Endangered and Threatened Wildlife and Plants; Endangered Species Status for Northern Long-Eared Bat; Delay of Effective Date, 4908-4910 [2023-01656]

Download as PDF 4908 Federal Register / Vol. 88, No. 17 / Thursday, January 26, 2023 / Rules and Regulations N. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards. O. Paperwork Reduction Act of 1995: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This rulemaking does not involve information collection requirements that are subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act. P. E-Government Act Compliance: The USPTO is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. List of Subjects in 37 CFR Part 11 Administrative practice and procedure, Inventions and patents, Lawyers, Reporting and recordkeeping requirements. PART 11—REPRESENTATION OF OTHERS BEFORE THE UNITED STATES PATENT AND TRADEMARK OFFICE Accordingly, the interim final rule amending 37 CFR part 11, which published on November 14, 2022 (87 FR 68054), is adopted as a final rule without change. ■ Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. 2023–01552 Filed 1–25–23; 8:45 am] BILLING CODE 3510–16–P Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R3–ES–2021–0140; FF09E21000 FXES1111090FEDR 234] lotter on DSK11XQN23PROD with RULES1 RIN 1018–BG14 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Northern Long-Eared Bat; Delay of Effective Date Fish and Wildlife Service, Interior. VerDate Sep<11>2014 15:54 Jan 25, 2023 Final rule; delay of effective date. We, the U.S. Fish and Wildlife Service (Service), are delaying the effective date of a final rule we published on November 30, 2022, reclassifying the northern long-eared bat (Myotis septentrionalis) as an endangered species under the Endangered Species Act of 1973, as amended (Act). This delay is necessary for the Service to finalize conservation tools and guidance documents to avoid confusion and disruption with members of the public who would be regulated by the rule and Federal agencies in the implementation of section 7 of the Act. DATES: The effective date of the final rule amending 50 CFR part 17, published November 30, 2022, at 87 FR 73488, is delayed until March 31, 2023. ADDRESSES: This final rule is available on the internet at https:// www.regulations.gov. For access to the docket to read the November 30, 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–R3–ES–2021–0140. FOR FURTHER INFORMATION CONTACT: Shauna Marquardt, Field Supervisor, U.S. Fish and Wildlife Service, Minnesota—Wisconsin Ecological Services Field Office, 4101 American Boulevard East, Bloomington, MN 55425; telephone 952–252–0092. 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-ofcontact in the United States. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DEPARTMENT OF THE INTERIOR AGENCY: ACTION: Jkt 259001 On November 30, 2022, we published in the Federal Register (87 FR 73488) a final rule reclassifying the northern long-eared bat as an endangered species under the Act (16 U.S.C. 1531 et seq.). The rule was to be effective on January 30, 2023. However, with this rule, we are delaying the effective date to March 31, 2023, without opportunity for public comment. This delay will allow us to finalize conservation tools and guidance documents, thereby preventing confusion and disruption with other Federal agencies under section 7 of the Act. Currently, the northern long-eared bat is listed as a threatened species under PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 the Act (see 80 FR 17974; April 2, 2015) with a species-specific rule issued under section 4(d) of the Act (hereafter, ‘‘section 4(d) rule’’) (see 81 FR 1900; January 14, 2016). When the November 30, 2022, final rule goes into effect, the reclassification of the northern longeared bat to an endangered species will nullify the section 4(d) rule that currently tailors prohibitions and exceptions to the prohibitions necessary and advisable for the species. We recognize that the change to endangered status will result in questions and concerns about establishing compliance under the Act for forestry, wind energy, infrastructure, and many other projects within the 37 States that comprise the range of the northern long-eared bat. We are committed to working proactively with stakeholders to conserve and recover northern long-eared bats while reducing impacts to landowners, where possible and practicable. Thus, we are working to finalize tools that will help guide project managers through section 7 consultation once the reclassification of the northern long-eared bat takes effect