80 FR 29286 - Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Marine Fisheries Service

Federal Register Volume 80, Issue 98 (May 21, 2015)

Page Range		29286-29296
FR Document		2015-12316

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

Federal Register, Volume 80 Issue 98 (Thursday, May 21, 2015)

[Federal Register Volume 80, Number 98 (Thursday, May 21, 2015)]
[Proposed Rules]
[Pages 29286-29296]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-12316]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Marine Fisheries Service

50 CFR Part 424

[Docket Nos. FWS-HQ-ES-2015-0016; DOC 150506429-5429-01; 4500030113]
RIN 1018-BA53; 0648-BF06

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

AGENCY: U.S. Fish and Wildlife Service (FWS), Interior; National Marine
Fisheries Service (NMFS), Commerce.

ACTION: Proposed rule.

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

DATES: We will accept comments that we receive on or before July 20,
2015. Please note that if you are using the Federal eRulemaking Portal
(see ADDRESSES section, below), the deadline for submitting an
electronic comment is 11:59 p.m. Eastern Time on the closing date.

ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
http://www.regulations.gov. In the Search box, enter the docket number
for this proposed rule, which is FWS-HQ-ES-

[[Page 29287]]

2015-0016. Then click on the Search button. In the Search panel on the
left side of the screen, under the Document Type heading, click on the
Proposed Rules link to locate this document. You may submit a comment
by clicking on ``Comment Now!'' Please ensure that you have found the
correct document before submitting your comment.
By hard copy: Submit by U.S. mail or hand delivery to:
Public Comments Processing, Attn: Docket No. FWS-HQ-ES-2015-0016; U.S.
Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church,
VA 22041-3803.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Request for Information section, below, for more
information).

FOR FURTHER INFORMATION CONTACT: Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703-358-2171; facsimile
703-358-1735; or Angela Somma, National Marine Fisheries Service,
Office of Protected Resources, 1315 East-West Highway, Silver Spring,
MD 20910, telephone 301-427-8403. If you use a telecommunications
device for the deaf (TDD), call the Federal Information Relay Service
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

The primary purpose of the petition process is to empower the
public, in effect, to direct the attention of the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service (Services)
to (1) species that may be imperiled and not otherwise known to the
Services, (2) changes to a listed species' threats or other
circumstances that warrant that species being reclassified (i.e.,
changed in listing status by ``downlisting'' from endangered to
threatened, or by ``uplisting'' from threatened to endangered) or
delisted (i.e., removed from the Federal List of Endangered and
Threatened Wildlife or List of Endangered and Threatened Plants), or
(3) necessary revisions to critical habitat designations. The petition
process is a central feature of the Endangered Species Act of 1973
(Act; 16 U.S.C. 1531 et seq.), as amended, and serves a beneficial
public purpose.

Purpose of Proposed Revision of Regulations

The Services are proposing changes to the regulations at 50 CFR
424.14 concerning petitions to improve the content and specificity of
petitions and to enhance the efficiency and effectiveness of the
petitions process to support species conservation. Our proposed
revisions to Sec. 424.14 would clarify and enhance the procedures by
which the Services will evaluate petitions under section 4(b)(3) of the
Act, 16 U.S.C. 1533(b)(3). We propose to revise the regulations
pertaining to the petition process to provide greater clarity to the
public on the petition-submission process, which will assist
petitioners in providing complete petitions. These revisions would also
maximize the efficiency with which the Services process petitions,
making the best use of available resources. These changes would improve
the quality of petitions through expanded content requirements and
guidelines; and, in doing so; better focus the Services' energies on
petitions that merit further analysis. The following discussion
outlines the proposed changes and explains the benefits of making these
changes.

Specific Proposed Changes to Current Regulations at 50 CFR 424.14

General Authority and Requirements for Petitions--Paragraphs (a) and
(b)

Proposed paragraph (a) would retain the first sentence of the
current section. Proposed new paragraph (b) would incorporate the
substance of the second and third sentences of current paragraph (a),
which set forth certain minimum content requirements for a request for
agency action to qualify as a petition for the purposes of section
4(b)(3) of the Act, 16 U.S.C. 1533(b)(3). The new paragraph would also
expand upon the list of requirements for a petition, drawing in part
from the provisions in current paragraph (b)(2). Proposed paragraph
(b)(2) would, however, newly require that a petition address only one
species. Although the Services in the past have accepted multi-species
petitions, in practice it has often proven to be difficult to know
which supporting materials apply to which species, and has sometimes
made it difficult to follow the logic of the petition. This requirement
would not place any limitation on the ability of an interested party to
petition for section 4 actions, but would require petitioners to
organize the information in a way (on a species-by-species basis) that
will allow more efficient action by the Services.
The first six requirements (in proposed paragraphs (b)(1) through
(b)(6)) would apply to each type of petition recognized under section
4(b)(3) of the Act. The first four requirements (in proposed paragraphs
(b)(1) through (b)(4)) are all contained in the current regulations at
Sec. 424.14(a) and (b). The fifth and sixth requirements (in proposed
paragraphs (b)(5) and (b)(6)) clarify and expand on the current
provisions regarding a petition's supporting documentation at Sec.
424.14(b)(2)(iv). The seventh requirement (in proposed paragraph
(b)(7)), however, would apply only to petitions to list a species, and
would require that information be presented on the face of the request
to demonstrate that the entity that is the subject of the request is or
may be a ``species'' as defined in the Act (which includes a species,
subspecies, or distinct population segment). Section 4(b)(3)(A) of the
Act applies only to ``a petition . . . to add a species to, or to
remove a species from, either of the lists [of endangered or threatened
wildlife and plants]'' (emphasis added). This provision screens from
needless consideration those requests that clearly do not involve a
species, subspecies, or distinct population segment. The eighth
requirement (in proposed paragraph (b)(8)), would apply only to
petitions to list, delist, or reclassify a species, and would require
that information be included in the petition describing the current
range of the species, including range States or countries, as
appropriate.
Although section 4(b)(3)(A) of the Act authorizes interested
persons to submit a petition to add a species to, or remove a species
from, the Lists of Endangered and Threatened Wildlife and Plants, and
section 4(b)(3)(D) of the Act authorizes submission of petitions to
revise critical habitat designations, the Act does not specify the
required contents of such a petition, but instead leaves with the
Secretary the authority to do so. The Services are concerned that the
States, which often have considerable experience and information on the
species within their boundaries, have opportunity to be involved in
providing information as part of the petition process. To further the
Act's directive to cooperate to the maximum extent practicable with the
States, the Secretary proposes to revise the regulations pertaining to
the required contents of such petitions, as well as petitions to revise
or designate critical habitat. The goal of this proposed revision is to
encourage greater communication and cooperation among would-be
petitioners and State conservation agencies prior to the submission of
listing or critical habitat petitions to the Secretary.
To that end, we propose a ninth requirement (proposed paragraph
(b)(9)) that would apply only to petitions to the U.S. Fish and
Wildlife Service to add a

[[Page 29288]]

species that occurs within the United States to the List of Endangered
and Threatened Wildlife or List of Endangered and Threatened Plants,
change the status of a listed domestic species, or designate or revise
critical habitat for any domestic species under its jurisdiction. This
proposed requirement concerns communications between the petitioner(s);
the State agency(ies) responsible for the management and conservation
of fish, plant, or wildlife resources in each State where the species
that is the subject of the petition occurs; and the U.S. Fish and
Wildlife Service. As a general matter, States have jurisdiction and the
responsibility for managing and conserving freshwater fish, wildlife,
and plant species that are not listed as endangered or threatened
species under the Act. In the exercise of their jurisdiction and
responsibility, the States have developed substantial experience,
expertise, and information relevant to the conservation of such
species. The Act recognizes and acknowledges that experience and
expertise in a number of ways. For example, section 6 of the Act
directs the Secretary to cooperate to the maximum extent practicable
with the States in carrying out the program authorized by the Act.
Consistent with this mandate, section 4(b) of the Act directs the
Secretary, when making determinations with respect to the listing of
any species, to take into account the efforts being made by any State
to protect such species. In addition, although the Secretary is free to
adopt regulations pursuant to section 4 that are at odds with the
written recommendations of a State conservation agency, when he or she
does so, section 4(i) of the Act requires the Secretary to provide the
State agency with a written justification for not adopting regulations
consistent with State's recommendations. In these and other ways, the
Act recognizes and respects the special status of the States with
respect to the conservation and management of fish, wildlife, and
plants.
Proposed paragraph (b)(9) would require that for any petition
submitted to the U.S. Fish and Wildlife Service pertaining to species
found within the United States, a petitioner must certify that a copy
of the petition was provided to the State agency(ies) responsible for
the management and conservation of fish, plant, or wildlife resources
in each State where the species occurs at least 30 days prior to
submission to the Service. The certification must include the date that
the petition was provided to the relevant State agency(ies). If the
State agency(ies) provided data or written comments regarding the
accuracy or completeness of the petition, those data or comments must
be labeled as such, appended to the petition, and submitted with the
petition. If the State agency(ies) did not provide any data or written
comments regarding the accuracy or completeness of the petition, the
petitioner must so certify. We realize that States may not have
jurisdiction over or regulate all species, such as insects or plants,
and thus may not be able to provide any data for certain species.
Note that if a State provides data or written comments to the
petitioner after the petition is filed, section 424.14(b)(9) would not
require that the petitioner resubmit the petition with the new State
data or written comments (although the petitioner may choose to do so).
State data received after the filing of the petition will not reset the
clock for the Services' consideration of the petition, but will become
part of the data available in our files that we may elect to review
under proposed section (g)(1)(ii) if sufficient time remains to do so.
In this proposed rule, we are proposing to include the requirement
under (b)(9) only as to petitions filed with the United States Fish and
Wildlife Service. We recognize the relatively greater logistical
difficulties that would be posed to petitioners if they were required
to identify and coordinate with all interested States regarding marine
species and wide-ranging anadromous species. However, we seek public
comment as to whether this requirement, if adopted, should also apply
to petitions filed with the National Marine Fisheries Service.
The Services are also concerned that petitions should include a
presentation of all reasonably available, relevant data on the subject
species (or, if relevant for the particular petition, its habitat),
including information that supports the petition as well as that which
may tend to refute it. This is particularly true for information
publicly available from affected States, who have special status and
concerns with respect to implementation of the Act, as discussed above.
Fostering greater inclusion of such data would help ensure that any
petition submitted to the Secretary is based on reliable and unbiased
information and does not consist simply of unrepresentative, selected
data.
To this end, we propose a tenth requirement (proposed paragraph
(b)(10)), applicable to all petitions filed with either Service, that
would require a petitioner to certify that the petitioner has gathered
all relevant information readily available, including from Web sites
maintained by the affected States, and has clearly labeled and appended
such information to the petition so that it is submitted with the
petition. As an alternative to this provision, we are considering
limiting the requirement under (b)(10) to extend only to gathering and
certifying submission of relevant information publicly available on
affected States' Web sites.
The Services would apply Sec. 424.14(b) to identify those requests
that contain all the elements of a petition, so that consideration of
the request would be an efficient and wise use of agency resources. A
request that fails to meet these elements would be screened out from
further consideration, as discussed below, because a request cannot
meet the statutory standard for demonstrating that the petitioned
action may be warranted if it does not contain at least some
information on each of the areas relevant to that inquiry.

