[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Rules and Regulations]
[Pages 30474-30483]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12318]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[Docket No. FWS-HQ-MB-2013-0135; FF09M21200-145-FXMB1232099BPP0]
RIN 1018-AX82
Migratory Bird Permits; Extension of Expiration Dates for Double-
Crested Cormorant Depredation Orders
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; availability of environmental assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), revise the two
depredation orders for double-crested cormorants (Phalacrocorax
auritus, DCCOs). We extend the expiration dates for the orders for 5
years to allow State and Tribal resource management agencies to
continue to manage DCCO problems and gather data on the effects of DCCO
control actions. We have prepared a final environmental assessment
(FEA) to analyze the environmental impacts associated with this
extension. We change the annual reporting date for the depredation
order to protect public resources, remove requirements for DCCO control
activities around bald eagles and bald eagle nests for both orders, and
require use of the National Bald Eagle Management Guidelines for both
orders. We also add a requirement for the use of nontoxic rifle bullets
for anyone using centerfire rifles to control DCCOs under the orders,
beginning on January 1, 2017.
DATES: This rule will be effective on June 27, 2014.
ADDRESSES: Document availability: The FEA and public comments that we
received on the proposed rule are available at http://www.regulations.gov under Docket No. FWS-HQ-MB-2013-0135, and on our
Service Web site at http://www.fws.gov/migratorybirds/.
FOR FURTHER INFORMATION CONTACT: George Allen at 703-358-1825.
SUPPLEMENTARY INFORMATION:
Background
Under the authority of the Migratory Bird Treaty Act (MBTA) (16
U.S.C. 703 et seq.), the U.S. Fish and Wildlife Service has primary
Federal responsibility for managing migratory birds. We carry out this
responsibility through regulations in title 50 of the Code of Federal
Regulations (CFR). Part of this process includes issuing permits for
certain actions dealing with migratory birds. In part 21 of title 50 of
the CFR, we have established depredation orders for the control of
certain depredating birds. A depredation order is a regulation that
allows the take of specific species of migratory birds, at specific
locations, and for specific purposes, without a depredation permit.
The Aquaculture Depredation Order at 50 CFR 21.47 allows take of
double-crested cormorants (DCCOs) to protect stock at aquaculture
facilities, and the Public Resource Depredation Order at 50 CFR 21.48
allows take of DCCOs to protect public resources, as set forth in the
regulations. On March 5, 2014, we published a proposed rule to revise
these depredation orders by, among other things, extending the
expiration dates of the orders by 5 years (79 FR 12458). See the
proposed rule for an explanation of the proposed changes.
Expiration Dates
We extend the regulations until June 30, 2019. Doing so will not
pose a significant, detrimental effect on the long-term viability of
DCCO populations. It will allow State and Tribal resource management
agencies to continue to manage DCCO problems related to impacts on
public resources and allow aquaculture producers to address DCCO
depredation impacts on aquaculture stock under the terms and conditions
of the depredation orders and gather data on the effects of DCCO
control actions.
Entities acting under the depredation orders must follow applicable
regulations. Depredation control efforts under the orders may take
place only where cormorants are found committing or about to commit
depredations under specified conditions, 50 CFR 21.47(c)(1) and
21.48(c)(1). The regulations include a requirement to initially use
nonlethal control methods where practicable and effective and not
harmful to other nesting birds, 50 CFR 21.47(d)(1) and 21.48(d)(1);
provide notice to FWS indicating their intent to act under the
depredation order, 50 CFR 21.48(d)(9); and notify the FWS in writing 30
days in advance if any single control action would individually, or a
succession of such actions would cumulatively, kill more than 10
percent of the DCCOs in a breeding colony, 50 CFR 21.48(d)(9)(i). We
can prohibit cormorant take under the depredation orders if we deem it
a threat to the long-term sustainability of DCCOs or any other
migratory bird species, 50 CFR 21.48(d)(9)(ii). Similarly, we can
suspend or revoke the authority of any person or agency acting pursuant
to the depredation orders who does not adhere to the orders' purposes,
[[Page 30475]]
terms, and conditions or if the long-term sustainability of DCCO
populations is threatened, 50 CFR 21.47(d)(10) and 21.48(d)(13).
Updated population information indicates that the orders have not
had a significant negative effect on regional DCCO populations (see
data in the FEA). To summarize the FEA here, a 2006 study by Wetlands
International estimated the continental DCCO population at between 1 to
2 million birds of four recognized subspecies. In the southeastern
United States, though numbers of cormorants declined 46% in both
Mississippi and Alabama from the peak count in 2004, cormorants in the
region have undergone dramatic increases in the last 20 years; and, in
a 2006 study, Mississippi populations at some colonies are likely
greater than the pre-1990 levels. The Southern US estimates between
37,000-73,000 birds. In the U.S. Great Lakes from 1997 to 2011, the
cormorant population was between 45,626 and 53,802 breeding pairs
(nests). Under various DCCO management scenarios, we estimate that the
Great Lakes DCCO population would be lower than current numbers but
would remain significantly higher than populations in the early 1990s.
The depredation orders will now expire on June 30, 2019. If we
determine that future changes to the depredation orders are necessary
to eliminate an expiration date or make other changes, we will publish
the requisite documents in the Federal Register to make those changes.
Other Changes to the Depredation Orders
We make other changes to the depredation orders at 50 CFR 21.47 and
21.48 to bring them in line with our current regulations and practices.
We add a January 31st reporting deadline to the depredation order at
aquaculture facilities (50 CFR 21.47), and we change the annual
reporting date for the depredation order to protect public resources
(50 CFR 21.48) to January 31 to give respondents an additional month to
submit the requisite information. The two depredation orders now will
have the same reporting date.
In addition, we update both depredation orders to remove the
requirements for cormorant control activities around bald eagles
(Haliaeetus leucocephalus) and bald eagle nests. These requirements for
bald eagles and bald eagle nests were included in the depredation
orders because the species was protected at that time by the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.). The bald eagle has since
been removed from the Federal List of Endangered and Threatened
Wildlife (72 FR 37345; July 9, 2007), so the requirements no longer
apply. In lieu of those protections, we revise the depredation orders
to require use of the National Bald Eagle Management Guidelines (72 FR
31156; June 5, 2007) for both depredation orders. The guidelines
provide information to land managers, landowners, and others on ways to
avoid disturbing bald eagles and their nests.
