[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Proposed Rules]
[Pages 10077-10080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03719]


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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.

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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]
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