Migratory Bird Permits; Establishment of a Depredation Order for the Double-Crested Cormorant

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AE11

Migratory Bird Permits; Establishment of a Depredation Order for

the Double-Crested Cormorant

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (hereinafter Service)

establishes a depredation order for the double-crested cormorant

(Phalacrocorax auritus). In those States in which double-crested

cormorants have been shown to be seriously injurious to commercial

freshwater aquaculture, and when found committing or about to commit

depredations upon aquaculture stocks, persons engaged in the production

of commercial freshwater aquaculture stocks may, without a Federal

permit, take or cause to be taken such double-crested cormorants as

might be necessary to protect aquaculture stocks.

DATES: This rule is effective March 4, 1998.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at U.S. Fish and Wildlife,

Room 634, Arlington Square Building, 4401 N. Fairfax Drive, Arlington,

Virginia.

FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, MBMO, U.S.

Fish and Wildlife Service, (703) 358-1714.

SUPPLEMENTARY INFORMATION:

Background

Double-crested cormorant (Phalacrocorax auritus) populations are at

an all-time high in the modern era, and commercial aquaculturists

(especially catfish farmers) in many parts of the country are

experiencing economic losses due to cormorant depredation. Three

avenues currently are available to aquaculturists for dealing with

cormorant depredation problems: (1) birds can be harassed (with shotgun

blasts, fire crackers, propane cannons, or other scare devices) without

a Federal permit; (2) ponds can be fitted with physical barriers (or

exclusionary devices) such as wire or mesh netting that prevent birds

from landing; and (3) private aquaculturists and State-operated fish

hatcheries can apply to the Service for a permit to kill cormorants.

The Service is the Federal agency with the primary responsibility

for managing migratory birds. The Service's authority is based on the

Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-711), which implements

conventions with Great Britain (for Canada), the United Mexican States

(Mexico), Japan, and the Soviet Union (Russia). The double-crested

cormorant is afforded Federal protection by the 1972 amendment to the

Convention for the Protection of Migratory Birds and Game Animals,

February 7, 1936, United States--Mexico, as amended, 50 Stat. 1311,

T.S. No. 912, as well as the Convention Between the United States of

America and the Union of Soviet Socialist Republics [Russia] Concerning

the Conservation of Migratory Birds and Their Environment, November 26,

1976, 92 Stat. 3110, T.I.A.S. 9073 (16 U.S.C. 703, 712). The take of

double-crested cormorants is strictly prohibited except as may be

permitted under regulations implementing the MBTA. In addition to

Federal statutes, the double-crested cormorant may also be protected by

State regulations.

Regulations governing the issuance of permits for migratory birds

are authorized by the MBTA and subsequent regulations (50 CFR Parts 13

and 21). Regulations in Subpart D of Part 21 deal specifically with the

control of depredating birds. Section 21.41 outlines procedures for

issuing permits. Sections 21.43 through 21.46 deal with special

depredation orders for specific species of migratory birds to address

particular problems in specific geographical areas, establishing a

precedent for species and geographic treatments in the permitting

process. Service policies for issuing depredation permits for

aquaculture were described by Trapp et al. (1995).

Federal responsibility for the management of depredating wildlife,

including migratory birds, lies with the Wildlife Services (WS)

formerly Animal Damage Control program of the U.S. Department of

Agriculture's Animal and Plant Health Inspection Service. The primary

authority for WS activities is the Animal Damage Control Act of 1931,

as amended, (7 U.S.C. 426-426c). Animal damage control activities are

conducted at the request of, and in cooperation with, other Federal,

State, and local agencies; private organizations; and individuals.

Management responsibilities of WS in the cormorant-aquaculture conflict

were reviewed by Acord (1995).

Commercial Aquaculture Industry

Aquaculture, the cultivation of finfish and invertebrates in

captivity, has grown exponentially in the past several decades (Price

and Nickum 1995). The five principal aquaculture fish species in the

United States are catfish, trout, salmon, tilapia, and hybrid striped

bass. There are also two categories of non-food fish: baitfish and

ornamental fish (U.S. Department of Agriculture, 1995). While each of

these industries has its own unique set of bird depredation problems,

they all share a basic concern for developing and implementing the best

methods for protecting fish stocks from predation.

The market for channel catfish (Ictalurus punctatus) is the largest

segment of the aquaculture industry, and the one which is perhaps most

susceptible to predation by cormorants. The catfish accounts for about

one-half of the value of aquaculture in the United States.

The number of catfish farms in the United States increased 44

percent between 1982 and 1990 (from 1,494 to 2,155). Most of this

increase occurred between 1982 and 1987. Growth was fairly steady

throughout the 1980s, with production leveling off in the past few

years. Production was estimated at 224,875 metric tons (247,933 short

tons, or 496 million pounds, or 225 million kilograms) worth $353

million in 1993 and is expected to expand 5-7 percent annually due to

increasing sales prices.

Mississippi is the center of catfish production, producing 75-80

percent of the United States output. Alabama, Arkansas, and Louisiana

are also major producers. California, Florida, Illinois, Kentucky,

Missouri, North Carolina, Oklahoma, South Carolina, Texas, and Virginia

also produce catfish and all have, or will have, problems with fish-

eating birds. In the four principal catfish-producing States, the

number of farms increased 67 percent between 1982 and 1992 (from 794 to

1,193); increases in individual States were 24 percent in Alabama (327-

405), 40 percent in Mississippi (316-442), 67 percent in Arkansas (115-

191), and 330 percent in Louisiana (36-155).

The more than 64,300 hectares (158,840 acres) of catfish ponds in

the United States in 1995 represented a 2.3-fold increase from about

28,300 hectares (69,900 acres) in production in the 1970s. The four

principal catfish-producing States accounted for 93 percent of the

total area, with Mississippi alone accounting for about 60 percent.

Catfish ponds range in size from 4-14 hectares (10-35 acres) each, with

a mean size of 5 hectares (12 acres). Farms with 100 hectares (247

acres) in production are not uncommon, and many are more than 400

hectares (990 acres). In the Delta region of Mississippi, catfish farms

average about 100 hectares (247 acres) of ponds, with

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a typical rectangular pond size of 8 hectares (20 acres); ponds are

shallow, ranging from 1-2 meters (3.3-6.6 feet) deep. The large size of

the ponds makes them highly visible to fish-eating birds from the air,

and the high stocking levels (from 5,000 to more than 150,000 fish/

hectare [or 2,000 to more than 60,700 fish/acre], Glahn and Stickley

1995) make them especially attractive to cormorants. The catfish

industry's practice of using large ponds developed in the early 1970s

when cormorant numbers were low.

The physical dimensions of the ponds are the secret to the catfish

farmers' success (as well as the source of today's predation problem).

The most efficient production ponds are circular, but they can not be

harvested as easily. So, the ponds are generally rectangular and can be

as wide as 80-95 meters (262-312 feet). At harvest time, crews drag 100

meter (325 foot) wide seine nets strung between tractors on both sides

of the rectangular ponds along the length of each pond. Undersize fish

slip through the mesh and are harvested the next year. Because catfish

farmers stock more than one year class of fish in a pond, it is not

possible to drain the ponds and to reconfigure them to a size and shape

that can be covered easily with bird-excluding nets. Also, the levees

between the ponds are not wide enough to install extensive net

structures and yet leave room for tractors to maneuver. Thus, several

economic factors (e.g., low profit margin, the cost to modify the

ponds, and a heavy investment in current harvest technologies) combine

to preclude major changes in pond shape and size at the present time.

Population Status of the Double-crested Cormorant

The size of the North American breeding population of the double-

crested cormorant was recently estimated at about 360,000 pairs (Hatch

1995). Using values derived from the published literature of 1-4

nonbreeding birds for each breeding pair yields an estimated total

population of about 1-2 million birds (Hatch 1995).

The double-crested cormorant breeds widely throughout much of

coastal and interior North America. As of 1992, it had been found

breeding in 40 of the 50 United States, all 10 Canadian provinces, and

in Mexico, Cuba, and the Bahamas (Hatch 1995). However, it is not

uniformly distributed across this broad area. Sixty-one percent of the

breeding birds belong to the Interior population, while another 26

percent belong to the Atlantic population. Two major areas of

concentration are apparent in the vast range of the Interior

population: (1) the prairie lakes of Alberta, Manitoba, and

Saskatchewan (which account for 69 percent of the Interior population);

and (2) the U.S. and Canadian Great Lakes (accounting for another 12

percent).

