Regulations (CFR).
Regulations pertaining to migratory bird permits are at 50 CFR part
21. Subpart D of part 21 contains regulations for the control of
depredating birds. Depredation and control orders authorize the take of
specific species of migratory birds for specific purposes without a
Federal depredation permit, as long as the control and depredation
actions comply with the regulatory requirements of the order.
Depredation orders are generally established to protect human property,
such as agricultural crops, from damage by migratory birds, and we
issue control orders to protect natural resources. To protect native
species in Hawaii, we are adding a control order to part 21 at Sec.
21.55 for cattle egrets (Bubulcus ibis) and barn owls (Tyto alba), two
invasive migratory bird species in Hawaii. The terms ``introduced,''
``native species,'' ``alien species,'' and ``introduced species'' are
used in this document as defined in Executive Order 13112, ``Invasive
Species'' (64 FR 6183; February 8, 1999).
II. Comments on the Proposed Rule or the Draft Environmental Assessment
In the proposed rule published on November 4, 2013 (78 FR 65955),
we requested that all interested parties submit written comments on the
proposal by February 3, 2014. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. During
the public comment period for the proposed rule, we received 117
letters addressing the proposed control order for cattle egrets and
barn owls in Hawaii. One commenter was from a Federal agency, eight
commenters were from nongovernmental organizations, and 107 commenters
were private citizens. Seventy-four commenters were opposed to the
proposed rule. Seventeen commenters partially supported the proposed
rule; fifteen of these commenters supported control of cattle egrets
but not of barn owls, while two commenters supported control of barn
owls but not cattle egrets. Twenty-five commenters were in favor of the
proposed rule.
In this final rule, all substantive information relating to the
implementation of a control order for cattle egrets and barn owls in
Hawaii has either been incorporated directly into this final
determination or is addressed in the summary, below. All comment
letters and responses are available at http://www.regulations.gov under
Docket No. FWS-HQ-MB-2013-0070.
Comment: Sixty commenters stated that invasive species have a
negative impact on the environment and need to be controlled.
Response: We agree that invasive species control is necessary to
restore healthy, functioning, native ecosystems that have been
negatively affected by their introduction. The Service is directed by
the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et
seq.), MBTA, internal directives and policies, and Executive Order
13112 (``Invasive Species'') to take actions necessary to control
damage caused by introduced species.
Comment: Fifty-two commenters stated that action needs to be taken
to protect native birds, endangered and threatened species, and/or
fragile native ecosystems.
Response: We agree that action needs to be taken to protect native
and imperiled species and ecosystems. It is the responsibility of the
Service to direct and implement the actions necessary to accomplish
protection and restoration of native species.
Comment: Thirty-six commenters were opposed to lethal take for any
reason, wanted more information about nonlethal control methods, and/or
stated that the control order demonstrates disregard for the value of
birds.
Response: Lethal take is initiated after nonlethal control alone
has been shown to be ineffective or unfeasible. Nonlethal attempts to
control cattle egrets and barn owls that have been implemented include
habitat alterations, changes in management practices, and hazing by
humans and/or noise-making devices. Live-capture and relocation, and
sterilization were also considered.
Habitat alteration at nest or roost sites typically targets removal
of roost or nest trees. This may be done on wildlife management areas
and is consistent with successful habitat management for wetland birds
and seabirds. However, not all nest and roost sites are located on
public land and removing the appropriate structure(s) is often not
possible. Furthermore, this technique does not necessarily resolve
depredation problems because cattle egrets and barn owls can travel
considerable distances to forage.
Management practices are altered to the extent possible as another
nonlethal approach. Vegetation disturbance caused by tractors and other
heavy equipment, for example, reduces concealment cover to waterbird
chicks and other sensitive wildlife native to Hawaii and exposes them
to increased risk of predation by cattle egrets. Wildlife managers
believe that cattle egrets are attracted to tractors and other heavy
equipment, and have observed them following the equipment and preying
upon waterbird chicks exposed or disturbed by the activity. In
response, managers have attempted to minimize this impact by avoiding
the use of heavy equipment during periods when chicks are most
vulnerable. Some sensitive species nest throughout the year in Hawaii,
however, and chicks may be present throughout the year, which
complicates habitat management strategies and achievement of already
challenging goals. Further, once cattle egrets have learned that prey
is available in an area, they return to forage even when the heavy
equipment is no longer present.
Active nonlethal techniques, such as hazing using noise-making
devices, can be an effective method in some circumstances. However,
they are not species-specific and disturb all wildlife, not just cattle
egrets and barn owls. On wildlife management areas and other public
lands, active nonlethal techniques, may therefore, incidentally harass
or harm the species that were intended to be protected.
