Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions, 29286-29296 [2015-12316]
Download as PDF
tkelley on DSK3SPTVN1PROD with PROPOSALS
29286
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
depicting the closure is available from
the Refuge Headquarters.
(ii) Headquarters Lake, adjacent to the
Kenai Refuge Headquarters area, is
closed to boating.
(11) Area-specific regulations for the
Russian River Special Management
Area. The Russian River Special
Management Area includes all refuge
lands and waters within 1⁄4 mile of the
eastern refuge boundary along the
Russian River from the upstream end of
the fish ladder at Russian River Falls
downstream to the confluence with the
Kenai River, and within 1⁄4 mile of the
Kenai River from the eastern refuge
boundary downstream to the upstream
side of the powerline crossing at river
mile 73, and areas managed by the
refuge under memorandum of
understanding or lease agreement at the
Sportsman Landing facility. In the
Russian River Special Management
Area:
(i) While recreating on or along the
Russian and Kenai rivers, you must
closely attend or acceptably store all
attractants, and all equipment used to
transport attractants (such as backpacks
and coolers) at all times. Attractants are
any substance, natural or manmade,
including but not limited to, items of
food, beverage, personal hygiene, or
odiferous refuse that may draw, entice,
or otherwise cause a bear or other
wildlife to approach. Closely attend
means to retain on the person or within
the person’s immediate control and in
no case more than 3 feet from the
person. Acceptably store means to lock
within a commercially produced and
certified bear-resistant container.
(ii) While recreating on or along the
Russian and Kenai rivers, you must
closely attend or acceptably store all
lawfully retained fish at all times.
Closely attend means to keep within
view of the person and be near enough
for the person to quickly retrieve, and in
no case more than 12 feet from the
person. Acceptably store means to lock
within a commercially produced and
certified bear-resistant container.
(iii) We prohibit overnight camping
except in designated camping facilities
at the Russian River Ferry and
Sportsman’s Landing parking areas.
Campers may not spend more than 2
consecutive days at these designated
camping facilities.
(iv) You may start or maintain a fire
only in designated camping facilities at
the Russian River Ferry and
Sportsman’s Landing parking areas, and
then only in portable, self-contained,
metal fire grills, or in the permanent fire
grates provided. We prohibit moving a
permanent fire grill or grate to a new
location. You must completely
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
extinguish (put out cold) all campfires
before permanently leaving your
campsite.
(12) Area-specific regulations for the
Moose Range Meadows Subdivision
Non-Development and Public Use
Easements.
(i) Where the refuge administers two
variable width, non-development
easements held by the United States and
overlaying private lands within the
Moose Range Meadows Subdivision on
either shore of the Kenai River between
river miles 25.1 and 28.1, you may not
erect any building or structure of any
kind; remove or disturb gravel, topsoil,
peat, or organic material; remove or
disturb any tree, shrub, or plant material
of any kind; start a fire; or use a
motorized vehicle of any kind (except a
wheelchair occupied by a person with a
disability), unless such use is
authorized under the terms and
conditions of a special use permit (FWS
Form 3–1383–G) issued by the Refuge
Manager.
(ii) Where the refuge administers two
25-foot-wide public use easements held
by the United States and overlaying
private lands within the Moose Range
Meadows Subdivision on either shore of
the Kenai River between river miles 25.1
and 28.1, we allow public entry subject
to applicable Federal regulations and
the following provisions:
(A) You may walk upon or along, fish
from, or launch or beach a boat upon an
area 25 feet upland of ordinary high
water, provided that no vehicles (except
wheelchairs) are used. We prohibit nonemergency camping, structure
construction, and brush or tree cutting
within the easements.
(B) From July 1 to August 15, you may
not use or access any portion of the 25foot-wide public easements or the three
designated public easement trails
located parallel to the Homer Electric
Association Right-of-Way from Funny
River Road and Keystone Drive to the
downstream limits of the public use
easements. Maps depicting the seasonal
closure are available from Refuge
Headquarters.
(13) Area-specific regulations for
Alaska Native Claims Settlement Act
Section 17(b) Easements. Where the
refuge administers Alaska Native Claims
Settlement Act Section 17(b) easements
to provide access to refuge lands, no
person may block, alter, or destroy any
section of the road, trail, or
undeveloped easement, unless such use
is authorized under the terms and
conditions of a special use permit (FWS
Form 3–1383–G) issued by the Refuge
Manager. No person may interfere with
lawful use of the easement or create a
public safety hazard on the easement.
PO 00000
Frm 00063
Fmt 4702
Sfmt 4702
Section 17(b) easements are depicted on
a map available from Refuge
Headquarters.
*
*
*
*
*
Dated: May 5, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2015–12099 Filed 5–20–15; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Marine Fisheries Service
50 CFR Part 424
[Docket Nos. FWS–HQ–ES–2015–0016; DOC
150506429–5429–01; 4500030113]
RIN 1018–BA53; 0648–BF06
Endangered and Threatened Wildlife
and Plants; Revisions to the
Regulations for Petitions
U.S. Fish and Wildlife Service
(FWS), Interior; National Marine
Fisheries Service (NMFS), Commerce.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service, propose
changes to the regulations concerning
petitions, to improve the content and
specificity of petitions and to enhance
the efficiency and effectiveness of the
petitions process to support species
conservation. Our proposed revisions to
the regulations would clarify and
enhance the procedures by which the
Services will evaluate petitions under
section 4(b)(3) of the Endangered
Species Act of 1973, as amended. These
revisions would also maximize the
efficiency with which the Services
process petitions, making the best use of
available resources.
DATES: We will accept comments that
we receive on or before July 20, 2015.
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 Time on the closing
date.
ADDRESSES: You may submit comments
by one of the following methods:
• Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter the docket number for this
proposed rule, which is FWS–HQ–ES–
SUMMARY:
E:\FR\FM\21MYP1.SGM
21MYP1
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
2015–0016. Then click on the Search
button. In the Search panel on the left
side of the screen, under the Document
Type heading, click on the Proposed
Rules link to locate this document. You
may submit a comment by clicking on
‘‘Comment Now!’’ Please ensure that
you have found the correct document
before submitting your comment.
• By hard copy: Submit by U.S. mail
or hand delivery to: Public Comments
Processing, Attn: Docket No. FWS–HQ–
ES–2015–0016; U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike,
Falls Church, VA 22041–3803.
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:
Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and
Classification, 5275 Leesburg Pike, Falls
Church, VA 22041–3803, telephone
703–358–2171; facsimile 703–358–1735;
or Angela Somma, National Marine
Fisheries Service, Office of Protected
Resources, 1315 East-West Highway,
Silver Spring, MD 20910, telephone
301–427–8403. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
tkelley on DSK3SPTVN1PROD with PROPOSALS
Background
The primary purpose of the petition
process is to empower the public, in
effect, to direct the attention of the U.S.
Fish and Wildlife Service and the
National Marine Fisheries Service
(Services) to (1) species that may be
imperiled and not otherwise known to
the Services, (2) changes to a listed
species’ threats or other circumstances
that warrant that species being
reclassified (i.e., changed in listing
status by ‘‘downlisting’’ from
endangered to threatened, or by
‘‘uplisting’’ from threatened to
endangered) or delisted (i.e., removed
from the Federal List of Endangered and
Threatened Wildlife or List of
Endangered and Threatened Plants), or
(3) necessary revisions to critical habitat
designations. The petition process is a
central feature of the Endangered
Species Act of 1973 (Act; 16 U.S.C. 1531
et seq.), as amended, and serves a
beneficial public purpose.
Purpose of Proposed Revision of
Regulations
The Services are proposing changes to
the regulations at 50 CFR 424.14
concerning petitions to improve the
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
content and specificity of petitions and
to enhance the efficiency and
effectiveness of the petitions process to
support species conservation. Our
proposed revisions to § 424.14 would
clarify and enhance the procedures by
which the Services will evaluate
petitions under section 4(b)(3) of the
Act, 16 U.S.C. 1533(b)(3). We propose to
revise the regulations pertaining to the
petition process to provide greater
clarity to the public on the petitionsubmission process, which will assist
petitioners in providing complete
petitions. These revisions would also
maximize the efficiency with which the
Services process petitions, making the
best use of available resources. These
changes would improve the quality of
petitions through expanded content
requirements and guidelines; and, in
doing so; better focus the Services’
energies on petitions that merit further
analysis. The following discussion
outlines the proposed changes and
explains the benefits of making these
changes.
Specific Proposed Changes to Current
Regulations at 50 CFR 424.14
General Authority and Requirements for
Petitions—Paragraphs (a) and (b)
Proposed paragraph (a) would retain
the first sentence of the current section.
Proposed new paragraph (b) would
incorporate the substance of the second
and third sentences of current paragraph
(a), which set forth certain minimum
content requirements for a request for
agency action to qualify as a petition for
the purposes of section 4(b)(3) of the
Act, 16 U.S.C. 1533(b)(3). The new
paragraph would also expand upon the
list of requirements for a petition,
drawing in part from the provisions in
current paragraph (b)(2). Proposed
paragraph (b)(2) would, however, newly
require that a petition address only one
species. Although the Services in the
past have accepted multi-species
petitions, in practice it has often proven
to be difficult to know which supporting
materials apply to which species, and
has sometimes made it difficult to
follow the logic of the petition. This
requirement would not place any
limitation on the ability of an interested
party to petition for section 4 actions,
but would require petitioners to
organize the information in a way (on a
species-by-species basis) that will allow
more efficient action by the Services.
The first six requirements (in
proposed paragraphs (b)(1) through
(b)(6)) would apply to each type of
petition recognized under section
4(b)(3) of the Act. The first four
requirements (in proposed paragraphs
PO 00000
Frm 00064
Fmt 4702
Sfmt 4702
29287
(b)(1) through (b)(4)) are all contained in
the current regulations at § 424.14(a)
and (b). The fifth and sixth requirements
(in proposed paragraphs (b)(5) and
(b)(6)) clarify and expand on the current
provisions regarding a petition’s
supporting documentation at
§ 424.14(b)(2)(iv). The seventh
requirement (in proposed paragraph
(b)(7)), however, would apply only to
petitions to list a species, and would
require that information be presented on
the face of the request to demonstrate
that the entity that is the subject of the
request is or may be a ‘‘species’’ as
defined in the Act (which includes a
species, subspecies, or distinct
population segment). Section 4(b)(3)(A)
of the Act applies only to ‘‘a petition
. . . to add a species to, or to remove
a species from, either of the lists [of
endangered or threatened wildlife and
plants]’’ (emphasis added). This
provision screens from needless
consideration those requests that clearly
do not involve a species, subspecies, or
distinct population segment. The eighth
requirement (in proposed paragraph
(b)(8)), would apply only to petitions to
list, delist, or reclassify a species, and
would require that information be
included in the petition describing the
current range of the species, including
range States or countries, as appropriate.
Although section 4(b)(3)(A) of the Act
authorizes interested persons to submit
a petition to add a species to, or remove
a species from, the Lists of Endangered
and Threatened Wildlife and Plants, and
section 4(b)(3)(D) of the Act authorizes
submission of petitions to revise critical
habitat designations, the Act does not
specify the required contents of such a
petition, but instead leaves with the
Secretary the authority to do so. The
Services are concerned that the States,
which often have considerable
experience and information on the
species within their boundaries, have
opportunity to be involved in providing
information as part of the petition
process. To further the Act’s directive to
cooperate to the maximum extent
practicable with the States, the
Secretary proposes to revise the
regulations pertaining to the required
contents of such petitions, as well as
petitions to revise or designate critical
habitat. The goal of this proposed
revision is to encourage greater
communication and cooperation among
would-be petitioners and State
conservation agencies prior to the
submission of listing or critical habitat
petitions to the Secretary.
To that end, we propose a ninth
requirement (proposed paragraph (b)(9))
that would apply only to petitions to the
U.S. Fish and Wildlife Service to add a
E:\FR\FM\21MYP1.SGM
21MYP1
tkelley on DSK3SPTVN1PROD with PROPOSALS
29288
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
species that occurs within the United
States to the List of Endangered and
Threatened Wildlife or List of
Endangered and Threatened Plants,
change the status of a listed domestic
species, or designate or revise critical
habitat for any domestic species under
its jurisdiction. This proposed
requirement concerns communications
between the petitioner(s); the State
agency(ies) responsible for the
management and conservation of fish,
plant, or wildlife resources in each State
where the species that is the subject of
the petition occurs; and the U.S. Fish
and Wildlife Service. As a general
matter, States have jurisdiction and the
responsibility for managing and
conserving freshwater fish, wildlife, and
plant species that are not listed as
endangered or threatened species under
the Act. In the exercise of their
jurisdiction and responsibility, the
States have developed substantial
experience, expertise, and information
relevant to the conservation of such
species. The Act recognizes and
acknowledges that experience and
expertise in a number of ways. For
example, section 6 of the Act directs the
Secretary to cooperate to the maximum
extent practicable with the States in
carrying out the program authorized by
the Act. Consistent with this mandate,
section 4(b) of the Act directs the
Secretary, when making determinations
with respect to the listing of any
species, to take into account the efforts
being made by any State to protect such
species. In addition, although the
Secretary is free to adopt regulations
pursuant to section 4 that are at odds
with the written recommendations of a
State conservation agency, when he or
she does so, section 4(i) of the Act
requires the Secretary to provide the
State agency with a written justification
for not adopting regulations consistent
with State’s recommendations. In these
and other ways, the Act recognizes and
respects the special status of the States
with respect to the conservation and
management of fish, wildlife, and
plants.
