Federal Register / Vol. 75, No. 231 / Thursday, December 2, 2010 / Rules and Regulations 75153

* * * * * Act (MBTA) (16 U.S.C. 703 et seq.), by listing each species that may be We will publish an amendment to 39 which implements conventions with controlled under the order. CFR Part 20 to reflect these changes. Great Britain (for Canada), Mexico, IV. Comments on the Proposed Rule or Japan, and the Soviet Union (Russia). Stanley F. Mires, the Draft Environmental Assessment Part 21 of title 50 of the Code of Federal Chief Counsel, Legislative. Regulations covers migratory Issue: Opposition to the depredation [FR Doc. 2010–30186 Filed 12–1–10; 8:45 am] permits. Subpart D deals specifically order. BILLING CODE 7710–12–P with the control of depredating ‘‘WS [U.S.D.A. Wildlife Services] is and presently includes eight notorious for indiscriminate regimes depredation orders. A depredation order that have resulted in the mortality of DEPARTMENT OF THE INTERIOR is a regulation that allows the take of uncountable millions of birds * * * and specific species of migratory birds, at will continue to pose a real risk to the Fish and Wildlife Service specific locations, and for specific rusty blackbird and Tamaulipas purposes without a depredation permit. despite the proposed rule change. We 50 CFR Part 21 The depredation order at 50 CFR 21.43 therefore request that 50 CFR § 21.43 not [FWS–R9–MB–2008–0064; 91200–1231– for blackbirds, cowbirds, grackles, only be narrowed in scope, but 9BPP] , and allows take when withdrawn completely.’’ individuals of an included species are ‘‘ RIN 1018–AV66 Currently, 50 CFR § 21.43 allows for ‘‘found committing or about to commit such a broad exemption from the Migratory Bird Permits; Removal of depredations upon ornamental or shade normal MBTA permitting process that Rusty Blackbird and Tamaulipas trees, agricultural crops, livestock, or some migratory birds are afforded (Mexican) Crow From the Depredation wildlife, or when concentrated in such virtually no protections—especially Order for Blackbirds, Cowbirds, numbers and manner as to constitute a given the enormous amount of land ’’ Grackles, Crows, and Magpies, and health hazard or other nuisance. conversion to agriculture and other Other Changes to the Order II. Species We Are Removing From the uses.’’ Depredation Order Response: Blackbird depredation on AGENCY: Fish and Wildlife Service, crops has been clearly demonstrated. We remove the Rusty Blackbird Interior. We will consider the effects of the (Euphagus carolinus) and the Mexican ACTION: Final rule. depredation order as we obtain (Tamaulipas) Crow ( imparatus) information on reported take of birds from the list of species that may be SUMMARY: We, the U.S. Fish and under its authority. We may make controlled under the depredation order Wildlife Service, change the regulations changes in the depredation order if we at 50 CFR 21.43. We remove the Rusty governing control of depredating determine that it is advisable to do so. blackbirds, cowbirds, grackles, crows, Blackbird because of the long-term downward trend in its population and However, we leave the order in place. and magpies at 50 CFR 21.43. Because Issue: Nontoxic ammunition of long-term evidence of population its special conservation status. Because of the very limited distribution of the requirement. declines throughout much of their ‘‘We are also convinced that FWS ranges, we remove the Rusty Blackbird Tamaulipas Crow in the United States and its apparent rapid decline in should finalize its proposal to end the (Euphagus carolinus) and the Mexican use of toxic shot for killing blackbirds, (Tamaulipas) Crow (Corvus imparatus) numbers, we also remove this species from the list of species that may be crows, and grackles, and thus also from the list of species that may be commend that portion of the proposed controlled under the depredation order. controlled under the depredation order. After the effective date of this final change to 50 CFR § 21.43 concerning With the effective date of this final rule, this point. Lead shot can have a depredation permit is required to rule (see DATES), any take of either of these species will require a depredation detrimental effects on scavengers and conduct control actions to take either of the environment.’’ these species. Also, nontoxic shot or permit (50 CFR 21.41) or other applicable MBTA permit. For ‘‘I am writing to express my support bullets must be used in most cases when for * * * the requirement to use a firearm is used to control any species background and current information on these two species, see our proposed rule nontoxic shot or bullets when a firearm listed under the order. Finally, we add is used to control any species listed a requirement to report on control published December 8, 2008 (73 FR 74447). under the order.’’ actions taken under the order. ‘‘WS recommends eliminating the DATES: This regulation will be effective III. Additional Regulatory Changes non-toxic requirement for all on January 3, 2011. We also require the use of nontoxic ammunition in all situations involving FOR FURTHER INFORMATION CONTACT: Dr. ammunition for all take of migratory blackbirds unless: (1) Further analysis George T. Allen, Division of Migratory birds under this depredation order to by the FWS provides definitive Bird Management, U.S. Fish and prevent toxicity hazards to other evidence that lead ammunition has Wildlife Service, Division of Migratory wildlife. Further, we require reporting impacted rusty blackbird populations Bird Management, 4401 North Fairfax of control actions taken under the order and (2) evidence is provided that lead Drive, Mail Stop 4107, Arlington, VA to give us data on the number of each ammunition used under the authority of 22203–1610, Phone: (703) 358–1825. species taken each year to better the blackbird depredation order has SUPPLEMENTARY INFORMATION: monitor the effects of such take on impacted other wildlife species.’’ (USDA populations of those species. We expect Wildlife Services) I. Background the respondents to be mostly State and ‘‘Supporting documentation and The U.S. Fish and Wildlife Service is Federal wildlife damage management analysis is needed for all claims of lead the Federal agency delegated the personnel who undertake blackbird toxicosis in songbirds. The use of primary responsibility for managing control to protect crops. We also make unsupported claims of lead toxicosis in migratory birds. This delegation is the list of species to which the songbirds should be discarded since authorized by the Migratory Bird Treaty depredation order applies more precise there is not any information from

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necropsies supporting these statements.’’ when conducting blackbird control present in a roost before conducting (USDA Wildlife Services) work. Currently, nontoxic shot is control actions. If Wildlife Services or a ‘‘The requirement to use non-toxic difficult to obtain to nonexistent for air- State agency determine that rusty shot to take crows for depredation rifles or .22 caliber rim fire rifles. Both blackbirds are present, the relevant management is inconsistent with may be valuable tools in certain agency would need to obtain a hunting regulations that allow the use of settings.’’ (Mississippi Flyway Council) depredation permit from FWS before lead shot to hunt crows. This would Response: We acknowledge the conducting any control actions on that represent an unequal application of the concerns over availability of lead roost. Migratory Bird Treaty Act. More lead projectiles for air-rifles and 22 caliber Issue: ‘‘WS recommends the FWS shot will likely be used to take crows rimfire rifles. We added an exemption develop a standardized method to while hunting than non-toxic shot to for their use to this rule. estimate the species composition of take crows for depredation purposes.’’ Issue: ‘‘At the very least, FWS must large mixed blackbird flocks to enhance (Wildlife Services) require that agricultural interests and the reliability of the data collected and Response: ‘‘Lead has been known WS always employ non-lethal methods analyzed. Many times light conditions for centuries to be a broad-spectrum before releasing indiscriminate toxicants in the field are very poor thereby toxicant to humans and wildlife’’ (The for birds.’’ increasing the difficulty of species Wildlife Society Position Statement on Response: We added this requirement identification. Additionally, most lead in ammunition and fishing tackle: to the depredation order. citizens will be unaware of the reporting http://joomla.wildlife.org/documents/ Issue: Reporting on take under the requirements and are unable to positionstatements/ depredation order. distinguish fish crows from American Lead_final_2009.pdf). Schulz et al. ‘‘WS recommends the FWS continue crows, common grackles from boat- (2009) reported that ‘‘Substantial to use the existing reporting tailed grackles, etc., and this will result information exists demonstrating the requirement already established to the in inaccurate data being reported to the effects of lead poisoning on mourning greatest extent possible, and that no FWS.’’ (Wildlife Services) doves.’’ Poisoning of many other species additional requirements be enacted.’’ Response: Though we recognize that of birds by lead shot has been well (Wildlife Services) there may be difficulties in documented. We reasonably infer based ‘‘We have concerns about the distinguishing species of blackbirds, on this information that lead is toxic to paperwork requirements of this DEA. grackles, and crows, we assume that any rusty blackbirds and other bird species, We question if non-biologists will person or agency undertaking control which provides sufficient justification collect this data. As stated before, under this depredation order will to ban the use of lead shot in bird Wildlife Services does the vast majority carefully identify the species involved. control under this order. of blackbird control work in the United If the individual or agency cannot do so, The requirement for nontoxic shot in States and is already collecting this control under this depredation order depredation control or in hunting is data. We are concerned that this DEA should not be undertaken. We are already applied unevenly; nontoxic shot subjects our constituents to prosecution willing to work with Wildlife Services is not required for all migratory bird when the potential for valuable data on a method of estimating the species hunting. However, we are concerned acquisition is questionable.’’ composition of large mixed blackbird about lead poisoning of migratory birds, (Mississippi Flyway) flocks as allowed by our budget and and will seek to apply nontoxic shot Response: This depredation order other tasks. requirement more evenly by currently has no requirement for V. Required Determinations implementing the use of nontoxic shot reporting on control of depredating as we consider revisions to the current birds. We seek to bring this regulation Regulatory Planning and Review regulations. in line with all other migratory bird (Executive Order 12866) In the proposed rule, we asserted no depredation orders—which require The Office of Management and Budget effects of lead shot from bird control reporting on control taken under their (OMB) has determined that this Final under the depredation order on any authorities. Without reporting on rule is not significant under Executive particular wildlife taxon. However, control of species taken under this Order 12866. OMB bases its wildlife professionals have recognized order, we have no way to assess the determination upon the following four that lead shot and lead in bullets are effects of the activities it authorizes. criteria: hazardous in the environment, and have Failure to assess control measures and (a) Whether the rule will have an recommended that wildlife managers report on control activities will annual effect of $100 million or more on ‘‘Advocate the replacement of lead- potentially put any person conducting the economy or adversely affect an based ammunition and fishing tackle control under this depredation order in economic sector, productivity, jobs, the with nontoxic products, while violation of the MBTA. environment, or other units of the recognizing that complete replacement Issue: ‘‘We also ask that an additional government. may not be possible in specific provision be added discouraging control (b) Whether the rule will create circumstances’’ (The Wildlife Society of night-time blackbird roosts during the inconsistencies with other Federal Final Position Statement on lead in winter months, as well into the month agencies’ actions. ammunition and fishing tackle). of March in northern regions, when (c) Whether the rule will materially We recognize that nontoxic shot is not Rusty Blackbirds might be reasonably affect entitlements, grants, user fees, required in all hunting in locations in assumed to be in the roosts.’’ loan programs, or the rights and which control under this order might Response: We defer to Wildlife obligations of their recipients. take place. Nevertheless, we are taking Services and to State agencies to (d) Whether the rule raises novel legal a step toward eliminating the use of lead determine whether or not rusty or policy issues. shot and lead ammunition in wildlife blackbirds are present in winter night- damage control. time blackbird roosts. To ensure Regulatory Flexibility Act (5 U.S.C. 601 Issue: ‘‘We also have concerns that the compliance with the MBTA, Wildlife et seq.) use of nontoxic shot would limit the Services and State agencies should Under the Regulatory Flexibility Act tools available to wildlife managers ensure that no rusty blackbirds are (5 U.S.C. 601 et seq., as amended by the

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Small Business Regulatory Enforcement will not affect small government Title: Depredation order for Fairness Act (SBREFA) of 1996 (Pub. L. activities in any significant way. blackbirds, cowbirds, grackles, crows, 104–121)), whenever an agency is b. This rule will not produce a and magpies, 50 CFR 21.43. required to publish a notice of Federal mandate of $100 million or Service Form Number(s): None. rulemaking for any proposed or final greater in any year. It will not be a Affected Public: State and Federal rule, it must prepare and make available ‘‘significant regulatory action’’ under the wildlife damage management personnel; for public comment a regulatory Unfunded Mandates Reform Act. farmers; and individuals. flexibility analysis that describes the Respondent’s Obligation: Required to effect of the rule on small entities (i.e., Takings obtain or retain a benefit. small businesses, small organizations, In accordance with Executive Order Frequency of Collection: Annually. and small government jurisdictions). 