[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Rules and Regulations]
[Pages 85535-85556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28742]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

[Docket No. FWS-HQ-MB-2019-0103; FF09M22000-201-FXMB1232090000]
RIN 1018-BE67


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

DATES: This rule takes effect on February 12, 2021.
    Supplementary Documents: The Environmental Protection Agency will 
announce the availability of the Final Environmental Impact Statement 
(FEIS) associated with this rulemaking action. The Service will execute 
a Record of Decision no sooner than 30 days from the date of 
publication of the notice of availability of the FEIS by the 
Environmental Protection Agency.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in this rule, please note that the 
Office of Management and Budget (OMB) is required to make a decision 
concerning the collection of information contained in this rule between 
30 and 60 days after the date of publication of this rule in the 
Federal Register. Therefore, comments should be submitted to OMB by 
January 28, 2021.

ADDRESSES: You may inspect comments received on the draft environmental 
impact statement and associated proposed rule and view the final 
environmental impact statement and other documents associated with this 
rulemaking action at http://www.regulations.gov in Docket No. FWS-HQ-
MB-2019-0103.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted within 30 days of publication of this document to 
www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#064f6860695945696a6a4660717528616970"><span class="__cf_email__" data-cfemail="165f7870794955797a7a5670616538717960">[email protected]</span></a> (email). 
Please reference OMB Control Number 1018-0175 in the subject line of 
your comments.

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

SUPPLEMENTARY INFORMATION:

Background

    The Service is the Federal agency delegated with the primary 
responsibility for managing migratory birds. Our authority derives from 
the Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703-712), as 
amended, which implements conventions with Great Britain (for Canada), 
Mexico, Japan, and Russia. We implement the provisions of the MBTA 
through the regulations in parts 10, 13, 20, 21, 22, and 92 of title 50 
of the Code of Federal Regulations (CFR). The MBTA protects migratory 
birds (listed in 50 CFR 10.13) from take, except as authorized under 
the MBTA. Regulations pertaining to specific migratory bird permit 
types are at 50 CFR parts 21 and 22. The Service works on migratory 
bird conservation in partnership with four Flyway Councils (Atlantic, 
Mississippi, Central, and Pacific), which include representatives

[[Page 85536]]

of State, provincial, and territorial agencies.
    The double-crested cormorant is a fish-eating migratory bird that 
is distributed across a large portion of North America. There are five 
different breeding populations, variously described by different 
authors as the Alaska, Pacific (or Western), Interior, Atlantic, and 
Southern populations. Although these populations are described by their 
breeding ranges, the birds commingle to various extents on their 
migration and wintering areas, with birds from populations closer to 
each other overlapping more than those that are more distant.
    Cormorant populations have increased over both the short term 
(2005-2015) and long term (1966-2015) (United States Geological Survey 
2020). Permits issued by the Service to take birds are one method 
available to reduce conflicts. However, prior to applying for permits 
to take cormorants, individuals and entities experiencing conflicts 
with cormorants should attempt nonlethal techniques (e.g., hazing, 
habitat modification) to alleviate the conflict. Nonlethal techniques 
combined with lethal take should be more effective and may ultimately 
result in less need for lethal take in the future.
    In response to ongoing damage at aquaculture facilities and other 
damage and conflicts associated with increasing cormorant populations, 
the Service administered regulations that included, in addition to 
Depredation Permits (located at 50 CFR 21.41), an Aquaculture 
Depredation Order (which was located at 50 CFR 21.47) beginning in 1998 
and a Public Resource Depredation Order (which was located at 50 CFR 
21.48), which began in 2003. Both of these regulations were in place 
until May 2016 when they were vacated by Court order (see more 
information, below).
    The Aquaculture Depredation Order eliminated individual permit 
requirements in 13 States for private individuals, corporations, State 
agencies, and Federal agencies taking cormorants at aquaculture 
facilities. The Public Resource Depredation Order enabled States, 
Tribes, and the U.S. Department of Agriculture (USDA) Wildlife Services 
in 24 States, without the need for individual depredation permits, to 
take cormorants found committing or about to commit, and to prevent, 
depredations on the public resources of fish (including hatchery stock 
at Federal, State, and Tribal facilities), wildlife, plants, and their 
habitats.
    In May 2016, these depredation orders were vacated by the United 
States District Court for the District of Columbia. The Court concluded 
that the Service failed to consider a reasonable range of alternatives 
in its 2014 environmental assessment (EA) and directed the Service to 
take ``a hard look'' at the effects of the depredation orders on 
double-crested cormorant populations and other affected resources. 
Finally, the Court ordered that the Service perform a new and legally 
adequate EA or environmental impact statement (EIS) under the National 
Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321-
4347). Following the Court ruling, the Service prepared an EA in 2017 
to address continuing conflicts with cormorants (USFWS 2017). The 
authority for authorizing lethal take of depredating cormorants 
reverted to the issuance of individual depredation permits pursuant to 
50 CFR 21.41. Under the 2017 EA, cormorants could lethally be taken 
only to address conflicts with aquaculture, human health and safety, 
threatened and endangered species (as listed under the Endangered 
Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq.) and State-listed 
species of management concern, and personal property (under the 2017 
EA, take of cormorants to protect wild and publicly stocked fisheries 
would only be allowed to protect threatened or endangered species).
    Conflicts in aquatic systems continue to exist between cormorants 
and fish stocks managed by Federal, State, and Tribal agencies as 
recreational and/or commercial fisheries. Conflicts also exist between 
cormorants and conservation of other species and habitats in some 
areas. As fish-eating birds, cormorant predation of fish occurs not 
only at aquaculture facilities, but also in private recreational ponds 
and large aquatic ecosystems. While conflicts exist between cormorants 
and some stakeholders, birders and other interested parties value 
cormorants for their aesthetic and existence values.
    The Service is responsible for balancing the lethal take of 
cormorants to alleviate conflicts where available data support such 
take and maintaining sustainable populations of cormorants and 
minimizing the regulatory burden on Federal and State agencies, Tribes, 
and individual citizens. In making decisions, the Service strives to 
use an effective and transparent decision-making process that ensures 
input from migratory bird and fisheries management programs and other 
stakeholders, fulfills requirements under NEPA, and addresses key 
biological uncertainties. When determining allowable take, the Service 
must consider uncertainty related to cormorant population dynamics, 
estimated maximum sustainable lethal take, and risk of over-
exploitation. Furthermore, the Service must identify monitoring 
requirements that could be used to assess the effects of lethal take on 
cormorant populations and to ensure take is commensurate with 
population status. Monitoring can also improve future decisions 
regarding allowable take and how that allowable take could be 
determined. States, Tribes, and other stakeholders can provide 
assistance and information. The Service will formally convene meetings 
with the Flyway Councils and other relevant stakeholders to develop a 
specific cormorant population monitoring plan.

History of Management and Conflicts

    Cormorants are migratory waterbirds protected by the MBTA. They are 
native to North America and range widely across the continent, 
typically inhabiting wetlands and adjacent upland habitats. Cormorants 
also are found in some human-modified environments including airport 
airfields and aquaculture ponds. As described previously, the bird-
management community generally accepts that there are five different 
breeding populations: The Alaska, Pacific (Western), Interior, 
Atlantic, and Southern populations.
    Cormorant abundance in North America has increased dramatically 
since the 1960s and 1970s, mostly due to the growth of the Interior and 
Atlantic populations. The current estimate of cormorant abundance in 
the continental United States and Canada is 871,001 to 1,031,757 birds 
(USFWS 2020).
    Prior to 1998, the sole method for authorizing the lethal take of 
depredating cormorants to alleviate damage and conflicts was through 
the issuance of depredation permits pursuant to 50 CFR 21.41, which 
allows the take of migratory birds that are injuring ``crops or other 
interests.'' In 1998, the Service published a final rule (63 FR 10550-
10561, March 4, 1998) establishing a depredation order that authorized 
commercial freshwater aquaculture producers in 13 States to take 
cormorants without the need for a depredation permit when cormorants 
were found committing or about to commit depredations on aquaculture 
stocks. That rule was located at 50 CFR 21.47. The Service continued to 
issue depredation permits to address damage and conflicts to property, 
natural resources, and threats to human health and safety pursuant to 
50 CFR 21.41. Any individual or entity conducting lethal take of 
cormorants under

[[Page 85537]]

depredation permits or the depredation order was required to submit a 
report detailing the take to the Service annually.
    The increase in cormorant abundance across areas of North America 
and the subsequent range expansion of cormorants has been well 
documented along with concerns of the negative impacts associated with 
the expanding population (e.g., Taylor and Dorr 2003, Hunter et al. 
2006, Atlantic Flyway Council and Mississippi Flyway Council 2010, 
Pacific Flyway Council 2012). In response to increasing requests for 
depredation permits to alleviate damage and conflicts associated with 
cormorants, the Service issued a final environmental impact statement 
(FEIS) pursuant to NEPA and made changes to the regulations governing 
the take of cormorants in 2003. The 2003 FEIS considered direct, 
indirect, and cumulative effects of alternatives for cormorant 
management in the United States and discussed mitigating measures. In 
October 2003, based on analysis in the FEIS and review of public and 
agency comments, the Service published a final rule and notice of 
record of decision (68 FR 58022-58037, October 8, 2003) that modified 
the existing depredation order for aquaculture facilities (previously 
located at 50 CFR 21.47). The regulations became effective in November 
2003. The modified depredation order for aquaculture facilities 
eliminated the need for private individuals, corporations, State 
agencies, and Federal agencies to obtain a depredation permit to take 
cormorants at aquaculture facilities in 13 States. It also authorized 
USDA Wildlife Services' employees to take cormorants at roost sites in 
the vicinity of aquaculture facilities during October, November, 
December, January, February, March, and April.
    That final rule in 2003 also established a depredation order that 
authorized Federal agencies, State fish and wildlife agencies, and 
Tribes in 24 States to take cormorants to reduce damage and conflicts 
with public resources without the need for a depredation permit. At 
that time, the Service defined a public resource as a natural resource 
managed and conserved by public agencies, which included fish (i.e., 
wild fish and stocked fish at Federal, State, and Tribal hatcheries 
that are intended for release in public or Tribal waters), wildlife, 
plants, and their habitats. The depredation order for public resources 
was previously located at 50 CFR 21.48. As with previous regulations, 
any individual or entity conducting lethal take of cormorants under 
depredation permits or the depredation orders was required to submit a 
report detailing the take to the Service annually.
    To evaluate the potential effects on the cormorant population from 
the implementation of the two depredation orders, a mitigating measure 
required by the 2003 FEIS was to review and renew, if warranted, the 
two depredation orders every 5 years. Subsequently, the Service 
developed an EA pursuant to NEPA in 2009 and again in 2014 that 
determined that a 5-year extension of the expiration date of the two 
depredation orders would not threaten cormorant populations and that 
activities conducted under the two depredation orders would not have a 
significant impact on the human environment. Therefore, from October 
2003 through May 2016, the Service authorized the take of cormorants 
pursuant to the two depredation orders (which covered certain States), 
through the issuance of depredation permits for activities in States 
not addressed in the two depredation orders, and through the issuance 
of scientific collecting permits (50 CFR 21.23).
    Since the Court's vacating of the depredation orders in May 2016 as 
discussed above, the Service has been reviewing and issuing individual 
depredation permits in the central and eastern lower 48 States pursuant 
to two separate analyses conducted under NEPA. Individuals or entities 
apply for these permits to address site-specific conflicts, and each 
application is logged, evaluated, and acted upon (approved or rejected) 
on a case-by-case basis based on the merits of the permit application.
    The 2017 EA (USFWS 2017) evaluated issuing depredation permits to 
take cormorants for specific circumstances across 37 central and 
eastern States and the District of Columbia. The selected alternative 
(Reduced Take Alternative) authorized the average annual take of 
cormorants that occurred during 2010-2015 (51,571cormorants). This 
amount was well below the allowable level resulting from the take 
analyses included in the EA (82 FR 52936-52937, November 15, 2017). In 
December 2019, in response to requests for increased take to alleviate 
growing conflicts, the Service issued a notice (84 FR 69762-69762, 
December 19, 2019) that it would implement a different proposed 
alternative analyzed in the 2017 EA (Potential Take Limit Alternative) 
that had a higher annual take threshold, increasing the take of 
cormorants authorized by permits to 74,396.
    Management of cormorants in the western United States (Western 
population, P. albociliatus) is also through site-specific, case-by-
case permits. The Service authorizes take of Western population 
cormorants primarily to reduce predation-related losses by cormorants 
of federally threatened or endangered juvenile salmon (Oncorhyncus 
spp.) and steelhead (O. mykiss) migrating to the Pacific Ocean. 
Additional authorizations for take occur at Federal, State, and Tribal 
hatcheries rearing federally threatened or endangered fish species, to 
protect aquaculture facilities, and for removing nests related to 
infrastructure maintenance. The U.S. Army Corps of Engineers' Double-
crested Cormorant Management Plan to Reduce Predation of Juvenile 
Salmonids in the Columbia River Estuary--Final Environmental Impact 
Statement (FEIS; United States Army Corps of Engineers (USACE) 2015) 
guides management activities related to the take of cormorants in the 
Western cormorant population. The National Oceanographic and 
Atmospheric Administration's National Marine Fisheries Service (NOAA 
Fisheries) had previously determined that a reduced cormorant 
population of 5,380 to 5,939 breeding pairs on East Sand Island in the 
Columbia River Estuary would restore juvenile steelhead survival to the 
environmental baseline levels (NOAA Fisheries 2014), and the Service 
authorized lethal take at levels that attempted to achieve that colony 
abundance. Specifically, the Service authorized approximately 2,300 
cormorants to be lethally taken each year under depredation permits, 
scientific collecting permits, and special purpose permits.
    The Service expects the number of conflicts to increase, and we 
expect that demand for authorizations to take cormorants will continue 
to increase as a means to reduce those conflicts in the future. For 
example, between 2007 and 2018, the number of permit requests to take 
depredating cormorants (exclusive of requests to act under the 
depredation orders) increased from slightly less than 200 to almost 300 
(USFWS, unpublished data). As requests to take cormorants increase, the 
use of multiple individual depredation permits to address conflicts 
within State and Tribal jurisdictions will become increasingly time-
consuming and burdensome. Therefore, creating a new State and Tribal 
cormorant permit would enable the Service to more efficiently respond 
to the needs of States and Tribes seeking relief from conflicts 
associated with

[[Page 85538]]

cormorants. The new permit also provides States and Tribes with the 
ability to address conflicts between cormorants and wild and publicly 
stocked fish managed by State fish and wildlife agencies or federally 
recognized Tribes, which was not previously available to them under the 
scope of individual depredation permits per 50 CFR 21.41.

