[Federal Register Volume 68, Number 51 (Monday, March 17, 2003)]
[Proposed Rules]
[Pages 12653-12660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6174]


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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 
[email protected]; 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; [email protected].

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: 
[email protected]. 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