[Federal Register: October 8, 2003 (Volume 68, Number 195)]
[Rules and Regulations]               
[Page 58022-58037]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AI39

Migratory Bird Permits; Regulations for Double-Crested Cormorant 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule and notice of record of decision.


SUMMARY: Increasing populations of the double-crested cormorant have 
caused biological and socioeconomic resource conflicts. In November 
2001, the U.S. Fish and Wildlife Service (Service or we) completed a 
Draft Environmental Impact Statement (DEIS) on double-crested cormorant 
management. In March 2003, a proposed rule was published to establish 
regulations to implement the DEIS proposed action, Alternative D. In 
August 2003, the notice of availability for a Final Environmental 
Impact Statement (FEIS) was published, followed by a 30-day comment 
period. This final rule sets forth regulations for implementing the 
FEIS preferred alternative, Alternative D (establishment of a public 
resource depredation order and revision of the aquaculture depredation 
order). It also provides responses to comments we received during the 
60-day public comment period on the proposed rule. The Record of 
Decision (ROD) is also published here.

DATES: This final rule will go into effect on November 7, 2003.

ADDRESSES: Comments can be mailed to the Division of Migratory Bird 
Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 
MBSP-4107, Arlington, Virginia 22203;

[[Page 58023]]
or emailed to cormorants@fws.gov; or faxed to 703/358-2272.

FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service (see 



    The Service is the Federal agency with primary responsibility for 
managing migratory birds. Our authority is based on the Migratory Bird 
Treaty Act (MBTA) (16 U.S.C. 703 et seq.), which implements conventions 
with Great Britain (for Canada), Mexico, Japan, and Russia. The double-
crested cormorant (DCCO) is Federally protected under the 1972 
amendment to the Convention for the Protection of Migratory Birds and 
Game Mammals, February 7, 1936, United States-Mexico, as amended, 50 
Stat. 1311, T.S. No. 912. The take of DCCOs is strictly prohibited 
except as authorized by regulations implementing the MBTA.
    As we stated in the proposed rule published in the Federal Register 
in March 2003, the authority for the regulations set forth in this rule 
is the MBTA. The MBTA authorizes the Secretary, subject to the 
provisions of, and in order to carry out the purposes of, the 
applicable conventions, to determine when, if at all, and by what means 
it is compatible with the terms of the conventions to allow the killing 
of migratory birds. DCCOs are covered under the terms of the Convention 
for the Protection of Migratory Birds and Game Mammals with Mexico. The 
DCCO is a nongame, noninsectivorous bird for which the applicable 
treaty does not impose specific prohibitions or requirements other than 
the overall purpose of protection so as not to be exterminated and to 
permit rational utilization for sport, food, commerce, and industry. In 
the FEIS for this action, the Service has considered all of the 
statutory factors as well as compatibility with the provisions of the 
convention with Mexico. The Russian convention (Convention between the 
United States of America and the Union of Soviet Socialist Republics 
Concerning the Conservation of Migratory Birds and Their Environment, 
concluded November 19, 1976) provides an authority to cover DCCOs even 
though not listed in the Appendix. To the extent we choose to apply the 
convention, it contains an exception from the prohibitions that may be 
made for the protection against injury to persons or property. We note, 
therefore, that there is no conflict between our responsibility for 
managing migratory birds and our selected action.
    Regulations governing the issuance of permits for migratory birds 
are contained in title 50, Code of Federal Regulations, parts 13 and 
21. Regulations in subpart D of part 21 deal specifically with the 
control of depredating birds. Section 21.41 outlines procedures for 
issuing depredation permits. Sections 21.43 through 21.47 deal with 
special depredation orders for migratory birds to address particular 
problems in specific geographical areas. Section 21.47 addresses DCCOs 
at aquaculture facilities.
    While the Service has the primary responsibility for regulating 
DCCO management, on-the-ground management activities are largely 
carried out by entities such as State fish and wildlife agencies, the 
Wildlife Services program of the U.S. Department of Agriculture Animal 
and Plant Health Inspection Service (APHIS/WS), and, in some cases, by 
private citizens. APHIS/WS was a cooperating agency in the development 
of the DEIS and FEIS. Additionally, States and Canadian provinces were 
involved through the International Association of Fish and Wildlife 
    On March 17, 2003 we published a proposed rule in the Federal 
Register (68 FR 12653). We solicited comments on the proposed rule 
until May 16, 2003. During that time, we received approximately 9,700 
letters, emails, and faxes. About 85 percent of these comments were 
opposed to the proposed action, the vast majority of which were driven 
by mass email/letter campaigns promoted by nongovernmental 
organizations. This final rule reflects consideration of comments 
received on the proposed rule. The final rule promulgates regulations 
to implement the selected action described in the FEIS. We published 
the notice of availability for the FEIS in the Federal Register on 
August 11, 2003 (68 FR 47603). Copies of the FEIS may be obtained by 
writing us (see ADDRESSES) or by downloading it from our Web site at 
http://migratorybirds.fws.gov/issues/cormorant/cormorant.html. The 
Wires et al. report ``Status of the double-crested cormorant in North 
America,'' mentioned in a Federal Register notice of November 8, 1999 
(64 FR 60828), may also be downloaded at http://migratorybirds.fws.gov/issues/cormorant/status.pdf
    The FEIS examined six management alternatives for addressing 
conflicts with DCCOs: (A) No Action, (B) Nonlethal Control, (C) 
Increased Local Damage Control, (D) Public Resource Depredation Order, 
(E) Regional Population Reduction, and (F) Regulated Hunting. The 
selected action in the FEIS is Alternative D, Public Resource 
Depredation Order. This alternative is intended to enhance the ability 
of resource agencies to deal with immediate, localized DCCO damages by 
giving them more management flexibility.
    To address DCCO populations from a broader and more coordinated 
perspective, a population objectives approach will likely need to be 
considered over the long term. In the future, if supported by 
biological evidence and appropriate monitoring resources, the Service 
may authorize management that focuses on setting and achieving regional 
population goals. At that time, a cormorant management plan will be 
developed. Until then, our strategy will continue to focus on 
alleviating localized damages.
    We acknowledge that there is a need for more information about 
DCCOs and their impacts on resources across a variety of ecological 
settings. We also recognize that more rigorous monitoring efforts would 
be helpful in thoroughly assessing the impacts of the selected action 
on DCCO populations. While DCCO populations are currently tracked by a 
number of regional and national surveys, the Service concurs with many 
reviewers of the proposed rule, and recognizes that better information 
on population status and trends is desirable. For this reason, 
consistent with program, Service, and Department goals and priorities 
and subject to available funds, the Service intends to use all 
reasonable means to implement an improved DCCO population monitoring 
program of sufficient rigor to detect meaningful population changes 
subsequent to implementation of this action. The Service's objective 
will be to use available resources to collect data that can be used to 
reassess the population status of DCCOs by 2009, in advance of a 
decision whether or not to extend the depredation orders. This 
assessment may involve a Service-sponsored technical workshop, with 
various agency and non-governmental representatives, to discuss optimum 
survey methodologies. Also as part of that assessment, we will compile 
and evaluate available data on population trends of other species of 
birds that nest or roost communally with DCCOs to determine if negative 
impacts might be occurring to these species.
    The Service has weighed these deficiencies against the costs of 
taking no action, and we believe it is prudent to move forward as 
outlined in this final

[[Page 58024]]

rule. In making a decision about whether or not to extend the 
depredation orders, the Service will review and consider all additional 
research that has been conducted that evaluates the effects of the 
proposed action on fish stocks and other resources. The Service 
strongly encourages all stakeholders to assist in gathering the needed 
data through well-designed scientific research. Our expectation is that 
the annual reports in the depredation orders, especially the monitoring 
and evaluation data associated with the public resource depredation 
order, will provide substantive increases in scientific and management 
knowledge of DCCOs and their impacts. We urge States, Tribes, and 
Federal agencies involved in DCCO control to, wherever possible, design 
monitoring programs to provide useful information on the effects of 
DCCO control on public resources. We also urge all relevant 
governmental and nongovernmental entities to work together, whenever 
possible, to coordinate research and management activities at the local 
and regional scale. In particular, the following needs exist: greater 
demographic information (age-specific survival/mortality, age at first 
breeding, reproductive output, and philopatry) for use in modeling to 
help predict population responses to management scenarios; region-wide 
surveys of DCCOs to document changes in breeding populations; 
assessments of DCCO-caused fish mortality in relation to other 
mortality factors at the local level; studies to examine mechanisms 
within fish populations that may buffer the effects of DCCO predation, 
including investigation of whether different fish life-stages or 
species complexes are differentially affected by DCCOs; studies to 
quantify the impacts of DCCOs on vegetation and other waterbirds; 
studies to determine how DCCO population processes respond to changes 
in population density resulting from control activities; and studies to 
address human dimensions of DCCO conflicts and possible solutions 
through education and outreach.
    The selected action establishes a public resource depredation order 
in 50 CFR 21.48 and amends 50 CFR 21.47, the aquaculture depredation 
order that was originally created in 1998. In the proposed rule, we 
presented draft regulations and opened a 60-day public comment period. 
Differences between this final rule and the proposed rule reflect both 
our attentiveness to public comments and our deference to agency 
expertise. The chart below highlights these changes.

