[Federal Register Volume 75, Number 231 (Thursday, December 2, 2010)]
[Rules and Regulations]
[Pages 75153-75156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30288]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[FWS-R9-MB-2008-0064; 91200-1231-9BPP]
RIN 1018-AV66


Migratory Bird Permits; Removal of Rusty Blackbird and Tamaulipas 
(Mexican) Crow From the Depredation Order for Blackbirds, Cowbirds, 
Grackles, Crows, and Magpies, and Other Changes to the Order

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations 
governing control of depredating blackbirds, cowbirds, grackles, crows, 
and magpies at 50 CFR 21.43. Because of long-term evidence of 
population declines throughout much of their ranges, we remove the 
Rusty Blackbird (Euphagus carolinus) and the Mexican (Tamaulipas) Crow 
(Corvus imparatus) from the list of species that may be controlled 
under the depredation order. With the effective date of this final 
rule, a depredation permit is required to conduct control actions to 
take either of these species. Also, nontoxic shot or bullets must be 
used in most cases when a firearm is used to control any species listed 
under the order. Finally, we add a requirement to report on control 
actions taken under the order.

DATES: This regulation will be effective on January 3, 2011.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, Division of 
Migratory Bird Management, 4401 North Fairfax Drive, Mail Stop 4107, 
Arlington, VA 22203-1610, Phone: (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 Soviet Union (Russia). Part 21 of 
title 50 of the Code of Federal Regulations covers migratory bird 
permits. Subpart D deals specifically with the control of depredating 
birds and presently includes eight depredation orders. A depredation 
order is a regulation that allows the take of specific species of 
migratory birds, at specific locations, and for specific purposes 
without a depredation permit. The depredation order at 50 CFR 21.43 for 
blackbirds, cowbirds, grackles, crows, and magpies 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 
as to constitute a health hazard or other nuisance.''

II. Species We Are Removing From the Depredation Order

    We remove the Rusty Blackbird (Euphagus carolinus) and the Mexican 
(Tamaulipas) Crow (Corvus imparatus) from the list of species that may 
be controlled under the depredation order at 50 CFR 21.43. We remove 
the Rusty Blackbird because of the long-term downward trend in its 
population and its special conservation status. Because of the very 
limited distribution of the Tamaulipas Crow in the United States and 
its apparent rapid decline in numbers, we also remove this species from 
the list of species that may be controlled under the depredation order.
    After the effective date of this final rule (see DATES), any take 
of either of these species will require a depredation permit (50 CFR 
21.41) or other applicable MBTA permit. For background and current 
information on these two species, see our proposed rule published 
December 8, 2008 (73 FR 74447).

III. Additional Regulatory Changes

    We also require the use of nontoxic ammunition for all take of 
migratory birds under this depredation order to prevent toxicity 
hazards to other wildlife. Further, we require reporting of control 
actions taken under the order to give us data on the number of each 
species taken each year to better monitor the effects of such take on 
populations of those species. We expect the respondents to be mostly 
State and Federal wildlife damage management personnel who undertake 
blackbird control to protect crops. We also make the list of species to 
which the depredation order applies more precise by listing each 
species that may be controlled under the order.