Types of Information To Be Included in Petitions--Paragraphs (c) and
(d)

Proposed Sec. 424.14(c) and (d) describe the types of information
that would be relevant to the Secretary's determination as to whether
the petition provides substantial information that the petitioned
action may be warranted. Petitioners are advised that compliance with
paragraph (b) would result in issuance of a 90-day finding, but for
that finding to be positive, petitioners should include as much of the
types of information listed in paragraphs (c) or (d) (as relevant to
the type of petition they are filing) as possible.
Petitions To List, Delist, or Reclassify
The proposed informational elements for listing, delisting, and
reclassification petitions in proposed paragraphs (c)(1) through (c)(5)
are rooted in the substance of current paragraphs (b)(2)(ii) and (iii).
These elements would clarify in the regulations the key considerations
that are relevant when the Services are determining whether or not the
petition presents ``substantial scientific or commercial information
indicating that the petitioned action may be warranted,'' which is the
standard for making a positive 90-day finding as described in section
4(b)(3)(A) of the Act, 16 U.S.C. 1533(b)(3)(A).
Proposed paragraph (c)(3) refers to inclusion in a petition of a
description of the magnitude and immediacy of threats. This request is
included to assist the U.S. Fish and Wildlife Service in assessing the
listing priority number of species for which a warranted-but-precluded
finding is made under the U.S. Fish and Wildlife Service's (FWS)

[[Page 29289]]

September 21, 1983, guidance, which requires assessing, in part, the
magnitude and immediacy of threats (48 FR 43098). In addition to being
useful for status reviews, this information should be included to
assist in determinations on delisting and reclassification requests.
While such information will likely also be useful to the National
Marine Fisheries Service (NMFS), it should be noted that NMFS has not
adopted the 1983 FWS guidance, and so would not apply that guidance to
petitions within its jurisdiction.
Proposed paragraph (c)(5) is a revision of the language in current
paragraph (b)(2) that describes information a petitioner may include
for consideration in designating critical habitat in conjunction with a
listing or reclassification. We propose to delete the clause ``and
indicates any benefits and/or adverse effects on the species that would
result from such designation'' because this information is not relevant
to the biological considerations that underlay a listing determination.
Petitions To Revise Critical Habitat
Similarly, proposed new Sec. 424.14(d) sets forth the kinds of
information a petitioner should include in a petition to revise
critical habitat. The Secretary's determination as to whether the
petition provides ``substantial scientific information indicating that
the revision may be warranted'' (16 U.S.C. 1533(b)(3)(D)(i)) will
depend in part on the degree to which the petition includes this type
of information.
The items set out at proposed new paragraph (d) are an expanded and
reworded version of the substance of current paragraph (c)(2). Proposed
paragraph (d)(1) would confirm that, to justify a revision to critical
habitat, it is important to demonstrate that the existing designation
includes areas that should not be included or does not include areas
that should be included, and to discuss the benefits of designating
additional areas, or the reasons to remove areas from an existing
designation. Additionally, including maps with enough detail to clearly
identify the particular area(s) being recommended for inclusion or
exclusion will be useful to the Services in making a petition finding.
Proposed paragraph (d)(2) is drawn from the substance of current
paragraphs (c)(2)(i) and (ii), which have been reorganized and
clarified. Proposed paragraph (d)(2) would clarify that several
distinct pieces of information are needed to analyze whether any area
of habitat should be designated, beginning with a description of the
``physical or biological features'' that are essential for the
conservation of the species and which may require special management.
Proposed paragraphs (d)(3) and (d)(4) would detail the informational
needs the Services will have in considering whether to add or remove
habitat from the designation comprising specific areas occupied by the
species at the time of listing, respectively. Proposed paragraph (d)(5)
would highlight the particular informational needs associated with
evaluating habitat that was unoccupied at the time of listing--that is,
information that fulfills the statutory requirement that any specific
areas designated are ``essential to the conservation of the species.''
See section 3(5)(A)(ii) of the Act, 16 U.S.C. 1532(5)(A)(ii).
Proposed paragraph (d)(6) would provide additional direction that a
petition should include information demonstrating that the petition
provides a complete presentation of the relevant facts, including an
explanation of what sources of information the petitioner consulted in
drafting the petition, as well as any relevant information known to the
petitioner not included in the petition.

Responses to Petitions--Paragraph (e)

Proposed new Sec. 424.14(e) sets out the possible responses the
Secretary may make to requests. Proposed paragraph (e)(1) would clarify
that a request that fails to satisfy the mandatory elements set forth
in proposed paragraph (b) may be returned by the Services without a
further determination on the merits of the request. In light of the
volume of requests received by the Services, it is critical that we
have the option to identify early on those requests that on their faces
are incomplete, in order to ensure that agency resources are not
diverted from higher priorities. Although this authority is implied in
the current regulations, making the point explicit in the revised
regulations would provide additional notice to petitioners, and lead to
better-quality requests and more efficient and effective (in terms of
species conservation) use of agency resources. Proposed Sec.
424.14(e)(2) would confirm that a request that complies with the
mandatory requirements will be acknowledged in writing as a petition
within 30 days of receipt (as required under current 424.14(a)).

Additional Information Provided Subsequent to Receipt of the Petition--
Paragraph (f)

Proposed paragraph (f) would address the situation in which a
petitioner supplements a petition with additional information at a
later date, requesting that the Secretary take the new information into
account. The Services' standard practice in these circumstances has
been to notify petitioners of receipt of this information and inform
them that, in order to meaningfully consider this information, the
Services consider the statutory deadlines to now run from the receipt
date of the supplemental information. The proposed provision would
clarify our position that the statutory period applicable to making any
required finding would be re-set to begin running from the time such
additional information is received by the Secretaries. In effect, the
supplemental information, together with the original petition, will be
considered a new petition that constructively supplants the original
petition and re-sets the period for making a 90-day finding under
section 4(b)(3)(A) of the Act. This is consistent with 16 U.S.C.
1533(b)(3)(A) and 1533(b)(3)(D)(i), which direct the Services to
determine whether ``the petition'' presents substantial information
indicating that the petitioned action may be warranted. Supplementing
the information supporting a petition is, therefore, constructively the
same as submitting a new petition. The Services propose to make this
explicit in the regulations to ensure that the Services have adequate
time to consider the supplemental information relevant to a petition.
Also, by giving clear notice of this process, the Services can
encourage petitioners to assemble all the information they believe
necessary to support the petition prior to sending it to the Services
for consideration, further enhancing the efficiency of the petition
process.

Findings on a Petition To List, Delist, or Reclassify--Paragraph (g)

Proposed Sec. 424.14(g) would explain the kinds of findings the
Services may make on a petition to list, delist, or reclassify a
species and the standards to be applied in that process. Proposed
paragraph (g)(1) is drawn largely from current paragraph (b)(1), with
some revisions. Most significantly, proposed paragraph (g)(1)(i) would
clarify the substantial-information standard by defining it as credible
scientific and commercial information that would lead a reasonable
person conducting an impartial scientific review to conclude that the
action proposed in the petition

[[Page 29290]]

