[Federal Register Volume 84, Number 170 (Tuesday, September 3, 2019)]
[Rules and Regulations]
[Pages 45921-45924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18954]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[Docket Number: FWS-HQ-MB-2018-0225; FF09M29000-190-FXMB12320900000]
RIN 1018-BB77
Migratory Bird Permits; Regulations Concerning a Depredation
Order
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are following up on a 2013 proposal to remove regulations
that set forth a means for controlling damage caused by certain
depredating
[[Page 45922]]
scrub jays and Steller's jays. We had proposed to remove the
regulations that set forth a depredation order for these species to
protect nut crops in certain counties in Washington and Oregon. Our
reason for the proposed removal of these regulations was that we
believed they were no longer necessary. However, we now withdraw this
proposal based on comments received, as well as reports of activities
conducted under this depredation order. Instead of removing the
regulations, we hereby make minor updates to them to ensure timely
reporting of activities conducted under this depredation order.
DATES: This rule is effective October 3, 2019.
ADDRESSES: The proposed rule, which published under RIN 1018-AX92, and
comments received are available at http://www.regulations.gov under
Docket No. FWS-R9-MB-2011-0100.
FOR FURTHER INFORMATION CONTACT: Eric Kershner, 703-358-2376,
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On November 4, 2013, we, the U.S. Fish and Wildlife Service
(Service), published a proposed rule (78 FR 65953) to remove certain
regulations concerning control activities for depredating migratory
birds from part 21 of title 50 of the Code of Federal Regulations.
These regulations, at 50 CFR 21.42, 21.45, and 21.46, set forth
provisions for depredation orders that allowed control activities to be
conducted without a permit issued by the Service. Prior to 2013, we had
received no reports of activities undertaken under these regulations
and no requests for authorization of a depredation order under these
regulations for many years. Because these regulations apparently were
unused, we proposed to remove them.
On March 25, 2015, we published a final rule (80 FR 15689) removing
the depredation orders at 50 CFR 21.42 and 21.45, as well as references
to those two sections that appeared in 50 CFR 21.41 and 21.53, as we
had received no comments on our 2013 proposal to remove those
regulations. However, we did receive comments on our proposal to remove
50 CFR 21.46. In the preamble to the March 25, 2015, final rule, we
stated that we would address our proposal to remove 50 CFR 21.46 and
respond to the comments we received concerning that proposal in a
separate document to be published later in the Federal Register.
Under 50 CFR 21.46, landowners, sharecroppers, tenants, or their
employees or agents actually engaged in the production of nut crops in
Washington and Oregon may, without a permit and in accordance with
certain conditions, take scrub jays (Aphelocoma coerulescens) and
Steller's jays (Cyanocitta stelleri) when these species are found
committing or about to commit serious depredations to nut crops on the
premises owned or occupied by such persons.
Comments on the Proposed Rule
In response to our November 4, 2013, proposed rule (78 FR 65953),
we requested that all interested parties submit written comments on the
proposal by February 3, 2014. During the public comment period, we
received eight comments on our proposal to remove 50 CFR 21.46. We
received comments from individuals, organizations, a State agency, and
the Pacific Flyway Council, an administrative body that forges
cooperation among public wildlife agencies for the purpose of
protecting and conserving migratory birds in western North America. All
comment letters are available at http://www.regulations.gov under
Docket No. FWS-R9-MB-2011-0100.
(1) Comment: One commenter was supportive of removing regulations
that are no longer used or outdated.
Response: At the time of the proposed rule we had not received a
report of activities conducted under 50 CFR 21.46 for 10 years.
However, in response to the proposed rule, we received comments stating
that this depredation order was being used, but activities had gone
unreported due to a lack of knowledge of the reporting requirements.
Since publishing the proposed rule, we have received annual permit
reports of activities conducted under this depredation order in the
period 2014-2017.
(2) Comment: Five commenters were opposed to the proposed removal
of 50 CFR 21.46 because it is currently being used by nut farmers in
Oregon and Washington; however, the activities have been underreported
due to a lack of awareness of reporting requirements.
Response: Since publishing the proposed rule in 2013, we have
received reports of activities conducted under 50 CFR 21.46 in 2014-
2017. As part of this document, which revises the 2013 proposed rule in
regard to 50 CFR 21.46, we have also changed the due date and mailing
address for the annual report.
(3) Comment: Two commenters were opposed to lethal take of birds.
Response: Lethal take is authorized under 50 CFR 21.46 as a tool to
help reduce damage to nut crops in specific counties of Oregon and
Washington caused by scrub jays and Steller's jays. As discussed in the
final rule that set forth the provisions of 50 CFR 21.46 (39 FR 31326,
August 28, 1974), before allowing the use of lethal take, the Service
evaluated other options, such as the use of scaring devices, but such
methods of reducing take proved to be ineffective or otherwise
unsatisfactory. In addition, Sec. 21.46(a) states that jays may only
be taken between 1 August and 1 December in any year, limiting the
season when birds can be taken. Take is limited to three counties in
Washington and nine counties in Oregon.