IV. Comments on the Proposed Rule or the Draft Environmental Assessment

    Issue: Opposition to the depredation order.
    ``WS [U.S.D.A. Wildlife Services] is notorious for indiscriminate 
regimes that have resulted in the mortality of uncountable millions of 
birds * * * and will continue to pose a real risk to the rusty 
blackbird and Tamaulipas crow despite the proposed rule change. We 
therefore request that 50 CFR Sec.  21.43 not only be narrowed in 
scope, but withdrawn completely.''
    ``Currently, 50 CFR Sec.  21.43 allows for such a broad exemption 
from the normal MBTA permitting process that some migratory birds are 
afforded virtually no protections--especially given the enormous amount 
of land conversion to agriculture and other uses.''
    Response: Blackbird depredation on crops has been clearly 
demonstrated. We will consider the effects of the depredation order as 
we obtain information on reported take of birds under its authority. We 
may make changes in the depredation order if we determine that it is 
advisable to do so. However, we leave the order in place.
    Issue: Nontoxic ammunition requirement.
    ``We are also convinced that FWS should finalize its proposal to 
end the use of toxic shot for killing blackbirds, crows, and grackles, 
and thus also commend that portion of the proposed change to 50 CFR 
Sec.  21.43 concerning this point. Lead shot can have detrimental 
effects on scavengers and the environment.''
    ``I am writing to express my support for * * * the requirement to 
use nontoxic shot or bullets when a firearm is used to control any 
species listed under the order.''
    ``WS recommends eliminating the non-toxic requirement for all 
ammunition in all situations involving blackbirds unless: (1) Further 
analysis by the FWS provides definitive evidence that lead ammunition 
has impacted rusty blackbird populations and (2) evidence is provided 
that lead ammunition used under the authority of the blackbird 
depredation order has impacted other wildlife species.'' (USDA Wildlife 
Services)
    ``Supporting documentation and analysis is needed for all claims of 
lead toxicosis in songbirds. The use of unsupported claims of lead 
toxicosis in songbirds should be discarded since there is not any 
information from

[[Page 75154]]

necropsies supporting these statements.'' (USDA Wildlife Services)
    ``The requirement to use non-toxic shot to take crows for 
depredation management is inconsistent with hunting regulations that 
allow the use of lead shot to hunt crows. This would represent an 
unequal application of the Migratory Bird Treaty Act. More lead shot 
will likely be used to take crows while hunting than non-toxic shot to 
take crows for depredation purposes.'' (Wildlife Services)
    Response: ``Lead has been known for centuries to be a broad-
spectrum toxicant to humans and wildlife'' (The Wildlife Society 
Position Statement on lead in ammunition and fishing tackle: http://joomla.wildlife.org/documents/positionstatements/ Lead--final--
2009.pdf). Schulz et al. (2009) reported that ``Substantial information 
exists demonstrating the effects of lead poisoning on mourning doves.'' 
Poisoning of many other species of birds by lead shot has been well 
documented. We reasonably infer based on this information that lead is 
toxic to rusty blackbirds and other bird species, which provides 
sufficient justification to ban the use of lead shot in bird control 
under this order.
    The requirement for nontoxic shot in depredation control or in 
hunting is already applied unevenly; nontoxic shot is not required for 
all migratory bird hunting. However, we are concerned about lead 
poisoning of migratory birds, and will seek to apply nontoxic shot 
requirement more evenly by implementing the use of nontoxic shot as we 
consider revisions to the current regulations.
    In the proposed rule, we asserted no effects of lead shot from bird 
control under the depredation order on any particular wildlife taxon. 
However, wildlife professionals have recognized that lead shot and lead 
in bullets are hazardous in the environment, and have recommended that 
wildlife managers ``Advocate the replacement of lead-based ammunition 
and fishing tackle with nontoxic products, while recognizing that 
complete replacement may not be possible in specific circumstances'' 
