[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Rules and Regulations]
[Pages 30474-30483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12318]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2013-0135; FF09M21200-145-FXMB1232099BPP0]
RIN 1018-AX82


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; availability of environmental assessment.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), revise the two 
depredation orders for double-crested cormorants (Phalacrocorax 
auritus, DCCOs). We extend the expiration dates for the orders for 5 
years to allow State and Tribal resource management agencies to 
continue to manage DCCO problems and gather data on the effects of DCCO 
control actions. We have prepared a final environmental assessment 
(FEA) to analyze the environmental impacts associated with this 
extension. We change the annual reporting date for the depredation 
order to protect public resources, remove requirements for DCCO control 
activities around bald eagles and bald eagle nests for both orders, and 
require use of the National Bald Eagle Management Guidelines for both 
orders. We also add a requirement for the use of nontoxic rifle bullets 
for anyone using centerfire rifles to control DCCOs under the orders, 
beginning on January 1, 2017.

DATES: This rule will be effective on June 27, 2014.

ADDRESSES: Document availability: The FEA and public comments that we 
received on the proposed rule are available at http://www.regulations.gov under Docket No. FWS-HQ-MB-2013-0135, and on our 
Service Web site at http://www.fws.gov/migratorybirds/.

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

SUPPLEMENTARY INFORMATION:

Background

    Under the authority of the Migratory Bird Treaty Act (MBTA) (16 
U.S.C. 703 et seq.), the U.S. Fish and Wildlife Service has primary 
Federal responsibility for managing migratory birds. We carry out this 
responsibility through regulations in title 50 of the Code of Federal 
Regulations (CFR). Part of this process includes issuing permits for 
certain actions dealing with migratory birds. In part 21 of title 50 of 
the CFR, we have established depredation orders for the control of 
certain depredating birds. A depredation order is a regulation that 
allows the take of specific species of migratory birds, at specific 
locations, and for specific purposes, without a depredation permit.
    The Aquaculture Depredation Order at 50 CFR 21.47 allows take of 
double-crested cormorants (DCCOs) to protect stock at aquaculture 
facilities, and the Public Resource Depredation Order at 50 CFR 21.48 
allows take of DCCOs to protect public resources, as set forth in the 
regulations. On March 5, 2014, we published a proposed rule to revise 
these depredation orders by, among other things, extending the 
expiration dates of the orders by 5 years (79 FR 12458). See the 
proposed rule for an explanation of the proposed changes.

Expiration Dates

    We extend the regulations until June 30, 2019. Doing so will not 
pose a significant, detrimental effect on the long-term viability of 
DCCO populations. It will allow State and Tribal resource management 
agencies to continue to manage DCCO problems related to impacts on 
public resources and allow aquaculture producers to address DCCO 
depredation impacts on aquaculture stock under the terms and conditions 
of the depredation orders and gather data on the effects of DCCO 
control actions.
    Entities acting under the depredation orders must follow applicable 
regulations. Depredation control efforts under the orders may take 
place only where cormorants are found committing or about to commit 
depredations under specified conditions, 50 CFR 21.47(c)(1) and 
21.48(c)(1). The regulations include a requirement to initially use 
nonlethal control methods where practicable and effective and not 
harmful to other nesting birds, 50 CFR 21.47(d)(1) and 21.48(d)(1); 
provide notice to FWS indicating their intent to act under the 
depredation order, 50 CFR 21.48(d)(9); and notify the FWS in writing 30 
days in advance if any single control action would individually, or a 
succession of such actions would cumulatively, kill more than 10 
percent of the DCCOs in a breeding colony, 50 CFR 21.48(d)(9)(i). We 
can prohibit cormorant take under the depredation orders if we deem it 
a threat to the long-term sustainability of DCCOs or any other 
migratory bird species, 50 CFR 21.48(d)(9)(ii). Similarly, we can 
suspend or revoke the authority of any person or agency acting pursuant 
to the depredation orders who does not adhere to the orders' purposes,

[[Page 30475]]

terms, and conditions or if the long-term sustainability of DCCO 
populations is threatened, 50 CFR 21.47(d)(10) and 21.48(d)(13).
    Updated population information indicates that the orders have not 
had a significant negative effect on regional DCCO populations (see 
data in the FEA). To summarize the FEA here, a 2006 study by Wetlands 
International estimated the continental DCCO population at between 1 to 
2 million birds of four recognized subspecies. In the southeastern 
United States, though numbers of cormorants declined 46% in both 
Mississippi and Alabama from the peak count in 2004, cormorants in the 
region have undergone dramatic increases in the last 20 years; and, in 
a 2006 study, Mississippi populations at some colonies are likely 
greater than the pre-1990 levels. The Southern US estimates between 
37,000-73,000 birds. In the U.S. Great Lakes from 1997 to 2011, the 
cormorant population was between 45,626 and 53,802 breeding pairs 
(nests). Under various DCCO management scenarios, we estimate that the 
Great Lakes DCCO population would be lower than current numbers but 
would remain significantly higher than populations in the early 1990s.
    The depredation orders will now expire on June 30, 2019. If we 
determine that future changes to the depredation orders are necessary 
to eliminate an expiration date or make other changes, we will publish 
the requisite documents in the Federal Register to make those changes.

Other Changes to the Depredation Orders

    We make other changes to the depredation orders at 50 CFR 21.47 and 
21.48 to bring them in line with our current regulations and practices. 
We add a January 31st reporting deadline to the depredation order at 
aquaculture facilities (50 CFR 21.47), and we change the annual 
reporting date for the depredation order to protect public resources 
(50 CFR 21.48) to January 31 to give respondents an additional month to 
submit the requisite information. The two depredation orders now will 
have the same reporting date.
    In addition, we update both depredation orders to remove the 
requirements for cormorant control activities around bald eagles 
(Haliaeetus leucocephalus) and bald eagle nests. These requirements for 
bald eagles and bald eagle nests were included in the depredation 
orders because the species was protected at that time by the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.). The bald eagle has since 
been removed from the Federal List of Endangered and Threatened 
Wildlife (72 FR 37345; July 9, 2007), so the requirements no longer 
apply. In lieu of those protections, we revise the depredation orders 
to require use of the National Bald Eagle Management Guidelines (72 FR 
31156; June 5, 2007) for both depredation orders. The guidelines 
provide information to land managers, landowners, and others on ways to 
avoid disturbing bald eagles and their nests.

