Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions, 66461-66486 [2016-23003]

Download as PDF Vol. 81 Tuesday, No. 187 September 27, 2016 Part IV Department of the Interior Fish and Wildlife Service Department of Commerce asabaliauskas on DSK3SPTVN1PROD with RULES National Oceanic and Atmospheric Administration 50 CFR Part 424 Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions; Final Rule VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27SER4.SGM 27SER4 66462 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations DEPARTMENT OF THE INTERIOR Fish and Wildlife Service DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 424 [Docket Nos. FWS–HQ–ES–2015–0016 and DOC 150506429–6767–04; 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), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services), finalize changes to the regulations concerning petitions, to improve the content and specificity of petitions and to enhance the efficiency and effectiveness of the petition process to support species conservation. Our revisions to the regulations clarify and enhance the procedures by which the Services evaluate petitions under section 4(b)(3) of the Endangered Species Act of 1973, as amended. These revisions will also maximize the efficiency with which the Services process petitions, making the best use of available resources. DATES: This rule is effective October 27, 2016. 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: asabaliauskas on DSK3SPTVN1PROD with RULES SUMMARY: Background The Administrative Procedure Act (APA; 5 U.S.C. 553(e)) gives interested persons the right to petition for the issuance, amendment, or repeal of an agency’s rule. The U.S. Fish and Wildlife Service and the National VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 Marine Fisheries Service (Services) use the rulemaking process in our administration of the Endangered Species Act of 1973 (Act; 16 U.S.C. 1531 et seq.), as amended, in particular section 4. Section 4(b)(3) of the Act establishes deadlines and standards for making findings on petitions to conduct rulemakings under section 4. Thus, in this context, the primary purpose of the Act’s petition process is to empower the public, in effect, to direct the attention of the Services to (1) species that may be imperiled and may warrant listing, but whose status the Services have not yet determined, (2) changes to a listed species’ threats or other circumstances that may warrant reclassification of that species’ status (i.e., ‘‘downlisting’’ the species from an endangered species to a threatened species, or ‘‘uplisting’’ from a threatened species to an endangered species) or delisting of the species (i.e., removing the species from the Federal List of Endangered and Threatened Wildlife or List of Endangered and Threatened Plants), or (3) information that would support making revisions to critical habitat designations. The petition process is a central feature of the Act, and serves a beneficial public purpose. Purpose of Revising the Regulations The Services are revising the regulations at 50 CFR 424.14 concerning petitions to improve the content and specificity of petitions in order to enhance the efficiency and effectiveness of the petition process to support species conservation. Our revisions to § 424.14 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)). The revised regulations pertaining to the petition process will provide greater clarity to the public on the petitionsubmission process, which will assist petitioners in providing complete petitions. These revisions will also maximize the efficiency with which the Services process petitions, making the best use of available resources. These changes will improve the quality of petitions through clarified content requirements and guidelines, and, in so doing, better focus the Services’ resources on petitions that merit further analysis. In the following discussion, we first summarize the comments received during the two public comment periods; we then summarize the changes and explain the benefits of making these changes. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Summary of Comments and Recommendations In the proposed rule published on May 21, 2015 (80 FR 29286), we requested that all interested parties submit written comments on the proposal by July 20, 2015. We did not receive any requests for a public hearing. We received several requests for an extension of the public comment period, and on July 17, 2015 (80 FR 42466), we extended the public comment period to October 18, 2015. In total, we received 347 comments. After further consideration of the issues, we revised the proposed rule and reopened a comment period for an additional 30 days on April 21, 2016 (81 FR 23448), to allow the public an opportunity to comment on proposed changes made in response to the comments we received on the original proposal. In that revised rule, we also requested comment on the information collection aspects of the proposed rule under the Paperwork Reduction Act. We received 27 comments on the revised proposed rule. All substantive information and relevant comments provided during the comment periods have been considered, and where appropriate, have either been incorporated directly into this final rule or addressed in the more specific responses to comments below. Comments are grouped into categories. General Comments Comment (1): Several commenters expressed concern that the proposal would create a substantial burden and restriction of petitioners’ rights under various authorities, including the First Amendment, APA, and Executive Order 13563. Our Response: These regulations do not restrict or limit a citizen’s right to petition the Services, but rather clarify the petition process for the public by identifying what would make the process most efficient and effective for both citizens and agencies. Although the First Amendment to the U.S. Constitution guarantees members of the public the rights to, among other things, ‘‘petition the Government for a redress of grievances’’ and to express their views, it does not require a Federal agency to treat every such expression as a petition under the APA. The APA requires Federal agencies to give ‘‘an interested person the right to petition for the issuance, amendment, or repeal of a rule,’’ 5 U.S.C. 553(e), but does not speak to the particulars of the petition process. As a result, agencies have discretion to design a reasonable and efficient process for receiving and E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations considering petitions. Many Federal agencies have developed regulations to govern the petition process, including setting out requirements for the content and informational support of petitions similar to those included in this final rule. See Jason A. Schwartz and Richard L. Revesz, ‘‘Petitions for Rulemaking: Final Report to the Administrative Conference of the United States’’ (Nov. 5, 2014). In further response to the comment, we note that executive orders such as E.O. 13563 set out guidance for Federal agencies, but do not create substantive or procedural rights in any party. Comment (2): A commenter noted that general claims about efficiency do not justify restrictions on fundamental rights. Our Response: The revised regulations do not restrict the right of the public to petition the Services under the Act. Rather, they provide clarification to petitioners as to what they must include in a petition in order for the Services to be able to evaluate whether or not the petition contains substantial information indicating that the petitioned action may be warranted. As noted above, agencies have discretion to devise reasonable requirements as to the format, content and informational support of petitions to ensure that agency resources are used effectively. Comment (3): A commenter noted that the Services’ proposed rule departs significantly from the case law that states the threshold for a substantial 90day finding is low, and therefore should not necessitate a petitioner assembling all the information available on a species. The Services should make a preliminary finding on a petition without access to all of the scientific information that could be discovered; that approach is more appropriate in a status review. Our Response: The Act places the obligation squarely on the petitioner to present the requisite level of information to meet the ‘‘substantial information’’ test to demonstrate that the petitioned action may be warranted. Therefore, in determining whether the petition presents substantial information, the Services are not required to seek out any supporting source materials beyond what is included with a given petition. As a result, the Services will not base their 90-day findings on any claims for which supporting source materials have not been provided in the petition. However, as discussed in more detail below in the section, Findings on a Petition to List, Delist, or Reclassify—Paragraph (h), the Services are confirming that they have VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 the discretion to consider, as appropriate, readily available information that provides context necessary to evaluate whether the information that a petition presents is timely and up-to-date, and whether it is reliable or representative of the available information on that species, in making a determination as to whether the petition presents substantial information. If the Services were to consider petitions in a vacuum, this could lead to consequences that would be at odds with the purposes of the Act by diverting agency resources to matters that only appear superficially to meet the statutory and regulatory standards for further consideration. In these regulatory amendments, the Services have crafted a balanced approach that will ensure that the Services may evaluate the information readily available to us, without conducting a more wide-ranging collection of information and analysis more appropriate for a 12-month status review. Comment (4): Several commenters expressed concern that the initially proposed requirements could potentially be cost-prohibitive with respect to the provisions for State precoordination and gathering all relevant data. Thus, whether an interested person submits a petition to the Services may be influenced by the financial capacity of the petitioner, and not based on the best scientific evidence available. Our Response: Based on public feedback and reconsideration of the issues, the Services revised our original proposal, as discussed in our April 21, 2016 revised proposed rule (81 FR 23448). In the re-proposal, we modified the originally proposed requirement for pre-coordination with States and the proposed requirement to provide all relevant data. For further discussion of these changes, please see comments and responses below under Paragraph (b)— Requirement for State Coordination Prior to Petition Submission to FWS and Paragraph (c)—All Relevant Data Certification. Comment (5): A commenter stated that the Services should provide examples of good and bad petitions. Our Response: In the revised regulation, we provide greater clarity and detail as to what elements make up a thorough, complete, and robust petition. The facts of each petition may vary significantly, so it is difficult to extrapolate that across the board. However, each petition and subsequent finding is available on http:// www.regulations.gov, so the public can evaluate the petitions and findings themselves. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 66463 Comment (6): A commenter stated that there should be a nominal filing fee for each petition. This requirement could serve as a deterrent for filing hundreds of petitions at a time. Our Response: Petitioning the Services is a right the public has under the Act and the APA. Neither of those authorities provides for assessing fees. We conclude that the petition process is not like an application for a permit, where charging a fee may be appropriate; petitioners do not receive any tangible authorizations or rights through submission of a petition. Instead, the intent of the petition process is to allow the public to direct the Services’ attention to a matter concerning the status of a species under their jurisdictions and authority. Comment (7): A commenter stated that the Services should publish in the Federal Register notices indicating that they received petitions to list, delist, or reclassify a species, or publish the petitions themselves. Further, the Services should post all information from a petition under review on a public Web site if a species status review is begun. Our Response: The Services are required, to the maximum extent practicable, to reach an initial finding on a petition within 90 days of receiving the petition and to promptly publish such finding in the Federal Register. The Act does not include a requirement to publish notices of the receipt of a petition. To publish separate Federal Register notices simply to announce our receipt of petitions would unnecessarily burden this process and take resources away from evaluating petitions and conducting higher-priority conservation work. The Services provide information on publicly accessible Web sites showing all currently active petitions (see https://ecos.fws.gov/ecp/report/ table/petitions-received.html and http:// www.nmfs.noaa.gov/), and we make the petitions available as supporting information on http://www/ regulations.gov when we publish our 90-day findings. Comment (8): A commenter stated that the Services should set up a Web site for electronic submission of petitions to offset any potential increased cost of printing and mailing of multiple petitions. Our Response: We currently receive many petitions electronically by email, and encourage petitioners to submit petitions electronically as well. Current contact information for both Services may be found on their respective Web sites, at https://www.fws.gov/ecologicalservices/map/index.html and http:// www.nmfs.noaa.gov/pr/contact.htm. E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66464 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations However, given the file size of source information typically provided with petitions, it may not always be practicable to provide source material by email. In such cases, we recommend that petitioners mail appropriate digitalstorage media (or hard copies, if preferable to the petitioner) to the appropriate office. This should help reduce printing costs for petitioners. Further, we are not requiring that copies of petitions be mailed to States. Comment (9): A commenter noted that a similar alteration in the citizen petition process in a 1996 policy was rejected by the Ninth Circuit Court of Appeals and the District of Columbia Court (Ctr. For Biological Diversity v. Norton, 254 F.3d 833 (9th Cir. 2001); Am. Lands Alliance v. Norton, 360 F. Supp. 2d 1, 6 (D.D.C. 2003)). The proposed rule change at issue here has the same effect. Our Response: We have revised the language of the rule to make clear that the cases the commenter references do not apply to this rule. Those cases involved a provision of the 1996 Petition Management Guidance (PMG) that stated, ‘‘[A] petition to list a candidate species is redundant and will be treated as a second petition.’’ The PMG also provided that a second petition would require only a prompt response informing the submitter of the prior petition, and would be treated as a comment on the previous petition. The courts held that this ‘‘redundancy’’ provision in the PMG violated the Act, because it allowed the Secretary to avoid explaining why the petitioned action was precluded, did not create a sufficient record to allow for meaningful judicial review of any finding on a ‘‘redundant’’ petition, and circumvented the statutory requirement that the Service comply with deadlines for making petition findings. In contrast, this rule, as revised, does not provide for treating petitions to list a candidate species as second petitions. Rather, § 424.14(h)(1)(iii) provides that any previous reviews or findings contributes to the context for making a petition finding: The ‘‘substantial scientific or commercial information’’ standard must be applied in light of any prior reviews or findings the Services have made on the listing status of the species that is the subject of the petition. Where the Services have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on the Services’ own initiative), the Services will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action, a petitioned action generally would not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information not previously considered. As explained in response to Comment (55), below, all requests which meet the requirements of § 424.14(c) are considered petitions, will be evaluated, and a finding will be made. Therefore, § 424.14(h)(1)(iii) does not suffer from the deficiencies that the courts identified with respect to the ‘‘redundancy’’ provision in the PMG. The Services will still evaluate and make petition findings on all petitions they receive regardless of whether the species is already a candidate or a finding on a petition requesting the same action has already been made. In making such a petition finding, we would have created a record that would allow for meaningful review not only of any determination that listing is warranted, but also of any determination that listing is precluded by higher-priority listing actions and we are making expeditious progress towards adding qualified species to the lists. Finally, the findings on such a petition will still be subject to the Act’s statutory deadlines. Comment (10): A commenter stated that petitioners should be advised if their request was screened out and provided with the reasons for the petition rejection. The Services could develop a form letter indicating which mandatory requirements the petition was missing. This way, a petitioner may easily understand which items of information should have been included in the petition but were not. Our Response: Section 424.14(e)(1) of the revised proposed rule (81 FR 23448; April 21, 2016) (§ 424.14(f)(1) in this rule) does provide that, if the Services reject a petition for not meeting the requirements of proposed § 424.14(b) (§ 424.14(c) in this rule), they will, within a reasonable timeframe, notify the sender and provide an explanation of the rejection. It further provides that the Services will generally reject the request without making a finding; therefore, the submitter could rectify the deficiencies in the petition and resubmit it. We appreciate the suggestion of form letters, and will identify which elements are missing in our responses. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Comment (11): A commenter stated that the Services propose to replace the title ‘‘the Secretary’’ or ‘‘the Secretaries’’ with ‘‘the Services’’ throughout the regulation text because the Services are the designees of the Secretaries of Commerce and the Interior in implementing the Act. The commenter disagreed with the change. Although the Services are the agencies designated to implement the Act, the Secretaries are those designated and confirmed by Congress to serve on the Cabinet and responsible for carrying out those specific acts given to the Executive Branch by the Legislative Branch of the government. Our Response: While we agree that the authority for making decisions under the Act ultimately rest with the Secretaries of Commerce and the Interior, the Secretaries have formally delegated authority to make petition findings to the Services. As such, we have maintained the language as ‘‘the Services.’’ Paragraph (b)—Requirement for State Coordination Prior To Petition Submission to FWS Comment (12): We received many comments raising concerns with the requirement for State pre-coordination, as originally proposed on May 21, 2015 (80 FR 29286). These included concerns that the provision would be too burdensome, potentially requiring a petitioner to mail thousands of pages of petition material; it is outside the responsibility of the petitioner to do this coordination; it is the responsibility of the Services to coordinate with the States; it could result in adversarial relationships between petitioners and States; and it would slow the petition process. Concerns were also expressed that the coordination requirement could create a significant amount of additional work for State agencies. In addition, most State commenters requested a longer coordination period, as long as 120 days. Our Response: We have removed the requirement for coordination from this final rule, and replaced it with the simpler requirement that a prospective petitioner send a notification letter to the State(s) within the current range of the species stating the intent to file a petition with either Service at least 30 days prior to filing the petition. This notification will allow States time and opportunity to send data directly to the Services, should they desire. This change acknowledges the special role of States as evidenced in section 6 of the Act while not overly burdening petitioners. E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations While not required under this final rule, we encourage members of the public who are preparing a petition to coordinate with the appropriate State agencies when gathering information; this coordination will help in preparing a complete petition with adequate information. Additionally, we value the input and expertise of our State partners and wish to provide them the opportunity to be aware that species in their States are the subject of petitions and to provide pertinent information on those species to the Services, should they have such information and wish to share it. Comment (13): Several States and other commenters expressed concerns that the Services removed the originally proposed requirement for full State precoordination, which would have assured the States a role in the petition process. Our Response: Affected States will have the opportunity to submit data and information to the Services in the 30day period before a petition is filed. Further, § 424.14(h)(1)(ii) of this revised regulation allows us to consider data and information readily available at the time the finding is made. Because information received after the petition is filed would be readily available at the time the finding is made, the Services could consider any information received up until the time the Services make their findings (including any data and information States have voluntarily sent to the Services in response to the notification letters). The requirement of a petitioner to notify States at least 30 days prior to filing a petition is a minimum. We encourage petitioners to notify States earlier, even as soon as they contemplate petitioning a species for protection under the Act. Further, we encourage petitioners to contact State wildlife agencies and consult State Web sites as valuable sources of information on their subject species, and incorporate any such information in their petitioned requests. The use of such information, up until the time the Services make their findings, is a change from prior practice. However, we find that this change will expand the ability of the States and any interested parties to take the initiative of submitting input and information for the Services to consider in making 90-day findings, thereby making the petition process both more efficient and more thorough. In addition, this interpretation is consistent with the statutory purpose and with case law. It is consistent with the statutory purposes of the Act because providing for consideration of all information, VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 regardless of when it was received, will put the Services in a better position to make the statutorily required finding— whether or not the petition presents substantial information indicating that the petitioned action may be warranted—by providing factual context in which to evaluate the information provided in the petition. Further, nothing in the Act precludes consideration of information up until the time a decision is made. It is consistent with case law because it stops short of allowing the Services to solicit new information for purposes of a 90-day finding, which courts have held to be beyond the scope of a 90-day finding. E.g., Colorado River Cutthroat Trout v. Kempthorne, 448 F. Supp. 2d 170 (D.D.C. 2006). Please see Findings on a Petition to List, Delist, or Reclassify—Paragraph (h) under Summary of Changes to Previous Regulations at 50 CFR 424.14, below, for further discussion. Comment (14): A commenter expressed concern that the changed requirement for State coordination undermines our expectation that petitioners present unbiased and balanced information. If petitioners are not required to seek State information, they may keep their awareness of the complete information intentionally low. Our Response: While we encourage prospective petitioners to contact State wildlife agencies for information on their subject species as part of creating a robust, well-balanced petition, we conclude that at the 90-day finding stage, it is not appropriate to expect petitioners to coordinate on the contents of a petition with another entity. Comment (15): A commenter requested that the Services increase the timeframe for States to respond to a petition to at least 60 days. Our Response: The Services think that a minimum of 30-day notification prior to filing a petition provides time for States to engage the Services during the petition process without substantially increasing the likelihood that the Services will be unable to meet the 90-day timeframe. Further, while we encourage States to submit any information within this 30-day time period, the States (and any interested parties) are able to submit information up until the finding is made (please see our response to Comment (13), above). The requirement that a petitioner notify States at least 30 days prior to filing a petition is, as noted, a minimum. Also, we encourage petitioners to contact State wildlife agencies and consult State Web sites as valuable sources of information on their subject species, and incorporate any PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 66465 such information in their petitioned requests. Comment (16): Several commenters expressed concern that the revised requirement for State coordination would create a burden on State agencies, because it would shift the States’ role from determining what information was missing from a petition to directing their limited resources towards providing potentially all of the relevant information on a petitioned species, even if this is redundant with what the petitioner eventually provides. Our Response: This final rule does not require the States to submit information to the Services; whether they do so will be their choice. If a relevant State would like to have a copy of the petition, they may ask petitioners or the Services for a copy, or obtain a copy from the respective Service’s Web sites after the petition has been filed. Comment (17): Commenters noted that nothing in the Act requires consultation (with respect to petitions) with anyone. A requirement to notify a third party, specifically State agencies, prior to the submission of a petition under the Act or the APA is without legal support. The APA provides the right of each citizen to petition the government, and the Act provides the right to petition for the listing, delisting, or reclassifying of a species. Our Response: Section 4(b)(1)(A) and 6 of the Act require the Services to take into consideration those efforts by States to protect species and their habitats and coordinate with States on the conservation of listed species and species at risk. Our modified language requiring petitioners to notify State wildlife agencies of their intent to file a petition with respect to a species found in those States with the appropriate Service assists us in meeting the requirements of the Act regarding State coordination. Our revised requirement for State coordination does not infringe on the right of the public to submit petitions under section 4 of the Act. Rather, it allows States the opportunity, should they choose, to participate in the petition process by providing information to the Services, while at the same time removing any potentially onerous requirements on petitioners. Comment (18): Several commenters asked how they determine to which State agencies they must send letters of intent to file a petition. One commenter seemed to suggest that the Services provide each State the opportunity to designate all appropriate agencies to receive a copy of the petition, and maintain a master contact list for petitioners to access when contacting States. E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66466 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations Our Response: Petitioners must send letters to the State(s) that are in the known, current geographic range of the species. Section 3(18) of the Act defines the term ‘‘State agency’’ to mean any State agency, department, board, commission, or other governmental entity which is responsible for the management and conservation of fish, plant, or wildlife resources within a State. The Association of Fish and Wildlife Agencies (AFWA), which is a professional association for State, provincial and territorial fish and wildlife agencies, is a helpful resource in determining contact information for State agencies. Further, in researching the information to support the petitioned request, the petitioner should look for range information, and thereby find the State(s) in which the species occurs. We note that when there are multiple range States and in cases where there is some ambiguity about the extent of range, we would not envision rejecting a petition because the petitioner did not notify every State in question, as long as it appears that the petitioner made an attempt to do so. Comment (19): A commenter recommended that, to further reduce the burden on petitioners, petitioners be allowed to send (email) notification letters to State wildlife agencies electronically instead of limiting the requirement to mailing hard copy letters. Our Response: We appreciate this suggestion, and clarify in this rule that petitioners are to include copies of notification letters or emails as a required part of their petition submission. Comment (20): One commenter stated that the minimum 30-day requirement for notifying States of intent to file a petition improperly extends the mandatory timelines that Congress established. Another commenter stated that a required 30-day coordination timeframe with States could be to the detriment of imperiled species, especially those petitioned for emergency listing. Our Response: The Act directs the Services to make a finding on whether a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted within 90 days of the receipt of the petition, to the maximum extent practicable. The 30 days’ notice that will be given under the regulations prior to submitting a petition is by definition not part of the 90-day statutory timeframe that begins to run from receipt of the petition. Further, the State notification requirement need not delay petitioners from filing their petitions VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 close to the time they would have done so in the absence of the notification requirement. In fact, we encourage prospective petitioners to contact States notifying them of their intent to file a petition on a subject species as soon as they contemplate doing so. Thus, some or all of the notification period could run concurrently with the time that the petitioner is researching and preparing the petition submission. Petitioners may request listing on an emergency basis; however, the Services are only required to treat such requests as a regular listing petition, and to follow the statutory timelines for responding to the petition as a regular listing petition. At any time, if one of the Services determines that there is an emergency posting a significant risk to the well-being of a species, it is within that Service’s discretion under Section 4(b)(7) whether to consider promulgating a regulation that takes effect immediately. Comment (21): A commenter noted that petitions regarding species under NMFS jurisdiction should also be subjected to the provision of precoordination with States within the range of the petitioned species. They stated that the rationale of increased logistical difficulties for petitions on NMFS species is not a valid argument because many terrestrial and freshwater species under FWS jurisdiction are also wide-ranging and would theoretically present the same logistical problems. Our Response: In our revised proposed rule (81 FR 23448; April 21, 2016), we revised the requirement for petitioners to simply notify States of their intent to file petitions at least 30 days prior to submission of petitions to the Services, and we applied this requirement to petitions sent to either Service. Therefore, this final rule applies to submissions to both NMFS and FWS. Comment (22): Several commenters were opposed to the provision in the original proposal requiring the petitioner to certify inclusion of data from State Web sites, as the information on those sites is superficial and not adequate for a species review. Our Response: After reviewing public comment on the May 21, 2015, proposed rule (80 FR 29286), we developed a revised proposal that removed this provision. This final regulation in no way limits petitioners to the sources of information they may consult and include in petitions. We encourage petitioners to use a broad range of source materials, in order to create a well-balanced presentation of facts, including information provided by researchers, species experts, State data, PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 and Tribal information, as well as other sources. Comment (23): A commenter encouraged the Services to reject petitions that do not include data and information from the affected States because, in their view, these would not present a complete, balanced representation of the relevant facts. Our Response: As noted, we encourage petitioners to use a broad range of source materials, including information from State wildlife agencies, which often have considerable experience and information on the species within their boundaries. However, we would evaluate the petition and supporting evidence on a case-by-case basis to determine whether it presents substantial information to indicate that the action may be warranted. We note that, in this final rule, § 424.14 (d)(5) and (e)(6) state that, in determining whether a petition presents substantial information indicating that the petitioned action may be warranted, one of the factors the Services will consider is whether the petition presents a complete and balanced representation of the relevant facts. Because it is not required in section (c), the inclusion of a complete and balanced representation of the relevant facts is not part of the essential information that is required for all petitions to be accepted as a petition. Rather, whether such a presentation is included is one of the factors the Services will consider in making our finding of whether a petition presents substantial information that the requested action may be warranted. We nevertheless encourage petitioners to check for availability of such information, to contact State wildlife agencies or consult State Web sites in researching species that are the subject of their requests, and to include in the petition any State information that would contribute to providing the detailed narrative and/or citations required under § 424.14(c)(4) and (c)(5). Comment (24): A commenter noted that the discretion for the Services to choose whether or not to consider information provided by States is a disincentive to the States to undertake the considerable work necessary to provide information. Our Response: The Services appreciate all information and data provided by States, and generally intend to consider timely information provided by the States, along with other readily available information, to put the information in the petition in context. Further, following substantial 90-day findings, the Services will carefully evaluate all information provided in E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations conducting subsequent status reviews. For further discussion, please see Findings on a Petition to List, Delist, or Reclassify—Paragraph (h), in Summary of Changes to Previous Regulations at 50 CFR 424.14, below. Comment (25): A commenter suggested that the Services add a requirement that petitioners must inform the affected States of the actual date that they intend to submit their petitions to one of the Services. If, for example, a petitioner gives a State notice 12 months before submitting a petition and that State provides data to the Services within 30 days of receiving that notice, the State’s data that the Services ultimately use to consider the petition could be outdated. Our Response: We encourage petitioners to give the States an estimate of when the petitioner will be submitting the petition to the Services, but we do not require it. While we appreciate the commenter’s concern that the Services be provided the best, most current information, we do not think it will pose a problem if a petitioner chooses to notify States of their intent to file a petition more than 30 days prior to submission to the Services. In fact, we encourage prospective petitioners to notify States earlier than 30 days before submission, to allow States more time to submit species information to the Services. Comment (26): A commenter noted that Congress chose to provide States the same procedural rights that every other stakeholder is provided—an opportunity to provide their perspectives on positive 90-day findings and to submit any relevant information concerning the finding and species during the 12-month review process. They should not have an opportunity to comment on petitions before the Services have made their 90-day findings. Our Response: We have revised our original proposed rule (80 FR 29286; May 21, 2015) such that we do not require petitioners to provide copies of their petitions to States before submission to the Services. However, we do note the special role envisioned for States under section 6 of the Act and find it is helpful for States to receive notifications of intent to file petitions on species found within their borders, to afford States the opportunity to provide information to the Services on those species, should they choose. If, in response to the required notification letter, any such State information is received before the 90-day finding is made, it may be useful in placing the information in the petition in context. Further, we encourage States to provide VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 the Services with information they may have on species of concern at any time. Finally, during any subsequent status reviews, it is the practice of the Services to request additional information from all interested parties, including State wildlife agencies. Comment (27): A commenter suggested adding a new paragraph in § 424.14(h)(2): ‘‘During the 12-month finding, the Service will fully include State biologists in evaluating the current status of the species proposed for listing. Status assessments will typically include: developing population and habitat models, identifying and evaluating threats, habitat requirements, and current species distributions. When possible, authorship of the Species Status Assessments will be shared between State and Service biologists to balance workload and promote data sharing.’’ Our Response: The scope of this regulation only includes how the Services will conduct 90-day petition findings, so it would not be appropriate to include the proposed language. However, to the extent practicable and appropriate, we will consult with and involve State agencies and other appropriate experts when conducting status reviews. The ability and need to do so will vary case-by-case, and depend on the expertise and resources available. However, the Act specifically charges the Services with the authority and obligation to implement the provisions of the Act; the Services are ultimately responsible for making determinations under the Act and cannot delegate that authority to other agencies. The Services recognize the expertise and in-depth knowledge many State wildlife agencies have concerning species under their jurisdictions, value greatly our partnerships with State wildlife agencies, and take seriously the provisions of section 4 and 6 of the Act in coordinating and cooperating with the States. It is the practice of the Services to contact State wildlife agencies during status reviews to seek information on the subject species, and we invite States at any time to provide information and data they may have on species within the State. Many States provide frequent, regular updates to the Services on information about species that occur in their States. Comment (28): Several commenters suggested adding Tribal entities to the originally proposed requirement for petitioners to send copies of petitions to State wildlife agencies, and incorporating any materials States send as part of the petition. They cited Secretarial Order 3206 and the PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 66467 Presidential Memorandum of 1994, which set forth the general conditions under which these consultative actions are to occur, and cited Executive Order 13175, which specifically provides guidance for coordination and collaboration on policies that have Tribal implications. Further, FWS’ tribal policy supports early coordination with Tribes, and states that the ‘‘Service will consult with Native American governments on fish and wildlife resource matters of mutual interest and concern,’’ and that the ‘‘goal is to keep Native American governments involved in such matters from initiation to completion of related Service activities’’ [emphasis added]. Our Response: The Services greatly value the conservation partnerships we have with Tribes, as reflected in the intra-governmental guidance documents cited, and appreciate the conservation efforts and programs many Tribes have established. While there are no specific notification requirements for petitioners regarding Tribes, we encourage prospective petitioners, should they find that the range of a species includes Tribal lands, to contact the appropriate Tribes to coordinate with them and obtain information which they may have, and include this information in their petition documents. Further, during any subsequent status reviews, the Services are committed to proactively coordinating with Tribes on any species of interest on Tribal lands and to incorporating information and data Tribes provide into our reviews of those species. Comment (29): In response to our revised proposed rule (81 FR 23448; April 21, 2016), a commenter noted that the Services should expand the requirements to send a letter to States of intent to file a petition to also include other government entities. Many county-level governments have dedicated wildlife departments that manage and monitor species and that could provide additional data on species status and habitat requirements. Our Response: It would be difficult for petitioners to determine all countylevel or other level government agencies that may have information on a subject species, and contact all such entities. Therefore, it would be unrealistic to make this a requirement for a request to qualify as a petition. However, we do encourage petitioners to avail themselves of such potential information sources whenever they are aware of them. E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66468 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations Paragraph (c)—Single Species Petition Limitation Comment (30): We received several comments expressing concerns about the single species per petition requirement. These included concerns that limiting a petition to a single species will lead to an increase in the Services’ processing time, a decrease in the efficiency of the listing process, and a reduction in listing species under the Act. Our Response: By having multiple well-organized and complete singlespecies petitions, we anticipate that in many cases we will be able to evaluate each petition much more efficiently and effectively compared to a multi-species petition. It has been our experience that the quality of the information varies from species to species in the multispecies petitions we have received. Multispecies petitions have often generalized or referenced information across species, which significantly complicates the evaluation process, because it is unclear which references apply to which species. Because the Act requires us to make a finding on each petitioned action and species individually, we have determined that the approach outlined in this final rule will greatly enhance efficiency and effectiveness for both the public and the Services. Further, we do not think it will take appreciably more time or effort for the petitioner to provide a series of well-organized and complete singlespecies petitions than it would to produce one well-organized and complete multi-species petition. Comment (31): One commenter asserted that requiring separate petitions to list species, or one or more subspecies or distinct population segment (DPS) of the same species will result in an increase to the Services’ workload. Another commenter noted that if a petitioner seeks an action on a subspecies or DPS, the petition must present substantial scientific or commercial information indicating that the action may be warranted for each specified subspecies or DPS. The petitioner cannot rely upon general information regarding the species to support petitioned actions related to particular subspecies or DPS. Our Response: We agree with the comments regarding the petitioner’s burden to provide specific information to support requested actions for all ‘‘species’’ included in the petition. We clarify in this final rule that a petition may address either a single species or any number and configuration of ‘‘species’’ as defined by the Act (including subspecies of fish or wildlife VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 or subspecies or varieties of plants, and DPSs of vertebrate species) that consist of members of a single species. Please see a more detailed discussion of this issue in Summary of Changes to Previous Regulations at 50 CFR 424.14, Requirements for Petitions—Paragraph (c), below. We encourage members of the public to write their petition so that it addresses the appropriate rank (species, subspecies, variety, or population segment), but we also recognize that it is sometimes difficult to clearly determine the appropriate rank with the available information. We do not expect members of the public who may not have the expertise in taxonomy or genetics to make independent determinations on conflicting taxonomic assessments that may be available in the scientific literature. Along a similar line, if there is information to suggest that a vertebrate species occurs in population segments that may be discrete and significant (per the DPS Policy), then the petitioner may request that we consider one or more of these population segments as DPSs. Such a petitioner should include information to allow the Services to determine whether a given population segment of a vertebrate species may qualify as a DPS (i.e., whether it may be both discrete and significant to the taxon to which it belongs). Thus, when the appropriate rank for listing is not clear to a petitioner, it is reasonable for a petition to address multiple entities, potentially at various ranks, as long as they all refer to the same species. In any case, as noted above, the petitioner has the burden to demonstrate that any entity not already recognized as a ‘‘species’’ under the Act may qualify as such, and to provide specific information to demonstrate that listing may be warranted. Comment (32): Commenters expressed the opinion that species sharing the same habitat types or facing the same threats, or having other commonalities in data should be allowed to be included in one petition for the sake of efficiency as to the preparation of petitions and review of petitions. Other commenters noted that, if the Services find the petition does not provide sufficient information for one species, the Services have the right to make a negative finding for that species. Our Response: The Act requires us to make findings for each petitioned species individually. Therefore, multispecies petitions do not save the Services time, even for species within similar habitat or facing similar threats. Even if species are found within similar habitats or face similar threats, we must PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 be able to demonstrate the relevance of general information to each individual species in order to support our finding. The petition needs to clearly link the information provided to particular species and claims made. The petition needs to make the case for each individual species. However, nothing would prevent petitioners from submitting a batch of separate but related petitions for species occurring in the same habitats or experiencing similar threats. While petitioners might prefer to prepare a request that addresses species in groups for their own convenience, we find that the purposes of the statute are directly furthered by requiring petitions to present information species-by-species, because this will promote clarity and facilitate making the determinations required under the Act. Comment (33): Several commenters cited the 1994 Services’ Interagency Policy for the Ecosystem Approach to the Endangered Species Act. In that document, the first stated policy of the Services is to ‘‘[g]roup listing decisions on a geographic, taxonomic, or ecosystem basis where possible.’’ The commenters stated that the proposed rule does not acknowledge that these other ecosystem-based policies exist, or that there may be practical consequences stemming from these proposed changes. Our Response: While in some instances it has proven to be efficient for the Services to adopt an ecosystembased approach to listing several species in the same ecosystem facing the same threats, we have found through experience that applying this approach to petitions has proven impractical. As noted above, we must make individual findings on each species for which we receive a petition. Species-specific petitions facilitate the Services’ ability to make the determinations for each species efficiently. However, if the Services find that multiple species warrant listing in a specific ecosystem, then we can propose a listing rule setting out determinations for each of several species in that common ecosystem. The Services have found great efficiencies in resources and time in grouping determinations into a single rule, and that approach comports with our 1994 policy. Paragraph (c)—All Relevant Data Certification Comment (34): We received many comments expressing concerns about the requirement for including all relevant data in petitions and certifying to that effect, as we originally proposed. The commenters raised various E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations concerns regarding the practicality and legality of this provision. Our Response: The Services appreciate the difficulty of determining whether all relevant information on a subject species has been gathered. Therefore, in our April 21, 2016 (81 FR 23448), revised proposed rule, we removed this requirement, and instead require petitioners to include a ‘‘detailed narrative justification for the recommended administrative action that contains an analysis of the information presented,’’ and recommend that petitioners provide a ‘‘complete, balanced representation of the relevant facts, including information that may contradict claims in the petition.’’ In availing themselves of the petition process, petitioners seek to direct the Services’ focus and resources to particular species. They should be forthcoming as to the known, relevant facts so that the Services have an accurate basis from which to evaluate the merits of the petition while making efficient use of its focus and resources. Comment (35): Several commenters expressed support for the provision requiring submitters to include all relevant data in petitions and to certify that they have done so, because it would provide supporting and refuting information and avoid limiting the Services to consideration of only biased information. Other commenters support the provision authorizing the Services to reject petitions if they do not meet the ‘‘all relevant data’’ requirement. Our Response: We realize that it would be difficult to provide all relevant data, and difficult to assess (and certify) that all information concerning a species has been discovered; for example, not all species information is publicly available, and research for many species is ongoing. Therefore, we have revised this final rule so that we encourage petitioners to provide a complete, balanced presentation of facts, including those which may tend to refute or contradict claims in the petition. However, that is not part of the essential information that is required in all petitions. Rather, it is one of the factors that the Services will consider when making the 90-day finding on the petition. This change is to encourage prospective petitioners to include in the petition a complete, balanced presentation of facts for the Services to evaluate in the 90-day finding and, if the finding is substantial, to consider in a species status assessment, without establishing it as an essential requirement that could unduly burden petitioners. We are revising the regulations to clearly communicate the essential VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 information that is required in all petitions (§ 424.14(c)), and identified the specific information which will help the Services in reaching their finding (§ 424.14(d) and (§ 424.14(e)). The Services retain discretion to consider a request to be a petition and process a petition where the Services determine there has been substantial, but not full technical, compliance with the relevant requirements (see discussion under Responses to Requests—Paragraph (f), in Summary of Changes to Previous Regulations at 50 CFR 424.14, below). Comment (36): A commenter noted that petitioners need to let the Services know what sources were consulted. If an obvious source is missing or used incorrectly, then the Services should be able to quickly and efficiently reject the petition. Our Response: Under the revised regulations, requests for agency action must contain electronic or hard copies of supporting materials, or appropriate excerpts or quotations from those materials, to qualify as petitions. Therefore, the Services are not required to consider claims for which cited source materials are not included with the petition. The Services will review this information to ensure compliance with the provisions set forth in this rule, and will take into consideration the extent to which the source materials included with the petition support a complete, balanced presentation of the facts, in any 90-day findings on petitions. Comment (37): A commenter stated that there is a lack of peer-reviewed science in petitions. Further, data in petitions should be reviewed by the affected States’ wildlife agencies using local information, science, and observations to corroborate the findings before the data could be used in a petition. Our Response: We encourage petitioners to conduct a review of the peer-reviewed literature on the species at issue as thoroughly as possible in order to ensure the petition is wellsupported. While State review of petitions and their supporting information would be helpful, it would be impractical to require this during the time frame associated with our making 90-day findings. However, should the Services make a substantial 90-day finding, States and members of the public will have an opportunity to review and provide comments on source materials used in the petition at that time, as well as provide additional information. Comment (38): A commenter stated that the removal of the proposed requirement that petitioners coordinate PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 66469 with States before submitting a petition also removes the element of cooperation that was being fostered through the original proposal. Anything the Services can do to foster increased dialogue between petitioners, other interest groups and State agencies engaged in wildlife conservation will ultimately be for the benefit of the species. Our Response: By requiring the notification of States at least 30 days prior to submission of a petition, it is the Services’ intention both to inform, and to foster the cooperation of, State partners while balancing the desire for State coordination with the required timeframes associated with petition findings and the rights of petitioners. This change provides a role for State agencies that the current regulations do not have. We agree that communication and collaboration between State agencies or other interested parties and the Services generally helps further the conservation of species. State agencies may send the Services any information relevant to a petition after they have been notified of a petition’s pending submission. In order for the information to be available to be considered as context for the petition, it should be submitted in a timely fashion. Paragraph (c)—Other Requirements Comment (39): A commenter stated the requirement of proposed § 424.14(b)(6) (§ 424.14(c)(6) in this rule), concerning providing electronic or hard copies of supporting material) could become burdensome and quite expensive for petitioners. Additionally, the Services should clarify that the provisions of proposed § 424.14(b)(6) would cover only sources that the petitioners choose to rely on for their petitions. The commenter further suggested revising proposed § 424.14(b)(8) to: ‘‘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, to the extent that petitioners have this information.’’ Our Response: Copies of source material cited in support of a petitioned action are key information needed by the Services to evaluate a petition efficiently and effectively. The Services are not required to search out source materials not provided in the petition to find justification for claims in the petition. Therefore, it is the petitioner’s responsibility to provide justification for the claims in the detailed narrative; this responsibility includes providing the source material on which they base their claims. These sources may be provided in hard copy or in electronic form. Most E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66470 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations petitioners opt to provide source materials electronically, which saves mailing and printing costs and provides an efficient way to include this essential part of a petition to the Services. Further, a robust petition should provide a balanced presentation of facts, including those which may be contradictory. Including such information and source material demonstrates that the petitioner has diligently investigated the important issues addressed in their petition and not merely compiled an unrepresentative sample of information. Including contradictory information also gives the petitioner the opportunity to offer their analysis or explanation as to why that contradictory information is not conclusive. Finally, the suggested language regarding requiring geographic range and range State information is already covered in this rule at § 424.14(c)(8), and would be redundant. This is important information to include in a petition, and we do not think it unreasonable to make this a requirement under § 424.14(c)(8). Comment (40): A commenter stated that the Services should carefully consider the implications of requiring petitioners to include ‘‘electronic or hard copies of supporting materials (e.g., publications, maps, reports, letters from authorities) cited in the petition.’’ Petitioners often cite publications that are available only through paid databases that restrict the distribution and use of those publications through copyright law. Because publications appended to listing petitions are presumably accessible to the public (e.g., through Freedom of Information Act (FOIA; 5 U.S.C. 552) requests), there may be conflicts between the supporting materials requirement and the legal restrictions under which petitioners obtain certain publications. Our Response: We have clarified in section (c)(6) of the final regulations that petitioners may provide either full copies of supporting materials or appropriate excerpts or quotations that support the assertions in the petition. Where a petitioner believes a source material to be protected by copyright laws, they should consider including limited excerpts or quotations from such material that they believe support their statements. This will fulfill the petitioners’ obligation to present information to support the statements in the petition, without creating potential conflicts with copyright protections. Where materials are subject to copyright protection, the Services may not be able to obtain such materials. VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 Comment (41): A commenter stated forcing petitioners to append information from the States interferes with a petitioner’s rights under the APA because it no longer allows for a balanced presentation of information to the Federal Government. Our Response: Based on public comments on our May 21, 2015, proposed rule (80 FR 29286), we published a revised proposed rule (81 FR 23448; April 21, 2016) removing the requirement that petitioners must include information from States in their petitions. As a result, in this final rule, we clarify that petitioners should include information from various sources in support of their requests, and we require that copies of the cited source information be included with submitted requests, in order for the Services to be able to evaluate the claims in the petition. In determining whether the petition presents substantial information, the Services are not required to consider claims for which supporting materials are not included with the petition. In the past, we have found that that information in petitions can be incomplete, misrepresented, or one-sided. As a result, we have revised these regulations to encourage petitioners to provide a complete, balanced presentation of facts, including any information the petitioner is aware of that contradicts claims in the petition. Comment (42): A commenter noted that petitioners occasionally reference unpublished data. The proposed rules contain no criteria for use of and access to these data. We recommend the Services specify that such material is subject to the same requirements. Our Response: We agree that copies of all information used to support a petitioned action should be provided with the petition for the Services to consider and evaluate. Paragraph (d)—Types of Information To Be Included in Petitions To List, Delist, or Change the Status of a Listed Species Comment (43): Some comments related to our definitions and usage of the terms ‘‘substantial information’’ and ‘‘substantial scientific and commercial information.’’ These comments included a suggestion to define the relevant terms in the first paragraph in which they appear and to be consistent in the use of the terminology throughout the rule. Our Response: We appreciate the comments. We have revised the text of this rule to reflect the specific language of the Act setting out the standard that applies to each type of petition. The standard that applies to petitions to list, delist, or reclassify a species is that the PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 petition must present ‘‘substantial scientific or commercial information’’ indicating that the petitioned action may be warranted (§ 4(b)(3)(A)), whereas a petition to revise a critical habitat designation must present ‘‘substantial scientific information’’ (§ 4(b)(3)(D)(i)). Note that the statute does use the term ‘‘substantial information’’ in § 4(b)(3)(B) and and 4(b)(3)(D)(ii). In the final rule, we continue to define the relevant terms directly in the respective subsections setting out how we make findings on each type of petition. For example, our explanation of what we consider to be substantial scientific or commercial information appears in final § 424.14(h)(1)(i), because paragraph (h) explains the standards we use in making findings on petitions to list species, delist listed species, or reclassify listed species, and is therefore the most logical place for that explanation, even though the term is first used in § 424.14(d) (which alludes to the standard that the Secretary must apply but primarily is setting out recommended content items). Comment (44): A commenter suggested changing proposed § 424.14(c)(3) (§ 424.14(d)(3) in this rule), concerning inclusion of magnitude and imminence of threats in the petition) by omitting the final clause and replacing it with: ‘‘. . . including, where available, a description of the magnitude and imminence of the threats.’’ Our Response: The change the commenter is requesting is the addition of the condition ‘‘where available’’ with respect to including a description of the magnitude and imminence of threats to a species. Please note that the elements of § 424.14(d) in this rule are not absolute requirements to qualify as a petition, but the Services’ findings will depend, in part, on the degree to which the petition includes this type of information. The magnitude and imminence of threats are generally key determinants of whether a species may or may not warrant protection under the Act. Thus, although we would not reject a petition for not including information on magnitude and imminence of threats, our evaluation of whether the petition presents substantial information indicating that the petitioned action may be warranted would need to take into consideration the presence, the imminence, and the severity of threats. Therefore, we think it advisable to include in petitions information regarding the threat severity (magnitude) and the timing of those threats (currently occurring, imminent, in the foreseeable future, etc.). E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations Paragraph (e)—Information to Be Included in Petitions to Revise Critical Habitat Comment (45): Several commenters noted that the requirement of proposed § 424.14(d)(6) for ‘‘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,’’ would be duplicative and indiscernible from the requirements of proposed § 424.14(b) (§ 424.14(c) in this rule), and recommended proposed § 424.14 (d)(6) not be adopted. Another commenter asked how ‘‘a complete presentation of the relevant facts’’ differs from a ‘‘detailed justification for the recommended administrative action that contains an analysis of the information presented.’’ Our Response: Based on comments received on the original proposal, we revised our proposal to address these issues. Recognizing that it could be an undue burden to require petitioners to include all relevant information that is reasonably available, and certify to that effect, in this rule we have removed the certification requirement from the § 424.14(c) list of essential requirements for all petitions. Section 424.14(c) retains the more-general essential requirement that all petitions include a detailed narrative justification for the recommended administrative action that contains an analysis of the information presented. The Services will reject petitions that do not meet this detailednarrative requirement, but petitioners could still resubmit their petition after adding a detailed narrative in accordance with § 424.14(c). In this rule, paragraphs (d) and (e) of § 424.14(d) and (e), on the other hand, do not prescribe essential requirements for all petitions, and instead identify factors that the Services will consider in making 90-day findings. One of these factors, set forth at § 424.14(d)(5) and § 424.14(e)(6), is the degree to which the petition includes ‘‘[a] complete, balanced representation of the relevant facts, including information that may contradict claims in the petition.’’ A request will not be rejected as a petition for failing to meet § 424.14(d)(5) or § 424.14(e)(6). It may be difficult for a non-scientist to locate and present all of the relevant facts completely, and, although the Services encourage petitioners to provide a balanced presentation of facts, there may not always be information contradicting claims made in the petition. As a result, the Services will consider this VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 information, along with readily available information we may consult for context on the species and the requested action, when determining if the petition presents substantial information indicating that the petitioned action may be warranted. Comment (46): Many commenters noted the language of proposed § 424.14(d)(5) (§ 424.14(e)(5) in this rule) was inconsistent with the previous regulations at 50 CFR 424.12 in that the proposed petition regulations do not reference a ‘‘determination’’ that occupied areas are not enough for conservation of a species before moving on to consideration of unoccupied areas (e.g., limiting the designation of critical habitat to the species’ current range would be inadequate to conserve the species). Our Response: This rule is consistent with the revised 50 CFR 424.12 regulations that became effective on March 14, 2016 (81 FR 7414; February 11, 2016). The current 50 CFR 424.12(b) states ‘‘Where designation of critical habitat is prudent and determinable, the Secretary will identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.’’ The Services are no longer required to consider whether a designation limited to the occupied areas would be sufficient before considering unoccupied areas. Therefore, no additional language is needed in the provision of § 424.14(e)(5) of this rule. Comment (47): A commenter stated that the requirement to describe the physical or biological features (PBFs) provides little value because the Services have already described them in the final critical habitat rule for the species. Our Response: In requests to revise critical habitat in occupied areas, it is essential to provide information on whether the PBFs are present or absent in those areas (see § 424.14(e)(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 the physical or biological features. . . .’’). In some cases, petitioners may believe that we have misidentified or not included all PBFs, and that recognizing a different set of PBFs would lead to additional areas of occupied habitat qualifying for inclusion in a designation, or certain areas of the existing designation no longer qualifying. Similarly, PBFs may PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 66471 have moved (no longer present in one area, but more recently developed in others), or there may be newer information on a species’ needs and, consequently, PBFs may change, PBFs previously identified may no longer be essential to the conservation of the species, or new PBFs may be identified. Therefore, the Services will consider petitions seeking to modify the description of PBFs in an original designation where recognizing a different set of PBFs would result in changes to the areas of occupied habitat that would qualify for inclusion. PBFs are analyzed in the course of developing designations, but it is the specific areas as shown on a map that are designated. Quite often scientific understanding of essential features advances after a designation is made, and the Services must consider the best available information when conducting section 7 consultations, not just what was described at the time of designation. Thus, even without a rule revising a critical habitat designation, the Services will always consider the best available, current information about the essential PBFs and what makes them essential in the course of section 7 consultations. Petitions seeking to ‘‘revise’’ a list of features, with no consequential changes to areas of occupied habitat that are included in a designation, are thus both unnecessary and ineffective. Comment (48): A commenter suggested specific wording revisions to proposed § 424.14(d)(5) (§ 424.14(e)(5) in this rule): ‘‘For any areas petitioned to be added to critical habitat that were outside the geographical area occupied by the species at the time it was listed, information explaining: (1) Why the species’ present range is inadequate to ensure its conservation; (2) why the petitioned area presently contains features essential to the conservation of the species; and (3) how the designation will impact, economically and otherwise, the use of the petitioned area for other purposes. For any areas petitioned to be 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 no longer essential to the conservation of the species.’’ Our Response: We appreciate the commenter’s concern that unoccupied habitat not be added to an existing critical habitat designation without good reason, but choose to retain the proposed language at § 424.14(e)(5): ‘‘For 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, E:\FR\FM\27SER4.SGM 27SER4 66472 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES information indicating why the petitioned areas are or are not essential for the conservation of the species.’’ There are several reasons for this: • In light of recent revisions to 50 CFR 424.12, the Services are not required to first consider whether a designation limited to present range is adequate to ensure conservation. • This provision needs to address requests to add as well as remove unoccupied areas from a critical habitat designation. • The language is consistent with the definition of critical habitat in the Act (16 U.S.C. 1532(5)(A)(ii)), which includes unoccupied areas, that is, ‘‘specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.’’ Unlike the geographical areas occupied by the species at the time it is listed, unoccupied areas need not include the essential PBFs (see 16 U.S.C. 1532(5)(A) (i) of the Act). Therefore, it would be inconsistent with the Act to require such information in requests to revise unoccupied critical habitat. • A determination as to whether unoccupied areas are essential for the conservation of the species is made by the Services, not the petitioner. However, it may be helpful if the petitioners include information indicating why the petitioned areas are or are not essential for the conservation of the species. Paragraph (f)—Response to Requests Comment (49): A commenter stated the Services should accept petitions that make a good faith effort to comply with provisions of the regulations and not reject for minor procedural flaws. The Services should include a ‘‘cure’’ provision in which the Services alert the petitioner to flaws in the petition and the steps that must be taken to remedy them and allow a specified amount of time for the petitioner to fix the flaws. Unless petitioners are supplied with constructive feedback, this will greatly hamper the petition process. Our Response: In this rule at § 424.14(f), the Services retain discretion to treat as a petition a request that the Services determine substantially complies with the relevant requirements. Therefore, it is unlikely that a request will be rejected for minor omissions. However, if the Services determine that the request does not meet the requirements set forth at § 424.14(c), they will, as noted at paragraph § 424.14(f)(1), within a VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 reasonable timeframe, notify the sender and provide an explanation of the rejection. The petitioner will then be able to correct the request and resubmit to the Services at their convenience. Comment (50): Some commenters asked whether petitioners would be notified when a request is determined not to constitute a petition and given the reasons for such determination. As drafted, the proposed rule does not indicate the Services will notify petitioners of a compliant petition. Our Response: As noted above, submissions that do not qualify as petitions will be returned to the sender, along with a form letter or checklist describing what components are missing. However, for expediency, we will generally not notify petitioners of acceptance of petitions in a separate communication; in most cases, publication of the Services’ 90-day findings will serve as such notifications. Comment (51): A commenter supported the deletion of the phrase ‘‘in the agency’s possession’’ as it relates to information the Services may consider when analyzing a petition. In the past, the ‘‘in the agency’s possession’’ requirement has been interpreted as the inability of the Services to even do a simple Internet search for helpful information after a petition has been received. The Services should not be limited to the use of information they have in their possession at the time they receive a petition. Such a limitation could lead to a ‘‘substantial’’ 90-day finding, not because a species may be at risk, but simply because the petition presents a skewed or impartial view of the facts. Our Response: We agree. The phrase ‘‘in the agency’s possession’’ was interpreted by some as meaning hard (paper) copies of information materials stored in agency office files at a physical location. Most information and data are now accessed and stored electronically. Therefore, it is appropriate for the Services to place petitions in context by consulting readily available information, such as information that is 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 (http://www.itis.gov), a database of scientifically credible taxonomic nomenclature information maintained in part by the Services. This rule allows the Services to use readily available information to provide context for the claims in the petition, even should it be received after the time the petition is filed, up to the time we make the PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 finding. Please see Findings on a Petition to List, Delist, or Reclassify— Paragraph (h) under Summary of Changes to Previous Regulations at 50 CFR 424.14, below, for further discussion. Paragraph (h)—Findings on Petitions To List, Delist, or Reclassify Comment (52): Several commenters expressed concerns about the information standard we use in evaluating petitioned requests. Some specifically noted the addition of the term ‘‘credible’’ in definition of the substantial scientific or commercial information standard in proposed § 424.14(g) (§ 424.14(h) in this rule). One commenter expressed concern that the Services would define credible as precluding certain categories of information or data, such as traditional ecological knowledge or gray literature that may not be published or available in traditional scientific journals. Conversely, another commenter noted that the Services should only consider peer-reviewed literature provided in a petition to be credible, sound science. Our Response: Section 4(b)(3)(A) of the Act directs the Services to make a finding as to whether a petition presents ‘‘substantial scientific or commercial information indicating that the petitioned action may be warranted.’’ This is the threshold required of the information provided in a petition, and is the standard we use at § 424.14(h) in this rule. The Act notably does not require that the Services make 90-day findings on the basis of the ‘‘best scientific and commercial data available.’’ Nevertheless, we are cognizant that positive ‘‘substantial information’’ findings require that the Services devote additional time and resources towards completing status assessments for those species, as well as 12-month findings. Therefore, we have concluded that it would be more efficient and would better advance the purposes of the Act to clarify for petitioners that—for a petition to indicate that the petitioned action may be warranted, and thereby merit this additional expenditure of the Services’ resources—the information provided in the petition must, at a minimum, be credible. ‘‘Credible scientific or commercial information’’ may include all types of data, such as peer-reviewed literature, gray literature, traditional ecological knowledge, etc. Comment (53): A commenter stated that the Secretaries still appear to have broad discretion in establishing the definition of ‘‘reasonable person.’’ The commenter asserts that the definition leaves open the very type of arbitrary or E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations capricious litigation the Service is attempting to resolve by citing the reasoning in the Congressional Conference Report. The courts typically defer to the agencies’ interpretation of scientific information. Therefore, petitioners are left without remedy when placed in disagreement with the Secretary’s conclusion. Our Response: The Act requires the Services to consider whether a petition presents substantial information to demonstrate that the requested action may be warranted, but does not define ‘‘substantial information.’’ The Services therefore have discretion to adopt a reasonable interpretation of this foundational standard that furthers the statutory purposes and reflects the scientific context in which the Service makes decisions. In the interest of providing greater clarity and transparency to the public, we have promulgated this rule to clarify and more thoroughly explain what is required in a petition and how the Services make their findings. We thus explain that the ‘‘substantial scientific or commercial information’’ standard (which applies to listing, delisting, and reclassification petitions) 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. (We similarly interpret the ‘‘substantial scientific information’’ standard that applies to petitions seeking critical habitat revisions.) This interpretation clarifies that the Services must evaluate petitions in their capacity as biologists with the scientific expertise to investigate whether a species may be imperiled. As such, the Services analyze and decide whether petitions present ‘‘substantial information’’ consistent with the analyses and decisions that a hypothetical reasonable biologist would make. In addition, this hypothetical reasonable scientist would need to be impartial and approach the question as he or she would any scientific inquiry. Finally, the hypothetical person evaluating the information in the petition would need to perceive that the information is credible; conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered ‘‘substantial information.’’ These concepts are in no way new to the Services’ practice; this is how we have and must evaluate petitions. Further, we believe this clarification aligns with the House Conference report, which states that, when courts review such a decision, the ‘‘object of [the judicial] VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 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 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862) [emphasis added]. Finally, a ‘‘reasonable person’’ standard is commonly used in legal contexts. If a person disagrees with a Service’s finding, in the case of 90-day petition findings in which the Service finds there is substantial information indicating that the petitioned action may be warranted (in other words, not a final agency action), that person could provide additional information regarding the species to help inform future agency actions such as the subsequent 12-month finding. In the case of not-substantial 90-day findings (which are final agency actions), one remedy would be to submit a new petition with further justification and rationale for the requested action. Also, final agency actions are judicially reviewable. Comment (54): Proposed § 424.14(g)(1)(i) (§ 424.14(h)(1)(i) in this rule) expands on the ‘‘substantial scientific or commercial information’’ standard of the Act. Under the existing petitions regulation, ‘‘substantial scientific or commercial information’’ means ‘‘that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.’’ Now, the Services add to this ‘‘a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.’’ Normally, reasonable people do not, in the course of their daily lives, conduct impartial scientific reviews. Our Response: Section 424.14(h)(1)(i) clarifies and expands on the substantialinformation 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 may be warranted. (We similarly define the ‘‘substantial scientific information’’ standard that applies to petitions seeking revisions to critical habitat at 424.12(i)(1)(i).) As discussed in response to Comment 53, the Services have the discretion and a need to adopt a reasonable interpretation of this key standard, which is not defined in the statute. We have included the term ‘‘credible,’’ because—for a petition to indicate that the standard for the petitioned action may have been met, and thereby merit the additional PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 66473 expenditure of the Services’ resources— the information provided in the petition must, at a minimum, be credible. In other words, the Services must evaluate whether the information in the petition is substantiated and not mere speculation or opinion. Only those claims or conclusions drawn in the petition with the support of credible scientific or commercial information should be considered ‘‘substantial information.’’ The addition of ‘‘conducting an impartial scientific review’’ to the reasonable person standard for what constitutes ‘‘substantial scientific and commercial information’’ similarly clarifies to petitioners the context against which the Services will necessarily evaluate petitions. The Services must evaluate petitions on the basis of the scientific validity of the request; that is, impartially evaluate whether there is a scientific basis for the requested action, and not just unsubstantiated claims. Because the context for this action involves evaluating scientific information, it is appropriate and necessary to take as our reference a person conducting an impartial scientific review. There is nothing in the Act to suggest that 90-day findings should be evaluated based on what persons lacking scientific background would conclude, and to adopt a generic standard would not further the purposes of the Act or reflect how the Services must and do actually go about evaluating petitions. Comment (55): Several commenters raised questions regarding the Services’ treatment of a subsequent petition, including the definitions and interpretations of the terms ‘‘considered’’ and ‘‘sufficient’’; how our determination would relate to other reviews, such as 5-year reviews; and how new information or new analyses, such as models, would be evaluated. Our Response: In this rule, § 424.14(h)(1)(iii) addresses situations in which the Services have already made a finding on or conducted a review of the listing status of a species, and, after such finding or review, receive a petition seeking to list, delist, or reclassify that species. The provisions at § 424.14(h)(1)(iii) do not state or imply that such petitions will be rejected outright; indeed, as noted below, we will consider all requests that meet the requirements of § 424.14(c) to be petitions, and we will evaluate all petitions and make findings on them. Instead, we include this provision to provide prospective petitioners greater predictability and clarity, by making clear that we must evaluate such petitions in light of the previous E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66474 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations findings or determinations. Thus, if no new information or analysis is provided in such a petition, the outcome will likely (but not always) be a notsubstantial 90-day finding. To clarify some of the terms we used, by using the term ‘‘considered’’ in the phrase ‘‘new information not previously considered,’’ we mean that information or analysis was evaluated in a previous finding, status review, or listing determination. ‘‘Sufficient’’ new information is that information or analysis which would lead a reasonable person conducting an impartial scientific review to conclude that the action proposed in the petition may be warranted, despite the previous review or finding. With respect to prior listing determinations, the prospective petitioner may review the final listing rule and any supporting documentation to see what information was considered and evaluated. Five-year status reviews are not published in the Federal Register but are posted on the Services’ Web sites. FWS status reviews and Federal Register documents are posted on the species profile pages maintained in FWS’ Environmental Conservation Online System (ECOS). Species profiles may be accessed by searching on the species name at http:// www.ecos.fws.gov/ecp. NMFS’ documents can be found at http:// www.nmfs.noaa.gov. In conducting status reviews, the Services may reevaluate data they already considered in previous status reviews. Petitioners may similarly present a new analysis of existing data in support of their requests, and the Services will evaluate such requests on that basis. A petitioned request could be based on discovery of an error in research regarding information previously considered by the Services. Unless such a petition provides different data, or a different analysis or interpretation of, or errors discovered in, the data, model or analytic methodology used in a previous finding, review, or determination, the conclusions may be the same, and the Services may find that such a petition does not provide substantial information indicating that the petitioned action may be warranted. We make the distinction that, in the case of prior reviews that led to final agency actions (such as final listings, 12-month not-warranted findings, and 90-day not-substantial findings), a petition would generally be presumed not to provide substantial information unless the petition provides new information or a new analysis not previously considered in the final VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 agency action. On the other hand, if the previous status review did not result in a final agency action, the petition would not be required to overcome the presumption that, unless it includes information or analysis that was not considered in the previous status review, it generally will not present substantial information indicating that the petitioned action may be warranted. Comment (56): One commenter stated that the ‘‘new information’’ requirement in the revised proposed rule (81 FR 23448; April 21, 2016) could severely limit the ability to file delisting petitions that assert flaws in the Services’ prior consideration of information. Petitioners should be able to assert that information the Services previously considered was misused, misrepresented, or misinterpreted, or that the original data for the species’ classification were in error as the basis for delisting. Our Response: This rule will not limit the ability to file delisting or other petitions. In cases where petitioners request an outcome that differs from the outcome reached in a previous Service finding or determination, the rule simply recognizes that the courts apply a presumption that agency actions are valid and reasonable, and therefore the petitioner should provide new or additional information or a new analysis not previously considered. We add this requirement to prevent the petition process from being used inefficiently— in effect, to voice disagreement with a previous determination by one of the Services without providing any new information or analysis relevant to the question at issue, and instead of using the appropriate judicial forum to challenge the previous determination directly. An appropriate showing may include an explanation of how information used in the previous analysis was misused, misrepresented, or misinterpreted. Also, this rule does not prevent a petitioner from requesting a delisting of a listed entity based on error in classification of that listed entity. Paragraph (h)—Use of Information in Agency Files Comment (57): Several commenters support the agencies’ use of additional information as described in the proposed rule, as long as it is clear that such information is readily available and does not serve as a justification for the Service to actively supplement the petition or initiate new data collection processes, contracts or research as part of the 90-day finding process. Our Response: The Services recognize that the statute places the obligation PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 squarely on the petitioner to present the requisite level of information to meet the ‘‘substantial information’’ test; therefore, the Services should not seek to supplement petitions. However, in determining whether the petition presents substantial scientific or commercial information, it may be appropriate to consider readily available information to provide context to the information the petition presents. It is not the intent of the Services to initiate any data collection or research methods, nor is there time for the Services to conduct such methods in the 90-day petition finding process. Comment (58): A commenter stated that, to the extent that the Service intends to review and rely upon readily available information, there first must be a public notice and availability of such information for review and comment by the public. Otherwise, the public would not be made aware of such information and afforded the ability to comment on the accuracy, sufficiency and relevance of such information. Our Response: The statute does not provide for a public comment process at the 90-day stage of review of petitions. The Services provide public notice and request information when publishing a positive 90-day finding and initiating a 12-month status review in response to a petition, but it is neither appropriate nor feasible to do this prior to making a 90day finding due to statutory time constraints. Although the Services may consider readily available information to provide context in which to evaluate the information presented in a petition, the 90-day petition finding is based on the information provided in the petition. A 90-day finding is an initial assessment of information provided in the petition and, when appropriate, information readily available to the Services. When our 90-day findings are published in the Federal Register, the petition and supporting information, and any other information we may have relied upon for our finding, is posted online and made available to the public. If we find the petition presents substantial information that the action may be warranted, we announce the initiation of a status review and request information from the public, which may include feedback on the accuracy, sufficiency, and relevance of any information considered in making the finding. For petitions that are found to be not substantial, we publish the finding and make available the petition and any supporting information considered for the finding. The public is invited to submit information on any species at any time, which may include E:\FR\FM\27SER4.SGM 27SER4 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES evaluation of information considered for any finding. Comment (59): A commenter raised a question regarding proposed § 424.14(g)(1)(ii) (§ 424.14(h)(1)(ii) in this rule), asking how can the Services state that ‘‘the intent is not to solicit new information,’’ when the proposed regulations at § 424.14(b)(10) would require the petitioner to gather ‘‘all relevant information’’ about a species, as well as information from every State where a species could possibly be found. Our Response: In this final rule, we have removed the proposed requirements to which the commenter refers (i.e., that petitioners precoordinate with States and certify that they have provided all relevant data). In this rule, § 424.14(h)(1)(ii) describes the type of readily available additional information the Services may consider to place a petition in context when making their findings. Section 424.14(h)(1)(ii) states that, in reaching the initial finding on the petition, the Services will consider information submitted by the petitioner and may also consider information readily available at the time the determination is made. This provides a balanced approach that will ensure that the Services may take into account the information available to us to provide context for assessing the petition, without opening the door to the type of wide-ranging information request more appropriate for a status review. The intent of this approach is for the Services to be able to use readily available information to provide context in which to evaluate the information presented in the petition, not for the Services to solicit new information on which to make a finding. Comment on National Environmental Policy Act Comment (60): A commenter stated that the Services must prepare an environmental impact statement (EIS) for the proposed rule because the net effect of the changes to the existing regulations will be fewer species being protected under the Act, more extinctions, and consequently more ecosystems upon which endangered species depend being degraded and lost. Our Response: We do not anticipate that the changes to the regulation set forth in this rule will result in fewer species being listed. By providing clearer requirements and expectations to prospective petitioners, the quality and completeness of petitions will likely improve, leading to more accurate 90day findings and consequently more efficient use of limited resources. VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 As discussed in greater detail in the National Environmental Policy Act Determination section below and in the Environmental Action Statement (available at http://www.regulations.gov, under Docket Nos. FWS–HQ–ES–2015– 0016 and DOC 150506429–5429–01), we have concluded that this final rule revising the regulations at 50 CFR 424.14 falls within categorical exclusions from NEPA under both applicable DOI regulations and NOAA guidance. Specifically, the regulation falls within the DOI categorical exclusion for ‘‘[p]olicies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature.’’ 43 CFR 46.210(i). It also falls within the substantially identical NOAA categorical exclusion for ‘‘policy directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature.’’ See NOAA Administrative Orders (NAOs) 216–6A (section 6.01) and 216–6 (section 6.03c.3(i)). We do not anticipate that this final rule will change the outcomes of the Services’ 90-day findings as to whether petitions present substantial information indicating that the petitioned actions may be warranted, because it is administrative and procedural in nature, and is designed merely to clarify and streamline the petition process consistent with statutory language, legislative history, and case law. Moreover, the revised regulations do not limit Secretarial discretion, because they do not mandate particular outcomes in future decisions regarding whether a request should be accepted as a petition or whether a petition presents substantial information that a petitioned action may be warranted. Although the revised regulations expand on what information must be included in a request for it to qualify as a petition under section 4(b)(3) of the Act, they also provide for a process to inform petitioners when the request fails to meet the required criteria and allow discretion for the Services to consider a request that substantially complies with the required elements even if there is not full technical compliance. The Services will, within a reasonable timeframe, notify the petitioners of the required information that is missing. This will allow the submitters to cure any deficiencies before resubmitting the petition to the Services, should they choose to do so. Therefore, we do not expect that this additional procedural requirement will affect the substantive outcomes of 90day findings on well supported PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 66475 petitions; rather, it will make the Services’ consideration of petitions more efficient. Summary of Changes to Previous Regulations at 50 CFR 424.14 General Throughout the regulation text we replace the title ‘‘the Secretary’’ or ‘‘the Secretaries’’ with ‘‘the Services,’’ as the Services are the formal designees of the Secretaries of Commerce and the Interior who have the delegated authority to implement the Act. We also change the overall organization of the regulations. Instead of organizing all aspects of the regulations into the two categories of petitions under the Act (petitions to list, delist, or reclassify a species are discussed in current paragraph (b), and petitions to revise critical habitat are discussed in current paragraph (c)), the new regulations are organized by function. Requirements that apply to all petitions under the Act appear first (in new paragraphs (a), (b), (c)), followed by the list of factors the Services will consider in making findings on the two categories of petitions, respectively, (in new paragraphs (d) and (e)). Similarly, procedures that apply to all petitions under the Act are set out first (in new paragraphs (f) and (g) (and also (k)), followed by procedures that apply to the different categories of petitions (in new paragraphs (h) and (i) (and also at (j), which provides procedures for APA petitions)). We move some of the specific provisions from the previous regulations accordingly to fit better into this overall structure. Ability To Petition—Paragraph (a) Section 424.14(a) retains the substance of the first sentence of the current section, stating that any interested person may submit a written petition to the Services requesting that one of the actions described in § 424.10 be taken for a species. Notification of Intent To File Petition— Paragraph (b) In our April 21, 2016, revised proposed rule (81 FR 23448), we included in § 424.14(b)(9) the requirement that, at least 30 days prior to filing a petition, the petitioners provide State agencies responsible for the management and conservation of wildlife with notice, by letter or electronic mail, of their intent to file a petition with the Services, and that copies of these letters or communications be included with the petition when it is submitted to the Services. In finalizing this rule, we E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66476 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations realized that the requirement to provide notice to State agencies did not belong with the rest of paragraph (b), because that paragraph outlined a list of information to be included with a petition submission, not actions required of a petitioner before filing. Therefore, for clarity and consistency, we have reformatted the regulation by adding a new paragraph (b) requiring that petitioners notify States before filing petitions. The list of required information that was formerly contained in paragraph (b) has now been redesignated as paragraph (c). All subsequent paragraphs have been appropriately redesignated. Therefore, new § 424.14(b) requires that for a petition to list, delist, or reclassify a species, or for petitions to revise critical habitat, petitioners must provide notice to the State agency or agencies primarily 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. Petitioners must notify the State agency of their intent to file a petition, with either Service, at least 30 days prior to petition submission. If the State agency has data or information on the subject species that it would like to share with the Services, the agency may submit the data and information directly to FWS or NMFS. This provision will allow the Services to benefit from the States’ considerable experience and information on the species within their boundaries, because the States would have an opportunity to submit to the Service any information they have on the species early in the petition process. The Services, in formulating an initial finding, may use their discretion to consider any information provided by the States (as well as other readily available information, including any information they have received from other interested parties before the initial finding) as part of the context in which they evaluate the information contained in the petition. Also in § 424.14(b), we added the following sentence for clarification to the language of the revised proposed rule (81 FR 23448; April 21, 2016): ‘‘This notification requirement shall not apply to any petition submitted pertaining to a species that does not occur within the United States.’’ This addition is to clarify that this provision does not apply to foreign species that do not occur in the United States, and further that, consistent with the definition in the Act at 16 U.S.C. 1532(17), ‘‘States’’ refers only to the States, the District of Columbia, and the VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 territories and commonwealths of the United States. Requirements for Petitions—Paragraph (c) As stated earlier, new § 424.14(c) incorporates the substance of the revised proposal’s (81 FR 23448; April 21, 2016) § 424.14(b), setting forth a number of 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). These include some of the minimum requirements from the second and third sentences of current paragraph (a). As with § 424.14(b) in the revised proposal, new § 424.14(c) also expands upon the list of requirements for a petition, drawing in part from the provisions in current paragraph (b)(2). New § 424.14(c)(2) requires that a petition address only one species. However, we revised the language from this statement in the revised proposal (81 FR 23448; April 21, 2016) to clarify that a petition addressing only one species could include any configuration of members of that single species as defined by the Act (the full species, one or more subspecies or varieties, and, for vertebrate species, one or more distinct population segments (DPSs)). The taxonomic (biological) classification system is hierarchical, which means a taxon of the rank of species also includes all subspecies or varieties, if any, under that species. Similarly, applying the concept of hierarchical entities to the Act’s use of the term ‘‘species,’’ a vertebrate species would also include any potential DPSs. Therefore, a single-species petition may address (a) one species of fish, wildlife, or plant; (b) one or more subspecies (variety) of fish, wildlife, or plant; or (c) one or more population segments of any vertebrate species (which FWS or NMFS will evaluate per the Services’ Policy Regarding the Recognition of District Vertebrate Population Segments (61 FR 4722; February 7, 1996) (DPS Policy) as to whether it qualifies as a DPS). As such, the petitioner need not file separate petitions to address different hierarchical configurations of the same 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. That has at times made it difficult to follow the logic of the petition. Because petitioners can submit multiple petitions, this requirement does not place any limitation on the ability of an interested party to petition for section 4 actions, but does ensure that petitioners PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 organize the information in a way (on a species-by-species basis) that is necessary to inform the species-specific determinations required by the Act and will allow more efficient action by the Services. The first six requirements (§ 424.14(c)(1) through (c)(6)) apply to each type of petition recognized under section 4(b)(3) of the Act. The first four requirements (§ 424.14(c)(1) through (c)(4)) were all contained in the previous regulations at § 424.14(a) and (b). The fifth and sixth requirements (§ 424.14(c)(5) and (c)(6)) clarify and expand on the previous provisions at § 424.14(b)(2)(iv) regarding a petition’s supporting documentation. At § 424.14(c)(5), we use the word ‘‘readily’’ before ‘‘locate the information cited in the petition, including page numbers or chapters as applicable.’’ The Services should not have to search through reference material to locate specific information; the petition should provide clear, specific citations that allow the supporting information to be located readily. The seventh requirement (§ 424.14(c)(7)) applies only to petitions to list, delist, or reclassify a species from an endangered species to a threatened species (i.e, downlisting) or from a threatened species to an endangered species (i.e., uplisting), and requires that information be presented to demonstrate that the subject entity is or may be a ‘‘species’’ as defined in the Act (which includes a species, a subspecies or variety, or a distinct population segment of a vertebrate species that FWS or NMFS may determine to be a DPS). We note that currently-listed species are generally recognized by the Services as species under the Act; therefore, petitions regarding already-listed species need only refer to that species, except when the petition seeks a change in the delineation of a ‘‘species’’ under the Act (for example, to divide a species into more than one species, delist or reclassify a portion of a listed species, a change in how FWS or NMFS delineates a DPS, or otherwise reconfigure the current listing). 