Endangered and Threatened Wildlife and Plants; Revised Implementing Regulations for Requirements To Publish Textual Descriptions of Boundaries of Critical Habitat, 28405-28413 [2011-11920]
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BILLING CODE 4910–EX–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 17 and 424
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 226 and 424
[Docket No. FWS–R9–ES–2010–0073;
Docket No. 110131071–1153–01; MO–
92210–0–0009–B4]
RIN 1018–AX44; RIN 0648–BA77
Endangered and Threatened Wildlife
and Plants; Revised Implementing
Regulations for Requirements To
Publish Textual Descriptions of
Boundaries of Critical Habitat
United States Fish and Wildlife
Service (FWS), Interior; National Marine
Fisheries Service (NMFS), National
Oceanic and Atmospheric
Administration (NOAA), Commerce.
ACTION: Proposed rule.
AGENCY:
We (FWS and NMFS; also
collectively referred to as the Services)
propose to revise regulations related to
publishing textual descriptions of
proposed and final critical habitat
boundaries in the Federal Register for
codification in the Code of Federal
Regulations. In the interest of making
the process of designating critical
habitat more user-friendly for affected
parties, the public as a whole, and the
Services, as well as more efficient and
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cost effective, we are proposing to
maintain the publication of maps of
proposed and final critical habitat
designations, but make optional the
inclusion of any textual description of
the boundaries of the designation in the
Federal Register for codification in the
Code of Federal Regulations. The
boundaries of critical habitat as mapped
or otherwise described in the Regulation
Promulgation section of a rulemaking
that is published in the Federal Register
will be the official delineation of the
designation, and we will continue to
provide the public with additional tools,
such as interactive maps and additional
descriptions, on the Services’ Internet
sites, Regulations.gov, and at local field
offices that will represent the Service’s
interpretation of which areas are
covered by the designation. We are
undertaking this effort as part of the
agencies’ response to Executive Order
13563 (Jan. 18, 2011) directing agencies
to review their existing regulations and,
inter alia, to modify or streamline them
in accordance with what has been
learned.
DATES: We will accept comments from
all interested parties until July 18, 2011.
Please note that if you are using the
Federal eRulemaking Portal (see
ADDRESSES section below), the deadline
for submitting an electronic comment is
11:59 p.m. Eastern Standard Time on
this date.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. In the box that
reads ‘‘Enter Keyword or ID,’’ enter the
Docket number for this proposed rule,
which is FWS–R9–ES–2010–0073.
Check the box that reads ‘‘Open for
Comment/Submission,’’ and then click
the Search button. You should then see
an icon that reads ‘‘Submit a Comment.’’
Please ensure that you have found the
correct rulemaking before submitting
your comment.
• U.S. mail or hand delivery: Public
Comments Processing, Attn: [Docket No.
FWS–R9–ES–2010–0073]; Division of
Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N.
Fairfax Drive, Suite 222; Arlington, VA
22203.
We will post all comments on
https://www.regulations.gov. This
generally means that we will post any
personal information you provide us
(see the Request for Information section
below for more information).
FOR FURTHER INFORMATION CONTACT:
Nicole Alt, U.S. Fish and Wildlife
Service, Division of Conservation and
Classification, 4401 N. Fairfax Drive,
Suite 420; Arlington, VA 22203,
PO 00000
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telephone 703/358–2171; facsimile 703/
358–1735 or Marta Nammack, National
Marine Fisheries Service, Office of
Protected Resources, 1315 East-West
Highway, Silver Spring, MD 20910,
telephone 301–713–1401; facsimile
301–713–0376. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Request for Information
We intend that any final action
resulting from this proposal will be as
accurate and as effective as possible.
Therefore, we request comments or
suggestions from governmental
agencies, Native American tribes, the
scientific community, industry, or any
other interested parties. We seek
information on the following:
1. What is the best way for us to share
information about critical habitat
designation boundaries with the public?
2. Could we improve the usefulness of
the maps in the Federal Register and
Code of Federal Regulations (CFR)? If so
how?
3. Does publication of the textual
descriptions of boundaries of critical
habitat in the Federal Register and CFR
provide any practical value?
4. What is the usefulness of the
critical-habitat-boundary descriptions in
latitude–longitude, Public Land Survey
descriptions, or Universal Transverse
Mercator (UTM) coordinates?
5. Besides the Internet, what other
methods should we use to convey
information regarding critical habitat
boundaries?
6. Will the changes proposed make
our critical habitat designations easier to
understand? Are there other changes
that are needed?
You may submit your information
concerning this proposal by one of the
methods listed in the ADDRESSES
section. If you submit information via
https://www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the Web site. If you submit a
hardcopy that includes personal
identifying information, you may
request at the top of your document that
we withhold this personal identifying
information from public review.
However, we cannot guarantee that we
will be able to do so. We will post all
hardcopy comments on https://
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 https://www.regulations.gov or by
appointment during normal business
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hours at the U.S. Fish and Wildlife
Service, Endangered Species Program,
4401 N. Fairfax Drive, Room 420,
Arlington, VA 22203; telephone 703–
358–2171 or National Marine Fisheries
Service, Office of Protected Resources,
1315 East-West Highway, Silver Spring,
MD 20910; telephone 301–713–1401
(see FOR FURTHER INFORMATION CONTACT).
Background
Before a plant or animal species can
receive the protection provided by the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) (Act),
it must first be added to the Federal lists
of threatened and endangered wildlife
and plants. The List of Endangered and
Threatened Wildlife (found in title 50 of
the Code of Federal Regulations (CFR)
in § 17.11) and the List of Endangered
and Threatened Plants (found in 50 CFR
17.12) contain the names of all
organisms that have been determined by
the FWS and NMFS (jointly referred to
as the Services) to qualify as
‘‘endangered species’’ or ‘‘threatened
species.’’ When a species is listed as
endangered or threatened under the Act,
the Services designate specific areas as
‘‘critical habitat.’’
Under section 4(b)(5)(A) of the Act, as
amended (16 U.S.C. 1531 et seq.), and
the implementing regulations contained
within 50 CFR sections 17.94(b),
226.101, 424.12(c), 424. 16(b) and
(c)(1)(ii), and 424.18(a), the Services are
required, when designating or revising
critical habitat for species listed under
the Act, to publish the complete text of
the regulation, maps, and descriptions
of such habitat in the Regulation
Promulgation section of a rulemaking
published in the Federal Register. We
have found over time that textual
descriptions of critical habitat
boundaries are often difficult to
interpret and understand, and do not
provide clarity regarding the areas being
designated. Publishing these textual
descriptions is also inefficient and
costly. Below we discuss our current
requirements and their limitations, and
proposed regulation changes to address
these issues.
NMFS’ current practice is to publish
maps in the Federal Register along with
a textual description of the boundaries
of the areas being designated as critical
habitat in both their proposed and final
rules. FWS publishes only the maps in
the proposed critical habitat rule and
then publishes the maps along with a
textual description of the boundaries in
the final critical habitat rule. We
previously described the boundaries
following a variety of methods
including Public Land Survey System
designations (which specify township,
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range, and section; sometimes referred
to as the ‘‘rectangular survey system’’)
and metes-and-bounds (a system of
describing a parcel of land using the
physical features of local geography,
along with directions and distances, to
define the boundaries). However, as GIS
and specific geographic-based data have
become more available, we have been
using predominantly Universal
Transverse Mercator (UTM) coordinate
system (a grid-based system employing
a series of 60 zones to specify locations
on the surface of the Earth) and
latitude–longitude. We adopted these
practices because our current
regulations at 50 CFR 424.12(c) state
‘‘Each critical habitat will be defined by
specific limits using reference points
and lines as found on standard
topographic maps of the area.’’
Unfortunately, these descriptions are
often difficult to interpret and
understand, and do not provide clarity
regarding which areas are being
designated as critical habitat. Therefore,
in addition to the maps and textual
descriptions published in the Federal
Register, over the last several years we
have provided the public with
interactive maps and additional
descriptions, on the Services’ Internet
sites, Regulations.gov, and at local field
offices. References to these Internet sites
are cited throughout the proposed
(NMFS only) and final (NMFS and
FWS) rules and in our outreach
materials for the specific action. In
addition, we have provided maps and
GIS coverages (data layers) to affected
Federal agencies, States, counties,
jurisdictions, and interested parties for
use in their computer databases and to
make available to their constituencies.
The public’s reliance on these latter
materials in lieu of the textual
descriptions published in the Federal
Register and codified in the Code of
Federal Regulations reinforces our view
that the textual descriptions are of
limited utility in informing the public as
to which areas are designated critical
habitat.
Given that the textual descriptions are
of limited utility, we are proposing to
revise the implementing regulations
contained within 50 CFR 17.94(b),
226.101, 424.12(c), 424.16(b) and
(c)(1)(ii), and 424.18(a), to eliminate the
requirement to publish textual
descriptions of proposed (NMFS only)
and final (NMFS and FWS) critical
habitat boundaries in the Federal
Register and reprinting in the CFR, and
instead provide that the map(s), as
clarified or refined by any textual
language within the rule, constitutes the
definition of the boundaries of a Critical
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Habitat. Each Critical Habitat area will
be shown on a map, with more detailed
information discussed in the preamble
of the rulemaking documents published
in the Federal Register. The maps and
brief textual descriptions that we plan to
publish in the Federal Register after we
finalize this proposed rule will be
sufficient to inform the public as to
where a particular critical habitat
designation is located, and thus
sufficient to provide notice to the public
and give them an opportunity to
comment. We will provide further
information online on our web sites, but
we do not think it is necessary for the
public to have UTM or latitude–
longitude coordinates in order to know
where critical habitat is located. We
believe these changes will be for the
public good and make the process more
user-friendly, without compromising
the public involvement or the overall
process.
