[Federal Register: December 8, 2008 (Volume 73, Number 236)]
[Proposed Rules]               
[Page 74445-74447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 21

[FWS-R9-MB-2008-0109; 91200-1231-9BPP]
RIN 1018-AW11

Migratory Bird Permits; Revision of Expiration Dates for Double-
Crested Cormorant Depredation Orders

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessment; 
request for public comment.


SUMMARY: We, the U.S. Fish and Wildlife Service, propose to extend our 
two existing depredation orders for double-crested cormorants 
(Phalacrocorax auritus) in the Code of Federal Regulations (CFR) at 50 
CFR 21.47 and 21.48 so that we can continue to authorize take of 
double-crested cormorants without a permit under the terms and 
conditions of the depredation orders and gather data on the effects of 
double-crested cormorant control actions. If we do not extend these 
depredation orders, any action to control depredating double-crested 
cormorants will require a permit. We have prepared a draft 
environmental assessment (DEA) to analyze the environmental impacts 
associated with our proposed extensions. We invite the public to 
comment on the DEA and our proposed extension. The DEA is posted at 

DATES: We will accept comments on the DEA, the proposed extension, or 
both, that are received or postmarked on or before January 22, 2009.

ADDRESSES: You may submit comments on the DEA or the proposed extension 
by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AW11; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203-1610.
We will not accept e-mails or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide (see the Public Comments section below 
for more information).

FOR FURTHER INFORMATION CONTACT: Terry Doyle, Division of Migratory 
Bird Management, U.S. Fish and Wildlife Service, Division of Migratory 
Bird Management, 4401 North Fairfax Drive, Mail Stop 4107, Arlington, 
VA 22203-1610, or telephone 703-358-1825.



    The U.S. Fish and Wildlife Service is the Federal agency delegated 
the primary responsibility for managing migratory birds. This 
delegation is authorized by the Migratory Bird Treaty Act (MBTA) (16 
U.S.C. 703 et seq.), which implements conventions with Great Britain 
(for Canada), Mexico, Japan, and the Soviet Union (Russia). Part 21 of 
title 50 of the CFR covers migratory bird permits. Subpart D deals 
specifically with the control of depredating birds and currently 
includes eight depredation orders. A depredation order is a regulation 
that allows the take of specific species of migratory birds, at 
specific locations and for specific purposes, without a depredation 
    The depredation orders at 50 CFR 21.47 and 21.48 for double-crested 
cormorants allow for take of the species under the provisions of our 
2003 Environmental Impact Statement (EIS) (68 FR 47603), in which we 
assessed the impacts of the depredation orders and determined that they 
would not significantly affect the status of the species. The EIS is 
available by contacting us at the address in the FOR FURTHER 
INFORMATION CONTACT section. The depredation orders are scheduled to 
expire in April 2009. We have no data to suggest that the orders have 
had any significant negative effect on double-crested cormorant 
populations. Extending the orders for an additional five years will 
not, in the judgment of Service biologists, pose a significant, 
detrimental effect on the long-term viability of double-crested 
cormorant populations.

Public Comments

    You may submit your comments and materials concerning our proposed 
rule and DEA by one of the methods listed in the ADDRESSES section. We 
will not accept comments sent by e-mail or fax or to an address not 
listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment, including any personal identifying information, will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant under E.O. (E.O.) 12866. OMB bases its 
determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the

[[Page 74446]]

environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small entities (i.e., 
small businesses, small organizations, and small government 
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act, and have determined that this action would not have a 
significant economic impact on a substantial number of small entities. 
The proposed rule would allow small entities to continue actions they 
have been able to take under the regulations--actions specifically 
designed to improve the economic viability of those entities--and, 
therefore, would not significantly affect them economically. We certify 
that because this proposed rule would not have a significant economic 
effect on a substantial number of small entities, a regulatory 
flexibility analysis is not required.
    This proposed rule is not a major rule under the SBREFA (5 U.S.C. 
804 (2)).
    a. This proposed rule would not have an annual effect on the 
economy of $100 million or more.
    b. This proposed rule would not cause a major increase in costs or 
prices for consumers; individual industries; Federal, State, tribal, or 
local government agencies; or geographic regions.
    c. This proposed rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This proposed rule would not ``significantly or uniquely'' 
affect small governments. A small government agency plan is not 
required. Actions under the proposed regulation would not affect small 
government activities in any significant way.
    b. This proposed rule would not produce a Federal mandate of $100 
million or greater in any year. It would not be a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.


    In accordance with E.O. 12630, this proposed rule does not have 
significant takings implications. A takings implication assessment is 
not required. This proposed rule does not contain a provision for 
taking of private property.


    This proposed rule does not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under E.O. 13132. It 
would not interfere with the ability of States to manage themselves or 
their funds. No significant economic impacts are expected to result 
from the proposed change in the depredation order.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the proposed rule does not unduly burden the judicial 
system and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 

Paperwork Reduction Act

    We examined these proposed regulations under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). We may not collect or sponsor, 
and you are not required to respond to a collection of information 
unless it displays a currently valid Office of Management and Budget 
control number. The Office of Management and Budget approved the 
information collection requirements for this part, and assigned OMB 
Control Number 1018-0121. There are no new information collection 
requirements associated with this regulations change.

National Environmental Policy Act

    We have completed a Draft Environmental Assessment (DEA) on this 
proposed regulations change. The DEA is a part of the administrative 
record for this proposed rule. In accordance with the National 
Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq. and part 516 of 
the U.S. Department of the Interior Manual (516 DM), extension of the 
expiration dates of the depredation orders will not have a significant 
effect on the quality of the human environment, nor would it involve 
unresolved conflicts concerning alternative uses of available 
resources, therefore preparation of an Environmental Impact Statement 
(EIS) is not required.

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), E.O. 13175, and 512 DM 2, we have 
evaluated potential effects on Federally recognized Indian Tribes and 
have determined that there are no potential effects. This proposed rule 
would not interfere with the ability of Tribes to manage themselves or 
their funds or to regulate migratory bird activities on Tribal lands.

Energy Supply, Distribution, or Use (E.O. 13211)

    On May 18, 2001, the President issued E.O. 13211 addressing 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This rule change would not be 
a significant regulatory action under E.O. 12866, nor would it 
significantly affect energy supplies, distribution, or use. This action 
would not be a significant energy action, and no Statement of Energy 
Effects is required.

Compliance With Endangered Species Act Requirements

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this chapter'' (16 
U.S.C. 1536 (a) (1)). It further states that the Secretary must 
``insure that any action authorized, funded, or carried out * * * is 
not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of [critical] habitat'' (16 U.S.C. 1536(a)(2)). We have 
concluded that the proposed regulation change would not affect listed 

[[Page 74447]]

Clarity of This Regulation

    We are required by E.O.'s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Literature Cited

    U.S. Fish and Wildlife Service. 2003. Final Environmental Impact 
Statement: Double-Crested Cormorant Management. Available at http://

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 propose to amend part 21 
of subchapter B, chapter I, title 50 of the Code of Federal 
Regulations, as follows:


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

    Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 
703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public 
Law 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.

Sec.  21.47  [Amended]

    2. Amend Sec.  21.47(f) by removing the number ``2009'' and adding 
in its place the number ``2014.''

Sec.  21.48  [Amended]

    3. Amend Sec.  21.48(f) by removing the number ``2009'' and adding 
in its place the number ``2014.''

    Dated: November 25, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-29018 Filed 12-5-08; 8:45 am]