Seven political units account for 70 percent of the North American

breeding birds, with Manitoba alone accounting for 36 percent. Thirty

(52 percent) of the 58 political units listed by Hatch (1995) each

harbor fewer than 100 breeding pairs. In the catfish-producing States

identified by Price and Nickum (1995), only Florida and California have

sizeable breeding populations.

In the south-central United States (Arkansas, Louisiana,

Mississippi, and west Tennessee), the double-crested cormorant has been

known since pre-colonial times and has been recorded as an occasional

breeder throughout the swampy forests of the region since at least the

early 1800s (Jackson and Jackson 1995). Jackson and Jackson predicted

that (in the absence of major limiting factors) the cormorant will once

again become a regular member of the mid-South breeding avifauna, with

birds dispersed more widely because of reservoir construction and with

concentrations expected in the vicinity of aquaculture facilities.

The double-crested cormorant has always been widely distributed as

a breeding species. The only suspected instance of range expansion in

the 20th century is in the United States and Canadian Great Lakes,

which apparently were colonized by birds expanding eastward from the

Canadian prairies beginning with Lake Superior about 1913 and ending

with lakes Erie and Ontario in the late 1930s (Weseloh et al. 1995). It

is possible, however, that these events represented recolonization of

former (but previously undocumented) breeding localities from which the

species was extirpated before 1912. For example, although Barrows

(1912: 67) knew of no breeding records for Michigan, he noted that it

was ``generally distributed over the State during the migrations''

(with specimens from almost every county) and speculated that

``probably there are few sheets of water any size within our limits

which are not visited by this bird at least occasionally.''

The core of the wintering range (i.e., the regions of greatest

density) did not change appreciably between 1959-1972 and 1959-1988

(Root 1988: 11, Sauer et al. 1996b). Cormorant wintering populations

are concentrated in coastal States and Provinces, from North Carolina

to Texas in the east and from California to British Columbia in the

west. In the midsouth, there also are appreciable concentrations inland

from the coast (e.g., east Texas, eastern Oklahoma, southeastern

Arkansas, west-central Mississippi, and northeastern Alabama). Of the 9

catfish-producing States for which Christmas Bird Count data are

available, 6 have indices of relative abundance that exceed the

national mean; the median abundance in these 6 States (including the

major catfish-producers of Alabama, Louisiana, and Mississippi) was 2.0

times the national mean (range: 1.4-9.6).

The scattered occurrence of early winter stragglers throughout much

of the interior of the continent as far north as Minnesota and southern

Saskatchewan (Sauer et al. 1996b) is probably a natural phenomenon of

longstanding (i.e., it probably does not represent a northward

expansion of the wintering range). As evidence of this, we find that 11

percent of 227 winter recoveries (December-February 1923-1988) of birds

banded in Saskatchewan, Lake Huron, and eastern Lake Ontario were from

latitudes north of the major catfish-producing States of Alabama,

Arkansas, Louisiana, and Mississippi (Dolbeer 1991). Forty percent of

these 227 winter recoveries are from 1 deg. blocks of latitude and

longitude that intersect the Gulf Coast and another 22 percent are from

degree blocks that intersect the main stem of the Mississippi River.

Analysis of 5,589 band recovery records for the period 1923-1988

(Dolbeer 1991) revealed that southward movement from areas north of

latitude 42 deg. N occurs primarily in October and November. Cormorants

of all ages are at their greatest median distance from northern nesting

areas--about 1,900 kilometers (1,200 miles)--from December through

March.

Cormorants nesting in Canada and the northern United States from

Alberta to the Gulf of St. Lawrence migrate in winter primarily to the

southern United States between Texas and Florida. There is considerable

mixing and overlap in winter of nesting populations from widely

divergent areas. From 38 to 70 percent of the birds from Saskatchewan

through the Great Lakes region winter in the lower Mississippi Valley

(States of Arkansas, Louisiana, and Mississippi) as do 10 percent of

the birds from such disparate areas as Alberta and the New England

coast (Dolbeer 1991). In other words, the major catfish-producing

States of the lower Mississippi may be envisioned as lying at the apex

of an inverted triangle, with cormorants from a 3,000 kilometer (1,860

mile) expanse of breeding range being funneled into the region in the

winter by topographic features and the flow of the major rivers. In

commenting on this funneling effect,

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Jackson and Jackson (1995) noted that ``It is a most unfortunate

coincidence that the very heart of the catfish-farming industry is

located in the Mississippi Delta at the confluence of the Arkansas and

Mississippi rivers.''

Our knowledge of double-crested cormorant population trends before

1959 is based on fragmented and largely anecdotal accounts from

scattered portions of the range. Syntheses of much of this information

(Hatch 1995, Weseloh et al. 1995, and Jackson and Jackson 1995) reveal

the following general patterns: (1) by 1900, cormorant numbers had been

reduced, and their range possibly restricted, by human persecution and

the extensive drainage and degradation of natural wetlands; (2) the

widespread construction of reservoirs and impoundments (beginning in

the 1920s), in concert with sport fish stocking programs and the

creation of refuges and other conservation lands (beginning in the

1930s), had beneficial effects on cormorant numbers; (3) the widespread

use of DDT and other pesticides (beginning in the 1940s) had

devastating effects on cormorant reproductive success, with the result

that populations reached their lowest point in the mid-1970s; (4) the

ban on DDT in 1972 and the general decrease in levels of environmental

contamination, in concert with development of the catfish industry in

the mid-1970s, created a favorable environment for the growth of

cormorant populations.

Quantitative information on double-crested cormorant population

trends is available from three sources: (1) Breeding Bird Survey data

(1966-1994), (2) Christmas Bird Count data (1959-1988), and (3)

published accounts of censuses of breeding colonies. Trend information

from these sources is discussed in the following paragraphs:

(1) Between 1966 and 1994, the continental breeding population

increased at an estimated rate of 6.1 percent/year (Sauer et al.

1996a). The very high rate of growth in the early years (13.0 percent/

year), and to a lesser extent for the entire period, is partly an

artifact of the extremely small population in the early years of the

survey period (late 1960s and early 1970s). Compared to the earlier

(1966-1979) time period, the growth of the continental and Canadian

populations appears to have slowed appreciably in the later (1980-1994)

period; however, the U.S. population has continued to show a

significant rate of increase in the 1980s and 1990s, apparently due

primarily to the continued rapid growth of populations in the mountains

and plains States. The only significant declines noted were in the West

Coast region (1966-1994) and in North Dakota (1980-1994), although the

West Coast trend appears to be contradicted by rather dramatic site-

specific increases in British Columbia, Washington, and California

(Carter et al. 1995). Most of the recent increase in numbers has

occurred within the known historical breeding range (Hatch 1995).

(2) Between 1959 and 1988, the continental wintering population

increased at an average rate of 7.3 percent/year (Sauer et al. 1996b);

significant increases were registered for 17 of the 20 States or

Provinces for which data were available. Trends are available for 9 of

the primary catfish-producing States; 6 of these States (Alabama,

Louisiana, Mississippi, Oklahoma, Texas, and Virginia) have trends

(median 16 percent, range 12-19 percent) that are well above the

continental average. Most of the localities in the mid-South for which

information is available show dramatic population increases between the

mid-1970s and the early 1990s, with the trends paralleling a similar

magnitude of growth in the area of catfish ponds in the region during

the same period (Jackson and Jackson 1995).

(3) Rather dramatic increases in breeding pairs are documented at

colonies in the Great Lakes (Weseloh et al. 1995), the St. Lawrence

River and associated waters (Chapdelaine and B deg.dard 1995), New

England (Krohn et al. 1995), the West Coast (Carter et al. 1995), and

elsewhere (Weseloh et al. 1995). The trends documented by these studies

generally parallel those from the Breeding Bird Survey and the

Christmas Bird Count.

Foraging Behavior of the Double-crested Cormorant at Aquaculture

Facilities

Daily Movements and Activity Budgets

In the Mississippi Delta, cormorants fly an average of 16

kilometers (25 miles) from their night roosts to feeding sites. Each

bird spends about 18 percent of daylight hours feeding; 88 percent of

their foraging is done at catfish ponds and 12 percent near roost

sites. The average cormorant forages for 60 minutes each day, but

spends just 20 minutes underwater in actual pursuit of fish (King et

al. 1995).

Feeding Rates

Feeding rates may be dependent on the size and abundance of the

available fish and the metabolic demands of the birds, and can be quite

variable. Actively feeding cormorants in commercial catfish ponds

capture an average of about 5 fish/cormorant/hour (Stickley 1991,

Stickley et al. 1992), but can vary from 0-28 (Schramm et al. (1984).

