[Federal Register Volume 84, Number 119 (Thursday, June 20, 2019)]
[Rules and Regulations]
[Pages 28769-28773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13097]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 20 and 21
[Docket No. FWS-HQ-MB-2018-0012; FF09M21200-178-FXMB1232099BPP0L2]
RIN 1018-BC72
Migratory Bird Permits; Regulations for Managing Resident Canada
Goose Populations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: In 2005, the U.S. Fish and Wildlife Service (Service or
``we'') published a final environmental impact statement on management
of resident Canada geese (Branta canadensis) that documented resident
Canada goose population levels ``that are increasingly coming into
conflict with people and causing personal and public property damage.''
Subsequently, the Service implemented several actions intended to
reduce, manage, and control resident Canada goose populations in the
continental United States and to reduce related damages; those actions
included depredation and control orders that allow destruction of
Canada goose nests and eggs by authorized personnel between March 1 and
June 30. However, some resident Canada geese currently initiate nests
in February, particularly in the southern United States, and it seems
likely that in the future nest initiation dates will begin earlier and
hatching of eggs will perhaps end later than dates currently
experienced. This final rule amends the depredation and control orders
to allow destruction of resident Canada goose nests and eggs at any
time of year.
DATES: This rule is effective July 22, 2019.
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-2018-0012.
FOR FURTHER INFORMATION CONTACT: Paul I. Padding, Atlantic Flyway
Representative, Division of Migratory Bird Management, U.S. Fish and
Wildlife Service, 11510 American Holly Drive, Laurel, MD 20708; (301)
497-5851; paul_padding@fws.gov.
SUPPLEMENTARY INFORMATION:
Authority and Responsibility
Migratory birds are protected under four bilateral migratory bird
treaties the United States entered into with Great Britain (for Canada
in 1916, as amended in 1999), the United Mexican States (1936, as
amended in 1972 and 1999), Japan (1972, as amended in 1974), and the
Soviet Union (1978). Regulations allowing the take of migratory birds
are authorized by the Migratory Bird Treaty Act (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.
[[Page 28770]]
Canada geese are federally protected by the Act because they are
listed as migratory birds in all four treaties. Because Canada geese
are covered by all four treaties, regulations must meet the
requirements of the most restrictive of the four. For Canada geese,
this is the treaty with Canada. All regulations concerning resident
Canada geese are compatible with its terms, with particular reference
to Articles II, V, and VII.
Each treaty not only permits sport hunting, but permits the take of
migratory birds for other reasons, including scientific, educational,
propagative, or other specific purposes consistent with the
conservation principles of the various Conventions. More specifically,
Article VII, Article II (paragraph 3), and Article V of ``The Protocol
Between the Government of the United States of America and the
Government of Canada Amending the 1916 Convention between the United
Kingdom and the United States of America for the Protection of
Migratory Birds in Canada and the United States'' provides specific
limitations on allowing the take of migratory birds for reasons other
than sport hunting. Article VII authorizes permitting the take, kill,
etc., of migratory birds that, under extraordinary conditions, become
seriously injurious to agricultural or other interests. Article V
relates to the taking of nests and eggs, and Article II, paragraph 3,
states that, in order to ensure the long-term conservation of 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 depredation and control
orders that allow destruction of resident Canada goose nests and eggs
by authorized personnel between March 1 and June 30, because that
timeframe encompassed the period when resident Canada geese typically
nested. However, in recent years, some resident Canada geese have
initiated nests in February, particularly in the southern United
States, and it seems likely that in the future nest initiation dates
will begin earlier and hatching of eggs will perhaps end later than
dates currently experienced.
On April 25, 2018, we published in the Federal Register (83 FR
17987) a proposed rule to amend the special permit and depredation and
control orders to allow destruction of resident Canada goose nests and
eggs at any time of year, thereby affording State agencies, private
landowners, and airports greater flexibility to use these methods of
controlling local abundances of resident Canada geese. This final rule
adopts the changes set forth in that proposed rule.
