81 FR 31 pgs. 8001-8004 - Eagle Permits; Removal of Regulations Extending Maximum Permit Duration of Programmatic Nonpurposeful Take Permits
Type: RULEVolume: 81Number: 31Pages: 8001 - 8004
Pages: 8001, 8002, 8003, 8004Docket number: [Docket No. FWS-HQ-MB-2015-0155; FF09M21200-167-FXMB123209EAGL0L2]
FR document: [FR Doc. 2016-03084 Filed 2-16-16; 8:45 am]
Agency: Interior Department
Sub Agency: Fish and Wildlife Service
Official PDF Version: PDF Version
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS-HQ-MB-2015-0155; FF09M21200-167-FXMB123209EAGL0L2]
RIN 1018-BB20
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.
[top] 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
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:
§?13.11 Application procedures.
(d) * * *
(4) * * *
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| Type of permit | CFR Citation | Permit application fee | Administration fee1 | Amendment fee |
|---|---|---|---|---|
| Migratory Bird Treaty Act | ||||
| Migratory Bird Import/Export | 50 CFR part 21 | 75 | ||
| Migratory Bird Banding or Marking | 50 CFR part 21 | No fee | ||
| Migratory Bird Scientific Collecting | 50 CFR part 21 | 100 | 50 | |
| Migratory Bird Taxidermy | 50 CFR part 21 | 100 | ||
| Waterfowl Sale and Disposal | 50 CFR part 21 | 75 | ||
| Special Canada Goose | 50 CFR part 21 | No fee | ||
| Migratory Bird Special Purpose/Education | 50 CFR part 21 | 75 | ||
| Migratory Bird Special Purpose/Salvage | 50 CFR part 21 | 75 | ||
| Migratory Bird Special Purpose/Game Bird Propagation | 50 CFR part 21 | 75 | ||
| Migratory Bird Special Purpose/Miscellaneous | 50 CFR part 21 | 100 | ||
| Falconry | 50 CFR part 21 | 100 | ||
| Raptor Propagation | 50 CFR part 21 | 100 | ||
| Migratory Bird Rehabilitation | 50 CFR part 21 | 50 | ||
| Migratory Bird Depredation | 50 CFR part 21 | 100 | 50 | |
| Migratory Bird Depredation/Homeowner | 50 CFR part 21 | 50 | ||
| Bald and Golden Eagle Protection Act | ||||
| Eagle Scientific Collecting | 50 CFR part 22 | 100 | 50 | |
| Eagle Exhibition | 50 CFR part 22 | 75 | ||
| Eagle Falconry | 50 CFR part 22 | 100 | ||
| Eagle-Native American Religion | 50 CFR part 22 | No fee | ||
| Eagle Take permits-Depredation and Protection of Health and Safety | 50 CFR part 22 | 100 | ||
| Golden Eagle Nest Take | 50 CFR part 22 | 100 | 50 | |
| Eagle Transport-Scientific or Exhibition | 50 CFR part 22 | 75 | ||
| Eagle Transport-Native American Religious Purposes | 50 CFR part 22 | No fee | ||
| Eagle Take-Associated With But Not the Purpose of an Activity | 50 CFR part 22 | 500 | 150 | |
| Eagle Take-Associated With But Not the Purpose of an Activity-Programmatic, up to 5-year tenure | 50 CFR part 22 | 36,000 | 2,600 | 1,000 |
| Eagle Take-Associated With But Not the Purpose of an Activity-Transfer of a programmatic permit | 50 CFR part 22 | 1,000 | ||
| Eagle Nest Take | 50 CFR part 22 | 500 | 150 | |
| Eagle Nest Take-Programmatic | 50 CFR part 22 | 1,000 | 500 | |
| Eagle Take-Exempted under ESA | 50 CFR part 22 | No fee | ||
| Endangered Species Act/CITES/Lacey Act | ||||
| ESA Recovery | 50 CFR part 17 | 100 | 50 | |
| ESA Interstate Commerce | 50 CFR part 17 | 100 | 50 | |
| ESA Enhancement of Survival (Safe Harbor Agreement) | 50 CFR part 17 | 50 | 25 | |
| ESA Enhancement of Survival (Candidate Conservation Agreement with Assurances) | 50 CFR part 17 | 50 | 25 | |
| ESA Incidental Take (Habitat Conservation Plan) | 50 CFR part 17 | 100 | 50 | |
| ESA and CITES Import/Export and Foreign Commerce | 50 CFR part 17 | 100 | 50 | |
