[Federal Register Volume 85, Number 109 (Friday, June 5, 2020)]
[Proposed Rules]
[Pages 34578-34588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11988]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2019-0103; FF09M29000-201-FXMB1232090000]
RIN 1018-BE67


Migratory Bird Permits; Management of Conflicts Associated With 
Double-Crested Cormorants (Phalacrocorax auritus) Throughout the United 
States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to 
establish a new permit for State and federally recognized Tribal 
(hereafter ``Tribe'' or ``Tribal'') wildlife agencies for the 
management of double-crested cormorants (Phalacrocorax auritus; 
hereafter ``cormorants''). The new permit would authorize specific take 
activities that are normally prohibited and are intended to relieve or 
prevent impacts from cormorants on lands within State or Tribal 
jurisdictions to address conflicts related to the following issues: 
wild and publicly stocked fish stocked by State agencies or Tribes; 
Tribal- and State-owned or operated aquaculture facilities (including 
hatcheries); human health and safety; State- or Tribal-owned property 
and assets; and threatened and endangered species (listed under the 
Endangered Species Act of 1973, as amended, or identified in State- or 
Tribal-specific legislation as threatened or endangered). The Service 
would retain ultimate authority for regulating the take of cormorants. 
States and Tribes would have the discretion to determine whether, when, 
where, and for which of the above purposes they would conduct lethal 
take within limits and allocations set by the Service.

DATES: You must submit written comments on this proposed rule by July 
20, 2020.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in

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this proposed rule, please note that the Office of Management and 
Budget (OMB) is required to make a decision concerning the collection 
of information contained in this proposed rule between 30 and 60 days 
after the date of publication of this proposed rule in the Federal 
Register. Therefore, comments should be submitted to OMB by July 6, 
2020.

ADDRESSES: Comment Submission: You may submit comments by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-HQ-
MB-2019-0103.
     U.S. Mail Or Hand-Delivery: Public Comments Processing, 
Attn: FWS-HQ-MB-2019-0103; U.S. Fish and Wildlife Service; MS: PRB 
(JAO/3W); 5275 Leesburg Pike; Falls Church, VA 22041-3803.
    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 you provide (see Review of Public Comments, below, 
for more information).
    Document Viewing: Comments and materials we receive, as well as 
supporting documentation we used in preparing this proposed rule, will 
be available for public inspection on http://www.regulations.gov in 
Docket No. FWS-HQ-MB-2019-0103, or by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, Division of 
Migratory Bird Management, 5275 Leesburg Pike, Falls Church, Virginia.
    Information Collection Requirements: Send your comments and 
suggestions on the information collection requirements by the date 
indicated above in DATES to the Desk Officer for the Department of the 
Interior at OMB-OIRA at (202) 395-5806 (fax) or 
[email protected] (email). Please provide a copy of your 
comments to the Service Information Collection Clearance Officer, U.S. 
Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls 
Church, VA 22041-3803 (mail); or [email protected] (email). Please 
reference OMB Control Number 1018--Cormorants in the subject line of 
your comments.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, U.S. Fish and Wildlife 
Service, Department of the Interior, (202) 208-1050.

SUPPLEMENTARY INFORMATION: 

Background

    The Service is the Federal agency delegated with the primary 
responsibility for managing migratory birds. Our authority derives from 
the Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703-712), as 
amended, which implements conventions with Great Britain (for Canada), 
Mexico, Japan, and Russia. We implement the provisions of the MBTA 
through the regulations in parts 10, 13, 20, 21, 22, and 92 of title 50 
of the Code of Federal Regulations (CFR). The MBTA protects migratory 
birds (listed in 50 CFR 10.13) from take directed at birds, except as 
authorized under the MBTA. Regulations pertaining to specific migratory 
bird permit types are at 50 CFR parts 21 and 22.
    The double-crested cormorant is a fish-eating migratory bird that 
is distributed across a large portion of North America. There are five 
different breeding populations, variously described by different 
authors as the Alaska, Pacific (or Western), Interior, Atlantic, and 
Southern populations. Although these populations are described by their 
breeding ranges, the birds commingle to various extents on their 
migration and wintering areas, with birds from populations closer to 
each other overlapping more than those that are more distant.
    Cormorant populations have increased over both the short term 
(2005-2015) and long term (1966-2015) (Sauer et al. 2017). Permits 
issued by the Service to take birds are one method available to reduce 
conflicts. However, prior to applying for permits to take cormorants, 
individuals and entities experiencing conflicts with cormorants should 
attempt nonlethal techniques (e.g., hazing, habitat modification) to 
alleviate the conflict. Nonlethal techniques combined with lethal take 
should be more effective and may ultimately result in less need for 
lethal take in the future.
    In response to ongoing damage at aquaculture facilities and other 
damage and conflicts associated with increasing cormorant populations, 
the Service administered regulations that included, in addition to 
Depredation Permits (located at 50 CFR 21.41), an Aquaculture 
Depredation Order (which was located at 50 CFR 21.47) beginning in 1998 
and a Public Resource Depredation Order (which was located at 50 CFR 
21.48), which began in 2003. Both of these regulations were in place 
until May 2016 when they were vacated by Court order (see more below).
    The Aquaculture Depredation Order eliminated individual permit 
requirements in 13 States for private individuals, corporations, State 
agencies, and Federal agencies taking cormorants at aquaculture 
facilities. The Public Resource Depredation Order enabled States, 
Tribes, and the U.S. Department of Agriculture's Wildlife Services in 
24 States, without individual depredation permits, to take 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.
    In May 2016, these depredation orders were vacated by the United 
States District Court for the District of Columbia. The Court concluded 
that the Service did not sufficiently consider the effects of the 
depredation orders on cormorant populations and other affected 
resources and failed to consider a reasonable range of alternatives in 
the review within the environmental assessment (EA) issued in 2014 
under the National Environmental Policy Act of 1969, as amended (NEPA). 
Following the Court ruling, the Service prepared an EA to address 
continuing conflicts with cormorants (USFWS 2017). The authority for 
authorizing lethal take of depredating cormorants reverted to the 
issuance of individual depredation permits pursuant to 50 CFR 21.41. 
Under the 2017 EA, cormorants could lethally be taken only to address 
conflicts with aquaculture, human health and safety, threatened and 
endangered species (as listed under the Endangered Species Act of 1973, 
16 U.S.C. 1531 et seq.) and State-listed species of management concern, 
and personal property (under the 2017 EA, take of cormorants to protect 
wild and publicly stocked fisheries would only be allowed if to protect 
threatened or endangered species).
    Conflicts in aquatic systems continue to exist between cormorants 
and fish stocks managed by Federal, State, and Tribal agencies as 
recreational and/or commercial fisheries. Conflicts also exist between 
cormorants and conservation of other species and habitats in some 
areas. As fish-eating birds, cormorant predation of fish occurs not 
only at aquaculture facilities, but also in private recreational ponds 
and large aquatic ecosystems. While conflicts exist between cormorants 
and some stakeholders, birders and other interested parties value 
cormorants for their aesthetic and existential values.
    The Service is responsible for balancing the lethal take of 
cormorants to alleviate conflicts where available data support such 
take and maintaining sustainable populations of cormorants and 
minimizing the regulatory burden on Federal and State agencies, Tribes, 
and individual citizens. In making decisions, the Service strives to 
use an

