Rule2023-01290
Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken; Threatened Status With Section 4(d) Rule for the Northern Distinct Population Segment and Endangered Status for the Southern Distinct Population Segment; Delay of Effective Date
Primary source
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Published
January 24, 2023
Effective
November 25, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), are delaying the effective date of a final rule we published on November 25, 2022, and corrected on December 2, 2022, listing two distinct population segments (DPSs) of the lesser prairie-chicken (Tympanuchus pallidicinctus) under the Endangered Species Act of 1973, as amended (Act) and establishing measures that are necessary and advisable to provide for the conservation of the Northern DPS pursuant to section 4(d) of the Act. This delay is necessary for the Service to finalize conservation tools and guidance documents to avoid confusion and disruption with Federal agencies in the implementation of section 7 of the Act and to avoid disruption to the public who would be regulated by the rule.
Full Text
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<title>Federal Register, Volume 88 Issue 15 (Tuesday, January 24, 2023)</title>
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[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Rules and Regulations]
[Pages 4087-4089]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01290]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0015; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BB27
Endangered and Threatened Wildlife and Plants; Lesser Prairie-
Chicken; Threatened Status With Section 4(d) Rule for the Northern
Distinct Population Segment and Endangered Status for the Southern
Distinct Population Segment; Delay of Effective Date
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; delay of effective date.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are delaying
the effective date of a final rule we published on November 25, 2022,
and corrected on December 2, 2022, listing two distinct population
segments (DPSs) of the lesser prairie-chicken (Tympanuchus
pallidicinctus) under the Endangered Species Act of 1973, as amended
(Act) and establishing measures that are necessary and advisable to
provide for the conservation of the Northern DPS pursuant to section
4(d) of the Act. This delay is necessary for the Service to finalize
conservation tools and guidance documents to avoid confusion and
disruption with Federal agencies in the implementation of section 7 of
the Act and to avoid disruption to the public who would be regulated by
the rule.
DATES: The effective date of the final rule that published on November
25, 2022, at 87 FR 72674, and corrected on December 2, 2022, at 87 FR
73971, is delayed from January 24, 2023, to March 27, 2023.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For access to the docket to read the November 25,
2022, final rule or other background documents, including the comments
received on that final rule, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
search for Docket No. FWS-R2-ES-2021-0015.
FOR FURTHER INFORMATION CONTACT: Beth Forbus, Regional Endangered
Species Program Manager, Southwest Regional Office, 500 Gold Ave. SW,
Albuquerque, NM 87102; telephone 505-318-8972. 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 25, 2022, we published in the Federal Register (87 FR
72674) a final rule listing two DPSs of the lesser prairie-chicken
(Tympanuchus pallidicinctus), a grassland bird known from southeastern
Colorado, western Kansas, eastern New Mexico, western Oklahoma, and the
Texas Panhandle. We determined threatened status for the Northern DPS
and endangered status for the Southern DPS. This rule will add the DPSs
to the List of Endangered and Threatened Wildlife. We also finalized a
rule under the authority of section 4(d) of the Act that provides
measures that are necessary and advisable to provide for the
conservation of the Northern DPS. The rule was to be effective on
January 24, 2023; however, with this final rule, we are delaying the
effective date to March 27, 2023. This delay will allow us to finalize
conservation tools and guidance documents and prevent confusion and
disruption with other Federal agencies under section 7 of the Act.
Currently, the lesser prairie-chicken is not listed under the Act.
When the November 25, 2022, final rule goes into effect, the Southern
DPS will be classified as endangered. This will initiate the
prohibitions set forth in section 9 of the Act and the consultation
obligations set forth in section 7 of the Act. Also when the final rule
goes into effect, the Northern DPS will be classified as threatened
with a section 4(d) rule that tailors the prohibitions and exceptions
to the prohibitions necessary and advisable for the species. The
consultation obligations set forth in section 7 of the Act will also be
applicable to the Northern DPS. We recognize that these changes in
status
[[Page 4088]]
will result in questions and concerns about establishing compliance
under the Act for grazing, energy development, infrastructure, and many
other projects within the five States that comprise the range of the
lesser prairie-chicken.
