[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Proposed Rules]
[Pages 69225-69230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28755]



Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-R9-MB-2011-0033; 91200-1231-9BPP]
RIN 1018-AX82

Migratory Bird Permits; Double-Crested Cormorant Management in 
the United States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Request for comments.


SUMMARY: We, the U.S. Fish and Wildlife Service (USFWS), are requesting 
public comments to guide the preparation of a Supplemental 
Environmental Impact Statement or Environmental Assessment on the 
development of revised regulations governing the management of double-
crested cormorants. Under current regulations, cormorant damage 
management activities are conducted annually at the local level by 
individuals or agencies operating under USFWS depredation permits, the 
existing Aquaculture Depredation Order, or the existing Public Resource 
Depredation Order. The depredation orders are scheduled to expire on 

[[Page 69226]]

30, 2014. This analysis will update the 2003 Final Environmental Impact 
Statement (FEIS): Double-crested cormorant management in the United 
States (USFWS 2003).

DATES: Electronic comments on this notice via http://www.regulations.gov must be submitted by midnight Eastern Time on 
February 6, 2012. Comments submitted by mail must be postmarked on or 
before February 6, 2012.

ADDRESSES: You may submit comments by either one of the following 
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R9-
     U.S. Mail or hand delivery: Public Comments Processing, 
Attn: FWS-R9-MB-2011-0033; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
Suite 222; 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: Terry Doyle, Wildlife Biologist, 
Division of Migratory Bird Management, 703-358-1799.

SUPPLEMENTARY INFORMATION: We seek comments to help us determine future 
national policy for effective management of double-crested cormorant 
(DCCO, Phalacrocorax auritus) populations within the United States. 
Primary management objectives surrounding DCCOs are at times in 
conflict. They include meeting conservation obligations under the 
Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) and other 
Federal laws, while enabling management of human-wildlife conflicts 
related to the expansion of DCCO populations, particularly in the Great 
Lakes and southeastern United States. Developing a comprehensive 
national policy requires consideration of the decision process at each 
of the geographic scales relevant to DCCO management. Management 
decisions are made at the local level (including individual lakes, 
breeding colonies, aquaculture facilities, and roosts), at the State 
level, regional or national scales, and across international borders. 
Under the current regulations, control activities are proposed and 
conducted annually at the local level by individuals or agencies 
operating under depredation permits (50 CFR 21.41), the Aquaculture 
Depredation Order (AQDO, 50 CFR 21.47), or the Public Resource 
Depredation Order (PRDO, 50 CFR 21.48). U.S. Fish and Wildlife Service 
(USFWS) Regional Directors make annual decisions on whether to allow 
these activities. Ultimately, the USFWS Director will decide, through 
the National Environmental Policy Act (NEPA) process, on a national 
management strategy by June 30, 2014, at which time the existing 
depredation orders are scheduled to expire.
    The analysis will be prepared in cooperation with the U.S. 
Department of Agriculture, Animal and Plant Health Inspection Service, 
Wildlife Services (APHIS-WS). The decision to prepare a Supplemental 
Environmental Impact Statement or Environmental Assessment will be 
based on responses to this notice and: (1) The National Environmental 
Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) U.S. 
Department of the Interior regulations implementing NEPA (43 CFR part 
46), and (4) USFWS implementing provisions (516 DM 8).


