[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Proposed Rules]
[Pages 35174-35178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15811]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2018-0007; 4500030113]
RIN 1018-BC97


Endangered and Threatened Wildlife and Plants; Revision of the 
Regulations for Prohibitions to Threatened Wildlife and Plants

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to revise our 
regulations extending most of the prohibitions for activities involving 
endangered species to threatened species. For species already listed as 
a threatened species, the proposed regulations would not alter the 
applicable prohibitions. The proposed regulations would require the 
Service, pursuant to section 4(d) of the Endangered Species Act, to 
determine what, if any, protective regulations are appropriate for 
species that the Service in the future determines to be threatened.

DATES: We will accept comments received or postmarked on or before 
September 24, 2018. 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: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2018-0007, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. 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-HQ-ES-2018-0007; U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    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 Request for Information, below, for more information).

FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife 
Service, Division of Conservation and Classification, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at 800/877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    The Endangered Species Act of 1973, as amended (``ESA'' or ``Act''; 
16 U.S.C. 1531 et seq.), states that the purposes of the Act are to 
provide a means to conserve the ecosystems upon which listed species 
depend, to develop a program for the conservation of listed species, 
and to achieve the purposes of certain treaties and conventions. 
Moreover, the Act states that it is the policy of Congress that the 
Federal Government will seek to conserve threatened and endangered 
species and use its authorities to further the purposes of the Act. 
This proposed rulemaking action pertains primarily to

[[Page 35175]]

sections 4 and 9 of the Act: Section 9 sets forth prohibitions for 
activities pertaining to species listed under the Act, and section 4(d) 
pertains to protective regulations for threatened species.
    This proposed rule is one of three related proposed rules that are 
publishing in today's Federal Register. All of these documents propose 
revisions to various regulations that implement the ESA.
    In carrying out Executive Order 13777, ``Enforcing the Regulatory 
Reform Agenda,'' the Department of the Interior (DOI) published a 
document with the title ``Regulatory Reform'' in the Federal Register 
of June 22, 2017 (82 FR 28429). The document requested public comment 
on how DOI can improve implementation of regulatory reform initiatives 
and policies and identify regulations for repeal, replacement, or 
modification. This proposed rule and the two related proposed rules in 
today's Federal Register address some of the comments that DOI has 
received in response to the regulatory reform docket.

