Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants, 44753-44760 [2019-17519]
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Federal Register / Vol. 84, No. 166 / Tuesday, August 27, 2019 / Rules and Regulations
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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
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any proposed significant energy action,
the agency must give a detailed
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should the proposal be implemented,
and of reasonable alternatives to the
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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).
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[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:
■
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Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
Signed in Washington, DC, July 24, 2019.
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We, the U.S. Fish and
Wildlife Service (Service or FWS),
revise our regulations related to
threatened species to remove the prior
default extension of most of the
prohibitions for activities involving
endangered species to threatened
species. For species already listed as a
threatened species, the revised
regulations do not alter the applicable
prohibitions. The revised regulations
provide that the Service, pursuant to
section 4(d) of the Endangered Species
Act (‘‘ESA’’ or the ‘‘Act’’), will
determine what protective regulations
are appropriate for species added to or
reclassified on the lists of threatened
species.
DATES: This final regulation is effective
on September 26, 2019.
ADDRESSES: This final regulation is
available on the internet at https://
www.regulations.gov in Docket No.
FWS–HQ–ES–2018–0007. Comments
SUMMARY:
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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
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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.
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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
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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
https://www.regulations.gov under
Docket No. FWS–HQ–ES–2018–0007.
This final rule is one of three related
final rules that we are publishing in this
issue of the Federal Register. All of
these documents finalize revisions to
various regulations that implement the
Act. The revisions to the regulations in
this rule are prospective; they are not
intended to require that any previous
listing or reclassification determination
under section 4 of the Act be
reevaluated.
Final Regulatory Revisions
Summary of Comments and
Recommendations
In our proposed rule published on
July 25, 2018 (83 FR 35174), we
requested public comments on our
specific proposed changes to 50 CFR
part 17. We received several requests for
public hearings and requests for
extensions to the public comment
period. However, we elected not to hold
public hearings or extend the public
comment period beyond the original 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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.’’
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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
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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
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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
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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.
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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
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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
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regulations are appropriate for species
added to or reclassified as threatened
species on the Lists of Endangered and
Threatened Wildlife and Plants.
These revisions are an example of an
action that is fundamentally
administrative, technical, or procedural
in nature. As explained with respect to
the Regulatory Flexibility Act, this final
rule is fundamentally a procedural
change for the Service that affects only
the form of the Service’s decisions with
respect to regulations that provide for
the conservation of threatened species.
The Service is, therefore, the only entity
that is directly affected by this final
regulation change at 50 CFR part 17.
The statute states, ‘‘Whenever any
species is listed as a threatened species
. . ., the Secretary shall issue such
regulations as he deems necessary and
advisable to provide for the
conservation of such species.’’ This
provision requires the Secretary to make
a decision about what protections to
apply to threatened species. When
species get listed in the future, the
blanket rules will no longer be in place,
but the Secretary will still be required
to make a decision about what
regulations to put in place for that
species. The only thing that this
rulemaking will change is that the
decision about what regulations to put
in place will now necessarily be in the
form of promulgating a species-specific
rule. To the extent any regulations that
provide for the conservation of
threatened species significantly affect
the environment, those effects result
from the substance of the subsequent
rulemaking where the Service will
decide what regulations would provide
for the species’ conservation, not from
this rulemaking, which affects only the
form of that decision. Therefore, this
final rule falls within the categorical
exclusion for rulemakings that are
administrative, procedural, or technical
in nature.
We completed an environmental
action statement for the categorical
exclusion for the revised regulations in
50 CFR part 17. The environmental
action statement is available at https://
www.regulations.gov in Docket No.
FWS–HQ–ES–2018–0007.
Energy Supply, Distribution or Use (E.O.
13211)
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions. This final rule is not expected
to affect energy supplies, distribution,
and use. As explained earlier, the only
thing that this rulemaking will change is
that the decision about what regulations
to put in place to provide for the
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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:
■
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§ 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
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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:
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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
https://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 https://
www.fws.gov/migratorybirds/, or at
https://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:
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[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44753-44760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17519]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2018-0007; 4500030113]
RIN 1018-BC97
Endangered and Threatened Wildlife and Plants; Regulations for
Prohibitions to Threatened Wildlife and Plants
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or FWS),
revise our regulations related to threatened species to remove the
prior default extension of most of the prohibitions for activities
involving endangered species to threatened species. For species already
listed as a threatened species, the revised regulations do not alter
the applicable prohibitions. The revised regulations provide that the
Service, pursuant to section 4(d) of the Endangered Species Act
(``ESA'' or the ``Act''), will determine what protective regulations
are appropriate for species added to or reclassified on the lists of
threatened species.
DATES: This final regulation is effective on September 26, 2019.
ADDRESSES: This final regulation is available on the internet at https://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007. Comments and
materials received, as well as supporting documentation used in the
preparation of this final regulation, are also available at the same
website.
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. If you use a
telecommunications device for the deaf (TDD), call the Federal Relay
Service at 800/877-8339.
SUPPLEMENTARY INFORMATION:
Background
On July 25, 2018, the Service published proposed regulation
revisions in the Federal Register (83 FR 35174) regarding section 4(d)
of the Act and its implementing regulations in title 50 of the Code of
Federal Regulations at 50 CFR part 17 setting forth the prohibitions
for species listed as threatened on the Federal Lists of Endangered and
Threatened Wildlife and Plants (lists). In the July 25, 2018, Federal
Register document, we provided the background for our proposed
regulation revisions in terms of the statute, legislative history, and
case law.