          Proposed rule               Final rule         Justification
ADO \1\: Winter roost control     Winter roost        Public and agency
 authorized from October to        control             comments indicate
 March.                            authorized from     that DCCOs
                                   October to April    continue to
                                   [21.47(c)(2)].      congregate in
                                                       large numbers in
                                                       April and these
                                                       birds have a
                                                       major impact on
Both DOs \2\: Statement that      Same, plus          In accordance with
 take of any species protected     conservation        Section 7 of the
 by the Endangered Species Act     measures added      ESA, we completed
 (ESA) is not authorized.          [21.47(d)(8);       informal
                                   21.48(d)(8)].       consultation;
                                                       this led to
                                                       development of
                                                       measures to avoid
                                                       adverse effects
                                                       to any species
                                                       protected by the
Both DOs: General statement that  Added specific      For consistency's
 authority under depredation       suspension and      sake, we believe
 orders can be revoked.            revocation          it is important
                                   procedures          to have a
                                   [21.47(d)(10);      revocation/
                                   21.48(d)(13)].      suspension
                                                       process outlined.
Both DOs: OMB information         Added OMB approval  We received this
 collection control number not     number of 1018-     number in May
 specified.                        0121 and            2003, after
                                   expiration date     publication of
                                   [21.47(e);          proposed rule and
                                   21.48(e)].          comment period.
PRDO \3\: Recipients of           This requirement    The proposed rule
 donations of birds killed must    removed             would have been
 have a scientific collecting      [21.48(d)(6)(i)].   more stringent
 permit.                                               than what is
                                                       currently allowed
                                                       in 50 CFR
                                                       21.12(b) and we
                                                       do not consider
                                                       stricter rules
PRDO: Agencies must provide a     Added an advance    We wanted to
 one-time notice of their intent   notification        address concerns
 to act under the order.           requirement for     about there being
                                   take of 10% of a         for us to review,
                                   breeding colony     and even suspend,
                                   [21.48(d)(9)].      control actions
                                                       before they take
PRDO: Annual reporting period     Changed reporting   The State of New
 set at Sept. 1 to Aug. 31.        period to Oct. 1    York requested
                                   to Sept. 30         this change to
                                   [21.48(d)(11)].     better
                                                       accommodate fall
PRDO: Monitoring requirements     Changed the word    This section
 for population level activities.  ``monitor'' to      ensures that
                                   ``evaluate'';       agencies will
                                   added requirement   consider (and
                                   that data from      take action to
                                   this section be     avoid) impacts to
                                   included in         nontarget species
                                   annual report;      and will evaluate
                                   and removed         the effects of
                                   (11)(iii)           control actions
                                   [21.48(d)(12)].     at breeding
                                                       colonies, without
                                                       being cost-
\1\ Aquaculture Depredation Order.
\2\ Aquaculture and Public Resource Depredation Orders.
\3\ Public Resource Depredation Order.

Population Status of the Double-Crested Cormorant

    The information in this section is derived from the FEIS (to obtain 
a copy, see ADDRESSES). DCCOs are native to North America and range 
widely there. There are essentially five different breeding 
populations, variously described by different authors as: Alaska, 
Pacific Coast, Interior, Atlantic, and Southern (Hatch and Weseloh 
1999, Wires et al. 2001). The continental population is estimated at 2 
million birds (including breeders and nonbreeders). For the United 
States as a whole, according to Breeding Bird Survey (BBS) data, the 
breeding population of DCCOs increased at a statistically significant 
rate of approximately 7.5 percent per year from 1975-2002 (Sauer et al. 
2003). However, growth rates for the different breeding populations 
vary considerably from this average.
    Atlantic. Approximately 23 percent of the DCCO breeding population 
is found

[[Page 58025]]

in the Atlantic region (Tyson et al. 1999), which extends along the 
Atlantic coast from southern Newfoundland to New York City and Long 
Island (Wires et al. 2001). Atlantic DCCOs are migratory and occur with 
smaller numbers of great cormorants. From the early 1970s to the early 
1990s, the Atlantic population increased from about 25,000 pairs to 
96,000 pairs (Hatch 1995). While this population declined by 6.5 
percent overall in the early to mid-1990s, some colonies were still 
increasing during this period. The most recent estimate of the Atlantic 
population is at least 85,510 breeding pairs (Tyson et al. 1999).
    Interior. Nearly 70 percent of the DCCO breeding population is 
found in the Interior region (Tyson et al. 1999), which reaches across 
the prairie provinces of Canada, includes the Canadian and U.S. Great 
Lakes, and extends west of Minnesota to southwestern Idaho (Wires et 
al. 2001). Interior DCCOs are strongly migratory and, in the breeding 
months, are concentrated in the northern prairies, with the Canadian 
province of Manitoba hosting the largest number of breeding DCCOs in 
North America (Wires et al. 2001). Additionally, large numbers of 
Interior DCCOs nest on or around the Great Lakes (Hatch 1995, Wires et 
al. 2001). Since 1970, when 89 nests were counted during a severe 
pesticide-induced population decline (Weseloh et al. 1995), DCCO 
numbers have increased rapidly in the Great Lakes, with breeding 
surveys in 2000 estimating 115,000 nests there (Weseloh et al. 2002). 
From 1990 to 1997, the overall growth rate in the Interior region was 
estimated at 6 percent with the most dramatic increases occurring in 
Ontario, Michigan, and Wisconsin. The Interior population (including 
Canada) numbers is at least 256,212 breeding pairs (Tyson et al. 1999).
    Southern. The Southern region includes Alabama, Arkansas, Florida, 
Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South 
Carolina, Tennessee, and Texas (Wires et al. 2001). Most DCCOs in this 
region are winter migrants from the Interior and Atlantic regions; the 
number of these wintering birds has increased dramatically in recent 
years (Dolbeer 1991, Glahn and Stickley 1995, Jackson and Jackson 1995, 
Glahn et al. 2000). Surveys conducted by APHIS/WS biologists suggest 
that winter numbers in the delta region of Mississippi have increased 
by nearly 225 percent since the early 1990s (over 73,000 DCCOs were 
counted in the 2001-2002 winter surveys; G. Ellis, unpubl. data). 
Breeding DCCOs in this region are also on the rise, with some nesting 
occurrences representing first records and others recolonizations 
(Wires et al. 2001). Today, approximately 4 percent of the DCCO 
breeding population occurs in this region, numbering at least 13,604 
breeding pairs (Tyson et al. 1999).
    Pacific Coast and Alaska. Approximately 5-7 percent of North 
America's DCCOs are found in this population, which has approximately 
27,500 nesting pairs (including Mexico) according to Carter et al. 
(1995b) or at least 17,084 pairs (not including Mexico) according to 
Tyson et al. (1999). Carter et al. (1995) documented recent increases 
in California and Oregon, and declines in British Columbia, Washington, 
and Baja California. Tyson et al. (1999) did not consider Mexican 
populations and calculated a decline for the entire West Coast-Alaska 
region. In the past 20 years, the largest increases in the region have 
taken place in the Columbia River Estuary, where East Sand Island 
supports the largest active colony along the coast with 6,390 pairs in 
2000 (Carter et al. 1995b, Collis et al. 2000, Wires et al. 2001). 
Increases at East Sand Island coincided with declines in British 
Columbia, Washington, and locations in interior Oregon, and the rapid 
increase undoubtedly reflected some immigration from these other areas 
(Carter et al. 1995).

Impacts of Double-Crested Cormorants on Public Resources

    Fish. In order to fully understand fisheries impacts related to 
predation, DCCO diet must be evaluated in terms of the number of DCCOs 
in the area, the length of their residence in the area, and the size of 
the fish population of concern (Weseloh et al. 2002). While most, but 
not all, studies of cormorant diet have indicated that sport or other 
human-valued fish species do not make up high percentages of DCCO diet, 
conclusions about actual fisheries impacts cannot be based on diet 
studies alone. Nisbet (1995) referred to this as the ``body-count'' 
approach (i.e., counting the numbers of prey taken rather than 
examining the effects on prey populations) and noted that it is 
necessary to also ``consider functional relationships between predation 
and output parameters.''
    Stapanian (2002) observed that ``Rigorous, quantitative studies 
suggest that the effects of cormorants on specific fisheries appear to 
be due in part to scale and stocks of available prey.'' Indeed, 
negative impacts are typically very site-specific and thus DCCO-fish 
conflicts are most likely to occur on a localized scale. Even early 
cormorant researcher H.F. Lewis recognized that cormorants could be a 
local problem at some fishing areas (Milton et al. 1995). In sum, the 
following statements about DCCO feeding habits and fisheries impacts 
can be concluded with confidence from the available science: (1) DCCOs 
are generalist predators whose diet varies considerably between seasons 
and locations and tends to reflect fish species composition; (2) The 
present composition of cormorant diet appears to have been strongly 
influenced by human-induced changes in the natural balance of fish 
stocks; (3) ``Impact'' can occur at different scales, such that 
ecological effects on fish populations are not necessarily the same as 
effects on recreational or commercial catches, or vice versa; (4) 
Cormorant impact is generally most significant in artificial, highly 
managed situations; and (5) Because environmental and other conditions 
vary locally, the degree of conflicts with cormorants will vary 
    Research in New York's Oneida Lake and eastern Lake Ontario has 
examined data on DCCO diets and fish populations (walleye and yellow 
perch in Oneida Lake and smallmouth bass in Lake Ontario) and concluded 
that cormorant predation is likely a significant source of fish 
mortality that is negatively impacting recreational catch (Adams 1999, 
Rudstam 2000, Lantry et al. 1999). Based on these studies, the Service 
will allow the authorized agencies and Tribes acting under the public 
resource depredation order to determine whether a similar situation 
exists in their location, and undertake appropriate control actions to 
mitigate negative effects, if applicable.
    Other Birds. Weseloh et al. (2002) observed that nesting DCCOs 
could impact other colonial waterbirds in at least three ways: by DCCO 
presence limiting nest site availability, by DCCOs directly taking over 
nest sites, or by falling guano and nesting material from DCCO nests 
leading to the abandonment of nests below. Habitat destruction is 
another concern reported by biologists (USFWS 2001). The significance 
of DCCO-related effects on other birds varies with scale. While large-
scale impacts on regional or continental bird populations have not been 
documented (Cuthbert et al. 2002), there is evidence that species such 
as black-crowned night herons, common terns, and great egrets can be 
negatively impacted by DCCOs at a site-specific level (Jarvie et al. 
1999, Shieldcastle and Martin 1999, USFWS 2001, Weseloh et al. 2002). 
Biologists from several States and provinces have reported or expressed 
concern about impacts to other bird

