Federal Register / Vol. 83, No. 248 / Friday, December 28, 2018 / Proposed Rules 67185 

respect to current and future systems 

operating in the fixed service. 

(3) Individual license applications 

only may be filed for operation in the 

12.75–13.15 GHz, 13.2125–13.25 GHz, 

13.75–14 GHz, or 27.5–28.35 GHz 

bands. 

* * * * * 

(o) The requirements in this 

paragraph apply to applications for 

ESIMs operation with NGSO satellites 

in the Fixed-Satellite Service, in 

addition to the requirements in 

paragraphs (a)(1), (a)(5), (e)(2), and (i) of 

this section: 

(1) An exhibit describing the 

geographic area(s) in which the ESIMs 

will operate. 

(2) The point of contact information 

referred to in § 25.228(e)(2), (f), or (g)(1) 

as appropriate. 

(3) Applicants for ESIMs that will 

exceed the guidelines in § 1.1310 of this 

chapter for radio frequency radiation 

exposure must provide, with their 

environmental assessment, a plan for 

mitigation of radiation exposure to the 

extent required to meet those 

guidelines. 

■ 6. Amend § 25.202 by removing and 

reserving paragraph (a)(8), revising 

paragraph (a)(10)(ii), and removing and 

reserving paragraph (a)(11) to read as 

follows: 

§ 25.202 Frequencies, frequency tolerance, 

and emission limits. 

(a) * * * 

(10) * * * 

(ii) The following frequencies are 

available for use by Earth Stations in 

Motion (ESIMs) communicating with 

NGSO FSS space stations, subject to the 

provisions in § 2.106 of this chapter: 

10.7–11.7 GHz (space-to-Earth) 

11.7–12.2 GHz (space-to-Earth) 

14.0–14.5 GHz (Earth-to-space) 

17.8–18.3 GHz (space-to-Earth) 

18.3–18.6 GHz (space-to-Earth) 

18.8–19.3 GHz (space-to-Earth) 

19.3–19.4 GHz (space-to-Earth) 

19.6–19.7 GHz (space-to-Earth) 

19.7–20.2 GHz (space-to-Earth) 

28.35–28.6 GHz (Earth-to-space) 

28.6–29.1 GHz (Earth-to-space) 

29.5–30.0 GHz (Earth-to-space) 

* * * * * 

■ 7. Amend § 25.228, as proposed to be 

added on June 16, 2017 at 82 FR 27652, 

by revising the introductory text of 

paragraph (j) to read as follows: 

§ 25.228 Operating and coordination 

requirements for earth stations in motion 

(ESIMs). 

* * * * * 

(j) The following requirements govern 

all ESIMs transmitting to GSO or nonGSO satellites in the Fixed-Satellite 

Service in the 14.0–14.5 GHz band. 

* * * * * 

[FR Doc. 2018–27974 Filed 12–27–18; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2018–0074; 

4500030113] 

RIN 1018–BD43 

Endangered and Threatened Wildlife 

and Plants; Section 4(d) Rule for 

Trispot Darter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose a 

rule under section 4(d) of the 

Endangered Species Act of 1973 (Act), 

as amended, for the trispot darter 

(Etheostoma trisella), a fish from 

Alabama, Georgia, and Tennessee. This 

rule would provide measures necessary 

and advisable to conserve the species, 

which we list as a threatened species 

under the Act in a separate rulemaking 

published in today’s Federal Register. 

DATES: We will accept comments 

received or postmarked on or before 

February 26, 2019. 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. We 

must receive requests for public 

hearings, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by February 11, 2019. 

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–R4–ES–2018– 

0074, which is the docket number for 

this rulemaking. Then, click on the 

Search button. On the resulting page, in 

the Search panel on the left side of the 

screen, under the Document Type 

heading, click on the Proposed Rule box 

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–R4–ES–2018– 

0074, 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 

INFORMATION REQUESTED, below, for more 

information). 

