[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Proposed Rules]
[Pages 69225-69230]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28755]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[Docket No. FWS-R9-MB-2011-0033; 91200-1231-9BPP]
RIN 1018-AX82
Migratory Bird Permits; Double-Crested Cormorant Management in
the United States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Request for comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS), are requesting
public comments to guide the preparation of a Supplemental
Environmental Impact Statement or Environmental Assessment on the
development of revised regulations governing the management of double-
crested cormorants. Under current regulations, cormorant damage
management activities are conducted annually at the local level by
individuals or agencies operating under USFWS depredation permits, the
existing Aquaculture Depredation Order, or the existing Public Resource
Depredation Order. The depredation orders are scheduled to expire on
June
[[Page 69226]]
30, 2014. This analysis will update the 2003 Final Environmental Impact
Statement (FEIS): Double-crested cormorant management in the United
States (USFWS 2003).
DATES: Electronic comments on this notice via http://www.regulations.gov must be submitted by midnight Eastern Time on
February 6, 2012. Comments submitted by mail must be postmarked on or
before February 6, 2012.
ADDRESSES: You may submit comments by either one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket No. FWS-R9-
MB-2011-0033.
U.S. Mail or hand delivery: Public Comments Processing,
Attn: FWS-R9-MB-2011-0033; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive,
Suite 222; Arlington, VA 22203-1610.
We will not accept email or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information that you provide. See the Public Comments section
below for more information.
FOR FURTHER INFORMATION CONTACT: Terry Doyle, Wildlife Biologist,
Division of Migratory Bird Management, 703-358-1799.
SUPPLEMENTARY INFORMATION: We seek comments to help us determine future
national policy for effective management of double-crested cormorant
(DCCO, Phalacrocorax auritus) populations within the United States.
Primary management objectives surrounding DCCOs are at times in
conflict. They include meeting conservation obligations under the
Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) and other
Federal laws, while enabling management of human-wildlife conflicts
related to the expansion of DCCO populations, particularly in the Great
Lakes and southeastern United States. Developing a comprehensive
national policy requires consideration of the decision process at each
of the geographic scales relevant to DCCO management. Management
decisions are made at the local level (including individual lakes,
breeding colonies, aquaculture facilities, and roosts), at the State
level, regional or national scales, and across international borders.
Under the current regulations, control activities are proposed and
conducted annually at the local level by individuals or agencies
operating under depredation permits (50 CFR 21.41), the Aquaculture
Depredation Order (AQDO, 50 CFR 21.47), or the Public Resource
Depredation Order (PRDO, 50 CFR 21.48). U.S. Fish and Wildlife Service
(USFWS) Regional Directors make annual decisions on whether to allow
these activities. Ultimately, the USFWS Director will decide, through
the National Environmental Policy Act (NEPA) process, on a national
management strategy by June 30, 2014, at which time the existing
depredation orders are scheduled to expire.
The analysis will be prepared in cooperation with the U.S.
Department of Agriculture, Animal and Plant Health Inspection Service,
Wildlife Services (APHIS-WS). The decision to prepare a Supplemental
Environmental Impact Statement or Environmental Assessment will be
based on responses to this notice and: (1) The National Environmental
Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2)
regulations of the Council on Environmental Quality for implementing
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) U.S.
Department of the Interior regulations implementing NEPA (43 CFR part
46), and (4) USFWS implementing provisions (516 DM 8).
Background
Ecological Context
Double-crested cormorant populations, especially those breeding in
the Great Lakes States and provinces and wintering in the southeastern
United States, have increased rapidly since the mid-1970s, and may have
reached or exceeded carrying capacity in the Great Lakes. Before that
time, DCCOs were considered a rare breeder in the Great Lakes, with the
first confirmed nesting documented in 1913 (Wires and Cuthbert 2006).
The reasons for the rapid expansion are unknown, but likely involved
several factors, including U.S. Federal protection under the MBTA in
1972, the elimination of DDT, the expansion of the aquaculture industry
and construction of reservoirs in the Southeast, and alterations of the
Great Lakes fish communities.
By the mid 1990s, DCCO populations were perceived to have a
negative impact on the aquaculture industry and on natural resources at
many locations across North America. Double-crested cormorants have
been implicated in several human-DCCO conflict issues including
depredation of aquaculture stocks and local sport and commercial
fisheries, as well as conflicts with other conservation interests such
as damage to sensitive vegetation and other colonial nesting bird
species (Fielder 2010, Glahn and Brugger 1995, Hebert et al. 2005,
Rudstam et al. 2004, Somers et al. 2007).
