[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 http://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007. Comments and
materials received, as well as supporting documentation used in the
preparation of this final regulation, are also available at the same
website.
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. If you use a
telecommunications device for the deaf (TDD), call the Federal Relay
Service at 800/877-8339.
SUPPLEMENTARY INFORMATION:
Background
On July 25, 2018, the Service published proposed regulation
revisions in the Federal Register (83 FR 35174) regarding section 4(d)
of the Act and its implementing regulations in title 50 of the Code of
Federal Regulations at 50 CFR part 17 setting forth the prohibitions
for species listed as threatened on the Federal Lists of Endangered and
Threatened Wildlife and Plants (lists). In the July 25, 2018, Federal
Register document, we provided the background for our proposed
regulation revisions in terms of the statute, legislative history, and
case law.
The regulations that implement the ESA are located in title 50 of
the Code of Federal Regulations. This final rule revises regulations
found in part 17 of title 50, particularly in subpart D, which pertains
to threatened wildlife, and subpart G, which pertains to threatened
plants.
In this final rule, we amend Sec. Sec. 17.31 and 17.71. Among
other changes, language is added in both sections to paragraph (a) to
specify that its provisions apply only to species listed as threatened
species on or before the effective date of this rule. Species listed or
reclassified as a threatened species after the effective date of this
rule would have protective regulations only if the Service promulgates
a species-specific rule (also referred to as a special rule). In those
cases, we intend to finalize the species-specific rule concurrent with
the final listing or reclassification determination. Notwithstanding
our intention, we have discretion to revise or promulgate species-
specific rules at any time after the final listing or reclassification
determination.
This change makes our regulatory approach for threatened species
similar to the approach that the National Marine Fisheries Service
(NMFS) has taken since Congress added section 4(d) to the Act, as
discussed below. The protective regulations that currently apply to
threatened species would not
[[Page 44754]]
change, unless the Service adopts a species-specific rule in the
future. As of the date of this final rule, there are species-specific
protective regulations for threatened wildlife in subpart D of part 17,
but the Service has not adopted any species-specific protective
regulations for plants. These final regulations do not affect the
consultation obligations of Federal agencies pursuant to section 7 of
the Act. These final regulations do not change permitting pursuant to
50 CFR 17.32.
The prohibitions set forth in ESA section 9 expressly apply only to
species listed as endangered under the Act, as opposed to threatened.
16 U.S.C. 1538(a). ESA section 4(d), however, provides that the
Secretaries of the Interior and Commerce may by regulation extend some
or all of the section 9 prohibitions to any species listed as
threatened. Id. section 1533(d). 16 U.S.C. 1533(d). See, also S. Rep.
93-307 (July 1, 1973) (in amending the ESA to include the protection of
threatened species and creating ``two levels of protection'' for
endangered species and threatened species, ``regulatory mechanisms may
more easily be tailored to the needs of the'' species). Our existing
regulations in Sec. Sec. 17.31 and 17.71, extending most of the
prohibitions for endangered species to threatened species unless
altered by a specific regulation, is one reasonable approach to
exercising the discretion granted to the Service by section 4(d) of the
Act. See Sweet Home Chapter of Communities for a Great Or. v. Babbitt,
1 F.3d 1, 7 (D.C. Cir. 1993) (``regardless of the ESA's overall design,
Sec. 1533(d) arguably grants the FWS the discretion to extend the
maximum protection to all threatened species at once, if guided by its
expertise in the field of wildlife protection, it finds it expeditious
to do so''), altered on other grounds in rehearing, 17 F.3d 1463 (D.C.
Cir. 1994).
Another reasonable approach is the one that the Department of
Commerce, through NMFS, has taken in regard to the species under its
purview. NMFS did not adopt regulations that extended most of the
prohibitions for endangered species to threatened species as we did.
Rather, for each species that they list as threatened, NMFS promulgates
the appropriate regulations to put in place prohibitions, protections,
or restrictions tailored specifically to that species. In more than 40
years of implementing the Act, NMFS has successfully implemented the
provisions of the Act using this approach.
Moreover, we have gained considerable experience in developing
species-specific rules over the years. Where we have developed species-
specific 4(d) rules, we have seen many benefits, including removing
redundant permitting requirements, facilitating implementation of
beneficial conservation actions, and making better use of our limited
personnel and fiscal resources by focusing prohibitions on the
stressors contributing to the threatened status of the species. This
final rule will allow us to capitalize on these benefits in tailoring
the regulations to the needs of threatened species.
