[Federal Register Volume 88, Number 17 (Thursday, January 26, 2023)]
[Rules and Regulations]
[Pages 4908-4910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01656]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2021-0140; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG14
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Northern Long-Eared Bat; Delay of Effective Date
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; delay of effective date.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are delaying
the effective date of a final rule we published on November 30, 2022,
reclassifying the northern long-eared bat (Myotis septentrionalis) as
an endangered species under the Endangered Species Act of 1973, as
amended (Act). This delay is necessary for the Service to finalize
conservation tools and guidance documents to avoid confusion and
disruption with members of the public who would be regulated by the
rule and Federal agencies in the implementation of section 7 of the
Act.
DATES: The effective date of the final rule amending 50 CFR part 17,
published November 30, 2022, at 87 FR 73488, is delayed until March 31,
2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. For access to the docket to read the November 30,
2022, final rule or other background documents, including the comments
received on that final rule, go to https://www.regulations.gov and
search for Docket No. FWS-R3-ES-2021-0140.
FOR FURTHER INFORMATION CONTACT: Shauna Marquardt, Field Supervisor,
U.S. Fish and Wildlife Service, Minnesota--Wisconsin Ecological
Services Field Office, 4101 American Boulevard East, Bloomington, MN
55425; telephone 952-252-0092. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
I. Background
On November 30, 2022, we published in the Federal Register (87 FR
73488) a final rule reclassifying the northern long-eared bat as an
endangered species under the Act (16 U.S.C. 1531 et seq.). The rule was
to be effective on January 30, 2023. However, with this rule, we are
delaying the effective date to March 31, 2023, without opportunity for
public comment. This delay will allow us to finalize conservation tools
and guidance documents, thereby preventing confusion and disruption
with other Federal agencies under section 7 of the Act.
Currently, the northern long-eared bat is listed as a threatened
species under the Act (see 80 FR 17974; April 2, 2015) with a species-
specific rule issued under section 4(d) of the Act (hereafter,
``section 4(d) rule'') (see 81 FR 1900; January 14, 2016). When the
November 30, 2022, final rule goes into effect, the reclassification of
the northern long-eared bat to an endangered species will nullify the
section 4(d) rule that currently tailors prohibitions and exceptions to
the prohibitions necessary and advisable for the species. We recognize
that the change to endangered status will result in questions and
concerns about establishing compliance under the Act for forestry, wind
energy, infrastructure, and many other projects within the 37 States
that comprise the range of the northern long-eared bat. We are
committed to working proactively with stakeholders to conserve and
recover northern long-eared bats while reducing impacts to landowners,
where possible and practicable. Thus, we are working to finalize tools
that will help guide project managers through section 7 consultation
once the reclassification of the northern long-eared bat takes effect
to prevent delay for projects currently reviewed under the section 4(d)
rule. We are also developing an online determination key that will
provide predetermined consultation outcomes and automatic project
concurrence for some projects as well as voluntary guidance for wind
facilities and private activities that involve habitat modification.
Delaying the effective date will allow us to finalize these documents
and communicate with external partners.
Over the last 3 years, we have completed consultation under section
7(a)(2) of the Act on 24,480 projects across the 37-State range for the
northern long-eared bat. Many of these projects are not complete. Under
the 4(d) rule, incidental take of the northern long-eared bat was not
prohibited except in certain situations. With the final rule
reclassifying the northern long-eared bat as endangered, incidental
take of the species that is reasonably certain to occur as a result of
some of these actions would now be prohibited, absent an incidental
take statement (ITS) from the Service in accordance with section
7(o)(2) of the Act. Therefore, when the final rule becomes effective,
numerous Federal agencies will need to reinitiate consultation with the
Service, and the Service must develop and provide biological opinions
and incidental take statements with terms and conditions to ensure any
taking of the northern long-eared bat that occurs as a result of each
of the subject actions is not a prohibited taking
[[Page 4909]]
or likely to jeopardize the species. These projects would halt while
the Service and the Federal action agency reinitiate consultation,
which would affect projects covering the breadth of the species' 37-
State range and nearly all aspects of the U.S. economy, including
agriculture (i.e., crop production, animal feeding operations, grazing,
irrigation), infrastructure (i.e., power generation and transmission,
roads, bridges, communication towers, dams, levees, pipelines,
wastewater treatment, water supply), residential and commercial
development, forestry, military operations, and mining.
To date, we are aware of 3,095 projects for which we will need to
provide an ITS when the November 30, 2022, reclassification rule goes
into effect and the section 4(d) rule is nullified. These projects
include road and bridge construction and maintenance projects across
the 37-State range and forest management activities intended to prevent
wildfires and sustain the health, diversity, and productivity of the
Nation's forests, which also provide important northern long-eared bat
habitat. This number does not include new projects or ongoing projects,
of the 24,480 previously mentioned, that may be impacted by a lack of
the conservation tools and guidance documents that are currently under
development. Without these final tools in place, many new and existing
projects that require consultation will likely experience project
delays. The tools and guidance documents will also help private
landowners evaluate their risk of taking northern long-eared bats;
therefore, non-Federal projects may also be delayed as entities
determine whether or not they need take coverage for their activities
under section 10(a)(1)(B) of the Act. We would not be meeting the
intent of the Act to provide required protections for listed species,
and our agency's ``due and timely execution of its functions'' under
the Act would be unavoidably prevented.