12630, this rule does not have Estimated Annual Number of SBREFA amended the Regulatory significant takings implications. A Respondents: 250. Flexibility Act to require Federal takings implication assessment is not Estimated Total Annual Responses: agencies to provide a statement of the required. This rule does not contain a 250. factual basis for certifying that a rule provision for taking of private property. Estimated Time per Response: 2 would not have a significant economic hours. impact on a substantial number of small Federalism Estimated Total Annual Burden entities. We have examined this rule’s This rule does not have sufficient Hours: 500. An agency may not conduct or potential effects on small entities as Federalism effects to warrant sponsor and a person is not required to required by the Regulatory Flexibility preparation of a Federalism assessment respond to a collection of information Act, and have determined that this under Executive Order 13132. It will not unless it displays a currently valid OMB action will not have a significant interfere with the ability of States to control number. The public may economic impact on a substantial manage themselves or their funds. No comment, at any time, on the accuracy number of small entities because neither significant economic impacts are of the information collection the Rusty Blackbird nor the Tamaulipas expected to result from the change in requirements in this rule and may Crow are species that frequently cause the depredation order. depredation problems and, where they submit comments to the Information might do so, we can issue depredation Civil Justice Reform Collection Clearance Officer, Fish and permits to alleviate the problems. There In accordance with Executive Order Wildlife Service, Department of the are no costs associated with this 12988, the Office of the Solicitor has Interior, 1849 C Street, NW., (Mailstop regulations change except that persons determined that the rule does not 222–ARLSQ), Washington, DC 20240. needing a depredation permit to take unduly burden the judicial system and National Environmental Policy Act Rusty Blackbirds or Tamaulipas Crows meets the requirements of sections 3(a) We have completed a Final will have to pay the $100 application and 3(b)(2) of E.O. 12988. Environmental Assessment (FEA) on fee for a depredation permit. We this regulations change. The FEA is a estimate the number of people likely to Paperwork Reduction Act part of the administrative record for this apply for such a permit to be no more This rule contains new information rule. In accordance with the National than 25 per year. We certify that because collection requirements that require Environmental Policy Act (NEPA, 42 this Final rule will not have a approval by the Office of Management U.S.C. 4332(C)) and Part 516 of the U.S. significant economic effect on a and Budget. The OMB has approved Department of the Interior Manual (516 substantial number of small entities, a these requirements and assigned OMB DM), removal of the Rusty Blackbird regulatory flexibility analysis is not Control Number 1018–0146, which and Tamaulipas Crow from the required. expires November 30, 2013. We have depredation order and adding This rule is not a major rule under the addressed all comments received on the SBREFA (5 U.S.C. 804(2)). requirements for nontoxic shot or proposed rule above in this preamble. bullets will not have a significant effect a. This rule will not have an annual Any person or agency acting under effect on the economy of $100 million on the quality of the human this depredation order must provide an environment, nor will it involve or more. annual report to the appropriate b. This rule will not cause a major unresolved conflicts concerning Regional Migratory Bird Permit Office. alternative uses of available resources. increase in costs or prices for You must provide your name, address, consumers; individual industries; There will be a positive environmental phone number, and email address and effect because take of the two removed Federal, State, Tribal, or local the following information for each government agencies; or geographic species as a result of control actions will species taken: be significantly reduced or eliminated. regions. (1) Species and number of birds taken; c. This rule will not have significant (2) Months in which the birds were Government-to-Government adverse effects on competition, Relationship With Tribes employment, investment, productivity, taken; innovation, or the ability of U.S.-based (3) State(s) and county(ies) in which In accordance with the President’s enterprises to compete with foreign- the birds were taken; and memorandum of April 29, 1994, based enterprises. (4) General purpose for which the ‘‘Government-to-Government Relations birds were taken (such as for protection with Native American Tribal Unfunded Mandates Reform Act of agriculture, human health and safety, Governments’’ (59 FR 22951), Executive In accordance with the Unfunded property, or natural resources). Order 13175, and 512 DM 2, we have Mandates Reform Act (2 U.S.C. 1501 et We collect this information so that we evaluated potential effects on federally seq.), we have determined the following: will be able to determine how many recognized Indian Tribes and have a. This rule will not ‘‘significantly or birds of each species are taken each year determined that there are no potential uniquely’’ affect small governments. A and whether the control actions are effects. This rule will apply to Tribes small government agency plan is not likely to affect the populations of those and any control actions that Tribes carry required. Actions under the regulation species. out on their lands, but it will not