For example, we finalized a species-specific 4(d) rule for the
coastal California gnatcatcher (Polioptila californica californica) on
December 10, 1993 (58 FR 65088). In that 4(d) rule, we determined that
activities that met the requirements of the State of California's
Natural Communities Conservation Plan for the protection of coastal
sage scrub habitat would not constitute violations of section 9 of the
Act. Similarly, in 2016, we finalized the listing of the Kentucky arrow
darter (Etheostoma spilotum) with a species-specific 4(d) rule that
exempts take as a result of beneficial in-stream habitat enhancement
projects, bridge and culvert replacement, and maintenance of stream
crossings on lands managed by the U.S. Forest Service in habitats
occupied by the species (81 FR 68963, October 5, 2016). As with both of
these examples, if the proposed rule is finalized, we would continue
our practice of explaining in the preamble the rationale for the
species-specific prohibitions included in each 4(d) rule.
These final regulations would remove the references to subpart A in
Sec. Sec. 17.31 and 17.71. In Sec. 17.31, we specify which sections
apply to wildlife, to be more transparent as to which provisions
contain exceptions to the prohibitions. In Sec. 17.71, we remove all
reference to subpart A, because none of those exceptions apply to
plants.
In finalizing the specific changes to the regulations that follow,
and setting out the accompanying clarifying discussion in this
preamble, the Service is establishing prospective standards only.
Nothing in these final revised regulations is intended to require (now
or at such time as these regulations may become final) that any
previous listing or reclassification determinations or species-specific
protective regulations be reevaluated on the basis of any final
regulations. The existing protections for currently listed threatened
species are within the discretion expressly delegated to the
Secretaries by Congress.
Pursuant to section 10(j) of the Act, members of experimental
populations are generally treated as threatened species and, pursuant
to 50 CFR 17.81, populations are designated through population-specific
regulation found in Sec. Sec. 17.84-17.86. As under our existing
practice, each such population-specific regulation will contain all of
the applicable prohibitions, along with any exceptions to prohibitions,
for that experimental population. None of the changes associated with
this rulemaking will change existing special rules for experimental
populations. Any 10(j) rules promulgated after the effective date of
this rule that make applicable to a nonessential experimental
population some or all of the prohibitions that statutorily apply to
endangered species will not refer to 50 CFR 17.31(a); rather, they will
instead independently articulate those prohibitions or refer to 50 CFR
17.21.
We are finalizing the revised regulations as proposed without
further changes. In these final regulation revisions, we focus our
discussion on significant and substantive comments we received during
the comment period. For additional background on the statutory
language, legislative history, and case law relevant to these
regulations, please see our proposed regulation revision, which is
available at http://www.regulations.gov under Docket No. FWS-HQ-ES-
2018-0007.
This final rule is one of three related final rules that we are
publishing in this issue of the Federal Register. All of these
documents finalize revisions to various regulations that implement the
Act. The revisions to the regulations in this rule are prospective;
they are not intended to require that any previous listing or
reclassification determination under section 4 of the Act be
reevaluated.
Final Regulatory Revisions
Summary of Comments and Recommendations
In our proposed rule published on July 25, 2018 (83 FR 35174), we
requested public comments on our specific proposed changes to 50 CFR
part 17. We received several requests for public hearings and requests
for extensions to the public comment period. However, we elected not to
hold public hearings or extend the public comment period beyond the
original 60-day public comment period. We received more than 69,000
submissions representing hundreds of thousands of individual commenters
by the deadline on September 24, 2018. Many comments were
nonsubstantive in nature, expressing either general support for or
opposition to provisions of the proposed rule with no supporting
information or
[[Page 44755]]
analysis or expressing opinions regarding topics not covered within the
proposed regulation. We also received many detailed substantive
comments with specific rationale for support of or opposition to
specific portions of the proposed rule. Below, we summarize and respond
to the significant, substantive comments sent by the September 24,
2018, deadline and provide responses to those comments.
Comment 1: Many commenters stated that rescinding the previous
regulation, referred to as the ``blanket rules,'' will leave threatened
species with no protections or prohibitions in place, which will result
in their status declining even more and the Service being unable to
conserve them.
Our Response: In the proposed rule, we stated our intention to
finalize species-specific 4(d) rules concurrent with final threatened
listing or reclassification determinations. In this final rule, we
restate our intention to finalize species-specific section 4(d) rules
concurrently with final listing or reclassification determinations.
Finalizing a species-specific 4(d) rule concurrent with a listing or
reclassification determination ensures that the species receives
appropriate protections at the time it is added to the list as a
threatened species (e.g., we anticipate that foreign species 4(d) rules
will generally include prohibitions of import and export and species-
specific 4(d) rules for marine mammals will generally incorporate
applicable provisions of the Marine Mammal Protection Act). This
approach also adds efficiency, predictability, and transparency to the
rulemaking process because it correlates the Service's analysis of
threats impacting the species (as discussed in the final listing or
reclassification rule) to its analysis of protective regulations for
the species. The publication of Federal Register documents that propose
and finalize both listing and 4(d) rules simultaneously adds
administrative efficiencies and cost-savings to the listing process
relative to the time and cost of conducting those two processes
sequentially.