Comments on the Proposed Rule and Draft Environmental Assessment

    We received 30 comments from individuals, organizations, State 
agencies, and Flyways on the March 5, 2014, proposed rule (79 FR 12458-
12461) and draft environmental assessment (DEA). State natural resource 
agencies, the Flyway Councils, and several individuals encouraged 
continuation and expansion of the depredation orders. Most individuals, 
nongovernmental organizations, and academic institutions that commented 
opposed continuation of the orders. Below are the comments that we 
consider significant or representative and our responses to them.
    Comment. ``By their own choice, fishermen on the Great Lakes and 
politicians blindly supporting them, have conveniently disregarded 
scientific data that demonstrate the minimal effect cormorants have on 
overall fish stocks. Cormorants are opportunistic feeders, feeding on 
the most available species at any particular time. Although capable of 
reaching greater depths, cormorants typically dive to about twenty feet 
during their pursuit dives, preying on forage species gathering for 
seasonal spawning, favorable temperatures, and searching for their own 
prey species. Some species are the same species sought by fishermen, 
such as smallmouth bass, yellow perch, and walleye, but when conditions 
change and these fish move to deeper waters cormorants move on to other 
non-game species such as alewives, sunfish, and round gobies. Gamefish 
constitute a small portion of the cormorant's total diet.''
    Response. The numerous studies cited in the DEA document the 
difficulty in assessing the causes of sport fish and commercial fish 
population declines. However, as we noted, it is not just through 
direct take of game fish that DCCOs can contribute to sport fish and 
commercial fish declines; in some circumstances, DCCO predation on 
forage fish that comprise the diet of game fish can also impact the 
latter species. The Public Resource Depredation Order requires 
fisheries management agencies to describe the evidence that supports 
their conclusion that DCCOs are causing or will cause impacts to fish 
populations, and that DCCO management is needed. This justification is 
based on fish population assessments, angler harvest data, research 
studies, and/or expert opinion.
    Comment. ``Both recreational and commercial fishermen have 
continually failed to recognize the effects of overfishing. It was no 
coincidence that the extinctions of the lake trout in Lake Ontario in 
the 1950s and followed by the Atlantic salmon in the early 1990s were 
followed by tremendous blooms in the populations of forage fish--with 
fewer predators in the lake the predator-prey relationship changed 
drastically. Hundreds perhaps thousands, of sport charter trips each 
season that encouraged clients to fill their coolers and home freezers 
with sport fish further taxed remaining predator stocks. (Some species 
were still contaminated with industrial and agricultural pollutants and 
not recommended for frequent human consumption--zero consumption by 
expectant mothers--by the New York State Department of Environmental 
Conservation). The resulting rapidly expanding forage populations 
suited nesting cormorants just fine. In the North, there were now 
virtually unlimited food sources available to feed their chicks, 
further enhancing cormorant expansion. (In the South, the new open 
catfish ponds provided winter forage, keeping cormorants healthy for 
their northern migration in the spring.)''
    Response. We acknowledge that numerous factors (perhaps including 
overfishing) can affect fish population and community dynamics. This 
can result in increases in certain fish species that are readily preyed 
on by DCCOs. This, in turn, can increase their survival and 
productivity rates and, ultimately, their populations.
    Comment. ``Another factor influencing the expansion of cormorant 
populations and territories was the introduction of new and invasive 
species such as alewives, through the construction of canals bypassing 
the barrier of Niagara Falls; round gobies, probably introduced through 
the ballast of foreign freighters; and the arrival of the parasitic sea 
lamprey through the St. Lawrence Seaway, which further decimated 
predatory salmon and trout in the Great Lakes. Cormorants had nothing 
to do with these destructive, human-generated influences, yet pay the 
price due to outmoded thinking.''
    Response. We acknowledged in the FEIS and the DEA that introduced 
species, particularly the alewife (Alosa

[[Page 30476]]