We considered trap and relocation of cattle egrets and/or barn
owls. These species, however, cannot be relocated within the Hawaiian
archipelago, due to their ability to travel between islands, return to
the site from which they were captured, and perpetuate the conflict
with endangered and threatened species. The Service contacted
government and nongovernment organizations located in the continental
United States and Canada where populations of barn owls are locally
endangered in order to examine the potential that owls captured in
Hawaii might contribute to conservation efforts in those populations
through relocation, reintroduction, translocation, or head-starting
programs. As of publication of this final rule, no other locations or
agencies have agreed to accept relocated birds.
[[Page 34421]]
Sterilization was also proposed as an alternative to lethal take.
However, sterilizing cattle egrets and barn owls does not stop them, in
the short term, from preying upon native wildlife.
Lethal take of problem individuals is highly feasible, has been
effective in reducing predation of sensitive species, and has therefore
proven to be a useful wildlife management strategy in many instances.
The use of lethal take does not reflect any individual preference for
certain species. The Service works toward conservation of all species
protected by the MBTA and ESA, and only employs lethal take as a
management strategy when it can be accomplished without causing
detrimental population-level effects to any protected species. Lethal
take could involve egg oiling, egg and nest destruction, the use of
firearms, trapping, cervical dislocation, and other methods. All
individuals and agencies participating in lethal take activities will
be required to use humane methods of capture and euthanasia, and to
adhere to the American Veterinary Medical Association Guidelines on
euthanasia.
Comment: Thirty-five commenters were concerned about other impacts
to endangered and threatened species and felt those should be
prioritized.
Response: The Service seeks to implement actions to assist in the
recovery of endangered and threatened species and the conservation of
other protected wildlife. The Service works cooperatively with multiple
entities on actions such as constructing predator-proof fencing,
protecting and restoring wildlife habitat, researching disease, and
engaging in predator control whenever possible. The Service can
lethally take other predators, such as mongooses and cats, on Service
lands and is supportive of predator management as allowed elsewhere in
Hawaii. We agree that predator control without adequate habitat
protection measures will not be effective in conserving and restoring
endangered and threatened species. Likewise, habitat conservation alone
without adequate predator control will not be effective in conserving
and restoring populations of endangered and threatened species. Lethal
take of cattle egrets and barn owls in Hawaii is just one part of the
Service's efforts to meet its various obligations, including protection
and restoration of endangered and threatened species populations and
habitat, protection of native migratory bird species, and management of
National Wildlife Refuges.
Comment: Thirty-three commenters stated that we should not call
barn owls or cattle egrets ``invasive,'' and/or that we should not
manage native and nonnative species differently, stating that invasive
species now represent a natural balance in the environment.
Response: The terms used in this rule and the environmental
assessment (EA) were selected to be consistent with the MBTA, Executive
Order 13112, and Service regulations and policy. The following terms
are defined in Executive Order 13112:
``Introduction'' means the intentional or unintentional
escape, release, dissemination, or placement of a species into an
ecosystem as a result of human activity.
``Native species'' means, with respect to a particular
ecosystem, a species that, other than as a result of an introduction,
historically occurred or currently occurs in that ecosystem.
``Alien species'' means, with respect to a particular
ecosystem, any species, including its seeds, eggs, spores, or other
biological material capable of propagating that species, that is not
native to that ecosystem.
``Invasive species'' means an alien species whose
introduction does or is likely to cause economic or environmental harm
or harm to human health.
Cattle egrets and barn owls were intentionally introduced to Hawaii
in the late 1950s, in attempts to control rodents in sugar cane fields
and horn flies on cattle, and meet the criteria of alien as they thrive
and propagate in Hawaii. Barn owls and cattle egrets meet the criteria
of invasive, as they cause environmental harm. This is described in the
EA: ``Predation by cattle egrets and barn owls is currently having a
direct, detrimental impact on numerous threatened or endangered species
in the Hawaiian Islands.''
The introduction of alien species can cause environmental or
ecological harm if they become invasive. Invasive species have traits
or combinations of traits that facilitate a competitive advantage in
acquiring limited resources and enable them to quickly proliferate in
their introduced environment. As invasive species flourish, they also
tend to degrade, change, or displace native wildlife and habitats,
resulting in a loss of biodiversity and ecosystem services.
The purpose of the ESA is to protect and recover imperiled species
and the ecosystems upon which they depend. Imperiled Hawaiian species
are directly preyed upon by invasive species and also depend on an
ecosystem of native flora and fauna that is disrupted and displaced by
invasive species. The changes to the native ecosystem that occur as a
result of invasive species introductions hinder or prevent the
protection and recovery of endangered and threatened species. Removal
of cattle egrets and barn owls is one step in restoring native Hawaiian
ecosystems.