Ecological Context

    Double-crested cormorant populations, especially those breeding in 
the Great Lakes States and provinces and wintering in the southeastern 
United States, have increased rapidly since the mid-1970s, and may have 
reached or exceeded carrying capacity in the Great Lakes. Before that 
time, DCCOs were considered a rare breeder in the Great Lakes, with the 
first confirmed nesting documented in 1913 (Wires and Cuthbert 2006). 
The reasons for the rapid expansion are unknown, but likely involved 
several factors, including U.S. Federal protection under the MBTA in 
1972, the elimination of DDT, the expansion of the aquaculture industry 
and construction of reservoirs in the Southeast, and alterations of the 
Great Lakes fish communities.
    By the mid 1990s, DCCO populations were perceived to have a 
negative impact on the aquaculture industry and on natural resources at 
many locations across North America. Double-crested cormorants have 
been implicated in several human-DCCO conflict issues including 
depredation of aquaculture stocks and local sport and commercial 
fisheries, as well as conflicts with other conservation interests such 
as damage to sensitive vegetation and other colonial nesting bird 
species (Fielder 2010, Glahn and Brugger 1995, Hebert et al. 2005, 
Rudstam et al. 2004, Somers et al. 2007).
    In certain areas, evidence suggests that DCCOs have contributed to 
declines in walleye, yellow perch, and smallmouth bass, whereas in 
other areas no such evidence exists for the decline of sport fishery 
stocks (Seefelt and Gillingham 2006). The implication of DCCOs as a 
causative factor in these declines is confounded, however, by 
uncertainties regarding the effect of other ecosystem changes (e.g., 
exotic species introductions, lower nutrient loading, or decreases in 
alternate prey) and how these changes interact with each other and with 
DCCO population dynamics.

Legal, Regulatory, and Management Context

    The USFWS has statutory authority to manage migratory bird 
populations in the United States, under the MBTA (16 U.S.C. 703-712) 
and the Conventions with Canada (1916 as amended in 1996), Mexico (1936 
as amended in 1972), Japan (1972), and Russia (1976). We have 
interstate regulatory authority over cormorants and permit take by 
individuals and agencies. All the Conventions, except the one with 
Mexico, specifically mention allowing the lethal take of birds and eggs 
to protect injury to agricultural interests, persons, or property. The 
Federal regulation at 50 CFR 21.1 provides limited exceptions to 
protections afforded by the MBTA, such as the establishment of 
depredation orders.
    In response to rapidly increasing wintering populations in the 
southeastern United States, breeding populations of DCCOs in the Great 
Lakes region, and concerns about potential impacts, we adopted two 
depredation orders that facilitate the control of depredating DCCOs. 
The Aquaculture Depredation Order (AQDO) was established in 1998 to 
assist with the control of DCCOs at aquaculture facilities in 13 
States. In 2003, we modified the AQDO and established a Public Resource 
Depredation Order (PRDO) to protect additional public resources 
including fish, wildlife, plants, and their habitats from DCCO impacts 
in 24 States (USFWS 2003). Both depredation orders were recently 
authorized to remain in effect through June 2014 (USFWS 2009a and USFWS 
2009b). Prior to establishment of the depredation orders, depredation 
permits were the primary tool used to resolve DCCO conflicts. Permits 
are still used to resolve conflicts related to human health and safety 
and economic losses to private property in all States,

[[Page 69227]]

including those operating under the depredation orders.
    Double-crested cormorants in the United States are managed at 
selected sites on the breeding and wintering grounds and during 
migration to alleviate damage and lessen economic, social, and 
ecological conflicts. Management actions are conducted locally each 
year and include various forms of harassment, shooting, nest and egg 
destruction, and egg oiling. Under the PRDO, agencies (State fish and 
wildlife agencies, Federally recognized Tribes, and APHIS-WS) submit 
annual written proposals to the USFWS Regional Migratory Bird Permit 
Office (RMBPO) describing the locations and levels of proposed 
management actions. The Regional Director may prevent any activities 
that pose a threat to the long-term sustainability of DCCOs or any 
other migratory bird species. Often, decisions are made through 
interactive communications between the action agencies and USFWS. In 
some cases, USFWS asks action agencies to clarify their request or 
provide additional rationale for a decision. Inter-agency coordination 
also occurs through the NEPA process when environmental assessments are 
developed for DCCO management within individual States.
    No such interaction occurs under the AQDO. However, aquaculture 
producers may operate under the AQDO only in conjunction with an 
established nonlethal harassment program as certified by APHIS-WS as 
outlined in WS Directive 2.330. This certification is documented on WS 
Form 37, which APHIS-WS is required to share with the USFWS when 
requested. Aquaculture producers submit an annual report of take by 
location and date, as does APHIS-WS for take at roosts in the vicinity 
of aquaculture facilities.
    We retain the authority to revoke privileges to operate under the 
PRDO or AQDO if we believe the depredation orders have not been adhered 
to, or if the long-term sustainability of DCCO populations is 
threatened. Since 2004, total annual take of DCCOs in the United States 
has averaged 27 percent of the amount projected in the 2003 FEIS, for 
depredation permits, expanded AQDO, and PRDO (USFWS 2003).