Eliminating the need to publish
detailed textual descriptions in the
Federal Register and annually in the
CFR will also result in significant
financial savings, thereby saving Federal
resources. In FWS’s final designations,
UTM coordinate pairs or other textual
descriptions of the boundaries of areas
often account for more than half of the
document, resulting in significant
Federal Register publication costs. For
example, FWS spent approximately
$764,523 in fiscal year 2008, $539,639
in fiscal year 2009, and $662,952 in
fiscal year 2010 to publish critical
habitat designations in the Federal
Register, for a total of approximately
$1,967,114 for the three fiscal years
combined. If we estimate that 50 percent
of those costs are spent on the
publication of the textual descriptions
of the boundaries, then publication of
those descriptions will cost $983,557 for
the three fiscal years, or approximately
$327,852 per fiscal year.
In addition, the regulation portion of
the rule, including the maps and textual
descriptions of the boundaries, is
reprinted annually in the CFR, resulting
in a further expenditure of taxpayer
resources. FWS has spent approximately
$80,000 in fiscal year 2008, $92,400 in
fiscal year 2009, and $83,160 in fiscal
year 2010 to reprint critical habitat
designations in the CFR. Based on a
review of the current volume (i.e.,
number of pages) of critical habitat
designations represented in the CFR, we
estimate that the textual descriptions
account for approximately 75 percent of
the volume and therefore 75 percent of
the printing costs. Using the estimated
75 percent as the cost of reprinting the
textual descriptions of the boundaries,
publication of those descriptions will
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cost $191,670 for the three fiscal years,
or approximately $63,890 per fiscal
year. Adding this to the Federal
Register costs discussed above, we
estimate that the annual cost for
publishing textual descriptions of
boundaries in the Federal Register and
then reprinting them in the CFR will be
nearly $391,742 for FWS alone. Thus,
eliminating the need to publish latitudelongitude coordinates, UTM coordinate
pairs or other detailed textual
descriptions in the Federal Register and
CFR would result in a significant cost
savings to the Services and the public as
a whole.
Finally, relying on maps and brief
textual descriptions to identify areas
designated as critical habitat is
consistent with the ESA. Section
4(a)(3)(A) of the Act only requires that
critical habitat be designated ‘‘by
regulation.’’ Moreover, section 4(b)(5)(A)
of the Act indicates that the Secretary
shall ‘‘not less than 90 days before the
effective date of the regulation—(i)
publish a general notice and the
complete text of the proposed regulation
in the Federal Register, and (ii) give
actual notice of the proposed regulation
(including the complete text of the
regulation).’’ In the context of critical
habitat designation, we interpret the
mandate to publish the ‘‘complete text’’
of the proposed regulation as requiring
that the regulation provide a sufficiently
detailed description of the area included
within the proposed designation, in the
form of maps and any accompanying
text, so as to provide all interested
persons with a meaningful opportunity
to comment. Due to the technical
limitations on what can be published in
the Federal Register (i.e., map size and
detail), we anticipate that information
we make available to the public through
our outreach efforts, Internet sites, and
at local Services offices will also assist
the Services in addressing day-to-day
questions about the designation. To the
extent that questions arise from the
public as to the precise coverage of a
proposed or final designation (e.g., due
to the scale at which the published
maps are drawn), additional materials
will be available on the Web site or at
Service offices to provide the needed
clarity.
In this regard, we note that the
Services never maintained that
requiring detailed textual descriptions
was legally necessary. Instead, the first
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critical habitat regulations required only
that critical habitat designations be
‘‘accompanied by maps and/or
geographical descriptions.’’ 43 FR 870,
876 (Jan. 4, 1978). Although the Services
subsequently added the requirement
that critical habitat designations include
textual descriptions describing the
specific boundary limits of the critical
habitat, there is nothing in the preamble
to that rule indicating that the Services
did so because the ESA required it.
Rather, it was in response to several
commenters, who had opined that the
proposed rule was not sufficiently clear
in setting out the method by which
critical habitat boundaries would be
described. 45 FR 13009, 13015 (Feb. 27,
1980). With this change, the regulations
would continue to be explicit as to the
method by which critical habitat
boundaries would be described; it
would just do so by means that did not
require detailed textual descriptions.
Regulation Changes
The following table shows the current
and proposed CFR text. After Table 1,
we provide explanations of why we are
proposing to revise the text as indicated.
TABLE 1—CURRENT AND PROPOSED REGULATORY TEXT SETTING FORTH THE DESIGNATION OF CRITICAL HABITAT FOR
SPECIES LISTED UNDER THE ENDANGERED SPECIES ACT
[16 U.S.C. 1531 et seq.]
Current CFR text
Proposed CFR text
17.94(b) ...................
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Title 50 CFR section
and paragraph
(b) The map provided by the Director does not, unless otherwise indicated, constitute the definition of the boundaries of a Critical Habitat. Such maps are provided for
reference purposes to guide Federal agencies and other
interested parties in locating the general boundaries of
the Critical Habitat. Critical Habitats are described by reference to surveyable landmarks found on standard topographic maps of the area and to the States and county(ies) within which all or part of the Critical Habitat is located. Unless otherwise indicated within the Critical Habitat description, the State and county(ies) names are provided for informational purposes only.
(b)(1) For Critical Habitat designations published and effective after [EFFECTIVE DATE OF FINAL RULE], the map
provided by the Secretary of the Interior, as clarified or
refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. Each Critical Habitat area will be shown on a map,
with more detailed information discussed in the preamble
of the rulemaking documents published in the Federal
Register and made available from the lead office of the
Service responsible for such designation. Each area will
be referenced to the State(s), county(ies), or other local
governmental units within which all or part of the Critical
Habitat is located. General descriptions of the location
and boundaries of each area may be provided to clarify
or refine what is included within the boundaries depicted
on the map, or to explain the exclusion of sites within the
mapped area. Unless otherwise indicated within the Critical Habitat descriptions, the names of the State(s) and
county(ies) are provided for informational purposes only
and do not constitute the boundaries of the area.
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Federal Register / Vol. 76, No. 95 / Tuesday, May 17, 2011 / Proposed Rules
TABLE 1—CURRENT AND PROPOSED REGULATORY TEXT SETTING FORTH THE DESIGNATION OF CRITICAL HABITAT FOR
SPECIES LISTED UNDER THE ENDANGERED SPECIES ACT—Continued
[16 U.S.C. 1531 et seq.]
Title 50 CFR section
and paragraph
Current CFR text
Proposed CFR text
226.101 (last sentence).
Maps and charts identifying designated critical habitat that
are not provided in this section may be obtained upon request to the Office of Protected Resources (see
§ 222.102, definition of ‘‘Office of Protected Resources’’).
(b)(2) For Critical Habitat designations published and effective on or prior to [EFFECTIVE DATE OF FINAL RULE],
the map provided by the Secretary of the Interior is for
reference purposes to guide Federal Agencies and other
interested parties in locating the general boundaries of
the Critical Habitat. The map does not, unless otherwise
indicated, constitute the definition of the boundaries of a
Critical Habitat. Critical Habitats are described by reference to surveyable landmarks found on standard topographic maps of the area and to the States and county(ies) within which all or part of the critical habitat is located. Unless otherwise indicated within the Critical Habitat description, the State and county(ies) names are provided for informational purposes only.
Additional information regarding designated critical habitats
that are not provided in this part may be obtained upon
request to the Office of Protected Resources (see
§ 222.102, definition of ‘‘Office of Protected Resources’’).
424.12(c) .................
(c) Each critical habitat will be defined by specific limits
using reference points and lines as found on standard
topographic maps of the area. Each area will be referenced to the State(s), county(ies), or other local governmental units within which all or part of the critical
habitat is located. Unless otherwise indicated within the
critical habitat descriptions, the names of the State(s)
and county(ies) are provided for information only and do
not constitute the boundaries of the area. Ephemeral reference points (e.g., trees, sand bars) shall not be used in
defining critical habitat.
424.16(b) .................
(b) Contents. A notice of a proposed rule to carry out one
of the actions described in § 424.10 shall contain the
complete text of the proposed rule, a summary of the
data on which the proposal is based (including, as appropriate, citation of pertinent information sources), and shall
show the relationship of such data to the rule proposed.
If such a rule designates or revises critical habitat, such
summary shall, to the maximum extent practicable, include a brief description and evaluation of those activities
(whether public or private) that, in the opinion of the Secretary, if undertaken, may adversely modify such habitat,
or may be affected by such designation. Any proposed
rule to designate or revise critical habitat shall contain a
map of such habitat. Any such notice proposing the listing, delisting, or reclassification of a species or the designation or revision of critical habitat shall also include a
summary of factors affecting the species and/or critical
habitat.
(ii) Give actual notice of the proposed regulation (including
the complete text of the regulation) to the State agency
in each State in which the species is believed to occur,
and to each county or equivalent jurisdiction therein in
which the species is believed to occur, and invite the
comment of each such agency and jurisdiction;
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424.16(c)(1)(ii) .........
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(c) Each critical habitat area will be shown on a map, with
more detailed information discussed in the preamble of
the rulemaking documents published in the Federal Register and made available from the lead office of the
Service responsible for such designation. Textual information may be included for purposes of clarifying or refining the location and boundaries of each area or to explain the exclusion of sites (e.g., paved roads, buildings)
within the mapped area. Each area will be referenced to
the State(s), county(ies), or other local governmental
units within which all or part of the critical habitat is located. Unless otherwise indicated within the critical habitat descriptions, the names of the State(s) and county(ies) are provided for informational purposes only and
do not constitute the boundaries of the area. Ephemeral
reference points (e.g., trees, sand bars) shall not be
used in any textual description used to clarify or refine
the boundaries of critical habitat.
