Endangered and Threatened Wildlife and Plants; Bald Eagles Nesting in Sonoran Desert Area of Central Arizona Removed From the List of Endangered and Threatened Wildlife, 54711-54713 [2011-22600]
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Federal Register / Vol. 76, No. 171 / Friday, September 2, 2011 / Rules and Regulations
Dated: August 15, 2011.
Edward L. Connor,
Deputy Administrator, Insurance, Federal
Insurance and Mitigation Administration.
[FR Doc. 2011–22466 Filed 9–1–11; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket ID FWS–R2–ES–2011–0069; 92220–
1113–0000; ABC Code: C6]
RIN 1018–AX08
Endangered and Threatened Wildlife
and Plants; Bald Eagles Nesting in
Sonoran Desert Area of Central
Arizona Removed From the List of
Endangered and Threatened Wildlife
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are issuing a
final rule to comply with a court order
that removed regulatory protections
under the Endangered Species Act of
1973, as amended (Act), for the bald
eagles nesting in the Sonoran Desert
area of central Arizona. On July 9, 2007,
we published a final rule to remove bald
eagles in the lower 48 States from the
List of Endangered and Threatened
Wildlife (List) due to recovery.
However, the United States District
Court for the District of Arizona, by
order dated March 6, 2008, enjoined the
Service from removing the bald eagles
nesting in the Sonoran Desert area of
central Arizona from the threatened
species list under the Act pending the
Service’s status review and 12-month
finding on a petition to classify the bald
eagles nesting in the Sonoran Desert
area of central Arizona as a distinct
population segment (DPS), list this DPS
as endangered, and designate critical
habitat. On May 1, 2008, to conform to
the court’s order, we published a final
rule listing the potential Sonoran Desert
bald eagle DPS as threatened under the
Act. On February 25, 2010, the Service
published its 12-month finding
determining that the bald eagles nesting
in the Sonoran Desert area of central
Arizona did not qualify as a DPS and
were, therefore, not a listable entity
under the Act. On September 30, 2010,
as a result of the Service’s completed
status review and publication of the 12month finding, the United States
District Court for the District of Arizona
lifted the injunction. We are issuing this
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SUMMARY:
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final rule to amend the regulations for
the Federal Lists of Endangered and
Threatened Wildlife by removing the
bald eagles nesting in the Sonoran
Desert area of central Arizona from the
list. This action amends the CFR to
reflect the September 30, 2010, court
order.
DATES: This rule amending the CFR to
reflect the September 30, 2010, court
order is effective September 2, 2011.
However, the court order reinstating the
provisions of the delisting rule for the
bald eagles nesting in the Sonoran
Desert area of central Arizona had legal
effect immediately upon being filed on
September 30, 2010.
ADDRESSES: This final rule is available
on the Internet at https://www.
regulations.gov at Docket No. FWS–R2–
ES–2011–0069.
FOR FURTHER INFORMATION CONTACT:
Steve Spangle, Field Supervisor,
Arizona Ecological Services Field
Office, 2321 West Royal Palm Road,
Suite 103, Phoenix, AZ 85021;
telephone, 602–242–0210; facsimile,
602–242–2513. Individuals who are
hearing-impaired or speech-impaired
may call the Federal Relay Service at
(800) 877–8337 for TTY.
SUPPLEMENTARY INFORMATION:
Background
Bald eagles (Haliaeetus
leucocephalus) gained protection under
the Bald Eagle Protection Act (16 U.S.C.
668–668d) in 1940 and the Migratory
Bird Treaty Act (MBTA) (16 U.S.C. 703–
712) in 1972. A 1962 amendment to the
Bald Eagle Protection Act added
protection for the golden eagle (Aquila
chrysaetos), and the amended statute
became known as the Bald and Golden
Eagle Protection Act (BGEPA). On
February 14, 1978, the Service listed the
bald eagle as an endangered species
under the Endangered Species Act of
1973, as amended (Act) (16 U.S.C. 1531
et seq.) in 43 of the contiguous States,
and as a threatened species in the States
of Michigan, Minnesota, Wisconsin,
Oregon, and Washington (43 FR 6230).
