[Code of Federal Regulations]

[Title 50, Volume 6]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 50CFR21.48]



[Page 81-84]

 

                    TITLE 50--WILDLIFE AND FISHERIES

 

 CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE 

                          INTERIOR--(Continued)

 

PART 21_MIGRATORY BIRD PERMITS--Table of Contents

 

                 Subpart D_Control of Depredating Birds

 

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

public resources.



    (a) What is the purpose of this depredation order? The purpose of 

this depredation order is to reduce the occurrence and/or minimize the 

risk of adverse impacts to public resources (fish, wildlife, plants, and 

their habitats) caused by double-crested cormorants.

    (b) In what areas can this depredation order be implemented? This 

depredation order applies to all lands and freshwaters in the States of 

Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, 

Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New 

York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, 

Vermont, West Virginia, and Wisconsin.

    (c) What does this depredation order allow and who can participate? 

(1) This depredation order authorizes State fish and wildlife agencies, 

Federally recognized Tribes, and State Directors of the Wildlife 

Services program of the U.S. Department of Agriculture Animal and Plant 

Health Inspection Service (collectively termed ``Agencies'') to prevent 

depredations on the public resources of fish (including hatchery stock 

at Federal, State, and Tribal facilities), wildlife, plants, and their 

habitats by taking without a permit double-crested cormorants found 

committing or about to commit, such depredations.



[[Page 82]]



    (2) Agencies may designate agents to carry out control, provided 

those individuals act under the conditions of the order.

    (3) Federally recognized Tribes and their agents may carry out 

control only on reservation lands or ceded lands within their 

jurisdiction.

    (d) What are the terms and conditions of this order? (1) Persons 

operating under this order should first utilize nonlethal control 

methods such as harassment and exclusion devices when these are 

considered effective and practicable and not harmful to other nesting 

birds by the responsible Agency.

    (2) Double-crested cormorants may be taken only by means of egg 

oiling, egg and nest destruction, cervical dislocation, firearms, and 

CO2 asphyxiation. Persons using shotguns must use nontoxic 

shot, as listed in 50 CFR 20.21(j). Persons using egg oiling must use 

100 percent corn oil, a substance exempted from regulation by the U.S. 

Environmental Protection Agency under the Federal Insecticide, 

Fungicide, and Rodenticide Act.

    (3) Persons operating under this depredation order may use decoys, 

taped calls, or other devices to lure within gun range birds committing 

or about to commit depredation of public resources.

    (4) Persons operating under this depredation order must obtain 

appropriate landowner permission before implementing activities 

authorized by the order.

    (5) Persons operating under this depredation order may not take 

double-crested cormorants contrary to the laws or regulations of any 

State, and none of the privileges of this section may be exercised 

unless the person possesses the appropriate State or other permits, if 

required.

    (6) Persons operating under this depredation order must properly 

dispose of double-crested cormorants killed in control efforts:

    (i) Individuals may donate birds killed under authority of this 

order to museums or other such scientific and educational institutions 

for the purposes of scientific or educational exhibition;

    (ii) Individuals may also bury or incinerate birds taken; and

    (iii) Individuals may not allow birds taken under this order, or 

their plumage, to be sold, offered for sale, bartered, or shipped for 

purpose of sale or barter.

    (7) Nothing in this depredation order authorizes the take of any 

migratory bird species other than double-crested cormorants. Two look-

alike species co-occur with double-crested cormorants in the 

southeastern States: the anhinga, which occurs across the southeastern 

United States, and the neotropic cormorant, which is found in varying 

numbers in Texas, Louisiana, Kansas, and Oklahoma. Both species can be 

mistaken for double-crested cormorants, but take of these two species is 

not authorized under this depredation order. Persons operating under 

this order must immediately report the take of a migratory bird species 

other than double-crested cormorants to the appropriate Service Regional 

Migratory Bird Permit Office.

    (8) Nothing in this depredation order authorizes the take of any 

species protected by the Endangered Species Act. Persons operating under 

this order must immediately report the take of species protected under 

the Endangered Species Act to the Service.

    (i) To protect piping plovers, interior least terns, wood storks, 

and bald eagles, the following conservation measures must be observed 

within any geographic area where Endangered Species Act protection 

applies to these species:

    (A) The discharge/use of firearms to kill or harass double-crested 

cormorants or use of other harassment methods are allowed if the control 

activities occur more than 1,000 feet from active piping plover or 

interior least tern nests or colonies; occur more than 1,500 feet from 

active wood stork nesting colonies, more than 1,000 feet from active 

wood stork roost sites, and more than 750 feet from feeding wood storks; 

or occur more than 750 feet from active bald eagle nests;

    (B) Other control activities such as egg oiling, cervical 

dislocation, CO2 asphyxiation, egg destruction, or nest 

destruction are allowed if these activities occur more than 500 feet 

from active piping plover or interior least tern nests or colonies; 

occur more than 1,500 feet from active wood stork nesting



[[Page 83]]



colonies, more than 1,000 feet from active wood stork roost sites, and 

more than 750 feet from feeding wood storks; or occur more than 750 feet 

from active bald eagle nests;

    (C) To ensure adequate protection of piping plovers, any Agency or 

its agents who plan to implement control activities that may affect 

areas designated as piping plover critical habitat in the Great Lakes 

Region are to obtain prior approval from the appropriate Regional 

Director. Requests for approval of activities in these areas must be 

submitted to the Regional Migratory Bird Permit Office. The Regional 

Migratory Bird Permit Office will then coordinate with the Endangered 

Species Field Office staff to assess whether the measures in paragraph 

(d)(8)(i)(B) of this section are adequate.

