[Federal Register Volume 78, Number 170 (Tuesday, September 3, 2013)]
[Proposed Rules]
[Pages 54218-54221]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21376]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket Nos. FWS-R1-ES-2012-0088; FWS-R1-ES-2013-0021]
RIN 1018-AZ17; 1081-AZ37
Endangered and Threatened Wildlife and Plants; 6-Month Extension
of Final Determination for the Proposed Listing and Designation of
Critical Habitat for Four Subspecies of Mazama Pocket Gopher
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rules; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
6-month extension of the final determination of whether to list four
subspecies of Mazama pocket gopher (Roy Prairie, Olympia, Tenino, and
Yelm) as threatened and reopen the comment period on the proposed rule
to list and designate critical habitat for the four subspecies. We are
taking this action because there is substantial disagreement regarding
the sufficiency or accuracy of the available data relevant to the
proposed listing and critical habitat rule, making it necessary to
solicit additional information by reopening the comment period for 45
days. In addition, we are considering broadening the scope of the
special rule for the four subspecies proposed under section 4(d) of the
Endangered Species Act, and specifically seek public comment on this
issue.
DATES: The comment period end date is October 18, 2013. Please note
comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES) must be entered no later than 11:59 p.m. Eastern Time
on the closing date. Any comments we receive after the closing date may
not be considered in the final decisions on these actions.
ADDRESSES: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket Nos. FWS-R1-ES-2012-0088 (for
listing) or FWS-R1-ES-2013-0021 (for designation of critical habitat),
which are the docket numbers for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R1-ES-2012-
[[Page 54219]]
0088 (for listing) or FWS-R1-ES-2013-0021 (for designation of critical
habitat); Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Manager, Washington Fish
and Wildlife Office, 510 Desmond Drive SE., Lacey, WA 98503; by
telephone at 360-753-9440; or by facsimile at 360-534-9331. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Proposed Listing of the Four Subspecies of Mazama Pocket Gopher as
Threatened
On December 11, 2012, we published a proposed rule (77 FR 73770) to
list four subspecies of Mazama pocket gopher (Roy Prairie [Thomomys
mazama glacialis], Olympia [T. m. pugetensis], Tenino [T. m. tumuli],
and Yelm [T. m. yelmensis]) as threatened, and to designate critical
habitat for these four subspecies in Washington under the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). For a
description of previous Federal actions concerning the Mazama pocket
gophers, please refer to the proposed rule. In addition to the original
60-day comment period associated with the publication of the proposed
rule, we held two public information workshops and one public hearing
in April 2013, and reopened the comment period for an additional 30
days to accept additional public comments (78 FR 20074; April 3, 2013).
That comment period closed on May 3, 2013.
Section 4(b)(6) of the Act requires that we take one of three
actions within 1 year of a proposed listing: (1) Finalize the proposed
listing; (2) withdraw the proposed listing; or (3) extend the final
determination by not more than 6 months, if there is substantial
disagreement regarding the sufficiency or accuracy of the available
data relevant to the determination, for the purposes of soliciting
additional data.
Since the publication of the proposed rule, there has been
substantial disagreement regarding the interpretation of the available
information used to determine the status and trends of the four
subspecies of Mazama pocket gopher, and the extent of threats to these
subspecies. We received comments from the Washington Department of Fish
and Wildlife (WDFW), U.S. Department of Agriculture Natural Resources
Conservation Service (NRCS), and others that questioned the accuracy or
sufficiency of the available data we used to assess the threat of
various agricultural and ranching activities to the Mazama pocket
gophers. Based on subsequent discussions with the Washington Department
of Agriculture and NRCS, we have determined that these assertions may
have some validity. In collaboration with these agencies, we are
currently embarking on a process to complete an assessment on
previously inaccessible private lands to more clearly determine and
clarify the impacts of various agricultural and ranching practices on
the Mazama pocket gophers. This information would assist in addressing
the substantial uncertainty that exists regarding the degree of threat
posed by different agricultural and ranching practices on private
lands. This 6-month extension will allow the Service to ensure that we
have obtained all relevant information from knowledgeable State and
Federal agencies, as well as other interested parties, to better inform
our final decision.