On July 12, 1995, we published a final
rule to reclassify the bald eagle from
endangered to threatened in the 43
States where it had been listed as
endangered and retain the threatened
status for the other five States (60 FR
36000).
On July 6, 1999, we published a
proposed rule to delist the bald eagle
throughout the lower 48 States due to
recovery (64 FR 36454). On February 16,
2006, we reopened the public comment
period to consider new information
received on our July 6, 1999 (71 FR
8238), proposed rule to delist the bald
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54711
eagle in the lower 48 States. On October
6, 2004, we received a petition from the
Center for Biological Diversity (CBD),
the Maricopa Audubon Society, and the
Arizona Audubon Council requesting
that the ‘‘Southwestern desert nesting
bald eagle population’’ be classified as
a distinct population segment (DPS)
under the Act, that this DPS be
reclassified from a threatened species to
an endangered species, and that we
concurrently designate critical habitat
for the DPS under the Act. We
announced in our 90-day finding on
August 30, 2006 (71 FR 51549), that the
petition did not present substantial
scientific or commercial information
indicating that the petitioned action
may be warranted.
On January 5, 2007, the CBD and the
Maricopa Audubon Society (Plaintiffs)
filed a lawsuit challenging the Service’s
90-day finding that the bald eagles
nesting in the Sonoran Desert area of
central Arizona did not qualify as a
DPS, and further challenging the
Service’s 90-day finding that the
population should not be uplisted to
endangered status.
On July 9, 2007 (72 FR 37346), we
published the final delisting rule for
bald eagles in the lower 48 States due
to recovery. This final delisting rule also
included the bald eagles located in the
Sonoran Desert. On August 17, 2007, the
CBD and the Maricopa Audubon Society
filed a Motion for Summary Judgment,
requesting the court to make a decision
on their January 5, 2007, lawsuit. In
early 2008, several Native American
Tribes submitted amicus curiae (‘‘friend
of the court’’) briefs in support of the
August 17, 2007, Motion for Summary
Judgment. The San Carlos Apache Tribe,
Yavapai-Apache Nation, and Tonto
Apache Tribe submitted amicus curiae
briefs to the court on January 29, 2008;
the Salt River Pima-Maricopa Indian
Community submitted an amicus curiae
brief to the court on February 4, 2008;
and the Fort McDowell Yavapai Nation
submitted an amicus curiae brief to the
court on February 7, 2008.
On March 5, 2008, the U.S. District
Court for the District of Arizona made
a final decision in the case and ruled in
favor of the CBD and the Maricopa
Audubon Society. The court order
(Center for Biological Diversity v.
Kempthorne, CV 07–0038–PHX–MHM
(D. Ariz)), dated March 6, 2008, required
the Service to conduct a status review
of the Desert bald eagle population
pursuant to the Act to determine
whether that population may qualify as
a DPS, and if so, whether listing that
DPS as threatened or endangered
pursuant to the Act is warranted. The
court enjoined the Service’s application
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54712
Federal Register / Vol. 76, No. 171 / Friday, September 2, 2011 / Rules and Regulations
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of the July 9, 2007 (72 FR 37346), final
delisting rule to the bald eagles nesting
in the Sonoran Desert area of central
Arizona pending a status review and 12month finding on the Plaintiffs’ petition.
On May 1, 2008, to conform with the
court’s March 6, 2008, order, we
published a final rule listing the
potential Sonoran Desert bald eagle DPS
as threatened under the Act (73 FR
23966). On May 20, 2008, we published
a Federal Register notice (73 FR 29096)
initiating a status review for the bald
eagles nesting in the Sonoran Desert
area of central Arizona.
On February 25, 2010, the Service
published its 12-month finding on the
petition to designate the bald eagles
nesting in the Sonoran Desert area of
central Arizona as a DPS, list it as
endangered, and designate critical
habitat under the Act (75 FR 8601). The
Service found that the bald eagles
nesting in the Sonoran Desert area of
central Arizona did not qualify as a DPS
and, therefore, were not a listable entity
under the Act. Concurrent with
publication of our 12-month finding, the
Service filed a motion for dissolution of
the court’s injunction. By order dated
September 30, 2010, the United States
District Court for the District of Arizona
dissolved the injunction. This had the
effect of reinstating the provisions of the
delisting rule for the bald eagles nesting
in the Sonoran Desert area of central
Arizona, thereby removing the bald
eagles nesting in the Sonoran Desert
area of central Arizona from the List of
Endangered and Threatened Wildlife.