[[Page 58026]]

species in relation to increased cormorant abundance (Wires et al. 
2001, USFWS 2001). Some biologists have also expressed concern about 
incidental impacts to co-nesting species caused by DCCO control efforts 
(both lethal and nonlethal). We believe that such impacts are 
preventable and easily mitigated to a level of insignificance. For 
example, New York biologists conducting DCCO control work in eastern 
Lake Ontario have successfully managed to avoid negative impacts to 
other species such as Caspian terns, herring gulls, and ring-billed 
gulls (USFWS 2003).
    Vegetation and Habitat. Cormorants destroy their nest trees by both 
chemical and physical means. Cormorant guano, or excrement, is highly 
acidic and kills ground vegetation and eventually the nest trees. In 
addition, cormorants damage vegetation by stripping leaves for nesting 
material and by breaking branches due to the combined weight of the 
birds and their nests. Vegetation and habitat destruction problems tend 
to be localized in nature. For example, resource professionals from the 
Great Lakes region are concerned about loss of plant diversity 
associated with increasing cormorant numbers at some breeding sites 
(Weseloh and Ewins 1994, Moore et al. 1995, Lemmon et al. 1994, 
B[eacute]dard et al. 1995, Shieldcastle and Martin 1999).
    Aquaculture. Cormorant depredation at commercial aquaculture 
facilities, particularly those in the southern catfish-producing 
region, remains economically significant. DCCOs move extensively within 
the lower Mississippi valley during the winter months (Dolbeer 1990). 
In the delta region of Mississippi, cormorants have been found to 
forage relatively close to their night roosting locations with most 
birds traveling an average distance of less than 20 km from their night 
roosting locations to their day roosts (King et al. 1995). Cormorants 
that use day roosts within the catfish-producing regions of the delta 
typically forage at aquaculture facilities, and USDA researchers have 
found that as much as 75 percent of the diet of DCCOs in these areas 
consists of catfish (Glahn et al. 1999). Losses from cormorant 
predation on fingerling catfish in the delta region of Mississippi have 
been estimated at approximately 49 million fingerlings each winter, 
valued at $5 million. Researchers have estimated the value of catfish 
at harvest to be about 5 times more than the replacement cost of 
fingerlings, placing the total value of catfish consumed by DCCOs at 
approximately $25 million (Glahn et al. 2000). Total sales of catfish 
growers in Mississippi amounted to $261 million in 2001 (USDA-NASS 
    Hatcheries. DCCO impacts to hatcheries are related to predation, 
stress, disease, and financial losses to both hatcheries and recipients 
of hatchery stock. Hatchery fish may be stressed by the presence of 
DCCOs, wounds caused by unsuccessful attacks, and noisemakers used to 
scare away DCCOs. This stress can lead to a decrease in growth factors 
as feeding intensity decreases. Additionally, disease and parasites can 
be spread more easily by the presence of fish-eating birds. State and 
Federal hatchery managers, particularly in the upper midwest (e.g., 
Wisconsin, Michigan) and the south (e.g., Arizona, Louisiana, Oklahoma, 
Texas), have reported significant depredation problems at hatcheries 
(USFWS 2001). Currently, Director's Order No. 27, ``Issuance of Permits 
to Kill Depredating Migratory Birds at Fish Cultural Facilities,'' 
dictates that ``kill permits [for fish-eating birds] will be issued for 
use at public facilities only when it has been demonstrated that an 
emergency or near emergency exists and an [APHIS/WS] official certifies 
that all other deterrence devices and management practices have 
failed.'' The two depredation orders that we are proposing would 
supersede this Director's Order (for DCCOs only) by giving managers at 
State, Federal, and Tribal fish hatcheries more authority to control 
DCCOs to protect fish stock.

Environmental Consequences of Action

    We analyzed our action in the FEIS. Our environmental analysis 
indicates that the action will cause the estimated take of <160,000 
DCCOs, which is not predicted to have a significant negative impact on 
regional or continental DCCO populations; will cause localized 
disturbances to other birds but these can be minimized by taking 
preventive measures, leading to the action having beneficial effects 
overall; will help reduce localized fishery and vegetation impacts; 
will not adversely affect any Federally listed species; is likely to 
help reduce localized water quality impacts; will help reduce 
depredation of aquaculture and hatchery stock; is not likely to 
significantly benefit recreational fishing economies or commercial 
fishing; may indirectly reduce property damages; and will have variable 
effects on existence and aesthetic values, depending on perspective.


    A complete list of citation references is available upon request 
from the Division of Migratory Bird Management (see ADDRESSES).

Responses to Significant Comments

    During the public comment period on the proposed rule, we received 
approximately 9,700 emails, letters, and faxes. We provide our 
responses to significant comments here.
    Comment 1: The Service should protect, not kill, DCCOs.
    Service Response: In the wildlife management field, the control of 
birds through the use of humane, but lethal, techniques can be an 
effective means of alleviating resource damages, preventing further 
damages, and/or enhancing nonlethal techniques. It would be unrealistic 
and overly restrictive to limit a resource manager's damage management 
methods to nonlethal techniques, even if ``nonlethal'' included nest 
destruction and/or egg oiling. Lethal control techniques are an 
important, and in many cases necessary, part of a resource manager's 
``tool box.''
    Comment 2: States and other agencies don't have sufficient 
resources to effectively control DCCOs.
    Service Response: Agencies will need to decide whether or not 
cormorant management is a high enough priority for them to justify 
committing resources to it. We have tried to keep reporting and 
evaluation requirements such that they are unlikely to be cost 
prohibitive. We have also allowed agencies to designate ``agents'' to 
act under the orders. Our budget does not currently allow us to provide 
financial assistance to States and other agencies for cormorant 
    Comment 3: The Service needs to manage DCCOs through a coordinated, 
regional population objectives approach.
    Service Response: The selected action, Alternative D, in no way 
precludes regional coordination or consideration of population 
objectives, despite being chiefly a localized damage control approach. 
We are keeping the option open of taking this approach in the future, 
given greater biological information and the necessary funding.
    Comment 4: The Service needs to reduce overall DCCO populations.
    Service Response: At this time, we believe that the evidence better 
supports Alternative D, a localized damage control strategy rather than 
Alternative E, a largescale population reduction strategy. While many 
stakeholders portray cormorant conflicts as being a simple 
overabundance problem whose solution is population reduction, that is 
not clearly the case. That is, it is unclear whether fewer cormorants 

[[Page 58027]]

actually mean fewer problems (since sometimes distribution is as 
important as number in determining impacts), what the necessary scale 
of control would be, and whether or not that scale of control is 
biologically, socially, and economically feasible.
    Comment 5: States should be granted full authority to control DCCOs 
as needed.
    Service Response: Under the MBTA, we have the ultimate 
responsibility for cormorant management. While we can grant States and 
other agencies increased authority, giving them ``full authority'' 
without any limitations and requirements would abdicate our 
    Comment 6: The final rule should authorize the use of all effective 
DCCO control methods at aquaculture facilities.
    Service Response: The final rule authorizes shooting, which is 
considered very effective, to be used at aquaculture facilities. There 
is no evidence of the need for other techniques to be used.
    Comment 7: The Service needs to more fully address other causes of 
fish depletion.
    Service Response: We recognize that factors other than DCCOs 
contribute to resource impacts such as fishery declines. However, an 
exhaustive and comprehensive analysis of these myriad factors is 
outside the scope of the EIS. Our focus is chiefly on addressing 
conflicts caused by cormorants and then attempting to manage DCCOs, or 
the resources themselves, to alleviate those conflicts.
    Comment 8: There should be a hunting season on DCCOs.
    Service Response: While we recognize the validity of hunting as a 
wildlife management tool, we believe that the risks associated with it 
outweigh any potential benefits. We are gravely concerned about the 
negative public perception that would arise from authorizing hunting of 
a bird with little consumptive (or ``table'') value. While it is true 
that this has been done in the past for other species (e.g., crows), 
public attitudes are different today than they were 30 years ago when 
those decisions were made. Additionally, a number of hunters commented 
that they did not support hunting as a means of cormorant control. 
Therefore, it is our position that hunting is not, on the whole, a 
suitable technique for reducing cormorant damages.
    Comment 9: The Service should add Montana and New Hampshire to the 
public resource depredation order.
    Service Response: We determined that the most crucial States to 
include in the public resource depredation order were those States with 
DCCOs from the increasing Interior and Southern populations or States 
affected by those populations (e.g., those with high numbers of 
migrating birds). Other States with cormorant conflicts are not 
precluded from cormorant control but would have to obtain depredation 
    Comment 10: The Service should remove DCCOs from MBTA protection.
    Service Response: In our view, this is not a ``reasonable 
alternative.'' DCCOs have been protected under the MBTA since 1972. 
Removing DCCOs from MBTA protection would not only be contrary to the 
intent and purpose of the original treaty, but would require amending 
it, a process involving lengthy negotiations and approval of the U.S. 
Senate and President. Since DCCOs are protected by family 
(Phalacrocoracidae) rather than by species, the end result could be the 
loss of protection for all North American cormorant species in addition 
to that of DCCOs. At this time, there is adequate authority for 
managing cormorant conflicts within the context of their MBTA 
protection and, thus, we believe the suggestion to remove DCCOs from 
MBTA protection is not practical, necessary, or in the best interest of 
the migratory bird resource.
    Comment 11: Private landowners should be allowed to control DCCOs 
on their lands.
    Service Response: The take of DCCOs and other migratory birds is 
regulated by the MBTA and, in most cases, requires a Federal permit. 
Under the aquaculture depredation order, private commercial aquaculture 
producers in 13 States are allowed to control DCCOs on their fish farms 
without a Federal permit. However, all other individuals who experience 
damages to private resources must contact the appropriate Service 
Regional Migratory Bird Permit Office for a depredation permit. There 
is not sufficient justification for authorizing ``private landowners'' 
in general to take DCCOs without a Federal permit.
    Comment 12: The proposed action will be more effective if agencies 
coordinate with each other.
    Service Response: Yes, this is true. While agencies are not 
required under the public resource depredation order to coordinate with 
each other, they are entirely free to do so.
    Comment 13: Humaneness and the use of nonlethal methods should be 
    Service Response: Wherever feasible, we have required the use of 
nonlethal methods before killing is allowed. All authorized control 
techniques for killing birds outside of the egg are approved by the 
American Veterinary Medical Association as being humane for the 
euthanization of birds.
    Comment 14: The Service needs to better educate the public about 
    Service Response: We have prepared fact sheets for public 
distribution. Information about DCCOs is available at our Web site 
http://migratorybirds.fws.gov/issues/cormorant/cormorant.html. Our 
intention is to distribute fact sheets on the depredation orders in the 
near future. Beyond DCCOs, we participate in numerous outreach 
activities around the nation to increase public awareness about the 
importance of migratory birds and other Federal trust species.
    Comment 15: The Service needs to issue permits to allow DCCOs to be 
shot legally at anytime.
    Service Response: The authorization of virtually unregulated 
shooting of DCCOs would clearly not be a fulfillment of our 
responsibilities under the MBTA, since it could lead to extermination 
of the species. We can only allow take under appropriately adopted 
regulations that are consistent with our obligations and the relevant 
treaties. The depredation orders issued in this rulemaking only 
authorize take of DCCOs in certain locations and timeframes, and by 
certain agencies, to ensure this take is consistent with the purpose 
for which the depredation order was established.
    Comment 16: DCCOs are being scapegoated for fishery declines.
    Service Response: The Service recognizes that many factors other 
than DCCOs can contribute to fishery declines. However, studies have 
shown that in some cases cormorants are a significant contributing 
factor to these declines and therefore we believe that DCCO management, 
where there is evidence of real conflicts, is likely to have beneficial 
    Comment 17: The Service is dumping the burden of DCCO control on 
the States; the Service should take care of the DCCO problem since they 
created it.
    Service Response: The public resource depredation order is not a 
requirement being forced upon the States (or any other agency). The 
decision ultimately lies with individual agencies to choose whether or 
not to use the authority granted to them by the public resource 
depredation order. As we were considering options for addressing DCCO 
conflicts more effectively, it became clear that, since many conflicts 
tend to be localized in nature, a sensible and flexible solution was to 
allow local agencies more authority in deciding when to control 
cormorants. The