The regulations that implement the ESA are located in title 50 of
the Code of Federal Regulations. This final rule revises regulations
found in part 17 of title 50, particularly in subpart D, which pertains
to threatened wildlife, and subpart G, which pertains to threatened
plants.
In this final rule, we amend Sec. Sec. 17.31 and 17.71. Among
other changes, language is added in both sections to paragraph (a) to
specify that its provisions apply only to species listed as threatened
species on or before the effective date of this rule. Species listed or
reclassified as a threatened species after the effective date of this
rule would have protective regulations only if the Service promulgates
a species-specific rule (also referred to as a special rule). In those
cases, we intend to finalize the species-specific rule concurrent with
the final listing or reclassification determination. Notwithstanding
our intention, we have discretion to revise or promulgate species-
specific rules at any time after the final listing or reclassification
determination.
This change makes our regulatory approach for threatened species
similar to the approach that the National Marine Fisheries Service
(NMFS) has taken since Congress added section 4(d) to the Act, as
discussed below. The protective regulations that currently apply to
threatened species would not
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change, unless the Service adopts a species-specific rule in the
future. As of the date of this final rule, there are species-specific
protective regulations for threatened wildlife in subpart D of part 17,
but the Service has not adopted any species-specific protective
regulations for plants. These final regulations do not affect the
consultation obligations of Federal agencies pursuant to section 7 of
the Act. These final regulations do not change permitting pursuant to
50 CFR 17.32.
The prohibitions set forth in ESA section 9 expressly apply only to
species listed as endangered under the Act, as opposed to threatened.
16 U.S.C. 1538(a). ESA section 4(d), however, provides that the
Secretaries of the Interior and Commerce may by regulation extend some
or all of the section 9 prohibitions to any species listed as
threatened. Id. section 1533(d). 16 U.S.C. 1533(d). See, also S. Rep.
93-307 (July 1, 1973) (in amending the ESA to include the protection of
threatened species and creating ``two levels of protection'' for
endangered species and threatened species, ``regulatory mechanisms may
more easily be tailored to the needs of the'' species). Our existing
regulations in Sec. Sec. 17.31 and 17.71, extending most of the
prohibitions for endangered species to threatened species unless
altered by a specific regulation, is one reasonable approach to
exercising the discretion granted to the Service by section 4(d) of the
Act. See Sweet Home Chapter of Communities for a Great Or. v. Babbitt,
1 F.3d 1, 7 (D.C. Cir. 1993) (``regardless of the ESA's overall design,
Sec. 1533(d) arguably grants the FWS the discretion to extend the
maximum protection to all threatened species at once, if guided by its
expertise in the field of wildlife protection, it finds it expeditious
to do so''), altered on other grounds in rehearing, 17 F.3d 1463 (D.C.
Cir. 1994).
Another reasonable approach is the one that the Department of
Commerce, through NMFS, has taken in regard to the species under its
purview. NMFS did not adopt regulations that extended most of the
prohibitions for endangered species to threatened species as we did.
Rather, for each species that they list as threatened, NMFS promulgates
the appropriate regulations to put in place prohibitions, protections,
or restrictions tailored specifically to that species. In more than 40
years of implementing the Act, NMFS has successfully implemented the
provisions of the Act using this approach.
Moreover, we have gained considerable experience in developing
species-specific rules over the years. Where we have developed species-
specific 4(d) rules, we have seen many benefits, including removing
redundant permitting requirements, facilitating implementation of
beneficial conservation actions, and making better use of our limited
personnel and fiscal resources by focusing prohibitions on the
stressors contributing to the threatened status of the species. This
final rule will allow us to capitalize on these benefits in tailoring
the regulations to the needs of threatened species.
For example, we finalized a species-specific 4(d) rule for the
coastal California gnatcatcher (Polioptila californica californica) on
December 10, 1993 (58 FR 65088). In that 4(d) rule, we determined that
activities that met the requirements of the State of California's
Natural Communities Conservation Plan for the protection of coastal
sage scrub habitat would not constitute violations of section 9 of the
Act. Similarly, in 2016, we finalized the listing of the Kentucky arrow
darter (Etheostoma spilotum) with a species-specific 4(d) rule that
exempts take as a result of beneficial in-stream habitat enhancement
projects, bridge and culvert replacement, and maintenance of stream
crossings on lands managed by the U.S. Forest Service in habitats
occupied by the species (81 FR 68963, October 5, 2016). As with both of
these examples, if the proposed rule is finalized, we would continue
our practice of explaining in the preamble the rationale for the
species-specific prohibitions included in each 4(d) rule.
These final regulations would remove the references to subpart A in
Sec. Sec. 17.31 and 17.71. In Sec. 17.31, we specify which sections
apply to wildlife, to be more transparent as to which provisions
contain exceptions to the prohibitions. In Sec. 17.71, we remove all
reference to subpart A, because none of those exceptions apply to
plants.
In finalizing the specific changes to the regulations that follow,
and setting out the accompanying clarifying discussion in this
preamble, the Service is establishing prospective standards only.
