[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Proposed Rules]
[Pages 65955-65959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26071]



Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2013-0070; FF09M21200-134-FXMB1231099BPP0]
RIN 1018-AZ69

Migratory Bird Permits; Control Order for Introduced Migratory 
Bird Species in Hawaii

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: Nonnative species in Hawaii displace, compete with, and 
consume native species, some of which are endangered, threatened, or 
otherwise in need of additional protection. To protect native species, 
we propose to establish a control order for cattle egrets (Bubulcus 
ibis) and barn owls (Tyto alba), two introduced migratory bird species 
in Hawaii. We also make the supporting draft environmental assessment 
available for public comment.

DATES: Electronic comments on this proposal via http://www.regulations.gov 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.

ADDRESSES: You may submit comments by one of the following methods 
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket FWS-HQ-MB-
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-HQ-MB-2013-0070; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen in Arlington, 
Virginia, at 703-358-1825 about the proposed rule, or Jenny Hoskins in 
Volcano, Hawaii, at 503-382-7056 about the draft environmental 



    The U.S. Fish and Wildlife Service (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). We 
implement the provisions of the MBTA through regulations in parts 10, 
13, 20, 21, and 22 of title 50 of the Code of Federal Regulations 
    Regulations pertaining to migratory bird permits are at 50 CFR part 
21. Subpart D of part 21 contains regulations for the control of 
depredating birds. Depredation and control orders allow the take of 
specific species of migratory birds for specific purposes without need 
for a Federal permit. In general, the Service establishes depredation 
orders to protect human property, such as agricultural crops, from 
damage by migratory birds, and we issue control orders to protect 
natural resources. To protect native species in Hawaii, we propose to 
add a control order to part 21 for cattle egrets (Bubulcus ibis) and 
barn owls (Tyto alba), two introduced migratory bird species in Hawaii.

Species Information

    Cattle egrets and barn owls were both introduced into Hawaii in the 
late 1950s to deal with agricultural pests on farms and ranches. Both 
species have since significantly expanded in range and population size, 
and now pose a serious predation problem for various native Hawaiian 
bird species including several threatened and endangered species. 
Studies indicate that neither cattle egrets nor barn owls have been 
effective in controlling the pests for which they were introduced. In 
Hawaii, cattle egrets are now widespread on all of the main islands, as 
well as on the islands and atolls of the Northwestern Hawaiian islands. 
Barn owls are known to occur regularly on all of the main Hawaiian 
islands in all habitat types, from sea level to upper elevation 
forests, and in recent years have been sighted with increasing 
frequency on offshore islets. We are concerned that barn owls will soon 
have established populations in the Northwestern Hawaiian islands.

Cattle Egrets

    Cattle egrets range throughout wetland areas, atolls, and open

[[Page 65956]]

grasslands of the State. Cattle egrets have been observed to depredate 
the young of the endangered Hawaiian stilt (Himantopus mexicanus 
knudseni), Hawaiian coot (Fulica alai), Hawaiian common moorhen 
(Gallinula chloropus sandvicensis), and Hawaiian duck (Anas 
wyvilliana). On managed wetlands, increased cattle egret foraging 
behavior has been documented just as endangered waterbird chicks are 
hatching. On offshore islets and in the Northwestern Hawaiian islands, 
including Midway Island, cattle egrets have been documented preying on 
chicks of native ground-nesting seabirds, including multiple species of 
terns, noddies, and petrels. In upland areas, cattle egrets are 
believed to prey upon chicks of pueo--the Hawaiian short-eared owl 
(Asio flammeus sandwichensis). Predation on pueo chicks has been 
documented on L[amacr]nai, and is likely to be occurring on all other 
islands where both pueo and cattle egret occur together. Service 
National Wildlife Refuge (Refuge) personnel have documented cattle 
egrets following staff during routine management activities and 
advantageously preying on newly hatched waterbird chicks encountered. 
Cattle egrets are also known to forage on invertebrates in wetlands, 
competing with native birds for food resources.
    Localized nonlethal control of cattle egrets has been ineffective. 
Service Refuge staff have recognized that some normal land management 
practices, such as mowing, may attract cattle egrets to areas colonized 
by endangered waterbird species. Though they have altered their 
management in such cases, the predation continues to be a problem. 
Having once located prey at a site, cattle egrets continue to forage at 
that site, even in the absence of the activities that first attracted 
them. Site-specific depredation permits have been issued for take of 
cattle egrets on multiple islands where they have been documented to 
prey on endangered species, but the sites are soon recolonized by 
egrets moving within and between islands.