[[Page 58028]]

Service did not ``create'' the cormorant problem. Their population 
increases are due to many factors, most of which are entirely out of 
our control.
    Comment 18: The Service should provide financial support for DCCO 
    Service Response: We are currently unable to provide funding to 
other agencies under the public resource depredation order. However, in 
our Congressional budget request, we have asked for increased financial 
resources to implement the DCCO selected action. This figure 
specifically includes money that could be used in cooperative efforts 
with States and other agencies to conduct cormorant monitoring, 
research, and management.
    Comment 19: California and Wisconsin should be added to the 
aquaculture depredation order.
    Service Response: We do not believe that adding States to the 
aquaculture depredation order is necessary at this time. Private, 
commercial, freshwater aquaculture producers can obtain depredation 
permits to take DCCOs at their fish farms.
    Comment 20: The final rule should allow proactive measures to be 
taken so problems can be dealt with before they become serious.
    Service Response: The rule does allow for proactive measures to a 
certain extent. Both depredation orders allow DCCOs to be taken when 
``committing or about to commit depredations.'' The public resource 
depredation order takes this a step further by allowing for take of 
DCCOs to prevent depredations on public resources.
    Comment 21: Expansion of the aquaculture depredation order to 
authorize winter roost control should not be allowed.
    Service Response: The USDA report, ``A Science-Based Initiative to 
Manage Double-Crested Cormorant Damage to Southern Aquaculture'' notes 
that ``Coordinated and simultaneous harassment of cormorants can 
disperse them from night roosts and reduce damage at nearby catfish 
farms'' and cites three scientific studies that support this claim. It 
then concludes that shooting at roosts ``might enable farmers to reduce 
the number of birds on their farms significantly * * *'' Part of the 
logic behind this is that studies in the Mississippi Delta have shown 
that, while DCCOs move widely in general, they tend to exhibit high 
roost fidelity. This implies that shooting birds at roosts (where 
turnover is lower) is likely to be more effective at alleviating 
damages than shooting birds just at ponds (where turnover is higher).
    Comment 22: Actions in the proposed rule should not be allowed to 
take place.
    Service Response: Clearly, we and our cooperators, APHIS Wildlife 
Services disagree with this statement. The Record of Decision below 
explains our rationale.
    Comment 23: Hatcheries and fish farms should only be allowed to use 
nonlethal methods.
    Service Response: Shooting is a legitimate and effective technique 
for scaring away or killing depredating birds that, when done in a 
controlled manner, has no adverse impact on populations.
    Comment 24: Habitat damage caused by DCCOs has not been quantified 
or confirmed.
    Service Response: This statement is incorrect. Vegetation/habitat 
damage has been both confirmed and quantified. See the FEIS, section 
4.2.4, for more details.
    Comment 25: APHIS Wildlife Services should be granted full 
authority to manage migratory birds.
    Service Response: Under the MBTA and other laws, the Service has 
been delegated full responsibility for authorizing the take of and 
management of migratory bird populations. It would require an act of 
Congress to grant APHIS this authority. We do not support such action.
    Comment 26: The Service should take the lead in DCCO research.
    Service Response: The Migratory Bird Management Program monitors 
over 800 bird species in North America, including cormorants. However, 
we are not specifically a research agency. Our involvement in research 
consists mainly of providing financial assistance to researchers. In 
fewer cases, we are involved in direct research activities (such as 
color banding work being done in Lake Michigan by the USFWS Green Bay 
Field Office). We recognize that we have a leadership role to play in 
encouraging DCCO research.
    Comment 27: The proposed rule is not based on ``sound science.''
    Service Response: The Service recognizes the importance of resource 
management being science-based, and we will always defer to well-
designed scientific studies when such information is available. In this 
case, the Service relied on scientific studies as well as the best 
available biological knowledge to make its decision. Additionally, 
social, political, and economic factors contribute to the Service's 
decisions regarding whether or not to address a problem. Our position 
is that there is sufficient biological and socioeconomic justification 
to pursue a solution and sufficient biological information to meet the 
requirements of the MBTA and to support this rulemaking action.
    Comment 28: The Service is caving in to ``political pressure'' and 
``special interests.''
    Service Response: Given the fact that DCCO populations are not at 
risk in the areas where the depredation orders are authorized, and the 
Service is granted management flexibility under the MBTA, we believe it 
is appropriate to permit control of local DCCO populations. We have 
considered input from all stakeholders and believe that our decision 
reflects an appropriate balance of the public interest. Our goal in 
this and every other issue under our jurisdiction is to make informed, 
impartial decisions based on scientific and other considerations.
    Comment 29: The Service should stay with the No Action alternative.
    Service Response: In recent years, it has become clear from public 
and professional feedback that the status quo is not adequately 
resolving DCCO conflicts for many stakeholders. Furthermore, our 
environmental analysis indicated that conflicts were more likely to be 
resolved under other options than under Alternative A.
    Comment 30: The proposed rule is a wrongful abdication of the 
Service's MBTA responsibilities.
    Service Response: We disagree. Rather than an abdication of our 
responsibilities, this rule is an exercise of them. The public resource 
depredation order by no means puts an end to the Federal role in 
migratory bird management. The conservation of migratory bird 
populations is and will remain the Service's responsibility. Second, 
while the MBTA gives the Federal Government (as opposed to individual 
States) the chief responsibility for ensuring the conservation of 
migratory birds, this role does not preclude State involvement in 
management efforts. Bean (1983) described the Federal/State 
relationship as such (emphases added):

    It is clear that the Constitution, in its treaty, property, and 
commerce clauses, contains ample support for the development of a 
comprehensive body of federal wildlife law and that, to the extent 
such law conflicts with state law, it takes precedence over the 
latter. That narrow conclusion, however, does not automatically 
divest the states of any role in the regulation of wildlife or imply 
any preference for a particular allocation of responsibilities 
between the states and the federal government. It does affirm, 
however, that such an allocation can be designed without serious 
fear of constitutional hindrance. In designing such a system, for 
reasons of policy, pragmatism, and political comity, it is clear 
that the states will continue

[[Page 58029]]

to play an important role either as a result of Federal forbearance 
or through the creation of opportunities to share in the 
implementation of federal wildlife programs.

    Nowhere in the MBTA is the implementation of migratory bird 
management activities limited to the Federal Government. In fact, the 
statute specifically gives the Secretary of Interior the authority to 
determine when take of migratory birds may be allowed and to adopt 
regulations for this purpose. Additionally, we've ensured that this 
rule does not conflict with the Convention for the Protection of 
Migratory Birds and Game Mammals between the U.S. and Mexico (under 
which cormorants are protected). Finally, the depredation orders 
specifically limit the authority of non-Federal entities through the 
terms and conditions, including suspension and revocation procedures, 
advance notification requirements, and other restrictions. We would 
also note that we have the authority to amend this rule in the future 
if DCCO population status or other conditions demand it.
    Comment 31: The Service should more fully consider the economic 
value of DCCOs and activities associated with them such as birding and 
    Service Response: Assigning economic value to any wildlife species 
is difficult, and it is made all the more so when that species (such as 
the DCCO) is of little direct use to humans. However, this should not 
be read to imply that we have no regard for the indirect and intangible 
values of cormorants as a native part of the North American avifauna. 
As such, we stated clearly in the FEIS (p. 6) that DCCOs ``have 
inherent value regardless of their direct use to humans.'' A 
quantitative analysis of the economic benefits associated with DCCO was 
not possible at this time due to lack of studies in this area. The 
Service welcomes submission of such studies and will consider them in 
its analysis of future depredation orders, if applicable.
    Comment 32: In addition to the Service, States and APHIS Wildlife 
Service should have a say in revoking authority under the depredation 
    Service Response: Since, under the MBTA, the Service is the chief 
agency responsible for migratory bird management, it is our 
responsibility to decide when to revoke an agency's or individual's 
authority under the depredation orders. We do, however, give agencies a 
chance to appeal any revocation decisions.
    Comment 33: The public resource depredation order has no sound 
biological underpinning.
    Service Response: We have analyzed the available biological 
information in the FEIS. We believe our decision is supported by the 
information available at this time.
    Comment 34: Proposed rule contains too much ``red tape.''
    Service Response: We can understand that some people see the rule 
as having too many mandatory terms and conditions but these are 
necessary to ensure that the depredation orders are used for their 
stated purposes and to safeguard cormorant populations and other 
Federal trust species (e.g., other migratory birds and ESA-protected 
species). We tried to make the final rule as flexible as we could 
without compromising these factors.
    Comment 35: The public resource depredation order should be 
expanded to include damages to private property as well.
    Service Response: The public resource depredation order does not 
provide direct relief to private landowners experiencing DCCO 
conflicts. This is partly because such conflicts have not been well-
documented and partly because our practice is not to allow the take of 
migratory birds, a public resource, to alleviate minor damages to 
private resources (a similar example would be hawks that take privately 
owned game birds). While the biological and other justification for 
implementing the aquaculture and public resource depredation orders is 
strong, this is not necessarily the case for impacts to private 
resources. In cases of significant economic damage caused by DCCOs, 
private landowners may request a depredation permit from the 
appropriate Service Regional Migratory Bird Permit Office.
    Comment 36: Requiring monitoring at all control sites is too much 
of a burden; agencies should be able to use best available information.
    Service Response: We understand that strict monitoring requirements 
(i.e., population surveys) can be cost prohibitive and that, to a 
certain degree such monitoring is the Service's responsibility. It is 
important that agencies thoroughly evaluate the impacts of their 
management actions on DCCOs and, in some cases, on other resources, but 
we don't want these requirements to be so cost prohibitive that 
agencies are unable to take any action. Thus, in the final rule, we 
changed slightly the wording in Sec.  21.48(d)(12) to account for this.
    Comment 37: Monitoring should be required no less than once every 3 
    Service Response: The Service currently surveys or sponsors surveys 
of colonial waterbirds every 5-10 years. We believe that such frequency 
is adequate to ensure the long-term conservation of populations of 
DCCOs and other migratory birds.
    Comment 38: The winter roost control season should be extended to 
include April.
    Service Response: Since numbers of DCCOs at fish farms in the 
southern United States are known to peak in March and April, and to 
cause the most damage at that time, we added April to the months in 
which roost control can occur.
    Comment 39: Monitoring requirements under the public resource 
depredation order are too vague.
    Service Response: We may provide future guidelines for monitoring 
and evaluation for the benefit of other agencies. Until such guidelines 
are issued, the Service intends to rely on States, Tribes, and APHIS 
Wildlife Services to develop and implement protocols for evaluation of 
the effects of control actions.
    Comment 40: The proposal is likely to inflame relations between 
tribal and nontribal interests.
    Service Response: We have not seen sufficient evidence to evaluate 
whether or not this is indeed likely to occur.
    Comment 41: The aquaculture depredation order should be expanded to 
include all 48 States.
    Service Response: At this time, we do not believe the available 
evidence indicates that expansion beyond 13 States is necessary to 
further protect commercial aquaculture stock. The issuance of 
depredation permits for damage at private fish farms is a high priority 
and, therefore, it is generally a quick process for aquaculture 
producers to obtain a depredation permit through their Regional 
Migratory Bird Permit Office.
    Comment 42: Under the public resource depredation order, nonlethal 
techniques (e.g., harassment) should not be prescribed as a mandatory 
first step at multispecies breeding colonies because of the risk of 
    Service Response: We understand that harassment efforts can have 
secondary impacts on other colonially nesting birds and that is 
precisely why we did not require such efforts to be used first but 
rather stated that they be used ``when these are considered effective 
and practicable by the responsible Agency.'' We have since changed it 
to read that agencies ``should first utilize nonlethal control methods 
such as harassment and exclusion devices when these are considered 
effective and practicable and not harmful to other nesting birds.''