We expect this concurrent process to promote transparency and
predictability in the rulemaking process for the regulated community.
Publishing species-specific 4(d) rules concurrent with the
classification rules provides the public knowledge of the primary
drivers to the species' status. The 4(d) rule includes specific actions
or activities that can be undertaken that would or would not impair
species' conservation. In turn, this information may assist with
streamlining future section 7 consultations. For example, if project
activities could be tailored to avoid forms of take prohibited by the
4(d) rule, consultation on those activities should be more
straightforward and predictable. Furthermore, we anticipate landowners
would be incentivized to take actions that would improve the status of
endangered species with the possibility of downlisting the species to
threatened and potentially receiving regulatory relief in the resulting
4(d) rule. As a result, we believe these measures to increase public
awareness, transparency, and predictability will enhance and expedite
conservation.
Comment 2: Several commenters stated that rescinding the blanket
rules will allow for political interference and industry pressure on
the Service to reduce protections and prohibitions of threatened
species at the detriment of species conservation.
Our Response: As explained in the preamble to the proposed
regulation, the intent of this regulation is to focus prohibitions on
the stressors contributing to the threatened status of the species and
to facilitate the implementation of beneficial conservation efforts.
This practice of tailoring regulations to individual threatened species
is guided by the Service's extensive history of implementing the Act.
Our determinations about which prohibitions, exceptions to the
prohibitions, or protective regulations should be applied to threatened
species have consistently been, and will continue to be, based upon the
best available scientific and commercial information available to us at
the time of listing.
Comment 3: Many commenters stated that FWS has a substantial
listing and reclassification workload and lacks the additional
resources necessary to promulgate species-specific 4(d) rules for every
species added to the list as threatened. They stated that the
additional resources necessary to promulgate additional rules will
impact FWS' ability to put into place the protections necessary and
species will be left unprotected.
Our Response: Promulgating species-specific 4(d) rules for every
threatened species may require additional resources at the time of
listing relative to our prior practice of defaulting to invoking the
blanket rules. If historical percentages of threatened species and
endangered species determinations were to continue into the future, we
estimate that each year approximately four species would be listed as
threatened species; therefore, we would develop four species-specific
4(d) rules per year. Historically, we finalized an average of 2
species-specific 4(d) rules per year (37 species-specific 4(d) rules
over 21 years (Service 2019). However, in the past 10 years, we have
promulgated 17 domestic and 6 foreign species-specific rules (2.3 per
year) as compared to 12 domestic and 2 foreign species-specific rules
in the 11 years prior (1.3 per year) (Service 2019). We expect to
continue with an increased rate of issuing species-specific rules in
the coming years. Therefore, we expect that we would promulgate
species-specific rules for most or all species listed as threatened
even if the blanket rule were to remain in place.
Developing species-specific 4(d) rules is a prudent and efficient
use of our resources because of the benefits gained from tailoring
protections specific to the needs of the species. When we tailor
regulations by limiting the prohibitions to those activities that are
causing the threat of extinction, we save the public and FWS resources
by reducing the need for section 10 permits. Likewise, tailored
regulations will encourage actions compatible with, or supportive of, a
species' conservation. Tailored prohibitions may also assist the
Service and other Federal agencies in streamlining the section 7
consultation processes for actions that result in forms of take that
are not prohibited by a 4(d) rule. For example, the Services would have
already determined that forms of take not prohibited by a 4(d) rule
were compatible with the species' conservation, which should streamline
our analysis on whether an action would jeopardize the continued
existence of the species and would streamline the incidental take
statement, if required. Species-specific regulations will also allow
the Service to facilitate and promote conservation actions that will
aid in the conservation of threatened species. In addition, because we
intend to put in place species-specific rules at the time of listing
(as noted in our response to comment (1)), we will continue to rely on
our analysis of stressors to the species from the listing
determination, including forms of ``take,'' that are acting on a
species. Because of this concurrent analysis of all factors influencing
the species carrying over from the listing determination, we anticipate
the development of species-specific protective regulations will be more
efficient than if done in separate rulemakings.