Comment: Thirty commenters expressed concern about growth of pest
populations that could result from removal of barn owls and cattle
egrets (such as rodents, insects, coqui, cane toad), and or spread of
zoonotic disease from these pest species.
Response: We recognize that the barn owl and cattle egret have
value to many people. While cattle egrets and barn owls were brought to
the Hawaiian Islands with good intent, they do not serve the purpose
for which they were released. As explained in the EA, populations of
other invasive species such as rats, mice, and coqui in Hawaii have
spread independently of, and in spite of, the presence of barn owls or
cattle egrets. Conversely, endangered and threatened seabird and
waterbird populations are being adversely affected by barn owls and
cattle egrets. Cattle egrets and barn owls are opportunistic predators
and preferentially choose the prey that is easiest to capture. Native
birds, especially juvenile waterbirds and nesting seabirds are less
mobile and easier to catch than rodents. Cattle egrets and barn owls
that have learned to successfully prey upon avian species will
generally continue to do so.
Cattle egrets and barn owls do not protect humans against diseases
and parasites. According to the Hawaii Department of Health, rat
lungworm disease is spread to humans through ingestion of slugs on
unwashed produce. Practicing hygienic food preparation is the best
defense against lungworm, regardless of location. Leptospirosis is
spread in soil or fresh water contaminated by any infected mammal,
including domestic livestock and pets. A 10-year study conducted in
Hawaii from 1999-2008 documented an average leptospirosis case rate of
1.63 people per 100,000 per year. Information on preventing and
recognizing both rat lungworm disease and leptospirosis is available
through the Hawaii Department of Health and summarized in the following
online brochures: http://health.hawaii.gov/san/files/2013/06/ratlungworm-bulletin.pdf and http://health.hawaii.gov/about/files/2013/06/leptobrochure.pdf.
Comment: Twenty-four commenters stated that they do not believe
that barn owls or cattle egrets prey upon native birds, and/or are
concerned that the proposed rule contains vague language (e.g. may
cause mortality, is believed to be significant, could impact, etc.).
[[Page 34422]]
Response: The assertion that these species do not prey upon birds
is incorrect. As noted in the EA, cattle egrets and barn owls have
become an increasing problem in efforts to protect and restore
endangered and threatened species in Hawaii. Although cattle egrets and
barn owls prey primarily on rodents and insects in their natural
ranges, where they have been introduced to Hawaii they have adapted to
the available prey base, which includes birds.
As presented in the EA, credible, trained, educated scientific
professionals have documented repeated occurrences of predation and
response, including through examination of remains and owl pellets,
personal observations, and photographs obtained with remote cameras.
Predation has been documented since the 1970s on all the main Hawaiian
Islands as well as on islands in the Northwestern Hawaiian Islands.
Cattle egrets and barn owls have been documented preying upon
endangered and threatened waterbirds and seabirds, including Hawaiian
stilt (Himantopus mexicanus (=himantopus) knudseni), Hawaiian coot
(Fulica americana alai), Hawaiian common moorhen (Gallinula chloropus
sandvicensis), Hawaiian duck (Anas wyvilliana), Hawaiian petrel
(Pterodroma sandwichensis), and Newell's Townsend's shearwater
(Puffinus auricularis newelli). Hawaiian honeycreeper (species unknown)
bones have also been found in barn owl pellets. Cattle egrets and barn
owls are opportunistic predators and preferentially choose the prey
that is easiest to capture.
In addition to expert and agency information, we did use available
peer-reviewed literature, as noted in the Literature Cited section of
the final EA. Regulations, such as control orders, are reevaluated as
relevant research and information becomes available. In the event that
new information becomes available, we will take that into consideration
when we review this control order in the future. In all scientific work
there is some chance that an unknown variable has been introduced. In
the interest of being fully transparent in our work, we acknowledge
that chance by not using absolute terminology in our writing. We
recognize that communicating that uncertainty can be unsettling, but it
is consistent with the scientific approach.
Comment: Twenty commenters misinterpreted our proposed rule to
state that lethal take will be open to the public with no limitations,
and/or would result in complete eradication of cattle egrets and barn
owls.
Response: Enactment of this control order does not remove the
cattle egret or the barn owl from the list of species protected by the
MBTA. Neither does this ruling allow private citizens to capture, kill,
or harm cattle egrets or barn owls. Barn owls and cattle egrets and
their parts, nests, and eggs remain protected under Federal law, and
may not be taken or possessed without a Federal permit. The provisions
of the MBTA allow the Federal Government to issue permits or control
orders in specific circumstances. The purpose of this control order is
to comply with that requirement while easing the administrative burden
on those agencies already charged with endangered and threatened
species protection and invasive species control. Authorization to
lethally take cattle egrets and barn owls without a permit will be
restricted to agencies with authority and responsibility for managing
wildlife and invasive species. Those authorized agencies are identified
in the control order. The control order will not authorize lethal take
of cattle egrets and barn owls by private citizens or by any group not
specifically identified in the control order. Any individual not
designated to act on behalf of one of the agencies specifically
identified in the control order will not be allowed to take or possess
cattle egrets or barn owls, their parts, nests, or eggs without a
Federal permit. Doing so without the necessary authorization is a
violation of the MBTA.
