[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Rules and Regulations]
[Pages 85535-85556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28742]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[Docket No. FWS-HQ-MB-2019-0103; FF09M22000-201-FXMB1232090000]
RIN 1018-BE67
Migratory Bird Permits; Management of Conflicts Associated With
Double-Crested Cormorants (Phalacrocorax auritus) Throughout the United
States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) establishes a new
permit for State and federally recognized Tribal (hereafter ``Tribe''
or ``Tribal'') fish and wildlife agencies for the management of double-
crested cormorants (Phalacrocorax auritus; hereafter ``cormorants'').
The new permit authorizes specific take activities that are normally
prohibited and are intended to relieve or prevent impacts from
cormorants on lands or in waters managed by State or Tribal fish and
wildlife agencies to address conflicts related to the following issues:
Wild and publicly stocked fish managed by State fish and wildlife
agencies or federally recognized Tribes; Tribal- and State-owned or
operated aquaculture facilities (including hatcheries); human health
and safety; State- or Tribal-owned property and assets; and threatened
and endangered species (listed under the Endangered Species Act of
1973, as amended, or identified in State- or Tribal-specific
legislation as threatened or endangered) or those listed as Species of
Greatest Conservation Need in State Wildlife Action Plans. The Service
retains ultimate authority for regulating the take of cormorants.
States and Tribes have the discretion to determine whether, when,
where, and for which of the above purposes they conduct lethal take
within limits and allocations set by the Service.
DATES: This rule takes effect on February 12, 2021.
Supplementary Documents: The Environmental Protection Agency will
announce the availability of the Final Environmental Impact Statement
(FEIS) associated with this rulemaking action. The Service will execute
a Record of Decision no sooner than 30 days from the date of
publication of the notice of availability of the FEIS by the
Environmental Protection Agency.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this rule, please note that the
Office of Management and Budget (OMB) is required to make a decision
concerning the collection of information contained in this rule between
30 and 60 days after the date of publication of this rule in the
Federal Register. Therefore, comments should be submitted to OMB by
January 28, 2021.
ADDRESSES: You may inspect comments received on the draft environmental
impact statement and associated proposed rule and view the final
environmental impact statement and other documents associated with this
rulemaking action at http://www.regulations.gov in Docket No. FWS-HQ-
MB-2019-0103.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted within 30 days of publication of this document to
www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov (email).
Please reference OMB Control Number 1018-0175 in the subject line of
your comments.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, U.S. Fish and Wildlife
Service, Department of the Interior, (202) 208-1050.
SUPPLEMENTARY INFORMATION:
Background
The Service is the Federal agency delegated with the primary
responsibility for managing migratory birds. Our authority derives from
the Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703-712), as
amended, which implements conventions with Great Britain (for Canada),
Mexico, Japan, and Russia. We implement the provisions of the MBTA
through the regulations in parts 10, 13, 20, 21, 22, and 92 of title 50
of the Code of Federal Regulations (CFR). The MBTA protects migratory
birds (listed in 50 CFR 10.13) from take, except as authorized under
the MBTA. Regulations pertaining to specific migratory bird permit
types are at 50 CFR parts 21 and 22. The Service works on migratory
bird conservation in partnership with four Flyway Councils (Atlantic,
Mississippi, Central, and Pacific), which include representatives
[[Page 85536]]
of State, provincial, and territorial agencies.
The double-crested cormorant is a fish-eating migratory bird that
is distributed across a large portion of North America. There are five
different breeding populations, variously described by different
authors as the Alaska, Pacific (or Western), Interior, Atlantic, and
Southern populations. Although these populations are described by their
breeding ranges, the birds commingle to various extents on their
migration and wintering areas, with birds from populations closer to
each other overlapping more than those that are more distant.
Cormorant populations have increased over both the short term
(2005-2015) and long term (1966-2015) (United States Geological Survey
2020). Permits issued by the Service to take birds are one method
available to reduce conflicts. However, prior to applying for permits
to take cormorants, individuals and entities experiencing conflicts
with cormorants should attempt nonlethal techniques (e.g., hazing,
habitat modification) to alleviate the conflict. Nonlethal techniques
combined with lethal take should be more effective and may ultimately
result in less need for lethal take in the future.
In response to ongoing damage at aquaculture facilities and other
damage and conflicts associated with increasing cormorant populations,
the Service administered regulations that included, in addition to
Depredation Permits (located at 50 CFR 21.41), an Aquaculture
Depredation Order (which was located at 50 CFR 21.47) beginning in 1998
and a Public Resource Depredation Order (which was located at 50 CFR
21.48), which began in 2003. Both of these regulations were in place
until May 2016 when they were vacated by Court order (see more
information, below).
The Aquaculture Depredation Order eliminated individual permit
requirements in 13 States for private individuals, corporations, State
agencies, and Federal agencies taking cormorants at aquaculture
facilities. The Public Resource Depredation Order enabled States,
Tribes, and the U.S. Department of Agriculture (USDA) Wildlife Services
in 24 States, without the need for individual depredation permits, to
take cormorants found committing or about to commit, and to prevent,
depredations on the public resources of fish (including hatchery stock
at Federal, State, and Tribal facilities), wildlife, plants, and their
habitats.
In May 2016, these depredation orders were vacated by the United
States District Court for the District of Columbia. The Court concluded
that the Service failed to consider a reasonable range of alternatives
in its 2014 environmental assessment (EA) and directed the Service to
take ``a hard look'' at the effects of the depredation orders on
double-crested cormorant populations and other affected resources.
Finally, the Court ordered that the Service perform a new and legally
adequate EA or environmental impact statement (EIS) under the National
Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321-
4347). Following the Court ruling, the Service prepared an EA in 2017
to address continuing conflicts with cormorants (USFWS 2017). The
authority for authorizing lethal take of depredating cormorants
reverted to the issuance of individual depredation permits pursuant to
50 CFR 21.41. Under the 2017 EA, cormorants could lethally be taken
only to address conflicts with aquaculture, human health and safety,
threatened and endangered species (as listed under the Endangered
Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq.) and State-listed
species of management concern, and personal property (under the 2017
EA, take of cormorants to protect wild and publicly stocked fisheries
would only be allowed to protect threatened or endangered species).
Conflicts in aquatic systems continue to exist between cormorants
and fish stocks managed by Federal, State, and Tribal agencies as
recreational and/or commercial fisheries. Conflicts also exist between
cormorants and conservation of other species and habitats in some
areas. As fish-eating birds, cormorant predation of fish occurs not
only at aquaculture facilities, but also in private recreational ponds
and large aquatic ecosystems. While conflicts exist between cormorants
and some stakeholders, birders and other interested parties value
cormorants for their aesthetic and existence values.
The Service is responsible for balancing the lethal take of
cormorants to alleviate conflicts where available data support such
take and maintaining sustainable populations of cormorants and
minimizing the regulatory burden on Federal and State agencies, Tribes,
and individual citizens. In making decisions, the Service strives to
use an effective and transparent decision-making process that ensures
input from migratory bird and fisheries management programs and other
stakeholders, fulfills requirements under NEPA, and addresses key
biological uncertainties. When determining allowable take, the Service
must consider uncertainty related to cormorant population dynamics,
estimated maximum sustainable lethal take, and risk of over-
exploitation. Furthermore, the Service must identify monitoring
requirements that could be used to assess the effects of lethal take on
cormorant populations and to ensure take is commensurate with
population status. Monitoring can also improve future decisions
regarding allowable take and how that allowable take could be
determined. States, Tribes, and other stakeholders can provide
assistance and information. The Service will formally convene meetings
with the Flyway Councils and other relevant stakeholders to develop a
specific cormorant population monitoring plan.
History of Management and Conflicts
Cormorants are migratory waterbirds protected by the MBTA. They are
native to North America and range widely across the continent,
typically inhabiting wetlands and adjacent upland habitats. Cormorants
also are found in some human-modified environments including airport
airfields and aquaculture ponds. As described previously, the bird-
management community generally accepts that there are five different
breeding populations: The Alaska, Pacific (Western), Interior,
Atlantic, and Southern populations.
Cormorant abundance in North America has increased dramatically
since the 1960s and 1970s, mostly due to the growth of the Interior and
Atlantic populations. The current estimate of cormorant abundance in
the continental United States and Canada is 871,001 to 1,031,757 birds
(USFWS 2020).
Prior to 1998, the sole method for authorizing the lethal take of
depredating cormorants to alleviate damage and conflicts was through
the issuance of depredation permits pursuant to 50 CFR 21.41, which
allows the take of migratory birds that are injuring ``crops or other
interests.'' In 1998, the Service published a final rule (63 FR 10550-
10561, March 4, 1998) establishing a depredation order that authorized
commercial freshwater aquaculture producers in 13 States to take
cormorants without the need for a depredation permit when cormorants
were found committing or about to commit depredations on aquaculture
stocks. That rule was located at 50 CFR 21.47. The Service continued to
issue depredation permits to address damage and conflicts to property,
natural resources, and threats to human health and safety pursuant to
50 CFR 21.41. Any individual or entity conducting lethal take of
cormorants under
[[Page 85537]]
depredation permits or the depredation order was required to submit a
report detailing the take to the Service annually.
The increase in cormorant abundance across areas of North America
and the subsequent range expansion of cormorants has been well
documented along with concerns of the negative impacts associated with
the expanding population (e.g., Taylor and Dorr 2003, Hunter et al.
2006, Atlantic Flyway Council and Mississippi Flyway Council 2010,
Pacific Flyway Council 2012). In response to increasing requests for
depredation permits to alleviate damage and conflicts associated with
cormorants, the Service issued a final environmental impact statement
(FEIS) pursuant to NEPA and made changes to the regulations governing
the take of cormorants in 2003. The 2003 FEIS considered direct,
indirect, and cumulative effects of alternatives for cormorant
management in the United States and discussed mitigating measures. In
October 2003, based on analysis in the FEIS and review of public and
agency comments, the Service published a final rule and notice of
record of decision (68 FR 58022-58037, October 8, 2003) that modified
the existing depredation order for aquaculture facilities (previously
located at 50 CFR 21.47). The regulations became effective in November
2003. The modified depredation order for aquaculture facilities
eliminated the need for private individuals, corporations, State
agencies, and Federal agencies to obtain a depredation permit to take
cormorants at aquaculture facilities in 13 States. It also authorized
USDA Wildlife Services' employees to take cormorants at roost sites in
the vicinity of aquaculture facilities during October, November,
December, January, February, March, and April.
That final rule in 2003 also established a depredation order that
authorized Federal agencies, State fish and wildlife agencies, and
Tribes in 24 States to take cormorants to reduce damage and conflicts
with public resources without the need for a depredation permit. At
that time, the Service defined a public resource as a natural resource
managed and conserved by public agencies, which included fish (i.e.,
wild fish and stocked fish at Federal, State, and Tribal hatcheries
that are intended for release in public or Tribal waters), wildlife,
plants, and their habitats. The depredation order for public resources
was previously located at 50 CFR 21.48. As with previous regulations,
any individual or entity conducting lethal take of cormorants under
depredation permits or the depredation orders was required to submit a
report detailing the take to the Service annually.
To evaluate the potential effects on the cormorant population from
the implementation of the two depredation orders, a mitigating measure
required by the 2003 FEIS was to review and renew, if warranted, the
two depredation orders every 5 years. Subsequently, the Service
developed an EA pursuant to NEPA in 2009 and again in 2014 that
determined that a 5-year extension of the expiration date of the two
depredation orders would not threaten cormorant populations and that
activities conducted under the two depredation orders would not have a
significant impact on the human environment. Therefore, from October
2003 through May 2016, the Service authorized the take of cormorants
pursuant to the two depredation orders (which covered certain States),
through the issuance of depredation permits for activities in States
not addressed in the two depredation orders, and through the issuance
of scientific collecting permits (50 CFR 21.23).
Since the Court's vacating of the depredation orders in May 2016 as
discussed above, the Service has been reviewing and issuing individual
depredation permits in the central and eastern lower 48 States pursuant
to two separate analyses conducted under NEPA. Individuals or entities
apply for these permits to address site-specific conflicts, and each
application is logged, evaluated, and acted upon (approved or rejected)
on a case-by-case basis based on the merits of the permit application.
The 2017 EA (USFWS 2017) evaluated issuing depredation permits to
take cormorants for specific circumstances across 37 central and
eastern States and the District of Columbia. The selected alternative
(Reduced Take Alternative) authorized the average annual take of
cormorants that occurred during 2010-2015 (51,571cormorants). This
amount was well below the allowable level resulting from the take
analyses included in the EA (82 FR 52936-52937, November 15, 2017). In
December 2019, in response to requests for increased take to alleviate
growing conflicts, the Service issued a notice (84 FR 69762-69762,
December 19, 2019) that it would implement a different proposed
alternative analyzed in the 2017 EA (Potential Take Limit Alternative)
that had a higher annual take threshold, increasing the take of
cormorants authorized by permits to 74,396.
Management of cormorants in the western United States (Western
population, P. albociliatus) is also through site-specific, case-by-
case permits. The Service authorizes take of Western population
cormorants primarily to reduce predation-related losses by cormorants
of federally threatened or endangered juvenile salmon (Oncorhyncus
spp.) and steelhead (O. mykiss) migrating to the Pacific Ocean.
Additional authorizations for take occur at Federal, State, and Tribal
hatcheries rearing federally threatened or endangered fish species, to
protect aquaculture facilities, and for removing nests related to
infrastructure maintenance. The U.S. Army Corps of Engineers' Double-
crested Cormorant Management Plan to Reduce Predation of Juvenile
Salmonids in the Columbia River Estuary--Final Environmental Impact
Statement (FEIS; United States Army Corps of Engineers (USACE) 2015)
guides management activities related to the take of cormorants in the
Western cormorant population. The National Oceanographic and
Atmospheric Administration's National Marine Fisheries Service (NOAA
Fisheries) had previously determined that a reduced cormorant
population of 5,380 to 5,939 breeding pairs on East Sand Island in the
Columbia River Estuary would restore juvenile steelhead survival to the
environmental baseline levels (NOAA Fisheries 2014), and the Service
authorized lethal take at levels that attempted to achieve that colony
abundance. Specifically, the Service authorized approximately 2,300
cormorants to be lethally taken each year under depredation permits,
scientific collecting permits, and special purpose permits.
