[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Rules and Regulations]
[Pages 65595-65602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26270]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-R9-MB-2012-0027; FF09M29000-145-FXMB1232090000]
RIN 1018-AY60


Migratory Bird Permits; Removal of Yellow-billed Magpie and Other 
Revisions to Depredation Order

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), change 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 remove the 
species from the depredation order. A depredation permit will be 
necessary to control the species. We also narrow the application of the 
regulation from protection of any wildlife to protection of species 
recognized by the Federal Government, a State, or a Tribe as an 
endangered, threatened, or candidate species, or a species of special 
concern. We add conditions for live trapping, which are new to the 
regulation. Finally, we refine the reporting requirement to gather data 
more useful in assessing actions under the order.

DATES: This rule is effective December 5, 2014.

FOR FURTHER INFORMATION CONTACT: George Allen, 703-358-1825.

SUPPLEMENTARY INFORMATION: 

I. 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, crows, and horned 
owls to the depredation order, and we expanded the order to cover 
depredations on livestock or wildlife or ``when [the birds included in 
the order are] concentrated in such numbers and manner as to constitute 
a health hazard or other nuisance'' (37 FR 9223; May 6, 1972). We 
removed horned owls from the order in 1973 (38 FR 15448; June 12, 
1973), and we 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 on December 2, 2010 (75 FR 75153), which became effective on 
January 3, 2011, 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.

II. Changes to the Depredation Order

    On May 13, 2013, we published a proposed rule to further revise the 
depredation order (78 FR 27930), in which we proposed changes to the 
regulation as outlined below.

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).

[[Page 65596]]

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 remove it from the depredation order. 
Individuals and organizations needing to deal with depredating yellow-
billed magpies can apply for a depredation permit under 50 CFR 21.41.

Wildlife Depredation

    For wildlife protection by the public, we limit application of this 
depredation order, which currently covers protecting all wildlife, to 
only allow take without a permit for protection of: (1) a species 
recognized by the Federal Government as an endangered, threatened, or 
candidate species, in counties in which the species occurs, as shown in 
the Service's Environmental Conservation Online System (http://ecos.fws.gov); (2) species recognized by the Federal Government as 
endangered or threatened, in the species' designated critical habitat; 
and (3) species recognized by a State or Tribe as endangered, 
threatened, candidate, or of special concern on State or tribal lands. 
Species listed by the Federal Government as endangered or threatened 
species under the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), are set forth at 50 CFR 17.11(h) (for animals) and 
17.12(h) (for plants), and a list of Federal candidate species is 
available at http://ecos.fws.gov/tess_public/pub/candidateSpecies.jsp. 
Federal critical habitat designations are set forth at 50 CFR 17.95 for 
animals, 17.96 for plants, and 17.99 for plants in Hawaii.
    For wildlife protection by Federal, State, and Tribal agencies, 
take for protection of a species recognized by the Federal Government, 
a State, or a Tribe as an endangered, threatened, candidate species, or 
a species of special concern is allowed anywhere in the United States.
    For the public and Federal, State, and Tribal agencies, take to 
protect other species of wildlife will require a depredation permit 
(see 50 CFR 21.41).

Trapping Conditions

    We add requirements regarding the use of traps to take birds listed 
in the depredation order. The regulations cover locating and checking 
traps, releasing nontarget birds, and using lure birds.

Reporting

    Under the current regulations, we cannot assess impacts of this 
order on nontarget species. Therefore, we clarify that reporting of 
activities under this depredation order requires a summary of those 
activities and information about capture of nontarget species (see the 
Regulation Promulgation section, below).

Euthanasia

    We allow three methods of euthanasia that are considered humane by 
the American Veterinary Medical Association (2013, https://www.smashwords.com/books/view/292011 (see the Regulation Promulgation 
section, below).