may be warranted. Thus, conclusory statements made in a petition
without the support of credible scientific or commercial information
are not ``substantial information.'' For example, a petition that
states only that a species is rare and thus should be listed, without
other credible information regarding its status, does not provide
substantial information. This interpretation is consistent with the
Scott's riffle beetle case (WildEarth Guardians v. Salazar (D. Colo.
Sept. 19, 2011)). In that case, the court rejected the challenge to a
negative 90-day finding, because the petition did not present any
information of any potential threat currently affecting the species or
reasonably likely to do so in the foreseeable future. The court found
that information as to the rarity of a species, without more
information, is not ``substantial information'' that listing the
species may be warranted.
In Sec. 424.14(g)(1)(ii), we propose to add a new sentence to
clarify that the Services may consider information that is readily
available in the relevant agency's possession at the time it makes a
90-day finding. For purposes of Sec. 424.14(g)(1), the Services
recognize that the statute places the obligation squarely on the
petitioner to present the requisite level of information to meet the
``substantial information'' test, and that the Services therefore
should not seek to supplement petitions. (Please see the Columbian
sharp-tailed grouse case (WildEarth Guardians v. U.S. Secretary of the
Interior, 2011 U.S. Dist. Lexis 32470 (D. Idaho Mar. 28, 2011)), which
provided, among other things, that the petitioner has the burden of
providing substantial information.) However, the Services believe they
should evaluate such petitions in context and using the Services'
expertise. In order to apply their best professional judgment, Service
staff reviewing petitions may need to take into account information
readily available in the agency's possession, including both
information tending to support the petition and information tending to
contradict the information presented therein. Although the Services are
mindful that, at the stage of formulating an initial finding, they
should not engage in outside research or an effort to comprehensively
compile the best available information, they must be able to place the
information presented in the petition in context.
The Act contemplates a two-step process in reviewing a petition.
The 12-month finding is meant to be the more in-depth determination and
follows a status review, while the 90-day finding is meant to be a
quicker evaluation of a more limited set of information. However, based
on their experience in administering the Act, the Services conclude
that evaluating the information presented in the petition in a vacuum
can lead to inaccurately supported decisions and misdirection of
resources away from higher priorities. It may be difficult for the
Services to bring informed expertise to their evaluation of the facts
and claims alleged in a petition without considering the petition in
the context of other information of the sort that the Services maintain
in their possession and would routinely consult in the course of their
work. It is reasonable for the Services to be able to examine the
veracity of the information included in a petition prior to committing
limited Federal resources to the significant expense of a status
review.
The Act's legislative history also supports explicitly recognizing
the discretion that the Services have to bring their informed expertise
and judgment to bear in reviewing petitions. In a discussion of
judicial review of the Secretary's 90-day findings on petitions, a
House Conference report states that, when courts review such a
decision, the ``object of [the judicial] review is to determine whether
the Secretary's action was arbitrary or capricious in light of the
scientific and commercial information available concerning the
petitioned action.'' H.R. Conf. Rep. No. 97-835, at 20, reprinted in
1982 U.S.C.C.A.N. 2860, 2862 (emphasis added). By requiring courts to
evaluate the Secretary's substantial information findings in light of
information ``available,'' this statement suggests that the drafters
anticipated that the Secretary could evaluate petitions in the context
of scientific and commercial information available to the Services, and
not limited arbitrarily to a subset of available information presented
in the petitions. In these regulatory amendments, the Services have
crafted a balanced approach that will ensure that the Services may take
into account the information available to us, without opening the door
to the type of wide-ranging survey more appropriate for a status
review. The intent is not to solicit new information.
The precise range of information properly considered readily
available in the agency's possession will vary with circumstances, but
could include the information physically held by any office within the
Services (including, for example, the NMFS Science Centers and FWS
Field Offices), and may also include information stored electronically
in databases routinely consulted by the Services in the ordinary course
of their work. For example, it would be appropriate to consult online
databases such as the Integrated Taxonomic Information System (http://www.itis.gov), a database of scientifically credible nomenclature
information maintained in part by the Services.
Proposed paragraph (g)(1)(iii) would explain how the substantial-
information standard applies to a petition to list, delist, or
reclassify a species that is submitted after the Secretary has already
conducted a status review of that species and determined that the
petitioned action is not warranted, or made another listing action;
such petitions are referred to as ``subsequent petitions.'' Subsequent
petitions may follow a 12-month finding or a final determination on a
proposed listing, reclassification, or delisting rule. The prior status
review and determination are part of the information readily available
in the agency's possession for consideration in evaluating the
subsequent petition, and they play an important role in setting the
context for the 90-day finding. In addition, 5-year reviews completed
for listed species would be considered in our evaluation of a petition
to delist or reclassify. Although the substantial-information standard
applies to all petitions under section 4(b)(3)(A) of the Act, the
standard's application depends on the context in which the finding is
being made. The context of a finding after a status review and
determination is quite different than that before any status review has
been completed. Thus, proposed Sec. 424.14(g)(1)(iii) requires that
for a subsequent petition to provide substantial information the
petition must provide sufficient new information or analysis such that
a reasonable person conducting an impartial scientific review would
conclude that the action proposed in the petition may be warranted,
despite the previous determination. (Please see the Columbian sharp-
tailed grouse case (WildEarth Guardians v. U.S. Secretary of the
Interior, 2011 U.S. Dist. Lexis 32470 (D. Idaho Mar. 28, 2011)), in
which the court found the FWS could consider scientific conclusions in
previous 12-month finding valid, because that finding was not
challenged.)
A reasonable person would not conclude that the petitioned action
may be warranted if the petition fails to present any substantial new
information or analysis that might alter the conclusions of the
Services' prior determination. Following a positive 90-day finding on a
petition, the Services gather all available scientific and

[[Page 29291]]

commercial information and conduct a status review of the species; the
resulting 12-month finding is a result of this review. The Secretary
may also initiate and conduct a status review on his or her own and
determine if listing, delisting, or reclassifying is warranted.
Similarly, a final determination on a proposed rule to list or delist a
species requires that we first conduct a status review of the species.
If the subsequent petition fails to provide any substantial new
information or analysis beyond that already considered in a prior
status review or 5-year review that resulted in a finding that listing
or reclassification of the species is not warranted, it would not be
rational to expect a different outcome.
One corollary of this conclusion is that the Secretary may find
that a subsequent petition fails the ``substantial information''
standard, even though a prior petition seeking the same action
initially received a positive 90-day finding. Because the prior status
review, and resultant 12-month finding, are now a part of the
information readily available in the agency's possession, the
subsequent petition is on a different footing from the prior petition.
Although similar information may have qualified as ``substantial'' when
it was initially evaluated, it may not necessarily be considered
substantial in the context of the completed status review.
The completion of a status review of a species consumes
considerable agency resources. The application of Sec.
424.14(g)(1)(iii) is intended to assist the Services in making
judicious use of those resources, by eliminating unnecessary
duplication of effort in responding to a petition when the Services
have already evaluated the species in question and no substantial new
information or analysis is available. This would allow the Services to
instead concentrate on petitions for actions that will best make use of
limited agency resources and potentially result in greater conservation
value for a species that may be in need of the protections of the Act.
Proposed Sec. 424.14(g)(2) is substantially the same as current
paragraph (b)(3). Among other changes, we propose new language
clarifying the standard for making expeditious-progress determinations
in warranted-but-precluded findings, including (in paragraph
(g)(2)(iii)(B)) a clear acknowledgement that such determinations are to
be made in light of resources available after complying with
nondiscretionary duties, court orders, and court-approved settlement
agreements to take actions under section 4 of the Act. Current
paragraph (b)(4) would be redesignated as paragraph (g)(3), although we
propose to remove the reference in the current language that ``no
further finding of substantial information will be required,'' as it
merely repeats statutory language.

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

Proposed Sec. 424.14(h) would explain the kinds of findings that
the Services may make on a petition to revise critical habitat.
Proposed paragraph (h)(1) is essentially the same as current paragraph
(c)(1) and describes the standard applicable to the Secretary's finding
at the 90-day stage. Please refer to the discussion of the
``substantial information'' test discussed in the description of Sec.
424.14(g)(1), above. Proposed paragraph (h)(2) would specifically
acknowledge, consistent with the statute, that such finding may, but
need not, take a form similar to one of the findings called for at the
12-month stage in the review of a petition to list, delist, or
reclassify species. Section 4(a)(3)(A) of the Act establishes a
mandatory duty to designate critical habitat for listed species to the
maximum extent prudent and determinable at the time of listing (in
subsection (A)(i)), but respecting subsequent revision of such habitat
provides only that the Services ``may, from time-to-time thereafter as
appropriate, revise such designation'' (in subsection (A)(ii) (emphasis
added)).
That the Services have broad discretion to decide when it is
appropriate to revise critical habitat is also evident in the
differences between the Act's provisions discussing petitions to revise
critical habitat, on the one hand, and the far more prescriptive
provisions regarding the possible findings that can be made at the 12-
month stage on petitions to list, delist, or reclassify species, on the
other. Section 4(b)(3)(B) includes three detailed and exclusive options
for 12-month findings on petitions to list, delist, or reclassify
species. In contrast, section 4(b)(3)(D)(ii) requires only that the
Secretary (acting through the Services) ``determine how he intends to
proceed with the requested revision'' and promptly publish notice of
such intention in the Federal Register within 12 months of receipt of a
petition to revise critical habitat that has been found to present
substantial information that the petitioned revision may be warranted.
The differences in these subsections indicates that the listing
petition procedures are not required to be followed in determining how
to proceed with petitions to revise critical habitat. See Sierra Club
v. U.S. Fish and Wildlife Service, 2013 U.S. Dist. LEXIS 37349 (D.D.C.
Mar. 19, 2013) (12-month determinations on petitions to revise are
committed to the agency's discretion by law, and thus unreviewable
under the Administrative Procedure Act); Morrill v. Lujan, 802 F. Supp.
424 (S.D. Ala. 1992) (revisions to critical habitat are discretionary);
see also Barnhart v. Sigman Coal Co., Inc., 122 S. Ct. 941, 951 (2002)
(``it is a general principle of statutory construction that when
`Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion' '') (citing Russello v. United States, 464 U.S.
16, 23 (1983)); Federal Election Commission v. National Rifle Ass'n of
America, 254 F.3d 173, 194 (D.C. Cir. 2001) (same).
Further, the legislative history for the 1982 amendments that added
the petition provisions to the Act confirms that Congress intended to
grant discretion to the Services in determining how to respond to
petitions to revise critical habitat. After discussing at length the
detailed listing petition provisions and their intended meaning,
Congress said of the critical habitat petition requirements,
``Petitions to revise critical habitat designations may be treated
differently.'' H.R. Rep. No. 97-835, at 22 (1982), reprinted in 1982
U.S.C.C.A.N. 2860, 2862.
The Services may find in particular situations that terminology
similar to that set out in the listing-petition provisions is useful
for explaining their intended response at the 12-month stage on a
petition to revise critical habitat. For example, the Services have, at
times, used the term ``warranted'' to indicate that requested revisions
of critical habitat would satisfy the definition of critical habitat in
section 3 of the Act. However, use of the listing-petition terms in a
finding on a petition to revise critical habitat would not mean that
the associated listing-petition procedures and timelines apply or are
required to be followed with respect to the petition. For example, if
the Services find that a petitioned revision of critical habitat is, in
effect, ``warranted,'' in that the areas would meet the definition of
``critical habitat,'' that finding would not require the Services to
publish a proposed rule to implement the revision in any particular
timeframe. Similarly, a finding on a petition to revise critical
habitat that uses the phrase ``warranted but precluded,'' or a
functionally similar phrase, to describe the Secretary's intention
would not trigger the

[[Page 29292]]

requirements of section 4(b)(3)(B)(iii) or (C) (establishing
requirements to make particular findings, to implement a monitoring
system, etc.).
Though the Services have discretion to determine how to proceed
with a petition to revise critical habitat, the Services believe that
certain factors respecting conservation and recovery of the relevant
species are likely to be relevant and potentially important to most
such determinations. Such factors may include, but are not limited to:
The status of the existing critical habitat for which revisions are
sought (e.g., when it was designated, the extent of the species' range
included in the designation); the effectiveness or potential of the
existing critical habitat to contribute to the conservation of the
relevant listed species; the potential conservation benefit of the
petitioned revision to the listed species relative to the existing
designation; whether there are other, higher-priority conservation
actions that need to be completed under the Act, particularly for the
species that is the subject of the petitioned revision; the
availability of personnel, funding, and contractual or other resources
required to complete the requested revision; and the precedent that
accepting the petition might set for subsequent requested revisions.

Petitions To Initially Designate Critical Habitat and Petitions for
Special Rules--Paragraph (i)

Proposed Sec. 424.14(i) would be substantially the same as current
paragraph (d), regarding petitions to initially designate critical
habitat or for adoption of special rules under section 4(d) of the Act.

