[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Proposed Rules]
[Pages 10077-10080]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03719]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2014-0008; 4500030113]
RIN 1018-BA32
Endangered and Threatened Wildlife and Plants; Special Rule for
the Georgetown Salamander
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, propose a special rule
under the authority of section 4(d) of the Endangered Species Act of
1973, as amended (Act), for the Georgetown salamander (Eurycea
naufragia), a species that occurs in Texas. The special rule contains
measures that are necessary and advisable to provide for the
conservation of the Georgetown salamander.
DATES: We will accept comments received or postmarked on or before
April 25, 2014. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date.
ADDRESSES: Document availability: You may obtain a copy of the City of
Georgetown Ordinance 2013-59 described in this proposed rule from the
Federal eRulemaking portal, http://www.regulations.gov, at Docket No.
FWS-R2-ES-2014-0008.
Comment submission: You may submit comments on the proposed rule by
one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2014-0008,
which is the docket number for this rulemaking. You may submit a
comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2014-0008; 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 one of 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: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Rd, Suite 200, Austin, TX 78758; by telephone 512-490-
0057; or by facsimile 512-490-0974. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) Whether the measures outlined in this proposed 4(d) special
rule are necessary and advisable for the conservation and management of
the Georgetown salamander;
(2) Additional provisions the Service may wish to consider for a
4(d) special rule in order to conserve, recover, and manage the
Georgetown salamander.
We will consider all comments and information received during our
preparation of a final 4(d) special rule. Accordingly, the final rule
may differ from this proposal.
You may submit your comments and materials concerning this 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 information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
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. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
On August 22, 2012, we published a proposed rule under the
authority of the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.), to list as endangered and designate critical habitat for
the Georgetown salamander and three other salamander species (77 FR
50768). Elsewhere in today's Federal Register, we published a final
determination to list the Georgetown salamander and the Salado
salamander as threatened species. Please see the final listing
determination for additional information concerning previous Federal
actions for the Georgetown salamander.
Background
The Georgetown salamander is entirely aquatic and depends on water
from the Edwards Aquifer in sufficient quantity and quality to meet its
life-history requirements for survival, growth, and reproduction.
Degradation of habitat, in the form of reduced water quality and
quantity and disturbance of spring sites, is the main threat to this
species. For more information on the Georgetown salamander and its
habitat, please refer to the final listing determination published
elsewhere in today's Federal Register, available online at http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0035) or from the
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
The Act does not specify particular prohibitions, or exceptions to
those prohibitions, for threatened species. Instead, under section 4(d)
of the Act, the Secretary of the Interior has the discretion to issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation of such species. The Secretary also has the discretion
to prohibit by regulation with respect to any threatened species, any
act prohibited under section 9(a)(1) of the Act. Exercising this
discretion, the Service developed general prohibitions (50 CFR 17.31)
and exceptions to those prohibitions (50 CFR 17.32) under the Act that
apply to most threatened species. Alternately, for other threatened
species, the Service may develop specific prohibitions and exceptions
that are tailored to the specific conservation needs of the species. In
such cases, some of the prohibitions and authorizations under
[[Page 10078]]
50 CFR 17.31 and 17.32 may be appropriate for the species and
incorporated into a special rule under section 4(d) of the Act.
However, these rules, known as 4(d) rules or special rules, will also
include provisions that are tailored to the specific conservation needs
of the threatened species and may be more or less restrictive than the
general provisions at 50 CFR 17.31.
Provisions of the Proposed 4(d) Special Rule for the Georgetown
Salamander
Under section 4(d) of the Act, the Secretary 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. Under this proposed 4(d)
special rule, the Service proposes that all of the prohibitions under
50 CFR 17.31 and 17.32 will apply to the Georgetown salamander, except
as noted below. The proposed 4(d) special rule will not remove or alter
in any way the consultation requirements under section 7 of the Act.
On December 20, 2013, the City Council of Georgetown, Texas,
approved the Edwards Aquifer Recharge Zone Water Quality Ordinance
(Ordinance No. 2013-59). The Service proposes that take incidental to
activities that are conducted consistent with the conservation measures
contained in the ordinance will not be prohibited under the Act.