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effective and transparent decision-making process that ensures input 
from migratory bird and fisheries management programs and other 
stakeholders, fulfills requirements under NEPA, and addresses key 
biological uncertainties. When determining allowable take, the Service 
must consider uncertainty related to cormorant population dynamics, 
estimated maximum sustainable lethal take, and risk of over-
exploitation. Furthermore, the Service must identify monitoring 
requirements that could be used to assess the effects of lethal take on 
cormorant populations and to ensure take is commensurate with 
population status. Monitoring can also improve future decisions 
regarding allowable take and how that allowable take could be 
determined. States, Tribes, and other stakeholders can provide 
assistance and information. The Service will formally convene meetings 
with the flyways and other relevant stakeholders to develop a specific 
cormorant population monitoring plan. This plan will be made public 
within approximately one year of publication of the final rule.

History of Management and Conflicts

    Cormorants are migratory waterbirds protected by the MBTA. They are 
native to North America and range widely across the continent, 
typically inhabiting wetlands and adjacent upland habitats. Cormorants 
also are found in some human-modified environments including airport 
airfields and aquaculture ponds. The bird-management community 
generally accepts that there are five different breeding populations, 
variously described by different authors as Alaska, Pacific (Western), 
Interior, Atlantic, and Southern populations.
    Cormorant abundance in North America has increased dramatically 
since the 1960s and 1970s, mostly due to the growth of the Interior and 
Atlantic populations. The current estimate of cormorant abundance in 
the continental United States and Canada is 872,455 to 983,188 birds 
(USFWS 2020).
    Prior to 1998, the sole method for authorizing the lethal take of 
depredating cormorants to alleviate damage and conflicts was through 
the issuance of depredation permits pursuant to 50 CFR 21.41, which 
allows the take of migratory birds that are injuring ``crops or other 
interests.'' In 1998, the Service published a final rule (63 FR 10550-
10561, March 4, 1998) establishing a depredation order that authorized 
commercial freshwater aquaculture producers in 13 States to take 
cormorants without the need for a depredation permit when cormorants 
were found committing or about to commit depredations on aquaculture 
stocks. That rule was located at 50 CFR 21.47. The Service continued to 
issue depredation permits to address damage and conflicts to property, 
natural resources, and threats to human health and safety pursuant to 
50 CFR 21.41. Any individual or entity conducting lethal take of 
cormorants under depredation permits or the depredation order was 
required to submit a report detailing the take to the Service annually.
    The increase in cormorant abundance across areas of North America 
and the subsequent range expansion of cormorants has been well 
documented along with concerns of the negative impacts associated with 
the expanding population (e.g., Taylor and Dorr 2003, Hunter et al. 
2006, Atlantic Flyway Council and Mississippi Flyway Council 2010, 
Pacific Flyway Council 2012). In response to increasing requests for 
depredation permits to alleviate damage and conflicts associated with 
cormorants, the Service issued a Final Environmental Impact Statement 
(FEIS) pursuant to NEPA and made changes to the regulations governing 
the take of cormorants in 2003. The 2003 FEIS considered direct, 
indirect, and cumulative effects of alternatives for cormorant 
management in the United States and discussed mitigating measures. In 
October 2003, based on analysis in the FEIS and review of public and 
agency comments, the Service published a final rule and notice of 
record of decision (68 FR 58022-58037, October 8, 2003) that modified 
the existing depredation order for aquaculture facilities (previously 
located at 50 CFR 21.47). The regulations became effective in November 
2003. The modified depredation order for aquaculture facilities 
eliminated the need for private individuals, corporations, State 
agencies, and Federal agencies to obtain a depredation permit to take 
cormorants at aquaculture facilities in 13 States. It also authorized 
U.S. Department of Agriculture/Wildlife Services' employees to take 
cormorants at roost sites in the vicinity of aquaculture facilities 
during October, November, December, January, February, March, and 
April.
    That final rule in 2003 also established a depredation order that 
authorized Federal agencies, State fish and wildlife agencies, and 
Tribes in 24 States to take cormorants to reduce damage and conflicts 
with public resources without the need for a depredation permit. At 
that time, the Service defined a public resource as a natural resource 
managed and conserved by public agencies, which included fish (i.e., 
free-swimming fish and stocked fish at Federal, State, and Tribal 
hatcheries that are intended for release in public or Tribal waters), 
wildlife, plants, and their habitats. The depredation order for public 
resources was previously located at 50 CFR 21.48. As with previous 
regulations, any individual or entity conducting lethal take of 
cormorants under depredation permits or the depredation orders was 
required to submit a report detailing the take to the Service annually.
    To evaluate the potential effects on the cormorant population from 
the implementation of the two depredation orders, a mitigating measure 
required by the 2003 FEIS was to review and renew, if warranted, the 
two depredation orders every 5 years. Subsequently, the Service 
developed an EA pursuant to NEPA in 2009 and again in 2014 that 
determined that a 5-year extension of the expiration date of the two 
depredation orders would not threaten cormorant populations and that 
activities conducted under the two depredation orders would not have a 
significant impact on the human environment. Therefore, from October 
2003 through May 2016, the Service authorized the take of cormorants 
pursuant to the two depredation orders (which covered certain States), 
through the issuance of depredation permits for activities in States 
not addressed in the two depredation orders, and through the issuance 
of scientific collecting permits (50 CFR 21.23).
    Since the Court's vacating of the depredation orders in May 2016 as 
discussed above, the Service has been reviewing and issuing individual 
depredation permits in the central and eastern lower 48 States pursuant 
to two separate analyses conducted under NEPA. Individuals or entities 
apply for these permits to address site-specific conflicts, and each 
application is logged, evaluated, and acted upon (approved or rejected) 
on a case-by-case basis based on the merits of the permit application.
    The 2017 EA (USFWS 2017) evaluated issuing depredation permits to 
take cormorants for specific circumstances across 37 central and 
eastern States and the District of Columbia. The selected alternative 
(Reduced Take Alternative) authorized the average annual take that 
occurred during 2010-2015 (51,571 birds). This amount was well below 
the allowable level resulting from the take analyses included in the EA 
(82 FR 52936-52937, November 15, 2017). In December 2019, in response 
to requests for increased