Preliminary Objectives

    We have identified the following objectives that will be used to 
evaluate the alternatives. We identified three fundamental objectives:
    (1) To meet our legal obligations under the MBTA, Bald and Golden 
Eagle Protection Act (BGEPA) (16 U.S.C. 668), Endangered Species Act 
(ESA) (16 U.S.C. 1531 et seq.), and other Federal laws;
    (2) To minimize conflicts related to DCCO impacts and resultant 
management actions; and
    (3) To minimize the costs of implementing regulations.
    Each alternative will be measured against the following criteria, 
or means objectives, to determine how it facilitates achieving the 
fundamental objectives:
    (1) Maintain sustainable DCCO populations;
    (2) Minimize negative impacts to other migratory birds and 
threatened and endangered species;
    (3) Maximize the ability to manage DCCO conflicts;
    (4) Maximize the social acceptance of DCCO management actions;
    (5) Minimize the cost of implementation by action agencies; and
    (6) Minimize the cost of USFWS oversight.

Preliminary Alternatives

    We considered several alternative management actions in the 2003 
EIS (USFWS 2003) including:
    (1) No Action;
    (2) Non-lethal Management;
    (3) Increased Local Damage Control;
    (4) Public Resource Depredation Order;
    (5) Regional Population Reduction; and
    (6) Regulated Hunting.
    That environmental review resulted in the selection of the 
alternative establishing the PRDO and modifying the AQDO (USFWS 2003). 
In addition to considering the management alternatives identified 
above, the following actions may be included and addressed in the new 
NEPA analysis:
    (1) Renewing the depredation orders as currently written (with or 
without an expiration date);
    (2) Modifying the current depredation orders;
    (3) Allowing the depredation orders to expire; or
    (4) Adopting a different alternative that may or may not have been 
considered in the 2003 EIS.

Public Comments

    We seek comments and suggestions from the public, concerned 
government agencies, Tribes, industry, the scientific community, and 
other interested parties regarding the problem, objectives, and 
alternatives that we have described and identified. Explaining your 
reasons will help us evaluate your comments. Of particular interest are 
answers to the following questions:
    (1) Have we accurately described the problem? If not, how could it 
be better described?
    (2) Are there fundamental or means objectives regarding DCCO 
management missing from the list above that we should consider?
    (3) Should the current fundamental or means objectives be modified? 
If so, how?
    (4) How would you rank the relative importance of the identified 
fundamental and means objectives? Please provide your rationale.
    (5) Are there any other alternatives that should be evaluated? If 
so, please describe them in sufficient detail so that they can be 
    (6) Should any of the identified alternatives be modified? If so, 
    (7) How would you rank the preliminary list of alternatives? Please 
provide your rationale.
    As examples of the level of detail needed to evaluate alternatives, 
we present the specifics of two alternatives that will likely be 
evaluated: The current and an alternative version of both the AQDO and 
PRDO. In many cases, the alternative versions attempt to resolve 
ambiguities in existing regulations.

