Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 85535 

List of Subjects in 49 CFR Part 571 

Imports, Motor vehicle safety, Motor 

vehicles, Rubber and rubber products, 

Tires. 

Accordingly, 49 CFR part 571 is 

amended by making the following 

correcting amendments: 

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS 

■ 1. The authority citation for part 571 

of title 49 continues to read as follows: 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, and 30166; delegation of authority at 

49 CFR 1.95. 

■ 2. Section 571.214 is amended by 

revising S6.1.3 to read as follows: 

§ 571.214 Standard No. 214; Side impact 

protection. 

* * * * * 

S6.1.3 Peak crush resistance. The 

peak crush resistance shall not be less 

than two times the curb weight of the 

vehicle or 31,138 N (7,000 lb), 

whichever is less. 

* * * * * 

■ 2. Section 571.226 is amended by 

revising S2 to read as follows: 

§ 571.226 Standard No. 226; Ejection 

mitigation. 

* * * * * 

S2. Application. This standard 

applies to passenger cars, and to 

multipurpose passenger vehicles, trucks 

and buses with a gross vehicle weight 

rating of 4,536 kg or less, except walkin vans, modified roof vehicles, 

convertibles, and vehicles with no doors 

or with doors that are designed to be 

easily attached or removed so the 

vehicle can be operated without doors. 

Also excluded from this standard are 

law enforcement vehicles, correctional 

institution vehicles, taxis and 

limousines, if they have a fixed security 

partition separating the 1st and 2nd or 

2nd and 3rd rows and if they are 

produced by more than one 

manufacturer or are altered (within the 

meaning of 49 CFR 567.7). 

* * * * * 

Issued in Washington, DC, under authority 

delegated in 49 CFR 1.95. 

James C. Owens, 

Deputy Administrator. 

[FR Doc. 2020–27543 Filed 12–28–20; 8:45 am] 

BILLING CODE 4910–59–P 

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 DoubleCrested Cormorants (Phalacrocorax 

auritus) Throughout the United States 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

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 Stateowned 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 Info_Coll@fws.gov 

(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 


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85536 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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 decisionmaking 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 


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Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 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’ Doublecrested 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 


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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). Populationspecific 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 doublecrested 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 doublecrested 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 Tribalspecific legislation as threatened or 

endangered) or those listed as Species of 

Greatest Conservation Need in State 

Wildlife Action Plans, damage to Stateor 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 sitespecific 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 conesting 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). 


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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, CO2 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 


KHAMMOND on DSKJM1Z7X2PROD with RULES
85540 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

1Regulations.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) 

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 doublecrested 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. 

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 


KHAMMOND on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 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 fulltime 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.’’ 


KHAMMOND on DSKJM1Z7X2PROD with RULES
85542 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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 caseby-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 conesting 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, 

CO2 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. 


KHAMMOND on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 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 


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85544 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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 Tribalowned 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, 


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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 Doublecrested 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 Resources Division ..................................................................................... July 20, 2020. 

Idaho Department of Fish and Game ............................................................................................................................................ July 20, 2020. 

Kalmiopsis Audubon Society ......................................................................................................................................................... July 20, 2020. 

Leech Lake Band of Ojibwe Division of Resources Management ................................................................................................ July 13, 2020. 

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 Conservation ....................................................................................................... July 20, 2020. 

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 Wildlife ......................................................................................................... July 20, 2020. 

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 Responsibility ......................................................................................................... July 15, 2020. 

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 Fisheries, Wildlife and Conservation Biology .............................................. July 21, 2020. 

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. 


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Agency Date submitted 

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 agreedupon, 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 populationmonitoring 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 


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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 costprohibitive, 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 doublecrested 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 conflictmanagement tool. This report will 

include, but not be limited to: (1) 

Updated cormorant population status 

and trends; (2) reported lethal take of 


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85548 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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 conflictmanagement 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,’’ 


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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 


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final rule to better encompass the lands 

and waters managed by State and Tribal 

fish and wildlife management agencies 

stating that, under this (special doublecrested 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 specialstatus 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 


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Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 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 


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85552 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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 doublecrested 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 crossreference 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 doublecrested 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 


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Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 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 Info_Coll@

fws.gov (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 


KHAMMOND on DSKJM1Z7X2PROD with RULES
85554 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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-togovernment relationship with Indian 

Tribes through a commitment to 

consultation when appropriate and 

recognition of their right to selfgovernance 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 handdelivery. 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.waterbird

conservation.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-remandoperation-federal-columbia-river-powersystem. 

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.mbrpwrc.usgs.gov/bbs/bbs.html. 

Taylor, J.D., II and B. Dorr. 2003. Doublecrested 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 doublecrested 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: 


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Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 85555 

PART 21—MIGRATORY BIRD PERMITS 

■ 1. The authority citation for part 21 

continues to read as follows: 

Authority: 16 U.S.C. 703–712. 

■ 2. Add § 21.28 to read as follows: 

§ 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 doublecrested 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 § 13.11(b) of this 

subchapter) containing the general 

information and certification required 

by § 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 doublecrested cormorants are at the State’s or 

Tribe’s discretion. Take of doublecrested 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 conesting 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, CO2 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 § 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. 


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85556 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

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, doublecrested 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 doublecrested 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 doublecrested 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 § 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 

§§ 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 


KHAMMOND on DSKJM1Z7X2PROD with RULES