In general, the provisions of a 4(d) rule should be closely tied to
the species' needs and primary factors influencing the biological
status identified in the Species Status
[[Page 44756]]
Assessment (SSA) report or other analysis of the species' biological
status. Determining which protective regulations or section 9
prohibitions or exceptions to prohibitions a species requires to
address the stressors leading to threatened species status logically
flows from our analyses at the time of listing. Furthermore, when
developing new species-specific 4(d) rules, we intend to review
existing species-specific 4(d) rules that could be used as a model or
applied to the species in question. This approach would be beneficial
when there are species with similar threats or that occur in a similar
geographic area, or species with similar life histories or similar
biological needs. For example, the Service has an existing species-
specific 4(d) rule for threatened species within the parrot family,
which is found at 50 CFR 17.41(c), that includes protective regulations
for four different species. Where appropriate, the Service adds
additional listed members of the parrot family to this rule. In this
fashion, developing species-specific regulations will not be as time
consuming or burdensome as the commenters predict because the Service
will be able to rely on existing regulatory language and analysis.
Similar examples are the Service's existing species-specific 4(d) rules
for threatened primates (50 CFR 17.40(c)), crocodilians (50 CFR
17.42(c)), certain fish (50 CFR 17.44(c), (h), and (j)), and certain
butterflies (50 CFR 17.47(a)).
Comment 4: Several commenters stated that the prior regulations for
threatened species have been working to conserve threatened species for
the last 40 years and FWS should not rescind them.
Our Response: We are required to develop regulations as described
in section 4(d) of the Act that are necessary and advisable for the
conservation of threatened species. Additionally, section 4(d) of the
Act provides us the authority to prohibit specific forms of take.
Developing species-specific 4(d) rules will enhance transparency to the
regulated public because particular forms of incidental take that are
prohibited or excepted will be enumerated in the species-specific 4(d)
rule. The only thing that this rulemaking will change is that the
decision about what regulations to put in place will now by necessity
be in the form of promulgating a species-specific rule.
Although the blanket rules have worked, and will continue to work,
to conserve already-listed threatened species, we believe that species-
specific 4(d) rules for threatened species tailor species' protection
with appropriate regulations that may incentivize conservation, reduce
unneeded permitting, or streamline section 7 consultation processes as
described above. In practice, the FWS has been promulgating more
species-specific 4(d) rules in the last decade. The Service has
finalized 22 species-specific 4(d) rules in the last decade (2009-2018)
compared to finalizing 13 species-specific rules in the 12 years prior
(1997-2008). Consequently, we have found significant benefits from
developing and implementing species-specific 4(d) rules, such as
removing redundant permitting requirements, facilitating implementation
of beneficial conservation actions, and making better use of our
limited personnel and fiscal resources by focusing prohibitions on the
stressors contributing to the threatened status of the species.
This rule will facilitate beneficial conservation actions. For
example, the species-specific 4(d) rule for the elfin-woods warbler (81
FR 40547, June 22, 2016) sets forth a comprehensive set of conservation
measures regarding otherwise lawful activities for conversion of sun-
grown to shade-grown coffee plantations, riparian buffer establishment,
and reforestation and forested habitat enhancement. The 4(d) rule
provides details on the timing and acceptable methods by which these
activities can occur such that any incidental take would not be a
violation of the Act. Thus, projects that meet the conservation
measures for the elfin-woods warbler outlined in the species-specific
4(d) rule do not need an incidental take permit from the Service in
order to proceed. Likewise, the species-specific 4(d) rule for the
Kentucky arrow darter (81 FR 68984, October 5, 2016) contains
recommended conservation measures that, when conducted in accordance
with the 4(d) rule, ensure that incidental take would not be considered
a violation of the Act. The species-specific 4(d) rule details
activities such as in-stream restoration or reconfiguration, bank
stabilization, bridge and culvert replacement or removal that must be
conducted in accordance with conservation measures that maintain
connectivity of habitat, minimize instream disturbance, and maximize
the amount of in-stream cover. Therefore, projects that are conducted
in accordance with the conservation measures in the species-specific
4(d) rule for the Kentucky arrow darter do not require an incidental
take permit from the Service.
Comment 5: Several commenters stated that FWS did not provide
enough justification or logical rationale for why the change is
necessary.
