Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants, 44753-44760 [2019-17519]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44753-44760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17519]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2018-0007; 4500030113]
RIN 1018-BC97


Endangered and Threatened Wildlife and Plants; Regulations for 
Prohibitions to Threatened Wildlife and Plants

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or FWS), 
revise our regulations related to threatened species to remove the 
prior default extension of most of the prohibitions for activities 
involving endangered species to threatened species. For species already 
listed as a threatened species, the revised regulations do not alter 
the applicable prohibitions. The revised regulations provide that the 
Service, pursuant to section 4(d) of the Endangered Species Act 
(``ESA'' or the ``Act''), will determine what protective regulations 
are appropriate for species added to or reclassified on the lists of 
threatened species.

DATES: This final regulation is effective on September 26, 2019.

ADDRESSES: This final regulation is available on the internet at https://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this final regulation, are also available at the same 
website.

FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife 
Service, Division of Conservation and Classification, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at 800/877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    On July 25, 2018, the Service published proposed regulation 
revisions in the Federal Register (83 FR 35174) regarding section 4(d) 
of the Act and its implementing regulations in title 50 of the Code of 
Federal Regulations at 50 CFR part 17 setting forth the prohibitions 
for species listed as threatened on the Federal Lists of Endangered and 
Threatened Wildlife and Plants (lists). In the July 25, 2018, Federal 
Register document, we provided the background for our proposed 
regulation revisions in terms of the statute, legislative history, and 
case law.
    The regulations that implement the ESA are located in title 50 of 
the Code of Federal Regulations. This final rule revises regulations 
found in part 17 of title 50, particularly in subpart D, which pertains 
to threatened wildlife, and subpart G, which pertains to threatened 
plants.
    In this final rule, we amend Sec. Sec.  17.31 and 17.71. Among 
other changes, language is added in both sections to paragraph (a) to 
specify that its provisions apply only to species listed as threatened 
species on or before the effective date of this rule. Species listed or 
reclassified as a threatened species after the effective date of this 
rule would have protective regulations only if the Service promulgates 
a species-specific rule (also referred to as a special rule). In those 
cases, we intend to finalize the species-specific rule concurrent with 
the final listing or reclassification determination. Notwithstanding 
our intention, we have discretion to revise or promulgate species-
specific rules at any time after the final listing or reclassification 
determination.
    This change makes our regulatory approach for threatened species 
similar to the approach that the National Marine Fisheries Service 
(NMFS) has taken since Congress added section 4(d) to the Act, as 
discussed below. The protective regulations that currently apply to 
threatened species would not

[[Page 44754]]