pseudoharengus) and the round goby (Apollonia melanostoma), played a 
role in DCCO population and distribution changes. As noted in the DEA, 
the DCCO population changes also adversely affected both other bird 
species and habitats for other species; through physical and chemical 
means, DCCOs damage, and often kill, shrubs and trees where they nest 
and roost.
    Comment. ``In the South, catfish farming came about in the 1960s as 
a result of depressed prices farmers were getting for row crops such as 
corn and soybeans. As a second effort, catfish ponds were constructed 
on shoestring budgets and weak business plans. Catfish farmers have now 
had at least four full decades to learn how to improve and protect 
their facilities and investments. They found time and funding to create 
numerous associations, build their own feed and processing plants, and 
develop advertising campaigns and distribution systems. But still their 
business plans depend on government ``technicians'' and taxpayer 
dollars to thin cormorant populations rather than incorporating 
realistic budgets for securing their unprotected ponds. When will it be 
time for the catfish growers to step up and assume responsibility for 
their own industry instead of four decades of ``crying wolf'' as a 
victim?''
    Response. The regulations at 50 CFR 21.47(d)(1) of the Aquaculture 
Depredation Order specify that ``Persons operating under paragraph 
(c)(1) of this section may only do so in conjunction with an 
established nonlethal harassment program as certified by officials of 
the Wildlife Services program of the U.S. Department of Agriculture 
Animal and Plant Health Inspection Service.''
    Most Control of depredating DCCOs at aquaculture facilities depends 
neither on ``government technicians'' nor government funding for 
control. Lethal control at aquaculture facilities usually is done by 
the permittees--in conjunction with nonlethal control. Most migratory 
bird depredation control, either under permits or depredation orders, 
is done by the permittees.
    Comment. ``Here on lower Green Bay I have monitored cormorant 
nesting since I discovered the first handful of nests in 1976. Last 
year after shooting and oiling eggs for the past order period, we had 
only 640 nesting pairs, approximately a 70% decline from the peak 
nesting numbers. There was [sic] never any scientific studies 
demonstrating that cormorants had any effect on Yellow Perch 
populations on the bay. The one study done only used data from the once 
in decade exceptional perch reproduction year, which cormorants 
committed to their diet as the easiest thing to catch. Data from 
previous years and post years revealed a much different diet 
composition. That study also never took into consideration that 
Wisconsin DNR planted 89.2 million Walleye fry into the system which 
also ate Yellow Perch 24/7. No consideration was given to the fact that 
cormorants in late July through September consume vast numbers of 
Gizzard Shad which now have reached nuisance numbers on the lower bay 
and which not only compete with perch for food resources but also dine 
on perch eggs and larval young. Single species management to solve a 
complex problem never works and often compounds it. The order has also 
affected other colonial species nesting on Cat Island. Great Egrets and 
Black-crowned Night Herons (state watch species) have stopped nesting 
on Cat Island. In the past eggs of these species were ``accidently'' 
oiled along with cormorant eggs. Reproduction of White Pelicans on Cat 
Island has decreased with the amount of cormorant egg oiling activity. 
The Fish and Wildlife Service has not properly monitored control 
activities and their effects on other associated species.''
    Response. While the impacts (if any) of DCCOs on yellow perch are 
difficult to measure, reducing DCCO consumption of yellow perch is not 
the main focus of DCCO control on lower Green Bay. The latest 
correspondence the FWS received from the Wisconsin Department of 
Natural Resources (WDNR) indicated a major focus of DCCO control on 
lower Green Bay is to ``. . . maintain a colony size [on the Cat-Lone 
Tree Island complex] that will not likely expand and threaten the 
remaining woody vegetation on nearby Lone Tree Island which supports 
nesting Great Egrets and Black-crowned Night-Herons, or onto newly 
created dredge spoil islands in future years.'' With respect to the 
impact of DCCO control activities on other bird species, the WDNR's 
latest annual report indicated that no incidental take of co-nesting 
birds occurred. Various measures are taken to minimize the likelihood 
of incidental take of other bird species during DCCO management 
activities, including minimizing the number and duration of visits to 
DCCO colonies, avoiding visits on days of extreme temperature or 
precipitation, shooting DCCOs in some cases at sites away from a 
nesting island, and training shooters in bird identification and 
marksmanship.
    Comment. ``In the text of its proposal for extending the current 
depredation orders the USFWS claimed it collected data during the last 
five-year extension regarding cormorant populations in support of the 
new five-year extension. Merely reporting that depredation orders ``had 
not had any significant effect on double-crested cormorant 
populations'' is not sufficient evidence to extend the various versions 
of the depredation orders. The USFWS offers no positive evidence that 
killing cormorants has helped to rebuild wild fish stocks weakened 
primarily by overfishing, invasive species, pollution, and development. 
It appears that the agency is more willing to maintain the status quo 
of passing its duties to state bureaus than exercising its 
responsibility for ``managing'' cormorant issues.''
    Response. We did not just report that the depredation orders ``had 
not had any significant effect on double-crested cormorant 
populations''; data in Table 2 of the DEA showed that the total Great 
Lakes population was about 26% larger in 2009 than it had been in 1997. 
Though the data in the DEA are the best available, other data indicate 
that DCCO populations continue to grow. For example, although the North 
American Breeding Bird Survey (BBS) is not intended for monitoring 
DCCOs, in every Bird Conservation Region, State, or Province around the 
Great Lakes for which there are BBS data, the population trend is 
generally positive since 1966, close to 5% nationally but ranging from 
2 to over 20% depending on the state/region (http://www.mbr-pwrc.usgs.gov/cgi-bin/atlasa12c.pl?01200&1&12). Our obligation under 
the Migratory Bird Treaty Act is to ensure the well-being of 
populations of protected species, which we will continue to do for 
DCCOs. We continue to believe that efforts to address the adverse 
impacts of DCCOs on habitats and fisheries under the depredation orders 
have been limited in scope, and have not impacted the sustainability of 
regional DCCO populations.
    The FWS does not ``pass its duties to state bureaus.'' We have a 
long history of working with the States and tribes on management of 
migratory birds and other shared resources. We will continue to work 
with them on DCCO management. With respect to DCCO impacts on fish, 
State natural resource agencies usually have legal responsibility for 
fisheries management and the FWS recognizes the States' role in 
documenting such impacts. Again, we can suspend or revoke the authority 
of any person or agency acting pursuant

[[Page 30477]]