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take to alleviate growing conflicts, the Service issued a notice (84 FR 
69762-69762, December 19, 2019) that it would implement a different 
proposed alternative analyzed in the 2017 EA (Potential Take Limit 
Alternative) that had a higher annual take threshold, increasing the 
take of cormorants authorized by permits to 74,396.
    Management of cormorants in the western United States (Western 
population, P. albociliatus) is also through site-specific, case-by-
case permits. The Service authorizes take of Western population 
cormorants primarily to reduce predation-related losses by cormorants 
of federally threatened or endangered juvenile salmon (Oncorhyncus 
spp.) and steelhead (O. mykiss) migrating to the Pacific Ocean. 
Additional authorizations for take occur at Federal, State, and Tribal 
hatcheries rearing federally threatened or endangered fish species, to 
protect aquaculture facilities, and for removing nests related to 
infrastructure maintenance. The U.S. Army Corps of Engineers' Double-
crested Cormorant Management Plan to Reduce Predation of Juvenile 
Salmonids in the Columbia River Estuary--Final Environmental Impact 
Statement (FEIS; USACE 2015) guides management activities related to 
cormorant take. The National Oceanographic and Atmospheric 
Administration's National Marine Fisheries Service (NOAA Fisheries) had 
previously determined that a reduced cormorant population of 5,380 to 
5,939 breeding pairs on East Sand Island in the Columbia River Estuary 
would restore juvenile steelhead survival to the environmental baseline 
levels (NOAA Fisheries 2014), and the Service authorized lethal take at 
levels that attempt to achieve that colony abundance. Specifically, the 
Service authorized approximately 2,300 cormorants to be lethally taken 
each year under depredation permits, scientific collecting permits, and 
special purpose permits.
    The Service expects the number of conflicts to increase, and we 
expect that demand for authorizations to take cormorants will continue 
to increase as a means to reduce those conflicts in the future. For 
example, between 2007 and 2018, the number of permit requests to take 
depredating birds (exclusive of requests to act under the depredation 
orders) increased from slightly less than 200 to almost 300 (USFWS, 
unpublished data), and the number of cormorants taken annually between 
2004 and 2015 increased from about 42,000 to 66,500 (USFWS 2017: 50 CFR 
21.24, 21.41, 21.47, and 21.48 authorizations only). As requests to 
take cormorants increase, the use of only depredation permits to 
address conflicts will become increasingly time-consuming and 
cumbersome, and will be less responsive to needs of those seeking 
relief from conflicts with cormorants.

Estimating Allowable Take

    To alleviate conflicts with cormorants, we propose using a method 
called Potential Take Level (PTL) analyses (Wade 1998, Runge et al. 
2004) to determine the number of cormorants that may be taken while 
maintaining the species (and breeding populations) at sustainable 
levels. This process has been used to determine allowable take levels 
for cormorants in a previous EA (USFWS 2017) and for other species, 
including several bird species (e.g., USFWS 2009, Runge et al. 2009, 
Johnson et al. 2012, Zimmerman et al. 2019). Methods used to determine 
population sizes and allowable take levels in this proposed rule are 
detailed in USFWS (2020; Draft Environmental Impact Statement: 
Management of conflicts associated with double-crested cormorants). The 
median amount of allowable take resulting from the analysis was 163,219 
birds annually. However, we recommend being more conservative and 
allowing take only up to the lower 20 percent of the distribution of 
the PTL annually (123,157 birds). Population-specific recommended 
levels of take are: Atlantic, 35,938; Interior, 77,050; Western, 8,881; 
and Southern, 1,288. At those levels of take, the continental 
population of double-crested cormorants is expected to average about 
815,000 birds.
    This proposed rule would bring all populations of double-crested 
cormorants under a common assessment framework to determine allowable 
levels of take. However, levels of take for each population could 
differ based on their current abundances, population biology, and 
population-specific management objectives.

Proposed Special Double-Crested Cormorant Permit

    The Service proposes to add a new permit option under 50 CFR part 
21 (Special Double-Crested Cormorant Permit) that would be available to 
State and Tribal wildlife agencies in the 48 contiguous United States 
to manage conflicts specifically associated with double-crested 
cormorants. The special permit would be available only to a State or 
Tribal wildlife management agency responsible for migratory bird 
management on lands under their jurisdiction. Under this permit, the 
Service would authorize State and Tribal wildlife agencies to conduct 
lethal take of double-crested cormorants that is normally prohibited on 
lands within their respective jurisdictions. The Service will issue 
this permit only when it is expected to reduce conflicts involving 
depredation at State- and Tribal-owned or operated aquaculture 
facilities (including hatcheries); impacts to health and human safety; 
impacts to threatened and endangered species (as listed under the 
Endangered Species Act of 1973) and listed species identified in State- 
or Tribal-specific legislation as threatened or endangered; damage to 
State- or Tribal-owned property and assets; and depredations of wild 
and publicly stocked fish stocked by State agencies or Tribes. Those 
States and Tribes not wishing to obtain this new permit could apply for 
depredation permits (50 CFR 21.41) to address conflicts with 
cormorants. However, under the scope of the November 2017 EA, these 
permits do not authorize take of cormorants to reduce or prevent 
conflicts with wild and publicly stocked fisheries (except for 
threatened or endangered species).
    The Service would retain overall authority for the take of double-
crested cormorants to ensure that levels of take are consistent with 
management objectives. States and Tribes must use nonlethal methods, 
and determine that those methods are ineffective, before lethally 
taking double-crested cormorants. Lethal management should be 
considered as part of an integrated approach to managing cormorant 
conflicts and used only when other methods fail to resolve conflicts. 
No permit is required merely to scare or herd migratory birds other 
than threatened or endangered species or bald or golden eagles (see 50 
CFR 21.41). The Service would periodically determine the population-
specific numbers of double-crested cormorants that could be taken 
lethally during a specified number of years in efforts to reduce 
conflicts while sustaining cormorant abundances, and would track 
authorized take through permits issued to States and Tribes to ensure 
take does not exceed those levels specified in the PTL. The annual 
allocation of take to States and Tribes would be based on recent demand 
by those entities and adjusted as needed (while remaining at or below 
population-specific allowable take levels) to respond to spatial and 
temporal changes in population status and the need to reduce conflicts 
in specific regions. The Service will prepare reports periodically, as 
necessary, to provide the public with