Definition of Resident Canada Geese
The current definition of resident Canada geese set forth at 50 CFR
20.11 and 21.3 states that ``Canada geese that nest within the lower 48
States and the District of Columbia in the months of March, April, May,
or June, or reside within the lower 48 States and the District of
Columbia in the months of April, May, June, July, or August'' are
considered resident Canada geese. We are amending this definition by
deleting the phrase, ``in the months of March, April, May, or June,''
following the first appearance of the word ``Columbia,'' to clarify
that any Canada geese that nest within lower 48 States and the District
of Columbia are resident Canada geese.
Removal of Date Restrictions on Nest and Egg Destruction
In title 50 of the CFR, destruction of resident Canada goose nests
and eggs is currently authorized under special Canada goose permits
(Sec. 21.26), a control order for airports and military airfields
(Sec. 21.49), a depredation order specific to nests and eggs (Sec.
21.50), a depredation order for agricultural facilities (Sec. 21.51),
and a public health control order (Sec. 21.52). Each of these
regulations prescribes the dates during which nests and eggs of
resident Canada goose may be destroyed. This rule removes those date
restrictions and allows destruction of Canada goose nests and eggs, as
otherwise authorized under these regulations, at any time of year.
This adjustment is based on several factors. First, nest and egg
destruction has been an effective tool in reducing local conflicts and
damages caused by resident Canada geese. Second, resident Canada geese
are identified as such based on where, not when, they nest. Lastly,
some Canada geese are already nesting in February in southern States,
and it seems likely that nest initiation dates will also advance into
February in mid-latitude and perhaps northern States in the future and
hatching of nests may occur later than June 30.
Eliminating Date Restrictions for Lethal Control Activities in
California, Oregon, and Washington
On June 17, 1999, we published in the Federal Register (64 FR
32766) a final rule establishing 50 CFR 21.26, the special Canada goose
permit. Special Canada goose permits may be issued to State wildlife
agencies authorizing them to conduct certain resident Canada goose
management and control activities that are normally prohibited. At that
time, we indicated that States may conduct those control activities
between March 11 and August 31, but that they should make a concerted
effort to limit the take of adult birds to June, July, and August in
order to minimize the potential impact on migrant populations. We
imposed a date restriction of May 1 through August 31 in some areas in
California, Oregon, and Washington inhabited by the threatened Aleutian
Canada goose (Branta canadensis leucopareia) pursuant to the Endangered
Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.). The
Aleutian Canada goose was listed as endangered in 1967 (32 FR 4001;
March 11, 1967) and reclassified to threatened status in 1990 (55 FR
51106; December
[[Page 28771]]
12, 1990). Aleutian geese occur in a small numbers within these States,
primarily San Joaquin Valley and Sacramento River Delta areas in
central California, Humboldt Bay and Crescent City areas on the
northern California coast, and Langlois and Pacific City areas on the
Oregon coast. We indicated that if this subspecies is delisted, we
would review this provision.
On March 20, 2001, we published in the Federal Register (66 FR
15643) a final rule to remove the Aleutian Canada goose from the
Federal List of Endangered and Threatened Wildlife, due to recovery.
Abundance of this population increased from 790 birds in 1975, to an
estimated 156,030 in the winter of 2016. The Pacific Flyway Council's
objective for this population is 60,000 geese. Currently, there is no
special habitat or other threat that may reduce this population back to
levels that may need protection under the ESA. Considering the current
status of the Aleutian Canada goose, we are removing the May 1
restriction so that management and control activities may be conducted
during the same period (March 11 through August 31) throughout all
States.