Estimating Allowable Take

    To alleviate conflicts with cormorants, we used a method called 
Potential Take Level (PTL) analyses (Wade 1998, Runge et al. 2004) to 
determine the number of cormorants that may be taken while maintaining 
the species (and breeding populations) at sustainable levels. This 
process has been used to determine allowable take levels for cormorants 
in a previous EA (USFWS 2017) and for other species, including several 
bird species (e.g., USFWS 2009, Runge et al. 2009, Johnson et al. 2012, 
Zimmerman et al. 2019). Methods used to determine population sizes and 
allowable take levels in this rule are detailed in the USFWS Final 
Environmental Impact Statement: Management of Conflicts Associated with 
Double-crested Cormorants (USFWS 2020). The median amount of allowable 
take resulting from the analysis was 166,800 cormorants annually. 
However, we recommend being more conservative and allowing take only up 
to the lower 20 percent of the distribution of the PTL annually 
(121,504 cormorants). Population-specific recommended levels of take 
are: Atlantic, 37,019; Interior, 78,632; Western, 9,077; and Southern 
(Florida), 1,314. At those levels of take, the continental population 
of double-crested cormorants is expected to average about 830,285 
cormorants. However, due to concerns expressed by a number of 
commenters in the Pacific Flyway that take reaching the allowable level 
could negatively impact the Western Population, the Service initially 
will allow a maximum of 4,539 birds to be taken annually from that 
population.
    This final rule brings all populations of double-crested cormorants 
under a common assessment framework to determine allowable levels of 
take. However, levels of take for each population could differ based on 
their current abundances, population biology, and population-specific 
management objectives.

Special Double-Crested Cormorant Permit

    The Service establishes a new permit option under 50 CFR part 21 
(Special Double-Crested Cormorant Permit) that is available to State 
and Tribal fish and wildlife agencies in the 48 contiguous United 
States to manage conflicts specifically associated with double-crested 
cormorants. The special permit is available only to a State or Tribal 
fish and wildlife management agency responsible for migratory bird 
management. Under this permit, the Service authorizes State and Tribal 
fish and wildlife agencies to conduct lethal take of double-crested 
cormorants that is normally prohibited and is intended to relieve or 
prevent impacts from cormorants on lands or in waters managed by those 
agencies within their respective jurisdictions or where States or 
Tribes manage wild or stocked fish that are accessible by the public or 
all Tribal members. The Service will issue this permit only when it is 
expected to reduce conflicts involving depredation at State- and 
Tribal-owned or operated aquaculture facilities (including hatcheries), 
impacts to health and human safety, impacts to threatened and 
endangered species (as listed under the ESA or identified in State- or 
Tribal-specific legislation as threatened or endangered) or those 
listed as Species of Greatest Conservation Need in State Wildlife 
Action Plans, damage to State- or Tribal-owned property and assets, and 
depredations of wild and publicly stocked fish managed by State fish 
and wildlife agencies or federally recognized Tribes and accessible to 
the public or all Tribal members. Those States and Tribes not wishing 
to obtain this new permit may apply for a depredation permit (50 CFR 
21.41) to address site-specific conflicts with cormorants. However, 
these individual depredation permits do not authorize take of 
cormorants to reduce or prevent conflicts with wild and publicly 
stocked fisheries (except for threatened or endangered species).
    The Service retains overall authority for the take of double-
crested cormorants to ensure that levels of take are consistent with 
management objectives. States and Tribes must use nonlethal methods, 
and independently determine that those methods are insufficient to 
resolve conflicts before lethally taking double-crested cormorants. 
Lethal management should be considered as part of an integrated 
approach to managing cormorant conflicts and used only when other 
methods are insufficient to resolve conflicts. No permit is required 
merely to scare or herd migratory birds other than threatened or 
endangered species or bald or golden eagles (see 50 CFR 21.41). The 
Service will periodically determine the population-specific numbers of 
double-crested cormorants that may be taken lethally during a specified 
number of years in efforts to reduce conflicts while sustaining 
cormorant abundances, and will track authorized take through permits 
issued to States and Tribes to ensure take does not exceed those levels 
specified in the PTL. The annual allocation of take to States and 
Tribes will be based on recent demand by those entities and adjusted as 
needed (while remaining at or below population-specific allowable take 
levels) to respond to spatial and temporal changes in population status 
and the need to reduce conflicts in specific regions. The Service will 
prepare reports every 5 years, and additionally as necessary, to 
provide the public with information regarding the take of cormorants 
and the extent to which this permit, along with other management tools 
(e.g., depredation permits per 50 CFR 21.41 and scientific collection 
permits per 50 CFR 21.23), is achieving management objectives.
    The special double-crested cormorant permit is subject to the 
following conditions/restrictions:
    1. States and Tribes must use nonlethal methods, and independently 
determine that those methods are insufficient in controlling the 
depredation conflict, before lethally taking double-crested cormorants.
    2. Lethal take of adults during the breeding season must occur 
prior to hatching of eggs to avoid the loss of adults that likely would 
result in orphaning chicks and their ultimate death due to starvation. 
Adult birds may not be taken at any nest with young in it unless the 
purpose of the take of adults is intended to address a human health and 
safety issue. States and Tribes and their subpermittees must make 
efforts to avoid disturbance to co-nesting species. Existing research 
findings and publications detailing appropriate nonlethal methods and/
or models for reducing conflicts should be used to justify activities.
    3. A permit under this section does not authorize the taking of any 
other migratory bird, including other species of cormorants; the 
disturbance of bald or golden eagles; or the take of any species listed 
under the ESA as threatened or endangered. If these impacts to other 
migratory bird species or to threatened and endangered species are 
likely to occur, the permittee must obtain permits specifically 
authorizing those activities (i.e., additional migratory bird, Bald and 
Golden Eagle Protection Act, and/or threatened and endangered species 
permits).

[[Page 85539]]

    4. Actions under the permit may be conducted during any time of the 
year on lands or in waters managed by State or Tribal fish and wildlife 
agencies within their jurisdictions, or where States or Tribes manage 
wild or stocked fish that are accessible by the public or all Tribal 
members. Actions may occur only when cormorants are committing or are 
about to commit depredations at Tribal- and State-owned or operated 
aquaculture facilities (including hatcheries); to alleviate impacts to 
health and human safety; reduce impacts to threatened and endangered 
species (as listed under the ESA or identified in State- or Tribal-
specific legislation as threatened or endangered) or those listed as 
Species of Greatest Conservation Need in State Wildlife Action Plans; 
and to prevent damage to State- or Tribal-owned property and assets. 
Take activities to prevent depredation on aquatic Species of Greatest 
Conservation Need may occur only in natural or public waters. 
Permittees need to include a description of long-term plans to 
eliminate or significantly reduce continued need to take double-crested 
cormorants as part of their application. Permits will be issued 
annually. Permittees are required to submit an annual report by January 
31 for activities conducted during the preceding calendar year. The 
report must detail the amount of lethal take that occurred under their 
permit and for what purpose the take was conducted.
    5. Anyone undertaking lethal control with a firearm must use 
nontoxic shot or nontoxic bullets (50 CFR 20.21). However, this 
prohibition would not apply if an air rifle or an air pistol is used.
    6. Individuals conducting lethal control may not use decoys, calls, 
or other devices or bait to lure birds within gun range.
    7. Methods of take are at the discretion of the permittee 
responsible for the action, but must be accomplished by means of humane 
lethal take or active nest take. Lethal take may occur by firearm in 
accordance with paragraph (5) above or lethal or live traps. Active 
nest take may occur by egg oiling or destruction of nest material and 
contents (including viable eggs and chicks). Birds may be euthanized by 
cervical dislocation, CO<INF>2</INF> asphyxiation, or other methods 
recommended by the American Veterinary Medical Association. Only 100 
percent corn oil, a substance exempted from regulation by the 
Environmental Protection Agency under the Federal Insecticide, 
Fungicide, and Rodenticide Act, may be used to oil eggs. Other damage 
control methods of take consistent with accepted wildlife damage 
management programs may be authorized.
    8. States and Tribes applying for the first time must consult with 
the USDA Wildlife Services for an assessment of the appropriate level 
of take and provide recommendations of short-term measures to provide 
relief from depredation and long-term measures to help eliminate or 
significantly reduce conflicts. Wildlife Services provides a ``Form 37 
Permit Review''. This form is required for first-time applicants only. 
Permittees need not submit a Form 37 for renewal applications unless 
requested by the regional Migratory Bird Permit Office. Permittees are 
expected to continue working with Wildlife Services for review of 
management plans and remaining current on best practices.
    9. States and Tribes and their employees and subpermittees may 
possess, transport, and otherwise dispose of double-crested cormorants 
taken. Double-crested cormorants killed and nests/eggs destroyed under 
the authority of this permit must be properly disposed of by donation 
to an entity authorized by permit or regulation to receive migratory 
birds, or be destroyed completely in accordance with Federal, State, 
and/or local laws and ordinances. This may include donation to public 
museums or public scientific and educational institutions for 
exhibition, scientific, or educational purposes, or burial or 
incineration. This permit does not allow for birds or their parts or 
nests/eggs to be sold, offered for sale, bartered, or shipped for the 
purpose of sale or barter. Birds may not be retained for personal use.
    10. This permit does not apply to any efforts to prevent 
depredation or harm to privately owned animals (e.g., hobby animals, 
pets, or similar categories of animals) that are raised free-range or 
otherwise released to the wild. Private landowners may apply for a 
depredation permit (50 CFR 21.41) to alleviate damage to some types of 
property (i.e., buildings and infrastructure; vehicles and equipment; 
some types of vegetation; and display animals, such as those in zoo 
exhibits).
    11. States and Tribes may designate subpermittees who must operate 
under the conditions of the permit. Subpermittees can be employees of 
State and Tribal fish and wildlife agencies, USDA Wildlife Services 
employees, and employees of other Federal, State, or Tribal agencies or 
private companies specializing in wildlife damage abatement and under 
direct control of the permittee.
    12. Any employee or subpermittee authorized by the State or Tribe 
to carry out actions under the special permit must retain in their 
possession a copy of the State's or Tribe's permit while carrying out 
any action.
    13. Any State or Tribal agency, when exercising the privileges of 
this permit, must keep records of all activities, including those of 
subpermittees, carried out under the authority of the special permit. 
Prior to any permit renewal, the Service will require an annual report 
detailing the activities conducted under the permit and the numbers of 
cormorants, nests, and eggs lethally taken, treated, or destroyed.
    14. Nothing in the permit should be construed to authorize the take 
of cormorants, their eggs, or nests contrary to any State or Tribal law 
or regulation or on any Federal land without written authorization by 
the appropriate management authority. Further, none of the privileges 
granted under the permit shall be exercised without any State or Tribal 
permit that may be required for such activities.
    15. The scope of this permit applies to lands or in waters managed 
by State and Tribal fish and wildlife agencies and within those 
agencies' jurisdictions. If a State or Tribe must enter private 
property to access State and Tribal lands or waters where take is 
approved in their permit, the State or Tribe must obtain authorization 
from the private property owner, and require that the private property 
owner or occupant provide free and unrestricted access. The private 
property owner or occupant should also allow access at all reasonable 
times, including during actual operations, to any Service special agent 
or refuge officer, State or Tribal wildlife or deputy wildlife agent, 
warden, protector, or other wildlife law enforcement officer on the 
premises where they are, or were, conducting activities. Furthermore, 
any State or Tribal employee or approved subpermittee conducting such 
activities must promptly furnish information concerning such activities 
to any such wildlife officer.
    16. The Service reserves the authority to immediately suspend or 
revoke any permit if the Service finds that the terms and conditions 
set forth in the permit have not been adhered to, as specified in 50 
CFR 13.27 and 13.28.
    Since November 2017, permits have been available only to address 
conflicts with aquaculture, human health and safety, threatened and 
endangered species, and personal property; take of cormorants to 
protect wild and publicly managed fisheries has not been authorized 
unless warranted to protected threatened or endangered species. The 
conflicts with these

[[Page 85540]]

managed fisheries are increasingly causing concerns with State and 
Tribal fish and wildlife agencies, particularly those involved with 
providing recreational fishing opportunities. As cormorant abundance 
increases, and even at current levels, the issuance of individual 
depredation permits to address conflicts is becoming increasingly time-
consuming and lengthy in some cases. The Service expects this special 
double-crested cormorant permit, which increases the flexibility of 
States and Tribes to address issues and also expands the scope of 
conflicts that can be addressed to wild and publicly managed fish, will 
result in increased efforts to reduce those conflicts, including lethal 
take of birds, nests, and eggs. Localized abundances of cormorants may 
decline as a result of these efforts, but regional and continental 
populations are not likely to be negatively impacted.
    The Service also expects that, by allowing States and Tribes to 
address conflicts through a special permit, more aggressive management 
activities will result at sites experiencing high levels of conflicts 
associated with cormorants, and within the scope of this rule. By 
authorizing conflict-management activities at the State or Tribal 
level, instead of at the Department of the Interior Regional level, 
management activities will be more responsive and timely than is 
currently the case. Quicker resolution of conflicts ultimately may 
result in fewer complaints regarding cormorants. In expanding authority 
given to the States and Tribes via this permit, workload burdens may 
shift with more being borne by the States and Tribes and less by the 
Service. However, because States and Tribes are not required to obtain 
this permit, this rule does not impose an unfunded mandate on State, 
local, or Tribal governments. Further, since this permit is available 
only to States and Tribes, it does not impose an unfunded mandate on 
the private sector. Those States and Tribes interested in obtaining the 
new permit would likely have staff and resources in place with 
dedicated duties falling within the scope of conflicts associated with 
cormorants. Additional explanations can be found in the Required 
Determinations section of this rule.
    Importantly, reducing the abundance of double-crested cormorants is 
not the goal of the Service or this new management action. Reducing 
their overall abundance does not guarantee that conflicts in specific 
areas will decrease. If cormorants are attracted to an area due to food 
resources, nesting habitats, or other factors, those places will remain 
attractive regardless of the size of the cormorant population and may 
still experience damage to the resources. Rather, the goal of the 
Service is to reduce the number of conflicts with cormorants by 
combining lethal and nonlethal methods and allowing the lethal take of 
cormorants only when supported by information that such take would 
reduce conflicts. As a consequence, abundance of cormorants in some 
areas may be reduced, but regional and continental populations will be 
managed at sustainable levels, albeit at somewhat reduced abundances. 
The Service also wants to ensure accountability not only in determining 
allowable take, but also in reporting of actual take by permittees. We 
will annually review reports submitted by permit holders and will 
periodically assess the overall impact of this permit program to ensure 
compatibility with long-term conservation of double-crested cormorants. 
This approach will result in the transparency and accountability 
necessary to make informed decisions about and promote adherence to 
authorized levels of take.