Nothing in these final revised regulations is intended to require (now
or at such time as these regulations may become final) that any
previous listing or reclassification determinations or species-specific
protective regulations be reevaluated on the basis of any final
regulations. The existing protections for currently listed threatened
species are within the discretion expressly delegated to the
Secretaries by Congress.
Pursuant to section 10(j) of the Act, members of experimental
populations are generally treated as threatened species and, pursuant
to 50 CFR 17.81, populations are designated through population-specific
regulation found in Sec. Sec. 17.84-17.86. As under our existing
practice, each such population-specific regulation will contain all of
the applicable prohibitions, along with any exceptions to prohibitions,
for that experimental population. None of the changes associated with
this rulemaking will change existing special rules for experimental
populations. Any 10(j) rules promulgated after the effective date of
this rule that make applicable to a nonessential experimental
population some or all of the prohibitions that statutorily apply to
endangered species will not refer to 50 CFR 17.31(a); rather, they will
instead independently articulate those prohibitions or refer to 50 CFR
17.21.
We are finalizing the revised regulations as proposed without
further changes. In these final regulation revisions, we focus our
discussion on significant and substantive comments we received during
the comment period. For additional background on the statutory
language, legislative history, and case law relevant to these
regulations, please see our proposed regulation revision, which is
available at https://www.regulations.gov under Docket No. FWS-HQ-ES-
2018-0007.
This final rule is one of three related final rules that we are
publishing in this issue of the Federal Register. All of these
documents finalize revisions to various regulations that implement the
Act. The revisions to the regulations in this rule are prospective;
they are not intended to require that any previous listing or
reclassification determination under section 4 of the Act be
reevaluated.
Final Regulatory Revisions
Summary of Comments and Recommendations
In our proposed rule published on July 25, 2018 (83 FR 35174), we
requested public comments on our specific proposed changes to 50 CFR
part 17. We received several requests for public hearings and requests
for extensions to the public comment period. However, we elected not to
hold public hearings or extend the public comment period beyond the
original 60-day public comment period. We received more than 69,000
submissions representing hundreds of thousands of individual commenters
by the deadline on September 24, 2018. Many comments were
nonsubstantive in nature, expressing either general support for or
opposition to provisions of the proposed rule with no supporting
information or
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analysis or expressing opinions regarding topics not covered within the
proposed regulation. We also received many detailed substantive
comments with specific rationale for support of or opposition to
specific portions of the proposed rule. Below, we summarize and respond
to the significant, substantive comments sent by the September 24,
2018, deadline and provide responses to those comments.
Comment 1: Many commenters stated that rescinding the previous
regulation, referred to as the ``blanket rules,'' will leave threatened
species with no protections or prohibitions in place, which will result
in their status declining even more and the Service being unable to
conserve them.
Our Response: In the proposed rule, we stated our intention to
finalize species-specific 4(d) rules concurrent with final threatened
listing or reclassification determinations. In this final rule, we
restate our intention to finalize species-specific section 4(d) rules
concurrently with final listing or reclassification determinations.
Finalizing a species-specific 4(d) rule concurrent with a listing or
reclassification determination ensures that the species receives
appropriate protections at the time it is added to the list as a
threatened species (e.g., we anticipate that foreign species 4(d) rules
will generally include prohibitions of import and export and species-
specific 4(d) rules for marine mammals will generally incorporate
applicable provisions of the Marine Mammal Protection Act). This
approach also adds efficiency, predictability, and transparency to the
rulemaking process because it correlates the Service's analysis of
threats impacting the species (as discussed in the final listing or
reclassification rule) to its analysis of protective regulations for
the species. The publication of Federal Register documents that propose
and finalize both listing and 4(d) rules simultaneously adds
administrative efficiencies and cost-savings to the listing process
relative to the time and cost of conducting those two processes
sequentially.
We expect this concurrent process to promote transparency and
predictability in the rulemaking process for the regulated community.
Publishing species-specific 4(d) rules concurrent with the
classification rules provides the public knowledge of the primary
drivers to the species' status. The 4(d) rule includes specific actions
or activities that can be undertaken that would or would not impair
species' conservation. In turn, this information may assist with
streamlining future section 7 consultations. For example, if project
activities could be tailored to avoid forms of take prohibited by the
4(d) rule, consultation on those activities should be more
straightforward and predictable. Furthermore, we anticipate landowners
would be incentivized to take actions that would improve the status of
endangered species with the possibility of downlisting the species to
threatened and potentially receiving regulatory relief in the resulting
4(d) rule. As a result, we believe these measures to increase public
awareness, transparency, and predictability will enhance and expedite
conservation.
Comment 2: Several commenters stated that rescinding the blanket
rules will allow for political interference and industry pressure on
the Service to reduce protections and prohibitions of threatened
species at the detriment of species conservation.
Our Response: As explained in the preamble to the proposed
regulation, the intent of this regulation is to focus prohibitions on
the stressors contributing to the threatened status of the species and
to facilitate the implementation of beneficial conservation efforts.
This practice of tailoring regulations to individual threatened species
is guided by the Service's extensive history of implementing the Act.