III. Comments on the Proposed Rule

    We received nine comments on the proposed rule. We respond to the 
issues raised in the comments on the proposed rule below. Similar 
issues are grouped for efficiency. We did not make significant changes 
from the proposed rule, but changes we made are noted in response to 
comments.
    Comment (1): ``We oppose the removal of the yellow-billed magpie 
from the depredation order; retaining the yellow-billed magpie in the 
depredation order will preserve agricultural productivity. Crop and 
livestock damage from wildlife can result in significant losses to 
agricultural producers. In 2009, the U.S. Department of Agriculture's 
National Wildlife Research Center estimated economic impacts of annual 
vertebrate pests caused crop losses to be between $168 million and $504 
million for a 10-county area in California. Further, according to the 
Internet Center for Wildlife Damage Management, a nonprofit center 
founded jointly by the Cornell University, University of Nebraska--
Lincoln, Clemson University, and Utah State University, both black and 
yellow-billed magpies cause damage to crops and livestock. Magpies can 
cause substantial local damage to crops such as almonds, cherries, 
corn, walnuts, melons, grapes, peaches, wheat, figs, and milo. Magpies 
also pick at open wounds and scabs on livestock backs, which can become 
infected. Magpies are also known to peck the eyes of newborn and sick 
livestock. All of these damages contribute to the need for a 
depredation order for yellow-billed magpie.''
    Our Response: We understand the issues raised by the commenter, but 
our mandate under the MBTA focuses on bird conservation. 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 remove it from the depredation order.
    Comment (2): Several commenters either agreed with our proposal or 
discussed bird species that were not a part of our proposal to revise 
the current depredation order. Specifically, the Pacific Flyway Council 
(PFC) agreed that removing the yellow-billed magpie from the 
depredation order is justified because this species is declining 
throughout its range. Another commenter stated that yellow-billed 
magpies are only present in the valleys and adjacent areas of central 
California, and while the commenter is not aware of any attempts at 
introduction to other regions, it does not seem that sufficiently 
similar habitats exist in other parts of the United States. The 
commenter, therefore, states that the yellow-billed magpie must be 
protected in its native range.
    Our Response: We appreciate the commenters' support of our 
proposal. We continue to believe that removing the yellow-billed magpie 
from the depredation order is appropriate. We make this change in this 
final rule.
    Comment (3): One commenter discussed the yellow-headed blackbird, 
Kern red-winged blackbird, and tricolored blackbird, noting that ``. . 
. the yellow-headed blackbird is a Bird Species of Special Concern in 
California due to a decline in breeding colonies throughout the State, 
the Kern red-winged blackbird is a Bird Species of Special Concern in 
California due to very limited distribution, and the tricolored 
blackbird (a Bird Species of Special Concern in California, a Service 
Focal Species, and a Service Bird of Conservation Concern) occurs in 
portions of California. The commenter noted that additional protection 
of these species might be warranted.
    Our response: We did not change the rule to address these species, 
though the commenter was correct. We may revise this regulation to 
prohibit take of take of Kern-red-winged blackbirds if we determine 
that it is warranted. Take of tricolored blackbirds is not allowed 
under the regulation.
    Comment (4): Black-billed magpies are absent from much of the 
yellow-billed magpie's range. Therefore, it may simplify the regulation 
and increase ease of compliance to simply remove all

[[Page 65597]]