to prevent delay for projects currently reviewed under the section 4(d) rule. We are also developing an online determination key that will provide predetermined consultation outcomes and automatic project concurrence for some projects as well as voluntary guidance for wind facilities and private activities that involve habitat modification. Delaying the effective date will allow us to finalize these documents and communicate with external partners. Over the last 3 years, we have completed consultation under section 7(a)(2) of the Act on 24,480 projects across the 37-State range for the northern long-eared bat. Many of these projects are not complete. Under the 4(d) rule, incidental take of the northern long-eared bat was not prohibited except in certain situations. With the final rule reclassifying the northern long-eared bat as endangered, incidental take of the species that is reasonably certain to occur as a result of some of these actions would now be prohibited, absent an incidental take statement (ITS) from the Service in accordance with section 7(o)(2) of the Act. Therefore, when the final rule becomes effective, numerous Federal agencies will need to reinitiate consultation with the Service, and the Service must develop and provide biological opinions and incidental take statements with terms and conditions to ensure any taking of the northern long-eared bat that occurs as a result of each of the subject actions is not a prohibited taking E:\FR\FM\26JAR1.SGM 26JAR1 lotter on DSK11XQN23PROD with RULES1 Federal Register / Vol. 88, No. 17 / Thursday, January 26, 2023 / Rules and Regulations or likely to jeopardize the species. These projects would halt while the Service and the Federal action agency reinitiate consultation, which would affect projects covering the breadth of the species’ 37-State range and nearly all aspects of the U.S. economy, including agriculture (i.e., crop production, animal feeding operations, grazing, irrigation), infrastructure (i.e., power generation and transmission, roads, bridges, communication towers, dams, levees, pipelines, wastewater treatment, water supply), residential and commercial development, forestry, military operations, and mining. To date, we are aware of 3,095 projects for which we will need to provide an ITS when the November 30, 2022, reclassification rule goes into effect and the section 4(d) rule is nullified. These projects include road and bridge construction and maintenance projects across the 37-State range and forest management activities intended to prevent wildfires and sustain the health, diversity, and productivity of the Nation’s forests, which also provide important northern long-eared bat habitat. This number does not include new projects or ongoing projects, of the 24,480 previously mentioned, that may be impacted by a lack of the conservation tools and guidance documents that are currently under development. Without these final tools in place, many new and existing projects that require consultation will likely experience project delays. The tools and guidance documents will also help private landowners evaluate their risk of taking northern long-eared bats; therefore, nonFederal projects may also be delayed as entities determine whether or not they need take coverage for their activities under section 10(a)(1)(B) of the Act. We would not be meeting the intent of the Act to provide required protections for listed species, and our agency’s ‘‘due and timely execution of its functions’’ under the Act would be unavoidably prevented. This 60-day delay of the effective date of the November 30, 2022, final rule (87 FR 73488)—based on the good cause articulated below—is for the purpose of preventing confusion and disruption for Federal agencies in the implementation of section 7 of the Act. During this period, we will finalize the guidance and tools that are under development and communicate with external partners to minimize project delays. We are, therefore, delaying the effective date of the final rule from January 30, 2023, to March 31, 2023. VerDate Sep<11>2014 15:54 Jan 25, 2023 Jkt 259001 II. Good Cause Under the Administrative Procedure Act Our delay of the effective date of the reclassification of the northern longeared bat as an endangered species from January 30, 2023, to March 31, 2023, without opportunity for public comment, effective immediately upon publication of this document in the Federal Register, is based on the goodcause 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 30, 2022, final rule (87 FR 73488), and to make this action announcing the delay effective immediately. Under the totality of the circumstances presented here, notice and comment would be both impracticable and contrary to the public interest because it would prevent the Service from performing its functions, create confusion and disruption in the Act’s section 7(a)(2) consultation process and result in unnecessary delays in project reviews. 