to the depredation orders who does not adhere to the orders' purposes, 
terms, and conditions, 50 CFR 21.48(d)(13).
    Comment. ``FWS offers no explanation for why it has been unable to 
conduct a thorough review of the issue during the past five years. 
Indeed, FWS implies that it has not taken the time to examine any 
aspect of the issues since it offers no report on what, if anything, it 
has learned or done in the past five years.
    Instead, FWS states in the DEA that it will address concerns and 
alternatives ``in a subsequent analysis'' but without specifying when. 
Since FWS regards extending the Orders by another five years to be only 
``an interim measure'' one can reasonably expect that its state of 
review will not have progressed when this extension expires in 2019.
    In short, FWS appears to be using its lack of diligence and rigor 
as a justification for ``Xeroxing forward'' a largely unexamined 
policy.''
    Comment. ``I also support this Alternative [A], in part, because 
all decisions on cormorant management seem to have been largely driven 
by the powerful aquaculture industry and sport angler/tourism-related 
citizen groups, with little to no voice given to the scientific 
community. Furthermore, there has been very little consistent 
monitoring to determine effectiveness of control, primarily because it 
is difficult to obtain the data and because the Fish and Wildlife 
Service is unwilling to extend the resources needed to evaluate the 
effects of the depredation orders.''
    Response to these comments. We believe that the scientific 
community (including biologists and researchers who work for the FWS, 
State and Tribal agencies, and USDA Wildlife Services) has played an 
important and growing role in DCCO management by designing and 
conducting studies and monitoring programs that better document the 
impacts of DCCOs on public resources and aquaculture stock, assess the 
effectiveness of DCCO management actions, and track DCCO and co-nester 
population trends in response to management. This information is used 
in an adaptive context to adjust DCCO control activities. In the Great 
Lakes, the FWS works with State and Tribal agencies, USDA Wildlife 
Services, and researchers to monitor DCCO numbers, distribution, and 
trends as an index to assessing the health of the Interior population 
of DCCOs. Monitoring of impacted resources is also being done to 
document problems and evaluate whether DCCO control activities are 
effective in alleviating them; such monitoring is often challenging and 
expensive and not as comprehensive as some commenters would like. 
However, as shown in the DEA, the depredation orders are not affecting 
the sustainability of regional DCCO populations. In the U.S. Great 
Lakes region, where DCCO control has been most intensive, the 
population in 2009 was 27% greater than it had been in 1997.
    Comment. In this instance, FWS has impermissibly sought to use the 
lack of information as the basis for its review of potential 
environmental impacts.
    Response. This comment is not correct. Data in the FEA, such as the 
Great Lakes region, and other data show that DCCO populations have 
continued to expand with the depredation orders in place. Again, in the 
southeastern United States, cormorants in the Mississippi and Alabama 
region have undergone dramatic increases in the last 20 years, with 
some Mississippi populations at some colonies likely greater than the 
pre-1990 levels. The data support continuing the regulations allowing 
for depredation orders and allowing DCCO lethal control after nonlethal 
control has been attempted, for 5 more years.
    Comment. According to the DEA, together the two Orders authorize 
lethal take of an estimated 160,000 DCCOs per year although the agency 
estimates that only 27% of the authorization is exercised, meaning that 
more than 43,000 birds were ``harvested'' annually during the period 
from 2004 to 2012.
    The DEA contains population modeling which is the first time FWS 
has directly addressed effects of the Orders on future DCCO population. 
In one modeling scenario, the Service estimates that as much as a 48% 
decline in the entire DCCO population could result. While the 
percentages of the DCCO population lost vary in different modeling 
scenarios, there is no question that extension of the Orders will have 
a significant impact on these populations.
    Response. This is not the first time the FWS has employed 
population modeling to evaluate various DCCO management scenarios; we 
did so in 2009 (FR 74 15394) when we originally extended the expiration 
dates of the depredation orders. Though some models indicate that the 
DCCO population could decline, data in the DEA, such as the Great 
Lakes, Alabama, and Mississippi described above, show that the 
population has continued to grow with the depredation orders in place. 
We expect to further refine our modeling efforts when we do a more 
comprehensive NEPA analysis.
    Comment. ``CEQ regulation 40 CFR 1508.9(a)(1) stipulates that an EA 
must ``Briefly provide sufficient evidence and analysis for determining 
whether to prepare an environmental impact statement or a finding of no 
significant impact.''
    This EA does not do so, despite the agency's statement in the 2011 
Federal Register notice that the decision of whether to prepare a 
Supplement Environmental Impact Statement or an Environmental 
Assessment would be based on NEPA and its implementing regulations 76 
FR 69226. FWS has provided no support for its conclusion that an EIS or 
SEIS is not required under NEPA--but rather has stated that it did not 
prepare an SEIS because of ``constraints on our ability to conduct the 
work necessary to complete a supplemental environmental impact 
statement.'' 79 FR 12458 (March 5, 2014). Again, failure to do the 
necessary work does not excuse compliance with NEPA.''
    Response. This argument is incorrect. We completed an environmental 
assessment that supports continuing the depredation orders for five 
more years without major changes. We stated in the DEA that ``[t]his EA 
is sufficient to assess the environmental impacts of this action and 
assist our decision-making process.'' We established in a Finding of No 
Significant Impact that an environmental impact statement is not needed 
for us to extend the orders without substantial changes. As we noted 
earlier, we would like to do a more comprehensive NEPA analysis in 
which we may consider more substantive modifications and expansion of 
the depredation orders, as requested by States.
    Comment. ``In accordance with the Council on Environmental Quality 
regulations, an environmental assessment must include a brief 
discussion of alternatives. 40 CFR 1508.9(b). ``[C]onsideration of 
alternatives is critical to the goals of NEPA even where a proposed 
action does not trigger the EIS process . . .''. Bob Marshall Alliance 
v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988).
    Limiting the alternatives to letting the Orders expire, renewing 
them for 5 years and renewing them indefinitely--without even 
considering modifications to the Orders--cannot meet the requirement to 
consider reasonable alternatives. Save Our Cumberland Mts. v. 
Kempthorne, 453 F.3d 334, 345 (6th Cir. 2006). See also Davis v. 
Mineta, 302 F.3d 1104 (10th Cir. 2002) (rejecting alternatives analysis 
limited to choice between build and no build); Muckleshoot Indian Tribe 
v. U.S. Forest Serv., 177 F.3d 800, 813 (9th Cir. 1999) (consideration 
of no action and two

[[Page 30478]]