magpies from the depredation order in the relevant counties of 
California.
    Our Response: We considered taking the action that the commenter 
suggested, but unless we determine that take of black-billed magpies 
under the depredation order is excessive, we will continue to allow 
black-billed magpies to be taken to protect livestock, in particular.
    Comment (5): The proposed rule's section on nonlethal control 
efforts could be clarified with an explanation of the documentation 
required regarding the manner in which nonlethal methods were attempted 
and deemed ineffective. Annual reports submitted under this depredation 
order should be required to include this information as well.
    Our Response: In this final rule (see the Regulation Promulgation 
section, below), paragraph (b)(6) of the revised 50 CFR 21.43 specifies 
that nonlethal control actions must be attempted each calendar year 
before lethal take is conducted by private citizens. The annual report 
for activities undertaken under this order requires simple information 
on nonlethal control methods attempted.
    Comment (6): One commenter stated that to ensure compliance, 
further clarification may be needed regarding how detailed the 
reporting needs to be in describing methods utilized to reduce the 
capture of nontargets. Another commenter stated that the proposed rule 
would require that a landowner attempt to use nonlethal control of 
migratory bird depredation, but it is unclear what constitutes an 
``attempt.'' It is important to recognize that lethal control can 
frequently be a significant part of a deterrent program. Often, 
nonlethal control methods become ineffective, and without continued 
lethal control as a part of a vertebrate pest management program, 
nonlethal actions will not work. The proposed changes to the 
regulations are unclear whether or not lethal control methods could be 
ongoing.
    Our Response: This final rule revises the regulations to allow 
lethal control by private individuals, with the condition that 
nonlethal control must be attempted each calendar year before lethal 
control is undertaken. If nonlethal control methods are ongoing, they 
need to be documented on the annual report, which does not need to be 
detailed. The reporting form provides space for descriptions of methods 
used, such as ``abatement raptors flown daily from 1 April through 31 
May,'' or ``netting placed over livestock feed from 1 November through 
30 April.'' We are adding examples of possible nonlethal control 
methods to 50 CFR 21.43(b)(6) (see the Regulation Promulgation section, 
below).
    Comment (7): Agriculture should be allowed monetary compensation 
for crop or livestock damage or loss caused by wildlife that 
agricultural operators are unable to control through nonlethal 
attempts.
    Our Response: The Service does not compensate for such losses.
    Comment (8): The current depredation order allows for control of 
species if they are ``committing or about to commit depredations on 
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.'' The proposal would narrow the agricultural 
conditions to the following: ``where they are seriously injurious to 
agricultural and horticultural crops or to livestock feed.'' The 
revised language removes the potential to prevent damage to 
agricultural productivity. This is significant, as it requires farmers 
to watch their crop being lost before they are legally allowed to take 
lethal action.
    Our Response: In several places, we are adopting regulatory 
language that is slightly different from the language we proposed. 
Specifically, concerning agricultural circumstances, this final rule 
states that a person does not need a Federal permit to control the 
covered species if they are ``causing serious injuries to agricultural 
or horticultural crops or to livestock feed.'' A farmer need not 
``watch their crop being lost'' before taking action. A farmer can 
attempt nonlethal controls before undertaking lethal controls. Farmers 
suffering losses are encouraged to consult with U. S. Department of 
Agriculture's (USDA's) Animal and Plant Health Inspection Service's 
(APHIS') Wildlife Services (WS) for expert advice on minimizing damage 
by migratory birds.
    Comment (9): Farm Bureau is opposed to the additional information 
that would be required in the annual reporting requirements included in 
the proposal. This reporting requirement would lead to a requirement 
that farmers self-incriminate, if they accidentally take a nontarget 
species in violation of the MBTA.
    Our Response: The reporting requirements proposed and in this final 
rule are the same as would be required of a depredation permittee. 
Intentional take of species not covered under the depredation order, or 
flagrant disregard of the prohibition on take of other species, would 
be grounds for prosecution. The Service compiles information on 
accidental take of other species to determine if particular species are 
at risk due to control actions taken under the depredation order.
    Comment (10): Farm Bureau recognizes the importance of conserving 
at-risk species and recognizes that information on accidental losses of 
these species would be helpful in improving their conservation. 
However, the risk that the proposed reporting requirements place on 
California farmers could be significant and could create an onerous 
paperwork burden. In addition to providing species and timing 
information, agricultural producers would be forced to disclose 
personal information about themselves and their operations. Farm Bureau 
opposes incorporating personal information. To address reporting 
concerns, we suggest creating a reporting requirement that allows 
agricultural producers to work cooperatively with their county 
agriculture commissioners to gather such information and submit it in 
an aggregate fashion. Providing an aggregate report, without individual 
identifying information, would provide the necessary information to 
improve species conservation without jeopardizing California farmers.
    Our Response: The information on the report form requires 
disclosure of limited information that often is publically available: 
name, address, telephone number, and email address. For private 
individuals, this information will not be disclosed to others. The 
information required on the report form will help the Service determine 
take of the species covered under the order, take of nontarget species, 
the locations of take, the methods of take, and the effectiveness of 
nonlethal control measures.
    Comment (11): One commenter believes the increased reporting 
requirements are justified to allow the Service to receive quality 
data, and believes the benefit of increased data reporting outweighs 
the burden on permittees. APHIS WS states that in the proposed rule, 
the Service estimates it will take 30 minutes to comply with the annual 
reporting requirements, but if the Service expands the reporting 
requirements as proposed, the estimated time to comply would be at 
least 4 hours to collect the information throughout the year and 
summarize it in the required report. While APHIS WS already collects 
some of the data as part of its internal reporting requirements, 
program personnel would still have to pull the data from our internal 
Management Information System and provide it in the required format.