[[Page 58030]]

    Comment 43: The Service should issue guidelines making it clear 
what constitutes depredation on a public resource.
    Service Response: In developing the rule, USFWS wanted to maximize 
the flexibility of other agencies in determining what constitutes a 
public resource depredation. We understand that there are concerns 
about all of the ``what ifs'' that could conceivably take place in the 
absence of guidelines. We have made the purpose of the depredation 
orders clear, and we trust that our agency partners will not abuse 
their authority. If they do, we have the option to suspend or revoke 
their authority under the depredation order or to amend this rule.
    Comment 44: In the proposed rule, the only advanced requirement for 
agencies to initiate a control program is to submit a one-time notice 
to the Service. The rule does not require evaluation of potential 
impacts before control actions occur.
    Service Response: In the final rule, under the public resource 
depredation order, we have added a clause for advance notification of 
control actions that would take 10% or more of the birds in a breeding 
colony. This will allow us to review such actions for compliance with 
the purpose of the order and for impacts on overall cormorant 
populations. Inherent in the idea of this public resource depredation 
order is the Service's trust in the professionalism and conservation 
expertise of the States, Tribes, and APHIS Wildlife Services. At the 
same time, we will continue our role of providing oversight to ensure 
that the cumulative effects of activities under the depredation orders 
do not threaten the long-term conservation of DCCO populations.
    Comment 45: There is no process outlined for disputing control at a 
particular site. Control activities might come into conflict with 
ongoing research activities.
    Service Response: We do not intend to establish guidelines for 
dispute resolution or public notice of proposed control efforts. In 
some cases, NEPA analysis will be necessary and this will open the door 
for limited public input regarding specific management actions. We 
cannot guarantee that conflicts won't occur between control and 
research activities. Researchers will need to coordinate with local 
resource agencies (as, presumably, they are already doing) on this 
    Comment 46: The public resource depredation order should have a 
requirement for agencies to formally assess a control site before 
control is carried out to determine potential impacts to other species.
    Service Response: We do not intend to require formal assessment of 
control sites before control is conducted. The final rule requires that 
agencies must provide advance notification for certain actions, 
including information on the location and a description of the proposed 
control activity, specifying what public resources are being impacted, 
how many birds are likely to be taken and what approximate percentage 
they are of total DCCOs present, and which species of other birds are 
present. Additionally, in their annual reports, agencies must provide 
us with detailed information on why they're conducting control actions, 
including what they're doing to minimize effects on other species. 
Agencies don't have to report this information until after control 
actions have occurred, but we believe this process is sufficient.
    Comment 47: The proposed rule seems to violate the Service's 
mission to ``conserve, protect, and enhance fish, wildlife, and plants 
and their habitats for the continuing benefit of the American people.''
    Service Response: We do not in any way believe that the rule 
interferes with our conservation mission. Our responsibility is to 
ensure the long-term conservation of DCCO populations, and we will do 
so. A mission is a general statement of an agency's vision that, by its 
very nature, cannot encompass every potential management 
responsibility. We believe that managing certain species to address 
economic or social concerns, while ensuring the long-term conservation 
of such species is consistent with our mission.
    Comment 48: The Service has not established a process by which 
other agencies could set population goals.
    Service Response: At some point in the future, we may initiate a 
process for setting population goals. States and other agencies are 
fully capable of doing this on their own in local situations (DCCO 
management efforts on Little Galloo Island in New York are a good 
example). The public resource depredation order does not authorize 
regional population management, and, therefore, regional goals are not 
yet necessary.
    Comment 49: The return of an extirpated species to its former 
breeding range is a positive ecological event.
    Service Response: Weseloh et al. (1995, p48) wrote that DCCO 
population increases in North America ``have involved more than just a 
re-occupation of areas which experienced severe population declines or 
extirpations * * * previously unoccupied breeding and wintering areas 
have now been colonized'' and gave three citations supporting this 
hypothesis. Regardless of whether or not DCCOs had previously occurred 
in some parts of their range, we have to manage and conserve them by 
today's standards, not those of a hundred (or more) years ago. Our 
intent under the final rule is not to eliminate cormorants on a 
regional or national level but to manage them, even to the point of 
reducing local populations, so that there are fewer impacts to natural 
and human resources. We fully understand that fish-eating birds are a 
natural part of the ecosystem and that, within limits prescribed by the 
need to consider the bigger picture than ``ecological'' factors alone, 
population recovery is a positive event.
    Comment 50: Only State wildlife agencies should be allowed to take 
or permit the take of DCCOs at nesting colonies in their State.
    Service Response: Under the public resource depredation order, any 
agency that takes DCCOs must have landowner permission and, if 
required, a State permit to take DCCOs. We believe that these clauses 
are sufficient to avoid compromising State oversight.
    Comment 51: Issuing a resource depredation order for DCCOs under 
the proposed rule would set a dangerous precedent for fish-eating birds 
in the United States and in other nations to our south.
    Service Response: We do not agree with the statement that the 
depredation orders are a ``dangerous'' precedent. Each conflict must be 
evaluated on its own merits. If problems with other fish-eating birds 
arise in the future, we will give full and fair consideration to these 
    Comment 52: The Service should require safe management practices 
when DCCO control is conducted to protect birders.
    Service Response: Conducting DCCO control in a manner that does not 
threaten human health or safety is the responsibility of the agencies 
and individuals carrying out the actions.
    Comment 53: The scientific and public outcry against the Service's 
proposed rule should be convincing. Sound science is being supplanted 
by perceptions fueling political cries for substantial lethal 
population controls.
    Service Response: We would note that there is also public outcry 
against the status quo and in support of the final rule. We believe 
that our decision is supported by the available data. Furthermore, the 
rule requires that agencies who act under the public

[[Page 58031]]

resource depredation order have sound reasoning for doing so.
    Comment 54: The Service must publish a Final EIS, Record of 
Decision, and appropriate Section 7 consultation documents prior to 
engaging in the rulemaking process.
    Service Response: This is not a correct statement of the 
requirements of either the National Environmental Policy Act or the 
Endangered Species Act. Issuance of these regulations is in compliance 
with both of these laws.
    Comment 55: The Service cannot establish depredation orders for 
DCCOs because they are not a ``migratory game bird'' pursuant to 50 CFR 
    Service Response: This is incorrect because our authority for 
issuing a depredation order comes from the MBTA, not 50 CFR 21.42. 
Section 21.42 is a regulation adopted by the Service that allows the 
Director to issue depredation orders under certain circumstances. This 
new regulation is in addition to 21.42.
    Comment 56: The Service needs to specify how the depredation orders 
will be enforced.
    Service Response: We have law enforcement agents in every State who 
investigate violations of Federal wildlife laws. Providing the details 
of how they work is neither necessary nor sensible since such details 
could prevent the prosecution of those who violate the terms and 
conditions of the orders.
    Comment 57: The requirement to report unauthorized take of 
migratory birds or threatened and endangered species requires 
individuals to incriminate themselves and thus violates the Fifth 
Amendment to the Constitution.
    Service Response: While any take, unless permitted, is prohibited 
by statute, the Service directs its enforcement efforts on those 
individuals or companies that take migratory bird species outside the 
scope of the depredation orders. It is incumbent on those who will be 
working under the orders to have a working knowledge of what is 
authorized and to properly act under its terms and conditions. Failure 
to report would be grounds to revoke authorization. The Service sees 
the reporting requirements not as an attempt to identify the unlawful 
take of migratory birds but as a management tool to reduce unauthorized 

Cormorant Regulations Under the Rule

    This final rule implements the FEIS selected action in the 
following ways: (1) It revises the 1998 aquaculture depredation order 
that allows APHIS/WS to protect public and private aquacultural stock 
in the 13 States listed in 50 CFR 21.47 by also allowing the take of 
DCCOs at winter roost sites and at State and Federal fish hatcheries; 
and (2) it establishes a new depredation order authorizing State fish 
and wildlife agencies, Federally recognized Tribes, and APHIS/WS to 
take DCCOs without a Federal permit to protect public resources on 
public and private lands and freshwaters in 24 States (the 13 States 
listed in 50 CFR 21.47 and 11 additional States). Both of the actions 
revise subpart D of 50 CFR 21.