FOR FURTHER INFORMATION CONTACT: Bill 

Pearson, Field Supervisor, U.S. Fish and 

Wildlife Service, Alabama Ecological 

Services Field Office, 1208 Main Street, 

Daphne, AL 36526; telephone 251–441– 

5181; facsimile 251–441–6222. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Relay Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Previous Federal Actions 

On October 4, 2017, we published a 

proposed rule in the Federal Register 

(82 FR 46183) to list the trispot darter 

as a threatened species under the Act 

(16 U.S.C. 1531 et seq.). Please refer to 

that proposed rule for a detailed 

description of previous Federal actions 

concerning this species, as well as 

information on the trispot darter’s 

taxonomy, habitat, life history, 

historical and current distribution, 

population estimates, and status, and a 

summary of factors affecting the species. 

In addition, a thorough review of the 

taxonomy, life history, and ecology of 

the trispot darter is presented in the 

species status assessment (SSA) report, 

available on http://www.regulations.gov 

under Docket No. FWS–R4–ES–2018– 

0074. 

Elsewhere in today’s Federal Register, 

we publish (1) a final rule to list the 

trispot darter as a threatened species 

under the Act (‘‘final listing rule’’), and 

(2) a proposed rule to designate critical 

habitat for the trispot darter under the 

Act. 

Background 

The trispot darter is a freshwater fish 

found in the Coosa River System, above 

the fall line in the Ridge and Valley 

ecoregion of Alabama, Georgia, and 

Tennessee. This fish has a historical 

range from the middle to upper Coosa 

River Basin with recorded collections in 

tributaries to the Oostanaula, the 

mainstem Coosa, the Conasauga, and the 

Coosawattee Rivers, and their 

tributaries. Currently, the trispot darter 

is known to occur in Little Canoe Creek 

and tributaries (Coosa River), Ballplay 

Creek tributaries (Coosa River), 

Conasauga River and tributaries, and 

Coosawattee River and one tributary. 

The trispot darter is a small-bodied, 

fish ranging in size from 1.3 to 1.6 

inches (in) (3.3 to 4.1 centimeters (cm)) 


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as an adult. The darter has three 

prominent black dorsal saddles, a pale 

undersurface, and a dark bar below the 

eye. Scattered dark blotches exist on the 

fins’ rays. During breeding season, 

males are a reddish-orange color and 

have green marks along their sides and 

a red band through their spiny dorsal 

fin. 

The trispot darter is a migratory 

species that utilizes distinct breeding 

and nonbreeding habitats. From 

approximately April to October, the 

species inhabits its nonbreeding habitat, 

which consists of small to medium river 

margins and lower reaches of tributaries 

with slower velocities. Trispot darters 

are associated with detritus, logs, and 

stands of water willow, and the 

substrate consists of small cobbles, 

pebbles, gravel, and often a fine layer of 

silt. During low flow periods, the darters 

move away from the peripheral zones 

and toward the main channel; edges of 

water willow beds, riffles, and pools; 

and mouths of tributaries. In late fall 

(approximately late November through 

early December), the species shifts its 

habitat preference and begins movement 

toward spawning areas; this is most 

likely stimulated by precipitation, but 

temperature changes and decreasing 

daylight hours may also provide cues to 

begin migration. The fish move from the 

main channels into tributaries, 

eventually reaching adjacent seepage 

areas where they will congregate and 

remain for the duration of spawning, 

until approximately late April. Breeding 

sites are intermittent seepage areas and 

ditches with little to no flow; shallow 

depths (12 in (30 cm) or less); moderate 

leaf litter covering mixed cobble, gravel, 

sand, and clay; a deep layer of soft silt 

over clay; and emergent vegetation. 

Trispot darters predominantly feed on 

mayfly nymphs and midge larvae and 

pupae. 