Environmental Assessment
We prepared an environmental assessment (EA) that analyzed two
alternative courses of action to address these earlier nesting and
later hatching dates and decrease local abundances of Canada geese that
nest in the lower 48 States and the District of Columbia:
(1) Maintain the current date restrictions specified in regulations
at 50 CFR 21.26, 21.49, 21.50, 21.51, and 21.52 on destruction of
resident Canada goose nests and eggs, and make no change to the
definition of resident Canada geese at 50 CFR 20.11 and 21.3 (No
action); and
(2) Revise the definition of resident Canada geese at 50 CFR 20.11
and 21.3, and allow destruction of resident Canada goose nests and eggs
at any time of year under 50 CFR 21.26, 21.49, 21.50, 21.51, and 21.52
(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-2018-0012. We
note that the amendment to Sec. 21.26 in regard to accounting for the
current status of the Aleutian Canada goose was not addressed in the
EA, but is a categorically excluded action (43 CFR 46.210) addressed in
an environmental action statement (EAS). The EAS can be found on our
website at http://www.fws.gov/birds or at http://www.regulations.gov at
Docket No. FWS-HQ-MB-2018-0012.
Review of Public Comments
We accepted comments on our April 25, 2018, proposed rule (83 FR
17987) for 30 days, ending May 25, 2018. During the public comment
period on the proposed rule, we received public comments from seven
private individuals (two of which were not relevant to this rule) and
one organization.
Summary of Relevant Comments
The National Wildlife Control Operators Association supported the
proposed changes, but each of the private individuals opposed some
aspect(s) of the rule. One individual stated that we should allow
larger bag limits and more access to hunting locations instead of
conducting direct control operations, while another commenter expressed
opposition to capturing resident Canada geese on National Wildlife
Refuges and then euthanizing them, because this reduces hunting
opportunity. One commenter objected to the lethal control of a native
species and urged the Service to expend its resources on invasive
species and recovering endangered species instead, and two individuals
expressed opposition to the killing of any animals.
Service Response to Relevant Comments
Hunting harvest alone has not reduced resident Canada goose numbers
enough to alleviate conflicts in some areas, despite long hunting
seasons and large bag limits; also, the hunting season does not
coincide with the time when many conflicts with geese, such as crop
depredation, need to be addressed. Furthermore, many locales frequented
by Canada geese are either closed to hunting for safety purposes (e.g.,
airports, urban areas) or are privately owned, where access to hunters
can only be granted by the property owner. 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. The Service has a responsibility to reduce risks to
public safety (e.g., at airports) and 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. Therefore, this final rule does not
make any changes in response to these comments to the actions we
proposed on April 25, 2018 (83 FR 17987).
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 State and
local governments and the U.S. Department of Agriculture's Wildlife
Services because
[[Page 28772]]
of the structure of wildlife damage management. Data are not available
to estimate the exact number of local governments that will be
affected, but it is unlikely to be a substantial number nationally.
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 parts 20 and 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.
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
regulations change. 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 assigned OMB Control Number 1018-0133
(expires May 31, 2019, and in accordance with 5 CFR 1320.10, an agency
may continue to conduct or sponsor this collection of information while
the submission is pending at OMB). 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 and control orders that allows destruction of resident
Canada goose nests and eggs at any time of year; that environmental
assessment is included in the docket for this rule (available at http://www.regulations.gov; Docket No. FWS-HQ-MB-2018-0012). We conclude that
our action will have the impacts listed below under ``Environmental
Consequences of the Action.'' The amendment to Sec. 21.26 in regard to
accounting for the current status of the Aleutian Canada goose was not
addressed in the EA, but is a NEPA categorically excluded action (43
CFR 46.210) addressed in an environmental action statement (EAS), which
is also included in the docket for this rule (available at http://www.regulations.gov; Docket No. FWS-HQ-MB-2018-0012).