(Center for Biological Diversity, et al. v.
Salazar, et al., 07–cv–00038–PHX–
MHM, 2010 U.S. Dist. LEXIS 72664
(D. Ariz. Sept. 30, 2010). This final rule
amends the List of Endangered and
Threatened Wildlife at 50 CFR 17.11(h)
to reflect the court’s order, dated
September 30, 2010, that the Service’s
May 1, 2008, final rule was rendered
ineffective by the court’s ruling.
We notified all affected Tribes and
State and Federal partners of the ruling
and its impact shortly after the order
was released. We published a statement
on our Web site to notify the public of
the ruling and its impact shortly after
the order was released and provided
additional information in a questionsand-answers document. We continued
to meet with Tribes after the finding was
published to further discuss their
concerns.
Administrative Procedure
This rulemaking is necessary to
comply with the September 30, 2010,
court order. Therefore, under these
circumstances, the Director has
determined, pursuant to 5 U.S.C.
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13:31 Sep 01, 2011
Jkt 223001
553(b)(3)(B), that prior notice and
opportunity for public comment are
unnecessary. Because the court order
had legal effect immediately upon being
filed on September 30, 2010, the
Director has further determined,
pursuant to 5 U.S.C. 553(d)(3), that the
agency has good cause to make this rule
effective immediately upon publication.
Effects of the Rule
We are issuing this rule to amend the
regulations for the Federal Lists of
Endangered and Threatened Wildlife at
50 CFR 17.11 by removing the bald
eagles nesting in the Sonoran Desert
area of central Arizona from the list.
However, as previously mentioned, the
court order reinstating the provisions of
the delisting rule for the bald eagles
nesting in the Sonoran Desert area of
central Arizona had legal effect
immediately upon its filing on
September 30, 2010.
All bald eagles will continue to be
protected under the BGEPA and MBTA.
The Bald Eagle Protection Act (16 U.S.C.
668–668d) was passed in 1940,
specifically protecting bald eagles in the
United States. A 1962 amendment to
this Act included the golden eagle in
this protection, and the amended statute
became known as the Bald and Golden
Eagle Protection Act (BGEPA). The
golden eagle was given protected status
because of population declines, value to
agriculture in the control of rodents, and
to afford greater protections to bald
eagles because of the similarity of
appearance to juvenile bald eagles. This
law prohibits the take, possession, sale,
purchase, barter, or offering to sell,
purchase or barter, transport, export or
import of any bald eagle, alive or dead,
including any part, nest, or egg, unless
allowed by permit (16 U.S.C. 668(a)).
‘‘Take’’ includes ‘‘pursue, shoot, shoot
at, poison, wound, kill, capture, trap,
collect, destroy, molest, or disturb’’ (16
U.S.C. 668c; 50 CFR 22.3).
The MBTA makes it unlawful to at
any time, by any means or in any
manner, pursue, hunt, take, capture,
kill, attempt to take, capture, or kill,
possess, offer for sale, sell, offer to
barter, barter, offer to purchase,
purchase, deliver for shipment, ship,
export, import, cause to be shipped,
exported, or imported, deliver for
transportation, transport or cause to be
transported, carry or cause to be carried,
or receive for shipment, transportation,
carriage, or export, any migratory bird,
any part, nest, or eggs of any such bird,
or any product, whether or not
manufactured, which consists, or is
composed in whole or part, of any such
bird or any part, nest, or egg thereof (16
U.S.C. 703(a)).
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We recommend that persons use our
Bald Eagle National Management
Guidelines (Guidelines) announced in
the Federal Register on June 5, 2007 (72
FR 31156), as guidance for minimizing
the risk of disturbing bald eagles under
the BGEPA and its implementing
regulations. The Guidelines include
suggestions for protecting bald eagles
and their habitat while they are nesting,
feeding, and roosting.