Our Response: Our preamble to the proposed rule provides an
explanation of why we proposed to change our prior practice of the
blanket rules. This regulatory change to emphasize the creation of
species-specific 4(d) rules is within the discretion provided by the
Act. We recognize that our prior ``blanket rules'' were also considered
``reasonable and permissible'' constructions of section 4(d) of the
Act. Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 1
F.3d. 1, 8 (D.C. Cir. 1993), modified on other grounds on reh'g, 17
F.3d 1463 (D.C. Cir. 1994), rev'd on other grounds, 515 U.S. 687
(1995). For this reason, we are not altering the existence of the
``blanket rules'' for species already listed as threatened. However, we
conclude that moving to an emphasis on species-specific regulations is
also a reasonable and permissible interpretation of the discretion
found in section 4(d) of the Act. As explained elsewhere, we believe
this change will aid in the conservation of species. We also consider
this change to further highlight the statutory distinction between
species meeting the definitions of ``endangered species'' and
``threatened species.'' This change would make our regulatory approach
for threatened species similar to the approach that NMFS has taken
since Congress added section 4(d) to the Act. NMFS did not adopt
regulations that extended most of the prohibitions for endangered
species to threatened species as we did. Rather, when putting into
place protections for threatened species, NMFS promulgates the
appropriate regulations regarding section 9 prohibitions, exceptions to
prohibitions, or other regulatory protections tailored specifically to
that species. In more than 40 years of implementing the Act, NMFS has
successfully implemented the provisions of the Act using this approach.
Moreover, the Service has gained considerable experience in
developing species-specific rules over the past decade. As noted
elsewhere in this response to comments, we have found species-specific
4(d) rules beneficial in removing redundant permitting requirements,
facilitating implementation of beneficial conservation actions, and
making better use of our limited personnel and fiscal resources by
focusing prohibitions on the stressors contributing to the threatened
status of the species. For instance, some species-specific 4(d) rules
would not require a Federal permit for incidental take resulting from
activities that are conducted under a
[[Page 44757]]
State permit if the permit was issued pursuant to a State program that
furthers the goals of the Act. Other species-specific 4(d) rules may
set forth exceptions to take prohibitions for activities that are de
minimis in their effect on the species, or beneficial when conducted in
adherence to certain timeframes or using certain protocols (e.g., elfin
woods warbler species-specific 4(d) rule; 81 FR 40547, June 22, 2016).
This regulatory revision allows us to capitalize on these benefits in
tailoring section 9 prohibitions, exceptions to prohibitions, or other
regulatory protections to the conservation needs of the species.
We conclude that, while the prior ``blanket rules'' were one
possible means of implementing section 4(d) of the Act, the changes
finalized in this document will better tailor protections to the needs
of the threatened species while also providing meaning to the statutory
distinction between species meeting the definitions of ``endangered
species'' and ``threatened species.''
Comment 6: Some commenters stated that this change is not actually
aligning the Service's practice with NMFS, because NMFS does not
consistently promulgate species-specific 4(d) rules for threatened
species.
Our Response: NMFS does not have a default blanket rule for
threatened plants and animals but rather approaches each species on a
case-by-case basis on the basis of the discretion afforded under
section 4(d). Therefore, rescinding the Service's blanket rules will
closely align the two agencies' regulatory approaches. Although we have
indicated that our intention is to promulgate species-specific 4(d)
rules at the time of listing, we do not read the Act to require that we
promulgate a 4(d) rule whenever we list a species as a threatened
species.
Comment 7: Some commenters stated that if a threatened species did
not have section 9 prohibitions, private landowners would not have an
incentive to conserve species and landowners may be unlikely to enter
into partnership agreements to conserve threatened species.
Our Response: We intend for each species listed or reclassified as
a threatened species to have a species-specific 4(d) rule that outlines
section 9 prohibitions, exceptions to prohibitions, or other regulatory
protections as appropriate. Any species-specific 4(d) will follow the
Service's standard rulemaking process, which by law includes an
opportunity for public comment on a proposed rule. As a result, private
landowners will be aware of proposed regulations and have an
opportunity to proactively engage in voluntary conservation efforts. By
meaningfully recognizing the differences in the regulatory framework
between endangered species and threatened species, we believe that
crafting species-specific 4(d) rules will incentivize conservation for
both endangered species and threatened species. Private landowners and
other stakeholders may see more of an incentive to work on recovery
actions for endangered species, with an eventual goal of downlisting to
threatened species status with a species-specific 4(d) rule that might
result in reduced regulation.
For threatened species, 4(d) rules can limit the scope of
prohibitions so that they do not apply to certain activities conducted
pursuant to conservation efforts contained in conservation plans or
agreements. We anticipate that private parties, including landowners,
will be incentivized to participate in conservation efforts identified
in the 4(d) rule that protect the species. In these instances,
specified activities would be able to continue without Federal
regulation because of participation in the identified conservation
plan. At the same time, the plan will provide conservation to the
threatened species. In addition, tailoring the prohibitions applicable
to a threatened species identifies for the public the specific actions
or activities that are driving the species to a threatened status.
Developing species-specific 4(d) rules will incentivize positive
conservation efforts to improve the species' status such that it no
longer warrants listing.