A multitude of natural and 

anthropogenic factors that affect aquatic 

systems may impact the status of this 

species. The largest threat to the future 

viability of the trispot darters is habitat 

degradation from stressors that 

influence four habitat elements: water 

quality, water quantity, instream 

habitat, and habitat connectivity. All of 

these factors are exacerbated by the 

effects of climate change. These 

stressors include hydrologic alteration, 

sedimentation, loss of connectivity, loss 

of riparian vegetation, and contaminants 

entering the water system due to 

agricultural activities (such as excessive 

poultry litter and livestock entering 

streams) and urbanization within the 

watershed. 

Provisions of Section 4(d) of the Act 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to threatened wildlife. Under section 

4(d) of the Act, the Secretary of the 

Interior has the discretion to issue such 

regulations as he deems necessary and 

advisable to provide for the 

conservation of threatened species. The 

Secretary also has the discretion to 

prohibit, by regulation with respect to 

any threatened species of fish or 

wildlife, any act prohibited under 

section 9(a)(1) of the Act. The 

prohibitions of section 9(a)(1) of the Act, 

codified at 50 CFR 17.31, make it illegal 

for any person subject to the jurisdiction 

of the United States to take (which 

includes harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or 

collect; or to attempt any of these) 

threatened wildlife within the United 

States or on the high seas. In addition, 

it is unlawful to import; export; deliver, 

receive, carry, transport, or ship in 

interstate or foreign commerce in the 

course of commercial activity; or sell or 

offer for sale in interstate or foreign 

commerce any listed species. It is also 

illegal to possess, sell, deliver, carry, 

transport, or ship any such wildlife that 

has been taken illegally. 

For any threatened species, the 

Service may develop a protective 

regulation that is specific to the 

conservation needs of that species. The 

courts have recognized the extent of the 

Secretary’s discretion to develop 

prohibitions, as well as exclusions from 

those prohibitions, that are appropriate 

for the conservation of a threatened 

species. For example, the Secretary may 

decide not to prohibit take, or to put in 

place only limited take prohibitions (see 

Alsea Valley Alliance v. Lautenbacher, 

2007 U.S. Dist. Lexis 60203 (D. Or. 

2007); Washington Environmental 

Council v. National Marine Fisheries 

Service, 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 

protective regulation for a threatened 

species need not address all the threats 

to the species. As noted by Congress 

when the Act was initially enacted, 

once an animal is listed as a threatened 

species, the Secretary has an almost 

infinite number of options available to 

him with regard to the permitted 

activities for those species. He may, for 

example, permit taking, but not 

importation of such species, or he may 

choose to prohibit 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. 

Proposed 4(d) Rule for the Trispot 

Darter 

Under this proposed section 4(d) rule, 

all prohibitions and provisions of 

section 9(a)(1) would apply to the 

trispot darter, except the following 

actions would not be prohibited: 

(1) Species restoration efforts by State 

wildlife agencies, including collection 

of broodstock, tissue collection for 

genetic analysis, captive propagation, 

and subsequent stocking into currently 

occupied and unoccupied areas within 

the historical range of the species. 

(2) Channel restoration projects that 

create natural, physically stable, 

ecologically functioning streams (or 

stream and wetland systems) that are 

reconnected with their groundwater 

aquifers and, if the projects involve 

known trispot darter spawning habitat, 

that take place between May 1 and 

December 31 to avoid the time period 

when the trispot darter will be found 

within such habitat. These projects can 

be accomplished using a variety of 

methods, but the desired outcome is a 

natural channel with low shear stress 

(force of water moving against the 

channel); bank heights that enable 

reconnection to the floodplain; a 

reconnection of surface and 

groundwater systems, resulting in 

perennial flows in the channel; riffles 

and pools comprised of existing soil, 

rock, and wood instead of large 

imported materials; low compaction of 

soils within adjacent riparian areas; and 

inclusion of riparian wetlands. Secondto third-order headwater streams 

reconstructed in this way would offer 

suitable habitats for the trispot darter 

and contain stable channel features, 

such as pools, glides, runs, and riffles, 

which could be used by the species’ for 

spawning, rearing, growth, feeding, 

migration, and other normal behaviors. 

