[Federal Register Volume 79, Number 43 (Wednesday, March 5, 2014)]
[Proposed Rules]
[Pages 12458-12461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04824]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2013-0135; FF09M21200-145-FXMB1232099BPP0]
RIN 1018-BA26


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessment.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose revisions to 
the two existing depredation orders for double-crested cormorants 
(Phalacrocorax auritus) at 50 CFR 21.47 and 21.48. We propose to extend 
the expiration dates from these depredation orders for 5 years. We do 
so to allow State and tribal resource management agencies to continue 
to manage double-crested cormorant problems under the terms and 
conditions of the depredation orders and gather data on the effects of 
double-crested cormorant control actions. If we do not extend these 
depredation orders, any action to control depredating double-crested 
cormorants after June 30, 2014, will require a permit. We have prepared 
a draft environmental assessment (DEA) to analyze the environmental 
impacts associated with this extension. Additionally, we propose to 
change the annual reporting date for the depredation order to protect 
public resources (50 CFR 21.48), to remove requirements for cormorant 
control activities around bald eagles and bald eagle nests for both 
depredation orders, and to recommend use of the National Bald Eagle 
Management Guidelines for both depredation orders. We invite the public 
to comment on the DEA and our proposed revisions to the regulations.

DATES: Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on 
April 4, 2014. Comments submitted by mail must be postmarked no later 
than April 4, 2014.

ADDRESSES: Document availability: The DEA is available at http://www.regulations.gov under Docket No. FWS-HQ-MB-2013-0135, and on our 
Service Web site at http://www.fws.gov/migratorybirds/.
    Written comments: You may submit comments by either of the 
following two methods:
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket FWS-HQ-MB-
2013-0135.
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-HQ-MB-2013-0135; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.

FOR FURTHER INFORMATION CONTACT: George Allen at 703-358-1825.

SUPPLEMENTARY INFORMATION: 

Background

    The U.S. Fish and Wildlife Service is the Federal agency delegated 
the primary responsibility for managing migratory birds. This 
delegation is authorized by the Migratory Bird Treaty Act (MBTA) (16 
U.S.C. 703 et seq.), which implements conventions with Great Britain 
(for Canada), Mexico, Japan, and the Soviet Union (Russia). Part 21 of 
title 50 of the Code of Federal Regulations (CFR) covers migratory bird 
permits. Subpart D of 50 CFR part 21 deals specifically with the 
control of depredating birds and currently includes eight depredation 
orders. A depredation order is a regulation that allows the take of 
specific species of migratory birds, at specific locations and for 
specific purposes, without a depredation permit.
    The depredation orders at 50 CFR 21.47 and 21.48 for double-crested 
cormorants allow take of the species under the provisions of our 2003 
environmental impact statement (EIS; 68 FR 47603, August 11, 2003), in 
which we assessed the impacts of the depredation orders and determined 
that they would not significantly affect the status of the species. 50 
CFR 21.47 concerns take of double-crested cormorants at aquaculture 
facilities, and 50 CFR 21.48 concerns take of double-crested cormorants 
to protect public resources. The EIS is available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/Cormorant/CormorantFEIS.pdf.
    We extended the expiration dates of these depredation orders to 
June 30, 2014, on April 6, 2009 (74 FR 15394). We reported at that time 
that the data we had gathered since the issuance of the final rule in 
2003 and data from the 2003 EIS suggest that the orders had not had any 
significant negative effect on double-crested cormorant populations; 
data suggest that cormorant populations were stable or increasing with 
the orders in effect.
    We have continued to comply with our goals stated in the 2003 EIS 
by making every effort to capture data from improved double-crested 
cormorant populations. We stated in 2009 that we recognize that it 
probably will be necessary to update the EIS at some time in the 
future. On November 8, 2011, we requested public comments to help guide 
the preparation of a supplemental environmental impact statement or 
environmental assessment and to help us determine future national 
policy for effective management of double-crested cormorant populations 
within the United States (76 FR 69225). On January 27, 2012, we 
extended the comment period on the November 8, 2011 (77 FR 4274). 
However, because of constraints on our ability to conduct the work 
necessary to complete a supplemental environmental impact statement, we 
are forced to defer that effort. We base this proposed rule on 
information in our DEA, which is available from the sources listed in 
ADDRESSES.

Expiration Dates

    We propose to extend the expiration dates for 5 years from the 
depredation orders at 50 CFR 21.47 and 21.48. These depredation orders 
are currently scheduled to expire on June 30, 2014. Extending the 
orders for 5 years would not pose a significant, detrimental effect on 
the long-term viability of double-