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 of a vertebrate species. The eighth requirement (§ 424.14(c)(8)), applies only to petitions to list a species, and to petitions to delist or reclassify a species in cases E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations where the species’ range has changed since listing, and requires that information be included in the petition describing the current and historical range of the species, including range States or countries, as appropriate. It is important that the Services have information on both the current and historical range of the species; for example, a historical range that is significantly larger than the current range would show range contraction, which may be an important consideration. The previous regulations at § 424.14(b)(2)(ii) identified as one of the factors the Services will consider in evaluating listing, delisting, and reclassification petitions the degree to which the petition contains a detailed narrative describing ‘‘past and present . . . distribution of the species. . . .’’ New § 424.14(c)(8) now expands on this requirement and includes it as one of the essential requirements for a petition. The ninth requirement, § 424.14(c)(9) relates to the requirement of § 424.14(b) that petitioners must provide notice to the State agency 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, at least 30 days prior to petition submission. Copies of the letter or electronic communication from the petitioner notifying the State agency of the petitioner’s intent to file a petition with either Service must be included with the petition when it is submitted; such copies are considered a required part of the petition. Please note that any decision to provide the protections of the Act to a species in an expedited manner under the Act’s section 4(b)(7) (i.e., emergency listing) is at the discretion and determination of the Services upon a review of the best available scientific information. In any case, because the Services retain discretion to consider a petition that has only substantially complied with the requirements for filing petitions, they retain discretion to consider such petitions in appropriate circumstances, such as where it appears to the Services that expedited listing may be warranted. The Services also have discretion to simply treat them as petitions seeking the species listing on a non-emergency basis. The Services apply § 424.14(c) to identify those requests that contain all the elements of a petition, so that consideration of the request will be an efficient and wise use of agency resources. A request that fails to meet these elements may be screened out from further consideration, as discussed below, because a request cannot meet the statutory standard for demonstrating VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 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. However, as discussed further below, the screening out of petitions due to missing required information does not constitute a petition finding under Section 4(b)(3)(A) of the Act. In such a situation, the Services will explain to petitioners what information was missing so that the petitioners can have an opportunity to cure the deficiencies in a new petition and obtain a finding on the petition under section 4(b)(3)(A) of the Act. Information To Be Included in Petitions To List, Delist, or Change the Status of a Listed Species—Paragraph (d) Section 424.14(d) describes the types of information that are relevant to the Services’ determinations as to whether the petition provides substantial scientific or commercial information that the petitioned action may be warranted. Petitioners are advised that compliance with paragraph (c) is the minimum necessary to require the Services to consider their petition, but to provide a more complete and robust petition, petitioners should include as much of the types of information listed in paragraph (d) as possible, to the extent that it is relevant to the type of petition being filed. The informational elements for listing, delisting, and reclassification petitions in § 424.14(d)(1) through (d)(3) are rooted in the substance of current paragraphs (b)(2)(ii) and (iii). These elements 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). Section 424.14(d)(3) refers to inclusion in a petition of a description of the magnitude and immediacy of threats. This type of information regarding the severity of threats on the species or its habitat is generally needed in conducting status reviews, and is therefore relevant to determining whether the petition presents substantial information indicating that the petitioned action may be warranted. In addition, this information may assist FWS in assessing the listing priority number of species if FWS subsequently makes a warranted-but-precluded finding under FWS’ September 21, 1983, guidance, which requires assessing, in part, the magnitude and PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 66477 immediacy of threats (48 FR 43098). In addition to being useful for status reviews, this information should be included to assist in determinations on uplisting requests. While such information may also be useful to NMFS, NMFS has not adopted the 1983 FWS guidance, and so would not apply that guidance to petitions within its jurisdiction. Section 424.14(d)(4) refers to inclusion in a petition of information on any conservation actions that States, or other parties, have initiated or that are ongoing, that benefit the subject species. Because this information is relevant to an ultimate determination of whether or not listing a species is warranted (the 12-month finding standard), it is indirectly relevant and may be useful in evaluating whether the action may be warranted (the 90-day finding standard). We add a new § 424.14(d)(5), stating that a petitioner should provide a complete, balanced presentation of facts pertaining to the petitioned species, which would include any information the petitioner is aware of that contradicts claims in the petition. The intent of this provision is not to place an unnecessary burden on petitioners, but rather to encourage petitioners to avoid presenting in a petition only information that supports the claims in the petition. This is particularly true for information publicly available from affected States or Tribes, who often have important and relevant species data and information, as well as special status and concerns with respect to implementation of the Act. Fostering greater inclusion of such data will help ensure that any petition submitted to the Services is based on reliable and unbiased information and does not consist simply of selected data. We find that, to further the purposes of the Act, petitioners should be forthcoming as to the known, relevant facts so that the Services have an accurate basis from which to evaluate the merits of the petition. Fostering a more transparent and informed petition process will ensure that the Services’ resources are directed productively and not diverted to matters that only superficially appear meritorious. Section 424.14(d) does not include 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 have deleted these two sentences because, at the initial stage, the Services focus their evaluation of the information to make a finding on whether the petition presents substantial information indicating that E:\FR\FM\27SER4.SGM 27SER4 66478 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES the species may warrant listing, delisting, or reclassification. If the Services find that the petition presents substantial information that listing may be warranted and proceeds to initiating a status review, the Services will seek information concerning critical habitat at that time. Information To Be Included in Petitions To Revise Critical Habitat—Paragraph (e) Section 424.14(e) sets forth the kinds of information a petitioner should include in a petition to revise a critical habitat designation. The Service’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 new § 424.14(e) are an expanded and reworded version of the substance of current paragraph (c)(2). Section 424.14(e)(1) advises that, to help 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. The petition should discuss the benefits of designating additional areas, or the reasons to remove areas from an existing designation. Additionally, including maps with sufficient 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. New § 424.14(e)(2), (e)(3), and (e)(4) are drawn from the substance of current paragraphs (c)(2)(i) and (ii), which have been reorganized and clarified. Sections 424.14(e)(2), (e)(3), and (e)(4) clarify that several distinct pieces of information are helpful in analyzing 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. If a petitioner believes that the already-identified physical or biological features in an existing critical habitat designation have been incorrectly identified, the petition should provide information supporting the recognition of a different set of features and explain how the different set of features would lead to identification of different areas as qualifying for inclusion in a designation of occupied critical habitat. (See also our response to comment 47). In other words, petitioners requesting revisions to critical habitat designations need not VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 provide information on which physical or biological features are essential unless the relevant areas were occupied at the time of listing and the petitioners contend that some features recognized at the time of designation as essential are not, or that features not recognized in the designation as essential should be. Also, paragraphs (e)(3) and (e)(4) of § 424.14 detail the informational needs the Services will have in considering whether the petition presents substantial information indicating that it may be warranted to add to, or remove from, the critical habitat designation specific areas occupied by the species at the timing of listing. Further, we clarify that ‘‘features’’ specifically refers to the ‘‘physical or biological features,’’ as described in our recent revision to 50 CFR 424.12 (81 FR 7414; February 11, 2016). Further, to use the same language as the revised 50 CFR 424.12, we replace the clause ‘‘(including features that allow the area to support the species periodically, over time)’’ with ‘‘(including characteristics that support ephemeral or dynamic habitat conditions).’’ Section 424.14(e)(5) describes 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 for the conservation of the species.’’ See section 3(5)(A)(ii) of the Act, 16 U.S.C. 1532(5)(A)(ii). Section 424.14(e)(6) mirrors the revised § 424.14(d)(5), stating that a petitioner should provide a complete, balanced presentation of facts pertaining to the species’ potential critical habitat, which would include any information the petitioner is aware of that contradicts claims in the petition. This provision recognizes that, in availing themselves of the petition process, petitioners seek to direct the Services’ focus and resources to particular species. Responses to Petitions—Paragraph (f) Section 424.14(f) sets out the possible responses the Services may make to requests. Section 424.14(f)(1) clarifies that a request that fails to satisfy the mandatory elements set forth in paragraph (c) will generally be returned by the Services with an explanation of the reason for the rejection, but without a determination on the merits of the request. In light of the volume of petitions received by the Services, it is critical that we have the option to identify in a reasonable timeframe those requests that on their faces are PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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 these revised regulations provides additional notice to petitioners and will result in better-quality petitions and more efficient and effective (in terms of species conservation) use of agency resources. The Services retain discretion to determine whether a request constitutes a petition and to process that petition where the Services determine there has been substantial compliance with the relevant requirements. The Services need to maintain some discretion in order to apply common-sense principles in accepting or rejecting petitions. Petitions will not likely be rejected for minor omissions of the requirements set forth at § 424.14(c). The Services also recognize that not all elements will be as crucial for particular kinds of petitions (e.g., petitions to delist a species due to recovery need not provide information on the validity of the entity; currently-listed species can be assumed to be valid entities as the Services routinely review such matters for listed species under our jurisdiction), and maintain discretion regarding acceptance of petitions accordingly. We would apply such discretion judiciously. If most of the cited source materials have been provided, the Services may accept the petition and may evaluate the petition without considering those claims for which the source materials have not been provided. Thus, even if the petition is accepted, the absence of cited source materials may make it more likely to result in a finding that the petition does not present substantial information. To avoid rejection of the petition or an increased likelihood of a ‘‘not substantial’’ finding, we encourage the petitioner to include all cited materials with the petition, as this is an important step in substantiating the petitioner’s claims. It should not present a hardship to provide the source material that the petitioner used in preparing the petitioned request. Section 424.14(f)(1) states that the Services will determine whether or not a request contains all of the requisite information for qualifying as a petition ‘‘within a reasonable timeframe.’’ Although this does not establish a specific timeframe, the Act already prescribes a number of binding, enforceable deadlines for making petition findings, and we do not intend to create a new one with this provision. Our goal is to minimize the amount of E:\FR\FM\27SER4.SGM 27SER4 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES time it will take the Services to review a request and determine whether it qualifies as a petition. We anticipate that the determination can be made within weeks of receiving the request. The revision to § 424.14(f)(2) confirms that a request that complies with the mandatory requirements will be acknowledged (as required under current 424.14(a)); however, we have removed the requirement to provide the acknowledgement in writing within 30 days of the receipt of the petition. We make this revision to allow the Services greater flexibility in the means and timing of communicating with the petitioner its determination of whether the petition complies with the mandatory requirements. This revision also reflects the fact that, in light of current electronic means of communication, it is more efficient for petitioners to refer to the Services’ online lists of active petitions, which are accessible to the public at http:// ecos.fws.gov/ecp/report/table/petitionsreceived.html and http:// www.nmfs.noaa.gov, or on individual species profile pages accessed by searching for the species at https:// www.ecos.fws.gov and http:// www.nmfs.noaa.gov. We find that continuing the practice of sending confirmations via formal letter no longer provides the most effective or efficient means of communicating to all interested parties regarding the status of petitions. Supplemental Information—Paragraph (g) We clarify in § 424.14(g) that a petitioner submitting supplemental information later in time from their original petition has the option to specify whether or not the information being submitted is intended to be part of the petition. Specifying that the supplemental information is intended to be part of the petition will have the consequence that the Services will be obligated to consider it in the course of reaching a finding on the petition. It will also, however, have the related consequence that the timeframes under section 4 of the Act for when findings are due will be reset and begin to run anew from the time the supplemental information is received. In contrast, if the petitioner does not specify that the information is intended to be part of the petition, the Services will treat the supplemental information as they would any readily available information from any source. As we have explained, the Services have discretion to consider such information as appropriate to place the petition in context, but are not required to consider such information. VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 Because the Act requires that the 90-day finding evaluate whether the petition presents substantial information to indicate that the petitioned action may be warranted, the submission of new information intended to supplement a petition is in effect a new petition. It is thus reasonable and necessary to reset the timeframes when new information intended to supplement the petition is received. The final regulation thus strikes a balance that is fair to petitioners by giving them the choice to determine the consequences of submitting new information. This provision will ensure the Services have adequate time to consider the supplemental information relevant to a petition and that the process is not interrupted by receipt of new information that may fundamentally change the evaluation. Also, by providing clear notice of this process, the Services are encouraging petitioners to assemble all the information 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 (h) Section 424.14(h) explains 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. Section 424.14(h)(1) is drawn largely from current paragraph (b)(1), with some revisions. Most significantly, § 424.14(h)(1)(i) clarifies the substantial-information standard for 90-day findings 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 may be warranted. Thus it makes clear that 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 and threats, likely does not provide substantial information. As demonstrated by the Scott’s riffle beetle case (WildEarth Guardians v. Salazar, No. 10–cv–00091–WYD (D. Colo. Sept. 14, 2011)), the inclusion of this statement clarifies, but does not alter, the Services’ standard for evaluating 90day findings. In that case, FWS made a negative 90-day finding, because the petition did not present any information of any potential threat currently affecting the species or reasonably likely PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 66479 to do so in the foreseeable future, nor did it indicate a population decline. The court rejected a merits challenge to that petition finding, and 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(h)(1)(ii), we have added a new sentence to clarify that the Services are not required to consider any supporting materials cited by the petitioner if the cited documents, or relevant excerpts or quotations from the cited documents, are not provided in accordance with paragraph (c)(6) of this section. Additionally, we clarify that the Services may consider information provided in a petition in the context of other information that is readily available at the time it makes a 90-day finding. For purposes of § 424.14(h)(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 should not seek to supplement petitions. (See the Columbian sharptailed grouse case (WildEarth Guardians v. U.S. Secretary of the Interior, No. 4:08–CV–00508–EJL–LMB (D. Idaho Mar. 28, 2011)), which provided, among other things, that the petitioner has the burden of providing substantial information.) In order for the Services to find that a petition presents substantial information indicating that the petitioned action may be warranted, the petition should itself present that information. The Services need not resort to supplemental information to bolster, plug gaps in, or otherwise supplement a petition that is inadequate on its face. However, in determining whether a petition is substantial or not, the Services must determine whether the claims are credible. Therefore, it is appropriate for the Services to consider readily available information that provides context in which to evaluate whether or not the information that a petition presents is timely and up-todate, and whether it is reliable or representative of the available information on that species, in making its determination as to whether the petition presents substantial information. The precise range of information considered will vary with circumstances. 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 E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66480 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations action was arbitrary or capricious in light of the scientific and commercial information available concerning the petitioned action’’ [emphasis added] (H.R. Conf. Rep. No. 97¥835, at 20, reprinted in 1982 U.S.C.C.A.N. 2860, 2862). 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 the subset of available information that is 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 readily available to us as context for the information provided in a petition, without opening the door to the type of wide-ranging survey more appropriate for a status review. 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 our 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 would 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 have readily available and would routinely consult in the course of their work. It is reasonable for the Services to be able to examine the information and claims included in a petition in light of readily available scientific information prior to committing limited Federal resources to the significant expense of a status review. Some examples of readily available information that the Services may use include information sent to the Services by State wildlife agencies or other parties, State fish and wildlife VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 databases, the Integrated Taxonomic Identification System (ITIS), the International Union for the Conservation of Nature (IUCN), the Intergovernmental Panel on Climate Change (IPCC), stock assessments, and fishery management plans (this list is not all-inclusive). The information the Services may use may not only be stored in the traditional hard copy format in files, but may also be electronic data files as well, or stored on Web sites created by the Services or other Web sites routinely accessed by the Services. As noted, the range of information considered readily available will vary with circumstances, but could include the information physically held by any office within the Services (including, for example, 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 ITIS (http://www.itis.gov), a database of scientifically credible taxonomic nomenclature information maintained in part by the Services. Section 424.14(h)(1)(iii) addresses situations in which the Services have already made a finding on or conducted a review of the listing status of a species, and, after such finding or review, receive a petition seeking to list, delist, or reclassify that species. Such prior reviews constitute information readily available to the Services and provide important context for evaluation of petitions. Although the substantial-information standard applies to all petitions under section 4(b)(3)(A) of the Act, the standard’s application is influenced by the context in which the finding is being made. The context of a finding after a status review and determination is quite different from that before any status review has been completed. Further, prior reviews represent a significant expenditure of the Services’ resources, and it would be inefficient and unnecessary to require the Services to revisit issues for which a determination has already been made, unless there is a basis for reconsideration. In the case of prior reviews that led to final agency actions (such as final listings, 12-month not warranted findings, and 90-day notsubstantial findings), a petition generally would not be found to provide substantial information unless the petition provides new information or a new analysis or interpretation not previously considered in the final agency action. By ‘‘new’’ we mean that the information was not considered by PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 the Services in the prior determination or that the petitioner is presenting a different interpretation or analysis of that data. These revisions are not meant to imply that the Service’s finding on a petition addressing the same species as a prior determination would necessarily be negative. For example, the more time that has elapsed from the completion of the prior review, the greater the potential that substantial new information has become available. As another example, the Services may have concluded a 5-year status review in which we find that a listed species no longer warrants listing, but we have not as yet initiated a rulemaking to delist the species (in other words, have not yet undertaken a final agency action). If we receive a petition to delist that species, in which the petitioner provides no new or additional information than was considered in the 5-year status review, we would likely still find that the petition presents substantial information that the petitioned action may be warranted. Paragraph (h)(2) is substantially the same as current paragraph (b)(3). Among other changes, we added new language clarifying the standard for making expeditious-progress determinations in warranted-but-precluded findings, including (in paragraph (h)(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. In this rule, we are redesignating current paragraph (b)(4) as paragraph (h)(3), although we have removed the reference in the current language that ‘‘no further finding of substantial information will be required,’’ as it merely repeats statutory language. In § 424.14(h)(2), we replace the conditional clause ‘‘If a positive finding is made’’ (as we used in our proposed rule published on May 21, 2015 (80 FR 29286)) with ‘‘If the Services find that the petition presents substantial information indicating that the petitioned action may be warranted,’’ for clarity, and to avoid introducing an additional, undefined term. We also add clarity in § 424.14(h)(2), by adding the phrase, ‘‘At the conclusion of the status review,’’ before the reference to the obligation of the Services to make a 12month finding. Findings on a Petition To Revise Critical Habitat—Paragraph (i) Paragraph (i) explains the kinds of findings that the Services may make on E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations a petition to revise critical habitat. Paragraph (i)(1) is essentially the same as current paragraph (c)(1), and describes the standard applicable to the Service’s finding at the 90-day stage. Please refer to the discussion of the ‘‘substantial information’’ standard discussed in the description of § 424.14(h)(1), above. Paragraph (i)(2) specifically acknowledges, consistent with the statute, that a 12-month determination on a petition that presents substantial information indicating that a revision to critical habitat may be warranted 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, but provides with respect to subsequent revision of such habitat only that the Services ‘‘may, from time-to-time thereafter as appropriate, revise such designation’’ [emphasis added] (16 U.S.C. 1533(a)(3)(A)(ii)). The Services’ broad discretion to decide when it is appropriate to revise critical habitat is 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) of the Act 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, 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 Secretaries (acting through the Services) determine how they intend ‘‘to proceed with the requested revision’’ and promptly publish notice of such intention in the Federal Register. The differences in these subsections indicates that the statute does not mandate that the 12-month finding procedures for petitions to list, delist, or reclassify species be followed in determining how to proceed with petitions to revise critical habitat. See Sierra Club v. U.S. Fish and Wildlife Service, 930 F. Supp. 2d 198 (D.D.C. 2013) (leatherback sea turtle) (12-month determinations on petitions to revise are committed to the agency’s discretion by law, and thus unreviewable under the Administrative Procedure Act); and VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 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) (noting that ‘‘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 used in the listing-petition provisions is useful for explaining their determination at the 12-month stage of how they intend to proceed 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 determination of how the Services intend to proceed 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 requirements of section 4(b)(3)(B)(iii) or section 4(b)(3)(C) (establishing requirements to make particular findings, to implement a monitoring system, etc.). PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 66481 Although the Services have discretion to determine how to proceed with a petition to revise critical habitat, the Services think that certain factors regarding conservation and recovery of the species at issue 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 listed species at issue; 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. At § 424.14(i)(2), compared to our revised proposal of the rule (81 FR 23448; April 21, 2016), we add the introductory clause, ‘‘If the Services find that the petition presents substantial information that the requested revision may be warranted,’’ for clarity. Petitions To Initially Designate Critical Habitat and Petitions for 4(d), 4(e), and 10(j) Rules—Paragraph (j) Paragraph (j) is substantially the same as current paragraph (d), which refers to petitions to ‘‘designate critical habitat or adopt special rules.’’ In this regulation, for clarity, we expressly refer to the types of petitions that are covered, which are those requesting that the Services initially designate critical habitat or adopt rules under sections 4(d), 4(e), or 10(j) of the Act. Withdrawn Petitions—Paragraph (k) Paragraph (k) describes 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 E:\FR\FM\27SER4.SGM 27SER4 66482 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations process or the annual candidate review to further evaluate the status of the species, or elect to consider the issue at any time. Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order (E.O.) 12866 provides that the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The OIRA has determined that this rule is not significant. E.O. 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 rule is consistent with E.O. 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.’’ asabaliauskas on DSK3SPTVN1PROD with RULES Regulatory Flexibility Act Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency, or his designee, certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 significant economic impact on a substantial number of small entities. Pursuant to section 605(b), the Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration that this final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The Director of the U.S. Fish and Wildlife Service also certifies that this rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. This rule will 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 notifying State(s)) and effort (providing complete petitions), we do not expect this will prove to be a hardship, economically or otherwise. Further, following a review of entities that have petitioned the Services, we find that most are individuals or organizations that are not considered small business entities. And while small entities may choose to petition the Services, any economic effects would be minimal because any increase in costs (such as notification to States or electronic filing of the petition versus hardcopy should they choose) will be nominal, i.e., not a significant economic impact. As a result, we have determined that these revised regulations will not result in a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.): (a) On the basis of information contained in the Regulatory Flexibility Act section above, this rule will 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 will 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 will not be affected because the rule will not place additional mandates on any city, county, or other local municipalities. (b) This rule will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 is, this rule is not a ‘‘significant regulatory action’’’ under the Unfunded Mandates Reform Act. This rule will impose no obligations on State, local, or tribal governments. Takings (E.O. 12630) In accordance with E.O. 12630, this rule will not have significant takings implications. This rule will not pertain to ‘‘taking’’ of private property interests, nor will it directly affect private property. A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation and recovery of endangered and threatened species) and will not present a barrier to all reasonable and expected beneficial use of private property. Federalism (E.O. 13132) In accordance with E.O. 13132, we have considered whether this rule will have significant Federalism effects and have determined that a federalism summary impact statement is not required. This rule pertains only to the petition process under the Endangered Species Act, and will 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 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 rule will clarify the petition process under the Endangered Species Act. Government-to-Government Relationship With Tribes In accordance with Executive Order 13175 (‘‘Consultation and Coordination with Indian Tribal Governments,’’ November 6, 2000), the Department of the Interior Manual at 512 DM 2, the Department of Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 2013), DOC Departmental Administrative Order (DAO) 218–8, and NOAA Administrative Order (NAO) 218–8 (April 2012), we have considered possible effects of this final rule on federally recognized Indian Tribes. Following an exchange of information with tribal representatives, we have determined that this rule, which E:\FR\FM\27SER4.SGM 27SER4 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations clarifies the general process for submission and review of petitions, does not have ‘‘tribal implications’’ as defined in Executive Order 13175. This rule will assist petitioners in providing complete petitions and enhance the efficiency and effectiveness of the petition process to support species conservation. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we implement the provisions of the Act. See Joint Secretarial Order 3206 (‘‘American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,’’ June 5, 1997). Paperwork Reduction Act of 1995 (PRA) This final rule contains information collections for which the Office of Management and Budget (OMB) approval is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We (National Marine Fisheries Service and U.S. Fish and Wildlife Service, Services) may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements associated with this rule and assigned OMB Control Number 1018–0165, which expires September 30, 2019. Any interested person may submit a written petition to the Services requesting to add a species to the Lists of Endangered or Threatened Wildlife and Plants (Lists), remove a species from the Lists, change the listed status of a species, or revise the boundary of an area designated as critical habitat. OMB has approved the following information collection: Petitions. § 424.14(c) of this rule specifies the information that must be included in petitions. Notification of States. § 424.14(b) requires that petitioners must notify applicable States of their intention to submit a petition to list, delist, or change the status of a species, or to revise critical habitat. This notification must be made at least 30 days prior to submission of the petition. Copies of the notification letters must be included with the petition. The burden table below includes information for both NMFS and FWS. Based on the average number of species per year over the past 5 years regarding which FWS and NMFS were petitioned, we estimate the average annual number of petitions received by both Services combined to be 50 (25 for FWS and 25 for NMFS). Because each petition will be limited to a single species under the regulations, the average number of species included in petitions over the past 5 years may be more accurate than the average number of petitions as a gauge of the number of petitions we are likely to receive going forward. This estimate of the number of petitions the Services will receive in the future may be generous. We estimate that there will be a need for a petitioner to notify an average of 10 States per petition. Many species are narrow endemics and may only occur in one State, but others are wide-ranging and may occur in many States. However, we are erring on the side of over-estimating the potential number of States petitioners will need to notify on average. OMB Control No: 1018–0165. Title: Petitions, 50 CFR 424.14. Service Form Number(s): None. Description of Respondents: Individuals, businesses, or organizations. Respondent’s Obligation: Required to obtain or retain a benefit. Estimated Annual Number of Respondents: 50. Frequency of Collection: On occasion. Total annual responses Activity/requirement 66483 Completion time per response (hours) Total annual burden hours 50 500 120 1 6,000 500 Total ...................................................................................................................................... asabaliauskas on DSK3SPTVN1PROD with RULES Petitioner—prepare and submit petitions .................................................................................... Petitioner—notify States .............................................................................................................. 550 ........................ 6,500 Total Annual Nonhour Cost Burden: $1,000.00, based on $20 per petition (for materials, printing, postage, data equipment maintenance, etc). During the proposed rule stage, we solicited comments for a period of 30 days on the information collection requirements. We received one comment. Comment: The commenter agreed that most petitions can be prepared in approximately 120 hours, but more complex petitions can take much more time to assemble the information within the petition. Response: We agree that in some cases, time to prepare a petition submission may be considerably greater than our estimate, while in other cases, it may be less. We believe 120 hours is a reasonable estimate for the average petition, acknowledging that there could be a small proportion of submissions that require more or less time. We have VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 retained our estimate of 120 hours. All comments on the rule are addressed in the preamble above. The public may comment, at any time, on any aspect of the information collection requirements in this rule and may submit any comments to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041–3803 (mail); or hope_grey@fws.gov (email). National Environmental Policy Act We have analyzed this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), 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 NOAA Administrative Orders PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 (NAOs) 216–6A and 216–6. Our analysis includes evaluating whether this action is administrative, legal, technical, or procedural in nature and, therefore, a categorical exclusion applies. Following a review of the changes to the regulations at 50 CFR 424.14 and our requirements under NEPA, we find that the categorical exclusion found at 43 CFR 46.210(i) applies to these regulation changes. At 43 CFR 46.210(i), the Department of the Interior has found that the following category of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: ‘‘Policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature.’’ E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES 66484 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations NAO 216–6 contains a substantially identical exclusion for ‘‘policy directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature’’ (§ 6.03c.3(i)). At the time DOI’s categorical exclusion was promulgated, there was no preamble language that would assist in interpreting what kinds of actions fall within the categorical exclusion. However, in 2008, the preamble for a language correction to this categorical exclusion gave as an example of an action that would fall within the exclusion the issuance of guidance to applicants for transferring funds electronically to the Federal Government. In addition, an example of a recent Federal Register notice invoking this categorical exclusion was a final rule that established the timing requirements for the submission of a Site Assessment Plan or General Activities Plan for a renewable energy project on the Outer Continental Shelf (78 FR 12676; February 26, 2013). These regulations fell within the categorical exclusion because they affected the process inherent to an agency action rather than the agency action itself, or clarified, rather than changed, the substance of the agencies’ analyses or outcomes of their decisions. The changes to the petition regulations are similar to these examples of actions that are fundamentally administrative, technical, and procedural in nature. The changes to the regulations at 50 CFR 424.14 clarify the procedures for submitting and evaluating petitions under Section 4 of the Act. In addition, the regulation revisions provide transparency for the practices and interpretations that the Services have adopted and applied as a result of case law or pragmatic considerations. The Services also make minor wording and formatting revisions throughout the regulations to reflect plain-language standards. The regulation revision as a whole carries out the requirements of Executive Order 13563 because, in this rule, the Services have analyzed existing rules retrospectively ‘‘to make the agencies’ regulatory program more effective or less burdensome in achieving the regulatory objectives.’’ We also considered whether any ‘‘extraordinary circumstances’’ apply to this situation, such that the DOI categorical exclusion would not apply. See 43 CFR 46.215 (‘‘Categorical Exclusions: Extraordinary Circumstances’’). We determined that no extraordinary circumstances apply. Although the final regulations would revise the implementing regulations for VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 section 4 of the Act to provide greater clarity to petitioners on information that is likely to improve efficiency and accuracy in processing petitions, the effects of these proposed changes would not ‘‘have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or have significant impacts on designated Critical Habitat for these species,’’ as nothing in the revised regulations is expected to determine or change the outcome of any status review of a species or any decision on a petition to revise critical habitat. Furthermore, the revised regulations do not ‘‘[e]stablish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects’’ (43 CFR 46.215(e)). None of the extraordinary circumstances in 43 CFR 46.215(a) through (l) apply to the revised regulations. Nor would the final regulations trigger any of the extraordinary circumstances of NAO 216–6. This rule does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats (§ 5.05c). We completed an Environmental Action Statement for the Categorical Exclusion for the revised regulations in 50 CFR 424.14. Energy Supply, Distribution or Use (E.O. 13211) Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. List of Subjects in 50 CFR Part 424 Administrative practice and procedure, Endangered and threatened species. Regulation Promulgation Accordingly, we amend part 424, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below: PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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. Add § 424.03 to read as follows: § 424.03 Has the Office of Management and Budget approved the collection of information? The Office of Management and Budget reviewed and approved the information collection requirements contained in subpart B and assigned OMB Control No. 1018–0165. We use the information to evaluate and make decisions on petitions. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. You may send comments on the information collection requirements to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, at the address listed at 50 CFR 2.1(b). ■ 3. Revise § 424.14 to read as follows: § 424.14 Petitions. (a) Ability to petition. Any interested person may submit a written petition to the Services requesting that one of the actions described in § 424.10 be taken for a species. (b) Notification of intent to file petition. For a petition to list, delist, or reclassify a species, or for petitions to revise critical habitat, petitioners must provide notice to the State agency 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. This notification must be made at least 30 days prior to submission of the petition. This notification requirement shall not apply to any petition submitted pertaining to a species that does not occur within the United States. (c) 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 name and any common name of a species of fish or wildlife or plants that is the subject of the petition. Only one species may be the subject of a petition, which may include, by hierarchical extension based on taxonomy and the Act, any subspecies or variety, or (for vertebrates) E:\FR\FM\27SER4.SGM 27SER4 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations any potential distinct population segments of that species; (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 justifying the recommended administrative action that contains an analysis of the information presented; (5) Literature citations that are specific enough for the Services to readily locate the information cited in the petition, including page numbers or chapters as applicable; (6) Electronic or hard copies of supporting materials, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (e.g., publications, maps, reports, letters from authorities) cited in the petition; (7) For a petition to list, delist, or reclassify 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, or for a petition to delist or reclassify a species in cases where the species’ range has changed since listing, information on the current and historical geographic range of the species, including the States or countries intersected, in whole or part, by that range; and (9) For a petition to list, delist or reclassify a species, or for petitions to revise critical habitat, copies of the notification letters or electronic communication which petitioners provided to the State agency or agencies 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 currently occurs. (d) Information to be included in petitions to add or remove species from the lists, or change the listed status of a species. The Service’s determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of 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 and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the Act VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 may cause the species to be an endangered species or threatened species (i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) Information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) A complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. (e) Information to be included in petitions to revise critical habitat. The Services’ determinations as to whether the petition provides substantial scientific information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of 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 a description of the benefits of designating or not designating these specific areas as critical habitat. Petitioners should include sufficient supporting information to substantiate the requested changes, which may include GIS data or boundary layers that relate to the request, if appropriate; (2) A description of 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 one or more of the physical or biological features (including characteristics that support ephemeral or dynamic habitat conditions) 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 the physical or biological features (including characteristics that support ephemeral or dynamic habitat conditions) that are essential to the PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 66485 conservation of the species, or that these features do not require special management considerations or protection; (5) For 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) A complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. (f) Response to petitions. (1) If a request does not meet the requirements set forth at paragraph (c) of this section, the Services will generally reject the request without making a finding, and will, within a reasonable timeframe, notify the sender and provide an explanation of the rejection. However, the Services retain discretion to process a petition where the Services determine there has been substantial compliance with the relevant requirements. (2) If a request does meet the requirements set forth at paragraph (c) of this section, the Services will acknowledge receipt of the petition by posting information on the respective Service’s Web site. (g) Supplemental information. If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, 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. (h) 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 Services will make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. The Services will publish the finding in the Federal Register. (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 E:\FR\FM\27SER4.SGM 27SER4 66486 Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES support of credible scientific or commercial information will not be considered ‘‘substantial information.’’ (ii) In reaching the initial finding on the petition, the Services will consider the information referenced at paragraphs (c), (d), and (g) of this section. The Services may also consider information readily available at the time the determination is made. The Services are not required to consider any supporting materials cited by the petitioner if the cited document is not provided in accordance with paragraph (c)(6) of this section. (iii) The ‘‘substantial scientific or commercial information’’ standard must be applied in light of any prior reviews or findings the Services have made on the listing status of the species that is the subject of the petition. Where the Services have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on the Services’ own initiative), the Services will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action, a petitioned action generally would not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information not previously considered. (2) If the Services find that a petition presents substantial information indicating that the petitioned action may be warranted, the Services will commence a review of the status of the species concerned. At the conclusion of the status review and within 12 months of receipt of the petition, the Services will make one of the following findings: (i) The petitioned action is not warranted, in which case the Service shall publish a finding in the Federal Register. (ii) The petitioned action is warranted, in which case the Services VerDate Sep<11>2014 18:35 Sep 26, 2016 Jkt 238001 shall 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 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 any 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 (h)(2)(iii) of this section with regard to any petition, the Services will, within 12 months of such finding, again make one of the findings described in paragraph (h)(2) of this section with regard to such petition. (i) 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 Services will make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted. The Services will publish such finding in the Federal Register. (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 Services will consider the information referenced at paragraphs PO 00000 Frm 00026 Fmt 4701 Sfmt 9990 (c), (e), and (g) of this section. The Services may also consider other information readily available at the time the determination is made in reaching its initial finding on the petition. The Services are not required to consider any supporting materials cited by the petitioner if the cited documents are not provided in accordance with paragraph (b)(6) of this section. (2) If the Services find that the petition presents substantial information that the requested revision may be warranted, the Services will determine, within 12 months of receiving the petition, how to proceed with the requested revision, and will promptly publish notice of such intention in the Federal Register. That notice may, but need not, take a form similar to one of the findings described under paragraph (h)(2) of this section. (j) Petitions to designate critical habitat or adopt rules under sections 4(d), 4(e), or 10(j) of the Act. The Services will conduct a review of petitions to designate critical habitat or to adopt a rule under section 4(d), 4(e), or 10(j) of the Act in accordance with the Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental regulations, and take appropriate action. (k) Withdrawal of petition. A petitioner may withdraw the petition at any time during the petition process by submitting such request in writing. If a petition is withdrawn, the Services may, at their discretion, discontinue action on the petition finding, even if the Services have already made a 90-day finding that there is substantial information indicating that the requested action may be warranted. Dated: September 15, 2016. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. Dated: September 12, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2016–23003 Filed 9–26–16; 8:45 am] BILLING CODE 4333–15–P;3510–22–P E:\FR\FM\27SER4.SGM 27SER4