Partly because of this variability, the rate of 5 fish/cormorant/hour

reported by Stickley et al. (1992) is highly skewed; the median was

only 2 fish/cormorant/hour, and the mean was equaled or exceeded at

only 3 (21 percent) of the 14 ponds studied. Stickley et al. (1992) did

not find a significant relationship between the mean number of

cormorants present and the number of catfish consumed, but ponds with

40 or more cormorants generally had a feeding rate of 1 or fewer fish/

cormorant/hour. Similarly, cormorant feeding rates were not related to

the density of fingerling catfish, density of all catfish (all size

classes combined), or mean length of fish.

Diet Composition

Cormorants eat a wide variety of prey items, and there is thus a

great deal of variation in prey composition, both geographically and

seasonally. Nearly all of the published information on diet composition

at aquaculture facilities has been gathered in the vicinity of catfish

farms in the southeastern United States (Bivings 1989, Conniff 1991,

Glahn and Stickley 1992, Glahn et al. 1995, and Glahn and Brugger

1995). These studies show that, among birds actively feeding on catfish

ponds, the average proportion of catfish in the winter diet (by number)

is most commonly in the range of 50-55 percent. The proportion varies

seasonally from less than 30 percent in October and November to more

than 80 percent in February, March, and April.

Prey Size

Although cormorants are capable of taking catfish up to 42

centimeters (16 inches) in length (Campo et al. 1993), studies

repeatedly have shown that the vast majority of catfish caught by

cormorants at commercial facilities are in the range of 7-20

centimeters (3-8 inches), with most averaging about 10-15 centimeters

(4-6 inches) (Schramm et al. 1984, Stickley 1991, Stickley et al.

1992). This range of prey sizes is remarkably close to that of prey

taken by cormorants in natural freshwater habitats. In five such

studies (Durham 1955, Hirsch 1986, Haws 1987, Hobson et al. 1989, Campo

et al. 1993), prey size ranged from 6-21 centimeters (2-8 inches), with

a median value of about 12 centimeters (5 inches).

Prey Preferences

Lacking a precise knowledge of the species composition and size

distribution of the prey population, it is impossible to make

definitive

[[Page 10553]]

statements about prey preferences. However a few tendencies are

apparent. For example, the 10-15 centimeter (4-6 inch) fingerling

catfish preferred by cormorants in one study represented about 64

percent of the catfish (by number) in the ponds (from Stickley et al.

1992), suggesting that the birds were merely preying on the most

readily available fish. In this same study, 1 of the 14 ponds contained

gizzard shad in addition to catfish. Nineteen shad were consumed for

every catfish eaten, even though the pond contained about 5,100

fingerling catfish/hectare (2,100/acre). The apparent preference for

gizzard shad in this instance may be related to their being more easily

caught, handled, and swallowed by cormorants (the mean handling time

for catfish was 6-7 times greater than that of gizzard shad).

Daily Food Consumption Rates

Estimates of daily food consumption rates of cormorants at or in

the vicinity of aquaculture facilities in the southeastern United

States vary widely, from 208-504 grams (7-17 ounces, or 0.4-1.1 pounds)

(Schramm et al. 1984, Schramm et al. 1987, Bivings et al. 1989, Conniff

1991, Brugger 1993, Glahn and Brugger 1995). The most widely accepted

figure is about 320 grams (11 ounces, or 0.7 pounds) of fish/day, of

which about one-half (or 160 grams [5.5 ounces, or 0.35 pounds]) would

be catfish (Brugger 1993).

Impacts of Double-Crested Cormorants on Aquaculture

With the exception of catfish, quantitative accounts of the impacts

of cormorants on freshwater aquaculture stocks generally are lacking.

The fairly large body of literature that has developed in the past 12

years represents an attempt to assess the impacts of cormorants on the

commercial catfish industry. Synopses of the pertinent literature are

given in the following paragraphs.

In the past, cormorants have been reported only infrequently at

fish hatcheries. For example, questionnaire surveys conducted in 1977

(Scanlon et al. 1979) and 1984 (Parkhurst et al. 1987) indicate that

cormorants were considered to be problems at only 4-5 percent of these

facilities nationwide. Of the more than 90 other (including non-avian)

species mentioned as predators, 45-50 percent were listed more

frequently than cormorants. Purported instances of cormorant damage to

hatchery fish in Texas (Dukes 1987) include the loss of 90 percent of

the smallmouth bass (Micropterus dolomieui) 2-year-old brood stock at

the Jasper facility.

The frequency of occurrence of cormorants at a given catfish pond

is a function of many interacting factors, including: (1) size of the

regional cormorant population; (2) the number, size, and distribution

of catfish ponds; (3) the size distribution, density, health, and

species composition of fish populations in the catfish ponds; (4) the

number, size, and distribution of ``natural'' wetlands in the immediate

environs; and (5) the size distribution, density, health, and species

composition of ``natural'' fish populations in the surrounding

landscape. Cormorants are adept at seeking out the most favorable

foraging sites. As a result, cormorants rarely are distributed evenly

over a given region, but rather tend to be highly clumped or localized.

For example, in 27 weekly surveys at 50 catfish ponds in Humphreys

County, Mississippi, 1987-1988, cormorants were observed at only 9 of

the 50 ponds and only on 14 occasions (Hodges 1989). Thus, it is not

uncommon for many fish farmers in a region to suffer little or no

economic damage from cormorants, while a few farmers experience

exceptionally high losses.

Cormorants clearly respond in a positive way to the presence of

shallow-water ponds stocked with high densities of easy-to-capture prey

fish. For example, within two weeks of stocking 2 ponds in Hendry

County, Florida, with 5-20 centimeter (2-8 inch) fingerling catfish, 12

cormorants were feeding in the ponds and roosting on nearby poles. A

nearby 2.5 hectare (6 acre), 2.5-meter (8-foot) deep pond, stocked with

75,000 3-8 centimeter (1-3 inch) fish in August 1980, had attracted 13

cormorants by September. These birds continued to feed at the pond

throughout the fall and winter, and in spring 1981 they nested in a

nearby cypress dome. By November 1981, about 50 cormorants were feeding

in the pond (Schramm et al. 1984). The positive response of cormorants

to the presence of shallow-water ponds stocked with high densities of

easy-to-capture prey fish (as illustrated above) is clearly a major

factor responsible for their impacts in a variety of aquaculture

situations (e.g., baitfish ponds in Minnesota, koi ponds in Missouri

and elsewhere, ornamental fish ponds in Florida, and catfish ponds in

the southeastern United States and elsewhere).

Assuming averages of 5 fingerling catfish consumed/cormorant/hour

and 30 cormorants/pond (a constant number of feeding birds present

throughout an 8-hour day), the catfish population of a typical pond in

the Mississippi Delta (51,000 fish/hectare in a 8-hectare pond, which

is equivalent to 20,650 fish/acre in a 20-acre pond) would be halved in

167 days (Stickley et al. 1992). However, if actual values were nearer

the median values of 2 fish/cormorant/hour and 15 birds/pond (from

Stickley et al. 1992), the number of days required for the cormorants

to reduce the population by half would be increased to 850 days (a 5-

fold increase).

Of 281 catfish farmers queried on the Mississippi Delta in 1988

(Stickley and Andrews 1989), 87 percent felt that they had a bird

problem. Moderate to heavy cormorant activity (defined as at least 25

birds/day) was reported by 57 percent of Delta farmers. Losses to birds

(harassment costs plus value of fish lost) were estimated at $5.4

million (3 percent of total sales).

Overall, there appears to be little conflict between cormorants and

the food- or game-fish industry in Florida (Brugger 1992), but losses

of food fish, primarily catfish, can be locally severe (Brugger 1995);

for example, cormorants were responsible for the loss of up to 50

percent of the fingerling catfish in open 0.125 hectare (0.31 acre)

ponds during 1991 at the University of Florida.

Although fish of commercial value made up only a small percentage

of the diet of cormorants collected in the vicinity of aquaculture

facilities in central and southeast Arkansas from mid-October to early

December, the finding of a few fish of very high value (e.g., grass

carp with wholesale value of about $4 and koi worth $5-10 each)

suggests that cormorant depredations can be locally or seasonally

severe.

