[Federal Register: March 17, 2003 (Volume 68, Number 51)]

[Proposed Rules]               

[Page 12653-12660]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr17mr03-32]                         



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DEPARTMENT OF THE INTERIOR



Fish and Wildlife Service



50 CFR Part 21



RIN 1018-AI39



 

Migratory Bird Permits; Regulations for Double-Crested Cormorant 

Management



AGENCY: Fish and Wildlife Service, Interior.



ACTION: Proposed rule.



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SUMMARY: Increasing populations of the double-crested cormorant 

(Phalacrocorax auritus) 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. The proposed 

action in the DEIS was Alternative D. This action entailed: revising 

the existing aquaculture depredation order to allow winter roost 

control; establishing a new depredation order to protect public 

resources from cormorant damages; and revising Director's Order 27 to 

allow lethal take of double-crested cormorants at public fish 

hatcheries.



DATES: Comments on this proposed rule will be accepted through May 16, 

2003.

    Comments on the information collection aspects of this proposed 

rule will be considered if received by May 16, 2003. The Office of 

Management and Budget (OMB) has up to 60 days to approve or disapprove 

information collection but may respond after 30 days. Therefore, to 

ensure maximum consideration, your comments should be received by OMB 

by April 16, 2003.



ADDRESSES: Comments can be mailed to the Division of Migratory Bird 

Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 

Mail Stop MBSP-4107, Arlington, Virginia 22203; or e-mailed to 

cormorants@fws.gov; or faxed to 703/358-2272.



    Comments specific to the information collection aspects of the 

proposed rule should be mailed to Office of Management and Budget, 

Office of Information and Regulatory Affairs, Attn: Department of 

Interior Desk Officer, 725 17th Street, NW., Washington, DC 20503, and 

Anissa Craghead, Service Information Collection Clearance Officer, U.S. 

Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop 222, 

Arlington, VA 22203; anissa_craghead@fws.gov.



FOR FURTHER INFORMATION CONTACT: Brian Millsap, Chief, Division of 

Migratory Bird Management, U.S. Fish and Wildlife Service (see 

ADDRESSES).



SUPPLEMENTARY INFORMATION:



Background



    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.

    The authority for the proposed regulations set forth in this rule 

is the MBTA, which 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 non-game, non-insectivorous 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 DEIS for this proposed 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 

proposed 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



[[Page 12654]]



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 specific species 

of migratory birds to address particular problems in specific 

geographical areas. 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, wildlife damage control agencies such as 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.

    This proposed rule is directly related to the DEIS on DCCO 

management that was completed in November 2001 and made available for 

public comment via a Federal Register notice of December 3, 2001 (66 FR 

60218). Copies of the DEIS may be obtained by writing us (see 

ADDRESSES) or by downloading it from our Web site at http://

migratorybirds.fws.gov/issues/cormorant/deis/deis.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 

60826), may also be downloaded at http://migratorybirds.fws.gov/issues/

cormorant/status.pdf.



    APHIS/WS was a cooperating agency in the development of the DEIS. 



Additionally, States and Canadian provinces were involved through the 

International Association of Fish and Wildlife Agencies. The DEIS 

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 proposed action/preferred 

alternative in the DEIS was alternative D. This alternative is intended 

to enhance the ability of resource agencies to deal with immediate, 

local concerns by giving them more management flexibility. To address 

DCCO populations from a broader and more coordinated perspective, a 

population objectives approach will need to be considered over the 

longterm. 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.

    In addition to establishing a public resource depredation order, 

alternative D would make two other changes to the current management 

program. It would also revise 50 CFR 21.47, the depredation order for 

double-crested cormorants at aquaculture facilities, and revise 

Director's Order 27. The establishment of the public resource 

depredation order and the revision of the aquaculture depredation order 

require us to amend the regulations in 50 CFR, part 21, governing the 

issuance of migratory bird permits. This proposed rule outlines those 

amendments, clarifying the proposed action presented in the DEIS.