Therefore, in consideration of the disagreements surrounding the
status of the four subspecies of the Mazama pocket gopher, we are
extending the final determination for up to 6 months in order to
solicit information that will help to clarify these issues. We will
publish a final listing determination and, if listing is warranted, a
final critical habitat designation in the Federal Register on or before
March 31, 2014. The Service's work plan, which was filed as part of the
approved settlement with the Wild Earth Guardians in a consolidated
case in the U.S. District Court for the District of Columbia, required
the Service to issue a proposed listing rule or not warranted finding
for the Washington State Mazama pocket gopher subspecies by the end of
fiscal year 2012 and publish final listing determinations in accordance
with the statutory deadlines. The Service received an extension from
the court allowing us to deliver the proposed rules or not warranted
findings to the Federal Register by November 29, 2012. The order
granting the extension also committed the Service to deliver the final
determinations to the Federal Register by September 30, 2013, unless
the Service found there was substantial disagreement regarding the
sufficiency or accuracy of the available data relevant to the listing
determinations, in which case the Service agreed to submit final
determinations for these subspecies to the Federal Register on or
before March 31, 2014.
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed listing and proposed
designation of critical habitat for the four subspecies of Mazama
pocket gopher that was published in the Federal Register on December
10, 2012 (77 FR 73770). We will consider information and
recommendations from all interested parties. We intend that any final
action resulting from this proposal be as accurate as possible and
based on the best available scientific and commercial data.
Therefore, in consideration of the disagreements surrounding the
status of the four subspecies of Mazama pocket gopher, we are extending
the final determination for up to 6 months in order to solicit
information that will help to clarify these issues.
We are particularly interested in new information regarding:
(1) Threats associated with agricultural or ranching practices to
Mazama pocket gophers in Washington.
(2) Threats associated with high-density commercial, industrial,
and residential development or urbanization to Mazama pocket gophers in
Washington.
(3) Distribution and relative abundance of Mazama pocket gophers,
including maps and survey information, in Washington.
Please note that we are taking comments on the proposed listing and
the proposed critical habitat under separate Docket Numbers for the
final rulemaking. For comments relevant to the proposed listing, please
refer to Docket No. FWS-R1-ES-2012-0088. For comments relevant to the
proposed critical habitat, please refer to Docket No. FWS-R1-ES-2013-
0021. Proposed 4(d) Special Rule for the Four Subspecies of Mazama
Pocket Gopher--Additional Provisions Under Consideration
We are also taking this opportunity to reevaluate our proposed 4(d)
special rule published in the Federal Register on December 11, 2012 (77
FR 73770), based on comments received to date, and are seeking
additional input from the public. Under the authority of section 4(d)
of the Act, the Secretary
[[Page 54220]]
may publish a special rule that modifies the standard protections for
threatened species with special measures tailored to the conservation
of the species that are determined to be necessary and advisable to
provide for the conservation of the subspecies. As a means to promote
the conservation of the four subspecies of Mazama pocket gopher, we are
proposing special rules for these subspecies under section 4(d) of the
Act. In the case of a special rule, the general regulations (50 CFR
17.31 and 17.71) applying most prohibitions under section 9 of the Act
to threatened species do not apply, and the special rule contains the
prohibitions necessary and appropriate to conserve the species. Note
that a 4(d) special rule will not remove or alter in any way the
consultation requirements under section 7 of the Act.
In the special rule for the four subspecies of Mazama pocket gopher
in our proposed rule of December 11, 2012 (77 FR 73770), take of these
subspecies caused by restoration--and/or maintenance-type activities by
airports on non-Federal lands and ongoing single-family residential
noncommercial activities would be exempt from section 9 of the Act.