change, unless the Service adopts a species-specific rule in the 
future. As of the date of this final rule, there are species-specific 
protective regulations for threatened wildlife in subpart D of part 17, 
but the Service has not adopted any species-specific protective 
regulations for plants. These final regulations do not affect the 
consultation obligations of Federal agencies pursuant to section 7 of 
the Act. These final regulations do not change permitting pursuant to 
50 CFR 17.32.
    The prohibitions set forth in ESA section 9 expressly apply only to 
species listed as endangered under the Act, as opposed to threatened. 
16 U.S.C. 1538(a). ESA section 4(d), however, provides that the 
Secretaries of the Interior and Commerce may by regulation extend some 
or all of the section 9 prohibitions to any species listed as 
threatened. Id. section 1533(d). 16 U.S.C. 1533(d). See, also S. Rep. 
93-307 (July 1, 1973) (in amending the ESA to include the protection of 
threatened species and creating ``two levels of protection'' for 
endangered species and threatened species, ``regulatory mechanisms may 
more easily be tailored to the needs of the'' species). Our existing 
regulations in Sec. Sec.  17.31 and 17.71, extending most of the 
prohibitions for endangered species to threatened species unless 
altered by a specific regulation, is one reasonable approach to 
exercising the discretion granted to the Service by section 4(d) of the 
Act. See Sweet Home Chapter of Communities for a Great Or. v. Babbitt, 
1 F.3d 1, 7 (D.C. Cir. 1993) (``regardless of the ESA's overall design, 
Sec.  1533(d) arguably grants the FWS the discretion to extend the 
maximum protection to all threatened species at once, if guided by its 
expertise in the field of wildlife protection, it finds it expeditious 
to do so''), altered on other grounds in rehearing, 17 F.3d 1463 (D.C. 
Cir. 1994).
    Another reasonable approach is the one that the Department of 
Commerce, through NMFS, has taken in regard to the species under its 
purview. NMFS did not adopt regulations that extended most of the 
prohibitions for endangered species to threatened species as we did. 
Rather, for each species that they list as threatened, NMFS promulgates 
the appropriate regulations to put in place prohibitions, protections, 
or restrictions tailored specifically to that species. In more than 40 
years of implementing the Act, NMFS has successfully implemented the 
provisions of the Act using this approach.
    Moreover, we have gained considerable experience in developing 
species-specific rules over the years. Where we have developed species-
specific 4(d) rules, we have seen many benefits, including removing 
redundant permitting requirements, facilitating implementation of 
beneficial conservation actions, and making better use of our limited 
personnel and fiscal resources by focusing prohibitions on the 
stressors contributing to the threatened status of the species. This 
final rule will allow us to capitalize on these benefits in tailoring 
the regulations to the needs of threatened species.
    For example, we finalized a species-specific 4(d) rule for the 
coastal California gnatcatcher (Polioptila californica californica) on 
December 10, 1993 (58 FR 65088). In that 4(d) rule, we determined that 
activities that met the requirements of the State of California's 
Natural Communities Conservation Plan for the protection of coastal 
sage scrub habitat would not constitute violations of section 9 of the 
Act. Similarly, in 2016, we finalized the listing of the Kentucky arrow 
darter (Etheostoma spilotum) with a species-specific 4(d) rule that 
exempts take as a result of beneficial in-stream habitat enhancement 
projects, bridge and culvert replacement, and maintenance of stream 
crossings on lands managed by the U.S. Forest Service in habitats 