The Service expects the number of conflicts to increase, and we
expect that demand for authorizations to take cormorants will continue
to increase as a means to reduce those conflicts in the future. For
example, between 2007 and 2018, the number of permit requests to take
depredating cormorants (exclusive of requests to act under the
depredation orders) increased from slightly less than 200 to almost 300
(USFWS, unpublished data). As requests to take cormorants increase, the
use of multiple individual depredation permits to address conflicts
within State and Tribal jurisdictions will become increasingly time-
consuming and burdensome. Therefore, creating a new State and Tribal
cormorant permit would enable the Service to more efficiently respond
to the needs of States and Tribes seeking relief from conflicts
associated with
[[Page 85538]]
cormorants. The new permit also provides States and Tribes with the
ability to address conflicts between cormorants and wild and publicly
stocked fish managed by State fish and wildlife agencies or federally
recognized Tribes, which was not previously available to them under the
scope of individual depredation permits per 50 CFR 21.41.
Estimating Allowable Take
To alleviate conflicts with cormorants, we used a method called
Potential Take Level (PTL) analyses (Wade 1998, Runge et al. 2004) to
determine the number of cormorants that may be taken while maintaining
the species (and breeding populations) at sustainable levels. This
process has been used to determine allowable take levels for cormorants
in a previous EA (USFWS 2017) and for other species, including several
bird species (e.g., USFWS 2009, Runge et al. 2009, Johnson et al. 2012,
Zimmerman et al. 2019). Methods used to determine population sizes and
allowable take levels in this rule are detailed in the USFWS Final
Environmental Impact Statement: Management of Conflicts Associated with
Double-crested Cormorants (USFWS 2020). The median amount of allowable
take resulting from the analysis was 166,800 cormorants annually.
However, we recommend being more conservative and allowing take only up
to the lower 20 percent of the distribution of the PTL annually
(121,504 cormorants). Population-specific recommended levels of take
are: Atlantic, 37,019; Interior, 78,632; Western, 9,077; and Southern
(Florida), 1,314. At those levels of take, the continental population
of double-crested cormorants is expected to average about 830,285
cormorants. However, due to concerns expressed by a number of
commenters in the Pacific Flyway that take reaching the allowable level
could negatively impact the Western Population, the Service initially
will allow a maximum of 4,539 birds to be taken annually from that
population.
This final rule brings all populations of double-crested cormorants
under a common assessment framework to determine allowable levels of
take. However, levels of take for each population could differ based on
their current abundances, population biology, and population-specific
management objectives.
Special Double-Crested Cormorant Permit
The Service establishes a new permit option under 50 CFR part 21
(Special Double-Crested Cormorant Permit) that is available to State
and Tribal fish and wildlife agencies in the 48 contiguous United
States to manage conflicts specifically associated with double-crested
cormorants. The special permit is available only to a State or Tribal
fish and wildlife management agency responsible for migratory bird
management. Under this permit, the Service authorizes State and Tribal
fish and wildlife agencies to conduct lethal take of double-crested
cormorants that is normally prohibited and is intended to relieve or
prevent impacts from cormorants on lands or in waters managed by those
agencies within their respective jurisdictions or where States or
Tribes manage wild or stocked fish that are accessible by the public or
all Tribal members. The Service will issue this permit only when it is
expected to reduce conflicts involving depredation at State- and
Tribal-owned or operated aquaculture facilities (including hatcheries),
impacts to health and human safety, impacts to threatened and
endangered species (as listed under the ESA or identified in State- or
Tribal-specific legislation as threatened or endangered) or those
listed as Species of Greatest Conservation Need in State Wildlife
Action Plans, damage to State- or Tribal-owned property and assets, and
depredations of wild and publicly stocked fish managed by State fish
and wildlife agencies or federally recognized Tribes and accessible to
the public or all Tribal members. Those States and Tribes not wishing
to obtain this new permit may apply for a depredation permit (50 CFR
21.41) to address site-specific conflicts with cormorants. However,
these individual depredation permits do not authorize take of
cormorants to reduce or prevent conflicts with wild and publicly
stocked fisheries (except for threatened or endangered species).
The Service retains overall authority for the take of double-
crested cormorants to ensure that levels of take are consistent with
management objectives. States and Tribes must use nonlethal methods,
and independently determine that those methods are insufficient to
resolve conflicts before lethally taking double-crested cormorants.
Lethal management should be considered as part of an integrated
approach to managing cormorant conflicts and used only when other
methods are insufficient to resolve conflicts. No permit is required
merely to scare or herd migratory birds other than threatened or
endangered species or bald or golden eagles (see 50 CFR 21.41). The
Service will periodically determine the population-specific numbers of
double-crested cormorants that may be taken lethally during a specified
number of years in efforts to reduce conflicts while sustaining
cormorant abundances, and will track authorized take through permits
issued to States and Tribes to ensure take does not exceed those levels
specified in the PTL. The annual allocation of take to States and
Tribes will be based on recent demand by those entities and adjusted as
needed (while remaining at or below population-specific allowable take
levels) to respond to spatial and temporal changes in population status
and the need to reduce conflicts in specific regions. The Service will
prepare reports every 5 years, and additionally as necessary, to
provide the public with information regarding the take of cormorants
and the extent to which this permit, along with other management tools
(e.g., depredation permits per 50 CFR 21.41 and scientific collection
permits per 50 CFR 21.23), is achieving management objectives.
The special double-crested cormorant permit is subject to the
following conditions/restrictions:
1. States and Tribes must use nonlethal methods, and independently
determine that those methods are insufficient in controlling the
depredation conflict, before lethally taking double-crested cormorants.
2. Lethal take of adults during the breeding season must occur
prior to hatching of eggs to avoid the loss of adults that likely would
result in orphaning chicks and their ultimate death due to starvation.
Adult birds may not be taken at any nest with young in it unless the
purpose of the take of adults is intended to address a human health and
safety issue. States and Tribes and their subpermittees must make
efforts to avoid disturbance to co-nesting species. Existing research
findings and publications detailing appropriate nonlethal methods and/
or models for reducing conflicts should be used to justify activities.
3. A permit under this section does not authorize the taking of any
other migratory bird, including other species of cormorants; the
disturbance of bald or golden eagles; or the take of any species listed
under the ESA as threatened or endangered. If these impacts to other
migratory bird species or to threatened and endangered species are
likely to occur, the permittee must obtain permits specifically
authorizing those activities (i.e., additional migratory bird, Bald and
Golden Eagle Protection Act, and/or threatened and endangered species
permits).
[[Page 85539]]
4. Actions under the permit may be conducted during any time of the
year on lands or in waters managed by State or Tribal fish and wildlife
agencies within their jurisdictions, or where States or Tribes manage
wild or stocked fish that are accessible by the public or all Tribal
members. Actions may occur only when cormorants are committing or are
about to commit depredations at Tribal- and State-owned or operated
aquaculture facilities (including hatcheries); to alleviate impacts to
health and human safety; reduce impacts to threatened and endangered
species (as listed under the ESA or identified in State- or Tribal-
specific legislation as threatened or endangered) or those listed as
Species of Greatest Conservation Need in State Wildlife Action Plans;
and to prevent damage to State- or Tribal-owned property and assets.
Take activities to prevent depredation on aquatic Species of Greatest
Conservation Need may occur only in natural or public waters.
Permittees need to include a description of long-term plans to
eliminate or significantly reduce continued need to take double-crested
cormorants as part of their application. Permits will be issued
annually. Permittees are required to submit an annual report by January
31 for activities conducted during the preceding calendar year. The
report must detail the amount of lethal take that occurred under their
permit and for what purpose the take was conducted.
5. Anyone undertaking lethal control with a firearm must use
nontoxic shot or nontoxic bullets (50 CFR 20.21). However, this
prohibition would not apply if an air rifle or an air pistol is used.
6. Individuals conducting lethal control may not use decoys, calls,
or other devices or bait to lure birds within gun range.
7. Methods of take are at the discretion of the permittee
responsible for the action, but must be accomplished by means of humane
lethal take or active nest take. Lethal take may occur by firearm in
accordance with paragraph (5) above or lethal or live traps. Active
nest take may occur by egg oiling or destruction of nest material and
contents (including viable eggs and chicks). Birds may be euthanized by
cervical dislocation, CO2 asphyxiation, or other methods
recommended by the American Veterinary Medical Association. Only 100
percent corn oil, a substance exempted from regulation by the
Environmental Protection Agency under the Federal Insecticide,
Fungicide, and Rodenticide Act, may be used to oil eggs. Other damage
control methods of take consistent with accepted wildlife damage
management programs may be authorized.
8. States and Tribes applying for the first time must consult with
the USDA Wildlife Services for an assessment of the appropriate level
of take and provide recommendations of short-term measures to provide
relief from depredation and long-term measures to help eliminate or
significantly reduce conflicts. Wildlife Services provides a ``Form 37
Permit Review''. This form is required for first-time applicants only.
Permittees need not submit a Form 37 for renewal applications unless
requested by the regional Migratory Bird Permit Office. Permittees are
expected to continue working with Wildlife Services for review of
management plans and remaining current on best practices.
9. States and Tribes and their employees and subpermittees may
possess, transport, and otherwise dispose of double-crested cormorants
taken. Double-crested cormorants killed and nests/eggs destroyed under
the authority of this permit must be properly disposed of by donation
to an entity authorized by permit or regulation to receive migratory
birds, or be destroyed completely in accordance with Federal, State,
and/or local laws and ordinances. This may include donation to public
museums or public scientific and educational institutions for
exhibition, scientific, or educational purposes, or burial or
incineration. This permit does not allow for birds or their parts or
nests/eggs to be sold, offered for sale, bartered, or shipped for the
purpose of sale or barter. Birds may not be retained for personal use.
10. This permit does not apply to any efforts to prevent
depredation or harm to privately owned animals (e.g., hobby animals,
pets, or similar categories of animals) that are raised free-range or
otherwise released to the wild. Private landowners may apply for a
depredation permit (50 CFR 21.41) to alleviate damage to some types of
property (i.e., buildings and infrastructure; vehicles and equipment;
some types of vegetation; and display animals, such as those in zoo
exhibits).
11. States and Tribes may designate subpermittees who must operate
under the conditions of the permit. Subpermittees can be employees of
State and Tribal fish and wildlife agencies, USDA Wildlife Services
employees, and employees of other Federal, State, or Tribal agencies or
private companies specializing in wildlife damage abatement and under
direct control of the permittee.
12. Any employee or subpermittee authorized by the State or Tribe
to carry out actions under the special permit must retain in their
possession a copy of the State's or Tribe's permit while carrying out
any action.
13. Any State or Tribal agency, when exercising the privileges of
this permit, must keep records of all activities, including those of
subpermittees, carried out under the authority of the special permit.
Prior to any permit renewal, the Service will require an annual report
detailing the activities conducted under the permit and the numbers of
cormorants, nests, and eggs lethally taken, treated, or destroyed.
14. Nothing in the permit should be construed to authorize the take
of cormorants, their eggs, or nests contrary to any State or Tribal law
or regulation or on any Federal land without written authorization by
the appropriate management authority. Further, none of the privileges
granted under the permit shall be exercised without any State or Tribal
permit that may be required for such activities.
15. The scope of this permit applies to lands or in waters managed
by State and Tribal fish and wildlife agencies and within those
agencies' jurisdictions. If a State or Tribe must enter private
property to access State and Tribal lands or waters where take is
approved in their permit, the State or Tribe must obtain authorization
from the private property owner, and require that the private property
owner or occupant provide free and unrestricted access. The private
property owner or occupant should also allow access at all reasonable
times, including during actual operations, to any Service special agent
or refuge officer, State or Tribal wildlife or deputy wildlife agent,
warden, protector, or other wildlife law enforcement officer on the
premises where they are, or were, conducting activities. Furthermore,
any State or Tribal employee or approved subpermittee conducting such
activities must promptly furnish information concerning such activities
to any such wildlife officer.
16. The Service reserves the authority to immediately suspend or
revoke any permit if the Service finds that the terms and conditions
set forth in the permit have not been adhered to, as specified in 50
CFR 13.27 and 13.28.
Since November 2017, permits have been available only to address
conflicts with aquaculture, human health and safety, threatened and
endangered species, and personal property; take of cormorants to
protect wild and publicly managed fisheries has not been authorized
unless warranted to protected threatened or endangered species. The
conflicts with these
[[Page 85540]]
managed fisheries are increasingly causing concerns with State and
Tribal fish and wildlife agencies, particularly those involved with
providing recreational fishing opportunities. As cormorant abundance
increases, and even at current levels, the issuance of individual
depredation permits to address conflicts is becoming increasingly time-
consuming and lengthy in some cases. The Service expects this special
double-crested cormorant permit, which increases the flexibility of
States and Tribes to address issues and also expands the scope of
conflicts that can be addressed to wild and publicly managed fish, will
result in increased efforts to reduce those conflicts, including lethal
take of birds, nests, and eggs. Localized abundances of cormorants may
decline as a result of these efforts, but regional and continental
populations are not likely to be negatively impacted.
The Service also expects that, by allowing States and Tribes to
address conflicts through a special permit, more aggressive management
activities will result at sites experiencing high levels of conflicts
associated with cormorants, and within the scope of this rule. By
authorizing conflict-management activities at the State or Tribal
level, instead of at the Department of the Interior Regional level,
management activities will be more responsive and timely than is
currently the case. Quicker resolution of conflicts ultimately may
result in fewer complaints regarding cormorants. In expanding authority
given to the States and Tribes via this permit, workload burdens may
shift with more being borne by the States and Tribes and less by the
Service. However, because States and Tribes are not required to obtain
this permit, this rule does not impose an unfunded mandate on State,
local, or Tribal governments. Further, since this permit is available
only to States and Tribes, it does not impose an unfunded mandate on
the private sector. Those States and Tribes interested in obtaining the
new permit would likely have staff and resources in place with
dedicated duties falling within the scope of conflicts associated with
cormorants. Additional explanations can be found in the Required
Determinations section of this rule.
Importantly, reducing the abundance of double-crested cormorants is
not the goal of the Service or this new management action. Reducing
their overall abundance does not guarantee that conflicts in specific
areas will decrease. If cormorants are attracted to an area due to food
resources, nesting habitats, or other factors, those places will remain
attractive regardless of the size of the cormorant population and may
still experience damage to the resources. Rather, the goal of the
Service is to reduce the number of conflicts with cormorants by
combining lethal and nonlethal methods and allowing the lethal take of
cormorants only when supported by information that such take would
reduce conflicts. As a consequence, abundance of cormorants in some
areas may be reduced, but regional and continental populations will be
managed at sustainable levels, albeit at somewhat reduced abundances.