These activities included mechanical weed and grass removal on
airports. We also proposed to exempt certain construction activities
that occur in already-developed sites within single-family residential
development footprints. These included the placement of above-ground
fencing, garden plots, children's play equipment, residential dog
kennels, and storage sheds and carports. In addition, we also proposed
to exempt certain normal farming or ranching activities, including:
Grazing, routine fence and structure maintenance, mowing, herbicide
use, burning, and other routine activities. The intent of our initial
proposed special rule was to allow certain activities anticipated to
have limited harmful impacts to Mazama pocket gophers while encouraging
landowners to continue to maintain those areas that are not only
important for airport safety, agricultural use, and restoration
activities, but also provide habitat for the four Thurston/Pierce
subspecies of Mazama pocket gopher. On Federal lands, airport
restoration and maintenance type activities will be addressed through
the section 7 process should the subspecies be listed. We received
numerous comments from the public during our open comment periods
regarding the timing, extent, and methods used to carry out these
various activities and are revisiting our previous restrictions
associated with our proposed 4d special rule.
We see meaningful opportunities to conserve the four subspecies of
Mazama pocket gopher by allowing and promoting ongoing, and possibly
new, activities on non-Federal lands that contribute to the
conservation of these subspecies. The Service is continuing to evaluate
the range and scope of activities that may be consistent with the
conservation of the gophers and the range of options for providing
``take'' coverage (e.g., special rules, Habitat Conservation Plans,
Safe Harbor Agreements, and other types of conservation agreements) for
non-Federal landowners conducting these activities that further Mazama
pocket gopher conservation. For example, activities related to
conservation programs, or additional activities related to ranching or
agriculture (both discussed in further detail below), may be considered
for take exemption. Therefore, we are considering possible additional
provisions to the special rule, and we particularly seek information
and comments regarding:
(1) What measures are necessary and advisable for the conservation
and management of the Mazama pocket gopher that are appropriate for a
proposed 4(d) special rule to encourage landowners to manage their
lands for the benefit of the Mazama pocket gophers.
(2) Information regarding the types of activities that occur within
Mazama pocket gopher habitat and how they are or can be implemented
(e.g., timing, extent) consistent with maintaining or advancing
conservation of the gophers.
(3) Whether the Service should expand the scope of the 4(d) special
rule to allow incidental take of Mazama pocket gophers if the take
results from implementation of a comprehensive State conservation
program or regional or local conservation programs.
(4) Information concerning whether it would be appropriate to
include in the 4(d) special rule a provision for take of Mazama pocket
gophers in accordance with applicable State law for educational or
scientific purposes, the enhancement of propagation or survival of the
species, zoological exhibition, and other conservation purposes
consistent with the Act.
(5) Additional provisions the Service may wish to consider for a
4(d) special rule in order to conserve, recover, and manage the Mazama
pocket gopher.
Please submit any comments related to the proposed 4(d) special
rule to Docket No. FWS-R1-ES-2012-0088, which pertains to the proposed
listing of the four subspecies of Mazama pocket gopher.
State, Regional, and Local Conservation Programs
In addition to our original proposal exempting take associated with
certain individual activities associated with agricultural lands,
airports, and single-family residential properties, the Service is also
considering exempting take incidental to activities conducted pursuant
to a comprehensive State conservation program or regional or local
conservation programs. We anticipate that conservation programs covered
under such a 4(d) rule would need to be developed and administered by
an entity having jurisdiction or authority over the activities in the
program; would need to be approved by the Service as adequately
protective to provide a conservation benefit to the Mazama pocket
gopher; and may need to include adaptive management, monitoring, and
reporting components sufficient to demonstrate that the conservation
objectives of the plan are being met. For example, a comprehensive
conservation program that has a clear mechanism for enrollment of
participating landowners that want to manage their lands for the
benefit of the Mazama pocket gopher may not be prohibited from taking
Mazama pocket gopher. In making its determination, the Service would
consider:
(i) How the program addresses the threats affecting the Mazama
pocket gophers within the program area;
(ii) How the program establishes objective, measurable biological
goals and objectives for population and habitat necessary to ensure a
conservation benefit, and provides the mechanisms by which those goals
and objectives will be achieved;
(iii) How the program administrators demonstrate the capability and
funding mechanisms for effectively implementing all elements of the
conservation program, including enrollment of participating landowners,
monitoring of program activities, and enforcement of program
requirements;
(iv) How the program employs an adaptive management strategy to
ensure future program adaptation as necessary and appropriate; and
(v) How the program includes appropriate monitoring of
effectiveness and compliance.