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 developing tools that will aid in the conservation and recovery of the northern long-eared bat. These tools are necessary to for the Service to review a large number of projects in a short period of time and ensure that projects proceed while necessary and appropriate conservation measures are implemented. 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 30, 2022, final rule reclassifying the northern long-eared bat as an endangered species under the Act (87 FR 73488) becomes effective on January 30, 2023, the 4(d) rule will be nullified and a large number of projects will require re-initiation of consultation under section 7(a)(2) of the Act without proper guidance in place to streamline consultation while ensuring consistent application of measures for the conservation of the northern long-eared bat. Thus, at least 3,095 ongoing projects will be suspended and planned projects delayed, and we will not have met our obligations under the Act to provide PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 4909 required protections for 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’’). Specifically, once the reclassification becomes effective, Federal agencies will have to work with the Service to determine whether and for which actions we need to provide an ITS per 50 CFR 402.14(i)(1) while also ensuring that these actions are not likely to jeopardize the species. The ITS would include terms and conditions for the Federal agencies to implement to ensure that the taking of the northern longeared bat that occurs is not a prohibited taking when the November 30, 2022, final rule becomes effective. A lack of tools and guidance that would streamline consultations could lead to confusion and disruption for Federal agencies with follow-on effects to Federal contractors and any project receiving Federal funds. Even if the November 30, 2022, final rule were to become effective only briefly during a public comment period, the level of uncertainty with respect to the Service’s conservation direction would cause significant confusion and disruption in the section 7(a)(2) consultation process and impede the Federal agencies from executing their conservation mandates. We also expect confusion and project delays for non-Federal projects as entities determine whether or not they need take coverage for their activities under section 10(a)(1)(B) of the Act. The tools and guidance documents will also help private landowners evaluate their risk of taking northern long-eared bats. In sum, we find that the totality of the circumstances here—the potential for many projects to be delayed and the threat 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 30, 2023, for the November 30, 2022, final rule (87 FR 73488). 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 E:\FR\FM\26JAR1.SGM 26JAR1 4910 Federal Register / Vol. 88, No. 17 / Thursday, January 26, 2023 / Rules and Regulations good cause (5 U.S.C. 553(d)). There is good cause to allow this 60-day delay of the November 30, 2022, final rule’s effective date to go into effect immediately because the November 30, 2022, final rule would go into effect on January 30, 2023, if this rule delaying the effective date were itself not to become effective for 30 days. That result would create the same issues as discussed above, i.e., prevent the Service from performing its functions, create confusion and disruption in the Act’s section 7(a)(2) consultation process, result in unnecessary delays in project approvals, and thwart the conservation purposes of the Act. Additionally, the northern long-eared bat is unlikely to be harmed by this delay because the species will continue to be protected under the Act as a threatened species and it is hibernating throughout the vast majority of its range (typically through the end of March) during this time. We, therefore, conclude that we have good cause to issue this final rule, effective immediately, delaying the effective date of the November 30, 2022, final rule (87 FR 73488) from January 30, 2023, to March 31, 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. 