Agencies

[Federal Register Volume 81, Number 187 (Tuesday, September 27, 2016)]
[Rules and Regulations]
[Pages 66461-66486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23003]



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September 27, 2016

Part IV





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National Oceanic and Atmospheric Administration





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50 CFR Part 424





Endangered and Threatened Wildlife and Plants; Revisions to the 
Regulations for Petitions; Final Rule

Federal Register / Vol. 81 , No. 187 / Tuesday, September 27, 2016 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 424

[Docket Nos. FWS-HQ-ES-2015-0016 and DOC 150506429-6767-04; 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), National Oceanic and Atmospheric 
Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service (Services), finalize changes to the regulations 
concerning petitions, to improve the content and specificity of 
petitions and to enhance the efficiency and effectiveness of the 
petition process to support species conservation. Our revisions to the 
regulations clarify and enhance the procedures by which the Services 
evaluate petitions under section 4(b)(3) of the Endangered Species Act 
of 1973, as amended. These revisions will also maximize the efficiency 
with which the Services process petitions, making the best use of 
available resources.

DATES: This rule is effective October 27, 2016.

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 Administrative Procedure Act (APA; 5 U.S.C. 553(e)) gives 
interested persons the right to petition for the issuance, amendment, 
or repeal of an agency's rule. The U.S. Fish and Wildlife Service and 
the National Marine Fisheries Service (Services) use the rulemaking 
process in our administration of the Endangered Species Act of 1973 
(Act; 16 U.S.C. 1531 et seq.), as amended, in particular section 4. 
Section 4(b)(3) of the Act establishes deadlines and standards for 
making findings on petitions to conduct rulemakings under section 4. 
Thus, in this context, the primary purpose of the Act's petition 
process is to empower the public, in effect, to direct the attention of 
the Services to (1) species that may be imperiled and may warrant 
listing, but whose status the Services have not yet determined, (2) 
changes to a listed species' threats or other circumstances that may 
warrant reclassification of that species' status (i.e., ``downlisting'' 
the species from an endangered species to a threatened species, or 
``uplisting'' from a threatened species to an endangered species) or 
delisting of the species (i.e., removing the species from the Federal 
List of Endangered and Threatened Wildlife or List of Endangered and 
Threatened Plants), or (3) information that would support making 
revisions to critical habitat designations. The petition process is a 
central feature of the Act, and serves a beneficial public purpose.

Purpose of Revising the Regulations

    The Services are revising the regulations at 50 CFR 424.14 
concerning petitions to improve the content and specificity of 
petitions in order to enhance the efficiency and effectiveness of the 
petition process to support species conservation. Our revisions to 
Sec.  424.14 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)). The revised regulations pertaining to the petition process 
will provide greater clarity to the public on the petition-submission 
process, which will assist petitioners in providing complete petitions. 
These revisions will also maximize the efficiency with which the 
Services process petitions, making the best use of available resources. 
These changes will improve the quality of petitions through clarified 
content requirements and guidelines, and, in so doing, better focus the 
Services' resources on petitions that merit further analysis. In the 
following discussion, we first summarize the comments received during 
the two public comment periods; we then summarize the changes and 
explain the benefits of making these changes.

Summary of Comments and Recommendations

    In the proposed rule published on May 21, 2015 (80 FR 29286), we 
requested that all interested parties submit written comments on the 
proposal by July 20, 2015. We did not receive any requests for a public 
hearing. We received several requests for an extension of the public 
comment period, and on July 17, 2015 (80 FR 42466), we extended the 
public comment period to October 18, 2015. In total, we received 347 
comments.
    After further consideration of the issues, we revised the proposed 
rule and reopened a comment period for an additional 30 days on April 
21, 2016 (81 FR 23448), to allow the public an opportunity to comment 
on proposed changes made in response to the comments we received on the 
original proposal. In that revised rule, we also requested comment on 
the information collection aspects of the proposed rule under the 
Paperwork Reduction Act. We received 27 comments on the revised 
proposed rule. All substantive information and relevant comments 
provided during the comment periods have been considered, and where 
appropriate, have either been incorporated directly into this final 
rule or addressed in the more specific responses to comments below. 
Comments are grouped into categories.