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information regarding the take of cormorants and the extent to which 
this permit, along with other management tools (e.g., depredation 
permits per 50 CFR 21.41), is achieving management objectives.
    The special double-crested cormorant permit would be subject to the 
following conditions/restrictions:
    1. States and Tribes must use nonlethal methods, and determine that 
those methods are ineffective, before lethally taking double-crested 
cormorants. States and Tribes and their subpermittees must make efforts 
to avoid disturbance to co-nesting species. Existing research findings 
and publications detailing appropriate methods and/or models for 
reducing conflicts should be used to justify activities.
    2. A permit under this section does not authorize the taking of any 
other migratory bird, including other species of cormorants; the 
disturbance of bald or golden eagles; or the take of any species listed 
under the Endangered Species Act as threatened or endangered. If these 
impacts to other migratory bird species or to threatened and endangered 
species are likely to occur, the permittee must obtain permits 
specifically authorizing those activities (i.e., additional migratory 
bird, Eagle Act and/or threatened and endangered species permits).
    3. Actions under the permit may be conducted during any time of the 
year on lands under the jurisdiction of the State or Tribe, but only 
when cormorants are committing or are about to commit depredations at 
Tribal- and State-owned or operated aquaculture facilities (including 
hatcheries); to alleviate impacts to health and human safety; reduce 
impacts to threatened and endangered species (as listed under the 
Endangered Species Act) and listed species identified in State- or 
Tribal-specific legislation as threatened or endangered; and to prevent 
damage to State- or Tribal-owned property and assets. This permit would 
also apply to the reduction and prevention of depredations of wild and 
publicly stocked fish stocked by State agencies or Tribes when 
supported by information that take would reduce such conflicts. Permits 
will be issued annually. Permittees will be required to submit an 
annual report by December 31 each year detailing the amount of lethal 
take that occurred under their permit and for what purpose the take was 
conducted.
    4. Anyone undertaking lethal control with a firearm must use 
nontoxic shot or nontoxic bullets (50 CFR 20.21). However, this 
prohibition would not apply if an air rifle or an air pistol is used.
    5. Individuals conducting lethal control may not use decoys, calls, 
or other devices or bait to lure birds within gun range.
    6. Methods of take are at the discretion of the permittee 
responsible for the action. Methods may include, but are not limited 
to, firearms, traps, egg and nest manipulation, and other techniques 
that are consistent with accepted wildlife damage management programs. 
Only 100 percent corn oil, a substance exempted from regulation by the 
Environmental Protection Agency under the Federal Insecticide, 
Fungicide, and Rodenticide Act, may be used to oil eggs.
    7. States and Tribes and their employees and subpermittees may 
possess, transport, and otherwise dispose of double-crested cormorants 
taken. Double-crested cormorants killed and nests/eggs destroyed under 
the authority of this permit must be properly disposed of, including 
donation to public museums or public scientific and educational 
institutions for exhibition, scientific, or educational purposes, or 
buried or incinerated. This permit does not allow for birds or their 
parts or nests/eggs to be sold, offered for sale, bartered, or shipped 
for the purpose of sale or barter.
    8. The State or Tribe must also require the property owner or 
occupant on whose premises the State or Tribe is conducting activities 
to allow, at all reasonable times, including during actual operations, 
free and unrestricted access to any Service special agent or refuge 
officer, State or Tribal wildlife or deputy wildlife agent, warden, 
protector, or other wildlife law enforcement officer on the premises 
where they are, or were, conducting activities.
    9. States and Tribes may designate subpermittees who must operate 
under the conditions of the permit.
    10. Any employee or subpermittee authorized by the State or Tribe 
to carry out actions under the special permit must retain in their 
possession a copy of the State's or Tribe's permit while carrying out 
any action.
    11. Any State or Tribal agency, when exercising the privileges of 
this permit, must keep records of all activities, including those of 
subpermittees, carried out under the authority of the special permit. 
Prior to any permit renewal, the Service will require an annual report 
detailing the activities conducted under the permit and the numbers of 
cormorants/nests/eggs lethally taken, treated, or destroyed.
    12. Nothing in the permit should be construed to authorize the take 
of cormorants, their eggs, or nests contrary to any State or Tribal law 
or regulation or on any Federal land without written authorization by 
the appropriate management authority. Further, none of the privileges 
granted under the permit shall be exercised without any State or Tribal 
permit that may be required for such activities.
    13. The Service reserves the authority to immediately suspend or 
revoke any permit if the Service finds that the terms and conditions 
set forth in the permit have not been adhered to, as specified in 50 
CFR 13.27 and 13.28.
    Since November 2017, permits have been available only to address 
conflicts with aquaculture, human health and safety, threatened and 
endangered species, and personal property; take of cormorants to 
protect wild and publicly stocked fisheries has not been authorized 
unless warranted to protected threatened or endangered species. The 
conflicts with stocked fisheries are increasingly causing concerns with 
State and Federal wildlife agencies, particularly those involved with 
providing recreational fishing opportunities. As cormorant abundance 
increases, and even at current levels, the issuance of individual 
depredation permits to address conflicts is becoming increasingly time-
consuming and lengthy in some cases. With the proposed special double-
crested cormorant permit, which increases the flexibility of States and 
Tribes to address issues and also expands the scope of conflicts that 
can be addressed to wild and publicly stocked fish, the Service expects 
that efforts to reduce those conflicts will increase, including lethal 
take of birds, nests, and eggs. Localized abundances of cormorants may 
decline as a result of these efforts, but regional and continental 
populations are not likely to be negatively impacted.
    The Service expects that, by allowing States and Tribes to address 
conflicts through a special permit, more aggressive management 
activities will result. By authorizing conflict-management activities 
at the State or Tribal level, instead of at the Service Regional level, 
management activities would be more responsive and timely than is 
currently the case. Quicker resolution of conflicts ultimately may 
result in fewer complaints regarding cormorants. However, in expanding 
authority given to the States and Tribes via this permit, workload 
burdens may shift with more being borne by the States and Tribes and 
less by the Service.

[[Page 34583]]

    Importantly, reducing the abundance of double-crested cormorants is 
not the goal of the Service or this proposed management action. 
Reducing their overall abundance does not guarantee that conflicts in 
specific areas will decrease. If cormorants are attracted to an area 
due to food resources, nesting habitats, or other factors, those places 
will remain attractive regardless of the size of the cormorant 
population and may still experience damage to the resources. Rather, 
the goal of the Service is to reduce the number of conflicts with 
cormorants by combining lethal and nonlethal methods and allowing the 
lethal take of cormorants only when supported by information that such 
take would reduce conflicts. As a consequence, abundance of cormorants 
in some areas may be reduced, but regional and continental populations 
will be managed at sustainable levels, albeit at somewhat reduced 
abundances. The Service also wants to ensure accountability not only in 
determining allowable take, but also in reporting of actual take by 
permittees. We will annually review reports submitted by permit holders 
and will periodically assess the overall impact of this permit program 
to ensure compatibility with long-term conservation of double-crested 
cormorants. The Service believes our proposed approach results in the 
transparency and accountability necessary to make informed decisions 
about and promote adherence to authorized levels of take.