virtually identical alternatives insufficient).''
    Response. We disagree, and believe that this comment misrepresents 
the alternatives. They ranged from the restrictive choice desired by 
some commenters (eliminating the depredation orders and allowing take 
only under permits) to continuing operating indefinitely under 
regulations that we believe have had no significant effect of the 
sustainability of regional DCCO populations.
    Comment. The inability of the USFWS to follow the EIS procedure 
does little to promote science-based management, conserve migratory 
birds protected under the Migratory Bird Treaty Act, or promote the 
mission of the USFWS.
    Response. We have followed appropriate NEPA procedures. We 
established in a Finding of No Significant Impact that an EIS is not 
needed for us to assess continuing the depredation orders for five more 
years without significant changes.
    Comment. ``The loss of approximately one half million large, long-
lived migratory birds is unquestionably a significant environmental 
impact requiring more than the cursory assessment FWS has given it. 
This action requires a full EIS or SEIS rather than merely this DEA.''
    Response. We disagree. Data show that the DCCO population in the 
United States remains healthy, despite control under the depredation 
orders. Again nationally there is estimated between 1 to 2 million 
birds. In the U.S. Great Lakes from 1997 to 2011, the cormorant 
population has increased to between 45,626 and 53,802 breeding pairs 
(nests). We established in a Finding of No Significant Impact that an 
EIS or SEIS is not needed to allow us to continue the depredation 
orders for 5 more years without substantial changes.
    Comment. ``Another problem connected with repeated shooting 
campaigns is that there is no valid way to evaluate or monitor their 
efficiency. So many factors contribute to the rise and fall of wild 
fish populations that isolating the effects of a single action is 
problematic. Without a way of measuring the effectiveness of the 
culling policies there is no way for managers to know when they are 
done. When is it over? How many dead wild cormorants does it take to 
finish the job?''
    Response. We agree that it is challenging to evaluate the effects 
of DCCO management on fish populations. However, a number of State 
agencies are assessing various fish response parameters (population 
size, age structure, angler harvest) and their relationship to DCCO 
population changes following control. Furthermore, DCCOs can 
detrimentally impact plants and habitats of other bird species. Through 
physical and chemical means, DCCOs damage, and often kill, shrubs and 
trees where they nest and roost, if not modifying the plant community.
    Comment. Significantly, the specific impacts the Orders will have 
depend upon factors such as the extent and manner of state 
implementation--factors that FWS chooses not to oversee or even 
meaningfully address. Thus, FWS proposes to continue policies that will 
have largely unknown impacts with no plan to fill in those data gaps.
    Comment. ``Most FWS management plans for other migratory species 
seek to preserve and enhance the status of these species within 
healthy, functioning ecosystems. In the case of the DCCO, maintaining a 
healthy population status is barely an afterthought for FWS.''
    Response to these comments. In the Great Lakes, the FWS has worked 
with USDA Wildlife Services and State and Tribal agencies to develop 
environmental assessments that step down the 2003 FEIS, and these 
documents set limits on DCCO take at the state level that will maintain 
the sustainability of DCCO populations. Data in the DEA and other data 
continue to show that the DCCO population is substantial. Again, the 
cormorant population was between 45,626 and 53,802 breeding pairs 
(nests) in the Great Lakes from 1997 to 2011. We will continue to 
oversee take under the depredation orders and to monitor DCCO numbers, 
distribution, and trends in the Great Lakes to ensure that the 
sustainability of regional DCCO populations is maintained. Again 
nationally, there are between 1 to 2 million birds.
    Comment. ``. . . FWS should allow these orders to expire until such 
time that FWS has adequate resources to deal thoroughly with the issues 
involved and answer the comments, suggestions, and questions raised by 
the public since the Final Environmental Impact Statement (FEIS) was 
issued in 2003.'' ``The loss of approximately a half million large, 
long-lived migratory birds seems to be a fairly significant event 
deserving more attention than FWS has been willing to give it. The 
correct action is to let the Orders expire and discover whether or not 
they are important enough to free up the resources needed to do the job 
properly.''
    Response. States and tribes have made it clear that they support 
continuing the Public Resource Depredation Order because it gives them 
an option (besides required non-lethal options) for dealing with DCCO 
impacts on fisheries and habitat. Data in the DEA show that the DCCO 
population is healthy. As we noted, in the U.S. Great Lakes region, 
where DCCO control has been most intensive, the population in 2009 was 
27% greater than it had been in 1997. With respect to the Aquaculture 
Depredation Order, as reported in the DEA, anecdotal observations from 
APHIS-WS indicate that changes in aquaculture operations may be leading 
to greater concentrations of DCCOs in some remaining facilities, 
leading to even more severe damage to aquaculture stock at those 
facilities than has been previously observed. Continuation of the 
depredation order and monitoring the impacts of damage-management 
actions on DCCOs and nontarget species will continue to allow control 
of depredation problems in a responsible and efficient manner. We will 
still be able to assess take of DCCOs and its effects on their 
population sustainability.
    Comment. ``The PRDO applies only to Public resources. Even though a 
convoluted argument can be constructed to link cormorants on private 
lands to potential predation on fish inhabiting public lands, to do so 
is absurd. Of course fish-eating birds eat fish, whether on private or 
public property. That is what predators do and to issue a blanket 
declaration that they are nuisances everywhere is to accept that 
predation is unacceptable at all times and places. That, in effect, is 
what the absurd legalistic language, ``committing or about to commit 
depredation'', does. All predators, including humans, commit 
depredations under this construct and it is silly to pretend otherwise; 
the issue here is not about the words but it is about extending the 
PRDO to private lands that are already adequately covered by the 
individual permit program. The PRDO requires documentation that control 
actions are directed at resolving a resource problem. The Texas 
Nuisance Permit has no such provision, it effectively declares all DCCO 
a nuisance and allows unlimited take by any Texas hunting license 
holder with $13 and permission of a landowner regardless of whether or 
not there is loss of public resources.''
    Comment. ``In Texas, the PRDO that FWS would renew would continue 
the Nuisance Double-crested Cormorant Control Permit program in that 
state [see http://www.tpwd.state.tx.us/business/permits/land/wildlife/cormorant/]. This permit program appears to be lack [sic] any 
reasonable management control and

[[Page 30479]]