Withdrawn Petitions--Paragraph (j)

Proposed Sec. 424.14(j) would describe the process for a
petitioner to withdraw a petition, and the Services' discretion to
discontinue action on the withdrawn petition. Although the Services may
discontinue work on a 90-day or 12-month finding for a petition that is
withdrawn, in the case of a petition to list a species, the Services
may use their own process to evaluate whether the species may warrant
listing and whether it should become a candidate for listing. In the
case of the withdrawal of a petition to delist, uplist or downlist a
species, the Services may use the 5-year review process to further
evaluate the status of the species, or elect to consider the issue at
any time.

Request for Information

Any final rule based on this proposal will consider information and
recommendations timely submitted from all interested parties. We
solicit comments, information, and recommendations from governmental
agencies, Native American tribes, the scientific community, industry
groups, environmental interest groups, and any other interested parties
on this proposed rule. All comments and materials received by the date
listed in DATES, above, will be considered prior to the approval of a
final rule.
We request comments and information evaluating each of several
alternatives for insuring greater inclusion of relevant data supporting
petitions, including information available from State conservation
agencies within the range of the species. We specifically seek comment
on proposed paragraph (b)(9), requiring petitioner coordination with
States prior to submission of a petition to the Fish and Wildlife
Service, and paragraph (b)(10), requiring certification that all
reasonably available information, including relevant information
publicly available from affected States' Web sites, has been gathered
and appended to a petition filed with either Service. We note that
either of these two provisions could stand alone, or both could be
included in a final rule, as shown in the proposed regulatory text. We
also suggested an alternative to (b)(10) that would require a
certification only that relevant information from affected States' Web
sites has been gathered and appended to a petition filed with either
Service. We seek information on which alternatives, alone or in
combination, would be most consistent with law and best achieve our
goals of fostering better-informed petitions and greater cooperation
with States. We also seek comments and information regarding any other
alternative the public may suggest to achieve the goals of greater
coordination with States and better-supported petitions. Finally, we
seek comment on the criteria in paragraph (d), including comments on
the utility of the criteria, the adequacy of the criteria, and the
effect of the criteria on the workload on the petitioner.
You may submit your information concerning this proposed rule by
one of the methods listed in ADDRESSES. If you submit information via
http://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the Web site. If
your submission is made via a hardcopy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Information and supporting documentation that we receive in
response to this proposed rule will be available for you to review at
http://www.regulations.gov, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Division of Conservation
and Classification (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Management and
Budget's Office of Information and Regulatory Affairs (OIRA) will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements. This proposed rule is consistent with
Executive Order 13563, and in particular with the requirement of
retrospective analysis of existing rules, designed ``to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives.''

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility

[[Page 29293]]

analysis is required if the head of an agency, or his designee,
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. SBREFA amended the Regulatory
Flexibility Act to require Federal agencies to provide a statement of
the factual basis for certifying that a rule will not have a
significant economic impact on a substantial number of small entities.
We certify that, if adopted as proposed, this proposed rule would not
have a significant economic effect on a substantial number of small
entities. The following discussion explains our rationale.
The proposed rule would revise and clarify the regulations
governing documentation needed by the Services in order to effectively
and efficiently evaluate petitions under the Act. While some of the
changes may require petitioners to expend some time (such as
coordination with State(s)) and effort (providing complete petitions),
we do not expect this will prove to be a hardship, economically or
otherwise. Further, we expect the effect on any external entities,
large or small, would likely be positive, as they will lead to improved
quality of petitions through expanded content requirements and
guidelines.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would not impose a cost of $100 million or
more in any given year on local or State governments or private
entities. A Small Government Agency Plan is not required. As explained
above, small governments would not be affected because the proposed
rule would not place additional requirements on any city, county, or
other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action''' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
tribal governments.

Takings (E.O. 12630)

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

Federalism (E.O. 13132)

In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant Federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to the petition process
under the Endangered Species Act, and would not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

This proposed rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify the petition
process under the Endangered Species Act.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis.

National Environmental Policy Act

We are analyzing this proposed regulation in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), the Department
of the Interior Manual (516 DM 1-6 and 8), and National Oceanic and
Atmospheric Administration (NOAA) Administrative Order 216-6. We invite
the public to comment on the extent to which this proposed regulation
may have a significant impact on the human environment, or fall within
one of the categorical exclusions for actions that have no individual
or cumulative effect on the quality of the human environment. We will
complete our analysis, in compliance with NEPA, before finalizing this
regulation.

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

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

Clarity of This Proposed Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule or policy we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the proposed rule, your comments should be as specific as
possible. For example, you should tell us the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

List of Subjects in 50 CFR Part 424

Administrative practice and procedure, Endangered and threatened
species.

Proposed Regulation Promulgation

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

[[Page 29294]]

PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING
CRITICAL HABITAT

0
1. The authority citation for part 424 continues to read as follows:

Authority: 16 U.S.C. 1531 et seq.

0
2. Revise Sec. 424.14 to read as follows:

Sec. 424.14 Petitions.

(a) Ability to petition. Any interested person may submit a written
petition to the Secretary requesting that one of the actions described
in Sec. 424.10 be taken for a species.
(b) Requirements for petitions. A petition must clearly identify
itself as such, be dated, and contain the following information:
(1) The name, signature, address, telephone number, if any, and the
association, institution, or business affiliation, if any, of the
petitioner;
(2) The scientific and any common name of the species that is the
subject of the petition. One and only one species may be the subject of
a petition;
(3) A clear indication of the administrative action the petitioner
seeks (e.g., listing of a species or revision of critical habitat);
(4) A detailed narrative justification for the recommended
administrative action that contains an analysis of the information
presented;
(5) Literature citations that are specific enough for the Secretary
to locate the information cited in the petition, including page numbers
or chapters as applicable;
(6) Electronic or hard copies of any supporting materials (e.g.,
publications, maps, reports, letters from authorities) cited in the
petition, or valid links to public Web sites where the supporting
materials can be accessed; and
(7) For a petition to list a species, information to establish
whether the subject entity is a ``species'' as defined in the Act.
(8) For a petition to list a species, delist a species, or change
the status of a listed species, information on the current geographic
range of the species, including range States or countries.
(9) For any petition submitted to the U.S. Fish and Wildlife
Service pertaining to species found within the United States, a
certification:
(i) That a copy of the petition was provided to the State
agency(ies) responsible for the management and conservation of fish,
plant, or wildlife resources in each State where the species occurs at
least 30 days prior to submission to the Service; and
(ii) That the State agency(ies) either:
(A) Provided to the petitioner data or written comments regarding
the accuracy or completeness of the petition, and all those data or
comments have been clearly labeled as such and appended to the
petition; or
(B) Did not provide to the petitioner in response any data or
written comments regarding the accuracy or completeness of the
petition.
(10) Certification that the petitioner has gathered all relevant
information (including information that may support a negative 90-day
finding) that is reasonably available, such as that available on Web
sites maintained by the affected States, and has clearly labeled this
information and appended it to the petition.
(c) Types of information to be included in petitions to add or
remove species from the lists, or change the listed status of a
species. The Secretary's determination as to whether the petition
provides substantial information that the petitioned action may be
warranted will depend in part on the degree to which the petition
includes the following types of information; failure to include
adequate information on any one or more of the following (except
paragraph (5)) may result in the Secretary finding that the petition
does not present substantial information:
(1) Information on current population status and trends and
estimates of current population sizes and distributions, both in
captivity and the wild, if available;
(2) Identification of the factors under section 4(a)(1) of the Act
that may affect the species and where these factors are acting upon the
species;
(3) Whether any or all of the factors alone or in combination
identified in section 4(a)(1) of the Act may cause the species to be an
endangered species or threatened species (i.e., place the species in
danger of extinction now or in the foreseeable future), and, if so,
how, including a description of the magnitude and imminence of the
threats;
(4) Information on adequacy of regulatory protections and
conservation activities initiated or currently in place that may
protect the species or its habitat; and
(5) Except for petitions to delist, information that is useful in
determining whether a critical habitat designation for the species is
prudent and determinable (see Sec. 424.12), including information on
recommended boundaries and physical features and the habitat
requirements of the species; such information, however, will not be a
basis for determining whether the petition has presented substantial
information that the petitioned action may be warranted.
(d) Additional information to include in petitions to revise
critical habitat. The Secretary's determination as to whether the
petition provides substantial information that the petitioned action
may be warranted will depend in part on the degree to which the
petition includes the following types of information; failure to
include adequate information on any one or more of the following may
result in the Secretary finding that the petition does not present
substantial information:
(1) A description and map(s) of areas that the current designation
does not include that should be included, or includes that should no
longer be included, and the benefits of designating or not designating
these specific areas as critical habitat. Petitioners should include
available data layers if feasible;
(2) A description of the physical or biological features essential
for the conservation of the species and whether they may require
special management considerations or protection;
(3) For any areas petitioned to be added to critical habitat within
the geographical area occupied by the species at time it was listed,
information indicating that the specific areas contain the physical or
biological features that are essential to the conservation of the
species and may require special management considerations or
protection. The petitioner should also indicate which specific areas
contain which features;
(4) For any areas petitioned for removal from currently designated
critical habitat within the geographical area occupied by the species
at the time it was listed, information indicating that the specific
areas do not contain features (including features that allow the area
to support the species periodically, over time) that are essential to
the conservation of the species, or that these features do not require
special management consideration or protections;
(5) For any areas petitioned to be added to or removed from
critical habitat that were outside the geographical area occupied by
the species at the time it was listed, information indicating why the
petitioned areas are or are not essential for the conservation of the
species; and
(6) Information demonstrating that the petition includes a complete
presentation of the relevant facts, including an explanation of what
sources of information the petitioner consulted in drafting the
petition, as well as any relevant information known