Comments on the Proposed Rule and Draft Environmental Assessment
We received 30 comments from individuals, organizations, State
agencies, and Flyways on the March 5, 2014, proposed rule (79 FR 12458-
12461) and draft environmental assessment (DEA). State natural resource
agencies, the Flyway Councils, and several individuals encouraged
continuation and expansion of the depredation orders. Most individuals,
nongovernmental organizations, and academic institutions that commented
opposed continuation of the orders. Below are the comments that we
consider significant or representative and our responses to them.
Comment. ``By their own choice, fishermen on the Great Lakes and
politicians blindly supporting them, have conveniently disregarded
scientific data that demonstrate the minimal effect cormorants have on
overall fish stocks. Cormorants are opportunistic feeders, feeding on
the most available species at any particular time. Although capable of
reaching greater depths, cormorants typically dive to about twenty feet
during their pursuit dives, preying on forage species gathering for
seasonal spawning, favorable temperatures, and searching for their own
prey species. Some species are the same species sought by fishermen,
such as smallmouth bass, yellow perch, and walleye, but when conditions
change and these fish move to deeper waters cormorants move on to other
non-game species such as alewives, sunfish, and round gobies. Gamefish
constitute a small portion of the cormorant's total diet.''
Response. The numerous studies cited in the DEA document the
difficulty in assessing the causes of sport fish and commercial fish
population declines. However, as we noted, it is not just through
direct take of game fish that DCCOs can contribute to sport fish and
commercial fish declines; in some circumstances, DCCO predation on
forage fish that comprise the diet of game fish can also impact the
latter species. The Public Resource Depredation Order requires
fisheries management agencies to describe the evidence that supports
their conclusion that DCCOs are causing or will cause impacts to fish
populations, and that DCCO management is needed. This justification is
based on fish population assessments, angler harvest data, research
studies, and/or expert opinion.
Comment. ``Both recreational and commercial fishermen have
continually failed to recognize the effects of overfishing. It was no
coincidence that the extinctions of the lake trout in Lake Ontario in
the 1950s and followed by the Atlantic salmon in the early 1990s were
followed by tremendous blooms in the populations of forage fish--with
fewer predators in the lake the predator-prey relationship changed
drastically. Hundreds perhaps thousands, of sport charter trips each
season that encouraged clients to fill their coolers and home freezers
with sport fish further taxed remaining predator stocks. (Some species
were still contaminated with industrial and agricultural pollutants and
not recommended for frequent human consumption--zero consumption by
expectant mothers--by the New York State Department of Environmental
Conservation). The resulting rapidly expanding forage populations
suited nesting cormorants just fine. In the North, there were now
virtually unlimited food sources available to feed their chicks,
further enhancing cormorant expansion. (In the South, the new open
catfish ponds provided winter forage, keeping cormorants healthy for
their northern migration in the spring.)''
Response. We acknowledge that numerous factors (perhaps including
overfishing) can affect fish population and community dynamics. This
can result in increases in certain fish species that are readily preyed
on by DCCOs. This, in turn, can increase their survival and
productivity rates and, ultimately, their populations.
Comment. ``Another factor influencing the expansion of cormorant
populations and territories was the introduction of new and invasive
species such as alewives, through the construction of canals bypassing
the barrier of Niagara Falls; round gobies, probably introduced through
the ballast of foreign freighters; and the arrival of the parasitic sea
lamprey through the St. Lawrence Seaway, which further decimated
predatory salmon and trout in the Great Lakes. Cormorants had nothing
to do with these destructive, human-generated influences, yet pay the
price due to outmoded thinking.''
Response. We acknowledged in the FEIS and the DEA that introduced
species, particularly the alewife (Alosa
[[Page 30476]]
pseudoharengus) and the round goby (Apollonia melanostoma), played a
role in DCCO population and distribution changes. As noted in the DEA,
the DCCO population changes also adversely affected both other bird
species and habitats for other species; through physical and chemical
means, DCCOs damage, and often kill, shrubs and trees where they nest
and roost.
Comment. ``In the South, catfish farming came about in the 1960s as
a result of depressed prices farmers were getting for row crops such as
corn and soybeans. As a second effort, catfish ponds were constructed
on shoestring budgets and weak business plans. Catfish farmers have now
had at least four full decades to learn how to improve and protect
their facilities and investments. They found time and funding to create
numerous associations, build their own feed and processing plants, and
develop advertising campaigns and distribution systems. But still their
business plans depend on government ``technicians'' and taxpayer
dollars to thin cormorant populations rather than incorporating
realistic budgets for securing their unprotected ponds. When will it be
time for the catfish growers to step up and assume responsibility for
their own industry instead of four decades of ``crying wolf'' as a
victim?''
Response. The regulations at 50 CFR 21.47(d)(1) of the Aquaculture
Depredation Order specify that ``Persons operating under paragraph
(c)(1) of this section may only do so in conjunction with an
established nonlethal harassment program as certified by officials of
the Wildlife Services program of the U.S. Department of Agriculture
Animal and Plant Health Inspection Service.''
Most Control of depredating DCCOs at aquaculture facilities depends
neither on ``government technicians'' nor government funding for
control. Lethal control at aquaculture facilities usually is done by
the permittees--in conjunction with nonlethal control. Most migratory
bird depredation control, either under permits or depredation orders,
is done by the permittees.
Comment. ``Here on lower Green Bay I have monitored cormorant
nesting since I discovered the first handful of nests in 1976. Last
year after shooting and oiling eggs for the past order period, we had
only 640 nesting pairs, approximately a 70% decline from the peak
nesting numbers. There was [sic] never any scientific studies
demonstrating that cormorants had any effect on Yellow Perch
populations on the bay. The one study done only used data from the once
in decade exceptional perch reproduction year, which cormorants
committed to their diet as the easiest thing to catch. Data from
previous years and post years revealed a much different diet
composition. That study also never took into consideration that
Wisconsin DNR planted 89.2 million Walleye fry into the system which
also ate Yellow Perch 24/7. No consideration was given to the fact that
cormorants in late July through September consume vast numbers of
Gizzard Shad which now have reached nuisance numbers on the lower bay
and which not only compete with perch for food resources but also dine
on perch eggs and larval young. Single species management to solve a
complex problem never works and often compounds it. The order has also
affected other colonial species nesting on Cat Island. Great Egrets and
Black-crowned Night Herons (state watch species) have stopped nesting
on Cat Island. In the past eggs of these species were ``accidently''
oiled along with cormorant eggs. Reproduction of White Pelicans on Cat
Island has decreased with the amount of cormorant egg oiling activity.