Comment 8: Several commenters stated that the Service should
include binding timeframes in the regulatory text as to when the final
4(d) rule would be promulgated. Some of these included the suggestion
that it be within 90 days of the final listing, others stated that it
should be concurrent with listing, and others did not provide a
specific time period but stated that a set timeframe would be most
transparent to the public.
Our Response: As stated above, we intend to finalize species-
specific 4(d) rules concurrently with final listing or reclassification
determinations. We believe this approach will be most efficient and
will also ensure that threatened species have in place the protective
regulations supporting their recovery. We considered including a
regulatory timeframe to reflect our intention to promulgate 4(d) rules
at the time of listing, but ultimately determined that creating a
binding requirement was not needed. The Act does not mandate a specific
requirement to implement protective regulations concurrently with
threatened determinations.
Comment 9: We received many comments on topics that were not
specifically addressed in our proposed regulatory amendment, but,
instead, focus on issues that may arise during implementation of this
rulemaking. These included recommendations on which existing species-
specific 4(d) rules would provide a good model for future rules,
opinions as to the scope of the Service's discretion in extending
section 9 prohibitions in future rules, views on how the Service should
interpret the terms ``necessary and advisable'' in the Act, and
suggestions of approaches to take in future guidance documents on how
to develop species-specific 4(d) rules.
Our Response: The Service appreciates the many insightful comments
and suggestions we received on developing species-specific 4(d) rules.
While that input may inform the development of future species-specific
4(d) rules, policies, or guidance, in the interests of efficiency we
are finalizing the revisions for which we specifically proposed
regulatory text. The Service considered those comments, but is required
only to respond to ``significant'' comments--those ``comments which, if
true, . . . would require a change in [the] proposed rule,'' Am. Mining
Cong. v. United States EPA, 907 F.2d 1179, 1188 (DC Cir. 1990) (quoting
ACLU v. FCC, 823 F.2d 1554, 1581 (DC Cir. 1987)). Comments that either
were outside the scope of the issues we specifically addressed in our
proposed regulatory amendments, or that raise questions that may arise
during future implementation of this rulemaking, are not
``significant'' in the context of the proposed rule. See also Home Box
Office, Inc. v. FCC, 567 F.2d 9, 35 n. 58 (DC Cir. 1977), cert. denied,
485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). We therefore will
not respond to them at this time. However, to the extent commenters
raised questions about the substance of future species-specific 4(d)
regulations that have not been proposed, we urge commenters to provide
this feedback when a proposed species-specific 4(d) regulation raises
these concerns. Any species-specific 4(d) regulation will be proposed
and subject to public comment prior to adoption by the Service.
After a review and careful consideration of all of the public
comments received during the open public comment period, we have
finalized this rule as proposed.
[[Page 44758]]
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Management and
Budget's Office of Information and Regulatory Affairs (OIRA) will
review all significant rules. OIRA has determined that this rule is
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements. This final rule is consistent with Executive
Order 13563, and in particular with the requirement of retrospective
analysis of existing rules, designed ``to make the agency's regulatory
program more effective or less burdensome in achieving the regulatory
objectives.''
Executive Order 13771
This final rule is an Executive Order 13771 deregulatory action.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency, or his designee, certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
This rulemaking revises the regulations for 4(d) rules for species
determined to meet the definition of a ``threatened species'' under the
Act. This final rule is fundamentally a procedural change for the
Service that affects only the form of the Service's decisions with
respect to regulations that provide for the conservation of threatened
species. The Service is therefore the only entity that is directly
affected by this final regulation change at 50 CFR part 17. The statute
states, ``Whenever any species is listed as a threatened species . . .,
the Secretary shall issue such regulations as he deems necessary and
advisable to provide for the conservation of such species.'' This
provision requires the Secretary to make a decision about what
protections to apply to threatened species. The blanket rules
established that, as a general principle, the protections that the
statute prescribes for endangered species are also necessary and
advisable to provide for the conservation of threatened species. But
even with the blanket rules in place, it fell to the Secretary to
decide, upon listing or classifying individual species as threatened,
what protections to put in place for the species. That decision was in
the form of whether to allow the relevant blanket rule to apply or to
promulgate a species-specific rule. The need for that decision is even
ensconced in the blanket rules themselves--they expressly contemplate
that the Secretary could choose to promulgate a ``special rule'' that
would replace the blanket rule and ``contain all the applicable
prohibitions and exceptions.'' 50 CFR 17.31(c) and 17.71(c).
With promulgation of this rule, when species get listed in the
future, the blanket rules will no longer be in place, but the Secretary
will still be required to make a decision about what regulations to put
in place for that species. The only thing that this rulemaking will
change is that the decision about what regulations to put in place will
now necessarily be in the form of promulgating a species-specific rule.
