[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Rules and Regulations]
[Pages 10621-10624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03034]
[[Page 10621]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[Docket No. FWS-HQ-MB-2018-0080; FF09M21200-190-FXMB1231099BPP0]
RIN 1018-BD74
Migratory Bird Permits; Regulations for Managing Resident Canada
Goose Populations; Agricultural Facilities in the Atlantic Flyway
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), amend the
depredation order that allows take of resident Canada geese at
agricultural facilities by authorized personnel between May 1 and
August 31. This period is too restrictive in portions of the Atlantic
Flyway where specific crops are now being planted and depredated prior
to May 1. This final rule allows take of resident Canada geese at
agricultural facilities in the Atlantic Flyway States of Connecticut,
Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode
Island, South Carolina, Vermont, Virginia, and West Virginia between
April 1 and August 31.
DATES: This rule is effective March 26, 2020.
ADDRESSES: Comments we received on the proposed rule, as well as the
proposed rule itself, the related environmental assessment, and this
final rule, are available at http://www.regulations.gov in Docket No.
FWS-HQ-MB-2018-0080.
FOR FURTHER INFORMATION CONTACT: Ken Richkus, Chief, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, 5275
Leesburg Pike, Falls Church, VA 22041; (703) 358-2376.
SUPPLEMENTARY INFORMATION:
Authority and Responsibility
Migratory birds are protected under four bilateral migratory bird
treaties that the United States entered into with Great Britain (for
Canada in 1916, as amended in 1999), the United Mexican States (1936,
as amended in 1972 and 1999), Japan (1972, as amended in 1974), and the
Soviet Union (1978). Regulations allowing the take of migratory birds
are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. 703-
712), which implements the above-mentioned treaties. The Act provides
that, subject to and to carry out the purposes of the treaties, the
Secretary of the Interior is authorized and directed to determine when,
to what extent, and by what means allowing hunting, killing, and other
forms of taking of migratory birds, their nests, and eggs is compatible
with the conventions. The Act requires the Secretary to implement a
determination by adopting regulations permitting and governing those
activities.
Canada geese are federally protected by the Act because they are
listed as migratory birds in all four treaties. Because all four
treaties cover Canada geese, regulations must meet the requirements of
the most restrictive of the four. For Canada geese, this is the treaty
with Canada. All regulations concerning resident Canada geese are
compatible with its terms, with particular reference to Articles II, V,
and VII.
Each treaty not only permits sport hunting, but also permits the
take of migratory birds for other reasons, including scientific,
educational, propagative, or other specific purposes consistent with
the conservation principles of the various Conventions. More
specifically, Article VII, Article II (paragraph 3), and Article V of
``The Protocol Between the Government of the United States of America
and the Government of Canada Amending the 1916 Convention between the
United Kingdom and the United States of America for the Protection of
Migratory Birds in Canada and the United States'' provides specific
limitations on allowing the take of migratory birds for reasons other
than sport hunting. Article VII authorizes permitting the take,
killing, etc., of migratory birds that, under extraordinary conditions,
become seriously injurious to agricultural or other interests. Article
V relates to the taking of nests and eggs, and Article II, paragraph 3,
states that, in order to ensure the long-term conservation of migratory
birds, migratory bird populations shall be managed in accord with
listed conservation principles.
The other treaties are less restrictive. The treaties with both
Japan (Article III, paragraph 1, subparagraph (b)) and the Soviet Union
(Article II, paragraph 1, subparagraph (d)) provide specific exceptions
to migratory bird take prohibitions for the purpose of protecting
persons and property. The treaty with Mexico requires, with regard to
migratory game birds, only that there be a ``closed season'' on hunting
and that hunting be limited to 4 months in each year.
Regulations governing the issuance of permits to take, capture,
kill, possess, and transport migratory birds are promulgated at title
50 of the Code of Federal Regulations (CFR), parts 13, 21, and 22, and
are issued by the Service. The Service annually promulgates regulations
governing the take, possession, and transportation of migratory game
birds under sport hunting seasons at 50 CFR part 20. Regulations
regarding all other take of migratory birds (except for eagles) are
published at 50 CFR part 21, and typically are not changed annually.
Background
In November 2005, the Service published a final environmental
impact statement (FEIS) on management of resident Canada geese that
documented resident Canada goose population levels ``that are
increasingly coming into conflict with people and causing personal and
public property damage'' (see the FEIS' notice of availability at 70 FR
69985; November 18, 2005).