The Service also wants to ensure accountability not only in determining
allowable take, but also in reporting of actual take by permittees. We
will annually review reports submitted by permit holders and will
periodically assess the overall impact of this permit program to ensure
compatibility with long-term conservation of double-crested cormorants.
This approach will result in the transparency and accountability
necessary to make informed decisions about and promote adherence to
authorized levels of take.
Public Comments
On January 22, 2020 (85 FR 3601-3603), the Service published an
advance notice of proposed rulemaking (ANPR) and announced our intent
to prepare a NEPA document indicating that the Service intended to
establish new regulations regarding the management of double-crested
cormorants. The comment period for the ANPR continued through March 9,
2020. The ANPR listed possible alternatives, which include the no
action alternative in addition to the following:
(1) Establish a new permit for State and Tribal fish and wildlife
agencies for authorizing certain cormorant management and control
activities;
(2) Establish an aquaculture depredation order; and
(3) Both (1) and (2) in combination.
We also announced that several public scoping meetings would be
held, and that specific dates and times for the public meetings would
be available on the internet at https://www.fws.gov/birds/management/managed-species/double-crested-cormorants.php. A total of four public
scoping webinars were convened, two on February 11, 2020, and two on
February 12, 2020. Additionally, we conducted two webinars provided
only to Tribal members on February 19 and 27, 2020. We provided all
attendees of all webinars with information on the following topics
regarding cormorants, their management, and the regulations process:
(1) Biology and population changes; (2) background of the issues and
previous management approaches; (3) current management of conflicts;
(4) proposed approaches and alternatives; and (5) the planning process
for the NEPA analysis. We also informed attendees that they could
provide comments on the proposed actions and the scope of the NEPA
review via a website (http://www.regulations.gov, Docket No. FWS-HQ-MB-
2019-0103) or by U.S. mail or hand-delivery to Public Comments
Processing, Attn: FWS-HQ-MB-2019-0103; U.S. Fish and Wildlife Service
Headquarters, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church, VA
22041-3803.
On June 5, 2020, the Service published a notice of proposed
rulemaking (proposed rule; 85 FR 34578), and the Environmental
Protection Agency published notice of a draft environmental impact
statement (DEIS) (85 FR 34625). The comment period for each continued
for 45 days, ending on July 20, 2020. The Department of the Interior's
policy is, whenever possible, to afford the public an opportunity to
participate in the rulemaking process. We received more than 1,400
comments in response to the ANPR and 1,047 in response to the proposed
rule and DEIS.\1\ You may review the comments received at the Federal
eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-
2019-0103. We considered comments on the ANPR in developing the
proposed rule, and comments on the DEIS and proposed rule when
developing this final rule. A summary of the comments is included in
the 2020 FEIS associated with this rulemaking action, and we
incorporate those responses to comments by reference to this rule. We
also include additional responses to comments below that highlight
important issues raised by the public. Comments and our responses
pertaining to information collection are also set forth below in this
document in Required Determinations, under Paperwork Reduction Act, as
a majority of those comments pertained to information collection
issues.
---------------------------------------------------------------------------
\1\ Regulations.gov shows 1,052 total comments, which comprise
1,047 public submissions, 2 primary documents (proposed rules), and
3 supporting documents (DEIS, 2003 FEIS, and U.S. Army Corps of
Engineers documents)
---------------------------------------------------------------------------
Use of Nonlethal Control: Commenters submitted several questions
regarding the required use and efficacy of nonlethal methods used to
address conflicts associated with cormorants. Comments appear to focus
on two primary concerns: (1) How the Service will enforce or require
that permittees implement nonlethal
[[Page 85541]]
methods first before carrying out authorized take, and (2) how the
permittee will determine when nonlethal methods of management are
``enough'' or insufficient. Commenters also requested clarity on the
type of nonlethal control methods the Service expects permittees to
use. Specifically, some commenters requested that the Service require
that permittees (individual or a new special permit for States and
Tribes) ``make progress'' toward nonlethal solutions to conflicts as a
condition of any permit. They further commented that they felt the DEIS
did not provide information on how nonlethal methods are used in a
comprehensive approach. Members of the general public commented that
there is a general bias against nonlethal measures even when nonlethal
measures are proven to work. Commenters assert that the Service failed
to demonstrate how States and Tribes would satisfy the requirement that
people first use nonlethal methods to address conflicts. In addition,
commenters also recommended that the Service ensure that States and
Tribes applying for the special permit have conclusive data on a site-
by-site basis indicating the effectiveness of cormorant management
before take begins.
Further, several State agencies expressed concern that a
requirement for attempting nonlethal control before lethal control will
delay effective management, and that such a requirement would be so
complex that it will add unnecessary documentation and time before
lethal controls may be used. Similarly, some State agencies mentioned
that ``redundant'' documentation required under the proposed new permit
process could delay control and impede success. One State agency
commented seeking clarification on implementation of nonlethal methods
as well, stating that such a request is not feasible since the
geographic distribution of State and Tribal fish hatcheries is too
broad and each hatchery is taken on a case-by-case basis. Another State
agency commented that nonlethal control methods are often impractical
or ineffective, as cormorants become habituated to persistent,
affordable methods (e.g., noise-making deterrents, lasers, harassment
from shore by hatchery personnel). Commenters further stated that the
size of some hatcheries makes other methods difficult or too expensive
to implement. Another commenter suggested that the Service identify a
process for the required evaluation of efficacy of nonlethal methods. A
State agency recommended that the Service develop guidelines for
determining when there is sufficient proof that nonlethal mechanisms
are ineffective at resolving conflicts. Another State agency commented
that the Service needs to clarify its expectations on use of nonlethal
methods to meet the needs of managers, stating that there are certain
cases where take is essentially unavoidable, or where there is
significant evidence that would indicate, prima facie, the need for
take. Yet another State agency also requested that the Service provide
States seeking permits with a guide or Best Management Practices on
nonlethal methods of resource protection. Lastly, a State agency
recommended that the Service develop and provide States with sampling
protocols to assist with collecting and analyzing fish population data
where cormorant control activities occur.
Some commenters recommended no management of the conflict, or
managing the conflict with nonlethal management methods only. And some
commenters recommended the ``no action'' alternative, which would
continue to address conflicts associated with cormorants within a
specific scope with the issuance of individual permits. Reasons for
support of the no action alternative generally indicate that this
option would focus lethal control explicitly on birds that are
committing or about to commit depredation or harm/damage, identifies
and defines a limited and specific set of types of conflicts, requires
permittees to demonstrate they have exhausted reasonable nonlethal
methods of management, and requires the Service approval lethal control
on a case-by-case basis.
Agency Response to use of Nonlethal Control: The Service agrees
that harassment of cormorants may be effective in some areas, but
ineffective in others. The conditions that dictate this outcome are
often site-specific and variable throughout any given year. For
example, some commenters note that many catfish farms must employ full-
time employees to harass and take cormorants when authorized, but
management of the conflict in general is considered an added business
expense. Another commenter asserted that nonlethal measures may work
for a limited time period, but some birds may become habituated. It is
in these situations where the Service anticipates lethal removal of
cormorants would be warranted. In addition, as the Service noted in the
DEIS and the FEIS, the use of nonlethal methods alone is not an
effective management tool to respond to conflicts associated with
cormorants, which is why the Service rejected that possible alternative
in its analysis.
The Service encourages and expects continued use of nonlethal
measures in conjunction with lethal measures where permittees find this
approach most effective. Often, a combination of measures is the most
effective way to address conflicts associated with cormorants. The
Service needs to rely on permittees to make site-specific assessments
and employ cormorant conflict management in a manner that makes the
most sense, so long as those permittees follow the conditions of the
permit. For added clarity in response to these comments, the following
is a condition that would be part of any permit issued by the Service
under the preferred alternative in this FEIS: States and Tribes and
their subpermittees must use nonlethal methods, and independently
determine that those methods are insufficient in controlling the
depredation conflict, before lethally taking double-crested cormorants.
Permittees may also consult with USDA Wildlife Services for additional
assistance to determine when nonlethal methods are insufficient.
With regard to methods of nonlethal management methods expected,
the new special permit application now includes language intended to be
clear and concise. The revised language reads, ``(2) For each
location(s), describe the nonlethal methods that you have used
previously and/or plan on implementing, including (a) active hazing
(e.g., horns, pyrotechnics, propane cannons, etc.), (b) passive
deterrents (e.g., netting, exclusion devices, nest deterrents, etc.),
(c) habitat management (e.g., vegetative barriers, grass management,
prey management, etc.), and (d) changes in management practices (e.g.,
water level management, fish release timing, etc.).''
With regard to the question in the FWS Form 3-200-90, Permit
Application, and the language requesting, ``A statement indicating what
information will be collected to assess whether the management and take
of double-crested cormorants is alleviating the damage or other
conflict,'' the Service revised this language as well. The revised
language is intended to be less ambiguous and better solicit an answer
that allows a Service permit staff employee/specialist to make a
determination on efficacy. The revised language reads, ``Describe your
long-term plans to eliminate or significantly reduce the continued take
of double-crested cormorants or destruction of eggs/nests.''
[[Page 85542]]
With respect to the comment suggesting no management, or only using
nonlethal controls, nonlethal management would essentially mean that
the Federal Government would not issue any permits or other
authorizations (i.e., depredation permits, depredation orders, control
orders, or conservation orders) that would allow the take of cormorants
to alleviate depredations or other conflicts. This is an alternative
the Service considered but eliminated from further analysis as it would
not meet the purpose and need to address cormorant conflicts.
With respect to the ``no action alternative,'' while individual
permits do offer control on a site-specific case-by-case basis, they do
not meet the purpose and need for action as cited in the DEIS.
Specifically, the no action alternative does not fully address the need
for Tribes in the western region of the United States (excluding
Alaska), to address cormorant impacts on fisheries--especially on
hatchery-raised salmonids. Similarly, the Service is rejecting the no
action alternative because it could potentially have a negative effect
on wild and publicly stocked fish, as it would not allow for take of
cormorants found to be heavily depredating a fishery. Under the no
action alternative, the Service expects continued or enhanced conflict
between cormorants and some economically important fisheries across the
nation, as well as at some hatchery release sites.
Permit Conditions: Several commenters expressed concern that year-
round lethal take will lead to high chick mortality through starvation,
predation facilitated by human disturbance, a removal of parent(s),
and/or exposure. One commenter requested the Service require a control
moratorium during the nesting season when chicks are present. Several
commenters voiced a preference for the Service to require only nontoxic
shot and not allow the use of any lead ammunition. Some commenters also
requested the Service specify permit conditions to protect nontarget
and federally listed species. Separately, some commenters voiced a
preference for the use of decoys when implementing cormorant management
actions.
Agency Response to Permit Conditions: The Service views lethal
control methods as a last resort for addressing conflicts between avian
species and human interests. Lethal take of adults during the breeding
season should occur prior to hatching of eggs to avoid the loss of
adults that likely would result in orphaning chicks and their ultimate
death due to starvation. Adult birds may not be taken at any nest with
young in it unless the take of adults addresses a human health and
safety issue. In addition, States and Tribes and their subpermittees
must make efforts to avoid disturbance to co-nesting species.
This rule limits the use of lead ammunition when persons use
firearms to take cormorants. As a standard condition for all permits
under this rule, permit holders must use nontoxic shot when using
shotguns or other firearms to take cormorants, except when using an air
rifle or air pistol due to the limited availability of nontoxic bullets
for them.
The Service considered the impacts of issuing depredation permits
on nontarget migratory birds, including threatened and endangered
species. The Service anticipates the unintentional take of nontarget
species will occur infrequently and involve very few individuals of a
particular species. An Intra-Service ESA Section 7 consultation
Biological Evaluation (ESA BE) was completed to assess if any proposed,
threatened, or endangered species or associated critical habitat would
be affected by cormorant control. The Service added specific permit
conditions for piping plover (Charadrius melodus), interior least tern
(Sterna antillarum), and wood stork (Mycteria americana): (1) A buffer
zone for wood storks for all activities; (2) a buffer zone for these
three birds when discharging firearms; and (3) a buffer zone for these
three birds for egg oiling, CO2 asphyxiation, egg
destruction, or nest destruction.
The Service acknowledges that decoys can be effective in luring
birds into sites to make them easier to kill, particularly those that
are gregarious by nature. In most cases, the kill of birds is higher
when using decoys than when they are not used (e.g., use of decoys in
hunting situations). However, in cases concerning depredation issues,
animals that may not otherwise depredate a particular area may do so
when decoyed into that area. Decoying birds may create, extend, or
exacerbate conflicts (e.g., exacerbating a disease outbreak by
attracting additional birds) where an issue may not exist or could be
lessened if the birds had not been decoyed into the area; and could
limit the ability of entities to obtain relief from cormorant conflicts
due to the limited numbers of birds that could be taken to ensure
sustainability of cormorant populations. For these and other reasons,
decoys may not be used in the Service's depredation permit (50 CFR
21.41).
Western Subpopulation of Cormorants: Several entities commented
with concerns regarding the PTL and potential impacts to the western
subpopulation of cormorants. Similarly, some commenters also submitted
additional data considerations and analyses. Commenters provided many
specific empirical details for the Service to consider, but, in
general, considerations included the following issues: (1) The
confidence interval for this western subpopulation is too large; (2)
the take limit for the western subpopulation is much larger than
historical take in the West; and (3) there was an error in the equation
used to estimate a pre-breeding multiplier.
Agency Response to Western Subpopulation of Cormorants: Based on
information received during the public comment period, the PTL for the
western subpopulation may not have captured complex and changing
population dynamics precipitated by cormorant management in the
Columbia River Estuary. To reduce the risk of over-exploiting the
western subpopulation, the Service reduced the level of authorized
annual take to half the PTL in the DEIS, or 4,539 individuals. This is
a maximum allowable annual take level, not a prescribed level. Based on
the average past take of cormorants, expected take is unlikely to
exceed 2,000 annually. The status of the population can be reassessed
at 5-year intervals, and additionally as necessary, and there is a
sound monitoring program in place for the western subpopulation, which
can estimate how the western subpopulation responds to take subsequent
to the habitat management in the Columbia River Estuary.
