Endangered and Threatened Wildlife and Plants; 4(d) Rule for the Georgetown Salamander, 19050-19056 [2015-08093]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 80, Number 68 (Thursday, April 9, 2015)]
[Proposed Rules]
[Pages 19050-19056]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-08093]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2014-0008; 4500030113]
RIN 1018-BA32


Endangered and Threatened Wildlife and Plants; 4(d) Rule for the 
Georgetown Salamander

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are amending our 
proposed rule under authority of section 4(d) of the Endangered Species 
Act of 1973, as amended (Act), that provides measures that are 
necessary and advisable to provide for the conservation of the 
Georgetown salamander (Eurycea naufragia), a species that occurs in 
Texas. We are seeking public comments on this revised proposed rule. We 
also announce the availability of a draft environmental assessment of 
this revised proposed rule.

DATES: We will consider comments received or postmarked on or before 
May 11, 2015. Comments submitted electronically using the Federal 
eRulemaking Portal (see Public Comments, below) must be received by 
11:59 p.m. Eastern Time on the closing date.

ADDRESSES: Document availability: You may obtain copies of the original 
proposed rule, this revised proposed rule, and the draft environmental 
assessment at https://www.regulations.gov at Docket No. FWS-R2-ES-2014-
0008, or by mail from the Austin Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).
    Written comments: You may submit comments on this revised proposed 
rule by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2014-0008, 
which is the docket number for this rulemaking. Then click on the 
Search button. When you have located the correct document, you may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2014-0008; Division of Policy, 
Performance, and Management Programs; U.S. Fish and Wildlife Service, 
MS: BPHC; 5275

[[Page 19051]]

Leesburg Pike; Falls Church, VA 22041-3803.
    We request that you send comments only by one of the methods 
described above. We will post all comments on https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section, 
below, for more information).

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
10711 Burnet Rd, Suite 200, Austin, TX 78758; telephone 512-490-0057; 
facsimile 512-490-0974. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this revised proposed rule. We particularly 
seek comments concerning:
    (1) Whether the measures outlined in this revised proposed rule are 
necessary and advisable for the conservation and management of the 
Georgetown salamander;
    (2) The effectiveness of the adaptive management component 
incorporated within the measures outlined in this revised proposed 
rule; and
    (3) Additional provisions the Service may wish to consider for a 
rule issued under section 4(d) of the Act (16 U.S.C. 1531 et seq.) in 
order to conserve, recover, and manage the Georgetown salamander.
    We will consider all comments and information received during our 
preparation of a final rule. Accordingly, the final rule may differ 
from this proposal.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, 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. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On August 22, 2012, we published a proposed rule to list the 
Georgetown salamander (Eurycea naufragia), Salado salamander (Eurycea 
chisholmensis), Jollyville Plateau salamander (Eurycea tonkawae), and 
Austin blind salamander (Eurycea waterlooensis) as endangered species 
and to designate critical habitat for these species under the Act (77 
FR 50768). On February 24, 2014, we published a final determination to 
list the Georgetown salamander and the Salado salamander as threatened 
species under the Act (79 FR 10236), and a proposed rule under section 
4(d) of the Act (a proposed 4(d) rule) for the Georgetown salamander 
(79 FR 10077). Please see the final listing determination (79 FR 10236) 
for additional information concerning previous Federal actions for the 
Georgetown salamander.