In certain areas, evidence suggests that DCCOs have contributed to
declines in walleye, yellow perch, and smallmouth bass, whereas in
other areas no such evidence exists for the decline of sport fishery
stocks (Seefelt and Gillingham 2006). The implication of DCCOs as a
causative factor in these declines is confounded, however, by
uncertainties regarding the effect of other ecosystem changes (e.g.,
exotic species introductions, lower nutrient loading, or decreases in
alternate prey) and how these changes interact with each other and with
DCCO population dynamics.
Legal, Regulatory, and Management Context
The USFWS has statutory authority to manage migratory bird
populations in the United States, under the MBTA (16 U.S.C. 703-712)
and the Conventions with Canada (1916 as amended in 1996), Mexico (1936
as amended in 1972), Japan (1972), and Russia (1976). We have
interstate regulatory authority over cormorants and permit take by
individuals and agencies. All the Conventions, except the one with
Mexico, specifically mention allowing the lethal take of birds and eggs
to protect injury to agricultural interests, persons, or property. The
Federal regulation at 50 CFR 21.1 provides limited exceptions to
protections afforded by the MBTA, such as the establishment of
depredation orders.
In response to rapidly increasing wintering populations in the
southeastern United States, breeding populations of DCCOs in the Great
Lakes region, and concerns about potential impacts, we adopted two
depredation orders that facilitate the control of depredating DCCOs.
The Aquaculture Depredation Order (AQDO) was established in 1998 to
assist with the control of DCCOs at aquaculture facilities in 13
States. In 2003, we modified the AQDO and established a Public Resource
Depredation Order (PRDO) to protect additional public resources
including fish, wildlife, plants, and their habitats from DCCO impacts
in 24 States (USFWS 2003). Both depredation orders were recently
authorized to remain in effect through June 2014 (USFWS 2009a and USFWS
2009b). Prior to establishment of the depredation orders, depredation
permits were the primary tool used to resolve DCCO conflicts. Permits
are still used to resolve conflicts related to human health and safety
and economic losses to private property in all States,
[[Page 69227]]
including those operating under the depredation orders.
Double-crested cormorants in the United States are managed at
selected sites on the breeding and wintering grounds and during
migration to alleviate damage and lessen economic, social, and
ecological conflicts. Management actions are conducted locally each
year and include various forms of harassment, shooting, nest and egg
destruction, and egg oiling. Under the PRDO, agencies (State fish and
wildlife agencies, Federally recognized Tribes, and APHIS-WS) submit
annual written proposals to the USFWS Regional Migratory Bird Permit
Office (RMBPO) describing the locations and levels of proposed
management actions. The Regional Director may prevent any activities
that pose a threat to the long-term sustainability of DCCOs or any
other migratory bird species. Often, decisions are made through
interactive communications between the action agencies and USFWS. In
some cases, USFWS asks action agencies to clarify their request or
provide additional rationale for a decision. Inter-agency coordination
also occurs through the NEPA process when environmental assessments are
developed for DCCO management within individual States.
No such interaction occurs under the AQDO. However, aquaculture
producers may operate under the AQDO only in conjunction with an
established nonlethal harassment program as certified by APHIS-WS as
outlined in WS Directive 2.330. This certification is documented on WS
Form 37, which APHIS-WS is required to share with the USFWS when
requested. Aquaculture producers submit an annual report of take by
location and date, as does APHIS-WS for take at roosts in the vicinity
of aquaculture facilities.
We retain the authority to revoke privileges to operate under the
PRDO or AQDO if we believe the depredation orders have not been adhered
to, or if the long-term sustainability of DCCO populations is
threatened. Since 2004, total annual take of DCCOs in the United States
has averaged 27 percent of the amount projected in the 2003 FEIS, for
depredation permits, expanded AQDO, and PRDO (USFWS 2003).
Preliminary Objectives
We have identified the following objectives that will be used to
evaluate the alternatives. We identified three fundamental objectives:
(1) To meet our legal obligations under the MBTA, Bald and Golden
Eagle Protection Act (BGEPA) (16 U.S.C. 668), Endangered Species Act
(ESA) (16 U.S.C. 1531 et seq.), and other Federal laws;
(2) To minimize conflicts related to DCCO impacts and resultant
management actions; and
(3) To minimize the costs of implementing regulations.