occupied by the species (81 FR 68963, October 5, 2016). As with both of 
these examples, if the proposed rule is finalized, we would continue 
our practice of explaining in the preamble the rationale for the 
species-specific prohibitions included in each 4(d) rule.
    These final regulations would remove the references to subpart A in 
Sec. Sec.  17.31 and 17.71. In Sec.  17.31, we specify which sections 
apply to wildlife, to be more transparent as to which provisions 
contain exceptions to the prohibitions. In Sec.  17.71, we remove all 
reference to subpart A, because none of those exceptions apply to 
plants.
    In finalizing the specific changes to the regulations that follow, 
and setting out the accompanying clarifying discussion in this 
preamble, the Service is establishing prospective standards only. 
Nothing in these final revised regulations is intended to require (now 
or at such time as these regulations may become final) that any 
previous listing or reclassification determinations or species-specific 
protective regulations be reevaluated on the basis of any final 
regulations. The existing protections for currently listed threatened 
species are within the discretion expressly delegated to the 
Secretaries by Congress.
    Pursuant to section 10(j) of the Act, members of experimental 
populations are generally treated as threatened species and, pursuant 
to 50 CFR 17.81, populations are designated through population-specific 
regulation found in Sec. Sec.  17.84-17.86. As under our existing 
practice, each such population-specific regulation will contain all of 
the applicable prohibitions, along with any exceptions to prohibitions, 
for that experimental population. None of the changes associated with 
this rulemaking will change existing special rules for experimental 
populations. Any 10(j) rules promulgated after the effective date of 
this rule that make applicable to a nonessential experimental 
population some or all of the prohibitions that statutorily apply to 
endangered species will not refer to 50 CFR 17.31(a); rather, they will 
instead independently articulate those prohibitions or refer to 50 CFR 
17.21.
    We are finalizing the revised regulations as proposed without 
further changes. In these final regulation revisions, we focus our 
discussion on significant and substantive comments we received during 
the comment period. For additional background on the statutory 
language, legislative history, and case law relevant to these 
regulations, please see our proposed regulation revision, which is 
available at https://www.regulations.gov under Docket No. FWS-HQ-ES-
2018-0007.
    This final rule is one of three related final rules that we are 
publishing in this issue of the Federal Register. All of these 
documents finalize revisions to various regulations that implement the 
Act. The revisions to the regulations in this rule are prospective; 
they are not intended to require that any previous listing or 
reclassification determination under section 4 of the Act be 
reevaluated.

Final Regulatory Revisions

Summary of Comments and Recommendations

    In our proposed rule published on July 25, 2018 (83 FR 35174), we 
requested public comments on our specific proposed changes to 50 CFR 
part 17. We received several requests for public hearings and requests 
for extensions to the public comment period. However, we elected not to 
hold public hearings or extend the public comment period beyond the 
original 60-day public comment period. We received more than 69,000 
submissions representing hundreds of thousands of individual commenters 
by the deadline on September 24, 2018. Many comments were 
nonsubstantive in nature, expressing either general support for or 
opposition to provisions of the proposed rule with no supporting 
information or

[[Page 44755]]