Background

    The Georgetown salamander is entirely aquatic and depends on water 
from the Edwards Aquifer in sufficient quantity and quality to meet its 
life-history requirements for survival, growth, and reproduction. 
Degradation of habitat, in the form of reduced water quality and 
quantity and disturbance of spring sites, is the main threat to this 
species. For more information on the Georgetown salamander and its 
habitat, please refer to the February 24, 2014, final listing 
determination (79 FR 10236).
    The Act does not specify particular prohibitions, or exceptions to 
those prohibitions, for threatened species. Instead, under section 4(d) 
of the Act, the Secretary of the Interior has the discretion to issue 
such regulations as she deems necessary and advisable to provide for 
the conservation of such species. The Secretary also has the discretion 
to prohibit by regulation, with respect to any threatened wildlife 
species, any act prohibited under section 9(a)(1) of the Act. 
Exercising this discretion, the Service developed general prohibitions 
(50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) 
under the Act that apply to most threatened wildlife species. 
Alternately, for other threatened species, under the authority of 
section 4(d) of the Act, the Service may develop specific prohibitions 
and exceptions that are tailored to the specific conservation needs of 
the species. In such cases, some of the prohibitions and authorizations 
under 50 CFR 17.31 and 17.32 may be appropriate for the species and 
incorporated into a rule under section 4(d) of the Act. However, these 
rules, known as 4(d) rules, will also include provisions that are 
tailored to the specific conservation needs of the threatened species 
and may be more or less restrictive than the general provisions at 50 
CFR 17.31.

Provisions of the Revised Proposed 4(d) Rule for the Georgetown 
Salamander

    Under section 4(d) of the Act, the Secretary may publish a rule 
that modifies the standard protections for threatened species and that 
contains prohibitions tailored to the conservation of the species and 
that are determined to be necessary and advisable. Under this revised 
proposed 4(d) rule, the Service would provide that all of the 
prohibitions under 50 CFR 17.31 and 17.32 are necessary and advisable 
and, therefore, apply to the Georgetown salamander, except as noted 
below. This revised proposed 4(d) rule would not remove or alter in any 
way the consultation requirements under section 7 of the Act.
    On December 20, 2013, the City Council of Georgetown, Texas, 
approved the Edwards Aquifer Recharge Zone Water Quality Ordinance 
(Ordinance No. 2013-59). In the February 24, 2014, proposed 4(d) rule 
(79 FR 10077), the Service proposed that take incidental to activities 
that are conducted consistent with the conservation measures contained 
in the ordinance would not be prohibited under the Act. Since we 
published the proposed 4(d) rule, the City of Georgetown has 
incorporated, and expanded upon, the ordinance in their Unified 
Development Code (UDC), which is the primary tool to regulate land 
development in Georgetown. This revised proposed rule provides greater 
clarity around the activities that are proposed to be covered.
    For activities outside of habitat occupied by the Georgetown 
salamander, we propose that take of Georgetown salamanders that is 
incidental to regulated activities that are conducted consistent with 
the water quality regulations contained in chapter 11.07 of the City of 
Georgetown Unified Development Code (UDC 11.07) (https://udc.georgetown.org/) would not be prohibited under the Act. The water 
quality regulations in UDC 11.07 were finalized on February 24, 2015. 
Chapter

[[Page 19052]]

