[Federal Register Volume 89, Number 201 (Thursday, October 17, 2024)]
[Rules and Regulations]
[Pages 83629-83631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23973]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS-HQ-MB-2020-0023; FF09M30000-245-FXMB12320900000]
RIN 1018-BE70
Permits for Incidental Take of Eagles and Eagle Nests; Correction
and Technical Amendment
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; correction and technical amendment.
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SUMMARY: We, the U.S. Fish and Wildlife Service, correct and amend a
final rule that revised the regulations for the issuance of permits for
eagle incidental take and eagle nest take. A provision of the
regulations in the final rule specifies eligibility criteria for
general permits for wind energy projects based on eagle relative
abundance and proximity to eagle nests. We have become aware of
confusion on the part of some general permit applicants regarding this
provision in the regulations. Accordingly, this document revises the
regulatory text of the final rule to ensure clarity. In addition, the
final rule inadvertently resulted in errors regarding footnotes to a
table. This document corrects those errors. For the convenience of the
public, we also provide information to access the Service's online
mapping tool for general permit eligibility.
DATES: This rule is effective October 17, 2024.
ADDRESSES: The final rule and supplemental documents, including an
environmental assessment, list of references cited, technical
appendices, and public comments received, are available at https://www.regulations.gov in Docket No. FWS-HQ-MB-2020-0023. Documents and
additional information can also be found at: https://www.fws.gov/regulations/eagle.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director--
Migratory Birds Program, U.S. Fish and Wildlife Service, telephone:
(703) 358-2606, email: [email protected]. 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:
Background
On February 12, 2024, under the authority of the Bald and Golden
Eagle Protection Act (16 U.S.C. 668-668d; hereafter, the ``Eagle
Act''), the U.S. Fish and Wildlife Service published a final rule to
revise the regulations in title 50 of the Code of Federal Regulations
(CFR) that govern the issuance of permits for eagle incidental take and
eagle nest take (89 FR 9920). That rule created general permits for
certain activities under prescribed conditions, including general
permit options for qualifying wind energy generation projects. While
the rule primarily pertained to the regulations in 50 CFR part 22,
Eagle Permits, the rule also included revisions to 50 CFR part 13,
General Permit Procedures.
Correction
The February 12, 2024, final rule (89 FR 9920) resulted in improper
codification of the footnotes to a table at 50 CFR 13.11(d)(4). This
rule corrects the errors described below.
Prior to the rule becoming effective on April 12, 2024, the table
at 50 CFR 13.11(d)(4) had four footnotes, the first of which was
indicated by a superscript 1 in a column heading: ``Administration
fee.\1\ ''
In the February 12, 2024, final rule, the amendatory instruction
for revising the table at 50 CFR 13.11(d)(4) (appearing at 89 FR 9956
as amendatory instruction 3) was written erroneously. The amendatory
instruction correctly included an instruction to revise footnote 1;
however, it did not include an instruction to revise the column
headings to add a superscript for footnote 1 to an additional column
heading (i.e., ``Permit application fee'').
Moreover, the corresponding text below the amendatory instruction
erroneously displayed the headings for the table with these column
headings: ``Permit application fee \1\'' and ``Administration fee \2\''
and included accompanying footnotes 1 and 2 at the end of the table.
However, these indicated revisions were in error as footnote 2 already
occurs in the table under the subheading ``Endangered Species Act/
CITES/Lacey Act'' and should not have been revised via this final rule.
In addition to these errors in the final rule, the codification of
the final rule's changes to the footnotes to the table at 50 CFR
13.11(d)(4) resulted in errors. As codified in the e-CFR (https://www.ecfr.gov/), the table as now displayed includes only footnotes 3
and
[[Page 83630]]
4; footnotes 1 and 2 no longer appear below the table.
Accordingly, this document revises the table at 50 CFR 13.11(d)(4)
to indicate that both the column headings for ``Permit application
fee'' and ``Administration fee'' include a superscript for footnote 1.
This document also sets forth correct text for footnote 1 and
reinstates footnote 2, which was erroneously removed during the
codification process for the final rule. These revisions are procedural
in nature and not substantive. The sentences set forth in the rule
portion of this document for footnote 1 are verbatim as had been set
forth for footnotes 1 and 2 in the final rule; the only change is that,
in this document, those sentences are now combined to form a single
footnote.
Technical Amendment
Under the regulations set forth in the final rule at 50 CFR 22.250,
the eligibility criteria for the Service to issue a general permit for
wind energy generation projects include a combination of eagle relative
abundance in the project area and proximity to eagle nests. Relative-
abundance thresholds are the basis for our determination that general
permits are compatible with the preservation of eagles, as required by
the Eagle Act and our implementing regulations. The Service used the
best available information to derive relative-abundance thresholds that
determine whether wind energy projects are eligible for a general
permit. That information consists of the Cornell Lab of Ornithology's
Status and Trends definition of ``relative abundance'' and relative-
abundance products derived from eBird data (Cornell Lab of Ornithology,
Ithaca, New York, available at: https://science.ebird.org/en/status-and-trends).
Eligibility for general permits must be determined as described in
the environmental assessment (EA) that accompanied the final rule. The
eagle relative-abundance threshold values published in the final rule
were calculated based on the Cornell Lab of Ornithology's eagle
relative-abundance data and products. Thresholds are therefore
applicable only to relative-abundance estimates from 2020 that consider
detection rates, topography, and habitat and represent the coterminous
United States at a 3-km\2\ resolution for the pre-breeding migration,
breeding, post-breeding migration, and non-breeding seasons for bald
eagles and golden eagles. This information and these data sources are
described in detail in appendix A of the final EA for the rule,
available at https://www.regulations.gov/document/FWS-HQ-MB-2020-0023-9352.
