Federal Register / Vol. 83, No. 136 / Monday, July 16, 2018 / Rules and Regulations 32805 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

[Docket No. FWS–HQ–MB–2017–0091; 

FF09M21200–189–FXMB12320900000] 

RIN 1018–BC12 

Migratory Bird Permits; Removal of 

Depredation Orders for DoubleCrested Cormorants To Protect 

Aquaculture Facilities and Public 

Resources 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, are issuing this final 

rule to comply with a court order that 

vacated provisions of regulations 

governing control of depredating 

double-crested cormorants at 

aquaculture facilities and for control of 

double-crested cormorants to protect 

public resources. Pursuant to the U.S. 

District Court for the District of 

Columbia order dated May 25, 2016, 

this rule removes regulatory provisions 

that allowed take of double-crested 

cormorants at aquaculture facilities and 

to protect public resources without the 

need for a permit. 

DATES: This action is effective July 16, 

2018. 

ADDRESSES: This final rule is available 

on the internet at http://

www.regulations.gov at Docket No. 

FWS–HQ–MB–2017–0091. 

FOR FURTHER INFORMATION CONTACT: Ken 

Richkus, Acting Chief, Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service, 5275 Leesburg 

Pike, Falls Church, Virginia 22041– 

3803, telephone (703) 358–1780. 

Individuals who are hearing impaired or 

speech impaired may call the Federal 

Relay Service at 1–800–877–8337 for 

TTY assistance. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Fish and Wildlife Service 

(Service) is delegated the primary 

responsibility of conserving migratory 

birds through protection, restoration, 

and management. This delegation is 

authorized by the Migratory Bird Treaty 

Act (MBTA) (16 U.S.C. 703 et seq.), 

which implements conventions with 

Great Britain (for Canada), Mexico, 

Japan, and Russia. We implement the 

provisions of the MBTA through 

regulations in parts 10, 13, 20, 21, and 

22 of title 50 of the Code of Federal 

Regulations (CFR). 

Regulations pertaining to migratory 

bird permits are at 50 CFR part 21. 

Subpart D of part 21 contains 

regulations for the control of 

depredating birds. Depredation and 

control orders authorize the take of 

specific species of migratory birds for 

specific purposes without a Federal 

depredation permit, as long as the 

control and depredation actions comply 

with the regulatory requirements of the 

order. 

The two depredation orders at issue 

in this final rule—the Aquaculture 

Depredation Order (‘‘AQDO’’), at 50 

CFR 21.47, and the Public Resource 

Depredation Order (‘‘PRDO’’), at 50 CFR 

21.48 (collectively, the ‘‘Orders’’)—have 

been reissued every 5 years since their 

initial promulgation in 1998 and 2003, 

respectively. The AQDO was adopted by 

the Service in 1998 in response to 

complaints that the fish-eating habits of 

the cormorants were becoming 

increasingly costly to aquaculture and 

other industries. The AQDO authorized 

‘‘landowners, operators, and tenants 

actually engaged in the production of 

commercial freshwater aquaculture 

stocks (or their employees or agents)’’ in 

certain States to take cormorants ‘‘when 

found committing or about to commit 

depredations to aquaculture stocks’’ (63 

FR 10550, March 4, 1998). The authority 

granted by the AQDO would 

‘‘automatically expire on April 30, 2005, 

unless revoked or specifically extended 

prior to that date.’’ 

In 1999, in response to continued 

complaints, the Service issued a notice 

of intent to develop a national 

cormorant plan. See Migratory Bird 

Permits; Notice of Intent To Prepare an 

Environmental Impact Statement and 

National Management Plan for the 

Double-Crested Cormorant (64 FR 

60826, November 8, 1999). In 2003 the 

agency issued a final environmental 

impact statement (EIS), which presented 

six alternatives for the management of 

double-crested cormorants: (1) No 

action (continuation of existing 

management practices); (2) only 

nonlethal management techniques; (3) 

expansion of existing management 

policies; (4) a new depredation order; 

(5) reduction of regional cormorant 

populations; and (6) frameworks for a 

cormorant hunting season. See 

Migratory Bird Permits; Regulations for 

Double-Crested Cormorant Management 

(68 FR 58022, October 8, 2003). The EIS 

recommended the fourth of these 

alternatives: Issuance of a new 

depredation order. Accordingly, the 

Service promulgated the PRDO, which 

authorized 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 to 

‘‘take,’’ without a permit, cormorants 

found committing or about to commit 

depredations on the public resources of 

fish, wildlife, plants, and their habitats. 

Both orders, issued in 2003, would 

expire on April 30, 2009. 

In 2009, the two depredation orders 

were reissued for another 5 years. See 

Migratory Bird Permits; Revision of 

Expiration Dates for Double-Crested 

Cormorant Depredation Orders (74 FR 

15394, April 6, 2009). Finally, in 2014, 

both orders were reissued until June 30, 

2019. See Migratory Bird Permits; 

Extension of Expiration Dates for 

Double-Crested Cormorant Depredation 

Orders (79 FR 30474, May 28, 2014). 

The 2014 final rule was accompanied by 

an environmental assessment (EA). 

On May 25, 2016, the U.S. District 

Court for the District of Columbia 

vacated the two depredation orders 

(Pub. Emps. for Envtl. Responsibility v. 

U.S. Fish & Wildlife Serv., 189 F. Supp. 

3d 1 (D.D.C. 2016)). The Court 

concluded that the Service failed to 

consider a reasonable range of 

alternatives in the 2014 EA and directed 

the Service to take ‘‘a hard look’’ at the 

effects of the depredation orders on 

double-crested cormorant populations 

and other affected resources. Finally, 

the Court ordered that the Service 

perform a new and legally adequate EA 

or EIS under the National 

Environmental Policy Act. 

Administrative Procedure 

This rulemaking is necessary to 

comply with the May 25, 2016, court 

order. Therefore, under these 

circumstances, we have determined, 

pursuant to 5 U.S.C. 553(b)(3)(B), that 

prior notice and opportunity for public 

comment are impractical and 

unnecessary. Public opportunity for 

comment is simply not required when 

an agency amends a regulation to 

comply with a court order. When an 

agency removes regulatory provisions 

set aside by a court order, that action is 

ministerial in nature and allows for no 

discretion on the part of the agency. 

We have further determined, pursuant 

to 5 U.S.C. 553(d)(3), that the agency has 

good cause to make this rule effective 

upon publication, which is to comply 

with the District Court’s order as soon 

as practicable. 

List of Subjects in 50 CFR Part 21 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 


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32806 Federal Register / Vol. 83, No. 136 / Monday, July 16, 2018 / Rules and Regulations 

Regulation Promulgation 

To comply with the court order and 

mandate discussed above, we amend 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 21—MIGRATORY BIRD PERMITS 

■ 1. Remove the second authority 

citation for part 21. 

■ 2. The remaining authority citation for 

part 21 continues to read as follows: 

Authority: 16 U.S.C. 703–712. 

§§ 21.47 and 21.48 [Removed and 

Reserved] 

■ 3. Remove and reserve §§ 21.47 and 

21.48. 

Dated: June 15, 2018. 

Susan Combs, 

Senior Advisor to the Secretary, Exercising 

the Authority of the Assistant Secretary for 

Fish and Wildlife and Parks. 

[FR Doc. 2018–15103 Filed 7–13–18; 8:45 am] 

BILLING CODE 4333–15–P 


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