[[Page 12459]]

crested cormorant populations. Extending them would allow State and 
tribal resource management agencies to continue to manage double-
crested cormorant problems under the terms and conditions of the 
depredation orders and gather data on the effects of double-crested 
cormorant control actions.
    Entities acting under the Depredation Order would still be required 
follow applicable regulations. Depredation control efforts under the 
Depredation Order may take place only where cormorants are found 
committing or about to commit depredations under specified conditions, 
50 CFR 21.47(c)(1) and 21.48(c)(1). There is the requirement to use 
initially non-lethal control methods, 50 CFR 21.47(d)(1) and 
21.48(d)(1); provide notice to FWS indicating their intent to act under 
the Depredation Order, 50 CFR 21.48(d)(9); and notify the FWS in 
writing 30 days in advance if any single control action would 
individually, or a succession of such actions would cumulatively, kill 
more than 10 percent of the double-crested cormorants in a breeding 
colony, 50 CFR 21.48(d)(9)(i). FWS has the power to prohibit cormorant 
take under the depredation order if FWS deems it a threat to the long-
term sustainability of double-crested cormorants or any other migratory 
bird species, 50 CFR 21.48(d)(9)(ii). Similarly, FWS reserves the right 
to suspend or revoke the authority of any person acting pursuant to the 
Depredation Order if they do not adhere to the Order's purpose, terms 
and conditions or if the long-term sustainability of double-crested 
cormorant populations is threatened, 50 CFR 21.47(d)(10) and 
21.48(d)(13).
    Updated population information indicates that the orders have not 
had a significant negative effect on double-crested cormorant 
populations (see data in the DEA). To summarize the DEA here, a 2006 
study by Wetlands International estimated the continental population at 
between 1 to 2 million birds of four recognized subspecies. In the 
southeastern U.S., though numbers of cormorants declined 46% in both 
Mississippi and Alabama from the peak count in 2004, cormorants in that 
area have undergone dramatic increases in the last 20 years; and, in a 
2006 study, Mississippi populations at some colonies are likely greater 
than the pre-1990 levels. For the Great Lakes survey on the US side, 
from 1997 to 2011, the population was between 45,626 and 53,802. Under 
various models, we estimate that the Great Lakes double-crested 
cormorant population would be lower than current numbers but would 
remain significantly higher than populations in the early 1990s.
    If this proposed rule is adopted, the depredation orders will 
expire on June 30, 2019. If we determine that future changes to the 
depredation orders are necessary to eliminate an expiration date or 
make other changes, we would publish the requisite documents in the 
Federal Register to make those changes.

Other Proposed Changes to the Depredation Orders

    We also propose other changes to the depredation orders at 50 CFR 
21.47 and 21.48 to bring them in line with our current regulations and 
practices. Specifically, we propose to add a January 31 reporting 
deadline to the depredation order at aquaculture facilities (50 CFR 
21.47) and to change the annual reporting date for the depredation 
order to protect public resources (50 CFR 21.48). There currently is no 
specified annual reporting date at 50 CFR 21.47. The current annual 
reporting date at 50 CFR 21.48 is December 31, but we propose to move 
that due date to January 31 to give respondents an additional month to 
submit the requisite information. Together, these proposed changes to 
50 CFR 21.47 and 21.48 would provide a uniform annual reporting date 
for these two depredation orders.
    In addition, we propose to update both depredation orders to remove 
the requirements for cormorant control activities around bald eagles 
(Haliaeetus leucocephalus) and bald eagle nests. These requirements for 
bald eagles and bald eagle nests were included in the depredation 
orders because, at that time, the species was protected by the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). The bald eagle 
has since been removed from the Federal List of Endangered and 
Threatened Wildlife (72 FR 37345; July 9, 2007), so the requirements 
should no longer apply.
    Lastly, we propose to revise the depredation orders to recommend 
use of the National Bald Eagle Management Guidelines for both 
depredation orders. These management guidelines were adopted in 2007 
(72 FR 31156; June 5, 2007). They provide guidance to land managers, 
landowners, and others as to how to avoid disturbing bald eagles and 
their nests.

Public Comments

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

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563).

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small businesses, 
small organizations, and small government jurisdictions. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule would not have a significant economic impact on a 
substantial number of small entities.

[[Page 12460]]

    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act. The regulatory changes we are proposing to the 
depredation orders at 50 CFR 21.47 and 21.48 would provide long-term 
assurance that State and tribal resource management agencies could 
continue to manage double-crested cormorant problems under the terms 
and conditions of the depredation orders and gather data on the effects 
of double-crested cormorant control actions and would bring the two 
depredation orders in line with our current regulations and practices. 
These changes would not have a significant economic impact on a 
substantial number of small entities, so a regulatory flexibility 
analysis is not required.
    This rule is not a major rule under the SBREFA (5 U.S.C. 804 (2)). 
It would not have a significant impact on a substantial number of small 
entities.
    a. This rule would not have an annual effect on the economy of $100 
million or more.
    b. This rule would not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, tribal, or local 
government agencies, or geographic regions.
    c. This rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule would not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. The 
proposed revisions would not have significant effects. The proposed 
regulation would very minimally affect small government activities by 
changing the annual reporting date for 50 CFR 21.48.
    b. This rule would not produce a Federal mandate of $100 million or 
more in any year. It would not be a ``significant regulatory action.''

Takings

    This rule does not contain a provision for taking of private 
property. In accordance with Executive Order 12630, a takings 
implication assessment is not required.