With respect to the comments on the error in the pre-breeding
multiplier, two errors were found in the formula. First, an equation
had the denominator and numerator reversed. This was a typo in that the
equation was used in its proper form to estimate a pre-breeding
multiplier. The reversal did not result in any errors in estimating
PTL. Second, an equation to extrapolate cormorant nest counts was
missing a term needed to correctly estimate the proportion of
nonbreeding birds. The equation as written estimates the number of
nonbreeders as a percentage of breeders, whereas it should have
estimated the number of nonbreeders as a percentage of the total
population. This error was propagated in estimating PTL. Correcting
this error caused estimates of PTL to increase 2-3% for each
subpopulation.
[[Page 85543]]
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. In accordance with the criteria in
Executive Order 12866, this action is not a significant regulatory
action subject to OMB review.
This rule will not have an annual economic effect of $100 million
or adversely affect any economic sector, productivity, competition,
jobs, the environment, or other units of government. This action will
not create inconsistencies with other agencies' actions or otherwise
interfere with an action taken or planned by another agency. Our
economic analysis determined that this rule is expected to result in
positive economic benefits to both the commercial aquaculture industry
as well as the recreational sport fishing industry.
E.O. 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.
Codifying a new permit for the management of double-crested
cormorants provides an additional tool for States and Tribes to
appropriately manage conflicts on lands or in waters managed by their
respective fish and wildlife agencies within their jurisdictions, while
maintaining overall authority for the take of birds within the Service.
Further, current regulations allow the take of cormorants only for the
purposes of reducing conflicts with and damage to aquaculture, human
health and safety, threatened and endangered species (as listed under
the ESA) and State-listed species of management concern, and personal
property. Many of the conflicts with cormorants involve depredations of
sport fish by cormorants, for which there is no relief under current
Federal regulations unless warranted to reduce impacts to threatened
and endangered fish species listed under the ESA. This new permit would
allow the take of cormorants to reduce depredation of wild and publicly
stocked fish managed by State fish and wildlife agencies or Tribes,
thus enhancing the scope of conflict resolution to more comprehensively
address areas of concern. However, the total number of cormorants from
each population that can be taken annually will be determined by the
Service to ensure that cormorant populations are sustainable.
The Service does not have empirical information to quantify the
changes in costs as a result of this new permit, because we do not know
how many States and Tribes would avail themselves of this permit and
the extent to which conflicts would be addressed using it. However, we
expect that the overall cost and regulatory burden to individuals,
businesses, and State, Tribal, and Federal government agencies
associated with this new permit will be lower than exists under current
regulations. The reduction would be the result of fewer requests by
States and Tribes for individual depredation permits previously needed
compared to single State or Tribal permits that could be used; hence,
total costs associated with permit applications and biological
assessments of those applications likely will be lower.
Executive Order 13771
This rule is not an E.O. 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017)
regulatory action because it is not significant under E.O. 12866.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include finfish farming and fish hatcheries (NAICS 112511) and other
types of commercial aquaculture farms (NAICS Code 112519). The small
business size standard defined for these businesses (as defined by the
U.S. Small Business Administration) is businesses with revenues under
$0.75 million.
The Service has difficulties estimating impacts to recreational
fisheries because few studies have investigated direct economic impacts
of cormorant management on recreational fisheries. Although a few
studies have estimated impacts to local economies, loss of fishing day
activities in those local areas may be offset through engaging in
angling opportunities elsewhere. While it is feasible that this rule
could have localized effects on recreational fisheries, data do not
exist to predict where those effects could occur. Further research
might determine whether any impacts that may be seen at local scales
can be extended to larger scales. However, the Service concludes that
this rule will result in an overall net benefit to facilities as it
will provide another option to control double-crested cormorants that
are negatively impacting their operations.
This new permit affects only State and Tribal governments and does
not impact small businesses. The new special cormorant permit would be
optional and available to State and Tribal fish and wildlife agencies
in the 48 contiguous States to manage conflicts specifically associated
with cormorants. This permit would provide State and Tribal fish and
wildlife agencies flexibility within predefined guidelines to address
conflicts caused by cormorants within their jurisdictions.
Commercial entities, such as privately managed aquaculture
facilities, would continue to have the opportunity to apply for
individual depredation permits to address site-specific conflicts. A
higher threshold for annual take associated with this regulation will
yield benefits to the aquaculture industry and others in need of
individual depredation permits. These benefits result from indirect
effects on cormorant populations from a higher threshold of authorized
take, and the
[[Page 85544]]
resulting lower cormorant populations that are projected. The new
permit coupled with the continued use of individual depredation permits
for commercial aquaculture producers would provide the flexibility to
manage cormorants sustainably and authorize take in an equitable
fashion across multiple conflicts.
Thus, we are certifying that this rule will not have a significant
economic impact on a substantial number of small business entities.
Therefore, a regulatory flexibility analysis is not required.
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
government activities, because the Federal Government would not require
States or Tribes to obtain this permit. By authorizing conflict-
management activities at the State or Tribal level, instead of at the
Department of the Interior Regional level, management activities will
be more responsive and timely than is currently the case. Quicker
resolution of conflicts ultimately may result in fewer complaints
regarding cormorants. In expanding authority given to the States and
Tribes via this permit, workload burdens may shift with more being
borne by the States and Tribes and less by the Service. However, a
small government agency plan is not required.
(b) We have determined and certify, in compliance with the
requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et
seq., that this rulemaking will not impose a cost of $100 million or
more in any given year on local or State government or private
entities. The rule does not have a significant or unique effect on
State, local, or Tribal governments or the private sector, and the
permit is optional to States and Tribes. Those States and Tribes
interested in obtaining the new permit would likely have staff and
resources in place with dedicated duties falling within the scope of
conflicts associated with cormorants. Therefore, this rule is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
Takings
In accordance with E.O. 12630, this rule does not contain a
provision for taking of private property, and would not have
significant takings implications. A takings implication assessment is
not required.
Federalism
This rule would not interfere with the States' or Tribes' abilities
to manage themselves or their funds. The new special cormorant permit
would be optional and available to State and Tribal fish and wildlife
agencies in the 48 contiguous States to manage conflicts specifically
associated with cormorants. This permit would provide State and Tribal
fish and wildlife agencies flexibility within predefined guidelines to
address conflicts caused by cormorants within their jurisdictions.
Therefore, this rule would not have sufficient federalism effects to
warrant preparation of a federalism summary impact statement under E.O.
13132.
Civil Justice Reform
In accordance with E.O. 12988, we have reviewed this rule and
determined that it will not unduly burden the judicial system and meets
the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This final rule contains a collection of information that we have
submitted to OMB for review and approval under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.). 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. OMB has reviewed the
information collection requirements in this rule and assigned OMB
Control Number 1018-0175. The new reporting and/or recordkeeping
requirements identified below require approval by OMB:
(1) FWS Form 3-200-90, Permit Application--Special Double-Crested
Cormorant Permit (50 CFR part 21) (and associated amendments): This new
permit would be available only to State or Tribal fish and wildlife
agencies responsible for migratory bird management on lands and in
waters managed by those agencies within their jurisdictions. Under this
permit, the Service would authorize State and Tribal fish and wildlife
agencies to conduct lethal take to reduce conflicts involving
depredation at State- and Tribal-owned or operated aquaculture
facilities (including hatcheries); impacts to health and human safety;
impacts to threatened and endangered species (as listed under the ESA
and listed species identified in State- or Tribal-specific legislation
as threatened or endangered) or those listed as Species of Greatest
Conservation Need in State Wildlife Action Plans; damage to State- or
Tribal-owned property and assets; and depredations of wild and publicly
stocked fish managed by State fish and wildlife agencies or federally
recognized Tribes and accessible to the public or all Tribal members.
Take activities to prevent depredation on aquatic Species of Greatest
Conservation Need may occur only in natural or public waters.
Any State or Tribal fish and wildlife agency wishing to obtain a
permit must submit an application (FWS Form 3-200-90) to the
appropriate Regional Director containing the general information and
certification required by 50 CFR 13.12(a) plus the following
information:
a. A brief description of your State's or Tribe's double-crested
cormorant conflicts, including physical location(s) and type of
conflict specified above in this paragraph (1);
b. A detailed description of the nonlethal methods (i.e., active
hazing, passive hazing, habitat management, and changes in management
practices) you have and/or will implement and how activities will
address one or more of the issues specified above in this paragraph
(1);
c. The requested annual take of double-crested cormorants by life-
stage, including eggs and nests;
d. A description of long-term plans to eliminate or significantly
reduce continued need to take double-crested cormorants;
e. A statement indicating that the State or Tribe will inform and
brief all employees and subpermittees of the requirements of these
regulations and permit conditions;
f. A list of all subpermittees who may conduct activities under the
Special Double-Crested Cormorant Permit, including their names,
addresses, and telephone numbers; and
g. The name and telephone number of the individual in your agency
who will oversee the double-crested cormorant management activities
authorized under the permit.
States and Tribes applying for the first time must consult with the
U.S. Department of Agriculture's Wildlife Services for an assessment of
the appropriate level of take and provide recommendations of short-term
measures to provide relief from depredation and long-term measures to
help eliminate or significantly reduce conflicts. Wildlife Services
provides a ``Form 37 Permit Review,'' which is required to be completed
and included with the application for first-time applicants only.
(2) FWS Form 3-202-56, Annual Report: The State or Tribe must
submit an annual report (FWS Form 3-202-56) detailing activities,
including the dates,
[[Page 85545]]
numbers, and locations and life stages of birds, eggs, and nests taken
and nonlethal techniques utilized, by January 31 for activities
conducted during the preceding calendar year. The Service will require
an annual report by the State or Tribe prior to any permit renewal.
(3) Recordkeeping Requirements: Any State or Tribal agency, when
exercising the privileges of this permit, must keep records of all
activities, including those of subpermittees, carried out under the
authority of the special permit.
(4) Designation of Subpermittees: States and Tribes may designate
subpermittees who must operate under the conditions of the permit.
Subpermittees can be employees of State and Tribal fish and wildlife
agencies, USDA Wildlife Services employees, and employees of other
Federal, State, or Tribal agencies or private companies licensed to
conduct wildlife damage abatement.
(5) Landowner Notifications: If a State or Tribe must enter private
property to access State and Tribal lands or waters where take is
approved in their permit, the State or Tribe must obtain authorization
from the private property owner.
Title of Collection: Federal Fish and Wildlife Permit Applications
and Reports--Special Double-Crested Cormorants; 50 CFR part 21.
OMB Control Number: 1018-0175.
Form Numbers: FWS Forms 3-200-90 and 3-202-56.
Type of Review: New.
Respondents/Affected Public: State and/or Tribal governments.
Total Estimated Number of Annual Respondents: 711.
Total Estimated Number of Annual Responses: 711.
Estimated Completion Time per Response: Varies from 10 minutes to
16 hours, depending on activity.
Total Estimated Number of Annual Burden Hours: 4,598.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion for applications,
recordkeeping, and designations of subpermittees; and annually for
annual reports.
Total Estimated Annual Nonhour Burden Cost: None.
A proposed rule, soliciting comments on this collection of
information for 30 days, was published on June 5, 2020 (85 FR 34578).
While we received no comments pertaining to information collection in
response to the proposed rule, we also solicited comments regarding the
DEIS titled ``Management of Conflicts Associated with Double-crested
Cormorants'' (EIS number 20200116) that was published June 5, 2020. Of
the 1,047 public comments submitted in response to the proposed rule
and DEIS, we received 49 comments from the following entities in
response to the DEIS that address the information collection
requirements:
------------------------------------------------------------------------
Agency Date submitted
------------------------------------------------------------------------
Arkansas Farm Bureau Federation...................... July 20, 2020.
Arkansas Game and Fish Commission.................... July 16, 2020.
Association of Fish and Wildlife Agencies............ July 17, 2020.
Attorneys for Animals, Inc........................... July 21, 2020.
Audubon.............................................. July 20, 2020.
Audubon Society of Portland.......................... July 21, 2020.
Arizona Game and Fish Department..................... July 20, 2020.
Catfish Farmers of America........................... June 30, 2020.
Center for Biological Diversity...................... July 20, 2020.
Central Flyway Council............................... July 20, 2020.
Columbia River Inter-Tribal Fish Commission.......... July 21, 2020.
Congressional Sportsmen's Foundation................. July 20, 2020.
Congressman Jack Bergman............................. July 21, 2020.
Finger Lakes Conservation Council.................... July 13, 2020.
Georgia Department of Natural Resources, Wildlife July 20, 2020.
Resources Division..................................
Idaho Department of Fish and Game.................... July 20, 2020.
Kalmiopsis Audubon Society........................... July 20, 2020.
Leech Lake Band of Ojibwe Division of Resources July 13, 2020.
Management..........................................
Louisiana Department of Wildlife and Fisheries....... July 16, 2020.
Michigan United Conservation Clubs................... July 16, 2020.
Mid-Columbia Public Utility District................. July 20, 2020.
Mississippi Commissioner of Agriculture and Commerce. July 20, 2020.
Mississippi Farm Bureau Federation................... July 20, 2020.
Mississippi Flyway Council........................... July 20, 2020.
Missouri Department of Conservation.................. July 17, 2020.
National Aquaculture Association..................... July 20, 2020.
New York State Department of Environmental July 20, 2020.
Conservation........................................
New York State Fish and Wildlife Management Board.... July 21, 2020.
New York State Conservation Council, Inc............. July 20, 2020.
North Dakota Game and Fish Department................ July 17, 2020.
Northwest Guides and Anglers Association............. July 20, 2020.
Ohio Department of Natural Resources Division of July 20, 2020.
Wildlife............................................
Oklahoma Department of Wildlife Conservation......... July 20, 2020.
Oregon Department of Fish and Wildlife............... July 20, 2020.
Pacific Flyway Council............................... July 20, 2020.
Pacific Public Employees for Environmental July 15, 2020.
Responsibility......................................
Pro Lake Management, LLC............................. July 21, 2020.
Quality Lake, Inc.................................... July 21, 2020.
Roby, Daniel......................................... July 21, 2020.
South Carolina Department of Natural Resources....... July 20, 2020.
Texas Parks and Wildlife Department.................. July 20, 2020.
University of Minnesota-Twin Cities Department of July 21, 2020.
Fisheries, Wildlife and Conservation Biology........