To ensure that all general permits are consistent with the
statute's preservation standard, general permit eligibility must be
determined using eagle relative-abundance data and products from 2020.
While we view this requirement as the logical and clearly expressed
intent in the final rule and accompanying EA, we have learned that some
members of the public have not understood this requirement.
Accordingly, in this rule we revise the regulatory text at Sec.
22.250(c)(1)(ii) by adding text to explicitly communicate the
requirement that eagle relative-abundance data and products from 2020
must be used to determine general permit eligibility for wind projects.
We are making no change to the second eligibility requirement, the
proximity to eagle nests at the time of application, which appears at
Sec. 22.250(c)(1)(i). This determination must be based on recent nest
survey(s). Project proponents are expected to survey for eagle nests
with due diligence and in accordance with any Service guidance for nest
surveys.
We encourage applicants to determine project eligibility using a
mapping tool produced by the Service. We created an online mapping tool
to help project proponents quickly determine eagle relative abundance
and permit eligibility. You may access the permit-eligibility map at
https://www.sciencebase.gov/catalog/item/6584c3ded34eff134d42da68.
Administrative Procedure
Generally, the Administrative Procedure Act (APA) requires a
Federal agency to provide the public with notice and an opportunity to
comment on agency rulemakings. 5 U.S.C. 553(b). The APA, however,
creates an exception in case where an agency for good cause determines
``that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' Id. at 553(b)(3)(B).
Pursuant to 5 U.S.C. 553(b)(3)(B), we find good cause that prior notice
and opportunity for public comment are unnecessary for this rule
because it serves merely to correct errors and better communicate
existing requirements in the original rule. This rule amendment will
help to ensure efficient and accurate permit processing and does not
alter existing rights or change existing requirements in the rule that
it modifies; therefore, public comment would not inform this process in
any meaningful way.
Furthermore, the APA generally provides that a final rule may not
become effective until at least 30 days after its publication in the
Federal Register unless the agency determines that good cause exists to
dispense with this requirement under 5 U.S.C. 553(d)(3). Here, we have
good cause to make this rule effective upon publication. Because some
members of the public have failed to understand the correct eligibility
criteria, it is important for the proper administration of our programs
that we clarify the correct requirements in the Code of Federal
Regulations as soon as possible so that the regulations clearly and
accurately inform permit applicants how they can properly determine
compliance with eligibility criteria. Therefore, a 30-day waiting
period until this rule becomes effective would serve no purpose for the
Service or the regulated community and would only extend any potential
confusion over the existing rule's eligibility criteria.
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
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
Accordingly, we hereby amend parts 13 and 22 of subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 13--GENERAL PERMIT PROCEDURES
0
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.
0
2. In Sec. 13.11, amend the table in paragraph (d)(4) by revising the
column headings and the four table footnotes to read as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) * * *
* * * * *
[[Page 83631]]
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Permit application Administration fee
Type of permit CFR citation fee \1\ \1\ Amendment fee
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\1\ A reimbursable agreement may be required for specific eagle permits to cover the costs above estimated staff-
hours. An administration fee will be assessed at the time of application, in addition to the application fee.
\2\ Each.
\3\ Per animal.
\4\ Per species.
* * * * *
PART 22--EAGLE PERMITS
0
3. The authority citation for part 22 continues to read as follows:
Authority: 16 U.S.C. 668-668d; 703-712; 1531-1544.
0
4. Amend Sec. 22.250 by revising and republishing paragraph (c)(1)(ii)
to read as follows:
Sec. 22.250 Permits for incidental take of eagles by wind energy
projects.
* * * * *
(c) * * *
(1) * * *
(ii) Located in areas characterized by seasonal relative-abundance
values that are less than the relative-abundance values for the date
range for each species in tables 1 and 2, as determined by using
relative-abundance data from 2020. Eligibility determinations must be
based on 2020 relative-abundance estimates that consider detection
rates, topography, and habitat and represent the coterminous United
States at a 3-km\2\ resolution for the pre-breeding migration,
breeding, post-breeding migration, and non-breeding seasons for bald
eagles and golden eagles. Use of the following data and products
satisfy the requirements of this paragraph (c)(1)(ii):
(A) Cornell Lab of Ornithology relative-abundance data and products
for bald eagles and golden eagles from 2020, published in 2021.
(B) [Reserved]
Table 1 to Paragraph (c)(1)(ii)--Relative-Abundance Value Thresholds for
Bald Eagles Throughout the Year
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Date range Bald eagle relative abundance
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1. February 15-May 23................. 0.821
2. May 24-July 19..................... 0.686
3. July 20-December 20................ 0.705
4. December 21-February 14............ 1.357
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Table 2 to Paragraph (c)(1)(ii)--Relative-Abundance Value Thresholds for
Golden Eagles Throughout the Year
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Date range Golden eagle relative abundance
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1. February 8-June 6.................. 0.081
2. June 7-August 30................... 0.065
3. August 31-December 6............... 0.091
4. December 7-February 7.............. 0.091
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* * * * *
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-23973 Filed 10-16-24; 8:45 am]
BILLING CODE 4333-15-P