The Fish and Wildlife Service has not properly monitored control
activities and their effects on other associated species.''
Response. While the impacts (if any) of DCCOs on yellow perch are
difficult to measure, reducing DCCO consumption of yellow perch is not
the main focus of DCCO control on lower Green Bay. The latest
correspondence the FWS received from the Wisconsin Department of
Natural Resources (WDNR) indicated a major focus of DCCO control on
lower Green Bay is to ``. . . maintain a colony size [on the Cat-Lone
Tree Island complex] that will not likely expand and threaten the
remaining woody vegetation on nearby Lone Tree Island which supports
nesting Great Egrets and Black-crowned Night-Herons, or onto newly
created dredge spoil islands in future years.'' With respect to the
impact of DCCO control activities on other bird species, the WDNR's
latest annual report indicated that no incidental take of co-nesting
birds occurred. Various measures are taken to minimize the likelihood
of incidental take of other bird species during DCCO management
activities, including minimizing the number and duration of visits to
DCCO colonies, avoiding visits on days of extreme temperature or
precipitation, shooting DCCOs in some cases at sites away from a
nesting island, and training shooters in bird identification and
marksmanship.
Comment. ``In the text of its proposal for extending the current
depredation orders the USFWS claimed it collected data during the last
five-year extension regarding cormorant populations in support of the
new five-year extension. Merely reporting that depredation orders ``had
not had any significant effect on double-crested cormorant
populations'' is not sufficient evidence to extend the various versions
of the depredation orders. The USFWS offers no positive evidence that
killing cormorants has helped to rebuild wild fish stocks weakened
primarily by overfishing, invasive species, pollution, and development.
It appears that the agency is more willing to maintain the status quo
of passing its duties to state bureaus than exercising its
responsibility for ``managing'' cormorant issues.''
Response. We did not just report that the depredation orders ``had
not had any significant effect on double-crested cormorant
populations''; data in Table 2 of the DEA showed that the total Great
Lakes population was about 26% larger in 2009 than it had been in 1997.
Though the data in the DEA are the best available, other data indicate
that DCCO populations continue to grow. For example, although the North
American Breeding Bird Survey (BBS) is not intended for monitoring
DCCOs, in every Bird Conservation Region, State, or Province around the
Great Lakes for which there are BBS data, the population trend is
generally positive since 1966, close to 5% nationally but ranging from
2 to over 20% depending on the state/region (http://www.mbr-pwrc.usgs.gov/cgi-bin/atlasa12c.pl?01200&1&12). Our obligation under
the Migratory Bird Treaty Act is to ensure the well-being of
populations of protected species, which we will continue to do for
DCCOs. We continue to believe that efforts to address the adverse
impacts of DCCOs on habitats and fisheries under the depredation orders
have been limited in scope, and have not impacted the sustainability of
regional DCCO populations.
The FWS does not ``pass its duties to state bureaus.'' We have a
long history of working with the States and tribes on management of
migratory birds and other shared resources. We will continue to work
with them on DCCO management. With respect to DCCO impacts on fish,
State natural resource agencies usually have legal responsibility for
fisheries management and the FWS recognizes the States' role in
documenting such impacts. Again, we can suspend or revoke the authority
of any person or agency acting pursuant
[[Page 30477]]
to the depredation orders who does not adhere to the orders' purposes,
terms, and conditions, 50 CFR 21.48(d)(13).
Comment. ``FWS offers no explanation for why it has been unable to
conduct a thorough review of the issue during the past five years.
Indeed, FWS implies that it has not taken the time to examine any
aspect of the issues since it offers no report on what, if anything, it
has learned or done in the past five years.
Instead, FWS states in the DEA that it will address concerns and
alternatives ``in a subsequent analysis'' but without specifying when.
Since FWS regards extending the Orders by another five years to be only
``an interim measure'' one can reasonably expect that its state of
review will not have progressed when this extension expires in 2019.
In short, FWS appears to be using its lack of diligence and rigor
as a justification for ``Xeroxing forward'' a largely unexamined
policy.''
Comment. ``I also support this Alternative [A], in part, because
all decisions on cormorant management seem to have been largely driven
by the powerful aquaculture industry and sport angler/tourism-related
citizen groups, with little to no voice given to the scientific
community. Furthermore, there has been very little consistent
monitoring to determine effectiveness of control, primarily because it
is difficult to obtain the data and because the Fish and Wildlife
Service is unwilling to extend the resources needed to evaluate the
effects of the depredation orders.''
Response to these comments. We believe that the scientific
community (including biologists and researchers who work for the FWS,
State and Tribal agencies, and USDA Wildlife Services) has played an
important and growing role in DCCO management by designing and
conducting studies and monitoring programs that better document the
impacts of DCCOs on public resources and aquaculture stock, assess the
effectiveness of DCCO management actions, and track DCCO and co-nester
population trends in response to management. This information is used
in an adaptive context to adjust DCCO control activities. In the Great
Lakes, the FWS works with State and Tribal agencies, USDA Wildlife
Services, and researchers to monitor DCCO numbers, distribution, and
trends as an index to assessing the health of the Interior population
of DCCOs. Monitoring of impacted resources is also being done to
document problems and evaluate whether DCCO control activities are
effective in alleviating them; such monitoring is often challenging and
expensive and not as comprehensive as some commenters would like.
However, as shown in the DEA, the depredation orders are not affecting
the sustainability of regional DCCO populations. In the U.S. Great
Lakes region, where DCCO control has been most intensive, the
population in 2009 was 27% greater than it had been in 1997.
