50 CFR § 17.41 - Special rules - birds.

§ 17.41 Special rules - birds.

(a) Streaked horned lark (Eremophila alpestris strigata). (1) Which populations of the streaked horned lark are covered by this special rule? The components of this special rule that apply to airport management and noxious weed control cover the rangewide distribution of this bird; the agricultural component applies only to the Willamette Valley in Oregon.

(2) What activities are prohibited? Except as noted in paragraphs (a)(3), (4), and (5) of this section, all prohibitions of § 17.31 apply to the streaked horned lark.

(3) What activities are allowed on airports on non-Federal lands? (i) Incidental take of the streaked horned lark will not be a violation of section 9 of the Act, if the incidental take results from routine management activities associated with airport operations to minimize hazardous wildlife, consistent with regulations at 14 CFR 139.337.

(ii) Hazardous wildlife is defined by the Federal Aviation Administration as species of wildlife, including feral animals and domesticated animals not under control, that are associated with aircraft strike problems, are capable of causing structural damage to airport facilities, or act as attractants to other wildlife that pose a strike hazard. Routine management activities include, but are not limited to, the following:

(A) Routine management, repair, and maintenance of roads and runways (does not include upgrades or construction of new roads or runways);

(B) Control and management of vegetation (grass, weeds, shrubs, and trees) through mowing, discing, herbicide application, or burning;

(C) Hazing of hazardous wildlife; and

(D) Habitat modification and management of sources of forage, water, and shelter to reduce the attractiveness of the area around the airport for hazardous wildlife.

(iii) Incidental take of larks caused by accidental aircraft strikes at airports on non-Federal lands is also exempted from the prohibitions of section 9 of the Act.

(4) What agricultural activities are allowed on non-Federal land in the Willamette Valley in Oregon? Incidental take of streaked horned lark will not be a violation of section 9 of the Act, if the incidental take results from accepted agricultural (farming) practices implemented on farms consistent with State laws on non-Federal lands.

(i) For the purposes of this special rule, farm means any facility, including land, buildings, watercourses and appurtenances, used in the commercial production of crops, nursery stock, livestock, poultry, livestock products, poultry products, vermiculture products, or the propagation and raising of nursery stock.

(ii) For the purposes of this special rule, an agricultural (farming) practice means a mode of operation on a farm that:

(A) Is or may be used on a farm of a similar nature;

(B) Is a generally accepted, reasonable, and prudent method for the operation of the farm to obtain a profit in money;

(C) Is or may become a generally accepted, reasonable, and prudent method in conjunction with farm use;

(D) Complies with applicable State laws; and

(E) Is done in a reasonable and prudent manner.

(iii) Accepted agricultural (farming) practices include, but are not limited to, the following activities:

(A) Planting, harvesting, rotation, mowing, tilling, discing, burning, and herbicide application to crops;

(B) Normal transportation activities, and repair and maintenance of unimproved farm roads (this exemption does not include improvement or construction of new roads) and graveled margins of rural roads;

(C) Livestock grazing according to normally acceptable and established levels;

(D) Hazing of geese or predators; and

(E) Maintenance of irrigation and drainage systems.

(5) What noxious weed control activities are allowed on non-Federal lands? Incidental take of streaked horned lark will not be a violation of section 9 of the Act, if the incidental take results from routine removal or other management of noxious weeds. Routine removal or other management of noxious weeds are limited to the following, and must be conducted in such a way that impacts to non-target plants are avoided to the maximum extent practicable:

(i) Mowing;

(ii) Herbicide and fungicide application;

(iii) Fumigation; and

(iv) Burning.

(b) Coastal California gnatcatcher (Polioptila californica californica). (1) Except as noted in paragraphs (b)(2) and (3) of this section, all prohibitions of § 17.31(a) and (b) shall apply to the coastal California gnatcatcher.