Our determinations about which prohibitions, exceptions to the
prohibitions, or protective regulations should be applied to threatened
species have consistently been, and will continue to be, based upon the
best available scientific and commercial information available to us at
the time of listing.
Comment 3: Many commenters stated that FWS has a substantial
listing and reclassification workload and lacks the additional
resources necessary to promulgate species-specific 4(d) rules for every
species added to the list as threatened. They stated that the
additional resources necessary to promulgate additional rules will
impact FWS' ability to put into place the protections necessary and
species will be left unprotected.
Our Response: Promulgating species-specific 4(d) rules for every
threatened species may require additional resources at the time of
listing relative to our prior practice of defaulting to invoking the
blanket rules. If historical percentages of threatened species and
endangered species determinations were to continue into the future, we
estimate that each year approximately four species would be listed as
threatened species; therefore, we would develop four species-specific
4(d) rules per year. Historically, we finalized an average of 2
species-specific 4(d) rules per year (37 species-specific 4(d) rules
over 21 years (Service 2019). However, in the past 10 years, we have
promulgated 17 domestic and 6 foreign species-specific rules (2.3 per
year) as compared to 12 domestic and 2 foreign species-specific rules
in the 11 years prior (1.3 per year) (Service 2019). We expect to
continue with an increased rate of issuing species-specific rules in
the coming years. Therefore, we expect that we would promulgate
species-specific rules for most or all species listed as threatened
even if the blanket rule were to remain in place.
Developing species-specific 4(d) rules is a prudent and efficient
use of our resources because of the benefits gained from tailoring
protections specific to the needs of the species. When we tailor
regulations by limiting the prohibitions to those activities that are
causing the threat of extinction, we save the public and FWS resources
by reducing the need for section 10 permits. Likewise, tailored
regulations will encourage actions compatible with, or supportive of, a
species' conservation. Tailored prohibitions may also assist the
Service and other Federal agencies in streamlining the section 7
consultation processes for actions that result in forms of take that
are not prohibited by a 4(d) rule. For example, the Services would have
already determined that forms of take not prohibited by a 4(d) rule
were compatible with the species' conservation, which should streamline
our analysis on whether an action would jeopardize the continued
existence of the species and would streamline the incidental take
statement, if required. Species-specific regulations will also allow
the Service to facilitate and promote conservation actions that will
aid in the conservation of threatened species. In addition, because we
intend to put in place species-specific rules at the time of listing
(as noted in our response to comment (1)), we will continue to rely on
our analysis of stressors to the species from the listing
determination, including forms of ``take,'' that are acting on a
species. Because of this concurrent analysis of all factors influencing
the species carrying over from the listing determination, we anticipate
the development of species-specific protective regulations will be more
efficient than if done in separate rulemakings.
In general, the provisions of a 4(d) rule should be closely tied to
the species' needs and primary factors influencing the biological
status identified in the Species Status
[[Page 44756]]
Assessment (SSA) report or other analysis of the species' biological
status. Determining which protective regulations or section 9
prohibitions or exceptions to prohibitions a species requires to
address the stressors leading to threatened species status logically
flows from our analyses at the time of listing. Furthermore, when
developing new species-specific 4(d) rules, we intend to review
existing species-specific 4(d) rules that could be used as a model or
applied to the species in question. This approach would be beneficial
when there are species with similar threats or that occur in a similar
geographic area, or species with similar life histories or similar
biological needs. For example, the Service has an existing species-
specific 4(d) rule for threatened species within the parrot family,
which is found at 50 CFR 17.41(c), that includes protective regulations
for four different species. Where appropriate, the Service adds
additional listed members of the parrot family to this rule. In this
fashion, developing species-specific regulations will not be as time
consuming or burdensome as the commenters predict because the Service
will be able to rely on existing regulatory language and analysis.
Similar examples are the Service's existing species-specific 4(d) rules
for threatened primates (50 CFR 17.40(c)), crocodilians (50 CFR
17.42(c)), certain fish (50 CFR 17.44(c), (h), and (j)), and certain
butterflies (50 CFR 17.47(a)).
Comment 4: Several commenters stated that the prior regulations for
threatened species have been working to conserve threatened species for
the last 40 years and FWS should not rescind them.
Our Response: We are required to develop regulations as described
in section 4(d) of the Act that are necessary and advisable for the
conservation of threatened species. Additionally, section 4(d) of the
Act provides us the authority to prohibit specific forms of take.
Developing species-specific 4(d) rules will enhance transparency to the
regulated public because particular forms of incidental take that are
prohibited or excepted will be enumerated in the species-specific 4(d)
rule. The only thing that this rulemaking will change is that the
decision about what regulations to put in place will now by necessity
be in the form of promulgating a species-specific rule.
Although the blanket rules have worked, and will continue to work,
to conserve already-listed threatened species, we believe that species-
specific 4(d) rules for threatened species tailor species' protection
with appropriate regulations that may incentivize conservation, reduce
unneeded permitting, or streamline section 7 consultation processes as
described above. In practice, the FWS has been promulgating more
species-specific 4(d) rules in the last decade. The Service has
finalized 22 species-specific 4(d) rules in the last decade (2009-2018)
compared to finalizing 13 species-specific rules in the 12 years prior
(1997-2008). Consequently, we have found significant benefits from
developing and implementing species-specific 4(d) rules, such as
removing redundant permitting requirements, facilitating implementation
of beneficial conservation actions, and making better use of our
limited personnel and fiscal resources by focusing prohibitions on the
stressors contributing to the threatened status of the species.