11.07 of the UDC describes stream and spring buffers, water quality 
best management practices, and geologic assessments that are required 
for property development within the Northern Edwards Aquifer Recharge 
Zone and the City of Georgetown.
    When a property owner submits a development application for a 
regulated activity on a tract of land located over the Edwards Aquifer 
Recharge Zone, that individual is required to submit a geologic 
assessment. The geologic assessment identifies and describes all 
springs and streams on any subject property, and the UDC establishes 
buffer zones around identified springs and streams. For springs, the 
buffer encompasses 50 meters (164 feet) extending from the approximate 
center of the spring outlet that is identified in a geologic 
assessment. For streams, the boundaries of the buffer must coincide 
with either the boundaries of the Federal Emergency Management Agency 1 
percent floodplain or a calculated 1 percent floodplain, whichever is 
smaller. Thus, these stream buffers may vary depending on the size of 
the stream, but they may be no smaller than 200 feet (61 meters) wide 
with at least 75 feet (23 meters) from the centerline of the stream. 
Section 11.07.003 of the UDC states that no ``regulated activities'' 
may be conducted within the spring and stream buffers. ``Regulated 
activities'' are defined in Title 30, Texas Administrative Code section 
213.3(28) as any construction-related or post-construction activities 
on the Recharge Zone of the Edwards Aquifer having the potential for 
polluting the Edwards Aquifer and hydrologically connected surface 
streams. More specific details on spring and stream buffers can be 
found in sections 11.07.003A. and B. of the UDC.
    In addition to the establishment of these spring and stream 
buffers, the UDC outlines water quality best management practices 
designed to minimize sediment runoff, increase the removal of total 
suspended solids, prevent an increase in flow rates, and ensure spill 
containment for new or expanded roadways. These regulations in chapter 
11.07 of the UDC are designed to reduce water quality degradation that 
may occur as a result of development. By reducing further water quality 
degradation that may result from development, these protective measures 
are also expected to minimize habitat degradation to the Georgetown 
salamander.
    The UDC also outlines exemptions from the requirement to prepare a 
geologic assessment, the process by which a landowner may request a 
variance to the spring and stream buffer requirements, and exemptions 
to the spring and stream buffer requirements of section 11.07.003. 
Small (less than 5 acres (2 hectares)) single-family and two-family 
residential developments are exempt from submitting a geologic 
assessment; however, these developments are required to implement UDC 
water quality measures. Property owners may request a variance from the 
spring or stream buffer requirements. For unoccupied habitat, variances 
will be considered by the City of Georgetown's Planning and Zoning 
Commission. Properties with a site occupied by the Georgetown 
salamander are exempt from the spring and stream buffer requirements in 
chapter 11.07. Rather, UDC Appendix A outlines voluntary conservation 
measures to be implemented when undertaking regulated activities that 
occur on a tract of land with an occupied site, or within 984 feet (300 
meters) of an occupied site.
    For activities involving habitat occupied by the Georgetown 
salamander, we propose that take of the Georgetown salamander that is 
incidental to regulated activities that are conducted consistent with 
the voluntary guidelines described in Appendix A of the UDC will not be 
prohibited under the Act. Similar to chapter 11.07 of the UDC, the 
guidelines in Appendix A establish stream and spring buffers and 
allowable activities within those buffers; however, the measures 
described in Appendix A create larger, more protective buffers than 
those that appear in chapter 11 for unoccupied sites. First, Appendix A 
establishes a ``No-Disturbance Zone'' in the stream or waterway that a 
spring drains directly into; this zone extends 264 feet (80 meters) 
upstream and downstream from the approximate center the spring outlet 
of an occupied site and is bounded by the top of the bank. No regulated 
activities may occur within the ``No-Disturbance Zone.'' In addition, 
Appendix A establishes a ``Minimal-Disturbance Zone'' for the 
subsurface area that drains to the spring(s) at an occupied site; this 
zone consists of the area within 984 feet (300 meters) of the 
approximate center of the spring outlet of an occupied site, except 
those areas within the ``No-Disturbance Zone.'' Most regulated 
activities are also prohibited in the ``Minimal-Disturbance Zone,'' but 
single-family developments; limited parks and open space development; 
and wastewater infrastructure will be allowed. For additional details 
on the buffers around occupied sites and prohibited actions, please 
refer to the UDC Appendix A to Chapter 11.
    Section 11.07.008 of the UDC also establishes an Adaptive 
Management Working Group (Working Group) that is responsible for 
reviewing data on a regular basis and making recommendations for 
specific changes in the management directions related to the voluntary 
conservation measures for occupied sites in Appendix A. Adaptive 
management of preservation of the Georgetown salamander is one of the 
duties tasked to the Working Group. Therefore, the guidelines described 
in Appendix A may change over time. Appendix A also indicates that the 
Working Group is authorized to hear and make recommendations to the 
Service regarding variances from the voluntary guidelines on a case-by-
case basis and as long as the proposed variance will achieve the same 
level or greater level of water quality benefits and conservation 
objectives to the Georgetown salamander. The Working Group will also 
develop an annual report regarding the preservation of the Georgetown 
salamander, continuous monitoring of the Georgetown salamander, 
assessment of research priorities, and the effectiveness of the water 
quality regulations and guidelines. Copies of the UDC 11.07 and 
Appendix A are available at https://www.regulations.gov at Docket No. 
FWS-R2-ES-2014-0008.

