[Federal Register Volume 78, Number 170 (Tuesday, September 3, 2013)]
[Proposed Rules]
[Pages 54218-54221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21376]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R1-ES-2012-0088; FWS-R1-ES-2013-0021]
RIN 1018-AZ17; 1081-AZ37


Endangered and Threatened Wildlife and Plants; 6-Month Extension 
of Final Determination for the Proposed Listing and Designation of 
Critical Habitat for Four Subspecies of Mazama Pocket Gopher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rules; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
6-month extension of the final determination of whether to list four 
subspecies of Mazama pocket gopher (Roy Prairie, Olympia, Tenino, and 
Yelm) as threatened and reopen the comment period on the proposed rule 
to list and designate critical habitat for the four subspecies. We are 
taking this action because there is substantial disagreement regarding 
the sufficiency or accuracy of the available data relevant to the 
proposed listing and critical habitat rule, making it necessary to 
solicit additional information by reopening the comment period for 45 
days. In addition, we are considering broadening the scope of the 
special rule for the four subspecies proposed under section 4(d) of the 
Endangered Species Act, and specifically seek public comment on this 
issue.

DATES: The comment period end date is October 18, 2013. Please note 
comments submitted electronically using the Federal eRulemaking Portal 
(see ADDRESSES) must be entered no later than 11:59 p.m. Eastern Time 
on the closing date. Any comments we receive after the closing date may 
not be considered in the final decisions on these actions.

ADDRESSES: You may submit written comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket Nos. FWS-R1-ES-2012-0088 (for 
listing) or FWS-R1-ES-2013-0021 (for designation of critical habitat), 
which are the docket numbers for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2012-

[[Page 54219]]

0088 (for listing) or FWS-R1-ES-2013-0021 (for designation of critical 
habitat); Division of Policy and Directives Management; U.S. Fish and 
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 
22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Manager, Washington Fish 
and Wildlife Office, 510 Desmond Drive SE., Lacey, WA 98503; by 
telephone at 360-753-9440; or by facsimile at 360-534-9331. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

Proposed Listing of the Four Subspecies of Mazama Pocket Gopher as 
Threatened

    On December 11, 2012, we published a proposed rule (77 FR 73770) to 
list four subspecies of Mazama pocket gopher (Roy Prairie [Thomomys 
mazama glacialis], Olympia [T. m. pugetensis], Tenino [T. m. tumuli], 
and Yelm [T. m. yelmensis]) as threatened, and to designate critical 
habitat for these four subspecies in Washington under the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). For a 
description of previous Federal actions concerning the Mazama pocket 
gophers, please refer to the proposed rule. In addition to the original 
60-day comment period associated with the publication of the proposed 
rule, we held two public information workshops and one public hearing 
in April 2013, and reopened the comment period for an additional 30 
days to accept additional public comments (78 FR 20074; April 3, 2013). 
That comment period closed on May 3, 2013.
    Section 4(b)(6) of the Act requires that we take one of three 
actions within 1 year of a proposed listing: (1) Finalize the proposed 
listing; (2) withdraw the proposed listing; or (3) extend the final 
determination by not more than 6 months, if there is substantial 
disagreement regarding the sufficiency or accuracy of the available 
data relevant to the determination, for the purposes of soliciting 
additional data.
    Since the publication of the proposed rule, there has been 
substantial disagreement regarding the interpretation of the available 
information used to determine the status and trends of the four 
subspecies of Mazama pocket gopher, and the extent of threats to these 
subspecies. We received comments from the Washington Department of Fish 
and Wildlife (WDFW), U.S. Department of Agriculture Natural Resources 
Conservation Service (NRCS), and others that questioned the accuracy or 
sufficiency of the available data we used to assess the threat of 
various agricultural and ranching activities to the Mazama pocket 
gophers. Based on subsequent discussions with the Washington Department 
of Agriculture and NRCS, we have determined that these assertions may 
have some validity. In collaboration with these agencies, we are 
currently embarking on a process to complete an assessment on 
previously inaccessible private lands to more clearly determine and 
clarify the impacts of various agricultural and ranching practices on 
the Mazama pocket gophers. This information would assist in addressing 
the substantial uncertainty that exists regarding the degree of threat 
posed by different agricultural and ranching practices on private 
lands. This 6-month extension will allow the Service to ensure that we 
have obtained all relevant information from knowledgeable State and 
Federal agencies, as well as other interested parties, to better inform 
our final decision.
    Therefore, in consideration of the disagreements surrounding the 
status of the four subspecies of the Mazama pocket gopher, we are 
extending the final determination for up to 6 months in order to 
solicit information that will help to clarify these issues. We will 
publish a final listing determination and, if listing is warranted, a 
final critical habitat designation in the Federal Register on or before 
March 31, 2014. The Service's work plan, which was filed as part of the 
approved settlement with the Wild Earth Guardians in a consolidated 
case in the U.S. District Court for the District of Columbia, required 
the Service to issue a proposed listing rule or not warranted finding 
for the Washington State Mazama pocket gopher subspecies by the end of 
fiscal year 2012 and publish final listing determinations in accordance 
with the statutory deadlines. The Service received an extension from 
the court allowing us to deliver the proposed rules or not warranted 
findings to the Federal Register by November 29, 2012. The order 
granting the extension also committed the Service to deliver the final 
determinations to the Federal Register by September 30, 2013, unless 
the Service found there was substantial disagreement regarding the 
sufficiency or accuracy of the available data relevant to the listing 
determinations, in which case the Service agreed to submit final 
determinations for these subspecies to the Federal Register on or 
before March 31, 2014.