(3) Streambank stabilization projects 

that utilize bioengineering methods to 

replace pre-existing, bare, eroding 

stream banks with vegetated, stable 

stream banks, thereby reducing bank 

erosion and instream sedimentation and 

improving habitat conditions for the 

species. Following these bioengineering 

methods, stream banks may be 

stabilized using live stakes (live, 

vegetative cuttings inserted or tamped 

into the ground in a manner that allows 

the stake to take root and grow), live 

fascines (live branch cuttings, usually 

willows, bound together into long, cigarshaped bundles), or brush layering 

(cuttings or branches of easily rooted 

tree species layered between successive 

lifts of soil fill). These bioengineering 


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methods must not include the sole use 

of quarried rock (rip-rap) or the use of 

rock baskets or gabion structures, but 

rip-rap, rock baskets, or gabion 

structures could be used in conjunction 

with the bioengineering methods. 

(4) Silviculture practices and forest 

management activities that: 

(a) Implement highest-standard best 

management practices, particularly for 

Streamside Management Zones, stream 

crossings, and forest roads; 

(b) Comply with forest practice 

guidelines related to water quality 

standards, or comply with Sustainable 

Forestry Initiative/Forest Stewardship 

Council/American Tree Farm System 

certification standards for both forest 

management and responsible fiber 

sourcing; 

(c) Remove logging debris or any other 

large material placed within natural or 

artificial wet weather conveyances or 

ephemeral, intermittent, or perennial 

stream channels; and 

(d) When silviculture practices and 

forest management activities involve 

trispot darter spawning habitat, are 

carried out between May 1 and 

December 31 to avoid the time period 

when the trispot darter will be found 

within spawning habitat. 

(5) Development or other activities 

where transportation corridors cross 

streams that: 

(a) Include the installation of 

structures engineered to allow organism 

passage at stream crossings, with 

specific consideration for fish passage; 

and 

(b) Are performed between May 1 and 

December 31 to avoid the time period 

when the trispot darter will be found 

within spawning habitat, if such habitat 

is affected by the activity. 

(6) Activities carried out under the 

Working Lands for Wildlife program of 

the Natural Resources Conservation 

Service, U.S. Department of Agriculture; 

or similar projects throughout the range 

of the trispot darter that may be created 

in the future that: 

(a) Do not alter habitats known to be 

used by the trispot darter beyond the 

fish’s tolerances; and 

(b) Are performed between May 1 and 

December 31 to avoid the time period 

when the trispot darter will be found 

within its spawning habitat, if such 

habitat is affected by the activity. 

Although these management activities 

may result in some minimal level of 

harm or temporary disturbance to the 

trispot darter, overall, these activities 

benefit the subspecies by contributing to 

conservation and recovery. 

Across the species’ range, instream 

habitats have been degraded physically 

by sedimentation, direct channel 

disturbance, pollution, and loss of 

connectivity. The activities proposed in 

this rule would correct some of these 

problems, creating more favorable 

habitat conditions for the species. These 

provisions are necessary and advisable 

because the species needs active 

conservation to improve the quality of 

its habitat and, absent protections, the 

species is likely to become in danger of 

extinction in the foreseeable future. 

These provisions can encourage 

cooperation by landowners and other 

affected parties in implementing 

conservation measures. This would 

allow for use of the land while at the 

same time ensuring the preservation of 

suitable habitat and minimizing impact 

on the species. 

Under our regulations at 50 CFR 

17.32, we may issue permits to carry out 

otherwise prohibited activities 

involving threatened wildlife under 

certain circumstances. A permit may be 

issued for the following purposes: for 

scientific purposes, to enhance 

propagation or survival, for economic 

hardship, for zoological exhibition, for 

educational purposes, for incidental 

taking, or for special purposes 

consistent with the purposes of the Act. 

