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 Department of the Interior Fish and Wildlife Service 50 CFR Parts 13 and 22
[Docket No. FWS-HQ-MB-2015-0155; FF09M21200-167-FXMB123209EAGL0L2]
RIN 1018-BB20
 AGENCY: Fish and Wildlife Service, Interior.
 ACTION: Final rule.
 SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing this final rule to comply with a court order that had the effect of vacating provisions of regulations governing eagle nonpurposeful take permits that extended the maximum term of programmatic permits to 30 years. Pursuant to the U.S. District Court for the Northern District of California's order dated August 11, 2015, and subsequent order amending judgment dated September 16, 2015, this rule removes regulatory provisions that extended maximum programmatic permit duration1 to 30 years and reinstates the previous 5-year limit.
 DATES: This action is effective February 17, 2016.
 ADDRESSES: This final rule is available on the Internet at 
                        *http://www.regulations.gov*
                         at Docket No. FWS-HQ-MB-2015-0155. It will also be available for inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Headquarters Office, 5275 Leesburg Pike, Falls Church, Virginia 22041-3803. Call (703) 358-2329 to make arrangements.
 FOR FURTHER INFORMATION CONTACT: Eliza Savage, Eagle Program Manager, at the Headquarters Office (see 
                        **ADDRESSES**
                        ) or telephone (703) 358-2329. Individuals who are hearing impaired or speech impaired may call the Federal Relay Service at 1-800-877-8337 for TTY assistance.


SUPPLEMENTARY INFORMATION:  Background In 2009, the Service published a rule authorizing the incidental take of eagles under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) (74 FR 46836, September 11, 2009). The rule authorized programmatic permits to cover long-term, incidental take of eagles by individual projects, including wind-energy facilities. On December 9, 2013, the Service published a rule to extend the maximum tenure for programmatic permits for nonpurposeful take of eagles from 5 to 30 years (78 FR 73704). The change was intended to promote the responsible development of projects that will be in operation for many decades and bring them into compliance with statutory mandates protecting eagles. In addition to extending the maximum term of programmatic permits, the rule added provisions for 5-year evaluations of longer term permits, increased the permit application processing fees for programmatic eagle permits, and provided permit transfer and right-of-succession for eagle nonpurposeful take permits. In 2014, a lawsuit was filed challenging the 2013 rule on the basis that the Service improperly excluded analysis of any environmental effects of the rule under the National 
                    ( print page 8002)
                    Environmental Policy Act (NEPA) (42 U.S.C. 4321 
                    *et seq.*) by invoking one of the Department's categorical exclusions. The plaintiffs also argued that the Service had not adequately consulted under section 7 of the Endangered Species Act (ESA) (16 U.S.C. 1531 
                    *et seq.*). On August 11, 2015, the Northern District of California ruled in favor of the plaintiffs on the NEPA claim (but not the ESA claim) and set aside the 2013 rulemaking 
                    *(Shearwater*
                     v. 
                    *Ashe,*
                     (N. D. Cal. 2015) No.14-CV-02830-LHK (N. Dist. Ca, Aug. 11, 2015)). In a subsequent order, the judge clarified that the ruling applied only to the provisions of the rule challenged by plaintiffs, namely those provisions directly related to extending the tenure of eagle incidental take permits from 5 to 30 years 
                    *(Shearwater*
                     v. 
                    *Ashe,*
                     No. 5:14-cv-02830 LHK (Sep. 16, 2015)). Therefore, this rule removes only the provisions related to increasing permit tenure and not the other provisions of the December 9, 2013, final rule. Administrative Procedure This rulemaking is necessary to comply with the August 11, 2015, court order and September 16, 2015, clarification. Therefore, under these circumstances, we have determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are impractical and unnecessary. Public opportunity for comment is simply not required when an agency amends a regulation to comply with a court order. When an agency removes regulatory provisions set aside by a court order, that action is ministerial in nature and allows for no discretion on the part of the agency. Thus, public comment could not inform this process in any meaningful way. Moreover, this amendment will effectively reinstate provisions that were part of the earlier 2009 rulemaking, which complied with public notice and comment rulemaking procedures, rendering further notice and comment on those reinstated provisions unnecessary. We have further determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective upon publication, which is to comply with the District Court's order as soon as practicable. 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 Birds
Exports
Imports
Migratory birds
Reporting and recordkeeping requirements
Transportation
Wildlife
 Regulation Promulgation To comply with the court order and mandate discussed above, we amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 13—GENERAL PERMIT PROCEDURES
 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.Revise the table in § 13.11(d)(4) to read as set forth below: § 13.11
  
 (d) *  *  * (4) *  *  * Type of permit
CFR
                                     Citation
Permit
                                     application 
                                     fee
Administration
                                     
                                        fee1
Amendment
                                     fee**Migratory Bird Treaty Act**Migratory Bird Import/Export
50 CFR part 21
75Migratory Bird Banding or Marking
50 CFR part 21
No feeMigratory Bird Scientific Collecting
50 CFR part 21
100

50Migratory Bird Taxidermy
50 CFR part 21
100Waterfowl Sale and Disposal
50 CFR part 21
75Special Canada Goose
50 CFR part 21
No feeMigratory Bird Special Purpose/Education
50 CFR part 21
75Migratory Bird Special Purpose/Salvage
50 CFR part 21
75Migratory Bird Special Purpose/Game Bird Propagation
50 CFR part 21
75Migratory Bird Special Purpose/Miscellaneous
50 CFR part 21
100Falconry
50 CFR part 21
100Raptor Propagation
50 CFR part 21
100Migratory Bird Rehabilitation
50 CFR part 21
50Migratory Bird Depredation
50 CFR part 21
100