To the extent that any regulations that provide for the conservation of
threatened species affect external entities, those effects result from
the substance of the subsequent rulemaking where the Service will
decide what regulations would provide for the species' conservation,
not from this rulemaking, which affects only the form of that decision.
As a result, no external entities--including any small businesses,
small organizations, or small governments--will experience any economic
impacts from this rule. We certify that this final rule will not have a
significant economic effect on a substantial number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this final rule will not ``significantly
or uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this
rule would not impose a cost of $100 million or more in any given year
on local or State governments or private entities. A Small Government
Agency Plan is not required. As explained above, small governments
would not be affected because the final rule will not place additional
requirements on any city, county, or other local municipalities.
(b) This final rule will not produce a Federal mandate on State,
local, or tribal governments or the private sector of $100 million or
greater in any year; that is, this rule is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. This final
rule will not impose obligations on State, local, or tribal
governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this final rule will not
have significant takings implications. This final rule will not pertain
to ``taking'' of private property interests, nor will it directly
affect private property. A takings implication assessment is not
required because this final rule (1) will not effectively compel a
property owner to suffer a physical invasion of property and (2) will
not deny all economically beneficial or productive use of the land or
aquatic resources. This final rule will substantially advance a
legitimate government interest (conservation and recovery of threatened
species) and will not present a barrier to all reasonable and expected
beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this final rule would have significant Federalism effects and
have determined that a federalism summary impact statement is not
required. This final rule pertains only to prohibitions for activities
pertaining to threatened species under the Endangered Species
[[Page 44759]]
Act and would not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
Civil Justice Reform (E.O. 12988)
This final rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This final rule will clarify the prohibitions to
threatened species under the Endangered Species Act.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments'' and the Department of the
Interior's manual at 512 DM 2, we have considered effects of this final
rule on federally recognized Indian Tribes. Two informational webinars
were held on July 31 and August 7, 2018, to provide additional
information to interested Tribes regarding the proposed regulations.
After the opening of the public comment period, we received multiple
requests for coordination or Government-to-Government consultation from
multiple tribes: Cowlitz Indian Tribe; Swinomish Indian Tribal
Community; The Confederated Tribes of the Grand Ronde Community of
Oregon; Confederated Tribes of Warm Springs, Oregon; Quinault Indian
Nation; Makah Tribe; Confederated Tribes of the Umatilla Indian
Reservation; and the Suquamish Tribe. We subsequently hosted a
conference call on November 15, 2018, to listen to Tribal concerns and
answer questions about the proposed regulations. On March 6, 2019,
Service representatives attended the Natural Resources Committee
Meeting of the United and South and Eastern Tribes' Impact Week
conference in Arlington (Crystal City), VA. At this meeting, we
presented information, answered questions, and held discussion
regarding the regulatory changes.
The Service concludes that the changes to these implementing
regulations make general changes to the ESA implementing regulations
and do not directly affect specific species or Tribal lands or
interests. As explained earlier, the only thing that this rulemaking
will change is that the decision about what regulations to put in place
to provide for the conservation of threatened species will now
necessarily be in the form of promulgating a species-specific rule. To
the extent that any regulations that provide for the conservation of
threatened species affect federally recognized Indian Tribes, those
effects will result from the substance of the subsequent rulemaking
where the Service will decide what regulations would provide for the
species' conservation, not from this rulemaking, which affects only the
form of that decision. Therefore, we conclude that this regulation does
not have ``tribal implications'' under section 1(a) of E.O. 13175 and
formal government-to-government consultation is not required by E.O.
13175 and related policies of the Department of the Interior. We will
continue to collaborate with Tribes on issues related to federally
listed species and work with them as we implement the provisions of the
Act. See Joint Secretarial Order 3206 (``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act,'' June 5, 1997).
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required.
We may not conduct or sponsor and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (NEPA)
We analyzed this final rule in accordance with the criteria of
NEPA, the Department of the Interior regulations on implementation of
NEPA (43 CFR 46.10-46.450), and the Department of the Interior Manual
(516 DM 8). We have determined that, to the extent that the proposed
action would result in reasonably foreseeable effects to the human
environment, the final regulation is categorically excluded from
further NEPA review and that no extraordinary circumstances are
present. The rule qualifies for two categorical exclusions listed at 43
CFR 46.210(i). First, the amendments are of a legal, technical, or
procedural nature. Second, any potential impacts of this rule are too
broad, speculative, and conjectural to lend themselves to meaningful
analysis and will be examined as part of any NEPA analysis, if
applicable, in stand-alone species-specific 4(d) rules. The revisions
finalized in this action are intended to clarify, interpret, and
implement portions of the Act concerning the procedures and criteria
used for determining what protective regulations are appropriate for
species added to or reclassified as threatened species on the Lists of
Endangered and Threatened Wildlife and Plants.