U.S. Environmental Protection Agency, Region 9....... July 16, 2020.
Virginia Department of Wildlife Resources............ July 21, 2020.
Washington Department of Fish and Wildlife........... July 20, 2020.
[[Page 85546]]
Waterbird Society.................................... July 20, 2020.
Wisconsin Department of Natural Resources............ July 20, 2020.
World Aquaculture Society............................ July 20, 2020.
Wyoming Game and Fish................................ July 20, 2020.
------------------------------------------------------------------------
As mentioned previously, we incorporate by reference comments and
our responses in the 2020 FEIS associated with this rulemaking action,
and address below those comments directly relevant to this rule. We
arranged the comments addressing the information collections by
overarching themes and provide a synopsis of the comments related to
each theme, along with the Service's response to each theme, as
indicated below:
Funding/Resource Concerns
Several State agencies and organizations commented on the need for
funding and technical support to implement a new State-wide special
permit as described in the preferred alternative. Commenters expressed
concern that a new permit process would be overly burdensome to
implement, which could delay cormorant control efforts and impede
management success. One State agency asked how much potential new
monitoring or reporting a State would have to agree to, and the amount
of time and resources that would need to be invested. They expressed
concern that funding of population monitoring (and monitoring of take)
would be sourced from State budgets if population monitoring is stepped
down to the Flyways. Another State agency stated that in order to
ensure that monitoring efforts are conducted consistently, the Service
should conduct population monitoring or must allocate funding to the
States for monitoring. A separate State agency expressed concerns about
the burden that the proposed permit will place on States to develop and
maintain programs to manage allowable take (i.e., population
monitoring, permitting, and reporting). Similarly, another State agency
cautioned that State resources are limited, while a separate State
agency inquired whether States will receive financial assistance to
implement the new permit. Lastly, the Mississippi and Pacific Flyway
Councils also commented that Federal financial support may be needed to
manage reporting and monitoring and the ability to administer a
cormorant depredation program.
Agency Response to Funding/Resource Concerns: This new permit does
not require a State or Tribe to process or issue any depredation
permits to entities within their jurisdiction. As stated in the
proposed rule and DEIS, States and Tribes would not be required to
request a permit, and those entities within States or Tribes not
seeking a new permit would continue to be able to apply for individual
depredation permits (except those that address wild and publicly
stocked fisheries). The Service's purpose and need for this action,
however, is to provide the flexibility for a State or Tribe to address
spatial and temporal complexity of conflicts. This is because each
State and Tribe has different goals and objectives for wildlife
management, and, therefore, allowances for flexibility when
prioritizing allocation of authorized take must be granted. In all
cases under a new permit, States and Tribes would be required to
respond to questions as part of a permit application, and document all
take that occurs under their permit(s), and provide the Service with a
report by January 31 for activities conducted during the preceding
calendar year. But the cost and means to implement permit requirements
will vary based on the goals of any particular State or Tribe seeking
relief from conflicts associated with cormorants. The Service cannot
obligate funds to implement a new special permit at this time, nor
could the Service accurately project any necessary additional funding
for each State or Tribe due to the flexibility provided to them. As
with the management of other migratory bird species, the Service
expects costs of management to be shared among the Service, States, and
Tribes.
Monitoring Plans
Several States, organizations, and individuals commented on the
need for more clarity and details from the Service with regard to the
development of a cormorant population monitoring program, and how
adaptive management will be incorporated. Entities requested that the
Service provide an outline of a cormorant population monitoring regime
as a foundation for current consideration by stakeholders and as the
basis for stakeholder meetings with the Service following the
publication of the record of decision. These commenters also asked how
much potential new monitoring or reporting a State would have to agree
to, and the amount of time and resources that would need to be
invested. Some State agencies and Flyway Councils provided specific
recommendations for population monitoring. One State agency, for
example, requested that the Service provide standardized population
monitoring and reporting protocols needed to evaluate impacts of
authorized take on cormorant populations, as well as criteria to be
used to assess the costs and benefits of take on wild fish stocks,
aquaculture facilities, human health and safety, property, and species
of conservation concern. Several commenters expressed concern over any
requirement that permittees gather data to assess the efficacy of take.
Similarly, commenters seek to clarify on who would be required to
collect any such data.
Agency Response to Monitoring Plans Concerns: The Service will work
with the four Flyway Councils and partnering Federal agencies to
develop agreed-upon, standardized monitoring protocols. The purpose of
the monitoring protocols will be to provide scientifically defensible
estimates and/or indices of double-crested cormorant population
abundance, biologically allowable take, and observed take. The
protocols will detail agency-specific responsibilities and estimated
annual costs associated with monitoring. The Service will also produce
a report every 5 years, and additionally as needed, that provides
analyses from population-monitoring efforts and other status
information. This report would be provided to the public to promote
transparency of decision-making and evaluation of the effectiveness of
this conflict-management tool. This report would include, but not be
limited to: (1) Updated cormorant population status and trends; (2)
reported lethal take of cormorants nationally and by cormorant
population; (3) updated PTL analyses based on new or more current
population information; (4) the state of the conflicts described in the
scope of the rule and assessment of a need for continued management, as
reported by requests for depredation permits (both individually and
programmatically by participating States and Tribes); and (5) a
conflict-management decision and justification for either continued
[[Page 85547]]
management or a proposed new management approach, if appropriate and
needed. In providing clarity to potential permittees about the
necessary information applicants need to provide in the application,
the Service clarifies that the application does not include language
that permittees gather data to assess the efficacy of take. Rather, it
includes language asking the applicant to provide a description of
long-term plans to eliminate or significantly reduce continued need to
take cormorants. The Service encourages State and Tribal fish and
wildlife agencies to coordinate with subpermittees to assess take
measures that address long-term prevention of depredation where
possible, and to conduct monitoring in conjunction with the Service as
it develops its population monitoring plan.
Development of Guidelines
A number of State agencies recommended that the Service develop
guidelines for determining when there is sufficient proof that
nonlethal mechanisms are ineffective at resolving conflicts. One State
agency requested that the Service provide States seeking permits with a
guide or Best Management Practices on nonlethal methods of resource
protection. Another State agency recommended that the Service develop
and provide States with sampling protocols to assist with collecting
and analyzing fish population data where cormorant control activities
occur.
Agency Response to Development of Guidelines Concerns: The Service
received many comments either in favor of or opposed to using nonlethal
methods in all situations. Commenters cited that nonlethal methods are
not effective in all cases; some may be cost-prohibitive, and some may
not respond well in situations where birds may become habituated to
nonlethal management. The Service agrees that harassment of cormorants
may be effective in some areas, but ineffective in others. The
conditions that dictate this outcome are often site-specific and
variable throughout any given year. Some commenters noted that
nonlethal measures may work for a limited time period, but some birds
may become habituated. The Service stated in the DEIS and the FEIS that
the use of nonlethal methods alone is not an effective management tool
to respond to conflicts associated with cormorants, which is why the
Service rejected that possible alternative in its analysis.
The Service encourages and expects continued use of nonlethal
measures in conjunction with lethal measures where permittees find this
approach most effective. Often, a combination of measures is the most
effective way to address conflicts associated with cormorants. The
Service needs to rely on permittees to make site-specific assessments
and employ cormorant conflict management in a manner that makes the
most sense, so long as those permittees follow the conditions of the
permit. For added clarity in response to these comments, the following
is a condition that would be part of any permit issued by the Service
under the preferred alternative in this FEIS: States and Tribes must
use nonlethal methods, and independently determine that those methods
are insufficient in controlling the depredation conflict, before
lethally taking double-crested cormorants. Permittees may also consult
with USDA Wildlife Services for additional assistance to determine when
nonlethal methods are insufficient.
Flyway Councils and Adaptive Management
Comments from the Flyway Councils indicated an interest in being
involved in the development of the Service's monitoring plans. The
Mississippi Flyway Council noted that they felt the 5-year monitoring
plan seemed reasonable, and suggested the Service consider the
participation of Flyway Councils to develop coordinated monitoring. The
Central Flyway Council indicated support for developing monitoring
plans, and recommended that the four Flyways contribute recommendations
on reasonable take allocations. A State agency recommended the Service
use the Flyway system to assist in the allocation of permitted lethal
removal of cormorants, due to the pressing need to resolve cormorant
conflicts across broad geographic regions.
Another State agency requested that the Service convene meetings
with the Flyways and other relevant stakeholders to develop a specific
cormorant population monitoring plan. The need to ensure adequate
monitoring and reporting to manage take while considering the limited
State resources was cited by some State agencies as well. One State
agency also noted a concern for how Flyways would fund and provide
resources for additional monitoring and reporting of cormorant
populations and lethal take, as much of their funding comes from State
budgets.
Another State agency commented suggesting that the involvement of
the Flyway Council could be beneficial in the development of monitoring
plans, but felt that monitoring plan development should be the extent
of their involvement, since their nongame technical section has little
relevant experience with the management of overabundant species. Both
the Mississippi Flyway Council and a State agency in that flyway
encouraged the Service to align their regulatory cycle with the Flyway
Council's summer meeting to provide sufficient time for States to
properly and carefully consider the Service's regulatory proposals.
The Mississippi Flyway Council recognized, supports, and
appreciates that, under Alternative A, some States and Tribes in the
Flyway not wishing to establish a new permit system, as well as
commercial aquaculture facilities experiencing cormorant issues, have
the option to apply for depredation permits under 50 CFR 21.41. Lastly,
the Central Flyway Council recommended the Flyway process be used to
notify the Service of which States within each Flyway will be
participating in the new permit.
Two stakeholders submitted comments regarding adaptive management.
One stated that the Service did not address adaptive management in the
information collection. Another stated that the concept of adaptive
management only appeared once in the DEIS, in reference to the
perceived benefits of Alternative A allowing flexibility in a State's
or a Tribe's cormorant control strategies to achieve desired fisheries
benefits.
Agency Response to Flyway Council and Adaptive Management Concerns:
Regarding population monitoring and adaptive management, the Service
will work with the four Flyway Councils and partnering Federal agencies
to develop agreed-upon, standardized monitoring protocols. The Service
will make every effort to align coordination with the Flyway Councils
around their meetings throughout the calendar year. The purpose of the
monitoring protocols will be to provide scientifically defensible
estimates and/or indices of double-crested cormorant population
abundance, biologically allowable take, and observed take. The
protocols will detail agency-specific responsibilities and estimated
annual costs associated with monitoring. The Service will also produce
a report every 5 years, and additionally as needed, that provides
analyses from population-monitoring efforts and other status
information. This report will be provided to the public to promote
transparency of decision-making and evaluate the effectiveness of this
conflict-management tool. This report will include, but not be limited
to: (1) Updated cormorant population status and trends; (2) reported
lethal take of
[[Page 85548]]
cormorants nationally and by cormorant population; (3) updated PTL
analyses based on new or more current population information; (4) the
state of the conflicts described in the scope of the rule and an
assessment of the need for continued management, as reported by
requests for depredation permits (both individually and
programmatically by participating States and Tribes); and (5) a
conflict-management decision and justification for either continued
management or a proposed new management approach, if appropriate and
needed.
Depredation/Control Orders
Several entities and State agencies commented in support of an
aquaculture depredation order in conjunction with a new special State
and Tribal permit addressing conflicts associated with cormorants. Some
State agencies also voiced support for a new aquaculture depredation
order or a new general depredation order without commenting
specifically on a new State or Tribal special permit. One State agency
referenced the DEIS by concluding that the environmental impacts
between Alternatives A and C would be similar, and stated that
Alternative C would provide greater efficacy and less administrative
burden for their agency. Another commenter submitted a similar comment
and voiced support for a nationwide depredation order. Other entities
also commented in support of an aquaculture depredation order in
general, stating that individual permits are not effective and the
proposed rule does not provide a lethal take management option for
commercial aquaculture facilities such as catfish farms. A State agency
also commented in support of Alternative C, citing specific support for
a new special State and Tribal permit and the ability for States to
manage their own water resources. A nongovernmental organization
commented in support of a nationwide depredation order, stating that
individual depredation permits are ineffective due to the unpredictable
migratory patterns of cormorants making it difficult to effectively
assess where individual permits are needed.
Commenters in support of a new aquaculture depredation order
suggested that this alternative would reduce the administrative and
regulatory burden on the Service and the aquaculture industry, and
emphasized that individual take permit applications are a significant
burden for small businesses. These commenters asserted that low take
limits for individual permits are sometimes arbitrarily set by regional
agency offices, making these permits inefficient, and that small
businesses would be required to continue to apply for individual take
permits. One aquaculture farmer spoke about complications with having
to apply and pay for two separate permits at two separate regional
offices due to having farms in bordering States. A State agency
commented in disagreement with the assertion that the requirement to
track take of cormorants under Alternative A is less burdensome than
for other alternatives and that reporting requirements under most
alternatives could be structured to equally assess take levels.
A Tribal Commission commented in support of Alternative D, a
general depredation order. They also suggested that the Service include
Federal lands in this alternative in order to allow State and Tribal
wildlife managers the necessary flexibility to manage cormorants
effectively and efficiently for the resources that need protection.
This Commission further states Alternative D is ideal to maximize
flexibility in protecting out-migrating juvenile salmon and steelhead
as it includes all lands where cormorants impact fisheries resources
throughout the Columbia River basin.
Lastly, an industry association commented in support of the vacated
depredation order, and not the depredation orders analyzed in the DEIS.
Agency Response to Depredation Order Comments: As explained in the
DEIS, the Service would apply an annual maximum allowable take
threshold across all the needs identified by stakeholders. The Service
determined this threshold by using a Potential Take Limit (PTL) model,
which uses underlying cormorant population metrics (productive rates,
survival rates, etc.) to calculate an annual allowable take level. This
is the same type of model used to sustainably manage some migratory
game bird species (band-tailed pigeons) and take levels for species
such as black vultures. By establishing an annual sustainable take
threshold, and ensuring systems are in place to keep take below that
threshold, the Service will implement the robust tool needed to assess
the effects of take on cormorant populations to address potential legal
challenges.
Under the vacated aquaculture depredation order, aquaculture
facilities were required to annually report lethal cormorant control
activities. This system of limited accountability and self-reporting
with a year time-lag was not adequate to consistently track authorized
take on a national scale. In addition to timing, the lack of reliable
annual take from information under the previous depredation orders
complicated our ability to assess the impacts of the orders on
cormorant populations.