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed listing and proposed 
designation of critical habitat for the four subspecies of Mazama 
pocket gopher that was published in the Federal Register on December 
10, 2012 (77 FR 73770). We will consider information and 
recommendations from all interested parties. We intend that any final 
action resulting from this proposal be as accurate as possible and 
based on the best available scientific and commercial data.
    Therefore, in consideration of the disagreements surrounding the 
status of the four subspecies of Mazama pocket gopher, we are extending 
the final determination for up to 6 months in order to solicit 
information that will help to clarify these issues.
    We are particularly interested in new information regarding:
    (1) Threats associated with agricultural or ranching practices to 
Mazama pocket gophers in Washington.
    (2) Threats associated with high-density commercial, industrial, 
and residential development or urbanization to Mazama pocket gophers in 
Washington.
    (3) Distribution and relative abundance of Mazama pocket gophers, 
including maps and survey information, in Washington.
    Please note that we are taking comments on the proposed listing and 
the proposed critical habitat under separate Docket Numbers for the 
final rulemaking. For comments relevant to the proposed listing, please 
refer to Docket No. FWS-R1-ES-2012-0088. For comments relevant to the 
proposed critical habitat, please refer to Docket No. FWS-R1-ES-2013-
0021. Proposed 4(d) Special Rule for the Four Subspecies of Mazama 
Pocket Gopher--Additional Provisions Under Consideration
    We are also taking this opportunity to reevaluate our proposed 4(d) 
special rule published in the Federal Register on December 11, 2012 (77 
FR 73770), based on comments received to date, and are seeking 
additional input from the public. Under the authority of section 4(d) 
of the Act, the Secretary

[[Page 54220]]

may publish a special rule that modifies the standard protections for 
threatened species with special measures tailored to the conservation 
of the species that are determined to be necessary and advisable to 
provide for the conservation of the subspecies. As a means to promote 
the conservation of the four subspecies of Mazama pocket gopher, we are 
proposing special rules for these subspecies under section 4(d) of the 
Act. In the case of a special rule, the general regulations (50 CFR 
17.31 and 17.71) applying most prohibitions under section 9 of the Act 
to threatened species do not apply, and the special rule contains the 
prohibitions necessary and appropriate to conserve the species. Note 
that a 4(d) special rule will not remove or alter in any way the 
consultation requirements under section 7 of the Act.
    In the special rule for the four subspecies of Mazama pocket gopher 
in our proposed rule of December 11, 2012 (77 FR 73770), take of these 
subspecies caused by restoration--and/or maintenance-type activities by 
airports on non-Federal lands and ongoing single-family residential 
noncommercial activities would be exempt from section 9 of the Act. 
These activities included mechanical weed and grass removal on 
airports. We also proposed to exempt certain construction activities 
that occur in already-developed sites within single-family residential 
development footprints. These included the placement of above-ground 
fencing, garden plots, children's play equipment, residential dog 
kennels, and storage sheds and carports. In addition, we also proposed 
to exempt certain normal farming or ranching activities, including: 
Grazing, routine fence and structure maintenance, mowing, herbicide 
use, burning, and other routine activities. The intent of our initial 
proposed special rule was to allow certain activities anticipated to 
have limited harmful impacts to Mazama pocket gophers while encouraging 
landowners to continue to maintain those areas that are not only 
important for airport safety, agricultural use, and restoration 
activities, but also provide habitat for the four Thurston/Pierce 
subspecies of Mazama pocket gopher. On Federal lands, airport 
restoration and maintenance type activities will be addressed through 
the section 7 process should the subspecies be listed. We received 
numerous comments from the public during our open comment periods 
regarding the timing, extent, and methods used to carry out these 
various activities and are revisiting our previous restrictions 
associated with our proposed 4d special rule.
    We see meaningful opportunities to conserve the four subspecies of 
Mazama pocket gopher by allowing and promoting ongoing, and possibly 
new, activities on non-Federal lands that contribute to the 
conservation of these subspecies. The Service is continuing to evaluate 
the range and scope of activities that may be consistent with the 
conservation of the gophers and the range of options for providing 
``take'' coverage (e.g., special rules, Habitat Conservation Plans, 
Safe Harbor Agreements, and other types of conservation agreements) for 
non-Federal landowners conducting these activities that further Mazama 
pocket gopher conservation. For example, activities related to 
conservation programs, or additional activities related to ranching or 
agriculture (both discussed in further detail below), may be considered 
for take exemption. Therefore, we are considering possible additional 
provisions to the special rule, and we particularly seek information 
and comments regarding:
    (1) What measures are necessary and advisable for the conservation 
and management of the Mazama pocket gopher that are appropriate for a 
proposed 4(d) special rule to encourage landowners to manage their 
lands for the benefit of the Mazama pocket gophers.
    (2) Information regarding the types of activities that occur within 
Mazama pocket gopher habitat and how they are or can be implemented 
(e.g., timing, extent) consistent with maintaining or advancing 
conservation of the gophers.
    (3) Whether the Service should expand the scope of the 4(d) special 
rule to allow incidental take of Mazama pocket gophers if the take 
results from implementation of a comprehensive State conservation 
program or regional or local conservation programs.
    (4) Information concerning whether it would be appropriate to 
include in the 4(d) special rule a provision for take of Mazama pocket 
gophers in accordance with applicable State law for educational or 
scientific purposes, the enhancement of propagation or survival of the 
species, zoological exhibition, and other conservation purposes 
consistent with the Act.
    (5) Additional provisions the Service may wish to consider for a 
4(d) special rule in order to conserve, recover, and manage the Mazama 
pocket gopher.
    Please submit any comments related to the proposed 4(d) special 
rule to Docket No. FWS-R1-ES-2012-0088, which pertains to the proposed 
listing of the four subspecies of Mazama pocket gopher.

State, Regional, and Local Conservation Programs

    In addition to our original proposal exempting take associated with 
certain individual activities associated with agricultural lands, 
airports, and single-family residential properties, the Service is also 
considering exempting take incidental to activities conducted pursuant 
to a comprehensive State conservation program or regional or local 
conservation programs. We anticipate that conservation programs covered 
under such a 4(d) rule would need to be developed and administered by 
an entity having jurisdiction or authority over the activities in the 
program; would need to be approved by the Service as adequately 
protective to provide a conservation benefit to the Mazama pocket 
gopher; and may need to include adaptive management, monitoring, and 
reporting components sufficient to demonstrate that the conservation 
objectives of the plan are being met. For example, a comprehensive 
conservation program that has a clear mechanism for enrollment of 
participating landowners that want to manage their lands for the 
benefit of the Mazama pocket gopher may not be prohibited from taking 
Mazama pocket gopher. In making its determination, the Service would 
consider:
    (i) How the program addresses the threats affecting the Mazama 
pocket gophers within the program area;
    (ii) How the program establishes objective, measurable biological 
goals and objectives for population and habitat necessary to ensure a 
conservation benefit, and provides the mechanisms by which those goals 
and objectives will be achieved;
    (iii) How the program administrators demonstrate the capability and 
funding mechanisms for effectively implementing all elements of the 
conservation program, including enrollment of participating landowners, 
monitoring of program activities, and enforcement of program 
requirements;
    (iv) How the program employs an adaptive management strategy to 
ensure future program adaptation as necessary and appropriate; and
    (v) How the program includes appropriate monitoring of 
effectiveness and compliance.
    The considerations presented here are meant to encourage the 
development of efforts to improve habitat conditions and the status of 
the four subspecies of Mazama pocket gopher across their ranges. For 
the Service to approve

[[Page 54221]]

coverage of a comprehensive, regional, or local conservation program 
under the 4(d) special rule being considered, the program must provide 
a conservation benefit to Mazama pocket gophers. Conservation, as 
defined in section 3(3) of the Act, means ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary.'' The program may 
also be periodically reviewed by the Service to determine that it 
continues to provide the intended conservation benefit to the Mazama 
pocket gophers. As a result of this provision, the Service expects that 
conservation actions will be implemented with a high level of certainty 
that the program will lead to the long-term conservation of the four 
subspecies of Mazama pocket gopher.

Agricultural and Ranching Activities

    The Service is considering exempting take of Mazama pocket gopher 
on non-Federal lands when those lands are managed following technical 
guidelines that have been developed in coordination with a State or 
Federal agency or agencies responsible for the management and 
conservation of fish and wildlife, or their agent(s), and that has been 
determined by the Service to provide a conservation benefit to Mazama 
pocket gophers. Individual non-Federal landowners following these 
specific technical guidelines may be exempted from take prohibitions. 
Guidelines should incorporate procedures, practice standards, and 
conservation measures that promote the continued existence of the four 
subspecies of Mazama pocket gopher.
    Ideally, appropriate guidelines would be associated with a program 
that would provide financial and technical assistance to participating 
landowners to implement specific conservation measures beneficial to 
the Mazama pocket gophers that also contribute to the sustainability of 
landowners' agricultural or ranching operations. Conservation measures 
encompassed by such a program should be consistent with management or 
restoration of prairie habitats for Mazama pocket gophers and include 
brush management, prescribed grazing, range planting, prescribed 
burning, and set asides for conservation areas.
    We believe including such a provision in a 4(d) special rule for 
agricultural and ranching activities will promote conservation of the 
species by encouraging agricultural landowners and ranchers with Mazama 
pocket gophers to continue managing the remaining landscape in ways 
that meet the needs of their operations while simultaneously supporting 
suitable habitat for the gophers as well as other prairie-dependent 
species.
    We will consider all comments and information received during our 
preparation of a final determination on the status of the four 
subspecies and the 4(d) special rule, and, if appropriate, a final 
designation of critical habitat. Accordingly, the final decision may 
differ from our original proposal.
    If you previously submitted comments or information on the proposed 
rule during the two previously open comment periods, please do not 
resubmit them. We have incorporated them into the public record, and we 
will fully consider them in the preparation of our final determination. 
Our final determination concerning the proposed listing and proposed 
designation of critical habitat will take into consideration all 
written comments and any additional information we received.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule, will be available 
for public inspection on http://www.regulations.gov at Docket No. FWS-
R1-ES-2012-0088 and FWS-R1-ES-2013-0021, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, 
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT). You may obtain copies of the proposed rule on the Internet at 
http://www.regulations.gov at Docket No. FWS-R1-ES-2012-0088, or by 
mail from the Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this notice are the staff members of the 
Washington Fish and Wildlife Office, Pacific Region, U.S. Fish and 
Wildlife Service.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 21, 2013.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-21376 Filed 8-30-13; 8:45 am]
BILLING CODE 4310-55-P