On the Mississippi Delta, cormorants consumed an estimated 18-20

million catfish during the winters of 1989-1990 and 1990-1991, which

was equivalent to 842-939 metric tons (928-1,035 short tons, or 1.86-

2.07 million pounds, or 844-939 thousand kilograms). Based on the cost

of replacing these fish, annual losses to the catfish industry were

estimated at $1.8-2.0 million, which corresponds to about 4 percent of

the estimated catfish standing crop each year. Although losses were

documented over a six-month period, the majority (about 64-67 percent)

occurred in February and March (Glahn and Brugger 1995).

At catfish farms in Oklahoma (with about 324 hectares [800 acres]

of surface water in production) in 1993, cormorants consumed an

estimated 7,196 kilograms (15,900 pounds, or 7.9 short tons) of catfish

valued at $14,000-36,000 (depending on size of the fish consumed), or

about 3-7 percent of Oklahoma catfish sales (Simmonds et al. 1995).

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Cormorant Depredation Permits

Depredation permits to take double-crested cormorants at commercial

aquaculture facilities have been issued by the Fish and Wildlife

Service since 1986. Composite data for a recent two-year period (1993-

1994) show that about 8,200 cormorants were taken each year by 2,261

permit holders. Cormorants represented the majority (about 57 percent)

of the total number of birds killed nationwide; two-thirds of the

cormorants were taken in the southeastern region of the United States,

with substantial numbers also taken in the southwest and the upper

Midwest.

Between 1989 and 1996, the number of permits issued to take double-

crested cormorants in the southeastern United States more than

quadrupled, from 50 to 215 (Coon et al. 1996). The reported take of

4,000-8,000 birds annually has had no noticeable effect on the size of

the regional wintering population.

Mastrangelo et al. (1995) noted that the reported take never

exceeded 68 percent of the authorized take and attributed this to the

frightening effect that lethal control has on bird behavior. Hess

(1994) described a recent study in which catfish farmers at three

complexes in Mississippi were authorized (under Fish and Wildlife

Service permits) to remove as many as 2,500 cormorants in a 19-week

period. Participants were supplied with ammunition and encouraged to

kill as many birds as allowed by the permit. The fact that only 290

birds had been killed by the end of the project was attributed to a

learned behavior by the birds to avoid areas where they might be shot

(Hess 1994).

Environmental Consequences of This Rule

Cormorant Population

The depredation order is expected to result in a moderate increase

in the number of double-crested cormorants taken at aquaculture

facilities. The impact is expected to be localized (e.g., possible

reductions in the size of wintering populations in the immediate

vicinity of catfish farms). To calculate the potential maximum harvest,

we can assume that 42 cormorants (the average number reported taken by

holders of depredation permits in the southeastern United States, 1989-

1995; from Coon et al. 1996) will be shot at each of the about 2,200

catfish farms in the United States. The resultant annual take of 92,400

birds will represent about 5-10 percent of the continental population.

This level of take will be more than offset by the recruitment of young

birds into the population; a reproductive success of 1.7-3.2 young/nest

(Duffy 1995) will equate to a minimum recruitment, at current

population levels, of 612,000 young into the population each year. In

reality, the action is expected to result in only a modest increase in

the number of double-crested cormorants taken at aquaculture

facilities.

Socio-Economic

The rule is expected to reduce the direct economic losses caused by

cormorants at commercial aquaculture facilities. It also will enhance

the effectiveness of current nonlethal control programs, thus reducing

overall damage control costs to producers. The depredation order will

reduce paperwork and costs associated with administering the current

permit system and will promote quicker and more efficient depredation

control operations by shifting responsibility to the individual

aquaculturists. The depredation order will demonstrate cooperation

between the Federal agency responsible for protecting and enhancing

wildlife (Service), the Federal agency responsible for dealing with

wildlife damage issues (WS), and the individual producers in dealing

with a problem that has the potential to expand far beyond the wildlife

management arena.

Other Fish-Eating Birds

Although the action does not authorize the taking of other fish-

eating birds, it is possible that a few birds could be taken

accidentally on occasion. The two species that are most likely to be

confused with the double-crested cormorant are the neotropic cormorant

(Phalacrocorax brasilianus) and the anhinga (Anhinga anhinga). These

species have foraging habits very much like those of the double-crested

cormorant and may occur on or in the vicinity of catfish ponds in the

Gulf Coast States. The likelihood of other fish-eating birds being

mistaken for double-crested cormorants and shot accidentally is not

expected to increase above that which presently occurs . However,

because of a projected increase in the number of producers conducting

lethal control operations for cormorants, it is possible that there

will be a slight to moderate increase in the actual number of other

fish-eating birds (especially neotropic cormorants and anhingas) taken

accidentally. Any negative effects on these species would be extremely

localized, and long-term impacts on populations would be unlikely.

Endangered and Threatened Species

Negligible impacts to endangered or threatened species are expected

under the action. Few endangered or threatened species have ever been

taken by aquaculturists with depredation permits. The likelihood of

endangered or threatened species being taken by accident is not

expected to increase.

Summary of Public Comments

On June 23, 1997, the Service published a proposed rule (62 FR

33960) to establish a depredation order for the double-crested

cormorant. Three hundred and thirty letters or postcards were received

from 347 individuals, businesses, organizations, agencies, and elected

officials during the 60-day public comment period. Some parties

submitted multiple letters, other letters were signed by more than one

entity, and letters from two organizations were supplemented by form

letters or postcards submitted by individual members.

For consistency and standardization in analyzing the comments, each

of the following examples was regarded as one distinct set of comments:

(a) 1 letter from an aquaculture facility signed by 2 individuals, (b)

5 identical letters from 5 different employees of an aquaculture

facility, (c) 2 different letters (signed by the same individual) from

1 aquaculture facility, (d) 3 different letters from a private citizen,

(e) 2 identical letters from an aquaculture-related business signed by

2 different individuals, (f) 1 letter from the Louisiana Catfish

Farmers Association supplemented by 42 identical letters signed by

individual members of LCFA, (g) 1 letter from the Catfish Farmers of

Mississippi supplemented by 112 postcards supporting the position of

CFM and signed by individual members, (h) 7 identical letters from an

aquaculture facility signed by 7 different individuals, (i) 2 different

letters from an elected State official, (j) 1 letter from the National

Audubon Society co-signed by representatives of 6 other environmental

organizations (i.e., American Bird Conservancy, Center for Marine

Conservation, Defenders of Wildlife, Environmental Defense Fund, Izaak

Walton League of America, and World Wildlife Fund), and (k) 1 letter

signed by 13 different Congressmen.

Thus, the 330 letters are considered to represent 161 distinct sets

of comments distributed among segments of the public as follows:

private individuals (52), aquaculture-related businesses (50),

aquaculture organizations (21), environmental organizations (18), State

agencies (13, representing 10 States),

[[Page 10555]]

Federal agencies (5), Federal elected officials (1), State elected

officials (1).

The proposed action was supported by 13 members of the U.S. House

of Representatives (Representatives from the states of Alabama,

Arkansas, Louisiana, and Mississippi), who emphasized the economic

importance of the aquaculture industry in their States and the

potentially devastating impacts of cormorants on that industry.

The action was supported (or at least not opposed) by State

agencies in 9 of the 10 States from which comments were received:

Alabama, Arkansas, Illinois, Louisiana, Mississippi, North Carolina,

Oklahoma, Texas, and Vermont. The Missouri Department of Conservation

questioned why the current permit procedure was inadequate, and noted

that if the depredation order were implemented ``it will be important

to monitor control records to evaluate changes in numbers, locations,

and dates that cormorants are taken.''

The WS--a program of the U.S. Department of Agriculture's Animal

and Plant Health Inspection Service and the only Federal agency that

submitted comments--supported the action, with the recommended addition

of several items (e.g., include roost sites, western States, control on

breeding grounds, sport fisheries, mariculture facilities, and

unintentional or ``incidental'' take of similar species) and

recommended deletion of the certification requirement.

The proposed rule received overwhelming support from aquaculture-

related businesses and organizations. Many of the comments received

from this group expressed concern that the scope of the depredation

order was not broad enough (e.g., expand geographically, include

additional species, add roost control, implement widespread population

control).

Among the scientific and environmental organizations commenting on

the proposed action, it was supported by the Wildlife Management

Institute and the Arkansas Wildlife Federation. The action was opposed

(or at least not supported) by 12 national organizations and 7 State or

local organizations. A sample of the concerns raised by these opponents

includes the following: lack of good scientific data on magnitude of

economic impacts; non-lethal techniques have not been adequately

implemented; will remove incentives for using non-lethal control; will

result in unintentional take of non-target birds; adequate methods

(e.g., non-lethal and permits) are already available; effects on

cormorants and other species should be monitored; geographic scope is

unnecessarily broad; minimize effects on non-target species

(educational materials); does not address spatially-localized nature of

problem; does not address seasonal nature of problem; and sets a

dangerous precedent for other bird species.

