2013-26071. Migratory Bird Permits; Control Order for Introduced Migratory Bird Species in Hawaii

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

Nonnative species in Hawaii displace, compete with, and consume native species, some of which are endangered, threatened, or otherwise in need of additional protection. To protect native species, we propose to establish a control order for cattle egrets (Bubulcus ibis) and barn owls (Tyto alba), two introduced migratory bird species in Hawaii. We also make the supporting draft environmental assessment available for public comment.

DATES:

Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on February 3, 2014. Comments submitted by mail must be postmarked no later than February 3, 2014.

ADDRESSES:

You may submit comments by one of the following methods only:

• Federal eRulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments on Docket FWS-HQ-MB-2013-0070.
• U.S. mail or hand delivery: Public Comments Processing, Attention: FWS-HQ-MB-2013-0070; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, MS 2042-PDM; Arlington, VA 22203-1610.

FOR FURTHER INFORMATION CONTACT:

Dr. George T. Allen in Arlington, Virginia, at 703-358-1825 about the proposed rule, or Jenny Hoskins in Volcano, Hawaii, at 503-382-7056 about the draft environmental assessment.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Fish and Wildlife Service (Service) is the Federal agency delegated the primary responsibility for managing migratory birds. 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 allow the take of specific species of migratory birds for specific purposes without need for a Federal permit. In general, the Service establishes depredation orders 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 propose to add a control order to part 21 for cattle egrets (Bubulcus ibis) and barn owls (Tyto alba), two introduced migratory bird species in Hawaii.

Species Information

Cattle egrets and barn owls were both introduced into Hawaii in the late 1950s to deal with agricultural pests on farms and ranches. Both species have since significantly expanded in range and population size, and now pose a serious predation problem for various native Hawaiian bird species including several threatened and endangered species. Studies indicate that neither cattle egrets nor barn owls have been effective in controlling the pests for which they were introduced. In Hawaii, cattle egrets are now widespread on all of the main islands, as well as on the islands and atolls of the Northwestern Hawaiian islands. Barn owls are known to occur regularly on all of the main Hawaiian islands in all habitat types, from sea level to upper elevation forests, and in recent years have been sighted with increasing frequency on offshore islets. We are concerned that barn owls will soon have established populations in the Northwestern Hawaiian islands.

Cattle Egrets

Cattle egrets range throughout wetland areas, atolls, and open grasslands of the State. Cattle egrets have been observed to depredate the young of the endangered Hawaiian stilt (Himantopus mexicanus knudseni), Hawaiian coot (Fulica alai), Hawaiian common moorhen (Gallinula chloropus sandvicensis), and Hawaiian duck (Anas wyvilliana). On managed wetlands, increased cattle egret foraging behavior has been documented just as endangered waterbird chicks are hatching. On offshore islets and in the Northwestern Hawaiian islands, including Midway Island, cattle egrets have been documented preying on chicks of native ground-nesting seabirds, including multiple species of terns, noddies, and petrels. In upland areas, cattle egrets are believed to prey upon chicks of pueo—the Hawaiian short-eared owl (Asio flammeus sandwichensis). Predation on pueo chicks has been documented on Lānai, and is likely to be occurring on all other islands where both pueo and cattle egret occur together. Service National Wildlife Refuge (Refuge) personnel have documented cattle egrets following staff during routine management activities and advantageously preying on newly hatched waterbird chicks encountered. Cattle egrets are also known to forage on invertebrates in wetlands, competing with native birds for food resources.

Localized nonlethal control of cattle egrets has been ineffective. Service Refuge staff have recognized that some normal land management practices, such as mowing, may attract cattle egrets to areas colonized by endangered waterbird species. Though they have altered their management in such cases, the predation continues to be a problem. Having once located prey at a site, cattle egrets continue to forage at that site, even in the absence of the activities that first attracted them. Site-specific depredation permits have been issued for take of cattle egrets on multiple islands where they have been documented to prey on endangered species, but the sites are soon recolonized by egrets moving within and between islands.

Barn Owls

Though considered a rodent specialist throughout continental North America, barn owls in Hawaii have been documented preying upon multiple avian species and may pose a significant threat to nocturnally active seabirds. Seabird predation by barn owls has been documented on offshore islets, the coast of the main islands, and in montane forests where they are known predators of endangered Hawaiian petrels (Pterodroma sandwichensis) and threatened Newell's shearwaters (Puffinus auricularis newelli). Seabird mortality due to barn owl predation has been repeatedly documented on Maui Island on wedge-tailed shearwaters (Puffinus pacificus), on Lānai on Hawaiian petrels, and on Oahu's offshore islets on Bulwer's petrels (Bulweria bulwerii). Loss of adult petrels to owls is significant. Predation on breeding adults leads to reduced breeding success, and owl predation at all life stages prevents successful implementation of planned recovery actions for the species.