This rule will facilitate beneficial conservation actions. For
example, the species-specific 4(d) rule for the elfin-woods warbler (81
FR 40547, June 22, 2016) sets forth a comprehensive set of conservation
measures regarding otherwise lawful activities for conversion of sun-
grown to shade-grown coffee plantations, riparian buffer establishment,
and reforestation and forested habitat enhancement. The 4(d) rule
provides details on the timing and acceptable methods by which these
activities can occur such that any incidental take would not be a
violation of the Act. Thus, projects that meet the conservation
measures for the elfin-woods warbler outlined in the species-specific
4(d) rule do not need an incidental take permit from the Service in
order to proceed. Likewise, the species-specific 4(d) rule for the
Kentucky arrow darter (81 FR 68984, October 5, 2016) contains
recommended conservation measures that, when conducted in accordance
with the 4(d) rule, ensure that incidental take would not be considered
a violation of the Act. The species-specific 4(d) rule details
activities such as in-stream restoration or reconfiguration, bank
stabilization, bridge and culvert replacement or removal that must be
conducted in accordance with conservation measures that maintain
connectivity of habitat, minimize instream disturbance, and maximize
the amount of in-stream cover. Therefore, projects that are conducted
in accordance with the conservation measures in the species-specific
4(d) rule for the Kentucky arrow darter do not require an incidental
take permit from the Service.
Comment 5: Several commenters stated that FWS did not provide
enough justification or logical rationale for why the change is
necessary.
Our Response: Our preamble to the proposed rule provides an
explanation of why we proposed to change our prior practice of the
blanket rules. This regulatory change to emphasize the creation of
species-specific 4(d) rules is within the discretion provided by the
Act. We recognize that our prior ``blanket rules'' were also considered
``reasonable and permissible'' constructions of section 4(d) of the
Act. Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 1
F.3d. 1, 8 (D.C. Cir. 1993), modified on other grounds on reh'g, 17
F.3d 1463 (D.C. Cir. 1994), rev'd on other grounds, 515 U.S. 687
(1995). For this reason, we are not altering the existence of the
``blanket rules'' for species already listed as threatened. However, we
conclude that moving to an emphasis on species-specific regulations is
also a reasonable and permissible interpretation of the discretion
found in section 4(d) of the Act. As explained elsewhere, we believe
this change will aid in the conservation of species. We also consider
this change to further highlight the statutory distinction between
species meeting the definitions of ``endangered species'' and
``threatened species.'' This change would make our regulatory approach
for threatened species similar to the approach that NMFS has taken
since Congress added section 4(d) to the Act. NMFS did not adopt
regulations that extended most of the prohibitions for endangered
species to threatened species as we did. Rather, when putting into
place protections for threatened species, NMFS promulgates the
appropriate regulations regarding section 9 prohibitions, exceptions to
prohibitions, or other regulatory protections tailored specifically to
that species. In more than 40 years of implementing the Act, NMFS has
successfully implemented the provisions of the Act using this approach.
Moreover, the Service has gained considerable experience in
developing species-specific rules over the past decade. As noted
elsewhere in this response to comments, we have found species-specific
4(d) rules beneficial in removing redundant permitting requirements,
facilitating implementation of beneficial conservation actions, and
making better use of our limited personnel and fiscal resources by
focusing prohibitions on the stressors contributing to the threatened
status of the species. For instance, some species-specific 4(d) rules
would not require a Federal permit for incidental take resulting from
activities that are conducted under a
[[Page 44757]]
State permit if the permit was issued pursuant to a State program that
furthers the goals of the Act. Other species-specific 4(d) rules may
set forth exceptions to take prohibitions for activities that are de
minimis in their effect on the species, or beneficial when conducted in
adherence to certain timeframes or using certain protocols (e.g., elfin
woods warbler species-specific 4(d) rule; 81 FR 40547, June 22, 2016).
This regulatory revision allows us to capitalize on these benefits in
tailoring section 9 prohibitions, exceptions to prohibitions, or other
regulatory protections to the conservation needs of the species.
We conclude that, while the prior ``blanket rules'' were one
possible means of implementing section 4(d) of the Act, the changes
finalized in this document will better tailor protections to the needs
of the threatened species while also providing meaning to the statutory
distinction between species meeting the definitions of ``endangered
species'' and ``threatened species.''
Comment 6: Some commenters stated that this change is not actually
aligning the Service's practice with NMFS, because NMFS does not
consistently promulgate species-specific 4(d) rules for threatened
species.
Our Response: NMFS does not have a default blanket rule for
threatened plants and animals but rather approaches each species on a
case-by-case basis on the basis of the discretion afforded under
section 4(d). Therefore, rescinding the Service's blanket rules will
closely align the two agencies' regulatory approaches. Although we have
indicated that our intention is to promulgate species-specific 4(d)
rules at the time of listing, we do not read the Act to require that we
promulgate a 4(d) rule whenever we list a species as a threatened
species.
