82_FR_57220 82 FR 56990 - Endangered and Threatened Wildlife and Plants; Incidental Take Permit Application; Proposed Low-Effect Habitat Conservation Plan for the Coastal California Gnatcatcher and Associated Documents; Brea, California

82 FR 56990 - Endangered and Threatened Wildlife and Plants; Incidental Take Permit Application; Proposed Low-Effect Habitat Conservation Plan for the Coastal California Gnatcatcher and Associated Documents; Brea, California

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 82, Issue 230 (December 1, 2017)

Page Range56990-56992
FR Document2017-25889

We, the U.S. Fish and Wildlife Service, have received an application from Orange County Waste & Recycling for a 5-year incidental take permit for the threatened coastal California gnatcatcher pursuant to the Endangered Species Act. We are requesting comments on the permit application and on our preliminary determination that the applicant's accompanying proposed habitat conservation plan qualifies as low effect, eligible for a categorical exclusion under the National Environmental Policy Act. The basis for this determination is discussed in our environmental action statement and associated low- effect screening form, which are also available for public review.

Federal Register, Volume 82 Issue 230 (Friday, December 1, 2017)
[Federal Register Volume 82, Number 230 (Friday, December 1, 2017)]
[Notices]
[Pages 56990-56992]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-25889]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R8-ES-2017-N107; FXES11140800000-178-FF08ECAR00]


Endangered and Threatened Wildlife and Plants; Incidental Take 
Permit Application; Proposed Low-Effect Habitat Conservation Plan for 
the Coastal California Gnatcatcher and Associated Documents; Brea, 
California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from Orange County Waste & Recycling for a 5-year 
incidental take permit for the threatened coastal California 
gnatcatcher pursuant to the Endangered Species Act. We are requesting 
comments on the permit application and on our preliminary determination 
that the applicant's accompanying proposed habitat conservation plan 
qualifies as low effect, eligible for a categorical exclusion under the 
National Environmental Policy Act. The basis for this determination is 
discussed in our environmental action statement and associated low-
effect screening form, which are also available for public review.

DATES: Written comments should be received on or before January 2, 
2018.

ADDRESSES: Submitting Comments: You may submit comments by one of the 
following methods:
     U.S. Mail: Field Supervisor, Fish and Wildlife Service, 
Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 250, 
Carlsbad, CA 92008.
     Fax: Field Supervisor, 760-431-9624.
     Email: [email protected]; please include ``Olinda 
Alpha Landfill HCP'' in the subject line.
    Obtaining Documents: You may obtain copies of the proposed HCP and 
EAS on the Carlsbad Fish and Wildlife's HCP Web site at https://www.fws.gov/carlsbad/HCPs/HCP_Docs.html. To request copies of the 
application, proposed HCP, and EAS, contact the Service immediately, by 
telephone at 760-431-9440 or by letter to the Carlsbad Fish and 
Wildlife Office (see ADDRESSES). Copies of the proposed HCP and EAS 
also are available for public inspection during regular business hours 
at the Carlsbad Fish and Wildlife Office (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Ms. Karen Goebel, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES); 
telephone: 760-431-9440. If you use a telecommunications device for the 
deaf (TDD), please call the Federal Relay Service (FRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), have received an application from Orange County Waste & 
Recycling (applicant) for a 5-year incidental take permit for one 
covered species pursuant to section 10(a)(1)(B) of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; ESA). The 
application addresses the potential ``take'' of the threatened coastal 
California gnatcatcher (Polioptila californica californica; 
gnatcatcher) in the course of activities associated with the 
construction, operation, and maintenance of the Olinda Alpha Landfill 
projects, in the City of Brea, Orange County, California. A 
conservation program to avoid, minimize, and mitigate for project 
activities would be implemented as described in the applicant's 
proposed habitat conservation plan (HCP).
    We are requesting comments on the permit application and on our 
preliminary determination that the proposed HCP qualifies as a low-
effect HCP, eligible for a categorical exclusion under the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.; 
NEPA). The basis for this determination is discussed in our 
environmental action statement (EAS) and associated low-effect 
screening form, which are also available for public review.