Each alternative will be measured against the following criteria,
or means objectives, to determine how it facilitates achieving the
fundamental objectives:
(1) Maintain sustainable DCCO populations;
(2) Minimize negative impacts to other migratory birds and
threatened and endangered species;
(3) Maximize the ability to manage DCCO conflicts;
(4) Maximize the social acceptance of DCCO management actions;
(5) Minimize the cost of implementation by action agencies; and
(6) Minimize the cost of USFWS oversight.
Preliminary Alternatives
We considered several alternative management actions in the 2003
EIS (USFWS 2003) including:
(1) No Action;
(2) Non-lethal Management;
(3) Increased Local Damage Control;
(4) Public Resource Depredation Order;
(5) Regional Population Reduction; and
(6) Regulated Hunting.
That environmental review resulted in the selection of the
alternative establishing the PRDO and modifying the AQDO (USFWS 2003).
In addition to considering the management alternatives identified
above, the following actions may be included and addressed in the new
NEPA analysis:
(1) Renewing the depredation orders as currently written (with or
without an expiration date);
(2) Modifying the current depredation orders;
(3) Allowing the depredation orders to expire; or
(4) Adopting a different alternative that may or may not have been
considered in the 2003 EIS.
Public Comments
We seek comments and suggestions from the public, concerned
government agencies, Tribes, industry, the scientific community, and
other interested parties regarding the problem, objectives, and
alternatives that we have described and identified. Explaining your
reasons will help us evaluate your comments. Of particular interest are
answers to the following questions:
(1) Have we accurately described the problem? If not, how could it
be better described?
(2) Are there fundamental or means objectives regarding DCCO
management missing from the list above that we should consider?
(3) Should the current fundamental or means objectives be modified?
If so, how?
(4) How would you rank the relative importance of the identified
fundamental and means objectives? Please provide your rationale.
(5) Are there any other alternatives that should be evaluated? If
so, please describe them in sufficient detail so that they can be
evaluated.
(6) Should any of the identified alternatives be modified? If so,
how?
(7) How would you rank the preliminary list of alternatives? Please
provide your rationale.
As examples of the level of detail needed to evaluate alternatives,
we present the specifics of two alternatives that will likely be
evaluated: The current and an alternative version of both the AQDO and
PRDO. In many cases, the alternative versions attempt to resolve
ambiguities in existing regulations.
Table 1--Current Aquaculture Depredation Order (AQDO) Provisions, and an
Example of an Alternative Version of the AQDO With Modified Provisions
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Provision in 50 CFR 21.47 Current Modified
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(b) Area of coverage........ Commercial (1) Should saltwater
freshwater facilities be
aquaculture included?
facilities and (2) Should we modify
State and Federal the coverage by
fish hatcheries in eliminating States
13 States (Alabama, that have not used
Arkansas, Florida, the AQDO (e.g.,
Georgia, Kentucky, Oklahoma, South
Louisiana, Carolina, and
Minnesota, Tennessee) and
Mississippi, North consider adding
Carolina, Oklahoma, other States?
South Carolina,
Tennessee, and
Texas).
[[Page 69228]]
(c)(2) APHIS-WS............. Authorized to take Define vicinity as
DCCOs at roosts in being within a
the vicinity of reasonable distance
aquaculture of the facility
facilities. such that DCCOs at
the roost site are
likely to be
responsible for
depredation.
(c)(3) Agents............... Agents are Should we require
authorized. training for
agents?
(d)(1) Certification........ Producer certified (1) Certification
by APHIS-WS. renewed on a
regular basis.
(2) APHIS-WS
required to submit
WS Form 37s to
Regional Migratory
Bird Permit Office
(RMBPO).
(d)(2) Methods of take...... Firearms including (1) Define firearms.
rifles.
Nontoxic shot....... (2) Should we change
this to nontoxic
ammunition?
(d)(6) Carcass disposal..... Donate, bury, Should we allow the
incinerate. Not to option to leave
be sold. birds in ponds?
(d)(7) Incidental take...... Report to RMBPO Report to RMBPO
immediately. within 2 days.
(d)(8) Endangered Species Provisions for wood Provisions for wood
Act provisions. stork and bald stork.
eagle.
(d)(9) Recordkeeping........ .................... (1) Clarify calendar
year.
(2) Reports due to
the RMBPO by
January 31st of the
following year.