Proposed Changes to Part 17

    The regulations that implement the ESA are located in title 50 of 
the Code of Federal Regulations. This proposed rule would revise 
regulations found in part 17 of title 50, particularly in subpart D, 
which pertains to threatened wildlife, and subpart G, which pertains to 
threatened plants.
    We propose to amend Sec. Sec.  17.31 and 17.71, along with 
conforming amendments to other sections of title 50. Among other 
changes, the proposal would add language in both sections to paragraph 
(a) to specify that its provisions apply only to species listed as 
threatened species on or before the effective date of this rule. 
Species listed or reclassified as a threatened species after the 
effective date of this rule, if finalized, would have protective 
regulations only if the Service promulgates a species-specific rule 
(also referred to as a special rule). In those cases, we intend to 
finalize the species-specific rule concurrent with the final listing or 
reclassification determination. Notwithstanding our intention, we have 
discretion to revise or promulgate species-specific rules at any time 
after the final listing or reclassification determination. However, we 
specifically request comments on our stated intention of finalizing 
species-specific rules concurrent with final listing rules, including 
whether we should include any binding requirement in the regulatory 
text to do so, such as setting a timeframe for finalizing species-
specific rules after a final listing or reclassification determination.
    This change would make our regulatory approach for threatened 
species parallel with the approach that the National Marine Fisheries 
Service (NMFS) has taken since Congress added section 4(d) to the Act, 
as discussed below. The protective regulations that currently apply to 
threatened species would not change, unless the Service adopts a 
species-specific rule in the future. As of the date of this proposal, 
there are species-specific protective regulations for threatened 
wildlife in subpart D of part 17, but the Service has not adopted any 
species-specific protective regulations for plants. The proposed 
regulations would not affect the consultation obligations of Federal 
agencies pursuant to section 7 of the Act. The proposed regulations 
would not change permitting pursuant to 50 CFR 17.32.
    The prohibitions set forth in ESA Section 9 expressly apply only to 
species listed as endangered under the Act, as opposed to threatened. 
16 U.S.C. 1538(a). ESA Section 4(d), however, provides that the 
Secretaries may by regulation extend some or all of the Section 9 
prohibitions to any species listed as threatened. Id. Sec.  1533(d). 16 
U.S.C. 1533(d). See, also S. Rep. 93-307 (July 1, 1973) (in amending 
the ESA to include the protection of threatened species and creating 
``two levels of protection'' for endangered species and threatened 
species, ``regulatory mechanisms may more easily be tailored to the 
needs of the'' species). Our existing regulations in Sec. Sec.  17.31 
and 17.71, extending most of the prohibitions for endangered species to 
threatened species unless altered by a specific regulation, is one 
reasonable approach to exercising the discretion granted to the Service 
by section 4(d) of the Act. See Sweet Home Chapter of Communities for a 
Great Or. v. Babbitt, 1 F.3d 1, 7 (D.C. Cir. 1993) (``regardless of the 
ESA's overall design, Sec.  1533(d) arguably grants the FWS the 
discretion to extend the maximum protection to all threatened species 
at once, if guided by its expertise in the field of wildlife 
protection, it finds it expeditious to do so''), altered on other 
grounds in rehearing, 17 F.3d 1463 (D.C. Cir. 1994).
    Another reasonable approach is the one that the Department of 
Commerce, through NMFS, has taken in regard to the species under its 
purview. NMFS did not adopt regulations that extended most of the 
prohibitions for endangered species to threatened species as we did. 
Rather, for each species that they list as threatened, NMFS promulgates 
the appropriate regulations to put in place prohibitions, protections, 
or restrictions tailored specifically to that species. In more than 40 
years of implementing the Act, NMFS has successfully implemented the 
provisions of the Act using this approach.
    Moreover, we have gained considerable experience in developing 
species-specific rules over the years. Where we have developed species-
specific 4(d) rules, we have seen many benefits, including removing 
redundant permitting requirements, facilitating implementation of 
beneficial conservation actions, and making better use of our limited 
personnel and fiscal resources by focusing prohibitions on the 
stressors contributing to the threatened status of the species. This 
revision allows us to capitalize on these benefits in tailoring the 
regulations to the conservation needs of the species.
    For example, we finalized a species-specific 4(d) rule for the 
coastal California gnatcatcher (Polioptila californica californica) on 
December 10, 1993 (58 FR 65088). In that 4(d) rule, we determined that 
activities that met the requirements of the State of California's 
Natural Communities Conservation Plan for the protection of coastal 
sage scrub habitat would not constitute violations of section 9 of the 
Act. Similarly, in 2016, we finalized the listing of the Kentucky arrow 
darter (Etheostoma spilotum) with a species-specific 4(d) rule that 
exempts take as a result of beneficial in-stream habitat enhancement 
projects, bridge and culvert replacement, and maintenance of stream 
crossings on lands managed by the U.S. Forest Service in habitats 
occupied by the species (81 FR 68963, October 5, 2016). As with both of 
these examples, if the proposed rule is finalized, we would continue 
our practice of explaining in the preamble the rationale for the 
species-specific prohibitions included in each 4(d) rule.
    Upon reviewing the approach NMFS has taken and in light of the 
benefits we have noted in developing species-specific rules, we now 
conclude these proposed changes will align our practices with those of 
NMFS regarding threatened species under Department of Commerce purview, 
but also that they will better tailor protections to the needs of the 
threatened species while still providing meaning to the statutory 
distinction between ``endangered species'' and ``threatened species.''
    The proposed regulations would remove the references to subpart A 
in Sec.  17.31 and Sec.  17.71. In Sec.  17.31, we propose to specify 
which sections apply to wildlife, to be more transparent as to which 
provisions contain exceptions to the prohibitions. In Sec.  17.71, we 
propose