The considerations presented here are meant to encourage the
development of efforts to improve habitat conditions and the status of
the four subspecies of Mazama pocket gopher across their ranges. For
the Service to approve
[[Page 54221]]
coverage of a comprehensive, regional, or local conservation program
under the 4(d) special rule being considered, the program must provide
a conservation benefit to Mazama pocket gophers. Conservation, as
defined in section 3(3) of the Act, means ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary.'' The program may
also be periodically reviewed by the Service to determine that it
continues to provide the intended conservation benefit to the Mazama
pocket gophers. As a result of this provision, the Service expects that
conservation actions will be implemented with a high level of certainty
that the program will lead to the long-term conservation of the four
subspecies of Mazama pocket gopher.
Agricultural and Ranching Activities
The Service is considering exempting take of Mazama pocket gopher
on non-Federal lands when those lands are managed following technical
guidelines that have been developed in coordination with a State or
Federal agency or agencies responsible for the management and
conservation of fish and wildlife, or their agent(s), and that has been
determined by the Service to provide a conservation benefit to Mazama
pocket gophers. Individual non-Federal landowners following these
specific technical guidelines may be exempted from take prohibitions.
Guidelines should incorporate procedures, practice standards, and
conservation measures that promote the continued existence of the four
subspecies of Mazama pocket gopher.
Ideally, appropriate guidelines would be associated with a program
that would provide financial and technical assistance to participating
landowners to implement specific conservation measures beneficial to
the Mazama pocket gophers that also contribute to the sustainability of
landowners' agricultural or ranching operations. Conservation measures
encompassed by such a program should be consistent with management or
restoration of prairie habitats for Mazama pocket gophers and include
brush management, prescribed grazing, range planting, prescribed
burning, and set asides for conservation areas.
We believe including such a provision in a 4(d) special rule for
agricultural and ranching activities will promote conservation of the
species by encouraging agricultural landowners and ranchers with Mazama
pocket gophers to continue managing the remaining landscape in ways
that meet the needs of their operations while simultaneously supporting
suitable habitat for the gophers as well as other prairie-dependent
species.
We will consider all comments and information received during our
preparation of a final determination on the status of the four
subspecies and the 4(d) special rule, and, if appropriate, a final
designation of critical habitat. Accordingly, the final decision may
differ from our original proposal.
If you previously submitted comments or information on the proposed
rule during the two previously open comment periods, please do not
resubmit them. We have incorporated them into the public record, and we
will fully consider them in the preparation of our final determination.
Our final determination concerning the proposed listing and proposed
designation of critical habitat will take into consideration all
written comments and any additional information we received.
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule, will be available
for public inspection on http://www.regulations.gov at Docket No. FWS-
R1-ES-2012-0088 and FWS-R1-ES-2013-0021, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service,
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT). You may obtain copies of the proposed rule on the Internet at
http://www.regulations.gov at Docket No. FWS-R1-ES-2012-0088, or by
mail from the Washington Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this notice are the staff members of the
Washington Fish and Wildlife Office, Pacific Region, U.S. Fish and
Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: August 21, 2013.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-21376 Filed 8-30-13; 8:45 am]
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