In addition to the protective
provisions provided by the BGEPA and
MBTA, the Conservation Assessment
and Strategy for Bald Eagles in Arizona
(CAS) (Driscoll et al. 2006), contains
guidance on measures to eliminate,
reduce, or minimize effects to eagles in
Arizona. On January 22, 2007, the
Service signed a Memorandum of
Understanding with the Arizona Game
and Fish Department (AGFD)
supporting the implementation of the
AGFD’s CAS. The Memorandum of
Understanding was also signed by the
following: Bureau of Reclamation,
Bureau of Land Management, National
Park Service, Forest Service,
Department of Defense, including the
U.S. Army Corps of Engineers, Arizona
Public Service, Maricopa County, 56th
Fighter Wing at Luke Air Force Base
(Department of Defense), Salt River
Project, and various other agencies for
conservation of the bald eagle in
Arizona. The CAS provides additional
valuable guidance for protecting bald
eagles in Arizona, and we support using
it in conjunction with our Guidelines to
protect bald eagles in Arizona.
This rule will not affect the status of
the bald eagles nesting in the Sonoran
Desert area of central Arizona under
State laws or suspend any other legal
protections provided by State law. This
rule will not affect the bald eagle’s
Appendix II status under the
Convention on International Trade of
Endangered Species of Wild Fauna and
Flora (CITES).
References Cited
Driscoll, J.T., K.V. Jacobson, G.L.
Beatty, J.S. Canaca, and J.G. Koloszar,
2006. Conservation Assessment and
Strategy for the Bald Eagle in Arizona.
Nongame and Endangered Wildlife
Technical Report 173. Arizona Game
and Fish Department, Phoenix, Arizona.
Lists of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, in order to comply with
the court orders discussed above, we
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Federal Register / Vol. 76, No. 171 / Friday, September 2, 2011 / Rules and Regulations
amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal
Regulations, as set forth below.
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
■
[Amended]
2. Amend § 17.11 by removing from
the table at paragraph (h) the entry for
‘‘Eagle, bald (Haliaeetus
leucocephalus)’’.
■
§ 17.41
[Amended]
3. Amend § 17.41 by removing and
reserving paragraph (a).
■
Dated: August 26, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife
Service.
[FR Doc. 2011–22600 Filed 9–1–11; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 100804324–1496–05]
RIN 0648–BA01
Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery;
Biennial Specifications and
Management Measures; Correction
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; correcting
amendment.
AGENCY:
This document contains
corrections to the final regulations that
were published on May 11, 2011. That
final rule established the 2011–2012
harvest specifications and management
measures for groundfish taken in the
U.S. exclusive economic zone (EEZ) off
the coasts of Washington, Oregon, and
California. This action provides nine
corrections to the regulations, all of
which are either mis-designated
paragraphs, transposed numbers,
removal of text that was mistakenly left
in, or addition of text that was
mistakenly left out.
DATES: Effective September 2, 2011.
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SUMMARY:
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13:31 Sep 01, 2011
Jkt 223001
Gretchen Hanshew (Northwest Region,
NMFS), phone: 206–526–6147; fax: 206–
526–6736 and; e-mail: gretchen.
hanshew@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
§ 17.11
FOR FURTHER INFORMATION CONTACT:
On May 11, 2011, NMFS published a
final rule (76 FR 27508) to establish the
2011–2012 harvest specifications and
management measures for groundfish
taken in the EEZ off the coasts of
Washington, Oregon, and California.
NMFS accepted public comment on the
proposed rule and responded to these
comments in the preamble to the final
rule. Those final regulations revised
portions of 50 CFR 660, Subparts C
through G, and are the subject of this
correcting amendment. These
regulations affect persons operating
fisheries for groundfish species off the
U.S. West Coast. As published, the final
regulations contain errors that may
mislead the public and need to be
corrected. Additionally, there are
differences between the text of the final
rule and current codified regulations
that resulted from incorrect amendatory
instructions in the final rule. This action
implements a total of nine corrections to
the regulations, all of which are either
mis-numbered paragraphs, transposed
numbers, removal of text that was
mistakenly left in, or addition of text
that was mistakenly left out.