The purpose of this ordinance is to reduce the principal threats to
the Georgetown salamander within the City of Georgetown and its
extraterritorial jurisdiction through the protection of water quality
near occupied sites known at the time the ordinance was approved,
enhancement of water quality protection throughout the Edwards Aquifer
recharge zone, and establishment of protective buffers around all
springs and streams. Specifically, the primary conservation measures
that will be implemented within the Edwards Aquifer recharge zone under
Ordinance No. 2013-59 include:
(1) A requirement for geologic assessments to identify all springs
and streams on a development site;
(2) The establishment of a no-disturbance zone that extends 262
feet (ft) (80 meters (m)) upstream and downstream from sites occupied
by Georgetown salamanders;
(3) The establishment of a minimal-disturbance zone that extends
984 ft (300 m) around all occupied sites within which development is
limited to Residential Estate and Residential Low-Density District as
defined in the City of Georgetown's Unified Development Code;
(4) The establishment of a spring buffer that extends 164 ft (50 m)
around unoccupied springs;
(5) The establishment of stream buffers for streams that drain more
than 64 acres (ac) (26 hectares (ha)); and
(6) A requirement that permanent structural water quality controls
(i.e., best management practices (BMPs)) remove 85 percent of total
suspended solids for the entire project.
Additionally, an Adaptive Management Working Group has been
established that is specifically charged with reviewing salamander
monitoring data and new research over time and recommending
improvements to the ordinance that may be necessary to ensure that it
achieves its stated purposes. This Adaptive Management Working Group,
which includes representatives of the Service and Texas Parks and
Wildlife Department, will also review and make recommendations on the
approval of any variances to the Ordinance as well as the Georgetown
salamander's status.
This provision of the proposed 4(d) special rule will promote
conservation of the Georgetown salamander by encouraging activities to
proceed in ways that meet the needs of the City of Georgetown and its
constituents while simultaneously conserving suitable habitat for the
Georgetown salamander. The ordinance is expected to reduce the threat
of habitat degradation by reducing impacts to water quality and
quantity and limiting disturbance of spring sites, and thereby will
contribute to the conservation of the Georgetown salamander.
Nothing in this proposed 4(d) special rule changes in any way the
recovery planning provisions of section 4(f) and consultation
requirements under section 7 of the Act or the ability of the Service
to enter into partnerships for the management and protection of the
Georgetown salamander.
Proposed Determination
Section 4(d) of the Act states that ``the Secretary shall issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation'' of species listed as a threatened species.
Conservation is defined in the Act to mean ``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.'' Additionally,
section 4(d) states that the Secretary ``may by regulation prohibit
with respect to any threatened species any act prohibited under section
9(a)(1).''
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, the Secretary may find that it
is necessary and advisable not to include a taking prohibition, or to
include a limited taking prohibition. See Alsea Valley Alliance v.
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, and 2002
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule
need not address all the threats to the species. As noted by Congress
when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to him with regard to the permitted activities for those
species. [S]he may, for example, permit taking, but not importation of
such species,'' or [s]he may choose to forbid both taking and
importation but allow the transportation of such species, as long as
the measures will ``serve to conserve, protect, or restore the species
concerned in accordance with the purposes of the Act'' (H.R. Rep. No.
412, 93rd Cong., 1st Sess. 1973).
Section 9 prohibitions make it illegal for any person subject to
the jurisdiction of the United States to take (including harass, harm,
pursue, shoot, wound, kill, trap, capture, or collect; or attempt any
of these), import or export, ship in interstate commerce in the course
of commercial activity, or sell or offer for sale in interstate or
foreign commerce any wildlife species listed as an endangered species,
without written authorization. It also is illegal under section 9(a)(1)
of the Act to possess, sell, deliver, carry, transport, or ship any
such wildlife that is taken illegally. Prohibited actions consistent
with section 9 of the Act are outlined for threatened species in 50 CFR
17.31(a) and (b). This proposed 4(d) special rule proposes that all
prohibitions in 50 CFR 17.31(a) and (b) will apply to the Georgetown
salamander, except activities that are conducted consistent with the
conservation measures contained in the City of Georgetown Ordinance
2013-59. Based on the rationale explained above, the provisions
included in this proposed 4(d) special rule are expected to contribute
to the conservation of the Georgetown salamander and are therefore
necessary and advisable to provide for the conservation of the
Georgetown salamander.
[[Page 10079]]
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. We will send peer reviewers copies of
this proposed rule immediately following publication in the Federal
Register. We will invite these peer reviewers to comment, during the
reopening of the public comment period, on our use and interpretation
of the science used in developing our proposed 4(d) special rule.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
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.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996)), whenever an agency must 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 effects 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 the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). Based on the information that
is available to us at this time, we certify that this regulation will
not have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
Elsewhere in today's Federal Register, we published the final
determination to list the Georgetown salamander as a threatened
species. As of the effective date of that final determination, the
Georgetown salamander will be covered by the full protections of the
Endangered Species Act, including the full section 9 prohibitions that
make it illegal for any person subject to the jurisdiction of the
United States to take (including harass, harm, pursue, shoot, wound,
kill, trap, capture, or collect; or attempt any of these), import or
export, ship in interstate commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any wildlife species listed as an endangered species, without written
authorization. It also is illegal under section 9(a)(1) of the Act to
possess, sell, deliver, carry, transport, or ship any such wildlife
that is taken illegally. Prohibited actions consistent with section 9
of the Act are outlined for threatened species in 50 CFR 17.31(a) and
(b). This proposed 4(d) special rule proposes that all prohibitions in
50 CFR 17.31(a) and (b) will apply to the Georgetown salamander, except
activities that are conducted consistent with the conservation measures
contained in the City of Georgetown Ordinance 2013-59, which would
result in a less restrictive regulation under the Endangered Species
Act, as it pertains to the Georgetown salamander, than would otherwise
exist. For the above reasons, we certify that if promulgated, the
proposed rule would not have a significant economic impact on a
substantial number of small entities. Therefore, an initial regulatory
flexibility analysis is not required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
(b) This proposed 4(d) special rule proposes that all prohibitions
in 50 CFR 17.31(a) and (b) will apply to the Georgetown salamander,
except activities that are conducted consistent with the conservation
measures contained in the City of Georgetown Ordinance 2013-59, which
would result in a less restrictive regulation under the Endangered
Species Act, as it pertains to the Georgetown salamander, than would
otherwise exist. As a result, we do not believe that this rule would
significantly or uniquely affect small governments. Therefore, a Small
Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. We have determined that the
rule has no potential takings of private property implications as
defined by this Executive Order because this proposed
[[Page 10080]]
special rule would result in a less-restrictive regulation under the
Endangered Species Act than would otherwise exist. A takings
implication assessment is not required.
Federalism
In accordance with Executive Order 13132, this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. This proposed rule would not have
substantial direct effects on the State, on the relationship between
the Federal Government and the State, or on the distribution of power
and responsibilities among the various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this proposed rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Order.
Energy Supply, Distribution or Use (Executive Order 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking actions that significantly affect
energy supply, distribution, and use. For reasons discussed within this
proposed rule, we believe that the rule would not have any effect on
energy supplies, distribution, and use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Clarity of the Rule
We are required by Executive Orders 12866 and 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: (a) Be logically
organized; (b) use the active voice to address readers directly; (c)
use clear language rather than jargon; (d) be divided into short
sections and sentences; and (e) 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 ADDRESSES. To better help us
revise the proposed rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)
This proposed rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. This proposed rule will
not impose recordkeeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We intend to undertake an environmental assessment of this action
under the authority of the National Environmental Policy Act of 1969
(NEPA). We will notify the public of the availability of the draft
environmental assessment for this proposal when it is finished.
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 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no known
tribal lands within the range of the Georgetown salamander.
Authors
The primary authors of this proposed rule are the staff members of
the Austin Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.43 by adding paragraph (e) to read as follows:
Sec. 17.43 Special rules--amphibians.
* * * * *
(e) Georgetown salamander (Eurycea naufragia).
(1) Prohibitions. Except as noted in paragraph (e)(2) of this
section, all prohibitions and provisions of Sec. Sec. 17.31 and 17.32
apply to the Georgetown salamander.
(2) Exemptions from prohibitions. Incidental take of the Georgetown
salamander will not be considered a violation of section 9 of the Act
if the take occurs on privately owned, State, or county land from
activities that are conducted consistent with the conservation measures
contained in the City of Georgetown, Texas, Ordinance 2013-59.
Dated: February 14, 2014.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-03719 Filed 2-21-14; 8:45 am]
BILLING CODE 4310-55-P