Written comments received during the comment period are discussed

in the following summary. Comments of a similar nature are grouped into

general issues. These issues and the Service's response to each are

discussed below.

Issue 1: Numerous individuals and a few organizations, including

the Bass Anglers Sportsman Society (BASS), commented that the

depredation order should be expanded to include situations in which

double-crested cormorants commit depredations on sport fish populations

in public waters.

Service Response: Based on a review of the best available science,

the Service concludes that cormorants generally have only minor direct

impacts on sport fish populations (Trapp et al. 1997). Cormorants are

just one of myriad biotic and abiotic factors, including water quality,

aquatic habitat, natural predation, and angler take, that can affect

sport fish populations. However, the Service also recognizes that there

may be highly localized situations in which cormorants can potentially

impact sport fish populations. These are generally situations in which

sport fish are concentrated in extremely high densities, often by human

activities (e.g., massive releases of hatchery-reared fingerlings,

intensively managed put-and-take fisheries, and temporary congregations

of fish at nearshore spawning sites). The Service currently does not

issue cormorant depredation permits to benefit sport fish populations

in public waters, but is exploring potential options that could be used

to deal on a case-by-case basis with localized cormorant predation when

it has been proven to be a significant problem. Two possible options

include: (1) Modification of release practices for hatchery-reared fish

to reduce their vulnerability to cormorant predation, and (2)

harassment of depredating birds.

Issue 2: Wildlife Services, as well as a majority of

aquaculturists, requested that the depredation order be expanded to

allow lethal take in conjunction with roost dispersal activities.

Service Response: Studies conducted in the Mississippi Delta by WS

over the past 6-7 years indicate that coordinated roost harassment/

dispersal (without lethal take) is a promising technique for diverting

roosting cormorants away from the immediate vicinity of aquaculture

facilities. Typically, the effort has involved coordinated teams of

fish farmers harassing birds as they return to night roosts by shooting

cracker shells, screamers (whistlers), and other nonlethal noise-making

devices. The major objective of coordinated roost harassment is to move

birds from the interior Delta (i.e., the location of major catfish

aquaculture facilities) to sites along the Mississippi River.

During the winter of 1996-1997, WS monitored the movements of 50

cormorants outfitted with radio transmitters and examined the effects

of a Delta-wide roost harassment effort (Tobin and King 1997).

Harassment substantially reduced the fidelity of cormorants to roost

sites (e.g., 11 percent of birds returned to the roost within 48 hours

versus 81 percent at control roosts). Compared to birds from control

roosts, birds from roosts that were harassed tended to move long

distances between successive night roosts (i.e., 0 and 26 km,

respectively) and travelled further to feed (i.e., 22 and 31 km,

respectively). Ninety-six percent of the birds that roosted in the

interior Delta foraged there the next day compared to only 7 percent of

birds that roosted along the Mississippi River, and catfish comprised

80 percent of the diet of birds from Delta roosts versus 20 percent of

the diet of birds from river roosts. The evidence clearly shows that

the roost harassment efforts conducted by WS in conjunction with

commercial fish farmers has been successful in dispersing roosting

cormorants away from the immediate vicinity of aquaculture facilities

on the interior Delta, and is an effective nonlethal means for reducing

cormorant damage at catfish farms.

Wildlife Services contends that the ability to shoot double-crested

cormorants at their night roosts in conjunction with harassment would

make it much easier to disperse them from such areas, and would

probably increase the effectiveness of the technique (e.g., increased

dispersal distance, longer period of roost abandonment). However, the

Service is not aware of any documented evidence that the addition of

lethal take would significantly increase the efficacy of roost

harassment.

Roost dispersal/harassment efforts such as those conducted on the

Mississippi Delta can continue unabated under auspices of WS. The

Service will consider applications for depredation permits for lethal

take of double-crested cormorants at roosts on a case-by-case basis.

The Service will also consider a request for a depredation permit to

take cormorants at roost sites in conjunction

[[Page 10556]]

with a research study designed to determine if lethal take

significantly increases the effectiveness of roost harassment.

Issue 3: Conflicting comments were received on the geographical

focus of the depredation order. Aquaculturists requested that the

geographical extent of the order be expanded, citing actual or

potential problems in States (e.g., western U.S.) not covered by the

proposed rule. Environmentalists noted a lack of documented evidence of

problems in some of the geographical areas (e.g., northcentral and

northeastern U.S.) included in the proposed rule.

Service Response: In the proposed rule, the Service proposed that

the action be applicable to 32 States in the eastern U.S. Based on the

public comments received, the Service re-evaluated the need for a

depredation order based on documented evidence of the magnitude of the

problems that double-crested cormorants posed to commercial aquaculture

in individual States.

The Service concludes that double-crested cormorants pose

significant problems to the commercial aquaculture industry in the

following 12 States in the southcentral and southeastern U.S.: Alabama,

Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North

Carolina, Oklahoma, South Carolina, Tennessee, and Texas. This finding

is based on the following lines of evidence: (1) Existing commercial

catfish industry is sizeable, with predicted continued growth; (2)

sizeable populations of migrant or wintering double-crested cormorants,

with predicted continued growth; (3) documented evidence of economic

losses due to cormorant predation on catfish (Stickley and Andrews

1989, Brugger 1995, Glahn and Brugger 1995, Simmonds et al. 1995); (4)

history of issuing aquaculture depredation permits to take substantial

numbers of double-crested cormorants (Coon et al. 1996); (5) predicted

increase in conflicts between catfish industry and cormorants due to

projected expansion of industry and growth of cormorant population; and

(6) potential conflicts between cormorants and other aquaculture

industries, including baitfish, ornamental fish, and tilapia (Bivings

et al. 1989).

The Service also finds that double-crested cormorants pose

significant problems to the commercial aquaculture industry in the

State of Minnesota. Within the northcentral region of the U.S.

(encompassing eight States), Minnesota accounts for 67 percent of all

aquaculture depredation permits issued, 93 percent of all cormorants

reported taken, and 82 percent of all economic losses claimed. A total

of $388,750 in losses due to double-crested cormorant predation was

claimed by Minnesota aquaculturists in 1997. Most of the aquaculture

conflicts with cormorants in Minnesota involve the baitfish industry,

although a variety of other stocks are also involved (U.S. Fish and

Wildlife Service, unpubl. data).

Individual aquaculture depredation permits will still be available

on a case-by-case basis for dealing with damages caused by cormorants

at commercial aquaculture facilities in States not covered by the

depredation order. The Service will also consider adding additional

States to the depredation order upon receipt of evidence that double-

crested cormorants are responsible for significant economic losses at

aquaculture facilities.

Issue 4: Wildlife Services thought that it was excessive and

burdensome to require aquaculturists to contact one of its State

offices to obtain certification of non-lethal harassment activities

prior to implementing lethal control activities under the depredation

order.

Service Response: Prior to implementing the lethal control

activities authorized by this rule, an aquaculturist must obtain a

statement from WS certifying that his or her facility has a cormorant

depredation problem and that lethal take of cormorants is necessary to

supplement existing non-lethal harassment efforts. This requirement

does not differ substantially from the certification statement that the

Service requires before issuing a depredation permit. The Service

considers this a reasonable and prudent measure that will help to

ensure that (1) the privileges and purposes of the depredation order

are not abused; and (2) non-lethal harassment remains an essential part

of integrated cormorant management activities at aquaculture

facilities.

Issue 5: Both aquaculturists and environmentalists stressed the

need for an accurate system for documenting the number of cormorants

taken under the depredation order, and several environmental

organizations recommended that the reporting requirements be

strengthened.

Service Response: The rule requires that any person exercising the

privileges of the depredation order must keep and maintain a monthly

log recording the date and number of all birds killed each month under

this authorization, that the log must be maintained for a period of

three years (and that three previous years of takings must be

maintained at all times thereafter), and that the log be made available

to Federal and State wildlife enforcement officers upon request. Any

mandated reporting requirement would be difficult to enforce, and the

submitted information difficult to interpret due to non-reporting bias.

The Service intends to supplement the monthly log of cormorants shot

with phone or mail surveys of a stratified random sample of

aquaculturists. This survey is anticipated to provide more reliable and

useful information on levels of take than reports submitted by

individual aquaculturists. These surveys are also subject to OMB

approval under the Paperwork Reduction Act of 1995.

