[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27927-27930]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11255]



Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2012-0037; FF09M21200-234-FXMB1232099BPP0]
RIN 1018-AY65

Migratory Bird Permits; Depredation Order for Migratory Birds in 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We propose to revise the regulations that allow control of 
depredating birds in some counties in California. We propose to specify 
the counties in which this order is effective, to better identify which 
species may be taken under the order, to add a requirement that 
landowners attempt nonlethal control, to add a requirement for use of 
nontoxic ammunition, and to revise the reporting required. These 
changes would update and clarify the current regulations and enhance 
our ability to carry out our responsibility to conserve migratory 

DATES: Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11.59 p.m. Eastern time on 
August 12, 2013. Comments submitted by mail must be postmarked no later 
than August 12, 2013.

ADDRESSES: You may submit comments by either of the following two 
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket FWS-R9-MB-
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-R9-MB-2012-0037; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen at 703-358-1825.



    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 Soviet Union (Russia). We 
implement the provisions of the MBTA through regulations in parts 10, 
13, 20, 21, and 22 of title 50 of the Code of Federal Regulations 
(CFR). Regulations pertaining to migratory bird permits are at 50 CFR 
part 21; subpart D of part 21 contains regulations for the control of 
depredating birds.
    A depredation order allows the take of specific species of 
migratory birds for specific purposes without need for a depredation 
permit. The depredation order at 50 CFR 21.44 allows county 
commissioners of agriculture to authorize take of designated species of

[[Page 27928]]

depredating birds in California ``as may be necessary to safeguard any 
agricultural or horticultural crop in the county.''

Current Depredation Order

    Take of depredating birds has been reported under the depredation 
order at 50 CFR 21.44 in Fresno, Merced, Napa, and Sonoma counties in 
California in recent years, and some counties have reported take of 
species not authorized under the regulation. Because these are the only 
counties making use of the depredation order, we propose to limit 
future use of the order to these four counties.
    The depredation order allows take of horned larks (Eremophila 
alpestris), golden-crowned sparrows (Zonotrichia atricapilla), white-
crowned sparrows (Zonotrichia leucophrys), house finches (Carpodacus 
mexicanus) and ``other crowned sparrows'' where they cause agricultural 
damage. We believe the current wording of the regulation is unclear as 
``other crowned sparrows'' is imprecise. The only other U.S. sparrow 
with ``crowned'' in the name is the rufous-crowned sparrow (Aimophila 
ruficeps), which can be found in coastal California. However, the term 
``crowned'' might be applied to many other sparrow species that have 
feather patterns on their heads that people might call ``crowns.''

Proposed Changes

    We propose to revise Sec.  21.44 to:
    (1) Specify in which counties this regulation is applicable;
    (2) precisely identify the species that may be taken as described 
    (3) specify the times of year that they may be taken to maximize 
protection of affected crops and effectiveness of control operations;
    (4) require that landowners attempt nonlethal control each year;
    (5) require the use of nontoxic ammunition; and
    (6) update the requirement for reporting take under this 
depredation order.

These changes would bring the requirements of this depredation order in 
line with current regulations for other depredation orders under the 
MBTA and allow us to better carry out our statutory responsibility to 
protect and conserve migratory birds.
    This proposed rule would remove horned larks from the depredation 
order. Horned larks feed on ``a diversity of food types, primarily 
seeds and insects, but also some fruits'' (Beason 1995). Damage to some 
agricultural crops has been documented, including to crops in 
California (Beason 1995, Clark and Hygnstrom 1994). However, trapping 
and shooting of horned larks to limit depredation is considered 
ineffective (Clark and Hygnstrom 1994).
    In addition, the streaked horned lark subspecies, E. a. strigata, 
is endangered in Canada (Committee on the Status of Endangered Wildlife 
in Canada 2003), a Listing Priority 3 candidate species in the United 
States (76 FR 66370, October 26, 2011), and a subspecies of 
conservation concern in Washington and Oregon (USFWS 2008). Because the 
wintering locations of this subspecies may include parts of California, 
take of this subspecies would not be allowed under this depredation 
    Finally, we propose to remove golden-crowned sparrows, because none 
have been reported taken under the depredation order.

Public Comments

    We request comments on this proposed rule. You may submit your 
comments and supporting materials by one of the methods listed in 
ADDRESSES. We will not consider comments sent by email or fax, or 
written comments sent to an address other than the one listed in 
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request that we withhold this 
information from public review, but we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) 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. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule would not have a significant economic impact on a 
substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. Other than a minimal change in 
the resources needed to address the proposed reporting requirements, 
there are no costs associated with this regulations change.
    We have examined this rule's potential effects on small entities as 
required by the Regulatory Flexibility Act. Because only four counties 
have made use of this depredation order, we believe no economic impacts 
to any small entities will result from the proposed revisions. Any 
agricultural producers who qualify as small entities in those counties 
could still seek relief from depredating birds under these proposed 
revisions. Under the current regulations, the county commissioners of 
agriculture have needed to comply with a reporting requirement, and the 
proposed changes to this requirement should add minimal burden. Because 
we have determined that this action would not have a significant 
economic impact on a substantial number of small

[[Page 27929]]

entities, a regulatory flexibility analysis is not required.
    This rule is not a major rule under the SBREFA (5 U.S.C. 804 (2)). 
It would not have a significant impact on a substantial number of small 
    a. This rule does not have an annual effect on the economy of $100 
million or more.
    b. This rule would not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, tribal, or local 
government agencies, or geographic regions.
    c. This rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule would not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. The 
proposed revisions would not have significant effects. The proposed 
regulation would minimally affect small government activities by 
changing the reporting requirement under the depredation order.
    b. This rule would not produce a Federal mandate of $100 million or 
more in any year. It would not be a ``significant regulatory action.''