Proposed Determination

    Section 4(d) of the Act states that ``the Secretary shall issue 
such regulations as [s]he deems necessary and advisable to provide for 
the conservation'' of species listed as threatened species. 
Conservation is defined in the Act to mean ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to [the Act] are no longer necessary.''
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, the Secretary may find that it 
is necessary and advisable not to include a taking prohibition, or to 
include a limited taking prohibition. See Alsea Valley Alliance v. 
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, and 2002 
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in 
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule 
need not address all the threats to the species. As noted by Congress 
when the

[[Page 19053]]

Act was initially enacted, ``once an animal is on the threatened list, 
the Secretary has an almost infinite number of options available to him 
with regard to the permitted activities for those species. [S]he may, 
for example, permit taking, but not importation of such species,'' or 
she may choose to forbid both taking and importation but allow the 
transportation of such species, as long as the prohibitions, and 
exceptions to those prohibitions, will ``serve to conserve, protect, or 
restore the species concerned in accordance with the purposes of the 
Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
    Section 9 prohibitions make it illegal for any person subject to 
the jurisdiction of the United States to take (including harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt 
any of these), import or export, ship in interstate commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any wildlife species listed as an endangered 
species, without written authorization. It also is illegal under 
section 9(a)(1) of the Act to possess, sell, deliver, carry, transport, 
or ship any such wildlife that is taken illegally. Prohibited actions 
consistent with section 9 of the Act are outlined for threatened 
wildlife in 50 CFR 17.31(a) and (b). For the Georgetown salamander, the 
Service has determined that a 4(d) rule tailored to its specific 
conservation needs is appropriate. This revised proposed 4(d) rule 
proposes that all prohibitions in 50 CFR 17.31(a) and (b) will apply to 
the Georgetown salamander, except as described below.
    Under this revised proposed 4(d) rule, incidental take of the 
Georgetown salamander will not be considered a violation of section 9 
of the Act if the take occurs on privately owned, State, or County land 
and from regulated activities that are conducted consistent with the 
water quality protection measures contained in chapter 11.07 and 
Appendix A of the City of Georgetown Unified Development Code. This 
revised proposed 4(d) rule refers to the definition of ``regulated 
activities'' in Title 30, Texas Administrative Code section 213.3(28), 
which are any construction related or post-construction activities on 
the recharge zone of the Edwards Aquifer having the potential for 
polluting the Edwards Aquifer and hydrologically connected surface 
streams. Our rationale for including this provision is explained in the 
paragraphs that follow.
    The local community in the City of Georgetown and Williamson County 
has expressed a desire to design and implement a local solution to 
conserving the natural resources in their county, including water 
quality and the Georgetown salamander (City of Georgetown Resolution 
No. 082812-N). Because impervious cover levels within most of the 
springsheds known to be occupied by the Georgetown salamander are still 
relatively low, a window of opportunity exists to design and implement 
measures to protect water quality and, therefore, conserve the 
salamander. The City and County's approach for accomplishing this 
conservation goal includes both regulatory and non-regulatory actions, 
as described below. Regulatory actions include passage of the Edwards 
Aquifer Recharge Zone Water Quality Ordinance (Ordinance No. 2013-59) 
by the Georgetown City Council on December 20, 2013, and the revisions 