[[Page 65598]]

    Our Response: We recognize that APHIS WS personnel may undertake 
much more trapping than many entities that might control depredation 
under the order. However, until we gather data on reporting times, we 
stand by our estimate of the average reporting time for all 
respondents.
    Comment (12): APHIS WS recommends that the Service retain the 
existing provision in its regulations that allows for the control of 
certain species of depredating birds under the depredation order to 
protect wildlife in general, not just endangered and threatened 
species. APHIS WS believes that limiting use of the depredation order 
to protect only endangered and threatened species is unnecessarily 
restrictive. Much of APHIS WS' work under the order protects unlisted 
wildlife species and is part of a cooperative multi-agency approach 
with the goal of preventing ``candidate'' species from advancing to 
listed endangered and threatened species. Additional restrictive 
measures in permit processes would not serve that goal. If the Service 
finds the use of ``wildlife'' to be too broad, then APHIS WS would 
recommend also including species of special concern and State-listed 
species. The inclusion of wildlife species covered under State 
conservation efforts would provide for additional protections while 
still narrowing the scope of this provision.
    Our Response: We concur with this suggestion. In this final rule, 
we allow take under the order to protect a species recognized by the 
Federal Government, a State, or a Tribe as an endangered, threatened, 
or candidate species, or a species of special concern.
    Comment (13): One commenter stated that changing the language of 
the depredation order so that the order may be applied only for the 
protection of endangered and threatened wildlife species is too 
restrictive to meet the needs of some States. In some instances, this 
depredation order has been applied to protect nonlisted wildlife 
species, such as nesting waterfowl and pheasants. The commenter 
recommended that the application of the depredation order remain more 
widely inclusive of all wildlife. The Idaho Department of Fish and Game 
(IDFG) also did not support limiting the application of the depredation 
order to allow take without a permit only for protection of endangered 
or threatened species. Such action would place unnecessary restrictions 
on State wildlife management activities and increase the administrative 
burden on both the applicant and permitting authority. Requiring States 
or other entities to apply for a depredation permit for individual 
control actions involving the removal of abundant migratory bird 
species (i.e., magpies and crows) with a long history of agricultural 
and wildlife impacts is inconsistent with the current Migratory Bird 
Program Strategic Plan for permitting: ``C-2: In cooperation with 
partners, develop and implement biologically sound permits, 
regulations, policies, and procedures to effectively manage and assess 
the take of migratory birds, while decreasing the administrative burden 
for permit applicants.'' Moreover, no population or harvest data for 
crows suggest that the take under the current hunting framework and 
depredation order has a population impact on this species that warrants 
further restrictions. Both crow and magpie populations are sustainable 
under the current depredation order authorization, and there is no need 
for further restrictions.
    Our Response: In 1972, we added magpies, crows, and horned owls to 
the depredation order, and we expanded the order to cover depredations 
on livestock or wildlife or ``when [the birds included in the order 
are] concentrated in such numbers and manner as to constitute a health 
hazard or other nuisance'' (37 FR 9223; May 6, 1972). We do not believe 
it is appropriate to allow take of the covered species simply because 
they might prey on MBTA-listed species. Nor is it appropriate to allow 
them to be killed wherever they occur to protect an introduced species, 
even if it is important to game bird hunting. The key threshold issue 
is whether the listed species cause substantial depredation problems in 
numerous locations, not whether their populations are large and can 
sustain take. Further, IDFG has not reported any take of covered 
species since the reporting requirement was put in place. Depredation 
permits are available to State and Tribal wildlife management agencies 
if depredation by the species covered (or other MBTA species) is shown 
to be a problem. See also our response to Comment (11), above.
    Comment (14): APHIS WS recommended that the Service allow for 
control work under the depredation order to take place beyond the 
borders of designated critical habitat for endangered and threatened 
species. Designated critical habitat may not provide an optimal or even 
practical location to effectively perform protective control, and many 
listed species do not have designated critical habitat. APHIS WS 
personnel often invest significant time in identifying daily patterns 
of targeted birds. This monitoring often helps APHIS WS personnel 
locate staging areas, roost sites, and landfills among other locations 
that are outside of the designated critical habitat but offer the most 
practical location to conduct control operations. Additionally, 
operating within designated critical habitat may be detrimental and 
unnecessarily disruptive to the protected species.
    Our Response: We concur with the commenter, and have made changes 
to incorporate this idea. In this final rule, for wildlife protection 
by the public, we limit application of the depredation order to only 
allow take without a permit for protection of: (1) A species recognized 
by the Federal Government as an endangered, threatened, or candidate 
species, in counties in which the species occurs, as shown in the 
Service's Environmental Conservation Online System (http://ecos.fws.gov); (2) a species recognized by the Federal Government as an 
endangered or threatened species, in its designated critical habitat; 
and (3) species recognized by a State or Tribe as endangered, 
threatened, candidate, or of special concern on State or tribal lands. 
For wildlife protection by Federal, State, and Tribal agencies, take 
for protection of species recognized by the Federal Government, a 
State, or a Tribe as endangered, threatened, candidate, or of special 
concern is allowed anywhere in the United States.
    Comment (15): Two commenters discussed the checking of traps in 
their comments. APHIS WS recommended maintaining the existing once-per-
day trap check as adequate to ensure availability of food, water, and 
shade and to maintain the welfare of captured birds. Trap locations are 
selected and traps are designed with the welfare of the birds in mind. 
APHIS WS always provides protection from rain and direct sunlight. 
Furthermore, the capture of nontarget birds is rare because APHIS WS 
uses traps with wire mesh grids that provide large enough openings for 
most nontargets to escape. Daily checks allow for the release of any 
nontargets that might remain. Some APHIS WS State offices cover remote 
locations, and if a provision requiring more frequent trap checks were 
to be finalized, the wildlife specialists and biologists in these 
locations would have to use alternative methods because they would be 
unable to make more than one visit to the trap site per day. It is 
important to note that alternative methods may not be as discriminating 
as trapping. The PFC recommended that traps be checked a minimum of 
once per day, as proposed, to reduce nontarget take at trap sites,