    The Service received many comments as a result of the public review 

of the DEIS. In consideration of these comments, we are proposing to 

make some modifications to the proposed action. A description of these 

changes follows. In this proposed rule, the public resource depredation 

order will: (1) Apply to 24 States (those States where Interior and 

Southern DCCO populations present the greatest risk to public 

resources); (2) apply specifically to State fish and wildlife agencies, 

federally recognized Tribes, and APHIS/WS, rather than to ``State, 

Tribal, and Federal land management agencies'' as stated in the DEIS, 

in order to streamline cormorant control activities and give more 

responsibility to APHIS/WS, the primary Federal agency responsible for 

alleviating wildlife damage conflicts; (3) apply only to land and 

freshwater (not saltwater), since all of the documented fisheries 

impacts occur in freshwater; and (4) allow egg oiling, egg and nest 

destruction, cervical dislocation, shooting, and CO2 

asphyxiation instead of ``shooting, egg oiling or destruction, and nest 

destruction.'' Although we do not believe these modifications will 

result in significant changes to our analysis in the DEIS, we will 

address any changes to our impact analysis, as appropriate, in the 

Final EIS.



Population Status of the Double-Crested Cormorant



    The information in this section is derived from the DEIS (to obtain 

a copy, see ADDRESSES). The DCCO is the most abundant and widespread of 

six native species of cormorants that occur in the United States. 

Population increase and range expansion in recent years have followed 

significant declines in DCCO numbers that occurred in the 1960s and 

early 1970s, largely due to negative reproductive effects (e.g., 

eggshell thinning) associated with organochlorine contaminants such as 

DDT (Postupalsky 1978, Weseloh et al. 1983, Weseloh et al. 1995). 

Factors contributing to the resurgence of DCCO populations include 

reduced levels of environmental contaminants, increased food 

availability in breeding and wintering areas, and reduced human 

persecution associated with MBTA protection (Ludwig 1984, Vermeer and 

Rankin 1984, Price and Weseloh 1986, Fox and Weseloh 1987, Hobson et 

al. 1989, Weseloh et al. 1995, Wires et al. 2001). Tyson et al. (1999) 

conservatively estimated the total population of DCCOs in the United 

States and Canada at greater than 1 million birds, including breeding 

and nonbreeding individuals, but probably closer to 2 million. We 

estimate that the current continental population of DCCOs is 

approximately 2 million birds. Although historical information about 

DCCO populations is limited (Hatch 1995), we can conclude, based on 

available estimates of past breeding numbers, that population levels 

are greater now than in the past. The long term sustainability of DCCO 

populations is unlikely to be affected by the management actions 

authorized in this proposed rule. This will be ensured by regular 

resource monitoring activities as described in the EIS.

    According to Breeding Bird Survey (BBS) data, DCCOs in the United 

States increased at a statistically significant average rate of 7.9 

percent per year between 1975 and 2000 (Sauer et al. 2001). Within this 

period, growth rates of regional populations varied substantially. Five 

different breeding populations are generally recognized: Atlantic, 

Interior, Southern, and Pacific Coast and Alaska. Recent population 

expansion has blurred the boundaries for the Interior, Atlantic, and 

Southern populations (Hatch and Weseloh 1999, Wires et al. 2001).

    Atlantic. Approximately 23 percent of the DCCO breeding population 

is found 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 (Phalacrocorax carbo). 

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 =85,510 

breeding pairs (Tyson et al. 1999).



[[Page 12655]]



    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 =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 13,604 

breeding pairs with an estimated annual growth rate of 2.6 percent 

(Tyson et al. 1999).

    Pacific Coast and Alaska. Approximately 5 percent of the DCCO 

breeding population is found along the Pacific coast (Tyson et al. 