Comment. In this instance, FWS has impermissibly sought to use the
lack of information as the basis for its review of potential
environmental impacts.
Response. This comment is not correct. Data in the FEA, such as the
Great Lakes region, and other data show that DCCO populations have
continued to expand with the depredation orders in place. Again, in the
southeastern United States, cormorants in the Mississippi and Alabama
region have undergone dramatic increases in the last 20 years, with
some Mississippi populations at some colonies likely greater than the
pre-1990 levels. The data support continuing the regulations allowing
for depredation orders and allowing DCCO lethal control after nonlethal
control has been attempted, for 5 more years.
Comment. According to the DEA, together the two Orders authorize
lethal take of an estimated 160,000 DCCOs per year although the agency
estimates that only 27% of the authorization is exercised, meaning that
more than 43,000 birds were ``harvested'' annually during the period
from 2004 to 2012.
The DEA contains population modeling which is the first time FWS
has directly addressed effects of the Orders on future DCCO population.
In one modeling scenario, the Service estimates that as much as a 48%
decline in the entire DCCO population could result. While the
percentages of the DCCO population lost vary in different modeling
scenarios, there is no question that extension of the Orders will have
a significant impact on these populations.
Response. This is not the first time the FWS has employed
population modeling to evaluate various DCCO management scenarios; we
did so in 2009 (FR 74 15394) when we originally extended the expiration
dates of the depredation orders. Though some models indicate that the
DCCO population could decline, data in the DEA, such as the Great
Lakes, Alabama, and Mississippi described above, show that the
population has continued to grow with the depredation orders in place.
We expect to further refine our modeling efforts when we do a more
comprehensive NEPA analysis.
Comment. ``CEQ regulation 40 CFR 1508.9(a)(1) stipulates that an EA
must ``Briefly provide sufficient evidence and analysis for determining
whether to prepare an environmental impact statement or a finding of no
significant impact.''
This EA does not do so, despite the agency's statement in the 2011
Federal Register notice that the decision of whether to prepare a
Supplement Environmental Impact Statement or an Environmental
Assessment would be based on NEPA and its implementing regulations 76
FR 69226. FWS has provided no support for its conclusion that an EIS or
SEIS is not required under NEPA--but rather has stated that it did not
prepare an SEIS because of ``constraints on our ability to conduct the
work necessary to complete a supplemental environmental impact
statement.'' 79 FR 12458 (March 5, 2014). Again, failure to do the
necessary work does not excuse compliance with NEPA.''
Response. This argument is incorrect. We completed an environmental
assessment that supports continuing the depredation orders for five
more years without major changes. We stated in the DEA that ``[t]his EA
is sufficient to assess the environmental impacts of this action and
assist our decision-making process.'' We established in a Finding of No
Significant Impact that an environmental impact statement is not needed
for us to extend the orders without substantial changes. As we noted
earlier, we would like to do a more comprehensive NEPA analysis in
which we may consider more substantive modifications and expansion of
the depredation orders, as requested by States.
Comment. ``In accordance with the Council on Environmental Quality
regulations, an environmental assessment must include a brief
discussion of alternatives. 40 CFR 1508.9(b). ``[C]onsideration of
alternatives is critical to the goals of NEPA even where a proposed
action does not trigger the EIS process . . .''. Bob Marshall Alliance
v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988).
Limiting the alternatives to letting the Orders expire, renewing
them for 5 years and renewing them indefinitely--without even
considering modifications to the Orders--cannot meet the requirement to
consider reasonable alternatives. Save Our Cumberland Mts. v.
Kempthorne, 453 F.3d 334, 345 (6th Cir. 2006). See also Davis v.
Mineta, 302 F.3d 1104 (10th Cir. 2002) (rejecting alternatives analysis
limited to choice between build and no build); Muckleshoot Indian Tribe
v. U.S. Forest Serv., 177 F.3d 800, 813 (9th Cir. 1999) (consideration
of no action and two
[[Page 30478]]
virtually identical alternatives insufficient).''
Response. We disagree, and believe that this comment misrepresents
the alternatives. They ranged from the restrictive choice desired by
some commenters (eliminating the depredation orders and allowing take
only under permits) to continuing operating indefinitely under
regulations that we believe have had no significant effect of the
sustainability of regional DCCO populations.
Comment. The inability of the USFWS to follow the EIS procedure
does little to promote science-based management, conserve migratory
birds protected under the Migratory Bird Treaty Act, or promote the
mission of the USFWS.
Response. We have followed appropriate NEPA procedures. We
established in a Finding of No Significant Impact that an EIS is not
needed for us to assess continuing the depredation orders for five more
years without significant changes.
Comment. ``The loss of approximately one half million large, long-
lived migratory birds is unquestionably a significant environmental
impact requiring more than the cursory assessment FWS has given it.
This action requires a full EIS or SEIS rather than merely this DEA.''
Response. We disagree. Data show that the DCCO population in the
United States remains healthy, despite control under the depredation
orders. Again nationally there is estimated between 1 to 2 million
birds. In the U.S. Great Lakes from 1997 to 2011, the cormorant
population has increased to between 45,626 and 53,802 breeding pairs
(nests). We established in a Finding of No Significant Impact that an
EIS or SEIS is not needed to allow us to continue the depredation
orders for 5 more years without substantial changes.
Comment. ``Another problem connected with repeated shooting
campaigns is that there is no valid way to evaluate or monitor their
efficiency. So many factors contribute to the rise and fall of wild
fish populations that isolating the effects of a single action is
problematic. Without a way of measuring the effectiveness of the
culling policies there is no way for managers to know when they are
done. When is it over? How many dead wild cormorants does it take to
finish the job?''
Response. We agree that it is challenging to evaluate the effects
of DCCO management on fish populations. However, a number of State
agencies are assessing various fish response parameters (population
size, age structure, angler harvest) and their relationship to DCCO
population changes following control. Furthermore, DCCOs can
detrimentally impact plants and habitats of other bird species. Through
physical and chemical means, DCCOs damage, and often kill, shrubs and
trees where they nest and roost, if not modifying the plant community.