This action makes four corrections to
coordinates in § 660.72, § 660.73, and
§ 660.74. The coordinates are expressed
in degrees latitude and longitude, and
define large-scale boundaries utilized in
management of the groundfish fishery.
These sections contain lists of
coordinates, expressed in degrees
latitude and longitude, which define
large-scale boundaries for Rockfish
Conservation Areas off the Pacific coast.
The first correction is to reinstate
paragraphs § 660.72(f)(143)–(145),
which were mistakenly removed in the
final rule as a result of incorrect
amendatory language. Because of this
mistake, these paragraphs in the Code of
Federal Regulations (CFR) were
‘‘reserved’’ instead of being
redesignated. This correction will
establish the appropriate coordinates in
those paragraphs that are currently
‘‘reserved.’’ Additionally, corrections
are needed to § 660.72(j) and
§ 660.73(d), where incorrect and
transposed coordinate numbers were
listed in the final rule and need to be
corrected to define the intended
boundary lines. Finally, a correction is
needed to § 660.74(g) to publish the
coordinates in the correct order. The
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54713
coordinates that published in the final
rule were the correct numbers, but were
listed in the wrong order. All the
corrections made by this rule do not
change the intent or application of the
geographic area described in the
proposed and final rule.
This action also makes five
corrections to § 660.360, which provides
the regulations for the recreational
fisheries in Washington and California.
This rule makes no corrections to the
regulations for the recreational fisheries
in Oregon. Four of these five changes
reinstate regulatory language that was
published in the final rule (76 FR
27508). The amendatory instructions as
published in the proposed rule (75 FR
67810) were correct and would have
amended the codified regulations as
intended. However, due to an
administrative error, the final rule
contained the incorrect amendatory
instructions resulting in the final rule
either making changes that were
incorrect or omitting changes to the
codified regulations. This final rule
corrects these errors. One correction
revises § 660.360(c)(1)(iv), which was
correctly redesignated in the final rule
but was not appropriately revised due to
missing amendatory instructions; the
correct text published in the final rule
on page 27560. Another correction is to
§ 660.360(c)(3)(ii)(B), this paragraph was
not revised in the codified regulations.
The correct text was published in the
final rule on page 27562. Finally, text at
§ 660.360(c)(3)(iii)(A)(1)–(5) was not
revised and paragraph (c)(3)(iii)(A)(6)
was not removed. The correct regulatory
text was listed on page 27562 of the
final rule; however a mistake in the
amendatory language resulted in the
CFR not being updated with the
regulations as published in the final
rule.
Another correction is to
§ 660.360(c)(3)(i)(A)(5); this paragraph
was revised between the proposed and
final rule, as described in the preamble
of the final rule in the ‘‘Changes from
the Proposed Rule’’ section; however
the last line of the paragraph was
mistakenly left the same as the proposed
rule. As published, the regulations in
this paragraph directly contradict the
changes described in the preamble of
the proposed rule, as well as the
regulations at § 660.360(c)(3)(i)(B), and
would be confusing to the public if it is
not corrected.