Background

    Section 9 of the ESA and its implementing Federal regulations 
prohibit the take of animal species listed as endangered or threatened. 
``Take'' is defined under the ESA as to ``harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect listed animal species, or 
to attempt to engage in such conduct'' (16 U.S.C. 1538). ``Harm'' 
includes significant habitat modification or degradation that actually 
kills or injures listed wildlife by significantly impairing essential 
behavioral patterns such as breeding, feeding, or sheltering (50 CFR 
17.3). However, under section 10(a) of the ESA, the Service may issue 
permits to authorize incidental take of listed species. ``Incidental 
taking'' is defined by the ESA implementing regulations as taking that 
is incidental to, and not the purpose of, carrying out an otherwise 
lawful activity (50 CFR 17.3). Regulations governing incidental take 
permits for endangered and threatened species, respectively, are found 
in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.

Applicant's Proposed Project

    The applicant requests a 5-year permit under section 10(a)(1)(B) of 
the ESA. If we approve the permit, the applicant anticipates taking 
gnatcatcher as a result of permanent impacts to 5.78 acres (ac) of 
coastal sage scrub habitat that the species uses for breeding, feeding, 
and sheltering, as well as 2.85 ac of nonnative grassland habitat that 
may support gnatcatcher foraging and/or dispersal. The take would be 
incidental to the applicant's activities associated with the 
construction of the Olinda Alpha Landfill projects in the City of Brea, 
California, and includes restoration and in-perpetuity

[[Page 56991]]

preservation and management of 11.56 ac of gnatcatcher habitat.
    The Olinda Alpha Landfill projects propose to construct a desilting 
basin, perform a partial cap closure, install screening trees for the 
Brea Power Plant, and construct a winch concrete pad on 12.56 ac 
located on the 565-ac Olinda Alpha Landfill property in the City of 
Brea. The project will permanently impact 5.78 ac of coastal California 
gnatcatcher-occupied coastal sage scrub habitat as a result of clearing 
and grading activities.
    To minimize take of coastal California gnatcatcher by the Olinda 
Alpha Landfill projects and to offset impacts to its habitat, the 
applicant proposes to mitigate for permanent impacts to 5.78 ac of 
occupied gnatcatcher coastal sage scrub habitat through the 
restoration, conservation, and in-perpetuity management of 11.56 ac of 
coastal sage scrub suitable for the gnatcatcher by a Service-approved 
restoration contractor and the Puente Hills Habitat Preservation 
Authority. The applicant's proposed HCP also contains the following 
proposed measures to minimize the effects of construction activities on 
the gnatcatcher:
     Prior to the initiation of work activities on the project 
sites, grading limits will be clearly delineated with flagging and/or 
temporary fencing and silt fencing, as necessary, to help guide work 
activities and avoid impacts to areas beyond the project boundaries.
     Prior to the initiation of work activities on the project 
sites, a Service-approved biologist will conduct a brief training 
session for all project personnel regarding the conservation measures 
and regulations described herein, as well as general information and 
methods that will help avoid and minimize disturbance to the 
gnatcatcher in the vicinity of project activities.
     A Service-approved biologist will monitor grading of the 
site daily (or as determined necessary by the monitoring biologist) and 
provide a letter summarizing compliance with this HCP and the 
construction limits of the proposed projects to the Service within 1 
month of completion of grading.
     Vegetation clearing will take place outside of the bird 
nesting season (February 15 through August 31) to the fullest extent 
practicable. Clearing may only occur during this period once a Service-
approved biologist has conducted at least three surveys of the impact 
areas for nesting birds, with each survey taking place 1 week apart, 
and the last survey conducted within 24 hours prior to clearing. The 
qualified biologist will document compliance with the Migratory Bird 
Treaty Act and other applicable regulations that protect nesting birds. 
If an active bird nest is observed, a 300-foot buffer must be 
established, within which no project activities will occur until the 
nest is no longer active. A reduced buffer may be established by the 
monitoring biologist if it is deemed appropriate and will not result in 
the alteration of nesting behaviors. To fulfill this measure, all 
project activities that are deemed necessary to occur during the bird 
nesting season will be monitored by the qualified biologist, as well as 
any active nest detected in the vicinity of project activities.
     Project sites will be kept as clean as possible to avoid 
attracting predators. All food-related trash will be placed in sealed 
bins or removed from the site regularly.
     Staging areas for each project will be limited to 
developed or previously disturbed areas.