(b) Contents. A notice of a proposed rule to carry out one
of the actions described in § 424.10 will contain a detailed description of the proposed action and a summary
of the data on which the proposal is based (including, as
appropriate, citation of pertinent information sources) and
will show the relationship of such data to the rule proposed. If such a rule designates or revises critical habitat, such summary will, to the maximum extent practicable, include a brief description and evaluation of
those activities (whether public or private) that, in the
opinion of the Secretary, if undertaken, may adversely
modify such habitat, or may be affected by such designation. Any proposed rule to designate or revise critical
habitat will contain a map of such habitat. Any such notice proposing the listing, delisting, or reclassification of a
species or the designation or revision of critical habitat
will also include a summary of factors affecting the species or its designated critical habitat or both.
(ii) Give actual notice of the proposed regulation to the
State agency in each State in which the species is believed to occur, and to each county or equivalent jurisdiction therein in which the species is believed to occur, and
invite the comment of each such agency and jurisdiction;
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TABLE 1—CURRENT AND PROPOSED REGULATORY TEXT SETTING FORTH THE DESIGNATION OF CRITICAL HABITAT FOR
SPECIES LISTED UNDER THE ENDANGERED SPECIES ACT—Continued
[16 U.S.C. 1531 et seq.]
Title 50 CFR section
and paragraph
Current CFR text
Proposed CFR text
424.18(a) .................
(a) Contents. A final rule promulgated to carry out the purposes of the Act will be published in the Federal Register. This publication will contain the complete text of
the rule, a summary of the comments and recommendations received in response to the proposal (including applicable public hearings), summaries of the data on
which the rule is based and the relationship of such data
to the final rule, and a description of any conservation
measures available under the rule. Publication of a final
rule to list, delist, or reclassify a species or designate or
revise critical habitat shall also provide a summary of
factors affecting the species. A rule designating or revising critical habitat will also contain a description of the
boundaries and a map of such habitat and will, to the
maximum extent practicable, be accompanied by a brief
description and evaluation of those activities (whether
public or private) that might occur in the area and which,
in the opinion of the Secretary, may adversly [sic] modify
such habitat or be affected by such designation.
(a) Contents. A final rule promulgated to carry out the purposes of the Act will be published in the Federal Register. This publication will contain a detailed description
of the action being finalized, a summary of the comments
and recommendations received in response to the proposal (including applicable public hearings), summaries
of the data on which the rule is based and the relationship of such data to the final rule, and a description of
any conservation measures available under the rule.
Publication of a final rule to list, delist, or reclassify a
species or designate or revise critical habitat will also
provide a summary of factors affecting the species. For a
rule designating or revising critical habitat, the detailed
description of the action will include a map that delineates the official boundary of the designation. The official
boundary may also be clarified or refined by rule text, or
by the map as modified by rule text. The Service may
also create additional explanatory text, information, or
maps and include them in the preamble of the rulemaking document or make them available from the lead
Service office responsible for the designation. The rule
will, to the maximum extent practicable, include a brief
description and evaluation of those activities (whether
public or private) that might occur in the area and which,
in the opinion of the Secretary, may adversely modify
such habitat or be affected by such designation.
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50 CFR 17.94(b)
The existing regulation states that the
map provided by the Director does not,
unless otherwise indicated, constitute
the definition of the boundaries of a
critical habitat. In order to provide more
clarity regarding the areas being
designated, as well as be more efficient
and cost-effective, we are proposing to
change the wording of the first sentence
to state ‘‘For critical habitat designations
published and effective after
[EFFECTIVE DATE OF FINAL RULE],
the map(s) provided by the Secretary of
DOI constitutes the definition of the
boundaries of a critical habitat
designation.’’ We are replacing ‘‘the
Director’’ with ‘‘the Secretary of DOI’’
since the authority to designate critical
habitat under the Act lies with the
Secretary due to the Secretarial
discretion under section 4(b)(2) of the
Act to exclude specific areas from final
critical habitat, and this authority has
not been delegated to the Director. For
existing critical habitat designations, we
also intend to remove the textual
descriptions of final critical habitat
boundaries set forth in the CFR, without
changing the boundaries of those
designations, in separate rulemakings in
order to save the annual reprinting cost.
The second sentence of the existing
regulation states ‘‘Such maps are
provided for reference purposes to guide
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Federal agencies and other interested
parties in locating the general
boundaries of the Critical Habitat.’’ We
are proposing to revise this sentence to
read ‘‘Each Critical Habitat area will be
shown on a map, with more detailed
information discussed in the preamble
of the rulemaking documents published
in the Federal Register and made
available from the lead office of the
Service responsible for such
designation.’’ We believe this will
provide greater clarity regarding the
areas being designated, as well as be a
more efficient and cost effective way to
provide information to the public
concerning areas designated as critical
habitat. We acknowledge that what is
printed in the Federal Register and
subsequently in the CFR will be the
legally binding delineation of critical
habitat. However, should there be
ambiguity with the scale of the map, our
interpretation of what is included
within the designation will be provided
with the more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office responsible for such
designation habitat.
We are proposing also to replace the
third existing sentence ‘‘Critical habitats
are described by reference to surveyable
landmarks found on standard
topographic maps of the area and to the
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States and county(ies) within which all
or part of the Critical Habitat is located.’’
The new wording would be ‘‘Each area
will be referenced to the State(s),
county(ies), or other local government
units within which all or part of the
Critical Habitat is located. General
descriptions of the location and
boundaries of each area may be
provided for clarification purposes or to
explain the exclusion of sites (e.g.,
paved roads, buildings) within the
mapped area.’’ This change will relieve
us of the regulatory and financial
burden of publishing the textual
descriptions of the boundaries of critical
habitat in the regulations, which have
shown to be of limited use to the general
public.
50 CFR 226.101
This section addresses critical habitat
designations made by the Secretary of
Commerce. We are proposing to replace
the ‘‘Maps and charts identifying
designated critical habitat * * *’’ phrase
in the beginning of the last sentence
with ‘‘Additional information regarding
designated critical habitat * * *.’’ This
new language will provide the
flexibility needed to provide useful
information to the public concerning
areas designated as critical habitat.
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50 CFR 424.12(c)
We are proposing to remove the
references to defining critical habitat by
specific limits using reference points
and lines as found on standard
topographic maps of the area. The
proposed revision would read ‘‘Each
Critical Habitat area will be shown on
a map, with more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office of the Service
responsible for such designation.’’ This
proposed revision would provide more
clarity regarding the areas being
designated, as well as relieve the
regulatory and financial burden of both
Services being required to print these
reference points in the Federal Register
and reprint them annually in the CFR.
We acknowledge that what is printed in
the Federal Register and subsequently
in the CFR will be the legally binding
delineation of critical habitat. However,
should there be ambiguity with the scale
of the map, our interpretation of what is
included within the designation will be
provided with the more detailed
information discussed in the preamble
of the rulemaking documents published
in the Federal Register and made
available from the lead office
responsible for such designation habitat.
We also intend to remove the textual
descriptions of final critical habitat
boundaries set forth in the CFR for
existing critical habitat designations in
separate rulemakings in order to save
the annual reprinting cost.
We are proposing to add the following
sentence to this regulation: ‘‘General
descriptions of the location and
boundaries of each area may be
provided for clarification purposes or to
explain the exclusion of sites (e.g.,
paved roads, buildings) within the
mapped area.’’
Emcdonald on DSK2BSOYB1PROD with PROPOSALS
50 CFR 424.16(b)
The proposed change to this section is
in the first sentence where it currently
states ‘‘A notice of a proposed rule to
carry out one of the actions described in
§ 424.10 shall contain the complete text
of the proposed rule.’’ We are proposing
to change the wording ‘‘shall contain the
complete text of the proposed rule’’ to
‘‘will contain a detailed description of
the proposed action.’’ Although we will
in fact publish ‘‘the complete text of the
proposed regulation,’’ as required by 16
U.S.C 1533(b)(5)(A)(i), this change in
wording, along with the other changes
in this notice, will clarify how we
interpret this mandate in the context of
critical habitat designation. As
discussed above, should there be
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ambiguity with the scale of the map, our
interpretation of what is included
within the designation will be provided
with the more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office responsible for such
designation habitat.
Because the regulation will be the
legally binding description of the
designation, we included the language
‘‘will contain a detailed description of
the proposed action’’ to clarify that the
regulation (in the form of maps and any
accompanying text) must itself provide
a sufficiently detailed description.
50 CFR 424.16(c)(1)(ii)
The proposed change to this section is
removing the parenthetical phrase that
states ‘‘(including the complete text of
the regulation).’’ As stated above, this
change in wording, along with the other
changes proposed in this notice, will
clarify how we interpret this mandate in
the context of critical habitat
designation. As discussed above, our
interpretation of what is included
within the designation will be provided
with the more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office responsible for such
designation habitat.
Because the regulation will be the
legally binding description of the
designation, we included the language
‘‘will contain a detailed description of
the proposed action’’ to clarify that the
regulation (in the form of maps and any
accompanying text) must itself provide
a sufficiently detailed description.