Classification
The Assistant Administrator for
Fisheries, NOAA (AA) finds good cause
under 5 U.S.C. 553(b)(B), to waive the
requirement for prior notice and
opportunity for public comment for this
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Agencies
[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Rules and Regulations]
[Pages 54711-54713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22600]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket ID FWS-R2-ES-2011-0069; 92220-1113-0000; ABC Code: C6]
RIN 1018-AX08
Endangered and Threatened Wildlife and Plants; Bald Eagles
Nesting in Sonoran Desert Area of Central Arizona Removed From the List
of Endangered and Threatened Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing
a final rule to comply with a court order that removed regulatory
protections under the Endangered Species Act of 1973, as amended (Act),
for the bald eagles nesting in the Sonoran Desert area of central
Arizona. On July 9, 2007, we published a final rule to remove bald
eagles in the lower 48 States from the List of Endangered and
Threatened Wildlife (List) due to recovery. However, the United States
District Court for the District of Arizona, by order dated March 6,
2008, enjoined the Service from removing the bald eagles nesting in the
Sonoran Desert area of central Arizona from the threatened species list
under the Act pending the Service's status review and 12-month finding
on a petition to classify the bald eagles nesting in the Sonoran Desert
area of central Arizona as a distinct population segment (DPS), list
this DPS as endangered, and designate critical habitat. On May 1, 2008,
to conform to the court's order, we published a final rule listing the
potential Sonoran Desert bald eagle DPS as threatened under the Act. On
February 25, 2010, the Service published its 12-month finding
determining that the bald eagles nesting in the Sonoran Desert area of
central Arizona did not qualify as a DPS and were, therefore, not a
listable entity under the Act. On September 30, 2010, as a result of
the Service's completed status review and publication of the 12-month
finding, the United States District Court for the District of Arizona
lifted the injunction. We are issuing this final rule to amend the
regulations for the Federal Lists of Endangered and Threatened Wildlife
by removing the bald eagles nesting in the Sonoran Desert area of
central Arizona from the list. This action amends the CFR to reflect
the September 30, 2010, court order.
DATES: This rule amending the CFR to reflect the September 30, 2010,
court order is effective September 2, 2011. However, the court order
reinstating the provisions of the delisting rule for the bald eagles
nesting in the Sonoran Desert area of central Arizona had legal effect
immediately upon being filed on September 30, 2010.
ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov at Docket No. FWS-R2-ES-2011-0069.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor,
Arizona Ecological Services Field Office, 2321 West Royal Palm Road,
Suite 103, Phoenix, AZ 85021; telephone, 602-242-0210; facsimile, 602-
242-2513. Individuals who are hearing-impaired or speech-impaired may
call the Federal Relay Service at (800) 877-8337 for TTY.
SUPPLEMENTARY INFORMATION:
Background
Bald eagles (Haliaeetus leucocephalus) gained protection under the
Bald Eagle Protection Act (16 U.S.C. 668-668d) in 1940 and the
Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) in 1972. A 1962
amendment to the Bald Eagle Protection Act added protection for the
golden eagle (Aquila chrysaetos), and the amended statute became known
as the Bald and Golden Eagle Protection Act (BGEPA). On February 14,
1978, the Service listed the bald eagle as an endangered species under
the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.) in 43 of the contiguous States, and as a threatened species in
the States of Michigan, Minnesota, Wisconsin, Oregon, and Washington
(43 FR 6230). On July 12, 1995, we published a final rule to reclassify
the bald eagle from endangered to threatened in the 43 States where it
had been listed as endangered and retain the threatened status for the
other five States (60 FR 36000).
On July 6, 1999, we published a proposed rule to delist the bald
eagle throughout the lower 48 States due to recovery (64 FR 36454). On
February 16, 2006, we reopened the public comment period to consider
new information received on our July 6, 1999 (71 FR 8238), proposed
rule to delist the bald eagle in the lower 48 States. On October 6,
2004, we received a petition from the Center for Biological Diversity
(CBD), the Maricopa Audubon Society, and the Arizona Audubon Council
requesting that the ``Southwestern desert nesting bald eagle
population'' be classified as a distinct population segment (DPS) under
the Act, that this DPS be reclassified from a threatened species to an
endangered species, and that we concurrently designate critical habitat
for the DPS under the Act. We announced in our 90-day finding on August
30, 2006 (71 FR 51549), that the petition did not present substantial
scientific or commercial information indicating that the petitioned
action may be warranted.
On January 5, 2007, the CBD and the Maricopa Audubon Society
(Plaintiffs) filed a lawsuit challenging the Service's 90-day finding
that the bald eagles nesting in the Sonoran Desert area of central
Arizona did not qualify as a DPS, and further challenging the Service's
90-day finding that the population should not be uplisted to endangered
status.