Lethal take of cattle egrets and barn owls will only be authorized
in Hawaii where both species are considered invasive. Cattle egrets and
barn owls have substantial populations where they naturally exist, and
this rule does not authorize lethal take in those areas.
Comment: Fourteen commenters stated that lethal take should be
limited to problem individuals, and/or stated that they do not believe
the same situation exists or the same methods should be employed on
different parts of the island chain.
Response: The evidence of predation is not solely from any one part
of the Hawaiian archipelago. We have documentation of the effects of
barn owls and cattle egrets on the main Hawaiian Islands and in the
Northwestern Hawaiian Islands. As described in the EA, this evidence
includes collected remains, collected owl pellets, personal
observations, and photographs obtained with remote cameras.
The intent of this control order is to provide a tool to allow
removal of individuals and populations which have learned to prey upon
and specifically target the State's endangered and threatened species.
The individuals and/or populations that have learned to prey upon avian
species will be the focus of lethal take efforts. This will occur
primarily on public land, but may occur on private land with landowner
approval. Barn owls and cattle egrets that are on private property and
not foraging on native birds will not be the focus of lethal take
efforts.
Comment: Thirteen commenters specifically agreed that cattle egrets
and barn owls prey upon native birds and/or had personal evidence of
this.
Response: We agree.
Comment: Eleven commenters were concerned that the decision was
made in haste or without adequate public outreach.
Response: This decision has been thoroughly considered by State and
Federal wildlife management agencies in Hawaii, incorporating the best
available science as well as the perspectives of the public. As
previously stated, predation has been documented since the 1970s on all
the main Hawaiian Islands as well as on islands in the Northwestern
Hawaiian Islands chain. The problems created by cattle egrets and barn
owls have been well documented and were analyzed in the EA. We
published our proposal in the Federal Register and allowed 90 days for
public comment. Public comments received during that period have been
reviewed and incorporated, as appropriate, in our final EA and this
final rule.
Comment: Eight commenters stated that the proposal circumvents the
regulatory process or do not understand which regulations are
applicable.
Response: Regulation and management of barn owls and cattle egrets
in the United States is the responsibility of the Service. The Service
operates under many directives. Many are from Congress, such as the
National Environmental Policy Act (42 U.S.C. 4321 et seq.), MBTA, ESA,
and the Wild Bird Conservation Act (16 U.S.C. 4901 et seq.). Others are
from the Executive Branch of the U.S. Government, such as Executive
Orders or Secretarial Orders. In this case, cattle egrets and barn owls
are protected under the MBTA, but the MBTA also allows for take of
protected species when responsible management dictates it is necessary,
such as in the case of protecting endangered and threatened species
from extinction. Killing birds protected under the MBTA is illegal,
``[u]nless and except as permitted by regulations made as hereinafter
provided in this subchapter'' (16 U.S.C. 703(a)). Executive Order 13112
directs
[[Page 34423]]
Federal agencies to control populations of invasive species in a cost-
effective and environmentally sound manner in order to minimize the
effects of invasive species, including ecological effects. In most
circumstances, a permit is necessary to legally take or possess a
species protected by the MBTA. However, for MBTA species subject to
control or depredation orders, an individual specifically authorized by
the order may take or possess that species without a Federal permit, so
long as the regulatory requirements and restrictions of the order are
complied with.
When this rule becomes effective (see DATES, above), there will be
12 depredation and control orders authorized under the MBTA. Each order
is assigned its own section in the Code of Federal Regulations (CFR),
from 50 CFR 21.42 through 21.54, with this rule adding Sec. 21.55.
Sections 21.42 and 21.45 are currently ``reserved,'' meaning they do
not contain a depredation order. Eight of the current orders are for a
single species (Sec. Sec. 21.47 through 21.54), one is for two species
(Sec. 21.46), and two are for multiple species (Sec. Sec. 21.43 and
21.44). Two of these orders apply only in a specific State, one is for
two States, three are for a described region of the United States, and
seven authorize take nationwide. Six of these control orders were
created to protect multiple agriculture, aquaculture, or horticulture
interests; two are for a specific crop or specific type of crop; four
are for protection of human health; one is to protect personal
property; two are for protection of fish, wildlife, native plants, and
their habitats; and two allow take to alleviate any type of nuisance.