50 CFR 424.18(a)
This section addresses the final rule
requirements. In the second sentence of
the existing regulation, we are
proposing to replace ‘‘the complete text
of the rule’’ with ‘‘a detailed description
of the action being finalized.’’ As with
the sections above that deal with the
requirements for a proposed rule,
changing the wording here, along with
the other changes proposed in this
notice, will clarify how we interpret this
mandate in the context of critical habitat
designation. As discussed above, our
interpretation of what is included
within the designation will be provided
with the more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office responsible for such
designation habitat. Because the
regulation will be the legally binding
description of the designation, we
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included the language ‘‘will contain a
detailed description of the proposed
action’’ to clarify that the regulation (in
the form of maps and any accompanying
text) must itself provide a sufficiently
detailed description.
In the fourth sentence of the existing
regulation, we are proposing to remove
the references to the final rule
containing a description of the
boundaries of the critical habitat being
designated. We are modifying this
section and expanding the discussion
on the requirement for a map. The new
proposed section would read: ‘‘A rule
designating or revising critical habitat
will also include a map of the critical
habitat area. The map itself constitutes
the official boundary of the designation.
The official boundary may also be
delineated by rule text or by the map as
modified by rule text. The Services may
also create additional explanatory text,
information, or maps and include them
in the preamble of the rulemaking
document or make them available from
the lead Service office responsible for
the designation.’’ This change will
provide more clarity regarding the areas
being designated, as well as allow us to
reduce our printing costs in both the
Federal Register and for the annual
reproductions of the CFR. Our
interpretation of what is included
within the designation will be provided
with the more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office responsible for such
designation habitat. We believe this
change will not increase the burden on
the public.
Required Determinations
Regulatory Planning and Review—
Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this rule is
not significant under Executive Order
12866 (E.O. 12866). OMB bases its
determination upon the following four
criteria:
a. Whether the rule will have an
annual effect of $100 million or more on
the economy or adversely affect an
economic sector, productivity, jobs, the
environment, or other units of the
government.
b. Whether the rule will create
inconsistencies with other Federal
agencies’ actions.
c. Whether the rule will materially
affect entitlements, grants, user fees,
loan programs, or the rights and
obligations of their recipients.
d. Whether the rule raises novel legal
or policy issues.
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Emcdonald on DSK2BSOYB1PROD with PROPOSALS
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA), as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., whenever an agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effects of the rule on small entities (i.e.,
small businesses, small organizations,
and small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of the
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
The 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.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration that this
rule, if adopted, would not have a
significant economic effect on a
substantial number of small entities as
defined under the RFA.
This proposed rule would revise the
implementing regulations contained
within 50 CFR 17.94(b), 226.101,
424.12(c), 424.16(b) and (c)(1)(ii), and
424.18(a), to eliminate the requirement
to publish textual descriptions of
proposed (NMFS only) and final (NMFS
and FWS) critical habitat boundaries in
the Federal Register and reprinting in
the CFR, and instead provide that the
map(s), as clarified or refined by any
textual language within the rule,
constitutes the definition of the
boundaries of a Critical Habitat. A full
description of the action, why it is being
considered, and the legal basis for this
action are contained in the preamble to
this proposed rule. The proposed rule
does not duplicate, overlap, or conflict
with other Federal rules.
This rulemaking amends the
procedural requirements for NMFS and
FWS when designating critical habitat.
NMFS and FWS are the only entities
that are directly impacted by this rule,
and they are not considered to be small
entities under SBA’s size standards. No
other entities are directly impacted by
this rule.
The revisions to the implementing
regulations proposed herein are not
expected to impose any direct costs on
regulated entities. The elimination of
the procedural requirement to publish
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textual descriptions of proposed (NMFS
only) and final (NMFS and FWS) critical
habitat boundaries in the Federal
Register and reprinting in the CFR is an
administrative action, and it is intended
to facilitate public understanding of the
critical habitat designation process and
make it easier for the public to
determine if specific areas are within
the critical habitat designation. In fact,
this regulation would make the process
more cost-effective for the agencies and
the public as a whole and would
potentially save the FWS alone an
estimated $391,742 annually. Therefore,
for the reasons above, this proposed rule
would not have a significant economic
impact on a substantial number of small
entities.
Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), the Services make the following
findings:
a. This rule will not produce a Federal
mandate. In general, a Federal mandate
is a provision in legislation, statute, or
regulation that would impose an
enforceable duty upon State, local, or
tribal governments, or the private sector
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a
condition of Federal assistance.’’ It also
excludes ‘‘a duty arising from
participation in a voluntary Federal
program,’’ unless the regulation ‘‘relates
to a then-existing Federal program
under which $500,000,000 or more is
provided annually to State, local, and
tribal governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement. ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
enforceable duty upon the private
sector, except (i) a condition of Federal
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28411
assistance or (ii) a duty arising from
participation in a voluntary Federal
program.’’
b. We do not believe this rule will
significantly or uniquely affect small
governments, because the revisions to
the implementing regulations proposed
herein will facilitate public
understanding of the critical habitat
designation process, and the areas
included within the critical habitat, and
make the process more cost-effective for
the agencies and the public as a whole
by potentially saving the FWS alone an
estimated $391,742 annually. As such,
we do not believe that a Small
Government Agency Plan is required.
Takings—Executive Order 12630
In accordance with Executive Order
12630 (‘‘Government Actions and
Interference with Constitutionally
Protected Private Property Rights’’), we
have evaluated the proposal to revise
the implementing regulations for
designating critical habitat and have
determined that this proposed rule does
not pose significant takings
implications. The proposed revisions to
the implementing regulations are
intended to facilitate the public
understanding of the rulemaking
process for critical habitat.
Federalism—Executive Order 13132
In accordance with Executive Order
13132 (Federalism), the rule does not
have significant Federalism effects. A
Federalism assessment is not required.
The revisions to the regulations
addressed in this proposed rule are
intended to facilitate the public
understanding of the rulemaking
process for critical habitat, and thus
should not significantly affect or burden
the authority of the States to govern
themselves.
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 meets the requirements of
sections 3(a) and 3(b)(2) of the Order.
The revisions to the regulations
addressed in this proposed rule are
intended to facilitate the public
understanding of the rulemaking
process for critical habitat, and thus
should not significantly affect or burden
the judicial system.
Paperwork Reduction Act of 1995
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act. (44 U.S.C. 3501 et seq.).
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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.
Emcdonald on DSK2BSOYB1PROD with PROPOSALS
National Environmental Policy Act
(NEPA)
We determined that environmental
assessments and environmental impact
statements, as defined under the
authority of the National Environmental
Policy Act of 1969, need not be
prepared in connection with regulations
adopted under section 4(a) of the Act.
We published a notice outlining our
reasons for this determination in the
Federal Register.
Also, it is our position that, outside
the jurisdiction of the United States
Court of Appeals for the Tenth Circuit,
we do not need to prepare
environmental analyses as defined by
NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical
habitat under the Act. We published a
notice outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
assertion was upheld by the Circuit
Court of the United States for the Ninth
Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996)).
However, we have analyzed this
proposed rule in accordance with the
criteria of the National Environmental
Policy Act. Since this proposal is
administrative in nature (i.e., we are
making optional the inclusion of any
textual description of the boundaries of
the designation in the Federal Register),
there is no effect to the quality of the
human environment. This proposed rule
does not constitute a major Federal
action significantly affecting the quality
of the human environment. An
environmental assessment is not
required.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175 ‘‘Consultation and
Coordination with Indian Tribal
Governments,’’ and the Department of
the Interior Manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Native American Tribes on a
government-to-government basis. We
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have evaluated the potential effects on
federally recognized Tribes from these
proposed revisions to our implementing
regulations for critical habitat. We have
determined that there are no potential
effects to federally recognized Tribes
since the revisions to the implementing
regulations are intended to facilitate the
public understanding of critical habitat
designations and save taxpayer monies.
We will, however, continue to
coordinate with Tribes as we
promulgate critical habitat designations.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. This
proposed rule to revise the
implementing regulations for
designating critical habitat is not
expected to significantly affect energy
supplies, distribution, or use. Therefore,
this action is not a significant energy
action and no Statement of Energy
Effects is required.
Clarity of the Rule
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
a. Be logically organized;
b. Use the active voice to address
readers directly;
c. Use clear language rather than
jargon;
d. Be divided into short sections and
sentences; and
e. Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the ADDRESSES
section. To better help us revise this
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.
Author(s)
The primary authors of this package
are staff members from the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service.
List of Subjects in 50 CFR Parts 17, 226,
and 424
Endangered and threatened species,
Exports, Imports, Reporting and
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recordkeeping requirements,
Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend
parts 17, 226, and 424, subchapter B of
chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.94, revise paragraph (b) as
set forth below:
§ 17.94
Critical habitats.
*
*
*
*
*
(b)(1) For the Critical Habitat
designations published and effective
after [EFFECTIVE DATE OF FINAL
RULE], the map provided by the
Secretary of DOI, as clarified or refined
by any textual language within the rule,
constitutes the definition of the
boundaries of a Critical Habitat. Each
Critical Habitat area will be shown on
a map, with more detailed information
discussed in the preamble of the
rulemaking documents published in the
Federal Register and made available
from the lead office of the Service
responsible for such designation. Each
area will be referenced to the State(s),
county(ies), or other local government
units within which all or part of the
Critical Habitat is located. General
descriptions of the location and
boundaries of each area may be
provided to clarify or refine what is
included within the boundaries
depicted on the map, or to explain the
exclusion of sites (e.g., paved roads,
buildings) within the mapped area.
Unless otherwise indicated within the
Critical Habitat descriptions, the names
of the State(s) and county(ies) are
provided for informational purposes
only and do not constitute the
boundaries of the area.