[[Page 29295]]

to the petitioner not included in the petition.
(e) Response to requests. (1) If a request does not meet the
requirements set forth at paragraph (b) of this section, the Secretary
will reject the request without making a finding, and will notify the
sender and provide an explanation of the rejection.
(2) If a request does meet the requirements set forth at paragraph
(b) of this section, the Secretary will acknowledge, in writing, the
receipt of a petition, within 30 days of receipt.
(f) Supplemental information. If the petitioner provides
supplemental information before the initial finding is made and asks
that it be considered in making a finding, the new information, along
with the previously submitted information, is treated as a new petition
that supersedes the original petition, and the statutory timeframes
will begin when such supplemental information is received.
(g) Findings on petitions to add or remove a species from the
lists, or change the listed status of a species. (1) To the maximum
extent practicable, within 90 days of receiving a petition to add a
species to the lists, remove a species from the lists, or change the
listed status of a species, the Secretary will make a finding as to
whether the petition presents substantial scientific or commercial
information indicating that the petitioned action may be warranted. The
Secretary will promptly publish such finding in the Federal Register
and so notify the petitioner.
(i) For the purposes of this section, ``substantial scientific or
commercial information'' refers to credible scientific or commercial
information in support of the petition's claims such that a reasonable
person conducting an impartial scientific review would conclude that
the action proposed in the petition may be warranted. Conclusions drawn
in the petition without the support of credible scientific or
commercial information will not be considered ``substantial
information.''
(ii) The Secretary will consider the information referenced at
paragraphs (b), (c), and (f) of this section. The Secretary may also
consider information readily available in the agency's possession at
the time the determination is made in reaching his or her initial
finding on the petition. The Secretary will not consider any supporting
materials cited by the petitioner that are not provided to us by the
petitioner in the format required at paragraph (b)(6) of this section
or otherwise readily available in our possession.
(iii) The ``substantial scientific or commercial information''
standard must be applied in light of any prior determinations made by
the Secretary for the species that is the subject of the petition.
Where the Secretary has already conducted a status review of that
species (whether in response to a petition or on the Secretary's own
initiative) and made a final listing determination, any petition
seeking to list, reclassify, or delist that species will be considered
a ``subsequent petition'' for purposes of this section. A subsequent
petition provides ``substantial scientific or commercial information''
only if it provides sufficient new information or analysis not
considered in the previous determination (or previous 5-year review, if
applicable) such that a reasonable person conducting an impartial
scientific review would conclude that the action proposed in the
petition may be warranted despite the previous determination.
(2) If a positive 90-day finding is made, the Secretary will
commence a review of the status of the species concerned. Within 12
months of receipt of the petition, the Secretary will make one of the
following findings:
(i) The petitioned action is not warranted, in which case the
Secretary shall promptly publish such finding in the Federal Register
and so notify the petitioner.
(ii) The petitioned action is warranted, in which case the
Secretary will promptly publish in the Federal Register a proposed
regulation to implement the action pursuant to Sec. 424.16; or
(iii) The petitioned action is warranted, but:
(A) The immediate proposal and timely promulgation of a regulation
to implement the petitioned action is precluded because of other
pending proposals to list, delist, or change the listed status of
species; and
(B) Expeditious progress is being made to list, delist, or change
the listed status of qualified species, in which case such finding will
be promptly published in the Federal Register together with a
description and evaluation of the reasons and data on which the finding
is based. The Secretary will make a determination of expeditious
progress in relation to the amount of funds available after complying
with nondiscretionary duties under section 4 of the Act and court
orders and court-approved settlement agreements to take actions
pursuant to section 4 of the Act.
(3) If a finding is made under paragraph (g)(2)(iii) of this
section with regard to any petition, the Secretary will, within 12
months of such finding, again make one of the findings described in
paragraph (g)(2) of this section with regard to such petition.
(h) Findings on petitions to revise critical habitat. (1) To the
maximum extent practicable, within 90 days of receiving a petition to
revise a critical habitat designation, the Secretary will make a
finding as to whether the petition presents substantial scientific
information indicating that the revision may be warranted. The
Secretary will promptly publish such finding in the Federal Register
and so notify the petitioner.
(i) For the purposes of this section, ``substantial scientific
information'' refers to credible scientific information in support of
the petition's claims such that a reasonable person conducting an
impartial scientific review would conclude that the revision proposed
in the petition may be warranted. Conclusions drawn in the petition
without the support of credible scientific information will not be
considered ``substantial information.''
(ii) The Secretary will consider the information referenced at
paragraphs (b), (d), and (f) of this section. The Secretary may also
consider other information readily available in the agency's possession
at the time the determination is made in reaching its initial finding
on the petition. The Secretary will not consider any supporting
materials cited by the petitioner that are not provided to us by the
petitioner in the format required by paragraph (b)(6) of this section
or otherwise readily available in our possession.
(2) Within 12 months after receiving a petition found to present
substantial information indicating that revision of a critical habitat
designation may be warranted, the Secretary will determine how to
proceed with the requested revision, and will promptly publish notice
of such intention in the Federal Register. Such finding may, but need
not, take a form similar to one of the findings described under
paragraph (g)(2) of this section.
(i) Petitions to designate critical habitat or adopt special rules.
Upon receiving a petition to designate critical habitat or to adopt a
special rule to provide for the conservation of a species, the
Secretary will promptly conduct a review in accordance with the
Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental
regulations, and take appropriate action.
(j) Withdrawal of petition. A petitioner may withdraw the petition
at any time during the petition process by submitting such request in
writing. This request must include the name,

[[Page 29296]]

signature, address, telephone number, if any, and the association,
institution, or business affiliation, if any, of the petitioner. If a
petition is withdrawn, the Secretary may, at his or her discretion,
discontinue action on the petition finding, even if the Secretary has
already made a positive 90-day finding.

Dated: May 15, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
Dated: May 13, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2015-12316 Filed 5-20-15; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P

Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules 29289

September 21, 1983, guidance, which designated, beginning with a Additional Information Provided
requires assessing, in part, the description of the ‘‘physical or Subsequent to Receipt of the Petition—
magnitude and immediacy of threats (48 biological features’’ that are essential for Paragraph (f)
FR 43098). In addition to being useful the conservation of the species and Proposed paragraph (f) would address
for status reviews, this information which may require special management. the situation in which a petitioner
should be included to assist in Proposed paragraphs (d)(3) and (d)(4) supplements a petition with additional
determinations on delisting and would detail the informational needs information at a later date, requesting
reclassification requests. While such the Services will have in considering that the Secretary take the new
information will likely also be useful to whether to add or remove habitat from information into account. The Services’
the National Marine Fisheries Service
the designation comprising specific standard practice in these circumstances
(NMFS), it should be noted that NMFS
areas occupied by the species at the has been to notify petitioners of receipt
has not adopted the 1983 FWS
time of listing, respectively. Proposed of this information and inform them
guidance, and so would not apply that
paragraph (d)(5) would highlight the that, in order to meaningfully consider
guidance to petitions within its
particular informational needs this information, the Services consider
jurisdiction.
Proposed paragraph (c)(5) is a revision associated with evaluating habitat that the statutory deadlines to now run from
of the language in current paragraph was unoccupied at the time of listing— the receipt date of the supplemental
(b)(2) that describes information a that is, information that fulfills the information. The proposed provision
petitioner may include for consideration statutory requirement that any specific would clarify our position that the
in designating critical habitat in areas designated are ‘‘essential to the statutory period applicable to making
conjunction with a listing or conservation of the species.’’ See section any required finding would be re-set to
reclassification. We propose to delete 3(5)(A)(ii) of the Act, 16 U.S.C. begin running from the time such
the clause ‘‘and indicates any benefits additional information is received by
1532(5)(A)(ii).
and/or adverse effects on the species the Secretaries. In effect, the
Proposed paragraph (d)(6) would supplemental information, together with
that would result from such
provide additional direction that a the original petition, will be considered
designation’’ because this information is
not relevant to the biological petition should include information a new petition that constructively
considerations that underlay a listing demonstrating that the petition provides supplants the original petition and re-
determination. a complete presentation of the relevant sets the period for making a 90-day
facts, including an explanation of what finding under section 4(b)(3)(A) of the
Petitions To Revise Critical Habitat sources of information the petitioner Act. This is consistent with 16 U.S.C.
Similarly, proposed new § 424.14(d) consulted in drafting the petition, as 1533(b)(3)(A) and 1533(b)(3)(D)(i),
sets forth the kinds of information a well as any relevant information known which direct the Services to determine
petitioner should include in a petition to the petitioner not included in the whether ‘‘the petition’’ presents
to revise critical habitat. The Secretary’s petition. substantial information indicating that
determination as to whether the petition the petitioned action may be warranted.
provides ‘‘substantial scientific Responses to Petitions—Paragraph (e) Supplementing the information
information indicating that the revision supporting a petition is, therefore,
Proposed new § 424.14(e) sets out the
may be warranted’’ (16 U.S.C. constructively the same as submitting a
possible responses the Secretary may
1533(b)(3)(D)(i)) will depend in part on new petition. The Services propose to
the degree to which the petition make to requests. Proposed paragraph make this explicit in the regulations to
includes this type of information. (e)(1) would clarify that a request that ensure that the Services have adequate
The items set out at proposed new fails to satisfy the mandatory elements time to consider the supplemental
paragraph (d) are an expanded and set forth in proposed paragraph (b) may information relevant to a petition. Also,
reworded version of the substance of be returned by the Services without a by giving clear notice of this process,
current paragraph (c)(2). Proposed further determination on the merits of the Services can encourage petitioners
paragraph (d)(1) would confirm that, to the request. In light of the volume of to assemble all the information they
justify a revision to critical habitat, it is requests received by the Services, it is believe necessary to support the petition
important to demonstrate that the critical that we have the option to prior to sending it to the Services for
existing designation includes areas that identify early on those requests that on consideration, further enhancing the
should not be included or does not their faces are incomplete, in order to efficiency of the petition process.
include areas that should be included, ensure that agency resources are not
and to discuss the benefits of Findings on a Petition To List, Delist, or
diverted from higher priorities. Reclassify—Paragraph (g)
designating additional areas, or the Although this authority is implied in
reasons to remove areas from an existing the current regulations, making the Proposed § 424.14(g) would explain
designation. Additionally, including point explicit in the revised regulations the kinds of findings the Services may
maps with enough detail to clearly would provide additional notice to make on a petition to list, delist, or
identify the particular area(s) being petitioners, and lead to better-quality reclassify a species and the standards to
recommended for inclusion or exclusion be applied in that process. Proposed
requests and more efficient and effective
will be useful to the Services in making paragraph (g)(1) is drawn largely from
(in terms of species conservation) use of
a petition finding. current paragraph (b)(1), with some
agency resources. Proposed
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Proposed paragraph (d)(2) is drawn revisions. Most significantly, proposed
from the substance of current § 424.14(e)(2) would confirm that a paragraph (g)(1)(i) would clarify the
paragraphs (c)(2)(i) and (ii), which have request that complies with the substantial-information standard by
been reorganized and clarified. mandatory requirements will be defining it as credible scientific and
Proposed paragraph (d)(2) would clarify acknowledged in writing as a petition commercial information that would lead
that several distinct pieces of within 30 days of receipt (as required a reasonable person conducting an
information are needed to analyze under current 424.14(a)). impartial scientific review to conclude
whether any area of habitat should be that the action proposed in the petition