Table 1--Current Aquaculture Depredation Order (AQDO) Provisions, and an
 Example of an Alternative Version of the AQDO With Modified Provisions
  Provision in 50 CFR 21.47          Current              Modified
(b) Area of coverage........  Commercial            (1) Should saltwater
                               freshwater            facilities be
                               aquaculture           included?
                               facilities and       (2) Should we modify
                               State and Federal     the coverage by
                               fish hatcheries in    eliminating States
                               13 States (Alabama,   that have not used
                               Arkansas, Florida,    the AQDO (e.g.,
                               Georgia, Kentucky,    Oklahoma, South
                               Louisiana,            Carolina, and
                               Minnesota,            Tennessee) and
                               Mississippi, North    consider adding
                               Carolina, Oklahoma,   other States?
                               South Carolina,
                               Tennessee, and

[[Page 69228]]

(c)(2) APHIS-WS.............  Authorized to take    Define vicinity as
                               DCCOs at roosts in    being within a
                               the vicinity of       reasonable distance
                               aquaculture           of the facility
                               facilities.           such that DCCOs at
                                                     the roost site are
                                                     likely to be
                                                     responsible for
(c)(3) Agents...............  Agents are            Should we require
                               authorized.           training for
(d)(1) Certification........  Producer certified    (1) Certification
                               by APHIS-WS.          renewed on a
                                                     regular basis.
                                                    (2) APHIS-WS
                                                     required to submit
                                                     WS Form 37s to
                                                     Regional Migratory
                                                     Bird Permit Office
(d)(2) Methods of take......  Firearms including    (1) Define firearms.
                              Nontoxic shot.......  (2) Should we change
                                                     this to nontoxic
(d)(6) Carcass disposal.....  Donate, bury,         Should we allow the
                               incinerate. Not to    option to leave
                               be sold.              birds in ponds?
(d)(7) Incidental take......  Report to RMBPO       Report to RMBPO
                               immediately.          within 2 days.
(d)(8) Endangered Species     Provisions for wood   Provisions for wood
 Act provisions.               stork and bald        stork.
(d)(9) Recordkeeping........  ....................  (1) Clarify calendar
                                                    (2) Reports due to
                                                     the RMBPO by
                                                     January 31st of the
                                                     following year.
(f) Expiration..............  June 30, 2014.......  Should we have an
                                                     expiration date? If
                                                     so, when?
Other: Bald and Golden Eagle  None................  Add provisions for
 Protection Act provisions.                          bald eagle