(f) Expiration.............. June 30, 2014....... Should we have an
expiration date? If
so, when?
Other: Bald and Golden Eagle None................ Add provisions for
Protection Act provisions. bald eagle
protection.
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Table 2--Current Public Resource Depredation Order (PRDO) Provisions,
and an Example of an Alternative Version of the PRDO With Modified
Provisions
------------------------------------------------------------------------
Provision in 50 CFR 21.48 Current Modified
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(b) Area of coverage........ Lands and (1) Should saltwater
freshwaters in 24 systems be
States (Alabama, included?
Arkansas, Florida, (2) Should we modify
Georgia, Illinois, the coverage by
Indiana, Iowa, eliminating States
Kansas, Kentucky, that have not used
Louisiana, the PRDO (e.g.,
Michigan, Florida, Illinois,
Minnesota, Indiana, Kansas,
Mississippi, Kentucky,
Missouri, New York, Louisiana,
North Carolina, Missouri, North
Ohio, Oklahoma, Carolina, Oklahoma,
South Carolina, South Carolina,
Tennessee, Texas, Tennessee, and West
Vermont, West Virginia) and
Virginia, consider adding
Wisconsin). other States?
(c)(1) Action agencies...... State fish and Should we add
wildlife agencies, National Fish
Federally Hatcheries,
recognized Tribes, National Wildlife
and State Directors Refuges, and
of APHIS-WS. National Parks
operating on their
own land?
(c)(1) Public resources..... Fish (including (1) Define
hatchery stock at specifically as
Federal, State, and natural resources
Tribal hatcheries), managed and
wildlife, plants, conserved by public
and their habitats. agencies for public
benefit.
(2) Should we add
resource allocation
among anglers,
forage fish, and
DCCOs as a public
resource?
(3) Should we remove
nonnative species
from consideration
as a public
resource?
(c)(2) Agents............... Allowed............. (1) Should we
require training
for agents?
(2) Should we
eliminate agents?
(d)(2) Methods of take...... Egg oiling, egg and (1) Define firearms.
nest destruction, (2) Should we change
cervical this to nontoxic
dislocation, ammunition?
firearms, and CO2
asphyxiation.
Nontoxic shot.
(d)(4) Landowner permission. Yes................. Does this need
clarification for
birds taken off
shore of private
property?
(d)(6) Carcass disposal..... Donate, bury, (1) Add properly
incinerate. Not to conducted
be sold. composting.
(2) Should we allow
the option to leave
carcasses on site
when disturbance to
co-nesters is an
issue?
(d)(7) Incidental take...... Report to RMBPO Report to RMBPO
immediately. within 2 days.
(d)(8) Endangered Species Provisions for wood (1) Provisions for
Act provisions. stork, bald eagle, wood stork, piping
piping plover, and plover, and
interior least tern. interior least
tern.
(2) Should we add
provisions for
snowy plover where
it is threatened?
(d)(9)(i) Notification...... Required 30-day (1) Change
written notice to ``breeding colony''
RMBPO in advance of to ``established
actions taking more breeding colony''.
than 10 percent of (2) Define breeding
a breeding colony. colony.
(3) Define
established
breeding colony.
[[Page 69229]]
(4) Define threshold
percent from
potential
biological removal
(PBR) criteria.
(5) Clarify whether
part of the
threshold percent
can be taken within
30 days notice.
(d)(9)(ii) Approval......... Regional Director In addition, RMBPO
can prevent if long- acknowledges
term sustainability receipt.
of DCCOs or any
other migratory
bird species is
threatened.
(d)(10) Recordkeeping....... Number of nests (1) Define location:
oiled by date and
location.
(a) During breeding
season use colony
location.
(b) During
nonbreeding season
use next larger
scale (e.g., bay,
lake, area, etc.).
(2) Add number of
nests destroyed,
empty nests, and
otherwise untreated
nests, by date and
location.
(d)(11) Reporting period.... (1) October 1 to (1) Report on
September 30 calendar year.
reporting period. (2) Due March 15th
of the following
year.
(2) Due December 31.
(d)(12) Requirements if (1) Evaluate effects (1) Define ``local
reducing or eliminating a of management breeding
local breeding population. activities on DCCOs population.''
at the control site. (2) Distinguish and
(2) Evaluate, by define
means of collecting ``established''
data or using best local breeding
available population.
information, (3) Should we
effects of require data
management collection and
activities on the eliminate using
public resources best available
being protected and information?
on nontarget
species.
