Permits for Incidental Take of Eagles and Eagle Nests; Correction and Technical Amendment

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 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-km² 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 § 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 § 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.

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:

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. In § 13.11, amend the table in paragraph (d)(4) by revising the column headings and the four table footnotes to read as follows:

(d) * * *

(4) * * *