Nothing in this proposed 4(d) rule 

would change in any way the recovery 

planning provisions of section 4(f) or 

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 

trispot darter. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition of a species through listing 

it results in public awareness, and leads 

Federal, State, Tribal, and local 

agencies; private organizations; and 

individuals to undertake conservation. 

The Act encourages cooperation with 

the States and other countries and calls 

for recovery actions to be carried out for 

listed species. Information about the 

protection required by Federal agencies, 

and the prohibitions against certain 

activities, and recovery planning and 

implementation and interagency 

consultation, are discussed in the 

proposed listing rule (82 FR 46183; 

October 4, 2017) and the final listing 

rule (published elsewhere in today’s 

Federal Register). 

Information Requested 

We intend that any final action 

resulting from this proposal will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

governmental agencies, Native 

American tribes, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed 4(d) rule. We will consider all 

comments and information we receive 

during our preparation of a final 4(d) 

rule. Accordingly, our final decision 

may differ from this proposal based on 

specific public comments or any other 

new information that may become 

available. 

We particularly seek comments 

concerning: 

(1) Information concerning the 

appropriateness and scope of a 4(d) rule 

for the trispot darter. We are particularly 

interested in input from agriculture or 

forestry experts regarding forest 

management, restoration practices, 

water conservation, or related activities, 

along with the value of certified forestry 

and agricultural practices and of best 

management practices, that would be 

appropriately addressed through a 4(d) 

rule for the trispot darter. 

(2) Additional provisions the Service 

may wish to consider for a 4(d) rule in 

order to manage and conserve the 

trispot darter. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

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 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 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, Alabama Ecological Services 

Office (see FOR FURTHER INFORMATION

CONTACT). 


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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 proposed 4(d) 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, if adopted as proposed, this rule 

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 trispot darter as a threatened 

species. That rule becomes effective 30 

days after the date of publication. As a 

result, the trispot darter will be covered 

by the full protections of the Act, 

including the full section 9 prohibitions 

that make it illegal for any person 

subject to the jurisdiction of the United 

States to take (harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect, or attempt to engage in any 

such conduct), 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. This 

proposed 4(d) rule states that all 

prohibitions in the Act’s section 9(a)(1) 

would apply to the trispot darter, except 

regulated activities that are conducted 

consistent with the conservation needs 

of the species as laid out above. This 

would result in a less restrictive 

regulation under the Act, as it pertains 

to the trispot darter, than would 

otherwise exist. For the above reasons, 

we certify that, if adopted as proposed, 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. Therefore, a 

final regulatory flexibility analysis is not 

required. 

Executive Order 13771 

This rule is not an E.O. 13771 

(‘‘Reducing Regulation and Controlling 

Regulatory Costs’’) (82 FR 9339, 

February 3, 2017) regulatory action 

because this rule is not significant under 

E.O. 12866. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

This proposed rule would not impose 

an unfunded mandate on State, local, or 

tribal governments, or the private sector 

of more than $100 million per year. The 

rule would not have a significant or 

unique effect on State, local, or tribal 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1501 et seq.) is not 

required. 

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, or use. For reasons 

discussed within this proposed rule, we 

believe that the rule would not have any 

effect on energy supplies, distribution, 

or use. Therefore, this action is not a 

significant energy action, and no 

Statement of Energy Effects is required. 

Takings—Executive Order 12630 

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 

4(d) rule would, with limited 

exceptions, maintain the regulatory 

status quo regarding activities currently 

allowed under the Endangered Species 

Act. A takings implication assessment is 

not required. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This 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 of 1995 (44 U.S.C. 3501 

et seq.). This 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. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed a 4(d) 

rule in accordance with the provisions 

of the Act. To assist the public in 

understanding the conservation needs of 

the species, the proposed rule identifies 

the prohibitions and exceptions to those 

prohibitions that are necessary and 

advisable to the conservation of the 

species. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed 4(d) rule 

does not have significant Federalism 

effects. A federalism summary impact 

statement is not required. This rule 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal government and 

the States, or on the distribution of 

powers and responsibilities among the 

various levels of government. 