Public Comments

    On January 22, 2020 (85 FR 3601-3603), the Service published an 
advance notice of proposed rulemaking (ANPR) and announced our intent 
to prepare a NEPA document indicating that the Service intended to 
establish new regulations regarding the management of double-crested 
cormorants. The comment period for the ANPR continued through March 9, 
2020. The ANPR listed possible alternatives, which include the no 
action alternative in addition to the following:
    (1) Establish a new permit for State and Tribal fish and wildlife 
agencies for authorizing certain cormorant management and control 
activities;
    (2) Establish an aquaculture depredation order; and
    (3) Both (1) and (2) in combination.
    We also announced that several public scoping meetings would be 
held, and that specific dates and times for the public meetings would 
be available on the internet at https://www.fws.gov/birds/management/managed-species/double-crested-cormorants.php. A total of four public 
scoping webinars were convened, two on February 11, 2020, and two on 
February 12, 2020. Additionally, we conducted two webinars provided 
only to Tribal members on February 19 and 27, 2020. We provided all 
attendees of all webinars with information on the following topics 
regarding cormorants, their management, and the regulations process: 
(1) Biology and population changes; (2) background of the issues and 
previous management approaches; (3) current management of conflicts; 
(4) proposed approaches and alternatives; and (5) the planning process 
for the NEPA analysis. We also informed attendees that they could 
provide comments on the proposed actions and the scope of the NEPA 
review via a website (http://www.regulations.gov, Docket No. FWS-HQ-MB-
2019-0103) or by U.S. mail or hand-delivery to Public Comments 
Processing, Attn: FWS-HQ-MB-2019-0103; U.S. Fish and Wildlife Service 
Headquarters, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    On June 5, 2020, the Service published a notice of proposed 
rulemaking (proposed rule; 85 FR 34578), and the Environmental 
Protection Agency published notice of a draft environmental impact 
statement (DEIS) (85 FR 34625). The comment period for each continued 
for 45 days, ending on July 20, 2020. The Department of the Interior's 
policy is, whenever possible, to afford the public an opportunity to 
participate in the rulemaking process. We received more than 1,400 
comments in response to the ANPR and 1,047 in response to the proposed 
rule and DEIS.\1\ You may review the comments received at the Federal 
eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-
2019-0103. We considered comments on the ANPR in developing the 
proposed rule, and comments on the DEIS and proposed rule when 
developing this final rule. A summary of the comments is included in 
the 2020 FEIS associated with this rulemaking action, and we 
incorporate those responses to comments by reference to this rule. We 
also include additional responses to comments below that highlight 
important issues raised by the public. Comments and our responses 
pertaining to information collection are also set forth below in this 
document in Required Determinations, under Paperwork Reduction Act, as 
a majority of those comments pertained to information collection 
issues.
---------------------------------------------------------------------------

    \1\ Regulations.gov shows 1,052 total comments, which comprise 
1,047 public submissions, 2 primary documents (proposed rules), and 
3 supporting documents (DEIS, 2003 FEIS, and U.S. Army Corps of 
Engineers documents)
---------------------------------------------------------------------------

    Use of Nonlethal Control: Commenters submitted several questions 
regarding the required use and efficacy of nonlethal methods used to 
address conflicts associated with cormorants. Comments appear to focus 
on two primary concerns: (1) How the Service will enforce or require 
that permittees implement nonlethal

[[Page 85541]]

methods first before carrying out authorized take, and (2) how the 
permittee will determine when nonlethal methods of management are 
``enough'' or insufficient. Commenters also requested clarity on the 
type of nonlethal control methods the Service expects permittees to 
use. Specifically, some commenters requested that the Service require 
that permittees (individual or a new special permit for States and 
Tribes) ``make progress'' toward nonlethal solutions to conflicts as a 
condition of any permit. They further commented that they felt the DEIS 
did not provide information on how nonlethal methods are used in a 
comprehensive approach. Members of the general public commented that 
there is a general bias against nonlethal measures even when nonlethal 
measures are proven to work. Commenters assert that the Service failed 
to demonstrate how States and Tribes would satisfy the requirement that 
people first use nonlethal methods to address conflicts. In addition, 
commenters also recommended that the Service ensure that States and 
Tribes applying for the special permit have conclusive data on a site-
by-site basis indicating the effectiveness of cormorant management 
before take begins.
    Further, several State agencies expressed concern that a 
requirement for attempting nonlethal control before lethal control will 
delay effective management, and that such a requirement would be so 
complex that it will add unnecessary documentation and time before 
lethal controls may be used. Similarly, some State agencies mentioned 
that ``redundant'' documentation required under the proposed new permit 
process could delay control and impede success. One State agency 
commented seeking clarification on implementation of nonlethal methods 
as well, stating that such a request is not feasible since the 
geographic distribution of State and Tribal fish hatcheries is too 
broad and each hatchery is taken on a case-by-case basis. Another State 
agency commented that nonlethal control methods are often impractical 
or ineffective, as cormorants become habituated to persistent, 
affordable methods (e.g., noise-making deterrents, lasers, harassment 
from shore by hatchery personnel). Commenters further stated that the 
size of some hatcheries makes other methods difficult or too expensive 
to implement. Another commenter suggested that the Service identify a 
process for the required evaluation of efficacy of nonlethal methods. A 
State agency recommended that the Service develop guidelines for 
determining when there is sufficient proof that nonlethal mechanisms 
are ineffective at resolving conflicts. Another State agency commented 
that the Service needs to clarify its expectations on use of nonlethal 
methods to meet the needs of managers, stating that there are certain 
cases where take is essentially unavoidable, or where there is 
significant evidence that would indicate, prima facie, the need for 
take. Yet another State agency also requested that the Service provide 
States seeking permits with a guide or Best Management Practices on 
nonlethal methods of resource protection. Lastly, a State agency 
recommended that the Service develop and provide States with sampling 
protocols to assist with collecting and analyzing fish population data 
where cormorant control activities occur.
    Some commenters recommended no management of the conflict, or 
managing the conflict with nonlethal management methods only. And some 
commenters recommended the ``no action'' alternative, which would 
continue to address conflicts associated with cormorants within a 
specific scope with the issuance of individual permits. Reasons for 
support of the no action alternative generally indicate that this 
option would focus lethal control explicitly on birds that are 
committing or about to commit depredation or harm/damage, identifies 
and defines a limited and specific set of types of conflicts, requires 
permittees to demonstrate they have exhausted reasonable nonlethal 
methods of management, and requires the Service approval lethal control 
on a case-by-case basis.
    Agency Response to use of Nonlethal Control: The Service agrees 
that harassment of cormorants may be effective in some areas, but 
ineffective in others. The conditions that dictate this outcome are 
often site-specific and variable throughout any given year. For 
example, some commenters note that many catfish farms must employ full-
time employees to harass and take cormorants when authorized, but 
management of the conflict in general is considered an added business 
expense. Another commenter asserted that nonlethal measures may work 
for a limited time period, but some birds may become habituated. It is 
in these situations where the Service anticipates lethal removal of 
cormorants would be warranted. In addition, as the Service noted in the 
DEIS and the FEIS, the use of nonlethal methods alone is not an 
effective management tool to respond to conflicts associated with 
cormorants, which is why the Service rejected that possible alternative 
in its analysis.
    The Service encourages and expects continued use of nonlethal 
measures in conjunction with lethal measures where permittees find this 
approach most effective. Often, a combination of measures is the most 
effective way to address conflicts associated with cormorants. The 
Service needs to rely on permittees to make site-specific assessments 
and employ cormorant conflict management in a manner that makes the 
most sense, so long as those permittees follow the conditions of the 
permit. For added clarity in response to these comments, the following 
is a condition that would be part of any permit issued by the Service 
under the preferred alternative in this FEIS: States and Tribes and 
their subpermittees must use nonlethal methods, and independently 
determine that those methods are insufficient in controlling the 
depredation conflict, before lethally taking double-crested cormorants. 
Permittees may also consult with USDA Wildlife Services for additional 
assistance to determine when nonlethal methods are insufficient.
    With regard to methods of nonlethal management methods expected, 
the new special permit application now includes language intended to be 
clear and concise. The revised language reads, ``(2) For each 
location(s), describe the nonlethal methods that you have used 
previously and/or plan on implementing, including (a) active hazing 
(e.g., horns, pyrotechnics, propane cannons, etc.), (b) passive 
deterrents (e.g., netting, exclusion devices, nest deterrents, etc.), 
(c) habitat management (e.g., vegetative barriers, grass management, 
prey management, etc.), and (d) changes in management practices (e.g., 
water level management, fish release timing, etc.).''
    With regard to the question in the FWS Form 3-200-90, Permit 
Application, and the language requesting, ``A statement indicating what 
information will be collected to assess whether the management and take 
of double-crested cormorants is alleviating the damage or other 
conflict,'' the Service revised this language as well. The revised 
language is intended to be less ambiguous and better solicit an answer 
that allows a Service permit staff employee/specialist to make a 
determination on efficacy. The revised language reads, ``Describe your 
long-term plans to eliminate or significantly reduce the continued take 
of double-crested cormorants or destruction of eggs/nests.''

[[Page 85542]]

    With respect to the comment suggesting no management, or only using 
nonlethal controls, nonlethal management would essentially mean that 
the Federal Government would not issue any permits or other 
authorizations (i.e., depredation permits, depredation orders, control 
orders, or conservation orders) that would allow the take of cormorants 
to alleviate depredations or other conflicts. This is an alternative 
the Service considered but eliminated from further analysis as it would 
not meet the purpose and need to address cormorant conflicts.
    With respect to the ``no action alternative,'' while individual 
permits do offer control on a site-specific case-by-case basis, they do 
not meet the purpose and need for action as cited in the DEIS. 
Specifically, the no action alternative does not fully address the need 
for Tribes in the western region of the United States (excluding 
Alaska), to address cormorant impacts on fisheries--especially on 
hatchery-raised salmonids. Similarly, the Service is rejecting the no 
action alternative because it could potentially have a negative effect 
on wild and publicly stocked fish, as it would not allow for take of 
cormorants found to be heavily depredating a fishery. Under the no 
action alternative, the Service expects continued or enhanced conflict 
between cormorants and some economically important fisheries across the 
nation, as well as at some hatchery release sites.
    Permit Conditions: Several commenters expressed concern that year-
round lethal take will lead to high chick mortality through starvation, 
predation facilitated by human disturbance, a removal of parent(s), 
and/or exposure. One commenter requested the Service require a control 
moratorium during the nesting season when chicks are present. Several 
commenters voiced a preference for the Service to require only nontoxic 
shot and not allow the use of any lead ammunition. Some commenters also 
requested the Service specify permit conditions to protect nontarget 
and federally listed species. Separately, some commenters voiced a 
preference for the use of decoys when implementing cormorant management 
actions.
    Agency Response to Permit Conditions: The Service views lethal 
control methods as a last resort for addressing conflicts between avian 
species and human interests. Lethal take of adults during the breeding 
season should occur prior to hatching of eggs to avoid the loss of 
adults that likely would result in orphaning chicks and their ultimate 
death due to starvation. Adult birds may not be taken at any nest with 
young in it unless the take of adults addresses a human health and 
safety issue. In addition, States and Tribes and their subpermittees 
must make efforts to avoid disturbance to co-nesting species.
    This rule limits the use of lead ammunition when persons use 
firearms to take cormorants. As a standard condition for all permits 
under this rule, permit holders must use nontoxic shot when using 
shotguns or other firearms to take cormorants, except when using an air 
rifle or air pistol due to the limited availability of nontoxic bullets 
for them.
    The Service considered the impacts of issuing depredation permits 
on nontarget migratory birds, including threatened and endangered 
species. The Service anticipates the unintentional take of nontarget 
species will occur infrequently and involve very few individuals of a 
particular species. An Intra-Service ESA Section 7 consultation 
Biological Evaluation (ESA BE) was completed to assess if any proposed, 
threatened, or endangered species or associated critical habitat would 
be affected by cormorant control. The Service added specific permit 
conditions for piping plover (Charadrius melodus), interior least tern 
(Sterna antillarum), and wood stork (Mycteria americana): (1) A buffer 
zone for wood storks for all activities; (2) a buffer zone for these 
three birds when discharging firearms; and (3) a buffer zone for these 
three birds for egg oiling, CO<INF>2</INF> asphyxiation, egg 
destruction, or nest destruction.
    The Service acknowledges that decoys can be effective in luring 
birds into sites to make them easier to kill, particularly those that 
are gregarious by nature. In most cases, the kill of birds is higher 
when using decoys than when they are not used (e.g., use of decoys in 
hunting situations). However, in cases concerning depredation issues, 
animals that may not otherwise depredate a particular area may do so 
when decoyed into that area. Decoying birds may create, extend, or 
exacerbate conflicts (e.g., exacerbating a disease outbreak by 
attracting additional birds) where an issue may not exist or could be 
lessened if the birds had not been decoyed into the area; and could 
limit the ability of entities to obtain relief from cormorant conflicts 
due to the limited numbers of birds that could be taken to ensure 
sustainability of cormorant populations. For these and other reasons, 
decoys may not be used in the Service's depredation permit (50 CFR 
21.41).
    Western Subpopulation of Cormorants: Several entities commented 
with concerns regarding the PTL and potential impacts to the western 
subpopulation of cormorants. Similarly, some commenters also submitted 
additional data considerations and analyses. Commenters provided many 
specific empirical details for the Service to consider, but, in 
general, considerations included the following issues: (1) The 
confidence interval for this western subpopulation is too large; (2) 
the take limit for the western subpopulation is much larger than 
historical take in the West; and (3) there was an error in the equation 
used to estimate a pre-breeding multiplier.
    Agency Response to Western Subpopulation of Cormorants: Based on 
information received during the public comment period, the PTL for the 
western subpopulation may not have captured complex and changing 
population dynamics precipitated by cormorant management in the 
Columbia River Estuary. To reduce the risk of over-exploiting the 
western subpopulation, the Service reduced the level of authorized 
annual take to half the PTL in the DEIS, or 4,539 individuals. This is 
a maximum allowable annual take level, not a prescribed level. Based on 
the average past take of cormorants, expected take is unlikely to 
exceed 2,000 annually. The status of the population can be reassessed 
at 5-year intervals, and additionally as necessary, and there is a 
sound monitoring program in place for the western subpopulation, which 
can estimate how the western subpopulation responds to take subsequent 
to the habitat management in the Columbia River Estuary.
    With respect to the comments on the error in the pre-breeding 
multiplier, two errors were found in the formula. First, an equation 
had the denominator and numerator reversed. This was a typo in that the 
equation was used in its proper form to estimate a pre-breeding 
multiplier. The reversal did not result in any errors in estimating 
PTL. Second, an equation to extrapolate cormorant nest counts was 
missing a term needed to correctly estimate the proportion of 
nonbreeding birds. The equation as written estimates the number of 
nonbreeders as a percentage of breeders, whereas it should have 
estimated the number of nonbreeders as a percentage of the total 
population. This error was propagated in estimating PTL. Correcting 
this error caused estimates of PTL to increase 2-3% for each 
subpopulation.