Barn Owls

    Though considered a rodent specialist throughout continental North 
America, barn owls in Hawaii have been documented preying upon multiple 
avian species and may pose a significant threat to nocturnally active 
seabirds. Seabird predation by barn owls has been documented on 
offshore islets, the coast of the main islands, and in montane forests 
where they are known predators of endangered Hawaiian petrels 
(Pterodroma sandwichensis) and threatened Newell's shearwaters 
(Puffinus auricularis newelli). Seabird mortality due to barn owl 
predation has been repeatedly documented on Maui Island on wedge-tailed 
shearwaters (Puffinus pacificus), on L[amacr]nai on Hawaiian petrels, 
and on Oahu's offshore islets on Bulwer's petrels (Bulweria bulwerii). 
Loss of adult petrels to owls is significant. Predation on breeding 
adults leads to reduced breeding success, and owl predation at all life 
stages prevents successful implementation of planned recovery actions 
for the species.
    Control of barn owls has been attempted through nonlethal methods 
and localized take, but these methods have proven ineffective. 
Harassment and take of barn owls at endangered bird colony sites may 
result in harassment and potential capture of individuals of endangered 
species. To avoid such disturbance of endangered species, barn owls may 
need to be located and removed at nesting and roosting sites away from 
native bird colonies. As is the case with cattle egrets, site-specific 
take permits may result in temporary declines in barn owl populations, 
but those areas are soon recolonized by recruitment of birds within and 
between islands.

Proposed Regulations

    Because nonlethal methods have been unsuccessful in reducing the 
problems caused by cattle egrets and barn owls in Hawaii and because 
these species are nonnative to Hawaii, we are proposing regulations 
that would allow take by certain authorized agencies. The agencies that 
we are proposing to authorize to conduct control activities are those 
that have functional and/or jurisdictional responsibility for 
controlling invasive species and protecting native species in the 
Hawaiian islands. The control methods that we propose to authorize are 
similar to measures allowed in other control orders and encompass a 
suite of techniques that give wildlife managers flexibility in 
achieving control of invasive species without causing significant 
impacts to native species.

Public Comments on the Draft Environmental Assessment

    We have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA) (42 U.S.C. 432-437(f)) and have 
completed a draft environmental assessment (DEA), which is available at 
www.fws.gov/migratorybirds and in the docket for this proposed rule. 
You may submit comments on the DEA to Migratory Bird Management, U.S. 
Fish and Wildlife Service, 911 Northeast 11th Avenue, Portland, OR 
97232-4181. You can email comments on the DEA to PermitsR1MB@fws.gov.

Public Comments on the Proposed Rule

    We request comments on this proposed rule. You may submit your 
comments and supporting materials by one of the methods listed in 
ADDRESSES. We will not consider comments sent by email or fax, or 
written comments sent to an address other than the one listed in 
    If you submit a comment via http://www.regulations.gov, 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 http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service (contact the person listed under FOR FURTHER 

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
    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.

[[Page 65957]]

