Migratory Bird Permits: Removal of Regulations Concerning Certain Depredation Orders

This Proposed Rule document was issued by the Fish and Wildlife Service (FWS)

For related information, Open Docket Folder

Fish and Wildlife Service
50 CFR Part 21
[Docket No. FWS-R9-MB-2011-0100; FF09M21200-134-FXMB1232099BPP0]
RIN 1018-AX92

Migratory Bird Permits; Removal of Regulations Concerning Certain Depredation Orders


Fish and Wildlife Service, Interior.


Proposed rule.


We propose to remove regulations that set forth certain depredation orders for migratory birds. There have been no requests for authorization of a depredation order under these regulations for many years, and no reports of activities undertaken under these regulations in the last 15 years. Because these regulations apparently are unused, we propose to remove them. Control of depredating birds could still be undertaken under depredation permits in accordance with the regulations at 50 CFR 21.41.


Electronic comments on this proposal via must be submitted by 11:59 p.m. Eastern time on February 3, 2014. Comments submitted by mail must be postmarked no later than February 3, 2014.


You may submit comments by either one of the following two methods:

  • Federal eRulemaking portal: . Follow the instructions for submitting comments on Docket FWS-R9-MB-2011-0100.
  • U.S. mail or hand delivery: Public Comments Processing, Attention: FWS-R9-MB-2011-0100; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, MS 2042-PDM; Arlington, VA 22203-1610.

We will not accept email or faxes. We will post all comments on . This generally means that we will post any personal information that you provide. See the Public Comments section below for more information.

For Further Information Contact

George T. Allen, at 703-358-1825.

Supplementary Information


The regulations we propose to remove all deal with depredating migratory birds. 50 CFR 21.42 governs control of depredating migratory game birds in the United States; under this section of the regulations, the Director of the U.S. Fish and Wildlife Service is authorized to issue, by publication in the Federal Register, a depredation order to permit the taking of migratory game birds under certain conditions if the Director receives evidence clearly showing that the migratory game birds have accumulated in such numbers in a particular area as to cause or about to cause serious damage to agricultural, horticultural, and fish cultural interests.

Under 50 CFR 21.45, landowners, sharecroppers, tenants, or their employees or agents, actually engaged in the production of rice in Louisiana, may, without a permit and in accordance with certain conditions, take purple gallinules (Ionornis martinica) when found committing or about to commit serious depredations to growing rice crops on the premises owned or occupied by such persons.

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 found committing or about to commit serious depredations to nut crops on the premises owned or occupied by such persons.

All of these regulations were put in place in 1974, to help commercial agricultural interests (for 50 CFR 21.42 and 21.45, see 39 FR 1157, January 4, 1974; for 50 CFR 21.46, see 39 FR 31325, August 28, 1974). 50 CFR 21.45 and 21.46 require reporting and recordkeeping on activities taken in accordance with the regulations. We have received no applications for declaration of a depredation order under § 21.42 in the last 15 years, and there have been no reports of activities conducted under § 21.45 or § 21.46 in at least 10 years. We therefore propose to remove these regulations. This action would remove outdated, unused regulations from the Code of Federal Regulations (CFR), thereby saving the Federal Government the annual cost of republishing them in the CFR.

If this proposal is adopted, control of depredating birds could still be undertaken under depredation permits, in accordance with 50 CFR 21.41. Further, issuing a depredation permit would be more likely to promptly help resolve depredation problems than would a depredation order to be published in the Federal Register, as the regulation at 50 CFR 21.42 currently requires.

Public Comments

We request comments on this proposed rule. You may submit your comments and supporting materials by one of the methods listed in the ADDRESSES section. We will not consider comments sent by email or fax, or written comments sent to an address other than the one listed in the ADDRESSES section.

If you submit a comment via , your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request that we withhold this information from public review, but we cannot guarantee that we will be able to do so. We will post all hardcopy comments on .

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection at , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

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 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 have developed this rule in a manner consistent with these requirements.

Regulatory Flexibility Act (

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 entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would 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 would not have a significant economic impact on a substantial number of small entities. There are no costs associated with this change to our regulations. The Federal Government would see a very slight benefit, as the U.S. Fish and Wildlife Service would no longer incur the very small annual cost of republishing these three sections of the regulations in the Code of Federal Regulations (CFR), but even over many years, this monetary benefit will be so small as to be negligible.

We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that because this action would 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 would 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 would 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 would 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.

Therefore, we certify that, if adopted, this rule would not have a significant economic impact on a substantial number of small entities.

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 would not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the proposed regulation would not affect small government activities.

b. This rule would not produce a Federal mandate of $100 million or greater in any year. It would not be 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 impact summary statement under Executive Order 13132. It would not interfere with the States' abilities to manage themselves or their funds. No significant economic impacts are expected to result from the proposed change in the depredation orders that are the subject of this proposed rule.

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

There is no information collection requirement associated with this proposed regulations change. 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 proposed rule in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f) and Part 516 of the U.S. Department of the Interior Manual (516 DM). The proposed regulations change would simply remove unused regulations, and is administrative in nature. The action is categorically excluded from further NEPA consideration by 43 CFR 46.210(i).

Socioeconomic. The proposed regulations change would have no discernible socioeconomic impacts.

Migratory bird populations. The proposed regulations change would not affect native migratory bird populations.

Endangered and Threatened Species. The proposed regulation change would not affect endangered or threatened species or habitats important to them.

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 proposed regulations change. The proposed regulations change would 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 (

This proposed rule would affect only certain depredation orders for migratory birds, and would not affect energy supplies, distribution, or use. This action would 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 proposed regulations change would not affect listed species.

List of Subjects In

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

Proposed Regulation Promulgation

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

Part 21 Migratory Bird Permits

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


16 U.S.C. 703-712.

§ 21.42
[Removed and reserved]

2. Remove and reserve § 21.42.

§ 21.45
[Removed and reserved]

3. Remove and reserve § 21.45.

§ 21.46
[Removed and reserved]

4. Remove and reserve § 21.46.

Dated: September 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-26070 Filed 11-1-13; 8:45 am]
Comment Period Closed
Feb 3 2014, at 11:59 PM ET
ID: FWS-R9-MB-2011-0100-0001
View original printed format:

Document Information

Date Posted: Nov 4, 2013
RIN: 1018-AX92
CFR: 50 CFR Part 21
Federal Register Number: 2013-26070
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Comments Received*
See Attached
This is the formal response from the Pacific Flyway Council, submitted on behalf of Mike Fowlkes, Chair, Pacific Flyway Council
See Attached

Docket Information

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Related Dockets:
Related RINs: None
Related Comments:

* This count refers to the total comment/submissions received on this document, as of 11:59 PM yesterday. Note: Agencies review all submissions, however some agencies may choose to redact, or withhold, certain submissions (or portions thereof) such as those containing private or proprietary information, inappropriate language, or duplicate/near duplicate examples of a mass-mail campaign. This can result in discrepancies between this count and those displayed when conducting searches on the Public Submission document type. For specific information about an agency’s public submission policy, refer to its website or the Federal Register document.

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