Quiero saber acerca de...

24576

Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules
Environment and Climate Change summarized the Government of Canadas concerns in a public statement issued on December 18, 2020 https
www.canada.ca/en/environmentclimate-change/news/2020/12/ministerwilkinson-expresses-concern-overproposed-regulatory-changes-to-theunited-states-migratory-bird-treatyact.html. Minister Wilkinson voiced the Government of Canadas concern regarding the potential negative impacts to our shared migratory bird species of allowing the incidental take of migratory birds under the MBTA rule and the lack of quantitative analysis to inform the decision. He noted that the Government of Canadas interpretation of the proposed changes . . . is that they are not consistent with the objectives of the Convention for the Protection of Migratory Birds in the United States and Canada.
Additionally, in its public comments on the draft EIS for the MBTA rule, Canada stated that it believes the rule is inconsistent with previous understandings between Canada and the United States U.S., and is inconsistent with the long-standing protections that have been afforded to non-targeted birds under the Convention for the Protection of Migratory Birds in the United States and Canada . . . as agreed upon by Canada and the U.S. through Article I.
The removal of such protections will result in further unmitigated risks to vulnerable bird populations protected under the Convention. After further consideration, we have similar concerns to those of our treaty partner, Canada.
The protections for non-targeted birds noted by the Canadian Minister are part and parcel of the Canada Convention, as amended by the Protocol between the United States and Canada Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, which protects not only game birds hunted and trapped for sport and food, but also nongame birds and insectivorous birds. For instance, the preamble to the Convention declares saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless as its very purpose and declares that many of these species are . . . in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.
Convention between the United States and Great Britain on behalf of Canada for the Protection of Migratory Birds, 39
Stat. 1702 Aug. 16, 1916. Thus, whether one argues that the language of
VerDate Sep<11>2014

17:32 May 06, 2021

Jkt 253001

section 2 of the MBTA plainly prohibits incidental killing of migratory birds or is ambiguous in that regard, an interpretation that excludes incidental killing is difficult to square with the express conservation purposes of the Canada Convention. Moreover, until recently there had been a longstanding mutually held interpretation between the two treaty partners that regulating incidental take is consistent with the underlying Convention, as stated in an exchange of Diplomatic Notes in 2008.
While Canada expressed its position before the final rule on January 7, upon review, we now have determined that the concerns raised by the United States treaty partner counsel in favor of revocation of the rule.
In addition to the Canada Convention, the January 7 rule may also be inconsistent with the migratory bird conventions with Mexico, Japan, and Russia. The Japan and Russia Conventions both broadly call for the parties to prevent damage to birds from pollution. See Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Mar. 4, 1972, 25 U.S.T.
3329 Japan Convention; Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, 29 U.S.T.
4647 Russia Convention. The Protocols amending the Canada and Mexico Conventions contain similar language calling for the parties to seek means to prevent damage to birds and their environment from pollution. See Protocol between the Government of the United States 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, Dec. 14, 1995, S. Treaty Doc. No. 10428, T.I.A.S. 12721; Protocol Between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S. Treaty Doc. No. 10526.
Some of the relevant provisions include Article IV of the Protocol with Canada, which states that each party shall use its authority to take appropriate measures to preserve and enhance the environment of migratory birds, and in particular shall seek means to prevent damage to migratory birds and their environments, including damage resulting from pollution;
Article I of the Mexico Convention,
PO 00000

Frm 00064

Fmt 4702

Sfmt 4702

which discusses protecting migratory birds by means of adequate methods. . .; Article VIa of the Japan Convention, which provides that parties shall seek means to prevent damage to such birds and their environment, including, especially, damage resulting from pollution of the seas; and Articles IV1 and 2c of the Russia Convention, which require parties to undertake measures necessary to protect and enhance the environment of migratory birds and to prevent and abate the pollution or detrimental alteration of that environment, and, in certain special areas, undertake, to the maximum extent possible, measures necessary to protect the ecosystems in those special areas . . . against pollution, detrimental alteration and other environmental degradation.
The January 7 rule eliminates a source of liability for pollution that incidentally takes and kills migratory birds, a position that is difficult to square with the mutually agreed-upon treaty provisions agreeing to prevent damage to birds from pollution. The January 7 rule does not directly affect natural resource damage assessments conducted under the Comprehensive Environmental Response Compensation and Liability Act, the Oil Pollution Act, and the Clean Water Act to determine compensation to the public for lost natural resources and their services from accidents that have environmental impacts, such as oil spills. However, for oils spills such as the BP Deepwater Horizon Gulf oil spill and the Exxon Valdez oil spill in Alaska, significant penalties were levied in addition to those calculated under natural resource damage assessments based on incidental-take liability under the MBTA. Those fines constituted a large proportion of the total criminal fines and civil penalties associated with historical enforcement of incidental take violations. As noted in the EIS, the January 7 rule eliminates the Federal Governments ability to levy similar fines in the future, thereby reducing the deterrent effect of the MBTA and reducing funding for the North American Wetland Conservation Fund for the protection and restoration of wetland habitat for migratory birds.
In sum, the issues raised by the Government of Canada raise significant concerns regarding whether the January 7 rule is consistent with the Canada Convention, and questions also remain regarding that rules consistency with the other migratory bird Conventions.
We note as well that the primary policy justifications for the January 7 rule were resolving uncertainty and increasing
E:FRFM07MYP1.SGM

07MYP1