Public Comments

    On January 22, 2020 (85 FR 3601-3603), the Service published an 
advance notice of proposed rulemaking (ANPR) and announced our intent 
to prepare a NEPA document indicating that the Service intended to 
establish new regulations regarding the management of double-crested 
cormorants. The comment period for the ANPR continued through March 9, 
2020. The ANPR listed possible alternatives composed of the following:
    (1) Establish a new permit for State and Tribal wildlife agencies 
for authorizing certain cormorant management and control activities;
    (2) Establish an aquaculture depredation order; and
    (3) Both (1) and (2) in combination.
    We also announced that several public scoping meetings would be 
held, and that specific dates and times for the public meetings would 
be available on the internet at https://www.fws.gov/birds/management/managed-species/double-crested-cormorants.php. A total of four public 
scoping webinars were convened, two on February 11, 2020, and two on 
February 12, 2020. Additionally, we conducted two webinars provided 
only to Tribal members on February 19 and 27, 2020. We provided all 
attendees of all webinars with information on the following topics 
regarding cormorants, their management, and the regulations process: 
(1) Biology and population changes; (2) background of the issues and 
previous management approaches; (3) current management of conflicts; 
(4) proposed approaches and alternatives; and (5) the planning process 
for the NEPA analysis. We also informed attendees that they could 
provide comments on the proposed actions and the scope of the NEPA 
review via a website (http://www.regulations.gov, Docket No. FWS-HQ-MB-
2019-0103) or by U.S. mail or hand-delivery to Public Comments 
Processing, Attn: FWS-HQ-MB-2019-0103; U.S. Fish and Wildlife Service 
Headquarters, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    The Department of the Interior's policy is, whenever possible, to 
afford the public an opportunity to participate in the rulemaking 
process. We received more than 1,400 comments in response to the ANPR. 
You may review the comments received at the Federal eRulemaking Portal: 
http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103. We 
considered those comments in developing this proposed rule, and a 
summary of the comments will be included in the NEPA document 
associated with this rulemaking action. In addition, we invite 
interested persons to submit written comments, suggestions, or 
recommendations regarding this proposed regulation. Before promulgating 
final regulations, we will consider all comments we receive related to 
this rulemaking action, including those on the ANPR, the NEPA document, 
and this proposed rule. The comments, and any additional information we 
receive, may lead to final regulations that differ from those provided 
in this proposal.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We will not consider 
comments sent by email or fax. We will not consider hand-delivered 
comments that we do not receive or mailed comments that are not 
postmarked by the date specified in DATES, or written comments sent to 
an address other than the one listed in ADDRESSES.
    We may post all comments in their entirety--including your personal 
identifying information--on http://www.regulations.gov. Before 
including your address, phone number, email address, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so. We will 
consider, but possibly may not respond in detail to, each comment. We 
will summarize all comments we receive during the comment period and 
respond to them in the preamble of the final rule.
    We seek comments or suggestions from the public, governmental 
agencies, Tribes, the scientific community, industry, or any other 
interested parties. To ensure that the rulemaking process effectively 
evaluates all potential issues and impacts, we are seeking comments and 
suggestions on the following:
    (1) The balance we should seek between cormorant abundance and 
mitigation of conflicts with them;
    (2) whether we sufficiently addressed a reasonable range of 
alternative management options;
    (3) the level of interest and participation in use of a new special 
permit by States and Tribes, and the potential issues those entities 
would need to address if they availed themselves of such a permit;
    (4) limitations as to the scope and scale (e.g., geographic, 
seasonal) under which cormorant control activities should be conducted; 
and
    (5) the best means to monitor cormorant take and abundance to 
ensure the Service and its partners meet objectives of reducing 
conflicts and maintaining sustainable abundances of cormorants.
    In addition, we ask for information that can be used to make our 
assessment of economic impacts more robust. In particular we are 
seeking data on the number, type, and locality of establishments that 
will likely benefit from our proposal along with data, including costs 
of implementation, to help us better characterize the extent of 
benefits. We also ask for information and data to help us better 
characterize the location, types, and number of recreational fisheries 
that are expected to benefit from our proposal.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of

[[Page 34584]]

Management and Budget (OMB) will review all significant rules. In 
accordance with the criteria in Executive Order 12866, we do not 
believe this proposed action is a significant regulatory action subject 
to OMB review; however, OIRA has waived their review regarding their 
significance determination of this proposed rule.
    This rule will not have an annual economic effect of $100 million 
or adversely affect any economic sector, productivity, competition, 
jobs, the environment, or other units of government. This proposed 
action will not create inconsistencies with other agencies' actions or 
otherwise interfere with an action taken or planned by another agency. 
Our draft economic analysis determined that this rule is expected to 
result in positive economic benefits to both the commercial aquaculture 
industry as well as the recreational sport fishing industry.
    E.O. 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 proposed rule in a manner 
consistent with these requirements.
    Codifying a new permit for the management of double-crested 
cormorants would provide an additional tool for States and Tribes to 
appropriately manage conflicts within their borders, while maintaining 
overall authority for the take of birds within the Service. Further, 
current regulations allow the take of cormorants only for the purposes 
of reducing conflicts with and damage to aquaculture, human health and 
safety, threatened and endangered species (as listed under the 
Endangered Species Act of 1973) and State-listed species of management 
concern, and personal property. Many of the conflicts with cormorants 
involve depredations of sport fish by cormorants, for which there is no 
relief under current Federal regulations unless warranted to reduce 
impacts to threatened and endangered fish species listed under the ESA. 
This new permit would allow the take of cormorants to reduce 
depredation of wild and publicly stocked fish stocked by State agencies 
or Tribes, thus enhancing the scope of conflict resolution to more 
comprehensively address areas of concern. However, the total number of 
cormorants from each population that could be taken annually would be 
determined by the Service to ensure that cormorant populations are 
sustainable.
    The Service does not have empirical information to quantify the 
changes in costs as a result of this new permit, because we do not know 
how many States and Tribes would avail themselves of this permit and 
the extent to which conflicts would be addressed using it. However, we 
expect that the overall cost and regulatory burden to individuals, 
businesses, and State, Tribal, and Federal government agencies 
associated with this new permit would be lower than exists under 
current regulations. The reduction would be the result of the need for 
fewer individual depredation permits needed to address conflicts 
compared to single State or Tribal permits that could be used; hence, 
total costs associated with permit applications and biological 
assessments of those applications likely would be lower.