NEPA Considerations

    In compliance with the requirements of section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the 
Council on Environmental Quality's regulation for implementing NEPA (40 
CFR 1500-1508), we published a DEIS in December 2001, followed by a 
100-day public comment period. In August 2003, both the Service and the 
Environmental Protection Agency published notices of availability for 
the FEIS in the Federal Register. This FEIS is available to the public 

Endangered Species Act Considerations

    Section 7(a)(2) of the Endangered Species Act, as amended (16 
U.S.C. 1531-1543; 87 Stat. 884) provides that ``Each Federal agency 
shall, in consultation with and with the assistance of the Secretary, 
insure that any action authorized, funded, or carried out * * * is not 
likely to jeopardize the continued existence of any endangered species 
or threatened species or result in the destruction or adverse 
modification of [critical] habitat * * *'' We completed a biological 
evaluation and informal consultation (both available upon request; see 
ADDRESSES) under Section 7 of the ESA for the action described in this 
final rule. In the letter of concurrence between the Division of 
Migratory Bird Management and the Division of Endangered Species, we 
concluded that the inclusion of specific conservation measures in the 
final rule satisfies concerns about the four species (piping plover, 
interior least tern, bald eagle, and wood stork) and therefore the 
proposed action is not likely to adversely affect any threatened, 
endangered, or candidate species.

Executive Order 12866

    In accordance with the criteria in Executive Order 12866, this 
action is a significant regulatory action subject to Office of 
Management and Budget review. OMB has made this determination of 
significance under the Executive Order. OMB has determined that this 
action raises novel legal or policy issues. This rule will not have an 
annual economic effect of $100 million or more or adversely affect any 
economic sector, productivity, competition, jobs, the environment, or 
other units of government. The purpose of this rule is to help reduce 
adverse effects caused by cormorants, thereby providing economic 
relief. The total estimated economic impact of DCCOs is less than $50 
million per year. Assuming that landowners (e.g., aquaculture 
producers) and other stakeholders utilize, informally or formally, some 
degree of cost-benefit analysis, the financial expenses to control 
cormorant problems should not exceed the damages incurred. Thus we can 
assume that the total annual economic effect of this rule will be less 
than $50 million.
    This rulemaking action will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency. The selected action is consistent with the 
policies and guidelines of other Department of the Interior bureaus. 
This action will not materially affect entitlements, grants, user fees, 
loan programs, or the rights and obligations of their recipients.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires the preparation of flexibility analyses for actions that will 
have a significant economic effect on a substantial number of small 
entities, which includes small businesses, organizations, or 
governmental jurisdictions. Because of the structure of wildlife damage 
management, the economic impacts of our action will fall primarily on 
State governments and APHIS/WS. These do not qualify as ``small 
governmental jurisdictions'' under the Act's definition. Effects on 
other small entities, such as aquacultural producers, will be positive 
but are not predicted to be significant. Thus, we have determined that 
a Regulatory Flexibility Act analysis is not required.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not have an 
annual effect on the economy of $100 million or more, nor will it cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions. It will not have significant adverse effects on competition,

[[Page 58032]]

employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Paperwork Reduction Act and Information Collection

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the Office of Management and Budget (OMB) has approved the 
information collection requirements included in this final rule under 
OMB control number 1018-0121, which expires on May 31, 2006. 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.
    We will collect information from State, Tribal, and Federal 
agencies and private aquaculture producers who conduct DCCO management 
under the authority of the depredation orders. The specific monitoring 
and reporting requirements associated with this rule are listed below. 
The information collected will help us to determine how many DCCOs are 
being taken and for what purposes.
    In response to public comments on the proposed rule (68 FR 12653, 
March 17, 2003), we added one new information collection requirement in 
this final rule that was not included in the proposed rule. That new 
requirement is advance notification to the Service of any control 
actions that would take more than 10 percent of a breeding DCCO 
population. This new requirement is located in Sec.  21.48 (d)(9) and 
adds 165 hours to the total annual hour burden of these information 
collection requirements.
    The information collections associated with this final rule are in 
Sec. Sec.  21.47(d)(7), (d)(8), and (d)(9) and 21.48(d)(7), (d)(8), 
(d)(9), (d)(10) and (d)(12) and are listed below in the amendments to 
50 CFR part 21. The breakdown of the information collection burden is 
as follows: We estimate that Sec. Sec.  21.47(d)(7) and (d)(8) will 
have 50 annual responses at an estimated .5 burden hours per response; 
we estimate that Sec.  21.47(d)(9) will have 900 annual responses at an 
estimated 2 burden hours per response; we estimate that Sec. Sec.  
21.48(d)(7) and (d)(8) will have 10 annual responses at an estimated .5 
burden hours per response; we estimate that Sec.  21.48(d)(9) will have 
75 annual responses at an estimated average of 3 burden hours per 
response; we estimate that Sec.  21.48(d)(10) will have 60 annual 
responses at an estimated 20 burden hours per response; and we estimate 
that Sec.  21.48(d)(12) will have 10 annual responses at an estimated 
80 burden hours per response. Overall, we estimate that a total of 960 
respondents will annually submit a total of 1,105 responses to the 
recordkeeping and reporting requirements associated with these 
depredation orders. Each response will require an average of 3.67 hours 
to complete, for a total of 4,055 hours per year for all of the 
information collection and recordkeeping requirements in this final 
    OMB regulations at 5 CFR part 1320 require that interested members 
of the public and affected agencies have an opportunity to comment on 
information collection and record keeping activities. If you have any 
comments on this information collection at any time, please contact the 
Service Information Collection Officer, 4401 N. Fairfax Drive, Suite 
222, Arlington, VA 22203.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
assess the effects of Federal regulatory actions on State, local, and 
Tribal governments and the private sector. We have determined, in 
compliance with the requirements of the Unfunded Mandates Reform Act, 2 
U.S.C. 1502 et seq., that the selected action would not ``significantly 
or uniquely'' affect small governments, and will not produce a Federal 
mandate of $100 million or more in any given year on local or State 
government or private entities. Therefore, this action is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 

Takings Implication Assessment

    In accordance with Executive Order 12630, this action does not have 
significant takings implications and does not affect any 
constitutionally protected property rights. This action will not result 
in the physical occupancy of property, the physical invasion of 
property, or the regulatory taking of any property. In fact, this 
action will help alleviate private and public property damage and allow 
the exercise of otherwise unavailable privileges.

Federalism Effects

    Due to the migratory nature of certain species of birds, the 
Federal Government has been given statutory responsibility over these 
species by the MBTA. While legally this responsibility rests solely 
with the Federal Government, in the best interest of the migratory bird 
resource we work cooperatively with States and other relevant agencies 
to develop and implement the various migratory bird management plans 
and strategies. This action does not have a substantial direct effect 
on fiscal capacity, change the roles or responsibilities of Federal or 
State governments, or intrude on State policy or administration. It 
will allow, but will not require, States to develop and implement their 
own DCCO management programs. Therefore, in accordance with Executive 
Order 13132, this action does not have significant federalism effects 
and does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Civil Justice Reform

    Under Executive Order 12988, the Office of the Solicitor has 
determined that this policy does not unduly burden the judicial system 
and meets the requirements of Sections 3(a) and 3(b)(2) of the Order.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and Executive Order 13175, we have 
determined that this action has no significant effects on Federally 
recognized Indian Tribes. In order to promote consultation with Tribes, 
a copy of the DEIS was mailed to all Federally recognized Tribes in the 
continental United States.

Energy Effects--Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. As the selected action 
is not expected to significantly affect energy supplies, distribution, 
or use, this action is not a significant energy action and no Statement 
of Energy Effects is required.

Record of Decision

    The Record of Decision for management of double-crested cormorants 
in the United States, prepared pursuant to National Environmental 
Policy Act (NEPA) regulations at 40 CFR 1505.2, is herein published in 
its entirety.
    This Record of Decision (ROD) has been developed by the U.S. Fish 
and Wildlife Service (Service) in compliance with the agency decision-
making requirements of NEPA. The purpose of this ROD is to document the 
Service's decision for the selection of an alternative for managing 
resource damages associated with the double-

[[Page 58033]]

crested cormorant (DCCO). Alternatives have been fully described and 
evaluated in the August 2003 Final Environmental Impact Statement 
(FEIS) on DCCO management in the United States.
    This ROD is intended to: (a) State the Service's decision, present 
the rationale for its selection, and describe its implementation; (b) 
identify the alternatives considered in reaching the decision; and (c) 
state whether all means to avoid or minimize environmental harm from 
implementation of the selected alternative have been adopted (40 CFR 

Project Description

    Increases in DCCO populations over the past 25 years, combined with 
other environmental and social factors, have led to greater occurrences 
of both real and perceived conflicts with human and natural resources. 
In 1999, in response to urgings from the public and from State and 
Federal wildlife agencies, the Service decided to prepare a 
programmatic EIS, in cooperation with the Wildlife Services program of 
the U.S. Department of Agriculture Animal and Plant Health Inspection 
Service (APHIS/WS), to evaluate the significance of, and consider 
alternatives to address, conflicts associated with DCCOs.

Key Issues

    Public involvement occurred throughout the EIS and rulemaking 
process. From 1999 to 2003, we held 22 public meetings over the course 
of more than 10 months of total public comment. Through public scoping 
(the first stage of public comment) and agency discussions, key issues 
were identified. Key issues can be placed into two general categories: 
(1) Impacts caused by DCCOs (including impacts to other birds, fish, 
vegetation, aquaculture, Federally listed species, water quality, 
hatcheries, recreational fishing economies, and commercial fishing); 
and (2) impacts caused by control actions (including impacts to DCCO 
populations, other birds, Federally listed species, and existence and 
aesthetic values). In the EIS environmental analysis, these issues made 
up the environmental categories for which effects of the different 
alternatives were considered.
    The alternatives were also considered in terms of their ability to 
fulfill the purpose of the proposed action: to reduce resource 
conflicts associated with DCCOs in the contiguous United States, to 
enhance the flexibility of natural resource agencies in dealing with 
DCCO-related resource conflicts, and to ensure the long-term 
conservation of DCCO populations.


    Since the FEIS is a programmatic document, the alternatives reflect 
general management approaches to the alleviation of DCCO resource 
damages. Six alternatives were examined in the EIS: (A) No Action, (B) 
Nonlethal, (C) Increased Local Damage Control, (D) Public Resource 
Depredation Order, (E) Regional Population Reduction, and (F) Regulated 

Alternative A

    Alternative A is essentially the no change, or status quo, 
alternative. The main features of this alternative are the issuance of 
a small number of depredation permits to address DCCO conflicts; an 
aquaculture depredation order that allows commercial, freshwater 
aquaculture producers in 13 States to shoot DCCOs without a permit; 
unregulated nonlethal harassment of DCCOs; and Director's Order No. 27, 
which prevents most public fish hatcheries from conducting lethal take 
of DCCOs.