1999), which extends from Alaska down the coastline to Mexico and 

includes some inland colonies (Wires et al. 2001). Numbers were most 

recently estimated at =17,084 breeding pairs with 

approximately 12 percent in Alaska (Tyson et al. 1999). Along the coast 

from British Columbia to Mexico, past estimates numbered nearly 22,000 

nesting pairs (Hatch 1995). However, significant changes occurred in 

the 1990s, with large increases documented at the Columbia River 

estuary (Oregon) and inland at the Salton Sea (California) and sharp 

declines observed in coastal British Columbia and Washington (Wires et 

al. 2001). Tyson et al. (1999) estimated the annual rate of change of 

the Pacific Coast DCCO population (including Alaska) at -7.9 percent.



Impacts of Double-Crested Cormorants on Public Resources



    Fish. Effects of DCCO predation on a given fish population are 

dependent on variables including the number of birds present, the time 

of year at which predation is occurring, prey species composition, and 

physical characteristics such as depth or proximity to shore (which 

affect prey accessibility). Environmental and human-induced factors 

that affect fish populations can be classified as biological (e.g., 

overexploitation, exotic species, etc.), chemical (e.g., water quality, 

nutrient and contaminant loading, etc.), or physical (e.g., dredging, 

dam construction, hydropower operation, siltation, etc.). Such 

activities may lead to changes in species density, diversity, or 

composition due to direct effects on year-class strength, recruitment, 

spawning success, spawning or nursery habitat, or competition (USFWS 

1995). Based on a review of the DCCO diet literature, commercially and 

recreationally valuable fish do not generally make up a large 

proportion of DCCO diet but there are localized exceptions (Trapp et 

al. 1999, Wires et al. 2001). While increasing DCCO populations do not 

appear to be causing widespread negative impacts to fish populations, 

there is evidence that DCCO predation has had a detrimental effect in 

some areas. For example, research efforts in New York's Oneida Lake and 

eastern Lake Ontario have examined data on DCCO diets and fish 

populations and concluded that cormorant predation is likely a 

significant source of fish mortality negatively impacting recreational 

catch (Adams 1999, Rudstam 2000, Lantry et al. 1999).

    Literature on DCCO feeding habits and fisheries impacts has shown 

that: (1) DCCOs are a generalist fish predator with prey selection 

varying opportunistically throughout the seasons and among locations; 

(2) present composition of cormorant diet has been strongly influenced 

by human-induced changes in the natural balance of fish stocks; (3) an 

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; 

(5) cormorant diet typically consists of low percentages of sport fish, 

but conclusions about fisheries impacts cannot be based on diet studies 

alone; and (6) conflicts with cormorants will vary locally since 

ecological conditions vary locally.

    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 species associated with increased 

cormorant abundance (Wires et al. 2001, USFWS 2001).

    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



[[Page 12656]]



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; USDA researchers concluded 

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 estimate 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 2002).

    Revisions to the aquaculture depredation order in this proposed 

rule would authorize APHIS/WS personnel to conduct winter roost control 

in the area of aquaculture facilities. In recent years, APHIS/WS has 

been involved extensively with nonlethal roost harassment efforts to 

reduce DCCO depredation on aquaculture facilities in the southern U.S. 

The Service trusts APHIS/WS personnel to decide which damage management 

techniques are most appropriate in a given situation and is therefore 

not requiring that nonlethal strategies be used first.

    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 

supercede this Director's Order (for DCCOs only) by giving managers at 

State and Federal fish hatcheries more authority to control DCCOs to 

protect fish stock.



Environmental Consequences of Proposed Action



    We analyzed our proposed action in the DEIS. We predict the 

proposed action will not have significant negative impacts on DCCO 

populations, will benefit fisheries in some situations, will not 

adversely affect federally protected species (i.e., those protected 

under the MBTA or the Endangered Species Act), will contribute to 

protection of vegetation and habitat in some situations, and will help 

reduce depredation at private aquacultural facilities and State and 

Federal hatcheries.



References



    A complete list of citation references is available upon request 

from the Division of Migratory Bird Management (see ADDRESSES).