is in conflict with the PRDO in a number of respects.''
    Response to these comments. We appreciate the commenters bringing 
this issue to our attention. Texas Administrative Code Rule Sec.  
65.901 (http://info.sos.state.tx.us/pls/pub/
readtac$ext.TacPage?sl=R&app=9&p--dir=&p--rloc=&p--tloc=&p--
ploc=&pg=1&p--tac=&ti=31&pt=2&ch=65&rl=901) appears not to comply with 
50 CFR 21.48 because it allows take of DCCOs on private land even 
though the DCCOs are not necessarily linked to any adverse effect on 
public resources. We will work with the State of Texas on this issue, 
and if the State does not revise its code to match the provisions of 50 
CFR 21.48, we will remove Texas from the list of States that are 
authorized to implement the Public Resource Depredation Order.
    All migratory bird permits and regulations that allow take disallow 
take of that species not covered under the permit or regulation--even 
the same species if the manner of that take is not permitted. Following 
the terms of the permit or regulation is an obligation of the permittee 
or any person, organization, or agency entity acting under a control or 
depredation order. Failure to abide to the terms of the depredation 
order may lead to suspending or revoking the authority of any person or 
agency acting pursuant to the depredation orders and prosecution under 
the MBTA.
    Comment. ``We believe that implementing a regional management 
approach for this species is the optimal long term solution to 
balancing the viability of double-crested cormorant populations with 
conservation of public fisheries and wildlife while also being 
responsive to societal concerns about impacts to private property and 
human safety. The review and update of the Final Environmental Impact 
Statement on double-crested cormorant management is of paramount 
importance.
    We support the proposed regulatory changes as the best option to 
address issues while protecting populations in the short term. This 
support is predicated on the timely completion of an update of the FEIS 
prior to the proposed 2019 expiration dates of the federal depredation 
orders.'' (Michigan Department of Natural Resources)
    Response. We intend to complete a comprehensive NEPA analysis, 
which could result in a Supplemental EIS, as our resources allow. We 
wish to complete a more comprehensive NEPA analysis on DCCO management 
because additional State agencies have requested that they be covered 
under the Public Resource Depredation Order (see the comments from the 
Pacific Flyway) and because we received a number of other comments in 
response to our 2011 Notice of Intent to update our NEPA evaluation for 
the depredation orders (76 FR 69225) to make other changes to the 
depredation orders and to consider a regional (rather than to update 
NEPA local) approach to DCCO management, as suggested by the above 
comment.
    Comment. The [Pacific Flyway] Council recognizes that the 
alternatives and modifications [to the depredation orders] proposed in 
our [April 6, 2012] letter addressing western conflicts and concerns 
[made in response to a November 2011 FWS Notice of Intent to update the 
2003 DCCO EIS] were not considered in the draft Environmental 
Assessment (December 2013). We also understand that the depredation 
order needs to be extended to allow for central and southeastern states 
to continue to manage cormorant conflicts. Therefore, the Council 
requests extending the expiration dates of the existing depredation 
orders a maximum of two years (i.e., June 30, 2016). This will allow 
time for the USFWS to complete a full analysis of the proposals 
provided during the 2011-2012 public comment period (including the 
Council recommendations attached), and finalize the SEIS for the 
management of cormorant populations across the United States.
    Response. We appreciate the Flyway's interest in allowing States 
that need to use the Public Resource Depredation Order to continue to 
operate under it. However, two years is not sufficient time to consider 
additional issues and complete a comprehensive NEPA analysis, which 
could lead to a Supplemental EIS. In addition, we do not have the 
resources to work on the NEPA analysis at this time.
    Comment. ``The population modeling presented in Appendices 3 and 4 
is a welcome beginning toward resolving some of the issues involved in 
continuing the Orders. However, as complicated and elegant as these 
modeling exercises appear, they are impossible for most of the public 
to evaluate, particularly within the limited amount of time available 
for making comments. At best, these models are limited in value because 
they address only one narrow point of view in the overall discussion. 
That point is the potential of the Orders to threaten the continued 
existence of the species. Even though FWS has apparently decided that 
constitutes its primary, effectively sole, responsibility, this is a 
very limited perspective not generally adopted in other management 
actions by FWS. Most of the management plans adopted by FWS for other 
migratory species seek to preserve and enhance the status of these 
species within healthy, functioning ecosystems. Cutting through the 
mathematical complexity of this modeling approach, the important part 
of the modeling is the imposition of killing of adults and suppression 
of reproduction. This is the point of F0 in the equations. 
The appendices presume that control at various levels is a given and 
only look at whether or not hypothetical populations will reach some 
stochastic equilibrium that has a low probability of including the 
possibility of extinction. The real question that should be first on 
the table for discussion is what the desired future state of the 
population should be and whether or not that will achieve underlying 
goals of population management. In plain language, this gets back to 
the issue of resource allocation. All the sophisticated mathematics 
within these appendices, while instructive in an academic sense, do not 
address this issue. FWS has again failed to address this fundamental 
issue and is not collecting the data necessary to inform decisions 
about the issue. The sophisticated mathematical models used here are 
misdirected relative to the Orders. Analytical resources should be 
focused on evaluating the effectiveness of the Orders in meeting 
objectives related to the original justification for issuing the 
Orders, namely, changes in fisheries, protection of vegetation, and 
protection of habitat for co-nesting species of birds.''
    Response. The modeling shows take levels allowed using conservative 
assumptions about the DCCO population. Compared to the very 
conservative F0 value of 0.5, take under the PRDO will allow 
continued maintenance of the DCCO population, assuming there are no 
large additional impacts to it, such as disease or contaminants. The 
models indicate that take under the Aquatic Resources Depredation Order 
needs to be rather conservative. We expect to continue to continue 
development and use of the models and the take under the orders more 
thoroughly in our future NEPA analysis.
    Comment. We [Mississippi Flyway Council] believe that the proposed 
regulatory changes provide the best option to allow state and Tribal 
resource agencies to continue management of double-crested cormorants 
while maintaining long-term viability of the double-crested cormorant 
population. However, we feel that this is a temporary solution at best, 
and it is imperative that the Final Environmental

[[Page 30480]]