General Comments

    Comment (1): Several commenters expressed concern that the proposal 
would create a substantial burden and restriction of petitioners' 
rights under various authorities, including the First Amendment, APA, 
and Executive Order 13563.
    Our Response: These regulations do not restrict or limit a 
citizen's right to petition the Services, but rather clarify the 
petition process for the public by identifying what would make the 
process most efficient and effective for both citizens and agencies. 
Although the First Amendment to the U.S. Constitution guarantees 
members of the public the rights to, among other things, ``petition the 
Government for a redress of grievances'' and to express their views, it 
does not require a Federal agency to treat every such expression as a 
petition under the APA. The APA requires Federal agencies to give ``an 
interested person the right to petition for the issuance, amendment, or 
repeal of a rule,'' 5 U.S.C. 553(e), but does not speak to the 
particulars of the petition process. As a result, agencies have 
discretion to design a reasonable and efficient process for receiving 
and

[[Page 66463]]

considering petitions. Many Federal agencies have developed regulations 
to govern the petition process, including setting out requirements for 
the content and informational support of petitions similar to those 
included in this final rule. See Jason A. Schwartz and Richard L. 
Revesz, ``Petitions for Rulemaking: Final Report to the Administrative 
Conference of the United States'' (Nov. 5, 2014). In further response 
to the comment, we note that executive orders such as E.O. 13563 set 
out guidance for Federal agencies, but do not create substantive or 
procedural rights in any party.
    Comment (2): A commenter noted that general claims about efficiency 
do not justify restrictions on fundamental rights.
    Our Response: The revised regulations do not restrict the right of 
the public to petition the Services under the Act. Rather, they provide 
clarification to petitioners as to what they must include in a petition 
in order for the Services to be able to evaluate whether or not the 
petition contains substantial information indicating that the 
petitioned action may be warranted. As noted above, agencies have 
discretion to devise reasonable requirements as to the format, content 
and informational support of petitions to ensure that agency resources 
are used effectively.
    Comment (3): A commenter noted that the Services' proposed rule 
departs significantly from the case law that states the threshold for a 
substantial 90-day finding is low, and therefore should not necessitate 
a petitioner assembling all the information available on a species. The 
Services should make a preliminary finding on a petition without access 
to all of the scientific information that could be discovered; that 
approach is more appropriate in a status review.
    Our Response: The Act places the obligation squarely on the 
petitioner to present the requisite level of information to meet the 
``substantial information'' test to demonstrate that the petitioned 
action may be warranted. Therefore, in determining whether the petition 
presents substantial information, the Services are not required to seek 
out any supporting source materials beyond what is included with a 
given petition. As a result, the Services will not base their 90-day 
findings on any claims for which supporting source materials have not 
been provided in the petition. However, as discussed in more detail 
below in the section, Findings on a Petition to List, Delist, or 
Reclassify--Paragraph (h), the Services are confirming that they have 
the discretion to consider, as appropriate, readily available 
information that provides context necessary to evaluate whether the 
information that a petition presents is timely and up-to-date, and 
whether it is reliable or representative of the available information 
on that species, in making a determination as to whether the petition 
presents substantial information. If the Services were to consider 
petitions in a vacuum, this could lead to consequences that would be at 
odds with the purposes of the Act by diverting agency resources to 
matters that only appear superficially to meet the statutory and 
regulatory standards for further consideration. In these regulatory 
amendments, the Services have crafted a balanced approach that will 
ensure that the Services may evaluate the information readily available 
to us, without conducting a more wide-ranging collection of information 
and analysis more appropriate for a 12-month status review.
    Comment (4): Several commenters expressed concern that the 
initially proposed requirements could potentially be cost-prohibitive 
with respect to the provisions for State pre-coordination and gathering 
all relevant data. Thus, whether an interested person submits a 
petition to the Services may be influenced by the financial capacity of 
the petitioner, and not based on the best scientific evidence 
available.
    Our Response: Based on public feedback and reconsideration of the 
issues, the Services revised our original proposal, as discussed in our 
April 21, 2016 revised proposed rule (81 FR 23448). In the re-proposal, 
we modified the originally proposed requirement for pre-coordination 
with States and the proposed requirement to provide all relevant data. 
For further discussion of these changes, please see comments and 
responses below under Paragraph (b)--Requirement for State Coordination 
Prior to Petition Submission to FWS and Paragraph (c)--All Relevant 
Data Certification.
    Comment (5): A commenter stated that the Services should provide 
examples of good and bad petitions.
    Our Response: In the revised regulation, we provide greater clarity 
and detail as to what elements make up a thorough, complete, and robust 
petition. The facts of each petition may vary significantly, so it is 
difficult to extrapolate that across the board. However, each petition 
and subsequent finding is available on http://www.regulations.gov, so 
the public can evaluate the petitions and findings themselves.
    Comment (6): A commenter stated that there should be a nominal 
filing fee for each petition. This requirement could serve as a 
deterrent for filing hundreds of petitions at a time.
    Our Response: Petitioning the Services is a right the public has 
under the Act and the APA. Neither of those authorities provides for 
assessing fees. We conclude that the petition process is not like an 
application for a permit, where charging a fee may be appropriate; 
petitioners do not receive any tangible authorizations or rights 
through submission of a petition. Instead, the intent of the petition 
process is to allow the public to direct the Services' attention to a 
matter concerning the status of a species under their jurisdictions and 
authority.
    Comment (7): A commenter stated that the Services should publish in 
the Federal Register notices indicating that they received petitions to 
list, delist, or reclassify a species, or publish the petitions 
themselves. Further, the Services should post all information from a 
petition under review on a public Web site if a species status review 
is begun.
    Our Response: The Services are required, to the maximum extent 
practicable, to reach an initial finding on a petition within 90 days 
of receiving the petition and to promptly publish such finding in the 
Federal Register. The Act does not include a requirement to publish 
notices of the receipt of a petition. To publish separate Federal 
Register notices simply to announce our receipt of petitions would 
unnecessarily burden this process and take resources away from 
evaluating petitions and conducting higher-priority conservation work. 
The Services provide information on publicly accessible Web sites 
showing all currently active petitions (see https://ecos.fws.gov/ecp/report/table/petitions-received.html and http://www.nmfs.noaa.gov/), 
and we make the petitions available as supporting information on http:/
/www/regulations.gov when we publish our 90-day findings.
    Comment (8): A commenter stated that the Services should set up a 
Web site for electronic submission of petitions to offset any potential 
increased cost of printing and mailing of multiple petitions.
    Our Response: We currently receive many petitions electronically by 
email, and encourage petitioners to submit petitions electronically as 
well. Current contact information for both Services may be found on 
their respective Web sites, at https://www.fws.gov/ecological-services/map/index.html and http://www.nmfs.noaa.gov/pr/contact.htm.

[[Page 66464]]

However, given the file size of source information typically provided 
with petitions, it may not always be practicable to provide source 
material by email. In such cases, we recommend that petitioners mail 
appropriate digital-storage media (or hard copies, if preferable to the 
petitioner) to the appropriate office. This should help reduce printing 
costs for petitioners. Further, we are not requiring that copies of 
petitions be mailed to States.
    Comment (9): A commenter noted that a similar alteration in the 
citizen petition process in a 1996 policy was rejected by the Ninth 
Circuit Court of Appeals and the District of Columbia Court (Ctr. For 
Biological Diversity v. Norton, 254 F.3d 833 (9th Cir. 2001); Am. Lands 
Alliance v. Norton, 360 F. Supp. 2d 1, 6 (D.D.C. 2003)). The proposed 
rule change at issue here has the same effect.
    Our Response: We have revised the language of the rule to make 
clear that the cases the commenter references do not apply to this 
rule. Those cases involved a provision of the 1996 Petition Management 
Guidance (PMG) that stated, ``[A] petition to list a candidate species 
is redundant and will be treated as a second petition.'' The PMG also 
provided that a second petition would require only a prompt response 
informing the submitter of the prior petition, and would be treated as 
a comment on the previous petition. The courts held that this 
``redundancy'' provision in the PMG violated the Act, because it 
allowed the Secretary to avoid explaining why the petitioned action was 
precluded, did not create a sufficient record to allow for meaningful 
judicial review of any finding on a ``redundant'' petition, and 
circumvented the statutory requirement that the Service comply with 
deadlines for making petition findings. In contrast, this rule, as 
revised, does not provide for treating petitions to list a candidate 
species as second petitions. Rather, Sec.  424.14(h)(1)(iii) provides 
that any previous reviews or findings contributes to the context for 
making a petition finding:
    The ``substantial scientific or commercial information'' standard 
must be applied in light of any prior reviews or findings the Services 
have made on the listing status of the species that is the subject of 
the petition. Where the Services have already conducted a finding on, 
or review of, the listing status of that species (whether in response 
to a petition or on the Services' own initiative), the Services will 
evaluate any petition received thereafter seeking to list, delist, or 
reclassify that species to determine whether a reasonable person 
conducting an impartial scientific review would conclude that the 
action proposed in the petition may be warranted despite the previous 
review or finding. Where the prior review resulted in a final agency 
action, a petitioned action generally would not be considered to 
present substantial scientific and commercial information indicating 
that the action may be warranted unless the petition provides new 
information not previously considered.
    As explained in response to Comment (55), below, all requests which 
meet the requirements of Sec.  424.14(c) are considered petitions, will 
be evaluated, and a finding will be made. Therefore, Sec.  
424.14(h)(1)(iii) does not suffer from the deficiencies that the courts 
identified with respect to the ``redundancy'' provision in the PMG. The 
Services will still evaluate and make petition findings on all 
petitions they receive regardless of whether the species is already a 
candidate or a finding on a petition requesting the same action has 
already been made. In making such a petition finding, we would have 
created a record that would allow for meaningful review not only of any 
determination that listing is warranted, but also of any determination 
that listing is precluded by higher-priority listing actions and we are 
making expeditious progress towards adding qualified species to the 
lists. Finally, the findings on such a petition will still be subject 
to the Act's statutory deadlines.
    Comment (10): A commenter stated that petitioners should be advised 
if their request was screened out and provided with the reasons for the 
petition rejection. The Services could develop a form letter indicating 
which mandatory requirements the petition was missing. This way, a 
petitioner may easily understand which items of information should have 
been included in the petition but were not.
    Our Response: Section 424.14(e)(1) of the revised proposed rule (81 
FR 23448; April 21, 2016) (Sec.  424.14(f)(1) in this rule) does 
provide that, if the Services reject a petition for not meeting the 
requirements of proposed Sec.  424.14(b) (Sec.  424.14(c) in this 
rule), they will, within a reasonable timeframe, notify the sender and 
provide an explanation of the rejection. It further provides that the 
Services will generally reject the request without making a finding; 
therefore, the submitter could rectify the deficiencies in the petition 
and resubmit it. We appreciate the suggestion of form letters, and will 
identify which elements are missing in our responses.
    Comment (11): A commenter stated that the Services propose to 
replace the title ``the Secretary'' or ``the Secretaries'' with ``the 
Services'' throughout the regulation text because the Services are the 
designees of the Secretaries of Commerce and the Interior in 
implementing the Act. The commenter disagreed with the change. Although 
the Services are the agencies designated to implement the Act, the 
Secretaries are those designated and confirmed by Congress to serve on 
the Cabinet and responsible for carrying out those specific acts given 
to the Executive Branch by the Legislative Branch of the government.
    Our Response: While we agree that the authority for making 
decisions under the Act ultimately rest with the Secretaries of 
Commerce and the Interior, the Secretaries have formally delegated 
authority to make petition findings to the Services. As such, we have 
maintained the language as ``the Services.''

Paragraph (b)--Requirement for State Coordination Prior To Petition 
Submission to FWS

    Comment (12): We received many comments raising concerns with the 
requirement for State pre-coordination, as originally proposed on May 
21, 2015 (80 FR 29286). These included concerns that the provision 
would be too burdensome, potentially requiring a petitioner to mail 
thousands of pages of petition material; it is outside the 
responsibility of the petitioner to do this coordination; it is the 
responsibility of the Services to coordinate with the States; it could 
result in adversarial relationships between petitioners and States; and 
it would slow the petition process. Concerns were also expressed that 
the coordination requirement could create a significant amount of 
additional work for State agencies. In addition, most State commenters 
requested a longer coordination period, as long as 120 days.
    Our Response: We have removed the requirement for coordination from 
this final rule, and replaced it with the simpler requirement that a 
prospective petitioner send a notification letter to the State(s) 
within the current range of the species stating the intent to file a 
petition with either Service at least 30 days prior to filing the 
petition. This notification will allow States time and opportunity to 
send data directly to the Services, should they desire. This change 
acknowledges the special role of States as evidenced in section 6 of 
the Act while not overly burdening petitioners.

[[Page 66465]]

    While not required under this final rule, we encourage members of 
the public who are preparing a petition to coordinate with the 
appropriate State agencies when gathering information; this 
coordination will help in preparing a complete petition with adequate 
information. Additionally, we value the input and expertise of our 
State partners and wish to provide them the opportunity to be aware 
that species in their States are the subject of petitions and to 
provide pertinent information on those species to the Services, should 
they have such information and wish to share it.
    Comment (13): Several States and other commenters expressed 
concerns that the Services removed the originally proposed requirement 
for full State pre-coordination, which would have assured the States a 
role in the petition process.
    Our Response: Affected States will have the opportunity to submit 
data and information to the Services in the 30-day period before a 
petition is filed. Further, Sec.  424.14(h)(1)(ii) of this revised 
regulation allows us to consider data and information readily available 
at the time the finding is made. Because information received after the 
petition is filed would be readily available at the time the finding is 
made, the Services could consider any information received up until the 
time the Services make their findings (including any data and 
information States have voluntarily sent to the Services in response to 
the notification letters).
    The requirement of a petitioner to notify States at least 30 days 
prior to filing a petition is a minimum. We encourage petitioners to 
notify States earlier, even as soon as they contemplate petitioning a 
species for protection under the Act. Further, we encourage petitioners 
to contact State wildlife agencies and consult State Web sites as 
valuable sources of information on their subject species, and 
incorporate any such information in their petitioned requests.
    The use of such information, up until the time the Services make 
their findings, is a change from prior practice. However, we find that 
this change will expand the ability of the States and any interested 
parties to take the initiative of submitting input and information for 
the Services to consider in making 90-day findings, thereby making the 
petition process both more efficient and more thorough. In addition, 
this interpretation is consistent with the statutory purpose and with 
case law. It is consistent with the statutory purposes of the Act 
because providing for consideration of all information, regardless of 
when it was received, will put the Services in a better position to 
make the statutorily required finding--whether or not the petition 
presents substantial information indicating that the petitioned action 
may be warranted--by providing factual context in which to evaluate the 
information provided in the petition. Further, nothing in the Act 
precludes consideration of information up until the time a decision is 
made. It is consistent with case law because it stops short of allowing 
the Services to solicit new information for purposes of a 90-day 
finding, which courts have held to be beyond the scope of a 90-day 
finding. E.g., Colorado River Cutthroat Trout v. Kempthorne, 448 F. 
Supp. 2d 170 (D.D.C. 2006). Please see Findings on a Petition to List, 
Delist, or Reclassify--Paragraph (h) under Summary of Changes to 
Previous Regulations at 50 CFR 424.14, below, for further discussion.
    Comment (14): A commenter expressed concern that the changed 
requirement for State coordination undermines our expectation that 
petitioners present unbiased and balanced information. If petitioners 
are not required to seek State information, they may keep their 
awareness of the complete information intentionally low.
    Our Response: While we encourage prospective petitioners to contact 
State wildlife agencies for information on their subject species as 
part of creating a robust, well-balanced petition, we conclude that at 
the 90-day finding stage, it is not appropriate to expect petitioners 
to coordinate on the contents of a petition with another entity.
    Comment (15): A commenter requested that the Services increase the 
timeframe for States to respond to a petition to at least 60 days.
    Our Response: The Services think that a minimum of 30-day 
notification prior to filing a petition provides time for States to 
engage the Services during the petition process without substantially 
increasing the likelihood that the Services will be unable to meet the 
90-day timeframe. Further, while we encourage States to submit any 
information within this 30-day time period, the States (and any 
interested parties) are able to submit information up until the finding 
is made (please see our response to Comment (13), above).
    The requirement that a petitioner notify States at least 30 days 
prior to filing a petition is, as noted, a minimum. Also, we encourage 
petitioners to contact State wildlife agencies and consult State Web 
sites as valuable sources of information on their subject species, and 
incorporate any such information in their petitioned requests.
    Comment (16): Several commenters expressed concern that the revised 
requirement for State coordination would create a burden on State 
agencies, because it would shift the States' role from determining what 
information was missing from a petition to directing their limited 
resources towards providing potentially all of the relevant information 
on a petitioned species, even if this is redundant with what the 
petitioner eventually provides.
    Our Response: This final rule does not require the States to submit 
information to the Services; whether they do so will be their choice. 
If a relevant State would like to have a copy of the petition, they may 
ask petitioners or the Services for a copy, or obtain a copy from the 
respective Service's Web sites after the petition has been filed.
    Comment (17): Commenters noted that nothing in the Act requires 
consultation (with respect to petitions) with anyone. A requirement to 
notify a third party, specifically State agencies, prior to the 
submission of a petition under the Act or the APA is without legal 
support. The APA provides the right of each citizen to petition the 
government, and the Act provides the right to petition for the listing, 
delisting, or reclassifying of a species.
    Our Response: Section 4(b)(1)(A) and 6 of the Act require the 
Services to take into consideration those efforts by States to protect 
species and their habitats and coordinate with States on the 
conservation of listed species and species at risk. Our modified 
language requiring petitioners to notify State wildlife agencies of 
their intent to file a petition with respect to a species found in 
those States with the appropriate Service assists us in meeting the 
requirements of the Act regarding State coordination. Our revised 
requirement for State coordination does not infringe on the right of 
the public to submit petitions under section 4 of the Act. Rather, it 
allows States the opportunity, should they choose, to participate in 
the petition process by providing information to the Services, while at 
the same time removing any potentially onerous requirements on 
petitioners.
    Comment (18): Several commenters asked how they determine to which 
State agencies they must send letters of intent to file a petition. One 
commenter seemed to suggest that the Services provide each State the 
opportunity to designate all appropriate agencies to receive a copy of 
the petition, and maintain a master contact list for petitioners to 
access when contacting States.

[[Page 66466]]

    Our Response: Petitioners must send letters to the State(s) that 
are in the known, current geographic range of the species. Section 
3(18) of the Act defines the term ``State agency'' to mean any State 
agency, department, board, commission, or other governmental entity 
which is responsible for the management and conservation of fish, 
plant, or wildlife resources within a State. The Association of Fish 
and Wildlife Agencies (AFWA), which is a professional association for 
State, provincial and territorial fish and wildlife agencies, is a 
helpful resource in determining contact information for State agencies. 
Further, in researching the information to support the petitioned 
request, the petitioner should look for range information, and thereby 
find the State(s) in which the species occurs. We note that when there 
are multiple range States and in cases where there is some ambiguity 
about the extent of range, we would not envision rejecting a petition 
because the petitioner did not notify every State in question, as long 
as it appears that the petitioner made an attempt to do so.
    Comment (19): A commenter recommended that, to further reduce the 
burden on petitioners, petitioners be allowed to send (email) 
notification letters to State wildlife agencies electronically instead 
of limiting the requirement to mailing hard copy letters.
    Our Response: We appreciate this suggestion, and clarify in this 
rule that petitioners are to include copies of notification letters or 
emails as a required part of their petition submission.
    Comment (20): One commenter stated that the minimum 30-day 
requirement for notifying States of intent to file a petition 
improperly extends the mandatory timelines that Congress established. 
Another commenter stated that a required 30-day coordination timeframe 
with States could be to the detriment of imperiled species, especially 
those petitioned for emergency listing.
    Our Response: The Act directs the Services to make a finding on 
whether a petition presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted 
within 90 days of the receipt of the petition, to the maximum extent 
practicable. The 30 days' notice that will be given under the 
regulations prior to submitting a petition is by definition not part of 
the 90-day statutory timeframe that begins to run from receipt of the 
petition. Further, the State notification requirement need not delay 
petitioners from filing their petitions close to the time they would 
have done so in the absence of the notification requirement. In fact, 
we encourage prospective petitioners to contact States notifying them 
of their intent to file a petition on a subject species as soon as they 
contemplate doing so. Thus, some or all of the notification period 
could run concurrently with the time that the petitioner is researching 
and preparing the petition submission.
    Petitioners may request listing on an emergency basis; however, the 
Services are only required to treat such requests as a regular listing 
petition, and to follow the statutory timelines for responding to the 
petition as a regular listing petition. At any time, if one of the 
Services determines that there is an emergency posting a significant 
risk to the well-being of a species, it is within that Service's 
discretion under Section 4(b)(7) whether to consider promulgating a 
regulation that takes effect immediately.
    Comment (21): A commenter noted that petitions regarding species 
under NMFS jurisdiction should also be subjected to the provision of 
pre-coordination with States within the range of the petitioned 
species. They stated that the rationale of increased logistical 
difficulties for petitions on NMFS species is not a valid argument 
because many terrestrial and freshwater species under FWS jurisdiction 
are also wide-ranging and would theoretically present the same 
logistical problems.
    Our Response: In our revised proposed rule (81 FR 23448; April 21, 
2016), we revised the requirement for petitioners to simply notify 
States of their intent to file petitions at least 30 days prior to 
submission of petitions to the Services, and we applied this 
requirement to petitions sent to either Service. Therefore, this final 
rule applies to submissions to both NMFS and FWS.
    Comment (22): Several commenters were opposed to the provision in 
the original proposal requiring the petitioner to certify inclusion of 
data from State Web sites, as the information on those sites is 
superficial and not adequate for a species review.
    Our Response: After reviewing public comment on the May 21, 2015, 
proposed rule (80 FR 29286), we developed a revised proposal that 
removed this provision. This final regulation in no way limits 
petitioners to the sources of information they may consult and include 
in petitions. We encourage petitioners to use a broad range of source 
materials, in order to create a well-balanced presentation of facts, 
including information provided by researchers, species experts, State 
data, and Tribal information, as well as other sources.
    Comment (23): A commenter encouraged the Services to reject 
petitions that do not include data and information from the affected 
States because, in their view, these would not present a complete, 
balanced representation of the relevant facts.
    Our Response: As noted, we encourage petitioners to use a broad 
range of source materials, including information from State wildlife 
agencies, which often have considerable experience and information on 
the species within their boundaries. However, we would evaluate the 
petition and supporting evidence on a case-by-case basis to determine 
whether it presents substantial information to indicate that the action 
may be warranted. We note that, in this final rule, Sec.  424.14 (d)(5) 
and (e)(6) state that, in determining whether a petition presents 
substantial information indicating that the petitioned action may be 
warranted, one of the factors the Services will consider is whether the 
petition presents a complete and balanced representation of the 
relevant facts. Because it is not required in section (c), the 
inclusion of a complete and balanced representation of the relevant 
facts is not part of the essential information that is required for all 
petitions to be accepted as a petition. Rather, whether such a 
presentation is included is one of the factors the Services will 
consider in making our finding of whether a petition presents 
substantial information that the requested action may be warranted. We 
nevertheless encourage petitioners to check for availability of such 
information, to contact State wildlife agencies or consult State Web 
sites in researching species that are the subject of their requests, 
and to include in the petition any State information that would 
contribute to providing the detailed narrative and/or citations 
required under Sec.  424.14(c)(4) and (c)(5).
    Comment (24): A commenter noted that the discretion for the 
Services to choose whether or not to consider information provided by 
States is a disincentive to the States to undertake the considerable 
work necessary to provide information.
    Our Response: The Services appreciate all information and data 
provided by States, and generally intend to consider timely information 
provided by the States, along with other readily available information, 
to put the information in the petition in context. Further, following 
substantial 90-day findings, the Services will carefully evaluate all 
information provided in

[[Page 66467]]

conducting subsequent status reviews. For further discussion, please 
see Findings on a Petition to List, Delist, or Reclassify--Paragraph 
(h), in Summary of Changes to Previous Regulations at 50 CFR 424.14, 
below.
    Comment (25): A commenter suggested that the Services add a 
requirement that petitioners must inform the affected States of the 
actual date that they intend to submit their petitions to one of the 
Services. If, for example, a petitioner gives a State notice 12 months 
before submitting a petition and that State provides data to the 
Services within 30 days of receiving that notice, the State's data that 
the Services ultimately use to consider the petition could be outdated.
    Our Response: We encourage petitioners to give the States an 
estimate of when the petitioner will be submitting the petition to the 
Services, but we do not require it. While we appreciate the commenter's 
concern that the Services be provided the best, most current 
information, we do not think it will pose a problem if a petitioner 
chooses to notify States of their intent to file a petition more than 
30 days prior to submission to the Services. In fact, we encourage 
prospective petitioners to notify States earlier than 30 days before 
submission, to allow States more time to submit species information to 
the Services.
    Comment (26): A commenter noted that Congress chose to provide 
States the same procedural rights that every other stakeholder is 
provided--an opportunity to provide their perspectives on positive 90-
day findings and to submit any relevant information concerning the 
finding and species during the 12-month review process. They should not 
have an opportunity to comment on petitions before the Services have 
made their 90-day findings.
    Our Response: We have revised our original proposed rule (80 FR 
29286; May 21, 2015) such that we do not require petitioners to provide 
copies of their petitions to States before submission to the Services. 
However, we do note the special role envisioned for States under 
section 6 of the Act and find it is helpful for States to receive 
notifications of intent to file petitions on species found within their 
borders, to afford States the opportunity to provide information to the 
Services on those species, should they choose. If, in response to the 
required notification letter, any such State information is received 
before the 90-day finding is made, it may be useful in placing the 
information in the petition in context. Further, we encourage States to 
provide the Services with information they may have on species of 
concern at any time. Finally, during any subsequent status reviews, it 
is the practice of the Services to request additional information from 
all interested parties, including State wildlife agencies.
    Comment (27): A commenter suggested adding a new paragraph in Sec.  
424.14(h)(2): ``During the 12-month finding, the Service will fully 
include State biologists in evaluating the current status of the 
species proposed for listing. Status assessments will typically 
include: developing population and habitat models, identifying and 
evaluating threats, habitat requirements, and current species 
distributions. When possible, authorship of the Species Status 
Assessments will be shared between State and Service biologists to 
balance workload and promote data sharing.''
    Our Response: The scope of this regulation only includes how the 
Services will conduct 90-day petition findings, so it would not be 
appropriate to include the proposed language. However, to the extent 
practicable and appropriate, we will consult with and involve State 
agencies and other appropriate experts when conducting status reviews. 
The ability and need to do so will vary case-by-case, and depend on the 
expertise and resources available. However, the Act specifically 
charges the Services with the authority and obligation to implement the 
provisions of the Act; the Services are ultimately responsible for 
making determinations under the Act and cannot delegate that authority 
to other agencies.
    The Services recognize the expertise and in-depth knowledge many 
State wildlife agencies have concerning species under their 
jurisdictions, value greatly our partnerships with State wildlife 
agencies, and take seriously the provisions of section 4 and 6 of the 
Act in coordinating and cooperating with the States. It is the practice 
of the Services to contact State wildlife agencies during status 
reviews to seek information on the subject species, and we invite 
States at any time to provide information and data they may have on 
species within the State. Many States provide frequent, regular updates 
to the Services on information about species that occur in their 
States.
    Comment (28): Several commenters suggested adding Tribal entities 
to the originally proposed requirement for petitioners to send copies 
of petitions to State wildlife agencies, and incorporating any 
materials States send as part of the petition. They cited Secretarial 
Order 3206 and the Presidential Memorandum of 1994, which set forth the 
general conditions under which these consultative actions are to occur, 
and cited Executive Order 13175, which specifically provides guidance 
for coordination and collaboration on policies that have Tribal 
implications. Further, FWS' tribal policy supports early coordination 
with Tribes, and states that the ``Service will consult with Native 
American governments on fish and wildlife resource matters of mutual 
interest and concern,'' and that the ``goal is to keep Native American 
governments involved in such matters from initiation to completion of 
related Service activities'' [emphasis added].
    Our Response: The Services greatly value the conservation 
partnerships we have with Tribes, as reflected in the intra-
governmental guidance documents cited, and appreciate the conservation 
efforts and programs many Tribes have established. While there are no 
specific notification requirements for petitioners regarding Tribes, we 
encourage prospective petitioners, should they find that the range of a 
species includes Tribal lands, to contact the appropriate Tribes to 
coordinate with them and obtain information which they may have, and 
include this information in their petition documents. Further, during 
any subsequent status reviews, the Services are committed to 
proactively coordinating with Tribes on any species of interest on 
Tribal lands and to incorporating information and data Tribes provide 
into our reviews of those species.
    Comment (29): In response to our revised proposed rule (81 FR 
23448; April 21, 2016), a commenter noted that the Services should 
expand the requirements to send a letter to States of intent to file a 
petition to also include other government entities. Many county-level 
governments have dedicated wildlife departments that manage and monitor 
species and that could provide additional data on species status and 
habitat requirements.
    Our Response: It would be difficult for petitioners to determine 
all county-level or other level government agencies that may have 
information on a subject species, and contact all such entities. 
Therefore, it would be unrealistic to make this a requirement for a 
request to qualify as a petition. However, we do encourage petitioners 
to avail themselves of such potential information sources whenever they 
are aware of them.

