[Federal Register Volume 79, Number 43 (Wednesday, March 5, 2014)]
[Proposed Rules]
[Pages 12458-12461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04824]
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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-BA26
Migratory Bird Permits; Extension of Expiration Dates for Double-
Crested Cormorant Depredation Orders
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of draft environmental assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose revisions to
the two existing depredation orders for double-crested cormorants
(Phalacrocorax auritus) at 50 CFR 21.47 and 21.48. We propose to extend
the expiration dates from these depredation orders for 5 years. We do
so to allow State and tribal resource management agencies to continue
to manage double-crested cormorant problems under the terms and
conditions of the depredation orders and gather data on the effects of
double-crested cormorant control actions. If we do not extend these
depredation orders, any action to control depredating double-crested
cormorants after June 30, 2014, will require a permit. We have prepared
a draft environmental assessment (DEA) to analyze the environmental
impacts associated with this extension. Additionally, we propose to
change the annual reporting date for the depredation order to protect
public resources (50 CFR 21.48), to remove requirements for cormorant
control activities around bald eagles and bald eagle nests for both
depredation orders, and to recommend use of the National Bald Eagle
Management Guidelines for both depredation orders. We invite the public
to comment on the DEA and our proposed revisions to the regulations.
DATES: Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on
April 4, 2014. Comments submitted by mail must be postmarked no later
than April 4, 2014.
ADDRESSES: Document availability: The DEA is 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/.
Written comments: You may submit comments by either of the
following two methods:
Federal eRulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket FWS-HQ-MB-
2013-0135.
U.S. mail or hand delivery: Public Comments Processing,
Attention: FWS-HQ-MB-2013-0135; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive,
MS 2042-PDM; Arlington, VA 22203-1610.
We will not accept email or faxes. We will post all comments on
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: George Allen at 703-358-1825.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service is the Federal agency delegated
the primary responsibility for managing migratory birds. This
delegation is authorized by the Migratory Bird Treaty Act (MBTA) (16
U.S.C. 703 et seq.), which implements conventions with Great Britain
(for Canada), Mexico, Japan, and the Soviet Union (Russia). Part 21 of
title 50 of the Code of Federal Regulations (CFR) covers migratory bird
permits. Subpart D of 50 CFR part 21 deals specifically with the
control of depredating birds and currently includes eight depredation
orders. 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 depredation orders at 50 CFR 21.47 and 21.48 for double-crested
cormorants allow take of the species under the provisions of our 2003
environmental impact statement (EIS; 68 FR 47603, August 11, 2003), in
which we assessed the impacts of the depredation orders and determined
that they would not significantly affect the status of the species. 50
CFR 21.47 concerns take of double-crested cormorants at aquaculture
facilities, and 50 CFR 21.48 concerns take of double-crested cormorants
to protect public resources. The EIS is available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/Cormorant/CormorantFEIS.pdf.
We extended the expiration dates of these depredation orders to
June 30, 2014, on April 6, 2009 (74 FR 15394). We reported at that time
that the data we had gathered since the issuance of the final rule in
2003 and data from the 2003 EIS suggest that the orders had not had any
significant negative effect on double-crested cormorant populations;
data suggest that cormorant populations were stable or increasing with
the orders in effect.
We have continued to comply with our goals stated in the 2003 EIS
by making every effort to capture data from improved double-crested
cormorant populations. We stated in 2009 that we recognize that it
probably will be necessary to update the EIS at some time in the
future. On November 8, 2011, we requested public comments to help guide
the preparation of a supplemental environmental impact statement or
environmental assessment and to help us determine future national
policy for effective management of double-crested cormorant populations
within the United States (76 FR 69225). On January 27, 2012, we
extended the comment period on the November 8, 2011 (77 FR 4274).
However, because of constraints on our ability to conduct the work
necessary to complete a supplemental environmental impact statement, we
are forced to defer that effort. We base this proposed rule on
information in our DEA, which is available from the sources listed in
ADDRESSES.
Expiration Dates
We propose to extend the expiration dates for 5 years from the
depredation orders at 50 CFR 21.47 and 21.48. These depredation orders
are currently scheduled to expire on June 30, 2014. Extending the
orders for 5 years would not pose a significant, detrimental effect on
the long-term viability of double-
[[Page 12459]]
crested cormorant populations. Extending them would allow State and
tribal resource management agencies to continue to manage double-
crested cormorant problems under the terms and conditions of the
depredation orders and gather data on the effects of double-crested
cormorant control actions.
Entities acting under the Depredation Order would still be required
follow applicable regulations. Depredation control efforts under the
Depredation Order 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). There is the requirement to use
initially non-lethal control methods, 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 double-crested cormorants in a breeding
colony, 50 CFR 21.48(d)(9)(i). FWS has the power to prohibit cormorant
take under the depredation order if FWS deems it a threat to the long-
term sustainability of double-crested cormorants or any other migratory
bird species, 50 CFR 21.48(d)(9)(ii). Similarly, FWS reserves the right
to suspend or revoke the authority of any person acting pursuant to the
Depredation Order if they do not adhere to the Order's purpose, terms
and conditions or if the long-term sustainability of double-crested
cormorant 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 double-crested cormorant
populations (see data in the DEA). To summarize the DEA here, a 2006
study by Wetlands International estimated the continental population at
between 1 to 2 million birds of four recognized subspecies. In the
southeastern U.S., though numbers of cormorants declined 46% in both
Mississippi and Alabama from the peak count in 2004, cormorants in that
area 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. For the Great Lakes survey on the US side,
from 1997 to 2011, the population was between 45,626 and 53,802. Under
various models, we estimate that the Great Lakes double-crested
cormorant population would be lower than current numbers but would
remain significantly higher than populations in the early 1990s.