Public Comment Solicitation



    If you wish to comment on this proposed rule, you may submit your 

comments by any one of several methods. We may accept comments on the 

degree to which the rule's data sources comply with Service information 

quality guidelines (these guidelines can be found at http://

irm.fws.gov/infoguidelines/

).You may mail comments to the location 



listed in ADDRESSES. You may also comment via the Internet to: 

cormorants@fws.gov. Please submit Internet comments as an ASCII file 



avoiding the use of special characters and any form of encryption. 

Please also include ``Attn: RIN 1018-AI39'' and your name and return 

address in your Internet message. If you do not receive a confirmation 

from the system that we have received your Internet message, contact us 

by phone at 703/358-1714. You may also fax your comments to 703/358-

2272. Finally, you may hand deliver comments to the location listed in 

ADDRESSES. Our practice is to make comments, including names and 

addresses of respondents, available for public review, by appointment, 

during regular business hours. Individual respondents may request that 

we withhold their home address from the rulemaking record, which we 

will honor to the extent allowable by law. There also may be 

circumstances in which we would withhold from the rulemaking record a 

respondents's identity, as allowable by law. If you wish us to withhold 

your name and/or address, you must state this prominently at the 

beginning of your comment. However, we will not consider anonymous 

comments. We will make all submissions from organization or businesses 

available for public inspection in their entirety.



Cormorant Regulations Under the Proposed Action



    This proposed rule would implement the DEIS proposed action in the 

following ways: it would (1) revise 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 (2) establish 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 with significant resource threats). Both of the actions would 

amend subpart D of 50 CFR part 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 parts 1500-1508), we prepared a DEIS in November 2001, followed by 

a 100-day public comment period. This DEIS is available to the public 

(see ADDRESSES).



Endangered Species Act Considerations



    Section 7(a)(2) of the Endangered Species Act (ESA), 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 have initiated Section 7 

consultation under the ESA for this proposed rule. The result of this 

consultation will be included in the final Environmental Impact 

Statement.



[[Page 12657]]



Executive Order 12866



    In accordance with the criteria in Executive Order 12866, this 

proposed action is not a significant regulatory action subject to 

Office of Management and Budget review. OMB has made this determination 

of significance under the Executive Order. 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. Therefore, a cost-benefit and economic 

analysis is not required. 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 proposed action will not create inconsistencies with other 

agencies' actions or otherwise interfere with an action taken or 

planned by another agency. The action proposed is consistent with the 

policies and guidelines of other Department of the Interior bureaus. 

This proposed action will not materially affect entitlements, grants, 

user fees, loan programs, or the rights and obligations of their 

recipients. This proposed action will not raise novel legal or policy 

issues because we have previously managed DCCOs under the Migratory 

Bird Treaty Act.

    Executive Order 12866 also requires each agency to write 

regulations that are easy to understand. We invite your comments on how 

to make this rule easier to understand, including answers to questions 

such as the following: (1) Are the requirements in the rule clearly 

stated? (2) Does the rule contain technical language or jargon that 

interferes with its clarity? (3) Does the format of the rule aid or 

reduce its clarity? (4) Would the rule be easier to understand if it 

were divided into more (but shorter) sections? (5) Is the description 

of the rule in the SUPPLEMENTARY INFORMATION section helpful in 

understanding the proposed rule? What else could we do to make the rule 

easier to understand? Send a copy of any comments that concern how we 

could make this rule easier to understand to: Office of the Executive 

Secretariat and Regulatory Affairs, Department of the Interior, Room 

7229, 1849 C Street NW., Washington, DC 20240.



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 proposed 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, 

employment, investment, productivity, innovation, or the ability of 

U.S.-based enterprises to compete with foreign-based enterprises.



Paperwork Reduction Act and Information Collection



    Simultaneous with the publication of this proposed rule, we have 

submitted an application for information collection approval from the 

Office of Management and Budget (OMB). Under the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3507(d)), information collections must be 

approved by OMB. 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. This proposed rule would 

institute new information collection burden hours, as described below. 

