[Federal Register Volume 84, Number 122 (Tuesday, June 25, 2019)]
[Proposed Rules]
[Pages 29835-29838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13485]
[[Page 29835]]
=======================================================================
-----------------------------------------------------------------------
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
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
amend the depredation order that allows take of resident Canada geese
at agricultural facilities by authorized personnel between May 1 and
August 31. This time period is too restrictive in portions of the
Atlantic Flyway where specific crops are now being planted and
depredated prior to May 1. Under this proposal, we would allow 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: Comments on this proposed rule must be received by August 26,
2019.
ADDRESSES: Document availability: You may obtain copies of the related
environmental assessment at http://www.regulations.gov in Docket No.
FWS-HQ-MB-2018-0080.
Comment submission: You may submit comments by either one of the
following methods. Please do not submit comments by both.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-HQ-
MB-2018-0080.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-HQ-MB-2018-0080; Division of Policy, Performance, and
Management Programs; U.S. Fish and Wildlife Service; MS: BPHC; 5275
Leesburg Pike; Falls Church, VA 22041-3803.
We will not accept email or faxes. We will post all comments on
http://www.regulations.gov, including any personal information you
provide. See Public Comments, below, for more information.
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.
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 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,
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, and the destruction
of resident Canada goose nests and eggs between March 1 and June 30, at
50 CFR 21.51.
On June 20, 2019, we published in the Federal Register (84 FR
28769) a final rule to amend our Canada goose depredation and control
orders,
[[Page 29836]]
including the depredation order at 50 CFR 21.51, to allow destruction
of resident Canada goose nests and eggs at any time of year.
This Proposed Rule
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. This proposed rule would 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.
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-12-13). 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-13-15). 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.
Public Comments
You may submit your comments and supporting materials by one of the
methods listed in ADDRESSES. We will not consider comments sent by
email or fax, or written comments sent to an address other than the one
listed in ADDRESSES. Comments and materials we receive, as well as
supporting documentation we used in preparing this proposed rule, are
available for public inspection at http://www.regulations.gov. We will
post your entire comment--including your personal identifying
information--on http://www.regulations.gov. You may request at the top
of your document that we withhold personal information such as your
street address, phone number, or email address from public review;
however, we cannot guarantee that we will be able to do so.
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 have developed this proposed 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 would 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 would 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 proposed rule would primarily affect
agricultural producers, but the impacts would be beneficial to those
entities because their crops would be afforded better protection. Data
are not available to estimate the exact number of agricultural
facilities that would benefit from this proposed rule, but it is
unlikely to be a substantial number at the Atlantic Flyway-wide scale.
Therefore, we certify that, if adopted as proposed, this rule will not
have a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under SBREFA (5 U.S.C.
804(2)). It would not have a significant impact on a substantial number
of small entities.
This rule would not have an annual effect on the economy of $100
million or more. This rule would 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 would
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 proposed rule is expected to be an Executive Order (E.O.)
13771 (82 FR 9339, February 3, 2017) deregulatory action because it
would relieve a restriction in 50 CFR part 21.
[[Page 29837]]
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 proposed rule would not ``significantly or uniquely''
affect small government activities. A small government agency plan is
not required.
b. This proposed rule would 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 proposed rule does not contain
a provision for taking of private property, and would not have
significant takings implications. A takings implication assessment is
not required.
Federalism
This proposed rule would not interfere with the States' abilities
to manage themselves or their funds. We do not expect any economic
impacts to result from this proposed revision to the regulations. This
rule would 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 proposed 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 proposed 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
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 proposed 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 proposed amendment of the
depredation order that would allow 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 proposed rule. We conclude that our proposed action would have the
impacts listed below under Environmental Consequences of the Action.
The docket for this proposed 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 would have
minimal impact to the overall population status of resident Canada
geese in any participating State or 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 would be 279 geese.
Population-level impacts to any individual population of migrant geese
would be minimal.
Socioeconomic. This proposed 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 proposed rule would 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
proposed rule would 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 proposed rule
would not interfere with the tribes' abilities to manage themselves or
their funds or to regulate migratory bird activities on tribal lands.
Clarity of This Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is not a
significant regulatory action under E.O. 13211, and would not
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action. No Statement of Energy
Effects is required.
[[Page 29838]]
List of Subjects in 50 CFR part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
For the reasons stated in the preamble, we hereby propose to 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:
------------------------------------------------------------------------
Where When
------------------------------------------------------------------------
(A) In the Atlantic Flyway States of Between April 1 and
Connecticut, Delaware, Florida, Georgia, August 31.
Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, North
Carolina, Pennsylvania, Rhode Island, South
Carolina, Vermont, Virginia, and West
Virginia.
(B) In the Mississippi and Central Flyway Between May 1 and August
portions of these States: Alabama, Arkansas, 31.
Colorado, 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.
------------------------------------------------------------------------
(ii) Destroy the nests and eggs of resident Canada geese 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. 2019-13485 Filed 6-24-19; 8:45 am]
BILLING CODE 4333-15-P