[Federal Register Volume 83, Number 136 (Monday, July 16, 2018)]
[Rules and Regulations]
[Pages 32805-32806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15103]



[[Page 32805]]

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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 Double-
Crested Cormorants To Protect Aquaculture Facilities and Public 
Resources

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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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.

[[Page 32806]]

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

0
1. Remove the second authority citation for part 21.


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

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


Sec. Sec.  21.47 and 21.48  [Removed and Reserved]

0
3. Remove and reserve Sec. Sec.  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]
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