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, 4087-4089 [2023-01290]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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 [www.gpo.gov]
[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 https://www.regulations.gov. 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 https://www.regulations.gov 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