This 60-day delay of the effective date of the November 30, 2022,
final rule (87 FR 73488)--based on the good cause articulated below--is
for the purpose of preventing confusion and disruption for Federal
agencies in the implementation of section 7 of the Act. During this
period, we will finalize the guidance and tools that are under
development and communicate with external partners to minimize project
delays. We are, therefore, delaying the effective date of the final
rule from January 30, 2023, to March 31, 2023.
II. Good Cause Under the Administrative Procedure Act
Our delay of the effective date of the reclassification of the
northern long-eared bat as an endangered species from January 30, 2023,
to March 31, 2023, without opportunity for public comment, effective
immediately upon publication of this document in the Federal Register,
is based on the good-cause exception provided in the Administrative
Procedure Act (APA). Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), we have
determined that good cause exists to forgo the requirements to provide
prior notice and an opportunity for public comment on this 60-day delay
of the effective date of the November 30, 2022, final rule (87 FR
73488), and to make this action announcing the delay effective
immediately. Under the totality of the circumstances presented here,
notice and comment would be both impracticable and contrary to the
public interest because it would prevent the Service from performing
its functions, create confusion and disruption in the Act's section
7(a)(2) consultation process and result in unnecessary delays in
project reviews. These unintended consequences would thwart the
conservation purposes of the Act. See Purdue Univ. v. Scalia, No. CV-
20-3006 (EGS), 2020 WL 7340156, at 8 (D.D.C. Dec. 14, 2020).
As noted above, we are currently developing tools that will aid in
the conservation and recovery of the northern long-eared bat. These
tools are necessary to for the Service to review a large number of
projects in a short period of time and ensure that projects proceed
while necessary and appropriate conservation measures are implemented.
Our agency's ``due and timely execution of its functions'' under the
Act would be unavoidably prevented if we allow the effective date to be
triggered without the conservation tools and guidance described above.
See S. Doc. No. 248, 79th Cong., 2d Sess. At 200 (1946). That is, if
the November 30, 2022, final rule reclassifying the northern long-eared
bat as an endangered species under the Act (87 FR 73488) becomes
effective on January 30, 2023, the 4(d) rule will be nullified and a
large number of projects will require re-initiation of consultation
under section 7(a)(2) of the Act without proper guidance in place to
streamline consultation while ensuring consistent application of
measures for the conservation of the northern long-eared bat. Thus, at
least 3,095 ongoing projects will be suspended and planned projects
delayed, and we will not have met our obligations under the Act to
provide required protections for listed species. See Tennessee Valley
Authority v. Hill, 437 U.S. 153, 174 (1978) (in enacting the Act, it is
``beyond doubt that Congress intended endangered species to be afforded
the highest of priorities'').
Specifically, once the reclassification becomes effective, Federal
agencies will have to work with the Service to determine whether and
for which actions we need to provide an ITS per 50 CFR 402.14(i)(1)
while also ensuring that these actions are not likely to jeopardize the
species. The ITS would include terms and conditions for the Federal
agencies to implement to ensure that the taking of the northern long-
eared bat that occurs is not a prohibited taking when the November 30,
2022, final rule becomes effective. A lack of tools and guidance that
would streamline consultations could lead to confusion and disruption
for Federal agencies with follow-on effects to Federal contractors and
any project receiving Federal funds. Even if the November 30, 2022,
final rule were to become effective only briefly during a public
comment period, the level of uncertainty with respect to the Service's
conservation direction would cause significant confusion and disruption
in the section 7(a)(2) consultation process and impede the Federal
agencies from executing their conservation mandates. We also expect
confusion and project delays for non-Federal projects as entities
determine whether or not they need take coverage for their activities
under section 10(a)(1)(B) of the Act. The tools and guidance documents
will also help private landowners evaluate their risk of taking
northern long-eared bats.
In sum, we find that the totality of the circumstances here--the
potential for many projects to be delayed and the threat to the
Service's execution of its statutory functions, among other issues--
indicate that there is good cause to forgo notice and comment
procedures. It is impractical and contrary to the public interest for
the Service to provide notice and an opportunity to comment on a 60-day
delay of the effective date of January 30, 2023, for the November 30,
2022, final rule (87 FR 73488).
We also find that there is good cause to make this rule effective
immediately instead of waiting until 30 days after publication for it
to become effective. The APA normally requires this 30-day ``grace
period'' to give affected parties time to adjust their behavior before
a final rule takes effect. See, e.g., Riverbend Farms, Inc. v. Madigan,
958 F.2d 1479, 1485 (9th Cir. 1992). However, the APA provides an
exception to this 30-day grace period for
[[Page 4910]]
good cause (5 U.S.C. 553(d)). There is good cause to allow this 60-day
delay of the November 30, 2022, final rule's effective date to go into
effect immediately because the November 30, 2022, final rule would go
into effect on January 30, 2023, if this rule delaying the effective
date were itself not to become effective for 30 days. That result would
create the same issues as discussed above, i.e., prevent the Service
from performing its functions, create confusion and disruption in the
Act's section 7(a)(2) consultation process, result in unnecessary
delays in project approvals, and thwart the conservation purposes of
the Act. Additionally, the northern long-eared bat is unlikely to be
harmed by this delay because the species will continue to be protected
under the Act as a threatened species and it is hibernating throughout
the vast majority of its range (typically through the end of March)
during this time.
We, therefore, conclude that we have good cause to issue this final
rule, effective immediately, delaying the effective date of the
November 30, 2022, final rule (87 FR 73488) from January 30, 2023, to
March 31, 2023.
III. Authority
The authorities for this action are 16 U.S.C. 1361-1407, 1531-1544,
and 4201-4245, unless otherwise noted; and 5 U.S.C. 551 et seq.
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-01656 Filed 1-25-23; 8:45 am]
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