[[Page 35176]]

to remove all reference to subpart A, because none of those exceptions 
apply to plants.
    In proposing the specific changes to the regulations that follow, 
and setting out the accompanying clarifying discussion in this 
preamble, the Service is establishing prospective standards only. 
Nothing in these proposed revised regulations is intended to require 
(now or at such time as these regulations may become final) that any 
previous listing, delisting, or reclassification determinations or 
species-specific protective regulations be reevaluated on the basis of 
any final regulations. The existing protections for currently-listed 
threatened species are within the discretion expressly delegated to the 
Secretary by Congress.
    Pursuant to section 10(j) of the Act, members of experimental 
populations are generally treated as threatened species and, pursuant 
to 50 CFR 17.81, populations are designated through population-specific 
regulation found in Sec. Sec.  17.84-17.86. As under our existing 
practice, each such population-specific regulation will contain all of 
the applicable prohibitions, along with any exceptions to prohibitions, 
for that experimental population. None of the changes associated with 
this rulemaking will change existing special rules for experimental 
populations. Any 10(j) special rules promulgated after the effective 
date of this rule which make applicable to a non-essential experimental 
population some or all of the prohibitions that statutorily apply to 
endangered species will not refer to 50 CFR 17.31(a); rather, they will 
instead independently articulate those prohibitions or refer to 50 CFR 
17.21.

Request for Information

    Any final rule based on this proposal will consider information and 
recommendations timely submitted from all interested parties. We 
solicit comments, information, and recommendations from governmental 
agencies, Native American tribes, the scientific community, industry 
groups, environmental interest groups, and any other interested parties 
on this proposed rule. All comments and materials received by the date 
listed in DATES, above, will be considered prior to the approval of a 
final rule.
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. If you submit information via 
http://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the website. 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 personal identifying 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.
    Information and supporting documentation that we receive in 
response to this proposed rule will be available for you to review at 
http://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0007.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Management and 
Budget's Office of Information and Regulatory Affairs (OIRA) will 
review all significant rules. OIRA has determined that this rule is 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements. This proposed rule is consistent with 
Executive Order 13563, and in particular with the requirement of 
retrospective analysis of existing rules, designed ``to make the 
agency's regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''

Executive Order 13771

    This proposed rule is expected to be an Executive Order 13771 
deregulatory action.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his designee, certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We certify that, if adopted as 
proposed, this proposed rule would not have a significant economic 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    This rulemaking revises the regulations for 4(d) rules for species 
determined to meet the definition of a ``threatened species'' under the 
Act. The changes in this proposed rule are instructive regulations and 
do not affect small entities.
    The Service is the only entity that is directly affected by this 
proposed regulation change at 50 CFR part 17 because we are the only 
entity that is affected by changes to this section of the Code of 
Federal Regulations. No external entities, including any small 
businesses, small organizations, or small governments, will experience 
any economic impacts from this rule. Consequently, this proposed 
rulemaking action is not a major rule under SBREFA.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this proposed rule would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that this rule would not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments would not be affected because the proposed 
rule would not place additional requirements on any city, county, or 
other local municipalities.
    (b) This proposed rule would not produce a Federal mandate on 
State,

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local, or tribal governments or the private sector of $100 million or 
greater in any year; that is, this proposed rule is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. This 
proposed rule would impose no obligations on State, local, or tribal 
governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule would not 
pertain to ``taking'' of private property interests, nor would it 
directly affect private property. A takings implication assessment is 
not required because this proposed rule (1) would not effectively 
compel a property owner to suffer a physical invasion of property and 
(2) would not deny all economically beneficial or productive use of the 
land or aquatic resources. This proposed rule would substantially 
advance a legitimate government interest (conservation and recovery of 
endangered and threatened 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 would have significant Federalism effects 
and have determined that a federalism summary impact statement is not 
required. This proposed rule pertains only to prohibitions for 
activities pertaining to threatened species under the Endangered 
Species Act and would not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

Civil Justice Reform (E.O. 12988)

    This proposed rule does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988. This proposed rule would clarify the 
prohibitions to threatened species under the Endangered Species Act.