Comment 7: Some commenters stated that if a threatened species did
not have section 9 prohibitions, private landowners would not have an
incentive to conserve species and landowners may be unlikely to enter
into partnership agreements to conserve threatened species.
Our Response: We intend for each species listed or reclassified as
a threatened species to have a species-specific 4(d) rule that outlines
section 9 prohibitions, exceptions to prohibitions, or other regulatory
protections as appropriate. Any species-specific 4(d) will follow the
Service's standard rulemaking process, which by law includes an
opportunity for public comment on a proposed rule. As a result, private
landowners will be aware of proposed regulations and have an
opportunity to proactively engage in voluntary conservation efforts. By
meaningfully recognizing the differences in the regulatory framework
between endangered species and threatened species, we believe that
crafting species-specific 4(d) rules will incentivize conservation for
both endangered species and threatened species. Private landowners and
other stakeholders may see more of an incentive to work on recovery
actions for endangered species, with an eventual goal of downlisting to
threatened species status with a species-specific 4(d) rule that might
result in reduced regulation.
For threatened species, 4(d) rules can limit the scope of
prohibitions so that they do not apply to certain activities conducted
pursuant to conservation efforts contained in conservation plans or
agreements. We anticipate that private parties, including landowners,
will be incentivized to participate in conservation efforts identified
in the 4(d) rule that protect the species. In these instances,
specified activities would be able to continue without Federal
regulation because of participation in the identified conservation
plan. At the same time, the plan will provide conservation to the
threatened species. In addition, tailoring the prohibitions applicable
to a threatened species identifies for the public the specific actions
or activities that are driving the species to a threatened status.
Developing species-specific 4(d) rules will incentivize positive
conservation efforts to improve the species' status such that it no
longer warrants listing.
Comment 8: Several commenters stated that the Service should
include binding timeframes in the regulatory text as to when the final
4(d) rule would be promulgated. Some of these included the suggestion
that it be within 90 days of the final listing, others stated that it
should be concurrent with listing, and others did not provide a
specific time period but stated that a set timeframe would be most
transparent to the public.
Our Response: As stated above, we intend to finalize species-
specific 4(d) rules concurrently with final listing or reclassification
determinations. We believe this approach will be most efficient and
will also ensure that threatened species have in place the protective
regulations supporting their recovery. We considered including a
regulatory timeframe to reflect our intention to promulgate 4(d) rules
at the time of listing, but ultimately determined that creating a
binding requirement was not needed. The Act does not mandate a specific
requirement to implement protective regulations concurrently with
threatened determinations.
Comment 9: We received many comments on topics that were not
specifically addressed in our proposed regulatory amendment, but,
instead, focus on issues that may arise during implementation of this
rulemaking. These included recommendations on which existing species-
specific 4(d) rules would provide a good model for future rules,
opinions as to the scope of the Service's discretion in extending
section 9 prohibitions in future rules, views on how the Service should
interpret the terms ``necessary and advisable'' in the Act, and
suggestions of approaches to take in future guidance documents on how
to develop species-specific 4(d) rules.
Our Response: The Service appreciates the many insightful comments
and suggestions we received on developing species-specific 4(d) rules.
While that input may inform the development of future species-specific
4(d) rules, policies, or guidance, in the interests of efficiency we
are finalizing the revisions for which we specifically proposed
regulatory text. The Service considered those comments, but is required
only to respond to ``significant'' comments--those ``comments which, if
true, . . . would require a change in [the] proposed rule,'' Am. Mining
Cong. v. United States EPA, 907 F.2d 1179, 1188 (DC Cir. 1990) (quoting
ACLU v. FCC, 823 F.2d 1554, 1581 (DC Cir. 1987)). Comments that either
were outside the scope of the issues we specifically addressed in our
proposed regulatory amendments, or that raise questions that may arise
during future implementation of this rulemaking, are not
``significant'' in the context of the proposed rule. See also Home Box
Office, Inc. v. FCC, 567 F.2d 9, 35 n. 58 (DC Cir. 1977), cert. denied,
485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). We therefore will
not respond to them at this time. However, to the extent commenters
raised questions about the substance of future species-specific 4(d)
regulations that have not been proposed, we urge commenters to provide
this feedback when a proposed species-specific 4(d) regulation raises
these concerns. Any species-specific 4(d) regulation will be proposed
and subject to public comment prior to adoption by the Service.
After a review and careful consideration of all of the public
comments received during the open public comment period, we have
finalized this rule as proposed.
[[Page 44758]]
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Management and
Budget's Office of Information and Regulatory Affairs (OIRA) will
review all significant rules. OIRA has determined that this rule is
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements. This final rule is consistent with Executive
Order 13563, and in particular with the requirement of retrospective
analysis of existing rules, designed ``to make the agency's regulatory
program more effective or less burdensome in achieving the regulatory
objectives.''