Issue 6: Aquaculturists indicated a desire for a provision to allow

the unintentional (or ``incidental'') take of similar species, while

environmentalists pointed out that any such take would be a potential

problem.

Service Response: Control actions taken under this order can be

effectively implemented without killing other species of birds.

Therefore, authorization to take is limited to double-crested

cormorants. To the extent a person takes a bird or birds other than

double-crested cormorants, it is a violation of the MBTA. In that

event, the Service will exercise its discretion in determining what

enforcement action, if any, is appropriate.

The Service will attempt to minimize the unintentional take of non-

target species by (1) restricting shooting to daylight hours; and (2)

working with WS and nongovernmental organizations to develop

educational identification materials.

Issue 7: Aquaculturists interpreted the proposed rule as applying

only to the owners of aquaculture facilities, which would make on-site

implementation of the depredation order much more restrictive than that

of existing depredation permits.

Service Response: The rule was intended to be applicable to

landowners, operators, and tenants actually engaged in the production

of commercial freshwater aquaculture stocks (plus their employees or

agents). The wording of the depredation order has been changed to more

accurately reflect this fact.

Issue 8: Many aquaculturists suggested that the depredation order

be expanded to include other species of fish-eating birds, such as

egrets and herons, that cause damage at aquaculture facilities.

Service Response: Of the approximately 46 species of fish-eating

waterbirds that occur in freshwater habitats of the contiguous U.S.,

the

[[Page 10557]]

double-crested cormorant is by far the greatest economic threat to

commercial aquaculture because of its abundant and increasing

population, its attraction to certain types of aquaculture facilities,

its habit of foraging in large flocks, and its ability to consume large

quantities of fish daily (i.e., about 320 grams, or 0.7 pounds). This

is reflected in the distribution of aquaculture depredation permits

over the past decade. Nationwide, double-crested cormorants have

accounted for about 57 percent of the individual birds of all species

reported taken under aquaculture depredation permits annually; this

species is an even greater problem in the southcentral and southeastern

U.S., where it has represented about 65 percent of all individuals

taken at aquaculture facilities.

Other species frequently cited as causing damage at aquaculture

facilities include the great blue heron (Ardea herodias), great egret

(Casmerodias albus), and black-crowned night-heron (Nycticorax

nycticorax). Based on a review of the available information, the

Service does not believe that inclusion of these or any other species

of fish-eating birds in the depredation order is warranted at this

time. Individual depredation permits will still be available on a case-

by-case basis for dealing with damages caused by other species of fish-

eating birds.

Thus, while aquaculturists may take unlimited numbers of double-

crested cormorants under the depredation order without need of a

permit, they will still be required to obtain a depredation permit to

take any other species that may be causing economic damages.

Issue 9: Aquaculturists noted that a prohibition against removing

dead cormorants from the aquaculture facility at which they were killed

would present logistical and potential health problems.

Service Response: The Service reviewed this issue and found no

valid reason for prohibiting off-site disposal of carcasses. The

depredation order has been reworded to allow both on-site and off-site

burial or incineration of dead cormorants.

Issue 10: Many respondents in the aquaculture community felt that

State agencies should have more authority in the management of

aquaculture-cormorant depredation conflicts.

Service Response: There is a long tradition of Federal-State

cooperation in the management of migratory bird populations. Typically,

the Service issues broad regulatory guidelines (such as this rule)

while individual States retain the authority to implement regulations

that are more, but not less, strict than the Federal regulations. In

this regard, it is important to note that the depredation order does

not authorize the killing of cormorants contrary to the laws or

regulations of any State, and that the privileges of the depredation

order may not be exercised unless the person possesses any appropriate

State permits that may be required. The Service is committed to working

closely with State (as well as other Federal) agencies in developing

and implementing long-term solutions to the aquaculture-cormorant

problem.

Issue 11: Widespread population management of the double-crested

cormorant, including actions on the breeding grounds, was advocated by

aquaculturists and WS to reduce the size of the North American

population.

Service Response: A widespread, coordinated effort to reduce the

cormorant population would be extremely labor-intensive and expensive,

with little likelihood of long-term success. Furthermore, there is no

guarantee that regional reductions in cormorant populations would

reduce impacts at individual aquaculture facilities. The purpose of the

depredation order is to provide individual aquaculturists an

opportunity to deal with site-specific cormorant depredation problems

in a timely and effective fashion, not to achieve a broadscale

reduction in the continental double-crested cormorant population.

Issue 12: Aquaculturists noted that methods of lethal take other

than shooting (such as netting and traps) may be effective in killing

cormorants, and that such methods should be authorized in the

depredation order.

Service Response: To the Service's knowledge, shooting with

firearms has been the only method employed for the lethal take of

cormorants in aquaculture settings. In the event that other effective

and safe methods of taking cormorants are developed, the Service will

consider adding these to the depredation order.

Issue 13: Aquaculturists requested authorization to use decoys,

vocalizations, and other lures to bring cormorants into closer gun

range.

Service Response: Anything that makes it easier to kill depredating

double-crested cormorants by bringing them into closer range is

considered beneficial to the purposes of the depredation order.

Consequently, language has been inserted allowing the use of such

devices.

The intent of this provision is not to lure cormorants onto

aquaculture facilities from the surrounding landscape (which would

clearly be counter-productive), but to make it easier to shoot birds

that are already present and committing or about to commit depredations

on fish stocks.

Issue 14: Some aquaculturists suggested that the depredation order

be expanded to include mariculture facilities located in brackish and

saltwater situations.

Service Response: In the past decade, the Service has issued a very

limited number of cormorant depredation permits to mariculture

operations. The problems caused by cormorants to mariculture facilities

are not well documented, and are not deemed to be of sufficient

magnitude to warrant their inclusion in the depredation order at this

time. Mariculture operators experiencing significant problems due to

cormorant predation can still apply for individual depredation permits.

Issue 15: Efforts should be made to monitor the numbers of

cormorants taken under the depredation order, as well as trends in

cormorant populations.

Service Response: In addition to gathering information on the

numbers of cormorants shot (see response to Issue 5), the Service

intends to monitor potential impacts of the depredation order on

regional and continental cormorant populations by means of: (a)

Breeding Bird Survey and Christmas Bird Count trend data; (b) breeding

colony survey data; (c) counts of cormorants on waterfowl breeding

pairs surveys; and (d) analysis of band recovery data.

Issue 16: The National Audubon Society et al. and other

environmental groups argued that non-lethal control techniques were

effective in alleviating conflicts between cormorants and commercial

aquaculture and should remain a high priority, while also expressing

concern that the depredation order would effectively discourage

aquaculturists from investing in non-lethal, long-term solutions to

depredation.

Service Response: The Service has long recognized non-lethal

control as the preferred alternative for dealing with cormorant damage

complaints (Trapp et al. 1995), as has WS (Accord 1995). Of the many

non-lethal (exclusionary and frightening) devices tested over the last

decade, none has proven totally effective in deterring cormorants from

aquaculture facilities. Typically, birds learn to avoid or ignore these

devices in a relatively short period of time through habituation. Some

form of behavioral reinforcement (such as limited lethal take) helps to

reinforce and prolong the effectiveness of non-lethal deterrents. In

reality, then, the take of limited numbers of birds will always have to

be considered as a viable option in an effective, integrated

[[Page 10558]]

strategy for minimizing the deleterious effects of cormorants on

aquaculture.

The depredation order does not absolve aquaculturists from the

responsibility of employing non-lethal techniques (see response to

Issue 4); rather, it simply provides them with another tool for

application in an integrated management approach designed to reduce

problems caused by cormorants at their facilities.

The Service believes that the aquaculture industry shares

responsibility for alleviating bird depredation problems and that the

industry should aggressively promote: (1) The design of new facilities

(and the retrofitting of old ones where economically feasible) that

exclude or repel cormorants; and (2) the use of nonlethal deterrents.

The Service also encourages WS to continue an aggressive research

effort to develop effective nonlethal means of alleviating bird

depredation problems in aquaculture.

Issue 17: The Ornithological Council and other scientific and

environmental groups stated their opinion that there is very little

good scientific data and no consensus on the extent and magnitude of

the cormorant predation problem at commercial fish ponds.