Proposed Action and Alternatives

    The Proposed Action consists of the issuance of an incidental take 
permit and implementation of the proposed HCP, which includes measures 
to avoid, minimize, and mitigate impacts to the gnatcatcher. If we 
approve the permit, take of gnatcatcher would be authorized for the 
applicant's activities associated with the construction of the Olinda 
Alpha Landfill projects. In the proposed HCP, the applicant considers 
alternatives to the taking of gnatcatcher under the proposed action. 
Alternative development configurations for each project component were 
considered; however, because of site-specific regulatory requirements 
and the topography of the site, further avoidance of impacts to coastal 
California gnatcatcher habitat could not be achieved. The applicant 
also considered the No Action Alternative. Under the No Action 
Alternative, no incidental take of coastal California gnatcatcher 
resulting from habitat modification would occur, and no long-term 
protection and management would be afforded to the species.

Our Preliminary Determination

    The Service has made a preliminary determination that approval of 
the HCP and issuance of an incidental take permit qualify for 
categorical exclusion under NEPA (42 U.S.C. 4321 et seq.), as provided 
by the Department of the Interior implementing regulations in part 46 
of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, 
and 46.215), and that the HCP qualifies as a low-effect plan as defined 
by the Habitat Conservation Planning Handbook (December 2016).
    We base our determination that a HCP qualifies as a low-effect plan 
on the following three criteria:
    (1) Implementation of the HCP would result in minor or negligible 
effects on federally listed, proposed, and candidate species and their 
habitats;
    (2) Implementation of the HCP would result in minor or negligible 
effects on other environmental values or resources; and
    (3) Impacts of the HCP, considered together with the impacts of 
other past, present, and reasonably foreseeable similarly situated 
projects, would not result, over time, in cumulative effects to 
environmental values or resources that would be considered significant.
    Based upon this preliminary determination, we do not intend to 
prepare further NEPA documentation. We will consider public comments in 
making the final determination on whether to prepare such additional 
documentation.

Next Steps

    We will evaluate the proposed HCP and comments we receive to 
determine whether the permit application meets the requirements and 
issuance criteria under section 10(a) of the ESA (16 U.S.C. 1531 et 
seq.). We will also evaluate whether issuance of a section 10(a)(1)(B) 
incidental take permit would comply with section 7 of the ESA by 
conducting an intra-Service consultation. We will use the results of 
this consultation, in combination with the above findings, in our final 
analysis to determine whether or not to issue a permit. If the 
requirements and issuance criteria under section 10(a) are met, we will 
issue the permit to the applicant for incidental take of gnatcatcher.

Public Comments

    If you wish to comment on the permit application, proposed HCP, and 
associated documents, you may submit comments by any of the methods 
noted in the ADDRESSES section.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you may 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

[[Page 56992]]

Authority

    We provide this notice under section 10 of the ESA (16 U.S.C. 1531 
et seq.) and NEPA regulations (40 CFR 1506.6).

Scott A. Sobiech,
Acting Field Supervisor, Carlsbad Fish and Wildlife Office, Carlsbad, 
California.
[FR Doc. 2017-25889 Filed 11-30-17; 8:45 am]
BILLING CODE 4333-15-P