(2) For Critical Habitat designations
published and effective on or prior to
[EFFECTIVE DATE OF FINAL RULE],
the map provided by the Director is for
reference purposes to guide Federal
Agencies and other interested parties in
locating the general boundaries of the
Critical Habitat. The map does not,
unless otherwise indicated, constitute
the definition of the boundaries of a
Critical Habitat. Critical Habitats are
described by reference to surveyable
landmarks found on standard
topographic maps of the area and to the
States and county(ies) within which all
or part of the Critical Habitat is located.
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Unless otherwise indicated within the
Critical Habitat description, the State
and county(ies) names are provided for
informational purposes only.
*
*
*
*
*
PART 226—[AMENDED]
3. The authority citation for part 226
continues to read as follows:
Authority: 16 U.S.C. 1533.
4. Revise § 226.101 to read as follows:
§ 226.101
Purpose and scope.
The regulations contained in this part
identify those habitats designated by the
Secretary of Commerce as critical, under
section 4 of the Act, for endangered and
threatened species under the
jurisdiction of the Secretary of
Commerce. Those species are
enumerated at § 223.102 of this chapter
if threatened and at § 224.101 of this
chapter if endangered. For regulations
pertaining to the designation of critical
habitat, see part 424 of this title; for
regulations pertaining to prohibitions
against the adverse modification or
destruction of critical habitat, see part
402 of this title. Additional information
regarding designated critical habitats
that is not provided in this section may
be obtained upon request to the Office
of Protected Resources (see § 222.102,
definition of ‘‘Office of Protected
Resources’’).
PART 424—[AMENDED]
5. The authority citation for part 424
continues to read as follows:
Authority: Pub. L. 93–205, 87 Stat. 884;
Pub. L. 95–632, 92 Stat. 3751; Pub. L. 96–159,
93 Stat. 1225; Pub. L. 97–304, 96 Stat. 1411
(16 U.S.C. 1531 et seq.); unless otherwise
noted.
6. In § 424.12, revise paragraph (c) as
set forth below:
§ 424.12
habitat.
Criteria for designating critical
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*
*
*
*
*
(c) Each Critical Habitat area will be
shown on a map, with more detailed
information discussed in the preamble
of the rulemaking documents published
in the Federal Register and made
available from the lead office of the
Services responsible for such
designation. Textual information may be
included for purposes of clarifying or
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refining the location and boundaries of
each area or to explain the exclusion of
sites (e.g., paved roads, buildings)
within the mapped area. Each area will
be referenced to the State(s), county(ies),
or other local government units within
which all or part of the Critical Habitat
is located. Unless otherwise indicated
within the Critical Habitat descriptions,
the names of the State(s) and county(ies)
are provided for informational purposes
only and do not constitute the
boundaries of the area. Ephemeral
reference points (e.g., trees, sand bars)
shall not be used in any textual
description used to clarify or refine the
boundaries of critical habitat.
*
*
*
*
*
7. In § 424.16, revise paragraphs (b)
and (c)(1)(ii) as set forth below:
§ 424.16
Proposed rules.
*
*
*
*
*
(b) Contents. A notice of a proposed
rule to carry out one of the actions
described in § 424.10 will contain a
detailed description of the proposed
action and a summary of the data on
which the proposal is based (including,
as appropriate, citation of pertinent
information sources) and will show the
relationship of such data to the rule
proposed. If such a rule designates or
revises critical habitat, such summary
will, to the maximum extent practicable,
include a brief description and
evaluation of those activities (whether
public or private) that, in the opinion of
the Secretary, if undertaken, may
adversely modify such habitat or may be
affected by such designation. Any
proposed rule to designate or revise
critical habitat shall contain a map of
such habitat. Any such notice proposing
the listing, delisting, or reclassification
of a species or the designation or
revision of critical habitat will also
include a summary of factors affecting
the species and/or its designated critical
habitat.
(c) * * *
(1) * * *
(ii) Give actual notice of the proposed
regulation to the State agency in each
State in which the species is believed to
occur and to each county or equivalent
jurisdiction therein in which the species
is believed to occur, and invite the
comment of each such agency and
jurisdiction;
*
*
*
*
*
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28413
8. In § 424.18, revise paragraph (a) to
read as follows:
§ 424.18
Final rules—general.
(a) Contents. A final rule promulgated
to carry out the purposes of the Act will
be published in the Federal Register.
This publication will contain a detailed
description of the action being finalized,
a summary of the comments and
recommendations received in response
to the proposal (including applicable
public hearings), summaries of the data
on which the rule is based and the
relationship of such data to the final
rule, and a description of any
conservation measures available under
the rule. Publication of a final rule to
list, delist, or reclassify a species or
designate or revise critical habitat will
also provide a summary of factors
affecting the species. For a rule
designating or revising critical habitat,
the detailed description of the action
will include a map that delineates the
official boundary of the designation.
The official boundary may also be
clarified or refined by rule text or by the
map as modified by rule text. The
Services may also create additional
explanatory text, information, or maps
and include them in the preamble of the
rulemaking document or make them
available from the lead office of the
Service responsible for the designation.
The rule will, to the maximum extent
practicable, include a brief description
and evaluation of those activities
(whether public or private) that might
occur in the area and which, in the
opinion of the Secretary, may adversely
modify such habitat or be affected by
such designation.
*
*
*
*
*
Authority: The authority for this action is
the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: March 11, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and
Wildlife and Parks, U.S. Department of the
Interior.
Dated: May 4, 2011.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
[FR Doc. 2011–11920 Filed 5–16–11; 8:45 am]
BILLING CODE 4310–55–P; 3510–22–P
E:\FR\FM\17MYP1.SGM
17MYP1
]]>Agencies
[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Proposed Rules]
[Pages 28405-28413]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11920]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 17 and 424
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 226 and 424
[Docket No. FWS-R9-ES-2010-0073; Docket No. 110131071-1153-01; MO-
92210-0-0009-B4]
RIN 1018-AX44; RIN 0648-BA77
Endangered and Threatened Wildlife and Plants; Revised
Implementing Regulations for Requirements To Publish Textual
Descriptions of Boundaries of Critical Habitat
AGENCY: United States Fish and Wildlife Service (FWS), Interior;
National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We (FWS and NMFS; also collectively referred to as the
Services) propose to revise regulations related to publishing textual
descriptions of proposed and final critical habitat boundaries in the
Federal Register for codification in the Code of Federal Regulations.
In the interest of making the process of designating critical habitat
more user-friendly for affected parties, the public as a whole, and the
Services, as well as more efficient and cost effective, we are
proposing to maintain the publication of maps of proposed and final
critical habitat designations, but make optional the inclusion of any
textual description of the boundaries of the designation in the Federal
Register for codification in the Code of Federal Regulations. The
boundaries of critical habitat as mapped or otherwise described in the
Regulation Promulgation section of a rulemaking that is published in
the Federal Register will be the official delineation of the
designation, and we will continue to provide the public with additional
tools, such as interactive maps and additional descriptions, on the
Services' Internet sites, Regulations.gov, and at local field offices
that will represent the Service's interpretation of which areas are
covered by the designation. We are undertaking this effort as part of
the agencies' response to Executive Order 13563 (Jan. 18, 2011)
directing agencies to review their existing regulations and, inter
alia, to modify or streamline them in accordance with what has been
learned.
DATES: We will accept comments from all interested parties until July
18, 2011. Please note that if you are using the Federal eRulemaking
Portal (see ADDRESSES section below), the deadline for submitting an
electronic comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the Docket number for
this proposed rule, which is FWS-R9-ES-2010-0073. Check the box that
reads ``Open for Comment/Submission,'' and then click the Search
button. You should then see an icon that reads ``Submit a Comment.''
Please ensure that you have found the correct rulemaking before
submitting your comment.
U.S. mail or hand delivery: Public Comments Processing,
Attn: [Docket No. FWS-R9-ES-2010-0073]; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, Suite 222; Arlington, VA 22203.
We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Request for Information section below for more
information).
FOR FURTHER INFORMATION CONTACT: Nicole Alt, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 4401 N. Fairfax
Drive, Suite 420; Arlington, VA 22203, telephone 703/358-2171;
facsimile 703/358-1735 or Marta Nammack, National Marine Fisheries
Service, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, telephone 301-713-1401; facsimile 301-713-0376. If
you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Request for Information
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions from governmental agencies, Native American
tribes, the scientific community, industry, or any other interested
parties. We seek information on the following:
1. What is the best way for us to share information about critical
habitat designation boundaries with the public?
2. Could we improve the usefulness of the maps in the Federal
Register and Code of Federal Regulations (CFR)? If so how?
3. Does publication of the textual descriptions of boundaries of
critical habitat in the Federal Register and CFR provide any practical
value?
4. What is the usefulness of the critical-habitat-boundary
descriptions in latitude-longitude, Public Land Survey descriptions, or
Universal Transverse Mercator (UTM) coordinates?
5. Besides the Internet, what other methods should we use to convey
information regarding critical habitat boundaries?
6. Will the changes proposed make our critical habitat designations
easier to understand? Are there other changes that are needed?
You may submit your information concerning this proposal by one of
the methods listed in the ADDRESSES section. If you submit information
via https://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
you submit a hardcopy that includes personal identifying information,
you may request at the top of your document that we withhold this
personal identifying information from public review. However, we cannot
guarantee that we will be able to do so. We will post all hardcopy
comments on https://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 https://www.regulations.gov or by
appointment during normal business
[[Page 28406]]
hours at the U.S. Fish and Wildlife Service, Endangered Species
Program, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203;
telephone 703-358-2171 or National Marine Fisheries Service, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910;
telephone 301-713-1401 (see FOR FURTHER INFORMATION CONTACT).
