2013-11254. Migratory Bird Permits; Removal of Yellow-Billed Magpie and Other Revisions to Depredation Order

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), propose changes to the regulations governing control of depredating blackbirds, cowbirds, grackles, crows and magpies. The yellow-billed magpie (Pica nuttalli) is endemic to California and has suffered substantial population declines. It is a species of conservation concern. We propose to remove the species from the depredation order. After this change, a depredation permit would be necessary to control the species. We also propose to narrow the application of the regulation from protection of any wildlife to protection of threatened or endangered species only. We propose to add conditions for live trapping, which are not currently included in the regulation. Finally, we propose to refine the reporting requirement to gather data more useful in assessing actions under the order.

DATES:

Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on August 12, 2013. Comments submitted by mail must be postmarked no later than August 12, 2013. Comments on the information collection requirements are due no later than June 12, 2013.

ADDRESSES:

You may submit comments by either 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-R9-MB-2012-0027.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R9-MB-2012-0027; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203-1610.

We will not accept email or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

Submit comments on the information collection requirements to the Desk Officer for the Department of the Interior at Office of Management and Budget (OMB-OIRA) at [phone] (fax) or [e-mail] (email). Please provide a copy of your comments to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS 2042-PDM, 4401 North Fairfax Drive, Arlington, VA 22203 (mail), or [e-mail] (email).

FOR FURTHER INFORMATION CONTACT:

Dr. George Allen, 703-358-1825. You may review the Information Collection Request online at http://www.reginfo.gov. Follow the instructions to review Department of the Interior collections under review by OMB.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Fish and Wildlife 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 Russian Federation (formerly the Soviet Union). We implement the provisions of the MBTA through regulations in parts 10, 13, 20, 21, and 22 of the Code of Federal Regulations (CFR). Regulations pertaining to migratory bird permits are at 50 CFR 21; subpart D of part 21 contains regulations for the control of depredating birds.

A depredation order allows the take of specific species of migratory birds for specific purposes without need for a depredation permit. The depredation order for blackbirds, cowbirds, grackles, crows, and magpies (50 CFR 21.43) allows take when individuals of an included species are found “committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner that they are a health hazard or other nuisance.”

We established the depredation order for blackbirds and grackles in 1949 (14 FR 2446, May 11, 1949). The regulation specified that take of birds under the order was to protect agricultural crops and ornamental or shade trees. We added cowbirds to that depredation order in 1958 (23 FR 5481; July 18, 1958). In 1972, we added magpies and also expanded the order to cover depredations on livestock or wildlife or “when concentrated in such numbers and manner as to constitute a health hazard or other nuisance” (37 FR 9223; May 6, 1972). We added crows to the order in 1973 (38 FR 15448; June 12, 1973) and removed the tri-colored blackbird (Agelaius tricolor) in 1989 (54 FR 47524, November 15, 1989).

From 1989 until 2010, the depredation order at 50 CFR 21.43 pertained to “yellow-headed, red-winged, rusty, and Brewer's blackbirds, cowbirds, all grackles, crows, and magpies.” On December 8, 2008 (73 FR 74447), we proposed “to make the list of species to which the depredation order applies more precise by listing each species that may be controlled under the order.” We issued a final rule December 2, 2010 (75 FR 75153), which became effective January 3, 2011, and remains effective today, that revised 50 CFR 21.43 to include four species of grackles; three species each of blackbirds, cowbirds, and crows; and two species of magpies, including the yellow-billed magpie.

Proposed Revisions to Depredation Order

Removal of the Yellow-Billed Magpie

The yellow-billed magpie (Pica nuttalli) is an endemic species of California. It is found “primarily in the Central Valley, the southern Coast Ranges, and the foothills of the Sierra Nevada,” and is an “integral part of the oak savannah avifauna” in California (Koenig and Reynolds, 2009). Degradation of habitat is considered a threat to the species, though secondary poisoning may be a threat in some locations (Koenig and Reynolds, 2009).

The yellow-billed magpie is on the Service's list of Birds of Conservation Concern for the California/Nevada Region (USFWS, 2008). Recently, there have apparently been severe impacts of West Nile virus on the species (Crosbie et al. 2008, Ernest et al., 2010). Our concern for this species leads us to propose to remove it from the depredation order. If the final rule includes removal of this species, then individuals and organizations needing to deal with depredating yellow-billed magpies could apply for a depredation permit under 50 CFR 21.41.