[[Page 85543]]

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
will review all significant rules. In accordance with the criteria in 
Executive Order 12866, this action is not a significant regulatory 
action subject to OMB review.
    This rule will not have an annual economic effect of $100 million 
or adversely affect any economic sector, productivity, competition, 
jobs, the environment, or other units of government. This action will 
not create inconsistencies with other agencies' actions or otherwise 
interfere with an action taken or planned by another agency. Our 
economic analysis determined that this rule is expected to result in 
positive economic benefits to both the commercial aquaculture industry 
as well as the recreational sport fishing industry.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.
    Codifying a new permit for the management of double-crested 
cormorants provides an additional tool for States and Tribes to 
appropriately manage conflicts on lands or in waters managed by their 
respective fish and wildlife agencies within their jurisdictions, while 
maintaining overall authority for the take of birds within the Service. 
Further, current regulations allow the take of cormorants only for the 
purposes of reducing conflicts with and damage to aquaculture, human 
health and safety, threatened and endangered species (as listed under 
the ESA) and State-listed species of management concern, and personal 
property. Many of the conflicts with cormorants involve depredations of 
sport fish by cormorants, for which there is no relief under current 
Federal regulations unless warranted to reduce impacts to threatened 
and endangered fish species listed under the ESA. This new permit would 
allow the take of cormorants to reduce depredation of wild and publicly 
stocked fish managed by State fish and wildlife agencies or Tribes, 
thus enhancing the scope of conflict resolution to more comprehensively 
address areas of concern. However, the total number of cormorants from 
each population that can be taken annually will be determined by the 
Service to ensure that cormorant populations are sustainable.
    The Service does not have empirical information to quantify the 
changes in costs as a result of this new permit, because we do not know 
how many States and Tribes would avail themselves of this permit and 
the extent to which conflicts would be addressed using it. However, we 
expect that the overall cost and regulatory burden to individuals, 
businesses, and State, Tribal, and Federal government agencies 
associated with this new permit will be lower than exists under current 
regulations. The reduction would be the result of fewer requests by 
States and Tribes for individual depredation permits previously needed 
compared to single State or Tribal permits that could be used; hence, 
total costs associated with permit applications and biological 
assessments of those applications likely will be lower.

Executive Order 13771

    This rule is not an E.O. 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017) 
regulatory action because it is not significant under E.O. 12866.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include finfish farming and fish hatcheries (NAICS 112511) and other 
types of commercial aquaculture farms (NAICS Code 112519). The small 
business size standard defined for these businesses (as defined by the 
U.S. Small Business Administration) is businesses with revenues under 
$0.75 million.
    The Service has difficulties estimating impacts to recreational 
fisheries because few studies have investigated direct economic impacts 
of cormorant management on recreational fisheries. Although a few 
studies have estimated impacts to local economies, loss of fishing day 
activities in those local areas may be offset through engaging in 
angling opportunities elsewhere. While it is feasible that this rule 
could have localized effects on recreational fisheries, data do not 
exist to predict where those effects could occur. Further research 
might determine whether any impacts that may be seen at local scales 
can be extended to larger scales. However, the Service concludes that 
this rule will result in an overall net benefit to facilities as it 
will provide another option to control double-crested cormorants that 
are negatively impacting their operations.
    This new permit affects only State and Tribal governments and does 
not impact small businesses. The new special cormorant permit would be 
optional and available to State and Tribal fish and wildlife agencies 
in the 48 contiguous States to manage conflicts specifically associated 
with cormorants. This permit would provide State and Tribal fish and 
wildlife agencies flexibility within predefined guidelines to address 
conflicts caused by cormorants within their jurisdictions.
    Commercial entities, such as privately managed aquaculture 
facilities, would continue to have the opportunity to apply for 
individual depredation permits to address site-specific conflicts. A 
higher threshold for annual take associated with this regulation will 
yield benefits to the aquaculture industry and others in need of 
individual depredation permits. These benefits result from indirect 
effects on cormorant populations from a higher threshold of authorized 
take, and the

[[Page 85544]]

resulting lower cormorant populations that are projected. The new 
permit coupled with the continued use of individual depredation permits 
for commercial aquaculture producers would provide the flexibility to 
manage cormorants sustainably and authorize take in an equitable 
fashion across multiple conflicts.
    Thus, we are certifying that this rule will not have a significant 
economic impact on a substantial number of small business entities. 
Therefore, a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    (a) This rule will not ``significantly or uniquely'' affect small 
government activities, because the Federal Government would not require 
States or Tribes to obtain this permit. By authorizing conflict-
management activities at the State or Tribal level, instead of at the 
Department of the Interior Regional level, management activities will 
be more responsive and timely than is currently the case. Quicker 
resolution of conflicts ultimately may result in fewer complaints 
regarding cormorants. In expanding authority given to the States and 
Tribes via this permit, workload burdens may shift with more being 
borne by the States and Tribes and less by the Service. However, a 
small government agency plan is not required.
    (b) We have determined and certify, in compliance with the 
requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et 
seq., that this rulemaking will not impose a cost of $100 million or 
more in any given year on local or State government or private 
entities. The rule does not have a significant or unique effect on 
State, local, or Tribal governments or the private sector, and the 
permit is optional to States and Tribes. Those States and Tribes 
interested in obtaining the new permit would likely have staff and 
resources in place with dedicated duties falling within the scope of 
conflicts associated with cormorants. Therefore, this rule is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act.

Takings

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

Federalism

    This rule would not interfere with the States' or Tribes' abilities 
to manage themselves or their funds. The new special cormorant permit 
would be optional and available to State and Tribal fish and wildlife 
agencies in the 48 contiguous States to manage conflicts specifically 
associated with cormorants. This permit would provide State and Tribal 
fish and wildlife agencies flexibility within predefined guidelines to 
address conflicts caused by cormorants within their jurisdictions. 
Therefore, this rule would not have sufficient federalism effects to 
warrant preparation of a federalism summary impact statement under E.O. 
13132.

Civil Justice Reform

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

Paperwork Reduction Act

    This final rule contains a collection of information that we have 
submitted to OMB for review and approval under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid OMB control number. OMB has reviewed the 
information collection requirements in this rule and assigned OMB 
Control Number 1018-0175. The new reporting and/or recordkeeping 
requirements identified below require approval by OMB:
    (1) FWS Form 3-200-90, Permit Application--Special Double-Crested 
Cormorant Permit (50 CFR part 21) (and associated amendments): This new 
permit would be available only to State or Tribal fish and wildlife 
agencies responsible for migratory bird management on lands and in 
waters managed by those agencies within their jurisdictions. Under this 
permit, the Service would authorize State and Tribal fish and wildlife 
agencies to conduct lethal take to reduce conflicts involving 
depredation at State- and Tribal-owned or operated aquaculture 
facilities (including hatcheries); impacts to health and human safety; 
impacts to threatened and endangered species (as listed under the ESA 
and listed species identified in State- or Tribal-specific legislation 
as threatened or endangered) or those listed as Species of Greatest 
Conservation Need in State Wildlife Action Plans; damage to State- or 
Tribal-owned property and assets; and depredations of wild and publicly 
stocked fish managed by State fish and wildlife agencies or federally 
recognized Tribes and accessible to the public or all Tribal members. 
Take activities to prevent depredation on aquatic Species of Greatest 
Conservation Need may occur only in natural or public waters.
    Any State or Tribal fish and wildlife agency wishing to obtain a 
permit must submit an application (FWS Form 3-200-90) to the 
appropriate Regional Director containing the general information and 
certification required by 50 CFR 13.12(a) plus the following 
information:
    a. A brief description of your State's or Tribe's double-crested 
cormorant conflicts, including physical location(s) and type of 
conflict specified above in this paragraph (1);
    b. A detailed description of the nonlethal methods (i.e., active 
hazing, passive hazing, habitat management, and changes in management 
practices) you have and/or will implement and how activities will 
address one or more of the issues specified above in this paragraph 
(1);
    c. The requested annual take of double-crested cormorants by life-
stage, including eggs and nests;
    d. A description of long-term plans to eliminate or significantly 
reduce continued need to take double-crested cormorants;
    e. A statement indicating that the State or Tribe will inform and 
brief all employees and subpermittees of the requirements of these 
regulations and permit conditions;
    f. A list of all subpermittees who may conduct activities under the 
Special Double-Crested Cormorant Permit, including their names, 
addresses, and telephone numbers; and
    g. The name and telephone number of the individual in your agency 
who will oversee the double-crested cormorant management activities 
authorized under the permit.
    States and Tribes applying for the first time must consult with the 
U.S. Department of Agriculture's Wildlife Services for an assessment of 
the appropriate level of take and provide recommendations of short-term 
measures to provide relief from depredation and long-term measures to 
help eliminate or significantly reduce conflicts. Wildlife Services 
provides a ``Form 37 Permit Review,'' which is required to be completed 
and included with the application for first-time applicants only.
    (2) FWS Form 3-202-56, Annual Report: The State or Tribe must 
submit an annual report (FWS Form 3-202-56) detailing activities, 
including the dates,

[[Page 85545]]

numbers, and locations and life stages of birds, eggs, and nests taken 
and nonlethal techniques utilized, by January 31 for activities 
conducted during the preceding calendar year. The Service will require 
an annual report by the State or Tribe prior to any permit renewal.
    (3) Recordkeeping Requirements: Any State or Tribal agency, when 
exercising the privileges of this permit, must keep records of all 
activities, including those of subpermittees, carried out under the 
authority of the special permit.
    (4) Designation of Subpermittees: States and Tribes may designate 
subpermittees who must operate under the conditions of the permit. 
Subpermittees can be employees of State and Tribal fish and wildlife 
agencies, USDA Wildlife Services employees, and employees of other 
Federal, State, or Tribal agencies or private companies licensed to 
conduct wildlife damage abatement.
    (5) Landowner Notifications: If a State or Tribe must enter private 
property to access State and Tribal lands or waters where take is 
approved in their permit, the State or Tribe must obtain authorization 
from the private property owner.
    Title of Collection: Federal Fish and Wildlife Permit Applications 
and Reports--Special Double-Crested Cormorants; 50 CFR part 21.
    OMB Control Number: 1018-0175.
    Form Numbers: FWS Forms 3-200-90 and 3-202-56.
    Type of Review: New.
    Respondents/Affected Public: State and/or Tribal governments.
    Total Estimated Number of Annual Respondents: 711.
    Total Estimated Number of Annual Responses: 711.
    Estimated Completion Time per Response: Varies from 10 minutes to 
16 hours, depending on activity.
    Total Estimated Number of Annual Burden Hours: 4,598.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion for applications, 
recordkeeping, and designations of subpermittees; and annually for 
annual reports.
    Total Estimated Annual Nonhour Burden Cost: None.
    A proposed rule, soliciting comments on this collection of 
information for 30 days, was published on June 5, 2020 (85 FR 34578). 
While we received no comments pertaining to information collection in 
response to the proposed rule, we also solicited comments regarding the 
DEIS titled ``Management of Conflicts Associated with Double-crested 
Cormorants'' (EIS number 20200116) that was published June 5, 2020. Of 
the 1,047 public comments submitted in response to the proposed rule 
and DEIS, we received 49 comments from the following entities in 
response to the DEIS that address the information collection 
requirements:

------------------------------------------------------------------------
                        Agency                           Date submitted
------------------------------------------------------------------------
Arkansas Farm Bureau Federation......................     July 20, 2020.
Arkansas Game and Fish Commission....................     July 16, 2020.
Association of Fish and Wildlife Agencies............     July 17, 2020.
Attorneys for Animals, Inc...........................     July 21, 2020.
Audubon..............................................     July 20, 2020.
Audubon Society of Portland..........................     July 21, 2020.
Arizona Game and Fish Department.....................     July 20, 2020.
Catfish Farmers of America...........................     June 30, 2020.
Center for Biological Diversity......................     July 20, 2020.
Central Flyway Council...............................     July 20, 2020.
Columbia River Inter-Tribal Fish Commission..........     July 21, 2020.
Congressional Sportsmen's Foundation.................     July 20, 2020.
Congressman Jack Bergman.............................     July 21, 2020.
Finger Lakes Conservation Council....................     July 13, 2020.
Georgia Department of Natural Resources, Wildlife         July 20, 2020.
 Resources Division..................................
Idaho Department of Fish and Game....................     July 20, 2020.
Kalmiopsis Audubon Society...........................     July 20, 2020.
Leech Lake Band of Ojibwe Division of Resources           July 13, 2020.
 Management..........................................
Louisiana Department of Wildlife and Fisheries.......     July 16, 2020.
Michigan United Conservation Clubs...................     July 16, 2020.
Mid-Columbia Public Utility District.................     July 20, 2020.
Mississippi Commissioner of Agriculture and Commerce.     July 20, 2020.
Mississippi Farm Bureau Federation...................     July 20, 2020.
Mississippi Flyway Council...........................     July 20, 2020.
Missouri Department of Conservation..................     July 17, 2020.
National Aquaculture Association.....................     July 20, 2020.
New York State Department of Environmental                July 20, 2020.
 Conservation........................................
New York State Fish and Wildlife Management Board....     July 21, 2020.
New York State Conservation Council, Inc.............     July 20, 2020.
North Dakota Game and Fish Department................     July 17, 2020.
Northwest Guides and Anglers Association.............     July 20, 2020.
Ohio Department of Natural Resources Division of          July 20, 2020.
 Wildlife............................................
Oklahoma Department of Wildlife Conservation.........     July 20, 2020.
Oregon Department of Fish and Wildlife...............     July 20, 2020.
Pacific Flyway Council...............................     July 20, 2020.
Pacific Public Employees for Environmental                July 15, 2020.
 Responsibility......................................
Pro Lake Management, LLC.............................     July 21, 2020.
Quality Lake, Inc....................................     July 21, 2020.
Roby, Daniel.........................................     July 21, 2020.
South Carolina Department of Natural Resources.......     July 20, 2020.
Texas Parks and Wildlife Department..................     July 20, 2020.
University of Minnesota-Twin Cities Department of         July 21, 2020.
 Fisheries, Wildlife and Conservation Biology........
U.S. Environmental Protection Agency, Region 9.......     July 16, 2020.
Virginia Department of Wildlife Resources............     July 21, 2020.
Washington Department of Fish and Wildlife...........     July 20, 2020.