Executive Order 13771

    We do not believe this proposed rule is an E.O. 13771 (``Reducing 
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3, 
2017) regulatory action because we believe this rule is not significant 
under E.O. 12866; however, OIRA has waived their review regarding their 
E.O. 12866 significance determination of this proposed rule.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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 effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include finfish farming and fish hatcheries (NAICS 112511) and other 
types of commercial aquaculture farms (NAICS Code 112519). The small 
business size standard defined for these businesses (as defined by the 
U.S. Small Business Administration) is businesses with revenues under 
$0.75 million.
    The Service has difficulties estimating impacts to recreational 
fisheries because few studies have investigated direct economic impacts 
of cormorant management on recreational fisheries. Although a few 
studies have estimated impacts to local economies, loss of fishing day 
activities in those local areas may be offset through engaging in 
angling opportunities elsewhere. While it is feasible that this 
proposed rule could have localized effects on recreational fisheries, 
data does not exist to predict where those effects could occur. Further 
research is necessary to determine whether any impacts that may be seen 
at local scales can be extended to larger scales. However, the Service 
believes that the proposed rule will result in an overall net benefit 
to facilities as it will enable them to more readily and easily obtain 
permits to control double-crested cormorants that are negatively 
impacting their operations. Thus we are certifying that, if 
promulgated, the proposed rule would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    (a) This proposed rule would not ``significantly or uniquely'' 
affect small government activities, because the Federal Government 
would not require States to obtain this permit. A small government 
agency plan is not required.
    (b) This proposed rule would not produce a Federal mandate on 
local, State, or Tribal governments or private entities. Therefore, 
this action is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act.

[[Page 34585]]

Takings

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

Federalism

    This proposed rule would not interfere with the States' or Tribes' 
abilities to manage themselves or their funds. This rule would not have 
sufficient federalism effects to warrant preparation of a federalism 
summary impact statement under E.O. 13132.

Civil Justice Reform

    In accordance with E.O. 12988, we have reviewed this proposed rule 
and determined that it will not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This proposed rule contains new information collections. All 
information collections require approval under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). 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. The new reporting 
and/or recordkeeping requirements identified below require approval by 
OMB:
    (1) FWS Form 3-200-90, Permit Application--Special Double-Crested 
Cormorant Permit (50 CFR part 21): This new permit would be available 
only to a State or Tribal wildlife management agency responsible for 
migratory bird management on lands under their jurisdiction. Under this 
permit, the Service would authorize States and Tribal wildlife agencies 
to conduct lethal take to reduce conflicts involving depredation at 
State- and Tribal-owned or operated aquaculture facilities (including 
hatcheries); impacts to health and human safety; impacts to threatened 
and endangered species (as listed under the Endangered Species Act of 
1973) and listed species identified in State- or Tribal-specific 
legislation as threatened or endangered; damage to State- or Tribal-
owned property and assets; and depredations of wild and publicly 
stocked fish stocked by State agencies or federally recognized Tribes.
    Any State or Tribal wildlife agency wishing to obtain a permit must 
submit an application (FWS Form 3-200-90) to the appropriate Regional 
Director containing the general information and certification required 
by 50 CFR 13.12(a) plus the following information:
    a. A brief description of your State's or Tribe's double-crested 
cormorant conflicts, including physical location(s);
    b. A detailed statement showing that the double-crested cormorant 
management and take activities will address one or more of the issues 
specified above in paragraph (1);
    c. The requested annual take of double-crested cormorants, 
including eggs and nests;
    d. A statement indicating what information will be collected to 
assess whether the management and take of double-crested cormorants is 
alleviating the damage or other conflict;
    e. A statement indicating that the State or Tribe will inform and 
brief all employees and subpermittees of the requirements of these 
regulations and permit conditions;
    f. A list of all subpermittees who may conduct activities under the 
Special Double-Crested Cormorant Permit, including their names, 
addresses, and telephone numbers; and
    g. The name and telephone number of the individual in your agency 
who will be in charge of the double-crested cormorant management 
activities authorized under the permit.
    (2) Designation of Subpermittees: States and Tribes may designate 
subpermittees who must operate under the conditions of the permit. 
Subpermittees can be employees of State and Tribal wildlife agencies, 
USDA Wildlife Services employees, and employees of Federal and State 
agencies or private incorporated companies specializing in wildlife 
damage abatement.
    (3) FWS Form 3-202-56, Annual Report: The State or Tribe must 
submit an annual report (FWS Form 3-202-56) detailing activities, 
including the time, numbers, and locations of birds, eggs, and nests 
taken and nonlethal techniques utilized, before December 31 of each 
year. The Service will require an annual report by the State or Tribe 
prior to any permit renewal.
    (4) Recordkeeping Requirements: Any State or Tribal agency, when 
exercising the privileges of this permit, must keep records of all 
activities, including those of subpermittees, carried out under the 
authority of the special permit.
    Title of Collection: Federal Fish and Wildlife Permit Applications 
and Reports--Special Double-Crested Cormorants; 50 CFR 21.
    OMB Control Number: 1018-New.
    Form Numbers: FWS Forms 3-200-90 and 3-202-56.
    Type of Review: New.
    Respondents/Affected Public: State and/or Tribal governments.
    Total Estimated Number of Annual Respondents: 700.
    Total Estimated Number of Annual Responses: 700.
    Estimated Completion Time per Response: Varies from 45 minutes to 
16 hours, depending on activity.
    Total Estimated Number of Annual Burden Hours: 4,563.
    Respondent's Obligation: Voluntary.
    Frequency of Collection: On occasion for applications; annually or 
on occasion for reports.
    Total Estimated Annual Nonhour Burden Cost: None.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) How might the agency minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of response.
    Send your comments and suggestions on this information collection 
to OMB by the date indicated in DATES at (202) 395-5806 (fax) or 
[email protected] (email). Please provide a copy of your 
comments to the Service Information Collection Clearance Officer, U.S. 
Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls 
Church, VA 22041-3803 (mail); or [email protected] (email). Please 
reference OMB Control Number 1018-Cormorants in the subject line of 
your comments.

National Environmental Policy Act

    We are evaluating this proposed regulation in accordance with the 
criteria of the NEPA, the Department of the Interior regulations on 
Implementation of the NEPA (43 CFR 46.10-46.450), and the Department of 
the Interior Manual (516 DM 8). We will complete our analysis, in 
compliance with NEPA, before finalizing this regulation. When 
completed, you may review the NEPA document and any

[[Page 34586]]

comments received at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103.