Service Response: The Service believes that an objective review of

the available scientific information (as presented in the SUPPLEMENTARY

INFORMATION section) provides an accurate indication of the actual and

potential problems caused by cormorants at commercial aquaculture

facilities, as well as reliable figures on the magnitude of economic

losses. In reviewing Foraging Behavior of the Double-crested Cormorant

at Aquaculture Facilities, the Service synthesized data from 17 peer-

reviewed scientific papers to summarize what is currently known about

daily movements and activity budgets, feeding rates, diet composition,

prey size, prey preferences, and daily food consumption rates. This

information provides the basic background for understanding the nature

of potential interactions between cormorants and aquaculture.

In assessing Impacts of Double-crested Cormorants on Aquaculture,

the Service provided synopses of 12 peer-reviewed scientific papers

that furnished information of a quantitative nature on actual or

potential impacts. For the catfish industry, economic losses in the

Mississippi Delta have been calculated by different methods as about 3

percent of total sales (Stickley and Andrews 1989) or about 4 percent

of the estimated standing crop (Glahn and Brugger 1995), and in

Oklahoma as about 3-7 percent of sales (Simmonds et al. 1995). It is

important to recognize that these are average values. Cormorants rarely

are distributed evenly over a given region, but rather tend to be

highly clumped or localized. Thus, economic losses also tend to be

clumped or localized, with a minority of growers suffering a majority

of losses in a given year. Since the distribution and severity of

economic losses is unpredictable from year to year, it is prudent to

provide all aquaculture producers in the affected States an opportunity

to avail themselves of the privileges of the depredation order.

The Service finds no reason to question the validity or conclusions

of the scientific studies that it has reviewed, but acknowledges that

others might interpret the same data differently. Although it agrees

that better scientific information is always desirable, the Service

must make management decisions using the best information available

while relying on accepted ecological and wildlife management

principles. The Service will continue to review new scientific studies

documenting the impacts of double-crested cormorants on commercial

aquaculture stocks as they become available.

Issue 18: The proposed action appeared to be an application for

recreational hunting to Animal People, who viewed it as a pretext to

kill double-crested cormorants for sport and revenge, not because they

are genuinely a threat or problem.

Service Response: The Service is not establishing a recreational

hunting program. Depredation orders are an established method for

dealing with situations in which migratory birds are causing

significant damage to human interests. Damages to freshwater commercial

aquaculture stocks due to cormorant predation have been well documented

in the scientific literature (see response to Issue 17).

A decision to propose establishment of a depredation order was made

only after: (1) determining that there was documented scientific

evidence that cormorants were indeed a source of severe economic losses

at aquaculture facilities; and (2) evaluating 12 different potential

management options for reducing the problem (U.S. Fish and Wildlife

Service 1997). The depredation order was determined to be the best

alternative. The depredation order authorizes the take of double-

crested cormorants, under limited conditions, for the express purpose

of reducing economic impacts to aquaculture facilities. This rule will

allow aquaculturists to shoot cormorants not for fun, but because they

are causing damage to commercial fish stocks.

Issue 19: Many environmental groups believed that aquaculturists

should modify their ponds to incorporate the use of physical barriers

and other exclusionary devices to reduce the impacts of double-crested

cormorants on fish stocks.

Service Response: This would be an ideal situation if economically

feasible. But the reality is that requiring aquaculturists to retrofit

existing ponds to accommodate physical barriers and other exclusionary

devices would create an economic hardship for small businesses and

local economies. Nevertheless, the Service encourages the aquaculture

industry to aggressively promote the design of new facilities (and the

retrofitting of old ones where economically cost-effective) that

exclude or repel cormorants.

Issue 20: Concern was expressed by one environmental group that the

depredation order would allow an aquaculturist to implement lethal

control of cormorants regardless of whether or not they are a

persistent threat and without having to demonstrate economic impacts

due to cormorant predation.

Service Response: The proposed rule and the Environmental

Assessment (U.S. Fish and Wildlife Service, 1997) established that

double-crested cormorants can cause severe damage at aquaculture

facilities under certain circumstances, and that lethal take (in

conjunction with a suite of non-lethal harassment techniques) was an

appropriate depredation control action. The depredation order merely

provides individual aquaculturists the opportunity to deal with site-

specific cormorant depredation problems in a timely and effective

manner.

Issue 21: The National Audubon Society et al. and others stated

that the proposed action does not acknowledge the seasonal nature of

cormorant depredation problems, and suggested that authority to take

cormorants should be limited to those months when depredation is most

common.

Service Response: The intent of the depredation order is to give

aquaculturists the flexibility to take double-crested cormorants

whenever they are present at their facilities and committing or about

to commit depredations on fish stocks. The Service anticipates that the

take of depredating cormorants at aquaculture facilities will be self-

limiting and directly related to the numbers of birds present (e.g.,

catfish producers in the southcentral and southeastern U.S. will take

birds

[[Page 10559]]

primarily in the winter months, and baitfish producers in Minnesota

will take birds primarily in the summer months). Thus, while the

Service acknowledges the seasonal nature of cormorant depredation

problems, it does not believe that seasonal restrictions are necessary.

Issue 22: The creation of a depredation order for the double-

crested cormorant establishes a dangerous precedent for other bird

species and is contrary to the purposes of the Migratory Bird Treaty

Act.

Service Response: The MBTA provides strong measures for the

protection and conservation of migratory birds, while at the same time

providing opportunities for people to use the migratory bird resource

for sport, recreation, and scientific endeavors. The MBTA also provides

considerable flexibility for dealing with situations where birds may

come into conflict with human interests, such as the aquaculture-

cormorant situation (Trapp et al. 1995).

Depredation orders have been in place for various species of

migratory birds since at least 1974. Brief descriptions of each of the

existing depredation orders authorizing take of designated species

without need of a Federal permit follow:

Blackbirds (Agelaius spp., Euphagus spp., Xanthocephalus

xanthocephalus), cowbirds (Molothrus spp.), grackles (Quiscalus spp.),

crows (Corvus brachyrhynchus, C. caurinus, C. ossifragus), and magpies

(Pica spp.) ``when found committing or about to commit depredations

upon ornamental or shade trees, agricultural crops, livestock, or

wildlife, or when concentrated in such numbers and manner as to

constitute a health hazard or other nuisance'' (50 CFR 21.43).

Horned larks (Eremophila alpestris); golden-crowned, white-crowned,

and other crowned sparrows (Zonotrichia spp); and house finches

(Carpodacus mexicanus) ``when seriously injurious to agriculture or

other interests'' in California (50 CFR 21.44).

Purple gallinules (Porphyrula martinica) ``when found committing or

about to commit serious depredations to growing rice crops'' in

Louisiana (50 CFR 21.45).

Scrub jays (western scrub-jays, Aphelocoma californica) and

Steller's jays (Cyanocitta stelleri) ``when found committing or about

to commit serious depredations to nut crops'' in Washington and Oregon

(50 CFR 21.46).

Issue 23: Several organizations and individuals questioned why the

current procedure of issuing individual depredation permits to

aquaculturists experiencing problems with cormorants was not adequate.

Service Response: Because of the administrative procedures involved

in the issuance of permits, there may be lag time of several weeks

between an aquaculturist's request for a permit and his or her receipt

of a permit authorizing lethal take; in the interim, cormorant

depredations can result in significant economic losses. The depredation

order will allow aquaculturists to employ lethal take as soon as it

becomes apparent that cormorant depredation is a problem.

Issue 24: The Ornithological Council expressed concern that the

estimated take of 92,000 double-crested cormorants annually was ``way

too high,'' as it could represent a tremendous proportion of the North

American population.

Service Response: The figure of 92,400 cormorants published in the

proposed rule was a calculation of the potential maximum harvest, and

was presented as a worst-case scenario. The Service estimates that

adult and juvenile cormorants will be taken in proportion to their

occurrence in the population, and that the annual take will never

exceed 10 percent of the total population. Enactment of the depredation

order is expected to result in only a modest increase in the number of

depredating cormorants killed at aquaculture facilities under

depredation permits (e.g., about 10,900 birds currently reported killed

annually in the 13 affected States), and is not likely to have a

detrimental impact on the population.

Cormorants are difficult to kill in large numbers, as indicated by

one study (Hess 1994) in which investigators were able to kill only

11.6 percent of the number authorized (2,500) over a 19-week period.

From 1989-1995, aquaculturists in the southeastern U.S. reported taking

only about 65 percent of the cormorants that they had been authorized

to take (Coon et al. 1996). Impacts of the depredation order on double-

crested cormorants will be monitored by reviewing several independent

sets of data (see responses to Issues 5 and 15).