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 recognized Federal 
Tribes on a government-to-government basis.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required. 
We may not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We are analyzing this proposed regulation 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), and the 
Department of the Interior Manual (516 DM 8).
    We anticipate that the categorical exclusion found at 43 CFR 
46.210(i) likely applies to these proposed regulation changes. At 43 
CFR 46.210(i), the Department of the Interior has found that the 
following category of actions would not individually or cumulatively 
have a significant effect on the human environment and are, therefore, 
categorically excluded from the requirement for completion of an 
environmental assessment or environmental impact statement: ``Policies, 
directives, regulations, and guidelines: that are of an administrative, 
financial, legal, technical, or procedural nature.''
    We invite the public to comment on the extent to which this 
proposed regulation may have a significant impact on the human 
environment, or fall within one of the categorical exclusions for 
actions that have no individual or cumulative effect on the quality of 
the human environment. We will complete our analysis, in compliance 
with NEPA, before finalizing this proposed rule.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule, if 
made final, is not expected to affect 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:
    (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 ADDRESSES. To better help us 
revise the 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.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
. 1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
. 2. Revise Sec.  17.31 to read as follows:


Sec.  17.31   Prohibitions.

    (a) Except as provided in Sec. Sec.  17.4 through 17.8, or in a 
permit issued under this subpart, all of the provisions of Sec.  17.21, 
except Sec.  17.21(c)(5), shall apply to threatened species of wildlife 
that were added to the List of Endangered and Threatened Wildlife in 
Sec.  17.11(h) on or prior to [EFFECTIVE DATE OF THE FINAL RULE], 
unless the Secretary has promulgated species-specific provisions (see 
paragraph (c) of this section).
    (b) In addition to any other provisions of this part 17, any 
employee or agent of the Service, of the National Marine Fisheries 
Service, or of a State conservation agency that is operating a 
conservation program pursuant to the

[[Page 35178]]

terms of a cooperative agreement with the Service in accordance with 
section 6(c) of the Act, who is designated by that agency for such 
purposes, may, when acting in the course of official duties, take those 
threatened species of wildlife that are covered by an approved 
cooperative agreement to carry out conservation programs.
    (c) Whenever a species-specific rule in Sec. Sec.  17.40 through 
17.48 applies to a threatened species, none of the provisions of 
paragraphs (a) and (b) of this section will apply. The species-specific 
rule will contain all the applicable prohibitions and exceptions.
0
3. Revise Sec.  17.71 to read as follows:


Sec.  17.71   Prohibitions.

    (a) Except as provided in a permit issued under this subpart, all 
of the provisions of Sec.  17.61 shall apply to threatened species of 
plants that were added to the List of Endangered and Threatened Plants 
in Sec.  17.12(h) on or prior to [EFFECTIVE DATE OF THE FINAL RULE], 
with the following exception: Seeds of cultivated specimens of species 
treated as threatened shall be exempt from all the provisions of Sec.  
17.61, provided that a statement that the seeds are of ``cultivated 
origin'' accompanies the seeds or their container during the course of 
any activity otherwise subject to these regulations.
    (b) In addition to any provisions of this part 17, any employee or 
agent of the Service or of a State conservation agency that is 
operating a conservation program pursuant to the terms of a cooperative 
agreement with the Service in accordance with section 6(c) of the Act, 
who is designated by that agency for such purposes, may, when acting in 
the course of official duties, remove and reduce to possession from 
areas under Federal jurisdiction those threatened species of plants 
that are covered by an approved cooperative agreement to carry out 
conservation programs.
    (c) Whenever a species-specific rule in Sec. Sec.  17.73 through 
17.78 applies to a threatened species, the species-specific rule will 
contain all the applicable prohibitions and exceptions.

    Dated: July 18, 2018.
Ryan K. Zinke,
Secretary, Department of the Interior.
[FR Doc. 2018-15811 Filed 7-24-18; 8:45 am]
 BILLING CODE 4333-15-P