to their UDC (chapter 11.07) finalized on February 24, 2015. Their 
approach also includes nonregulatory actions, such as the technical 
guidance provided in Appendix A of the UDC, which outlines additional 
conservation measures to protect water quality and to avoid direct 
destruction of occupied sites.
    Habitat modification, in the form of degraded water quality and 
quantity and disturbance of spring sites, is the primary threat to the 
Georgetown salamander. The conservation measures in both chapter 11.07 
and Appendix A of the UDC provide a variety of water quality protection 
measures, such as the creation of buffers around springs and streams 
where regulated activities are prohibited, designed to lessen impacts 
to the water quality of springs and streams in the Edwards Aquifer 
Recharge Zone. Although the UDC addresses water quality, regulating 
water quantity and groundwater withdrawal is outside the scope of the 
UDC. The UDC is applied throughout the watersheds that contain the 
Georgetown salamander. This watershed-level approach works to avoid 
incremental environmental degradation that may go unnoticed on a small, 
individual project scale. Through this revised proposed 4(d) rule, we 
could achieve a greater level of conservation for the Georgetown 
salamander than we could without it because it encourages 
implementation of the water quality protective measures that are likely 
to limit habitat degradation for Georgetown salamanders. The majority 
of salamanders occur within 164 feet (50 meters) of a spring outlet; 
this coincides with the spring and stream buffers for unoccupied sites. 
We also believe the salamander populations exist through underground 
conduits that may extend 984 feet (300 meters) around cave or spring 
points; this area coincides with the size of the ``Minimal-
Disturbance'' Zones for occupied sites. By limiting development 
activities within these respective areas, the measures in the UDC 11.07 
and Appendix A are expected to limit water quality degradation in these 
areas that may provide suitable surface or subsurface habitat for the 
Georgetown salamander regardless of occupancy. In addition, although 
the areas that provide recharge and the source water for specific areas 
occupied by the salamander have not been precisely delineated, this 
watershed-level approach makes it likely that these unknown recharge 
areas are covered under the UDC. This is because the UDC requires 
buffers around all springs and streams where regulated activities are 
prohibited; thus, water quality impacts are expected to be limited.
    This watershed-level approach also includes an adaptive management 
component that will allow the Adaptive Management Working Group 
(Working Group) to evaluate the response of salamander populations to 
management actions and quickly respond and recommend adjustments, if 
necessary, to management strategies to protect water quality consistent 
with conserving the Georgetown salamander. The UDC formalizes the 
Working Group with representatives from the City of Georgetown, 
Williamson County, Texas Commission on Environmental Quality, Texas 
Parks and Wildlife Department, university scientists, private real 
estate developers, and the U.S. Fish and Wildlife Service. The role of 
the Working Group is to:
     Review scientific information to understand the latest 
science on watershed management practices and the conservation of the 
Georgetown salamander;
     Recommend support for additional Georgetown salamander 
scientific studies and oversee a long-term monitoring program to ensure 
that salamander abundance at monitored locations are stable or 
improving;
     Conduct and evaluate water quality trend analysis as part 
of its long-term monitoring program to ensure water quality conditions 
do not decline and, in turn, result in impacts to salamander abundance; 
and
     Make recommendations for changes to the UDC Appendix A for 
occupied sites if scientific and monitoring information indicates that 
water quality and salamander protection measures need changes to 
minimize impacts to salamander populations and to attain the goal of 
species conservation.