Comment. Significantly, the specific impacts the Orders will have
depend upon factors such as the extent and manner of state
implementation--factors that FWS chooses not to oversee or even
meaningfully address. Thus, FWS proposes to continue policies that will
have largely unknown impacts with no plan to fill in those data gaps.
Comment. ``Most FWS management plans for other migratory species
seek to preserve and enhance the status of these species within
healthy, functioning ecosystems. In the case of the DCCO, maintaining a
healthy population status is barely an afterthought for FWS.''
Response to these comments. In the Great Lakes, the FWS has worked
with USDA Wildlife Services and State and Tribal agencies to develop
environmental assessments that step down the 2003 FEIS, and these
documents set limits on DCCO take at the state level that will maintain
the sustainability of DCCO populations. Data in the DEA and other data
continue to show that the DCCO population is substantial. Again, the
cormorant population was between 45,626 and 53,802 breeding pairs
(nests) in the Great Lakes from 1997 to 2011. We will continue to
oversee take under the depredation orders and to monitor DCCO numbers,
distribution, and trends in the Great Lakes to ensure that the
sustainability of regional DCCO populations is maintained. Again
nationally, there are between 1 to 2 million birds.
Comment. ``. . . FWS should allow these orders to expire until such
time that FWS has adequate resources to deal thoroughly with the issues
involved and answer the comments, suggestions, and questions raised by
the public since the Final Environmental Impact Statement (FEIS) was
issued in 2003.'' ``The loss of approximately a half million large,
long-lived migratory birds seems to be a fairly significant event
deserving more attention than FWS has been willing to give it. The
correct action is to let the Orders expire and discover whether or not
they are important enough to free up the resources needed to do the job
properly.''
Response. States and tribes have made it clear that they support
continuing the Public Resource Depredation Order because it gives them
an option (besides required non-lethal options) for dealing with DCCO
impacts on fisheries and habitat. Data in the DEA show that the DCCO
population is healthy. As we noted, in the U.S. Great Lakes region,
where DCCO control has been most intensive, the population in 2009 was
27% greater than it had been in 1997. With respect to the Aquaculture
Depredation Order, as reported in the DEA, anecdotal observations from
APHIS-WS indicate that changes in aquaculture operations may be leading
to greater concentrations of DCCOs in some remaining facilities,
leading to even more severe damage to aquaculture stock at those
facilities than has been previously observed. Continuation of the
depredation order and monitoring the impacts of damage-management
actions on DCCOs and nontarget species will continue to allow control
of depredation problems in a responsible and efficient manner. We will
still be able to assess take of DCCOs and its effects on their
population sustainability.
Comment. ``The PRDO applies only to Public resources. Even though a
convoluted argument can be constructed to link cormorants on private
lands to potential predation on fish inhabiting public lands, to do so
is absurd. Of course fish-eating birds eat fish, whether on private or
public property. That is what predators do and to issue a blanket
declaration that they are nuisances everywhere is to accept that
predation is unacceptable at all times and places. That, in effect, is
what the absurd legalistic language, ``committing or about to commit
depredation'', does. All predators, including humans, commit
depredations under this construct and it is silly to pretend otherwise;
the issue here is not about the words but it is about extending the
PRDO to private lands that are already adequately covered by the
individual permit program. The PRDO requires documentation that control
actions are directed at resolving a resource problem. The Texas
Nuisance Permit has no such provision, it effectively declares all DCCO
a nuisance and allows unlimited take by any Texas hunting license
holder with $13 and permission of a landowner regardless of whether or
not there is loss of public resources.''
Comment. ``In Texas, the PRDO that FWS would renew would continue
the Nuisance Double-crested Cormorant Control Permit program in that
state [see http://www.tpwd.state.tx.us/business/permits/land/wildlife/cormorant/]. This permit program appears to be lack [sic] any
reasonable management control and
[[Page 30479]]
is in conflict with the PRDO in a number of respects.''
Response to these comments. We appreciate the commenters bringing
this issue to our attention. Texas Administrative Code Rule Sec.
65.901 (http://info.sos.state.tx.us/pls/pub/
readtac$ext.TacPage?sl=R&app=9&p--dir=&p--rloc=&p--tloc=&p--
ploc=&pg=1&p--tac=&ti=31&pt=2&ch=65&rl=901) appears not to comply with
50 CFR 21.48 because it allows take of DCCOs on private land even
though the DCCOs are not necessarily linked to any adverse effect on
public resources. We will work with the State of Texas on this issue,
and if the State does not revise its code to match the provisions of 50
CFR 21.48, we will remove Texas from the list of States that are
authorized to implement the Public Resource Depredation Order.
All migratory bird permits and regulations that allow take disallow
take of that species not covered under the permit or regulation--even
the same species if the manner of that take is not permitted. Following
the terms of the permit or regulation is an obligation of the permittee
or any person, organization, or agency entity acting under a control or
depredation order. Failure to abide to the terms of the depredation
order may lead to suspending or revoking the authority of any person or
agency acting pursuant to the depredation orders and prosecution under
the MBTA.
Comment. ``We believe that implementing a regional management
approach for this species is the optimal long term solution to
balancing the viability of double-crested cormorant populations with
conservation of public fisheries and wildlife while also being
responsive to societal concerns about impacts to private property and
human safety. The review and update of the Final Environmental Impact
Statement on double-crested cormorant management is of paramount
importance.
We support the proposed regulatory changes as the best option to
address issues while protecting populations in the short term. This
support is predicated on the timely completion of an update of the FEIS
prior to the proposed 2019 expiration dates of the federal depredation
orders.'' (Michigan Department of Natural Resources)
Response. We intend to complete a comprehensive NEPA analysis,
which could result in a Supplemental EIS, as our resources allow. We
wish to complete a more comprehensive NEPA analysis on DCCO management
because additional State agencies have requested that they be covered
under the Public Resource Depredation Order (see the comments from the
Pacific Flyway) and because we received a number of other comments in
response to our 2011 Notice of Intent to update our NEPA evaluation for
the depredation orders (76 FR 69225) to make other changes to the
depredation orders and to consider a regional (rather than to update
NEPA local) approach to DCCO management, as suggested by the above
comment.