analysis or expressing opinions regarding topics not covered within the 
proposed regulation. We also received many detailed substantive 
comments with specific rationale for support of or opposition to 
specific portions of the proposed rule. Below, we summarize and respond 
to the significant, substantive comments sent by the September 24, 
2018, deadline and provide responses to those comments.
    Comment 1: Many commenters stated that rescinding the previous 
regulation, referred to as the ``blanket rules,'' will leave threatened 
species with no protections or prohibitions in place, which will result 
in their status declining even more and the Service being unable to 
conserve them.
    Our Response: In the proposed rule, we stated our intention to 
finalize species-specific 4(d) rules concurrent with final threatened 
listing or reclassification determinations. In this final rule, we 
restate our intention to finalize species-specific section 4(d) rules 
concurrently with final listing or reclassification determinations. 
Finalizing a species-specific 4(d) rule concurrent with a listing or 
reclassification determination ensures that the species receives 
appropriate protections at the time it is added to the list as a 
threatened species (e.g., we anticipate that foreign species 4(d) rules 
will generally include prohibitions of import and export and species-
specific 4(d) rules for marine mammals will generally incorporate 
applicable provisions of the Marine Mammal Protection Act). This 
approach also adds efficiency, predictability, and transparency to the 
rulemaking process because it correlates the Service's analysis of 
threats impacting the species (as discussed in the final listing or 
reclassification rule) to its analysis of protective regulations for 
the species. The publication of Federal Register documents that propose 
and finalize both listing and 4(d) rules simultaneously adds 
administrative efficiencies and cost-savings to the listing process 
relative to the time and cost of conducting those two processes 
sequentially.
    We expect this concurrent process to promote transparency and 
predictability in the rulemaking process for the regulated community. 
Publishing species-specific 4(d) rules concurrent with the 
classification rules provides the public knowledge of the primary 
drivers to the species' status. The 4(d) rule includes specific actions 
or activities that can be undertaken that would or would not impair 
species' conservation. In turn, this information may assist with 
streamlining future section 7 consultations. For example, if project 
activities could be tailored to avoid forms of take prohibited by the 
4(d) rule, consultation on those activities should be more 
straightforward and predictable. Furthermore, we anticipate landowners 
would be incentivized to take actions that would improve the status of 
endangered species with the possibility of downlisting the species to 
threatened and potentially receiving regulatory relief in the resulting 
4(d) rule. As a result, we believe these measures to increase public 
awareness, transparency, and predictability will enhance and expedite 
conservation.
    Comment 2: Several commenters stated that rescinding the blanket 
rules will allow for political interference and industry pressure on 
the Service to reduce protections and prohibitions of threatened 
species at the detriment of species conservation.
    Our Response: As explained in the preamble to the proposed 
regulation, the intent of this regulation is to focus prohibitions on 
the stressors contributing to the threatened status of the species and 
to facilitate the implementation of beneficial conservation efforts. 
This practice of tailoring regulations to individual threatened species 
is guided by the Service's extensive history of implementing the Act. 
Our determinations about which prohibitions, exceptions to the 
prohibitions, or protective regulations should be applied to threatened 
species have consistently been, and will continue to be, based upon the 
best available scientific and commercial information available to us at 
the time of listing.
    Comment 3: Many commenters stated that FWS has a substantial 
listing and reclassification workload and lacks the additional 
resources necessary to promulgate species-specific 4(d) rules for every 
species added to the list as threatened. They stated that the 
additional resources necessary to promulgate additional rules will 
impact FWS' ability to put into place the protections necessary and 
species will be left unprotected.
    Our Response: Promulgating species-specific 4(d) rules for every 
threatened species may require additional resources at the time of 
listing relative to our prior practice of defaulting to invoking the 
blanket rules. If historical percentages of threatened species and 
endangered species determinations were to continue into the future, we 
estimate that each year approximately four species would be listed as 
threatened species; therefore, we would develop four species-specific 
4(d) rules per year. Historically, we finalized an average of 2 
species-specific 4(d) rules per year (37 species-specific 4(d) rules 
over 21 years (Service 2019). However, in the past 10 years, we have 
promulgated 17 domestic and 6 foreign species-specific rules (2.3 per 
year) as compared to 12 domestic and 2 foreign species-specific rules 
in the 11 years prior (1.3 per year) (Service 2019). We expect to 
continue with an increased rate of issuing species-specific rules in 
the coming years. Therefore, we expect that we would promulgate 
species-specific rules for most or all species listed as threatened 
even if the blanket rule were to remain in place.
    Developing species-specific 4(d) rules is a prudent and efficient 
use of our resources because of the benefits gained from tailoring 
protections specific to the needs of the species. When we tailor 
regulations by limiting the prohibitions to those activities that are 
causing the threat of extinction, we save the public and FWS resources 
by reducing the need for section 10 permits. Likewise, tailored 
regulations will encourage actions compatible with, or supportive of, a 
species' conservation. Tailored prohibitions may also assist the 
Service and other Federal agencies in streamlining the section 7 
consultation processes for actions that result in forms of take that 
are not prohibited by a 4(d) rule. For example, the Services would have 
already determined that forms of take not prohibited by a 4(d) rule 
were compatible with the species' conservation, which should streamline 
our analysis on whether an action would jeopardize the continued 
existence of the species and would streamline the incidental take 
statement, if required. Species-specific regulations will also allow 
the Service to facilitate and promote conservation actions that will 
aid in the conservation of threatened species. In addition, because we 
intend to put in place species-specific rules at the time of listing 
(as noted in our response to comment (1)), we will continue to rely on 
our analysis of stressors to the species from the listing 
determination, including forms of ``take,'' that are acting on a 
species. Because of this concurrent analysis of all factors influencing 
the species carrying over from the listing determination, we anticipate 
the development of species-specific protective regulations will be more 
efficient than if done in separate rulemakings.
    In general, the provisions of a 4(d) rule should be closely tied to 
the species' needs and primary factors influencing the biological 
status identified in the Species Status