Environmental Consequences of the Action
Migrant Canada geese do not nest in the lower 48 States or the
District of Columbia; thus, this action (amendments related only to
depredation and control orders) is not expected to have any significant
impacts on migrant Canada geese. All resident Canada goose population
abundances are well above population objectives. Assuming that the
number of resident Canada geese that initiate nests in January or
February does not exceed the current number that initiate nests in
March, we expect that this action will result in destruction of a
maximum of 2,749 additional nests in January and February. We expect it
is more likely that the action will shift some portion of the current
resident Canada goose nest and egg destruction activities occurring in
March to either January or February. All populations of resident Canada
geese are expected to remain at or above population objective levels.
Socioeconomic. This action is expected to have positive impacts on
the socioeconomic environment in localized urban and suburban areas
where resident Canada geese are subjected to continued (annual) nest
and egg destruction actions that gradually reduce goose numbers and
resulting conflicts. It is also expected to reduce crop depredation at
some localized agricultural sites where nest destruction can encourage
geese to leave the site.
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)). This 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.
[[Page 28773]]
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 Parts 20 and 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Regulation Promulgation
For the reasons stated in the preamble, we hereby amend parts 20
and 21, of subchapter B, chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
PART 20--MIGRATORY BIRD HUNTING
0
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.
0
2. Amend Sec. 20.11 by revising paragraph (n) to read as follows:
Sec. 20.11 What terms do I need to understand?
* * * * *
(n) Resident Canada geese means Canada geese that nest within the
lower 48 States and the District of Columbia or that reside within the
lower 48 States and the District of Columbia in the months of April,
May, June, July, or August.
PART 21--MIGRATORY BIRD PERMITS
0
3. The authority citation for part 21 continues to read as follows:
Authority: 16 U.S.C. 703-712.
0
4. Amend Sec. 21.3 by revising the definition for ``Resident Canada
geese'' to read as follows:
Sec. 21.3 Definitions.
* * * * *
Resident Canada geese means Canada geese that nest within the lower
48 States and the District of Columbia or that reside within the lower
48 States and the District of Columbia in the months of April, May,
June, July, or August.
* * * * *
0
5. Amend Sec. 21.26 by revising paragraph (d)(2) to read as follows:
Sec. 21.26 Special Canada goose permit.
* * * * *
(d) * * *
(2) When may a State conduct management and control activities?
States and their employees and agents may conduct egg and nest
manipulation activities at any time of year. Other management and
control activities, including the take of resident Canada geese, under
this section may only be conducted between March 11 and August 31.
* * * * *
0
6. Amend Sec. 21.49 by revising paragraph (d)(3) to read as follows:
Sec. 21.49 Control order for resident Canada geese at airports and
military airfields.
* * * * *
(d) * * *
(3) Airports and military airfields may conduct management and
control activities, involving the take of resident Canada geese, under
this section between April 1 and September 15. The destruction of
resident Canada goose nests and eggs may take place at any time of
year.
* * * * *
0
7. Amend Sec. 21.50 by revising paragraph (d)(4) to read as follows:
Sec. 21.50 Depredation order for resident Canada geese nests and
eggs.
* * * * *
(d) * * *
(4) Registrants may conduct resident Canada goose nest and egg
destruction activities at any time of year. Homeowners' associations
and local governments or their agents must obtain landowner consent
prior to destroying nests and eggs on private property within the
homeowners' association or local government's jurisdiction and be in
compliance with all State and local laws and regulations.
* * * * *
0
8. 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) Authorized agricultural producers and their employees and
agents may conduct management and control activities, involving the
take of resident Canada geese, under this section between May 1 and
August 31. The destruction of resident Canada goose nests and eggs may
take place at any time of year.
* * * * *
0
9. Amend Sec. 21.52 by revising paragraph (e)(3) to read as follows:
Sec. 21.52 Public health control order for resident Canada geese.
* * * * *
(e) * * *
(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 at any time of year.
* * * * *
Dated: June 13, 2019.
Karen Budd-Falen,
Deputy Solicitor for Parks and Wildlife, Exercising the Authority of
the Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-13097 Filed 6-19-19; 8:45 am]
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