(2) Incidental take of the coastal California gnatcatcher will not be considered a violation of section 9 of the Endangered Species Act of 1973, as amended (Act), if it results from activities conducted pursuant to the State of California's Natural Community Conservation Planning Act of 1991 (NCCP), and in accordance with a NCCP plan for the protection of coastal sage scrub habitat, prepared consistent with the State's NCCP Conservation and Process Guidelines, provided that:

(i) The NCCP plan has been prepared, approved, and implemented pursuant to California Fish and Game Code sections 2800-2840; and

(ii) The Fish and Wildlife Service (Service) has issued written concurrence that the NCCP plan meets the standards set forth in 50 CFR 17.32(b)(2). The Service shall issue its concurrence pursuant to the provisions of the Memorandum of Understanding (MOU), dated December 4, 1991, between the California Department of Fish and Game and the Service regarding coastal sage scrub natural community conservation planning in southern California. (Copies of the State's NCCP Conservation and Process Guidelines and the MOU are available from the U.S. Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue West, Carlsbad, CA 92008.) The Service shall monitor the implementation of the NCCP plan and may revoke its concurrence under this paragraph (b)(2)(ii) if the NCCP plan, as implemented, fails to adhere to the standards set forth in 50 CFR 17.32(b)(2).

(3) During the period that a NCCP plan referred to in paragraph (b)(2) of this section is being prepared, incidental take of the coastal California gnatcatcher will not be a violation of section 9 of the Act if such take occurs within an area under the jurisdiction of a local government agency that is enrolled and actively engaged in the preparation of such a plan and such take results from activities conducted in accordance with the NCCP Conservation Guidelines and Process Guidelines.

(4) The Service will monitor the implementation of the NCCP Conservation and Process Guidelines as a whole, and will conduct a review every 6 months to determine whether the guidelines, as implemented, are effective in progressing toward or meeting regional and subregional conservation objectives during the interim planning period. If the Service determines that the guidelines are not effecting adequate progress toward or meeting regional and subregional conservation objectives, the Service will consult with the California Department of Fish and Game pursuant to the MOU to seek appropriate modification of the guidelines or their application as defined therein. If appropriate modification of the guidelines or their application as defined therein does not occur, the Service may revoke the interim take provisions of this special rule on a subregional or subarea basis. The Service will publish the findings for revocation in the Federal Register and provide for a 30-day public comment period prior to the effective date for revoking the provisions of the special rule in a particular area. Revocation would result in the reinstatement of the take prohibitions set forth under 50 CFR 17.31(a) and (b) in the affected NCCP area.

(c) The following species in the parrot family: Salmon-crested cockatoo (Cacatua moluccensis), yellow-billed parrot (Amazona collaria), white cockatoo (Cacatua alba), hyacinth macaw (Anodorhynchus hyacinthinus), scarlet macaw (Ara macao macao and scarlet macaw subspecies crosses (Ara macao macao and Ara macao cyanoptera)), and golden conure (Guaruba guarouba).

(1) Except as noted in paragraphs (c)(2) and (c)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to these species.

(2) Import and export. You may import or export a specimen without a permit issued under § 17.32 of this part only when the provisions of parts 13, 14, 15, and 23 of this chapter have been met and you meet the following requirements:

(i) Captive-bred specimens: The source code on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) document accompanying the specimen must be “F” (captive born), “C” (bred in captivity), or “D” (bred in captivity for commercial purposes) (see 50 CFR 23.24); or

(ii) Specimens held in captivity prior to certain dates: You must provide documentation to demonstrate that the specimen was held in captivity prior to the applicable date specified in paragraph (c)(2)(ii)(A), (B), (C), (D), (E), or (F) of this section. Such documentation may include copies of receipts, accession or veterinary records, CITES documents, or wildlife declaration forms, which must be dated prior to the specified dates.

(A) For salmon-crested cockatoos: January 18, 1990 (the date this species was transferred to CITES Appendix I).

(B) For yellow-billed parrots: April 11, 2013 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(C) For white cockatoos: July 24, 2014 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(D) For hyacinth macaws: September 12, 2018 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(E) For scarlet macaws: March 28, 2019 (the date this species was listed under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.)).

(F) For golden conures: July 1, 1975 (the date CITES entered into force with the “golden parakeet” (i.e., the golden conure) listed in Appendix I of the Convention).