Federalism

    This rule does not have sufficient Federalism effects to warrant 
preparation of a federalism summary impact statement under Executive 
Order 13132. It would not interfere with the States' abilities to 
manage themselves or their funds. No economic impacts are expected to 
result from the removal of the expiration dates from, or the other 
changes proposed to, the depredation orders.

Civil Justice Reform

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

Paperwork Reduction Act of 1995

    This proposed rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C 3501 
et seq.). The information collection requirements at 50 CFR 21.47 and 
21.48 are approved under OMB control number 1018-0121, which expires on 
February 29, 2016. We may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number.

National Environmental Policy Act

    We have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and U.S. 
Department of the Interior regulations at 43 CFR part 46. We have 
completed a draft environmental assessment, and have determined that 
this action would have neither a significant effect on the quality of 
the human environment, nor unresolved conflicts concerning uses of 
available resources.

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), Executive Order 13175, and 512 DM 2, we 
have determined that there are no potential effects on Federally 
recognized Indian Tribes from the proposed regulations change. The 
proposed regulations changes would not interfere with Tribes' abilities 
to manage themselves or their funds or to regulate migratory bird 
activities on Tribal lands.

Energy Supply, Distribution, or Use (Executive Order 13211)

    This rule, if adopted, would only affect depredation control of 
double-crested cormorants, and would not affect energy supplies, 
distribution, or use. This action would not be a significant energy 
action, and no Statement of Energy Effects is required.

Compliance with Endangered Species Act Requirements

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

Clarity of This Regulation

    Executive Order 12866 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 (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Does the description of the rule 
in the SUPPLEMENTARY INFORMATION section of the preamble help you to 
understand 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 the Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street NW., Washington, 
DC 20240-0001. You also may email comments to [email protected].

Literature Cited

    U.S. Fish and Wildlife Service. 2003. Final Environmental Impact 
Statement:

[[Page 12461]]

Double-Crested Cormorant Management. Available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/Cormorant/CormorantFEIS.pdf.

List of Subjects in 50 CFR Part 21

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

Proposed Regulation Promulgation

    For the reasons described in the preamble, we propose to amend 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 21--MIGRATORY BIRD PERMITS

0
1. The authority citation for part 21 continues to read as follows:

    Authority: 16 U.S.C. 703-712.

0
2. Amend Sec.  21.47 as follows:
0
a. By revising paragraph (d)(8)(i) to read as set forth below;
0
b. By removing the words ``and bald eagles'' from paragraph (d)(8)(ii);
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c. By removing the words ``or bald eagles'' from paragraph (d)(8)(iii);
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d. By adding a new paragraph (d)(8)(iv) to read as set forth below;
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e. By removing the word ``Each'' and adding in its place the words ``By 
January 31 each'' at the beginning of paragraph (d)(9)(iii); and
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f. By removing the word ``2014'' in paragraph (f) and adding in its 
place the word ``2019.''


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

* * * * *
    (d) * * *
    (8) * * *
    (i) To protect wood storks, the following conservation measures 
must be observed anywhere Endangered Species Act protection applies to 
this species: all control activities are allowed if the activities 
occur more than 1,500 feet from active wood stork nesting colonies, 
more than 1,000 feet from active wood stork roost sites, and more than 
750 feet from feeding wood storks.
* * * * *
    (iv) We recommend that any agency or its agents or any individual 
or company planning to implement control activities that may affect 
bald eagles comply with the National Bald Eagle Management Guidelines 
(http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BaldEagle/NationalBaldEagleManagementGuidelines.pdf) in conducting the 
activities.
* * * * *
0
3. Amend Sec.  21.48 as follows:
0
a. In the introductory text of paragraph (d)(8)(i), by removing the 
words ``wood storks, and bald eagles'' and adding in their place the 
words ``and wood storks'';
0
b. In paragraphs (d)(8)(i)(A) and (d)(8)(i)(B), by removing the words 
``or occur more than 750 feet from active bald eagle nests;'' in each 
place that they occur;
0
c. By adding a new paragraph (d)(8)(i)(D) to read as set forth below;
0
d. By revising paragraph (d)(11) to read as set forth below; and
0
e. By removing the word ``2014'' in paragraph (f) and adding in its 
place the word ``2019.''


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

* * * * *
    (d) * * *
    (8) * * *
    (i) * * *
    (D) We recommend that any agency or its agents planning to 
implement control activities that may affect bald eagles comply with 
the National Bald Eagle Management Guidelines (http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BaldEagle/NationalBaldEagleManagementGuidelines.pdf) in conducting the 
activities.
* * * * *
    (11) Each agency conducting control activities under the provisions 
of this regulation must provide annual reports, as described in 
paragraph (d)(10) of this section, to the appropriate Service Regional 
Migratory Bird Permit Office by January 31 for control activities 
undertaken the previous calendar year. We will regularly review agency 
reports and will periodically assess the overall impact of this program 
to ensure compatibility with the long-term conservation of double-
crested cormorants and other resources.
* * * * *

    Dated: February 26, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-04824 Filed 3-4-14; 8:45 am]
BILLING CODE 4310-55-P