The Service must be capable of tracking take by all authorization
mechanisms available throughout the year. Presently, however, the
Service does not have the necessary process or resources to adequately
monitor take under any new depredation order. This is because, unlike
the use of a permit system, the Service cannot track take under a
depredation order until the take has already occurred, creating a
greater probability that the take will exceed the maximum limit before
it is reported. To adequately track take under any new depredation
order, whether that order be the vacated orders, or those analyzed in
the DEIS, the Service needs to develop a mechanism that allows take to
be tracked in real time, such as the Canada Goose Registration database
(50 CFR 21.50). Such a tool would reduce the likelihood of exceeding
the annual take threshold or reaching the annual take threshold prior
to the end of the year. Additionally, a registration/tracking tool
would only be effective if those using the depredation order were
willing to register and report take numbers on a regular and frequent
basis. Since a tracking system is not currently in place, this
alternative is not ripe for decision. The Service must therefore
continue to rely on individual permits for private and commercial
entities.
The Service will continue to issue individual depredation permits
and is not proposing to implement any new cormorant depredation orders
anywhere in the United States at this time. Based on information
received during the public comment period, the PTL model for the
western subpopulation may not have captured complex and changing
population dynamics precipitated by cormorant management in the
Columbia River Estuary. To reduce the risk of over-exploiting the
western subpopulation, the Service will initially limit that annual
take to half the PTL in the DEIS, or 4,539 individuals. This is a
maximum allowable annual take level, not a prescribed level. Based on
past take of cormorants, expected take is unlikely to exceed 2,000
annually.
In regard to comments questioning which entities may remain
eligible to apply for and receive individual depredation permits, the
Service acknowledges this complexity and refers commenters to Table 1
in the FEIS, ``Differences In Regulatory Frameworks That Would Address
Conflicts Across All Alternatives,''
[[Page 85549]]
which outlines how each alternative in the NEPA analysis would employ
different proposed regulatory frameworks to address conflicts relating
to cormorants. The preferred alternative would establish a new,
optional permit that would be available to State and Tribal fish and
wildlife agencies in the 48 contiguous States to manage conflicts
specifically associated with cormorants. This alternative would provide
State wildlife management agencies and Tribes flexibility within
predefined guidelines to address conflicts caused by cormorants within
their jurisdictions. As stated in the rule and NEPA analyses, States
and Tribes would not be required to request a permit, and those
entities within States or Tribes not seeking a new permit would
continue to be able to apply for individual depredation permits
(individual depredation permits would not authorize the take of
cormorants to protect wild or stocked fish except when circumstances
require the protection of federally listed species). Commercial
aquaculture facilities would continue to have the ability to apply for
individual depredation permits (50 CFR 21.41) from the Service.
Regarding the individual's comment about having to apply and pay for
two separate permits at two separate regional offices due to having
farms in bordering States, the Service emphasizes that multiregional
depredation permits will remain available for these circumstances. For
example, the regional office to which a commercial aquaculture producer
would apply can issue a permit for more than one State and across
regional boundaries. This would require a coordination step between
those two regional permit offices, which is a standard operating
practice for the Service when an applicant seeks to take migratory
birds from States that occur in different administrative regions.
Permit Application/Permit System
Allocation and Scope of Authorized Take: Several commenters
submitted questions pertaining to how the Service would manage overall
allocation of authorized take of cormorants. Generally, commenters
asked how the Service would: (1) Allocate take among all existing
authorizations for take, including a new State and Tribal permit; (2)
account for regional take under the national permit system; and (3)
determine an upper limit of take for each State. For example, two State
agencies commented on the need to understand how the Service would
allocate take among all authorization mechanisms. Another State agency
also commented on the need for clarity on how annual take, both at the
State and regional level, would be shared among the States and Tribes
so that they can make informed determinations in successive years.
Another State agency stated that the method by which take will be
allocated across the western population is unclear from the DEIS and
needs to be clarified. The Central Flyway Council requests the Service
engage the four administrative flyways so they can provide
recommendations to the Service on reasonable take allocation among
States and flyways. One individual commented with concern that States
may take the majority of the allocated take within a cormorant
subpopulation's allowable take threshold within the PTL. This commenter
further states that there is no structure to ensure that take for
resources will be balanced (prioritization) or that a diversity of
stakeholder interests will be considered.
Several State agencies and commenters voiced a need for clarity on
the scope of authorized take within a new cormorant depredation permit
for States and Tribes outlined in the proposed rule. Specifically,
commenters requested clarity on the scope of circumstances for when
take would be authorized, the geographic and temporal scope, and
whether the new special permit would apply to private property owners
and Species of Greatest Conservation Need (SGCN) as identified in State
Wildlife Action Plans. Commenters stated that this clarity is needed to
understand where and when States and Tribes can implement take of
cormorants. For example, two State agencies recommended rewording
``wild and publicly stocked fish stocked by State agencies or Tribes''
to ``wild and stocked fish managed by State agencies or Tribes.''
Another separate State agency stated that a State agency may need to
apply control of cormorants on public waters, which can occur in cases
where a State does not own the land, and recommends the final rule
language be revised from, ``Lands under the jurisdiction of the
State,'' to ``Lands and/or public waters under the jurisdiction of the
State.'' Similarly, another State agency sought clarification on the
language used in the proposed rule, and referenced ``state or tribal
lands'' and ``respective jurisdiction.''
One private entity commented that the proposed rule should not
limit State cormorant control efforts to only those water bodies where
impact studies have been performed, and should be revised to provide
relief for water bodies with ``publicly stocked fish'' to include
``publicly accessible fisheries'' to include protection for wild fish.
A State agency similarly requested that the Service provide States with
standardized guidance on determining when take is warranted to support
fish resources, and to reduce conflicts associated with risks to human
health and safety, property, and species of conservation concern. A
separate State agency commented about the scope of the conflicts, and
asked if a State permit is the only way a State can address cormorant
conflicts. That agency further asked about possible ramifications of
opting out of the permit system, and if there will still be a mechanism
by which a State can address wild fishery conflicts with cormorants.
Agency Response to Allocation and Scope of Authorized Take
Comments: States and Tribes would not be required to request a permit,
and those entities within States or Tribes not seeking a new permit
would continue to be able to apply for individual depredation permits
(except those that address wild and publicly stocked fisheries). The
Service cannot yet provide the specificity requested on how the
allocation of individual permits for aquaculture facilities and
property owners would occur because the Service does not yet know how
many States or Tribes would request the proposed new permit. However,
the Service understands that States and Tribes need clarity on the
Service's expectations for an acceptable level of requested take in an
application for a new permit. Permittees would be restricted to maximum
levels of take authorized, designed not to exceed the PTL within the
subpopulation where the State or Tribe is located. This level of
authorized take would depend on: (1) Which States and Tribes seek a new
special permit within the same subpopulation analyzed within the PTL;
(2) an assessment by Service permit staff of the available level of
take each year within the specific subpopulation where the State or
Tribe is located; and (3) an assessment by Service permit staff of the
historical information of authorized take of cormorants due to
depredation in the past. However, allocation of authorized take may be
modified as conditions change once take is allowed. The Service
encourages interested States and Tribes to communicate with the Service
during the application process to best determine prioritization and
allocation of authorized take of cormorants.
The Service appreciates the comments that the scope of where take
activities could occur may be too limiting relative to the areas that
States and Tribes manage for fisheries. The Service therefore revised
the language in the
[[Page 85550]]
final rule to better encompass the lands and waters managed by State
and Tribal fish and wildlife management agencies stating that, under
this (special double-crested cormorant) permit, the Service authorizes
State and Tribal fish and wildlife agencies to conduct lethal take of
double-crested cormorants that is normally prohibited and is intended
to relieve or prevent impacts from cormorants on lands or in waters
managed by those agencies within their respective jurisdictions. The
scope of management and take activities conducted under the permit is
intended to reduce or prevent conflicts associated with cormorants for
the following concerns:
1. Depredation of fish at State- and Tribal-owned or operated
aquaculture facilities, including hatcheries;
2. Realized and potential impacts to human health and safety (e.g.,
collisions of airplanes with birds, fecal contamination of urban
wetlands);
3. Impacts to threatened and endangered species (as listed under
the ESA and listed species identified in State- or Tribal-specific
legislation as threatened or endangered) or those listed as Species of
Greatest Conservation Need in State Wildlife Action Plans, where take
activities to prevent depredation on aquatic Species of Greatest
Conservation Need may occur only in natural or public waters;
4. Damage to State- or Tribal-owned property and assets; and
5. Depredation of wild and publicly stocked fish managed by State
fish and wildlife agencies or federally recognized Tribes and
accessible to the public or all Tribal members.
Permit Application/Permit System
Geographic and Temporal Scope: Some commenters inquired about the
geographic scope of a new State or Tribal permit, stating that
implementation of lethal control of cormorants to reduce impacts on
aquaculture, wild and stocked fisheries, human health and safety,
property, and species of conservation concern should be authorized at a
biologically sustainable level for the Alaska, Pacific Coast, Interior,
Atlantic, and Southern breeding cormorant populations. These entities
commented that the scope of the new special cormorant permit would
allow States and Tribes to be able to take cormorants at any location
and at any time.
Agency Response to Geographic and Temporal Scope Comments: The new
permit would be available to all States and federally recognized Tribes
in the contiguous 48 States. The geographic scope of the new State or
Tribal permit is authorized at biologically sustainable levels for each
subpopulation. To ensure biological sustainability, the Service used
the most recent cormorant population data available to develop the PTL
model. The PTL is a biologically based model and evaluates allowable
take of cormorants in the contiguous 48 States. The Service regularly
uses PTL models to determine sustainable levels of take and has
concluded that if this level of take were to be authorized, it would be
biologically sustainable based on knowledge of cormorant population
dynamics. The PTL sets the upper limit for allowable take; it is not a
take prescription. The PTL limits apply to take for entire
subpopulations (i.e., Florida, Western, and Atlantic plus Central). The
number of birds authorized for take for each subpopulation will depend
on (a) the number of States that request a State permit, and (b) the
number of birds each State/Tribe requests to take in order to minimize
their particular conflict. Regarding the comment about the geographic
scope and the inclusion of Alaska, the Service notes that the Alaska
population is not included.
On the comment of taking cormorants at any location and at any
time, actions under the permit may be conducted during any time of the
year, unless specified otherwise in the permit's terms and conditions.
Specific conditions include those pertaining to lethal take during the
breeding season. Lethal take of adults during the breeding season must
occur prior to hatching of eggs to avoid the loss of adults that likely
would result in orphaning chicks and their ultimate death due to
starvation. Adult birds may not be taken at any nest with young in it
unless the take of adults addresses a human health and safety issue.
Permit Application/Permit System
Private Property Owners: Several commenters also requested the
Service include provisions that allow for the lethal take of cormorants
on private property, particularly to protect fish that are stocked by
the landowner for their personal use. One State agency recommended that
the Service include private recreational pond owners in the scope of
the new permit. Some commenters voiced concerns that, if such
provisions are not allowed, landowners will take matters into their own
hands to protect their fish and that the presence of and depredation by
cormorants on stocked fish in private ponds would negatively impact
recruitment of new anglers.
Agency Response to Private Property Owners: The Service, in some
instances, does allow the take of migratory birds to protect private
property. Private landowners may apply for a depredation permit (50 CFR
21.41) to alleviate damage to some types of property (i.e., buildings
and infrastructure, vehicles and equipment, some types of vegetation).
However, by policy, the Service's Migratory Bird Program does not issue
permits to prevent depredation or harm to privately owned animals
(e.g., hobby animals, pets, or similar categories of animals) that are
raised free-range or otherwise released to the wild. Numerous nonlethal
means, such as harassment, use of effigies, habitat modification, and
others, are available to landowners who maintain animals in natural-
like environments. Regarding the comment suggesting that some
landowners may unlawfully take cormorants if they do not receive
authorization to do so from the Service, we recognize that this
activity may occur, but we can neither prevent unlawful activity nor
predict where and when unlawful activity would occur in such cases.
However, landowners taking such actions would face the possibility of
being cited for violations of the MBTA, as well as fines for such
violations.
Permit Application/Permit System
Species of Greatest Conservation Need (SGCN): Several State
agencies also commented on the need to include conflicts related to
SGCN as identified in State Wildlife Action Plans. Because not all
States have State-designated lists of threatened and endangered species
within their State, some State agencies recommended that the language
of the rule be changed to ``state or tribal species of greatest
conservation need,'' in reference to lists created for State Wildlife
Grants. Similarly, another State agency recommended greater flexibility
for State fish and wildlife agencies to authorize take to protect SGCN
species. Another agency stressed in the comments responding to the DEIS
and the ANPR that, when determining priority and allocation of
allowable take of cormorants, the protection of special-status
resources should have first priority. The Central Flyway Council stated
that the final rule should include conflicts related to SGCN as
identified in State Wildlife Action Plans in the scope of the new
special permit.
Agency Response to SGCN Comments: With regard to Species of
Greatest Conservation Need as identified in State Wildlife Action
Plans, the Service agrees. One of the stated needs for action is to
address impacts from cormorants on special status species. Impacts may
involve competition for
[[Page 85551]]
nest sites, competition for food, reducing available nesting space and
nesting material for co-nesting species, habitat degradation, and nest
abandonment resulting from habitat degradation. Therefore, the Service
included new language within the scope of the preferred alternative,
which now states, ``listed species identified in State- or Tribal-
specific legislation as threatened or endangered) or those listed as
Species of Greatest Conservation Need in State Wildlife Action Plans,
where take activities to prevent depredation on aquatic Species of
Greatest Conservation Need may occur only in natural or public
waters.''
Reporting Requirements
Several stakeholders inquired as to the specific requests for
information required in a new special permit. Commenters also expressed
concern regarding the Service's commitment to producing a report every
5 years. One nongovernmental organization asserted that the Service's
reporting plan is inadequate as it will produce a report providing
analysis of population monitoring efforts only every 5 years, and
instead recommends it be done annually. Regarding reporting by
permittees, both the Central Flyway Council and a State agency
recommended authorization of a 5-year State and Tribal permit with
annual reporting requirements, to provide the Service with timely data
regarding take while reducing the Service's staff time needed to
process annual permit renewals. The Central Flyway Council recommended
annual reporting of control activities conducted under each permit,
similar to what was required in the past, and a periodic cormorant
population assessment at a decadal interval while encouraging the
Service to explore the efficacy of existing monitoring programs.