(3) Interstate commerce. Except where use after import is restricted under § 23.55 of this chapter, you may deliver, receive, carry, transport, or ship in interstate commerce and in the course of a commercial activity, or sell or offer to sell, in interstate commerce the species listed in this paragraph (c) without a permit under the Act.

(d) Hawaiian goose (Branta sandvicensis) (nene). (1) Definitions. For the purposes of this paragraph (d):

(i) Nene means the Hawaiian goose (Branta sandvicensis).

(ii) Intentional harassment means an intentional act that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns, which include, but are not limited to, breeding, feeding, or sheltering. Intentional harassment may include prior purposeful actions to attract, track, wait for, or search out nene, or purposeful actions to deter nene.

(iii) Person means a person as defined by section 3(13) of the Act.

(iv) Qualified biologist means an individual with a combination of academic training in the area of wildlife biology or related discipline and demonstrated field experience in the identification and life history of nene.

(2) Prohibitions. The following prohibitions apply to the nene except as provided under paragraph (d)(3) of this section and §§ 17.4 through 17.6:

(i) Import or export as provided in § 17.21(b).

(ii) Take as provided in § 17.21(c)(1).

(iii) Possession and other acts with unlawfully taken specimens as provided in § 17.21(d)(1).

(iv) Interstate or foreign commerce in the course of commercial activity as provided in § 17.21(e).

(v) Sale or offer for sale as provided in § 17.21(f).

(vi) Attempt to commit, solicit another to commit, or to cause to be committed, any of the acts described in paragraphs (d)(2)(i) through (v) of this section.

(3) Exceptions from prohibitions. The following exceptions from prohibitions apply to the nene:

(i) Authorization provided under § 17.32.

(ii) Take as provided in § 17.21(c)(2) through (7). However, § 17.21(c)(5)(i) through (iv) does not apply.

(iii) Take incidental to an otherwise lawful activity caused by:

(A) Intentional harassment of nene that is not likely to cause direct injury or mortality. A person may harass nene on lands they own, rent, or lease, if the action is not likely to cause direct injury or mortality of nene. Techniques for such harassment may include the use of predator effigies (including raptor kites, predator replicas, etc.), commercial chemical bird repellents, ultrasonic repellers, audio deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with trained or tethered dogs, or access control (including netting, fencing, etc.). Nene may also be harassed in the course of surveys that benefit and further the recovery of nene. Such harassment techniques must avoid causing direct injury or mortality to nene. Before implementation of any such intentional harassment activities during the nene breeding season (September through April), a qualified biologist knowledgeable about the nesting behavior of nene must survey in and around the area to determine whether a nest or goslings are present. If a nest is discovered, the Service and authorized State wildlife officials must be notified within 72 hours (see paragraph (d)(4) of this section for contact information) and the following measures implemented to avoid disturbance of nests and broods:

(1) No disruptive activities may occur within a 100-foot (30-meter) buffer around all active nests and broods until the goslings have fledged;

(2) Brooding adults (i.e., adults with an active nest or goslings) or adults in molt may not be subject to intentional harassment at any time; and

(3) The landowner must arrange follow-up surveys of the property by qualified biologists to assess the status of birds present.

(B) Nonnative predator control or habitat management activities. A person may incidentally take nene in the course of carrying out nonnative predator control or habitat management activities for nene conservation purposes if reasonable care is practiced to minimize effects to the nene.

(1) Nonnative predator control activities for the conservation of nene include use of fencing, trapping, shooting, and toxicants to control predators, and related activities such as performing efficacy surveys, trap checks, and maintenance duties. Reasonable care for predator control activities may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on predator control methods and protocols prior to application of methods; compliance with all State and Federal regulations and guidelines for application of predator control methods; and judicious use of methods and tool adaptations to reduce the likelihood of nene ingesting bait, interacting with mechanical devices, or being injured or dying from interaction with mechanical devices.