As stated above, this rule adds a new control order at 50 CFR 21.55
authorizing lethal take of two nongame species in a specified
geographic region for the protection of endangered and threatened
wildlife resources. We did not claim that cattle egrets or barn owls
caused harm to humans or agricultural interests, and that is not
required for us to adopt this rule.
Birds federally protected by the MBTA, including barn owls and
cattle egrets, are under Federal jurisdiction wherever they occur, even
on private property. However, this rule does not grant access to
private property. This control order requires landowner permission for
employees or agents of the authorized agencies to enter private
property for the purpose of capturing or killing cattle egrets or barn
owls.
This control order is a Federal regulation under the provisions of
the MBTA. No review by the State of Hawaii is required for the Federal
government to implement this regulation. However, the State of Hawaii
supports this regulation and is a cooperating agency on the EA.
Department of the Interior regulations state, ``[t]he purpose of an
environmental assessment is to allow the Responsible Official to
determine whether to prepare an environmental impact statement or a
finding of no significant impact'' (43 CFR 46.300). Through the
analysis in the EA we were able to make a finding of no significant
impact (FONSI, online at http://www.regulations.gov under Docket No.
FWS-HQ-MB-2013-0070). This action will have no significant
environmental effects other than the desired effect of reduced
populations of the two invasive species and reduced predation on
endangered and threatened species. An environmental impact statement
for this action is not required.
Comment: Five commenters were concerned about the cultural
significance of owls and confused the invasive barn owl with the native
Hawaiian short-eared owl (pueo; Asio flammeus sandwichensis).
Response: Hawaiian cultural practices have been considered in
writing this rule. Many of the individuals who assisted in writing the
control order and EA are practitioners of traditional Hawaiian culture
as well as employed in environmental fields. It is possible that some
people confuse the barn owl with the native pueo, or Hawaiian short-
eared owl. The pueo has existed in Hawaii throughout human history and
is honored in Hawaiian culture. The barn owl, however, has only
occurred in Hawaii since the late 1950s, and is not traditionally
associated with Hawaiian cultural practices.
We acknowledge that some people may find pleasure in seeing the two
invasive species. However, native Hawaiian birds are an integral part
of daily life and the cultural traditions of Hawaiians. The primary
purpose of this control order is to protect seabirds and waterbirds
native to Hawaii, and thereby keeps in step with Hawaiian cultural
traditions. Historically, seabirds were used by Hawaiians to navigate
back to land from fishing or trading voyages and to lead fishermen to
schools of fish, as well as being a source of food and feathers.
Waterbirds were also of great importance. In Hawaiian mythology, a
moorhen brought fire to humans, which explains the red on its forehead,
a symbol of the scorching from the fire. The Hawaiian coot and Hawaiian
moorhen are sacred to Hina, a Hawaiian Earth-mother category of goddess
who can take the form of these birds. The eggs of these birds were
traditionally used in ceremonies to consecrate chiefs and priests. The
Hawaiian stilt is sacred to the Hawaiian god Ku, in his form as a
fisherman. These birds are a culturally significant and endangered
resource. They are being preyed upon by invasive cattle egrets and barn
owls. Lethal take of the two invasive species is much needed in Hawaii
for protection of the native bird species, including endangered and
threatened species, not only for their own sake, but also to protect
cultural practices.
Comment: Four commenters specifically noted the isolation of the
Hawaiian Islands as an environment amenable to the control proposed.
Response: We agree that the remoteness and isolation of the
Hawaiian Islands greatly decreases the likelihood that individual
cattle egrets and barn owls from other populations will emigrate to the
islands, supplementing current populations. However, the goal of this
control order is population control rather than eradication, where
needed, to enhance endangered species recovery. The potential
emigration of a few individuals is less of a concern in such cases.
Comment: Three commenters were concerned about global barn owl or
cattle egret populations.
Response: Distribution and abundance of global cattle egret and
barn owl populations was thoroughly researched in preparing the control
order and EA. As noted in the EA, both cattle egrets and barn owls have
stable, cosmopolitan distributions with global populations between 5
and 8 million individuals. Cattle egrets and barn owls are both listed
as ``Species of least concern'' by the International Union for the
Conservation of Nature (IUCN). The number of cattle egrets and barn
owls removed from the Hawaiian Islands as a result of this control
order will not have a significant negative impact on global populations
of either species.
As previously noted, we considered the option of live-trapping and
relocating barn owls from Hawaii to areas in the continental United
States and Canada where barn owls and cattle egrets are considered
locally rare. As of publication of this final rule, no other locations
or agencies have agreed to accept relocated birds.