Another State agency suggested commercial aquaculture facilities and
private landowners be required to report annually, at a minimum, and
noted that issuing annual permits provides accurate and timely
reporting to maintain compliance with permit provisions. Separately,
another State agency recommended that the Service provide detailed
criteria regarding the annual reporting requirements.
The Central Flyway Council opined that increased reporting
requirements and intensive monitoring of cormorant populations would be
difficult for many State wildlife agencies, given limited personnel and
budget constraints. One State agency in that flyway requested
clarification on how much potential new monitoring or reporting a State
would have to agree to, and the amount of time and resources that would
need to be invested.
Both the Pacific Flyway Council and a State agency in that flyway
stressed the importance that any expectation of monitoring and
reporting needed to implement the proposed new permit system must be
backed with a robust program of Federal funding to support the duration
of the monitoring activities. The Pacific Flyway Council also noted a
concern that the costs of permit management, reporting, and monitoring
will detract from other species conservation work, which is already
difficult due to limited funding. A separate State agency commented
with concern for the burden that the proposed permit will place on
States to develop and maintain programs to manage allowable take (i.e.,
population monitoring, permitting, and reporting). One private entity
questioned whether the requirement to provide information to evaluate
control efforts could become so complex and cumbersome that it curtails
action, citing the information collected for a considerable amount of
time by State agency wildlife professionals.
A State agency requested clarification of the Service's
expectations with regards to permitting, monitoring, and reporting
requirements on waters managed by private landowners. Another State
agency noted that it does not desire the authority to issue take
permits to other entities within their State to address aquaculture
conflicts, property damage, nuisance, or human safety issues. Another
State agency noted that the renewal of subpermittee authority would be
conditional on timely and accurate reporting, and recommended that
steps be taken to ensure data collection is timely, accurate, and
complete by all persons authorized to take cormorants (offering a
comparison to the Resident Canada Goose Nest and Egg Depredation Order
under 50 CFR 21.50 (OMB Control No. 1018-0146)).
Separately, one State agency requested that the Service provide
standardized population monitoring and reporting protocols needed to
evaluate impacts of authorized take on cormorant populations, as well
as criteria to be used to assess the cost and benefit of take on wild
fish stocks, aquaculture facilities, human health and safety, property,
and species of conservation concern. Another State noted their
assumption that, under a special permit, the prioritization of issued
take ultimately would be the responsibility of the respective State
fish and wildlife agencies or Tribes to manage accordingly, including
reporting. Yet another State opined that the reporting requirements for
the proposed permit system are unclear.
Agency Response to Reporting Requirements Concerns: The Service
will require, as part of receiving a permit, an annual report that must
be submitted by January 31st each year. The annual report requires the
permittee to include location of take (GPS coordinates in decimal
degrees), purpose of take (aquaculture, health, threatened or
endangered species, property, stocked fish), nonlethal methods
implemented, month taken, quantity taken (birds killed, nests oiled/
addled, and nests destroyed), and disposition of carcass (e.g., buried,
incinerated, donated).
Given the controversial nature of this issue and the novel approach
toward reducing conflicts, the Service concludes annual permits and
annual reporting by permittees are appropriate at this time. As we gain
experience with this program, the Service could consider permits of
longer duration, but additional NEPA analyses may be required for any
additional rulemaking procedures or amendments.
Take of cormorants will be compiled annually and information can be
made available if needed prior to completion of the 5-year reports.
However, as with any bird population monitoring efforts, variation
throughout the year, due largely to sampling error, can be quite high.
The Service concludes that assessing population status over a 5-year
period will avoid inappropriate decisions based on observed, but not
necessarily real, annual changes in abundance, and still be sufficient
to ensure sustainable populations of cormorants.
The new special permit would not apply to private landowners.
Private property owners may apply for a depredation permit (50 CFR
21.41) to the Service to alleviate damage to some types of property
(i.e., buildings and infrastructure, vehicles and equipment, and some
types of vegetation).
Designation of Subpermittees
Several commenters requested clarity about who a State or Tribe may
delegate authority to as a subpermittee under a new permit to conduct
take of cormorants. One State recommended that the Service allow
willing States and Tribes to issue permits to subpermittees, with the
subpermittee's renewal authority conditional on timely and accurate
reporting. Another State agency requested clarity on the level of
authority given by a State or Tribe to carry out lethal take, asking if
this
[[Page 85552]]
would be limited to only State agency personnel, or other private and
public entities or persons as authorized by States. For example, one
State commented that the language related to subpermittees should read,
``Subpermittees may be, but are not limited to, employees of state and
tribal wildlife agencies, Wildlife Services employees, and employees of
federal and state agencies or private companies specializing in
wildlife damage abatement.'' Some commenters opined that the Service
should define the level of training and control needed to ensure people
operate in a humane, accountable, and lawful manner.
Agency Response to Designation of Subpermittees Concerns: The
Service agrees with the need to provide further clarification of the
role that subpermittees may play, and to identify who can operate as a
subpermittee pursuant to a permit issued under this rule. The final
rule states that subpermittees ``can be employees of State and Tribal
wildlife agencies, USDA Wildlife Services employees, and employees of
Federal and State agencies or private companies specializing in
wildlife damage abatement and under direct control of the permittee.''
The Service is limiting subpermittees to these entities because in some
areas other cormorant species and look-alike species (e.g., anhingas)
can overlap in specific ranges and habitats with double-crested
cormorants. Professional biologists and trained experts are more likely
to be able to differentiate between these species and reduce the
possibility of taking nontarget species.
There are many levels of training that vary widely across the
country that may be appropriate. The Service will not identify specific
training requirements necessary to become a subpermittee. Rather, we
expect that the categories of individuals listed above will have the
skills, or could readily acquire the skills, to accurately identify
double-crested cormorants and differentiate other look-alike species to
avoid taking them. Further, by virtue of their positions, we expect
that all such employees will operate in a humane, accountable, and
lawful manner. The authority to take double-crested cormorants
conferred by the permit is given to the State or Tribal fish and
wildlife agency, and those agencies may designate permittees that the
Service approves on the application for the permit. To provide added
clarity, the Service included as part of the application for a new
permit that permittees must agree that, ``(e) Anyone taking birds under
this permit must be skilled in double-crested cormorant identification.
Nontarget take of any other avian species must be reported to your
permit office with your annual report including species, number, and
description of events.'' The application for this permit can be found
in Appendix H of the FEIS, and we cross-reference the FEIS for
additional comments and responses on this issue not directly related to
this rulemaking. Further, any birds incidentally taken would be
reported by States and Tribes, and the Service would use this data to
better track accidental take of these species when take of cormorants
occurs, and recommend appropriate actions such as additional training
of personnel, or avoiding areas where there is a high concentration of
non-target species in the area.
General Comments
Some entities commented that the Service would need to ensure that
current depredation permits for take of cormorants continue to be
issued under 50 CFR 21.41, as population levels allow. These commenters
stated that depredation permits are essential to manage the effects of
increased double-crested cormorant populations on migrating salmon and
steelhead smolts. One State agency requested clarity on which entities
remain eligible to receive individual depredation permits for those
States that do choose to obtain a special statewide depredation permit,
noting that they do not desire the authority to issue take permits to
other entities within their State to address aquaculture conflicts,
property damage, nuisance, or human safety issues. This particular
State agency requested the preferred alternative include a specific
statement affirming the continued availability of individual
depredation permits for entities within States that choose to obtain a
special depredation permit. Another State agency requested
clarification on how the Service will account for the illegal take of
cormorants. This State agency also inquired as to whether they should
apply for and receive 150 permits. They ask if it is possible for the
Service to consider a higher level of take (150 permits) under
Alternative E for hatcheries to correspond to the higher level of
authorized take, or the maximum allowable take, in Alternatives A-D.
This State asserts that they operate four State-owned hatcheries, where
fingerlings are raised for stocking public water bodies for the
enjoyment and recreational use of fisheries resources by the public.
The current number of depredation permits allocated to this State
appears to be helpful in reducing fingerling depredation and pond liner
damage, but not adequate to prevent still significant losses to
production and facilities. Therefore, this particular State requested
150 cormorant depredation permits, regardless of the management
alternative selected, to better manage cormorant populations at its
State hatchery facilities.
Some commenters stated that the Service failed to address the
cumulative impacts of climate change and other cormorant take, and
should therefore evaluate the cumulative impact of other cormorant
take, such as the planned hunting seasons in Ontario, Canada.
Agency Response to General Comments Concerns: Individual permits
would still be available to address some depredation activities.
However, conflicts associated with cormorants and wild or publicly
stocked fish would only be addressed through the special cormorant
permit, which would only be available to fish and wildlife agencies of
States and federally recognized Tribes in the contiguous 48 States.
Entities other than private landowners who want to reduce depredations
of fish in their private ponds may be eligible to apply for permits
other than the special cormorant permit.
The PTL estimate considers all forms of take and is conservative in
that the lower 60 percent confidence interval of the PTL was used.
However, in the NEPA analyses where comparisons are made to historical
take data, historical take only included legal take. The Service was
not able to include data relating to any potential illegal take of
cormorants in the PTL. This is because the Service does not have the
ability to adequately track where and when individuals might illegally
take cormorants. If in the future the Service is sufficiently able to
track and monitor illegal take across the broad geographic scale
represented in the PTL, then this data can be counted against PTL. If
illegal take is substantial, however, then this factor should also
become an enforcement issue in the management of cormorants.
The Service encourages the State and Tribal agencies to seek a new
permit under this final rule to accomplish its goals, as that permit
would be less costly, but also sufficient for a State or Tribe to meet
its needs. Permits under this rule will provide the flexibility to
State and Tribal fish and wildlife agencies to address conflicts
related to the following issues: Wild and publicly stocked fish managed
by State fish and wildlife agencies or federally recognized Tribes;
Tribal- and State-owned or operated aquaculture facilities (including
hatcheries); human health
[[Page 85553]]
and safety; State- or Tribal-owned property and assets; and threatened
and endangered species or those listed as Species of Greatest
Conservation Need in State Wildlife Action Plans. If a State or Tribe
determines a permit under this rule would meet their needs, upon
receiving the permit, that State or Tribe would have the discretion to
determine whether, when, where, and for which of the above purposes
they conduct lethal take within limits and allocations set by the
Service.
The Service used population data from Canada in the subpopulation
estimates, and will work closely with Ontario on population monitoring
and obtain take data and incorporate it into our assessments. Our DEIS
discussed climate change, and we noted that there remains some
uncertainty regarding effects of climate change, but the Service can
estimate that there will likely be less water available in the Great
Basin, and cormorant colonies may shift locations. Cormorants may be
able to stay and forage longer in northern portions of the Interior and
Atlantic subpopulations, and it is possible that breeding seasons may
lengthen. The Service makes decisions given this uncertainty by using
the data and modeling available and adapting through time as change
occurs. The planned 5-year assessment will address this issue.
Impact on Small Businesses
The U.S. Small Business Administration (SBA) commented in support
of an aquaculture depredation order in combination with a new special
permit for States and Tribes. SBA stated that, prior to the previous
aquaculture depredation order being vacated, commercial aquaculture
producers were able to manage cormorant populations while not exceeding
the allowable take limits established by the Service. SBA further
stated that this rulemaking has the potential to increase costs to
small private aquaculture facilities that are not otherwise able to
employ effective methods of controlling cormorant damage and that have
seen and may well continue to see an increase in cormorant feeding. SBA
further stated that individual depredation permit applications are a
significant burden for small businesses, citing lower take limits for
cormorants and complications among Service regions in issuing permits.
SBA stated that an aquaculture depredation order would eliminate these
burdensome and time-consuming application requirements. SBA also
cautioned that the Service should not require documentation of revenue
increases as part of any new aquaculture depredation order, as this
would result in additional administrative costs associated with
recordkeeping. SBA recommended that the Service consider other sources
of data, and methods of data collection other than reporting increased
revenue data, to measure the success of conflict management programs.
SBA urged the Service to consult with industry directly to devise a
cost-effective and more accurate method of data collection.
Agency Response to Impact on Small Businesses Concerns: This
collection associated with the new permit affects only State and Tribal
governments, and does not impact small businesses. Commercial entities,
such as privately managed aquaculture facilities, would continue to
have the opportunity to apply for individual depredation permits to
address site-specific conflicts. Information collection requirements
associated with individual depredation permits are outside the scope of
this rulemaking.
In response to comments about a new aquaculture depredation order,
we reference our response above. The Service must be capable of
tracking take by all authorization mechanisms available throughout the
year. Presently, however, the Service does not have the necessary
process or resources to adequately monitor take under any new
depredation order. However, the Service established a new, higher
threshold for annual maximum allowable take using the most recent
biological information. While the Service is best equipped to
accurately monitor the authorized and actual take of cormorants
throughout the year under preferred Alternative A (the new State and
Tribal permit in this final rule), a higher threshold for annual take
will still yield benefits to the aquaculture industry and others in
need of individual depredation permits. These benefits result from
indirect effects on cormorant populations from a higher threshold of
authorized take, and the resulting lower cormorant populations
projected in the EIS. The new special cormorant permit would be
optional and available to State and Tribal fish and wildlife agencies
in the 48 contiguous States to manage conflicts specifically associated
with cormorants. This permit would provide State wildlife management
agencies and Tribes flexibility within predefined guidelines to address
conflicts caused by cormorants within their jurisdictions. The new
permit coupled with the continued use of individual depredation permits
for commercial aquaculture producers would provide the accountability
and flexibility to manage cormorants while ensuring populations are
managed sustainably and take is authorized in an equitable fashion
across multiple conflicts.
Comments Requested
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) How the agency might minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of response.
Written comments and recommendations for the information collection
should be sent within 30 days of publication of this document to
www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function. Please provide a
copy of your comments to the Service Information Collection Clearance
Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB
(JAO/3W), Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov
(email). Please reference OMB Control Number 1018-0175 in the subject
line of your comments.