Alternative B

    Alternative B would not allow the take of DCCOs or their eggs. Only 
harassment methods and physical exclusion devices would be used to 
prevent or control DCCO damages.

Alternative C

    Alternative C would allow for increased take of DCCOs, through a 
revision of our cormorant damage management practices, but agencies and 
individuals would still have to obtain a depredation permit. It would 
also revise the aquaculture depredation order to allow winter roost 

Alternative D

    Alternative D, the selected action, creates a public resource 
depredation order to authorize State fish and wildlife agencies, 
Federally recognized Tribes, and APHIS/WS to take DCCOs 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. This 
authority applies to all lands and freshwaters (with appropriate 
landowner permission) in 24 States (Alabama, Arkansas, Florida, 
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, 
Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, 
Ohio, Oklahoma, South Carolina, Tennessee, Texas, Vermont, West 
Virginia, and Wisconsin). This alternative also revises the aquaculture 
depredation order by specifying that it is applicable to commercial 
freshwater facilities and State and Federal fish hatcheries, and by 
authorizing APHIS/WS employees to take DCCOs at roost sites in the 
vicinity of aquaculture facilities during the months of October, 
November, December, January, February, March, and April. Depredation 
permits would continue to be used to address conflicts outside the 
authority of the depredation orders.

Alternative E

    Alternative E would reduce regional DCCO populations to pre-
determined levels. Population objectives would be developed on an 
interdisciplinary, interagency basis and would be based on the best 
available data, while giving consideration to other values. Control 
would be carried out at nesting, roosting, wintering, and all other 
sites in order to achieve those objectives as rapidly as possible 
without adversely affecting other protected migratory birds or 
threatened and endangered species.

Alternative F

    Under Alternative F, frameworks to develop seasons and bag limits 
for hunting DCCOs would be established jointly by Federal and State 
wildlife agencies. These seasons would coincide with those for 
waterfowl hunting.


    The Service's decision is to implement the preferred alternative, 
Alternative D, as it is presented in the final rule. This decision is 
based on a thorough review of the alternatives and their environmental 

Other Agency Decisions

    A Record of Decision will be produced by APHIS/WS. The responsible 
officials at APHIS/WS will adopt the FEIS.

Rationale for Decision

    As stated in the CEQ regulations, ``the agency's preferred 
alternative is the alternative which the agency believes would fulfill 
its statutory mission and responsibilities, giving consideration to 
economic, environmental, technical and other factors.'' The preferred 
alternative has been selected for implementation based on consideration 
of a number of environmental, regulatory, and social factors. Based on 
our analysis, the preferred alternative would be more effective than 
the current program; is environmentally sound, cost effective, and 
flexible enough to meet different management needs around the country;

[[Page 58034]]

and does not threaten the long-term sustainability of DCCO populations 
or populations of any other natural resource.
    Alternative D was selected because it allows greater responsiveness 
in addressing localized resource damages (and will therefore be more 
effective at reducing or preventing them) than the No Action 
Alternative. It will provide a net benefit to fish, wildlife, and 
plants by allowing agencies to control DCCOs to protect these resources 
from damages. It will also alleviate economic damages to aquaculture. 
Through successful implementation of mitigation measures, it will not 
result in negative impacts to DCCO populations, other migratory birds, 
or Federally listed species. As such, this alternative represents the 
environmentally preferable alternative.
    The No Action Alternative (A) was not selected for implementation 
because by itself it would not adequately address resource damages 
caused by DCCOs. The Nonlethal Management Alternative (B) was not 
selected because it severely limits the scope of allowable control 
techniques and would not adequately address resource damages caused by 
DCCOs. The Increased Local Damage Control Alternative (C) was not 
selected because it does not provide other agencies with the 
flexibility needed to adequately address resource damages caused by 
DCCOs. The Regional Population Reduction Alternative (E) was not 
selected because of uncertainty about the actual relationship between 
cormorant numbers and distribution and subsequent damages. The 
Regulated Hunting Alternative (F) was not selected because hunting is 
not a biologically or socially acceptable means of reducing DCCO 

List of Subjects in 50 CFR Part 21

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

For the reasons stated 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:


1. The authority citation for part 21 is revised to read as follows:

    Authority: Pub. L. 95-616; 92 Stat. 3112 (16 U.S.C. 712(2)); 
Pub. L. 106-108; Section 3 of the Migratory Bird Treaty Act (16 
U.S.C. 704), 40 Stat. 755.

2. In Subpart D, revise Sec.  21.47 to read as follows:

Sec.  21.47  Depredation order for double-crested cormorants at 
aquaculture facilities.

    (a) What is the purpose of this depredation order? The purpose of 
this depredation order is to help reduce depredation of aquacultural 
stock by double-crested cormorants at private fish farms and State and 
Federal fish hatcheries.
    (b) In what areas can this depredation order be implemented? This 
depredation order applies to commercial freshwater aquaculture 
facilities and to State and Federal fish hatcheries in the States of 
Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Minnesota, 
Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and 
    (c) What does this depredation order allow and who can participate? 
(1) This depredation order authorizes landowners, operators, and 
tenants (or their employees or agents) actually engaged in the 
commercial, Federal, or State production of freshwater aquaculture 
stocks to take, without a Federal permit, double-crested cormorants 
when they are found committing or about to commit depredations to 
aquaculture stocks. This authority is applicable only during daylight 
hours and only within the boundaries of freshwater commercial 
aquaculture facilities or State and Federal hatcheries.
    (2) This depredation order authorizes employees of the Wildlife 
Services program of the U.S. Department of Agriculture Animal and Plant 
Health Inspection Service to take double-crested cormorants, with 
appropriate landowner permission, at roost sites in the vicinity of 
aquaculture facilities, at any time, day or night, during the months of 
October, November, December, January, February, March, and April.
    (3) Authorized employees of the Wildlife Services program of the 
U.S. Department of Agriculture Animal and Plant Health Inspection 
Service may designate agents to carry out control, provided these 
individuals act under the conditions of the order.
    (d) What are the terms and conditions of this order? (1) Persons 
operating under paragraph (c)(1) of this section may only do so in 
conjunction with an established nonlethal harassment program as 
certified by officials of the Wildlife Services program of the U.S. 
Department of Agriculture Animal and Plant Health Inspection Service. 
Wildlife Services directive 2.330 outlines this certification process.
    (2) Double-crested cormorants may be taken only by shooting with 
firearms, including rifles. Persons using shotguns are required to use 
nontoxic shot as listed in 50 CFR 20.21(j).
    (3) Persons operating under this depredation order may use decoys, 
taped calls, or other devices to lure within gun range birds committing 
or about to commit depredations.
    (4) Persons operating under this depredation order must obtain 
appropriate landowner permission before implementing activities 
authorized by the order.
    (5) Double-crested cormorants may not be killed contrary to the 
laws or regulations of any State, and none of the privileges of this 
section may be exercised unless the person possesses the appropriate 
State or other permits, if required.
    (6) Persons operating under this depredation order must properly 
dispose of double-crested cormorants killed in control efforts:
    (i) Individuals may donate birds killed under authority of this 
order to museums or other such scientific and educational institutions 
for the purposes of scientific or educational exhibition;
    (ii) Individuals may also bury or incinerate birds taken; and
    (iii) Individuals may not allow birds taken under this order, or 
their plumage, to be sold, offered for sale, bartered, or shipped for 
purpose of sale or barter.
    (7) Nothing in this depredation order authorizes the take of any 
migratory bird species other than double-crested cormorants. Two look-
alike species co-occur with double-crested cormorants in the 
southeastern States: the anhinga, which occurs across the southeastern 
United States, and the neotropic cormorant, which is found in varying 
numbers in Texas, Louisiana, and Oklahoma. Both species can be mistaken 
for double-crested cormorants, but take of these two species is not 
authorized under this depredation order. Persons operating under this 
order must immediately report the take of a migratory bird species 
other than double-crested cormorants to the appropriate Service 
Regional Migratory Bird Permit Office.
    (8) Nothing in this depredation order authorizes the take of any 
species protected by the Endangered Species Act. Persons operating 
under this order must immediately report the take of species protected 
under the Endangered Species Act to the Service.
    (i) To protect wood storks and bald eagles, the following 
conservation measures must be observed within any geographic area where 
Endangered Species Act protection applies to these species: All control 
activities are allowed if the activities occur more than 1,500 feet 
from active wood stork

[[Page 58035]]

nesting colonies, more than 1,000 feet from active wood stork roost 
sites, and more than 750 feet from feeding wood storks, and if they 
occur more than 750 feet from active bald eagle nests.
    (ii) At their discretion, landowners, operators, and tenants may 
contact the Regional Migratory Bird Permit Office to request 
modification of the measures listed in paragraph (d)(8)(i) of this 
section. Such modification can occur only if the Regional Director 
determines, on the basis of coordination between the Regional Migratory 
Bird Permit Office and the Endangered Species Field Office, that wood 
storks and bald eagles will not be adversely affected.
    (iii) If adverse effects are anticipated from the control 
activities in a geographical area where Endangered Species Act 
protection applies to wood storks or bald eagles, either during the 
intra-Service coordination discussions described above or at any other 
time, the Regional Migratory Bird Permit Office will initiate 
consultation with the Endangered Species Field Offices.
    (9) Persons operating under this depredation order must:
    (i) Keep a log recording the date, number, and location of all 
birds killed each year under this authorization;
    (ii) Maintain this log for a period of 3 years (and maintain 
records for 3 previous years of takings at all times thereafter); and
    (iii) Each year, provide the previous year's log to the appropriate 
Service Regional Migratory Bird Permit Office. Regional Office 
addresses are found in Sec.  2.2 of subchapter A of this chapter.
    (10) We reserve the right to suspend or revoke the authority of any 
Agency or individual granted by this order if we find that the 
specified purpose, terms, and conditions have not been adhered to by 
that Agency or individual or if the long-term sustainability of double-
crested cormorant populations is threatened by that Agency's or 
individual's action(s). The criteria and procedures for suspension, 
revocation, reconsideration, and appeal are outlined in Sec. Sec.  
13.27 through 13.29 of this subchapter. For the purposes of this 
section, ``issuing officer'' means the Regional Director and ``permit'' 
means the authority to act under this depredation order. For purposes 
of Sec.  13.29(e), appeals shall be made to the Director.
    (e) Does this section contain information collection requirements? 
Yes, the information collection requirements in this section are 
approved by the Office of Management and Budget (OMB) under OMB control 
number 1018-0121. Federal agencies 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.
    (f) When does this depredation order expire? This depredation order 
will automatically expire on April 30, 2009, unless revoked or extended 
prior to that date.