Proposed paragraph (b)(9) would
require that for any petition submitted
to the U.S. Fish and Wildlife Service
pertaining to species found within the
United States, a petitioner must certify
that a copy of the petition was provided
to the State agency(ies) responsible for
the management and conservation of
fish, plant, or wildlife resources in each
State where the species occurs at least
30 days prior to submission to the
Service. The certification must include
the date that the petition was provided
to the relevant State agency(ies). If the
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
State agency(ies) provided data or
written comments regarding the
accuracy or completeness of the
petition, those data or comments must
be labeled as such, appended to the
petition, and submitted with the
petition. If the State agency(ies) did not
provide any data or written comments
regarding the accuracy or completeness
of the petition, the petitioner must so
certify. We realize that States may not
have jurisdiction over or regulate all
species, such as insects or plants, and
thus may not be able to provide any data
for certain species.
Note that if a State provides data or
written comments to the petitioner after
the petition is filed, section 424.14(b)(9)
would not require that the petitioner
resubmit the petition with the new State
data or written comments (although the
petitioner may choose to do so). State
data received after the filing of the
petition will not reset the clock for the
Services’ consideration of the petition,
but will become part of the data
available in our files that we may elect
to review under proposed section
(g)(1)(ii) if sufficient time remains to do
so.
In this proposed rule, we are
proposing to include the requirement
under (b)(9) only as to petitions filed
with the United States Fish and Wildlife
Service. We recognize the relatively
greater logistical difficulties that would
be posed to petitioners if they were
required to identify and coordinate with
all interested States regarding marine
species and wide-ranging anadromous
species. However, we seek public
comment as to whether this
requirement, if adopted, should also
apply to petitions filed with the
National Marine Fisheries Service.
The Services are also concerned that
petitions should include a presentation
of all reasonably available, relevant data
on the subject species (or, if relevant for
the particular petition, its habitat),
including information that supports the
petition as well as that which may tend
to refute it. This is particularly true for
information publicly available from
affected States, who have special status
and concerns with respect to
implementation of the Act, as discussed
above. Fostering greater inclusion of
such data would help ensure that any
petition submitted to the Secretary is
based on reliable and unbiased
information and does not consist simply
of unrepresentative, selected data.
To this end, we propose a tenth
requirement (proposed paragraph
(b)(10)), applicable to all petitions filed
with either Service, that would require
a petitioner to certify that the petitioner
has gathered all relevant information
PO 00000
Frm 00065
Fmt 4702
Sfmt 4702
readily available, including from Web
sites maintained by the affected States,
and has clearly labeled and appended
such information to the petition so that
it is submitted with the petition. As an
alternative to this provision, we are
considering limiting the requirement
under (b)(10) to extend only to gathering
and certifying submission of relevant
information publicly available on
affected States’ Web sites.
The Services would apply § 424.14(b)
to identify those requests that contain
all the elements of a petition, so that
consideration of the request would be
an efficient and wise use of agency
resources. A request that fails to meet
these elements would be screened out
from further consideration, as discussed
below, because a request cannot meet
the statutory standard for demonstrating
that the petitioned action may be
warranted if it does not contain at least
some information on each of the areas
relevant to that inquiry.
Types of Information To Be Included in
Petitions—Paragraphs (c) and (d)
Proposed § 424.14(c) and (d) describe
the types of information that would be
relevant to the Secretary’s determination
as to whether the petition provides
substantial information that the
petitioned action may be warranted.
Petitioners are advised that compliance
with paragraph (b) would result in
issuance of a 90-day finding, but for that
finding to be positive, petitioners
should include as much of the types of
information listed in paragraphs (c) or
(d) (as relevant to the type of petition
they are filing) as possible.
Petitions To List, Delist, or Reclassify
The proposed informational elements
for listing, delisting, and reclassification
petitions in proposed paragraphs (c)(1)
through (c)(5) are rooted in the
substance of current paragraphs (b)(2)(ii)
and (iii). These elements would clarify
in the regulations the key considerations
that are relevant when the Services are
determining whether or not the petition
presents ‘‘substantial scientific or
commercial information indicating that
the petitioned action may be
warranted,’’ which is the standard for
making a positive 90-day finding as
described in section 4(b)(3)(A) of the
Act, 16 U.S.C. 1533(b)(3)(A).
Proposed paragraph (c)(3) refers to
inclusion in a petition of a description
of the magnitude and immediacy of
threats. This request is included to
assist the U.S. Fish and Wildlife Service
in assessing the listing priority number
of species for which a warranted-butprecluded finding is made under the
U.S. Fish and Wildlife Service’s (FWS)
E:\FR\FM\21MYP1.SGM
21MYP1
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
tkelley on DSK3SPTVN1PROD with PROPOSALS
September 21, 1983, guidance, which
requires assessing, in part, the
magnitude and immediacy of threats (48
FR 43098). In addition to being useful
for status reviews, this information
should be included to assist in
determinations on delisting and
reclassification requests. While such
information will likely also be useful to
the National Marine Fisheries Service
(NMFS), it should be noted that NMFS
has not adopted the 1983 FWS
guidance, and so would not apply that
guidance to petitions within its
jurisdiction.
Proposed paragraph (c)(5) is a revision
of the language in current paragraph
(b)(2) that describes information a
petitioner may include for consideration
in designating critical habitat in
conjunction with a listing or
reclassification. We propose to delete
the clause ‘‘and indicates any benefits
and/or adverse effects on the species
that would result from such
designation’’ because this information is
not relevant to the biological
considerations that underlay a listing
determination.
Petitions To Revise Critical Habitat
Similarly, proposed new § 424.14(d)
sets forth the kinds of information a
petitioner should include in a petition
to revise critical habitat. The Secretary’s
determination as to whether the petition
provides ‘‘substantial scientific
information indicating that the revision
may be warranted’’ (16 U.S.C.
1533(b)(3)(D)(i)) will depend in part on
the degree to which the petition
includes this type of information.
The items set out at proposed new
paragraph (d) are an expanded and
reworded version of the substance of
current paragraph (c)(2). Proposed
paragraph (d)(1) would confirm that, to
justify a revision to critical habitat, it is
important to demonstrate that the
existing designation includes areas that
should not be included or does not
include areas that should be included,
and to discuss the benefits of
designating additional areas, or the
reasons to remove areas from an existing
designation. Additionally, including
maps with enough detail to clearly
identify the particular area(s) being
recommended for inclusion or exclusion
will be useful to the Services in making
a petition finding.
Proposed paragraph (d)(2) is drawn
from the substance of current
paragraphs (c)(2)(i) and (ii), which have
been reorganized and clarified.
Proposed paragraph (d)(2) would clarify
that several distinct pieces of
information are needed to analyze
whether any area of habitat should be
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
designated, beginning with a
description of the ‘‘physical or
biological features’’ that are essential for
the conservation of the species and
which may require special management.
Proposed paragraphs (d)(3) and (d)(4)
would detail the informational needs
the Services will have in considering
whether to add or remove habitat from
the designation comprising specific
areas occupied by the species at the
time of listing, respectively. Proposed
paragraph (d)(5) would highlight the
particular informational needs
associated with evaluating habitat that
was unoccupied at the time of listing—
that is, information that fulfills the
statutory requirement that any specific
areas designated are ‘‘essential to the
conservation of the species.’’ See section
3(5)(A)(ii) of the Act, 16 U.S.C.
1532(5)(A)(ii).
Proposed paragraph (d)(6) would
provide additional direction that a
petition should include information
demonstrating that the petition provides
a complete presentation of the relevant
facts, including an explanation of what
sources of information the petitioner
consulted in drafting the petition, as
well as any relevant information known
to the petitioner not included in the
petition.
Responses to Petitions—Paragraph (e)
Proposed new § 424.14(e) sets out the
possible responses the Secretary may
make to requests. Proposed paragraph
(e)(1) would clarify that a request that
fails to satisfy the mandatory elements
set forth in proposed paragraph (b) may
be returned by the Services without a
further determination on the merits of
the request. In light of the volume of
requests received by the Services, it is
critical that we have the option to
identify early on those requests that on
their faces are incomplete, in order to
ensure that agency resources are not
diverted from higher priorities.
Although this authority is implied in
the current regulations, making the
point explicit in the revised regulations
would provide additional notice to
petitioners, and lead to better-quality
requests and more efficient and effective
(in terms of species conservation) use of
agency resources. Proposed
§ 424.14(e)(2) would confirm that a
request that complies with the
mandatory requirements will be
acknowledged in writing as a petition
within 30 days of receipt (as required
under current 424.14(a)).
PO 00000
Frm 00066
Fmt 4702
Sfmt 4702
29289
Additional Information Provided
Subsequent to Receipt of the Petition—
Paragraph (f)
Proposed paragraph (f) would address
the situation in which a petitioner
supplements a petition with additional
information at a later date, requesting
that the Secretary take the new
information into account. The Services’
standard practice in these circumstances
has been to notify petitioners of receipt
of this information and inform them
that, in order to meaningfully consider
this information, the Services consider
the statutory deadlines to now run from
the receipt date of the supplemental
information. The proposed provision
would clarify our position that the
statutory period applicable to making
any required finding would be re-set to
begin running from the time such
additional information is received by
the Secretaries. In effect, the
supplemental information, together with
the original petition, will be considered
a new petition that constructively
supplants the original petition and resets the period for making a 90-day
finding under section 4(b)(3)(A) of the
Act. This is consistent with 16 U.S.C.
1533(b)(3)(A) and 1533(b)(3)(D)(i),
which direct the Services to determine
whether ‘‘the petition’’ presents
substantial information indicating that
the petitioned action may be warranted.
Supplementing the information
supporting a petition is, therefore,
constructively the same as submitting a
new petition. The Services propose to
make this explicit in the regulations to
ensure that the Services have adequate
time to consider the supplemental
information relevant to a petition. Also,
by giving clear notice of this process,
the Services can encourage petitioners
to assemble all the information they
believe necessary to support the petition
prior to sending it to the Services for
consideration, further enhancing the
efficiency of the petition process.
Findings on a Petition To List, Delist, or
Reclassify—Paragraph (g)
Proposed § 424.14(g) would explain
the kinds of findings the Services may
make on a petition to list, delist, or
reclassify a species and the standards to
be applied in that process. Proposed
paragraph (g)(1) is drawn largely from
current paragraph (b)(1), with some
revisions. Most significantly, proposed
paragraph (g)(1)(i) would clarify the
substantial-information standard by
defining it as credible scientific and
commercial information that would lead
a reasonable person conducting an
impartial scientific review to conclude
that the action proposed in the petition
E:\FR\FM\21MYP1.SGM
21MYP1
tkelley on DSK3SPTVN1PROD with PROPOSALS
29290
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
may be warranted. Thus, conclusory
statements made in a petition without
the support of credible scientific or
commercial information are not
‘‘substantial information.’’ For example,
a petition that states only that a species
is rare and thus should be listed,
without other credible information
regarding its status, does not provide
substantial information. This
interpretation is consistent with the
Scott’s riffle beetle case (WildEarth
Guardians v. Salazar (D. Colo. Sept. 19,
2011)). In that case, the court rejected
the challenge to a negative 90-day
finding, because the petition did not
present any information of any potential
threat currently affecting the species or
reasonably likely to do so in the
foreseeable future. The court found that
information as to the rarity of a species,
without more information, is not
‘‘substantial information’’ that listing
the species may be warranted.
In § 424.14(g)(1)(ii), we propose to
add a new sentence to clarify that the
Services may consider information that
is readily available in the relevant
agency’s possession at the time it makes
a 90-day finding. For purposes of
§ 424.14(g)(1), the Services recognize
that the statute places the obligation
squarely on the petitioner to present the
requisite level of information to meet
the ‘‘substantial information’’ test, and
that the Services therefore should not
seek to supplement petitions. (Please
see the Columbian sharp-tailed grouse
case (WildEarth Guardians v. U.S.
Secretary of the Interior, 2011 U.S. Dist.
Lexis 32470 (D. Idaho Mar. 28, 2011)),
which provided, among other things,
that the petitioner has the burden of
providing substantial information.)
However, the Services believe they
should evaluate such petitions in
context and using the Services’
expertise. In order to apply their best
professional judgment, Service staff
reviewing petitions may need to take
into account information readily
available in the agency’s possession,
including both information tending to
support the petition and information
tending to contradict the information
presented therein. Although the
Services are mindful that, at the stage of
formulating an initial finding, they
should not engage in outside research or
an effort to comprehensively compile
the best available information, they
must be able to place the information
presented in the petition in context.
The Act contemplates a two-step
process in reviewing a petition. The 12month finding is meant to be the more
in-depth determination and follows a
status review, while the 90-day finding
is meant to be a quicker evaluation of
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
a more limited set of information.
However, based on their experience in
administering the Act, the Services
conclude that evaluating the
information presented in the petition in
a vacuum can lead to inaccurately
supported decisions and misdirection of
resources away from higher priorities. It
may be difficult for the Services to bring
informed expertise to their evaluation of
the facts and claims alleged in a petition
without considering the petition in the
context of other information of the sort
that the Services maintain in their
possession and would routinely consult
in the course of their work. It is
reasonable for the Services to be able to
examine the veracity of the information
included in a petition prior to
committing limited Federal resources to
the significant expense of a status
review.
The Act’s legislative history also
supports explicitly recognizing the
discretion that the Services have to
bring their informed expertise and
judgment to bear in reviewing petitions.
In a discussion of judicial review of the
Secretary’s 90-day findings on petitions,
a House Conference report states that,
when courts review such a decision, the
‘‘object of [the judicial] review is to
determine whether the Secretary’s
action was arbitrary or capricious in
light of the scientific and commercial
information available concerning the
petitioned action.’’ H.R. Conf. Rep. No.