Comment. The [Pacific Flyway] Council recognizes that the
alternatives and modifications [to the depredation orders] proposed in
our [April 6, 2012] letter addressing western conflicts and concerns
[made in response to a November 2011 FWS Notice of Intent to update the
2003 DCCO EIS] were not considered in the draft Environmental
Assessment (December 2013). We also understand that the depredation
order needs to be extended to allow for central and southeastern states
to continue to manage cormorant conflicts. Therefore, the Council
requests extending the expiration dates of the existing depredation
orders a maximum of two years (i.e., June 30, 2016). This will allow
time for the USFWS to complete a full analysis of the proposals
provided during the 2011-2012 public comment period (including the
Council recommendations attached), and finalize the SEIS for the
management of cormorant populations across the United States.
Response. We appreciate the Flyway's interest in allowing States
that need to use the Public Resource Depredation Order to continue to
operate under it. However, two years is not sufficient time to consider
additional issues and complete a comprehensive NEPA analysis, which
could lead to a Supplemental EIS. In addition, we do not have the
resources to work on the NEPA analysis at this time.
Comment. ``The population modeling presented in Appendices 3 and 4
is a welcome beginning toward resolving some of the issues involved in
continuing the Orders. However, as complicated and elegant as these
modeling exercises appear, they are impossible for most of the public
to evaluate, particularly within the limited amount of time available
for making comments. At best, these models are limited in value because
they address only one narrow point of view in the overall discussion.
That point is the potential of the Orders to threaten the continued
existence of the species. Even though FWS has apparently decided that
constitutes its primary, effectively sole, responsibility, this is a
very limited perspective not generally adopted in other management
actions by FWS. Most of the management plans adopted by FWS for other
migratory species seek to preserve and enhance the status of these
species within healthy, functioning ecosystems. Cutting through the
mathematical complexity of this modeling approach, the important part
of the modeling is the imposition of killing of adults and suppression
of reproduction. This is the point of F0 in the equations.
The appendices presume that control at various levels is a given and
only look at whether or not hypothetical populations will reach some
stochastic equilibrium that has a low probability of including the
possibility of extinction. The real question that should be first on
the table for discussion is what the desired future state of the
population should be and whether or not that will achieve underlying
goals of population management. In plain language, this gets back to
the issue of resource allocation. All the sophisticated mathematics
within these appendices, while instructive in an academic sense, do not
address this issue. FWS has again failed to address this fundamental
issue and is not collecting the data necessary to inform decisions
about the issue. The sophisticated mathematical models used here are
misdirected relative to the Orders. Analytical resources should be
focused on evaluating the effectiveness of the Orders in meeting
objectives related to the original justification for issuing the
Orders, namely, changes in fisheries, protection of vegetation, and
protection of habitat for co-nesting species of birds.''
Response. The modeling shows take levels allowed using conservative
assumptions about the DCCO population. Compared to the very
conservative F0 value of 0.5, take under the PRDO will allow
continued maintenance of the DCCO population, assuming there are no
large additional impacts to it, such as disease or contaminants. The
models indicate that take under the Aquatic Resources Depredation Order
needs to be rather conservative. We expect to continue to continue
development and use of the models and the take under the orders more
thoroughly in our future NEPA analysis.
Comment. We [Mississippi Flyway Council] believe that the proposed
regulatory changes provide the best option to allow state and Tribal
resource agencies to continue management of double-crested cormorants
while maintaining long-term viability of the double-crested cormorant
population. However, we feel that this is a temporary solution at best,
and it is imperative that the Final Environmental
[[Page 30480]]
Impact Statement on double-crested cormorant management be reviewed and
updated prior to the projected expiration of these depredation orders
in 2019. We continue to support moving to a regional management
paradigm for this species.
Response to these comments. We appreciate these suggestions. We
will consider them when we undertake a comprehensive NEPA analysis of
the existing EIS and regulations. Though budget and personnel cuts and
sequestration preclude doing so now, we hope in the future to conduct
comprehensive NEPA. We wish to complete the comprehensive NEPA analysis
of DCCO management because additional States have requested that they
be covered under the Public Resource Depredation Order (see the
comments from the Pacific Flyway). In addition, we received a number of
other comments, in response to our 2011 Notice of Intent (76 FR 69225),
to make other changes to the depredation orders and to consider a
regional (rather than local) approach to DCCO management.
Comment. ``The Arkansas Game and Fish Commission has reviewed the
U.S. Fish and Wildlife Service's proposal to extend the two depredation
orders for DCCOs for another five years. The extension of these
depredation orders will continue to allow us the ability to control the
DCCO populations at our state-run hatcheries and on selected public
fishing waters and therefore we support the proposal.''
Comment. ``The Ohio Department of Natural Resources, Division of
Wildlife supports the extension of the current depredation orders for 5
years. The Division of Wildlife has used the Public Resource
Depredation Order since 2006, and the Order has allowed valuable
nesting habitat of colonial waders to be preserved through cormorant
management. We also support the other changes to the depredation orders
including changing the reporting date and making changes to reflect the
current status of bald eagles.
Response to these comments. None.
Comment. We would also like to propose one other minor change to be
implemented with this rule. The Public Resource Depredation Order
currently requires that all carcasses must be donated, incinerated, or
buried. We believe that carcasses should be allowed to lie where they
fall. Cormorant culls on the Ohio Lake Erie islands are conducted to
conserve valuable nesting habitat for state-listed waders such as
black-crowned night-herons and great egrets. During culls, substantial
effort is made to reduce disturbance to the co-nesting waders through
the use of suppressed rifles, camouflage clothing, maintaining
distances from areas of concentrated heron nests, etc. However, all of
these efforts are negated when carcasses are collected. Greater
disturbance to nesting waders occurs during the hour of carcass
collection than during the 4 hours of culling. If the carcasses were
left to desiccate where they fell, no additional disturbance need
occur. On another Lake Erie island (Middle Island) managed by Parks
Canada, cormorant carcasses are left where they fall in an effort to
minimize disturbance to the co-nesting waders and reduce damage to the
herbaceous understory vegetation. No negative effects have been
observed and Parks Canada staff report that carcasses rapidly decompose
on the island. Cormorants are currently composted on two of the Ohio
Lake Erie islands and the compost sites were tested for mercury levels
in 2007 and 2010. All of the tests showed mercury levels far below
levels of concern.