2023–01656 Filed 1–25–23; 8:45 am] BILLING CODE 4333–15–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 221206–0261] RIN 0648–BM02 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2023–2024 Biennial Specifications and Management Measures; Inseason Adjustments National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; inseason adjustments to biennial groundfish management measures. lotter on DSK11XQN23PROD with RULES1 AGENCY: VerDate Sep<11>2014 15:54 Jan 25, 2023 Jkt 259001 This final rule announces routine inseason adjustments to management measures in commercial and recreational groundfish fisheries. This action is intended to allow fishing vessels to access more abundant groundfish stocks while protecting rebuilding stocks. DATES: This final rule is effective January 26, 2023. ADDRESSES: Electronic Access: This rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council’s website at https:// www.pcouncil.org/. FOR FURTHER INFORMATION CONTACT: Dr. Sean Matson, phone: 206–526–6187 or email: sean.matson@noaa.gov. SUPPLEMENTARY INFORMATION: SUMMARY: Background The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish seaward of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for 2-year periods (biennia). NMFS published the final rule to implement harvest specifications and management measures for the 2023– 2024 biennium for most species managed under the PCGFMP on December 16, 2022 (87 FR 77007). The management measures set at the start of the biennial harvest specifications cycle help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal. At its November 2022 meeting, the Council recommended modifying fixed gear trip limits for limited entry (LE) and open access (OA) sablefish, north of 36° N latitude, for LE canary rockfish north and south of 40°10′ N latitude, and for LE and OA lingcod north of 42° N latitude; as well as modifying bag limits in the Oregon recreational longleader fishery, after updated information regarding projected catch and attainment became available, as well as requests from industry. Pacific Coast groundfish fisheries are managed using harvest specifications or limits (e.g., PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 overfishing limits [OFL], acceptable biological catch [ABC], annual catch limits [ACL] and harvest guidelines [HG]) recommended biennially by the Council and based on the best scientific information available at that time (50 CFR 660.60(b)). During development of the harvest specifications, the Council also recommends management measures (e.g., trip limits, area closures, and bag limits) that are meant to control catch so as not to exceed the harvest specifications. The harvest specifications and management measures developed for the 2023–2024 biennium used data through the 2021 fishing year. Each of the adjustments to management measures discussed below are based on updated fisheries information that was unavailable when the analysis for the current harvest specifications was completed. As new fisheries data becomes available, adjustments to management measures are projected so as to help harvesters achieve but not exceed the harvest limits. Sablefish Sablefish is an important commercial species on the West Coast with vessels targeting sablefish with both trawl and fixed gear (longlines and pots/traps). Sablefish is managed with separate ACLs for the two areas north and south of 36° N lat. The 2023 ACLs for the North and South are 8,486 mt and 2,338 mt, respectively. At the November 2022 Council meeting, the Council’s Groundfish Management Team (GMT) received requests from industry members and members of the Council’s Groundfish Advisory Subpanel (GAP) to examine the potential to increase sablefish trips limits for the fixed gear, LE and OA fisheries north of 36° N lat. The intent of increasing trip limits is to increase harvest opportunities for vessels targeting sablefish. To evaluate potential increases to sablefish trip limits for the LE and OA fisheries, the GMT made model-based landings projections under current regulations and alternative sablefish trip limits, including the limits ultimately recommended by the Council, through the remainder of 2023. Table 1 shows the projected sablefish landings by fishery, relevant sablefish allocations, and the projected attainment as a percentage of the landing target, under both the current trip limits and the Council’s recommended adjusted trip limits. These projections were based on the most recent catch information available through late October 2022. Since industry did not request changes to sablefish trip limits for either the LE or E:\FR\FM\26JAR1.SGM 26JAR1