50Migratory Bird Depredation/Homeowner
50 CFR part 21
50**Bald and Golden Eagle Protection Act**Eagle Scientific Collecting
50 CFR part 22
100

50Eagle Exhibition
50 CFR part 22
75Eagle Falconry
50 CFR part 22
100Eagle—Native American Religion
50 CFR part 22
No feeEagle Take permits—Depredation and Protection of Health and Safety
50 CFR part 22
100Golden Eagle Nest Take
50 CFR part 22
100

50Eagle Transport—Scientific or Exhibition
50 CFR part 22
75Eagle Transport—Native American Religious Purposes
50 CFR part 22
No feeEagle Take—Associated With But Not the Purpose of an Activity
50 CFR part 22
500

150Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, up to 5-year tenure
50 CFR part 22
36,000
2,600
1,000( print page 8003)Eagle Take—Associated With But Not the Purpose of an Activity—Transfer of a programmatic permit
50 CFR part 22
1,000Eagle Nest Take
50 CFR part 22
500

150Eagle Nest Take—Programmatic
50 CFR part 22
1,000

500Eagle Take—Exempted under ESA
50 CFR part 22
No fee**Endangered Species Act/CITES/Lacey Act**ESA Recovery
50 CFR part 17
100

50ESA Interstate Commerce
50 CFR part 17
100

50ESA Enhancement of Survival (Safe Harbor Agreement)
50 CFR part 17
50

25ESA Enhancement of Survival (Candidate Conservation Agreement with Assurances)
50 CFR part 17
50

25ESA Incidental Take (Habitat Conservation Plan)
50 CFR part 17
100

50ESA and CITES Import/Export and Foreign Commerce
50 CFR part 17
100

50ESA and CITES Museum Exchange
50 CFR part 17
100

50ESA Captive-bred Wildlife Registration
50 CFR part 17
200

100—Renewal of Captive-bred Wildlife Registration
50 CFR part 17
100CITES Import (including trophies under ESA and MMPA)
50 CFR parts 17, 18, 23
100

50CITES Export
50 CFR part 23
100

50CITES Pre-Convention
50 CFR part 23
75

40CITES Certificate of Origin
50 CFR part 23
75

40CITES Re-export
50 CFR part 23
75

40CITES Personal Effects and Pet Export/Re-export
50 CFR part 23
50CITES Appendix II Export (native furbearers and alligators—excluding live animals)
50 CFR part 23
100

50CITES Master File (includes files for artificial propagation, biomedical, etc., and covers import, export, and re-export documents)
50 CFR part 23
200

100—Renewal of CITES Master File
50 CFR part 23
100—Single-use permits issued on Master File
50 CFR part 23
5 2CITES Annual Program File
50 CFR part 23
50—Single-use permits issued under Annual Program
50 CFR part 23
5 2CITES replacement documents (lost, stolen, or damaged documents)
50 CFR part 23
50

50CITES Passport for Traveling Exhibitions and Pets
50 CFR part 23
75 3CITES/ESA Passport for Traveling Exhibitions
50 CFR part 23
100 3CITES Introduction from the Sea
50 CFR part 23
100

50CITES Participation in the Plant Rescue Center Program
50 CFR part 23
No feeCITES Registration of Commercial Breeding Operations for Appendix-I Wildlife
50 CFR part 23
100CITES Request for Approval of an Export Program for a State or Tribe (American Ginseng, Certain Furbearers, and American Alligator)
50 CFR part 23
No feeImport/Export License
50 CFR part 14
100

50Designated Port Exception
50 CFR part 14
100

50Injurious Wildlife Permit
50 CFR part 16
100

50—Transport Authorization for Injurious Wildlife
50 CFR part 16
25**Wild Bird Conservation Act (WBCA)**Personal Pet Import
50 CFR part 15
50WBCA Scientific Research, Zoological Breeding or Display, Cooperative Breeding
50 CFR part 15
100

50WBCA Approval of Cooperative Breeding Program
50 CFR part 15
200

100—Renewal of a WBCA Cooperative Breeding Program
50 CFR part 15
50WBCA Approval of a Foreign Breeding Facility
50 CFR part 15
250 4**Marine Mammal Protection Act**Marine Mammal Public Display
50 CFR part 18
300

150Marine Mammal Scientific Research/Enhancement/Registered Agent or Tannery
50 CFR part 18
150

75—Renewal of Marine Mammal Scientific Research/Enhancement/Registered Agent or Tannery
50 CFR part 18
751
                                 Assessed when a permit is issued.2
                                 Each.3
                                 Per animal.4
                                 Per species.
 PART 22—EAGLE PERMITS
 3.The authority citation for part 22 continues to read as follows: Authority:
                        16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C. 1531-1544. 4.Amend § 22.26 as follows: a.By removing paragraph (h); b.By redesignating paragraphs (i) and (j) as paragraphs (h) and (i); and c.By revising the newly designated paragraph (h) to read as set forth below: § 22.26
  
 (h) 
                            *Permit duration.*
                             The duration of each permit issued under this section will be designated on its face, and will be based on the duration of the proposed activities, the period of time for which take will occur, the level of impacts to eagles, and mitigation measures, but will not exceed 5 years.
 Dated: February 2, 2016. Karen Hyun, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.


[FR Doc. 2016-03084 Filed 2-16-16; 8:45 am] BILLING CODE 4333-15-P