This proposed change would not have any effect on the take of
double-crested cormorants or the spirit of the depredation orders. It
is a minor change such as the submission date change; however, it would
further enhance the conservation of wading bird habitat and reduce
disturbance to colonial waders during cormorant management.'' (Ohio
Department of Natural Resources)
Response. Leaving carcasses in place was considered when we
prepared the 2003 EIS. However, because of disease concerns,
particularly related to botulism, we required that carcasses be
removed. Carcasses may, in some instances, attract scavengers that
could disturb or prey on nesting birds. However, we believe that this
issue merits further evaluation and we will consider it again when we
undertake a more comprehensive NEPA analysis in the future. This five
year extension will still require carcass removal.
Comment. Under the Orders, permit holders are required to use non-
toxic shot only if shooting DCCO with a shotgun. Other firearms, such
as rifles and handguns, carry no such restriction.
As a result, the Orders will have the effect of introducing
significant amounts of additional lead-based ammunition into fragile
aquatic environments.
In prohibiting use of lead-based ammunition on its National
Wildlife Refuges, FWS acknowledges the severe adverse consequences that
use of this toxic ammunition can have on the entire food chain. If it
extends the Orders, FWS should require that all ammunition used in
nuisance control permits should be non-toxic.''
Response. We recognize the environmental concerns regarding use of
lead ammunition. However, the majority of DCCOs taken under the PRDO
and AQDO are taken using shotguns.
When the orders were put in place, nontoxic rifle ammunition
options were limited. We are aware that even though high performance
non-lead ammunition has been developed for some types of firearms
availability of the ammunition can be a significant problem. Therefore,
we have added a requirement for the use of nontoxic bullets in
centerfire rifles to the depredation orders, with an effective date of
January 1, 2017. This will allow agencies to use ammunition that they
have already acquired and to work with suppliers on replacing it with
ammunition with nontoxic bullets. Requiring the use of nontoxic
centerfire rifle ammunition will have a negligible economic effect on
those who control DCCOs under the orders, and it will have small
environmental benefits.
Comment. ``Many birds co-nest with the DCCO. The DEA makes scant
mention of the impact that mass depredation of the DCCO has on its
biological neighbors. The DEA offers no information about what steps
are being taken (or required) to protect co-nesting species. Yet, the
DEA offers the unsupported conclusion that ``We have no reason not to
believe that [state] agencies would not continue to be highly
conscientious in avoiding negative impacts to bird species . . . at
management sites.''
Without an empirical or regulatory basis for this belief, the FWS
posture is that it simply hopes for the best.''
Response. The annual reports that must be submitted to the FWS by
the agencies acting under the Public Resource Depredation Order
indicate that incidental take of birds that nest with DCCOs is
extremely rare, and certainly would not affect populations of those
species. The management agencies employ a number of standard operating
procedures that are designed to minimize the likelihood of other birds
being adversely impacted by DCCO control activities. These include
using rifles with silencers (where effective), wearing camouflage
clothing, minimizing the number and duration of visits to DCCO
colonies, avoiding colony site visits at times of extreme temperature
or precipitation to minimize stress to non-target species' eggs and
nestlings, leaving a perimeter of untreated DCCO nests around non-
target species (where practical), shooting DCCOs in some cases at sites
away from a nesting island, oiling DCCO eggs and walking to and from
blinds
[[Page 30481]]
from which shooting will occur during night hours (where appropriate
and safe), removing DCCO carcasses in a manner that minimizes
disturbance to co-nesters, maintaining set distances (per the
depredation order regulations) from Federally threatened and endangered
birds and bald eagles and golden eagles and their nests, and training
shooters in bird identification and marksmanship.
Comment. ``. . . [T]he DEA ignores the problem of ``look alike''
species, such as the neotropic cormorant. This cormorant is virtually
indistinguishable from the DCCO, especially to an untrained hunter.
Response. The DEA mentions two instances of take of Neotropic
Cormorants in 2007 and 2008, and some other birds (e.g., gulls) due to
DCCO control activities. These incidents, although regrettable, are
extremely low relative to the number of DCCOs which are removed and are
not of sufficient magnitude or frequency to adversely impact non-target
species populations.
The depredation order addresses ``look alike'' species as follows.
(7) Nothing in this depredation order authorizes the take of any
migratory bird species other than double-crested cormorants. Two look-
alike species co-occur with double-crested cormorants in the
southeastern States: The anhinga, which occurs across the southeastern
United States, and the neotropic cormorant, which is found in varying
numbers in Texas, Louisiana, Kansas, and Oklahoma. Both species can be
mistaken for double-crested cormorants, but take of these two species
is not authorized under this depredation order.
Take of anhingas (Anhinga anhinga) or neotropic cormorants
(Phalacrocorax brasilianus) is not legal under the depredation order,
and we advise all States and Tribes to ensure that individuals
operating under the order be trained to recognize anhingas and
neotropic cormorants to avoid taking them. All migratory bird permits
and regulations that allow take disallow take of species not covered
under the permit or regulation--even ``look-alike'' species.
Identification and protection of look-alike species is an obligation of
the permittee or any person, organization, or agency entity acting
under a control or depredation order. Failure to abide to the terms of
the depredation order may lead to suspending or revoking the authority
of any person or agency acting pursuant to the depredation orders and
prosecution under the MBTA.
Comment. ``Large Double-crested Cormorant die-off events that are
associated with avian botulism (Clostridiuim botulinum) may have
impacted or stabilized breeding DCCO populations, but we do not see
this topic specifically addressed in any manner in the document,
including in the population models used to evaluate impacts to DCCO. We
suggest that this consideration should be added to the impact analysis
and decision-making process. (National Park Service).
Response. In our 2003 FEIS, disease was noted as a sometimes
significant cause of mortality for DCCOs--particularly Type E on the
Great Lakes. Other sources have noted concern about botulism in
cormorant populations (e.g. http://www.ccwhc.ca/wildlife_health_topics/botulism/botulisme_org.php; http://www.dec.ny.gov/animals/28433.html; and http://www.seagrant.sunysb.edu/botulism/pdfs/Proc03/9-Overview.pdf). We agree that it should be addressed in more depth in
our future NEPA analysis, both for its potential effects on cormorant
populations and on other waterbird species the nest or roost near
DCCOs. But again, in the Great Lakes the cormorant population remains
healthy between 45,626 and 53,802 breeding pairs (nests) in 1997 to
2011.