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29290 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules

may be warranted. Thus, conclusory a more limited set of information. ordinary course of their work. For
statements made in a petition without However, based on their experience in example, it would be appropriate to
the support of credible scientific or administering the Act, the Services consult online databases such as the
commercial information are not conclude that evaluating the Integrated Taxonomic Information
‘‘substantial information.’’ For example, information presented in the petition in System (http://www.itis.gov), a database
a petition that states only that a species a vacuum can lead to inaccurately of scientifically credible nomenclature
is rare and thus should be listed, supported decisions and misdirection of information maintained in part by the
without other credible information resources away from higher priorities. It Services.
regarding its status, does not provide may be difficult for the Services to bring Proposed paragraph (g)(1)(iii) would
substantial information. This informed expertise to their evaluation of explain how the substantial-information
interpretation is consistent with the the facts and claims alleged in a petition standard applies to a petition to list,
Scott’s riffle beetle case (WildEarth without considering the petition in the delist, or reclassify a species that is
Guardians v. Salazar (D. Colo. Sept. 19, context of other information of the sort submitted after the Secretary has
2011)). In that case, the court rejected that the Services maintain in their already conducted a status review of
the challenge to a negative 90-day possession and would routinely consult that species and determined that the
finding, because the petition did not in the course of their work. It is petitioned action is not warranted, or
present any information of any potential reasonable for the Services to be able to made another listing action; such
threat currently affecting the species or examine the veracity of the information petitions are referred to as ‘‘subsequent
reasonably likely to do so in the included in a petition prior to petitions.’’ Subsequent petitions may
foreseeable future. The court found that committing limited Federal resources to follow a 12-month finding or a final
information as to the rarity of a species, the significant expense of a status determination on a proposed listing,
without more information, is not review. reclassification, or delisting rule. The
‘‘substantial information’’ that listing The Act’s legislative history also prior status review and determination
the species may be warranted. supports explicitly recognizing the are part of the information readily
In § 424.14(g)(1)(ii), we propose to discretion that the Services have to available in the agency’s possession for
add a new sentence to clarify that the bring their informed expertise and consideration in evaluating the
Services may consider information that judgment to bear in reviewing petitions. subsequent petition, and they play an
is readily available in the relevant In a discussion of judicial review of the important role in setting the context for
agency’s possession at the time it makes Secretary’s 90-day findings on petitions, the 90-day finding. In addition, 5-year
a 90-day finding. For purposes of a House Conference report states that, reviews completed for listed species
§ 424.14(g)(1), the Services recognize when courts review such a decision, the would be considered in our evaluation
that the statute places the obligation ‘‘object of [the judicial] review is to of a petition to delist or reclassify.
squarely on the petitioner to present the determine whether the Secretary’s Although the substantial-information
requisite level of information to meet action was arbitrary or capricious in standard applies to all petitions under
the ‘‘substantial information’’ test, and light of the scientific and commercial section 4(b)(3)(A) of the Act, the
that the Services therefore should not information available concerning the standard’s application depends on the
seek to supplement petitions. (Please petitioned action.’’ H.R. Conf. Rep. No. context in which the finding is being
see the Columbian sharp-tailed grouse 97–835, at 20, reprinted in 1982 made. The context of a finding after a
case (WildEarth Guardians v. U.S. U.S.C.C.A.N. 2860, 2862 (emphasis status review and determination is quite
Secretary of the Interior, 2011 U.S. Dist. added). By requiring courts to evaluate different than that before any status
Lexis 32470 (D. Idaho Mar. 28, 2011)), the Secretary’s substantial information review has been completed. Thus,
which provided, among other things, findings in light of information proposed § 424.14(g)(1)(iii) requires that
that the petitioner has the burden of ‘‘available,’’ this statement suggests that for a subsequent petition to provide
providing substantial information.) the drafters anticipated that the substantial information the petition
However, the Services believe they Secretary could evaluate petitions in the must provide sufficient new information
should evaluate such petitions in context of scientific and commercial or analysis such that a reasonable
context and using the Services’ information available to the Services, person conducting an impartial
expertise. In order to apply their best and not limited arbitrarily to a subset of scientific review would conclude that
professional judgment, Service staff available information presented in the the action proposed in the petition may
reviewing petitions may need to take petitions. In these regulatory be warranted, despite the previous
into account information readily amendments, the Services have crafted determination. (Please see the
available in the agency’s possession, a balanced approach that will ensure Columbian sharp-tailed grouse case
including both information tending to that the Services may take into account (WildEarth Guardians v. U.S. Secretary
support the petition and information the information available to us, without of the Interior, 2011 U.S. Dist. Lexis
tending to contradict the information opening the door to the type of wide- 32470 (D. Idaho Mar. 28, 2011)), in
presented therein. Although the ranging survey more appropriate for a which the court found the FWS could
Services are mindful that, at the stage of status review. The intent is not to solicit consider scientific conclusions in
formulating an initial finding, they new information. previous 12-month finding valid,
should not engage in outside research or The precise range of information because that finding was not
an effort to comprehensively compile properly considered readily available in challenged.)
the best available information, they the agency’s possession will vary with A reasonable person would not
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must be able to place the information circumstances, but could include the conclude that the petitioned action may
presented in the petition in context. information physically held by any be warranted if the petition fails to
The Act contemplates a two-step office within the Services (including, for present any substantial new information
process in reviewing a petition. The 12- example, the NMFS Science Centers and or analysis that might alter the
month finding is meant to be the more FWS Field Offices), and may also conclusions of the Services’ prior
in-depth determination and follows a include information stored determination. Following a positive 90-
status review, while the 90-day finding electronically in databases routinely day finding on a petition, the Services
is meant to be a quicker evaluation of consulted by the Services in the gather all available scientific and

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Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules 29291

commercial information and conduct a 4 of the Act. Current paragraph (b)(4) habitat. See Sierra Club v. U.S. Fish and
status review of the species; the would be redesignated as paragraph Wildlife Service, 2013 U.S. Dist. LEXIS
resulting 12-month finding is a result of (g)(3), although we propose to remove 37349 (D.D.C. Mar. 19, 2013) (12-month
this review. The Secretary may also the reference in the current language determinations on petitions to revise are
initiate and conduct a status review on that ‘‘no further finding of substantial committed to the agency’s discretion by
his or her own and determine if listing, information will be required,’’ as it law, and thus unreviewable under the
delisting, or reclassifying is warranted. merely repeats statutory language. Administrative Procedure Act); Morrill
Similarly, a final determination on a v. Lujan, 802 F. Supp. 424 (S.D. Ala.
Findings on a Petition To Revise Critical
proposed rule to list or delist a species 1992) (revisions to critical habitat are
Habitat—Paragraph (h)
requires that we first conduct a status discretionary); see also Barnhart v.
review of the species. If the subsequent Proposed § 424.14(h) would explain Sigman Coal Co., Inc., 122 S. Ct. 941,
petition fails to provide any substantial the kinds of findings that the Services 951 (2002) (‘‘it is a general principle of
new information or analysis beyond that may make on a petition to revise critical statutory construction that when
already considered in a prior status habitat. Proposed paragraph (h)(1) is ‘Congress includes particular language
review or 5-year review that resulted in essentially the same as current in one section of a statute but omits it
a finding that listing or reclassification paragraph (c)(1) and describes the in another section of the same Act, it is
of the species is not warranted, it would standard applicable to the Secretary’s generally presumed that Congress acts
not be rational to expect a different finding at the 90-day stage. Please refer intentionally and purposely in the
outcome. to the discussion of the ‘‘substantial disparate inclusion or exclusion’ ’’)
One corollary of this conclusion is information’’ test discussed in the (citing Russello v. United States, 464
that the Secretary may find that a description of § 424.14(g)(1), above. U.S. 16, 23 (1983)); Federal Election
subsequent petition fails the Proposed paragraph (h)(2) would Commission v. National Rifle Ass’n of
‘‘substantial information’’ standard, specifically acknowledge, consistent America, 254 F.3d 173, 194 (D.C. Cir.
even though a prior petition seeking the with the statute, that such finding may, 2001) (same).
same action initially received a positive but need not, take a form similar to one Further, the legislative history for the
90-day finding. Because the prior status of the findings called for at the 12- 1982 amendments that added the
review, and resultant 12-month finding, month stage in the review of a petition petition provisions to the Act confirms
are now a part of the information readily to list, delist, or reclassify species. that Congress intended to grant
available in the agency’s possession, the Section 4(a)(3)(A) of the Act establishes discretion to the Services in
subsequent petition is on a different a mandatory duty to designate critical determining how to respond to petitions
footing from the prior petition. habitat for listed species to the to revise critical habitat. After
Although similar information may have maximum extent prudent and discussing at length the detailed listing
qualified as ‘‘substantial’’ when it was determinable at the time of listing (in petition provisions and their intended
initially evaluated, it may not subsection (A)(i)), but respecting meaning, Congress said of the critical
necessarily be considered substantial in subsequent revision of such habitat habitat petition requirements, ‘‘Petitions
the context of the completed status provides only that the Services ‘‘may, to revise critical habitat designations
review. from time-to-time thereafter as may be treated differently.’’ H.R. Rep.
The completion of a status review of appropriate, revise such designation’’ No. 97–835, at 22 (1982), reprinted in
a species consumes considerable agency (in subsection (A)(ii) (emphasis added)). 1982 U.S.C.C.A.N. 2860, 2862.
resources. The application of That the Services have broad The Services may find in particular
§ 424.14(g)(1)(iii) is intended to assist discretion to decide when it is situations that terminology similar to
the Services in making judicious use of appropriate to revise critical habitat is that set out in the listing-petition
those resources, by eliminating also evident in the differences between provisions is useful for explaining their
unnecessary duplication of effort in the Act’s provisions discussing petitions intended response at the 12-month stage
responding to a petition when the to revise critical habitat, on the one on a petition to revise critical habitat.
Services have already evaluated the hand, and the far more prescriptive For example, the Services have, at
species in question and no substantial provisions regarding the possible times, used the term ‘‘warranted’’ to
new information or analysis is available. findings that can be made at the 12- indicate that requested revisions of
This would allow the Services to month stage on petitions to list, delist, critical habitat would satisfy the
instead concentrate on petitions for or reclassify species, on the other. definition of critical habitat in section 3
actions that will best make use of Section 4(b)(3)(B) includes three of the Act. However, use of the listing-
limited agency resources and potentially detailed and exclusive options for 12- petition terms in a finding on a petition
result in greater conservation value for month findings on petitions to list, to revise critical habitat would not mean
a species that may be in need of the delist, or reclassify species. In contrast, that the associated listing-petition
protections of the Act. section 4(b)(3)(D)(ii) requires only that procedures and timelines apply or are
Proposed § 424.14(g)(2) is the Secretary (acting through the required to be followed with respect to
substantially the same as current Services) ‘‘determine how he intends to the petition. For example, if the Services
paragraph (b)(3). Among other changes, proceed with the requested revision’’ find that a petitioned revision of critical
we propose new language clarifying the and promptly publish notice of such habitat is, in effect, ‘‘warranted,’’ in that
standard for making expeditious- intention in the Federal Register within the areas would meet the definition of
progress determinations in warranted- 12 months of receipt of a petition to ‘‘critical habitat,’’ that finding would
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but-precluded findings, including (in revise critical habitat that has been not require the Services to publish a
paragraph (g)(2)(iii)(B)) a clear found to present substantial information proposed rule to implement the revision
acknowledgement that such that the petitioned revision may be in any particular timeframe. Similarly, a
determinations are to be made in light warranted. The differences in these finding on a petition to revise critical
of resources available after complying subsections indicates that the listing habitat that uses the phrase ‘‘warranted
with nondiscretionary duties, court petition procedures are not required to but precluded,’’ or a functionally similar
orders, and court-approved settlement be followed in determining how to phrase, to describe the Secretary’s
agreements to take actions under section proceed with petitions to revise critical intention would not trigger the