                                                56990                        Federal Register / Vol. 82, No. 230 / Friday, December 1, 2017 / Notices

                                                Next Steps                                              permit for the threatened coastal                     maintenance of the Olinda Alpha
                                                   We will evaluate the ITP application,                California gnatcatcher pursuant to the                Landfill projects, in the City of Brea,
                                                associated documents, and public                        Endangered Species Act. We are                        Orange County, California. A
                                                comments in reaching a final decision                   requesting comments on the permit                     conservation program to avoid,
                                                on whether the application meets the                    application and on our preliminary                    minimize, and mitigate for project
                                                                                                        determination that the applicant’s                    activities would be implemented as
                                                requirements of section 10(a) of the ESA
                                                                                                        accompanying proposed habitat                         described in the applicant’s proposed
                                                (16 U.S.C. 1531 et seq.). The HCP and
                                                                                                        conservation plan qualifies as low                    habitat conservation plan (HCP).
                                                EA may change in response to public                                                                             We are requesting comments on the
                                                                                                        effect, eligible for a categorical
                                                comments. After completion of the EA,                                                                         permit application and on our
                                                                                                        exclusion under the National
                                                we will determine whether the                                                                                 preliminary determination that the
                                                                                                        Environmental Policy Act. The basis for
                                                proposed action warrants a finding of no                                                                      proposed HCP qualifies as a low-effect
                                                                                                        this determination is discussed in our
                                                significant impact or whether an                                                                              HCP, eligible for a categorical exclusion
                                                                                                        environmental action statement and
                                                environmental impact statement should                                                                         under the National Environmental
                                                                                                        associated low-effect screening form,
                                                be prepared. We will also evaluate                                                                            Policy Act of 1969, as amended (42
                                                                                                        which are also available for public
                                                whether the proposed ITP action would                                                                         U.S.C. 4321 et seq.; NEPA). The basis for
                                                                                                        review.
                                                comply with the requirements of section                                                                       this determination is discussed in our
                                                7 of the ESA by conducting a formal                     DATES: Written comments should be
                                                                                                        received on or before January 2, 2018.                environmental action statement (EAS)
                                                consultation on the proposed ITP                                                                              and associated low-effect screening
                                                action. We will use the results of this                 ADDRESSES: Submitting Comments: You
                                                                                                                                                              form, which are also available for public
                                                consultation, in combination with the                   may submit comments by one of the                     review.
                                                above findings, in our final analysis to                following methods:
                                                determine whether or not to issue an                       • U.S. Mail: Field Supervisor, Fish                Background
                                                ITP. If the requirements are met, we will               and Wildlife Service, Carlsbad Fish and                  Section 9 of the ESA and its
                                                issue the ITP to the applicant. We will                 Wildlife Office, 2177 Salk Avenue, Suite              implementing Federal regulations
                                                not make our final decision until after                 250, Carlsbad, CA 92008.                              prohibit the take of animal species listed
                                                the end of the 45-day public comment                       • Fax: Field Supervisor, 760–431–                  as endangered or threatened. ‘‘Take’’ is
                                                period, and we will fully consider all                  9624.                                                 defined under the ESA as to ‘‘harass,
                                                comments and information we receive                        • Email: fw8cfwocomments@fws.gov;                  harm, pursue, hunt, shoot, wound, kill,
                                                during the public comment period.                       please include ‘‘Olinda Alpha Landfill                trap, capture, or collect listed animal
                                                                                                        HCP’’ in the subject line.                            species, or to attempt to engage in such
                                                Authority                                                  Obtaining Documents: You may
                                                                                                                                                              conduct’’ (16 U.S.C. 1538). ‘‘Harm’’
                                                  We provide this notice in accordance                  obtain copies of the proposed HCP and
                                                                                                                                                              includes significant habitat modification