Executive Order 13112 Invasive Species

    The proposed rule supports and enacts mandates of invasive species 
control detailed in Executive Order 13112 of February 3, 1999. Section 
2 directs that:
    (a) Each Federal agency whose actions may affect the status of 
invasive species shall, to the extent practicable and permitted by law,
    (1) identify such actions;
    (2) subject to the availability of appropriations, and within 
Administration budgetary limits, use relevant programs and authorities 
    (i) prevent the introduction of invasive species,
    (ii) detect and respond rapidly to and control populations of such 
species in a cost-effective and environmentally sound manner,
    (iii) monitor invasive species populations accurately and reliably,
    (iv) provide for restoration of native species and habitat 
conditions in ecosystems that have been invaded,
    (v) conduct research on invasive species and develop technologies 
to prevent introduction and provide for environmentally sound control 
of invasive species, and
    (vi) promote public education on invasive species and the means to 
address them; and
    (3) not authorize, fund, or carry out actions that it believes are 
likely to cause or promote the introduction or spread of invasive 
species in the United States or elsewhere unless, pursuant to 
guidelines that it has prescribed, the agency has determined and made 
public its determination that the benefits of such actions clearly 
outweigh the potential harm caused by invasive species and that all 
feasible and prudent measures to minimize risk of harm will be taken in 
conjunction with the actions.
    (b) Federal agencies shall pursue the duties set forth in this 
section in consultation with the Invasive Species Council, consistent 
with the Invasive Species Management Plan and in cooperation with 
stakeholders, as appropriate, and, as approved by the Department of 
State, when Federal agencies are working with international 
organizations and foreign nations.

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 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. This proposed regulation change 
would not have a significant economic impact on a substantial number of 
small entities, so a regulatory flexibility analysis is not required.
    This 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 
    a. This rule would 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; and
    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 

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    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 affect small governments. A small government 
agency plan is not required. Allowing control of introduced migratory 
bird species would not affect small government activities; and
    b. This rule would not produce a Federal mandate. It is not a 
significant regulatory action.


    This proposed 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 proposed rule does not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under Executive Order 
13132. It would not interfere with Hawaii's ability to manage itself or 
its funds. No significant economic impacts are expected to result from 
the proposed regulations change.

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

    We may not conduct or sponsor and you are not required to respond 
to a collection of information unless it displays a currently valid 
Office of Management and Budget (OMB) control number. Since this rule 
affects only two non-Federal government agencies, the reporting 
requirements do not require OMB approval under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.).

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 U.S. 
Department of the Interior regulations at 43 CFR part 46. We have 
completed a draft environmental assessment of the proposed change, 
which is included in the docket for this proposed rule. We conclude 
that our preferred alternative would have the following impacts:
    Socioeconomic. The proposed regulation change would have no 
discernible socioeconomic impacts.
    Migratory bird populations. The proposed regulation change would 
not negatively affect native migratory bird populations. Neither 
species to be controlled is native to Hawaii.
    Endangered and threatened species. The proposed regulation change 
would benefit endangered or threatened species or habitats important to 
them by reducing predation and competition by the cattle egret and the 
barn owl.

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 regulation change. The 
proposed regulation change would not interfere with Tribes' abilities 
to manage themselves or their funds, or to regulate migratory bird 
activities on tribal lands.

[[Page 65958]]

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

    This proposed rule 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 regulation 
change would benefit listed species or habitats important to them by 
reducing predation and competition by the cattle egret and the barn 

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

List of Subjects in 50 CFR Part 21

    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:


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

    Authority: 16 U.S.C. 703-712.

2. Add Sec.  21.55 to read as follows:

Sec.  21.55  Control order for introduced migratory birds in Hawaii.

