Eagle Permits; Removal of Regulations Extending Maximum Permit Duration of Programmatic Nonpurposeful Take Permits

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are issuing this final rule to comply with a court order that had the effect of vacating provisions of regulations governing eagle nonpurposeful take permits that extended the maximum term of programmatic permits to 30 years. Pursuant to the U.S. District Court for the Northern District of California's order dated August 11, 2015, and subsequent order amending judgment dated September 16, 2015, this rule removes regulatory provisions that extended maximum programmatic permit duration1 to 30 years and reinstates the previous 5-year limit.

DATES:

This action is effective February 17, 2016.

ADDRESSES:

This final rule is available on the Internet at http://www.regulations.gov at Docket No. FWS-HQ-MB-2015-0155. It will also be available for inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Headquarters Office, 5275 Leesburg Pike, Falls Church, Virginia 22041-3803. Call (703) 358-2329 to make arrangements.

FOR FURTHER INFORMATION CONTACT:

Eliza Savage, Eagle Program Manager, at the Headquarters Office (see ADDRESSES) or telephone (703) 358-2329. 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

In 2009, the Service published a rule authorizing the incidental take of eagles under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) (74 FR 46836, September 11, 2009). The rule authorized programmatic permits to cover long-term, incidental take of eagles by individual projects, including wind-energy facilities. On December 9, 2013, the Service published a rule to extend the maximum tenure for programmatic permits for nonpurposeful take of eagles from 5 to 30 years (78 FR 73704). The change was intended to promote the responsible development of projects that will be in operation for many decades and bring them into compliance with statutory mandates protecting eagles. In addition to extending the maximum term of programmatic permits, the rule added provisions for 5-year evaluations of longer term permits, increased the permit application processing fees for programmatic eagle permits, and provided permit transfer and right-of-succession for eagle nonpurposeful take permits.

In 2014, a lawsuit was filed challenging the 2013 rule on the basis that the Service improperly excluded analysis of any environmental effects of the rule under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) by invoking one of the Department's categorical exclusions. The plaintiffs also argued that the Service had not adequately consulted under section 7 of the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.).

On August 11, 2015, the Northern District of California ruled in favor of the plaintiffs on the NEPA claim (but not the ESA claim) and set aside the 2013 rulemaking (Shearwater v. Ashe, (N. D. Cal. 2015) No.14-CV-02830-LHK (N. Dist. Ca, Aug. 11, 2015)). In a subsequent order, the judge clarified that the ruling applied only to the provisions of the rule challenged by plaintiffs, namely those provisions directly related to extending the tenure of eagle incidental take permits from 5 to 30 years (Shearwater v. Ashe, No. 5:14-cv-02830 LHK (Sep. 16, 2015)). Therefore, this rule removes only the provisions related to increasing permit tenure and not the other provisions of the December 9, 2013, final rule.

Administrative Procedure

This rulemaking is necessary to comply with the August 11, 2015, court order and September 16, 2015, clarification. 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. Thus, public comment could not inform this process in any meaningful way. Moreover, this amendment will effectively reinstate provisions that were part of the earlier 2009 rulemaking, which complied with public notice and comment rulemaking procedures, rendering further notice and comment on those reinstated provisions unnecessary. 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

50 CFR Part 13

• Administrative practice and procedure
• Exports
• Fish
• Imports
• Plants
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

50 CFR Part 22

• Birds
• Exports
• Imports
• Migratory birds
• Reporting and recordkeeping requirements
• Transportation
• Wildlife

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 13—GENERAL PERMIT PROCEDURES

1. The authority citation for part 13 continues to read as follows:

Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31 U.S.C. 9701.

2. Revise the table in § 13.11(d)(4) to read as set forth below:

PART 22—EAGLE PERMITS

3. The authority citation for part 22 continues to read as follows:

Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C. 1531-1544.

4. Amend § 22.26 as follows:

a. By removing paragraph (h);

b. By redesignating paragraphs (i) and (j) as paragraphs (h) and (i); and

c. By revising the newly designated paragraph (h) to read as set forth below: