[Federal Register Volume 78, Number 171 (Wednesday, September 4, 2013)]
[Proposed Rules]
[Pages 54437-54442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21423]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. FWS-R9-ES-2011-0080; FXES11120900000-134-FF09E30000]
RIN 1018-AX85; 0648-BB81
Interagency Cooperation--Endangered Species Act of 1973, as
Amended; Incidental Take Statements
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Commerce.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service (collectively, the Services), propose to amend the
regulations governing consultation under section 7 of the Endangered
Species Act of 1973, as amended (ESA), regarding incidental take
statements. The purpose of the proposed changes is to address the use
of surrogates to express the amount or extent of anticipated incidental
take, and incidental take statements for programmatic actions where
implementation of the program requires later authorization, funding, or
implementation of site-specific actions that will be subject to section
7 consultation and incidental take statements, as appropriate. These
changes are proposed to improve the flexibility and clarify the
development of incidental take statements. The Services believe these
proposed regulatory changes are a reasonable exercise of their
discretion in interpreting particularly challenging aspects of section
7 of the ESA related to incidental take statements.
DATES: We will accept comments received or postmarked on or before
November 4, 2013.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments for Docket No. FWS-R9-ES-2011-
0080.
U.S. mail or hand-delivery: Public Comments Processing, Attn:
Docket No. FWS-R9-ES-2011-0080; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept email or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us. Before including your address,
phone number, email address, or other personal identifying information
in your comment, you should be aware that your entire comment--
including your personal information--may be made publicly available at
any time. While you can ask in your comment to withhold your personal
identifying information from public review, this cannot be guaranteed.
FOR FURTHER INFORMATION CONTACT: Rick Sayers, Chief, Division of
Environmental Review, U.S. Fish and Wildlife Service, Department of the
Interior, Washington, DC 20240 (telephone: 703-358-2171); or Kristine
Petersen, Chief (Acting), Endangered Species Act Interagency
Cooperation Division, Office of Protected Resources, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce, Department of Commerce, Washington, DC (telephone: 301-427-
8453).
SUPPLEMENTARY INFORMATION:
Background
Section 9 of the ESA prohibits the take of listed animal species
with certain exceptions. Under the ESA, the term ``take'' means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct. Section 7 of the
ESA provides for the exemption of incidental take of listed animal
species caused by, but not the purpose of, actions that the Services
have found to be consistent with the provisions of section 7(a)(2).
Under those conditions, if a proposed action is anticipated to
cause incidental take, the Services issue an incidental take statement
under 50 CFR 402.14(i) with the biological opinion that specifies,
among other requirements: the impact of such incidental taking on the
listed species; measures considered necessary to minimize the impact of
such take; requirements for the action agency or the applicant to
monitor and report the progress of the action and its impact on the
species to the Service as specified in the incidental take statement;
and the procedures for handling or disposing of individuals that are
taken.
The current regulations at Sec. 402.14(i)(1)(i) require the
Services to express the impact of such incidental taking of the species
in terms of amount or extent. The preamble to the final rule that set
forth the current regulations discusses the use of a precise number of
individuals or a description of the land or marine area affected to
express the amount or extent of anticipated take, respectively (51 FR
19954; June 3, 1986).
Court decisions rendered over the last decade regarding the
adequacy of incidental take statements have prompted the Services to
consider clarifying two aspects of incidental take statements: (1) The
use of surrogates such as habitat, ecological conditions, or similar
affected species, to express the amount or extent of anticipated
incidental take, including circumstances where project impacts to the
surrogate are coextensive with at least one aspect of the project's
scope; and (2) incidental take statements for programmatic actions
where implementation of the program requires later authorization,
funding, or implementation of site-specific actions that will be
subject to future section 7 consultation and incidental take
statements, as appropriate. After careful consideration of the
following and other court decisions, the Services are proposing to
modify the ESA section 7 regulations to address those aspects of
incidental take statements:
Arizona Cattle Growers' Association v. U.S. Fish and
Wildlife Service, 273 F.3d 1229 (9th Cir. 2001);
Natural Res. Def. Council, Inc. v. Evans, 279 F. Supp. 2d
1129, 1184-85 (N.D. Cal. 2003);
Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422
F. Supp. 2d 1115, 1137-38 (N.D. Cal. 2006);
Oregon Natural Resources Council v. Allen, 476 F.3d 1031
(9th Cir. 2007);
Miccosukee Tribe of Indians of Florida v. U.S. Fish and
Wildlife Service, 566 F.3d 1257 (11th Cir. 2009);
Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir.
2010);
Center for Biological Diversity v. Salazar, 695 F.3d 893
(9th Cir. 2012).
Through this action, the Services are proposing to establish
prospective standards regarding incidental take statements. Nothing in
these proposed regulations is intended to require, now or at such time
as these proposed regulations become final, reevaluation of any
previously completed biological opinions or incidental take statements.
Use of Surrogates
The Services acknowledge congressional preference for expressing
the impacts of take in incidental take statements in terms of a
numerical limitation with respect to individuals of
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the listed species. However, Congress also recognized that a numerical
value would not always be available and intended that such numbers only
be established where possible (H.R. Rep. No. 97-567, at 27). The
preamble to the final rule that set forth the current regulations also
acknowledges that exact numerical limits on the amount of anticipated
incidental take may be difficult to determine and the Services may
instead specify the level of anticipated take in terms of the extent of
the land or marine area that may be affected. In fact, as the Services
explained in the preamble, the use of descriptions of extent of take
can be more appropriate than the use of numerical amounts ``because for
some species loss of habitat resulting in death or injury to
individuals may be more deleterious than the direct loss of a certain
number of individuals'' (51 FR 19954). Over the last 25 years of
developing incidental take statements, the Services have found that in
many cases the biology of the listed species or the nature of the
proposed action makes it impractical to detect or monitor take of
individuals. In those situations, evaluating impacts to a surrogate
such as habitat, ecological conditions, or similar affected species may
be the most reasonable and meaningful measure of assessing take of
listed species.
The courts also have recognized that it is not always practicable
to establish the precise number of individuals that will be taken and
that ``surrogate'' measures are acceptable to establish the impact of
take on the species if there is a link between the surrogate and take.
Arizona Cattle Growers' Association v. U.S. Fish and Wildlife Service,
273 F.3d 1229 (9th Cir. 2001). It is often more practical and
meaningful to monitor project effects upon surrogates, which can also
provide a clear standard for determining when the amount or extent of
anticipated take has been exceeded and consultation should be
reinitiated. Accordingly, the Services have adopted the use of
surrogates as part of our national policy for preparing incidental take
statements:
``Take can be expressed also as a change in habitat
characteristics affecting the species (e.g., for an aquatic species,
changes in water temperature or chemistry, flows, or sediment loads)
where data or information exists which links such changes to the
take of the listed species. In some situations, the species itself
or the effect on the species may be difficult to detect. However,
some detectable measure of effect should be provided. . . . [I]f a
sufficient causal link is demonstrated (i.e., the number of burrows
affected or a quantitative loss of cover, food, water quality, or
symbionts), then this can establish a measure of the impact on the
species or its habitat and provide the yardstick for reinitiation.''
Endangered Species Consultation Handbook, U.S. Fish and Wildlife
Service and National Marine Fisheries Service (March 1998; p. 4-47-
48).
An example of when we might use a surrogate measure for take is
timber harvest activities within habitat of the threatened northern
spotted owl (Strix occidentalis caurina). Such activities can cause
take by modifying habitat conditions that significantly disrupt the
spotted owl's nesting, roosting, or foraging behavior. Although the
number of spotted owls likely to be taken as a result of project
effects to its habitat can be estimated, detection and monitoring of
the affected owls to determine when take has occurred or when the
amount or extent of anticipated take has been reached is not practical
for two reasons. First, there is a low likelihood of finding an injured
or dead spotted owl because their home ranges are large (about 3,000
acres on average) and there is a high rate of removal of injured or
dead individuals by predators and scavengers. Second, the nature of the
anticipated take impact to the spotted owl is primarily in the form of
reduced fitness of adult owls, leading to reduced survival and
reproduction in the future. Documenting this reduction is very
difficult, and doing so may take months or years at considerable
expense. Using habitat metrics to express the extent of take and to
evaluate the impacts of take on the species is a practical alternative
because effects to habitat: are causally related to take of spotted
owls; can be readily monitored; and provide a clear standard for when
the anticipated amount has been exceeded.
In some situations, the most practical surrogate for expressing the
amount or extent of anticipated take of listed species is the amount of
listed species' habitat impacted by the proposed action, and the
expression of the habitat surrogate is fully coextensive with the
project's impacts on the habitat. For example, under a proposed Clean
Water Act permit issued by the Army Corps of Engineers, a quarter-acre
of wetlands composed of three vernal pools occupied by the threatened
vernal pool fairy shrimp (Branchinecta lynchi) would be filled to
construct a road-crossing; no other habitat of the vernal pool fairy
shrimp would be affected by this action. The wetland fill is likely to
kill all of the shrimp occupying the three vernal pools. A single pool
may contain thousands of individual shrimp as well as their eggs or
cysts. For that reason, it is not practical to express the amount or
extent of anticipated take of this species or monitor take-related
impacts in terms of individual shrimp. Quantifying the area
encompassing the three vernal pools supporting this species as a
surrogate for incidental take would be a practical and meaningful
alternative to quantifying and monitoring the anticipated incidental
take in terms of individual shrimp caused by the proposed Federal
permit action. In this case, the habitat surrogate for the amount or
extent of anticipated take is coextensive with at least one aspect of
the project's scope--the anticipated amount (i.e., a quarter of an
acre) of vernal pool habitat to be affected by the project.
The Ninth Circuit Court's holding in Oregon Natural Resources
Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) could be read to
suggest that such surrogates cannot be coextensive with the project's
scope for fear that reinitiation of consultation would not be triggered
until the project is complete. However, even under circumstances of a
coextensive surrogate (such as in the above example), the incidental
take statement will require the action agency to monitor project
impacts to the surrogate during the course of the action, which will
determine whether these impacts are consistent with the analysis in the
biological opinion. This assessment will ensure a trigger for
reinitiation of formal consultation if the amount or extent of the
anticipated taking specified in the incidental take statement is
exceeded during the course of the action where discretionary Federal
involvement or control over the action has been retained or is
authorized by law in accordance with Sec. 402.16. In the above
example, reinitiation of formal consultation would be triggered in the
event a fourth vernal pool was discovered during wetland fill or it was
determined that the total amount of vernal pool habitat modified by the
project exceeded the identified one-quarter of an acre of wetland
habitat. Thus, although fully coextensive with the anticipated impacts
of the project on vernal pool fairy shrimp, the surrogate nevertheless
provides for a meaningful reinitiation trigger consistent with the
purpose of an incidental take statement.
We propose to amend Sec. 402.14(i)(1)(i) of the regulations to
clarify that surrogates may be used to express the amount or extent of
anticipated take, provided the biological opinion or the incidental
take statement: (1) Describes the causal link between the surrogate and
take of the listed species; (2) describes why it is not practical to
express the amount or extent of anticipated take or to monitor take-
related impacts in terms of individuals of the listed species; and (3)
sets a clear standard for determining when the
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extent of taking has been exceeded. This amendment to the regulations
would clarify the Services' discretion to use surrogates to express and
monitor the amount or extent of anticipated take when they determine it
is the most practical means to do so. Such flexibility may be
especially useful in cases where the biology of the listed species or
the nature of the proposed action makes it impractical to detect or
monitor take-related impacts to individual animals.
We also propose to amend the regulations at Sec. 402.14(i)(3) to
clarify that monitoring project impacts to a surrogate meets the
requirement for monitoring the impacts of take on the listed species.
Incidental Take Statements for Programmatic Actions
For purposes of this proposed rule, a programmatic action means an
action, as defined at 50 CFR 402.02, that is designed to provide a
framework for the development of future, site-specific Federal actions
that are authorized, funded, or carried out at a later time. Such site-
specific actions will be subject to separate section 7 consultation and
incidental take statements, as appropriate. Examples of programmatic
actions include land resource management plans established under the
National Forest Management Act or the Federal Land Policy Management
Act, broadly defined actions supported by programmatic Environmental
Impact Statements and associated Records of Decision such as
designations of certain geographic areas for a particular purpose
(e.g., energy corridors), or promulgation of regulations that guide an
agency's activities in general ways without authorizing specific
projects. The key distinguishing characteristics of programmatic
actions for purposes of this proposed rule are: (1) They provide the
framework for future, site-specific actions which are subject to
section 7 consultations and incidental take statements, but they do not
authorize, fund, or carry out those future site-specific actions; and
(2) they do not include sufficient site-specific information to inform
an assessment of where, when, and how listed species are likely to be
affected by the program. The Services are committed to coordinating
with action agencies in deciding whether an action fits the definition
of ``programmatic action.''
In biological opinions on programmatic actions where the Services
concluded that the action is not likely to violate section 7(a)(2) and
incidental take of listed species is anticipated, we have struggled
with expressing the amount or extent of the anticipated take in an
incidental take statement. The statutory and regulatory provisions for
incidental take statements were clearly designed to address site-
specific projects, not an over-arching program that is the precursor
for those specific projects. The methodologies and rationale developed
by the Services over many years of developing biological opinions and
incidental take statements are based on a review of the impacts of a
site-specific action on listed species and a determination as to
whether those impacts conform to the statutory definition of take.
Addressing incidental take in the context of a programmatic action
has recently become a subject of litigation. Courts have issued varied
rulings on this issue of whether a biological opinion for a
programmatic action can or should contain an incidental take statement.
A California district court (Ctr. for Biological Diversity v. U.S. Fish
and Wildlife Service, 2009 U.S. Dist. LEXIS 48376 (N.D. Cal., June 8,
2009) held that an incidental take statement should have been provided
at the programmatic scale. See also, Center for Biological Diversity v.
Salazar, 695 F.3d 893 (9th Cir. 2012); NRDC v. Evans, 279 F.Supp.2d
1129 (N.D. Cal. 2003) (each holding an incidental take statement should
have been provided in the context of incidental take regulations under
the Marine Mammal Protection Act). However, other courts have held that
incidental take statements are not required in biological opinions
addressing programmatic actions if site-specific actions under the
program are subject to future consultation where an incidental take
statement can be prepared, as appropriate. Western Watersheds Project
v. BLM, 552 F.Supp.2d 1113 (D. Nev. 2008).
Because programmatic actions provide frameworks without details
related to the where, when, and how future site-specific actions are
likely to impact a listed species, attempts to identify a specific
amount or extent of incidental take that is caused by a programmatic
action absent that specificity would in most instances be speculative
and unlikely to provide an accurate and reliable trigger for
reinitiation of consultation. To address the issue of incidental take
statements for programmatic actions, the Services are proposing to
revise 50 CFR 402.14 and to promulgate new regulatory definitions of
the terms ``programmatic action'' and ``programmatic incidental take
statement'' in 50 CFR 402.02. These definitions are intended to
distinguish the inherent differences between a programmatic action and
a typical site-specific project relative to site-specific information
(or the lack thereof) that provides details on where, when, and how
listed species are likely to be impacted. The definitions are
promulgated to respect the purpose of the ESA relative to providing
incidental take statements in biological opinions, including those for
programmatic actions.
The Services intend that a ``programmatic incidental take
statement'' for a ``programmatic action'' will not include a specific
amount or extent of anticipated take of listed species because
programmatic actions do not include sufficient site-specific
information to inform an assessment of where, when, and how listed
species are likely to be affected by the program. Instead, the Services
will, as appropriate, develop a programmatic incidental take statement
that anticipates an unquantifiable amount or extent of take at the
programmatic scale in recognition that subsequent site-specific actions
authorized, funded, or carried out under the programmatic action will
be subject to subsequent section 7 consultation and incidental take
statements, as appropriate.
Another purpose of the ESA relative to providing incidental take
statements in biological opinions is to establish a trigger for
reinitiation of formal consultation during the course of the action
when the amount or extent of anticipated take is exceeded. The
implementing regulations for section 7 address this requirement at 50
CFR 402.16(a). Satisfying this requirement for programmatic actions
that lack sufficient specificity to support quantification of an amount
or extent of anticipated take is very challenging. To address the
requirement for a reinitiation trigger when take is exceeded, the
Services took an approach that reflects the inherent differences
between a programmatic action and a typical site-specific project
relative to site-specific information (or the lack thereof) that
provides details on where, when, and how listed species are likely to
be impacted.
Under the proposed regulatory definition of ``programmatic
incidental take statement'' the reinitiation trigger at 402.16(a) may,
as appropriate, be expressed as a reasonable and prudent measure(s)
that adopts either specific provisions of the proposed programmatic
action, such as spatial or timing restrictions, to limit the impacts of
the program on listed species or similar types of restrictions
identified by the Services that would function to minimize the impacts
of anticipated take on listed species at the
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programmatic level. In the event the action agency proposes a site-
specific action under the programmatic action that is likely to cause
take of a listed species but the site-specific action does not conform
to the specified provisions of the incidental take statement for the
programmatic action, reinitiation of consultation on the programmatic
action would be triggered.
The Services would have substantial flexibility to adopt these
programmatic reinitiation triggers as reasonable and prudent measures
to address the particular circumstances of the programmatic action
under consultation and the manner in which the action agency is
expected to carry out later site-specific actions. For example, if a
proposed forest plan includes 100-foot wide riparian buffers for timber
harvest actions along streams occupied by listed fish, the incidental
take statement for the plan-level biological opinion could adopt the
riparian buffer as a reasonable and prudent measure and identify
encroachments on the 100-foot wide riparian buffer as a reinitiation
trigger for exceeding anticipated take. If a subsequent, site-specific
timber harvest action developed under the programmatic action adopted
more narrow riparian buffers, reinitiation of formal consultation on
the programmatic action would be triggered because the take exemption
provided by the programmatic incidental take statement is likely to be
exceeded.
Similarly, the Services could include a reasonable and prudent
measure under a programmatic incidental take statement that requires
the action agency to engage in section 7(a)(2) consultation for site-
specific actions that are anticipated to cause take of listed species
under the programmatic action. Such a reasonable and prudent measure
would be appropriate for three reasons. First, although the action
agency's duty to consult already exists under the statute, imposing the
requirement as a reasonable and prudent measure would require site-
specific consultation in order to maintain the exemption of incidental
take at the programmatic level. Second, many biological opinions for
programmatic actions rely on the second look afforded by site-specific
consultation to support a no-jeopardy conclusion. An action agency's
failure to consult at the site-specific level would undermine that
conclusion. Third, with adequate procedures for notice to the action
agency provided as terms and conditions, a reinitiation trigger for a
failure to consult on a site-specific project would serve as a clear
standard for when reinitiation was required under the programmatic
incidental take statement.
The Services also anticipate that specific provisions or
restrictions proposed under a programmatic action may, in some
circumstances, be included or augmented as reasonable and prudent
measures in the programmatic incidental take statement, as appropriate,
to minimize the impacts of anticipated take of listed species.
Monitoring requirements at the programmatic action scale would also be
included as a reasonable and prudent measure in the incidental take
statement for a programmatic action pursuant to the requirements of 50
CFR 402.14(i)(3).
Required Determinations
Regulatory Planning and Review (E.O. 12866)
The Office of Management and Budget (OMB) has determined that this
proposed rule is significant and has reviewed this proposed rule under
Executive Order 12866 (E.O. 12866). OMB bases its determination on the
following four criteria:
(a) Whether the proposed rule will have an annual effect of $100
million or more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the proposed rule will create inconsistencies with
other Federal agencies' actions.
(c) Whether the proposed rule will materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients.
(d) Whether the proposed rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
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 (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. We are certifying that this rule will not have a
significant economic effect on a substantial number of small entities.
The following discussion explains our rationale.
Incidental take statements describe the amount or extent of
incidental take that is anticipated to occur when a Federal action is
implemented. The incidental take statement conveys an exemption from
the ESA's take prohibitions provided that the action agency (and any
applicant) complies with the terms and conditions of the incidental
take statement. Terms and conditions cannot alter the basic design,
location, scope, duration, or timing of the action and may involve only
minor changes (50 CFR 402.14(i)(2)). The changes embodied by this
proposed regulation will neither expand nor contract the reach of terms
and conditions of an incidental take statement. As such, we foresee no
economic effects from implementation of this proposed rule.
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) If adopted, this proposal will not ``significantly or
uniquely'' affect small governments. We have determined and certify
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that
this proposed rulemaking will 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 proposed regulation will
not place additional requirements on any city, county, or other local
municipalities.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This proposed
regulation would not impose any additional management or protection
requirements on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, we have determined that
the proposed rule does not have significant takings implications.
A takings implication assessment is not required because this rule
(1) will not effectively compel a property owner to suffer a physical
invasion of property
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and (2) will not deny all economically beneficial or productive use of
the land or aquatic resources. This rule would substantially advance a
legitimate government interest (conservation and recovery of listed
species) and would 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 proposed rule has significant Federalism effects and have
determined that a Federalism assessment is not required. This rule
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. No intrusion on State policy or administration is expected;
roles or responsibilities of Federal or State governments would not
change; and fiscal capacity would not be substantially directly
affected. Therefore, this rule does not have significant Federalism
effects or implications to warrant the preparation of a Federalism
Assessment under the provisions of Executive Order 13132.
Civil Justice Reform (E.O. 12988)
This proposed rule will not unduly burden the judicial system and
meets the applicable standards provided in sections s (3)(a) and
(3)(b)(2) of Executive Order 12988.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with affected recognized
Federal Tribes on a government-to-government basis. We have determined
that there are no tribal lands affected by this rule and therefore, no
such communications were made.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR part
1320, which implement provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), require that Federal agencies obtain approval
from OMB before collecting information from the public. This proposed
rule does not contain any new information collections that require
approval. We may not collect 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
We are analyzing these proposed regulations in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), the Department
of the Interior Manual (516 DM 1-6 and 8)), and National Oceanographic
and Atmospheric Administration (NOAA) Administrative Order 216-6. Our
analysis includes evaluating whether the action is procedural,
administrative, or legal in nature, and therefore a categorical
exclusion applies. We invite the public to comment on whether, and if
so, how this proposed regulation may have a significant effect upon the
human environment, including any effects identified as extraordinary
circumstances at 43 CFR 46.215. We will complete our analysis, in
compliance with NEPA, before finalizing these proposed regulations.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Because this action is not a significant energy action, no
Statement of Energy Effects is required.
Clarity of This Regulation (E.O. 12866)
We are required by E.O. 12866, E.O. 12988, and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comment should be as specific as
possible. For example, you should tell us the numbers of the sections
and paragraphs that are unclearly written, which sections or sentences
are too long, or the sections where you feel lists and tables would be
useful. The Services would particularly welcome any comments that
address whether it would be more appropriate to not provide
programmatic incidental take statements and instead defer the exemption
of incidental take for programmatic actions, as appropriate, until
subsequent site-specific actions that would provide site-specific
information regarding where, when, and how listed species are likely to
be incidentally taken. Comments on this topic would be most helpful if
they specifically address how such an approach is consistent with the
Act and how such an approach could be reconciled with existing caselaw
and agency practices.
Authority
We are taking this action under the authority of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 402
Endangered and threatened wildlife, Fish, Intergovernmental
relations, Plants (agriculture).
Proposed Regulation Promulgation
Accordingly, we propose to amend part 402, subchapter A of chapter
IV, title 50 of the Code of Federal Regulations, as set forth below:
PART 402--[AMENDED]
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1. The authority citation for part 402 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
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2. Amend Sec. 402.02 by adding definitions of ``Programmatic action''
and ``Programmatic incidental take statement'' in alphabetical order to
read as follows:
Sec. 402.02 Definitions.
* * * * *
Programmatic action means, for purposes of an incidental take
statement, an action that provides a framework for the development of
future, site-specific actions occurring in the action area of the
programmatic action, that are authorized, funded, or implemented at a
later time and subject to section 7 consultation requirements, as
appropriate, and for which site-specific information regarding where,
when, and how listed species will be affected will become available at
the time of a subsequent section 7 consultation.
Programmatic incidental take statement means an incidental take
statement prepared in those cases where the Services conclude in a
biological
[[Page 54442]]
opinion that a programmatic action will not violate section 7(a)(2) of
the Act and where incidental take of listed species is reasonably
certain to occur but where the amount or extent of anticipated take
cannot be quantified because site-specific information regarding where,
when and how listed species will be taken is not yet available.
* * * * *
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3. Amend Sec. 402.14 by revising paragraphs (i)(1)(i) and (i)(3), and
by adding paragraph (i)(6) to read as follows:
Sec. 402.14 Formal consultation.
* * * * *
(i) * * *
(1) * * *
(i) Specifies the impact, i.e., the amount or extent, of such
incidental taking on the species. A surrogate (e.g., habitat or
ecological conditions or similarly affected species) may be used to
express the amount or extent of anticipated take provided that the
incidental take statement describes the causal link between effects to
the surrogate and take of the listed species, why it is not practical
to express the amount or extent of anticipated take or to monitor take-
related impacts in terms of individuals of the listed species, and sets
a clear standard for determining when the level of anticipated take has
been exceeded;
* * * * *
(3) In order to monitor the impacts of incidental take, the Federal
agency or any applicant must report the progress of the action and its
impact on the species to the Service as specified in the incidental
take statement. When the Services use a surrogate to express the amount
or extent of take, the Federal agency or applicant must monitor the
surrogate to ensure that the action does not exceed the anticipated
amount or extent of take.
* * * * *
(6) A programmatic incidental take statement will be provided in a
biological opinion for a programmatic action that is anticipated to
cause incidental take. In such circumstances, the programmatic
incidental take statement will include specific provisions as
reasonable and prudent measures under paragraph (i)(1) of this section
to minimize the impacts of take caused by the programmatic action and
to serve as a trigger to reinitiate formal consultation on the
programmatic action.
* * * * *
Dated: August 6, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks,
U.S. Department of the Interior.
Dated: August 21, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs.
[FR Doc. 2013-21423 Filed 9-3-13; 8:45 am]
BILLING CODE 3510-22-P; 4310-55-P