    (a) Control of cattle egrets and barn owls. Personnel of the 
agencies listed in paragraph (b) of this section may remove or destroy 
cattle egrets (Bubulcus ibis) or barn owls (Tyto alba), or their nests 
or eggs, at any time anywhere in the State of Hawaii, the Northwestern 
Hawaiian islands, or the unincorporated territory of Midway Atoll. No 
permit is necessary to engage in these actions. In this section, the 
word ``you'' means a person operating officially as an employee of one 
of the authorized agencies.
    (b) Authorized agencies. (1) U.S. Fish and Wildlife Service;
    (2) U.S. Department of Agriculture--Animal and Plant Health 
Inspection Service;
    (3) U.S. Geological Survey;
    (4) U.S. Department of Defense;
    (5) National Park Service;
    (6) Federal Aviation Administration;
    (7) National Oceanic and Atmospheric Administration;
    (8) Hawaii Department of Lands and Natural Resources--Division of 
Forestry and Wildlife;
    (9) Hawaii Department of Agriculture;
    (10) University of Hawaii--Pacific Cooperative Studies Units with 
program mandates to accomplish invasive species eradication and 
control. These include staff of the Kauai Invasive Species Committee, 
the Oahu Invasive Species Committee, the Maui Invasive Species 
Committee, the Molokai-Maui Invasive Species Committee, or the Big 
Island Invasive Species Committee.
    (c) Means of take. (1) You may take cattle egrets and barn owls by 
means of egg oiling, egg and nest destruction, firearms, trapping, 
cervical dislocation, and CO2 asphyxiation. Any time that 
euthanasia of a bird is necessary, you must follow the American 
Veterinary Medical Association Guidelines on Euthanasia.
    (2) If you use a firearm to kill cattle egrets or barn owls under 
the provisions of this order, you must use nontoxic shot or nontoxic 
bullets to do so. See Sec.  20.21(j) of this chapter for a list of 
approved nontoxic shot types. This requirement does not apply when 
using air rifles or air pistols.
    (3) Eggs may be oiled with 100 percent corn oil, which is exempted 
from regulation under the Federal Insecticide, Fungicide, and 
Rodenticide Act by the U.S. Environmental Protection Agency.
    (4) You may use decoys, taped calls, or other luring devices as 
tools for locating and capture or removal of cattle egrets or barn 
    (d) Land access. You must obtain appropriate landowner permission 
before conducting activities authorized by this order.
    (e) Relationship to other regulations. You may kill cattle egrets 
and barn owls or destroy their nests or eggs under this order only in a 
way that complies with all applicable tribal, local, State, Federal, 
and/or territorial regulations. Any and all required authorizations 
must be obtained to conduct this activity.
    (f) Release of injured or sick cattle egrets or barn owls. Wildlife 
rehabilitators, veterinarians, and all other individuals or agencies 
who receive sick or injured cattle egrets or barn owls are prohibited 
from releasing any individuals of those species back into the wild in 
the State of Hawaii, the Northwestern Hawaiian islands, or the 
unincorporated territory of Midway Atoll. All applicable local, State, 
Federal, and/or territorial regulations must be followed to release 
cattle egrets or barn owls in or transfer them to any other location.
    (g) Disposal of cattle egret or barn owl carcasses, nests, or eggs. 
You may donate birds, nests, or eggs taken under this control order to 
public museums or public institutions for scientific or educational 
purposes; you may dispose of the carcasses by burial or incineration; 
or, if the carcasses are not safely retrievable, you may leave them in 
place. No one may retain for personal or cultural use, offer for sale, 
or sell a cattle egret or a barn owl or any body parts, nests, or eggs 
removed under this section.
    (h) Threatened or endangered species. You may not remove or destroy 
cattle egrets or barn owls or their nests or eggs if doing so will 
adversely affect other migratory birds protected under the Migratory 
Bird Treaty Act or species designated as endangered or threatened under 
the authority of the Endangered Species Act.
    (i) Reporting take. All agencies engaged in control activities 
under this control 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 a summary of the species and number of 
birds taken, the months in which they were taken, and the county(ies) 
in which they were taken. The report for

[[Page 65959]]

any of these agencies may be combined, as appropriate. Submit annual 
reports to the Regional Migratory Bird Permit Office in Portland, 
Oregon, at the address shown in Sec.  2.2 of subchapter A of this 
    (j) Reporting nontarget take. If, while operating under this 
control order, you take any other species protected under the 
Endangered Species Act or the Migratory Bird Treaty Act, you must 
immediately report the take to the Service Regional Migratory Bird 
Permit Office in Portland, Oregon, at the address shown in Sec.  2.2 of 
subchapter A of this chapter .
    (k) Revocation of authority to operate under this order. We may 
suspend or revoke the authority of any individual or agency to operate 
under this order if we find that the individual or agency has taken 
actions that may take federally listed threatened or endangered species 
or any other bird species protected by the Migratory Bird Treaty Act 
(see Sec.  10.13 of subchapter A of this chapter for the list of 
protected migratory bird species), or has otherwise violated Federal 
regulations. We will notify the affected agency by letter, and may 
change this control order accordingly.

    Dated: September 17, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
[FR Doc. 2013-26071 Filed 11-1-13; 8:45 am]