[[Page 44756]]

Assessment (SSA) report or other analysis of the species' biological 
status. Determining which protective regulations or section 9 
prohibitions or exceptions to prohibitions a species requires to 
address the stressors leading to threatened species status logically 
flows from our analyses at the time of listing. Furthermore, when 
developing new species-specific 4(d) rules, we intend to review 
existing species-specific 4(d) rules that could be used as a model or 
applied to the species in question. This approach would be beneficial 
when there are species with similar threats or that occur in a similar 
geographic area, or species with similar life histories or similar 
biological needs. For example, the Service has an existing species-
specific 4(d) rule for threatened species within the parrot family, 
which is found at 50 CFR 17.41(c), that includes protective regulations 
for four different species. Where appropriate, the Service adds 
additional listed members of the parrot family to this rule. In this 
fashion, developing species-specific regulations will not be as time 
consuming or burdensome as the commenters predict because the Service 
will be able to rely on existing regulatory language and analysis. 
Similar examples are the Service's existing species-specific 4(d) rules 
for threatened primates (50 CFR 17.40(c)), crocodilians (50 CFR 
17.42(c)), certain fish (50 CFR 17.44(c), (h), and (j)), and certain 
butterflies (50 CFR 17.47(a)).
    Comment 4: Several commenters stated that the prior regulations for 
threatened species have been working to conserve threatened species for 
the last 40 years and FWS should not rescind them.
    Our Response: We are required to develop regulations as described 
in section 4(d) of the Act that are necessary and advisable for the 
conservation of threatened species. Additionally, section 4(d) of the 
Act provides us the authority to prohibit specific forms of take. 
Developing species-specific 4(d) rules will enhance transparency to the 
regulated public because particular forms of incidental take that are 
prohibited or excepted will be enumerated in the species-specific 4(d) 
rule. The only thing that this rulemaking will change is that the 
decision about what regulations to put in place will now by necessity 
be in the form of promulgating a species-specific rule.
    Although the blanket rules have worked, and will continue to work, 
to conserve already-listed threatened species, we believe that species-
specific 4(d) rules for threatened species tailor species' protection 
with appropriate regulations that may incentivize conservation, reduce 
unneeded permitting, or streamline section 7 consultation processes as 
described above. In practice, the FWS has been promulgating more 
species-specific 4(d) rules in the last decade. The Service has 
finalized 22 species-specific 4(d) rules in the last decade (2009-2018) 
compared to finalizing 13 species-specific rules in the 12 years prior 
(1997-2008). Consequently, we have found significant benefits from 
developing and implementing species-specific 4(d) rules, such as 
removing redundant permitting requirements, facilitating implementation 
of beneficial conservation actions, and making better use of our 
limited personnel and fiscal resources by focusing prohibitions on the 
stressors contributing to the threatened status of the species.
    This rule will facilitate beneficial conservation actions. For 
example, the species-specific 4(d) rule for the elfin-woods warbler (81 
FR 40547, June 22, 2016) sets forth a comprehensive set of conservation 
measures regarding otherwise lawful activities for conversion of sun-
grown to shade-grown coffee plantations, riparian buffer establishment, 
and reforestation and forested habitat enhancement. The 4(d) rule 
provides details on the timing and acceptable methods by which these 
activities can occur such that any incidental take would not be a 
violation of the Act. Thus, projects that meet the conservation 
measures for the elfin-woods warbler outlined in the species-specific 
4(d) rule do not need an incidental take permit from the Service in 
order to proceed. Likewise, the species-specific 4(d) rule for the 
Kentucky arrow darter (81 FR 68984, October 5, 2016) contains 
recommended conservation measures that, when conducted in accordance 
with the 4(d) rule, ensure that incidental take would not be considered 
a violation of the Act. The species-specific 4(d) rule details 
activities such as in-stream restoration or reconfiguration, bank 
stabilization, bridge and culvert replacement or removal that must be 
conducted in accordance with conservation measures that maintain 
connectivity of habitat, minimize instream disturbance, and maximize 
the amount of in-stream cover. Therefore, projects that are conducted 
in accordance with the conservation measures in the species-specific 
4(d) rule for the Kentucky arrow darter do not require an incidental 
take permit from the Service.
    Comment 5: Several commenters stated that FWS did not provide 
enough justification or logical rationale for why the change is 
necessary.
    Our Response: Our preamble to the proposed rule provides an 
explanation of why we proposed to change our prior practice of the 
blanket rules. This regulatory change to emphasize the creation of 
species-specific 4(d) rules is within the discretion provided by the 
Act. We recognize that our prior ``blanket rules'' were also considered 
``reasonable and permissible'' constructions of section 4(d) of the 
Act. Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 1 
F.3d. 1, 8 (D.C. Cir. 1993), modified on other grounds on reh'g, 17 
F.3d 1463 (D.C. Cir. 1994), rev'd on other grounds, 515 U.S. 687 
(1995). For this reason, we are not altering the existence of the 
``blanket rules'' for species already listed as threatened. However, we 
conclude that moving to an emphasis on species-specific regulations is 
also a reasonable and permissible interpretation of the discretion 
found in section 4(d) of the Act. As explained elsewhere, we believe 
this change will aid in the conservation of species. We also consider 
this change to further highlight the statutory distinction between 
species meeting the definitions of ``endangered species'' and 
``threatened species.'' This change would make our regulatory approach 
for threatened species similar to the approach that NMFS has taken 
since Congress added section 4(d) to the Act. NMFS did not adopt 
regulations that extended most of the prohibitions for endangered 
species to threatened species as we did. Rather, when putting into 
place protections for threatened species, NMFS promulgates the 
appropriate regulations regarding section 9 prohibitions, exceptions to 
prohibitions, or other regulatory protections tailored specifically to 
that species. In more than 40 years of implementing the Act, NMFS has 
successfully implemented the provisions of the Act using this approach.
    Moreover, the Service has gained considerable experience in 
developing species-specific rules over the past decade. As noted 
elsewhere in this response to comments, we have found species-specific 
4(d) rules beneficial in removing redundant permitting requirements, 
facilitating implementation of beneficial conservation actions, and 
making better use of our limited personnel and fiscal resources by 
focusing prohibitions on the stressors contributing to the threatened 
status of the species. For instance, some species-specific 4(d) rules 
would not require a Federal permit for incidental take resulting from 
activities that are conducted under a