Wildlife Depredation

For wildlife protection, we propose to limit application of this depredation order, which currently covers protecting all wildlife, to only allow take without a permit for protection of threatened or endangered species listed in 50 CFR 17.11(h), in counties in which the listed species occur as is shown to occur in the Service's Environmental Conservation Online System (http://ecos.fws.gov), or in designated critical habitat. Take to protect other species of wildlife can be allowed under depredation permits (see 50 CFR 21.41).

Trapping Conditions

We propose to add requirements regarding the use of traps to take birds listed in the order. Proposed regulations cover locating and checking traps, releasing nontarget birds, and using lure birds. We are particularly interested in suggestions about the frequency of trap checks (proposed paragraph (f)).

We are concerned that checking traps once per day, as we propose to require, may not be sufficient to limit take and loss of nontarget bird species. However, more frequent checks of traps may be difficult to accomplish, more expensive when traps are spread over wide areas, and could result in reduced trap performance, and may result in increased stress upon live lures. If we receive comments that substantiate the need for more frequent trap checks, we may require them in the final rule, and require authorization under depredation permits of less frequent trapping regimes, on a case-by-case basis.

Reporting

Under the current regulations, we cannot assess impacts of this order on nontarget species. Therefore, we propose to clarify that reporting of activities under this depredation order requires a summary of those activities and information about capture of nontarget species (proposed paragraph (i)).

Euthanasia

We propose to allow three methods of euthanasia that are considered humane by the American Veterinary Medical Association (2013, https://www.avma.org/​KB/​Policies/​Documents/​euthanasia.pdf). We solicit suggestions as to whether we should allow other methods of euthanasia.

Public Comments

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We will not accept comments sent by email or fax or to an address not listed in ADDRESSES. Finally, we will not consider mailed comments that are not postmarked by the date specified in DATES.

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 information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

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 (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 rule in a manner consistent with these requirements.

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.

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. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action would not have a significant economic impact on a substantial number of small entities because the yellow-billed magpie does not frequently cause depredation problems. Where it does, depredation permits could be issued to alleviate problems.

The only potential costs associated with this proposed regulations change is that a person needing a depredation permit to control yellow-billed magpies would have to pay the application fee for the permit, which is $100 for organizations and $50 for homeowners. For the reasons explained in the preamble, we believe that few entities would have cause to apply for these permits. Therefore, we do not believe that this proposed rule would have a significant economic impact on a substantial number of small entities. Accordingly, we certify that a regulatory flexibility analysis is not required.

This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)).

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.

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

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 “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the proposed regulation would not affect small government activities in any significant way.

b. This rule would not produce a Federal mandate of $100 million or greater in any year. It would not be a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings

In accordance with Executive Order 12630, the rule has no takings implications. A takings implication assessment is not required.

Federalism

This rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under Executive Order 13132. It would not interfere with the ability of States to manage themselves or their funds. No significant economic impacts are expected to result from the proposed change in the depredation order.

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 E.O. 12988.

Paperwork Reduction Act

This proposed rule contains new reporting requirements that we are submitting to the Office of Management and Budget (OMB) for review and approval under Sec. 3507(d) of the Paperwork Reduction Act (PRA). OMB has approved the current information collection requirements associated with the depredation orders in 50 CFR 21.43 and assigned OMB Control Number 1018-0146, which expires November 30, 2013. OMB has also approved the information collection requirements associated with migratory bird permits and assigned OMB Control Number 1018-0022, which expires February 28, 2014.

We are refining the reporting requirements at 50 CFR 21.43(i) to gather data that will be more useful in assessing actions taken under the order. At present, we cannot assess the impacts of the depredation order on nontarget species. Therefore, we clarify that reporting of activities under this regulation requires a summary of those activities and information about capture of nontarget species. We have developed FWS Form 3-202-2143 for respondents' use in submitting the annual report. We are proposing that the annual report contain the following new reporting requirements:

• GPS coordinates to three decimal places of the locations in which the birds were captured or killed. Only the county must be reported for captures by the USDA Animal and Plant Health Inspection Services, Wildlife Services that are conducted to protect agriculture operations, farming, or conservation practices.
• Species, if birds were taken for the protection of wildlife, or the crop, if birds were taken for the protection of agriculture.
• Method of take.
• Whether captured nontarget species were released, sent to rehabilitators, or died.
• If trapping was conducted, measures taken to minimize capture of nontarget species.