Control of barn owls has been attempted through nonlethal methods and localized take, but these methods have proven ineffective. Harassment and take of barn owls at endangered bird colony sites may result in harassment and potential capture of individuals of endangered species. To avoid such disturbance of endangered species, barn owls may need to be located and removed at nesting and roosting sites away from native bird colonies. As is the case with cattle egrets, site-specific take permits may result in temporary declines in barn owl populations, but those areas are soon recolonized by recruitment of birds within and between islands.

Proposed Regulations

Because nonlethal methods have been unsuccessful in reducing the problems caused by cattle egrets and barn owls in Hawaii and because these species are nonnative to Hawaii, we are proposing regulations that would allow take by certain authorized agencies. The agencies that we are proposing to authorize to conduct control activities are those that have functional and/or jurisdictional responsibility for controlling invasive species and protecting native species in the Hawaiian islands. The control methods that we propose to 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 without causing significant impacts to native species.

Public Comments on the Draft Environmental Assessment

We have analyzed this proposed rule in accordance with the National Environmental Policy Act (NEPA) (42 U.S.C. 432-437(f)) and have completed a draft environmental assessment (DEA), which is available at www.fws.gov/​migratorybirds and in the docket for this proposed rule. You may submit comments on the DEA to Migratory Bird Management, U.S. Fish and Wildlife Service, 911 Northeast 11th Avenue, Portland, OR 97232-4181. You can email comments on the DEA to [e-mail].

Public Comments on the Proposed Rule

We request comments on this proposed rule. 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.

If you submit a comment via http://www.regulations.gov,, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request that we withhold this information from public review, but we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection at http://www.regulations.gov,, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service (contact the person listed under FOR FURTHER INFORMATION CONTACT).

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 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 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 rule in a manner consistent with these requirements.

Executive Order 13112 Invasive Species

The proposed rule supports and enacts mandates of invasive species control detailed in Executive Order 13112 of February 3, 1999. Section 2 directs that:

(a) Each Federal agency whose actions may affect the status of invasive species shall, to the extent practicable and permitted by law,

(1) identify such actions;

(2) subject to the availability of appropriations, and within Administration budgetary limits, 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,

(iv) provide for restoration of native species and habitat conditions in ecosystems that have been invaded,

(v) conduct research on invasive species and develop technologies to prevent introduction and provide for environmentally sound control of invasive species, and

(vi) promote public education on invasive species and the means to address them; and

(3) not authorize, fund, or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species in the United States or elsewhere unless, pursuant to guidelines that it has prescribed, the agency has determined and made public its determination that the benefits of such actions clearly outweigh the potential harm caused by invasive species and that all feasible and prudent measures to minimize risk of harm will be taken in conjunction with the actions.

(b) Federal agencies shall pursue the duties set forth in this section in consultation with the Invasive Species Council, consistent with the Invasive Species Management Plan and in cooperation with stakeholders, as appropriate, and, as approved by the Department of State, when Federal agencies are working with international organizations and foreign nations.

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 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 the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. This proposed regulation change would 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 would not have a significant impact on a substantial number of small entities:

a. This rule would not have an annual effect on the economy of $100 million or more;

b. This rule would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, Tribal, or local government agencies, or geographic regions; and

c. This rule would 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:

a. This rule would not affect small governments. A small government agency plan is not required. Allowing control of introduced migratory bird species would not affect small government activities; and

b. This rule would not produce a Federal mandate. It is not a significant regulatory action.

Takings

This proposed 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 proposed rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under Executive Order 13132. It would not interfere with Hawaii's ability to manage itself or its funds. No significant economic impacts are expected to result from the proposed regulations change.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the 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

We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. Since this rule affects only two non-Federal government agencies, the reporting requirements do not require OMB approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

National Environmental Policy Act

We have analyzed this proposed rule in accordance with the National Environmental Policy Act (NEPA) (42 U.S.C. 432-437(f)) and U.S. Department of the Interior regulations at 43 CFR part 46. We have completed a draft environmental assessment of the proposed change, which is included in the docket for this proposed rule. We conclude that our preferred alternative would have the following impacts:

Socioeconomic. The proposed regulation change would have no discernible socioeconomic impacts.