[[Page 65599]]

unless other information indicates that more frequent checks of traps 
are warranted.
    Our Response: This final rule requires that each trap must be 
checked at least once every day it is deployed. Therefore, a once-per-
day trap check is adequate under this rule.
    Comment (16): One commenter asked for clarification as to whether 
all injured and debilitated birds or just MBTA-protected, nontarget, 
injured and debilitated birds must be taken to wildlife rehabilitators. 
Additionally, some APHIS WS State Directors have pointed out that 
licensed wildlife rehabilitators may not be located within a practical 
distance in all States.
    Our Response: In this final rule, we revised the language under 
Trapping conditions (see the Regulation Promulgation section, below) 
concerning injured or debilitated, nontarget birds to address both of 
these concerns. This rule states, ``If a federally permitted wildlife 
rehabilitator is within 1 hour or less of your capture efforts, you 
must send injured or debilitated, nontarget, federally protected 
migratory birds to the rehabilitator.'' Birds of target species need 
not be sent to a rehabilitator. For a nontarget species, if no 
rehabilitator is closer than 1 hour away, you may euthanize an injured 
or debilitated bird unless the species is federally listed as an 
endangered, threatened, or candidate species, in which case you must 
deliver it to a permitted rehabilitator and report the take to the 
nearest U.S. Fish and Wildlife Service Field Office or Special Agent. 
Paragraph (g) provides options for euthanasia.
    Comment (17): The proposed rule states that methods of euthanasia 
would be limited to carbon monoxide or carbon dioxide inhalation, or by 
cervical dislocation performed by well-trained personnel who are 
regularly monitored to ensure proficiency. APHIS WS requests 
clarification that shooting and trapping remain authorized methods of 
take under the depredation order and that the listed euthanasia methods 
apply only to birds captured in traps.
    Our Response: Shooting and trapping remain authorized methods of 
take under the depredation order. The order's provisions for 
euthanasia, which we have revised in this final rule, allow captured 
birds and wounded or injured birds of the covered species to 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.
    Comment (18): APHIS WS recommended that reporting requirements be 
confined to nontarget take details only. If the intent of the proposed 
rule is to gather needed information about nontarget capture and the 
effects of trapping activities on nontarget species, then the newly 
proposed reporting requirements should be limited only to those 
species. Based on the language in the proposed rule, it is not clear 
that the collection of information regarding all species controlled 
under the depredation order would have sufficient utility to warrant 
the additional time spent recording the data in the required FWS 
format.
    Our Response: We disagree. It is important to know about nontarget 
take, but it is equally important for us to be able to compile 
information on the take of the species covered under the regulation. 
The annual report will require information on take of both target and 
nontarget species.
    Comment (19): APHIS WS believes that the Global Positioning System 
(GPS) requirement in the proposed rule may be onerous to farmers and 
other nongovernmental entities. The expense of having to purchase a GPS 
device could be burdensome to some individuals. Also, there should be 
consideration given to the fact that some individuals may lack the 
training or knowledge to properly use such devices.
    Our Response: We removed the requirement for GPS coordinates that 
was in the proposed rule. The annual report will require only the name 
of the county in which control activities were undertaken.