[[Page 85546]]

 
Waterbird Society....................................     July 20, 2020.
Wisconsin Department of Natural Resources............     July 20, 2020.
World Aquaculture Society............................     July 20, 2020.
Wyoming Game and Fish................................     July 20, 2020.
------------------------------------------------------------------------

    As mentioned previously, we incorporate by reference comments and 
our responses in the 2020 FEIS associated with this rulemaking action, 
and address below those comments directly relevant to this rule. We 
arranged the comments addressing the information collections by 
overarching themes and provide a synopsis of the comments related to 
each theme, along with the Service's response to each theme, as 
indicated below:
Funding/Resource Concerns
    Several State agencies and organizations commented on the need for 
funding and technical support to implement a new State-wide special 
permit as described in the preferred alternative. Commenters expressed 
concern that a new permit process would be overly burdensome to 
implement, which could delay cormorant control efforts and impede 
management success. One State agency asked how much potential new 
monitoring or reporting a State would have to agree to, and the amount 
of time and resources that would need to be invested. They expressed 
concern that funding of population monitoring (and monitoring of take) 
would be sourced from State budgets if population monitoring is stepped 
down to the Flyways. Another State agency stated that in order to 
ensure that monitoring efforts are conducted consistently, the Service 
should conduct population monitoring or must allocate funding to the 
States for monitoring. A separate State agency expressed concerns about 
the burden that the proposed permit will place on States to develop and 
maintain programs to manage allowable take (i.e., population 
monitoring, permitting, and reporting). Similarly, another State agency 
cautioned that State resources are limited, while a separate State 
agency inquired whether States will receive financial assistance to 
implement the new permit. Lastly, the Mississippi and Pacific Flyway 
Councils also commented that Federal financial support may be needed to 
manage reporting and monitoring and the ability to administer a 
cormorant depredation program.
    Agency Response to Funding/Resource Concerns: This new permit does 
not require a State or Tribe to process or issue any depredation 
permits to entities within their jurisdiction. As stated in the 
proposed rule and DEIS, States and Tribes would not be required to 
request a permit, and those entities within States or Tribes not 
seeking a new permit would continue to be able to apply for individual 
depredation permits (except those that address wild and publicly 
stocked fisheries). The Service's purpose and need for this action, 
however, is to provide the flexibility for a State or Tribe to address 
spatial and temporal complexity of conflicts. This is because each 
State and Tribe has different goals and objectives for wildlife 
management, and, therefore, allowances for flexibility when 
prioritizing allocation of authorized take must be granted. In all 
cases under a new permit, States and Tribes would be required to 
respond to questions as part of a permit application, and document all 
take that occurs under their permit(s), and provide the Service with a 
report by January 31 for activities conducted during the preceding 
calendar year. But the cost and means to implement permit requirements 
will vary based on the goals of any particular State or Tribe seeking 
relief from conflicts associated with cormorants. The Service cannot 
obligate funds to implement a new special permit at this time, nor 
could the Service accurately project any necessary additional funding 
for each State or Tribe due to the flexibility provided to them. As 
with the management of other migratory bird species, the Service 
expects costs of management to be shared among the Service, States, and 
Tribes.
Monitoring Plans
    Several States, organizations, and individuals commented on the 
need for more clarity and details from the Service with regard to the 
development of a cormorant population monitoring program, and how 
adaptive management will be incorporated. Entities requested that the 
Service provide an outline of a cormorant population monitoring regime 
as a foundation for current consideration by stakeholders and as the 
basis for stakeholder meetings with the Service following the 
publication of the record of decision. These commenters also asked how 
much potential new monitoring or reporting a State would have to agree 
to, and the amount of time and resources that would need to be 
invested. Some State agencies and Flyway Councils provided specific 
recommendations for population monitoring. One State agency, for 
example, requested that the Service provide standardized population 
monitoring and reporting protocols needed to evaluate impacts of 
authorized take on cormorant populations, as well as criteria to be 
used to assess the costs and benefits of take on wild fish stocks, 
aquaculture facilities, human health and safety, property, and species 
of conservation concern. Several commenters expressed concern over any 
requirement that permittees gather data to assess the efficacy of take. 
Similarly, commenters seek to clarify on who would be required to 
collect any such data.
    Agency Response to Monitoring Plans Concerns: The Service will work 
with the four Flyway Councils and partnering Federal agencies to 
develop agreed-upon, standardized monitoring protocols. The purpose of 
the monitoring protocols will be to provide scientifically defensible 
estimates and/or indices of double-crested cormorant population 
abundance, biologically allowable take, and observed take. The 
protocols will detail agency-specific responsibilities and estimated 
annual costs associated with monitoring. The Service will also produce 
a report every 5 years, and additionally as needed, that provides 
analyses from population-monitoring efforts and other status 
information. This report would be provided to the public to promote 
transparency of decision-making and evaluation of the effectiveness of 
this conflict-management tool. This report would include, but not be 
limited to: (1) Updated cormorant population status and trends; (2) 
reported lethal take of cormorants nationally and by cormorant 
population; (3) updated PTL analyses based on new or more current 
population information; (4) the state of the conflicts described in the 
scope of the rule and assessment of a need for continued management, as 
reported by requests for depredation permits (both individually and 
programmatically by participating States and Tribes); and (5) a 
conflict-management decision and justification for either continued

[[Page 85547]]

management or a proposed new management approach, if appropriate and 
needed. In providing clarity to potential permittees about the 
necessary information applicants need to provide in the application, 
the Service clarifies that the application does not include language 
that permittees gather data to assess the efficacy of take. Rather, it 
includes language asking the applicant to provide a description of 
long-term plans to eliminate or significantly reduce continued need to 
take cormorants. The Service encourages State and Tribal fish and 
wildlife agencies to coordinate with subpermittees to assess take 
measures that address long-term prevention of depredation where 
possible, and to conduct monitoring in conjunction with the Service as 
it develops its population monitoring plan.
Development of Guidelines
    A number of State agencies recommended that the Service develop 
guidelines for determining when there is sufficient proof that 
nonlethal mechanisms are ineffective at resolving conflicts. One State 
agency requested that the Service provide States seeking permits with a 
guide or Best Management Practices on nonlethal methods of resource 
protection. Another State agency recommended that the Service develop 
and provide States with sampling protocols to assist with collecting 
and analyzing fish population data where cormorant control activities 
occur.
    Agency Response to Development of Guidelines Concerns: The Service 
received many comments either in favor of or opposed to using nonlethal 
methods in all situations. Commenters cited that nonlethal methods are 
not effective in all cases; some may be cost-prohibitive, and some may 
not respond well in situations where birds may become habituated to 
nonlethal management. The Service agrees that harassment of cormorants 
may be effective in some areas, but ineffective in others. The 
conditions that dictate this outcome are often site-specific and 
variable throughout any given year. Some commenters noted that 
nonlethal measures may work for a limited time period, but some birds 
may become habituated. The Service stated in the DEIS and the FEIS that 
the use of nonlethal methods alone is not an effective management tool 
to respond to conflicts associated with cormorants, which is why the 
Service rejected that possible alternative in its analysis.
    The Service encourages and expects continued use of nonlethal 
measures in conjunction with lethal measures where permittees find this 
approach most effective. Often, a combination of measures is the most 
effective way to address conflicts associated with cormorants. The 
Service needs to rely on permittees to make site-specific assessments 
and employ cormorant conflict management in a manner that makes the 
most sense, so long as those permittees follow the conditions of the 
permit. For added clarity in response to these comments, the following 
is a condition that would be part of any permit issued by the Service 
under the preferred alternative in this FEIS: States and Tribes must 
use nonlethal methods, and independently determine that those methods 
are insufficient in controlling the depredation conflict, before 
lethally taking double-crested cormorants. Permittees may also consult 
with USDA Wildlife Services for additional assistance to determine when 
nonlethal methods are insufficient.
Flyway Councils and Adaptive Management
    Comments from the Flyway Councils indicated an interest in being 
involved in the development of the Service's monitoring plans. The 
Mississippi Flyway Council noted that they felt the 5-year monitoring 
plan seemed reasonable, and suggested the Service consider the 
participation of Flyway Councils to develop coordinated monitoring. The 
Central Flyway Council indicated support for developing monitoring 
plans, and recommended that the four Flyways contribute recommendations 
on reasonable take allocations. A State agency recommended the Service 
use the Flyway system to assist in the allocation of permitted lethal 
removal of cormorants, due to the pressing need to resolve cormorant 
conflicts across broad geographic regions.
    Another State agency requested that the Service convene meetings 
with the Flyways and other relevant stakeholders to develop a specific 
cormorant population monitoring plan. The need to ensure adequate 
monitoring and reporting to manage take while considering the limited 
State resources was cited by some State agencies as well. One State 
agency also noted a concern for how Flyways would fund and provide 
resources for additional monitoring and reporting of cormorant 
populations and lethal take, as much of their funding comes from State 
budgets.
    Another State agency commented suggesting that the involvement of 
the Flyway Council could be beneficial in the development of monitoring 
plans, but felt that monitoring plan development should be the extent 
of their involvement, since their nongame technical section has little 
relevant experience with the management of overabundant species. Both 
the Mississippi Flyway Council and a State agency in that flyway 
encouraged the Service to align their regulatory cycle with the Flyway 
Council's summer meeting to provide sufficient time for States to 
properly and carefully consider the Service's regulatory proposals.
    The Mississippi Flyway Council recognized, supports, and 
appreciates that, under Alternative A, some States and Tribes in the 
Flyway not wishing to establish a new permit system, as well as 
commercial aquaculture facilities experiencing cormorant issues, have 
the option to apply for depredation permits under 50 CFR 21.41. Lastly, 
the Central Flyway Council recommended the Flyway process be used to 
notify the Service of which States within each Flyway will be 
participating in the new permit.
    Two stakeholders submitted comments regarding adaptive management. 
One stated that the Service did not address adaptive management in the 
information collection. Another stated that the concept of adaptive 
management only appeared once in the DEIS, in reference to the 
perceived benefits of Alternative A allowing flexibility in a State's 
or a Tribe's cormorant control strategies to achieve desired fisheries 
benefits.
    Agency Response to Flyway Council and Adaptive Management Concerns: 
Regarding population monitoring and adaptive management, the Service 
will work with the four Flyway Councils and partnering Federal agencies 
to develop agreed-upon, standardized monitoring protocols. The Service 
will make every effort to align coordination with the Flyway Councils 
around their meetings throughout the calendar year. The purpose of the 
monitoring protocols will be to provide scientifically defensible 
estimates and/or indices of double-crested cormorant population 
abundance, biologically allowable take, and observed take. The 
protocols will detail agency-specific responsibilities and estimated 
annual costs associated with monitoring. The Service will also produce 
a report every 5 years, and additionally as needed, that provides 
analyses from population-monitoring efforts and other status 
information. This report will be provided to the public to promote 
transparency of decision-making and evaluate the effectiveness of this 
conflict-management tool. This report will include, but not be limited 
to: (1) Updated cormorant population status and trends; (2) reported 
lethal take of

[[Page 85548]]

cormorants nationally and by cormorant population; (3) updated PTL 
analyses based on new or more current population information; (4) the 
state of the conflicts described in the scope of the rule and an 
assessment of the need for continued management, as reported by 
requests for depredation permits (both individually and 
programmatically by participating States and Tribes); and (5) a 
conflict-management decision and justification for either continued 
management or a proposed new management approach, if appropriate and 
needed.
Depredation/Control Orders
    Several entities and State agencies commented in support of an 
aquaculture depredation order in conjunction with a new special State 
and Tribal permit addressing conflicts associated with cormorants. Some 
State agencies also voiced support for a new aquaculture depredation 
order or a new general depredation order without commenting 
specifically on a new State or Tribal special permit. One State agency 
referenced the DEIS by concluding that the environmental impacts 
between Alternatives A and C would be similar, and stated that 
Alternative C would provide greater efficacy and less administrative 
burden for their agency. Another commenter submitted a similar comment 
and voiced support for a nationwide depredation order. Other entities 
also commented in support of an aquaculture depredation order in 
general, stating that individual permits are not effective and the 
proposed rule does not provide a lethal take management option for 
commercial aquaculture facilities such as catfish farms. A State agency 
also commented in support of Alternative C, citing specific support for 
a new special State and Tribal permit and the ability for States to 
manage their own water resources. A nongovernmental organization 
commented in support of a nationwide depredation order, stating that 
individual depredation permits are ineffective due to the unpredictable 
migratory patterns of cormorants making it difficult to effectively 
assess where individual permits are needed.
    Commenters in support of a new aquaculture depredation order 
suggested that this alternative would reduce the administrative and 
regulatory burden on the Service and the aquaculture industry, and 
emphasized that individual take permit applications are a significant 
burden for small businesses. These commenters asserted that low take 
limits for individual permits are sometimes arbitrarily set by regional 
agency offices, making these permits inefficient, and that small 
businesses would be required to continue to apply for individual take 
permits. One aquaculture farmer spoke about complications with having 
to apply and pay for two separate permits at two separate regional 
offices due to having farms in bordering States. A State agency 
commented in disagreement with the assertion that the requirement to 
track take of cormorants under Alternative A is less burdensome than 
for other alternatives and that reporting requirements under most 
alternatives could be structured to equally assess take levels.
    A Tribal Commission commented in support of Alternative D, a 
general depredation order. They also suggested that the Service include 
Federal lands in this alternative in order to allow State and Tribal 
wildlife managers the necessary flexibility to manage cormorants 
effectively and efficiently for the resources that need protection. 
This Commission further states Alternative D is ideal to maximize 
flexibility in protecting out-migrating juvenile salmon and steelhead 
as it includes all lands where cormorants impact fisheries resources 
throughout the Columbia River basin.
    Lastly, an industry association commented in support of the vacated 
depredation order, and not the depredation orders analyzed in the DEIS.
    Agency Response to Depredation Order Comments: As explained in the 
DEIS, the Service would apply an annual maximum allowable take 
threshold across all the needs identified by stakeholders. The Service 
determined this threshold by using a Potential Take Limit (PTL) model, 
which uses underlying cormorant population metrics (productive rates, 
survival rates, etc.) to calculate an annual allowable take level. This 
is the same type of model used to sustainably manage some migratory 
game bird species (band-tailed pigeons) and take levels for species 
such as black vultures. By establishing an annual sustainable take 
threshold, and ensuring systems are in place to keep take below that 
threshold, the Service will implement the robust tool needed to assess 
the effects of take on cormorant populations to address potential legal 
challenges.
    Under the vacated aquaculture depredation order, aquaculture 
facilities were required to annually report lethal cormorant control 
activities. This system of limited accountability and self-reporting 
with a year time-lag was not adequate to consistently track authorized 
take on a national scale. In addition to timing, the lack of reliable 
annual take from information under the previous depredation orders 
complicated our ability to assess the impacts of the orders on 
cormorant populations.
    The Service must be capable of tracking take by all authorization 
mechanisms available throughout the year. Presently, however, the 
Service does not have the necessary process or resources to adequately 
monitor take under any new depredation order. This is because, unlike 
the use of a permit system, the Service cannot track take under a 
depredation order until the take has already occurred, creating a 
greater probability that the take will exceed the maximum limit before 
it is reported. To adequately track take under any new depredation 
order, whether that order be the vacated orders, or those analyzed in 
the DEIS, the Service needs to develop a mechanism that allows take to 
be tracked in real time, such as the Canada Goose Registration database 
(50 CFR 21.50). Such a tool would reduce the likelihood of exceeding 
the annual take threshold or reaching the annual take threshold prior 
to the end of the year. Additionally, a registration/tracking tool 
would only be effective if those using the depredation order were 
willing to register and report take numbers on a regular and frequent 
basis. Since a tracking system is not currently in place, this 
alternative is not ripe for decision. The Service must therefore 
continue to rely on individual permits for private and commercial 
entities.
    The Service will continue to issue individual depredation permits 
and is not proposing to implement any new cormorant depredation orders 
anywhere in the United States at this time. Based on information 
received during the public comment period, the PTL model for the 
western subpopulation may not have captured complex and changing 
population dynamics precipitated by cormorant management in the 
Columbia River Estuary. To reduce the risk of over-exploiting the 
western subpopulation, the Service will initially limit that annual 
take to half the PTL in the DEIS, or 4,539 individuals. This is a 
maximum allowable annual take level, not a prescribed level. Based on 
past take of cormorants, expected take is unlikely to exceed 2,000 
annually.
    In regard to comments questioning which entities may remain 
eligible to apply for and receive individual depredation permits, the 
Service acknowledges this complexity and refers commenters to Table 1 
in the FEIS, ``Differences In Regulatory Frameworks That Would Address 
Conflicts Across All Alternatives,''