(The Wildlife Society Final Position Statement on lead in ammunition 
and fishing tackle).
    We recognize that nontoxic shot is not required in all hunting in 
locations in which control under this order might take place. 
Nevertheless, we are taking a step toward eliminating the use of lead 
shot and lead ammunition in wildlife damage control.
    Issue: ``We also have concerns that the use of nontoxic shot would 
limit the tools available to wildlife managers when conducting 
blackbird control work. Currently, nontoxic shot is difficult to obtain 
to nonexistent for air-rifles or .22 caliber rim fire rifles. Both may 
be valuable tools in certain settings.'' (Mississippi Flyway Council)
    Response: We acknowledge the concerns over availability of lead 
projectiles for air-rifles and 22 caliber rimfire rifles. We added an 
exemption for their use to this rule.
    Issue: ``At the very least, FWS must require that agricultural 
interests and WS always employ non-lethal methods before releasing 
indiscriminate toxicants for birds.''
    Response: We added this requirement to the depredation order.
    Issue: Reporting on take under the depredation order.
    ``WS recommends the FWS continue to use the existing reporting 
requirement already established to the greatest extent possible, and 
that no additional requirements be enacted.'' (Wildlife Services)
    ``We have concerns about the paperwork requirements of this DEA. We 
question if non-biologists will collect this data. As stated before, 
Wildlife Services does the vast majority of blackbird control work in 
the United States and is already collecting this data. We are concerned 
that this DEA subjects our constituents to prosecution when the 
potential for valuable data acquisition is questionable.'' (Mississippi 
Flyway)
    Response: This depredation order currently has no requirement for 
reporting on control of depredating birds. We seek to bring this 
regulation in line with all other migratory bird depredation orders--
which require reporting on control taken under their authorities. 
Without reporting on control of species taken under this order, we have 
no way to assess the effects of the activities it authorizes. Failure 
to assess control measures and report on control activities will 
potentially put any person conducting control under this depredation 
order in violation of the MBTA.
    Issue: ``We also ask that an additional provision be added 
discouraging control of night-time blackbird roosts during the winter 
months, as well into the month of March in northern regions, when Rusty 
Blackbirds might be reasonably assumed to be in the roosts.''
    Response: We defer to Wildlife Services and to State agencies to 
determine whether or not rusty blackbirds are present in winter night-
time blackbird roosts. To ensure compliance with the MBTA, Wildlife 
Services and State agencies should ensure that no rusty blackbirds are 
present in a roost before conducting control actions. If Wildlife 
Services or a State agency determine that rusty blackbirds are present, 
the relevant agency would need to obtain a depredation permit from FWS 
before conducting any control actions on that roost.
    Issue: ``WS recommends the FWS develop a standardized method to 
estimate the species composition of large mixed blackbird flocks to 
enhance the reliability of the data collected and analyzed. Many times 
light conditions in the field are very poor thereby increasing the 
difficulty of species identification. Additionally, most citizens will 
be unaware of the reporting requirements and are unable to distinguish 
fish crows from American crows, common grackles from boat-tailed 
grackles, etc., and this will result in inaccurate data being reported 
to the FWS.'' (Wildlife Services)
    Response: Though we recognize that there may be difficulties in 
distinguishing species of blackbirds, grackles, and crows, we assume 
that any person or agency undertaking control under this depredation 
order will carefully identify the species involved. If the individual 
or agency cannot do so, control under this depredation order should not 
be undertaken. We are willing to work with Wildlife Services on a 
method of estimating the species composition of large mixed blackbird 
flocks as allowed by our budget and other tasks.

V. Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
Final rule is not significant under Executive Order 12866. OMB bases 
its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

[[Page 75155]]

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 entities (i.e., 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 would 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 neither the Rusty Blackbird nor the Tamaulipas Crow are species 
that frequently cause depredation problems and, where they might do so, 
we can issue depredation permits to alleviate the problems. There are 
no costs associated with this regulations change except that persons 
needing a depredation permit to take Rusty Blackbirds or Tamaulipas 
Crows will have to pay the $100 application fee for a depredation 
permit. We estimate the number of people likely to apply for such a 
permit to be no more than 25 per year. We certify that because this 
Final rule will not have a significant economic effect 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)).
    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 
consumers; individual industries; Federal, State, Tribal, or local 
government agencies; or geographic regions.
    c. This rule will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. Actions 
under the regulation will not affect small government activities in any 
significant way.
    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year. It will not be a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act.

Takings

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

Federalism

    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 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

    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 E.O. 12988.

Paperwork Reduction Act

    This rule contains new information collection requirements that 
require approval by the Office of Management and Budget. The OMB has 
approved these requirements and assigned OMB Control Number 1018-0146, 
which expires November 30, 2013. We have addressed all comments 
received on the proposed rule above in this preamble.
    Any person or agency acting under this depredation order must 
provide an annual report to the appropriate Regional Migratory Bird 
Permit Office. You must provide your name, address, phone number, and 
email address and the following information for each species taken:
    (1) Species and number of birds taken;
    (2) Months in which the birds were taken;
    (3) State(s) and county(ies) in which the birds were taken; and
    (4) General purpose for which the birds were taken (such as for 
protection of agriculture, human health and safety, property, or 
natural resources).
    We collect this information so that we will be able to determine 
how many birds of each species are taken each year and whether the 
control actions are likely to affect the populations of those species.
    Title: Depredation order for blackbirds, cowbirds, grackles, crows, 
and magpies, 50 CFR 21.43.
    Service Form Number(s): None.
    Affected Public: State and Federal wildlife damage management 
personnel; farmers; and individuals.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: Annually.
    Estimated Annual Number of Respondents: 250.
    Estimated Total Annual Responses: 250.
    Estimated Time per Response: 2 hours.
    Estimated Total Annual Burden Hours: 500.
    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. The public may comment, at any 
time, on the accuracy of the information collection requirements in 
this rule and may submit comments to the Information Collection 
Clearance Officer, Fish and Wildlife Service, Department of the 
Interior, 1849 C Street, NW., (Mailstop 222-ARLSQ), Washington, DC 
20240.

National Environmental Policy Act

    We have completed a Final Environmental Assessment (FEA) on this 
regulations change. The FEA is a part of the administrative record for 
this rule. In accordance with the National Environmental Policy Act 
(NEPA, 42 U.S.C. 4332(C)) and Part 516 of the U.S. Department of the 
Interior Manual (516 DM), removal of the Rusty Blackbird and Tamaulipas 
Crow from the depredation order and adding requirements for nontoxic 
shot or bullets will not have a significant effect on the quality of 
the human environment, nor will it involve unresolved conflicts 
concerning alternative uses of available resources. There will be a 
positive environmental effect because take of the two removed species 
as a result of control actions will be significantly reduced or 
eliminated.

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 
apply to Tribes and any control actions that Tribes carry out on their 
lands, but it will not

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interfere with the ability of Tribes to manage themselves or their 
funds.

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

    On May 18, 2001, the President issued Executive Order 13211 
addressing regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
rule change will not be a significant regulatory action under E.O. 
12866, nor will it significantly 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)). We have concluded that 
the regulation change will not affect listed species.

List of Subjects in 50 CFR Part 21

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

0
For the reasons stated in the preamble, we amend part 21 of subchapter 
B, chapter I, title 50 of the Code of Federal Regulations, as follows.

PART 21--MIGRATORY BIRD PERMITS

0
1. The authority citation for part 21 continues to read as follows:

    Authority:  Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 
703); Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-
108, 113 Stat. 1491, Note following 16 U.S.C. 703.


0
2. Revise Sec.  21.43 as follows:


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

    You do not need a Federal permit to control the species listed in 
the table below 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:

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

     (a) You must attempt to control depredation by species listed 
under this depredation order using non-lethal methods before you may 
use lethal control.
    (b) In most cases, if you use a firearm to kill migratory birds 
under the provisions of this section, you must use nontoxic shot or 
nontoxic bullets to do so. See Sec.  20.21(j) of this chapter for a 
listing of approved nontoxic shot types. However, this prohibition does 
not apply if you use an air rifle, an air pistol, or a 22 caliber 
rimfire firearm for control of depredating birds under this order.
    (c) 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.
    (d) You may 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.
    (e) 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.
    (f) Any person or agency acting under this depredation order must 
provide to the appropriate Regional Migratory Bird Permit Office an 
annual report for each species taken. You can find the addresses for 
the Regional Migratory Bird Permit Offices in Sec.  2.2 of subchapter A 
of this chapter. You must submit your report by January 31st of the 
following year, and you must include the following information:
    (1) Your name, address, phone number, and e-mail address;
    (2) The species and number of birds taken;
    (3) The months in which the birds were taken;
    (4) The State(s) and county(ies) in which the birds were taken; and
    (5) The general purpose for which the birds were taken (such as for 
protection of agriculture, human health and safety, property, or 
natural resources).
    (g) 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, U.S. Fish and 
Wildlife Service, MS 222-ARLSQ, 1849 C Street, NW., Washington, DC 
20240.

    Dated: July 7, 2010.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-30288 Filed 12-1-10; 8:45 am]
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