[[Page 44757]]

State permit if the permit was issued pursuant to a State program that 
furthers the goals of the Act. Other species-specific 4(d) rules may 
set forth exceptions to take prohibitions for activities that are de 
minimis in their effect on the species, or beneficial when conducted in 
adherence to certain timeframes or using certain protocols (e.g., elfin 
woods warbler species-specific 4(d) rule; 81 FR 40547, June 22, 2016). 
This regulatory revision allows us to capitalize on these benefits in 
tailoring section 9 prohibitions, exceptions to prohibitions, or other 
regulatory protections to the conservation needs of the species.
    We conclude that, while the prior ``blanket rules'' were one 
possible means of implementing section 4(d) of the Act, the changes 
finalized in this document will better tailor protections to the needs 
of the threatened species while also providing meaning to the statutory 
distinction between species meeting the definitions of ``endangered 
species'' and ``threatened species.''
    Comment 6: Some commenters stated that this change is not actually 
aligning the Service's practice with NMFS, because NMFS does not 
consistently promulgate species-specific 4(d) rules for threatened 
species.
    Our Response: NMFS does not have a default blanket rule for 
threatened plants and animals but rather approaches each species on a 
case-by-case basis on the basis of the discretion afforded under 
section 4(d). Therefore, rescinding the Service's blanket rules will 
closely align the two agencies' regulatory approaches. Although we have 
indicated that our intention is to promulgate species-specific 4(d) 
rules at the time of listing, we do not read the Act to require that we 
promulgate a 4(d) rule whenever we list a species as a threatened 
species.
    Comment 7: Some commenters stated that if a threatened species did 
not have section 9 prohibitions, private landowners would not have an 
incentive to conserve species and landowners may be unlikely to enter 
into partnership agreements to conserve threatened species.
    Our Response: We intend for each species listed or reclassified as 
a threatened species to have a species-specific 4(d) rule that outlines 
section 9 prohibitions, exceptions to prohibitions, or other regulatory 
protections as appropriate. Any species-specific 4(d) will follow the 
Service's standard rulemaking process, which by law includes an 
opportunity for public comment on a proposed rule. As a result, private 
landowners will be aware of proposed regulations and have an 
opportunity to proactively engage in voluntary conservation efforts. By 
meaningfully recognizing the differences in the regulatory framework 
between endangered species and threatened species, we believe that 
crafting species-specific 4(d) rules will incentivize conservation for 
both endangered species and threatened species. Private landowners and 
other stakeholders may see more of an incentive to work on recovery 
actions for endangered species, with an eventual goal of downlisting to 
threatened species status with a species-specific 4(d) rule that might 
result in reduced regulation.
    For threatened species, 4(d) rules can limit the scope of 
prohibitions so that they do not apply to certain activities conducted 
pursuant to conservation efforts contained in conservation plans or 
agreements. We anticipate that private parties, including landowners, 
will be incentivized to participate in conservation efforts identified 
in the 4(d) rule that protect the species. In these instances, 
specified activities would be able to continue without Federal 
regulation because of participation in the identified conservation 
plan. At the same time, the plan will provide conservation to the 
threatened species. In addition, tailoring the prohibitions applicable 
to a threatened species identifies for the public the specific actions 
or activities that are driving the species to a threatened status. 
Developing species-specific 4(d) rules will incentivize positive 
conservation efforts to improve the species' status such that it no 
longer warrants listing.
    Comment 8: Several commenters stated that the Service should 
include binding timeframes in the regulatory text as to when the final 
4(d) rule would be promulgated. Some of these included the suggestion 
that it be within 90 days of the final listing, others stated that it 
should be concurrent with listing, and others did not provide a 
specific time period but stated that a set timeframe would be most 
transparent to the public.
    Our Response: As stated above, we intend to finalize species-
specific 4(d) rules concurrently with final listing or reclassification 
determinations. We believe this approach will be most efficient and 
will also ensure that threatened species have in place the protective 
regulations supporting their recovery. We considered including a 
regulatory timeframe to reflect our intention to promulgate 4(d) rules 
at the time of listing, but ultimately determined that creating a 
binding requirement was not needed. The Act does not mandate a specific 
requirement to implement protective regulations concurrently with 
threatened determinations.
    Comment 9: We received many comments on topics that were not 
specifically addressed in our proposed regulatory amendment, but, 
instead, focus on issues that may arise during implementation of this 
rulemaking. These included recommendations on which existing species-
specific 4(d) rules would provide a good model for future rules, 
opinions as to the scope of the Service's discretion in extending 
section 9 prohibitions in future rules, views on how the Service should 
interpret the terms ``necessary and advisable'' in the Act, and 
suggestions of approaches to take in future guidance documents on how 
to develop species-specific 4(d) rules.
    Our Response: The Service appreciates the many insightful comments 
and suggestions we received on developing species-specific 4(d) rules. 
While that input may inform the development of future species-specific 
4(d) rules, policies, or guidance, in the interests of efficiency we 
are finalizing the revisions for which we specifically proposed 
regulatory text. The Service considered those comments, but is required 
only to respond to ``significant'' comments--those ``comments which, if 
true, . . . would require a change in [the] proposed rule,'' Am. Mining 
Cong. v. United States EPA, 907 F.2d 1179, 1188 (DC Cir. 1990) (quoting 
ACLU v. FCC, 823 F.2d 1554, 1581 (DC Cir. 1987)). Comments that either 
were outside the scope of the issues we specifically addressed in our 
proposed regulatory amendments, or that raise questions that may arise 
during future implementation of this rulemaking, are not 
``significant'' in the context of the proposed rule. See also Home Box 
Office, Inc. v. FCC, 567 F.2d 9, 35 n. 58 (DC Cir. 1977), cert. denied, 
485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). We therefore will 
not respond to them at this time. However, to the extent commenters 
raised questions about the substance of future species-specific 4(d) 
regulations that have not been proposed, we urge commenters to provide 
this feedback when a proposed species-specific 4(d) regulation raises 
these concerns. Any species-specific 4(d) regulation will be proposed 
and subject to public comment prior to adoption by the Service.
    After a review and careful consideration of all of the public 
comments received during the open public comment period, we have 
finalized this rule as proposed.