[[Page 85549]]

which outlines how each alternative in the NEPA analysis would employ 
different proposed regulatory frameworks to address conflicts relating 
to cormorants. The preferred alternative would establish a new, 
optional permit that would be available to State and Tribal fish and 
wildlife agencies in the 48 contiguous States to manage conflicts 
specifically associated with cormorants. This alternative would provide 
State wildlife management agencies and Tribes flexibility within 
predefined guidelines to address conflicts caused by cormorants within 
their jurisdictions. As stated in the rule and NEPA analyses, States 
and Tribes would not be required to request a permit, and those 
entities within States or Tribes not seeking a new permit would 
continue to be able to apply for individual depredation permits 
(individual depredation permits would not authorize the take of 
cormorants to protect wild or stocked fish except when circumstances 
require the protection of federally listed species). Commercial 
aquaculture facilities would continue to have the ability to apply for 
individual depredation permits (50 CFR 21.41) from the Service. 
Regarding the individual's comment about having to apply and pay for 
two separate permits at two separate regional offices due to having 
farms in bordering States, the Service emphasizes that multiregional 
depredation permits will remain available for these circumstances. For 
example, the regional office to which a commercial aquaculture producer 
would apply can issue a permit for more than one State and across 
regional boundaries. This would require a coordination step between 
those two regional permit offices, which is a standard operating 
practice for the Service when an applicant seeks to take migratory 
birds from States that occur in different administrative regions.
Permit Application/Permit System
    Allocation and Scope of Authorized Take: Several commenters 
submitted questions pertaining to how the Service would manage overall 
allocation of authorized take of cormorants. Generally, commenters 
asked how the Service would: (1) Allocate take among all existing 
authorizations for take, including a new State and Tribal permit; (2) 
account for regional take under the national permit system; and (3) 
determine an upper limit of take for each State. For example, two State 
agencies commented on the need to understand how the Service would 
allocate take among all authorization mechanisms. Another State agency 
also commented on the need for clarity on how annual take, both at the 
State and regional level, would be shared among the States and Tribes 
so that they can make informed determinations in successive years. 
Another State agency stated that the method by which take will be 
allocated across the western population is unclear from the DEIS and 
needs to be clarified. The Central Flyway Council requests the Service 
engage the four administrative flyways so they can provide 
recommendations to the Service on reasonable take allocation among 
States and flyways. One individual commented with concern that States 
may take the majority of the allocated take within a cormorant 
subpopulation's allowable take threshold within the PTL. This commenter 
further states that there is no structure to ensure that take for 
resources will be balanced (prioritization) or that a diversity of 
stakeholder interests will be considered.
    Several State agencies and commenters voiced a need for clarity on 
the scope of authorized take within a new cormorant depredation permit 
for States and Tribes outlined in the proposed rule. Specifically, 
commenters requested clarity on the scope of circumstances for when 
take would be authorized, the geographic and temporal scope, and 
whether the new special permit would apply to private property owners 
and Species of Greatest Conservation Need (SGCN) as identified in State 
Wildlife Action Plans. Commenters stated that this clarity is needed to 
understand where and when States and Tribes can implement take of 
cormorants. For example, two State agencies recommended rewording 
``wild and publicly stocked fish stocked by State agencies or Tribes'' 
to ``wild and stocked fish managed by State agencies or Tribes.'' 
Another separate State agency stated that a State agency may need to 
apply control of cormorants on public waters, which can occur in cases 
where a State does not own the land, and recommends the final rule 
language be revised from, ``Lands under the jurisdiction of the 
State,'' to ``Lands and/or public waters under the jurisdiction of the 
State.'' Similarly, another State agency sought clarification on the 
language used in the proposed rule, and referenced ``state or tribal 
lands'' and ``respective jurisdiction.''
    One private entity commented that the proposed rule should not 
limit State cormorant control efforts to only those water bodies where 
impact studies have been performed, and should be revised to provide 
relief for water bodies with ``publicly stocked fish'' to include 
``publicly accessible fisheries'' to include protection for wild fish. 
A State agency similarly requested that the Service provide States with 
standardized guidance on determining when take is warranted to support 
fish resources, and to reduce conflicts associated with risks to human 
health and safety, property, and species of conservation concern. A 
separate State agency commented about the scope of the conflicts, and 
asked if a State permit is the only way a State can address cormorant 
conflicts. That agency further asked about possible ramifications of 
opting out of the permit system, and if there will still be a mechanism 
by which a State can address wild fishery conflicts with cormorants.
    Agency Response to Allocation and Scope of Authorized Take 
Comments: States and Tribes would not be required to request a permit, 
and those entities within States or Tribes not seeking a new permit 
would continue to be able to apply for individual depredation permits 
(except those that address wild and publicly stocked fisheries). The 
Service cannot yet provide the specificity requested on how the 
allocation of individual permits for aquaculture facilities and 
property owners would occur because the Service does not yet know how 
many States or Tribes would request the proposed new permit. However, 
the Service understands that States and Tribes need clarity on the 
Service's expectations for an acceptable level of requested take in an 
application for a new permit. Permittees would be restricted to maximum 
levels of take authorized, designed not to exceed the PTL within the 
subpopulation where the State or Tribe is located. This level of 
authorized take would depend on: (1) Which States and Tribes seek a new 
special permit within the same subpopulation analyzed within the PTL; 
(2) an assessment by Service permit staff of the available level of 
take each year within the specific subpopulation where the State or 
Tribe is located; and (3) an assessment by Service permit staff of the 
historical information of authorized take of cormorants due to 
depredation in the past. However, allocation of authorized take may be 
modified as conditions change once take is allowed. The Service 
encourages interested States and Tribes to communicate with the Service 
during the application process to best determine prioritization and 
allocation of authorized take of cormorants.
    The Service appreciates the comments that the scope of where take 
activities could occur may be too limiting relative to the areas that 
States and Tribes manage for fisheries. The Service therefore revised 
the language in the

[[Page 85550]]

final rule to better encompass the lands and waters managed by State 
and Tribal fish and wildlife management agencies stating that, under 
this (special double-crested cormorant) permit, the Service authorizes 
State and Tribal fish and wildlife agencies to conduct lethal take of 
double-crested cormorants that is normally prohibited and is intended 
to relieve or prevent impacts from cormorants on lands or in waters 
managed by those agencies within their respective jurisdictions. The 
scope of management and take activities conducted under the permit is 
intended to reduce or prevent conflicts associated with cormorants for 
the following concerns:
    1. Depredation of fish at State- and Tribal-owned or operated 
aquaculture facilities, including hatcheries;
    2. Realized and potential impacts to human health and safety (e.g., 
collisions of airplanes with birds, fecal contamination of urban 
wetlands);
    3. Impacts to threatened and endangered species (as listed under 
the ESA and listed species identified in State- or Tribal-specific 
legislation as threatened or endangered) or those listed as Species of 
Greatest Conservation Need in State Wildlife Action Plans, where take 
activities to prevent depredation on aquatic Species of Greatest 
Conservation Need may occur only in natural or public waters;
    4. Damage to State- or Tribal-owned property and assets; and
    5. Depredation of wild and publicly stocked fish managed by State 
fish and wildlife agencies or federally recognized Tribes and 
accessible to the public or all Tribal members.
Permit Application/Permit System
    Geographic and Temporal Scope: Some commenters inquired about the 
geographic scope of a new State or Tribal permit, stating that 
implementation of lethal control of cormorants to reduce impacts on 
aquaculture, wild and stocked fisheries, human health and safety, 
property, and species of conservation concern should be authorized at a 
biologically sustainable level for the Alaska, Pacific Coast, Interior, 
Atlantic, and Southern breeding cormorant populations. These entities 
commented that the scope of the new special cormorant permit would 
allow States and Tribes to be able to take cormorants at any location 
and at any time.
    Agency Response to Geographic and Temporal Scope Comments: The new 
permit would be available to all States and federally recognized Tribes 
in the contiguous 48 States. The geographic scope of the new State or 
Tribal permit is authorized at biologically sustainable levels for each 
subpopulation. To ensure biological sustainability, the Service used 
the most recent cormorant population data available to develop the PTL 
model. The PTL is a biologically based model and evaluates allowable 
take of cormorants in the contiguous 48 States. The Service regularly 
uses PTL models to determine sustainable levels of take and has 
concluded that if this level of take were to be authorized, it would be 
biologically sustainable based on knowledge of cormorant population 
dynamics. The PTL sets the upper limit for allowable take; it is not a 
take prescription. The PTL limits apply to take for entire 
subpopulations (i.e., Florida, Western, and Atlantic plus Central). The 
number of birds authorized for take for each subpopulation will depend 
on (a) the number of States that request a State permit, and (b) the 
number of birds each State/Tribe requests to take in order to minimize 
their particular conflict. Regarding the comment about the geographic 
scope and the inclusion of Alaska, the Service notes that the Alaska 
population is not included.
    On the comment of taking cormorants at any location and at any 
time, actions under the permit may be conducted during any time of the 
year, unless specified otherwise in the permit's terms and conditions. 
Specific conditions include those pertaining to lethal take during the 
breeding season. Lethal take of adults during the breeding season must 
occur prior to hatching of eggs to avoid the loss of adults that likely 
would result in orphaning chicks and their ultimate death due to 
starvation. Adult birds may not be taken at any nest with young in it 
unless the take of adults addresses a human health and safety issue.
Permit Application/Permit System
    Private Property Owners: Several commenters also requested the 
Service include provisions that allow for the lethal take of cormorants 
on private property, particularly to protect fish that are stocked by 
the landowner for their personal use. One State agency recommended that 
the Service include private recreational pond owners in the scope of 
the new permit. Some commenters voiced concerns that, if such 
provisions are not allowed, landowners will take matters into their own 
hands to protect their fish and that the presence of and depredation by 
cormorants on stocked fish in private ponds would negatively impact 
recruitment of new anglers.
    Agency Response to Private Property Owners: The Service, in some 
instances, does allow the take of migratory birds to protect private 
property. Private landowners may apply for a depredation permit (50 CFR 
21.41) to alleviate damage to some types of property (i.e., buildings 
and infrastructure, vehicles and equipment, some types of vegetation). 
However, by policy, the Service's Migratory Bird Program does not issue 
permits to prevent depredation or harm to privately owned animals 
(e.g., hobby animals, pets, or similar categories of animals) that are 
raised free-range or otherwise released to the wild. Numerous nonlethal 
means, such as harassment, use of effigies, habitat modification, and 
others, are available to landowners who maintain animals in natural-
like environments. Regarding the comment suggesting that some 
landowners may unlawfully take cormorants if they do not receive 
authorization to do so from the Service, we recognize that this 
activity may occur, but we can neither prevent unlawful activity nor 
predict where and when unlawful activity would occur in such cases. 
However, landowners taking such actions would face the possibility of 
being cited for violations of the MBTA, as well as fines for such 
violations.
Permit Application/Permit System
    Species of Greatest Conservation Need (SGCN): Several State 
agencies also commented on the need to include conflicts related to 
SGCN as identified in State Wildlife Action Plans. Because not all 
States have State-designated lists of threatened and endangered species 
within their State, some State agencies recommended that the language 
of the rule be changed to ``state or tribal species of greatest 
conservation need,'' in reference to lists created for State Wildlife 
Grants. Similarly, another State agency recommended greater flexibility 
for State fish and wildlife agencies to authorize take to protect SGCN 
species. Another agency stressed in the comments responding to the DEIS 
and the ANPR that, when determining priority and allocation of 
allowable take of cormorants, the protection of special-status 
resources should have first priority. The Central Flyway Council stated 
that the final rule should include conflicts related to SGCN as 
identified in State Wildlife Action Plans in the scope of the new 
special permit.
    Agency Response to SGCN Comments: With regard to Species of 
Greatest Conservation Need as identified in State Wildlife Action 
Plans, the Service agrees. One of the stated needs for action is to 
address impacts from cormorants on special status species. Impacts may 
involve competition for