                                                with the requirements of section 10(c) of               EAS on the Carlsbad Fish and Wildlife’s
                                                                                                                                                              or degradation that actually kills or
                                                the ESA and its implementing                            HCP Web site at https://www.fws.gov/
                                                                                                                                                              injures listed wildlife by significantly
                                                regulations (50 CFR 17.22 and 17.32)                    carlsbad/HCPs/HCP_Docs.html. To
                                                                                                                                                              impairing essential behavioral patterns
                                                and NEPA and its implementing                           request copies of the application,                    such as breeding, feeding, or sheltering
                                                regulations (40 CFR 1506.6).                            proposed HCP, and EAS, contact the                    (50 CFR 17.3). However, under section
                                                                                                        Service immediately, by telephone at                  10(a) of the ESA, the Service may issue
                                                  Dated: September 14, 2017.                            760–431–9440 or by letter to the
                                                Theresa E. Rabot,                                                                                             permits to authorize incidental take of
                                                                                                        Carlsbad Fish and Wildlife Office (see                listed species. ‘‘Incidental taking’’ is
                                                Deputy Regional Director, Pacific Region, U.S.          ADDRESSES). Copies of the proposed
                                                Fish and Wildlife Service, Portland, Oregon.                                                                  defined by the ESA implementing
                                                                                                        HCP and EAS also are available for                    regulations as taking that is incidental
                                                [FR Doc. 2017–25875 Filed 11–30–17; 8:45 am]            public inspection during regular                      to, and not the purpose of, carrying out
                                                BILLING CODE 4333–15–P                                  business hours at the Carlsbad Fish and               an otherwise lawful activity (50 CFR
                                                                                                        Wildlife Office (see ADDRESSES).                      17.3). Regulations governing incidental
                                                                                                        FOR FURTHER INFORMATION CONTACT: Ms.                  take permits for endangered and
                                                DEPARTMENT OF THE INTERIOR                              Karen Goebel, Assistant Field                         threatened species, respectively, are
                                                                                                        Supervisor, Carlsbad Fish and Wildlife                found in the Code of Federal
                                                Fish and Wildlife Service
                                                                                                        Office (see ADDRESSES); telephone: 760–               Regulations at 50 CFR 17.22 and 50 CFR
                                                [FWS–R8–ES–2017–N107;                                   431–9440. If you use a                                17.32.
                                                FXES11140800000–178–FF08ECAR00]                         telecommunications device for the deaf
                                                                                                        (TDD), please call the Federal Relay                  Applicant’s Proposed Project
                                                Endangered and Threatened Wildlife                      Service (FRS) at 800–877–8339.                          The applicant requests a 5-year permit
                                                and Plants; Incidental Take Permit
                                                                                                        SUPPLEMENTARY INFORMATION: We, the                    under section 10(a)(1)(B) of the ESA. If
                                                Application; Proposed Low-Effect
                                                                                                        U.S. Fish and Wildlife Service (Service),             we approve the permit, the applicant
                                                Habitat Conservation Plan for the
                                                                                                        have received an application from                     anticipates taking gnatcatcher as a result
                                                Coastal California Gnatcatcher and
                                                                                                        Orange County Waste & Recycling                       of permanent impacts to 5.78 acres (ac)
                                                Associated Documents; Brea,
                                                                                                        (applicant) for a 5-year incidental take              of coastal sage scrub habitat that the
                                                California
                                                                                                        permit for one covered species pursuant               species uses for breeding, feeding, and
                                                AGENCY:   Fish and Wildlife Service,                    to section 10(a)(1)(B) of the Endangered              sheltering, as well as 2.85 ac of
                                                                                                        Species Act of 1973, as amended (16                   nonnative grassland habitat that may
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                                                Interior.
                                                ACTION: Notice of availability; request                 U.S.C. 1531 et seq.; ESA). The                        support gnatcatcher foraging and/or
                                                for comments.                                           application addresses the potential                   dispersal. The take would be incidental
                                                                                                        ‘‘take’’ of the threatened coastal                    to the applicant’s activities associated
                                                SUMMARY:  We, the U.S. Fish and                         California gnatcatcher (Polioptila                    with the construction of the Olinda
                                                Wildlife Service, have received an                      californica californica; gnatcatcher) in              Alpha Landfill projects in the City of
                                                application from Orange County Waste                    the course of activities associated with              Brea, California, and includes
                                                & Recycling for a 5-year incidental take                the construction, operation, and                      restoration and in-perpetuity