If this proposed rule is adopted, the depredation orders will
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 would publish the requisite documents in the
Federal Register to make those changes.
Other Proposed Changes to the Depredation Orders
We also propose 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. Specifically, we propose to add a January 31 reporting
deadline to the depredation order at aquaculture facilities (50 CFR
21.47) and to change the annual reporting date for the depredation
order to protect public resources (50 CFR 21.48). There currently is no
specified annual reporting date at 50 CFR 21.47. The current annual
reporting date at 50 CFR 21.48 is December 31, but we propose to move
that due date to January 31 to give respondents an additional month to
submit the requisite information. Together, these proposed changes to
50 CFR 21.47 and 21.48 would provide a uniform annual reporting date
for these two depredation orders.
In addition, we propose to 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, at that time, the species was protected 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
should no longer apply.
Lastly, we propose to revise the depredation orders to recommend
use of the National Bald Eagle Management Guidelines for both
depredation orders. These management guidelines were adopted in 2007
(72 FR 31156; June 5, 2007). They provide guidance to land managers,
landowners, and others as to how to avoid disturbing bald eagles and
their nests.
Public Comments
You may submit your comments and materials concerning our proposed
rule and DEA by one of the methods listed in the ADDRESSES section. We
will not accept comments sent by email or fax or to an address not
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. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563).
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small businesses,
small organizations, and small government jurisdictions. However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule would not have a significant economic impact on a
substantial number of small entities.
[[Page 12460]]
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule would not have a significant economic impact on a
substantial number of small entities. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act. The regulatory changes we are proposing to the
depredation orders at 50 CFR 21.47 and 21.48 would provide long-term
assurance that State and tribal resource management agencies could
continue to manage double-crested cormorant problems under the terms
and conditions of the depredation orders and gather data on the effects
of double-crested cormorant control actions and would bring the two
depredation orders in line with our current regulations and practices.
These changes would 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 would not have a significant impact on a substantial number of small
entities.
a. This rule would not have an annual effect on the economy of $100
million or more.
b. This rule would not cause a major increase in costs or prices
for consumers, individual industries, Federal, State, tribal, or local
government agencies, or geographic regions.
c. This rule would not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule would not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. The
proposed revisions would not have significant effects. The proposed
regulation would very minimally affect small government activities by
changing the annual reporting date for 50 CFR 21.48.
b. This rule would not produce a Federal mandate of $100 million or
more in any year. It would 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 would not interfere with the States' abilities to
manage themselves or their funds. No economic impacts are expected to
result from the removal of the expiration dates from, or the other
changes proposed 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 proposed 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 on
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 proposed rule in accordance with the National
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and U.S.
Department of the Interior regulations at 43 CFR part 46. We have
completed a draft environmental assessment, and have determined that
this action would have neither a significant effect on the quality of
the human environment, nor unresolved conflicts concerning uses of
available resources.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
have determined that there are no potential effects on Federally
recognized Indian Tribes from the proposed regulations change. The
proposed regulations changes would not interfere with Tribes' abilities
to manage themselves or their funds or to regulate migratory bird
activities on Tribal lands.
Energy Supply, Distribution, or Use (Executive Order 13211)
This rule, if adopted, would only affect depredation control of
double-crested cormorants, and would not affect energy supplies,
distribution, or use. This action would not be a significant energy
action, and no Statement of Energy Effects is required.
Compliance with Endangered Species Act Requirements
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the
Interior] shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this chapter'' (16
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure
that any action authorized, funded, or carried out . . . is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). The proposed
regulations changes would not affect listed species.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (5) Does the description of the rule
in the SUPPLEMENTARY INFORMATION section of the preamble help you to
understand the proposed rule? What else could we do to make the rule
easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to the Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street NW., Washington,
DC 20240-0001. You also may email comments to Exsec@ios.doi.gov.
Literature Cited
U.S. Fish and Wildlife Service. 2003. Final Environmental Impact
Statement:
[[Page 12461]]
Double-Crested Cormorant Management. 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.
Proposed Regulation Promulgation
For the reasons described in the preamble, we propose to amend
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 21--MIGRATORY BIRD PERMITS
0
1. The authority citation for part 21 continues to read as follows:
Authority: 16 U.S.C. 703-712.
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2. Amend Sec. 21.47 as follows:
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a. By revising paragraph (d)(8)(i) to read as set forth below;
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b. By removing the words ``and bald eagles'' from paragraph (d)(8)(ii);
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c. By removing the words ``or bald eagles'' from paragraph (d)(8)(iii);
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d. By adding a new paragraph (d)(8)(iv) to read as set forth below;
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e. 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
f. By removing the word ``2014'' in paragraph (f) and adding in its
place the word ``2019.''
Sec. 21.47 Depredation order for double-crested cormorants at
aquaculture facilities.
* * * * *
(d) * * *
(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) We recommend that any agency or its agents or any individual
or company planning to implement control activities that may affect
bald eagles 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:
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a. 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'';
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b. 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;
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c. By adding a new paragraph (d)(8)(i)(D) to read as set forth below;
0
d. By revising paragraph (d)(11) to read as set forth below; and
0
e. By removing the word ``2014'' in paragraph (f) and adding in its
place the word ``2019.''
Sec. 21.48 Depredation order for double-crested cormorants to protect
public resources.
* * * * *
(d) * * *
(8) * * *
(i) * * *
(D) We recommend that any agency or its agents planning to
implement control activities that may affect bald eagles 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: February 26, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-04824 Filed 3-4-14; 8:45 am]
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