(2) Habitat management activities for the conservation of nene include: Mowing, weeding, fertilizing, herbicide application, and irrigating existing pasture areas for conservation purposes; planting native food resources; providing watering areas, such as water units or ponds or catchments, designed to be safe for goslings and flightless/molting adults; providing temporary supplemental feeding and watering stations when appropriate, such as under poor quality forage or extreme conditions (e.g., drought or fire); if mechanical mowing of pastures for conservation management purposes is not feasible, alternate methods of keeping grass short, such as grazing; and large-scale restoration of native habitat (e.g., feral ungulate control, fencing). Reasonable care for habitat management may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on habitat management activities, and best efforts to minimize nene exposure to hazards (e.g., predation, habituation to feeding, entanglement, and vehicle collisions).

(C) Actions carried out by law enforcement officers in the course of official law enforcement duties. When acting in the course of their official duties, State and local government law enforcement officers, working in conjunction with authorized wildlife biologists and wildlife rehabilitators in the State of Hawaii, may take nene for the following purposes:

(1) Aiding or euthanizing sick, injured, or orphaned nene;

(2) Disposing of a dead specimen; or

(3) Salvaging a dead specimen that may be used for scientific study; or

(4) Possession and other acts with unlawfully taken specimens as provided in § 17.21(d)(2) through (4)).

(4) Reporting and disposal requirements. Any injury or mortality of nene associated with the actions excepted under paragraphs (d)(3)(iii)(A) through (C) of this section must be reported to the Service and authorized State wildlife officials within 72 hours, and specimens may be disposed of only in accordance with directions from the Service. Reports should be made to the Service's Office of Law Enforcement at (808) 861-8525, or the Service's Pacific Islands Fish and Wildlife Office at (808) 792-9400. The State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife may be contacted at (808) 587-0166. The Service may allow additional reasonable time for reporting if access to these offices is limited due to closure.

(e) Elfin-woods warbler (Setophaga angelae). (1) Prohibitions. Except as noted in paragraph (e)(2) of this section, all prohibitions and provisions of 50 CFR 17.31 and 17.32 apply to the elfin-woods warbler.

(2) Exemptions from prohibitions. Incidental take of the elfin-woods warbler will not be considered a violation of section 9 of the Act if the take results from any of the following when conducted within habitats currently occupied by the elfin-woods warbler provided these activities abide by the conservation measures set forth in this paragraph (e) and are conducted in accordance with applicable State, Federal, and local laws and regulations:

(i) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (i.e., removal of invasive, exotic, and feral species; shade and coffee tree seasonal pruning; shade and coffee tree planting and replacement; coffee bean harvest by hands-on methods; and the use of standard pest control methods and fertilizers within the plantations) of shade-grown coffee plantations and native forests associated with this type of crop. To minimize disturbance to the elfin-woods warbler, shade and coffee tree seasonal pruning must be conducted between September 1 and February 28, which is the time period outside the peak of the elfin-woods warbler's breeding season. The Service considers the use of pest control methods (e.g., pesticides, herbicides) and fertilizers “standard” when it is used only twice a year during the establishment period of shade and coffee trees (i.e., the first 2 years). Once the shade-grown coffee system reaches its functionality and structure (i.e., 3 to 4 years), little or no chemical fertilizers, herbicides, or pesticides may be used.

(ii) Riparian buffer establishment though the planting of native vegetation and selective removal of exotic species.

(iii) Reforestation and forested habitat enhancement projects within secondary forests (i.e., young and mature) that promote the establishment or improvement of habitat conditions for the species by the planting of native trees, selective removal of native and exotic trees, seasonal pruning of native and exotic trees, or a combination of these.

[43 FR 6233, Feb. 14, 1978, as amended at 58 FR 65095, Dec. 10, 1993; 60 FR 36010, July 12, 1995; 72 FR 37372, July 9, 2007; 73 FR 23970, May 1, 2008; 76 FR 30780, May 26, 2011; 76 FR 54713, Sept. 2, 2011; 78 FR 15641, Mar. 12, 2013; 78 FR 61502, Oct. 3, 2013; 79 FR 20084, Apr. 10, 2014; 79 FR 35900, June 24, 2014; 81 FR 47048, July 20, 2016; 81 FR 40547, June 22, 2016; 83 FR 39916, Aug. 13, 2018; 84 FR 6311, Feb. 26, 2019; 84 FR 69946, Dec. 19, 2019; 85 FR 22663, Apr. 23, 2020]