Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations 65595 

DELIVERY TICKETS—ALTERNATE I 

(NOV 2014) 

(a) The Contractor shall complete delivery 

tickets in the number of copies required and 

in the form approved by the Contracting 

Officer, when it receives the articles to be 

serviced. 

(b) The Contractor shall include one copy 

of each delivery ticket with its invoice for 

payment. 

(c) Before the Contractor picks up articles 

for service under this contract, the 

Contracting Officer will ensure that— 

(1) Each bag contains only articles within 

a single bag type as specified in the schedule; 

and 

(2) Each bag is weighed and the weight and 

bag type are identified on the bag. 

(d) The Contractor shall, at time of 

pickup— 

(1) Verify the weight and bag type and 

record them on the delivery ticket; and 

(2) Provide the Contracting Officer, or 

representative, a copy of the delivery ticket. 

(e) At the time of delivery, the Contractor 

shall record the weight and bag type of 

serviced laundry on the delivery ticket. The 

Contracting Officer will ensure that this 

weight and bag type are verified at time of 

delivery. 

(End of clause) 

Alternate II. As prescribed in 

237.7101(e)(3), use the following clause, 

which includes paragraphs (c), (d), and 

(e) not included in the basic clause: 

DELIVERY TICKETS—ALTERNATE II 

(NOV 2014) 

(a) The Contractor shall complete delivery 

tickets in the number of copies required and 

in the form approved by the Contracting 

Officer, when it receives the articles to be 

serviced. 

(b) The Contractor shall include one copy 

of each delivery ticket with its invoice for 

payment. 

(c) Before the Contractor picks up articles 

for service under this contract, the 

Contracting Officer will ensure that each bag 

is weighed and that the weight is identified 

on the bag. 

(d) The Contractor, at time of pickup, shall 

verify and record the weight on the delivery 

ticket and shall provide the Contracting 

Officer, or representative, a copy of the 

delivery ticket. 

(e) At the time of delivery, the Contractor 

shall record the weight of serviced laundry 

on the delivery ticket. The Contracting 

Officer will ensure that this weight is verified 

at time of delivery. 

(End of clause) 

[FR Doc. 2014–26179 Filed 11–4–14; 8:45 am] 

BILLING CODE 5001–06–P 

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. 

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, redwinged, 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). 


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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 redwinged 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 yellowbilled magpie’s range. Therefore, it may 

simplify the regulation and increase 

ease of compliance to simply remove all 


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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 selfincriminate, 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. 


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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 Statelisted 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, 


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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations 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 MBTAprotected, 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 


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65600 Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations 

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 foreignbased 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: 

• 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. 

• 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. 

Requirement 

Estimated 

number of 

annual 

respondents 

Estimated 

number of 

annual 

responses 

Completion 

time per 

response 

Estimated 

annual burden 

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 hope_grey@

fws.gov (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. 


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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations 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 yellowbilled 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 

■ 1. The authority citation 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) 

Brown-headed (Molothrus 

ater) 

Fish (Corvus ossifragus) Common (Quiscalus 

quiscula) 

Yellow-headed 

(Xanthocephalus 

xanthocephalus) 

Shiny (Molothrus 

bonariensis) 

Northwestern (Corvus 

caurinus) 

Great-tailed (Quiscalus 

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 § 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 


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65602 Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations 

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° 

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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