On July 9, 2007 (72 FR 37346), we published the final delisting
rule for bald eagles in the lower 48 States due to recovery. This final
delisting rule also included the bald eagles located in the Sonoran
Desert. On August 17, 2007, the CBD and the Maricopa Audubon Society
filed a Motion for Summary Judgment, requesting the court to make a
decision on their January 5, 2007, lawsuit. In early 2008, several
Native American Tribes submitted amicus curiae (``friend of the
court'') briefs in support of the August 17, 2007, Motion for Summary
Judgment. The San Carlos Apache Tribe, Yavapai-Apache Nation, and Tonto
Apache Tribe submitted amicus curiae briefs to the court on January 29,
2008; the Salt River Pima-Maricopa Indian Community submitted an amicus
curiae brief to the court on February 4, 2008; and the Fort McDowell
Yavapai Nation submitted an amicus curiae brief to the court on
February 7, 2008.
On March 5, 2008, the U.S. District Court for the District of
Arizona made a final decision in the case and ruled in favor of the CBD
and the Maricopa Audubon Society. The court order (Center for
Biological Diversity v. Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)),
dated March 6, 2008, required the Service to conduct a status review of
the Desert bald eagle population pursuant to the Act to determine
whether that population may qualify as a DPS, and if so, whether
listing that DPS as threatened or endangered pursuant to the Act is
warranted. The court enjoined the Service's application
[[Page 54712]]
of the July 9, 2007 (72 FR 37346), final delisting rule to the bald
eagles nesting in the Sonoran Desert area of central Arizona pending a
status review and 12-month finding on the Plaintiffs' petition.
On May 1, 2008, to conform with the court's March 6, 2008, order,
we published a final rule listing the potential Sonoran Desert bald
eagle DPS as threatened under the Act (73 FR 23966). On May 20, 2008,
we published a Federal Register notice (73 FR 29096) initiating a
status review for the bald eagles nesting in the Sonoran Desert area of
central Arizona.
On February 25, 2010, the Service published its 12-month finding on
the petition to designate the bald eagles nesting in the Sonoran Desert
area of central Arizona as a DPS, list it as endangered, and designate
critical habitat under the Act (75 FR 8601). The Service found that the
bald eagles nesting in the Sonoran Desert area of central Arizona did
not qualify as a DPS and, therefore, were not a listable entity under
the Act. Concurrent with publication of our 12-month finding, the
Service filed a motion for dissolution of the court's injunction. By
order dated September 30, 2010, the United States District Court for
the District of Arizona dissolved the injunction. This had the effect
of reinstating the provisions of the delisting rule for the bald eagles
nesting in the Sonoran Desert area of central Arizona, thereby removing
the bald eagles nesting in the Sonoran Desert area of central Arizona
from the List of Endangered and Threatened Wildlife. (Center for
Biological Diversity, et al. v. Salazar, et al., 07-cv-00038-PHX-MHM,
2010 U.S. Dist. LEXIS 72664 (D. Ariz. Sept. 30, 2010). This final rule
amends the List of Endangered and Threatened Wildlife at 50 CFR
17.11(h) to reflect the court's order, dated September 30, 2010, that
the Service's May 1, 2008, final rule was rendered ineffective by the
court's ruling.
We notified all affected Tribes and State and Federal partners of
the ruling and its impact shortly after the order was released. We
published a statement on our Web site to notify the public of the
ruling and its impact shortly after the order was released and provided
additional information in a questions-and-answers document. We
continued to meet with Tribes after the finding was published to
further discuss their concerns.
Administrative Procedure
This rulemaking is necessary to comply with the September 30, 2010,
court order. Therefore, under these circumstances, the Director has
determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and
opportunity for public comment are unnecessary. Because the court order
had legal effect immediately upon being filed on September 30, 2010,
the Director has further determined, pursuant to 5 U.S.C. 553(d)(3),
that the agency has good cause to make this rule effective immediately
upon publication.
Effects of the Rule
We are issuing this rule to amend the regulations for the Federal
Lists of Endangered and Threatened Wildlife at 50 CFR 17.11 by removing
the bald eagles nesting in the Sonoran Desert area of central Arizona
from the list. However, as previously mentioned, the court order
reinstating the provisions of the delisting rule for the bald eagles
nesting in the Sonoran Desert area of central Arizona had legal effect
immediately upon its filing on September 30, 2010.