[[Page 44758]]

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Management and 
Budget's Office of Information and Regulatory Affairs (OIRA) will 
review all significant rules. OIRA has determined that this rule is 
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 rule in a manner consistent 
with these requirements. This final rule is consistent with Executive 
Order 13563, and in particular with the requirement of retrospective 
analysis of existing rules, designed ``to make the agency's regulatory 
program more effective or less burdensome in achieving the regulatory 
objectives.''

Executive Order 13771

    This final rule is an Executive Order 13771 deregulatory action.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his designee, certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    This rulemaking revises the regulations for 4(d) rules for species 
determined to meet the definition of a ``threatened species'' under the 
Act. This final rule is fundamentally a procedural change for the 
Service that affects only the form of the Service's decisions with 
respect to regulations that provide for the conservation of threatened 
species. The Service is therefore the only entity that is directly 
affected by this final regulation change at 50 CFR part 17. The statute 
states, ``Whenever any species is listed as a threatened species . . ., 
the Secretary shall issue such regulations as he deems necessary and 
advisable to provide for the conservation of such species.'' This 
provision requires the Secretary to make a decision about what 
protections to apply to threatened species. The blanket rules 
established that, as a general principle, the protections that the 
statute prescribes for endangered species are also necessary and 
advisable to provide for the conservation of threatened species. But 
even with the blanket rules in place, it fell to the Secretary to 
decide, upon listing or classifying individual species as threatened, 
what protections to put in place for the species. That decision was in 
the form of whether to allow the relevant blanket rule to apply or to 
promulgate a species-specific rule. The need for that decision is even 
ensconced in the blanket rules themselves--they expressly contemplate 
that the Secretary could choose to promulgate a ``special rule'' that 
would replace the blanket rule and ``contain all the applicable 
prohibitions and exceptions.'' 50 CFR 17.31(c) and 17.71(c).
    With promulgation of this rule, when species get listed in the 
future, the blanket rules will no longer be in place, but the Secretary 
will still be required to make a decision about what regulations to put 
in place for that species. The only thing that this rulemaking will 
change is that the decision about what regulations to put in place will 
now necessarily be in the form of promulgating a species-specific rule. 
To the extent that any regulations that provide for the conservation of 
threatened species affect external entities, those effects result from 
the substance of the subsequent rulemaking where the Service will 
decide what regulations would provide for the species' conservation, 
not from this rulemaking, which affects only the form of that decision. 
As a result, no external entities--including any small businesses, 
small organizations, or small governments--will experience any economic 
impacts from this rule. We certify that this final rule will not have a 
significant economic effect on a substantial number of small entities.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this final rule will not ``significantly 
or uniquely'' affect small governments. We have determined and certify 
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this 
rule would not impose a cost of $100 million or more in any given year 
on local or State governments or private entities. A Small Government 
Agency Plan is not required. As explained above, small governments 
would not be affected because the final rule will not place additional 
requirements on any city, county, or other local municipalities.
    (b) This final rule will not produce a Federal mandate on State, 
local, or tribal governments or the private sector of $100 million or 
greater in any year; that is, this rule is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. This final 
rule will not impose obligations on State, local, or tribal 
governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this final rule will not 
have significant takings implications. This final rule will not pertain 
to ``taking'' of private property interests, nor will it directly 
affect private property. A takings implication assessment is not 
required because this final rule (1) will not effectively compel a 
property owner to suffer a physical invasion of property and (2) will 
not deny all economically beneficial or productive use of the land or 
aquatic resources. This final rule will substantially advance a 
legitimate government interest (conservation and recovery of threatened 
species) and will not present a barrier to all reasonable and expected 
beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this final rule would have significant Federalism effects and 
have determined that a federalism summary impact statement is not 
required. This final rule pertains only to prohibitions for activities 
pertaining to threatened species under the Endangered Species

[[Page 44759]]

Act and would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

Civil Justice Reform (E.O. 12988)

    This final rule does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988. This final rule will clarify the prohibitions to 
threatened species under the Endangered Species Act.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' and the Department of the 
Interior's manual at 512 DM 2, we have considered effects of this final 
rule on federally recognized Indian Tribes. Two informational webinars 
were held on July 31 and August 7, 2018, to provide additional 
information to interested Tribes regarding the proposed regulations. 
After the opening of the public comment period, we received multiple 
requests for coordination or Government-to-Government consultation from 
multiple tribes: Cowlitz Indian Tribe; Swinomish Indian Tribal 
Community; The Confederated Tribes of the Grand Ronde Community of 
Oregon; Confederated Tribes of Warm Springs, Oregon; Quinault Indian 
Nation; Makah Tribe; Confederated Tribes of the Umatilla Indian 
Reservation; and the Suquamish Tribe. We subsequently hosted a 
conference call on November 15, 2018, to listen to Tribal concerns and 
answer questions about the proposed regulations. On March 6, 2019, 
Service representatives attended the Natural Resources Committee 
Meeting of the United and South and Eastern Tribes' Impact Week 
conference in Arlington (Crystal City), VA. At this meeting, we 
presented information, answered questions, and held discussion 
regarding the regulatory changes.
    The Service concludes that the changes to these implementing 
regulations make general changes to the ESA implementing regulations 
and do not directly affect specific species or Tribal lands or 
interests. As explained earlier, the only thing that this rulemaking 
will change is that the decision about what regulations to put in place 
to provide for the conservation of threatened species will now 
necessarily be in the form of promulgating a species-specific rule. To 
the extent that any regulations that provide for the conservation of 
threatened species affect federally recognized Indian Tribes, those 
effects will result from the substance of the subsequent rulemaking 
where the Service will decide what regulations would provide for the 
species' conservation, not from this rulemaking, which affects only the 
form of that decision. Therefore, we conclude that this regulation does 
not have ``tribal implications'' under section 1(a) of E.O. 13175 and 
formal government-to-government consultation is not required by E.O. 
13175 and related policies of the Department of the Interior. We will 
continue to collaborate with Tribes on issues related to federally 
listed species and work with them as we implement the provisions of the 
Act. See Joint Secretarial Order 3206 (``American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species 
Act,'' June 5, 1997).

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required. 
We may not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act (NEPA)