Executive Order 13771
This final rule is an Executive Order 13771 deregulatory action.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency, or his designee, certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
This rulemaking revises the regulations for 4(d) rules for species
determined to meet the definition of a ``threatened species'' under the
Act. This final rule is fundamentally a procedural change for the
Service that affects only the form of the Service's decisions with
respect to regulations that provide for the conservation of threatened
species. The Service is therefore the only entity that is directly
affected by this final regulation change at 50 CFR part 17. The statute
states, ``Whenever any species is listed as a threatened species . . .,
the Secretary shall issue such regulations as he deems necessary and
advisable to provide for the conservation of such species.'' This
provision requires the Secretary to make a decision about what
protections to apply to threatened species. The blanket rules
established that, as a general principle, the protections that the
statute prescribes for endangered species are also necessary and
advisable to provide for the conservation of threatened species. But
even with the blanket rules in place, it fell to the Secretary to
decide, upon listing or classifying individual species as threatened,
what protections to put in place for the species. That decision was in
the form of whether to allow the relevant blanket rule to apply or to
promulgate a species-specific rule. The need for that decision is even
ensconced in the blanket rules themselves--they expressly contemplate
that the Secretary could choose to promulgate a ``special rule'' that
would replace the blanket rule and ``contain all the applicable
prohibitions and exceptions.'' 50 CFR 17.31(c) and 17.71(c).
With promulgation of this rule, when species get listed in the
future, the blanket rules will no longer be in place, but the Secretary
will still be required to make a decision about what regulations to put
in place for that species. The only thing that this rulemaking will
change is that the decision about what regulations to put in place will
now necessarily be in the form of promulgating a species-specific rule.
To the extent that any regulations that provide for the conservation of
threatened species affect external entities, those effects result from
the substance of the subsequent rulemaking where the Service will
decide what regulations would provide for the species' conservation,
not from this rulemaking, which affects only the form of that decision.
As a result, no external entities--including any small businesses,
small organizations, or small governments--will experience any economic
impacts from this rule. We certify that this final rule will not have a
significant economic effect on a substantial number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this final rule will not ``significantly
or uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this
rule would not impose a cost of $100 million or more in any given year
on local or State governments or private entities. A Small Government
Agency Plan is not required. As explained above, small governments
would not be affected because the final rule will not place additional
requirements on any city, county, or other local municipalities.
(b) This final rule will not produce a Federal mandate on State,
local, or tribal governments or the private sector of $100 million or
greater in any year; that is, this rule is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. This final
rule will not impose obligations on State, local, or tribal
governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this final rule will not
have significant takings implications. This final rule will not pertain
to ``taking'' of private property interests, nor will it directly
affect private property. A takings implication assessment is not
required because this final rule (1) will not effectively compel a
property owner to suffer a physical invasion of property and (2) will
not deny all economically beneficial or productive use of the land or
aquatic resources. This final rule will substantially advance a
legitimate government interest (conservation and recovery of threatened
species) and will not present a barrier to all reasonable and expected
beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this final rule would have significant Federalism effects and
have determined that a federalism summary impact statement is not
required. This final rule pertains only to prohibitions for activities
pertaining to threatened species under the Endangered Species
[[Page 44759]]
Act and would not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
Civil Justice Reform (E.O. 12988)
This final rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This final rule will clarify the prohibitions to
threatened species under the Endangered Species Act.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments'' and the Department of the
Interior's manual at 512 DM 2, we have considered effects of this final
rule on federally recognized Indian Tribes. Two informational webinars
were held on July 31 and August 7, 2018, to provide additional
information to interested Tribes regarding the proposed regulations.
After the opening of the public comment period, we received multiple
requests for coordination or Government-to-Government consultation from
multiple tribes: Cowlitz Indian Tribe; Swinomish Indian Tribal
Community; The Confederated Tribes of the Grand Ronde Community of
Oregon; Confederated Tribes of Warm Springs, Oregon; Quinault Indian
Nation; Makah Tribe; Confederated Tribes of the Umatilla Indian
Reservation; and the Suquamish Tribe. We subsequently hosted a
conference call on November 15, 2018, to listen to Tribal concerns and
answer questions about the proposed regulations. On March 6, 2019,
Service representatives attended the Natural Resources Committee
Meeting of the United and South and Eastern Tribes' Impact Week
conference in Arlington (Crystal City), VA. At this meeting, we
presented information, answered questions, and held discussion
regarding the regulatory changes.
The Service concludes that the changes to these implementing
regulations make general changes to the ESA implementing regulations
and do not directly affect specific species or Tribal lands or
interests. As explained earlier, the only thing that this rulemaking
will change is that the decision about what regulations to put in place
to provide for the conservation of threatened species will now
necessarily be in the form of promulgating a species-specific rule. To
the extent that any regulations that provide for the conservation of
threatened species affect federally recognized Indian Tribes, those
effects will result from the substance of the subsequent rulemaking
where the Service will decide what regulations would provide for the
species' conservation, not from this rulemaking, which affects only the
form of that decision. Therefore, we conclude that this regulation does
not have ``tribal implications'' under section 1(a) of E.O. 13175 and
formal government-to-government consultation is not required by E.O.
13175 and related policies of the Department of the Interior. We will
continue to collaborate with Tribes on issues related to federally
listed species and work with them as we implement the provisions of the
Act. See Joint Secretarial Order 3206 (``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act,'' June 5, 1997).
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required.