97–835, at 20, reprinted in 1982
U.S.C.C.A.N. 2860, 2862 (emphasis
added). By requiring courts to evaluate
the Secretary’s substantial information
findings in light of information
‘‘available,’’ this statement suggests that
the drafters anticipated that the
Secretary could evaluate petitions in the
context of scientific and commercial
information available to the Services,
and not limited arbitrarily to a subset of
available information presented in the
petitions. In these regulatory
amendments, the Services have crafted
a balanced approach that will ensure
that the Services may take into account
the information available to us, without
opening the door to the type of wideranging survey more appropriate for a
status review. The intent is not to solicit
new information.
The precise range of information
properly considered readily available in
the agency’s possession will vary with
circumstances, but could include the
information physically held by any
office within the Services (including, for
example, the NMFS Science Centers and
FWS Field Offices), and may also
include information stored
electronically in databases routinely
consulted by the Services in the
PO 00000
Frm 00067
Fmt 4702
Sfmt 4702
ordinary course of their work. For
example, it would be appropriate to
consult online databases such as the
Integrated Taxonomic Information
System (https://www.itis.gov), a database
of scientifically credible nomenclature
information maintained in part by the
Services.
Proposed paragraph (g)(1)(iii) would
explain how the substantial-information
standard applies to a petition to list,
delist, or reclassify a species that is
submitted after the Secretary has
already conducted a status review of
that species and determined that the
petitioned action is not warranted, or
made another listing action; such
petitions are referred to as ‘‘subsequent
petitions.’’ Subsequent petitions may
follow a 12-month finding or a final
determination on a proposed listing,
reclassification, or delisting rule. The
prior status review and determination
are part of the information readily
available in the agency’s possession for
consideration in evaluating the
subsequent petition, and they play an
important role in setting the context for
the 90-day finding. In addition, 5-year
reviews completed for listed species
would be considered in our evaluation
of a petition to delist or reclassify.
Although the substantial-information
standard applies to all petitions under
section 4(b)(3)(A) of the Act, the
standard’s application depends on the
context in which the finding is being
made. The context of a finding after a
status review and determination is quite
different than that before any status
review has been completed. Thus,
proposed § 424.14(g)(1)(iii) requires that
for a subsequent petition to provide
substantial information the petition
must provide sufficient new information
or analysis such that a reasonable
person conducting an impartial
scientific review would conclude that
the action proposed in the petition may
be warranted, despite the previous
determination. (Please see the
Columbian sharp-tailed grouse case
(WildEarth Guardians v. U.S. Secretary
of the Interior, 2011 U.S. Dist. Lexis
32470 (D. Idaho Mar. 28, 2011)), in
which the court found the FWS could
consider scientific conclusions in
previous 12-month finding valid,
because that finding was not
challenged.)
A reasonable person would not
conclude that the petitioned action may
be warranted if the petition fails to
present any substantial new information
or analysis that might alter the
conclusions of the Services’ prior
determination. Following a positive 90day finding on a petition, the Services
gather all available scientific and
E:\FR\FM\21MYP1.SGM
21MYP1
tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
commercial information and conduct a
status review of the species; the
resulting 12-month finding is a result of
this review. The Secretary may also
initiate and conduct a status review on
his or her own and determine if listing,
delisting, or reclassifying is warranted.
Similarly, a final determination on a
proposed rule to list or delist a species
requires that we first conduct a status
review of the species. If the subsequent
petition fails to provide any substantial
new information or analysis beyond that
already considered in a prior status
review or 5-year review that resulted in
a finding that listing or reclassification
of the species is not warranted, it would
not be rational to expect a different
outcome.
One corollary of this conclusion is
that the Secretary may find that a
subsequent petition fails the
‘‘substantial information’’ standard,
even though a prior petition seeking the
same action initially received a positive
90-day finding. Because the prior status
review, and resultant 12-month finding,
are now a part of the information readily
available in the agency’s possession, the
subsequent petition is on a different
footing from the prior petition.
Although similar information may have
qualified as ‘‘substantial’’ when it was
initially evaluated, it may not
necessarily be considered substantial in
the context of the completed status
review.
The completion of a status review of
a species consumes considerable agency
resources. The application of
§ 424.14(g)(1)(iii) is intended to assist
the Services in making judicious use of
those resources, by eliminating
unnecessary duplication of effort in
responding to a petition when the
Services have already evaluated the
species in question and no substantial
new information or analysis is available.
This would allow the Services to
instead concentrate on petitions for
actions that will best make use of
limited agency resources and potentially
result in greater conservation value for
a species that may be in need of the
protections of the Act.
Proposed § 424.14(g)(2) is
substantially the same as current
paragraph (b)(3). Among other changes,
we propose new language clarifying the
standard for making expeditiousprogress determinations in warrantedbut-precluded findings, including (in
paragraph (g)(2)(iii)(B)) a clear
acknowledgement that such
determinations are to be made in light
of resources available after complying
with nondiscretionary duties, court
orders, and court-approved settlement
agreements to take actions under section
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
4 of the Act. Current paragraph (b)(4)
would be redesignated as paragraph
(g)(3), although we propose to remove
the reference in the current language
that ‘‘no further finding of substantial
information will be required,’’ as it
merely repeats statutory language.
Findings on a Petition To Revise Critical
Habitat—Paragraph (h)
Proposed § 424.14(h) would explain
the kinds of findings that the Services
may make on a petition to revise critical
habitat. Proposed paragraph (h)(1) is
essentially the same as current
paragraph (c)(1) and describes the
standard applicable to the Secretary’s
finding at the 90-day stage. Please refer
to the discussion of the ‘‘substantial
information’’ test discussed in the
description of § 424.14(g)(1), above.
Proposed paragraph (h)(2) would
specifically acknowledge, consistent
with the statute, that such finding may,
but need not, take a form similar to one
of the findings called for at the 12month stage in the review of a petition
to list, delist, or reclassify species.
Section 4(a)(3)(A) of the Act establishes
a mandatory duty to designate critical
habitat for listed species to the
maximum extent prudent and
determinable at the time of listing (in
subsection (A)(i)), but respecting
subsequent revision of such habitat
provides only that the Services ‘‘may,
from time-to-time thereafter as
appropriate, revise such designation’’
(in subsection (A)(ii) (emphasis added)).
That the Services have broad
discretion to decide when it is
appropriate to revise critical habitat is
also evident in the differences between
the Act’s provisions discussing petitions
to revise critical habitat, on the one
hand, and the far more prescriptive
provisions regarding the possible
findings that can be made at the 12month stage on petitions to list, delist,
or reclassify species, on the other.
Section 4(b)(3)(B) includes three
detailed and exclusive options for 12month findings on petitions to list,
delist, or reclassify species. In contrast,
section 4(b)(3)(D)(ii) requires only that
the Secretary (acting through the
Services) ‘‘determine how he intends to
proceed with the requested revision’’
and promptly publish notice of such
intention in the Federal Register within
12 months of receipt of a petition to
revise critical habitat that has been
found to present substantial information
that the petitioned revision may be
warranted. The differences in these
subsections indicates that the listing
petition procedures are not required to
be followed in determining how to
proceed with petitions to revise critical
PO 00000
Frm 00068
Fmt 4702
Sfmt 4702
29291
habitat. See Sierra Club v. U.S. Fish and
Wildlife Service, 2013 U.S. Dist. LEXIS
37349 (D.D.C. Mar. 19, 2013) (12-month
determinations on petitions to revise are
committed to the agency’s discretion by
law, and thus unreviewable under the
Administrative Procedure Act); Morrill
v. Lujan, 802 F. Supp. 424 (S.D. Ala.
1992) (revisions to critical habitat are
discretionary); see also Barnhart v.
Sigman Coal Co., Inc., 122 S. Ct. 941,
951 (2002) (‘‘it is a general principle of
statutory construction that when
‘Congress includes particular language
in one section of a statute but omits it
in another section of the same Act, it is
generally presumed that Congress acts
intentionally and purposely in the
disparate inclusion or exclusion’ ’’)
(citing Russello v. United States, 464
U.S. 16, 23 (1983)); Federal Election
Commission v. National Rifle Ass’n of
America, 254 F.3d 173, 194 (D.C. Cir.
2001) (same).
Further, the legislative history for the
1982 amendments that added the
petition provisions to the Act confirms
that Congress intended to grant
discretion to the Services in
determining how to respond to petitions
to revise critical habitat. After
discussing at length the detailed listing
petition provisions and their intended
meaning, Congress said of the critical
habitat petition requirements, ‘‘Petitions
to revise critical habitat designations
may be treated differently.’’ H.R. Rep.
No. 97–835, at 22 (1982), reprinted in
1982 U.S.C.C.A.N. 2860, 2862.
The Services may find in particular
situations that terminology similar to
that set out in the listing-petition
provisions is useful for explaining their
intended response at the 12-month stage
on a petition to revise critical habitat.
For example, the Services have, at
times, used the term ‘‘warranted’’ to
indicate that requested revisions of
critical habitat would satisfy the
definition of critical habitat in section 3
of the Act. However, use of the listingpetition terms in a finding on a petition
to revise critical habitat would not mean
that the associated listing-petition
procedures and timelines apply or are
required to be followed with respect to
the petition. For example, if the Services
find that a petitioned revision of critical
habitat is, in effect, ‘‘warranted,’’ in that
the areas would meet the definition of
‘‘critical habitat,’’ that finding would
not require the Services to publish a
proposed rule to implement the revision
in any particular timeframe. Similarly, a
finding on a petition to revise critical
habitat that uses the phrase ‘‘warranted
but precluded,’’ or a functionally similar
phrase, to describe the Secretary’s
intention would not trigger the
E:\FR\FM\21MYP1.SGM
21MYP1
29292
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
requirements of section 4(b)(3)(B)(iii) or
(C) (establishing requirements to make
particular findings, to implement a
monitoring system, etc.).
Though the Services have discretion
to determine how to proceed with a
petition to revise critical habitat, the
Services believe that certain factors
respecting conservation and recovery of
the relevant species are likely to be
relevant and potentially important to
most such determinations. Such factors
may include, but are not limited to: The
status of the existing critical habitat for
which revisions are sought (e.g., when
it was designated, the extent of the
species’ range included in the
designation); the effectiveness or
potential of the existing critical habitat
to contribute to the conservation of the
relevant listed species; the potential
conservation benefit of the petitioned
revision to the listed species relative to
the existing designation; whether there
are other, higher-priority conservation
actions that need to be completed under
the Act, particularly for the species that
is the subject of the petitioned revision;
the availability of personnel, funding,
and contractual or other resources
required to complete the requested
revision; and the precedent that
accepting the petition might set for
subsequent requested revisions.
tkelley on DSK3SPTVN1PROD with PROPOSALS
Petitions To Initially Designate Critical
Habitat and Petitions for Special
Rules—Paragraph (i)
Proposed § 424.14(i) would be
substantially the same as current
paragraph (d), regarding petitions to
initially designate critical habitat or for
adoption of special rules under section
4(d) of the Act.
Withdrawn Petitions—Paragraph (j)
Proposed § 424.14(j) would describe
the process for a petitioner to withdraw
a petition, and the Services’ discretion
to discontinue action on the withdrawn
petition. Although the Services may
discontinue work on a 90-day or 12month finding for a petition that is
withdrawn, in the case of a petition to
list a species, the Services may use their
own process to evaluate whether the
species may warrant listing and whether
it should become a candidate for listing.
In the case of the withdrawal of a
petition to delist, uplist or downlist a
species, the Services may use the 5-year
review process to further evaluate the
status of the species, or elect to consider
the issue at any time.
Request for Information
Any final rule based on this proposal
will consider information and
recommendations timely submitted
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
from all interested parties. We solicit
comments, information, and
recommendations from governmental
agencies, Native American tribes, the
scientific community, industry groups,
environmental interest groups, and any
other interested parties on this proposed
rule. All comments and materials
received by the date listed in DATES,
above, will be considered prior to the
approval of a final rule.
We request comments and
information evaluating each of several
alternatives for insuring greater
inclusion of relevant data supporting
petitions, including information
available from State conservation
agencies within the range of the species.
We specifically seek comment on
proposed paragraph (b)(9), requiring
petitioner coordination with States prior
to submission of a petition to the Fish
and Wildlife Service, and paragraph
(b)(10), requiring certification that all
reasonably available information,
including relevant information publicly
available from affected States’ Web sites,
has been gathered and appended to a
petition filed with either Service. We
note that either of these two provisions
could stand alone, or both could be
included in a final rule, as shown in the
proposed regulatory text. We also
suggested an alternative to (b)(10) that
would require a certification only that
relevant information from affected
States’ Web sites has been gathered and
appended to a petition filed with either
Service. We seek information on which
alternatives, alone or in combination,
would be most consistent with law and
best achieve our goals of fostering
better-informed petitions and greater
cooperation with States. We also seek
comments and information regarding
any other alternative the public may
suggest to achieve the goals of greater
coordination with States and bettersupported petitions. Finally, we seek
comment on the criteria in paragraph
(d), including comments on the utility
of the criteria, the adequacy of the
criteria, and the effect of the criteria on
the workload on the petitioner.
You may submit your information
concerning this proposed rule by one of
the methods listed in ADDRESSES. 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 your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this personal
identifying information from public
review. However, we cannot guarantee
that we will be able to do so. We will
PO 00000
Frm 00069
Fmt 4702
Sfmt 4702
post all hardcopy submissions on
https://www.regulations.gov.
Information and supporting
documentation that we receive in
response to this proposed rule will be
available for you to review at https://
www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Division of Conservation and
Classification (see FOR FURTHER
INFORMATION CONTACT).
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Management and Budget’s
Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. The Office of Information and
Regulatory Affairs has determined that
this rule is not significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements. This proposed rule
is consistent with Executive Order
13563, and in particular with the
requirement of retrospective analysis of
existing rules, designed ‘‘to make the
agency’s regulatory program more
effective or less burdensome in
achieving the regulatory objectives.’’
Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(as amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996; 5 U.S.C. 601 et seq.),
whenever a Federal agency is required
to publish a notice of rulemaking for
any proposed or final rule, it must
prepare, and make available for public
comment, a regulatory flexibility
analysis that describes the effect of the
rule on small entities (i.e., small
businesses, small organizations, and
small government jurisdictions).
However, no regulatory flexibility
E:\FR\FM\21MYP1.SGM
21MYP1
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
analysis is required if the head of an
agency, or his designee, certifies that the
rule will not have a significant
economic impact on a substantial
number of small entities. SBREFA
amended the Regulatory Flexibility Act
to require Federal agencies to provide a
statement of the factual basis for
certifying that a rule will not have a
significant economic impact on a
substantial number of small entities. We
certify that, if adopted as proposed, this
proposed rule would not have a
significant economic effect on a
substantial number of small entities.
The following discussion explains our
rationale.
The proposed rule would revise and
clarify the regulations governing
documentation needed by the Services
in order to effectively and efficiently
evaluate petitions under the Act. While
some of the changes may require
petitioners to expend some time (such
as coordination with State(s)) and effort
(providing complete petitions), we do
not expect this will prove to be a
hardship, economically or otherwise.
Further, we expect the effect on any
external entities, large or small, would
likely be positive, as they will lead to
improved quality of petitions through
expanded content requirements and
guidelines.
tkelley on DSK3SPTVN1PROD with PROPOSALS
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.):
(a) On the basis of information
contained in the Regulatory Flexibility
Act section above, this proposed rule
would not ‘‘significantly or uniquely’’
affect small governments. We have
determined and certify pursuant to the
Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would not
impose a cost of $100 million or more
in any given year on local or State
governments or private entities. A Small
Government Agency Plan is not
required. As explained above, small
governments would not be affected
because the proposed rule would not
place additional requirements on any
city, county, or other local
municipalities.
(b) This proposed rule would not
produce a Federal mandate on State,
local, or tribal governments or the
private sector of $100 million or greater
in any year; that is, this proposed rule
is not a ‘‘significant regulatory action’’’
under the Unfunded Mandates Reform
Act. This proposed rule would impose
no obligations on State, local, or tribal
governments.
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
Takings (E.O. 12630)
In accordance with Executive Order
12630, this proposed rule would not
have significant takings implications.
This proposed rule would not pertain to
‘‘taking’’ of private property interests,
nor would it directly affect private
property. A takings implication
assessment is not required because this
proposed rule (1) would not effectively
compel a property owner to suffer a
physical invasion of property and (2)
would not deny all economically
beneficial or productive use of the land
or aquatic resources. This proposed rule
would substantially advance a
legitimate government interest
(conservation and recovery of
endangered and threatened species) and
would not present a barrier to all
reasonable and expected beneficial use
of private property.
Federalism (E.O. 13132)
In accordance with Executive Order
13132, we have considered whether this
proposed rule would have significant
Federalism effects and have determined
that a federalism summary impact
statement is not required. This proposed
rule pertains only to the petition process
under the Endangered Species Act, and
would not have substantial direct effects
on the States, on the relationship
between the Federal Government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule does not unduly
burden the judicial system and meets
the applicable standards provided in
sections 3(a) and 3(b)(2) of Executive
Order 12988. This proposed rule would
clarify the petition process under the
Endangered Species Act.
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
With Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175, and the Department of the
Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis.
National Environmental Policy Act
We are analyzing this proposed
regulation in accordance with the
criteria of the National Environmental
Policy Act (NEPA), the Department of
the Interior regulations on
Implementation of the National
PO 00000
Frm 00070
Fmt 4702
Sfmt 4702
29293
Environmental Policy Act (43 CFR
46.10–46.450), the Department of the
Interior Manual (516 DM 1–6 and 8),
and National Oceanic and Atmospheric
Administration (NOAA) Administrative
Order 216–6. We invite the public to
comment on the extent to which this
proposed regulation may have a
significant impact on the human
environment, or fall within one of the
categorical exclusions for actions that
have no individual or cumulative effect
on the quality of the human
environment. We will complete our
analysis, in compliance with NEPA,
before finalizing this regulation.
Energy Supply, Distribution or Use (E.O.
13211)
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions. This proposed rule, if made
final, is not expected to affect energy
supplies, distribution, and use.
Therefore, this action is not a significant
energy action, and no Statement of
Energy Effects is required.
Clarity of This Proposed 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 or
policy we publish must:
(a) Be logically organized;
(b) Use the active voice to address
readers directly;
(c) Use clear language rather than
jargon;
(d) Be divided into short sections and
sentences; and
(e) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the proposed rule,
your comments should be as specific as
possible. For example, you should tell
us the sections or paragraphs that are
unclearly written, which sections or
sentences are too long, the sections
where you feel lists or tables would be
useful, etc.
List of Subjects in 50 CFR Part 424
Administrative practice and
procedure, Endangered and threatened
species.
Proposed Regulation Promulgation
Accordingly, we propose to amend
part 424, subchapter A of chapter IV,
title 50 of the Code of Federal
Regulations, as set forth below:
E:\FR\FM\21MYP1.SGM
21MYP1
29294
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
PART 424—LISTING ENDANGERED
AND THREATENED SPECIES AND
DESIGNATING CRITICAL HABITAT
1. The authority citation for part 424
continues to read as follows:
■
Authority: 16 U.S.C. 1531 et seq.
■
2. Revise § 424.14 to read as follows:
tkelley on DSK3SPTVN1PROD with PROPOSALS
§ 424.14
Petitions.
(a) Ability to petition. Any interested
person may submit a written petition to
the Secretary requesting that one of the
actions described in § 424.10 be taken
for a species.
(b) Requirements for petitions. A
petition must clearly identify itself as
such, be dated, and contain the
following information:
(1) The name, signature, address,
telephone number, if any, and the
association, institution, or business
affiliation, if any, of the petitioner;
(2) The scientific and any common
name of the species that is the subject
of the petition. One and only one
species may be the subject of a petition;
(3) A clear indication of the
administrative action the petitioner
seeks (e.g., listing of a species or
revision of critical habitat);
(4) A detailed narrative justification
for the recommended administrative
action that contains an analysis of the
information presented;
(5) Literature citations that are
specific enough for the Secretary to
locate the information cited in the
petition, including page numbers or
chapters as applicable;
(6) Electronic or hard copies of any
supporting materials (e.g., publications,
maps, reports, letters from authorities)
cited in the petition, or valid links to
public Web sites where the supporting
materials can be accessed; and
(7) For a petition to list a species,
information to establish whether the
subject entity is a ‘‘species’’ as defined
in the Act.
(8) For a petition to list a species,
delist a species, or change the status of
a listed species, information on the
current geographic range of the species,
including range States or countries.
(9) For any petition submitted to the
U.S. Fish and Wildlife Service
pertaining to species found within the
United States, a certification:
(i) That a copy of the petition was
provided to the State agency(ies)
responsible for the management and
conservation of fish, plant, or wildlife
resources in each State where the
species occurs at least 30 days prior to
submission to the Service; and
(ii) That the State agency(ies) either:
(A) Provided to the petitioner data or
written comments regarding the
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
accuracy or completeness of the
petition, and all those data or comments
have been clearly labeled as such and
appended to the petition; or
(B) Did not provide to the petitioner
in response any data or written
comments regarding the accuracy or
completeness of the petition.
(10) Certification that the petitioner
has gathered all relevant information
(including information that may support
a negative 90-day finding) that is
reasonably available, such as that
available on Web sites maintained by
the affected States, and has clearly
labeled this information and appended
it to the petition.
(c) Types of information to be
included in petitions to add or remove
species from the lists, or change the
listed status of a species. The
Secretary’s determination as to whether
the petition provides substantial
information that the petitioned action
may be warranted will depend in part
on the degree to which the petition
includes the following types of
information; failure to include adequate
information on any one or more of the
following (except paragraph (5)) may
result in the Secretary finding that the
petition does not present substantial
information:
(1) Information on current population
status and trends and estimates of
current population sizes and
distributions, both in captivity and the
wild, if available;
(2) Identification of the factors under
section 4(a)(1) of the Act that may affect
the species and where these factors are
acting upon the species;
(3) Whether any or all of the factors
alone or in combination identified in
section 4(a)(1) of the Act may cause the
species to be an endangered species or
threatened species (i.e., place the
species in danger of extinction now or
in the foreseeable future), and, if so,
how, including a description of the
magnitude and imminence of the
threats;
(4) Information on adequacy of
regulatory protections and conservation
activities initiated or currently in place
that may protect the species or its
habitat; and
(5) Except for petitions to delist,
information that is useful in
determining whether a critical habitat
designation for the species is prudent
and determinable (see § 424.12),
including information on recommended
boundaries and physical features and
the habitat requirements of the species;
such information, however, will not be
a basis for determining whether the
petition has presented substantial
PO 00000
Frm 00071
Fmt 4702
Sfmt 4702
information that the petitioned action
may be warranted.
(d) Additional information to include
in petitions to revise critical habitat.
The Secretary’s determination as to
whether the petition provides
substantial information that the
petitioned action may be warranted will
depend in part on the degree to which
the petition includes the following types
of information; failure to include
adequate information on any one or
more of the following may result in the
Secretary finding that the petition does
not present substantial information:
(1) A description and map(s) of areas
that the current designation does not
include that should be included, or
includes that should no longer be
included, and the benefits of
designating or not designating these
specific areas as critical habitat.
Petitioners should include available
data layers if feasible;
(2) A description of the physical or
biological features essential for the
conservation of the species and whether
they may require special management
considerations or protection;
(3) For any areas petitioned to be
added to critical habitat within the
geographical area occupied by the
species at time it was listed, information
indicating that the specific areas contain
the physical or biological features that
are essential to the conservation of the
species and may require special
management considerations or
protection. The petitioner should also
indicate which specific areas contain
which features;
(4) For any areas petitioned for
removal from currently designated
critical habitat within the geographical
area occupied by the species at the time
it was listed, information indicating that
the specific areas do not contain
features (including features that allow
the area to support the species
periodically, over time) that are
essential to the conservation of the
species, or that these features do not
require special management
consideration or protections;
(5) For any areas petitioned to be
added to or removed from critical
habitat that were outside the
geographical area occupied by the
species at the time it was listed,
information indicating why the
petitioned areas are or are not essential
for the conservation of the species; and
(6) Information demonstrating that the
petition includes a complete
presentation of the relevant facts,
including an explanation of what
sources of information the petitioner
consulted in drafting the petition, as
well as any relevant information known
E:\FR\FM\21MYP1.SGM
21MYP1
tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
to the petitioner not included in the
petition.
(e) Response to requests. (1) If a
request does not meet the requirements
set forth at paragraph (b) of this section,
the Secretary will reject the request
without making a finding, and will
notify the sender and provide an
explanation of the rejection.
(2) If a request does meet the
requirements set forth at paragraph (b)
of this section, the Secretary will
acknowledge, in writing, the receipt of
a petition, within 30 days of receipt.
(f) Supplemental information. If the
petitioner provides supplemental
information before the initial finding is
made and asks that it be considered in
making a finding, the new information,
along with the previously submitted
information, is treated as a new petition
that supersedes the original petition,
and the statutory timeframes will begin
when such supplemental information is
received.
(g) Findings on petitions to add or
remove a species from the lists, or
change the listed status of a species. (1)
To the maximum extent practicable,
within 90 days of receiving a petition to
add a species to the lists, remove a
species from the lists, or change the
listed status of a species, the Secretary
will make a finding as to whether the
petition presents substantial scientific
or commercial information indicating
that the petitioned action may be
warranted. The Secretary will promptly
publish such finding in the Federal
Register and so notify the petitioner.
(i) For the purposes of this section,
‘‘substantial scientific or commercial
information’’ refers to credible scientific
or commercial information in support of
the petition’s claims such that a
reasonable person conducting an
impartial scientific review would
conclude that the action proposed in the
petition may be warranted. Conclusions
drawn in the petition without the
support of credible scientific or
commercial information will not be
considered ‘‘substantial information.’’
(ii) The Secretary will consider the
information referenced at paragraphs
(b), (c), and (f) of this section. The
Secretary may also consider information
readily available in the agency’s
possession at the time the determination
is made in reaching his or her initial
finding on the petition. The Secretary
will not consider any supporting
materials cited by the petitioner that are
not provided to us by the petitioner in
the format required at paragraph (b)(6)
of this section or otherwise readily
available in our possession.
(iii) The ‘‘substantial scientific or
commercial information’’ standard must
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
be applied in light of any prior
determinations made by the Secretary
for the species that is the subject of the
petition. Where the Secretary has
already conducted a status review of
that species (whether in response to a
petition or on the Secretary’s own
initiative) and made a final listing
determination, any petition seeking to
list, reclassify, or delist that species will
be considered a ‘‘subsequent petition’’
for purposes of this section. A
subsequent petition provides
‘‘substantial scientific or commercial
information’’ only if it provides
sufficient new information or analysis
not considered in the previous
determination (or previous 5-year
review, if applicable) such that a
reasonable person conducting an
impartial scientific review would
conclude that the action proposed in the
petition may be warranted despite the
previous determination.
(2) If a positive 90-day finding is
made, the Secretary will commence a
review of the status of the species
concerned. Within 12 months of receipt
of the petition, the Secretary will make
one of the following findings:
(i) The petitioned action is not
warranted, in which case the Secretary
shall promptly publish such finding in
the Federal Register and so notify the
petitioner.