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29292 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules

requirements of section 4(b)(3)(B)(iii) or from all interested parties. We solicit post all hardcopy submissions on
(C) (establishing requirements to make comments, information, and http://www.regulations.gov.
particular findings, to implement a recommendations from governmental Information and supporting
monitoring system, etc.). agencies, Native American tribes, the documentation that we receive in
Though the Services have discretion scientific community, industry groups, response to this proposed rule will be
to determine how to proceed with a environmental interest groups, and any available for you to review at http://
petition to revise critical habitat, the other interested parties on this proposed www.regulations.gov, or by
Services believe that certain factors rule. All comments and materials appointment, during normal business
respecting conservation and recovery of received by the date listed in DATES, hours, at the U.S. Fish and Wildlife
the relevant species are likely to be above, will be considered prior to the Service, Division of Conservation and
relevant and potentially important to approval of a final rule. Classification (see FOR FURTHER
most such determinations. Such factors We request comments and INFORMATION CONTACT).
may include, but are not limited to: The information evaluating each of several
status of the existing critical habitat for alternatives for insuring greater Required Determinations
which revisions are sought (e.g., when inclusion of relevant data supporting Regulatory Planning and Review
it was designated, the extent of the petitions, including information (Executive Orders 12866 and 13563)
species’ range included in the available from State conservation
agencies within the range of the species. Executive Order 12866 provides that
designation); the effectiveness or
We specifically seek comment on the Office of Management and Budget’s
potential of the existing critical habitat
proposed paragraph (b)(9), requiring Office of Information and Regulatory
to contribute to the conservation of the
petitioner coordination with States prior Affairs (OIRA) will review all significant
relevant listed species; the potential
to submission of a petition to the Fish rules. The Office of Information and
conservation benefit of the petitioned
and Wildlife Service, and paragraph Regulatory Affairs has determined that
revision to the listed species relative to
(b)(10), requiring certification that all this rule is not significant.
the existing designation; whether there
reasonably available information, Executive Order 13563 reaffirms the
are other, higher-priority conservation
including relevant information publicly principles of E.O. 12866 while calling
actions that need to be completed under
available from affected States’ Web sites, for improvements in the nation’s
the Act, particularly for the species that
has been gathered and appended to a regulatory system to promote
is the subject of the petitioned revision;
petition filed with either Service. We predictability, to reduce uncertainty,
the availability of personnel, funding,
note that either of these two provisions and to use the best, most innovative,
and contractual or other resources
could stand alone, or both could be and least burdensome tools for
required to complete the requested
included in a final rule, as shown in the achieving regulatory ends. The
revision; and the precedent that
proposed regulatory text. We also executive order directs agencies to
accepting the petition might set for
suggested an alternative to (b)(10) that consider regulatory approaches that
subsequent requested revisions.
would require a certification only that reduce burdens and maintain flexibility
Petitions To Initially Designate Critical relevant information from affected and freedom of choice for the public
Habitat and Petitions for Special States’ Web sites has been gathered and where these approaches are relevant,
Rules—Paragraph (i) appended to a petition filed with either feasible, and consistent with regulatory
Proposed § 424.14(i) would be Service. We seek information on which objectives. E.O. 13563 emphasizes
substantially the same as current alternatives, alone or in combination, further that regulations must be based
paragraph (d), regarding petitions to would be most consistent with law and on the best available science and that
initially designate critical habitat or for best achieve our goals of fostering the rulemaking process must allow for
adoption of special rules under section better-informed petitions and greater public participation and an open
4(d) of the Act. cooperation with States. We also seek exchange of ideas. We have developed
comments and information regarding this rule in a manner consistent with
Withdrawn Petitions—Paragraph (j) any other alternative the public may these requirements. This proposed rule
Proposed § 424.14(j) would describe suggest to achieve the goals of greater is consistent with Executive Order
the process for a petitioner to withdraw coordination with States and better- 13563, and in particular with the
a petition, and the Services’ discretion supported petitions. Finally, we seek requirement of retrospective analysis of
to discontinue action on the withdrawn comment on the criteria in paragraph existing rules, designed ‘‘to make the
petition. Although the Services may (d), including comments on the utility agency’s regulatory program more
discontinue work on a 90-day or 12- of the criteria, the adequacy of the effective or less burdensome in
month finding for a petition that is criteria, and the effect of the criteria on achieving the regulatory objectives.’’
withdrawn, in the case of a petition to the workload on the petitioner. Regulatory Flexibility Act
list a species, the Services may use their You may submit your information
own process to evaluate whether the concerning this proposed rule by one of Under the Regulatory Flexibility Act
species may warrant listing and whether the methods listed in ADDRESSES. If you (as amended by the Small Business
it should become a candidate for listing. submit information via http:// Regulatory Enforcement Fairness Act
In the case of the withdrawal of a www.regulations.gov, your entire (SBREFA) of 1996; 5 U.S.C. 601 et seq.),
petition to delist, uplist or downlist a submission—including any personal whenever a Federal agency is required
species, the Services may use the 5-year identifying information—will be posted to publish a notice of rulemaking for
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review process to further evaluate the on the Web site. If your submission is any proposed or final rule, it must
status of the species, or elect to consider made via a hardcopy that includes prepare, and make available for public
the issue at any time. personal identifying information, you comment, a regulatory flexibility
may request at the top of your document analysis that describes the effect of the
Request for Information that we withhold this personal rule on small entities (i.e., small
Any final rule based on this proposal identifying information from public businesses, small organizations, and
will consider information and review. However, we cannot guarantee small government jurisdictions).
recommendations timely submitted that we will be able to do so. We will However, no regulatory flexibility

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Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules 29293

analysis is required if the head of an Takings (E.O. 12630) Environmental Policy Act (43 CFR
agency, or his designee, certifies that the In accordance with Executive Order 46.10–46.450), the Department of the
rule will not have a significant 12630, this proposed rule would not Interior Manual (516 DM 1–6 and 8),
economic impact on a substantial have significant takings implications. and National Oceanic and Atmospheric
number of small entities. SBREFA This proposed rule would not pertain to Administration (NOAA) Administrative
amended the Regulatory Flexibility Act ‘‘taking’’ of private property interests, Order 216–6. We invite the public to
to require Federal agencies to provide a nor would it directly affect private comment on the extent to which this
statement of the factual basis for property. A takings implication proposed regulation may have a
certifying that a rule will not have a assessment is not required because this significant impact on the human
significant economic impact on a proposed rule (1) would not effectively environment, or fall within one of the
substantial number of small entities. We compel a property owner to suffer a categorical exclusions for actions that
certify that, if adopted as proposed, this physical invasion of property and (2) have no individual or cumulative effect
proposed rule would not have a would not deny all economically on the quality of the human
significant economic effect on a beneficial or productive use of the land environment. We will complete our
substantial number of small entities. or aquatic resources. This proposed rule analysis, in compliance with NEPA,
The following discussion explains our would substantially advance a before finalizing this regulation.
rationale. legitimate government interest Energy Supply, Distribution or Use (E.O.
The proposed rule would revise and (conservation and recovery of 13211)
clarify the regulations governing endangered and threatened species) and
documentation needed by the Services would not present a barrier to all Executive Order 13211 requires
in order to effectively and efficiently reasonable and expected beneficial use agencies to prepare Statements of
evaluate petitions under the Act. While of private property. Energy Effects when undertaking certain
some of the changes may require actions. This proposed rule, if made
Federalism (E.O. 13132)
petitioners to expend some time (such final, is not expected to affect energy
as coordination with State(s)) and effort In accordance with Executive Order supplies, distribution, and use.
(providing complete petitions), we do 13132, we have considered whether this Therefore, this action is not a significant
not expect this will prove to be a proposed rule would have significant energy action, and no Statement of
hardship, economically or otherwise. Federalism effects and have determined Energy Effects is required.
Further, we expect the effect on any that a federalism summary impact
statement is not required. This proposed Clarity of This Proposed Rule
external entities, large or small, would
likely be positive, as they will lead to rule pertains only to the petition process We are required by Executive Orders
improved quality of petitions through under the Endangered Species Act, and 12866 and 12988 and by the
expanded content requirements and would not have substantial direct effects Presidential Memorandum of June 1,
guidelines. on the States, on the relationship 1998, to write all rules in plain
between the Federal Government and language. This means that each rule or
Unfunded Mandates Reform Act (2 the States, or on the distribution of policy we publish must:
U.S.C. 1501 et seq.) power and responsibilities among the
(a) Be logically organized;
In accordance with the Unfunded various levels of government.
(b) Use the active voice to address
Mandates Reform Act (2 U.S.C. 1501 et Civil Justice Reform (E.O. 12988) readers directly;
seq.):
This proposed rule does not unduly (c) Use clear language rather than
(a) On the basis of information
burden the judicial system and meets jargon;
contained in the Regulatory Flexibility
the applicable standards provided in (d) Be divided into short sections and
Act section above, this proposed rule
sections 3(a) and 3(b)(2) of Executive sentences; and
would not ‘‘significantly or uniquely’’
Order 12988. This proposed rule would (e) Use lists and tables wherever
affect small governments. We have
clarify the petition process under the possible.
determined and certify pursuant to the
Endangered Species Act.
Unfunded Mandates Reform Act, 2 If you feel that we have not met these
U.S.C. 1502, that this rule would not Government-to-Government requirements, send us comments by one
impose a cost of $100 million or more Relationship With Tribes of the methods listed in ADDRESSES. To
in any given year on local or State In accordance with the President’s better help us revise the proposed rule,
governments or private entities. A Small memorandum of April 29, 1994, your comments should be as specific as
Government Agency Plan is not ‘‘Government-to-Government Relations possible. For example, you should tell
required. As explained above, small With Native American Tribal us the sections or paragraphs that are
governments would not be affected Governments’’ (59 FR 22951), Executive unclearly written, which sections or
because the proposed rule would not Order 13175, and the Department of the sentences are too long, the sections
place additional requirements on any Interior’s manual at 512 DM 2, we where you feel lists or tables would be
city, county, or other local readily acknowledge our responsibility useful, etc.
municipalities. to communicate meaningfully with List of Subjects in 50 CFR Part 424
(b) This proposed rule would not recognized Federal Tribes on a
produce a Federal mandate on State, government-to-government basis. Administrative practice and
procedure, Endangered and threatened
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local, or tribal governments or the
private sector of $100 million or greater National Environmental Policy Act species.
in any year; that is, this proposed rule We are analyzing this proposed Proposed Regulation Promulgation
is not a ‘‘significant regulatory action’’’ regulation in accordance with the
under the Unfunded Mandates Reform criteria of the National Environmental Accordingly, we propose to amend
Act. This proposed rule would impose Policy Act (NEPA), the Department of part 424, subchapter A of chapter IV,
no obligations on State, local, or tribal the Interior regulations on title 50 of the Code of Federal
governments. Implementation of the National Regulations, as set forth below:

