[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]


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

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.

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

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: <a href="/cdn-cgi/l/email-protection#28424d5a47454d774e475a4c684e5f5b064f475e"><span class="__cf_email__" data-cfemail="7b111e0914161e241d14091f3b1d0c08551c140d">[email protected]</span></a>. 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]]



----------------------------------------------------------------------------------------------------------------
                                                       Permit application   Administration fee
           Type of  permit              CFR citation         fee \1\                \1\           Amendment fee
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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
------------------------------------------------------------------------
              Date range                  Bald eagle relative abundance
------------------------------------------------------------------------
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
------------------------------------------------------------------------


Table 2 to Paragraph (c)(1)(ii)--Relative-Abundance Value Thresholds for
                    Golden Eagles Throughout the Year
------------------------------------------------------------------------
              Date range                 Golden eagle relative abundance
------------------------------------------------------------------------
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
------------------------------------------------------------------------

* * * * *

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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>