Impact Statement on double-crested cormorant management be reviewed and 
updated prior to the projected expiration of these depredation orders 
in 2019. We continue to support moving to a regional management 
paradigm for this species.
    Response to these comments. We appreciate these suggestions. We 
will consider them when we undertake a comprehensive NEPA analysis of 
the existing EIS and regulations. Though budget and personnel cuts and 
sequestration preclude doing so now, we hope in the future to conduct 
comprehensive NEPA. We wish to complete the comprehensive NEPA analysis 
of DCCO management because additional States have requested that they 
be covered under the Public Resource Depredation Order (see the 
comments from the Pacific Flyway). In addition, we received a number of 
other comments, in response to our 2011 Notice of Intent (76 FR 69225), 
to make other changes to the depredation orders and to consider a 
regional (rather than local) approach to DCCO management.
    Comment. ``The Arkansas Game and Fish Commission has reviewed the 
U.S. Fish and Wildlife Service's proposal to extend the two depredation 
orders for DCCOs for another five years. The extension of these 
depredation orders will continue to allow us the ability to control the 
DCCO populations at our state-run hatcheries and on selected public 
fishing waters and therefore we support the proposal.''
    Comment. ``The Ohio Department of Natural Resources, Division of 
Wildlife supports the extension of the current depredation orders for 5 
years. The Division of Wildlife has used the Public Resource 
Depredation Order since 2006, and the Order has allowed valuable 
nesting habitat of colonial waders to be preserved through cormorant 
management. We also support the other changes to the depredation orders 
including changing the reporting date and making changes to reflect the 
current status of bald eagles.
    Response to these comments. None.
    Comment. We would also like to propose one other minor change to be 
implemented with this rule. The Public Resource Depredation Order 
currently requires that all carcasses must be donated, incinerated, or 
buried. We believe that carcasses should be allowed to lie where they 
fall. Cormorant culls on the Ohio Lake Erie islands are conducted to 
conserve valuable nesting habitat for state-listed waders such as 
black-crowned night-herons and great egrets. During culls, substantial 
effort is made to reduce disturbance to the co-nesting waders through 
the use of suppressed rifles, camouflage clothing, maintaining 
distances from areas of concentrated heron nests, etc. However, all of 
these efforts are negated when carcasses are collected. Greater 
disturbance to nesting waders occurs during the hour of carcass 
collection than during the 4 hours of culling. If the carcasses were 
left to desiccate where they fell, no additional disturbance need 
occur. On another Lake Erie island (Middle Island) managed by Parks 
Canada, cormorant carcasses are left where they fall in an effort to 
minimize disturbance to the co-nesting waders and reduce damage to the 
herbaceous understory vegetation. No negative effects have been 
observed and Parks Canada staff report that carcasses rapidly decompose 
on the island. Cormorants are currently composted on two of the Ohio 
Lake Erie islands and the compost sites were tested for mercury levels 
in 2007 and 2010. All of the tests showed mercury levels far below 
levels of concern.
    This proposed change would not have any effect on the take of 
double-crested cormorants or the spirit of the depredation orders. It 
is a minor change such as the submission date change; however, it would 
further enhance the conservation of wading bird habitat and reduce 
disturbance to colonial waders during cormorant management.'' (Ohio 
Department of Natural Resources)
    Response. Leaving carcasses in place was considered when we 
prepared the 2003 EIS. However, because of disease concerns, 
particularly related to botulism, we required that carcasses be 
removed. Carcasses may, in some instances, attract scavengers that 
could disturb or prey on nesting birds. However, we believe that this 
issue merits further evaluation and we will consider it again when we 
undertake a more comprehensive NEPA analysis in the future. This five 
year extension will still require carcass removal.
    Comment. Under the Orders, permit holders are required to use non-
toxic shot only if shooting DCCO with a shotgun. Other firearms, such 
as rifles and handguns, carry no such restriction.
    As a result, the Orders will have the effect of introducing 
significant amounts of additional lead-based ammunition into fragile 
aquatic environments.
    In prohibiting use of lead-based ammunition on its National 
Wildlife Refuges, FWS acknowledges the severe adverse consequences that 
use of this toxic ammunition can have on the entire food chain. If it 
extends the Orders, FWS should require that all ammunition used in 
nuisance control permits should be non-toxic.''
    Response. We recognize the environmental concerns regarding use of 
lead ammunition. However, the majority of DCCOs taken under the PRDO 
and AQDO are taken using shotguns.
    When the orders were put in place, nontoxic rifle ammunition 
options were limited. We are aware that even though high performance 
non-lead ammunition has been developed for some types of firearms 
availability of the ammunition can be a significant problem. Therefore, 
we have added a requirement for the use of nontoxic bullets in 
centerfire rifles to the depredation orders, with an effective date of 
January 1, 2017. This will allow agencies to use ammunition that they 
have already acquired and to work with suppliers on replacing it with 
ammunition with nontoxic bullets. Requiring the use of nontoxic 
centerfire rifle ammunition will have a negligible economic effect on 
those who control DCCOs under the orders, and it will have small 
environmental benefits.
    Comment. ``Many birds co-nest with the DCCO. The DEA makes scant 
mention of the impact that mass depredation of the DCCO has on its 
biological neighbors. The DEA offers no information about what steps 
are being taken (or required) to protect co-nesting species. Yet, the 
DEA offers the unsupported conclusion that ``We have no reason not to 
believe that [state] agencies would not continue to be highly 
conscientious in avoiding negative impacts to bird species . . . at 
management sites.''
    Without an empirical or regulatory basis for this belief, the FWS 
posture is that it simply hopes for the best.''
    Response. The annual reports that must be submitted to the FWS by 
the agencies acting under the Public Resource Depredation Order 
indicate that incidental take of birds that nest with DCCOs is 
extremely rare, and certainly would not affect populations of those 
species. The management agencies employ a number of standard operating 
procedures that are designed to minimize the likelihood of other birds 
being adversely impacted by DCCO control activities. These include 
using rifles with silencers (where effective), wearing camouflage 
clothing, minimizing the number and duration of visits to DCCO 
colonies, avoiding colony site visits at times of extreme temperature 
or precipitation to minimize stress to non-target species' eggs and 
nestlings, leaving a perimeter of untreated DCCO nests around non-
target species (where practical), shooting DCCOs in some cases at sites 
away from a nesting island, oiling DCCO eggs and walking to and from 
blinds

[[Page 30481]]

from which shooting will occur during night hours (where appropriate 
and safe), removing DCCO carcasses in a manner that minimizes 
disturbance to co-nesters, maintaining set distances (per the 
depredation order regulations) from Federally threatened and endangered 
birds and bald eagles and golden eagles and their nests, and training 
shooters in bird identification and marksmanship.
    Comment. ``. . . [T]he DEA ignores the problem of ``look alike'' 
species, such as the neotropic cormorant. This cormorant is virtually 
indistinguishable from the DCCO, especially to an untrained hunter.
    Response. The DEA mentions two instances of take of Neotropic 
Cormorants in 2007 and 2008, and some other birds (e.g., gulls) due to 
DCCO control activities. These incidents, although regrettable, are 
extremely low relative to the number of DCCOs which are removed and are 
not of sufficient magnitude or frequency to adversely impact non-target 
species populations.
    The depredation order addresses ``look alike'' species as follows.
    (7) Nothing in this depredation order authorizes the take of any 
migratory bird species other than double-crested cormorants. Two look-
alike species co-occur with double-crested cormorants in the 
southeastern States: The anhinga, which occurs across the southeastern 
United States, and the neotropic cormorant, which is found in varying 
numbers in Texas, Louisiana, Kansas, and Oklahoma. Both species can be 
mistaken for double-crested cormorants, but take of these two species 
is not authorized under this depredation order.
    Take of anhingas (Anhinga anhinga) or neotropic cormorants 
(Phalacrocorax brasilianus) is not legal under the depredation order, 
and we advise all States and Tribes to ensure that individuals 
operating under the order be trained to recognize anhingas and 
neotropic cormorants to avoid taking them. All migratory bird permits 
and regulations that allow take disallow take of species not covered 
under the permit or regulation--even ``look-alike'' species. 
Identification and protection of look-alike species is an obligation of 
the permittee or any person, organization, or agency entity acting 
under a control or depredation order. Failure to abide to the terms of 
the depredation order may lead to suspending or revoking the authority 
of any person or agency acting pursuant to the depredation orders and 
prosecution under the MBTA.
    Comment. ``Large Double-crested Cormorant die-off events that are 
associated with avian botulism (Clostridiuim botulinum) may have 
impacted or stabilized breeding DCCO populations, but we do not see 
this topic specifically addressed in any manner in the document, 
including in the population models used to evaluate impacts to DCCO. We 
suggest that this consideration should be added to the impact analysis 
and decision-making process. (National Park Service).
    Response. In our 2003 FEIS, disease was noted as a sometimes 
significant cause of mortality for DCCOs--particularly Type E on the 
Great Lakes. Other sources have noted concern about botulism in 
cormorant populations (e.g. http://www.ccwhc.ca/wildlife_health_topics/botulism/botulisme_org.php; http://www.dec.ny.gov/animals/28433.html; and http://www.seagrant.sunysb.edu/botulism/pdfs/Proc03/9-Overview.pdf). We agree that it should be addressed in more depth in 
our future NEPA analysis, both for its potential effects on cormorant 
populations and on other waterbird species the nest or roost near 
DCCOs. But again, in the Great Lakes the cormorant population remains 
healthy between 45,626 and 53,802 breeding pairs (nests) in 1997 to 
2011.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small businesses, 
small organizations, and small government jurisdictions. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide the statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We have examined this rule's 
potential effects on small entities as required by the Regulatory 
Flexibility Act. The changes to the depredation orders at 50 CFR 21.47 
and 21.48 will provide assurance that State and Tribal resource 
management agencies may continue to manage DCCO problems under the 
terms and conditions of the depredation orders and gather data on the 
effects of DCCO control actions and will bring the two depredation 
orders in line with our current regulations and practices. These 
changes will not have a significant economic impact on a substantial 
number of small entities, so a regulatory flexibility analysis is not 
required.
    This rule is not a major rule under the SBREFA (5 U.S.C. 804 (2)). 
It will not have a significant impact on a substantial number of small 
entities.
    a. This rule will not have an annual effect on the economy of $100 
million or more.
    b. This rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, Tribal, or local 
government agencies, or geographic regions.
    c. This rule will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. The 
revisions will not have significant effects. The regulation will very 
minimally affect small government