We may not conduct or sponsor and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (NEPA)
We analyzed this final rule in accordance with the criteria of
NEPA, the Department of the Interior regulations on implementation of
NEPA (43 CFR 46.10-46.450), and the Department of the Interior Manual
(516 DM 8). We have determined that, to the extent that the proposed
action would result in reasonably foreseeable effects to the human
environment, the final regulation is categorically excluded from
further NEPA review and that no extraordinary circumstances are
present. The rule qualifies for two categorical exclusions listed at 43
CFR 46.210(i). First, the amendments are of a legal, technical, or
procedural nature. Second, any potential impacts of this rule are too
broad, speculative, and conjectural to lend themselves to meaningful
analysis and will be examined as part of any NEPA analysis, if
applicable, in stand-alone species-specific 4(d) rules. The revisions
finalized in this action are intended to clarify, interpret, and
implement portions of the Act concerning the procedures and criteria
used for determining what protective regulations are appropriate for
species added to or reclassified as threatened species on the Lists of
Endangered and Threatened Wildlife and Plants.
These revisions are an example of an action that is fundamentally
administrative, technical, or procedural in nature. As explained with
respect to the Regulatory Flexibility Act, this final rule is
fundamentally a procedural change for the Service that affects only the
form of the Service's decisions with respect to regulations that
provide for the conservation of threatened species. The Service is,
therefore, the only entity that is directly affected by this final
regulation change at 50 CFR part 17. The statute states, ``Whenever any
species is listed as a threatened species . . ., the Secretary shall
issue such regulations as he deems necessary and advisable to provide
for the conservation of such species.'' This provision requires the
Secretary to make a decision about what protections to apply to
threatened species. When species get listed in the future, the blanket
rules will no longer be in place, but the Secretary will still be
required to make a decision about what regulations to put in place for
that species. The only thing that this rulemaking will change is that
the decision about what regulations to put in place will now
necessarily be in the form of promulgating a species-specific rule. To
the extent any regulations that provide for the conservation of
threatened species significantly affect the environment, those effects
result from the substance of the subsequent rulemaking where the
Service will decide what regulations would provide for the species'
conservation, not from this rulemaking, which affects only the form of
that decision. Therefore, this final rule falls within the categorical
exclusion for rulemakings that are administrative, procedural, or
technical in nature.
We completed an environmental action statement for the categorical
exclusion for the revised regulations in 50 CFR part 17. The
environmental action statement is available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule is not
expected to affect energy supplies, distribution, and use. As explained
earlier, the only thing that this rulemaking will change is that the
decision about what regulations to put in place to provide for the
[[Page 44760]]
conservation of threatened species will now necessarily be in the form
of promulgating a species-specific rule. To the extent any regulations
that provide for the conservation of threatened species affect energy
supply, distribution, or use, those effects will result from the
substance of the subsequent rulemaking where the Service will decide
what regulations would provide for the species' conservation, not from
this rulemaking, which affects only the form of that decision.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Revise Sec. 17.31 to read as follows:
Sec. 17.31 Prohibitions.
(a) Except as provided in Sec. Sec. 17.4 through 17.8, or in a
permit issued under this subpart, all of the provisions of Sec. 17.21,
except Sec. 17.21(c)(5), shall apply to threatened species of wildlife
that were added to the List of Endangered and Threatened Wildlife in
Sec. 17.11(h) on or prior to September 26, 2019, unless the Secretary
has promulgated species-specific provisions (see paragraph (c) of this
section).
(b) In addition to any other provisions of this part, any employee
or agent of the Service, of the National Marine Fisheries Service, or
of a State conservation agency that is operating a conservation program
pursuant to the terms of a cooperative agreement with the Service in
accordance with section 6(c) of the Act, who is designated by that
agency for such purposes, may, when acting in the course of official
duties, take those threatened species of wildlife that are covered by
an approved cooperative agreement to carry out conservation programs.
(c) Whenever a species-specific rule in Sec. Sec. 17.40 through
17.48 applies to a threatened species, none of the provisions of
paragraphs (a) and (b) of this section will apply. The species-specific
rule will contain all the applicable prohibitions and exceptions.
0
3. Revise Sec. 17.71 to read as follows:
Sec. 17.71 Prohibitions.
(a) Except as provided in a permit issued under this subpart, all
of the provisions of Sec. 17.61 shall apply to threatened species of
plants that were added to the List of Endangered and Threatened Plants
in Sec. 17.12(h) on or prior to September 26, 2019, with the following
exception: Seeds of cultivated specimens of species treated as
threatened shall be exempt from all the provisions of Sec. 17.61,
provided that a statement that the seeds are of ``cultivated origin''
accompanies the seeds or their container during the course of any
activity otherwise subject to the regulations in this subpart.
(b) In addition to any provisions of this part, any employee or
agent of the Service or of a State conservation agency that is
operating a conservation program pursuant to the terms of a cooperative
agreement with the Service in accordance with section 6(c) of the Act,
who is designated by that agency for such purposes, may, when acting in
the course of official duties, remove and reduce to possession from
areas under Federal jurisdiction those threatened species of plants
that are covered by an approved cooperative agreement to carry out
conservation programs.
(c) Whenever a species-specific rule in Sec. Sec. 17.73 through
17.78 applies to a threatened species, the species-specific rule will
contain all the applicable prohibitions and exceptions.
Dated: August 12, 2019.
David L. Bernhardt,
Secretary. Department of the Interior.
[FR Doc. 2019-17519 Filed 8-26-19; 8:45 am]
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