[[Page 85551]]

nest sites, competition for food, reducing available nesting space and 
nesting material for co-nesting species, habitat degradation, and nest 
abandonment resulting from habitat degradation. Therefore, the Service 
included new language within the scope of the preferred alternative, 
which now states, ``listed species identified in State- or Tribal-
specific legislation as threatened or endangered) or those listed as 
Species of Greatest Conservation Need in State Wildlife Action Plans, 
where take activities to prevent depredation on aquatic Species of 
Greatest Conservation Need may occur only in natural or public 
waters.''
Reporting Requirements
    Several stakeholders inquired as to the specific requests for 
information required in a new special permit. Commenters also expressed 
concern regarding the Service's commitment to producing a report every 
5 years. One nongovernmental organization asserted that the Service's 
reporting plan is inadequate as it will produce a report providing 
analysis of population monitoring efforts only every 5 years, and 
instead recommends it be done annually. Regarding reporting by 
permittees, both the Central Flyway Council and a State agency 
recommended authorization of a 5-year State and Tribal permit with 
annual reporting requirements, to provide the Service with timely data 
regarding take while reducing the Service's staff time needed to 
process annual permit renewals. The Central Flyway Council recommended 
annual reporting of control activities conducted under each permit, 
similar to what was required in the past, and a periodic cormorant 
population assessment at a decadal interval while encouraging the 
Service to explore the efficacy of existing monitoring programs. 
Another State agency suggested commercial aquaculture facilities and 
private landowners be required to report annually, at a minimum, and 
noted that issuing annual permits provides accurate and timely 
reporting to maintain compliance with permit provisions. Separately, 
another State agency recommended that the Service provide detailed 
criteria regarding the annual reporting requirements.
    The Central Flyway Council opined that increased reporting 
requirements and intensive monitoring of cormorant populations would be 
difficult for many State wildlife agencies, given limited personnel and 
budget constraints. One State agency in that flyway requested 
clarification on how much potential new monitoring or reporting a State 
would have to agree to, and the amount of time and resources that would 
need to be invested.
    Both the Pacific Flyway Council and a State agency in that flyway 
stressed the importance that any expectation of monitoring and 
reporting needed to implement the proposed new permit system must be 
backed with a robust program of Federal funding to support the duration 
of the monitoring activities. The Pacific Flyway Council also noted a 
concern that the costs of permit management, reporting, and monitoring 
will detract from other species conservation work, which is already 
difficult due to limited funding. A separate State agency commented 
with concern for the burden that the proposed permit will place on 
States to develop and maintain programs to manage allowable take (i.e., 
population monitoring, permitting, and reporting). One private entity 
questioned whether the requirement to provide information to evaluate 
control efforts could become so complex and cumbersome that it curtails 
action, citing the information collected for a considerable amount of 
time by State agency wildlife professionals.
    A State agency requested clarification of the Service's 
expectations with regards to permitting, monitoring, and reporting 
requirements on waters managed by private landowners. Another State 
agency noted that it does not desire the authority to issue take 
permits to other entities within their State to address aquaculture 
conflicts, property damage, nuisance, or human safety issues. Another 
State agency noted that the renewal of subpermittee authority would be 
conditional on timely and accurate reporting, and recommended that 
steps be taken to ensure data collection is timely, accurate, and 
complete by all persons authorized to take cormorants (offering a 
comparison to the Resident Canada Goose Nest and Egg Depredation Order 
under 50 CFR 21.50 (OMB Control No. 1018-0146)).
    Separately, one State agency requested that the Service provide 
standardized population monitoring and reporting protocols needed to 
evaluate impacts of authorized take on cormorant populations, as well 
as criteria to be used to assess the cost and benefit of take on wild 
fish stocks, aquaculture facilities, human health and safety, property, 
and species of conservation concern. Another State noted their 
assumption that, under a special permit, the prioritization of issued 
take ultimately would be the responsibility of the respective State 
fish and wildlife agencies or Tribes to manage accordingly, including 
reporting. Yet another State opined that the reporting requirements for 
the proposed permit system are unclear.
    Agency Response to Reporting Requirements Concerns: The Service 
will require, as part of receiving a permit, an annual report that must 
be submitted by January 31st each year. The annual report requires the 
permittee to include location of take (GPS coordinates in decimal 
degrees), purpose of take (aquaculture, health, threatened or 
endangered species, property, stocked fish), nonlethal methods 
implemented, month taken, quantity taken (birds killed, nests oiled/
addled, and nests destroyed), and disposition of carcass (e.g., buried, 
incinerated, donated).
    Given the controversial nature of this issue and the novel approach 
toward reducing conflicts, the Service concludes annual permits and 
annual reporting by permittees are appropriate at this time. As we gain 
experience with this program, the Service could consider permits of 
longer duration, but additional NEPA analyses may be required for any 
additional rulemaking procedures or amendments.
    Take of cormorants will be compiled annually and information can be 
made available if needed prior to completion of the 5-year reports. 
However, as with any bird population monitoring efforts, variation 
throughout the year, due largely to sampling error, can be quite high. 
The Service concludes that assessing population status over a 5-year 
period will avoid inappropriate decisions based on observed, but not 
necessarily real, annual changes in abundance, and still be sufficient 
to ensure sustainable populations of cormorants.
    The new special permit would not apply to private landowners. 
Private property owners may apply for a depredation permit (50 CFR 
21.41) to the Service to alleviate damage to some types of property 
(i.e., buildings and infrastructure, vehicles and equipment, and some 
types of vegetation).
Designation of Subpermittees
    Several commenters requested clarity about who a State or Tribe may 
delegate authority to as a subpermittee under a new permit to conduct 
take of cormorants. One State recommended that the Service allow 
willing States and Tribes to issue permits to subpermittees, with the 
subpermittee's renewal authority conditional on timely and accurate 
reporting. Another State agency requested clarity on the level of 
authority given by a State or Tribe to carry out lethal take, asking if 
this

[[Page 85552]]

would be limited to only State agency personnel, or other private and 
public entities or persons as authorized by States. For example, one 
State commented that the language related to subpermittees should read, 
``Subpermittees may be, but are not limited to, employees of state and 
tribal wildlife agencies, Wildlife Services employees, and employees of 
federal and state agencies or private companies specializing in 
wildlife damage abatement.'' Some commenters opined that the Service 
should define the level of training and control needed to ensure people 
operate in a humane, accountable, and lawful manner.
    Agency Response to Designation of Subpermittees Concerns: The 
Service agrees with the need to provide further clarification of the 
role that subpermittees may play, and to identify who can operate as a 
subpermittee pursuant to a permit issued under this rule. The final 
rule states that subpermittees ``can be employees of State and Tribal 
wildlife agencies, USDA Wildlife Services employees, and employees of 
Federal and State agencies or private companies specializing in 
wildlife damage abatement and under direct control of the permittee.'' 
The Service is limiting subpermittees to these entities because in some 
areas other cormorant species and look-alike species (e.g., anhingas) 
can overlap in specific ranges and habitats with double-crested 
cormorants. Professional biologists and trained experts are more likely 
to be able to differentiate between these species and reduce the 
possibility of taking nontarget species.
    There are many levels of training that vary widely across the 
country that may be appropriate. The Service will not identify specific 
training requirements necessary to become a subpermittee. Rather, we 
expect that the categories of individuals listed above will have the 
skills, or could readily acquire the skills, to accurately identify 
double-crested cormorants and differentiate other look-alike species to 
avoid taking them. Further, by virtue of their positions, we expect 
that all such employees will operate in a humane, accountable, and 
lawful manner. The authority to take double-crested cormorants 
conferred by the permit is given to the State or Tribal fish and 
wildlife agency, and those agencies may designate permittees that the 
Service approves on the application for the permit. To provide added 
clarity, the Service included as part of the application for a new 
permit that permittees must agree that, ``(e) Anyone taking birds under 
this permit must be skilled in double-crested cormorant identification. 
Nontarget take of any other avian species must be reported to your 
permit office with your annual report including species, number, and 
description of events.'' The application for this permit can be found 
in Appendix H of the FEIS, and we cross-reference the FEIS for 
additional comments and responses on this issue not directly related to 
this rulemaking. Further, any birds incidentally taken would be 
reported by States and Tribes, and the Service would use this data to 
better track accidental take of these species when take of cormorants 
occurs, and recommend appropriate actions such as additional training 
of personnel, or avoiding areas where there is a high concentration of 
non-target species in the area.
General Comments
    Some entities commented that the Service would need to ensure that 
current depredation permits for take of cormorants continue to be 
issued under 50 CFR 21.41, as population levels allow. These commenters 
stated that depredation permits are essential to manage the effects of 
increased double-crested cormorant populations on migrating salmon and 
steelhead smolts. One State agency requested clarity on which entities 
remain eligible to receive individual depredation permits for those 
States that do choose to obtain a special statewide depredation permit, 
noting that they do not desire the authority to issue take permits to 
other entities within their State to address aquaculture conflicts, 
property damage, nuisance, or human safety issues. This particular 
State agency requested the preferred alternative include a specific 
statement affirming the continued availability of individual 
depredation permits for entities within States that choose to obtain a 
special depredation permit. Another State agency requested 
clarification on how the Service will account for the illegal take of 
cormorants. This State agency also inquired as to whether they should 
apply for and receive 150 permits. They ask if it is possible for the 
Service to consider a higher level of take (150 permits) under 
Alternative E for hatcheries to correspond to the higher level of 
authorized take, or the maximum allowable take, in Alternatives A-D. 
This State asserts that they operate four State-owned hatcheries, where 
fingerlings are raised for stocking public water bodies for the 
enjoyment and recreational use of fisheries resources by the public. 
The current number of depredation permits allocated to this State 
appears to be helpful in reducing fingerling depredation and pond liner 
damage, but not adequate to prevent still significant losses to 
production and facilities. Therefore, this particular State requested 
150 cormorant depredation permits, regardless of the management 
alternative selected, to better manage cormorant populations at its 
State hatchery facilities.
    Some commenters stated that the Service failed to address the 
cumulative impacts of climate change and other cormorant take, and 
should therefore evaluate the cumulative impact of other cormorant 
take, such as the planned hunting seasons in Ontario, Canada.
    Agency Response to General Comments Concerns: Individual permits 
would still be available to address some depredation activities. 
However, conflicts associated with cormorants and wild or publicly 
stocked fish would only be addressed through the special cormorant 
permit, which would only be available to fish and wildlife agencies of 
States and federally recognized Tribes in the contiguous 48 States. 
Entities other than private landowners who want to reduce depredations 
of fish in their private ponds may be eligible to apply for permits 
other than the special cormorant permit.
    The PTL estimate considers all forms of take and is conservative in 
that the lower 60 percent confidence interval of the PTL was used. 
However, in the NEPA analyses where comparisons are made to historical 
take data, historical take only included legal take. The Service was 
not able to include data relating to any potential illegal take of 
cormorants in the PTL. This is because the Service does not have the 
ability to adequately track where and when individuals might illegally 
take cormorants. If in the future the Service is sufficiently able to 
track and monitor illegal take across the broad geographic scale 
represented in the PTL, then this data can be counted against PTL. If 
illegal take is substantial, however, then this factor should also 
become an enforcement issue in the management of cormorants.
    The Service encourages the State and Tribal agencies to seek a new 
permit under this final rule to accomplish its goals, as that permit 
would be less costly, but also sufficient for a State or Tribe to meet 
its needs. Permits under this rule will provide the flexibility to 
State and Tribal fish and wildlife agencies to address conflicts 
related to the following issues: Wild and publicly stocked fish managed 
by State fish and wildlife agencies or federally recognized Tribes; 
Tribal- and State-owned or operated aquaculture facilities (including 
hatcheries); human health

[[Page 85553]]

and safety; State- or Tribal-owned property and assets; and threatened 
and endangered species or those listed as Species of Greatest 
Conservation Need in State Wildlife Action Plans. If a State or Tribe 
determines a permit under this rule would meet their needs, upon 
receiving the permit, that State or Tribe would have the discretion to 
determine whether, when, where, and for which of the above purposes 
they conduct lethal take within limits and allocations set by the 
Service.
    The Service used population data from Canada in the subpopulation 
estimates, and will work closely with Ontario on population monitoring 
and obtain take data and incorporate it into our assessments. Our DEIS 
discussed climate change, and we noted that there remains some 
uncertainty regarding effects of climate change, but the Service can 
estimate that there will likely be less water available in the Great 
Basin, and cormorant colonies may shift locations. Cormorants may be 
able to stay and forage longer in northern portions of the Interior and 
Atlantic subpopulations, and it is possible that breeding seasons may 
lengthen. The Service makes decisions given this uncertainty by using 
the data and modeling available and adapting through time as change 
occurs. The planned 5-year assessment will address this issue.
Impact on Small Businesses
    The U.S. Small Business Administration (SBA) commented in support 
of an aquaculture depredation order in combination with a new special 
permit for States and Tribes. SBA stated that, prior to the previous 
aquaculture depredation order being vacated, commercial aquaculture 
producers were able to manage cormorant populations while not exceeding 
the allowable take limits established by the Service. SBA further 
stated that this rulemaking has the potential to increase costs to 
small private aquaculture facilities that are not otherwise able to 
employ effective methods of controlling cormorant damage and that have 
seen and may well continue to see an increase in cormorant feeding. SBA 
further stated that individual depredation permit applications are a 
significant burden for small businesses, citing lower take limits for 
cormorants and complications among Service regions in issuing permits. 
SBA stated that an aquaculture depredation order would eliminate these 
burdensome and time-consuming application requirements. SBA also 
cautioned that the Service should not require documentation of revenue 
increases as part of any new aquaculture depredation order, as this 
would result in additional administrative costs associated with 
recordkeeping. SBA recommended that the Service consider other sources 
of data, and methods of data collection other than reporting increased 
revenue data, to measure the success of conflict management programs. 
SBA urged the Service to consult with industry directly to devise a 
cost-effective and more accurate method of data collection.
    Agency Response to Impact on Small Businesses Concerns: This 
collection associated with the new permit affects only State and Tribal 
governments, and does not impact small businesses. Commercial entities, 
such as privately managed aquaculture facilities, would continue to 
have the opportunity to apply for individual depredation permits to 
address site-specific conflicts. Information collection requirements 
associated with individual depredation permits are outside the scope of 
this rulemaking.
    In response to comments about a new aquaculture depredation order, 
we reference our response above. The Service must be capable of 
tracking take by all authorization mechanisms available throughout the 
year. Presently, however, the Service does not have the necessary 
process or resources to adequately monitor take under any new 
depredation order. However, the Service established a new, higher 
threshold for annual maximum allowable take using the most recent 
biological information. While the Service is best equipped to 
accurately monitor the authorized and actual take of cormorants 
throughout the year under preferred Alternative A (the new State and 
Tribal permit in this final rule), a higher threshold for annual take 
will still yield benefits to the aquaculture industry and others in 
need of individual depredation permits. These benefits result from 
indirect effects on cormorant populations from a higher threshold of 
authorized take, and the resulting lower cormorant populations 
projected in the EIS. The new special cormorant permit would be 
optional and available to State and Tribal fish and wildlife agencies 
in the 48 contiguous States to manage conflicts specifically associated 
with cormorants. This permit would provide State wildlife management 
agencies and Tribes flexibility within predefined guidelines to address 
conflicts caused by cormorants within their jurisdictions. The new 
permit coupled with the continued use of individual depredation permits 
for commercial aquaculture producers would provide the accountability 
and flexibility to manage cormorants while ensuring populations are 
managed sustainably and take is authorized in an equitable fashion 
across multiple conflicts.