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interfere with the ability of Tribes to Secretary [of the Interior] shall review PART 21—MIGRATORY BIRD PERMITS manage themselves or their funds. other programs administered by him and utilize such programs in ■ Energy Supply, Distribution, or Use 1. The authority citation for part 21 furtherance of the purposes of this (Executive Order 13211) continues to read as follows: chapter’’ (16 U.S.C. 1536(a)(1)). It further Authority: Migratory Bird Treaty Act, 40 On May 18, 2001, the President issued states that the Secretary must ‘‘insure Executive Order 13211 addressing Stat. 755 (16 U.S.C. 703); Pub. L. 95–616, 92 that any action authorized, funded, or Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106– regulations that significantly affect carried out * * * is not likely to energy supply, distribution, and use. 108, 113 Stat. 1491, Note following 16 U.S.C. jeopardize the continued existence of 703. E.O. 13211 requires agencies to prepare any endangered species or threatened Statements of Energy Effects when species or result in the destruction or ■ 2. Revise § 21.43 as follows: undertaking certain actions. This rule adverse modification of [critical] change will not be a significant habitat’’ (16 U.S.C. 1536(a)(2)). We have § 21.43 Depredation order for blackbirds, regulatory action under E.O. 12866, nor concluded that the regulation change cowbirds, grackles, crows, and magpies. will it significantly affect energy will not affect listed species. supplies, distribution, or use. This You do not need a Federal permit to action will not be a significant energy List of Subjects in 50 CFR Part 21 control the species listed in the table below if they are committing or about to action and no Statement of Energy Exports, Hunting, Imports, Reporting commit depredations on ornamental or Effects is required. and recordkeeping requirements, shade trees, agricultural crops, Compliance With Endangered Species Transportation, Wildlife. livestock, or wildlife, or when Act Requirements ■ For the reasons stated in the preamble, concentrated in such numbers and Section 7 of the Endangered Species we amend part 21 of subchapter B, manner that they are a health hazard or Act (ESA) of 1973, as amended (16 chapter I, title 50 of the Code of Federal other nuisance: U.S.C. 1531 et seq.), requires that ‘‘The Regulations, as follows.

Blackbirds Cowbirds Grackles Crows Magpies

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

(a) You must attempt to control (d) You may kill birds under this (4) The State(s) and county(ies) in depredation by species listed under this order only in a way that complies with which the birds were taken; and depredation order using non-lethal all State, tribal, or territorial laws or (5) The general purpose for which the methods before you may use lethal regulations. You must have any State, birds were taken (such as for protection control. tribal, or territorial permit required to of agriculture, human health and safety, (b) In most cases, if you use a firearm conduct the activity. property, or natural resources). to kill migratory birds under the (e) You may not sell, or offer to sell, (g) The Office of Management and provisions of this section, you must use any bird, or any part thereof, killed Budget has approved the information nontoxic shot or nontoxic bullets to do under this section, but you may possess, collection requirements associated with so. See § 20.21(j) of this chapter for a transport, and otherwise dispose of the this depredation order and assigned listing of approved nontoxic shot types. bird or its parts. OMB Control No. 1018–0146. We may However, this prohibition does not (f) Any person or agency acting under not conduct or sponsor and you are not apply if you use an air rifle, an air this depredation order must provide to required to respond to a collection of pistol, or a 22 caliber rimfire firearm for the appropriate Regional Migratory Bird information unless it displays a control of depredating birds under this Permit Office an annual report for each currently valid OMB control number. order. species taken. You can find the You may send comments on the addresses for the Regional Migratory information collection requirements to (c) If you exercise any of the Bird Permit Offices in § 2.2 of the Service’s Information Collection privileges granted by this section, you subchapter A of this chapter. You must Clearance Officer, U.S. Fish and must allow any Federal, State, tribal, or submit your report by January 31st of Wildlife Service, MS 222–ARLSQ, 1849 territorial wildlife law enforcement the following year, and you must C Street, NW., Washington, DC 20240. officer unrestricted access at all include the following information: Dated: July 7, 2010. reasonable times (including during (1) Your name, address, phone Eileen Sobeck, actual operations) over the premises on number, and e-mail address; which you are conducting the control. (2) The species and number of birds Acting Assistant Secretary for Fish and Wildlife and Parks. You must furnish the officer whatever taken; information he or she may require about (3) The months in which the birds [FR Doc. 2010–30288 Filed 12–1–10; 8:45 am] your control operations. were taken; BILLING CODE 4310–55–P

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