(ii) The petitioned action is
warranted, in which case the Secretary
will promptly publish in the Federal
Register a proposed regulation to
implement the action pursuant to
§ 424.16; or
(iii) The petitioned action is
warranted, but:
(A) The immediate proposal and
timely promulgation of a regulation to
implement the petitioned action is
precluded because of other pending
proposals to list, delist, or change the
listed status of species; and
(B) Expeditious progress is being
made to list, delist, or change the listed
status of qualified species, in which
case such finding will be promptly
published in the Federal Register
together with a description and
evaluation of the reasons and data on
which the finding is based. The
Secretary will make a determination of
expeditious progress in relation to the
amount of funds available after
complying with nondiscretionary duties
under section 4 of the Act and court
orders and court-approved settlement
agreements to take actions pursuant to
section 4 of the Act.
(3) If a finding is made under
paragraph (g)(2)(iii) of this section with
regard to any petition, the Secretary
will, within 12 months of such finding,
PO 00000
Frm 00072
Fmt 4702
Sfmt 4702
29295
again make one of the findings
described in paragraph (g)(2) of this
section with regard to such petition.
(h) Findings on petitions to revise
critical habitat. (1) To the maximum
extent practicable, within 90 days of
receiving a petition to revise a critical
habitat designation, the Secretary will
make a finding as to whether the
petition presents substantial scientific
information indicating that the revision
may be warranted. The Secretary will
promptly publish such finding in the
Federal Register and so notify the
petitioner.
(i) For the purposes of this section,
‘‘substantial scientific information’’
refers to credible scientific information
in support of the petition’s claims such
that a reasonable person conducting an
impartial scientific review would
conclude that the revision proposed in
the petition may be warranted.
Conclusions drawn in the petition
without the support of credible
scientific information will not be
considered ‘‘substantial information.’’
(ii) The Secretary will consider the
information referenced at paragraphs
(b), (d), and (f) of this section. The
Secretary may also consider other
information readily available in the
agency’s possession at the time the
determination is made in reaching its
initial finding on the petition. The
Secretary will not consider any
supporting materials cited by the
petitioner that are not provided to us by
the petitioner in the format required by
paragraph (b)(6) of this section or
otherwise readily available in our
possession.
(2) Within 12 months after receiving
a petition found to present substantial
information indicating that revision of a
critical habitat designation may be
warranted, the Secretary will determine
how to proceed with the requested
revision, and will promptly publish
notice of such intention in the Federal
Register. Such finding may, but need
not, take a form similar to one of the
findings described under paragraph
(g)(2) of this section.
(i) Petitions to designate critical
habitat or adopt special rules. Upon
receiving a petition to designate critical
habitat or to adopt a special rule to
provide for the conservation of a
species, the Secretary will promptly
conduct a review in accordance with the
Administrative Procedure Act (5 U.S.C.
553) and applicable Departmental
regulations, and take appropriate action.
(j) Withdrawal of petition. A
petitioner may withdraw the petition at
any time during the petition process by
submitting such request in writing. This
request must include the name,
E:\FR\FM\21MYP1.SGM
21MYP1
29296
Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules
signature, address, telephone number, if
any, and the association, institution, or
business affiliation, if any, of the
petitioner. If a petition is withdrawn,
the Secretary may, at his or her
discretion, discontinue action on the
petition finding, even if the Secretary
has already made a positive 90-day
finding.
Dated: May 15, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
Dated: May 13, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2015–12316 Filed 5–20–15; 8:45 am]
BILLING CODE 4310–55–P; 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 150428405–5405–01]
RIN 0648–XD927
Fisheries Off West Coast States;
Coastal Pelagic Species Fisheries;
Annual Specifications
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule.
AGENCY:
NMFS proposes to implement
annual management measures and
harvest specifications to establish the
allowable catch levels (i.e. annual catch
limit (ACL)/harvest guideline (HG)) for
the northern subpopulation of Pacific
sardine (hereafter, simply Pacific
sardine), in the U.S. exclusive economic
zone (EEZ) off the Pacific coast for the
fishing season of July 1, 2015, through
June 30, 2016. This rule is proposed
according to the Coastal Pelagic Species
(CPS) Fishery Management Plan (FMP).
The proposed would include a
prohibition on directed non-tribal
Pacific sardine commercial fishing for
Pacific sardine off the coasts of
Washington, Oregon and California,
which is required because the estimated
2015 biomass of Pacific sardine has
dropped below the cutoff threshold in
the HG control rule. Under the proposed
action Pacific sardine may still be
harvested as part of either the live bait
or tribal fishery or incidental to other
fisheries; the incidental harvest of
Pacific sardine would initially be
tkelley on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
17:21 May 20, 2015
Jkt 235001
limited to 40-percent by weight of all
fish per trip when caught with other
CPS or up to 2 metric tons (mt) when
caught with non-CPS. The proposed
annual catch limit (ACL) for 2015–2016
Pacific sardine fishing year is 7,000 mt.
This proposed rule is intended to
conserve and manage the Pacific sardine
stock off the U.S. West Coast.
DATES: Comments must be received by
June 5, 2015.
ADDRESSES: You may submit comments
on this document identified by NOAA–
NMFS–2015–0064 by any of the
following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20150064, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
William W. Stelle, Jr., Regional
Administrator, West Coast Region,
NMFS, 7600 Sand Point Way NE.,
Seattle, WA 98115–0070; Attn: Joshua
Lindsay.
• Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
Copies of the report ‘‘Assessment of
Pacific Sardine Resource in 2015 for
U.S.A. Management in 2015–2016’’ may
be obtained from the West Coast
Regional Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT:
Joshua Lindsay, West Coast Region,
NMFS, (562) 980–4034.
SUPPLEMENTARY INFORMATION: During
public meetings each year, the estimated
biomass for Pacific sardine is presented
to the Pacific Fishery Management
Council’s (Council) CPS Management
Team (Team), the Council’s CPS
Advisory Subpanel (Subpanel) and the
Council’s Scientific and Statistical
Committee (SSC), and the biomass and
the status of the fishery are reviewed
and discussed. The biomass estimate is
then presented to the Council along
with the calculated overfishing limit
(OFL), available biological catch (ABC),
PO 00000
Frm 00073
Fmt 4702
Sfmt 4702
and HG, along with recommendations
and comments from the Team,
Subpanel, and SSC. Following review
by the Council and after hearing public
comment, the Council adopts a biomass
estimate and makes its catch level
recommendations to NMFS. NMFS
manages the Pacific sardine fishery in
the U.S. EEZ off the Pacific coast
(California, Oregon, and Washington) in
accordance with the FMP. Annual
specifications published in the Federal
Register establish the allowable harvest
levels (i.e. OFL/ACL/HG) for each
Pacific sardine fishing year. The
purpose of this proposed rule is to
implement these annual catch reference
points for 2015–2016, including the
OFL and an ABC that takes into
consideration uncertainty surrounding
the current estimate of biomass for
Pacific sardine in the U.S. EEZ off the
Pacific coast. The FMP and its
implementing regulations require NMFS
to set these annual catch levels for the
Pacific sardine fishery based on the
annual specification framework and
control rules in the FMP. These control
rules include the HG control rule, which
in conjunction with the OFL and ABC
rules in the FMP, are used to manage
harvest levels for Pacific sardine, in
accordance with the Magnuson-Stevens
Fishery Conservation and Management
Act, 16 U.S.C. 1801 et seq. According to
the FMP, the quota for the principle
commercial fishery is determined using
the FMP-specified harvest guideline
(HG) formula. The HG formula in the
CPS FMP is HG = [(Biomass ¥
CUTOFF) * FRACTION *
DISTRIBUTION] with the parameters
described as follows:
1. Biomass. The estimated stock
biomass of Pacific sardine age one and
above. For the 2015–2016 management
season this is 96,688 mt.
2. CUTOFF. This is the biomass level
below which no HG is set. The FMP
established this level at 150,000 mt.
3. DISTRIBUTION. The average
portion of the Pacific sardine biomass
estimated in the EEZ off the Pacific
coast is 87 percent.
4. FRACTION. The temperaturevarying harvest fraction is the
percentage of the biomass above 150,000
mt that may be harvested.
As described above, the Pacific
sardine HG control rule, the primary
mechanism for setting the annual
directed commercial fishery quota,
includes a CUTOFF parameter which
has been set as a biomass amount of
150,000 mt. This amount is subtracted
from the annual biomass estimate before
calculating the applicable HG for the
fishing year. Therefore, because this
year’s biomass estimate is below that
E:\FR\FM\21MYP1.SGM
21MYP1
Agencies
[Federal Register Volume 80, Number 98 (Thursday, May 21, 2015)]
[Proposed Rules]
[Pages 29286-29296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12316]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Marine Fisheries Service
50 CFR Part 424
[Docket Nos. FWS-HQ-ES-2015-0016; DOC 150506429-5429-01; 4500030113]
RIN 1018-BA53; 0648-BF06
Endangered and Threatened Wildlife and Plants; Revisions to the
Regulations for Petitions
AGENCY: U.S. Fish and Wildlife Service (FWS), Interior; National Marine
Fisheries Service (NMFS), Commerce.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service, propose changes to the regulations concerning
petitions, to improve the content and specificity of petitions and to
enhance the efficiency and effectiveness of the petitions process to
support species conservation. Our proposed revisions to the regulations
would clarify and enhance the procedures by which the Services will
evaluate petitions under section 4(b)(3) of the Endangered Species Act
of 1973, as amended. These revisions would also maximize the efficiency
with which the Services process petitions, making the best use of
available resources.
DATES: We will accept comments that we receive on or before July 20,
2015. 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 Time on the closing date.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter the docket number
for this proposed rule, which is FWS-HQ-ES-
[[Page 29287]]
2015-0016. Then click on the Search button. In the Search panel on the
left side of the screen, under the Document Type heading, click on the
Proposed Rules link to locate this document. You may submit a comment
by clicking on ``Comment Now!'' Please ensure that you have found the
correct document before submitting your comment.
By hard copy: Submit by U.S. mail or hand delivery to:
Public Comments Processing, Attn: Docket No. FWS-HQ-ES-2015-0016; U.S.
Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church,
VA 22041-3803.
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: Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703-358-2171; facsimile
703-358-1735; or Angela Somma, National Marine Fisheries Service,
Office of Protected Resources, 1315 East-West Highway, Silver Spring,
MD 20910, telephone 301-427-8403. If you use a telecommunications
device for the deaf (TDD), call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The primary purpose of the petition process is to empower the
public, in effect, to direct the attention of the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service (Services)
to (1) species that may be imperiled and not otherwise known to the
Services, (2) changes to a listed species' threats or other
circumstances that warrant that species being reclassified (i.e.,
changed in listing status by ``downlisting'' from endangered to
threatened, or by ``uplisting'' from threatened to endangered) or
delisted (i.e., removed from the Federal List of Endangered and
Threatened Wildlife or List of Endangered and Threatened Plants), or
(3) necessary revisions to critical habitat designations. The petition
process is a central feature of the Endangered Species Act of 1973
(Act; 16 U.S.C. 1531 et seq.), as amended, and serves a beneficial
public purpose.
Purpose of Proposed Revision of Regulations
The Services are proposing changes to the regulations at 50 CFR
424.14 concerning petitions to improve the content and specificity of
petitions and to enhance the efficiency and effectiveness of the
petitions process to support species conservation. Our proposed
revisions to Sec. 424.14 would clarify and enhance the procedures by
which the Services will evaluate petitions under section 4(b)(3) of the
Act, 16 U.S.C. 1533(b)(3). We propose to revise the regulations
pertaining to the petition process to provide greater clarity to the
public on the petition-submission process, which will assist
petitioners in providing complete petitions. These revisions would also
maximize the efficiency with which the Services process petitions,
making the best use of available resources. These changes would improve
the quality of petitions through expanded content requirements and
guidelines; and, in doing so; better focus the Services' energies on
petitions that merit further analysis. The following discussion
outlines the proposed changes and explains the benefits of making these
changes.
Specific Proposed Changes to Current Regulations at 50 CFR 424.14
General Authority and Requirements for Petitions--Paragraphs (a) and
(b)
Proposed paragraph (a) would retain the first sentence of the
current section. Proposed new paragraph (b) would incorporate the
substance of the second and third sentences of current paragraph (a),
which set forth certain minimum content requirements for a request for
agency action to qualify as a petition for the purposes of section
4(b)(3) of the Act, 16 U.S.C. 1533(b)(3). The new paragraph would also
expand upon the list of requirements for a petition, drawing in part
from the provisions in current paragraph (b)(2). Proposed paragraph
(b)(2) would, however, newly require that a petition address only one
species. Although the Services in the past have accepted multi-species
petitions, in practice it has often proven to be difficult to know
which supporting materials apply to which species, and has sometimes
made it difficult to follow the logic of the petition. This requirement
would not place any limitation on the ability of an interested party to
petition for section 4 actions, but would require petitioners to
organize the information in a way (on a species-by-species basis) that
will allow more efficient action by the Services.
The first six requirements (in proposed paragraphs (b)(1) through
(b)(6)) would apply to each type of petition recognized under section
4(b)(3) of the Act. The first four requirements (in proposed paragraphs
(b)(1) through (b)(4)) are all contained in the current regulations at
Sec. 424.14(a) and (b). The fifth and sixth requirements (in proposed
paragraphs (b)(5) and (b)(6)) clarify and expand on the current
provisions regarding a petition's supporting documentation at Sec.