Comments Requested

    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) How the agency might minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of response.
    Written comments and recommendations for the information collection 
should be sent within 30 days of publication of this document to 
www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under 30-day Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to the Service Information Collection Clearance 
Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB 
(JAO/3W), Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#bef7d0d8d1e1fdd1d2d2fed8c9cd90d9d1c8"><span class="__cf_email__" data-cfemail="d891b6beb7879bb7b4b498beafabf6bfb7ae">[email protected]</span></a> 
(email). Please reference OMB Control Number 1018-0175 in the subject 
line of your comments.

National Environmental Policy Act

    We evaluated this regulation in accordance with the criteria of 
NEPA, the Department of the Interior regulations on implementation of 
NEPA (43 CFR 46.10-46.450), and the Department of the Interior Manual 
(516 DM 8). On June 5, 2020, the Service published a DEIS, and the 
comment period ended on July 20, 2020. You may review the comments 
received at the Federal eRulemaking Portal: http://www.regulations.gov 
in Docket No. FWS-HQ-MB-2019-0103. We considered comments on the DEIS 
when developing this final rule, and a summary of the comments is 
included in the FEIS associated with this

[[Page 85554]]

rulemaking action. The Service initiated development of the FEIS prior 
to the establishment of updated Council on Environmental Quality 
regulations on September 14, 2020, and, therefore, the FEIS is written 
to comply with the previous regulations. You may review the DEIS, FEIS, 
and the comments received at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0103. We will issue a 
record of decision no sooner than 30 days after the Environmental 
Protection Agency publishes notice of the FEIS in the Federal Register.

Compliance With Endangered Species Act Requirements

    Section 7 of the ESA (16 U.S.C. 1531-44) requires that ``The 
Secretary [of the Interior] shall review other programs administered by 
him and utilize such programs in furtherance of the purposes of this 
Act'' (16 U.S.C. 1536(a)(1)). It further states that ``[e]ach Federal 
agency shall, in consultation with and with the assistance of the 
Secretary, insure that any action authorized, funded, or carried out by 
such agency . . . is not likely to jeopardize the continued existence 
of any endangered species or threatened species or result in the 
destruction or adverse modification of [critical] habitat.'' We have 
complied with provisions of the ESA as necessary to ensure that this 
new regulation is not likely to jeopardize the continued existence of 
any species designated as endangered or threatened or destroy or 
adversely modify its critical habitat.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's manual at 512 DM 2, we have considered the possible 
effects of this rule on federally recognized Indian Tribes. The 
Department of the Interior strives to strengthen its government-to-
government relationship with Indian Tribes through a commitment to 
consultation when appropriate and recognition of their right to self-
governance and Tribal sovereignty. We readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We evaluated this rule 
under the criteria in Executive Order 13175 and under the Department's 
Tribal consultation policy and have determined that this rule may have 
a substantial direct effect on federally recognized Indian Tribes.
    In February we held four public scoping webinars and then two 
webinars only for Tribal members (February 19 and 27, 2020). We 
provided the attendees of all the webinars with information on the 
following topics regarding cormorants, their management, and the 
regulations process: (1) Biology and population changes; (2) background 
of the issues and previous management approaches; (3) current 
management of conflicts; (4) proposed approaches and alternatives; and 
(5) the planning process for the NEPA analysis. We also informed 
attendees that they could provide comments on the proposed actions and 
the scope of the NEPA review via a website or by U.S. mail or hand-
delivery. Two Tribal entities provided comments, and they have been 
addressed in this final rule. No formal requests for government-to-
government consultations were submitted in response to this rulemaking.

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

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

Literature Cited

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

List of Subjects in 50 CFR Part 21

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

Regulation Promulgation

    For the reasons described in the preamble, we hereby amend part 21 
of subchapter B, chapter I, title 50 of the Code of Federal 
Regulations, as set forth below:

[[Page 85555]]

PART 21--MIGRATORY BIRD PERMITS

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

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


0
2. Add Sec.  21.28 to read as follows:


Sec.  21.28   Special double-crested cormorant permit.

    (a) What is the special double-crested cormorant permit, and what 
is its purpose? The special double-crested cormorant permit is a permit 
issued by the Service to State or Tribal fish and wildlife agencies 
that authorizes specific take activities that are normally prohibited 
and are intended to relieve or prevent impacts from cormorants on lands 
or in waters managed by those agencies and within those agencies' 
jurisdiction. We will issue such a permit only when we determine that 
an application submitted by a State or Tribal fish and wildlife agency 
meets the requirements set forth in paragraph (c) of this section. The 
take activities conducted under the permit are intended to reduce or 
prevent conflicts associated with cormorants for the following 
concerns:
    (1) Depredation of fish at State- and Tribal-owned or operated 
aquaculture facilities, including hatcheries;
    (2) Realized and potential impacts to human health and safety 
(e.g., collisions of airplanes with birds, fecal contamination of urban 
wetlands);
    (3) Impacts to threatened and endangered species (species listed 
under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.), and species identified in State- or Tribal-specific legislation 
as threatened or endangered) or those listed as Species of Greatest 
Conservation Need in State Wildlife Action Plans, where take activities 
to prevent depredation on aquatic Species of Greatest Conservation Need 
may occur only in natural or public waters;
    (4) Damage to State- or Tribal-owned property and assets; and
    (5) Depredation of wild and publicly stocked fish managed by State 
fish and wildlife agencies or federally recognized Tribes and 
accessible to the public or all Tribal members.
    (b) Who may receive a permit? Only State and Tribal fish and 
wildlife agencies are eligible to receive a permit to undertake 
management and take activities. Additionally, only employees or 
subpermittees of a permitted State or Tribal fish and wildlife agency 
designated on the permit application may undertake activities for 
double-crested cormorants in accordance with the conditions specified 
in the permit, conditions specified in 50 CFR part 13, other 
requirements set forth in this section, and conditions specified in 
paragraph (d) of this section.
    (c) How does a State or Tribe apply for a permit? Any State or 
federally recognized Tribal fish and wildlife agency wishing to obtain 
a permit must submit an application (FWS Form 3-200-90) to the 
appropriate Regional Director (see Sec.  13.11(b) of this subchapter) 
containing the general information and certification required by Sec.  
13.12(a) of this subchapter plus the following information:
    (1) A description of your State's or Tribe's double-crested 
cormorant conflicts, including physical location(s) and type of 
conflict specified in paragraph (a) of this section;
    (2) A detailed description of the nonlethal methods (i.e., active 
hazing, passive hazing, habitat management, and changes in management 
practices) you have and/or will implement and how take activities will 
address one or more of the issues specified in paragraph (a) of this 
section;
    (3) The requested annual take of double-crested cormorants by life-
stage, including eggs and nests;
    (4) A description of long-term plans to eliminate or significantly 
reduce continued need to take double-crested cormorants;
    (5) A statement indicating that the State or Tribe will inform and 
brief all employees and subpermittees of the requirements of these 
regulations and permit conditions;
    (6) A list of all subpermittees who may conduct activities under 
the special double-crested cormorant permit, including their names, 
addresses, and telephone numbers; and
    (7) The name and telephone number of the individual in your agency 
who will oversee the double-crested cormorant management activities 
authorized under the permit.
    (d) What are the conditions of the permit? The special double-
crested cormorant permits are subject to the conditions specified in 
the permit, the general conditions in 50 CFR part 13, and other 
requirements set forth elsewhere in this section, and, unless otherwise 
specifically authorized on the permit, the following conditions:
    (1) What are the limitations on management and take activities? 
Take of double-crested cormorants under this section may not exceed the 
number authorized by the permit. In addition, permittees must adhere to 
these provisions:
    (i) States and Tribes must implement nonlethal methods, and 
independently determine that those methods are insufficient at 
resolving depredation conflicts, before taking double-crested 
cormorants.
    (ii) A permit under this section does not authorize the take of any 
other migratory bird, including other species of cormorants; the take 
of bald or golden eagles; or the take of any species federally listed 
as threatened or endangered. If take of those species is likely to 
occur, the permittee must obtain permits specifically authorizing that 
take (i.e., permits under the Migratory Bird Treaty Act, Bald and 
Golden Eagle Protection Act, or the Endangered Species Act of 1973, as 
amended).
    (iii) Methods of take for double-crested cormorants are at the 
State's or Tribe's discretion. Take of double-crested cormorants may 
occur by means of humane lethal take or active nest take. Lethal take 
of adults during the breeding season should occur prior to hatching of 
eggs. Adult birds may not be taken at any nest with young in it unless 
the take of adults addresses a human health and safety issue. States 
and Tribes and their subpermittees must make efforts to avoid 
disturbance to co-nesting species. Lethal take may occur by firearm in 
accordance with paragraph (d)(1)(iv) of this section or lethal or live 
traps. Active nest take may occur by egg oiling or destruction of nest 
material and contents (including viable eggs and chicks). Birds may be 
euthanized by cervical dislocation, CO<INF>2</INF> asphyxiation, or 
other methods recommended by the American Veterinary Medical 
Association. Only 100 percent corn oil, a substance exempted from 
regulation by the Environmental Protection Agency under the Federal 
Insecticide, Fungicide, and Rodenticide Act, may be used to oil eggs. 
Other damage control methods of take consistent with accepted wildlife 
damage management programs may be authorized.
    (iv) Take using firearms (other than an air rifle or air pistol) 
must use nontoxic shot or nontoxic bullets (see Sec.  20.21 of this 
subchapter).
    (v) Individuals conducting lethal take activities may not use 
decoys, calls, or other devices or bait to lure birds within gun range.
    (vi) States and Tribes applying for the first time must consult 
with the U.S. Department of Agriculture's Wildlife Services for an 
assessment of the appropriate level of take and provide recommendations 
of short-term measures to provide relief from depredation and long-term 
measures to help eliminate or significantly reduce conflicts. First-
time applicants must include a completed ``Form 37 Permit Review'' from 
Wildlife Services.

[[Page 85556]]

Permittees need not submit a Form 37 for renewal applications unless 
requested by the regional Migratory Bird Permit Office. Permittees 
should continue working with Wildlife Services for review of conflict 
management approaches and anticipated level of take, and to remain 
current on effective strategies for nonlethal removal.
    (2) When may a State or Tribe conduct management and control 
activities? Actions may occur only when cormorants are committing or 
are about to commit depredations. State and Tribal employees and 
approved subpermittees may conduct management activities, including 
lethal take, at any time of year.
    (3) How must States and Tribes dispose of or utilize cormorants 
taken under this permit? Unless otherwise authorized on your permit, 
double-crested cormorants taken under this permit may be temporarily 
possessed and transported for the purposes of disposal under the 
regulations in this section. Double-crested cormorants must be disposed 
of by donation to an entity authorized by permit or regulation to 
receive migratory birds, such as a public museum or public institution 
for scientific or educational purposes, or be destroyed completely by 
burial or incineration in accordance with Federal, State, and/or local 
laws and ordinances. States, Tribes, their employees, and subpermittees 
may not sell, offer for sale, barter, or ship for the purpose of sale 
or barter any double-crested cormorants taken under this section or 
their parts or eggs. Birds may not be retained for personal use.
    (4) How does the permit relate to existing State and Tribal law and 
Federal land? Permits under this section do not authorize the take of 
double-crested cormorants contrary to any State or Tribal laws or 
regulations or on any Federal land without specific written 
authorization by the responsible management agency. Prior to taking 
double-crested cormorants pursuant to a permit under this section, the 
permittee must obtain any permits required by State, Tribal, or other 
Federal law or regulation.
    (5) How will the Service ensure that persons conducting control 
activities have the authority to do so? Any State or Tribal employee or 
approved subpermittee authorized to carry out management and take 
activities must have a copy of the permit and, if appropriate, the 
subpermittee's designation in their possession when carrying out any 
activities. The scope of this permit applies to lands or in waters 
managed by State and Tribal fish and wildlife agencies and within those 
agencies' jurisdictions. If a State or Tribe must enter private 
property to access State and Tribal lands or waters where take is 
approved in their permit, the State or Tribe must obtain authorization 
from the private property owner, and require that the private property 
owner or occupant provide free and unrestricted access. The private 
property owner or occupant should also allow access at all reasonable 
times, including during actual operations, to any Service special agent 
or refuge officer, State or Tribal wildlife or deputy wildlife agent, 
warden, protector, or other wildlife law enforcement officer on the 
premises where they are, or were, conducting activities. Furthermore, 
any State or Tribal employee or approved subpermittee conducting such 
activities must promptly furnish information concerning such activities 
to any such wildlife officer.
    (6) What are the reporting requirements of the permit? Any State or 
Tribal agency, when exercising the privileges of this permit, must keep 
records of all activities, including those of subpermittees, carried 
out under the authority of the special permit, including the number of 
double-crested cormorants taken and their disposition. Any other 
species of bird taken incidentally to double-crested cormorant 
management activities under this permit, along with the numbers of 
birds taken of those species, also must be reported. The State or Tribe 
must submit an annual report (FWS Form 3-202-56) detailing activities 
and purpose for take, including the date birds were taken, numbers, and 
locations and life stage of birds, eggs, and nests taken and nonlethal 
techniques utilized, by January 31 for activities conducted during the 
preceding calendar year. The State or Tribe must submit the annual 
report to the appropriate Migratory Bird Permit Office (see Sec.  2.2 
of this subchapter).
    (7) What are the limitations of this permit? The following 
limitations apply:
    (i) Nothing in this section applies to any Federal land within a 
State's or Tribe's boundaries without written permission of the Federal 
agency with jurisdiction.
    (ii) We will issue permits only to State and Tribal fish and 
wildlife agencies in the conterminous (i.e., contiguous 48) United 
States.
    (iii) States and Tribes may designate subpermittees who must 
operate under the conditions of the permit. Subpermittees can be 
employees of State and Tribal fish and wildlife agencies, U.S. 
Department of Agriculture's Wildlife Services employees, employees of 
other Federal, State, or Tribal agencies, or private companies licensed 
to conduct wildlife damage abatement and under direct control of the 
permittee.
    (iv) A special double-crested cormorant permit issued or renewed 
under the regulations in this section expires on the date designated on 
the face of the permit unless it is amended or revoked, or at such time 
we determine that conflicts with cormorants within the bounds of the 
specific population of double-crested cormorants have been reduced to 
the point where lethal take is no longer necessary. In all cases, the 
term of the permit may not exceed 1 year from the date of issuance or 
renewal.
    (v) We reserve the right to suspend or revoke any permit, as 
specified in Sec. Sec.  13.27 and 13.28 of this subchapter.
    (e) What are the OMB information collection requirements of the 
permit program? OMB has approved the information collection 
requirements of the permit and assigned OMB Control Number 1018-0175. 
Federal agencies may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. Direct comments regarding the 
burden estimate or any other aspect of the information collection to 
the Service's Information Collection Clearance Officer at the address 
provided at 50 CFR 2.1(b).

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-28742 Filed 12-28-20; 8:45 am]
BILLING CODE 4333-15-P


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