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 will 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 will 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 regulations change is 
that a person needing a depredation permit to control yellow-billed 
magpies will have to pay the application fee for the permit, which is 
$100 for organizations and $50 for homeowners in California. When we 
updated the Information Collection for this regulation in 2013, only 24 
entities reported take under the order. Of the 24, only three were in 
California, and only two were private entities.
    Because the reporting under this regulation indicates that it is 
not used by many entities, and is used primarily by state and federal 
agencies, we do not believe that these considerations or the other 
changes to the regulation (application, trapping conditions, 
euthanasia, or reporting will 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 will not have an annual effect on the economy of $100 
million or more.
    b. This rule will not cause a major increase in costs or prices for

[[Page 65600]]

consumers, individual industries, Federal, State, Tribal, or local 
government agencies, or geographic regions.
    c. This rule will 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 will not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. Actions 
under the regulation will not affect small government activities in any 
significant way.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year. It will 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 summary impact statement under Executive 
Order 13132. It will not interfere with the ability of States to manage 
themselves or their funds. No significant economic impacts are expected 
to result from the change in the depredation order.

Civil Justice Reform

    The Department, in promulgating this rule, has determined that this 
rule will not unduly burden the judicial system and that it meets the 
requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule contains a collection of information that we submitted 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 
information collection requirements and assigned OMB Control Number 
1018-0146, which expires 10/31/2017. 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. We 
have revised the information collection requirements as follows:
    <bullet> 50 CFR 21.43(f)(6) requires that when an injured or 
debilitated bird of a nontarget species is federally listed as an 
endangered, threatened, or candidate species, you must deliver it to a 
rehabilitator and report the take to the nearest U.S. Fish and Wildlife 
Service Field Office or Special Agent.
    <bullet> We have revised FWS Form 3-202-21-2143 (Annual Report--50 
CFR 21.43
    Depredation Order for Blackbirds, Cowbirds, Grackles, Crows, And 
Magpies) 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. 
The annual report contains the following new reporting requirements:
    (1) County in which the birds were captured or killed.
    (2) Species, if birds were taken for the protection of wildlife, or 
the crop, if birds were taken for the protection of agriculture.
    (3) Method of take.
    (4) Whether captured nontarget species were released, sent to 
rehabilitators, or died.
    (5) If trapping was conducted, measures taken to minimize capture 
of nontarget species.

Comments received on the reporting requirements are discussed above in 
the preamble. See comments (5), (6), (9), (10), (11), (16), (18), and 
(19).
    Title: Depredation Order for Blackbirds, Grackles, Cowbirds, 
Magpies, and Crows, 50 CFR 21.43.
    OMB Control Number: 1018-0146.
    Service Form Number: 3-202-21-2143.
    Type of Request: Revision of a currently approved 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 or on occasion.

----------------------------------------------------------------------------------------------------------------
                                          Estimated       Estimated
                                          number of       number of       Completion time per        Estimated
             Requirement                   annual          annual               response           annual burden
                                         respondents      responses                                    hours
----------------------------------------------------------------------------------------------------------------
Report Injured/Debilitated Birds.....               5               5  1 hour...................               5
Annual Report--FWS Form 3-202-21-2143              30              30  2.5 hours................              75
----------------------------------------------------------------------------------------------------------------

    Estimated Total Nonhour Burden Cost: None.
    You may send comments on any aspect of these information collection 
requirements to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Mailstop BPHC, 
Falls Church, VA 22041-3803 (mail) or <a href="/cdn-cgi/l/email-protection#f79f988792a89085928eb7918084d9909881"><span class="__cf_email__" data-cfemail="31595e41546e56435448715746421f565e47">[email protected]</span></a> (email).