Comment: Three commenters were concerned that the actions outlined
in the proposed rule would negatively impact endangered and threatened
species.
Response: We completed consultation as required under section 7 of
the ESA to ensure that the proposed rule would
[[Page 34424]]
not jeopardize the existence of endangered or threatened species in
Hawaii. The analysis in the environmental assessment supporting the
proposed rule concludes that the rule would have only beneficial
effects on listed species in Hawaii; the expected beneficial effects to
listed species are, in part, why this rulemaking has been undertaken.
Our internal consultation determined that the proposed rule may affect,
but is not likely to adversely affect, listed endangered, threatened,
proposed to be listed, or candidate birds; the Hawaiian hoary bat
(Lasiurus cinereus semotus); and invertebrates species, and their
designated critical habitats in Hawaii. We also determined there would
be no effects on ESA-listed plants. The National Marine Fisheries
Service (NMFS) concurred with our determination that the proposed rule
may affect, but is not likely to adversely affect, any endangered or
threatened species under their jurisdiction, or adversely modify any
designated critical habitat. We further outlined best management
practices that will be required by participating agencies when
implementing the control order to minimize any effects to ESA-listed
species or their designated critical habitats.
Comment: Three commenters specifically noted approval of lethal
control as a valid management technique.
Response: We agree.
III. Changes From Proposed Rule
We made several changes from what we proposed to what we are making
final in this rule. Specifically, we changed the name of the control
order to more accurately and intentionally identify the kind of impact
some introduced, nonnative species of birds have in Hawaii. The new
title also references Executive Order 13112, ``Invasive Species,'' an
underpinning of this rulemaking. We reordered the list of authorized
agencies at Sec. 21.55(b) so that they appear in alphabetical order.
Under Sec. 21.55(c), Means of take, we made changes to the description
to more clearly distinguish between the take of birds versus active
nests, and we added authorization to use concealment (such as blinds)
in the course of taking birds under this control order; concealment is
a prohibited practice under depredation permits (50 CFR 21.41(c)(3)),
so specifically authorizing the use of blinds or other means of
concealment expands the range of tools available to take cattle egrets
and barn owls, and is one of several ways that this control order will
improve the control of these invasive species compared to their control
under depredation permits. We also changed ``eggs'' to ``nest
contents'' in the title of, and description under, Sec. 21.55(g);
nests may include hatched young, not just eggs, and so this change
accurately describes what we originally intended in the proposed rule.
Finally, we lengthened the time allowed for reporting the take of
nontarget birds under Sec. 21.55(i) from ``immediately'' in the
proposed rule to ``within 72 hours'' in this final rule, because if we
had retained ``immediately,'' compliance would have been difficult to
achieve for activities taking place in remote locations.
IV. This Rule
Cattle egrets and barn owls are invasive in Hawaii and threaten
native wildlife with extinction. Nonlethal methods have been
unsuccessful in reducing the impacts caused by cattle egrets and barn
owls. We, therefore, are making final a regulation that allows take by
agencies that have functional and/or jurisdictional responsibility for
controlling invasive species and protecting native species in the
Hawaiian Islands. The control methods we authorize are similar to
measures allowed in other control orders and encompass a suite of
techniques that give wildlife managers flexibility in achieving control
of invasive species while avoiding or minimizing significant impacts to
native species.
V. Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 (E.O. 12866) provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. OIRA has determined that
this rule is not significant.
Executive Order 13563 (E.O. 13563) reaffirmed the principles of
E.O. 12866, and called for improvements in the nation's regulatory
system to promote predictability, to reduce uncertainty, and to use the
best, most innovative, and least burdensome tools for achieving
regulatory ends. The executive order directs agencies to consider
regulatory approaches that reduce burdens and maintain flexibility and
freedom of choice for the public where these approaches are relevant,
feasible, and consistent with regulatory objectives. E.O. 13563 further
emphasizes that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this rule in a manner
consistent with these requirements.
Executive Order 13771
This action is considered to be an E.O. 13771 deregulatory action
(82 FR 9339, February 3, 2017). Consistent with E.O. 13771, at a
minimum, we estimate the annual cost savings for this final rule to be
$6,726.72. This estimate includes the current time spent by entities in
applying for depredation permits and meeting reporting requirements and
by the Service in issuing the permits. We multiplied the per-applicant
cost of $517.44 per permit times 13, which is the average number of
depredation permits that we issue per year to address the cattle egret
and barn owl issues in Hawaii.