On August 10, 2006, we published in the Federal Register (71 FR
45964) a final rule establishing regulations at 50 CFR parts 20 and 21
authorizing State wildlife agencies, private landowners, and airports
to conduct (or allow) indirect and/or direct population control
management activities to reduce, manage, and control resident Canada
goose populations in the continental United States and to reduce
related damages. Those activities include a depredation order that
allows take of resident Canada geese at agricultural facilities by
authorized personnel between May 1 and August 31, at 50 CFR 21.51.
However, the time periods set forth at 50 CFR 21.51(d)(4) for take of
resident Canada geese at agricultural facilities are too restrictive in
portions of the Atlantic Flyway where specific crops are now being
planted and depredated prior to May 1.
On June 25, 2019, we published in the Federal Register (84 FR
29835) a proposed rule to amend the depredation order at 50 CFR 21.51
to allow authorized personnel to take resident Canada geese at
agricultural facilities in the Atlantic Flyway States of Connecticut,
Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode
Island, South Carolina, Vermont, Virginia, and West Virginia between
April 1 and August 31, thereby enabling agricultural producers to
protect crops planted in early spring from depredation by resident
Canada geese. This final rule adopts the changes set forth in that
proposed rule.
[[Page 10622]]
Environmental Assessment
We prepared an environmental assessment (EA) that is tiered to the
2005 FEIS, specifically to the actions pertaining to control of
resident Canada geese at agricultural facilities that were proposed
under Alternative E (Control and Depredation Order Management; pages
II-12--II-13). Those actions were subsequently implemented through the
depredation order at 50 CFR 21.51, under Alternative F (Integrated
Damage Management and Population Control; pages II-13--II-15). The EA
analyzed three alternative courses of action to address crop
depredation by resident Canada geese in Atlantic Flyway States in
April:
(1) Maintain the current date restrictions on the take of geese as
specified in regulations at 50 CFR 21.51(d)(4) (No action);
(2) Expand the time period during which Canada geese may be taken
under 50 CFR 21.51(d)(4) to April 1 through August 31, in the Atlantic
Flyway States of Delaware, Florida, Georgia, Maryland, North Carolina,
South Carolina, Virginia, and West Virginia; and
(3) Expand the time period during which Canada geese may be taken
under 50 CFR 21.51(d)(4) to April 1 through August 31, in the Atlantic
Flyway States of Connecticut, Delaware, Florida, Georgia, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York, North
Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont,
Virginia, and West Virginia (Proposed action).
The full EA can be found on our website at http://www.fws.gov/birds
or at http://www.regulations.gov at Docket No. FWS-HQ-MB-2018-0080.
Review of Public Comments
We accepted comments on our June 25, 2019, proposed rule (84 FR
29835) for 60 days, ending August 26, 2019. During the public comment
period on the proposed rule, we received public comments from three
private individuals.
Summary of Comments
One individual expressed support for the proposed action in order
to protect agricultural lands. Another commenter objected to killing
Canada geese and urged the Service to only allow nonlethal control
methods. The third commenter adamantly expressed opposition to the
killing of any animals, and asked why proven nonlethal methods are not
being used.
Service Response to Comments
The Service has a responsibility to prevent serious injuries to
agricultural crops that are caused by resident Canada geese. We favor
nonlethal control methods, but if those fail to resolve an identified
conflict, we do allow lethal take. Direct control measures such as nest
and egg destruction and lethal removal are usually employed to
alleviate local conflicts; thus, whether to conduct such measures is a
local decision. Therefore, this final rule does not make any changes in
response to these comments to the actions we proposed on June 25, 2019
(84 FR 29835).
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling 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 emphasizes further
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 developed this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act
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 effects 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 impact on a
substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b).
The economic impacts of this rule will primarily affect
agricultural producers, but the impacts will be beneficial to those
entities because their crops will be afforded better protection. Data
are not available to estimate the exact number of agricultural
facilities that will benefit from this rule, but it is unlikely to be a
substantial number at the Atlantic Flyway-wide scale. Therefore, we
certify that this rule will not have a significant economic impact on a
substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 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, or local
government agencies; or geographic regions. Finally, this rule will not
have significant adverse effects on competition, employment,
investment, productivity, innovation, or the abilities of U.S.-based
enterprises to compete with foreign-based enterprises.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
This final rule is an Executive Order (E.O.) 13771 (82 FR 9339,
February 3, 2017) deregulatory action because it relieves a restriction
in 50 CFR part 21.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule will not ``significantly or uniquely'' affect small
government activities. A small government agency plan is not required.
b. This rule will not produce a Federal mandate on local or State
government or private entities. Therefore, this action is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
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Takings
In accordance with E.O. 12630, this rule does not contain a
provision for taking of private property, and will not have significant
takings implications. A takings implication assessment is not required.