    (ii) At their discretion, Agencies or their agents may contact the 

Regional Migratory Bird Permit Office to request modification of the 

above measures. Such modification can occur only if the Regional 

Director determines, on the basis of coordination between the Regional 

Migratory Bird Permit Office and the Endangered Species Field Office, 

that the species listed in paragraph (d)(8)(i) of this section will not 

be adversely affected.

    (iii) If adverse effects are anticipated from the control activities 

in a geographical area where Endangered Species Act protection applies 

to any of the four species listed in paragraph (d)(8)(i) of this 

section, either during the intra-Service coordination discussions 

described in paragraph (d)(8)(i)(C) of this section or at any other 

time, the Regional Migratory Bird Permit Office will initiate 

consultation with the Endangered Species Field Offices.

    (9) Responsible Agencies must, before they initiate any control 

activities in a given year, provide a one-time written notice to the 

appropriate Service Regional Migratory Bird Permit Office indicating 

that they intend to act under this order.

    (i) Additionally, if any Agency plans a single control action that 

would individually, or a succession of such actions that would 

cumulatively, kill more than 10 percent of the double-crested cormorants 

in a breeding colony, it must first provide written notification to the 

appropriate Service Regional Migratory Bird Permit Office. This letter 

must be received no later than 30 days in advance of the activity and 

must provide:

    (A) The location (indicating specific colonies, if applicable) of 

the proposed control activity;

    (B) A description of the proposed control activity, specifying what 

public resources are being impacted, how many birds are likely to be 

taken and what approximate percentage they are of total DCCOs present, 

and which species of other birds are present; and

    (C) Contact information for the person in charge of the control 

action.

    (ii) The Regional Director may prevent any such activity by 

notifying the agency in writing if the Regional Director deems the 

activity a threat to the long-term sustainability of double-crested 

cormorants or any other migratory bird species.

    (10) Persons operating under this order must keep records of all 

activities, including those of designated agents, carried out under this 

order. On an annual basis, Agencies must provide the Service Regional 

Migratory Bird Permit Office with a report detailing activities 

conducted under the authority of this order, including:

    (i) By date and location, a summary of the number of double-crested 

cormorants killed and/or number of nests in which eggs were oiled;

    (ii) A statement of efforts being made to minimize incidental take 

of nontarget species and a report of the number and species of migratory 

birds involved in such take, if any;

    (iii) A description of the impacts or anticipated impacts to public 

resources by double-crested cormorants and a statement of the management 

objectives for the area in question;

    (iv) A description of the evidence supporting the conclusion that 

double-crested cormorants are causing or will cause these impacts;

    (v) A discussion of other limiting factors affecting the resource 

(e.g., biological, environmental, and socioeconomic); and

    (vi) A discussion of how control efforts are expected to, or 

actually did, alleviate resource impacts.



[[Page 84]]



    (11) Agencies must provide annual reports to the appropriate Service 

Regional Migratory Bird Permit Office, as described in paragraph (d)(10) 

of this section, by December 31 for the reporting period October 1 of 

the previous year to September 30 of the same year. For example, reports 

for the period October 1, 2003, to September 30, 2004, would be due on 

or before December 31, 2004. The Service will regularly review Agency 

reports and will periodically assess the overall impact of this program 

to ensure compatibility with the long-term conservation of double-

crested cormorants and other resources.

    (12) In some situations, Agencies may deem it necessary to reduce or 

eliminate local breeding populations of double-crested cormorants to 

reduce the occurrence of resource impacts.

    (i) For such actions, Agencies must:

    (A) Comply with paragraph (d)(9) of this section;

    (B) Carefully plan activities to avoid disturbance of nontarget 

species;

    (C) Evaluate effects of management activities on cormorants at the 

control site;

    (D) Evaluate, by means of collecting data or using best available 

information, effects of management activities on the public resources 

being protected and on nontarget species; and

    (E) Include this information in the report described in paragraph 

(d)(10) of this section.

    (ii) Agencies may coordinate with the appropriate Service Regional 

Migratory Bird Permit Office in the preparation of this information to 

attain technical or other assistance.

    (13) We reserve the right to suspend or revoke the authority of any 

Agency, Tribe, or State Director granted by this order if we find that 

the specified purpose, terms, and conditions have not been adhered to or 

if the long-term sustainability of double-crested cormorant populations 

is threatened by the action(s) of that Agency, Tribe, or State Director. 

The criteria and procedures for suspension, revocation, reconsideration, 

and appeal are outlined in Sec. Sec. 13.27 through 13.29 of this 

subchapter. For the purposes of this section, ``issuing officer'' means 

the Regional Director and ``permit'' means the authority to act under 

this depredation order. For purposes of Sec. 13.29(e), appeals shall be 

made to the Director.

    (e) Does this section contain information collection requirements? 

Yes, the information collection requirements in this section are 

approved by the Office of Management and Budget (OMB) under OMB control 

number 1018-0121. Federal agencies 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.

    (f) When does this depredation order expire? This depredation order 

will automatically expire on April 30, 2009, unless revoked or extended 

prior to that date.



[68 FR 58035, Oct. 8, 2003]