[[Page 66468]]

Paragraph (c)--Single Species Petition Limitation

    Comment (30): We received several comments expressing concerns 
about the single species per petition requirement. These included 
concerns that limiting a petition to a single species will lead to an 
increase in the Services' processing time, a decrease in the efficiency 
of the listing process, and a reduction in listing species under the 
Act.
    Our Response: By having multiple well-organized and complete 
single-species petitions, we anticipate that in many cases we will be 
able to evaluate each petition much more efficiently and effectively 
compared to a multi-species petition. It has been our experience that 
the quality of the information varies from species to species in the 
multi-species petitions we have received. Multispecies petitions have 
often generalized or referenced information across species, which 
significantly complicates the evaluation process, because it is unclear 
which references apply to which species. Because the Act requires us to 
make a finding on each petitioned action and species individually, we 
have determined that the approach outlined in this final rule will 
greatly enhance efficiency and effectiveness for both the public and 
the Services. Further, we do not think it will take appreciably more 
time or effort for the petitioner to provide a series of well-organized 
and complete single-species petitions than it would to produce one 
well-organized and complete multi-species petition.
    Comment (31): One commenter asserted that requiring separate 
petitions to list species, or one or more subspecies or distinct 
population segment (DPS) of the same species will result in an increase 
to the Services' workload. Another commenter noted that if a petitioner 
seeks an action on a subspecies or DPS, the petition must present 
substantial scientific or commercial information indicating that the 
action may be warranted for each specified subspecies or DPS. The 
petitioner cannot rely upon general information regarding the species 
to support petitioned actions related to particular subspecies or DPS.
    Our Response: We agree with the comments regarding the petitioner's 
burden to provide specific information to support requested actions for 
all ``species'' included in the petition. We clarify in this final rule 
that a petition may address either a single species or any number and 
configuration of ``species'' as defined by the Act (including 
subspecies of fish or wildlife or subspecies or varieties of plants, 
and DPSs of vertebrate species) that consist of members of a single 
species. Please see a more detailed discussion of this issue in Summary 
of Changes to Previous Regulations at 50 CFR 424.14, Requirements for 
Petitions--Paragraph (c), below.
    We encourage members of the public to write their petition so that 
it addresses the appropriate rank (species, subspecies, variety, or 
population segment), but we also recognize that it is sometimes 
difficult to clearly determine the appropriate rank with the available 
information. We do not expect members of the public who may not have 
the expertise in taxonomy or genetics to make independent 
determinations on conflicting taxonomic assessments that may be 
available in the scientific literature. Along a similar line, if there 
is information to suggest that a vertebrate species occurs in 
population segments that may be discrete and significant (per the DPS 
Policy), then the petitioner may request that we consider one or more 
of these population segments as DPSs. Such a petitioner should include 
information to allow the Services to determine whether a given 
population segment of a vertebrate species may qualify as a DPS (i.e., 
whether it may be both discrete and significant to the taxon to which 
it belongs). Thus, when the appropriate rank for listing is not clear 
to a petitioner, it is reasonable for a petition to address multiple 
entities, potentially at various ranks, as long as they all refer to 
the same species. In any case, as noted above, the petitioner has the 
burden to demonstrate that any entity not already recognized as a 
``species'' under the Act may qualify as such, and to provide specific 
information to demonstrate that listing may be warranted.
    Comment (32): Commenters expressed the opinion that species sharing 
the same habitat types or facing the same threats, or having other 
commonalities in data should be allowed to be included in one petition 
for the sake of efficiency as to the preparation of petitions and 
review of petitions. Other commenters noted that, if the Services find 
the petition does not provide sufficient information for one species, 
the Services have the right to make a negative finding for that 
species.
    Our Response: The Act requires us to make findings for each 
petitioned species individually. Therefore, multi-species petitions do 
not save the Services time, even for species within similar habitat or 
facing similar threats. Even if species are found within similar 
habitats or face similar threats, we must be able to demonstrate the 
relevance of general information to each individual species in order to 
support our finding. The petition needs to clearly link the information 
provided to particular species and claims made. The petition needs to 
make the case for each individual species. However, nothing would 
prevent petitioners from submitting a batch of separate but related 
petitions for species occurring in the same habitats or experiencing 
similar threats. While petitioners might prefer to prepare a request 
that addresses species in groups for their own convenience, we find 
that the purposes of the statute are directly furthered by requiring 
petitions to present information species-by-species, because this will 
promote clarity and facilitate making the determinations required under 
the Act.
    Comment (33): Several commenters cited the 1994 Services' 
Interagency Policy for the Ecosystem Approach to the Endangered Species 
Act. In that document, the first stated policy of the Services is to 
``[g]roup listing decisions on a geographic, taxonomic, or ecosystem 
basis where possible.'' The commenters stated that the proposed rule 
does not acknowledge that these other ecosystem-based policies exist, 
or that there may be practical consequences stemming from these 
proposed changes.
    Our Response: While in some instances it has proven to be efficient 
for the Services to adopt an ecosystem-based approach to listing 
several species in the same ecosystem facing the same threats, we have 
found through experience that applying this approach to petitions has 
proven impractical. As noted above, we must make individual findings on 
each species for which we receive a petition. Species-specific 
petitions facilitate the Services' ability to make the determinations 
for each species efficiently. However, if the Services find that 
multiple species warrant listing in a specific ecosystem, then we can 
propose a listing rule setting out determinations for each of several 
species in that common ecosystem. The Services have found great 
efficiencies in resources and time in grouping determinations into a 
single rule, and that approach comports with our 1994 policy.

Paragraph (c)--All Relevant Data Certification

    Comment (34): We received many comments expressing concerns about 
the requirement for including all relevant data in petitions and 
certifying to that effect, as we originally proposed. The commenters 
raised various

[[Page 66469]]

concerns regarding the practicality and legality of this provision.
    Our Response: The Services appreciate the difficulty of determining 
whether all relevant information on a subject species has been 
gathered. Therefore, in our April 21, 2016 (81 FR 23448), revised 
proposed rule, we removed this requirement, and instead require 
petitioners to include a ``detailed narrative justification for the 
recommended administrative action that contains an analysis of the 
information presented,'' and recommend that petitioners provide a 
``complete, balanced representation of the relevant facts, including 
information that may contradict claims in the petition.'' In availing 
themselves of the petition process, petitioners seek to direct the 
Services' focus and resources to particular species. They should be 
forthcoming as to the known, relevant facts so that the Services have 
an accurate basis from which to evaluate the merits of the petition 
while making efficient use of its focus and resources.
    Comment (35): Several commenters expressed support for the 
provision requiring submitters to include all relevant data in 
petitions and to certify that they have done so, because it would 
provide supporting and refuting information and avoid limiting the 
Services to consideration of only biased information. Other commenters 
support the provision authorizing the Services to reject petitions if 
they do not meet the ``all relevant data'' requirement.
    Our Response: We realize that it would be difficult to provide all 
relevant data, and difficult to assess (and certify) that all 
information concerning a species has been discovered; for example, not 
all species information is publicly available, and research for many 
species is ongoing. Therefore, we have revised this final rule so that 
we encourage petitioners to provide a complete, balanced presentation 
of facts, including those which may tend to refute or contradict claims 
in the petition. However, that is not part of the essential information 
that is required in all petitions. Rather, it is one of the factors 
that the Services will consider when making the 90-day finding on the 
petition. This change is to encourage prospective petitioners to 
include in the petition a complete, balanced presentation of facts for 
the Services to evaluate in the 90-day finding and, if the finding is 
substantial, to consider in a species status assessment, without 
establishing it as an essential requirement that could unduly burden 
petitioners.
    We are revising the regulations to clearly communicate the 
essential information that is required in all petitions (Sec.  
424.14(c)), and identified the specific information which will help the 
Services in reaching their finding (Sec.  424.14(d) and (Sec.  
424.14(e)). The Services retain discretion to consider a request to be 
a petition and process a petition where the Services determine there 
has been substantial, but not full technical, compliance with the 
relevant requirements (see discussion under Responses to Requests--
Paragraph (f), in Summary of Changes to Previous Regulations at 50 CFR 
424.14, below).
    Comment (36): A commenter noted that petitioners need to let the 
Services know what sources were consulted. If an obvious source is 
missing or used incorrectly, then the Services should be able to 
quickly and efficiently reject the petition.
    Our Response: Under the revised regulations, requests for agency 
action must contain electronic or hard copies of supporting materials, 
or appropriate excerpts or quotations from those materials, to qualify 
as petitions. Therefore, the Services are not required to consider 
claims for which cited source materials are not included with the 
petition. The Services will review this information to ensure 
compliance with the provisions set forth in this rule, and will take 
into consideration the extent to which the source materials included 
with the petition support a complete, balanced presentation of the 
facts, in any 90-day findings on petitions.
    Comment (37): A commenter stated that there is a lack of peer-
reviewed science in petitions. Further, data in petitions should be 
reviewed by the affected States' wildlife agencies using local 
information, science, and observations to corroborate the findings 
before the data could be used in a petition.
    Our Response: We encourage petitioners to conduct a review of the 
peer-reviewed literature on the species at issue as thoroughly as 
possible in order to ensure the petition is well-supported. While State 
review of petitions and their supporting information would be helpful, 
it would be impractical to require this during the time frame 
associated with our making 90-day findings. However, should the 
Services make a substantial 90-day finding, States and members of the 
public will have an opportunity to review and provide comments on 
source materials used in the petition at that time, as well as provide 
additional information.
    Comment (38): A commenter stated that the removal of the proposed 
requirement that petitioners coordinate with States before submitting a 
petition also removes the element of cooperation that was being 
fostered through the original proposal. Anything the Services can do to 
foster increased dialogue between petitioners, other interest groups 
and State agencies engaged in wildlife conservation will ultimately be 
for the benefit of the species.
    Our Response: By requiring the notification of States at least 30 
days prior to submission of a petition, it is the Services' intention 
both to inform, and to foster the cooperation of, State partners while 
balancing the desire for State coordination with the required 
timeframes associated with petition findings and the rights of 
petitioners. This change provides a role for State agencies that the 
current regulations do not have. We agree that communication and 
collaboration between State agencies or other interested parties and 
the Services generally helps further the conservation of species. State 
agencies may send the Services any information relevant to a petition 
after they have been notified of a petition's pending submission. In 
order for the information to be available to be considered as context 
for the petition, it should be submitted in a timely fashion.

Paragraph (c)--Other Requirements

    Comment (39): A commenter stated the requirement of proposed Sec.  
424.14(b)(6) (Sec.  424.14(c)(6) in this rule), concerning providing 
electronic or hard copies of supporting material) could become 
burdensome and quite expensive for petitioners. Additionally, the 
Services should clarify that the provisions of proposed Sec.  
424.14(b)(6) would cover only sources that the petitioners choose to 
rely on for their petitions. The commenter further suggested revising 
proposed Sec.  424.14(b)(8) to: ``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, to the extent that petitioners have this information.''
    Our Response: Copies of source material cited in support of a 
petitioned action are key information needed by the Services to 
evaluate a petition efficiently and effectively. The Services are not 
required to search out source materials not provided in the petition to 
find justification for claims in the petition. Therefore, it is the 
petitioner's responsibility to provide justification for the claims in 
the detailed narrative; this responsibility includes providing the 
source material on which they base their claims. These sources may be 
provided in hard copy or in electronic form. Most

[[Page 66470]]

petitioners opt to provide source materials electronically, which saves 
mailing and printing costs and provides an efficient way to include 
this essential part of a petition to the Services.
    Further, a robust petition should provide a balanced presentation 
of facts, including those which may be contradictory. Including such 
information and source material demonstrates that the petitioner has 
diligently investigated the important issues addressed in their 
petition and not merely compiled an unrepresentative sample of 
information. Including contradictory information also gives the 
petitioner the opportunity to offer their analysis or explanation as to 
why that contradictory information is not conclusive.
    Finally, the suggested language regarding requiring geographic 
range and range State information is already covered in this rule at 
Sec.  424.14(c)(8), and would be redundant. This is important 
information to include in a petition, and we do not think it 
unreasonable to make this a requirement under Sec.  424.14(c)(8).
    Comment (40): A commenter stated that the Services should carefully 
consider the implications of requiring petitioners to include 
``electronic or hard copies of supporting materials (e.g., 
publications, maps, reports, letters from authorities) cited in the 
petition.'' Petitioners often cite publications that are available only 
through paid databases that restrict the distribution and use of those 
publications through copyright law. Because publications appended to 
listing petitions are presumably accessible to the public (e.g., 
through Freedom of Information Act (FOIA; 5 U.S.C. 552) requests), 
there may be conflicts between the supporting materials requirement and 
the legal restrictions under which petitioners obtain certain 
publications.
    Our Response: We have clarified in section (c)(6) of the final 
regulations that petitioners may provide either full copies of 
supporting materials or appropriate excerpts or quotations that support 
the assertions in the petition. Where a petitioner believes a source 
material to be protected by copyright laws, they should consider 
including limited excerpts or quotations from such material that they 
believe support their statements. This will fulfill the petitioners' 
obligation to present information to support the statements in the 
petition, without creating potential conflicts with copyright 
protections. Where materials are subject to copyright protection, the 
Services may not be able to obtain such materials.
    Comment (41): A commenter stated forcing petitioners to append 
information from the States interferes with a petitioner's rights under 
the APA because it no longer allows for a balanced presentation of 
information to the Federal Government.
    Our Response: Based on public comments on our May 21, 2015, 
proposed rule (80 FR 29286), we published a revised proposed rule (81 
FR 23448; April 21, 2016) removing the requirement that petitioners 
must include information from States in their petitions. As a result, 
in this final rule, we clarify that petitioners should include 
information from various sources in support of their requests, and we 
require that copies of the cited source information be included with 
submitted requests, in order for the Services to be able to evaluate 
the claims in the petition. In determining whether the petition 
presents substantial information, the Services are not required to 
consider claims for which supporting materials are not included with 
the petition. In the past, we have found that that information in 
petitions can be incomplete, misrepresented, or one-sided. As a result, 
we have revised these regulations to encourage petitioners to provide a 
complete, balanced presentation of facts, including any information the 
petitioner is aware of that contradicts claims in the petition.
    Comment (42): A commenter noted that petitioners occasionally 
reference unpublished data. The proposed rules contain no criteria for 
use of and access to these data. We recommend the Services specify that 
such material is subject to the same requirements.
    Our Response: We agree that copies of all information used to 
support a petitioned action should be provided with the petition for 
the Services to consider and evaluate.

Paragraph (d)--Types of Information To Be Included in Petitions To 
List, Delist, or Change the Status of a Listed Species

    Comment (43): Some comments related to our definitions and usage of 
the terms ``substantial information'' and ``substantial scientific and 
commercial information.'' These comments included a suggestion to 
define the relevant terms in the first paragraph in which they appear 
and to be consistent in the use of the terminology throughout the rule.
    Our Response: We appreciate the comments. We have revised the text 
of this rule to reflect the specific language of the Act setting out 
the standard that applies to each type of petition. The standard that 
applies to petitions to list, delist, or reclassify a species is that 
the petition must present ``substantial scientific or commercial 
information'' indicating that the petitioned action may be warranted 
(Sec.  4(b)(3)(A)), whereas a petition to revise a critical habitat 
designation must present ``substantial scientific information'' (Sec.  
4(b)(3)(D)(i)). Note that the statute does use the term ``substantial 
information'' in Sec.  4(b)(3)(B) and and 4(b)(3)(D)(ii). In the final 
rule, we continue to define the relevant terms directly in the 
respective subsections setting out how we make findings on each type of 
petition. For example, our explanation of what we consider to be 
substantial scientific or commercial information appears in final Sec.  
424.14(h)(1)(i), because paragraph (h) explains the standards we use in 
making findings on petitions to list species, delist listed species, or 
reclassify listed species, and is therefore the most logical place for 
that explanation, even though the term is first used in Sec.  424.14(d) 
(which alludes to the standard that the Secretary must apply but 
primarily is setting out recommended content items).
    Comment (44): A commenter suggested changing proposed Sec.  
424.14(c)(3) (Sec.  424.14(d)(3) in this rule), concerning inclusion of 
magnitude and imminence of threats in the petition) by omitting the 
final clause and replacing it with: ``. . . including, where available, 
a description of the magnitude and imminence of the threats.''
    Our Response: The change the commenter is requesting is the 
addition of the condition ``where available'' with respect to including 
a description of the magnitude and imminence of threats to a species. 
Please note that the elements of Sec.  424.14(d) in this rule are not 
absolute requirements to qualify as a petition, but the Services' 
findings will depend, in part, on the degree to which the petition 
includes this type of information. The magnitude and imminence of 
threats are generally key determinants of whether a species may or may 
not warrant protection under the Act. Thus, although we would not 
reject a petition for not including information on magnitude and 
imminence of threats, our evaluation of whether the petition presents 
substantial information indicating that the petitioned action may be 
warranted would need to take into consideration the presence, the 
imminence, and the severity of threats. Therefore, we think it 
advisable to include in petitions information regarding the threat 
severity (magnitude) and the timing of those threats (currently 
occurring, imminent, in the foreseeable future, etc.).

[[Page 66471]]

Paragraph (e)--Information to Be Included in Petitions to Revise 
Critical Habitat

    Comment (45): Several commenters noted that the requirement of 
proposed Sec.  424.14(d)(6) for ``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,'' would be duplicative and indiscernible from the 
requirements of proposed Sec.  424.14(b) (Sec.  424.14(c) in this 
rule), and recommended proposed Sec.  424.14 (d)(6) not be adopted. 
Another commenter asked how ``a complete presentation of the relevant 
facts'' differs from a ``detailed justification for the recommended 
administrative action that contains an analysis of the information 
presented.''
    Our Response: Based on comments received on the original proposal, 
we revised our proposal to address these issues. Recognizing that it 
could be an undue burden to require petitioners to include all relevant 
information that is reasonably available, and certify to that effect, 
in this rule we have removed the certification requirement from the 
Sec.  424.14(c) list of essential requirements for all petitions. 
Section 424.14(c) retains the more-general essential requirement that 
all petitions include a detailed narrative justification for the 
recommended administrative action that contains an analysis of the 
information presented. The Services will reject petitions that do not 
meet this detailed-narrative requirement, but petitioners could still 
resubmit their petition after adding a detailed narrative in accordance 
with Sec.  424.14(c). In this rule, paragraphs (d) and (e) of Sec.  
424.14(d) and (e), on the other hand, do not prescribe essential 
requirements for all petitions, and instead identify factors that the 
Services will consider in making 90-day findings. One of these factors, 
set forth at Sec.  424.14(d)(5) and Sec.  424.14(e)(6), is the degree 
to which the petition includes ``[a] complete, balanced representation 
of the relevant facts, including information that may contradict claims 
in the petition.'' A request will not be rejected as a petition for 
failing to meet Sec.  424.14(d)(5) or Sec.  424.14(e)(6). It may be 
difficult for a non-scientist to locate and present all of the relevant 
facts completely, and, although the Services encourage petitioners to 
provide a balanced presentation of facts, there may not always be 
information contradicting claims made in the petition. As a result, the 
Services will consider this information, along with readily available 
information we may consult for context on the species and the requested 
action, when determining if the petition presents substantial 
information indicating that the petitioned action may be warranted.
    Comment (46): Many commenters noted the language of proposed Sec.  
424.14(d)(5) (Sec.  424.14(e)(5) in this rule) was inconsistent with 
the previous regulations at 50 CFR 424.12 in that the proposed petition 
regulations do not reference a ``determination'' that occupied areas 
are not enough for conservation of a species before moving on to 
consideration of unoccupied areas (e.g., limiting the designation of 
critical habitat to the species' current range would be inadequate to 
conserve the species).
    Our Response: This rule is consistent with the revised 50 CFR 
424.12 regulations that became effective on March 14, 2016 (81 FR 7414; 
February 11, 2016). The current 50 CFR 424.12(b) states ``Where 
designation of critical habitat is prudent and determinable, the 
Secretary will identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat.'' The Services are no longer 
required to consider whether a designation limited to the occupied 
areas would be sufficient before considering unoccupied areas. 
Therefore, no additional language is needed in the provision of Sec.  
424.14(e)(5) of this rule.
    Comment (47): A commenter stated that the requirement to describe 
the physical or biological features (PBFs) provides little value 
because the Services have already described them in the final critical 
habitat rule for the species.
    Our Response: In requests to revise critical habitat in occupied 
areas, it is essential to provide information on whether the PBFs are 
present or absent in those areas (see Sec.  424.14(e)(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 
the physical or biological features. . . .''). In some cases, 
petitioners may believe that we have misidentified or not included all 
PBFs, and that recognizing a different set of PBFs would lead to 
additional areas of occupied habitat qualifying for inclusion in a 
designation, or certain areas of the existing designation no longer 
qualifying. Similarly, PBFs may have moved (no longer present in one 
area, but more recently developed in others), or there may be newer 
information on a species' needs and, consequently, PBFs may change, 
PBFs previously identified may no longer be essential to the 
conservation of the species, or new PBFs may be identified. Therefore, 
the Services will consider petitions seeking to modify the description 
of PBFs in an original designation where recognizing a different set of 
PBFs would result in changes to the areas of occupied habitat that 
would qualify for inclusion. PBFs are analyzed in the course of 
developing designations, but it is the specific areas as shown on a map 
that are designated. Quite often scientific understanding of essential 
features advances after a designation is made, and the Services must 
consider the best available information when conducting section 7 
consultations, not just what was described at the time of designation. 
Thus, even without a rule revising a critical habitat designation, the 
Services will always consider the best available, current information 
about the essential PBFs and what makes them essential in the course of 
section 7 consultations. Petitions seeking to ``revise'' a list of 
features, with no consequential changes to areas of occupied habitat 
that are included in a designation, are thus both unnecessary and 
ineffective.
    Comment (48): A commenter suggested specific wording revisions to 
proposed Sec.  424.14(d)(5) (Sec.  424.14(e)(5) in this rule): ``For 
any areas petitioned to be added to critical habitat that were outside 
the geographical area occupied by the species at the time it was 
listed, information explaining: (1) Why the species' present range is 
inadequate to ensure its conservation; (2) why the petitioned area 
presently contains features essential to the conservation of the 
species; and (3) how the designation will impact, economically and 
otherwise, the use of the petitioned area for other purposes. For any 
areas petitioned to be 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 no longer 
essential to the conservation of the species.''
    Our Response: We appreciate the commenter's concern that unoccupied 
habitat not be added to an existing critical habitat designation 
without good reason, but choose to retain the proposed language at 
Sec.  424.14(e)(5): ``For 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,

[[Page 66472]]

information indicating why the petitioned areas are or are not 
essential for the conservation of the species.'' There are several 
reasons for this:
     In light of recent revisions to 50 CFR 424.12, the 
Services are not required to first consider whether a designation 
limited to present range is adequate to ensure conservation.
     This provision needs to address requests to add as well as 
remove unoccupied areas from a critical habitat designation.
     The language is consistent with the definition of critical 
habitat in the Act (16 U.S.C. 1532(5)(A)(ii)), which includes 
unoccupied areas, that is, ``specific areas outside the geographical 
area occupied by the species at the time it is listed in accordance 
with the provisions of section 4 of this Act, upon a determination by 
the Secretary that such areas are essential for the conservation of the 
species.'' Unlike the geographical areas occupied by the species at the 
time it is listed, unoccupied areas need not include the essential PBFs 
(see 16 U.S.C. 1532(5)(A) (i) of the Act). Therefore, it would be 
inconsistent with the Act to require such information in requests to 
revise unoccupied critical habitat.
     A determination as to whether unoccupied areas are 
essential for the conservation of the species is made by the Services, 
not the petitioner. However, it may be helpful if the petitioners 
include information indicating why the petitioned areas are or are not 
essential for the conservation of the species.

Paragraph (f)--Response to Requests

    Comment (49): A commenter stated the Services should accept 
petitions that make a good faith effort to comply with provisions of 
the regulations and not reject for minor procedural flaws. The Services 
should include a ``cure'' provision in which the Services alert the 
petitioner to flaws in the petition and the steps that must be taken to 
remedy them and allow a specified amount of time for the petitioner to 
fix the flaws. Unless petitioners are supplied with constructive 
feedback, this will greatly hamper the petition process.
    Our Response: In this rule at Sec.  424.14(f), the Services retain 
discretion to treat as a petition a request that the Services determine 
substantially complies with the relevant requirements. Therefore, it is 
unlikely that a request will be rejected for minor omissions. However, 
if the Services determine that the request does not meet the 
requirements set forth at Sec.  424.14(c), they will, as noted at 
paragraph Sec.  424.14(f)(1), within a reasonable timeframe, notify the 
sender and provide an explanation of the rejection. The petitioner will 
then be able to correct the request and resubmit to the Services at 
their convenience.
    Comment (50): Some commenters asked whether petitioners would be 
notified when a request is determined not to constitute a petition and 
given the reasons for such determination. As drafted, the proposed rule 
does not indicate the Services will notify petitioners of a compliant 
petition.
    Our Response: As noted above, submissions that do not qualify as 
petitions will be returned to the sender, along with a form letter or 
checklist describing what components are missing. However, for 
expediency, we will generally not notify petitioners of acceptance of 
petitions in a separate communication; in most cases, publication of 
the Services' 90-day findings will serve as such notifications.
    Comment (51): A commenter supported the deletion of the phrase ``in 
the agency's possession'' as it relates to information the Services may 
consider when analyzing a petition. In the past, the ``in the agency's 
possession'' requirement has been interpreted as the inability of the 
Services to even do a simple Internet search for helpful information 
after a petition has been received. The Services should not be limited 
to the use of information they have in their possession at the time 
they receive a petition. Such a limitation could lead to a 
``substantial'' 90-day finding, not because a species may be at risk, 
but simply because the petition presents a skewed or impartial view of 
the facts.
    Our Response: We agree. The phrase ``in the agency's possession'' 
was interpreted by some as meaning hard (paper) copies of information 
materials stored in agency office files at a physical location. Most 
information and data are now accessed and stored electronically. 
Therefore, it is appropriate for the Services to place petitions in 
context by consulting readily available information, such as 
information that is 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 (http://www.itis.gov), a 
database of scientifically credible taxonomic nomenclature information 
maintained in part by the Services. This rule allows the Services to 
use readily available information to provide context for the claims in 
the petition, even should it be received after the time the petition is 
filed, up to the time we make the finding. Please see Findings on a 
Petition to List, Delist, or Reclassify--Paragraph (h) under Summary of 
Changes to Previous Regulations at 50 CFR 424.14, below, for further 
discussion.

Paragraph (h)--Findings on Petitions To List, Delist, or Reclassify

    Comment (52): Several commenters expressed concerns about the 
information standard we use in evaluating petitioned requests. Some 
specifically noted the addition of the term ``credible'' in definition 
of the substantial scientific or commercial information standard in 
proposed Sec.  424.14(g) (Sec.  424.14(h) in this rule). One commenter 
expressed concern that the Services would define credible as precluding 
certain categories of information or data, such as traditional 
ecological knowledge or gray literature that may not be published or 
available in traditional scientific journals. Conversely, another 
commenter noted that the Services should only consider peer-reviewed 
literature provided in a petition to be credible, sound science.
    Our Response: Section 4(b)(3)(A) of the Act directs the Services to 
make a finding as to whether a petition presents ``substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted.'' This is the threshold required of the 
information provided in a petition, and is the standard we use at Sec.  
424.14(h) in this rule. The Act notably does not require that the 
Services make 90-day findings on the basis of the ``best scientific and 
commercial data available.'' Nevertheless, we are cognizant that 
positive ``substantial information'' findings require that the Services 
devote additional time and resources towards completing status 
assessments for those species, as well as 12-month findings. Therefore, 
we have concluded that it would be more efficient and would better 
advance the purposes of the Act to clarify for petitioners that--for a 
petition to indicate that the petitioned action may be warranted, and 
thereby merit this additional expenditure of the Services' resources--
the information provided in the petition must, at a minimum, be 
credible. ``Credible scientific or commercial information'' may include 
all types of data, such as peer-reviewed literature, gray literature, 
traditional ecological knowledge, etc.
    Comment (53): A commenter stated that the Secretaries still appear 
to have broad discretion in establishing the definition of ``reasonable 
person.'' The commenter asserts that the definition leaves open the 
very type of arbitrary or

[[Page 66473]]

capricious litigation the Service is attempting to resolve by citing 
the reasoning in the Congressional Conference Report. The courts 
typically defer to the agencies' interpretation of scientific 
information. Therefore, petitioners are left without remedy when placed 
in disagreement with the Secretary's conclusion.
    Our Response: The Act requires the Services to consider whether a 
petition presents substantial information to demonstrate that the 
requested action may be warranted, but does not define ``substantial 
information.'' The Services therefore have discretion to adopt a 
reasonable interpretation of this foundational standard that furthers 
the statutory purposes and reflects the scientific context in which the 
Service makes decisions.
    In the interest of providing greater clarity and transparency to 
the public, we have promulgated this rule to clarify and more 
thoroughly explain what is required in a petition and how the Services 
make their findings. We thus explain that the ``substantial scientific 
or commercial information'' standard (which applies to listing, 
delisting, and reclassification petitions) 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. (We similarly interpret the ``substantial scientific 
information'' standard that applies to petitions seeking critical 
habitat revisions.) This interpretation clarifies that the Services 
must evaluate petitions in their capacity as biologists with the 
scientific expertise to investigate whether a species may be imperiled. 
As such, the Services analyze and decide whether petitions present 
``substantial information'' consistent with the analyses and decisions 
that a hypothetical reasonable biologist would make. In addition, this 
hypothetical reasonable scientist would need to be impartial and 
approach the question as he or she would any scientific inquiry. 
Finally, the hypothetical person evaluating the information in the 
petition would need to perceive that the information is credible; 
conclusions drawn in the petition without the support of credible 
scientific or commercial information will not be considered 
``substantial information.'' These concepts are in no way new to the 
Services' practice; this is how we have and must evaluate petitions. 
Further, we believe this clarification aligns with the House Conference 
report, which 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 (1982), 
reprinted in 1982 U.S.C.C.A.N. 2860, 2862) [emphasis added]. Finally, a 
``reasonable person'' standard is commonly used in legal contexts.
    If a person disagrees with a Service's finding, in the case of 90-
day petition findings in which the Service finds there is substantial 
information indicating that the petitioned action may be warranted (in 
other words, not a final agency action), that person could provide 
additional information regarding the species to help inform future 
agency actions such as the subsequent 12-month finding. In the case of 
not-substantial 90-day findings (which are final agency actions), one 
remedy would be to submit a new petition with further justification and 
rationale for the requested action. Also, final agency actions are 
judicially reviewable.
    Comment (54): Proposed Sec.  424.14(g)(1)(i) (Sec.  424.14(h)(1)(i) 
in this rule) expands on the ``substantial scientific or commercial 
information'' standard of the Act. Under the existing petitions 
regulation, ``substantial scientific or commercial information'' means 
``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.'' 
Now, the Services add to this ``a reasonable person conducting an 
impartial scientific review would conclude that the action proposed in 
the petition may be warranted.'' Normally, reasonable people do not, in 
the course of their daily lives, conduct impartial scientific reviews.
    Our Response: Section 424.14(h)(1)(i) clarifies and expands on 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 may be warranted. (We similarly define the 
``substantial scientific information'' standard that applies to 
petitions seeking revisions to critical habitat at 424.12(i)(1)(i).) As 
discussed in response to Comment 53, the Services have the discretion 
and a need to adopt a reasonable interpretation of this key standard, 
which is not defined in the statute. We have included the term 
``credible,'' because--for a petition to indicate that the standard for 
the petitioned action may have been met, and thereby merit the 
additional expenditure of the Services' resources--the information 
provided in the petition must, at a minimum, be credible. In other 
words, the Services must evaluate whether the information in the 
petition is substantiated and not mere speculation or opinion. Only 
those claims or conclusions drawn in the petition with the support of 
credible scientific or commercial information should be considered 
``substantial information.''
    The addition of ``conducting an impartial scientific review'' to 
the reasonable person standard for what constitutes ``substantial 
scientific and commercial information'' similarly clarifies to 
petitioners the context against which the Services will necessarily 
evaluate petitions. The Services must evaluate petitions on the basis 
of the scientific validity of the request; that is, impartially 
evaluate whether there is a scientific basis for the requested action, 
and not just unsubstantiated claims. Because the context for this 
action involves evaluating scientific information, it is appropriate 
and necessary to take as our reference a person conducting an impartial 
scientific review. There is nothing in the Act to suggest that 90-day 
findings should be evaluated based on what persons lacking scientific 
background would conclude, and to adopt a generic standard would not 
further the purposes of the Act or reflect how the Services must and do 
actually go about evaluating petitions.
    Comment (55): Several commenters raised questions regarding the 
Services' treatment of a subsequent petition, including the definitions 
and interpretations of the terms ``considered'' and ``sufficient''; how 
our determination would relate to other reviews, such as 5-year 
reviews; and how new information or new analyses, such as models, would 
be evaluated.
    Our Response: In this rule, Sec.  424.14(h)(1)(iii) addresses 
situations in which the Services have already made a finding on or 
conducted a review of the listing status of a species, and, after such 
finding or review, receive a petition seeking to list, delist, or 
reclassify that species. The provisions at Sec.  424.14(h)(1)(iii) do 
not state or imply that such petitions will be rejected outright; 
indeed, as noted below, we will consider all requests that meet the 
requirements of Sec.  424.14(c) to be petitions, and we will evaluate 
all petitions and make findings on them. Instead, we include this 
provision to provide prospective petitioners greater predictability and 
clarity, by making clear that we must evaluate such petitions in light 
of the previous