Issue 25: The Wisconsin Society for Ornithology and others pointed

out the value of bird band recovery information.

Service Response: Substantial numbers of double-crested cormorants

have been banded on their breeding grounds. Recoveries of banded birds

at aquaculture facilities provides valuable scientific information on

the origin of birds causing depredation problems, and are potentially

useful for documenting effects of the depredation order on cormorants.

Aquaculturists will be encouraged to submit band recovery information

to the Bird Banding Laboratory via its toll-free telephone number.

Issue 26: The Arkansas Game and Fish Commission and several other

respondents recommended that non-toxic shot be required for use in all

control efforts using shotguns.

Service Response: The Service agrees, and language requiring the

use of nontoxic shot has been included in the depredation order.

The detrimental impacts of lead shot on waterfowl and non-target

species such as bald eagles (Haliaeetus leucocephalus), as well as

secondary impacts on the environment, are well-documented (U.S. Fish

and Wildlife Service, 1986). Based on this evidence, the Service

adopted regulations (50 CFR 20.108) in 1991 requiring the use of

nontoxic shot for hunting waterfowl, coots, and certain other species

throughout the U.S. Recent studies (e.g., Locke et al. 1991, DeStefano

et al. 1992, Elliott et al. 1992, Blus 1994, Daury et al. 1994, and

Franson and Hereford 1994) further document lead poisoning in a variety

of migratory bird species due to the ingestion of spent lead shot.

Holders of aquaculture depredation permits in Minnesota have been

required to use steel shot since 1989, while permittees in the

southeastern U.S. have not heretofore been required to use nontoxic

shot. Beginning in 1998, all aquaculture depredation permits issued by

the Service will require the use of nontoxic shot. As producers of

commodity products marketed for human consumption, aquaculturists have

a vested interest in maintaining high environmental quality standards

on their facilities.

The 30-day delay between publication of this final rule and its

effective date is provided by the Administrative Procedures Act (5

U.S.C. 553(d)). March is a critical time for the fish farmers as the

cormorants congregate heavily in the areas in question feeding in

preparation for the Spring migration north. Since this a peak

depredation time on catfish, the Service is providing relief to the

farmers by allowing a streamlined process of dealing with cormorant

depredation. Further, the Service has been directed to move on this

issue by report language from the House and Senate dated October 22,

1997, mandating that the Service effectively respond to this issue by

January 1, 1998. Therefore, the Service believes good cause exists to

waive the 30-day effective date.

[[Page 10560]]

National Environmental Policy Act

In accordance with the National Environmental Policy Act of 1969,

the Service prepared an Environmental Assessment, and issued a Finding

of No Significant Impact. Copies of these documents are available from

the Chief, Office of Migratory Bird Management, U.S. Fish and Wildlife

Service, 4401 North Fairfax Drive, ms 634-ARLSQ, Arlington, VA 22203.

Endangered Species Act Consideration

A consultation was conducted to ensure that actions conducted in

accordance with the depredation order will not likely jeopardize the

continued existence of endangered or threatened species or result in

the destruction or adverse modification of their critical habitat.

Findings from this consultation are included in a biological opinion,

which is available for public inspection at the address indicated under

the caption ADDRESSES.

Regulatory Flexibility Act, Executive Order (E.O.) 12866 and Paperwork

Reduction Act

Based on the economic impacts discussed in ``Impact of Double-

crested Cormorants on Aquaculture,'' the Service determined under the

Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) that this

rule would not have a significant effect on a substantial number of

small entities, which include businesses, organizations and

governmental jurisdictions. This rule was reviewed by the Office of

Management and Budget under E.O. 12866.

The Service examined the rule under the Paperwork Reduction Act of

1995 and found that it does contain information collection

requirements. OMB has issued the following emergency information

collection number 1018-0087, which expires August 31, 1998. Information

collection is required to better enable the Service to assess the

benefits of the depredation order on aquaculturists and to assess

impacts to the double-crested cormorant population. Burden hours to

aquaculturists are calculated as follows: An average of 41 birds may be

taken by each of some 2,200 aquculturists per season. An estimated

total of 800 hours will be required to keep and maintain the monthly

logs, and produce the logs for inspection, yielding an average of 22

minutes per aquaculturists per year.

Unfunded Mandates

The Service has determined and certifies, in compliance with the

requirements of the Unfunded Mandates Act, 2 U.S.C. 1502 et seq., that

this rule will not impose a cost of $100 million or more in any given

year on local or State government or private entities.

Civil Justice Reform--Executive Order 12988

The Department, in promulgating this rule, has determined that

these regulations meet the applicable standards found in Sections 3(a)

and 3(b)(2) of Executive Order 12988.

References Cited

A complete list of all references cited herein is available upon

request from John L. Trapp, Office of Migratory Bird Management, U.S.

Fish and Wildlife Service, 4401 North Fairfax Drive, ms 634-ARLSQ,

Arlington, Virginia 22203.

Author

The primary author of this rule is John L. Trapp, Office of

Migratory Bird Management.

List of Subjects in 50 CFR Part 21

Exports, Hunting, Imports, Reporting and recordkeeping

requirements, Transportation, Wildlife.

Regulation Promulgation

Accordingly, the Service hereby amends part 21, Subpart D, of

subchapter B, chapter I, title 50 of the Code of Federal Regulations,

as set forth below:

PART 21--[AMENDED]

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

Authority: Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)).

2. Section 21.47 is added to Subpart D to read as follows:

SUBPART D--CONTROL OF DEPREDATING BIRDS

* * * * *

Sec. 21.47 Depredation order for double-crested cormorants at

aquaculture facilities.

The Service examined the rule under the Paperwork Reduction Act of

1995 and found that it does contain information collection

requirements. OMB has issued the following emergency information

collection number, 1018-0097, which expires on August 31, 1998.

Information collection is required to better enable the Service to

assess the benefits of the depredation order on aquaculturists and to

assess impacts to the double-crested cormorant population. Burden hours

to aquaculturists are calculated as follows: an average of 41 birds may

be taken by each of some 2,200 aquculturists per season. An estimated

total of 800 hours will be required to keep and maintain the monthly

logs, and produce the logs for inspection, yielding an average of 22

minutes per aquaculturists per year. Landowners, operators, and tenants

actually engaged in the production of commercial freshwater aquaculture

stocks (or their employees or agents) in the States of Alabama,

Arkansas, Florida, Georgia, Kentucky, Louisiana, Minnesota,

Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and

Texas may, without a Federal permit, take double-crested cormorants

(Phalacrocorax auritus) when found committing or about to commit

depredations to aquaculture stocks on the premises used for the

production of such stocks: Provided that:

(a) Double-crested cormorants may be taken by shooting during

daylight hours only, and only when necessary to protect freshwater

commercial aquaculture and State-operated hatchery stocks from

depredation; none of the birds so taken may be sold; and all dead birds

must be buried or incinerated, except that any specimens needed for

scientific purposes as determined by the Director must not be

destroyed, and information on birds carrying metal leg bands may be

submitted to the Bird Banding Laboratory by means of a toll-free

telephone number at 1-800-327-BAND (or 2263).

(b) Double-crested cormorants may be shot at freshwater commercial

aquaculture facilities or State-operated hatcheries only in conjunction

with an established non-lethal harassment program as certified by

officials of the Wildlife Services' program of the U.S. Department of

Agriculture's Animal and Plant Health Inspection Service.

(c) Double-crested cormorants may be taken with firearms only

within the boundaries of freshwater commercial aquaculture facilities

or State-operated hatcheries, and persons using shotguns are required

to use nontoxic shot.

(d) Persons operating under the provisions of this section may use

decoys, taped calls, or other devices to lure birds committing or about

to commit depredations within gun range.

(e) Any person exercising the privileges of this section must keep

and maintain a log recording the date and number of all birds killed

each month under this authorization, that the log must be maintained

for a period of three years (and that three previous years of takings

must be maintained at all times thereafter), that the log and any

related records be made available to Federal or State wildlife

enforcement officers upon request during normal business hours.

(f) Nothing in this section authorizes the killing of double-

crested cormorants

[[Page 10561]]

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 permits, when required; nor the killing of any

migratory bird species other than double-crested cormorants when

committing or about to commit depredations to aquaculture stocks.

(g) The authority granted in this section will automatically expire

on April 30, 2005, unless revoked or specifically extended prior to

that date.

Dated: January 30, 1998.

Donald J. Barry,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-5485 Filed 3-3-98; 8:45 am]

BILLING CODE 4310-55-P