  Table 2--Current Public Resource Depredation Order (PRDO) Provisions,
   and an Example of an Alternative Version of the PRDO With Modified
  Provision in 50 CFR 21.48          Current              Modified
(b) Area of coverage........  Lands and             (1) Should saltwater
                               freshwaters in 24     systems be
                               States (Alabama,      included?
                               Arkansas, Florida,   (2) Should we modify
                               Georgia, Illinois,    the coverage by
                               Indiana, Iowa,        eliminating States
                               Kansas, Kentucky,     that have not used
                               Louisiana,            the PRDO (e.g.,
                               Michigan,             Florida, Illinois,
                               Minnesota,            Indiana, Kansas,
                               Mississippi,          Kentucky,
                               Missouri, New York,   Louisiana,
                               North Carolina,       Missouri, North
                               Ohio, Oklahoma,       Carolina, Oklahoma,
                               South Carolina,       South Carolina,
                               Tennessee, Texas,     Tennessee, and West
                               Vermont, West         Virginia) and
                               Virginia,             consider adding
                               Wisconsin).           other States?
(c)(1) Action agencies......  State fish and        Should we add
                               wildlife agencies,    National Fish
                               Federally             Hatcheries,
                               recognized Tribes,    National Wildlife
                               and State Directors   Refuges, and
                               of APHIS-WS.          National Parks
                                                     operating on their
                                                     own land?
(c)(1) Public resources.....  Fish (including       (1) Define
                               hatchery stock at     specifically as
                               Federal, State, and   natural resources
                               Tribal hatcheries),   managed and
                               wildlife, plants,     conserved by public
                               and their habitats.   agencies for public
                                                    (2) Should we add
                                                     resource allocation
                                                     among anglers,
                                                     forage fish, and
                                                     DCCOs as a public
                                                    (3) Should we remove
                                                     nonnative species
                                                     from consideration
                                                     as a public
(c)(2) Agents...............  Allowed.............  (1) Should we
                                                     require training
                                                     for agents?
                                                    (2) Should we
                                                     eliminate agents?
(d)(2) Methods of take......  Egg oiling, egg and   (1) Define firearms.
                               nest destruction,    (2) Should we change
                               cervical              this to nontoxic
                               dislocation,          ammunition?
                               firearms, and CO2
                               Nontoxic shot.
(d)(4) Landowner permission.  Yes.................  Does this need
                                                     clarification for
                                                     birds taken off
                                                     shore of private
(d)(6) Carcass disposal.....  Donate, bury,         (1) Add properly
                               incinerate. Not to    conducted
                               be sold.              composting.
                                                    (2) Should we allow
                                                     the option to leave
                                                     carcasses on site
                                                     when disturbance to
                                                     co-nesters is an
(d)(7) Incidental take......  Report to RMBPO       Report to RMBPO
                               immediately.          within 2 days.
(d)(8) Endangered Species     Provisions for wood   (1) Provisions for
 Act provisions.               stork, bald eagle,    wood stork, piping
                               piping plover, and    plover, and
                               interior least tern.  interior least
                                                    (2) Should we add
                                                     provisions for
                                                     snowy plover where
                                                     it is threatened?
(d)(9)(i) Notification......  Required 30-day       (1) Change
                               written notice to     ``breeding colony''
                               RMBPO in advance of   to ``established
                               actions taking more   breeding colony''.
                               than 10 percent of   (2) Define breeding
                               a breeding colony.    colony.
                                                    (3) Define
                                                     breeding colony.

[[Page 69229]]

                                                    (4) Define threshold
                                                     percent from
                                                     biological removal
                                                     (PBR) criteria.
                                                    (5) Clarify whether
                                                     part of the
                                                     threshold percent
                                                     can be taken within
                                                     30 days notice.
(d)(9)(ii) Approval.........  Regional Director     In addition, RMBPO
                               can prevent if long-  acknowledges
                               term sustainability   receipt.
                               of DCCOs or any
                               other migratory
                               bird species is
(d)(10) Recordkeeping.......  Number of nests       (1) Define location:
                               oiled by date and
                                                     (a) During breeding
                                                     season use colony
                                                     (b) During
                                                     nonbreeding season
                                                     use next larger
                                                     scale (e.g., bay,
                                                     lake, area, etc.).
                                                    (2) Add number of
                                                     nests destroyed,
                                                     empty nests, and
                                                     otherwise untreated
                                                     nests, by date and
(d)(11) Reporting period....  (1) October 1 to      (1) Report on
                               September 30          calendar year.
                               reporting period.    (2) Due March 15th
                                                     of the following
                              (2) Due December 31.
(d)(12) Requirements if       (1) Evaluate effects  (1) Define ``local
 reducing or eliminating a     of management         breeding
 local breeding population.    activities on DCCOs   population.''
                               at the control site. (2) Distinguish and
                              (2) Evaluate, by       define
                               means of collecting   ``established''
                               data or using best    local breeding
                               available             population.
                               information,         (3) Should we
                               effects of            require data
                               management            collection and
                               activities on the     eliminate using
                               public resources      best available
                               being protected and   information?
                               on nontarget
(f) Expiration..............  June 30, 2014.......  Should we have an
                                                     expiration date? If
                                                     so, when?
Other: Justification........  ....................  Agreement between
                                                     USFWS Regions on
                                                     regarding impact to
Definitions.................  ....................  Define regional
Timing of control...........  ....................  Should we require a
                                                     moratorium on
                                                     shooting adults
                                                     when nestlings are
Bald and Golden Eagle         ....................  Add provisions for
 Protection Act provisions.                          bald eagle
State-wide coordination       ....................  Should this be
 groups.                                             required if there
                                                     is more than one
                                                     action agency in a