Background
Before a plant or animal species can receive the protection
provided by the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.) (Act), it must first be added to the Federal lists of
threatened and endangered wildlife and plants. The List of Endangered
and Threatened Wildlife (found in title 50 of the Code of Federal
Regulations (CFR) in Sec. 17.11) and the List of Endangered and
Threatened Plants (found in 50 CFR 17.12) contain the names of all
organisms that have been determined by the FWS and NMFS (jointly
referred to as the Services) to qualify as ``endangered species'' or
``threatened species.'' When a species is listed as endangered or
threatened under the Act, the Services designate specific areas as
``critical habitat.''
Under section 4(b)(5)(A) of the Act, as amended (16 U.S.C. 1531 et
seq.), and the implementing regulations contained within 50 CFR
sections 17.94(b), 226.101, 424.12(c), 424. 16(b) and (c)(1)(ii), and
424.18(a), the Services are required, when designating or revising
critical habitat for species listed under the Act, to publish the
complete text of the regulation, maps, and descriptions of such habitat
in the Regulation Promulgation section of a rulemaking published in the
Federal Register. We have found over time that textual descriptions of
critical habitat boundaries are often difficult to interpret and
understand, and do not provide clarity regarding the areas being
designated. Publishing these textual descriptions is also inefficient
and costly. Below we discuss our current requirements and their
limitations, and proposed regulation changes to address these issues.
NMFS' current practice is to publish maps in the Federal Register
along with a textual description of the boundaries of the areas being
designated as critical habitat in both their proposed and final rules.
FWS publishes only the maps in the proposed critical habitat rule and
then publishes the maps along with a textual description of the
boundaries in the final critical habitat rule. We previously described
the boundaries following a variety of methods including Public Land
Survey System designations (which specify township, range, and section;
sometimes referred to as the ``rectangular survey system'') and metes-
and-bounds (a system of describing a parcel of land using the physical
features of local geography, along with directions and distances, to
define the boundaries). However, as GIS and specific geographic-based
data have become more available, we have been using predominantly
Universal Transverse Mercator (UTM) coordinate system (a grid-based
system employing a series of 60 zones to specify locations on the
surface of the Earth) and latitude-longitude. We adopted these
practices because our current regulations at 50 CFR 424.12(c) state
``Each critical habitat will be defined by specific limits using
reference points and lines as found on standard topographic maps of the
area.'' Unfortunately, these descriptions are often difficult to
interpret and understand, and do not provide clarity regarding which
areas are being designated as critical habitat. Therefore, in addition
to the maps and textual descriptions published in the Federal Register,
over the last several years we have provided the public with
interactive maps and additional descriptions, on the Services' Internet
sites, Regulations.gov, and at local field offices. References to these
Internet sites are cited throughout the proposed (NMFS only) and final
(NMFS and FWS) rules and in our outreach materials for the specific
action. In addition, we have provided maps and GIS coverages (data
layers) to affected Federal agencies, States, counties, jurisdictions,
and interested parties for use in their computer databases and to make
available to their constituencies. The public's reliance on these
latter materials in lieu of the textual descriptions published in the
Federal Register and codified in the Code of Federal Regulations
reinforces our view that the textual descriptions are of limited
utility in informing the public as to which areas are designated
critical habitat.
Given that the textual descriptions are of limited utility, we are
proposing to revise the implementing regulations contained within 50
CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and
424.18(a), to eliminate the requirement to publish textual descriptions
of proposed (NMFS only) and final (NMFS and FWS) critical habitat
boundaries in the Federal Register and reprinting in the CFR, and
instead provide that the map(s), as clarified or refined by any textual
language within the rule, constitutes the definition of the boundaries
of a Critical Habitat. Each Critical Habitat area will be shown on a
map, with more detailed information discussed in the preamble of the
rulemaking documents published in the Federal Register. The maps and
brief textual descriptions that we plan to publish in the Federal
Register after we finalize this proposed rule will be sufficient to
inform the public as to where a particular critical habitat designation
is located, and thus sufficient to provide notice to the public and
give them an opportunity to comment. We will provide further
information online on our web sites, but we do not think it is
necessary for the public to have UTM or latitude-longitude coordinates
in order to know where critical habitat is located. We believe these
changes will be for the public good and make the process more user-
friendly, without compromising the public involvement or the overall
process.
Eliminating the need to publish detailed textual descriptions in
the Federal Register and annually in the CFR will also result in
significant financial savings, thereby saving Federal resources. In
FWS's final designations, UTM coordinate pairs or other textual
descriptions of the boundaries of areas often account for more than
half of the document, resulting in significant Federal Register
publication costs. For example, FWS spent approximately $764,523 in
fiscal year 2008, $539,639 in fiscal year 2009, and $662,952 in fiscal
year 2010 to publish critical habitat designations in the Federal
Register, for a total of approximately $1,967,114 for the three fiscal
years combined. If we estimate that 50 percent of those costs are spent
on the publication of the textual descriptions of the boundaries, then
publication of those descriptions will cost $983,557 for the three
fiscal years, or approximately $327,852 per fiscal year.
In addition, the regulation portion of the rule, including the maps
and textual descriptions of the boundaries, is reprinted annually in
the CFR, resulting in a further expenditure of taxpayer resources. FWS
has spent approximately $80,000 in fiscal year 2008, $92,400 in fiscal
year 2009, and $83,160 in fiscal year 2010 to reprint critical habitat
designations in the CFR. Based on a review of the current volume (i.e.,
number of pages) of critical habitat designations represented in the
CFR, we estimate that the textual descriptions account for
approximately 75 percent of the volume and therefore 75 percent of the
printing costs. Using the estimated 75 percent as the cost of
reprinting the textual descriptions of the boundaries, publication of
those descriptions will
[[Page 28407]]
cost $191,670 for the three fiscal years, or approximately $63,890 per
fiscal year. Adding this to the Federal Register costs discussed above,
we estimate that the annual cost for publishing textual descriptions of
boundaries in the Federal Register and then reprinting them in the CFR
will be nearly $391,742 for FWS alone. Thus, eliminating the need to
publish latitude-longitude coordinates, UTM coordinate pairs or other
detailed textual descriptions in the Federal Register and CFR would
result in a significant cost savings to the Services and the public as
a whole.
Finally, relying on maps and brief textual descriptions to identify
areas designated as critical habitat is consistent with the ESA.
Section 4(a)(3)(A) of the Act only requires that critical habitat be
designated ``by regulation.'' Moreover, section 4(b)(5)(A) of the Act
indicates that the Secretary shall ``not less than 90 days before the
effective date of the regulation--(i) publish a general notice and the
complete text of the proposed regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (including the
complete text of the regulation).'' In the context of critical habitat
designation, we interpret the mandate to publish the ``complete text''
of the proposed regulation as requiring that the regulation provide a
sufficiently detailed description of the area included within the
proposed designation, in the form of maps and any accompanying text, so
as to provide all interested persons with a meaningful opportunity to
comment. Due to the technical limitations on what can be published in
the Federal Register (i.e., map size and detail), we anticipate that
information we make available to the public through our outreach
efforts, Internet sites, and at local Services offices will also assist
the Services in addressing day-to-day questions about the designation.
To the extent that questions arise from the public as to the precise
coverage of a proposed or final designation (e.g., due to the scale at
which the published maps are drawn), additional materials will be
available on the Web site or at Service offices to provide the needed
clarity.
In this regard, we note that the Services never maintained that
requiring detailed textual descriptions was legally necessary. Instead,
the first critical habitat regulations required only that critical
habitat designations be ``accompanied by maps and/or geographical
descriptions.'' 43 FR 870, 876 (Jan. 4, 1978). Although the Services
subsequently added the requirement that critical habitat designations
include textual descriptions describing the specific boundary limits of
the critical habitat, there is nothing in the preamble to that rule
indicating that the Services did so because the ESA required it.
Rather, it was in response to several commenters, who had opined that
the proposed rule was not sufficiently clear in setting out the method
by which critical habitat boundaries would be described. 45 FR 13009,
13015 (Feb. 27, 1980). With this change, the regulations would continue
to be explicit as to the method by which critical habitat boundaries
would be described; it would just do so by means that did not require
detailed textual descriptions.
Regulation Changes
The following table shows the current and proposed CFR text. After
Table 1, we provide explanations of why we are proposing to revise the
text as indicated.
Table 1--Current and Proposed Regulatory Text Setting Forth the
Designation of Critical Habitat for Species Listed Under the Endangered
Species Act
[16 U.S.C. 1531 et seq.]
------------------------------------------------------------------------
Title 50 CFR section and
paragraph Current CFR text Proposed CFR text
------------------------------------------------------------------------
17.94(b).................. (b) The map provided (b)(1) For Critical
by the Director does Habitat designations
not, unless published and
otherwise indicated, effective after
constitute the [EFFECTIVE DATE OF
definition of the FINAL RULE], the map
boundaries of a provided by the
Critical Habitat. Secretary of the
Such maps are Interior, as
provided for clarified or refined
reference purposes by any textual
to guide Federal language within the
agencies and other rule, constitutes
interested parties the definition of
in locating the the boundaries of a
general boundaries Critical Habitat.
of the Critical Each Critical
Habitat. Critical Habitat area will be
Habitats are shown on a map, with
described by more detailed
reference to information
surveyable landmarks discussed in the
found on standard preamble of the
topographic maps of rulemaking documents
the area and to the published in the
States and Federal Register and
county(ies) within made available from
which all or part of the lead office of
the Critical Habitat the Service
is located. Unless responsible for such
otherwise indicated designation. Each
within the Critical area will be
Habitat description, referenced to the
the State and State(s),
county(ies) names county(ies), or
are provided for other local
informational governmental units
purposes only. within which all or
part of the Critical
Habitat is located.