Executive Order 13112--Invasive Species
This rule supports and enacts mandates of invasive species control
detailed in Executive Order 13112 of February 3, 1999 (64 FR 6183;
February 8, 1999). Section 2 directs Federal agencies whose actions may
affect the status of invasive species to take certain actions. These
agencies, to the extent practicable and permitted by law and subject to
the availability of appropriations and within Administration budgetary
limits, should use relevant programs and authorities to:
(i) Prevent the introduction of invasive species;
(ii) detect and respond rapidly to and control populations of such
species in a cost-effective and environmentally sound manner;
(iii) monitor invasive species populations accurately and reliably;
and
(iv) provide for restoration of native species and habitat
conditions in ecosystems that have been invaded.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small businesses,
small organizations, and small government jurisdictions. However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic
[[Page 34425]]
impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. We have identified no small
entities that this regulation could impact. Therefore, this regulation
change will not have a significant economic impact on a substantial
number of small entities, so a regulatory flexibility analysis is not
required.
This is not a major rule under the SBREFA (5 U.S.C. 804(2)). It
will not have a significant impact on a substantial number of small
entities:
This rule will not have an annual effect on the economy of
$100 million or more;
This rule will not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, Tribal, or
local government agencies, or geographic regions; and
This rule 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.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
This rule will not affect small governments. A small
government agency plan is not required. Allowing control of invasive
migratory bird species will not affect small government activities; and
This rule will not produce a Federal mandate. It is an
authorization to take voluntary action, not a requirement to act. It is
not a significant regulatory action.
Takings
This rule does not contain a provision for taking of private
property. In accordance with Executive Order 12630, a takings
implication assessment is not required.
Federalism
This rule does not have sufficient Federalism effects to warrant
preparation of a federalism summary impact statement under Executive
Order 13132. It will not interfere with the State's ability to manage
itself or its funds. No significant economic impacts are expected to
result from the regulations change.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and a submission
to the OMB under the PRA is not required. An agency 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.
National Environmental Policy Act
We have analyzed this rule in accordance with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and U.S.
Department of the Interior regulations at 43 CFR part 46. We have
completed an environmental assessment of the rule change and a findings
document, a finding of no significan impact (FONSI), which are
available at http://www.regulations.gov under Docket No. FWS-HQ-MB-
2013-0070. We conclude that our preferred alternative will have the
following impacts:
Socioeconomic. The regulation change will have no discernible
socioeconomic impacts.
Migratory bird populations. The regulation change will not
negatively affect native migratory bird populations. Cattle egret and
barn owl, the subjects of control, are alien and invasive to Hawaii.
Endangered and threatened species. The regulation change will have
an overall benefit to endangered or threatened species or habitats
important to them by reducing predation and competition by the cattle
egret and the barn owl.
We concluded in a finding of no significant impact that the action
is not likely to adversely affect any endangered or threatened species.
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
determined that there are no potential effects on federally recognized
Indian Tribes from the regulation change. The regulation change will
not interfere with Tribes' abilities to manage themselves or their
funds, or to regulate migratory bird activities on tribal lands.
Energy Supply, Distribution, or Use (Executive Order 13211)
This rule will not affect energy supplies, distribution, or use.
This action will not be a significant energy action, and no Statement
of Energy Effects is required.
Compliance With Endangered Species Act Requirements
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the
Interior] shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this chapter'' (16
U.S.C. 1536(a)(1)). It further states that the Secretary must ``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'' (16 U.S.C. 1536(a)(2)). We completed informal
consultation on this action; internally we concluded that this action
would have ``no effect'' on ESA-listed plants, and ``may affect but is
unlikely to adversely affect'' ESA-listed birds, the Hawaiian hoary
bat, invertebrates, their designated critical habitats, and those
proposed for listing. NMFS concurred with our determination that
actions under this regulation are ``not likely to adversely affect''
ESA-listed marine species. The regulation change will result in an
overall benefit to listed species or habitats important to them by
reducing predation and competition by the cattle egret and the barn
owl.
List of Subjects in 50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Regulation Promulgation
For the reasons described in the preamble, we amend subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 21--MIGRATORY BIRD PERMITS
0
1. The authority for part 21 continues to read as follows:
Authority: 16 U.S.C. 703-712.
0
2. Add Sec. 21.55 to read as follows:
[[Page 34426]]
Sec. 21.55 Control order for invasive migratory birds in Hawaii.
(a) Control of cattle egrets and barn owls. Personnel of the
agencies listed in paragraph (b) of this section may take cattle egrets
(Bubulcus ibis) or barn owls (Tyto alba) using the methods authorized
in paragraph (c) of this section at any time anywhere in the State of
Hawaii, the Northwestern Hawaiian Islands, or the unincorporated
territory of Midway Atoll. No permit is necessary to engage in these
actions. In this section, the word ``you'' means a person operating
officially as an employee of one of the authorized agencies.