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    While a window of opportunity exists to design and implement 
conservation measures to conserve the Georgetown salamander, human 
population levels and development are expected to increase rapidly in 
Williamson County (Texas State Data Center 2012, pp. 166-167). 
Therefore, the success of the local community's efforts will depend on 
this robust adaptive management program designed to monitor and quickly 
assess the effectiveness of the identified conservation measures and 
strategies in attaining the goal of species' conservation, and to 
respond quickly and adapt the measures and strategies as needed to 
attain the goal. The adaptive management approach will ensure that the 
water quality protective measures are serving their intended purpose of 
conserving the Georgetown salamander, thereby providing for the 
conservation of the species. Adaptive management measures related to 
UDC 11.07 and Appendix A that are agreed upon by the Working Group and 
consistent with the goal of preserving the Georgetown salamander would 
be covered under this revised proposed 4(d) rule.
    By not prohibiting incidental take resulting from regulated 
activities conducted in accordance with the UDC 11.07 and Appendix A, 
the Service is supporting and encouraging a local solution to 
conservation of the Georgetown salamander. This revised proposed 4(d) 
rule would provide the Service the opportunity to work cooperatively, 
in partnership with the local community and State agencies, on 
conservation of the Georgetown salamander and the ecosystems on which 
it depends. Leveraging our conservation capacity with that of the 
State, local governments, and the conservation community at large may 
make it possible to attain biological outcomes larger than those we 
could attain ourselves due to the watershed-scale protection the UDC 
requires. Further, these local partners are better able to design 
solutions that minimize socioeconomic impacts, thereby encouraging 
participation in measures that will protect water quality and conserve 
the Georgetown salamander. In addition, by not prohibiting incidental 
take resulting from regulated activities conducted in accordance with 
UDC 11.07 and Appendix A, the Service is providing a streamlining 
mechanism for compliance with the Act for those project proponents who 
comply with the protective measures in the UDC 11.07 and Appendix A 
and, thus, would be covered by this revised 4(d) rule. Developers who 
comply with these protective measures outlined in this proposed rule 
can implement their projects without any potential delay from seeking 
incidental take coverage from the Service, while also minimizing water 
quality degradation; this simple approach makes streamlined compliance 
more enticing for project proponents and is likely to result in 
increased implementation of water quality protective measures that 
benefit salamanders than would occur otherwise.
    Based on the rationale explained above, the provisions included in 
this revised proposed 4(d) rule are necessary and advisable to provide 
for the conservation of the Georgetown salamander. If an activity that 
may affect the species is not regulated by UDC 11.07 or is not in 
accordance with the UDC 11.07 and Appendix A, or a person or entity is 
not in compliance with all terms and conditions of the UDC 11.07 and 
Appendix A, and the activity would result in an act that would be 
otherwise prohibited under 50 CFR 17.31, then provisions of 50 CFR 
17.31 and 17.32 for threatened species will apply. In such 
circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and 
authorization under 50 CFR 17.32 would be required.
    In addition, nothing in this revised proposed 4(d) rule affects in 
any way other provisions of the Act such as the designation of critical 
habitat under section 4, recovery planning provisions of section 4(f), 
and consultation requirements under section 7.

Draft Environmental Assessment

    The Service is conducting a National Environment Policy Act (NEPA; 
42 U.S.C. 4321 et seq.) analysis and has prepared a draft environmental 
assessment (EA) to address potential impacts of this revised proposed 
4(d) rule. The NEPA analysis accomplishes three goals: (1) Determine if 
any action, or the absence of action, will have significant 
environmental impacts; (2) identify any unavoidable adverse effects; 
and (3) provide a basis for a decision on a proposal. The draft EA and 
this revised proposed 4(d) rule are being made available concurrently; 
both are available for a 30-day period for public review and comment 
(see the DATES and ADDRESSES sections, above). The Service will analyze 
and consider all substantive comments we receive on both the draft EA 
and revised proposed 4(d) rule before issuing a final 4(d) rule.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this revised proposed rule. We will send peer reviewers 
copies of this revised proposed rule immediately following publication 
in the Federal Register. We will invite these peer reviewers to 
comment, during the reopening of the public comment period, on our use 
and interpretation of the science used in developing our revised 
proposed 4(d) rule.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this revised proposed 4(d) rule in 
a manner consistent with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996)), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a