Agencies

[Federal Register Volume 88, Number 17 (Thursday, January 26, 2023)]
[Rules and Regulations]
[Pages 4908-4910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01656]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2021-0140; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG14


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Northern Long-Eared Bat; Delay of Effective Date

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; delay of effective date.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are delaying 
the effective date of a final rule we published on November 30, 2022, 
reclassifying the northern long-eared bat (Myotis septentrionalis) as 
an endangered species under the Endangered Species Act of 1973, as 
amended (Act). This delay is necessary for the Service to finalize 
conservation tools and guidance documents to avoid confusion and 
disruption with members of the public who would be regulated by the 
rule and Federal agencies in the implementation of section 7 of the 
Act.

DATES: The effective date of the final rule amending 50 CFR part 17, 
published November 30, 2022, at 87 FR 73488, is delayed until March 31, 
2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. For access to the docket to read the November 30, 
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-R3-ES-2021-0140.

FOR FURTHER INFORMATION CONTACT: Shauna Marquardt, Field Supervisor, 
U.S. Fish and Wildlife Service, Minnesota--Wisconsin Ecological 
Services Field Office, 4101 American Boulevard East, Bloomington, MN 
55425; telephone 952-252-0092. 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 30, 2022, we published in the Federal Register (87 FR 
73488) a final rule reclassifying the northern long-eared bat as an 
endangered species under the Act (16 U.S.C. 1531 et seq.). The rule was 
to be effective on January 30, 2023. However, with this rule, we are 
delaying the effective date to March 31, 2023, without opportunity for 
public comment. This delay will allow us to finalize conservation tools 
and guidance documents, thereby preventing confusion and disruption 
with other Federal agencies under section 7 of the Act.
    Currently, the northern long-eared bat is listed as a threatened 
species under the Act (see 80 FR 17974; April 2, 2015) with a species-
specific rule issued under section 4(d) of the Act (hereafter, 
``section 4(d) rule'') (see 81 FR 1900; January 14, 2016). When the 
November 30, 2022, final rule goes into effect, the reclassification of 
the northern long-eared bat to an endangered species will nullify the 
section 4(d) rule that currently tailors prohibitions and exceptions to 
the prohibitions necessary and advisable for the species. We recognize 
that the change to endangered status will result in questions and 
concerns about establishing compliance under the Act for forestry, wind 
energy, infrastructure, and many other projects within the 37 States 
that comprise the range of the northern long-eared bat. We are 
committed to working proactively with stakeholders to conserve and 
recover northern long-eared bats while reducing impacts to landowners, 
where possible and practicable. Thus, we are working to finalize tools 
that will help guide project managers through section 7 consultation 
once the reclassification of the northern long-eared bat takes effect 
to prevent delay for projects currently reviewed under the section 4(d) 
rule. We are also developing an online determination key that will 
provide predetermined consultation outcomes and automatic project 
concurrence for some projects as well as voluntary guidance for wind 
facilities and private activities that involve habitat modification. 
Delaying the effective date will allow us to finalize these documents 
and communicate with external partners.
    Over the last 3 years, we have completed consultation under section 
7(a)(2) of the Act on 24,480 projects across the 37-State range for the 
northern long-eared bat. Many of these projects are not complete. Under 
the 4(d) rule, incidental take of the northern long-eared bat was not 
prohibited except in certain situations. With the final rule 
reclassifying the northern long-eared bat as endangered, incidental 
take of the species that is reasonably certain to occur as a result of 
some of these actions would now be prohibited, absent an incidental 
take statement (ITS) from the Service in accordance with section 
7(o)(2) of the Act. Therefore, when the final rule becomes effective, 
numerous Federal agencies will need to reinitiate consultation with the 
Service, and the Service must develop and provide biological opinions 
and incidental take statements with terms and conditions to ensure any 
taking of the northern long-eared bat that occurs as a result of each 
of the subject actions is not a prohibited taking

[[Page 4909]]

or likely to jeopardize the species. These projects would halt while 
the Service and the Federal action agency reinitiate consultation, 
which would affect projects covering the breadth of the species' 37-
State range and nearly all aspects of the U.S. economy, including 
agriculture (i.e., crop production, animal feeding operations, grazing, 
irrigation), infrastructure (i.e., power generation and transmission, 
roads, bridges, communication towers, dams, levees, pipelines, 
wastewater treatment, water supply), residential and commercial 
development, forestry, military operations, and mining.
    To date, we are aware of 3,095 projects for which we will need to 
provide an ITS when the November 30, 2022, reclassification rule goes 
into effect and the section 4(d) rule is nullified. These projects 
include road and bridge construction and maintenance projects across 
the 37-State range and forest management activities intended to prevent 
wildfires and sustain the health, diversity, and productivity of the 
Nation's forests, which also provide important northern long-eared bat 
habitat. This number does not include new projects or ongoing projects, 
of the 24,480 previously mentioned, that may be impacted by a lack of 
the conservation tools and guidance documents that are currently under 
development. Without these final tools in place, many new and existing 
projects that require consultation will likely experience project 
delays. The tools and guidance documents will also help private 
landowners evaluate their risk of taking northern long-eared bats; 
therefore, non-Federal projects may also be delayed as entities 
determine whether or not they need take coverage for their activities 
under section 10(a)(1)(B) of the Act. We would not be meeting the 
intent of the Act to provide required protections for listed species, 
and our agency's ``due and timely execution of its functions'' under 
the Act would be unavoidably prevented.
    This 60-day delay of the effective date of the November 30, 2022, 
final rule (87 FR 73488)--based on the good cause articulated below--is 
for the purpose of preventing confusion and disruption for Federal 
agencies in the implementation of section 7 of the Act. During this 
period, we will finalize the guidance and tools that are under 
development and communicate with external partners to minimize project 
delays. We are, therefore, delaying the effective date of the final 
rule from January 30, 2023, to March 31, 2023.