(b) Authorized agencies. (1) Federal Aviation Administration;
(2) Hawaii Department of Agriculture;
(3) Hawaii Department of Lands and Natural Resources, Division of
Forestry and Wildlife;
(4) National Oceanic and Atmospheric Administration;
(5) National Park Service;
(6) U.S. Department of Agriculture--Animal and Plant Health
Inspection Service, Wildlife Services;
(7) U.S. Department of Defense;
(8) U.S. Fish and Wildlife Service;
(9) U.S. Geological Survey; and
(10) University of Hawaii--Pacific Cooperative Studies Units with
program mandates to accomplish invasive species eradication and
control, including the five island Invasive Species Committees.
(c) Means of take. (1) You may take cattle egrets and barn owls by
means of lethal take or active nest take. Lethal take may occur by
firearm or slingshot in accordance with paragraph (c)(2) of this
section or lethal or live traps. Active nest take may occur by egg
oiling in accordance with paragraph (c)(3) of this section or
destruction of nest material and contents (including viable eggs and
chicks). Birds may be euthanized by cervical dislocation,
CO2 asphyxiation, or other recommended method in the
American Veterinary Medical Association Guidelines on Euthanasia.
(2) If you use a firearm or slingshot to kill cattle egrets or barn
owls under the provisions of this order, you must use nontoxic shot or
nontoxic bullets to do so. See Sec. 20.21(j) of this chapter for a
list of approved nontoxic shot types.
(3) Eggs must be oiled with 100 percent corn oil, which is exempted
from regulation under the Federal Insecticide, Fungicide, and
Rodenticide Act by the U.S. Environmental Protection Agency.
(4) You may use concealment (such as blinds) and luring devices
(such as decoys or recorded calls) for locating, capturing, and/or
taking cattle egrets or barn owls.
(d) Land access. You must obtain appropriate landowner permission
before conducting activities authorized by this order.
(e) Relationship to other regulations. You may take cattle egrets
and barn owls under this order only in a way that complies with all
applicable Federal, State, county, municipal, or tribal laws. You are
responsible for obtaining all required authorizations to conduct this
activity.
(f) Release of injured, sick, or orphaned cattle egrets or barn
owls. Wildlife rehabilitators, veterinarians, and all other individuals
or agencies who receive sick, injured, or orphaned cattle egrets or
barn owls are prohibited from releasing any individuals of those
species back into the wild in the State of Hawaii, the Northwestern
Hawaiian Islands, or the unincorporated territory of Midway Atoll. All
applicable local, State, Federal, and/or territorial regulations must
be followed to transfer, possess, and/or release cattle egrets or barn
owls in any other location.
(g) Disposal of cattle egret or barn owl carcasses, nests, or nest
contents. You may donate carcasses, nests, or nest contents taken under
this control order to public museums or public institutions for
scientific or educational purposes or to persons authorized by permit
or regulation to possess them. You may dispose of the carcasses by
burial or incineration; or, if the carcasses are not safely
retrievable, you may leave them in place. No one may retain for
personal use, offer for sale, barter or trade, or sell a cattle egret
or a barn owl or any feathers, parts, nests, or nest contents taken
under this section.
(h) Endangered or threatened species. You may not take cattle
egrets or barn owls if doing so will adversely affect other migratory
birds protected under the Migratory Bird Treaty Act or species
designated as endangered or threatened under the authority of the
Endangered Species Act.
(i) Reporting take. Any agency engaged in control activities under
this control order must provide an annual report of take during the
calendar year for each species by January 31st of the following year.
The report must include a summary of the number of birds and number of
active nests taken for each species, the months in which they were
taken, and the island(s) on which they were taken. Multiple reports
within agencies may be combined, as appropriate. Submit annual reports
to the Pacific Region Migratory Bird Permit Office in Portland, Oregon,
at the address shown at 50 CFR 2.2.
(j) Reporting nontarget take. If, while operating under this
control order, you take any other species protected under the
Endangered Species Act or the Migratory Bird Treaty Act, you must
report within 72 hours the take to the Pacific Region Migratory Bird
Permit Office in Portland, Oregon, at the address shown at 50 CFR 2.2.
(k) Revocation of authority to operate under this order. We may
suspend or revoke the authority of any individual or agency to operate
under this order if we find that the individual or agency has taken
actions that may take federally listed endangered or threatened species
or any other bird species protected by the Migratory Bird Treaty Act
(see 50 CFR 10.13 for the list of protected migratory bird species), or
has violated any Federal or State law or regulation governing this
activity. We will notify the affected agency by certified mail, and may
change this control order accordingly.
Dated: July 13, 2017.
Virginia H. Johnson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-15471 Filed 7-24-17; 8:45 am]
BILLING CODE 4333-15-P