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                                                                             Federal Register / Vol. 82, No. 230 / Friday, December 1, 2017 / Notices                                           56991

                                                preservation and management of 11.56                    other applicable regulations that protect               We base our determination that a HCP
                                                ac of gnatcatcher habitat.                              nesting birds. If an active bird nest is              qualifies as a low-effect plan on the
                                                   The Olinda Alpha Landfill projects                   observed, a 300-foot buffer must be                   following three criteria:
                                                propose to construct a desilting basin,                 established, within which no project                    (1) Implementation of the HCP would
                                                perform a partial cap closure, install                  activities will occur until the nest is no            result in minor or negligible effects on
                                                screening trees for the Brea Power Plant,               longer active. A reduced buffer may be                federally listed, proposed, and
                                                and construct a winch concrete pad on                   established by the monitoring biologist               candidate species and their habitats;
                                                12.56 ac located on the 565-ac Olinda                   if it is deemed appropriate and will not
                                                Alpha Landfill property in the City of                  result in the alteration of nesting                     (2) Implementation of the HCP would
                                                Brea. The project will permanently                      behaviors. To fulfill this measure, all               result in minor or negligible effects on
                                                impact 5.78 ac of coastal California                    project activities that are deemed                    other environmental values or
                                                gnatcatcher-occupied coastal sage scrub                 necessary to occur during the bird                    resources; and
                                                habitat as a result of clearing and                     nesting season will be monitored by the                 (3) Impacts of the HCP, considered
                                                grading activities.                                     qualified biologist, as well as any active            together with the impacts of other past,
                                                   To minimize take of coastal California               nest detected in the vicinity of project              present, and reasonably foreseeable
                                                gnatcatcher by the Olinda Alpha                         activities.                                           similarly situated projects, would not
                                                Landfill projects and to offset impacts to                 • Project sites will be kept as clean as           result, over time, in cumulative effects
                                                its habitat, the applicant proposes to                  possible to avoid attracting predators.               to environmental values or resources
                                                mitigate for permanent impacts to 5.78                  All food-related trash will be placed in              that would be considered significant.
                                                ac of occupied gnatcatcher coastal sage                 sealed bins or removed from the site
                                                scrub habitat through the restoration,                  regularly.                                              Based upon this preliminary
                                                conservation, and in-perpetuity                            • Staging areas for each project will              determination, we do not intend to
                                                management of 11.56 ac of coastal sage                  be limited to developed or previously                 prepare further NEPA documentation.
                                                scrub suitable for the gnatcatcher by a                 disturbed areas.                                      We will consider public comments in
                                                Service-approved restoration contractor                                                                       making the final determination on
                                                                                                        Proposed Action and Alternatives                      whether to prepare such additional
                                                and the Puente Hills Habitat
                                                Preservation Authority. The applicant’s                    The Proposed Action consists of the                documentation.
                                                proposed HCP also contains the                          issuance of an incidental take permit
                                                                                                                                                              Next Steps
                                                following proposed measures to                          and implementation of the proposed
                                                minimize the effects of construction                    HCP, which includes measures to avoid,                  We will evaluate the proposed HCP
                                                activities on the gnatcatcher:                          minimize, and mitigate impacts to the                 and comments we receive to determine
                                                   • Prior to the initiation of work                    gnatcatcher. If we approve the permit,                whether the permit application meets
                                                activities on the project sites, grading                take of gnatcatcher would be authorized               the requirements and issuance criteria
                                                limits will be clearly delineated with                  for the applicant’s activities associated             under section 10(a) of the ESA (16
                                                flagging and/or temporary fencing and                   with the construction of the Olinda                   U.S.C. 1531 et seq.). We will also
                                                silt fencing, as necessary, to help guide               Alpha Landfill projects. In the proposed              evaluate whether issuance of a section
                                                work activities and avoid impacts to                    HCP, the applicant considers                          10(a)(1)(B) incidental take permit would
                                                areas beyond the project boundaries.                    alternatives to the taking of gnatcatcher             comply with section 7 of the ESA by
                                                   • Prior to the initiation of work                    under the proposed action. Alternative                conducting an intra-Service
                                                activities on the project sites, a Service-             development configurations for each                   consultation. We will use the results of
                                                approved biologist will conduct a brief                 project component were considered;                    this consultation, in combination with
                                                training session for all project personnel              however, because of site-specific                     the above findings, in our final analysis
                                                regarding the conservation measures                     regulatory requirements and the                       to determine whether or not to issue a
                                                and regulations described herein, as                    topography of the site, further avoidance             permit. If the requirements and issuance
                                                well as general information and                         of impacts to coastal California                      criteria under section 10(a) are met, we
                                                methods that will help avoid and                        gnatcatcher habitat could not be                      will issue the permit to the applicant for
                                                minimize disturbance to the gnatcatcher                 achieved. The applicant also considered               incidental take of gnatcatcher.
                                                in the vicinity of project activities.                  the No Action Alternative. Under the No
                                                   • A Service-approved biologist will                  Action Alternative, no incidental take of             Public Comments
                                                monitor grading of the site daily (or as                coastal California gnatcatcher resulting
                                                determined necessary by the monitoring                                                                          If you wish to comment on the permit
                                                                                                        from habitat modification would occur,
                                                biologist) and provide a letter                                                                               application, proposed HCP, and
                                                                                                        and no long-term protection and
                                                summarizing compliance with this HCP                                                                          associated documents, you may submit
                                                                                                        management would be afforded to the
                                                and the construction limits of the                                                                            comments by any of the methods noted
                                                                                                        species.
                                                proposed projects to the Service within                                                                       in the ADDRESSES section.
                                                1 month of completion of grading.                       Our Preliminary Determination
                                                                                                                                                              Public Availability of Comments
                                                   • Vegetation clearing will take place                  The Service has made a preliminary
                                                outside of the bird nesting season                      determination that approval of the HCP                  Before including your address, phone
                                                (February 15 through August 31) to the                  and issuance of an incidental take                    number, email address, or other
                                                fullest extent practicable. Clearing may                permit qualify for categorical exclusion              personal identifying information in your
                                                only occur during this period once a                    under NEPA (42 U.S.C. 4321 et seq.), as               comment, you should be aware that
                                                Service-approved biologist has                          provided by the Department of the                     your entire comment—including your
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                                                conducted at least three surveys of the                 Interior implementing regulations in                  personal identifying information—may
                                                impact areas for nesting birds, with each               part 46 of title 43 of the Code of Federal            be made publicly available at any time.
                                                survey taking place 1 week apart, and                   Regulations (43 CFR 46.205, 46.210, and               While you may ask us in your comment
                                                the last survey conducted within 24                     46.215), and that the HCP qualifies as a              to withhold your personal identifying
                                                hours prior to clearing. The qualified                  low-effect plan as defined by the Habitat             information from public review, we
                                                biologist will document compliance                      Conservation Planning Handbook                        cannot guarantee that we will be able to
                                                with the Migratory Bird Treaty Act and                  (December 2016).                                      do so.


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                                                56992                        Federal Register / Vol. 82, No. 230 / Friday, December 1, 2017 / Notices

                                                Authority                                               handle controlled substances in the                   inconvenience, trauma and the lengthy
                                                  We provide this notice under section                  State of Maryland.’’ GX 1, at 1 (citing 21            process of reapplication of this same
                                                10 of the ESA (16 U.S.C. 1531 et seq.)                  U.S.C. 802(21), 823(f)(1), and 824(a)(3)).            license.’’ Id.
                                                                                                           The Show Cause Order notified
                                                and NEPA regulations (40 CFR 1506.6).                                                                            By Order dated August 2, 2017, the
                                                                                                        Respondent of his right to request a
                                                                                                                                                              Chief Administrative Law Judge
                                                Scott A. Sobiech,                                       hearing on the allegations or to submit
                                                                                                        a written statement while waiving his                 terminated the proceedings based on
                                                Acting Field Supervisor, Carlsbad Fish and
                                                Wildlife Office, Carlsbad, California.                  right to a hearing, the procedures for                Respondent’s ‘‘Order to Show Cause
                                                                                                        electing each option, and the                         Waiver of Hearing and Statement on the
                                                [FR Doc. 2017–25889 Filed 11–30–17; 8:45 am]
                                                                                                        consequences for failing to elect either              Matter.’’ GX 8, at 1 (Order Terminating
                                                BILLING CODE 4333–15–P
                                                                                                        option. GX 1, at 2 (citing 21 CFR                     Proceedings).
                                                                                                        1301.43). The Show Cause Order also                      On August 2, 2017, the Government
                                                DEPARTMENT OF JUSTICE                                   notified Respondent of the opportunity                submitted a Request for Final Agency
                                                                                                        to submit a corrective action plan. GX                Action and an evidentiary record to
                                                Drug Enforcement Administration                         1, at 2 (citing 21 U.S.C. 824(c)(2)(C)).              support the Show Cause Order’s
                                                                                                           By letter dated July 17, 2017                      allegation.
                                                Kofi E. Shaw-Taylor, M.D. Decision and                  addressed to the Office of the [DEA]
                                                Order                                                   Administrative Law Judges,                               I find that the Government’s service of
                                                                                                        Respondent, by his counsel, requested a               the Show Cause Order on Respondent
                                                   On June 12, 2017, the Assistant                      hearing. GX 5, at 1. The letter admitted              was legally sufficient. I find that, by
                                                Administrator, Diversion Control                        that the Maryland State Board of                      letter from his counsel dated July 17,
                                                Division, Drug Enforcement                              Physicians issued an Order of Summary                 2017, Respondent requested a hearing. I
                                                Administration (hereinafter, DEA or                     Suspension of Respondent’s license to                 find that, by submission of his counsel
                                                Government), issued an Order to Show                    practice medicine on May 9, 2017. Id.                 dated July 28, 2017, Respondent sought
                                                Cause to Kofi E. Shaw-Taylor, M.D.                      According to the letter, Respondent was               to file an ‘‘Order to Show Cause Waiver
                                                (hereinafter, Respondent) of Baltimore,                 challenging that Order ‘‘on grounds of                of Hearing and Statement on the
                                                Maryland. GX 1. The Show Cause Order                    abuse of and lack of due process.’’ Id.               Matter.’’ Respondent was entitled to
                                                proposed the revocation of                                 On July 24, 2017, the Chief                        waive his right to a hearing and to fail
                                                Respondent’s Certificate of Registration                Administrative Law Judge, John J.                     to follow up on his request for a hearing.
                                                on the ground that Respondent does                      Mulrooney, II, ordered the Government                 See 21 CFR 1301.43(d). DEA
                                                ‘‘not have authority to handle controlled               to file proof of service and evidence in              regulations, however, limit the time for
                                                substances in the State of Maryland,’’                  support of its allegation that Respondent             Respondent to exercise his right to
                                                the State in which he is registered. GX                 lacked State authority to practice                    submit a written statement of position to
                                                1, at 1 (citing 21 U.S.C. 823(f) and                    medicine. GX 6, at 1 (Order Directing                 ‘‘the period permitted for filing a
                                                § 824(a)(3)).                                           the Filing of Proof of Service and                    request for a hearing or a notice of
                                                   As to the Agency’s jurisdiction, the                 Government Evidence of Lack of State                  appearance,’’ absent a showing of good