3. In Subpart D, add Sec.  21.48 to read as follows:

Sec.  21.48  Depredation order for double-crested cormorants to protect 
public resources.

    (a) What is the purpose of this depredation order? The purpose of 
this depredation order is to reduce the occurrence and/or minimize the 
risk of adverse impacts to public resources (fish, wildlife, plants, 
and their habitats) caused by double-crested cormorants.
    (b) In what areas can this depredation order be implemented? This 
depredation order applies to all lands and freshwaters in the States of 
Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, 
Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New 
York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, 
Vermont, West Virginia, and Wisconsin.
    (c) What does this depredation order allow and who can participate? 
(1) This depredation order authorizes State fish and wildlife agencies, 
Federally recognized Tribes, and State Directors of the Wildlife 
Services program of the U.S. Department of Agriculture Animal and Plant 
Health Inspection Service (collectively termed ``Agencies'') to prevent 
depredations on the public resources of fish (including hatchery stock 
at Federal, State, and Tribal facilities), wildlife, plants, and their 
habitats by taking without a permit double-crested cormorants found 
committing or about to commit, such depredations.
    (2) Agencies may designate agents to carry out control, provided 
those individuals act under the conditions of the order.
    (3) Federally recognized Tribes and their agents may carry out 
control only on reservation lands or ceded lands within their 
    (d) What are the terms and conditions of this order? (1) Persons 
operating under this order should first utilize nonlethal control 
methods such as harassment and exclusion devices when these are 
considered effective and practicable and not harmful to other nesting 
birds by the responsible Agency.
    (2) Double-crested cormorants may be taken only by means of egg 
oiling, egg and nest destruction, cervical dislocation, firearms, and 
CO2 asphyxiation. Persons using shotguns must use nontoxic 
shot, as listed in 50 CFR 20.21(j). Persons using egg oiling must use 
100 percent corn oil, a substance exempted from regulation by the U.S. 
Environmental Protection Agency under the Federal Insecticide, 
Fungicide, and Rodenticide Act.
    (3) Persons operating under this depredation order may use decoys, 
taped calls, or other devices to lure within gun range birds committing 
or about to commit depredation of public resources.
    (4) Persons operating under this depredation order must obtain 
appropriate landowner permission before implementing activities 
authorized by the order.
    (5) Persons operating under this depredation order may not take 
double-crested cormorants contrary to the laws or regulations of any 
State, and none of the privileges of this section may be exercised 
unless the person possesses the appropriate State or other permits, if 
    (6) Persons operating under this depredation order must properly 
dispose of double-crested cormorants killed in control efforts:
    (i) Individuals may donate birds killed under authority of this 
order to museums or other such scientific and educational institutions 
for the purposes of scientific or educational exhibition;
    (ii) Individuals may also bury or incinerate birds taken; and
    (iii) Individuals may not allow birds taken under this order, or 
their plumage, to be sold, offered for sale, bartered, or shipped for 
purpose of sale or barter.
    (7) Nothing in this depredation order authorizes the take of any 
migratory bird species other than double-crested cormorants. Two look-
alike species co-occur with double-crested cormorants in the 
southeastern States: the anhinga, which occurs across the southeastern 
United States, and the neotropic cormorant, which is found in varying 
numbers in Texas, Louisiana, Kansas, and Oklahoma. Both species can be 
mistaken for double-crested cormorants, but take of these two species 
is not authorized under this depredation order. Persons operating under 
this order must immediately report the take of a migratory bird species 
other than double-crested cormorants to the appropriate Service 
Regional Migratory Bird Permit Office.
    (8) Nothing in this depredation order authorizes the take of any 
species protected by the Endangered Species Act. Persons operating 
under this order must immediately report the take of

[[Page 58036]]

species protected under the Endangered Species Act to the Service.
    (i) To protect piping plovers, interior least terns, wood storks, 
and bald eagles, the following conservation measures must be observed 
within any geographic area where Endangered Species Act protection 
applies to these species:
    (A) The discharge/use of firearms to kill or harass double-crested 
cormorants or use of other harassment methods are allowed if the 
control activities occur more than 1,000 feet from active piping plover 
or interior least tern nests or colonies; occur more than 1,500 feet 
from active wood stork nesting colonies, more than 1,000 feet from 
active wood stork roost sites, and more than 750 feet from feeding wood 
storks; or occur more than 750 feet from active bald eagle nests;
    (B) Other control activities such as egg oiling, cervical 
dislocation, CO2 asphyxiation, egg destruction, or nest 
destruction are allowed if these activities occur more than 500 feet 
from active piping plover or interior least tern nests or colonies; 
occur more than 1,500 feet from active wood stork nesting colonies, 
more than 1,000 feet from active wood stork roost sites, and more than 
750 feet from feeding wood storks; or occur more than 750 feet from 
active bald eagle nests;
    (C) To ensure adequate protection of piping plovers, any Agency or 
its agents who plan to implement control activities that may affect 
areas designated as piping plover critical habitat in the Great Lakes 
Region are to obtain prior approval from the appropriate Regional 
Director. Requests for approval of activities in these areas must be 
submitted to the Regional Migratory Bird Permit Office. The Regional 
Migratory Bird Permit Office will then coordinate with the Endangered 
Species Field Office staff to assess whether the measures in paragraph 
(d)(8)(i)(B) of this section are adequate.
    (ii) At their discretion, Agencies or their agents may contact the 
Regional Migratory Bird Permit Office to request modification of the 
above measures. Such modification can occur only if the Regional 
Director determines, on the basis of coordination between the Regional 
Migratory Bird Permit Office and the Endangered Species Field Office, 
that the species listed in paragraph (d)(8)(i) of this section will not 
be adversely affected.
    (iii) If adverse effects are anticipated from the control 
activities in a geographical area where Endangered Species Act 
protection applies to any of the four species listed in paragraph 
(d)(8)(i) of this section, either during the intra-Service coordination 
discussions described in paragraph (d)(8)(i)(C) of this section or at 
any other time, the Regional Migratory Bird Permit Office will initiate 
consultation with the Endangered Species Field Offices.
    (9) Responsible Agencies must, before they initiate any control 
activities in a given year, provide a one-time written notice to the 
appropriate Service Regional Migratory Bird Permit Office indicating 
that they intend to act under this order.
    (i) Additionally, if any Agency plans a single control action that 
would individually, or a succession of such actions that would 
cumulatively, kill more than 10 percent of the double-crested 
cormorants in a breeding colony, it must first provide written 
notification to the appropriate Service Regional Migratory Bird Permit 
Office. This letter must be received no later than 30 days in advance 
of the activity and must provide:
    (A) The location (indicating specific colonies, if applicable) of 
the proposed control activity;
    (B) A description of the proposed control activity, specifying what 
public resources are being impacted, how many birds are likely to be 
taken and what approximate percentage they are of total DCCOs present, 
and which species of other birds are present; and
    (C) Contact information for the person in charge of the control 
    (ii) The Regional Director may prevent any such activity by 
notifying the agency in writing if the Regional Director deems the 
activity a threat to the long-term sustainability of double-crested 
cormorants or any other migratory bird species.
    (10) Persons operating under this order must keep records of all 
activities, including those of designated agents, carried out under 
this order. On an annual basis, Agencies must provide the Service 
Regional Migratory Bird Permit Office with a report detailing 
activities conducted under the authority of this order, including:
    (i) By date and location, a summary of the number of double-crested 
cormorants killed and/or number of nests in which eggs were oiled;
    (ii) A statement of efforts being made to minimize incidental take 
of nontarget species and a report of the number and species of 
migratory birds involved in such take, if any;
    (iii) A description of the impacts or anticipated impacts to public 
resources by double-crested cormorants and a statement of the 
management objectives for the area in question;
    (iv) A description of the evidence supporting the conclusion that 
double-crested cormorants are causing or will cause these impacts;
    (v) A discussion of other limiting factors affecting the resource 
(e.g., biological, environmental, and socioeconomic); and
    (vi) A discussion of how control efforts are expected to, or 
actually did, alleviate resource impacts.
    (11) Agencies must provide annual reports to the appropriate 
Service Regional Migratory Bird Permit Office, as described in 
paragraph (d)(10) of this section, by December 31 for the reporting 
period October 1 of the previous year to September 30 of the same year. 
For example, reports for the period October 1, 2003, to September 30, 
2004, would be due on or before December 31, 2004. The Service will 
regularly review Agency reports and will periodically assess the 
overall impact of this program to ensure compatibility with the long-
term conservation of double-crested cormorants and other resources.
    (12) In some situations, Agencies may deem it necessary to reduce 
or eliminate local breeding populations of double-crested cormorants to 
reduce the occurrence of resource impacts.
    (i) For such actions, Agencies must:
    (A) Comply with paragraph (d)(9) of this section;
    (B) Carefully plan activities to avoid disturbance of nontarget 
    (C) Evaluate effects of management activities on cormorants at the 
control site;
    (D) Evaluate, by means of collecting data or using best available 
information, effects of management activities on the public resources 
being protected and on nontarget species; and
    (E) Include this information in the report described in paragraph 
(d)(10) of this section.
    (ii) Agencies may coordinate with the appropriate Service Regional 
Migratory Bird Permit Office in the preparation of this information to 
attain technical or other assistance.
    (13) We reserve the right to suspend or revoke the authority of any 
Agency, Tribe, or State Director granted by this order if we find that 
the specified purpose, terms, and conditions have not been adhered to 
or if the long-term sustainability of double-crested cormorant 
populations is threatened by the action(s) of that Agency, Tribe, or 
State Director. The criteria and procedures for suspension, revocation, 
reconsideration, and appeal are outlined in Sec. Sec.  13.27 through 
13.29 of this subchapter. For the purposes of this section, ``issuing 
officer'' means the Regional Director and ``permit'' means the 
authority to act under this

[[Page 58037]]

depredation order. For purposes of Sec.  13.29(e), appeals shall be 
made to the Director.
    (e) Does this section contain information collection requirements? 
Yes, the information collection requirements in this section are 
approved by the Office of Management and Budget (OMB) under OMB control 
number 1018-0121. Federal agencies 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.
    (f) When does this depredation order expire? This depredation order 
will automatically expire on April 30, 2009, unless revoked or extended 
prior to that date.

    Dated: September 25, 2003.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-25500 Filed 10-7-03; 8:45 am]