[[Page 66474]]

findings or determinations. Thus, if no new information or analysis is 
provided in such a petition, the outcome will likely (but not always) 
be a not-substantial 90-day finding.
    To clarify some of the terms we used, by using the term 
``considered'' in the phrase ``new information not previously 
considered,'' we mean that information or analysis was evaluated in a 
previous finding, status review, or listing determination. 
``Sufficient'' new information is that information or analysis which 
would lead a reasonable person conducting an impartial scientific 
review to conclude that the action proposed in the petition may be 
warranted, despite the previous review or finding.
    With respect to prior listing determinations, the prospective 
petitioner may review the final listing rule and any supporting 
documentation to see what information was considered and evaluated. 
Five-year status reviews are not published in the Federal Register but 
are posted on the Services' Web sites. FWS status reviews and Federal 
Register documents are posted on the species profile pages maintained 
in FWS' Environmental Conservation Online System (ECOS). Species 
profiles may be accessed by searching on the species name at http://www.ecos.fws.gov/ecp. NMFS' documents can be found at http://www.nmfs.noaa.gov. In conducting status reviews, the Services may 
reevaluate data they already considered in previous status reviews. 
Petitioners may similarly present a new analysis of existing data in 
support of their requests, and the Services will evaluate such requests 
on that basis. A petitioned request could be based on discovery of an 
error in research regarding information previously considered by the 
Services.
    Unless such a petition provides different data, or a different 
analysis or interpretation of, or errors discovered in, the data, model 
or analytic methodology used in a previous finding, review, or 
determination, the conclusions may be the same, and the Services may 
find that such a petition does not provide substantial information 
indicating that the petitioned action may be warranted.
    We make the distinction that, in the case of prior reviews that led 
to final agency actions (such as final listings, 12-month not-warranted 
findings, and 90-day not-substantial findings), a petition would 
generally be presumed not to provide substantial information unless the 
petition provides new information or a new analysis not previously 
considered in the final agency action. On the other hand, if the 
previous status review did not result in a final agency action, the 
petition would not be required to overcome the presumption that, unless 
it includes information or analysis that was not considered in the 
previous status review, it generally will not present substantial 
information indicating that the petitioned action may be warranted.
    Comment (56): One commenter stated that the ``new information'' 
requirement in the revised proposed rule (81 FR 23448; April 21, 2016) 
could severely limit the ability to file delisting petitions that 
assert flaws in the Services' prior consideration of information. 
Petitioners should be able to assert that information the Services 
previously considered was misused, misrepresented, or misinterpreted, 
or that the original data for the species' classification were in error 
as the basis for delisting.
    Our Response: This rule will not limit the ability to file 
delisting or other petitions. In cases where petitioners request an 
outcome that differs from the outcome reached in a previous Service 
finding or determination, the rule simply recognizes that the courts 
apply a presumption that agency actions are valid and reasonable, and 
therefore the petitioner should provide new or additional information 
or a new analysis not previously considered. We add this requirement to 
prevent the petition process from being used inefficiently--in effect, 
to voice disagreement with a previous determination by one of the 
Services without providing any new information or analysis relevant to 
the question at issue, and instead of using the appropriate judicial 
forum to challenge the previous determination directly. An appropriate 
showing may include an explanation of how information used in the 
previous analysis was misused, misrepresented, or misinterpreted. Also, 
this rule does not prevent a petitioner from requesting a delisting of 
a listed entity based on error in classification of that listed entity.

Paragraph (h)--Use of Information in Agency Files

    Comment (57): Several commenters support the agencies' use of 
additional information as described in the proposed rule, as long as it 
is clear that such information is readily available and does not serve 
as a justification for the Service to actively supplement the petition 
or initiate new data collection processes, contracts or research as 
part of the 90-day finding process.
    Our Response: 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; therefore, 
the Services should not seek to supplement petitions. However, in 
determining whether the petition presents substantial scientific or 
commercial information, it may be appropriate to consider readily 
available information to provide context to the information the 
petition presents. It is not the intent of the Services to initiate any 
data collection or research methods, nor is there time for the Services 
to conduct such methods in the 90-day petition finding process.
    Comment (58): A commenter stated that, to the extent that the 
Service intends to review and rely upon readily available information, 
there first must be a public notice and availability of such 
information for review and comment by the public. Otherwise, the public 
would not be made aware of such information and afforded the ability to 
comment on the accuracy, sufficiency and relevance of such information.
    Our Response: The statute does not provide for a public comment 
process at the 90-day stage of review of petitions. The Services 
provide public notice and request information when publishing a 
positive 90-day finding and initiating a 12-month status review in 
response to a petition, but it is neither appropriate nor feasible to 
do this prior to making a 90-day finding due to statutory time 
constraints. Although the Services may consider readily available 
information to provide context in which to evaluate the information 
presented in a petition, the 90-day petition finding is based on the 
information provided in the petition. A 90-day finding is an initial 
assessment of information provided in the petition and, when 
appropriate, information readily available to the Services. When our 
90-day findings are published in the Federal Register, the petition and 
supporting information, and any other information we may have relied 
upon for our finding, is posted online and made available to the 
public. If we find the petition presents substantial information that 
the action may be warranted, we announce the initiation of a status 
review and request information from the public, which may include 
feedback on the accuracy, sufficiency, and relevance of any information 
considered in making the finding. For petitions that are found to be 
not substantial, we publish the finding and make available the petition 
and any supporting information considered for the finding. The public 
is invited to submit information on any species at any time, which may 
include

[[Page 66475]]

evaluation of information considered for any finding.
    Comment (59): A commenter raised a question regarding proposed 
Sec.  424.14(g)(1)(ii) (Sec.  424.14(h)(1)(ii) in this rule), asking 
how can the Services state that ``the intent is not to solicit new 
information,'' when the proposed regulations at Sec.  424.14(b)(10) 
would require the petitioner to gather ``all relevant information'' 
about a species, as well as information from every State where a 
species could possibly be found.
    Our Response: In this final rule, we have removed the proposed 
requirements to which the commenter refers (i.e., that petitioners pre-
coordinate with States and certify that they have provided all relevant 
data). In this rule, Sec.  424.14(h)(1)(ii) describes the type of 
readily available additional information the Services may consider to 
place a petition in context when making their findings. Section 
424.14(h)(1)(ii) states that, in reaching the initial finding on the 
petition, the Services will consider information submitted by the 
petitioner and may also consider information readily available at the 
time the determination is made. This provides a balanced approach that 
will ensure that the Services may take into account the information 
available to us to provide context for assessing the petition, without 
opening the door to the type of wide-ranging information request more 
appropriate for a status review. The intent of this approach is for the 
Services to be able to use readily available information to provide 
context in which to evaluate the information presented in the petition, 
not for the Services to solicit new information on which to make a 
finding.

Comment on National Environmental Policy Act

    Comment (60): A commenter stated that the Services must prepare an 
environmental impact statement (EIS) for the proposed rule because the 
net effect of the changes to the existing regulations will be fewer 
species being protected under the Act, more extinctions, and 
consequently more ecosystems upon which endangered species depend being 
degraded and lost.
    Our Response: We do not anticipate that the changes to the 
regulation set forth in this rule will result in fewer species being 
listed. By providing clearer requirements and expectations to 
prospective petitioners, the quality and completeness of petitions will 
likely improve, leading to more accurate 90-day findings and 
consequently more efficient use of limited resources.
    As discussed in greater detail in the National Environmental Policy 
Act Determination section below and in the Environmental Action 
Statement (available at http://www.regulations.gov, under Docket Nos. 
FWS-HQ-ES-2015-0016 and DOC 150506429-5429-01), we have concluded that 
this final rule revising the regulations at 50 CFR 424.14 falls within 
categorical exclusions from NEPA under both applicable DOI regulations 
and NOAA guidance. Specifically, the regulation falls within the DOI 
categorical exclusion for ``[p]olicies, directives, regulations, and 
guidelines: That are of an administrative, financial, legal, technical, 
or procedural nature.'' 43 CFR 46.210(i). It also falls within the 
substantially identical NOAA categorical exclusion for ``policy 
directives, regulations and guidelines of an administrative, financial, 
legal, technical or procedural nature.'' See NOAA Administrative Orders 
(NAOs) 216-6A (section 6.01) and 216-6 (section 6.03c.3(i)).
    We do not anticipate that this final rule will change the outcomes 
of the Services' 90-day findings as to whether petitions present 
substantial information indicating that the petitioned actions may be 
warranted, because it is administrative and procedural in nature, and 
is designed merely to clarify and streamline the petition process 
consistent with statutory language, legislative history, and case law. 
Moreover, the revised regulations do not limit Secretarial discretion, 
because they do not mandate particular outcomes in future decisions 
regarding whether a request should be accepted as a petition or whether 
a petition presents substantial information that a petitioned action 
may be warranted.
    Although the revised regulations expand on what information must be 
included in a request for it to qualify as a petition under section 
4(b)(3) of the Act, they also provide for a process to inform 
petitioners when the request fails to meet the required criteria and 
allow discretion for the Services to consider a request that 
substantially complies with the required elements even if there is not 
full technical compliance. The Services will, within a reasonable 
timeframe, notify the petitioners of the required information that is 
missing. This will allow the submitters to cure any deficiencies before 
resubmitting the petition to the Services, should they choose to do so. 
Therefore, we do not expect that this additional procedural requirement 
will affect the substantive outcomes of 90-day findings on well 
supported petitions; rather, it will make the Services' consideration 
of petitions more efficient.

Summary of Changes to Previous Regulations at 50 CFR 424.14

General

    Throughout the regulation text we replace the title ``the 
Secretary'' or ``the Secretaries'' with ``the Services,'' as the 
Services are the formal designees of the Secretaries of Commerce and 
the Interior who have the delegated authority to implement the Act.
    We also change the overall organization of the regulations. Instead 
of organizing all aspects of the regulations into the two categories of 
petitions under the Act (petitions to list, delist, or reclassify a 
species are discussed in current paragraph (b), and petitions to revise 
critical habitat are discussed in current paragraph (c)), the new 
regulations are organized by function. Requirements that apply to all 
petitions under the Act appear first (in new paragraphs (a), (b), (c)), 
followed by the list of factors the Services will consider in making 
findings on the two categories of petitions, respectively, (in new 
paragraphs (d) and (e)). Similarly, procedures that apply to all 
petitions under the Act are set out first (in new paragraphs (f) and 
(g) (and also (k)), followed by procedures that apply to the different 
categories of petitions (in new paragraphs (h) and (i) (and also at 
(j), which provides procedures for APA petitions)). We move some of the 
specific provisions from the previous regulations accordingly to fit 
better into this overall structure.

Ability To Petition--Paragraph (a)

    Section 424.14(a) retains the substance of the first sentence of 
the current section, stating that any interested person may submit a 
written petition to the Services requesting that one of the actions 
described in Sec.  424.10 be taken for a species.

Notification of Intent To File Petition--Paragraph (b)

    In our April 21, 2016, revised proposed rule (81 FR 23448), we 
included in Sec.  424.14(b)(9) the requirement that, at least 30 days 
prior to filing a petition, the petitioners provide State agencies 
responsible for the management and conservation of wildlife with 
notice, by letter or electronic mail, of their intent to file a 
petition with the Services, and that copies of these letters or 
communications be included with the petition when it is submitted to 
the Services. In finalizing this rule, we

[[Page 66476]]

realized that the requirement to provide notice to State agencies did 
not belong with the rest of paragraph (b), because that paragraph 
outlined a list of information to be included with a petition 
submission, not actions required of a petitioner before filing. 
Therefore, for clarity and consistency, we have reformatted the 
regulation by adding a new paragraph (b) requiring that petitioners 
notify States before filing petitions. The list of required information 
that was formerly contained in paragraph (b) has now been redesignated 
as paragraph (c). All subsequent paragraphs have been appropriately 
redesignated.
    Therefore, new Sec.  424.14(b) requires that for a petition to 
list, delist, or reclassify a species, or for petitions to revise 
critical habitat, petitioners must provide notice to the State agency 
or agencies primarily 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. Petitioners must notify the 
State agency of their intent to file a petition, with either Service, 
at least 30 days prior to petition submission. If the State agency has 
data or information on the subject species that it would like to share 
with the Services, the agency may submit the data and information 
directly to FWS or NMFS. This provision will allow the Services to 
benefit from the States' considerable experience and information on the 
species within their boundaries, because the States would have an 
opportunity to submit to the Service any information they have on the 
species early in the petition process. The Services, in formulating an 
initial finding, may use their discretion to consider any information 
provided by the States (as well as other readily available information, 
including any information they have received from other interested 
parties before the initial finding) as part of the context in which 
they evaluate the information contained in the petition.
    Also in Sec.  424.14(b), we added the following sentence for 
clarification to the language of the revised proposed rule (81 FR 
23448; April 21, 2016): ``This notification requirement shall not apply 
to any petition submitted pertaining to a species that does not occur 
within the United States.'' This addition is to clarify that this 
provision does not apply to foreign species that do not occur in the 
United States, and further that, consistent with the definition in the 
Act at 16 U.S.C. 1532(17), ``States'' refers only to the States, the 
District of Columbia, and the territories and commonwealths of the 
United States.

Requirements for Petitions--Paragraph (c)

    As stated earlier, new Sec.  424.14(c) incorporates the substance 
of the revised proposal's (81 FR 23448; April 21, 2016) Sec.  
424.14(b), setting forth a number of 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). These include some of 
the minimum requirements from the second and third sentences of current 
paragraph (a). As with Sec.  424.14(b) in the revised proposal, new 
Sec.  424.14(c) also expands upon the list of requirements for a 
petition, drawing in part from the provisions in current paragraph 
(b)(2).
    New Sec.  424.14(c)(2) requires that a petition address only one 
species. However, we revised the language from this statement in the 
revised proposal (81 FR 23448; April 21, 2016) to clarify that a 
petition addressing only one species could include any configuration of 
members of that single species as defined by the Act (the full species, 
one or more subspecies or varieties, and, for vertebrate species, one 
or more distinct population segments (DPSs)). The taxonomic 
(biological) classification system is hierarchical, which means a taxon 
of the rank of species also includes all subspecies or varieties, if 
any, under that species. Similarly, applying the concept of 
hierarchical entities to the Act's use of the term ``species,'' a 
vertebrate species would also include any potential DPSs. Therefore, a 
single-species petition may address (a) one species of fish, wildlife, 
or plant; (b) one or more subspecies (variety) of fish, wildlife, or 
plant; or (c) one or more population segments of any vertebrate species 
(which FWS or NMFS will evaluate per the Services' Policy Regarding the 
Recognition of District Vertebrate Population Segments (61 FR 4722; 
February 7, 1996) (DPS Policy) as to whether it qualifies as a DPS). As 
such, the petitioner need not file separate petitions to address 
different hierarchical configurations of the same 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. That has at times 
made it difficult to follow the logic of the petition. Because 
petitioners can submit multiple petitions, this requirement does not 
place any limitation on the ability of an interested party to petition 
for section 4 actions, but does ensure that petitioners organize the 
information in a way (on a species-by-species basis) that is necessary 
to inform the species-specific determinations required by the Act and 
will allow more efficient action by the Services.
    The first six requirements (Sec.  424.14(c)(1) through (c)(6)) 
apply to each type of petition recognized under section 4(b)(3) of the 
Act. The first four requirements (Sec.  424.14(c)(1) through (c)(4)) 
were all contained in the previous regulations at Sec.  424.14(a) and 
(b). The fifth and sixth requirements (Sec.  424.14(c)(5) and (c)(6)) 
clarify and expand on the previous provisions at Sec.  424.14(b)(2)(iv) 
regarding a petition's supporting documentation.
    At Sec.  424.14(c)(5), we use the word ``readily'' before ``locate 
the information cited in the petition, including page numbers or 
chapters as applicable.'' The Services should not have to search 
through reference material to locate specific information; the petition 
should provide clear, specific citations that allow the supporting 
information to be located readily.
    The seventh requirement (Sec.  424.14(c)(7)) applies only to 
petitions to list, delist, or reclassify a species from an endangered 
species to a threatened species (i.e, downlisting) or from a threatened 
species to an endangered species (i.e., uplisting), and requires that 
information be presented to demonstrate that the subject entity is or 
may be a ``species'' as defined in the Act (which includes a species, a 
subspecies or variety, or a distinct population segment of a vertebrate 
species that FWS or NMFS may determine to be a DPS). We note that 
currently-listed species are generally recognized by the Services as 
species under the Act; therefore, petitions regarding already-listed 
species need only refer to that species, except when the petition seeks 
a change in the delineation of a ``species'' under the Act (for 
example, to divide a species into more than one species, delist or 
reclassify a portion of a listed species, a change in how FWS or NMFS 
delineates a DPS, or otherwise reconfigure the current listing). 
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 of a vertebrate species.
    The eighth requirement (Sec.  424.14(c)(8)), applies only to 
petitions to list a species, and to petitions to delist or reclassify a 
species in cases

[[Page 66477]]

where the species' range has changed since listing, and requires that 
information be included in the petition describing the current and 
historical range of the species, including range States or countries, 
as appropriate. It is important that the Services have information on 
both the current and historical range of the species; for example, a 
historical range that is significantly larger than the current range 
would show range contraction, which may be an important consideration. 
The previous regulations at Sec.  424.14(b)(2)(ii) identified as one of 
the factors the Services will consider in evaluating listing, 
delisting, and reclassification petitions the degree to which the 
petition contains a detailed narrative describing ``past and present . 
. . distribution of the species. . . .'' New Sec.  424.14(c)(8) now 
expands on this requirement and includes it as one of the essential 
requirements for a petition.
    The ninth requirement, Sec.  424.14(c)(9) relates to the 
requirement of Sec.  424.14(b) that petitioners must provide notice to 
the State agency 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, at least 30 days prior to 
petition submission. Copies of the letter or electronic communication 
from the petitioner notifying the State agency of the petitioner's 
intent to file a petition with either Service must be included with the 
petition when it is submitted; such copies are considered a required 
part of the petition.
    Please note that any decision to provide the protections of the Act 
to a species in an expedited manner under the Act's section 4(b)(7) 
(i.e., emergency listing) is at the discretion and determination of the 
Services upon a review of the best available scientific information. In 
any case, because the Services retain discretion to consider a petition 
that has only substantially complied with the requirements for filing 
petitions, they retain discretion to consider such petitions in 
appropriate circumstances, such as where it appears to the Services 
that expedited listing may be warranted. The Services also have 
discretion to simply treat them as petitions seeking the species 
listing on a non-emergency basis.
    The Services apply Sec.  424.14(c) to identify those requests that 
contain all the elements of a petition, so that consideration of the 
request will be an efficient and wise use of agency resources. A 
request that fails to meet these elements may 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. However, as 
discussed further below, the screening out of petitions due to missing 
required information does not constitute a petition finding under 
Section 4(b)(3)(A) of the Act. In such a situation, the Services will 
explain to petitioners what information was missing so that the 
petitioners can have an opportunity to cure the deficiencies in a new 
petition and obtain a finding on the petition under section 4(b)(3)(A) 
of the Act.

Information To Be Included in Petitions To List, Delist, or Change the 
Status of a Listed Species--Paragraph (d)

    Section 424.14(d) describes the types of information that are 
relevant to the Services' determinations as to whether the petition 
provides substantial scientific or commercial information that the 
petitioned action may be warranted. Petitioners are advised that 
compliance with paragraph (c) is the minimum necessary to require the 
Services to consider their petition, but to provide a more complete and 
robust petition, petitioners should include as much of the types of 
information listed in paragraph (d) as possible, to the extent that it 
is relevant to the type of petition being filed.
    The informational elements for listing, delisting, and 
reclassification petitions in Sec.  424.14(d)(1) through (d)(3) are 
rooted in the substance of current paragraphs (b)(2)(ii) and (iii). 
These elements 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).
    Section 424.14(d)(3) refers to inclusion in a petition of a 
description of the magnitude and immediacy of threats. This type of 
information regarding the severity of threats on the species or its 
habitat is generally needed in conducting status reviews, and is 
therefore relevant to determining whether the petition presents 
substantial information indicating that the petitioned action may be 
warranted. In addition, this information may assist FWS in assessing 
the listing priority number of species if FWS subsequently makes a 
warranted-but-precluded finding under FWS' 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 uplisting requests. While such information may also 
be useful to NMFS, NMFS has not adopted the 1983 FWS guidance, and so 
would not apply that guidance to petitions within its jurisdiction.
    Section 424.14(d)(4) refers to inclusion in a petition of 
information on any conservation actions that States, or other parties, 
have initiated or that are ongoing, that benefit the subject species. 
Because this information is relevant to an ultimate determination of 
whether or not listing a species is warranted (the 12-month finding 
standard), it is indirectly relevant and may be useful in evaluating 
whether the action may be warranted (the 90-day finding standard).
    We add a new Sec.  424.14(d)(5), stating that a petitioner should 
provide a complete, balanced presentation of facts pertaining to the 
petitioned species, which would include any information the petitioner 
is aware of that contradicts claims in the petition. The intent of this 
provision is not to place an unnecessary burden on petitioners, but 
rather to encourage petitioners to avoid presenting in a petition only 
information that supports the claims in the petition. This is 
particularly true for information publicly available from affected 
States or Tribes, who often have important and relevant species data 
and information, as well as special status and concerns with respect to 
implementation of the Act. Fostering greater inclusion of such data 
will help ensure that any petition submitted to the Services is based 
on reliable and unbiased information and does not consist simply of 
selected data. We find that, to further the purposes of the Act, 
petitioners should be forthcoming as to the known, relevant facts so 
that the Services have an accurate basis from which to evaluate the 
merits of the petition. Fostering a more transparent and informed 
petition process will ensure that the Services' resources are directed 
productively and not diverted to matters that only superficially appear 
meritorious.
    Section 424.14(d) does not include 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 have deleted these two sentences 
because, at the initial stage, the Services focus their evaluation of 
the information to make a finding on whether the petition presents 
substantial information indicating that

[[Page 66478]]

the species may warrant listing, delisting, or reclassification. If the 
Services find that the petition presents substantial information that 
listing may be warranted and proceeds to initiating a status review, 
the Services will seek information concerning critical habitat at that 
time.

Information To Be Included in Petitions To Revise Critical Habitat--
Paragraph (e)

    Section 424.14(e) sets forth the kinds of information a petitioner 
should include in a petition to revise a critical habitat designation. 
The Service'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 new Sec.  424.14(e) are an expanded and 
reworded version of the substance of current paragraph (c)(2). Section 
424.14(e)(1) advises that, to help 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. The petition should discuss the benefits of 
designating additional areas, or the reasons to remove areas from an 
existing designation. Additionally, including maps with sufficient 
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.
    New Sec.  424.14(e)(2), (e)(3), and (e)(4) are drawn from the 
substance of current paragraphs (c)(2)(i) and (ii), which have been 
reorganized and clarified. Sections 424.14(e)(2), (e)(3), and (e)(4) 
clarify that several distinct pieces of information are helpful in 
analyzing 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. If a petitioner believes that the already-
identified physical or biological features in an existing critical 
habitat designation have been incorrectly identified, the petition 
should provide information supporting the recognition of a different 
set of features and explain how the different set of features would 
lead to identification of different areas as qualifying for inclusion 
in a designation of occupied critical habitat. (See also our response 
to comment 47). In other words, petitioners requesting revisions to 
critical habitat designations need not provide information on which 
physical or biological features are essential unless the relevant areas 
were occupied at the time of listing and the petitioners contend that 
some features recognized at the time of designation as essential are 
not, or that features not recognized in the designation as essential 
should be.
    Also, paragraphs (e)(3) and (e)(4) of Sec.  424.14 detail the 
informational needs the Services will have in considering whether the 
petition presents substantial information indicating that it may be 
warranted to add to, or remove from, the critical habitat designation 
specific areas occupied by the species at the timing of listing. 
Further, we clarify that ``features'' specifically refers to the 
``physical or biological features,'' as described in our recent 
revision to 50 CFR 424.12 (81 FR 7414; February 11, 2016). Further, to 
use the same language as the revised 50 CFR 424.12, we replace the 
clause ``(including features that allow the area to support the species 
periodically, over time)'' with ``(including characteristics that 
support ephemeral or dynamic habitat conditions).''
    Section 424.14(e)(5) describes 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 for the conservation 
of the species.'' See section 3(5)(A)(ii) of the Act, 16 U.S.C. 
1532(5)(A)(ii).
    Section 424.14(e)(6) mirrors the revised Sec.  424.14(d)(5), 
stating that a petitioner should provide a complete, balanced 
presentation of facts pertaining to the species' potential critical 
habitat, which would include any information the petitioner is aware of 
that contradicts claims in the petition. This provision recognizes 
that, in availing themselves of the petition process, petitioners seek 
to direct the Services' focus and resources to particular species.

Responses to Petitions--Paragraph (f)

    Section 424.14(f) sets out the possible responses the Services may 
make to requests. Section 424.14(f)(1) clarifies that a request that 
fails to satisfy the mandatory elements set forth in paragraph (c) will 
generally be returned by the Services with an explanation of the reason 
for the rejection, but without a determination on the merits of the 
request. In light of the volume of petitions received by the Services, 
it is critical that we have the option to identify in a reasonable 
timeframe 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 these revised regulations 
provides additional notice to petitioners and will result in better-
quality petitions and more efficient and effective (in terms of species 
conservation) use of agency resources.
    The Services retain discretion to determine whether a request 
constitutes a petition and to process that petition where the Services 
determine there has been substantial compliance with the relevant 
requirements. The Services need to maintain some discretion in order to 
apply common-sense principles in accepting or rejecting petitions. 
Petitions will not likely be rejected for minor omissions of the 
requirements set forth at Sec.  424.14(c). The Services also recognize 
that not all elements will be as crucial for particular kinds of 
petitions (e.g., petitions to delist a species due to recovery need not 
provide information on the validity of the entity; currently-listed 
species can be assumed to be valid entities as the Services routinely 
review such matters for listed species under our jurisdiction), and 
maintain discretion regarding acceptance of petitions accordingly.
    We would apply such discretion judiciously. If most of the cited 
source materials have been provided, the Services may accept the 
petition and may evaluate the petition without considering those claims 
for which the source materials have not been provided. Thus, even if 
the petition is accepted, the absence of cited source materials may 
make it more likely to result in a finding that the petition does not 
present substantial information. To avoid rejection of the petition or 
an increased likelihood of a ``not substantial'' finding, we encourage 
the petitioner to include all cited materials with the petition, as 
this is an important step in substantiating the petitioner's claims. It 
should not present a hardship to provide the source material that the 
petitioner used in preparing the petitioned request.
    Section 424.14(f)(1) states that the Services will determine 
whether or not a request contains all of the requisite information for 
qualifying as a petition ``within a reasonable timeframe.'' Although 
this does not establish a specific timeframe, the Act already 
prescribes a number of binding, enforceable deadlines for making 
petition findings, and we do not intend to create a new one with this 
provision. Our goal is to minimize the amount of

[[Page 66479]]

time it will take the Services to review a request and determine 
whether it qualifies as a petition. We anticipate that the 
determination can be made within weeks of receiving the request.
    The revision to Sec.  424.14(f)(2) confirms that a request that 
complies with the mandatory requirements will be acknowledged (as 
required under current 424.14(a)); however, we have removed the 
requirement to provide the acknowledgement in writing within 30 days of 
the receipt of the petition. We make this revision to allow the 
Services greater flexibility in the means and timing of communicating 
with the petitioner its determination of whether the petition complies 
with the mandatory requirements. This revision also reflects the fact 
that, in light of current electronic means of communication, it is more 
efficient for petitioners to refer to the Services' online lists of 
active petitions, which are accessible to the public at http://ecos.fws.gov/ecp/report/table/petitions-received.html and http://www.nmfs.noaa.gov, or on individual species profile pages accessed by 
searching for the species at https://www.ecos.fws.gov and http://www.nmfs.noaa.gov. We find that continuing the practice of sending 
confirmations via formal letter no longer provides the most effective 
or efficient means of communicating to all interested parties regarding 
the status of petitions.