424.14(b)(2)(iv). The seventh requirement (in proposed paragraph
(b)(7)), however, would apply only to petitions to list a species, and
would require that information be presented on the face of the request
to demonstrate that the entity that is the subject of the request is or
may be a ``species'' as defined in the Act (which includes a species,
subspecies, or distinct population segment). Section 4(b)(3)(A) of the
Act applies only to ``a petition . . . to add a species to, or to
remove a species from, either of the lists [of endangered or threatened
wildlife and plants]'' (emphasis added). This provision screens from
needless consideration those requests that clearly do not involve a
species, subspecies, or distinct population segment. The eighth
requirement (in proposed paragraph (b)(8)), would apply only to
petitions to list, delist, or reclassify a species, and would require
that information be included in the petition describing the current
range of the species, including range States or countries, as
appropriate.
Although section 4(b)(3)(A) of the Act authorizes interested
persons to submit a petition to add a species to, or remove a species
from, the Lists of Endangered and Threatened Wildlife and Plants, and
section 4(b)(3)(D) of the Act authorizes submission of petitions to
revise critical habitat designations, the Act does not specify the
required contents of such a petition, but instead leaves with the
Secretary the authority to do so. The Services are concerned that the
States, which often have considerable experience and information on the
species within their boundaries, have opportunity to be involved in
providing information as part of the petition process. To further the
Act's directive to cooperate to the maximum extent practicable with the
States, the Secretary proposes to revise the regulations pertaining to
the required contents of such petitions, as well as petitions to revise
or designate critical habitat. The goal of this proposed revision is to
encourage greater communication and cooperation among would-be
petitioners and State conservation agencies prior to the submission of
listing or critical habitat petitions to the Secretary.
To that end, we propose a ninth requirement (proposed paragraph
(b)(9)) that would apply only to petitions to the U.S. Fish and
Wildlife Service to add a
[[Page 29288]]
species that occurs within the United States to the List of Endangered
and Threatened Wildlife or List of Endangered and Threatened Plants,
change the status of a listed domestic species, or designate or revise
critical habitat for any domestic species under its jurisdiction. This
proposed requirement concerns communications between the petitioner(s);
the State agency(ies) responsible for the management and conservation
of fish, plant, or wildlife resources in each State where the species
that is the subject of the petition occurs; and the U.S. Fish and
Wildlife Service. As a general matter, States have jurisdiction and the
responsibility for managing and conserving freshwater fish, wildlife,
and plant species that are not listed as endangered or threatened
species under the Act. In the exercise of their jurisdiction and
responsibility, the States have developed substantial experience,
expertise, and information relevant to the conservation of such
species. The Act recognizes and acknowledges that experience and
expertise in a number of ways. For example, section 6 of the Act
directs the Secretary to cooperate to the maximum extent practicable
with the States in carrying out the program authorized by the Act.
Consistent with this mandate, section 4(b) of the Act directs the
Secretary, when making determinations with respect to the listing of
any species, to take into account the efforts being made by any State
to protect such species. In addition, although the Secretary is free to
adopt regulations pursuant to section 4 that are at odds with the
written recommendations of a State conservation agency, when he or she
does so, section 4(i) of the Act requires the Secretary to provide the
State agency with a written justification for not adopting regulations
consistent with State's recommendations. In these and other ways, the
Act recognizes and respects the special status of the States with
respect to the conservation and management of fish, wildlife, and
plants.
Proposed paragraph (b)(9) would require that for any petition
submitted to the U.S. Fish and Wildlife Service pertaining to species
found within the United States, a petitioner must certify that a copy
of the petition was provided to the State agency(ies) responsible for
the management and conservation of fish, plant, or wildlife resources
in each State where the species occurs at least 30 days prior to
submission to the Service. The certification must include the date that
the petition was provided to the relevant State agency(ies). If the
State agency(ies) provided data or written comments regarding the
accuracy or completeness of the petition, those data or comments must
be labeled as such, appended to the petition, and submitted with the
petition. If the State agency(ies) did not provide any data or written
comments regarding the accuracy or completeness of the petition, the
petitioner must so certify. We realize that States may not have
jurisdiction over or regulate all species, such as insects or plants,
and thus may not be able to provide any data for certain species.
Note that if a State provides data or written comments to the
petitioner after the petition is filed, section 424.14(b)(9) would not
require that the petitioner resubmit the petition with the new State
data or written comments (although the petitioner may choose to do so).
State data received after the filing of the petition will not reset the
clock for the Services' consideration of the petition, but will become
part of the data available in our files that we may elect to review
under proposed section (g)(1)(ii) if sufficient time remains to do so.
In this proposed rule, we are proposing to include the requirement
under (b)(9) only as to petitions filed with the United States Fish and
Wildlife Service. We recognize the relatively greater logistical
difficulties that would be posed to petitioners if they were required
to identify and coordinate with all interested States regarding marine
species and wide-ranging anadromous species. However, we seek public
comment as to whether this requirement, if adopted, should also apply
to petitions filed with the National Marine Fisheries Service.
The Services are also concerned that petitions should include a
presentation of all reasonably available, relevant data on the subject
species (or, if relevant for the particular petition, its habitat),
including information that supports the petition as well as that which
may tend to refute it. This is particularly true for information
publicly available from affected States, who have special status and
concerns with respect to implementation of the Act, as discussed above.
Fostering greater inclusion of such data would help ensure that any
petition submitted to the Secretary is based on reliable and unbiased
information and does not consist simply of unrepresentative, selected
data.
To this end, we propose a tenth requirement (proposed paragraph
(b)(10)), applicable to all petitions filed with either Service, that
would require a petitioner to certify that the petitioner has gathered
all relevant information readily available, including from Web sites
maintained by the affected States, and has clearly labeled and appended
such information to the petition so that it is submitted with the
petition. As an alternative to this provision, we are considering
limiting the requirement under (b)(10) to extend only to gathering and
certifying submission of relevant information publicly available on
affected States' Web sites.
The Services would apply Sec. 424.14(b) to identify those requests
that contain all the elements of a petition, so that consideration of
the request would be an efficient and wise use of agency resources. A
request that fails to meet these elements would be screened out from
further consideration, as discussed below, because a request cannot
meet the statutory standard for demonstrating that the petitioned
action may be warranted if it does not contain at least some
information on each of the areas relevant to that inquiry.
Types of Information To Be Included in Petitions--Paragraphs (c) and
(d)
Proposed Sec. 424.14(c) and (d) describe the types of information
that would be relevant to the Secretary's determination as to whether
the petition provides substantial information that the petitioned
action may be warranted. Petitioners are advised that compliance with
paragraph (b) would result in issuance of a 90-day finding, but for
that finding to be positive, petitioners should include as much of the
types of information listed in paragraphs (c) or (d) (as relevant to
the type of petition they are filing) as possible.
Petitions To List, Delist, or Reclassify
The proposed informational elements for listing, delisting, and
reclassification petitions in proposed paragraphs (c)(1) through (c)(5)
are rooted in the substance of current paragraphs (b)(2)(ii) and (iii).
These elements would clarify in the regulations the key considerations
that are relevant when the Services are determining whether or not the
petition presents ``substantial scientific or commercial information
indicating that the petitioned action may be warranted,'' which is the
standard for making a positive 90-day finding as described in section
4(b)(3)(A) of the Act, 16 U.S.C. 1533(b)(3)(A).
Proposed paragraph (c)(3) refers to inclusion in a petition of a
description of the magnitude and immediacy of threats. This request is
included to assist the U.S. Fish and Wildlife Service in assessing the
listing priority number of species for which a warranted-but-precluded
finding is made under the U.S. Fish and Wildlife Service's (FWS)
[[Page 29289]]
September 21, 1983, guidance, which requires assessing, in part, the
magnitude and immediacy of threats (48 FR 43098). In addition to being
useful for status reviews, this information should be included to
assist in determinations on delisting and reclassification requests.
While such information will likely also be useful to the National
Marine Fisheries Service (NMFS), it should be noted that NMFS has not
adopted the 1983 FWS guidance, and so would not apply that guidance to
petitions within its jurisdiction.
Proposed paragraph (c)(5) is a revision of the language in current
paragraph (b)(2) that describes information a petitioner may include
for consideration in designating critical habitat in conjunction with a
listing or reclassification. We propose to delete the clause ``and
indicates any benefits and/or adverse effects on the species that would
result from such designation'' because this information is not relevant
to the biological considerations that underlay a listing determination.
Petitions To Revise Critical Habitat
Similarly, proposed new Sec. 424.14(d) sets forth the kinds of
information a petitioner should include in a petition to revise
critical habitat. The Secretary's determination as to whether the
petition provides ``substantial scientific information indicating that
the revision may be warranted'' (16 U.S.C. 1533(b)(3)(D)(i)) will
depend in part on the degree to which the petition includes this type
of information.
The items set out at proposed new paragraph (d) are an expanded and
reworded version of the substance of current paragraph (c)(2). Proposed
paragraph (d)(1) would confirm that, to justify a revision to critical
habitat, it is important to demonstrate that the existing designation
includes areas that should not be included or does not include areas
that should be included, and to discuss the benefits of designating
additional areas, or the reasons to remove areas from an existing
designation. Additionally, including maps with enough detail to clearly
identify the particular area(s) being recommended for inclusion or
exclusion will be useful to the Services in making a petition finding.
Proposed paragraph (d)(2) is drawn from the substance of current
paragraphs (c)(2)(i) and (ii), which have been reorganized and
clarified. Proposed paragraph (d)(2) would clarify that several
distinct pieces of information are needed to analyze whether any area
of habitat should be designated, beginning with a description of the
``physical or biological features'' that are essential for the
conservation of the species and which may require special management.
Proposed paragraphs (d)(3) and (d)(4) would detail the informational
needs the Services will have in considering whether to add or remove
habitat from the designation comprising specific areas occupied by the
species at the time of listing, respectively. Proposed paragraph (d)(5)
would highlight the particular informational needs associated with
evaluating habitat that was unoccupied at the time of listing--that is,
information that fulfills the statutory requirement that any specific
areas designated are ``essential to the conservation of the species.''
See section 3(5)(A)(ii) of the Act, 16 U.S.C. 1532(5)(A)(ii).
Proposed paragraph (d)(6) would provide additional direction that a
petition should include information demonstrating that the petition
provides a complete presentation of the relevant facts, including an
explanation of what sources of information the petitioner consulted in
drafting the petition, as well as any relevant information known to the
petitioner not included in the petition.
Responses to Petitions--Paragraph (e)
Proposed new Sec. 424.14(e) sets out the possible responses the
Secretary may make to requests. Proposed paragraph (e)(1) would clarify
that a request that fails to satisfy the mandatory elements set forth
in proposed paragraph (b) may be returned by the Services without a
further determination on the merits of the request. In light of the
volume of requests received by the Services, it is critical that we
have the option to identify early on those requests that on their faces
are incomplete, in order to ensure that agency resources are not
diverted from higher priorities. Although this authority is implied in
the current regulations, making the point explicit in the revised
regulations would provide additional notice to petitioners, and lead to
better-quality requests and more efficient and effective (in terms of
species conservation) use of agency resources. Proposed Sec.
424.14(e)(2) would confirm that a request that complies with the
mandatory requirements will be acknowledged in writing as a petition
within 30 days of receipt (as required under current 424.14(a)).
Additional Information Provided Subsequent to Receipt of the Petition--
Paragraph (f)
Proposed paragraph (f) would address the situation in which a
petitioner supplements a petition with additional information at a
later date, requesting that the Secretary take the new information into
account. The Services' standard practice in these circumstances has
been to notify petitioners of receipt of this information and inform
them that, in order to meaningfully consider this information, the
Services consider the statutory deadlines to now run from the receipt
date of the supplemental information. The proposed provision would
clarify our position that the statutory period applicable to making any
required finding would be re-set to begin running from the time such
additional information is received by the Secretaries. In effect, the
supplemental information, together with the original petition, will be
considered a new petition that constructively supplants the original
petition and re-sets the period for making a 90-day finding under
section 4(b)(3)(A) of the Act. This is consistent with 16 U.S.C.
1533(b)(3)(A) and 1533(b)(3)(D)(i), which direct the Services to
determine whether ``the petition'' presents substantial information
indicating that the petitioned action may be warranted. Supplementing
the information supporting a petition is, therefore, constructively the
same as submitting a new petition. The Services propose to make this
explicit in the regulations to ensure that the Services have adequate
time to consider the supplemental information relevant to a petition.
Also, by giving clear notice of this process, the Services can
encourage petitioners to assemble all the information they believe
necessary to support the petition prior to sending it to the Services
for consideration, further enhancing the efficiency of the petition
process.
Findings on a Petition To List, Delist, or Reclassify--Paragraph (g)
Proposed Sec. 424.14(g) would explain the kinds of findings the
Services may make on a petition to list, delist, or reclassify a
species and the standards to be applied in that process. Proposed
paragraph (g)(1) is drawn largely from current paragraph (b)(1), with
some revisions. Most significantly, proposed paragraph (g)(1)(i) would
clarify the substantial-information standard by defining it as credible
scientific and commercial information that would lead a reasonable
person conducting an impartial scientific review to conclude that the
action proposed in the petition
[[Page 29290]]
may be warranted. Thus, conclusory statements made in a petition
without the support of credible scientific or commercial information
are not ``substantial information.'' For example, a petition that
states only that a species is rare and thus should be listed, without
other credible information regarding its status, does not provide
substantial information. This interpretation is consistent with the
Scott's riffle beetle case (WildEarth Guardians v. Salazar (D. Colo.
Sept. 19, 2011)). In that case, the court rejected the challenge to a
negative 90-day finding, because the petition did not present any
information of any potential threat currently affecting the species or
reasonably likely to do so in the foreseeable future. The court found
that information as to the rarity of a species, without more
information, is not ``substantial information'' that listing the
species may be warranted.