We are requesting that OMB assign a new control number for the new annual report requirements. When we publish the final rule, we will incorporate the new requirements into OMB Control Number 1018-0146 and discontinue the new number. An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

Title: New Annual Report Requirements for Take of Blackbirds, Cowbirds, Crows, Grackles, and Magpies, 50 CFR 21.43.

OMB Control Number: None. This is a new collection.

Service Form Number: 3-202-2143.

Type of Request: New collection.

Description of Respondents: Individuals, farmers, and State and Federal wildlife damage management personnel.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: Annually.

Estimated Number of Respondents: 250.

Estimated Number of Annual Responses: 250.

Estimated Completion Time per Response: 30 minutes.

Estimated Total Annual Burden Hours: 126 (rounded).

Estimated Total Nonhour Burden Cost: None.

As part of our continuing effort to minimize paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of the reporting burden, including:

(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on respondents.

Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at [phone] (fax) or [e-mail] (email). Please provide a copy of your comments to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS 2042-PDM, 4401 North Fairfax Drive, Arlington, VA 22203 (mail), or [e-mail] (email).

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 46 and have determined that the proposed changes can be categorically excluded from the NEPA process. This action would have no significant effect on the quality of the human environment, nor would it involve unresolved conflicts concerning alternative uses of available resources.

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 evaluated potential effects on federally recognized Indian Tribes and have determined that there are no potential effects. This rule would not interfere with the ability of Tribes to manage themselves or their funds or to regulate migratory bird activities on Tribal lands.

Energy Supply, Distribution, or Use (Executive Order 13211)

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This action would not be a significant energy action. Because this rule change would not significantly affect energy supplies, distribution, or use, 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)). We have concluded that the proposed regulation change would not affect listed species.

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 the ADDRESSES section. 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.

Literature Cited

Crosbie, S. P., W. D. Koenig, W. K. Reisen, V. L. Kramer, L. Marcus, R. Carney, E. Pandolfino, G. M. Bolen, L. R. Crosbie, D. A. Bell, and H. B. Ernest. 2008. Early impact of West Nile virus on the yellow-billed magpie (Pica nuttalli). Auk 125:542-550.

Ernest, H. B., L. W. Woods, and B. R. Hoar. 2010. Pathology associated with West Nile virus infections in the yellow-billed magpie (Pica nuttalli): a California endemic bird. Journal of Wildlife Diseases 46:401-408.

Koenig, W. and M. D. Reynolds. 2009. Yellow-billed Magpie (Pica nuttalli), The Birds of North America Online (A. Poole, Editor). Cornell Laboratory of Ornithology, Birds of North America Online: http://bna.birds.cornell.edu/​bna/​species/​180,, 27 January 2012.

U.S. Fish and Wildlife Service. 2008. Birds of Conservation Concern, 2008. Division of Migratory Bird Management, Arlington, Virginia.

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 propose to amend part 21 of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 21—MIGRATORY BIRD PERMITS

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

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

2. Revise § 21.43 to read as follows:

§ 21.43

Depredation order for blackbirds, cowbirds, crows, grackles, and magpies.

(a) Species covered.

Blackbirds	Cowbirds	Crows	Grackles	Magpies
Brewer's (Euphagus cyanocephalus)	Bronzed (Molothrus aeneus)	American (Corvus brachyrhynchos)	Boat-tailed (Quiscalus major)	Black-billed (Pica hudsonia)
Red-winged (Agelaius phoeniceus)	Shiny (Molothrus bonariensis)	Fish (Corvus ossifragus)	Common (Quiscalus quiscula)
Yellow-headed (Xanthocephalus xanthocephalus)	Brown-headed (Molothrus ater)	Northwestern (Corvus caurinus)	Great-tailed (Quiscalus mexicanus)
			Greater Antillean (Quiscalus niger)

(b) Conditions under which control is allowed. You do not need a Federal permit to control the species listed in paragraph (a) of this section in the following circumstances:

(1) Where they are seriously injurious to agricultural or horticultural crops or to livestock feed;

(2) When they cause a health hazard or property damage;

(3) To protect a threatened or endangered species in any county in which the species is shown to occur in the Service's Environmental Conservation Online System (http://ecos.fws.gov); or

(4) To protect a threatened or endangered species in designated critical habitat for the species.

