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Federal Register / Vol. 86, No. 38 / Monday, March 1, 2021 / Rules and Regulations
required protections for listed species.
See Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 1978 in enacting the ESA, it is beyond doubt that Congress intended endangered species to be afforded the highest of priorities.
Specifically, once the exclusions become effective, Federal agencies will no longer be required to consult with the Service under section 7a2 of the ESA to determine if agency actions will result in the destruction or adverse modification of that formerly designated habitat. Federal agencies could thus proceed to undertake or to authorize others to undertake activities that would remove that habitat before the Service has the opportunity to reconsider whether those exclusions were appropriate in the first place.
Because the habitat is defined by forested stands, particularly of older trees, it cannot be replaced for many decades once removed. Even if the final exclusions rule were to become effective only briefly such that immediate implementation of habitat-removal activities would be unlikely or limited, having areas previously designated be excluded, then reconsidered and potentially included again, would cause confusion and disruption in the section 7a2 consultation process, again impeding the Federal agencies from executing their conservation functions, and also affecting third parties reliant on the Federal agency activities.
Allowing the January 15, 2021, Final Rule to take effect would also undermine the citizen-suit procedures established in the statute. The Act provides that persons alleging a violation must provide 60-day notice of intent to sue NOI prior to filing suit.
16 U.S.C. 1540g2C. The purpose of the notice requirement is to provide agencies with an opportunity to review their actions and take corrective measures if warranted. Alliance for the Wild Rockies v. USDA, 772 F.3d 592, 601 9th Cir. 2014. As discussed above, we have received NOIs that, among other things, raise a substantial allegation of a notice-and-comment defect in the January 15, 2021, Final Rule. Upon initial review of the NOIs, the Service has concluded that it needs additional time to review the allegations in the NOIs to determine whether they have merit. However, notice and comment on this delay of 45 days would prevent the Service from determining whether corrective measures are warranted before expiration of the 60day period intended for this purpose.
We are also considering whether we may need more time for review, and as noted above, therefore seek comment on
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whether we should further extend the effective date and, if so, how long the further extension should be.
Finally, it is important to recognize that excluding areas from critical habitat is not required by the ESAthe authority to exclude particular areas from designations of critical habitat under the second sentence of section 4b2 of the ESA is in the discretion of the Secretary. In contrast, other duties relating to critical habitat are mandatory: The duty for the Service to designate critical habitat, 16 U.S.C.
1533a3, and the duty of Federal agencies to ensure that their actions are not likely to result in the destruction or adverse modification of critical habitat, 16 U.S.C. 1536a2. Therefore, a delay in the effective date of the final rule excluding areas from critical habitat for the northern spotted owl does not delay compliance with a mandate of the Act.
Delaying the effective date of the January 15, 2021, Final Rule, which purported to exercise that discretionary authority, simply preserves the status quo while we undertake additional review to ensure compliance with the legal mandates and conservation purposes of the ESA.
In sum, we find that the totality of the circumstances herethe history of litigation and newly threatened suits, the potential for a logical outgrowth problem in the final rule, and the threat to the Services execution of its statutory functions, among other issuesindicate that there is good cause to forgo notice and comment procedures here because it is impractical and contrary to the public interest for the Service to provide notice and an opportunity to comment on an extension of the effective date of March 16, 2021, for the January 15, 2021, Final Rule.
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 so as 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. 553d. There is good cause to allow this extension of the January 15, 2021, Final Rules effective date to go into effect immediately because it preserves the status quo, and there is no change to which parties would need time to adjust their behavior. Further, if this rule extending the effective date were itself not to become effective for 30 days, it would mean that the January 15, 2021, Final
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Rule would go into effect on March 16, 2021. That would create the same issues as discussed in the preceding paragraphs, i.e., prevent the Service from performing its functions, create confusion and disruption in the ESA
section 7a2 consultation process, and thwart the conservation purposes of the ESA.
We therefore conclude that we have good cause to issue this final rule, effective immediately, extending the effective date of the January 15, 2021, Final Rule until April 30, 2021.
The White House memorandum also recommends that, for rules postponed for further review, agencies consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider any requests for reconsideration involving such rules.
Consistent with this guidance, this rule provides notice and invites public comments on issues of fact, law, and policy raised by the rule, whether we should further extend the effective date, and, if so, how long the further extension should be. A delay in the effective date and opening of a new 30day comment period is necessary to ensure that the public has the opportunity to provide, and the Service is able to consider, additional comments to fully inform the Services decisions in light of current law and policy before the January 15, 2021, Final Rule becomes effective.
Public Comments You may submit your comments and materials concerning this action by one of the methods listed in ADDRESSES.
Comments must be submitted to http
www.regulations.gov before 11:59 p.m.
Eastern Time on the date specified in DATES. We will not consider mailed comments that are not postmarked by the date specified in DATES. We will post your entire commentincluding your personal identifying informationon http www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive will be available for public inspection on http www.regulations.gov.

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