Compliance With Endangered Species Act Requirements

    Section 7 of the ESA of 1973, as amended (16 U.S.C. 1531-44), 
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 Act'' (16 U.S.C. 1536(a)(1)). It further states 
that ``[e]ach Federal agency shall, in consultation with and with the 
assistance of the Secretary, insure that any action authorized, funded, 
or carried out by such agency . . . 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.'' Before the Service issues a final rule regarding the 
issuance of a special permit available to the States and Tribes for the 
take of cormorants to reduce conflicts, we will comply with provisions 
of the ESA as necessary to ensure that the new regulation is not likely 
to jeopardize the continued existence of any species designated as 
endangered or threatened or destroy or adversely modify its critical 
habitat.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's manual at 512 DM 2, we are considering the possible 
effects of this proposed rule on federally recognized Indian Tribes. 
The Department of the Interior strives to strengthen its government-to-
government relationship with Indian Tribes through a commitment to 
consultation when appropriate and recognition of their right to self-
governance and tribal sovereignty. We readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have evaluated this 
proposed rule under the criteria in Executive Order 13175 and under the 
Department's tribal consultation policy and have determined that this 
rule may have a substantial direct effect on federally recognized 
Indian tribes. Accordingly, we have initiated outreach to Tribes and 
will initiate government-to-government consultation with federally 
recognized Indian tribes to ensure compliance with the Executive order.

Clarity of This Proposed Rule

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

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

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is not a 
significant regulatory action under E.O. 13211 and would not 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action. No Statement of Energy 
Effects is required.

Literature Cited

Atlantic Flyway Council and Mississippi Flyway Council. 2010. 
Atlantic and Mississippi Flyways double-crested cormorant management 
plan. Cormorant ad hoc committees, Atlantic and Mississippi Flyway 
Councils, Nongame Migratory Bird Technical Sections.
Hunter, W.C., W. Golder, S. Melvin, and J. Wheeler. 2006. Southeast 
United States Regional Waterbird Plan. Waterbird Conservation for 
the Americas. Available at: http://www.waterbirdconservation.org/.
Johnson, F.A., M.A.H. Walters, and G.S. Boomer. 2012. Allowable 
levels of take for the trade in Nearctic songbirds. Ecological 
Applications 22:1114-1130.
NOAA Fisheries. 2014. Endangered Species Act Section 7(a)(2) 
Supplemental Biological Opinion: Consultation on remand for 
operation of the Federal Columbia River Power System. NOAA Fisheries 
Log Number NWR-2013-9562. Available at: https://www.fisheries.noaa.gov/resource/document/consultation-remand-operation-federal-columbia-river-power-system.
Pacific Flyway Council. 2012. Pacific Flyway Plan: a framework for 
the management of double-crested cormorant depredation on fish 
resources in the Pacific Flyway. Pacific Flyway Council, U.S. Fish 
and Wildlife Service, Portland, Oregon.
Runge, M.C., W.L. Kendall, and J.D. Nichols. 2004. Exploitation. 
Pages 303-328 in W.J. Sutherland, I. Newton, and R.E. Green, 
editors. Bird ecology and conservation: a handbook of techniques. 
Oxford University Press, Oxford, United Kingdom.
Runge, M.C., J.R. Sauer, M.L. Avery, B.F. Blackwell, and M.D. 
Koneff. 2009. Assessing allowable take of migratory birds. Journal 
of Wildlife Management 73:556-565.
Sauer, J.R., D.K. Niven, J.E. Hines, D.J. Ziolkowski, Jr., K.L. 
Pardieck, J.E. Fallon, and W.A. Link. 2017. The North American 
Breeding Bird Survey, results and analysis 1966-2015. Version 
2.07.2017. USGS Patuxent Wildlife Research Center, Laurel, Maryland. 
Available at: https://www.mbr-pwrc.usgs.gov/bbs/bbs.html.
Taylor, J.D., II and B. Dorr. 2003. Double-crested cormorant impacts 
to commercial and natural resources. In K. Fagerstone and G. Witmer, 
editors. Tenth Wildlife Damage Management Proceedings, Hot Springs, 
Arkansas.
USACE. 2015. Final Environmental Impact Statement: Double-crested 
cormorant management plan to reduce predation of juvenile salmonids 
in the Columbia River Estuary. Portland District.
USFWS. 2009. Final Environmental Assessment: Extended management of 
double-crested cormorants under 50 CFR 21.47 and 21.48. Division of 
Migratory Bird Management, Arlington, Virginia.
USFWS. 2017. Environmental assessment for issuing depredation 
permits for double-crested cormorant management. Division of 
Migratory Bird Management, Falls Church, Virginia.
USFWS. 2020. Draft Environmental Impact Statement: Management of 
conflicts associated with double-crested cormorants. Division of 
Migratory Bird Management, Falls Church, Virginia.
Wade, P. 1998. Calculating limits to the allowable human-caused 
mortality of cetaceans and pinnipeds. Marine Mammal Science 14:1-37.
Zimmerman, G.S., B.A. Millsap, M.L. Avery, J.R. Sauer, M.C. Runge, 
and K.D. Richkus. 2019. Allowable take of black vultures in the 
eastern United States. Journal of Wildlife Management 83:272-282.

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 part 
21 of subchapter B, chapter I, title 50 of the Code of Federal 
Regulations, as set forth below:

[[Page 34587]]

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. Add Sec.  21.28 to read as follows:


Sec.  21.28  Special double-crested cormorant permit.