We are committed to working proactively with stakeholders to
conserve and recover lesser prairie-chickens while reducing impacts to
landowners, where possible and practicable. For example, we are working
with interested parties to establish Service-approved providers of
grazing management plans. These plans are necessary under the 4(d) rule
to allow for compatible grazing operations to continue without a permit
or conservation plan in place. At this time, there is one Service-
approved provider of grazing management plans.
We also believe the delay is appropriate to allow industry
stakeholders more time to participate in or expand participation in
voluntary conservation efforts. Delaying the effective date will allow
for additional pre-listing enrollment in conservation plans that are
beneficial to the species and will allow the Service to continue to
work with interested parties to expand our list of approved parties to
develop site-specific grazing management plans.
This 60-day delay of the effective date of the November 25, 2022,
final rule (87 FR 72674)--based on the good cause articulated below--is
for the purpose of encouraging additional conservation, preventing
confusion and disruption for Federal agencies in the implementation of
section 7 of the Act, and avoiding disruption to the public who would
be regulated by the rule. During this period, we will review any
pending enrollments to conservation efforts, review requests to become
Service-approved providers of grazing management plans, coordinate with
Federal agencies under section 7 of the Act, and coordinate directly
with stakeholders to provide clarity regarding potential implications
of the listing on their operations. We are, therefore, delaying the
effective date of the final rule from January 24, 2023, to March 27,
2023.
II. Good Cause Under the Administrative Procedure Act
Our delay of the effective date of the listing of the lesser
prairie-chicken under the Act from January 24, 2023, to March 27, 2023,
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 25,
2022, final rule (87 FR 72674), and to make this action announcing the
delay effective immediately. Under the totality of the circumstances
presented here, notice and comment would be impracticable and contrary
to the public interest because it would diminish active efforts to
increase conservation efforts and regulate existing grazing practices
before interested operators have sufficient time to prepare grazing
management plans. 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 working with permit holders to
ensure that all interested parties have the opportunity for enrollment
in existing candidate conservation agreements with assurances (CCAAs)
prior to the effective listing date. By delaying the effective listing
date it will allow CCAA permit holders to continue outreach and
processing of any new enrollments. Delaying the effective date by 60-
day will still require that grazing management plans be in place before
the lesser prairie-chicken's primary nesting and brooding season. This
is important because nesting is when incidental take from grazing is
most likely to occur. This delay in the effective date will still
ensure that the conservation-based requirement for grazing management
plans is in place before this critical nesting and brooding time of
year for the species.
In addition, we are actively working with partners to approve
entities for the development of grazing management plans. The further
development of this list of approved plan providers will allow for
interested parties to be approved and begin working directly with
interested landowners to develop grazing management plans. The
development of site-specific grazing management plans is necessary and
advisable for the lesser prairie-chicken as compatible grazing
management is required for habitat management.
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 25, 2022, final rule listing the lesser prairie-
chicken under the Act (87 FR 72674) becomes effective on January 24,
2023, the Act's and 4(d) rule's prohibitions will go into effect,
impacting a large number of projects across the species' range. This
will negatively impact conservation of the lesser prairie-chicken
because a lack of clarity and guidance would result in fewer operators
receiving grazing management plans, which are developed to maintain the
vegetative characteristics needed to support the lesser prairie-
chicken. Thus, we will not have met our obligations under the Act to
ensure the conservation of 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'').
In sum, we find that the totality of the circumstances here--the
negative impact to pre-listing conservation efforts and the inability
to complete grazing management plans that will be threats 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 24, 2023, for the November 25,
2022, final rule (87 FR 72674).
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 good cause (5 U.S.C. 553(d)).
There is good cause to allow this 60-day delay of the effective date of
the November 25, 2022, final rule to go into effect immediately because
the delay preserves the status quo, and there is no change to which
parties would need time to adjust their behavior. Further, if this rule
delaying the effective date were itself not to become effective for 30
days, then the November 25, 2022, final rule would go into effect on
January 24, 2023. That result would create the same issues as discussed
above, with the added confusion of reverting to the pre-listing status
quo for some duration of time.
We, therefore, conclude that we have good cause to issue this final
rule, effective immediately, delaying the effective date of the
November 25, 2022,
[[Page 4089]]
final rule (87 FR 72674) from January 24, 2023, to March 27, 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. 2023-01290 Filed 1-23-23; 8:45 am]
BILLING CODE 4333-15-P
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