[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4333-15-P