    We analyzed this final rule in accordance with the criteria of 
NEPA, the Department of the Interior regulations on implementation of 
NEPA (43 CFR 46.10-46.450), and the Department of the Interior Manual 
(516 DM 8). We have determined that, to the extent that the proposed 
action would result in reasonably foreseeable effects to the human 
environment, the final regulation is categorically excluded from 
further NEPA review and that no extraordinary circumstances are 
present. The rule qualifies for two categorical exclusions listed at 43 
CFR 46.210(i). First, the amendments are of a legal, technical, or 
procedural nature. Second, any potential impacts of this rule are too 
broad, speculative, and conjectural to lend themselves to meaningful 
analysis and will be examined as part of any NEPA analysis, if 
applicable, in stand-alone species-specific 4(d) rules. The revisions 
finalized in this action are intended to clarify, interpret, and 
implement portions of the Act concerning the procedures and criteria 
used for determining what protective regulations are appropriate for 
species added to or reclassified as threatened species on the Lists of 
Endangered and Threatened Wildlife and Plants.
    These revisions are an example of an action that is fundamentally 
administrative, technical, or procedural in nature. As explained with 
respect to the Regulatory Flexibility Act, this final rule is 
fundamentally a procedural change for the Service that affects only the 
form of the Service's decisions with respect to regulations that 
provide for the conservation of threatened species. The Service is, 
therefore, the only entity that is directly affected by this final 
regulation change at 50 CFR part 17. The statute states, ``Whenever any 
species is listed as a threatened species . . ., the Secretary shall 
issue such regulations as he deems necessary and advisable to provide 
for the conservation of such species.'' This provision requires the 
Secretary to make a decision about what protections to apply to 
threatened species. When species get listed in the future, the blanket 
rules will no longer be in place, but the Secretary will still be 
required to make a decision about what regulations to put in place for 
that species. The only thing that this rulemaking will change is that 
the decision about what regulations to put in place will now 
necessarily be in the form of promulgating a species-specific rule. To 
the extent any regulations that provide for the conservation of 
threatened species significantly affect the environment, those effects 
result from the substance of the subsequent rulemaking where the 
Service will decide what regulations would provide for the species' 
conservation, not from this rulemaking, which affects only the form of 
that decision. Therefore, this final rule falls within the categorical 
exclusion for rulemakings that are administrative, procedural, or 
technical in nature.
    We completed an environmental action statement for the categorical 
exclusion for the revised regulations in 50 CFR part 17. The 
environmental action statement is available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This final rule is not 
expected to affect energy supplies, distribution, and use. As explained 
earlier, the only thing that this rulemaking will change is that the 
decision about what regulations to put in place to provide for the

[[Page 44760]]

conservation of threatened species will now necessarily be in the form 
of promulgating a species-specific rule. To the extent any regulations 
that provide for the conservation of threatened species affect energy 
supply, distribution, or use, those effects will result from the 
substance of the subsequent rulemaking where the Service will decide 
what regulations would provide for the species' conservation, not from 
this rulemaking, which affects only the form of that decision. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby amend part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
 1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. Revise Sec.  17.31 to read as follows:


Sec.  17.31  Prohibitions.

    (a) Except as provided in Sec. Sec.  17.4 through 17.8, or in a 
permit issued under this subpart, all of the provisions of Sec.  17.21, 
except Sec.  17.21(c)(5), shall apply to threatened species of wildlife 
that were added to the List of Endangered and Threatened Wildlife in 
Sec.  17.11(h) on or prior to September 26, 2019, unless the Secretary 
has promulgated species-specific provisions (see paragraph (c) of this 
section).
    (b) In addition to any other provisions of this part, any employee 
or agent of the Service, of the National Marine Fisheries Service, or 
of a State conservation agency that is operating a conservation program 
pursuant to the terms of a cooperative agreement with the Service in 
accordance with section 6(c) of the Act, who is designated by that 
agency for such purposes, may, when acting in the course of official 
duties, take those threatened species of wildlife that are covered by 
an approved cooperative agreement to carry out conservation programs.
    (c) Whenever a species-specific rule in Sec. Sec.  17.40 through 
17.48 applies to a threatened species, none of the provisions of 
paragraphs (a) and (b) of this section will apply. The species-specific 
rule will contain all the applicable prohibitions and exceptions.

0
3. Revise Sec.  17.71 to read as follows:


Sec.  17.71   Prohibitions.

    (a) Except as provided in a permit issued under this subpart, all 
of the provisions of Sec.  17.61 shall apply to threatened species of 
plants that were added to the List of Endangered and Threatened Plants 
in Sec.  17.12(h) on or prior to September 26, 2019, with the following 
exception: Seeds of cultivated specimens of species treated as 
threatened shall be exempt from all the provisions of Sec.  17.61, 
provided that a statement that the seeds are of ``cultivated origin'' 
accompanies the seeds or their container during the course of any 
activity otherwise subject to the regulations in this subpart.
    (b) In addition to any provisions of this part, any employee or 
agent of the Service or of a State conservation agency that is 
operating a conservation program pursuant to the terms of a cooperative 
agreement with the Service in accordance with section 6(c) of the Act, 
who is designated by that agency for such purposes, may, when acting in 
the course of official duties, remove and reduce to possession from 
areas under Federal jurisdiction those threatened species of plants 
that are covered by an approved cooperative agreement to carry out 
conservation programs.
    (c) Whenever a species-specific rule in Sec. Sec.  17.73 through 
17.78 applies to a threatened species, the species-specific rule will 
contain all the applicable prohibitions and exceptions.

    Dated: August 12, 2019.
David L. Bernhardt,
Secretary. Department of the Interior.
[FR Doc. 2019-17519 Filed 8-26-19; 8:45 am]
 BILLING CODE 4333-15-P