General descriptions
of the location and
boundaries of each
area may be provided
to clarify or refine
what is included
within the
boundaries depicted
on the map, or to
explain the
exclusion of sites
within the mapped
area. Unless
otherwise indicated
within the Critical
Habitat
descriptions, the
names of the
State(s) and
county(ies) are
provided for
informational
purposes only and do
not constitute the
boundaries of the
area.
[[Page 28408]]
(b)(2) For Critical
Habitat designations
published and
effective on or
prior to [EFFECTIVE
DATE OF FINAL RULE],
the map provided by
the Secretary of the
Interior is for
reference purposes
to guide Federal
Agencies and other
interested parties
in locating the
general boundaries
of the Critical
Habitat. The map
does not, unless
otherwise indicated,
constitute the
definition of the
boundaries of a
Critical Habitat.
Critical Habitats
are described by
reference to
surveyable landmarks
found on standard
topographic maps of
the area and to the
States and
county(ies) within
which all or part of
the critical habitat
is located. Unless
otherwise indicated
within the Critical
Habitat description,
the State and
county(ies) names
are provided for
informational
purposes only.
226.101 (last sentence)... Maps and charts Additional
identifying information
designated critical regarding designated
habitat that are not critical habitats
provided in this that are not
section may be provided in this
obtained upon part may be obtained
request to the upon request to the
Office of Protected Office of Protected
Resources (see Sec. Resources (see Sec.
222.102, definition 222.102, definition
of ``Office of of ``Office of
Protected Protected
Resources''). Resources'').
------------------------------------------------------------------------
424.12(c)................. (c) Each critical (c) Each critical
habitat will be habitat area will be
defined by specific shown on a map, with
limits using more detailed
reference points and information
lines as found on discussed in the
standard topographic preamble of the
maps of the area. rulemaking documents
Each area will be published in the
referenced to the Federal Register and
State(s), made available from
county(ies), or the lead office of
other local the Service
governmental units responsible for such
within which all or designation. Textual
part of the critical information may be
habitat is located. included for
Unless otherwise purposes of
indicated within the clarifying or
critical habitat refining the
descriptions, the location and
names of the boundaries of each
State(s) and area or to explain
county(ies) are the exclusion of
provided for sites (e.g., paved
information only and roads, buildings)
do not constitute within the mapped
the boundaries of area. Each area will
the area. Ephemeral be referenced to the
reference points State(s),
(e.g., trees, sand county(ies), or
bars) shall not be other local
used in defining governmental units
critical habitat. within which all or
part of the critical
habitat is located.
Unless otherwise
indicated within the
critical habitat
descriptions, the
names of the
State(s) and
county(ies) are
provided for
informational
purposes only and do
not constitute the
boundaries of the
area. Ephemeral
reference points
(e.g., trees, sand
bars) shall not be
used in any textual
description used to
clarify or refine
the boundaries of
critical habitat.
424.16(b)................. (b) Contents. A (b) Contents. A
notice of a proposed notice of a proposed
rule to carry out rule to carry out
one of the actions one of the actions
described in Sec. described in Sec.
424.10 shall contain 424.10 will contain
the complete text of a detailed
the proposed rule, a description of the
summary of the data proposed action and
on which the a summary of the
proposal is based data on which the
(including, as proposal is based
appropriate, (including, as
citation of appropriate,
pertinent citation of
information pertinent
sources), and shall information sources)
show the and will show the
relationship of such relationship of such
data to the rule data to the rule
proposed. If such a proposed. If such a
rule designates or rule designates or
revises critical revises critical
habitat, such habitat, such
summary shall, to summary will, to the
the maximum extent maximum extent
practicable, include practicable, include
a brief description a brief description
and evaluation of and evaluation of
those activities those activities
(whether public or (whether public or
private) that, in private) that, in
the opinion of the the opinion of the
Secretary, if Secretary, if
undertaken, may undertaken, may
adversely modify adversely modify
such habitat, or may such habitat, or may
be affected by such be affected by such
designation. Any designation. Any
proposed rule to proposed rule to
designate or revise designate or revise
critical habitat critical habitat
shall contain a map will contain a map
of such habitat. Any of such habitat. Any
such notice such notice
proposing the proposing the
listing, delisting, listing, delisting,
or reclassification or reclassification
of a species or the of a species or the
designation or designation or
revision of critical revision of critical
habitat shall also habitat will also
include a summary of include a summary of
factors affecting factors affecting
the species and/or the species or its
critical habitat. designated critical
habitat or both.
424.16(c)(1)(ii).......... (ii) Give actual (ii) Give actual
notice of the notice of the
proposed regulation proposed regulation
(including the to the State agency
complete text of the in each State in
regulation) to the which the species is
State agency in each believed to occur,
State in which the and to each county
species is believed or equivalent
to occur, and to jurisdiction therein
each county or in which the species
equivalent is believed to
jurisdiction therein occur, and invite
in which the species the comment of each
is believed to such agency and
occur, and invite jurisdiction;
the comment of each
such agency and
jurisdiction;
------------------------------------------------------------------------
[[Page 28409]]
424.18(a)................. (a) Contents. A final (a) Contents. A final
rule promulgated to rule promulgated to
carry out the carry out the
purposes of the Act purposes of the Act
will be published in will be published in
the Federal the Federal
Register. This Register. This
publication will publication will
contain the complete contain a detailed
text of the rule, a description of the
summary of the action being
comments and finalized, a summary
recommendations of the comments and
received in response recommendations
to the proposal received in response
(including to the proposal
applicable public (including
hearings), summaries applicable public
of the data on which hearings), summaries
the rule is based of the data on which
and the relationship the rule is based
of such data to the and the relationship
final rule, and a of such data to the
description of any final rule, and a
conservation description of any
measures available conservation
under the rule. measures available
Publication of a under the rule.
final rule to list, Publication of a
delist, or final rule to list,
reclassify a species delist, or
or designate or reclassify a species
revise critical or designate or
habitat shall also revise critical
provide a summary of habitat will also
factors affecting provide a summary of
the species. A rule factors affecting
designating or the species. For a
revising critical rule designating or
habitat will also revising critical
contain a habitat, the
description of the detailed description
boundaries and a map of the action will
of such habitat and include a map that
will, to the maximum delineates the
extent practicable, official boundary of
be accompanied by a the designation. The
brief description official boundary
and evaluation of may also be
those activities clarified or refined
(whether public or by rule text, or by
private) that might the map as modified
occur in the area by rule text. The
and which, in the Service may also
opinion of the create additional
Secretary, may explanatory text,
adversly [sic] information, or maps
modify such habitat and include them in
or be affected by the preamble of the
such designation. rulemaking document
or make them
available from the
lead Service office
responsible for the
designation. The
rule will, to the
maximum extent
practicable, include
a brief description
and evaluation of
those activities
(whether public or
private) that might
occur in the area
and which, in the
opinion of the
Secretary, may
adversely modify
such habitat or be
affected by such
designation.
------------------------------------------------------------------------
50 CFR 17.94(b)
The existing regulation states that the map provided by the
Director does not, unless otherwise indicated, constitute the
definition of the boundaries of a critical habitat. In order to provide
more clarity regarding the areas being designated, as well as be more
efficient and cost-effective, we are proposing to change the wording of
the first sentence to state ``For critical habitat designations
published and effective after [EFFECTIVE DATE OF FINAL RULE], the
map(s) provided by the Secretary of DOI constitutes the definition of
the boundaries of a critical habitat designation.'' We are replacing
``the Director'' with ``the Secretary of DOI'' since the authority to
designate critical habitat under the Act lies with the Secretary due to
the Secretarial discretion under section 4(b)(2) of the Act to exclude
specific areas from final critical habitat, and this authority has not
been delegated to the Director. For existing critical habitat
designations, we also intend to remove the textual descriptions of
final critical habitat boundaries set forth in the CFR, without
changing the boundaries of those designations, in separate rulemakings
in order to save the annual reprinting cost.
The second sentence of the existing regulation states ``Such maps
are provided for reference purposes to guide Federal agencies and other
interested parties in locating the general boundaries of the Critical
Habitat.'' We are proposing to revise this sentence to read ``Each
Critical Habitat area will be shown on a map, with more detailed
information discussed in the preamble of the rulemaking documents
published in the Federal Register and made available from the lead
office of the Service responsible for such designation.'' We believe
this will provide greater clarity regarding the areas being designated,
as well as be a more efficient and cost effective way to provide
information to the public concerning areas designated as critical
habitat. We acknowledge that what is printed in the Federal Register
and subsequently in the CFR will be the legally binding delineation of
critical habitat. However, should there be ambiguity with the scale of
the map, our interpretation of what is included within the designation
will be provided with the more detailed information discussed in the
preamble of the rulemaking documents published in the Federal Register
and made available from the lead office responsible for such
designation habitat.
We are proposing also to replace the third existing sentence
``Critical habitats are described by reference to surveyable landmarks
found on standard topographic maps of the area and to the States and
county(ies) within which all or part of the Critical Habitat is
located.'' The new wording would be ``Each area will be referenced to
the State(s), county(ies), or other local government units within which
all or part of the Critical Habitat is located. General descriptions of
the location and boundaries of each area may be provided for
clarification purposes or to explain the exclusion of sites (e.g.,
paved roads, buildings) within the mapped area.'' This change will
relieve us of the regulatory and financial burden of publishing the
textual descriptions of the boundaries of critical habitat in the
regulations, which have shown to be of limited use to the general
public.