All bald eagles will continue to be protected under the BGEPA and
MBTA. The Bald Eagle Protection Act (16 U.S.C. 668-668d) was passed in
1940, specifically protecting bald eagles in the United States. A 1962
amendment to this Act included the golden eagle in this protection, and
the amended statute became known as the Bald and Golden Eagle
Protection Act (BGEPA). The golden eagle was given protected status
because of population declines, value to agriculture in the control of
rodents, and to afford greater protections to bald eagles because of
the similarity of appearance to juvenile bald eagles. This law
prohibits the take, possession, sale, purchase, barter, or offering to
sell, purchase or barter, transport, export or import of any bald
eagle, alive or dead, including any part, nest, or egg, unless allowed
by permit (16 U.S.C. 668(a)). ``Take'' includes ``pursue, shoot, shoot
at, poison, wound, kill, capture, trap, collect, destroy, molest, or
disturb'' (16 U.S.C. 668c; 50 CFR 22.3).
The MBTA makes it unlawful to at any time, by any means or in any
manner, pursue, hunt, take, capture, kill, attempt to take, capture, or
kill, possess, offer for sale, sell, offer to barter, barter, offer to
purchase, purchase, deliver for shipment, ship, export, import, cause
to be shipped, exported, or imported, deliver for transportation,
transport or cause to be transported, carry or cause to be carried, or
receive for shipment, transportation, carriage, or export, any
migratory bird, any part, nest, or eggs of any such bird, or any
product, whether or not manufactured, which consists, or is composed in
whole or part, of any such bird or any part, nest, or egg thereof (16
U.S.C. 703(a)).
We recommend that persons use our Bald Eagle National Management
Guidelines (Guidelines) announced in the Federal Register on June 5,
2007 (72 FR 31156), as guidance for minimizing the risk of disturbing
bald eagles under the BGEPA and its implementing regulations. The
Guidelines include suggestions for protecting bald eagles and their
habitat while they are nesting, feeding, and roosting.
In addition to the protective provisions provided by the BGEPA and
MBTA, the Conservation Assessment and Strategy for Bald Eagles in
Arizona (CAS) (Driscoll et al. 2006), contains guidance on measures to
eliminate, reduce, or minimize effects to eagles in Arizona. On January
22, 2007, the Service signed a Memorandum of Understanding with the
Arizona Game and Fish Department (AGFD) supporting the implementation
of the AGFD's CAS. The Memorandum of Understanding was also signed by
the following: Bureau of Reclamation, Bureau of Land Management,
National Park Service, Forest Service, Department of Defense, including
the U.S. Army Corps of Engineers, Arizona Public Service, Maricopa
County, 56th Fighter Wing at Luke Air Force Base (Department of
Defense), Salt River Project, and various other agencies for
conservation of the bald eagle in Arizona. The CAS provides additional
valuable guidance for protecting bald eagles in Arizona, and we support
using it in conjunction with our Guidelines to protect bald eagles in
Arizona.
This rule will not affect the status of the bald eagles nesting in
the Sonoran Desert area of central Arizona under State laws or suspend
any other legal protections provided by State law. This rule will not
affect the bald eagle's Appendix II status under the Convention on
International Trade of Endangered Species of Wild Fauna and Flora
(CITES).
References Cited
Driscoll, J.T., K.V. Jacobson, G.L. Beatty, J.S. Canaca, and J.G.
Koloszar, 2006. Conservation Assessment and Strategy for the Bald Eagle
in Arizona. Nongame and Endangered Wildlife Technical Report 173.
Arizona Game and Fish Department, Phoenix, Arizona.
Lists of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, in order to comply with the court orders discussed
above, we
[[Page 54713]]
amend part 17, subchapter B of chapter I, title 50 of the Code of
Federal Regulations, as set forth below.
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
Sec. 17.11 [Amended]
0
2. Amend Sec. 17.11 by removing from the table at paragraph (h) the
entry for ``Eagle, bald (Haliaeetus leucocephalus)''.
Sec. 17.41 [Amended]
0
3. Amend Sec. 17.41 by removing and reserving paragraph (a).
Dated: August 26, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-22600 Filed 9-1-11; 8:45 am]
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