[[Page 19055]]

substantial number of small entities. Thus, for a regulatory 
flexibility analysis to be required, impacts must exceed a threshold 
for ``significant impact'' and a threshold for a ``substantial number 
of small entities.'' See 5 U.S.C. 605(b). Based on the information that 
is available to us at this time, we certify that this regulation will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    On February 24, 2014 (79 FR 10236), we published the final 
determination to list the Georgetown salamander as a threatened 
species. That rule became effective on March 26, 2014. As a result, the 
Georgetown salamander is currently covered by the full protections of 
the Act, including the full section 9 prohibitions that make it illegal 
for any person subject to the jurisdiction of the United States to take 
(including harass, harm, pursue, shoot, wound, kill, trap, capture, or 
collect; or attempt any of these), import or export, ship in interstate 
commerce in the course of commercial activity, or sell or offer for 
sale in interstate or foreign commerce any wildlife species listed as 
an endangered species, without written authorization. It also is 
illegal under section 9(a)(1) of the Act to possess, sell, deliver, 
carry, transport, or ship any such wildlife that is taken illegally. 
Prohibited actions consistent with section 9 of the Act are outlined 
for threatened species in 50 CFR 17.31(a) and (b). This revised 
proposed 4(d) rule proposes that all prohibitions in 50 CFR 17.31(a) 
and (b) will apply to the Georgetown salamander, except regulated 
activities that are conducted consistent with the water quality 
protective measures contained in Chapter 11.07 and Appendix A of the 
Unified Development Code, which would result in a less restrictive 
regulation under the Act, as it pertains to the Georgetown salamander, 
than would otherwise exist. For the above reasons, we certify that if 
promulgated, the revised proposed rule would not have a significant 
economic impact on a substantial number of small entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    (b) This revised proposed 4(d) rule proposes that all prohibitions 
in 50 CFR 17.31(a) and (b) will apply to the Georgetown salamander, 
except activities that are conducted consistent with the water quality 
protection measures contained in Chapter 11.07 and Appendix A of the 
Unified Development Code, which would result in a less restrictive 
regulation under the Act, as it pertains to the Georgetown salamander, 
than would otherwise exist. As a result, we do not believe that this 
rule would significantly or uniquely affect small governments. 
Therefore, a Small Government Agency Plan is not required.

Takings

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. We have determined that the 
rule has no potential takings of private property implications as 
defined by this Executive Order because this revised proposed 4(d0 rule 
would result in a less-restrictive regulation under the Endangered 
Species Act than would otherwise exist. A takings implication 
assessment is not required.

Federalism

    In accordance with Executive Order 13132, this revised proposed 
rule does not have significant Federalism effects. A federalism summary 
impact statement is not required. This proposed rule would not have 
substantial direct effects on the State, on the relationship between 
the Federal Government and the State, or on the distribution of power 
and responsibilities among the various levels of government.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this revised proposed rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order.

Energy Supply, Distribution or Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking actions that significantly affect 
energy supply, distribution, and use. For reasons discussed within this 
proposed rule, we believe that the rule would not have any effect on 
energy supplies, distribution, and use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the proposed rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

[[Page 19056]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have prepared a draft environmental assessment, as defined under 
the authority of the National Environmental Policy Act of 1969. For 
information on how to obtain a copy of the draft environmental 
assessment, see ADDRESSES, above.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no known 
tribal lands within the range of the Georgetown salamander.

Authors

    The primary authors of this proposed rule are the staff members of 
the Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT) and the Southwest Regional Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 79 FR 10077 (February 24, 2014) 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; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. Amend Sec.  17.43 by revising paragraph (e)(2), as proposed to be 
added on February 24, 2014 (79 FR 10077), to read as follows:


Sec.  17.43  Special rules--amphibians.

* * * * *
    (e) * * *
    (2) Exemptions from prohibitions. Incidental take of the Georgetown 
salamander will not be considered a violation of section 9 of the Act 
if the take occurs on privately owned, State, or county land from 
regulated activities that are conducted consistent with the water 
quality protection measures contained in chapter 11.07 and Appendix A 
of the City of Georgetown (Texas) Unified Development Code (UDC) dated 
February 24, 2015.
* * * * *

    Dated: March 31, 2015.
Robert Dreher,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-08093 Filed 4-8-15; 8:45 am]
 BILLING CODE 4310-55-P