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 further emphasizes
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. The changes to the depredation orders at 50 CFR 21.47
and 21.48 will provide assurance that State and Tribal resource
management agencies may continue to manage DCCO problems under the
terms and conditions of the depredation orders and gather data on the
effects of DCCO control actions and will bring the two depredation
orders in line with our current regulations and practices. These
changes will not have a significant economic impact on a substantial
number of small entities, so a regulatory flexibility analysis is not
required.
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 will 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.
c. 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. The
revisions will not have significant effects. The regulation will very
minimally affect small government
[[Page 30482]]
activities by changing the annual reporting date for 50 CFR 21.48.
b. This rule will not produce a Federal mandate of $100 million or
more in any year. It will not be 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. No economic impacts are expected to result
from the changes to the depredation orders.
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 collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The
information collection requirements at 50 CFR 21.47 and 21.48 are
approved under OMB Control Number 1018-0121, which expires February 29,
2016. We may not conduct or sponsor and you are 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. We have
completed a final environmental assessment, and have determined that
this action will have neither a significant effect on the quality of
the human environment, nor unresolved conflicts concerning uses of
available resources. The Finding of No Significant Impact is posted in
the docket with this final rule.
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 regulations change. The regulations
changes 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 only affect depredation control of DCCOs, and will
not affect energy supplies, distribution, or use. This action will 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)). This regulations change
will not affect listed species.
Since the FEIS was completed in 2003, 250 species have been added
to the threatened and endangered species list. However, no species has
been added for which consultation across the range of the DCCO is
warranted. In unusual cases, consultations at the State or Regional
level might be needed to address concerns about some of the species
listed in Appendix 5 of the FEA.
Literature Cited
U.S. Fish and Wildlife Service. 2003. Final Environmental Impact
Statement: Double-Crested Cormorant Management in the United States.
Available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/Cormorant/CormorantFEIS.pdf.
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 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. 21.47 as follows:
0
a. By revising paragraph (d)(2) to read as set forth below;
0
b. By revising paragraph (d)(8)(i) to read as set forth below;
0
c. By removing the words ``and bald eagles'' from paragraph (d)(8)(ii);
0
d. By removing the words ``or bald eagles'' from paragraph (d)(8)(iii);
0
e. By adding a new paragraph (d)(8)(iv) to read as set forth below;
0
f. By removing the word ``Each'' and adding in its place the words ``By
January 31 each'' at the beginning of paragraph (d)(9)(iii); and
0
g. In paragraph (f), by removing the word ``2014'' and adding in its
place the word ``2019''.
Sec. 21.47 Depredation order for double-crested cormorants at
aquaculture facilities.
* * * * *
(d) * * *
(2) Double-crested cormorants may be taken only by shooting with
firearms, including shotguns and rifles.
(i) Persons using shotguns must use nontoxic shot, as listed in 50
CFR 20.21(j).
(ii) Beginning January 1, 2017, persons using centerfire rifles
must use bullets that contain no more than 1% lead.
* * * * *
(8) * * *
(i) To protect wood storks, the following conservation measures
must be observed anywhere Endangered Species Act protection applies to
this species: all control activities are allowed if the activities
occur more than 1,500 feet from active wood stork nesting colonies,
more than 1,000 feet from active wood stork roost sites, and more than
750 feet from feeding wood storks.
* * * * *
(iv) Any agency or its agents or any individual or company planning
to implement double-crested cormorant control activities that may
affect bald eagles must comply with the National Bald Eagle Management
Guidelines (http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BaldEagle/NationalBaldEagleManagementGuidelines.pdf) in
conducting the activities.
* * * * *
0
3. Amend Sec. 21.48 as follows:
0
a. By revising paragraph (d)(2) as set forth below;
[[Page 30483]]
0
b. In the introductory text of paragraph (d)(8)(i), by removing the
words ``wood storks, and bald eagles'' and adding in their place the
words ``and wood storks'';
0
c. In paragraphs (d)(8)(i)(A) and (d)(8)(i)(B), by removing the words
``or occur more than 750 feet from active bald eagle nests;'' in each
place that they occur;
0
d. By adding a new paragraph (d)(8)(i)(D) to read as set forth below;
0
e. In paragraph (d)(8)(iii), by removing the word ``four'';
0
f. By revising paragraph (d)(11) to read as set forth below; and
0
g. In paragraph (f), by removing the word ``2014'' and adding in its
place the word ``2019''.
Sec. 21.48 Depredation order for double-crested cormorants to protect
public resources.
* * * * *
(d) * * *
(2) Double-crested cormorants may be taken only by means of egg
oiling, egg and nest destruction, cervical dislocation, firearms, and
CO2 asphyxiation.
(i) Persons using shotguns must use nontoxic shot, as listed in 50
CFR 20.21(j).
(ii) Beginning January 1, 2017, persons using centerfire rifles
must use bullets that contain no more than 1% lead.
(iii) Persons using egg oiling must use 100 percent corn oil, a
substance exempted from regulation by the U.S. Environmental Protection
Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.
* * * * *
(8) * * *
(i) * * *
(D) Any agency or its agents planning to implement double-crested
cormorant control activities that may affect bald eagles must comply
with the National Bald Eagle Management Guidelines (http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BaldEagle/NationalBaldEagleManagementGuidelines.pdf) in conducting the
activities.
* * * * *
(11) Each agency conducting control activities under the provisions
of this regulation must provide annual reports, as described in
paragraph (d)(10) of this section, to the appropriate Service Regional
Migratory Bird Permit Office by January 31 for control activities
undertaken the previous calendar year. We will regularly review agency
reports and will periodically assess the overall impact of this program
to ensure compatibility with the long-term conservation of double-
crested cormorants and other resources.
* * * * *
Dated: May 19, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-12318 Filed 5-27-14; 8:45 am]
BILLING CODE 4310-55-P