50 CFR 226.101
This section addresses critical habitat designations made by the
Secretary of Commerce. We are proposing to replace the ``Maps and
charts identifying designated critical habitat * * *'' phrase in the
beginning of the last sentence with ``Additional information regarding
designated critical habitat * * *.'' This new language will provide the
flexibility needed to provide useful information to the public
concerning areas designated as critical habitat.
[[Page 28410]]
50 CFR 424.12(c)
We are proposing to remove the references to defining critical
habitat by specific limits using reference points and lines as found on
standard topographic maps of the area. The proposed revision would read
``Each Critical Habitat area will be shown on a map, with more detailed
information discussed in the preamble of the rulemaking documents
published in the Federal Register and made available from the lead
office of the Service responsible for such designation.'' This proposed
revision would provide more clarity regarding the areas being
designated, as well as relieve the regulatory and financial burden of
both Services being required to print these reference points in the
Federal Register and reprint them annually in the CFR. We acknowledge
that what is printed in the Federal Register and subsequently in the
CFR will be the legally binding delineation of critical habitat.
However, should there be ambiguity with the scale of the map, our
interpretation of what is included within the designation will be
provided with the more detailed information discussed in the preamble
of the rulemaking documents published in the Federal Register and made
available from the lead office responsible for such designation
habitat. We also intend to remove the textual descriptions of final
critical habitat boundaries set forth in the CFR for existing critical
habitat designations in separate rulemakings in order to save the
annual reprinting cost.
We are proposing to add the following sentence to this regulation:
``General descriptions of the location and boundaries of each area may
be provided for clarification purposes or to explain the exclusion of
sites (e.g., paved roads, buildings) within the mapped area.''
50 CFR 424.16(b)
The proposed change to this section is in the first sentence where
it currently states ``A notice of a proposed rule to carry out one of
the actions described in Sec. 424.10 shall contain the complete text
of the proposed rule.'' We are proposing to change the wording ``shall
contain the complete text of the proposed rule'' to ``will contain a
detailed description of the proposed action.'' Although we will in fact
publish ``the complete text of the proposed regulation,'' as required
by 16 U.S.C 1533(b)(5)(A)(i), this change in wording, along with the
other changes in this notice, will clarify how we interpret this
mandate in the context of critical habitat designation. As discussed
above, should there be ambiguity with the scale of the map, our
interpretation of what is included within the designation will be
provided with the more detailed information discussed in the preamble
of the rulemaking documents published in the Federal Register and made
available from the lead office responsible for such designation
habitat.
Because the regulation will be the legally binding description of
the designation, we included the language ``will contain a detailed
description of the proposed action'' to clarify that the regulation (in
the form of maps and any accompanying text) must itself provide a
sufficiently detailed description.
50 CFR 424.16(c)(1)(ii)
The proposed change to this section is removing the parenthetical
phrase that states ``(including the complete text of the regulation).''
As stated above, this change in wording, along with the other changes
proposed in this notice, will clarify how we interpret this mandate in
the context of critical habitat designation. As discussed above, our
interpretation of what is included within the designation will be
provided with the more detailed information discussed in the preamble
of the rulemaking documents published in the Federal Register and made
available from the lead office responsible for such designation
habitat.
Because the regulation will be the legally binding description of
the designation, we included the language ``will contain a detailed
description of the proposed action'' to clarify that the regulation (in
the form of maps and any accompanying text) must itself provide a
sufficiently detailed description.
50 CFR 424.18(a)
This section addresses the final rule requirements. In the second
sentence of the existing regulation, we are proposing to replace ``the
complete text of the rule'' with ``a detailed description of the action
being finalized.'' As with the sections above that deal with the
requirements for a proposed rule, changing the wording here, along with
the other changes proposed in this notice, will clarify how we
interpret this mandate in the context of critical habitat designation.
As discussed above, our interpretation of what is included within the
designation will be provided with the more detailed information
discussed in the preamble of the rulemaking documents published in the
Federal Register and made available from the lead office responsible
for such designation habitat. Because the regulation will be the
legally binding description of the designation, we included the
language ``will contain a detailed description of the proposed action''
to clarify that the regulation (in the form of maps and any
accompanying text) must itself provide a sufficiently detailed
description.
In the fourth sentence of the existing regulation, we are proposing
to remove the references to the final rule containing a description of
the boundaries of the critical habitat being designated. We are
modifying this section and expanding the discussion on the requirement
for a map. The new proposed section would read: ``A rule designating or
revising critical habitat will also include a map of the critical
habitat area. The map itself constitutes the official boundary of the
designation. The official boundary may also be delineated by rule text
or by the map as modified by rule text. The Services may also create
additional explanatory text, information, or maps and include them in
the preamble of the rulemaking document or make them available from the
lead Service office responsible for the designation.'' This change will
provide more clarity regarding the areas being designated, as well as
allow us to reduce our printing costs in both the Federal Register and
for the annual reproductions of the CFR. Our interpretation of what is
included within the designation will be provided with the more detailed
information discussed in the preamble of the rulemaking documents
published in the Federal Register and made available from the lead
office responsible for such designation habitat. We believe this change
will not increase the burden on the public.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
a. Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
b. Whether the rule will create inconsistencies with other Federal
agencies' actions.
c. Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. Whether the rule raises novel legal or policy issues.
[[Page 28411]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The 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.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule, if adopted, would not have a significant
economic effect on a substantial number of small entities as defined
under the RFA.
This proposed rule would revise the implementing regulations
contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and
(c)(1)(ii), and 424.18(a), to eliminate the requirement to publish
textual descriptions of proposed (NMFS only) and final (NMFS and FWS)
critical habitat boundaries in the Federal Register and reprinting in
the CFR, and instead provide that the map(s), as clarified or refined
by any textual language within the rule, constitutes the definition of
the boundaries of a Critical Habitat. A full description of the action,
why it is being considered, and the legal basis for this action are
contained in the preamble to this proposed rule. The proposed rule does
not duplicate, overlap, or conflict with other Federal rules.
This rulemaking amends the procedural requirements for NMFS and FWS
when designating critical habitat. NMFS and FWS are the only entities
that are directly impacted by this rule, and they are not considered to
be small entities under SBA's size standards. No other entities are
directly impacted by this rule.
The revisions to the implementing regulations proposed herein are
not expected to impose any direct costs on regulated entities. The
elimination of the procedural requirement to publish textual
descriptions of proposed (NMFS only) and final (NMFS and FWS) critical
habitat boundaries in the Federal Register and reprinting in the CFR is
an administrative action, and it is intended to facilitate public
understanding of the critical habitat designation process and make it
easier for the public to determine if specific areas are within the
critical habitat designation. In fact, this regulation would make the
process more cost-effective for the agencies and the public as a whole
and would potentially save the FWS alone an estimated $391,742
annually. Therefore, for the reasons above, this proposed rule would
not have a significant economic impact on a substantial number of small
entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Services make the following findings:
a. This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
b. We do not believe this rule will significantly or uniquely
affect small governments, because the revisions to the implementing
regulations proposed herein will facilitate public understanding of the
critical habitat designation process, and the areas included within the
critical habitat, and make the process more cost-effective for the
agencies and the public as a whole by potentially saving the FWS alone
an estimated $391,742 annually. As such, we do not believe that a Small
Government Agency Plan is required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have evaluated the proposal to revise the implementing
regulations for designating critical habitat and have determined that
this proposed rule does not pose significant takings implications. The
proposed revisions to the implementing regulations are intended to
facilitate the public understanding of the rulemaking process for
critical habitat.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. The revisions to the regulations addressed in this
proposed rule are intended to facilitate the public understanding of
the rulemaking process for critical habitat, and thus should not
significantly affect or burden the authority of the States to govern
themselves.
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 meets the requirements of
sections 3(a) and 3(b)(2) of the Order. The revisions to the
regulations addressed in this proposed rule are intended to facilitate
the public understanding of the rulemaking process for critical
habitat, and thus should not significantly affect or burden the
judicial system.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. (44 U.S.C.
3501 et seq.).
[[Page 28412]]
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.
National Environmental Policy Act (NEPA)
We determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted under section 4(a) of the Act. We published a
notice outlining our reasons for this determination in the Federal
Register.
Also, it is our position that, outside the jurisdiction of the
United States Court of Appeals for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the Circuit Court of the United States for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996)).
However, we have analyzed this proposed rule in accordance with the
criteria of the National Environmental Policy Act. Since this proposal
is administrative in nature (i.e., we are making optional the inclusion
of any textual description of the boundaries of the designation in the
Federal Register), there is no effect to the quality of the human
environment. This proposed rule does not constitute a major Federal
action significantly affecting the quality of the human environment. An
environmental assessment is not required.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior Manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Native
American Tribes on a government-to-government basis. We have evaluated
the potential effects on federally recognized Tribes from these
proposed revisions to our implementing regulations for critical
habitat. We have determined that there are no potential effects to
federally recognized Tribes since the revisions to the implementing
regulations are intended to facilitate the public understanding of
critical habitat designations and save taxpayer monies. We will,
however, continue to coordinate with Tribes as we promulgate critical
habitat designations.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This proposed rule to revise the implementing
regulations for designating critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action and no Statement of
Energy Effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise this 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.
Author(s)
The primary authors of this package are staff members from the U.S.
Fish and Wildlife Service and the National Marine Fisheries Service.
List of Subjects in 50 CFR Parts 17, 226, and 424
Endangered and