National Environmental Policy Act
We evaluated this regulation in accordance with the criteria of
NEPA, the Department of the Interior regulations on implementation of
NEPA (43 CFR 46.10-46.450), and the Department of the Interior Manual
(516 DM 8). On June 5, 2020, the Service published a DEIS, and the
comment period ended on July 20, 2020. You may review the comments
received at the Federal eRulemaking Portal: http://www.regulations.gov
in Docket No. FWS-HQ-MB-2019-0103. We considered comments on the DEIS
when developing this final rule, and a summary of the comments is
included in the FEIS associated with this
[[Page 85554]]
rulemaking action. The Service initiated development of the FEIS prior
to the establishment of updated Council on Environmental Quality
regulations on September 14, 2020, and, therefore, the FEIS is written
to comply with the previous regulations. You may review the DEIS, FEIS,
and the comments received at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103. We will issue a
record of decision no sooner than 30 days after the Environmental
Protection Agency publishes notice of the FEIS in the Federal Register.
Compliance With Endangered Species Act Requirements
Section 7 of the ESA (16 U.S.C. 1531-44) 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
Act'' (16 U.S.C. 1536(a)(1)). It further states that ``[e]ach Federal
agency shall, in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or carried out by
such agency . . . 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.'' We have
complied with provisions of the ESA as necessary to ensure that this
new regulation is not likely to jeopardize the continued existence of
any species designated as endangered or threatened or destroy or
adversely modify its critical habitat.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we have considered the possible
effects of this rule on federally recognized Indian Tribes. The
Department of the Interior strives to strengthen its government-to-
government relationship with Indian Tribes through a commitment to
consultation when appropriate and recognition of their right to self-
governance and Tribal sovereignty. We readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We evaluated this rule
under the criteria in Executive Order 13175 and under the Department's
Tribal consultation policy and have determined that this rule may have
a substantial direct effect on federally recognized Indian Tribes.
In February we held four public scoping webinars and then two
webinars only for Tribal members (February 19 and 27, 2020). We
provided the attendees of all the webinars with information on the
following topics regarding cormorants, their management, and the
regulations process: (1) Biology and population changes; (2) background
of the issues and previous management approaches; (3) current
management of conflicts; (4) proposed approaches and alternatives; and
(5) the planning process for the NEPA analysis. We also informed
attendees that they could provide comments on the proposed actions and
the scope of the NEPA review via a website or by U.S. mail or hand-
delivery. Two Tribal entities provided comments, and they have been
addressed in this final rule. No formal requests for government-to-
government consultations were submitted in response to this rulemaking.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This rule is not a
significant regulatory action under E.O. 13211 and would not
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action. No Statement of Energy
Effects is required.
Literature Cited
Atlantic Flyway Council and Mississippi Flyway Council. 2010.
Atlantic and Mississippi Flyways double-crested cormorant management
plan. Cormorant ad hoc committees, Atlantic and Mississippi Flyway
Councils, Nongame Migratory Bird Technical Sections.
Hunter, W.C., W. Golder, S. Melvin, and J. Wheeler. 2006. Southeast
United States Regional Waterbird Plan. Waterbird Conservation for
the Americas. Available at: http://www.waterbirdconservation.org/.
Johnson, F.A., M.A.H. Walters, and G.S. Boomer. 2012. Allowable
levels of take for the trade in Nearctic songbirds. Ecological
Applications 22:1114-1130.
NOAA Fisheries. 2014. Endangered Species Act Section 7(a)(2)
Supplemental Biological Opinion: Consultation on remand for
operation of the Federal Columbia River Power System. NOAA Fisheries
Log Number NWR-2013-9562. Available at: https://www.fisheries.noaa.gov/resource/document/consultation-remand-operation-federal-columbia-river-power-system.
Pacific Flyway Council. 2012. Pacific Flyway Plan: A framework for
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Research Center--Bird Population Studies. U.S. Department of the
Interior. 2020. https://www.mbr-pwrc.usgs.gov/.
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mortality of cetaceans and pinnipeds. Marine Mammal Science 14:1-37.
Zimmerman, G.S., B.A. Millsap, M.L. Avery, J.R. Sauer, M.C. Runge,
and K.D. Richkus. 2019. Allowable take of black vultures in the
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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 hereby amend part 21
of subchapter B, chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
[[Page 85555]]
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. Add Sec. 21.28 to read as follows:
Sec. 21.28 Special double-crested cormorant permit.
(a) What is the special double-crested cormorant permit, and what
is its purpose? The special double-crested cormorant permit is a permit
issued by the Service to State or Tribal fish and wildlife agencies
that authorizes specific take activities that are normally prohibited
and are intended to relieve or prevent impacts from cormorants on lands
or in waters managed by those agencies and within those agencies'
jurisdiction. We will issue such a permit only when we determine that
an application submitted by a State or Tribal fish and wildlife agency
meets the requirements set forth in paragraph (c) of this section. The
take activities conducted under the permit are intended to reduce or
prevent conflicts associated with cormorants for the following
concerns:
(1) Depredation of fish at State- and Tribal-owned or operated
aquaculture facilities, including hatcheries;
(2) Realized and potential impacts to human health and safety
(e.g., collisions of airplanes with birds, fecal contamination of urban
wetlands);
(3) Impacts to threatened and endangered species (species listed
under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.), and species identified in State- or Tribal-specific legislation
as threatened or endangered) or those listed as Species of Greatest
Conservation Need in State Wildlife Action Plans, where take activities
to prevent depredation on aquatic Species of Greatest Conservation Need
may occur only in natural or public waters;
(4) Damage to State- or Tribal-owned property and assets; and
(5) Depredation of wild and publicly stocked fish managed by State
fish and wildlife agencies or federally recognized Tribes and
accessible to the public or all Tribal members.
(b) Who may receive a permit? Only State and Tribal fish and
wildlife agencies are eligible to receive a permit to undertake
management and take activities. Additionally, only employees or
subpermittees of a permitted State or Tribal fish and wildlife agency
designated on the permit application may undertake activities for
double-crested cormorants in accordance with the conditions specified
in the permit, conditions specified in 50 CFR part 13, other
requirements set forth in this section, and conditions specified in
paragraph (d) of this section.
(c) How does a State or Tribe apply for a permit? Any State or
federally recognized Tribal fish and wildlife agency wishing to obtain
a permit must submit an application (FWS Form 3-200-90) to the
appropriate Regional Director (see Sec. 13.11(b) of this subchapter)
containing the general information and certification required by Sec.
13.12(a) of this subchapter plus the following information:
(1) A description of your State's or Tribe's double-crested
cormorant conflicts, including physical location(s) and type of
conflict specified in paragraph (a) of this section;
(2) A detailed description of the nonlethal methods (i.e., active
hazing, passive hazing, habitat management, and changes in management
practices) you have and/or will implement and how take activities will
address one or more of the issues specified in paragraph (a) of this
section;
(3) The requested annual take of double-crested cormorants by life-
stage, including eggs and nests;
(4) A description of long-term plans to eliminate or significantly
reduce continued need to take double-crested cormorants;
(5) A statement indicating that the State or Tribe will inform and
brief all employees and subpermittees of the requirements of these
regulations and permit conditions;
(6) A list of all subpermittees who may conduct activities under
the special double-crested cormorant permit, including their names,
addresses, and telephone numbers; and
(7) The name and telephone number of the individual in your agency
who will oversee the double-crested cormorant management activities
authorized under the permit.
(d) What are the conditions of the permit? The special double-
crested cormorant permits are subject to the conditions specified in
the permit, the general conditions in 50 CFR part 13, and other
requirements set forth elsewhere in this section, and, unless otherwise
specifically authorized on the permit, the following conditions:
(1) What are the limitations on management and take activities?
Take of double-crested cormorants under this section may not exceed the
number authorized by the permit. In addition, permittees must adhere to
these provisions:
(i) States and Tribes must implement nonlethal methods, and
independently determine that those methods are insufficient at
resolving depredation conflicts, before taking double-crested
cormorants.
(ii) A permit under this section does not authorize the take of any
other migratory bird, including other species of cormorants; the take
of bald or golden eagles; or the take of any species federally listed
as threatened or endangered. If take of those species is likely to
occur, the permittee must obtain permits specifically authorizing that
take (i.e., permits under the Migratory Bird Treaty Act, Bald and
Golden Eagle Protection Act, or the Endangered Species Act of 1973, as
amended).
(iii) Methods of take for double-crested cormorants are at the
State's or Tribe's discretion. Take of double-crested cormorants may
occur by means of humane lethal take or active nest take. Lethal take
of adults during the breeding season should occur prior to hatching of
eggs. Adult birds may not be taken at any nest with young in it unless
the take of adults addresses a human health and safety issue. States
and Tribes and their subpermittees must make efforts to avoid
disturbance to co-nesting species. Lethal take may occur by firearm in
accordance with paragraph (d)(1)(iv) of this section or lethal or live
traps. Active nest take may occur by egg oiling or destruction of nest
material and contents (including viable eggs and chicks). Birds may be
euthanized by cervical dislocation, CO2 asphyxiation, or
other methods recommended by the American Veterinary Medical
Association. Only 100 percent corn oil, a substance exempted from
regulation by the Environmental Protection Agency under the Federal
Insecticide, Fungicide, and Rodenticide Act, may be used to oil eggs.
Other damage control methods of take consistent with accepted wildlife
damage management programs may be authorized.
(iv) Take using firearms (other than an air rifle or air pistol)
must use nontoxic shot or nontoxic bullets (see Sec. 20.21 of this
subchapter).
(v) Individuals conducting lethal take activities may not use
decoys, calls, or other devices or bait to lure birds within gun range.
(vi) States and Tribes applying for the first time must consult
with the U.S. Department of Agriculture's Wildlife Services for an
assessment of the appropriate level of take and provide recommendations
of short-term measures to provide relief from depredation and long-term
measures to help eliminate or significantly reduce conflicts. First-
time applicants must include a completed ``Form 37 Permit Review'' from
Wildlife Services.
[[Page 85556]]
Permittees need not submit a Form 37 for renewal applications unless
requested by the regional Migratory Bird Permit Office. Permittees
should continue working with Wildlife Services for review of conflict
management approaches and anticipated level of take, and to remain
current on effective strategies for nonlethal removal.
(2) When may a State or Tribe conduct management and control
activities? Actions may occur only when cormorants are committing or
are about to commit depredations. State and Tribal employees and
approved subpermittees may conduct management activities, including
lethal take, at any time of year.
(3) How must States and Tribes dispose of or utilize cormorants
taken under this permit? Unless otherwise authorized on your permit,
double-crested cormorants taken under this permit may be temporarily
possessed and transported for the purposes of disposal under the
regulations in this section. Double-crested cormorants must be disposed
of by donation to an entity authorized by permit or regulation to
receive migratory birds, such as a public museum or public institution
for scientific or educational purposes, or be destroyed completely by
burial or incineration in accordance with Federal, State, and/or local
laws and ordinances. States, Tribes, their employees, and subpermittees
may not sell, offer for sale, barter, or ship for the purpose of sale
or barter any double-crested cormorants taken under this section or
their parts or eggs. Birds may not be retained for personal use.
(4) How does the permit relate to existing State and Tribal law and
Federal land? Permits under this section do not authorize the take of
double-crested cormorants contrary to any State or Tribal laws or
regulations or on any Federal land without specific written
authorization by the responsible management agency. Prior to taking
double-crested cormorants pursuant to a permit under this section, the
permittee must obtain any permits required by State, Tribal, or other
Federal law or regulation.
(5) How will the Service ensure that persons conducting control
activities have the authority to do so? Any State or Tribal employee or
approved subpermittee authorized to carry out management and take
activities must have a copy of the permit and, if appropriate, the
subpermittee's designation in their possession when carrying out any
activities. The scope of this permit applies to lands or in waters
managed by State and Tribal fish and wildlife agencies and within those
agencies' jurisdictions. If a State or Tribe must enter private
property to access State and Tribal lands or waters where take is
approved in their permit, the State or Tribe must obtain authorization
from the private property owner, and require that the private property
owner or occupant provide free and unrestricted access. The private
property owner or occupant should also allow access at all reasonable
times, including during actual operations, to any Service special agent
or refuge officer, State or Tribal wildlife or deputy wildlife agent,
warden, protector, or other wildlife law enforcement officer on the
premises where they are, or were, conducting activities. Furthermore,
any State or Tribal employee or approved subpermittee conducting such
activities must promptly furnish information concerning such activities
to any such wildlife officer.
(6) What are the reporting requirements of the permit? Any State or
Tribal agency, when exercising the privileges of this permit, must keep
records of all activities, including those of subpermittees, carried
out under the authority of the special permit, including the number of
double-crested cormorants taken and their disposition. Any other
species of bird taken incidentally to double-crested cormorant
management activities under this permit, along with the numbers of
birds taken of those species, also must be reported. The State or Tribe
must submit an annual report (FWS Form 3-202-56) detailing activities
and purpose for take, including the date birds were taken, numbers, and
locations and life stage of birds, eggs, and nests taken and nonlethal
techniques utilized, by January 31 for activities conducted during the
preceding calendar year. The State or Tribe must submit the annual
report to the appropriate Migratory Bird Permit Office (see Sec. 2.2
of this subchapter).
(7) What are the limitations of this permit? The following
limitations apply:
(i) Nothing in this section applies to any Federal land within a
State's or Tribe's boundaries without written permission of the Federal
agency with jurisdiction.
(ii) We will issue permits only to State and Tribal fish and
wildlife agencies in the conterminous (i.e., contiguous 48) United
States.
(iii) States and Tribes may designate subpermittees who must
operate under the conditions of the permit. Subpermittees can be
employees of State and Tribal fish and wildlife agencies, U.S.
Department of Agriculture's Wildlife Services employees, employees of
other Federal, State, or Tribal agencies, or private companies licensed
to conduct wildlife damage abatement and under direct control of the
permittee.
(iv) A special double-crested cormorant permit issued or renewed
under the regulations in this section expires on the date designated on
the face of the permit unless it is amended or revoked, or at such time
we determine that conflicts with cormorants within the bounds of the
specific population of double-crested cormorants have been reduced to
the point where lethal take is no longer necessary. In all cases, the
term of the permit may not exceed 1 year from the date of issuance or
renewal.
(v) We reserve the right to suspend or revoke any permit, as
specified in Sec. Sec. 13.27 and 13.28 of this subchapter.
(e) What are the OMB information collection requirements of the
permit program? OMB has approved the information collection
requirements of the permit and assigned OMB Control Number 1018-0175.
Federal agencies may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. Direct comments regarding the
burden estimate or any other aspect of the information collection to
the Service's Information Collection Clearance Officer at the address
provided at 50 CFR 2.1(b).
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-28742 Filed 12-28-20; 8:45 am]
BILLING CODE 4333-15-P