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Government-to-Government 

Relationships 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 have determined that no tribal lands 

would be affected by this proposed rule. 

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. 

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. We 

will notify the public of the availability 

of the draft environmental assessment 

for this proposal when it is complete. 

Authors 

The primary authors of this proposed 

rule are the staff members of the Species 

Assessment Team and the Alabama 

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, for the reasons just 

described, we 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 

■ 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. 

■ 2. Amend § 17.44 by revising 

paragraph (q) to read as follows: 

§ 17.44 Special rules—fishes. 

* * * * * 

(q) Trispot darter (Etheostoma 

trisella). 

(1) Prohibitions. Except as noted in 

paragraph (q)(2) of this section, all 

prohibitions and provisions of section 

9(a)(1) of the Act apply to the trispot 

darter. 

(2) Exceptions from prohibitions. 

Incidental take of the trispot darter will 

not be considered a violation of section 

9 of the Act if the take results from any 

of the following activities: 

(i) Species restoration efforts by State 

wildlife agencies, including collection 

of broodstock, tissue collection for 

genetic analysis, captive propagation, 

and subsequent stocking into currently 

occupied and unoccupied areas within 

the historical range of the species. 

(ii) Channel restoration projects that 

create natural, physically stable, 

ecologically functioning streams (or 

stream and wetland systems) that are 

reconnected with their groundwater 

aquifers. These projects can be 

accomplished using a variety of 

methods, but the desired outcome is a 

natural channel with low shear stress 

(force of water moving against the 

channel); bank heights that enable 

reconnection to the floodplain; a 

reconnection of surface and 

groundwater systems, resulting in 

perennial flows in the channel; riffles 

and pools comprised of existing soil, 

rock, and wood instead of large 

imported materials; low compaction of 

soils within adjacent riparian areas; and 

inclusion of riparian wetlands. 

(iii) Streambank stabilization projects 

that utilize bioengineering methods to 

replace pre-existing, bare, eroding 

stream banks with vegetated, stable 

stream banks, thereby reducing bank 

erosion and instream sedimentation and 

improving habitat conditions for the 

species. Stream banks may be stabilized 

using live stakes (live, vegetative 

cuttings inserted or tamped into the 

ground in a manner that allows the 

stake to take root and grow), live 

fascines (live branch cuttings, usually 

willows, bound together into long, cigarshaped bundles), or brush layering 

(cuttings or branches of easily rooted 

tree species layered between successive 

lifts of soil fill). Stream banks must not 

be stabilized solely through the use of 

quarried rock (rip-rap) or the use of rock 

baskets or gabion structures. 

(iv) Silviculture practices and forest 

management activities that: 

(A) Implement highest-standard best 

management practices, particularly for 

Streamside Management Zones, stream 

crossings, and forest roads; and 

(B) Comply with forest practice 

guidelines related to water quality 

standards, or comply with Sustainable 

Forestry Initiative/Forest Stewardship 

Council/American Tree Farm System 

certification standards for both forest 

management and responsible fiber 

sourcing. 

(v) Transportation projects that 

provide for fish passage at stream 

crossings; and 

(vi) Projects carried out in the species’ 

range under the Working Lands for 

Wildlife program of the Natural 

Resources Conservation Service, U.S. 

Department of Agriculture. 

* * * * * 

Dated: October 26, 2018. 

James W. Kurth, 

Deputy Director, U.S. Fish and Wildlife 

Service, Exercising the Authority of the 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2018–27977 Filed 12–27–18; 8:45 am] 

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