In Sec. 424.14(g)(1)(ii), we propose to add a new sentence to
clarify that the Services may consider information that is readily
available in the relevant agency's possession at the time it makes a
90-day finding. For purposes of Sec. 424.14(g)(1), the Services
recognize that the statute places the obligation squarely on the
petitioner to present the requisite level of information to meet the
``substantial information'' test, and that the Services therefore
should not seek to supplement petitions. (Please see the Columbian
sharp-tailed grouse case (WildEarth Guardians v. U.S. Secretary of the
Interior, 2011 U.S. Dist. Lexis 32470 (D. Idaho Mar. 28, 2011)), which
provided, among other things, that the petitioner has the burden of
providing substantial information.) However, the Services believe they
should evaluate such petitions in context and using the Services'
expertise. In order to apply their best professional judgment, Service
staff reviewing petitions may need to take into account information
readily available in the agency's possession, including both
information tending to support the petition and information tending to
contradict the information presented therein. Although the Services are
mindful that, at the stage of formulating an initial finding, they
should not engage in outside research or an effort to comprehensively
compile the best available information, they must be able to place the
information presented in the petition in context.
The Act contemplates a two-step process in reviewing a petition.
The 12-month finding is meant to be the more in-depth determination and
follows a status review, while the 90-day finding is meant to be a
quicker evaluation of a more limited set of information. However, based
on their experience in administering the Act, the Services conclude
that evaluating the information presented in the petition in a vacuum
can lead to inaccurately supported decisions and misdirection of
resources away from higher priorities. It may be difficult for the
Services to bring informed expertise to their evaluation of the facts
and claims alleged in a petition without considering the petition in
the context of other information of the sort that the Services maintain
in their possession and would routinely consult in the course of their
work. It is reasonable for the Services to be able to examine the
veracity of the information included in a petition prior to committing
limited Federal resources to the significant expense of a status
review.
The Act's legislative history also supports explicitly recognizing
the discretion that the Services have to bring their informed expertise
and judgment to bear in reviewing petitions. In a discussion of
judicial review of the Secretary's 90-day findings on petitions, a
House Conference report states that, when courts review such a
decision, the ``object of [the judicial] review is to determine whether
the Secretary's action was arbitrary or capricious in light of the
scientific and commercial information available concerning the
petitioned action.'' H.R. Conf. Rep. No. 97-835, at 20, reprinted in
1982 U.S.C.C.A.N. 2860, 2862 (emphasis added). By requiring courts to
evaluate the Secretary's substantial information findings in light of
information ``available,'' this statement suggests that the drafters
anticipated that the Secretary could evaluate petitions in the context
of scientific and commercial information available to the Services, and
not limited arbitrarily to a subset of available information presented
in the petitions. In these regulatory amendments, the Services have
crafted a balanced approach that will ensure that the Services may take
into account the information available to us, without opening the door
to the type of wide-ranging survey more appropriate for a status
review. The intent is not to solicit new information.
The precise range of information properly considered readily
available in the agency's possession will vary with circumstances, but
could include the information physically held by any office within the
Services (including, for example, the NMFS Science Centers and FWS
Field Offices), and may also include information stored electronically
in databases routinely consulted by the Services in the ordinary course
of their work. For example, it would be appropriate to consult online
databases such as the Integrated Taxonomic Information System (https://www.itis.gov), a database of scientifically credible nomenclature
information maintained in part by the Services.
Proposed paragraph (g)(1)(iii) would explain how the substantial-
information standard applies to a petition to list, delist, or
reclassify a species that is submitted after the Secretary has already
conducted a status review of that species and determined that the
petitioned action is not warranted, or made another listing action;
such petitions are referred to as ``subsequent petitions.'' Subsequent
petitions may follow a 12-month finding or a final determination on a
proposed listing, reclassification, or delisting rule. The prior status
review and determination are part of the information readily available
in the agency's possession for consideration in evaluating the
subsequent petition, and they play an important role in setting the
context for the 90-day finding. In addition, 5-year reviews completed
for listed species would be considered in our evaluation of a petition
to delist or reclassify. Although the substantial-information standard
applies to all petitions under section 4(b)(3)(A) of the Act, the
standard's application depends on the context in which the finding is
being made. The context of a finding after a status review and
determination is quite different than that before any status review has
been completed. Thus, proposed Sec. 424.14(g)(1)(iii) requires that
for a subsequent petition to provide substantial information the
petition must provide sufficient new information or analysis such that
a reasonable person conducting an impartial scientific review would
conclude that the action proposed in the petition may be warranted,
despite the previous determination. (Please see the Columbian sharp-
tailed grouse case (WildEarth Guardians v. U.S. Secretary of the
Interior, 2011 U.S. Dist. Lexis 32470 (D. Idaho Mar. 28, 2011)), in
which the court found the FWS could consider scientific conclusions in
previous 12-month finding valid, because that finding was not
challenged.)
A reasonable person would not conclude that the petitioned action
may be warranted if the petition fails to present any substantial new
information or analysis that might alter the conclusions of the
Services' prior determination. Following a positive 90-day finding on a
petition, the Services gather all available scientific and
[[Page 29291]]
commercial information and conduct a status review of the species; the
resulting 12-month finding is a result of this review. The Secretary
may also initiate and conduct a status review on his or her own and
determine if listing, delisting, or reclassifying is warranted.
Similarly, a final determination on a proposed rule to list or delist a
species requires that we first conduct a status review of the species.
If the subsequent petition fails to provide any substantial new
information or analysis beyond that already considered in a prior
status review or 5-year review that resulted in a finding that listing
or reclassification of the species is not warranted, it would not be
rational to expect a different outcome.
One corollary of this conclusion is that the Secretary may find
that a subsequent petition fails the ``substantial information''
standard, even though a prior petition seeking the same action
initially received a positive 90-day finding. Because the prior status
review, and resultant 12-month finding, are now a part of the
information readily available in the agency's possession, the
subsequent petition is on a different footing from the prior petition.
Although similar information may have qualified as ``substantial'' when
it was initially evaluated, it may not necessarily be considered
substantial in the context of the completed status review.
The completion of a status review of a species consumes
considerable agency resources. The application of Sec.
424.14(g)(1)(iii) is intended to assist the Services in making
judicious use of those resources, by eliminating unnecessary
duplication of effort in responding to a petition when the Services
have already evaluated the species in question and no substantial new
information or analysis is available. This would allow the Services to
instead concentrate on petitions for actions that will best make use of
limited agency resources and potentially result in greater conservation
value for a species that may be in need of the protections of the Act.
Proposed Sec. 424.14(g)(2) is substantially the same as current
paragraph (b)(3). Among other changes, we propose new language
clarifying the standard for making expeditious-progress determinations
in warranted-but-precluded findings, including (in paragraph
(g)(2)(iii)(B)) a clear acknowledgement that such determinations are to
be made in light of resources available after complying with
nondiscretionary duties, court orders, and court-approved settlement
agreements to take actions under section 4 of the Act. Current
paragraph (b)(4) would be redesignated as paragraph (g)(3), although we
propose to remove the reference in the current language that ``no
further finding of substantial information will be required,'' as it
merely repeats statutory language.
Findings on a Petition To Revise Critical Habitat--Paragraph (h)
Proposed Sec. 424.14(h) would explain the kinds of findings that
the Services may make on a petition to revise critical habitat.
Proposed paragraph (h)(1) is essentially the same as current paragraph
(c)(1) and describes the standard applicable to the Secretary's finding
at the 90-day stage. Please refer to the discussion of the
``substantial information'' test discussed in the description of Sec.
424.14(g)(1), above. Proposed paragraph (h)(2) would specifically
acknowledge, consistent with the statute, that such finding may, but
need not, take a form similar to one of the findings called for at the
12-month stage in the review of a petition to list, delist, or
reclassify species. Section 4(a)(3)(A) of the Act establishes a
mandatory duty to designate critical habitat for listed species to the
maximum extent prudent and determinable at the time of listing (in
subsection (A)(i)), but respecting subsequent revision of such habitat
provides only that the Services ``may, from time-to-time thereafter as
appropriate, revise such designation'' (in subsection (A)(ii) (emphasis
added)).
That the Services have broad discretion to decide when it is
appropriate to revise critical habitat is also evident in the
differences between the Act's provisions discussing petitions to revise
critical habitat, on the one hand, and the far more prescriptive
provisions regarding the possible findings that can be made at the 12-
month stage on petitions to list, delist, or reclassify species, on the
other. Section 4(b)(3)(B) includes three detailed and exclusive options
for 12-month findings on petitions to list, delist, or reclassify
species. In contrast, section 4(b)(3)(D)(ii) requires only that the
Secretary (acting through the Services) ``determine how he intends to
proceed with the requested revision'' and promptly publish notice of
such intention in the Federal Register within 12 months of receipt of a
petition to revise critical habitat that has been found to present
substantial information that the petitioned revision may be warranted.
The differences in these subsections indicates that the listing
petition procedures are not required to be followed in determining how
to proceed with petitions to revise critical habitat. See Sierra Club
v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D.D.C.
Mar. 19, 2013) (12-month determinations on petitions to revise are
committed to the agency's discretion by law, and thus unreviewable
under the Administrative Procedure Act); Morrill v. Lujan, 802 F. Supp.
424 (S.D. Ala. 1992) (revisions to critical habitat are discretionary);
see also Barnhart v. Sigman Coal Co., Inc., 122 S. Ct. 941, 951 (2002)
(``it is a general principle of statutory construction that when
`Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion' '') (citing Russello v. United States, 464 U.S.
16, 23 (1983)); Federal Election Commission v. National Rifle Ass'n of
America, 254 F.3d 173, 194 (D.C. Cir. 2001) (same).
Further, the legislative history for the 1982 amendments that added
the petition provisions to the Act confirms that Congress intended to
grant discretion to the Services in determining how to respond to
petitions to revise critical habitat. After discussing at length the
detailed listing petition provisions and their intended meaning,
Congress said of the critical habitat petition requirements,
``Petitions to revise critical habitat designations may be treated
differently.'' H.R. Rep. No. 97-835, at 22 (1982), reprinted in 1982
U.S.C.C.A.N. 2860, 2862.
The Services may find in particular situations that terminology
similar to that set out in the listing-petition provisions is useful
for explaining their intended response at the 12-month stage on a
petition to revise critical habitat. For example, the Services have, at
times, used the term ``warranted'' to indicate that requested revisions
of critical habitat would satisfy the definition of critical habitat in
section 3 of the Act. However, use of the listing-petition terms in a
finding on a petition to revise critical habitat would not mean that
the associated listing-petition procedures and timelines apply or are
required to be followed with respect to the petition. For example, if
the Services find that a petitioned revision of critical habitat is, in
effect, ``warranted,'' in that the areas would meet the definition of
``critical habitat,'' that finding would not require the Services to
publish a proposed rule to implement the revision in any particular
timeframe. Similarly, a finding on a petition to revise critical
habitat that uses the phrase ``warranted but precluded,'' or a
functionally similar phrase, to describe the Secretary's intention
would not trigger the
[[Page 29292]]
requirements of section 4(b)(3)(B)(iii) or (C) (establishing
requirements to make particular findings, to implement a monitoring
system, etc.).
Though the Services have discretion to determine how to proceed
with a petition to revise critical habitat, the Services believe that
certain factors respecting conservation and recovery of the relevant
species are likely to be relevant and potentially important to most
such determinations. Such factors may include, but are not limited to:
The status of the existing critical habitat for which revisions are
sought (e.g., when it was designated, the extent of the species' range
included in the designation); the effectiveness or potential of the
existing critical habitat to contribute to the conservation of the
relevant listed species; the potential conservation benefit of the
petitioned revision to the listed species relative to the existing
designation; whether there are other, higher-priority conservation
actions that need to be completed under the Act, particularly for the
species that is the subject of the petitioned revision; the
availability of personnel, funding, and contractual or other resources
required to complete the requested revision; and the precedent that
accepting the petition might set for subsequent requested revisions.
Petitions To Initially Designate Critical Habitat and Petitions for
Special Rules--Paragraph (i)
Proposed Sec. 424.14(i) would be substantially the same as current
paragraph (d), regarding petitions to initially designate critical
habitat or for adoption of special rules under section 4(d) of the Act.
Withdrawn Petitions--Paragraph (j)
Proposed Sec. 424.14(j) would describe the process for a
petitioner to withdraw a petition, and the Services' discretion to
discontinue action on the withdrawn petition. Although the Services may
discontinue work on a 90-day or 12-month finding for a petition that is
withdrawn, in the case of a petition to list a species, the Services
may use their own process to evaluate whether the species may warrant
listing and whether it should become a candidate for listing. In the
case of the withdrawal of a petition to delist, uplist or downlist a
species, the Services may use the 5-year review process to further
evaluate the status of the species, or elect to consider the issue at
any time.
Request for Information
Any final rule based on this proposal will consider information and
recommendations timely submitted from all interested parties. We
solicit comments, information, and recommendations from governmental
agencies, Native American tribes, the scientific community, industry
groups, environmental interest groups, and any other interested parties
on this proposed rule. All comments and materials received by the date
listed in DATES, above, will be considered prior to the approval of a
final rule.
We request comments and information evaluating each of several
alternatives for insuring greater inclusion of relevant data supporting
petitions, including information available from State conservation
agencies within the range of the species. We specifically seek comment
on proposed paragraph (b)(9), requiring petitioner coordination with
States prior to submission of a petition to the Fish and Wildlife
Service, and paragraph (b)(10), requiring certification that all
reasonably available information, including relevant information
publicly available from affected States' Web sites, has been gathered
and appended to a petition filed with either Service. We note that
either of these two provisions could stand alone, or both could be
included in a final rule, as shown in the proposed regulatory text. We
also suggested an alternative to (b)(10) that would require a
certification only that relevant information from affected States' Web
sites has been gathered and appended to a petition filed with either
Service. We seek information on which alternatives, alone or in
combination, would be most consistent with law and best achieve our
goals of fostering better-informed petitions and greater cooperation
with States. We also seek comments and information regarding any other
alternative the public may suggest to achieve the goals of greater
coordination with States and better-supported petitions. Finally, we
seek comment on the criteria in paragraph (d), including comments on
the utility of the criteria, the adequacy of the criteria, and the
effect of the criteria on the workload on the petitioner.