We will notify the public of OMB's response to our application in the 

final rule for this regulation.

    We intend to 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 

in the proposed language for 50 CFR 21.47 and 21.48. The information 

collected will help us to determine how many DCCOs are being taken and 

for what purposes.

    Information collections associated with this proposed rule are 

Sec. Sec.  21.47(d)(7) and (d)(8) and 21.48(d)(7), (d)(8), (d)(9), and 

(d)(11) listed below in the proposed amendments to 50 CFR part 21. The 

breakdown of the information collection burden is as follows: We 

estimate that 21.47(d)(7) will have 50 annual respondents with 25 total 

annual burden hours valued at $750; we estimate that 21.47(d)(8) will 

have 900 annual respondents with 1,800 total annual burden hours valued 

at $54,000; we estimate that 21.48(d)(7) will have 10 annual 

respondents with 5 total annual burden hours valued at $150; we 

estimate that 21.48(d)(8) will have 60 annual respondents with 60 total 

annual burden hours valued at $1,800; we estimate that 21.48(d)(9) will 

have 60 annual respondents with 1,200 total annual burden hours valued 

at $36,000; and we estimate that 21.48(d)(11) will have 10 annual 

respondents with 800 total annual burden hours valued at $24,000. 

Overall, we estimate that a total of 960 respondents will annually 

submit a total of 1,090 responses to the recordkeeping and reporting 

requirements associated with these depredation orders. Each response 

will require an average of 3.6 hours to complete, for a total of 3,890 

hours per year for all of the information collection and recordkeeping 

requirements in this proposed rule. We estimate that the average wage 

of the individuals collecting the information is $30.00 per hour and, 

thus, the dollar value of the total annual hour burden is $116,700. 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. Comments are 

invited on: (1) Whether the collection of information is necessary for 

the proper performance of the functions of the agency; (2) the accuracy 

of the agency's estimate of the burden of the information collection; 

(3) ways to enhance the quality, utility, and clarity of the 

information to be collected; and (4) ways to minimize the burden of the 

information collection on respondents. Send comments on this 

information collection within 30 days of the date of publication of 

this proposed rule to the addresses listed in the ADDRESSES section.



[[Page 12658]]



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 proposed 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 

Act.



Takings Implication Assessment



    In accordance with Executive Order 12630, this proposed 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 

proposed 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 Migratory Bird Treaty Act. 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. For example, in the 

establishment of migratory game bird hunting regulations, we annually 

prescribe frameworks from which the States make selections and employ 

guidelines to establish special regulations on Federal Indian 

reservations and ceded lands. This process preserves the ability of the 

States and Tribes to determine which seasons meet their individual 

needs. Any State or Tribe may be more restrictive than the Federal 

frameworks at any time. The frameworks are developed in a cooperative 

process with the States and the Flyway Councils. This allows States to 

participate in the development of frameworks from which they will make 

selections, thereby having an influence on their own regulations.

    This proposed 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 program. Therefore, in accordance with Executive 

Order 13132, this proposed 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 this proposed 

action is not expected to significantly affect energy supplies, 

distribution, or use, this proposed action is not a significant energy 

action and no Statement of Energy Effects is required.



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 propose to amend 

part 21, of subchapter B, chapter I, title 50 of the Code of Federal 

Regulations, as set forth below:



PART 21--[AMENDED]



    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; sec. 3 of the Migratory Bird Treaty Act (16 U.S.C. 

704), 40 Stat. 755; and sec. 3 of the Fish and Wildlife Improvement 

Act of 1978 (16 U.S.C. 712), 92 Stat. 3112.



    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 

Texas.

    (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, and March.

    (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



[[Page 12659]]



Services program of the U.S. Department of Agriculture Animal and Plant 

Health Inspection Service.