These revisions are an example of an action that is fundamentally
administrative, technical, or procedural in nature. As explained with
respect to the Regulatory Flexibility Act, this final rule is
fundamentally a procedural change for the Service that affects only the
form of the Service's decisions with respect to regulations that
provide for the conservation of threatened species. The Service is,
therefore, the only entity that is directly affected by this final
regulation change at 50 CFR part 17. The statute states, ``Whenever any
species is listed as a threatened species . . ., the Secretary shall
issue such regulations as he deems necessary and advisable to provide
for the conservation of such species.'' This provision requires the
Secretary to make a decision about what protections to apply to
threatened species. When species get listed in the future, the blanket
rules will no longer be in place, but the Secretary will still be
required to make a decision about what regulations to put in place for
that species. The only thing that this rulemaking will change is that
the decision about what regulations to put in place will now
necessarily be in the form of promulgating a species-specific rule. To
the extent any regulations that provide for the conservation of
threatened species significantly affect the environment, those effects
result from the substance of the subsequent rulemaking where the
Service will decide what regulations would provide for the species'
conservation, not from this rulemaking, which affects only the form of
that decision. Therefore, this final rule falls within the categorical
exclusion for rulemakings that are administrative, procedural, or
technical in nature.
We completed an environmental action statement for the categorical
exclusion for the revised regulations in 50 CFR part 17. The
environmental action statement is available at http://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule is not
expected to affect energy supplies, distribution, and use. As explained
earlier, the only thing that this rulemaking will change is that the
decision about what regulations to put in place to provide for the
[[Page 44760]]
conservation of threatened species will now necessarily be in the form
of promulgating a species-specific rule. To the extent any regulations
that provide for the conservation of threatened species affect energy
supply, distribution, or use, those effects will result from the
substance of the subsequent rulemaking where the Service will decide
what regulations would provide for the species' conservation, not from
this rulemaking, which affects only the form of that decision.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Revise Sec. 17.31 to read as follows:
Sec. 17.31 Prohibitions.
(a) Except as provided in Sec. Sec. 17.4 through 17.8, or in a
permit issued under this subpart, all of the provisions of Sec. 17.21,
except Sec. 17.21(c)(5), shall apply to threatened species of wildlife
that were added to the List of Endangered and Threatened Wildlife in
Sec. 17.11(h) on or prior to September 26, 2019, unless the Secretary
has promulgated species-specific provisions (see paragraph (c) of this
section).
(b) In addition to any other provisions of this part, any employee
or agent of the Service, of the National Marine Fisheries Service, or
of a State conservation agency that is operating a conservation program
pursuant to the terms of a cooperative agreement with the Service in
accordance with section 6(c) of the Act, who is designated by that
agency for such purposes, may, when acting in the course of official
duties, take those threatened species of wildlife that are covered by
an approved cooperative agreement to carry out conservation programs.
(c) Whenever a species-specific rule in Sec. Sec. 17.40 through
17.48 applies to a threatened species, none of the provisions of
paragraphs (a) and (b) of this section will apply. The species-specific
rule will contain all the applicable prohibitions and exceptions.
0
3. Revise Sec. 17.71 to read as follows:
Sec. 17.71 Prohibitions.
(a) Except as provided in a permit issued under this subpart, all
of the provisions of Sec. 17.61 shall apply to threatened species of
plants that were added to the List of Endangered and Threatened Plants
in Sec. 17.12(h) on or prior to September 26, 2019, with the following
exception: Seeds of cultivated specimens of species treated as
threatened shall be exempt from all the provisions of Sec. 17.61,
provided that a statement that the seeds are of ``cultivated origin''
accompanies the seeds or their container during the course of any
activity otherwise subject to the regulations in this subpart.
(b) In addition to any provisions of this part, any employee or
agent of the Service or of a State conservation agency that is
operating a conservation program pursuant to the terms of a cooperative
agreement with the Service in accordance with section 6(c) of the Act,
who is designated by that agency for such purposes, may, when acting in
the course of official duties, remove and reduce to possession from
areas under Federal jurisdiction those threatened species of plants
that are covered by an approved cooperative agreement to carry out
conservation programs.
(c) Whenever a species-specific rule in Sec. Sec. 17.73 through
17.78 applies to a threatened species, the species-specific rule will
contain all the applicable prohibitions and exceptions.
Dated: August 12, 2019.
David L. Bernhardt,
Secretary. Department of the Interior.
[FR Doc. 2019-17519 Filed 8-26-19; 8:45 am]
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