[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]


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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.

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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