You may submit your information concerning this proposed rule by
one of the methods listed in ADDRESSES. 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
your submission is made via a hardcopy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Information and supporting documentation that we receive in
response to this proposed rule will be available for you to review at
https://www.regulations.gov, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Division of Conservation
and Classification (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Management and
Budget's Office of Information and Regulatory Affairs (OIRA) will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements. This proposed rule is consistent with
Executive Order 13563, and in particular with the requirement of
retrospective analysis of existing rules, designed ``to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives.''
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility
[[Page 29293]]
analysis is required if the head of an agency, or his designee,
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
We certify that, if adopted as proposed, this proposed rule would not
have a significant economic effect on a substantial number of small
entities. The following discussion explains our rationale.
The proposed rule would revise and clarify the regulations
governing documentation needed by the Services in order to effectively
and efficiently evaluate petitions under the Act. While some of the
changes may require petitioners to expend some time (such as
coordination with State(s)) and effort (providing complete petitions),
we do not expect this will prove to be a hardship, economically or
otherwise. Further, we expect the effect on any external entities,
large or small, would likely be positive, as they will lead to improved
quality of petitions through expanded content requirements and
guidelines.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would not impose a cost of $100 million or
more in any given year on local or State governments or private
entities. A Small Government Agency Plan is not required. As explained
above, small governments would not be affected because the proposed
rule would not place additional requirements on any city, county, or
other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action''' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this proposed rule (1) would not effectively
compel a property owner to suffer a physical invasion of property and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This proposed rule would substantially
advance a legitimate government interest (conservation and recovery of
endangered and threatened species) and would not present a barrier to
all reasonable and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant Federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to the petition process
under the Endangered Species Act, and would not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify the petition
process under the Endangered Species Act.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis.
National Environmental Policy Act
We are analyzing this proposed regulation in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), the Department
of the Interior Manual (516 DM 1-6 and 8), and National Oceanic and
Atmospheric Administration (NOAA) Administrative Order 216-6. We invite
the public to comment on the extent to which this proposed regulation
may have a significant impact on the human environment, or fall within
one of the categorical exclusions for actions that have no individual
or cumulative effect on the quality of the human environment. We will
complete our analysis, in compliance with NEPA, before finalizing this
regulation.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This proposed rule, if
made final, is not expected to affect energy supplies, distribution,
and use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Clarity of This Proposed 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 or policy we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the proposed rule, your comments should be as specific as
possible. For example, you should tell us the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
List of Subjects in 50 CFR Part 424
Administrative practice and procedure, Endangered and threatened
species.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 424, subchapter A of chapter
IV, title 50 of the Code of Federal Regulations, as set forth below:
[[Page 29294]]
PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING
CRITICAL HABITAT
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Revise Sec. 424.14 to read as follows:
Sec. 424.14 Petitions.
(a) Ability to petition. Any interested person may submit a written
petition to the Secretary requesting that one of the actions described
in Sec. 424.10 be taken for a species.
(b) Requirements for petitions. A petition must clearly identify
itself as such, be dated, and contain the following information:
(1) The name, signature, address, telephone number, if any, and the
association, institution, or business affiliation, if any, of the
petitioner;
(2) The scientific and any common name of the species that is the
subject of the petition. One and only one species may be the subject of
a petition;
(3) A clear indication of the administrative action the petitioner
seeks (e.g., listing of a species or revision of critical habitat);
(4) A detailed narrative justification for the recommended
administrative action that contains an analysis of the information
presented;
(5) Literature citations that are specific enough for the Secretary
to locate the information cited in the petition, including page numbers
or chapters as applicable;
(6) Electronic or hard copies of any supporting materials (e.g.,
publications, maps, reports, letters from authorities) cited in the
petition, or valid links to public Web sites where the supporting
materials can be accessed; and
(7) For a petition to list a species, information to establish
whether the subject entity is a ``species'' as defined in the Act.
(8) For a petition to list a species, delist a species, or change
the status of a listed species, information on the current geographic
range of the species, including range States or countries.
(9) For any petition submitted to the U.S. Fish and Wildlife
Service pertaining to species found within the United States, a
certification:
(i) That a copy of the petition was provided to the State
agency(ies) responsible for the management and conservation of fish,
plant, or wildlife resources in each State where the species occurs at
least 30 days prior to submission to the Service; and
(ii) That the State agency(ies) either:
(A) Provided to the petitioner data or written comments regarding
the accuracy or completeness of the petition, and all those data or
comments have been clearly labeled as such and appended to the
petition; or
(B) Did not provide to the petitioner in response any data or
written comments regarding the accuracy or completeness of the
petition.
(10) Certification that the petitioner has gathered all relevant
information (including information that may support a negative 90-day
finding) that is reasonably available, such as that available on Web
sites maintained by the affected States, and has clearly labeled this
information and appended it to the petition.
(c) Types of information to be included in petitions to add or
remove species from the lists, or change the listed status of a
species. The Secretary's determination as to whether the petition
provides substantial information that the petitioned action may be
warranted will depend in part on the degree to which the petition
includes the following types of information; failure to include
adequate information on any one or more of the following (except
paragraph (5)) may result in the Secretary finding that the petition
does not present substantial information:
(1) Information on current population status and trends and
estimates of current population sizes and distributions, both in
captivity and the wild, if available;
(2) Identification of the factors under section 4(a)(1) of the Act
that may affect the species and where these factors are acting upon the
species;
(3) Whether any or all of the factors alone or in combination
identified in section 4(a)(1) of the Act may cause the species to be an
endangered species or threatened species (i.e., place the species in
danger of extinction now or in the foreseeable future), and, if so,
how, including a description of the magnitude and imminence of the
threats;
(4) Information on adequacy of regulatory protections and
conservation activities initiated or currently in place that may
protect the species or its habitat; and
(5) Except for petitions to delist, information that is useful in
determining whether a critical habitat designation for the species is
prudent and determinable (see Sec. 424.12), including information on
recommended boundaries and physical features and the habitat
requirements of the species; such information, however, will not be a
basis for determining whether the petition has presented substantial
information that the petitioned action may be warranted.
(d) Additional information to include in petitions to revise
critical habitat. The Secretary's determination as to whether the
petition provides substantial information that the petitioned action
may be warranted will depend in part on the degree to which the
petition includes the following types of information; failure to
include adequate information on any one or more of the following may
result in the Secretary finding that the petition does not present
substantial information:
(1) A description and map(s) of areas that the current designation
does not include that should be included, or includes that should no
longer be included, and the benefits of designating or not designating
these specific areas as critical habitat. Petitioners should include
available data layers if feasible;
(2) A description of the physical or biological features essential
for the conservation of the species and whether they may require
special management considerations or protection;
(3) For any areas petitioned to be added to critical habitat within
the geographical area occupied by the species at time it was listed,
information indicating that the specific areas contain the physical or
biological features that are essential to the conservation of the
species and may require special management considerations or
protection. The petitioner should also indicate which specific areas
contain which features;
(4) For any areas petitioned for removal from currently designated
critical habitat within the geographical area occupied by the species
at the time it was listed, information indicating that the specific
areas do not contain features (including features that allow the area
to support the species periodically, over time) that are essential to
the conservation of the species, or that these features do not require
special management consideration or protections;
(5) For any areas petitioned to be added to or removed from
critical habitat that were outside the geographical area occupied by
the species at the time it was listed, information indicating why the
petitioned areas are or are not essential for the conservation of the
species; and
(6) Information demonstrating that the petition includes a complete
presentation of the relevant facts, including an explanation of what
sources of information the petitioner consulted in drafting the
petition, as well as any relevant information known
[[Page 29295]]
to the petitioner not included in the petition.
(e) Response to requests. (1) If a request does not meet the
requirements set forth at paragraph (b) of this section, the Secretary
will reject the request without making a finding, and will notify the
sender and provide an explanation of the rejection.
(2) If a request does meet the requirements set forth at paragraph
(b) of this section, the Secretary will acknowledge, in writing, the
receipt of a petition, within 30 days of receipt.
(f) Supplemental information. If the petitioner provides
supplemental information before the initial finding is made and asks
that it be considered in making a finding, the new information, along
with the previously submitted information, is treated as a new petition
that supersedes the original petition, and the statutory timeframes
will begin when such supplemental information is received.
(g) Findings on petitions to add or remove a species from the
lists, or change the listed status of a species. (1) To the maximum
extent practicable, within 90 days of receiving a petition to add a
species to the lists, remove a species from the lists, or change the
listed status of a species, the Secretary will make a finding as to
whether the petition presents substantial scientific or commercial
information indicating that the petitioned action may be warranted. The
Secretary will promptly publish such finding in the Federal Register
and so notify the petitioner.
(i) For the purposes of this section, ``substantial scientific or
commercial information'' refers to credible scientific or commercial
information in support of the petition's claims such that a reasonable
person conducting an impartial scientific review would conclude that
the action proposed in the petition may be warranted. Conclusions drawn
in the petition without the support of credible scientific or
commercial information will not be considered ``substantial
information.''
(ii) The Secretary will consider the information referenced at
paragraphs (b), (c), and (f) of this section. The Secretary may also
consider information readily available in the agency's possession at
the time the determination is made in reaching his or her initial
finding on the petition. The Secretary will not consider any supporting
materials cited by the petitioner that are not provided to us by the
petitioner in the format required at paragraph (b)(6) of this section
or otherwise readily available in our possession.
(iii) The ``substantial scientific or commercial information''
standard must be applied in light of any prior determinations made by
the Secretary for the species that is the subject of the petition.
Where the Secretary has already conducted a status review of that
species (whether in response to a petition or on the Secretary's own
initiative) and made a final listing determination, any petition
seeking to list, reclassify, or delist that species will be considered
a ``subsequent petition'' for purposes of this section. A subsequent
petition provides ``substantial scientific or commercial information''
only if it provides sufficient new information or analysis not
considered in the previous determination (or previous 5-year review, if
applicable) such that a reasonable person conducting an impartial
scientific review would conclude that the action proposed in the
petition may be warranted despite the previous determination.
(2) If a positive 90-day finding is made, the Secretary will
commence a review of the status of the species concerned. Within 12
months of receipt of the petition, the Secretary will make one of the
following findings:
(i) The petitioned action is not warranted, in which case the
Secretary shall promptly publish such finding in the Federal Register
and so notify the petitioner.
(ii) The petitioned action is warranted, in which case the
Secretary will promptly publish in the Federal Register a proposed
regulation to implement the action pursuant to Sec. 424.16; or
(iii) The petitioned action is warranted, but:
(A) The immediate proposal and timely promulgation of a regulation
to implement the petitioned action is precluded because of other
pending proposals to list, delist, or change the listed status of
species; and
(B) Expeditious progress is being made to list, delist, or change
the listed status of qualified species, in which case such finding will
be promptly published in the Federal Register together with a
description and evaluation of the reasons and data on which the finding
is based. The Secretary will make a determination of expeditious
progress in relation to the amount of funds available after complying
with nondiscretionary duties under section 4 of the Act and court
orders and court-approved settlement agreements to take actions
pursuant to section 4 of the Act.
(3) If a finding is made under paragraph (g)(2)(iii) of this
section with regard to any petition, the Secretary will, within 12
months of such finding, again make one of the findings described in
paragraph (g)(2) of this section with regard to such petition.
(h) Findings on petitions to revise critical habitat. (1) To the
maximum extent practicable, within 90 days of receiving a petition to
revise a critical habitat designation, the Secretary will make a
finding as to whether the petition presents substantial scientific
information indicating that the revision may be warranted. The
Secretary will promptly publish such finding in the Federal Register
and so notify the petitioner.
(i) For the purposes of this section, ``substantial scientific
information'' refers to credible scientific information in support of
the petition's claims such that a reasonable person conducting an
impartial scientific review would conclude that the revision proposed
in the petition may be warranted. Conclusions drawn in the petition
without the support of credible scientific information will not be
considered ``substantial information.''
(ii) The Secretary will consider the information referenced at
paragraphs (b), (d), and (f) of this section. The Secretary may also
consider other information readily available in the agency's possession
at the time the determination is made in reaching its initial finding
on the petition. The Secretary will not consider any supporting
materials cited by the petitioner that are not provided to us by the
petitioner in the format required by paragraph (b)(6) of this section
or otherwise readily available in our possession.
(2) Within 12 months after receiving a petition found to present
substantial information indicating that revision of a critical habitat
designation may be warranted, the Secretary will determine how to
proceed with the requested revision, and will promptly publish notice
of such intention in the Federal Register. Such finding may, but need
not, take a form similar to one of the findings described under
paragraph (g)(2) of this section.
(i) Petitions to designate critical habitat or adopt special rules.
Upon receiving a petition to designate critical habitat or to adopt a
special rule to provide for the conservation of a species, the
Secretary will promptly conduct a review in accordance with the
Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental
regulations, and take appropriate action.
(j) Withdrawal of petition. A petitioner may withdraw the petition
at any time during the petition process by submitting such request in
writing. This request must include the name,
[[Page 29296]]
signature, address, telephone number, if any, and the association,
institution, or business affiliation, if any, of the petitioner. If a
petition is withdrawn, the Secretary may, at his or her discretion,
discontinue action on the petition finding, even if the Secretary has
already made a positive 90-day finding.
Dated: May 15, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
Dated: May 13, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2015-12316 Filed 5-20-15; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P