    In addition, APHIS-WS and some State fish and wildlife agencies 
have continued to express interest in the Regional Population 
Regulation alternative (formerly referred to as Regional Population 
Reduction), though we considered and rejected that alternative in the 
2003 EIS. To assist us in further evaluating that alternative, we are 
requesting information that will help us answer the following 
    (1) Define ``regional.''
    a. What scale?
    b. What geographic area?
    (2) How will population objectives be established?
    a. Breeding population?
    b. Wintering population?
    (3) How will birds breeding in Canada be incorporated?
    (4) How will allowable take be allocated by State?
    (5) How will allocated take be distributed, and how will this 
affect take by aquaculture producers?
    (6) Where does the funding come from to implement this alternative?
    (7) What are the implications of taking birds that are not directly 
causing damage? Does this alternative just shift the public pressure to 
the national level?
    (8) What are the implications if this alternative does not have the 
desired effect and local conflicts continue to occur?
    You may submit your comments and supporting materials only by one 
of the methods listed in the ADDRESSES section. We will not consider 
comments sent by email or fax, or written comments sent to an address 
other than the one listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request that we withhold this 
information from public review, but we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this notice, will be available for 
public inspection at http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service 

Literature Cited

Fielder, D.G. 2010. Response of yellow perch in Les Cheneaux 
Islands, Lake Huron to declining numbers of double-crested 
cormorants stemming from control activities. Journal of Great Lakes 
Research 36:207-214.
Glahn, J.F. and K.E. Brugger. 1995. The impact of Double-crested 
Cormorants on the Mississippi Delta catfish industry: A 
bioenergetics model. Colonial Waterbirds 18:168-175.
Hebert, C.E., J. Duffe, D.V.C. Weseloh, E.M.T. Senese, and G.D. 
Haffner. 2005. Unique island habitats may be threatened by

[[Page 69230]]

Double-crested Cormorants. Journal of Wildlife Management 69:68-76.
Rudstam, L.G., A.J. VanDeValk, C.M. Adams, J.T.H. Coleman, J.L. 
Forney, and M.E. Richmond. 2004. Cormorant predation and the 
population dynamics of walleye and yellow perch in Oneida Lake. 
Ecological Applications 14:149-163.
Seefelt, N.E. and J.C. Gillingham. 2006. Foraging locations of 
Double-crested Cormorants in the Beaver Archipelago of northern Lake 
Michigan: Potential for impacts on smallmouth bass. Waterbirds 
Somers, C.M., M.N. Lozer, and J.S. Quinn. 2007. Interactions between 
Double-crested Cormorants and Herring Gulls at a shared breeding 
site. Waterbirds 30:241-250.
U.S. Fish and Wildlife Service. 2003. Final Environmental Impact 
Statement: Double-crested Cormorant Management in the United States. 
U.S. Department of the Interior Fish and Wildlife Service, Division 
of Migratory Bird Management, Arlington, Virginia. Available at: 
U.S. Fish and Wildlife Service. 2009a. Final Environmental 
Assessment: Extended Management of Double-crested Cormorants Under 
50 CFR 21.47 and 21.48. U.S. Department of the Interior Fish and 
Wildlife Service, Division of Migratory Bird Management, Arlington, 
Virginia. Available at: http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/cormorant/cormorant.html.
U.S. Fish and Wildlife Service. 2009b. Migratory Bird Permits: 
Revision of Expiration Dates for Double-crested Cormorant 
Depredation Orders. Federal Register 74:15394-15398. Available at: 
Wires, L.R. and F.J. Cuthbert. 2006. Historic Populations of the 
Double-crested Cormorant (Phalacrocorax auritus): Implications for 
Conservation and Management in the 21st Century. Waterbirds 29:9-37.

    Dated: October 17, 2011.
Eileen Sobeck,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-28755 Filed 11-7-11; 8:45 am]