This Document
In response to the comments submitted and the annual reports
received, we are (1) withdrawing our proposal to remove 50 CFR 21.46
from the Code of Federal Regulations, (2) updating the reporting
requirements for activities conducted under the depredation order, and
(3) updating the taxonomy of scrub jays as stated in the rule.
We are revising paragraph (f) of Sec. 21.46 by: Updating the
report due date to January 31 of the year following activities
conducted under the depredation order, and updating the mailing address
for the submission of the report forms.
We solicited comments on the revised reporting requirements by
publishing a notice of information collection under OMB Control Number
1018-0146 (Dec. 8, 2017, 82 FR 58022). No comments were received, and
OMB approved the request on January 29, 2018.
We are also revising the common and scientific names of one of the
species covered by the depredation order, which pertains to scrub jays
and Steller's jays. The scientific name for scrub jay in the
introductory text of Sec. 21.46 is Aphelocoma coerulescens. However,
that is the currently accepted scientific name for the Florida scrub
jay. The currently accepted scientific name for the California scrub
jay, which is the species of concern to nut growers in Washington and
Oregon, is Aphelocoma californica, as listed in the List of Migratory
Birds at 50 CFR 10.13. Accordingly, we are amending Sec. 21.46 to
change the scientific name and replace all references to ``scrub jays''
with ``California scrub jays.''
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
[[Page 45923]]
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 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. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act. This action will not have a significant economic
impact on any small entity, so a regulatory flexibility analysis is not
required. There are no costs associated with the nonsubstantive changes
we are making to the regulations regarding the depredation order to
protect nut crops in Washington and Oregon. Entities that undergo
control activities under the depredation order are already required to
report on their activities to the Service.
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
entities:
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.
This rule will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following.
a. This rule will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. It is not a ``significant regulatory action.''
Takings
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.
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 States' abilities to manage
themselves or their funds.
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
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
previously approved the information collection requirements associated
with depredation orders and assigned OMB Control Number 1018-0146
(expires January 31, 2021). An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
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 part 46. This rule can
be classified as a policy, directive, regulation, and guideline that is
of an administrative nature (43 CFR 46.210(i)) and are changes to an
already approved action and will have no or minor potential
environmental impacts (DM Part 516) and therefore 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 determined that there are no potential effects on Federally
recognized Indian Tribes from this final rule. The regulatory revisions
will 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 will affect only one depredation order for migratory
birds and will not affect energy supplies, distribution, or use. This
is not 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)). Our consultation
concluded that the regulations are not likely to jeopardize
[[Page 45924]]
the continued existence of any endangered or threatened species, nor
result in the destruction or adverse modification of their critical
habitat.
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:
PART 21--MIGRATORY BIRD PERMITS
0
1. The authority citation for part 21 continues to read as follows:
Authority: 16 U.S.C. 703-712.
0
2. Amend Sec. 21.46 by revising the section heading, introductory
text, and paragraphs (a), (b), and (f) to read as follows:
Sec. 21.46 Depredation order for depredating California scrub jays
and Steller's jays in Washington and Oregon.
Landowners, sharecroppers, tenants, or their employees or agents
actually engaged in the production of nut crops in Washington and
Oregon may, without a permit, take California scrub jays (Aphelocoma
californica) and Steller's jays (Cyanocitta stelleri) when found
committing or about to commit serious depredations to nut crops on the
premises owned or occupied by such persons: Provided:
(a) That California scrub jays and Steller's jays may only be taken
pursuant to this section between August 1 and December 1 in any year,
in the Washington counties of Clark, Cowlitz, and Lewis; and the Oregon
counties of Benton, Clackamas, Lane, Linn, Marion, Multnomah, Polk,
Washington, and Yamhill.
(b) That California scrub jays and Steller's jays taken pursuant to
this section shall not be transported or sold or offered for sale
except that, such transportation within the area, as may be necessary
to bury or otherwise destroy the carcasses of such birds is permitted:
Provided, That the Director of the State agricultural department,
college, or other public institution may requisition such California
scrub jays and Steller's jays killed as may be needed for scientific
investigations.
* * * * *
(f) That any person authorized by this section to act under this
depredation order must provide an annual report of take during the
calendar year for each species by January 31st of the following year.
The report must include the number of birds taken for each species,
method of take, month(s) in which they were taken, county(ies) and
State(s) in which they were taken, purpose of take, and disposition.
Submit annual reports to the Pacific Region Migratory Bird Permit
Office in Portland, Oregon, at the address shown at 50 CFR 2.2.
Dated: July 18, 2019.
Karen Budd-Falen,
Deputy Solicitor for Parks and Wildlife, Exercising the Authority of
the Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-18954 Filed 8-30-19; 8:45 am]
BILLING CODE 4333-15-P