[Federal Register Volume 78, Number 212 (Friday, November 1, 2013)]
[Rules and Regulations]
[Pages 65578-65581]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26064]



Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-R9-MB-2012-0037; FF09M21200-134-FXMB1231099BPP0]
RIN 1018-AY65

Migratory Bird Permits; Depredation Order for Migratory Birds in 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


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

DATES: This regulation change will be effective on December 2, 2013.

ADDRESSES: This final rule as well as supplementary information used in 
its development, such as the public comments received, is available at 
http://www.regulations.gov at Docket No. FWS-R9-MB-2012-0037.

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

[[Page 65579]]

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 
depredating birds in California ``as may be necessary to safeguard any 
agricultural or horticultural crop in the county.'' The current 
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.
    On May 13, 2013, we published a proposed rule to update and clarify 
the regulations that carry out this depredation order (78 FR 27927). 
Our purpose was to bring the requirements of this depredation order in 
line with current regulations for other depredation orders under the 
MBTA and improve our ability to carry out our statutory responsibility 
to protect and conserve migratory birds.

Comments on the Proposed Rule

    We received five sets of comments on the proposed rule (78 FR 
27927, May 13, 2013).
    Comment. The lack of use of the depredation order outside of 
Fresno, Merced, Napa, and Sonoma shows that it is used on a limited 
basis. This does not support the conclusion that it's unnecessary 
outside of those four counties, instead it shows that it's used 
judiciously and should remain available for any county that needs it, 
if nonlethal control methods prove ineffective.
    Response. We do not wish to leave unused depredation orders in 
place or have them applicable in locations in which they have not been 
used. The lack of use of the depredation order outside the four 
counties for many years indicates that it is not needed there. 
Agricultural producers in counties outside those covered under the 
regulation can seek depredation permits to address crop losses due to 
migratory birds (through the regional offices, see http://www.fws.gov/migratorybirds/mbpermits/addresses.html).
    Comment. ``The main culprit of damage is Horned Lark which accounts 
for approximately 90% of the damage followed by the Crowned Sparrows. 
Usually the damage occurs December through April. Horned larks usually 
feed on the exterior rows of the fields while sparrows feed in the 
interior of the field so damage is easily distinguishable. In Fresno 
County, the House Finch rarely causes issues in these crops but does 
occur in vineyards and similar crops from time to time.''
    Response. We have reconsidered the likely distribution of horned 
larks, and will continue to allow their control under the depredation 
    Comment. ``The proposed rule also requires that a landowner 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 and that the county agriculture 
commissioner confirm that nonlethal measures have been undertaken to 
control or eliminate the problem prior to the use of lethal control. 
While Farm Bureau [California Farm Bureau Federation] supports the use 
of nonlethal methods when feasible, 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 won't work. With the proposed change, it is unclear 
whether lethal control methods could be on going.''
    Response. We agree that lethal control may be necessary in some 
instances, so we have retained the regulations allowing for lethal 
control. However, we also believe it is necessary to try to reduce take 
of migratory birds through the use of nonlethal controls. It will be 
easy to report on nonlethal control methods tried, such as the use of 
netting, the use of abatement raptors, or the use of noisemakers.
    Comment. ``[A]griculture should be allowed monetary compensation 
for crop or livestock damage or loss caused by wildlife that 
agricultural operators are unable to control.''
    Response. Compensation for agricultural losses due to migratory 
birds is neither provided for under the MBTA nor funded by Congress. 
The Federal Government does assist crop producers through the help from 
the U.S. Department of Agriculture, Animal and Plant Health Inspection 
Service's Wildlife Services.

Changes to the Regulations

    We revise Sec.  21.44 to:
    (1) specify in which California counties this regulation is 
applicable (Fresno, Merced, Napa, and Sonoma);
    (2) identify the species that may be taken (horned larks, house 
finches, and white-crowned sparrows);
    (3) specify the times of year that they may be taken;
    (4) require that landowners attempt nonlethal control each year 
prior to the use of lethal control;
    (5) require the use of nontoxic ammunition; and
    (6) update the requirement for reporting take under this 
depredation order. These changes will 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.

Changes From the Proposed Rule

    The annual report on activities conducted under the depredation 
order will require the use of form 3-202-20-2144. We made this change 
to clarify the reporting requirement.
    Based on comments received and the use of the order for horned 
larks, we add this species to this final rule and slightly change the 
period during which horned larks and white-crowned sparrows may be 
taken each year.

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

[[Page 65580]]

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 will 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 will 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 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 significant 
economic impacts to any small entities will result from the revisions. 
Any agricultural producers who qualify as small entities in those 
counties could still seek relief from depredating birds under these 
revisions. Under the current regulations, the county commissioners of 
agriculture have needed to comply with a reporting requirement, and the 
changes to this requirement should add minimal burden. Because we have 
determined that this action will not have a significant economic impact 
on a substantial number of small 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 will 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 will 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 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 

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. The 
revisions will not have significant effects. This regulation will 
minimally affect small government activities by changing the reporting 
requirement under the depredation order.
    b. This rule will not produce a Federal mandate of $100 million or 
more in any year. It is not 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 
will not interfere with the States' abilities to manage themselves or 
their funds. No significant economic impacts are expected to result 
from the 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 OMB 
control number. Because this rule affects only four county government 
agencies in California, OMB approval under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.) is not required for the annual report 
under Sec.  21.44(e).

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. As outlined in 43 
CFR 46.210(h), this regulations changes is categorically excluded from 
further NEPA analyses because it is a technical change that has 
primarily economic, social, individual, or institutional effects. This 
action will have neither a significant effect on the quality of the 
human or natural environment, nor unresolved conflicts concerning 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 determined that there are no potential effects on Federally 
recognized Indian Tribes from the regulations change. The regulations 
change will not interfere with Tribes' abilities to manage themselves 
or their funds or to regulate migratory bird activities on Tribal 

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

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

Compliance With Endangered Species Act Requirements

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

List of Subjects in 50 CFR Part 21

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

Regulation Promulgation

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

[[Page 65581]]


1. The authority citation for part 21 continues 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 horned larks, house finches, and 
white-crowned sparrows in California.

    Horned larks (Eremophila alpestris), 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 (see Sec.  21.41 in this subpart) is required for 
take of other migratory bird species, or for take of horned larks or 
white-crowned sparrows from May 1 through October 31.
    (a) When is take allowed under this depredation order?
    (1) Horned larks and white-crowned sparrows may be controlled from 
November 1 through April 30.
    (2) House finches may be controlled at any time.
    (b) Use of nonlethal control. Each season, 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, may 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 using FWS Form 3-202-20-2144. 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 year after control activities are undertaken.

    Dated: September 17, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
[FR Doc. 2013-26064 Filed 10-31-13; 8:45 am]