II. Good Cause Under the Administrative Procedure Act

    Our delay of the effective date of the reclassification of the 
northern long-eared bat as an endangered species from January 30, 2023, 
to March 31, 2023, without opportunity for public comment, 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 30, 2022, final rule (87 FR 
73488), and to make this action announcing the delay effective 
immediately. Under the totality of the circumstances presented here, 
notice and comment would be both impracticable and contrary to the 
public interest because it would prevent the Service from performing 
its functions, create confusion and disruption in the Act's section 
7(a)(2) consultation process and result in unnecessary delays in 
project reviews. 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 developing tools that will aid in 
the conservation and recovery of the northern long-eared bat. These 
tools are necessary to for the Service to review a large number of 
projects in a short period of time and ensure that projects proceed 
while necessary and appropriate conservation measures are implemented. 
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 30, 2022, final rule reclassifying the northern long-eared 
bat as an endangered species under the Act (87 FR 73488) becomes 
effective on January 30, 2023, the 4(d) rule will be nullified and a 
large number of projects will require re-initiation of consultation 
under section 7(a)(2) of the Act without proper guidance in place to 
streamline consultation while ensuring consistent application of 
measures for the conservation of the northern long-eared bat. Thus, at 
least 3,095 ongoing projects will be suspended and planned projects 
delayed, and we will not have met our obligations under the Act to 
provide required protections for 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'').
    Specifically, once the reclassification becomes effective, Federal 
agencies will have to work with the Service to determine whether and 
for which actions we need to provide an ITS per 50 CFR 402.14(i)(1) 
while also ensuring that these actions are not likely to jeopardize the 
species. The ITS would include terms and conditions for the Federal 
agencies to implement to ensure that the taking of the northern long-
eared bat that occurs is not a prohibited taking when the November 30, 
2022, final rule becomes effective. A lack of tools and guidance that 
would streamline consultations could lead to confusion and disruption 
for Federal agencies with follow-on effects to Federal contractors and 
any project receiving Federal funds. Even if the November 30, 2022, 
final rule were to become effective only briefly during a public 
comment period, the level of uncertainty with respect to the Service's 
conservation direction would cause significant confusion and disruption 
in the section 7(a)(2) consultation process and impede the Federal 
agencies from executing their conservation mandates. We also expect 
confusion and project delays for non-Federal projects as entities 
determine whether or not they need take coverage for their activities 
under section 10(a)(1)(B) of the Act. The tools and guidance documents 
will also help private landowners evaluate their risk of taking 
northern long-eared bats.
    In sum, we find that the totality of the circumstances here--the 
potential for many projects to be delayed and the threat 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 30, 2023, for the November 30, 
2022, final rule (87 FR 73488).
    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

[[Page 4910]]

good cause (5 U.S.C. 553(d)). There is good cause to allow this 60-day 
delay of the November 30, 2022, final rule's effective date to go into 
effect immediately because the November 30, 2022, final rule would go 
into effect on January 30, 2023, if this rule delaying the effective 
date were itself not to become effective for 30 days. That result would 
create the same issues as discussed above, i.e., prevent the Service 
from performing its functions, create confusion and disruption in the 
Act's section 7(a)(2) consultation process, result in unnecessary 
delays in project approvals, and thwart the conservation purposes of 
the Act. Additionally, the northern long-eared bat is unlikely to be 
harmed by this delay because the species will continue to be protected 
under the Act as a threatened species and it is hibernating throughout 
the vast majority of its range (typically through the end of March) 
during this time.
    We, therefore, conclude that we have good cause to issue this final 
rule, effective immediately, delaying the effective date of the 
November 30, 2022, final rule (87 FR 73488) from January 30, 2023, to 
March 31, 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. 2023-01656 Filed 1-25-23; 8:45 am]
BILLING CODE 4333-15-P
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