    This rule does not contain a provision for taking of private 
property. In accordance with Executive Order 12630, a takings 
implication assessment is not required.


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

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act of 1995

    We may not conduct or sponsor and you are not required to respond 
to a collection of information unless it displays a currently valid 
Office of Management and Budget (OMB) control number. Because this rule 
affects only four county government agencies in California, the annual 
report does not require OMB approval under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

National Environmental Policy Act

    We have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and U.S. 
Department of the Interior regulations at 43 CFR part 46. We have 
completed an Environmental Action Statement stating that this action 
would have neither a significant effect on the quality of the human 
environment, nor unresolved conflicts concerning uses of available 

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have determined that there are no potential effects on Federally 
recognized Indian Tribes from the proposed regulations change. The 
proposed regulations change would not interfere with Tribes' abilities 
to manage themselves or their funds or to regulate migratory bird 
activities on Tribal lands.

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

    This rule only affects depredation control of migratory birds, and 
would not affect energy supplies, distribution, or use. This action 
would not be a significant energy action, and no Statement of Energy 
Effects is required.

Compliance With Endangered Species Act Requirements

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this chapter'' (16 
U.S.C. 1536(a)(1)). It further states that the Secretary must Ainsure 
that any action authorized, funded, or carried out... is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). The proposed 
regulations change would not affect listed species.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Does the description of the rule 
in the ``Supplementary Information'' section of the preamble help you 
to understand the proposed rule? What else could we do to make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to the Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street NW., Washington, 
DC 20240-0001. You also may email comments to Exsec@ios.doi.gov.

Literature Cited

Beason, Robert C. 1995. Horned Lark (Eremophila alpestris). Number 
195 in The Birds of North America Online. Edited by A. Poole. 
Ithaca, New York, Cornell Lab of Ornithology. Birds of North America 
Online, http://bna.birds.cornell.edu/bna/species/195doi:10.2173/bna.195.
Clark, J. P. and S. E. Hygnstrom. 1994. Horned Larks. Number 64 in 
The Handbook: Prevention and Control of Wildlife Damage. http://digigalcommons.unl.edu/icwdmhandbook/64.
Committee on the Status of Endangered Wildlife in Canada. 2003. 
COSEWIC Assessment and Status Report on the Horned Lark Strigata 
subspecies, Eremophila alpestris strigata. Canadian Wildlife 
Service, Environment Canada, Ottawa, Ontario, Canada.
U.S. Fish and Wildlife Service. 2008. Species of Conservation 
Concern. U.S. Fish and Wildlife Service, Arlington, Virginia.

List of Subjects in 50 CFR Part 21

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

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

[[Page 27930]]


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

    Authority:  16 U.S.C. 703-712.
2. Revise Sec.  21.44 to read as follows:

Sec.  21.44  Depredation order for house finches and white-crowned 
sparrows in California.

    House finches (Carpodacus mexicanus) and white-crowned sparrows 
(Zonotrichia leucophrys) may be taken in Fresno, Merced, Napa, and 
Sonoma Counties in California if they are depredating on agricultural 
or horticultural crops. Take of birds under this order must be done 
under the supervision of the county agriculture commissioner. You do 
not need a Federal permit for this depredation control as long as you 
meet the conditions below, but a depredation permit (Sec.  21.41 in 
this subpart) is required for take of other migratory bird species, or 
for take of white-crowned sparrows from 1 April through 30 September.
    (a) When is take allowed?
    (1) House finches may be controlled at any time.
    (2) White-crowned sparrows may be controlled from 1 October through 
31 March.
    (b) Use of nonlethal control. Each year, before lethal control may 
be undertaken, the landowner must attempt to use nonlethal control of 
migratory bird depredation as recommended by the U.S. Department of 
Agriculture, Animal and Plant Health Inspection Service, Wildlife 
Services. The county agriculture commissioner must confirm that 
nonlethal measures have been undertaken to control or eliminate the 
problem prior to the landowner using lethal control.
    (c) Ammunition. Except when using an air rifle or an air pistol, if 
firearms are used to kill migratory birds under the provisions of this 
regulation, the shooter 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.
    (d) Disposition of carcasses. Specimens useful for scientific 
purposes may be transferred to any entity authorized to possess them. 
If not transferred, all carcasses of birds killed under this order must 
be buried or otherwise destroyed. None of the above migratory birds 
killed, or the parts thereof, or the plumage of such birds, shall be 
sold or removed from the area where killed.
    (e) Annual report. Any county official acting under this 
depredation order must provide an annual report to the Regional 
Migratory Bird Permit Office. The use of FWS Form 3-202-2144 (see 
Service Web site) is preferred, but not required. The address for the 
Regional Migratory Bird Permit Office is in Sec.  2.2 of subchapter A 
of this chapter, and is on the form. The report is due by January 31st 
of the following year and must include the following information:
    (1) The name, address, phone number, and email address of the 
reporting County Commissioner;
    (2) The species and number of birds taken each month;
    (3) The disposition of the carcasses; and
    (4) The crop or crops that the birds were taken to protect.

    Dated: April 30, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-11255 Filed 5-10-13; 8:45 am]