Supplemental Information--Paragraph (g)

    We clarify in Sec.  424.14(g) that a petitioner submitting 
supplemental information later in time from their original petition has 
the option to specify whether or not the information being submitted is 
intended to be part of the petition. Specifying that the supplemental 
information is intended to be part of the petition will have the 
consequence that the Services will be obligated to consider it in the 
course of reaching a finding on the petition. It will also, however, 
have the related consequence that the timeframes under section 4 of the 
Act for when findings are due will be reset and begin to run anew from 
the time the supplemental information is received. In contrast, if the 
petitioner does not specify that the information is intended to be part 
of the petition, the Services will treat the supplemental information 
as they would any readily available information from any source. As we 
have explained, the Services have discretion to consider such 
information as appropriate to place the petition in context, but are 
not required to consider such information. Because the Act requires 
that the 90-day finding evaluate whether the petition presents 
substantial information to indicate that the petitioned action may be 
warranted, the submission of new information intended to supplement a 
petition is in effect a new petition. It is thus reasonable and 
necessary to reset the timeframes when new information intended to 
supplement the petition is received. The final regulation thus strikes 
a balance that is fair to petitioners by giving them the choice to 
determine the consequences of submitting new information.
    This provision will ensure the Services have adequate time to 
consider the supplemental information relevant to a petition and that 
the process is not interrupted by receipt of new information that may 
fundamentally change the evaluation. Also, by providing clear notice of 
this process, the Services are encouraging petitioners to assemble all 
the information 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 (h)

    Section 424.14(h) explains 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. Section 424.14(h)(1) is drawn 
largely from current paragraph (b)(1), with some revisions. Most 
significantly, Sec.  424.14(h)(1)(i) clarifies the substantial-
information standard for 90-day findings 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 may be warranted. Thus it makes clear 
that 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 and threats, likely does not provide substantial 
information. As demonstrated by the Scott's riffle beetle case 
(WildEarth Guardians v. Salazar, No. 10-cv-00091-WYD (D. Colo. Sept. 
14, 2011)), the inclusion of this statement clarifies, but does not 
alter, the Services' standard for evaluating 90-day findings. In that 
case, FWS made 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, nor 
did it indicate a population decline. The court rejected a merits 
challenge to that petition finding, and 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(h)(1)(ii), we have added a new sentence to clarify 
that the Services are not required to consider any supporting materials 
cited by the petitioner if the cited documents, or relevant excerpts or 
quotations from the cited documents, are not provided in accordance 
with paragraph (c)(6) of this section. Additionally, we clarify that 
the Services may consider information provided in a petition in the 
context of other information that is readily available at the time it 
makes a 90-day finding. For purposes of Sec.  424.14(h)(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 should not 
seek to supplement petitions. (See the Columbian sharp-tailed grouse 
case (WildEarth Guardians v. U.S. Secretary of the Interior, No. 4:08-
CV-00508-EJL-LMB (D. Idaho Mar. 28, 2011)), which provided, among other 
things, that the petitioner has the burden of providing substantial 
information.) In order for the Services to find that a petition 
presents substantial information indicating that the petitioned action 
may be warranted, the petition should itself present that information. 
The Services need not resort to supplemental information to bolster, 
plug gaps in, or otherwise supplement a petition that is inadequate on 
its face.
    However, in determining whether a petition is substantial or not, 
the Services must determine whether the claims are credible. Therefore, 
it is appropriate for the Services to consider readily available 
information that provides context in which to evaluate whether or not 
the information that a petition presents is timely and up-to-date, and 
whether it is reliable or representative of the available information 
on that species, in making its determination as to whether the petition 
presents substantial information.
    The precise range of information considered will vary with 
circumstances. 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

[[Page 66480]]

action was arbitrary or capricious in light of the scientific and 
commercial information available concerning the petitioned action'' 
[emphasis added] (H.R. Conf. Rep. No. 97-835, at 20, reprinted in 1982 
U.S.C.C.A.N. 2860, 2862). 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 the subset of available information that is 
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 readily available to us 
as context for the information provided in a petition, without opening 
the door to the type of wide-ranging survey more appropriate for a 
status review.
    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 our 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 would 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 have 
readily available and would routinely consult in the course of their 
work. It is reasonable for the Services to be able to examine the 
information and claims included in a petition in light of readily 
available scientific information prior to committing limited Federal 
resources to the significant expense of a status review. Some examples 
of readily available information that the Services may use include 
information sent to the Services by State wildlife agencies or other 
parties, State fish and wildlife databases, the Integrated Taxonomic 
Identification System (ITIS), the International Union for the 
Conservation of Nature (IUCN), the Intergovernmental Panel on Climate 
Change (IPCC), stock assessments, and fishery management plans (this 
list is not all-inclusive).
    The information the Services may use may not only be stored in the 
traditional hard copy format in files, but may also be electronic data 
files as well, or stored on Web sites created by the Services or other 
Web sites routinely accessed by the Services. As noted, the range of 
information considered readily available will vary with circumstances, 
but could include the information physically held by any office within 
the Services (including, for example, 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 ITIS (http://www.itis.gov), a database of 
scientifically credible taxonomic nomenclature information maintained 
in part by the Services.
    Section 424.14(h)(1)(iii) addresses situations in which the 
Services have already made a finding on or conducted a review of the 
listing status of a species, and, after such finding or review, receive 
a petition seeking to list, delist, or reclassify that species. Such 
prior reviews constitute information readily available to the Services 
and provide important context for evaluation of petitions. Although the 
substantial-information standard applies to all petitions under section 
4(b)(3)(A) of the Act, the standard's application is influenced by the 
context in which the finding is being made. The context of a finding 
after a status review and determination is quite different from that 
before any status review has been completed. Further, prior reviews 
represent a significant expenditure of the Services' resources, and it 
would be inefficient and unnecessary to require the Services to revisit 
issues for which a determination has already been made, unless there is 
a basis for reconsideration. In the case of prior reviews that led to 
final agency actions (such as final listings, 12-month not warranted 
findings, and 90-day not-substantial findings), a petition generally 
would not be found to provide substantial information unless the 
petition provides new information or a new analysis or interpretation 
not previously considered in the final agency action. By ``new'' we 
mean that the information was not considered by the Services in the 
prior determination or that the petitioner is presenting a different 
interpretation or analysis of that data.
    These revisions are not meant to imply that the Service's finding 
on a petition addressing the same species as a prior determination 
would necessarily be negative. For example, the more time that has 
elapsed from the completion of the prior review, the greater the 
potential that substantial new information has become available. As 
another example, the Services may have concluded a 5-year status review 
in which we find that a listed species no longer warrants listing, but 
we have not as yet initiated a rulemaking to delist the species (in 
other words, have not yet undertaken a final agency action). If we 
receive a petition to delist that species, in which the petitioner 
provides no new or additional information than was considered in the 5-
year status review, we would likely still find that the petition 
presents substantial information that the petitioned action may be 
warranted.
    Paragraph (h)(2) is substantially the same as current paragraph 
(b)(3). Among other changes, we added new language clarifying the 
standard for making expeditious-progress determinations in warranted-
but-precluded findings, including (in paragraph (h)(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. In this rule, we are redesignating current 
paragraph (b)(4) as paragraph (h)(3), although we have removed the 
reference in the current language that ``no further finding of 
substantial information will be required,'' as it merely repeats 
statutory language.
    In Sec.  424.14(h)(2), we replace the conditional clause ``If a 
positive finding is made'' (as we used in our proposed rule published 
on May 21, 2015 (80 FR 29286)) with ``If the Services find that the 
petition presents substantial information indicating that the 
petitioned action may be warranted,'' for clarity, and to avoid 
introducing an additional, undefined term. We also add clarity in Sec.  
424.14(h)(2), by adding the phrase, ``At the conclusion of the status 
review,'' before the reference to the obligation of the Services to 
make a 12-month finding.

Findings on a Petition To Revise Critical Habitat--Paragraph (i)

    Paragraph (i) explains the kinds of findings that the Services may 
make on

[[Page 66481]]

a petition to revise critical habitat. Paragraph (i)(1) is essentially 
the same as current paragraph (c)(1), and describes the standard 
applicable to the Service's finding at the 90-day stage. Please refer 
to the discussion of the ``substantial information'' standard discussed 
in the description of Sec.  424.14(h)(1), above. Paragraph (i)(2) 
specifically acknowledges, consistent with the statute, that a 12-month 
determination on a petition that presents substantial information 
indicating that a revision to critical habitat may be warranted 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, but 
provides with respect to subsequent revision of such habitat only that 
the Services ``may, from time-to-time thereafter as appropriate, revise 
such designation'' [emphasis added] (16 U.S.C. 1533(a)(3)(A)(ii)).
    The Services' broad discretion to decide when it is appropriate to 
revise critical habitat is 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) of the 
Act 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, 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 Secretaries (acting through the Services) determine how they intend 
``to proceed with the requested revision'' and promptly publish notice 
of such intention in the Federal Register. The differences in these 
subsections indicates that the statute does not mandate that the 12-
month finding procedures for petitions to list, delist, or reclassify 
species be followed in determining how to proceed with petitions to 
revise critical habitat. See Sierra Club v. U.S. Fish and Wildlife 
Service, 930 F. Supp. 2d 198 (D.D.C. 2013) (leatherback sea turtle) 
(12-month determinations on petitions to revise are committed to the 
agency's discretion by law, and thus unreviewable under the 
Administrative Procedure Act); and 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) 
(noting that ``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 used in the listing-petition provisions is useful for 
explaining their determination at the 12-month stage of how they intend 
to proceed 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 determination of how the Services intend to proceed 
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 requirements of section 4(b)(3)(B)(iii) or 
section 4(b)(3)(C) (establishing requirements to make particular 
findings, to implement a monitoring system, etc.).
    Although the Services have discretion to determine how to proceed 
with a petition to revise critical habitat, the Services think that 
certain factors regarding conservation and recovery of the species at 
issue 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 
listed species at issue; 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.
    At Sec.  424.14(i)(2), compared to our revised proposal of the rule 
(81 FR 23448; April 21, 2016), we add the introductory clause, ``If the 
Services find that the petition presents substantial information that 
the requested revision may be warranted,'' for clarity.

Petitions To Initially Designate Critical Habitat and Petitions for 
4(d), 4(e), and 10(j) Rules--Paragraph (j)

    Paragraph (j) is substantially the same as current paragraph (d), 
which refers to petitions to ``designate critical habitat or adopt 
special rules.'' In this regulation, for clarity, we expressly refer to 
the types of petitions that are covered, which are those requesting 
that the Services initially designate critical habitat or adopt rules 
under sections 4(d), 4(e), or 10(j) of the Act.

Withdrawn Petitions--Paragraph (k)

    Paragraph (k) describes 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

[[Page 66482]]

process or the annual candidate review to further evaluate the status 
of the species, or elect to consider the issue at any time.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of Management 
and Budget's Office of Information and Regulatory Affairs (OIRA) will 
review all significant rules. The OIRA has determined that this rule is 
not significant.
    E.O. 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 rule is consistent with E.O. 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 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. Pursuant to section 605(b), the 
Chief Counsel for Regulation, Department of Commerce, certified to the 
Chief Counsel for Advocacy, Small Business Administration that this 
final rule, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. The Director of the U.S. 
Fish and Wildlife Service also certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    This rule will 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 notifying 
State(s)) and effort (providing complete petitions), we do not expect 
this will prove to be a hardship, economically or otherwise. Further, 
following a review of entities that have petitioned the Services, we 
find that most are individuals or organizations that are not considered 
small business entities. And while small entities may choose to 
petition the Services, any economic effects would be minimal because 
any increase in costs (such as notification to States or electronic 
filing of the petition versus hardcopy should they choose) will be 
nominal, i.e., not a significant economic impact. As a result, we have 
determined that these revised regulations will not result in a 
significant economic impact on a substantial number of small entities.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this rule will 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 will 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 will 
not be affected because the rule will not place additional mandates on 
any city, county, or other local municipalities.
    (b) This rule will 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 rule is not a ``significant regulatory 
action''' under the Unfunded Mandates Reform Act. This rule will impose 
no obligations on State, local, or tribal governments.

Takings (E.O. 12630)

    In accordance with E.O. 12630, this rule will not have significant 
takings implications. This rule will not pertain to ``taking'' of 
private property interests, nor will it directly affect private 
property. A takings implication assessment is not required because this 
rule (1) will not effectively compel a property owner to suffer a 
physical invasion of property and (2) will not deny all economically 
beneficial or productive use of the land or aquatic resources. This 
rule will substantially advance a legitimate government interest 
(conservation and recovery of endangered and threatened species) and 
will not present a barrier to all reasonable and expected beneficial 
use of private property.

Federalism (E.O. 13132)

    In accordance with E.O. 13132, we have considered whether this rule 
will have significant Federalism effects and have determined that a 
federalism summary impact statement is not required. This rule pertains 
only to the petition process under the Endangered Species Act, and will 
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 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 rule will clarify the petition process under the 
Endangered Species Act.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments,'' November 6, 2000), the 
Department of the Interior Manual at 512 DM 2, the Department of 
Commerce (DOC) Tribal Consultation and Coordination Policy (May 21, 
2013), DOC Departmental Administrative Order (DAO) 218-8, and NOAA 
Administrative Order (NAO) 218-8 (April 2012), we have considered 
possible effects of this final rule on federally recognized Indian 
Tribes. Following an exchange of information with tribal 
representatives, we have determined that this rule, which

[[Page 66483]]

clarifies the general process for submission and review of petitions, 
does not have ``tribal implications'' as defined in Executive Order 
13175. This rule will assist petitioners in providing complete 
petitions and enhance the efficiency and effectiveness of the petition 
process to support species conservation. We will continue to 
collaborate with Tribes on issues related to federally listed species 
and their habitats and work with them as we implement the provisions of 
the Act. See Joint Secretarial Order 3206 (``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act,'' June 5, 1997).

Paperwork Reduction Act of 1995 (PRA)

    This final rule contains information collections for which the 
Office of Management and Budget (OMB) approval is required under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We (National 
Marine Fisheries Service and U.S. Fish and Wildlife Service, Services) 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number. OMB has approved the information collection 
requirements associated with this rule and assigned OMB Control Number 
1018-0165, which expires September 30, 2019.
    Any interested person may submit a written petition to the Services 
requesting to add a species to the Lists of Endangered or Threatened 
Wildlife and Plants (Lists), remove a species from the Lists, change 
the listed status of a species, or revise the boundary of an area 
designated as critical habitat. OMB has approved the following 
information collection:
    Petitions. Sec.  424.14(c) of this rule specifies the information 
that must be included in petitions.
    Notification of States. Sec.  424.14(b) requires that petitioners 
must notify applicable States of their intention to submit a petition 
to list, delist, or change the status of a species, or to revise 
critical habitat. This notification must be made at least 30 days prior 
to submission of the petition. Copies of the notification letters must 
be included with the petition.
    The burden table below includes information for both NMFS and FWS. 
Based on the average number of species per year over the past 5 years 
regarding which FWS and NMFS were petitioned, we estimate the average 
annual number of petitions received by both Services combined to be 50 
(25 for FWS and 25 for NMFS). Because each petition will be limited to 
a single species under the regulations, the average number of species 
included in petitions over the past 5 years may be more accurate than 
the average number of petitions as a gauge of the number of petitions 
we are likely to receive going forward. This estimate of the number of 
petitions the Services will receive in the future may be generous. We 
estimate that there will be a need for a petitioner to notify an 
average of 10 States per petition. Many species are narrow endemics and 
may only occur in one State, but others are wide-ranging and may occur 
in many States. However, we are erring on the side of over-estimating 
the potential number of States petitioners will need to notify on 
average.
    OMB Control No: 1018-0165.
    Title: Petitions, 50 CFR 424.14.
    Service Form Number(s): None.
    Description of Respondents: Individuals, businesses, or 
organizations.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Estimated Annual Number of Respondents: 50.
    Frequency of Collection: On occasion.

----------------------------------------------------------------------------------------------------------------
                                                                                    Completion
                                                                   Total annual      time per      Total annual
                      Activity/requirement                           responses       response      burden hours
                                                                                      (hours)
----------------------------------------------------------------------------------------------------------------
Petitioner--prepare and submit petitions........................              50             120           6,000
Petitioner--notify States.......................................             500               1             500
                                                                 -----------------------------------------------
    Total.......................................................             550  ..............           6,500
----------------------------------------------------------------------------------------------------------------

    Total Annual Nonhour Cost Burden: $1,000.00, based on $20 per 
petition (for materials, printing, postage, data equipment maintenance, 
etc).
    During the proposed rule stage, we solicited comments for a period 
of 30 days on the information collection requirements. We received one 
comment.
    Comment: The commenter agreed that most petitions can be prepared 
in approximately 120 hours, but more complex petitions can take much 
more time to assemble the information within the petition.
    Response: We agree that in some cases, time to prepare a petition 
submission may be considerably greater than our estimate, while in 
other cases, it may be less. We believe 120 hours is a reasonable 
estimate for the average petition, acknowledging that there could be a 
small proportion of submissions that require more or less time. We have 
retained our estimate of 120 hours. All comments on the rule are 
addressed in the preamble above.
    The public may comment, at any time, on any aspect of the 
information collection requirements in this rule and may submit any 
comments to the Information Collection Clearance Officer, U.S. Fish and 
Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-
3803 (mail); or hope_grey@fws.gov (email).

National Environmental Policy Act

    We have analyzed this regulation in accordance with the criteria of 
the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), 
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 NOAA Administrative 
Orders (NAOs) 216-6A and 216-6. Our analysis includes evaluating 
whether this action is administrative, legal, technical, or procedural 
in nature and, therefore, a categorical exclusion applies.
    Following a review of the changes to the regulations at 50 CFR 
424.14 and our requirements under NEPA, we find that the categorical 
exclusion found at 43 CFR 46.210(i) applies to these regulation 
changes. At 43 CFR 46.210(i), the Department of the Interior has found 
that the following category of actions would not individually or 
cumulatively have a significant effect on the human environment and 
are, therefore, categorically excluded from the requirement for 
completion of an environmental assessment or environmental impact 
statement: ``Policies, directives, regulations, and guidelines: That 
are of an administrative, financial, legal, technical, or procedural 
nature.''

[[Page 66484]]

    NAO 216-6 contains a substantially identical exclusion for ``policy 
directives, regulations and guidelines of an administrative, financial, 
legal, technical or procedural nature'' (Sec.  6.03c.3(i)).
    At the time DOI's categorical exclusion was promulgated, there was 
no preamble language that would assist in interpreting what kinds of 
actions fall within the categorical exclusion. However, in 2008, the 
preamble for a language correction to this categorical exclusion gave 
as an example of an action that would fall within the exclusion the 
issuance of guidance to applicants for transferring funds 
electronically to the Federal Government. In addition, an example of a 
recent Federal Register notice invoking this categorical exclusion was 
a final rule that established the timing requirements for the 
submission of a Site Assessment Plan or General Activities Plan for a 
renewable energy project on the Outer Continental Shelf (78 FR 12676; 
February 26, 2013). These regulations fell within the categorical 
exclusion because they affected the process inherent to an agency 
action rather than the agency action itself, or clarified, rather than 
changed, the substance of the agencies' analyses or outcomes of their 
decisions.
    The changes to the petition regulations are similar to these 
examples of actions that are fundamentally administrative, technical, 
and procedural in nature. The changes to the regulations at 50 CFR 
424.14 clarify the procedures for submitting and evaluating petitions 
under Section 4 of the Act. In addition, the regulation revisions 
provide transparency for the practices and interpretations that the 
Services have adopted and applied as a result of case law or pragmatic 
considerations. The Services also make minor wording and formatting 
revisions throughout the regulations to reflect plain-language 
standards. The regulation revision as a whole carries out the 
requirements of Executive Order 13563 because, in this rule, the 
Services have analyzed existing rules retrospectively ``to make the 
agencies' regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''
    We also considered whether any ``extraordinary circumstances'' 
apply to this situation, such that the DOI categorical exclusion would 
not apply. See 43 CFR 46.215 (``Categorical Exclusions: Extraordinary 
Circumstances''). We determined that no extraordinary circumstances 
apply. Although the final regulations would revise the implementing 
regulations for section 4 of the Act to provide greater clarity to 
petitioners on information that is likely to improve efficiency and 
accuracy in processing petitions, the effects of these proposed changes 
would not ``have significant impacts on species listed, or proposed to 
be listed, on the List of Endangered or Threatened Species or have 
significant impacts on designated Critical Habitat for these species,'' 
as nothing in the revised regulations is expected to determine or 
change the outcome of any status review of a species or any decision on 
a petition to revise critical habitat. Furthermore, the revised 
regulations do not ``[e]stablish a precedent for future action or 
represent a decision in principle about future actions with potentially 
significant environmental effects'' (43 CFR 46.215(e)). None of the 
extraordinary circumstances in 43 CFR 46.215(a) through (l) apply to 
the revised regulations.
    Nor would the final regulations trigger any of the extraordinary 
circumstances of NAO 216-6. This rule does not involve a geographic 
area with unique characteristics, is not the subject of public 
controversy based on potential environmental consequences, will not 
result in uncertain environmental impacts or unique or unknown risks, 
does not establish a precedent or decision in principle about future 
proposals, will not have significant cumulative impacts, and will not 
have any adverse effects upon endangered or threatened species or their 
habitats (Sec.  5.05c).
    We completed an Environmental Action Statement for the Categorical 
Exclusion for the revised regulations in 50 CFR 424.14.

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

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

List of Subjects in 50 CFR Part 424

    Administrative practice and procedure, Endangered and threatened 
species.

Regulation Promulgation

    Accordingly, we amend part 424, subchapter A of chapter IV, title 
50 of the Code of Federal Regulations, as set forth below:

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. Add Sec.  424.03 to read as follows:


Sec.  424.03  Has the Office of Management and Budget approved the 
collection of information?

    The Office of Management and Budget reviewed and approved the 
information collection requirements contained in subpart B and assigned 
OMB Control No. 1018-0165. We use the information to evaluate and make 
decisions on petitions. We may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number. You may send comments on the 
information collection requirements to the Information Collection 
Clearance Officer, U.S. Fish and Wildlife Service, at the address 
listed at 50 CFR 2.1(b).

0
3. 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 Services requesting that one of the actions described 
in Sec.  424.10 be taken for a species.
    (b) Notification of intent to file petition. For a petition to 
list, delist, or reclassify a species, or for petitions to revise 
critical habitat, petitioners must provide notice to the State agency 
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. This notification must be made at least 30 days 
prior to submission of the petition. This notification requirement 
shall not apply to any petition submitted pertaining to a species that 
does not occur within the United States.
    (c) 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 name and any common name of a species of fish or 
wildlife or plants that is the subject of the petition. Only one 
species may be the subject of a petition, which may include, by 
hierarchical extension based on taxonomy and the Act, any subspecies or 
variety, or (for vertebrates)

[[Page 66485]]

any potential distinct population segments of that species;
    (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 justifying the recommended administrative 
action that contains an analysis of the information presented;
    (5) Literature citations that are specific enough for the Services 
to readily locate the information cited in the petition, including page 
numbers or chapters as applicable;
    (6) Electronic or hard copies of supporting materials, to the 
extent permitted by U.S. copyright law, or appropriate excerpts or 
quotations from those materials (e.g., publications, maps, reports, 
letters from authorities) cited in the petition;
    (7) For a petition to list, delist, or reclassify 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, or for a petition to delist 
or reclassify a species in cases where the species' range has changed 
since listing, information on the current and historical geographic 
range of the species, including the States or countries intersected, in 
whole or part, by that range; and
    (9) For a petition to list, delist or reclassify a species, or for 
petitions to revise critical habitat, copies of the notification 
letters or electronic communication which petitioners provided to the 
State agency or agencies 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 currently occurs.
    (d) Information to be included in petitions to add or remove 
species from the lists, or change the listed status of a species. The 
Service's determination as to whether the petition provides substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted will depend in part on the degree to which the 
petition includes the following types of 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 and to what extent 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., the 
species is currently in danger of extinction or is likely to become so 
within the foreseeable future), and, if so, how high in magnitude and 
how imminent the threats to the species and its habitat are;
    (4) Information on adequacy of regulatory protections and 
effectiveness of conservation activities by States as well as other 
parties, that have been initiated or that are ongoing, that may protect 
the species or its habitat; and
    (5) A complete, balanced representation of the relevant facts, 
including information that may contradict claims in the petition.
    (e) Information to be included in petitions to revise critical 
habitat. The Services' determinations as to whether the petition 
provides substantial scientific information indicating that the 
petitioned action may be warranted will depend in part on the degree to 
which the petition includes the following types of 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 a description of the benefits of designating or 
not designating these specific areas as critical habitat. Petitioners 
should include sufficient supporting information to substantiate the 
requested changes, which may include GIS data or boundary layers that 
relate to the request, if appropriate;
    (2) A description of 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 one or more of 
the physical or biological features (including characteristics that 
support ephemeral or dynamic habitat conditions) 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 the physical or biological features (including 
characteristics that support ephemeral or dynamic habitat conditions) 
that are essential to the conservation of the species, or that these 
features do not require special management considerations or 
protection;
    (5) For 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) A complete, balanced representation of the relevant facts, 
including information that may contradict claims in the petition.
    (f) Response to petitions. (1) If a request does not meet the 
requirements set forth at paragraph (c) of this section, the Services 
will generally reject the request without making a finding, and will, 
within a reasonable timeframe, notify the sender and provide an 
explanation of the rejection. However, the Services retain discretion 
to process a petition where the Services determine there has been 
substantial compliance with the relevant requirements.
    (2) If a request does meet the requirements set forth at paragraph 
(c) of this section, the Services will acknowledge receipt of the 
petition by posting information on the respective Service's Web site.
    (g) Supplemental information. If the petitioner provides 
supplemental information before the initial finding is made and states 
that it is part of the petition, 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.
    (h) 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 Services will make a finding as to 
whether the petition presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. The 
Services will publish the finding in the Federal Register.
    (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

[[Page 66486]]

support of credible scientific or commercial information will not be 
considered ``substantial information.''
    (ii) In reaching the initial finding on the petition, the Services 
will consider the information referenced at paragraphs (c), (d), and 
(g) of this section. The Services may also consider information readily 
available at the time the determination is made. The Services are not 
required to consider any supporting materials cited by the petitioner 
if the cited document is not provided in accordance with paragraph 
(c)(6) of this section.
    (iii) The ``substantial scientific or commercial information'' 
standard must be applied in light of any prior reviews or findings the 
Services have made on the listing status of the species that is the 
subject of the petition. Where the Services have already conducted a 
finding on, or review of, the listing status of that species (whether 
in response to a petition or on the Services' own initiative), the 
Services will evaluate any petition received thereafter seeking to 
list, delist, or reclassify that species to determine whether a 
reasonable person conducting an impartial scientific review would 
conclude that the action proposed in the petition may be warranted 
despite the previous review or finding. Where the prior review resulted 
in a final agency action, a petitioned action generally would not be 
considered to present substantial scientific and commercial information 
indicating that the action may be warranted unless the petition 
provides new information not previously considered.
    (2) If the Services find that a petition presents substantial 
information indicating that the petitioned action may be warranted, the 
Services will commence a review of the status of the species concerned. 
At the conclusion of the status review and within 12 months of receipt 
of the petition, the Services will make one of the following findings:
    (i) The petitioned action is not warranted, in which case the 
Service shall publish a finding in the Federal Register.
    (ii) The petitioned action is warranted, in which case the Services 
shall 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 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 any 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 (h)(2)(iii) of this 
section with regard to any petition, the Services will, within 12 
months of such finding, again make one of the findings described in 
paragraph (h)(2) of this section with regard to such petition.
    (i) 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 Services will make a finding 
as to whether the petition presents substantial scientific information 
indicating that the revision may be warranted. The Services will 
publish such finding in the Federal Register.
    (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 Services will consider the information referenced at 
paragraphs (c), (e), and (g) of this section. The Services may also 
consider other information readily available at the time the 
determination is made in reaching its initial finding on the petition. 
The Services are not required to consider any supporting materials 
cited by the petitioner if the cited documents are not provided in 
accordance with paragraph (b)(6) of this section.
    (2) If the Services find that the petition presents substantial 
information that the requested revision may be warranted, the Services 
will determine, within 12 months of receiving the petition, how to 
proceed with the requested revision, and will promptly publish notice 
of such intention in the Federal Register. That notice may, but need 
not, take a form similar to one of the findings described under 
paragraph (h)(2) of this section.
    (j) Petitions to designate critical habitat or adopt rules under 
sections 4(d), 4(e), or 10(j) of the Act. The Services will conduct a 
review of petitions to designate critical habitat or to adopt a rule 
under section 4(d), 4(e), or 10(j) of the Act in accordance with the 
Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental 
regulations, and take appropriate action.
    (k) Withdrawal of petition. A petitioner may withdraw the petition 
at any time during the petition process by submitting such request in 
writing. If a petition is withdrawn, the Services may, at their 
discretion, discontinue action on the petition finding, even if the 
Services have already made a 90-day finding that there is substantial 
information indicating that the requested action may be warranted.

    Dated: September 15, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    Dated: September 12, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-23003 Filed 9-26-16; 8:45 am]
 BILLING CODE 4333-15-P;3510-22-P