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

Download as PDF Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This final rule, which incorporates recently-enacted statutory provisions into DOE’s regulations, would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. M. Congressional Notification As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). * * Technology transfer mission. * * * Technology Transfer Mission (AUG 2019) * * * * * (c) * * * (1) * * * The costs associated with the conduct of technology transfer through the ORTA including activities associated with obtaining, maintaining, licensing, and assigning Intellectual Property rights, increasing the potential for the transfer of technology, widespread notice of technology transfer opportunities, and early stage and precommercial technology demonstration to remove barriers that limit private sector interest and demonstrate potential commercial applications of any research and technologies arising from Laboratory activities, shall be deemed allowable provided that such costs meet the other requirements of the allowable cost provisions of this Contract.* * * * * * * * [FR Doc. 2019–18297 Filed 8–26–19; 8:45 am] BILLING CODE 6450–01–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–HQ–ES–2018–0007; 4500030113] V. Approval of the Office of the Secretary RIN 1018–BC97 The Secretary of Energy has approved publication of this final rule. Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants List of Subjects in 48 CFR Part 970 Government procurement. John R. Bashista, Director, Office of Acquisition Management, Department of Energy. S. Keith Hamilton, Deputy Associate Administrator, Acquisition and Project Management, National Nuclear Security Administration. For the reasons set forth in the preamble, DOE hereby amends chapter 9, subchapter I, of title 48 of the Code of Federal Regulations as set forth below: PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS 1. The authority citation for part 970 continues to read as follows: ■ Authority: 42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq. 2. Section 970.5227–3 is amended by revising the clause date and the second sentence of paragraph (c)(1) to read as follows: ■ VerDate Sep<11>2014 17:38 Aug 26, 2019 Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: Signed in Washington, DC, July 24, 2019. jspears on DSK3GMQ082PROD with RULES 970.5227–3 Jkt 247001 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 http:// www.regulations.gov in Docket No. FWS–HQ–ES–2018–0007. Comments SUMMARY: PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 44753 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 §§ 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 E:\FR\FM\27AUR1.SGM 27AUR1 jspears on DSK3GMQ082PROD with RULES 44754 Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations 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 §§ 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, § 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. VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 Where we have developed speciesspecific 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 speciesspecific 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 §§ 17.31 and 17.71. In § 17.31, we specify which sections apply to wildlife, to be more transparent as to which provisions contain exceptions to the prohibitions. In § 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 PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 species and, pursuant to 50 CFR 17.81, populations are designated through population-specific regulation found in §§ 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 http://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 60day 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 E:\FR\FM\27AUR1.SGM 27AUR1 jspears on DSK3GMQ082PROD with RULES Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 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 speciesspecific 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 PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 44755 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 speciesspecific 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 E:\FR\FM\27AUR1.SGM 27AUR1 jspears on DSK3GMQ082PROD with RULES 44756 Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations 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 speciesspecific 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 speciesspecific 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 VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 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 speciesspecific rules in the 12 years prior (1997–2008). Consequently, we have found significant benefits from developing and implementing speciesspecific 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 elfinwoods 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 shadegrown 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 elfinwoods warbler outlined in the speciesspecific 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 speciesspecific 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. PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 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 speciesspecific 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 E:\FR\FM\27AUR1.SGM 27AUR1 jspears on DSK3GMQ082PROD with RULES Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations State permit if the permit was issued pursuant to a State program that furthers the goals of the Act. Other speciesspecific 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 speciesspecific 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-bycase 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 speciesspecific 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 VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 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 speciesspecific 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 speciesspecific 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 PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 44757 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 speciesspecific 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. E:\FR\FM\27AUR1.SGM 27AUR1 44758 Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations 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.’’ jspears on DSK3GMQ082PROD with RULES 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 VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 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 PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 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 E:\FR\FM\27AUR1.SGM 27AUR1 Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations 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. jspears on DSK3GMQ082PROD with RULES 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 VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 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-togovernment 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 standalone 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 PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 44759 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 http:// 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 E:\FR\FM\27AUR1.SGM 27AUR1 44760 Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations 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 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. ■ 2. Revise § 17.31 to read as follows: ■ jspears on DSK3GMQ082PROD with RULES § 17.31 Prohibitions. (a) Except as provided in §§ 17.4 through 17.8, or in a permit issued under this subpart, all of the provisions of § 17.21, except § 17.21(c)(5), shall apply to threatened species of wildlife that were added to the List of Endangered and Threatened Wildlife in § 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 §§ 17.40 through 17.48 applies to a threatened species, none of the VerDate Sep<11>2014 17:38 Aug 26, 2019 Jkt 247001 provisions of paragraphs (a) and (b) of this section will apply. The speciesspecific rule will contain all the applicable prohibitions and exceptions. ■ 3. Revise § 17.71 to read as follows: § 17.71 Prohibitions. (a) Except as provided in a permit issued under this subpart, all of the provisions of § 17.61 shall apply to threatened species of plants that were added to the List of Endangered and Threatened Plants in § 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 § 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 §§ 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 DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 20 [Docket No. FWS–HQ–MB–2018–0030; FF09M21200–189–FXMB1231099BPP0] RIN 1018–BD10 Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2019–20 Season Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 This rule prescribes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands. This rule responds to tribal requests for U.S. Fish and Wildlife Service (hereinafter Service or we) recognition of their authority to regulate hunting under established guidelines. This rule allows the establishment of season bag limits and, thus, harvest at levels compatible with populations and habitat conditions. DATES: This rule takes effect on August 27, 2019. ADDRESSES: You may inspect comments received on the special hunting regulations and Tribal proposals during normal business hours at U.S. Fish and Wildlife Headquarters, 5275 Leesburg Pike, Falls Church, VA 22041–3803 or at http://www.regulations.gov at Docket No. FWS–HQ–MB–2018–0030. You may obtain copies of referenced reports from the street address above, or from the Division of Migratory Bird Management’s website at http:// www.fws.gov/migratorybirds/, or at http://www.regulations.gov at Docket No. FWS–HQ–MB–2018–0030. FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS: MB, 5275 Leesburg Pike, Falls Church, VA 22041–3803; (703) 358–1967. SUPPLEMENTARY INFORMATION: SUMMARY: Background The Migratory Bird Treaty Act (MBTA) of July 3, 1918 (16 U.S.C. 703 et seq.), authorizes and directs the Secretary of the Department of the Interior, having due regard for the zones of temperature and for the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory game birds, to determine when, to what extent, and by what means such birds or any part, nest, or egg thereof may be taken, hunted, captured, killed, possessed, sold, purchased, shipped, carried, exported, or transported. In the July 8, 2019, Federal Register (84 FR 32385), we proposed special migratory bird hunting regulations for the 2019–20 hunting season for certain Indian tribes, under the guidelines described in the June 4, 1985, Federal Register (50 FR 23467). The guidelines respond to tribal requests for Service recognition of their reserved hunting rights, and for some tribes, recognition of their authority to regulate hunting by both tribal members and nonmembers on their reservations. The guidelines include possibilities for: E:\FR\FM\27AUR1.SGM 27AUR1

Agencies

[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]


=======================================================================
-----------------------------------------------------------------------

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.

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

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 http://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 http://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 http://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