Federalism
This rule does not interfere with the States' abilities to manage
themselves or their funds. We do not expect any economic impacts to
result from this revision to the regulations. This rule will not have
sufficient Federalism effects to warrant preparation of a federalism
summary impact statement under E.O. 13132.
Civil Justice Reform
In accordance with E.O. 12988, the Office of the Solicitor has
determined that the rule will not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This rule does not contain new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
approved the information collection requirements associated with the
control and management of resident Canada geese at 50 CFR part 20 and
50 CFR part 21, and assigned OMB Control Number 1018-0133 (expires June
30, 2022). 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 amendment of the
depredation order that allows take of resident Canada geese at
agricultural facilities in Atlantic Flyway States from April 1 through
August 31; that environmental assessment is included in the docket for
this rule. We conclude that our action will have the impacts listed
below under Environmental Consequences of the Action. The docket for
this rule is available at http://www.regulations.gov under Docket No.
FWS-HQ-MB-2018-0080.
Environmental Consequences of the Action
The expected additional take of resident Canada geese will have
minimal impact to the overall population status of resident Canada
geese in any participating State and the Atlantic Flyway as a whole.
Based on the current average annual take (in the listed States) of
2,233 Canada geese under 50 CFR 21.51, we expect an additional 558
Canada geese to be taken during the month of April in participating
States. This is based on an assumed average of a similar number of
geese taken each month. There is the potential for take of migrant
Canada geese in more northern areas of the flyway. Assuming that 50
percent of the expected additional take in April are migrants, the take
of migrant Canada geese under this alternative will be 279 geese.
Population-level impacts to any individual population of migrant geese
will be minimal.
Socioeconomic. This action is expected to have a net positive
impact on the socioeconomic environment by reducing crop depredation at
localized agricultural sites. Individual agricultural producers in
participating States will be afforded some additional relief from
injurious Canada geese.
Endangered and threatened species. The rule will not affect
endangered or threatened species or critical habitats.
Compliance With Endangered Species Act Requirements
Section 7 of the Endangered Species Act of 1973, as amended (ESA;
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 Act'' (16 U.S.C.
1536(a)(1)). It further states that ``[e]ach Federal agency shall, in
consultation with and with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by such agency * * * 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)). The rule
will not affect endangered or threatened species or critical habitats.
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), E.O. 13175, and 512 DM 2, we have
evaluated potential effects on federally recognized Indian tribes and
have determined that there are no potential effects. This rule will not
interfere with the tribes' abilities to manage themselves or their
funds or to regulate migratory bird activities on tribal lands.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This rule is not a
significant regulatory action under E.O. 13211, and will not
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action. No Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Regulation Promulgation
For the reasons stated in the preamble, we hereby amend part 21, of
subchapter B, chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 21--MIGRATORY BIRD PERMITS
0
1. The authority citation for part 21 continues to read as follows:
Authority: 16 U.S.C. 703-712.
0
2. Amend Sec. 21.51 by revising paragraph (d)(4) to read as follows:
Sec. 21.51 Depredation order for resident Canada geese at
agricultural facilities.
* * * * *
(d) * * *
(4) Under this section, authorized agricultural producers and their
employees and agents may:
(i) Conduct management and control activities, involving the take
of resident Canada geese, as follows:
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Where When
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In the Atlantic Flyway States of Connecticut, Between April 1 and
Delaware, Florida, Georgia, Maine, Maryland, August 31.
Massachusetts, New Hampshire, New Jersey, New
York, North Carolina, Pennsylvania, Rhode
Island, South Carolina, Vermont, Virginia, and
West Virginia.
[[Page 10624]]
In the Mississippi and Central Flyway portions Between May 1 and
of these States: Alabama, Arkansas, Colorado, August 31.
Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, New Mexico, North
Dakota, Ohio, Oklahoma, South Dakota,
Tennessee, Texas, Wisconsin, and Wyoming.
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(ii) Destroy the nests and eggs of resident Canada geese at any
time of year.
* * * * *
Dated: January 6, 2020.
Rob Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-03034 Filed 2-24-20; 8:45 am]
BILLING CODE 4333-15-P