[Federal Register Volume 78, Number 42 (Monday, March 4, 2013)]
[Rules and Regulations]
[Pages 14022-14023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04932]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2013-0035; FXES11130900000C6-134-FF09E30000]
RIN 1018-AZ31


Endangered and Threatened Wildlife and Plants; Reinstatement of 
Removal of the Virginia Northern Flying Squirrel From the List of 
Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing 
this final rule to comply with a court order that has the effect of 
reinstating the removal of the Virginia northern flying squirrel 
(Glaucomys sabrinus fuscus) from the List of Endangered and Threatened 
Wildlife under the Endangered Species Act of 1973 (ESA), as amended. 
Pursuant to the District of Columbia District Court of Appeals order 
dated August 17, 2012, and mandate dated November 13, 2012, this rule 
again removes the Virginia northern flying squirrel from the List of 
Endangered and Threatened Wildlife.

DATES: This action is effective March 4, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. It will also be available for inspection, by 
appointment, during normal business hours at U.S. Fish and Wildlife 
Service, West Virginia Field Office, 694 Beverly Pike, Elkins, West 
Virginia 26241. Call (304) 636-6586 to make arrangements.

FOR FURTHER INFORMATION CONTACT: Deborah Carter, Project Leader, at our 
West Virginia field office (see ADDRESSES) or telephone (304) 636-6586, 
extension 12. 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

    On August 26, 2008, we published a final rule to remove ESA 
protections for the Virginia northern flying squirrel, more commonly 
known as the West Virginia northern flying squirrel (WVNFS) (73 FR 
50226). Additional background information on the WVNFS, including 
previous Federal actions, can be found in our August 26, 2008, final 
rule, http://www.regulations.gov in Docket No. FWS-R5-ES-2011-0035, or 
at http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A09R.
    A lawsuit challenging our final rule was filed in U.S. District 
Court for the District of Columbia. On March 25, 2011, the U.S. 
District Court for the District of Columbia vacated and set aside our 
2008 delisting rule (Friends of Blackwater, et al. v. Salazar, et al., 
772 F.Supp. 2d 232 (D.D.C. 2011)). On May 20, 2011, the Department of 
Justice on behalf of the Service appealed the District Court's decision 
to the U.S. Court of Appeals for the District of Columbia Circuit. 
Pending the appeal, and consistent with the District Court's March 25, 
2011, order, we published a final rule reinstating ESA protections for 
the WVNFS (76 FR 35349, June 17, 2011).
    On August 17, 2012, the U.S. Court of Appeals, in a two-to-one 
opinion, reversed the ruling of the U.S. District Court (Friends of 
Blackwater, et al. v. Salazar, et al., 691 F.3d 428 (DC Cir. 2012)). On 
September 28, 2012, Friends of Blackwater et al. petitioned the U.S. 
Court of Appeals for a rehearing and a rehearing en banc, which were 
both denied on November 1, 2012 (Friends of Blackwater, et al. v. 
Salazar, et al., DC Cir., No: 11-5128). On November, 13, 2012, the U.S. 
Court of Appeals issued its mandate consistent with its August 17, 
2012, opinion reversing the U.S. District Court's vacatur of the WVNFS 
delisting rule. On January 30, 2013, Friends of Blackwater et al.'s 
time to file a petition for a writ of certiorari with the U.S. Supreme 
Court expired.

Administrative Procedure

    This rulemaking is necessary to comply with the August 17, 2012, 
court order and November 13, 2012, mandate. Therefore, under these 
circumstances, the Director has determined, pursuant to 5 U.S.C. 
553(b)(3)(B), that prior notice and opportunity for public comment are 
impractical and unnecessary. The Director has further determined, 
pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make 
this rule effective upon publication.

Effects of the Rule

    As of the publication of this rule, the WVNFS is again removed from 
the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h). 
Therefore, this species will no longer receive Federal protection under 
the ESA. This rule will not affect the status of the WVNFS under State 
law or suspend any other legal protections provided by State law.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    To comply with the court order and mandate discussed above, we 
amend part 17, subchapter B of chapter I, title 50 of the CFR, as set 
forth below:

[[Page 14023]]

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.


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2. Amend Sec.  17.11(h) by removing the entry for ``Squirrel, Virginia 
northern flying'' under ``MAMMALS'' from the List of Endangered and 
Threatened Wildlife.

    Dated: February 25, 2013.
Rowan W. Gould,
Deputy Director, Fish and Wildlife Service.
[FR Doc. 2013-04932 Filed 3-1-13; 8:45 am]
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