    (a) What is the special double-crested cormorant permit and what is 
its purpose? The special double-crested cormorant permit is a permit 
issued by the Service to a State or Tribal wildlife agency authorizing 
management and take activities that are prohibited without 
authorization on lands within their jurisdiction. We will issue such a 
permit only when the State or Tribal wildlife agency requests it. The 
management and take activities conducted under the permit are intended 
to reduce or prevent conflicts associated with cormorants for the 
following concerns:
    (1) Depredation of fish at State- and Tribal-owned or operated 
aquaculture facilities, including hatcheries;
    (2) Realized and potential impacts to human health and safety 
(e.g., collisions of airplanes with birds, fecal contamination of urban 
wetlands);
    (3) Impacts to threatened and endangered species (as listed under 
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.)) and listed species identified in State- or Tribal-specific 
legislation as threatened or endangered;
    (4) Damage to State- or Tribal-owned property and assets; and
    (5) Depredation of wild and publicly stocked fish stocked by State 
agencies or federally recognized Tribes.
    (b) Who may receive a permit? Only State and Tribal wildlife 
agencies are eligible to receive a permit to undertake management and 
take activities. Additionally, only employees or subpermittees of a 
permitted State or Tribal wildlife agency may undertake activities for 
double-crested cormorants in accordance with the conditions specified 
in the permit, conditions specified in 50 CFR part 13, and conditions 
specified in paragraph (d) of this section.
    (c) How does a State or Tribe apply for a permit? Any State or 
Tribal wildlife agency wishing to obtain a permit must submit an 
application (FWS Form 3-200-90) to the appropriate Regional Director 
(see Sec.  13.11(b) of this subchapter) containing the general 
information and certification required by Sec.  13.12(a) of this 
subchapter plus the following information:
    (1) A brief description of your State's or Tribe's double-crested 
cormorant conflicts, including physical location(s);
    (2) A detailed statement showing that the double-crested cormorant 
management and take activities will address one or more of the issues 
specified in paragraph (a) of this section;
    (3) The requested annual take of double-crested cormorants, 
including eggs and nests;
    (4) A statement indicating what information is available and will 
be collected to assess whether the management and take of double-
crested cormorants is alleviating the damage or other conflict;
    (5) A statement indicating that the State or Tribe will inform and 
brief all employees and subpermittees of the requirements of these 
regulations and permit conditions;
    (6) A list of all subpermittees who may conduct activities under 
the Special Double-Crested Cormorant Permit, including their names, 
addresses, and telephone numbers; and
    (7) The name and telephone number of the individual in your agency 
who will be in charge of the double-crested cormorant management 
activities authorized under the permit.
    (d) What are the conditions of the permit? The special double-
crested cormorant permits are subject to the general conditions in 50 
CFR part 13, the conditions elsewhere in this section, and, unless 
otherwise specifically authorized on the permit, the conditions 
outlined below:
    (1) What are the limitations on management and take activities? (i) 
Take of double-crested cormorants as a management tool under this 
section may not exceed the number authorized by the permit. States and 
Tribes must use nonlethal methods, and determine that those methods are 
ineffective, before lethally taking double-crested cormorants.
    (ii) A permit under this section does not authorize the take of any 
other migratory bird, including other species of cormorants; the take 
of bald or golden eagles; or the take of any species listed under the 
Endangered Species Act as threatened or endangered. If these impacts to 
other migratory bird species or to threatened and endangered species 
are likely to occur, the permittee must obtain permits specifically 
authorizing those activities (i.e., additional migratory bird, Eagle 
Act and/or threatened and endangered species permits).
    (iii) Methods of take for double-crested cormorants are at the 
State's or Tribe's discretion. Methods include, but are not limited to, 
firearms, traps, egg and nest manipulation, and other damage control 
techniques consistent with accepted wildlife damage-management 
programs. Only 100 percent corn oil, a substance exempted from 
regulation by the Environmental Protection Agency under the Federal 
Insecticide, Fungicide, and Rodenticide Act, may be used to oil eggs.
    (iv) Take using firearms must use nontoxic shot or nontoxic bullets 
(Sec.  20.21 of this subchapter). However, this prohibition would not 
apply if an air rifle or an air pistol is used.
    (v) Individuals conducting lethal take activities may not use 
decoys, calls, or other devices or bait to lure birds within gun range.
    (2) When may a State or Tribe conduct management and control 
activities? States and Tribes and their employees and subpermittees may 
conduct management activities, including lethal take, at any time of 
year.
    (3) How must States and Tribes dispose of or utilize cormorants 
taken under this permit? States and Tribes and their employees and 
subpermittees may possess, transport, and otherwise dispose of double-
crested cormorants taken under the regulations in this section. States 
and Tribes must utilize such birds by donation to public museums or 
public institutions for scientific or educational purposes, or by 
burying or incinerating them. States, Tribes, their employees, and 
subpermittees may not sell, offer for sale, barter, or ship for the 
purpose of sale or barter any double-crested cormorants taken under 
this section or their parts or eggs.
    (4) How does the permit relate to existing State and Tribal law and 
Federal land? No person conducting management and take activities under 
the regulations in this section should construe the permit to authorize 
the killing of double-crested cormorants contrary to any State or 
Tribal law or regulations or on any Federal land without specific 
written authorization by the responsible management agency. No person 
may exercise the privileges granted under this section unless that 
person possesses any permits required for such activities by any State, 
Tribal, or Federal land manager.
    (5) How will the Service ensure that persons conducting control 
activities have the authority to do so? Any State or Tribal employee or 
subpermittee authorized to carry out management and take activities 
must have a copy of the permit and designation in their possession when 
carrying out any activities. The State or Tribe must also

[[Page 34588]]

require the property owner or occupant on whose premises the State or 
Tribe is conducting activities to allow, at all reasonable times, 
including during actual operations, free and unrestricted access to any 
Service special agent or refuge officer, State or Tribal wildlife or 
deputy wildlife agent, warden, protector, or other wildlife law 
enforcement officer (wildlife officer) on the premises where they are, 
or were, conducting activities. Furthermore, any State or Tribal 
employee or subpermittee conducting such activities must promptly 
furnish information concerning such activities to any such wildlife 
officer.
    (6) What are the reporting requirements of the permit? Any State or 
Tribal employee or subpermittee exercising the privileges granted by 
the regulations in this section must keep records of all activities 
carried out under the authority of this permit, including the number of 
double-crested cormorants killed and their disposition. Any other 
species of bird taken incidentally to double-crested cormorant 
management activities under this permit, along with the numbers of 
birds taken of those species, also must be reported. The State or Tribe 
must submit an annual report (FWS Form 3-202-56) detailing activities, 
including the time, numbers, and locations of birds, eggs, and nests 
taken and nonlethal techniques utilized, before December 31 of each 
year. The State or Tribe should submit the annual report to the 
appropriate Migratory Bird Permit Office in the Region in which the 
permittee is located (see Sec.  2.2 of this subchapter).
    (7) What are the limitations of this permit? The following 
limitations apply:
    (i) Nothing in this section applies to any Federal land within a 
State's or Tribe's boundaries without written permission of the Federal 
agency with jurisdiction.
    (ii) We will issue permits only to State and Tribal wildlife 
agencies in the conterminous (i.e., contiguous 48) United States.
    (iii) States and Tribes may designate subpermittees who must 
operate under the conditions of the permit. Subpermittees can be 
employees of State and Tribal wildlife agencies, U.S. Department of 
Agriculture's Wildlife Services employees, and employees of Federal and 
State agencies or private incorporated companies specializing in 
wildlife damage abatement.
    (iv) A special double-crested cormorant permit issued or renewed 
under the regulations in this section expires on the date designated on 
the face of the permit unless it is amended or revoked, or at such time 
we determine that conflicts with cormorants within the bounds of the 
specific population of double-crested cormorants have been reduced to 
the point where lethal take is no longer necessary. In all cases, the 
term of the permit may not exceed 5 years from the date of issuance or 
renewal.
    (v) We reserve the right to suspend or revoke any permit, as 
specified in Sec. Sec.  13.27 and 13.28 of this subchapter.
    (e) What are the OMB information collection requirements of the 
permit program? OMB has approved the information collection 
requirements of the permit and assigned OMB Control Number 1018-####. 
Federal 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. Direct comments regarding the 
burden estimate or any other aspect of the information collection to 
the Service's Information Collection Clearance Officer at the address 
provided at 50 CFR 2.1(b).

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-11988 Filed 6-4-20; 8:45 am]
 BILLING CODE 4333-15-P