(c) Non-lethal control efforts. You must attempt to control depredation by species listed under this depredation order using non-lethal methods before you may use lethal control.

(d) Ammunition. In most cases, if you use a firearm to kill migratory birds under the provisions of this section, you must use nontoxic shot or nontoxic bullets to do so. See § 20.21(j) of this chapter for a listing of approved nontoxic shot types. However, this prohibition does not apply if you use an air rifle or an air pistol for control of depredating birds.

(e) Access to control efforts. If you exercise any of the privileges granted by this section, you must allow any Federal, State, tribal, or territorial wildlife law enforcement officer unrestricted access at all reasonable times (including during actual operations) over the premises on which you are conducting the control. You must furnish the officer whatever information he or she may require about your control operations.

(f) Trapping conditions. You must comply with the following conditions if you attempt to trap any species under this order.

(1) You may possess, transport, and use a lure bird or birds of the species listed in paragraph (a) of this section that you wish to trap.

(2) You must check each trap at least once every day it is deployed.

(3) At temperatures above 80 °Fahrenheit, the traps must provide shade for captured birds.

(4) Each trap must contain adequate food and water.

(5) You must promptly release all healthy nontarget birds that you capture.

(6) You must send injured or debilitated nontarget birds to a federally permitted wildlife rehabilitator. You must report the captures in your annual report (see paragraph (i) of this section).

(g) Euthanasia. Captured birds of the species listed in paragraph (a) of this section may only be killed by carbon monoxide or carbon dioxide inhalation, or by cervical dislocation performed by well-trained personnel who are regularly monitored to ensure proficiency.

(h) Disposition of birds and parts. You may not sell, or offer to sell, any bird, or any part thereof, killed under this section, but you may possess, transport, and otherwise dispose of the bird or its parts, including transferring them to authorized research or educational institutions. If not transferred, the bird and its parts must either be burned, or buried at least 1 mile from the nesting area of any threatened or endangered migratory bird species.

(i) Annual report. Any person, business, organization, or government official acting under this depredation order must provide an annual report to the appropriate Regional Migratory Bird Permit Office. The use of FWS Form 3-202-2143 is preferred, but not required. The addresses for the Regional Migratory Bird Permit Offices are in § 2.2 of subchapter A of this chapter, and are on the form. The report is due by January 31st of the following year and must include the following information:

(1) The species and number of all birds captured or killed.

(2) The months in which the birds were captured or killed.

(3) The locations in which the birds were captured or killed.

(i) You must report the GPS coordinates to three decimal places of the locations.

(ii) However, only the county must be reported for captures by the U.S. Department of Agriculture's Animal and Plant Health Inspection Services, Wildlife Services that are conducted to protect agriculture operations, farming, or conservation practices.

(4) The purpose for which they were captured or killed (such as for protection of one or more threatened or endangered species, agriculture, human health and safety, or property). If taken for protection of wildlife, specify the species. If taken for protection of agriculture, specify the crop.

(5) The method of take.

(6) Whether captured nontarget species were released, sent to rehabilitators, or died.

(7) If you conducted trapping, measures you took to minimize capture of nontarget species, such as baiting traps with only white millet seed for capture of brown-headed cowbirds, and using traps that prevent raptors from entering.

(j) Compliance with other laws. You may trap and kill birds under this order only in a way that complies with all State, tribal, or territorial laws or regulations. You must have any State, tribal, or territorial permit required to conduct the activity.

(k) Information collection. The Office of Management and Budget has approved the information collection requirements associated with this depredation order and assigned OMB Control No. 1018-0146. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. You may send comments on the information collection requirements to the Service's Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS 2042-PDM, 1849 C Street, NW., Washington, DC 20240.

Dated: April 17, 2013.

Rachel Jacobson,

Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.