                                                Show Cause Order alleged that                           Authority Allegation and Briefing
                                                Respondent holds DEA Certificate of                                                                           cause. 21 CFR 1301.43(c). Respondent’s
                                                                                                        Schedule). The Order also established a               ‘‘Statement on the Matter’’ was not filed
                                                Registration No. AS2145476 which                        briefing schedule ‘‘if the Government
                                                authorizes him to dispense controlled                                                                         within the period specified in the
                                                                                                        files a motion based on timeliness of the
                                                substances in schedules II through V as                                                                       regulation, and Respondent did not
                                                                                                        hearing request and/or a motion for
                                                a practitioner at the registered address                                                                      make a showing of good cause to excuse
                                                                                                        summary disposition based on its
                                                of 4419 Falls Road, Suite C, Baltimore,                                                                       the untimeliness. I decline, therefore, to
                                                                                                        allegation that the Respondent lacks
                                                Maryland 21211. GX 1, at 1. See also GX                 state authority to handle controlled                  consider any factual assertions or
                                                2 (Controlled Substance Registration                    substances.’’ Id. at 1–2.                             arguments that Respondent raised in the
                                                Certificate) (including ‘‘Westside                         By submission dated July 28, 2017,                 ‘‘Statement on the Matter.’’ 1 I issue this
                                                Medical Group’’). The Show Cause                        Respondent, by his counsel, submitted                 Decision and Order based on the record
                                                Order alleged that this registration                    an ‘‘Order to Show Cause Waiver of                    submitted by the Government and on
                                                expires on February 29, 2020. GX 1, at                  Hearing and Statement on the Matter.’’                Respondent’s request for a hearing. 21
                                                1. See also GX 2.                                       GX 7. According to that submission,                   CFR 1301.43(e).
                                                   As the substantive ground for the                    Respondent’s counsel stated that                      Findings of Fact
                                                proceeding, the Show Cause Order                        Respondent was served with the Show
                                                alleged that Respondent is ‘‘without                    Cause Order on June 20, 2017. GX 7, at                Respondent’s DEA Registration
                                                authority to handle controlled                          1. He also stated that Respondent was
                                                substances in Maryland, the state in                    waiving a hearing on the Show Cause                     Respondent currently holds DEA
                                                which . . . [he is] registered with the                 Order. Id. Further, the submission                    practitioner registration AS2145476
                                                DEA.’’ GX 1, at 1. It further alleged that,             admitted that the Maryland State Board                authorizing him to dispense controlled
                                                on May 9, 2017, Respondent’s                            of Physicians issued an Order of                      substances in schedules II through V at
                                                ‘‘authority to prescribe and administer                 Summary Suspension of Respondent’s                    the address of Westside Medical Group,
                                                controlled substances in the State of                   license to practice medicine,                         4419 Falls Road, Suite C, Baltimore,
                                                Maryland was suspended.’’ GX 1, at 1.                   characterizing the Order as being ‘‘based             Maryland 21211. GX 1, at 1; GX 2. This
                                                See also GX 3 (Maryland State Board of                  on alleged but unproven charges.’’ Id. It             registration expires on February 29,
sradovich on DSK3GMQ082PROD with NOTICES




                                                Physicians Order of Summary                             expressed ‘‘our fervent belief that the               2020. Id.
                                                Suspension of License to Practice                       Respondent shall prevail in this matter
                                                Medicine, hereinafter Order of                          and his Medical license reinstated.’’ Id.               1 Respondent’s ‘‘Statement on the Matter’’ did not

                                                Summary Suspension). The Show Cause                     It asked that ‘‘the DEA suspend the                   claim that Respondent’s medical license had been
                                                                                                                                                              reinstated. To the contrary, it reiterated
                                                Order alleged that ‘‘DEA must revoke                    revocation’’ of Respondent’s registration             Respondent’s admission that the Maryland State
                                                . . . [his] DEA . . . [registration] based              ‘‘pending the restoration of the Medical              Board of Physicians issued an Order of Summary
                                                upon . . . [his] lack of authority to                   license to save the Respondent the                    Suspension of Respondent’s medical license.



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Document Created: 2018-10-25 10:45:11
Document Modified: 2018-10-25 10:45:11
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of availability; request for comments.
DatesWritten comments should be received on or before January 2, 2018.
ContactMs. Karen Goebel, Assistant Field
FR Citation82 FR 56990 

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