Migratory bird populations. The proposed regulation change would not negatively affect native migratory bird populations. Neither species to be controlled is native to Hawaii.

Endangered and threatened species. The proposed regulation change would benefit endangered or threatened species or habitats important to them by reducing predation and competition by the cattle egret and the barn owl.

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 have determined that there are no potential effects on federally recognized Indian Tribes from the proposed regulation change. The proposed regulation change would 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 proposed rule would not affect energy supplies, distribution, or use. This action would 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)). The proposed regulation change would benefit listed species or habitats important to them by reducing predation and competition by the cattle egret and the barn owl.

Clarity of This Regulation

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.

List of Subjects in 50 CFR Part 21

• Exports
• Hunting
• Imports
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

Proposed Regulation Promulgation

For the reasons described in the preamble, we propose to amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

PART 21—MIGRATORY BIRD PERMITS

1. The authority for part 21 is revised to read as follows:

Authority: 16 U.S.C. 703-712.

2. Add § 21.55 to read as follows:

§ 21.55

Control order for introduced migratory birds in Hawaii.

(a) Control of cattle egrets and barn owls. Personnel of the agencies listed in paragraph (b) of this section may remove or destroy cattle egrets (Bubulcus ibis) or barn owls (Tyto alba), or their nests or eggs, 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) U.S. Fish and Wildlife Service;

(2) U.S. Department of Agriculture—Animal and Plant Health Inspection Service;

(3) U.S. Geological Survey;

(4) U.S. Department of Defense;

(5) National Park Service;

(6) Federal Aviation Administration;

(7) National Oceanic and Atmospheric Administration;

(8) Hawaii Department of Lands and Natural Resources—Division of Forestry and Wildlife;

(9) Hawaii Department of Agriculture;

(10) University of Hawaii—Pacific Cooperative Studies Units with program mandates to accomplish invasive species eradication and control. These include staff of the Kauai Invasive Species Committee, the Oahu Invasive Species Committee, the Maui Invasive Species Committee, the Molokai-Maui Invasive Species Committee, or the Big Island Invasive Species Committee.

(c) Means of take. (1) You may take cattle egrets and barn owls by means of egg oiling, egg and nest destruction, firearms, trapping, cervical dislocation, and CO₂ asphyxiation. Any time that euthanasia of a bird is necessary, you must follow the American Veterinary Medical Association Guidelines on Euthanasia.

(2) If you use a firearm 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 § 20.21(j) of this chapter for a list of approved nontoxic shot types. This requirement does not apply when using air rifles or air pistols.

(3) Eggs may 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 decoys, taped calls, or other luring devices as tools for locating and capture or removal of 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 kill cattle egrets and barn owls or destroy their nests or eggs under this order only in a way that complies with all applicable tribal, local, State, Federal, and/or territorial regulations. Any and all required authorizations must be obtained to conduct this activity.

(f) Release of injured or sick cattle egrets or barn owls. Wildlife rehabilitators, veterinarians, and all other individuals or agencies who receive sick or injured 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 release cattle egrets or barn owls in or transfer them to any other location.

(g) Disposal of cattle egret or barn owl carcasses, nests, or eggs. You may donate birds, nests, or eggs taken under this control order to public museums or public institutions for scientific or educational purposes; 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 or cultural use, offer for sale, or sell a cattle egret or a barn owl or any body parts, nests, or eggs removed under this section.

(h) Threatened or endangered species. You may not remove or destroy cattle egrets or barn owls or their nests or eggs 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. All agencies 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 species and number of birds taken, the months in which they were taken, and the county(ies) in which they were taken. The report for any of these agencies may be combined, as appropriate. Submit annual reports to the Regional Migratory Bird Permit Office in Portland, Oregon, at the address shown in § 2.2 of subchapter A of this chapter.

(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 immediately report the take to the Service Regional Migratory Bird Permit Office in Portland, Oregon, at the address shown in § 2.2 of subchapter A of this chapter .

(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 threatened or endangered species or any other bird species protected by the Migratory Bird Treaty Act (see § 10.13 of subchapter A of this chapter for the list of protected migratory bird species), or has otherwise violated Federal regulations. We will notify the affected agency by letter, and may change this control order accordingly.

Dated: September 17, 2013.

Michael J. Bean,

Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.