[[Page 30482]]

activities by changing the annual reporting date for 50 CFR 21.48.
    b. This rule will not produce a Federal mandate of $100 million or 
more in any year. It will not be a ``significant regulatory action.''

Takings

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

Federalism

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

Civil Justice Reform

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

Paperwork Reduction Act of 1995

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

National Environmental Policy Act

    We have analyzed this rule in accordance with the National 
Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and U.S. 
Department of the Interior regulations at 43 CFR part 46. We have 
completed a final environmental assessment, and have determined that 
this action will have neither a significant effect on the quality of 
the human environment, nor unresolved conflicts concerning uses of 
available resources. The Finding of No Significant Impact is posted in 
the docket with this final rule.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have determined that there are no potential effects on Federally 
recognized Indian Tribes from the regulations change. The regulations 
changes will not interfere with Tribes' abilities to manage themselves 
or their funds or to regulate migratory bird activities on Tribal 
lands.

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

    This rule will only affect depredation control of DCCOs, and will 
not affect energy supplies, distribution, or use. This action will not 
be a significant energy action, and no Statement of Energy Effects is 
required.

Compliance With Endangered Species Act Requirements

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this chapter'' (16 
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure 
that any action authorized, funded, or carried out . . . is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). This regulations change 
will not affect listed species.
    Since the FEIS was completed in 2003, 250 species have been added 
to the threatened and endangered species list. However, no species has 
been added for which consultation across the range of the DCCO is 
warranted. In unusual cases, consultations at the State or Regional 
level might be needed to address concerns about some of the species 
listed in Appendix 5 of the FEA.

Literature Cited

    U.S. Fish and Wildlife Service. 2003. Final Environmental Impact 
Statement: Double-Crested Cormorant Management in the United States. 
Available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/Cormorant/CormorantFEIS.pdf.

List of Subjects in 50 CFR Part 21

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

Regulation Promulgation

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

PART 21--MIGRATORY BIRD PERMITS

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

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


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


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

* * * * *
    (d) * * *
    (2) Double-crested cormorants may be taken only by shooting with 
firearms, including shotguns and rifles.
    (i) Persons using shotguns must use nontoxic shot, as listed in 50 
CFR 20.21(j).
    (ii) Beginning January 1, 2017, persons using centerfire rifles 
must use bullets that contain no more than 1% lead.
* * * * *
    (8) * * *
    (i) To protect wood storks, the following conservation measures 
must be observed anywhere Endangered Species Act protection applies to 
this species: all control activities are allowed if the activities 
occur more than 1,500 feet from active wood stork nesting colonies, 
more than 1,000 feet from active wood stork roost sites, and more than 
750 feet from feeding wood storks.
* * * * *
    (iv) Any agency or its agents or any individual or company planning 
to implement double-crested cormorant control activities that may 
affect bald eagles must comply with the National Bald Eagle Management 
Guidelines (http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BaldEagle/NationalBaldEagleManagementGuidelines.pdf) in 
conducting the activities.
* * * * *

0
3. Amend Sec.  21.48 as follows:
0
a. By revising paragraph (d)(2) as set forth below;

[[Page 30483]]

0
b. In the introductory text of paragraph (d)(8)(i), by removing the 
words ``wood storks, and bald eagles'' and adding in their place the 
words ``and wood storks'';
0
c. In paragraphs (d)(8)(i)(A) and (d)(8)(i)(B), by removing the words 
``or occur more than 750 feet from active bald eagle nests;'' in each 
place that they occur;
0
d. By adding a new paragraph (d)(8)(i)(D) to read as set forth below;
0
e. In paragraph (d)(8)(iii), by removing the word ``four'';
0
f. By revising paragraph (d)(11) to read as set forth below; and
0
g. In paragraph (f), by removing the word ``2014'' and adding in its 
place the word ``2019''.


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

* * * * *
    (d) * * *
    (2) Double-crested cormorants may be taken only by means of egg 
oiling, egg and nest destruction, cervical dislocation, firearms, and 
CO2 asphyxiation.
    (i) Persons using shotguns must use nontoxic shot, as listed in 50 
CFR 20.21(j).
    (ii) Beginning January 1, 2017, persons using centerfire rifles 
must use bullets that contain no more than 1% lead.
    (iii) Persons using egg oiling must use 100 percent corn oil, a 
substance exempted from regulation by the U.S. Environmental Protection 
Agency under the Federal Insecticide, Fungicide, and Rodenticide Act.
* * * * *
    (8) * * *
    (i) * * *
    (D) Any agency or its agents planning to implement double-crested 
cormorant control activities that may affect bald eagles must comply 
with the National Bald Eagle Management Guidelines (http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BaldEagle/NationalBaldEagleManagementGuidelines.pdf) in conducting the 
activities.
* * * * *
    (11) Each agency conducting control activities under the provisions 
of this regulation must provide annual reports, as described in 
paragraph (d)(10) of this section, to the appropriate Service Regional 
Migratory Bird Permit Office by January 31 for control activities 
undertaken the previous calendar year. We will regularly review agency 
reports and will periodically assess the overall impact of this program 
to ensure compatibility with the long-term conservation of double-
crested cormorants and other resources.
* * * * *

    Dated: May 19, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-12318 Filed 5-27-14; 8:45 am]
BILLING CODE 4310-55-P