| ESA and CITES Museum Exchange | 50 CFR part 17 | 100 | 50 | |
| ESA Captive-bred Wildlife Registration | 50 CFR part 17 | 200 | 100 | |
| -Renewal of Captive-bred Wildlife Registration | 50 CFR part 17 | 100 | ||
| CITES Import (including trophies under ESA and MMPA) | 50 CFR parts 17, 18, 23 | 100 | 50 | |
| CITES Export | 50 CFR part 23 | 100 | 50 | |
| CITES Pre-Convention | 50 CFR part 23 | 75 | 40 | |
| CITES Certificate of Origin | 50 CFR part 23 | 75 | 40 | |
| CITES Re-export | 50 CFR part 23 | 75 | 40 | |
| CITES Personal Effects and Pet Export/Re-export | 50 CFR part 23 | 50 | ||
| CITES Appendix II Export (native furbearers and alligators-excluding live animals) | 50 CFR part 23 | 100 | 50 | |
| CITES Master File (includes files for artificial propagation, biomedical, etc., and covers import, export, and re-export documents) | 50 CFR part 23 | 200 | 100 | |
| -Renewal of CITES Master File | 50 CFR part 23 | 100 | ||
| -Single-use permits issued on Master File | 50 CFR part 23 | 5?2 | ||
| CITES Annual Program File | 50 CFR part 23 | 50 | ||
| -Single-use permits issued under Annual Program | 50 CFR part 23 | 5?2 | ||
| CITES replacement documents (lost, stolen, or damaged documents) | 50 CFR part 23 | 50 | 50 | |
| CITES Passport for Traveling Exhibitions and Pets | 50 CFR part 23 | 75?3 | ||
| CITES/ESA Passport for Traveling Exhibitions | 50 CFR part 23 | 100?3 | ||
| CITES Introduction from the Sea | 50 CFR part 23 | 100 | 50 | |
| CITES Participation in the Plant Rescue Center Program | 50 CFR part 23 | No fee | ||
| CITES Registration of Commercial Breeding Operations for Appendix-I Wildlife | 50 CFR part 23 | 100 | ||
| CITES Request for Approval of an Export Program for a State or Tribe (American Ginseng, Certain Furbearers, and American Alligator) | 50 CFR part 23 | No fee | ||
| Import/Export License | 50 CFR part 14 | 100 | 50 | |
| Designated Port Exception | 50 CFR part 14 | 100 | 50 | |
| Injurious Wildlife Permit | 50 CFR part 16 | 100 | 50 | |
| -Transport Authorization for Injurious Wildlife | 50 CFR part 16 | 25 | ||
| Wild Bird Conservation Act (WBCA) | ||||
| Personal Pet Import | 50 CFR part 15 | 50 | ||
| WBCA Scientific Research, Zoological Breeding or Display, Cooperative Breeding | 50 CFR part 15 | 100 | 50 | |
| WBCA Approval of Cooperative Breeding Program | 50 CFR part 15 | 200 | 100 | |
| -Renewal of a WBCA Cooperative Breeding Program | 50 CFR part 15 | 50 | ||
| WBCA Approval of a Foreign Breeding Facility | 50 CFR part 15 | 250?4 | ||
| Marine Mammal Protection Act | ||||
| Marine Mammal Public Display | 50 CFR part 18 | 300 | 150 | |
| Marine Mammal Scientific Research/Enhancement/Registered Agent or Tannery | 50 CFR part 18 | 150 | 75 | |
| -Renewal of Marine Mammal Scientific Research/Enhancement/Registered Agent or Tannery | 50 CFR part 18 | 75 | ||
| 1 ?Assessed when a permit is issued. | ||||
| 2 ?Each. | ||||
| 3 ?Per animal. | ||||
| 4 ?Per species. | ||||
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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:
§?22.26 Permits for eagle take that is associated with, but not the purpose of, an activity.
(h) Permit duration. The duration of each permit issued under this section will be designated on its face, and will be based on the duration of the proposed activities, the period of time for which take will occur, the level of impacts to eagles, and mitigation measures, but will not exceed 5 years.
Dated: February 2, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-03084 Filed 2-16-16; 8:45 am]
BILLING CODE 4333-15-P