National Environmental Policy Act

    We have analyzed this 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 changes can be categorically excluded from the NEPA process. 
This action will have no significant effect on the quality of the human 
environment, nor will 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 will 
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 will not be a 
significant energy action. Because this rule change will not 
significantly affect energy supplies, distribution, or use, no 
Statement of Energy Effects is required.

[[Page 65601]]

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 regulation change will not affect listed species.

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.

Regulation Promulgation

    For the reasons stated in the preamble, we amend part 21 of 
subchapter B, chapter I, title 50 of the Code of Federal Regulations, 
as follows:

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. Revise Sec.  21.43 to read as follows:


Sec.  21.43  Depredation order for blackbirds, cowbirds, crows, 
grackles, and magpies.

    (a) Species covered.

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

    (b) Conditions under which control is allowed by private citizens. 
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 causing serious injuries to agricultural or 
horticultural crops or to livestock feed;
    (2) When they cause a health hazard or structural property damage;
    (3) To protect a species recognized by the Federal Government as an 
endangered, threatened, or candidate species in any county in which it 
occurs, as shown in the Service's Environmental Conservation Online 
System (http://ecos.fws.gov);
    (4) To protect a species recognized by the Federal Government as an 
endangered or threatened species in designated critical habitat for the 
species; or
    (5) To protect a species recognized by a State or Tribe as 
endangered, threatened, candidate, or of special concern if the control 
takes place within that State or on the lands of that tribe, 
respectively.
    (6) Each calendar year, you must attempt to control depredation by 
species listed under this depredation order using nonlethal methods 
before you may use lethal control. Nonlethal control methods can 
include such measures as netting and flagging, the use of trained 
raptors, propane cannons, and recordings.
    (c) Conditions under which control is allowed by Federal, State, 
and Tribal employees. 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 causing serious injuries to agricultural or 
horticultural crops or to livestock feed;
    (2) When they cause a health hazard or structural property damage; 
or
    (3) To protect a species recognized by the Federal Government, a 
State, or a Tribe as an endangered, threatened, or candidate, species, 
or a species of special concern, including critical habitat for any 
listed species.
    (4) Each calendar year, you must attempt to control depredation by 
species listed under this depredation order using nonlethal methods 
before you may use lethal control. Nonlethal control methods can 
include such measures as netting and flagging, the use of trained 
raptors, propane cannons, and recordings. However, this requirement 
does not apply to Federal, State, or Tribal employees conducting brown-
headed cowbird trapping to protect a species recognized by the Federal 
Government, a State, or a Tribe as endangered, threatened, candidate, 
or of special concern.
    (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 Sec.  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

[[Page 65602]]

listed in paragraph (a) that you wish to trap.
    (2) You must check each trap at least once every day it is 
deployed.
    (3) At temperatures above 80[deg] 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) If a federally permitted wildlife rehabilitator is within 1 
hour or less of your capture efforts, you must send injured or 
debilitated nontarget federally protected migratory birds to the 
rehabilitator. If no rehabilitator is closer than 1 hour away, you may 
euthanize an injured or debilitated bird of a nontarget species unless 
the species is federally listed as an endangered, threatened, or 
candidate species, in which case you must deliver it to a rehabilitator 
and report the take to the nearest U.S. Fish and Wildlife Service Field 
Office or Special Agent.
    (7) You must report captures of nontarget federally protected 
migratory birds in your annual report (see paragraph (i) of this 
section).
    (g) Euthanasia. Captured birds and wounded or injured birds of the 
species listed in paragraph (a) 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 
migratory bird species recognized by the Federal Government, the State, 
or a Tribe as an endangered or threatened species.
    (i) Annual report. Any person, business, organization, or 
government official acting under this depredation order must provide an 
annual report using FWS Form 3-202-21-2143 to the appropriate Regional 
Migratory Bird Permit Office. The addresses for the Regional Migratory 
Bird Permit Offices are provided at 50 CFR 2.2, and are on the form. 
The report is due by January 31st of the following year and must 
include the information requested on the form.
    (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 at the address 
provided at 50 CFR 2.1(b).

    Dated: October 30, 2014.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-26270 Filed 11-4-14; 8:45 am]
BILLING CODE 4310-55-P


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