    (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. Recipients of 

such donations must have a scientific collecting permit as outlined in 

50 CFR 21.23;

    (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 DCCOs to the appropriate Service Regional Migratory Bird 

Permit Office. Additionally, this depredation order does not authorize 

the take of any species protected by the Endangered Species Act, unless 

as permitted. Persons operating under this order must immediately 

report the take of species protected under the Endangered Species Act 

to the Service.

    (8) Persons operating under this depredation order must:

    (i) Keep a log recording the date and number of all birds killed 

each month 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) Annually provide the most recent 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.

    (9) The authority to take double-crested cormorants under this 

order can be revoked by the Regional Director for violations of or 

failure to comply with the terms and conditions of the order. Persons 

whose authority is revoked may apply for a depredation permit under 50 

CFR 21.41.

    (e) Does this rule contain information collection requirements?

    Yes. This information collection is authorized by OMB control 

number 1018-XXXX.

    (f) When does this depredation order expire?

    This depredation order will automatically expire on April 30, 2005, 

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 take without a permit double-crested cormorants found committing or 

about to commit, and to prevent, depredations on the public resources 

of fish (including hatchery stock at Federal, State, and Tribal 

facilities), wildlife, plants, and their habitats.

    (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 

jurisdiction.

    (d) What are the terms and conditions of this order?

    (1) Persons operating under this order must first utilize nonlethal 

control methods such as harassment and exclusion devices when these are 

considered effective and practicable by the responsible Agency.

    (2) Double-crested cormorants may be taken only by means of egg 

oiling, egg and nest destruction, cervical dislocation, shooting, 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 

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. Recipients of 

such donations must have a scientific collecting permit as outlined in 

50 CFR 21.23;

    (ii) Individuals may also bury or incinerate birds taken; and



[[Page 12660]]



    (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 DCCOs to the appropriate Service Regional Migratory Bird 

Permit Office. Additionally, this depredation order does not authorize 

the take of any species protected by the Endangered Species Act, unless 

as permitted. Persons operating under this order must immediately 

report the take of species protected under the Endangered Species Act 

to the Service.

    (8) Responsible Agencies must, before they initiate control, 

provide a one-time notice, in writing, to the appropriate Service 

Regional Migratory Bird Permit Office of their intention to carry out 

control activities under this order. Regional Office addresses are 

found in Sec.  2.2 of subchapter A of this chapter.

    (9) Persons operating under this order must keep records of all 

activities, including those of designated agents, carried out under 

this order. The Service will review Agencies' 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 public resources. 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 hypothesis 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 alleviate 

resource impacts.

    (10) Agencies must provide annual reports, as described above, by 

December 31 for the reporting period September 1 of the previous year 

to August 31 of the same year. For example, reports for the period 

September 1, 2003, to August 31, 2004, would be due on or before 

December 31, 2004.

    (11) For actions that are conducted with the intent of reducing or 

eliminating local double-crested cormorant populations, Agencies must:

    (i) Monitor effects of their management activities on cormorants 

and other migratory birds at sites of control;

    (ii) Monitor effects of their management activities on the public 

resources being protected at control sites; and

    (iii) Evaluate effects of the management activities listed in 

paragraphs (d)(11)(i) and (ii) of this section and adjust management 

actions accordingly. Upon request, Agencies must provide the Service 

with documentation of their monitoring and evaluation efforts.

    (12) The authority to take double-crested cormorants under this 

order can be revoked by the Regional Director for violations of or 

failure to comply with the terms and conditions of the order. Persons 

whose authority is revoked may apply for a depredation permit under 50 

CFR 21.41.

    (e) Does this rule contain information collection requirements?

    Yes. This information collection is authorized by OMB control 

number 1018-XXXX.



    Dated: January 13, 2003.

Craig Manson,

Assistant Secretary for Fish, Wildlife and Parks.

[FR Doc. 03-6174 Filed 3-14-03; 8:45 am]



BILLING CODE 4310-55-P