....................
(f) Expiration.............. June 30, 2014....... Should we have an
expiration date? If
so, when?
Other: Justification........ .................... Agreement between
USFWS Regions on
standards,
especially
regarding impact to
fish.
Definitions................. .................... Define regional
population.
Timing of control........... .................... Should we require a
moratorium on
shooting adults
when nestlings are
present?
Bald and Golden Eagle .................... Add provisions for
Protection Act provisions. bald eagle
protection.
State-wide coordination .................... Should this be
groups. required if there
is more than one
action agency in a
State?
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In addition, APHIS-WS and some State fish and wildlife agencies
have continued to express interest in the Regional Population
Regulation alternative (formerly referred to as Regional Population
Reduction), though we considered and rejected that alternative in the
2003 EIS. To assist us in further evaluating that alternative, we are
requesting information that will help us answer the following
questions:
(1) Define ``regional.''
a. What scale?
b. What geographic area?
(2) How will population objectives be established?
a. Breeding population?
b. Wintering population?
(3) How will birds breeding in Canada be incorporated?
(4) How will allowable take be allocated by State?
(5) How will allocated take be distributed, and how will this
affect take by aquaculture producers?
(6) Where does the funding come from to implement this alternative?
(7) What are the implications of taking birds that are not directly
causing damage? Does this alternative just shift the public pressure to
the national level?
(8) What are the implications if this alternative does not have the
desired effect and local conflicts continue to occur?
You may submit your comments and supporting materials only by one
of the methods listed in the ADDRESSES section. We will not consider
comments sent by email or fax, or written comments sent to an address
other than the one listed in the ADDRESSES section.
If you submit a comment via 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 notice, 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
(see FOR FURTHER INFORMATION CONTACT).
Literature Cited
Fielder, D.G. 2010. Response of yellow perch in Les Cheneaux
Islands, Lake Huron to declining numbers of double-crested
cormorants stemming from control activities. Journal of Great Lakes
Research 36:207-214.
Glahn, J.F. and K.E. Brugger. 1995. The impact of Double-crested
Cormorants on the Mississippi Delta catfish industry: A
bioenergetics model. Colonial Waterbirds 18:168-175.
Hebert, C.E., J. Duffe, D.V.C. Weseloh, E.M.T. Senese, and G.D.
Haffner. 2005. Unique island habitats may be threatened by
[[Page 69230]]
Double-crested Cormorants. Journal of Wildlife Management 69:68-76.
Rudstam, L.G., A.J. VanDeValk, C.M. Adams, J.T.H. Coleman, J.L.
Forney, and M.E. Richmond. 2004. Cormorant predation and the
population dynamics of walleye and yellow perch in Oneida Lake.
Ecological Applications 14:149-163.
Seefelt, N.E. and J.C. Gillingham. 2006. Foraging locations of
Double-crested Cormorants in the Beaver Archipelago of northern Lake
Michigan: Potential for impacts on smallmouth bass. Waterbirds
29:473-480.
Somers, C.M., M.N. Lozer, and J.S. Quinn. 2007. Interactions between
Double-crested Cormorants and Herring Gulls at a shared breeding
site. Waterbirds 30:241-250.
U.S. Fish and Wildlife Service. 2003. Final Environmental Impact
Statement: Double-crested Cormorant Management in the United States.
U.S. Department of the Interior Fish and Wildlife Service, Division
of Migratory Bird Management, Arlington, Virginia. Available at:
http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/cormorant/cormorant.html.
U.S. Fish and Wildlife Service. 2009a. Final Environmental
Assessment: Extended Management of Double-crested Cormorants Under
50 CFR 21.47 and 21.48. U.S. Department of the Interior Fish and
Wildlife Service, Division of Migratory Bird Management, Arlington,
Virginia. Available at: http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/cormorant/cormorant.html.
U.S. Fish and Wildlife Service. 2009b. Migratory Bird Permits:
Revision of Expiration Dates for Double-crested Cormorant
Depredation Orders. Federal Register 74:15394-15398. Available at:
http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/cormorant/cormorant.html.
Wires, L.R. and F.J. Cuthbert. 2006. Historic Populations of the
Double-crested Cormorant (Phalacrocorax auritus): Implications for
Conservation and Management in the 21st Century. Waterbirds 29:9-37.
Dated: October 17, 2011.
Eileen Sobeck,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-28755 Filed 11-7-11; 8:45 am]
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