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29294 Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules

PART 424—LISTING ENDANGERED accuracy or completeness of the information that the petitioned action
AND THREATENED SPECIES AND petition, and all those data or comments may be warranted.
DESIGNATING CRITICAL HABITAT have been clearly labeled as such and (d) Additional information to include
appended to the petition; or in petitions to revise critical habitat.
■ 1. The authority citation for part 424 (B) Did not provide to the petitioner The Secretary’s determination as to
continues to read as follows: in response any data or written whether the petition provides
Authority: 16 U.S.C. 1531 et seq. comments regarding the accuracy or substantial information that the
completeness of the petition. petitioned action may be warranted will
■ 2. Revise § 424.14 to read as follows: depend in part on the degree to which
(10) Certification that the petitioner
§ 424.14 Petitions. has gathered all relevant information the petition includes the following types
(a) Ability to petition. Any interested (including information that may support of information; failure to include
person may submit a written petition to a negative 90-day finding) that is adequate information on any one or
the Secretary requesting that one of the reasonably available, such as that more of the following may result in the
actions described in § 424.10 be taken available on Web sites maintained by Secretary finding that the petition does
for a species. the affected States, and has clearly not present substantial information:
(b) Requirements for petitions. A labeled this information and appended (1) A description and map(s) of areas
petition must clearly identify itself as it to the petition. that the current designation does not
such, be dated, and contain the (c) Types of information to be include that should be included, or
following information: included in petitions to add or remove includes that should no longer be
(1) The name, signature, address, species from the lists, or change the included, and the benefits of
telephone number, if any, and the listed status of a species. The designating or not designating these
association, institution, or business Secretary’s determination as to whether specific areas as critical habitat.
affiliation, if any, of the petitioner; Petitioners should include available
the petition provides substantial
(2) The scientific and any common data layers if feasible;
information that the petitioned action
name of the species that is the subject (2) A description of the physical or
may be warranted will depend in part biological features essential for the
of the petition. One and only one on the degree to which the petition
species may be the subject of a petition; conservation of the species and whether
includes the following types of they may require special management
(3) A clear indication of the information; failure to include adequate
administrative action the petitioner considerations or protection;
information on any one or more of the (3) For any areas petitioned to be
seeks (e.g., listing of a species or following (except paragraph (5)) may
revision of critical habitat); added to critical habitat within the
result in the Secretary finding that the geographical area occupied by the
(4) A detailed narrative justification petition does not present substantial
for the recommended administrative species at time it was listed, information
information: indicating that the specific areas contain
action that contains an analysis of the (1) Information on current population
information presented; the physical or biological features that
status and trends and estimates of are essential to the conservation of the
(5) Literature citations that are current population sizes and
specific enough for the Secretary to species and may require special
distributions, both in captivity and the management considerations or
locate the information cited in the wild, if available;
petition, including page numbers or protection. The petitioner should also
(2) Identification of the factors under indicate which specific areas contain
chapters as applicable; section 4(a)(1) of the Act that may affect
(6) Electronic or hard copies of any which features;
the species and where these factors are (4) For any areas petitioned for
supporting materials (e.g., publications,
acting upon the species; removal from currently designated
maps, reports, letters from authorities)
(3) Whether any or all of the factors critical habitat within the geographical
cited in the petition, or valid links to
alone or in combination identified in area occupied by the species at the time
public Web sites where the supporting
section 4(a)(1) of the Act may cause the it was listed, information indicating that
materials can be accessed; and
(7) For a petition to list a species, species to be an endangered species or the specific areas do not contain
information to establish whether the threatened species (i.e., place the features (including features that allow
subject entity is a ‘‘species’’ as defined species in danger of extinction now or the area to support the species
in the Act. in the foreseeable future), and, if so, periodically, over time) that are
(8) For a petition to list a species, how, including a description of the essential to the conservation of the
delist a species, or change the status of magnitude and imminence of the species, or that these features do not
a listed species, information on the threats; require special management
current geographic range of the species, (4) Information on adequacy of consideration or protections;
including range States or countries. regulatory protections and conservation (5) For any areas petitioned to be
(9) For any petition submitted to the activities initiated or currently in place added to or removed from critical
U.S. Fish and Wildlife Service that may protect the species or its habitat that were outside the
pertaining to species found within the habitat; and geographical area occupied by the
United States, a certification: (5) Except for petitions to delist, species at the time it was listed,
(i) That a copy of the petition was information that is useful in information indicating why the
provided to the State agency(ies) determining whether a critical habitat petitioned areas are or are not essential
tkelley on DSK3SPTVN1PROD with PROPOSALS

responsible for the management and designation for the species is prudent for the conservation of the species; and
conservation of fish, plant, or wildlife and determinable (see § 424.12), (6) Information demonstrating that the
resources in each State where the including information on recommended petition includes a complete
species occurs at least 30 days prior to boundaries and physical features and presentation of the relevant facts,
submission to the Service; and the habitat requirements of the species; including an explanation of what
(ii) That the State agency(ies) either: such information, however, will not be sources of information the petitioner
(A) Provided to the petitioner data or a basis for determining whether the consulted in drafting the petition, as
written comments regarding the petition has presented substantial well as any relevant information known

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Federal Register / Vol. 80, No. 98 / Thursday, May 21, 2015 / Proposed Rules 29295

to the petitioner not included in the be applied in light of any prior again make one of the findings
petition. determinations made by the Secretary described in paragraph (g)(2) of this
(e) Response to requests. (1) If a for the species that is the subject of the section with regard to such petition.
request does not meet the requirements petition. Where the Secretary has (h) Findings on petitions to revise
set forth at paragraph (b) of this section, already conducted a status review of critical habitat. (1) To the maximum
the Secretary will reject the request that species (whether in response to a extent practicable, within 90 days of
without making a finding, and will petition or on the Secretary’s own receiving a petition to revise a critical
notify the sender and provide an initiative) and made a final listing habitat designation, the Secretary will
explanation of the rejection. determination, any petition seeking to make a finding as to whether the
(2) If a request does meet the list, reclassify, or delist that species will petition presents substantial scientific
requirements set forth at paragraph (b) be considered a ‘‘subsequent petition’’ information indicating that the revision
of this section, the Secretary will for purposes of this section. A may be warranted. The Secretary will
acknowledge, in writing, the receipt of subsequent petition provides promptly publish such finding in the
a petition, within 30 days of receipt. ‘‘substantial scientific or commercial Federal Register and so notify the
(f) Supplemental information. If the information’’ only if it provides petitioner.
petitioner provides supplemental sufficient new information or analysis (i) For the purposes of this section,
information before the initial finding is not considered in the previous ‘‘substantial scientific information’’
made and asks that it be considered in determination (or previous 5-year refers to credible scientific information
making a finding, the new information, review, if applicable) such that a in support of the petition’s claims such
along with the previously submitted reasonable person conducting an that a reasonable person conducting an
information, is treated as a new petition impartial scientific review would impartial scientific review would
that supersedes the original petition, conclude that the action proposed in the conclude that the revision proposed in
and the statutory timeframes will begin petition may be warranted despite the the petition may be warranted.
when such supplemental information is previous determination. Conclusions drawn in the petition
received. (2) If a positive 90-day finding is without the support of credible
(g) Findings on petitions to add or made, the Secretary will commence a scientific information will not be
remove a species from the lists, or review of the status of the species considered ‘‘substantial information.’’
change the listed status of a species. (1) concerned. Within 12 months of receipt (ii) The Secretary will consider the
To the maximum extent practicable, of the petition, the Secretary will make information referenced at paragraphs
within 90 days of receiving a petition to one of the following findings: (b), (d), and (f) of this section. The
add a species to the lists, remove a (i) The petitioned action is not Secretary may also consider other
species from the lists, or change the warranted, in which case the Secretary information readily available in the
listed status of a species, the Secretary shall promptly publish such finding in agency’s possession at the time the
will make a finding as to whether the the Federal Register and so notify the determination is made in reaching its
petition presents substantial scientific petitioner. initial finding on the petition. The
or commercial information indicating (ii) The petitioned action is Secretary will not consider any
that the petitioned action may be warranted, in which case the Secretary supporting materials cited by the
warranted. The Secretary will promptly will promptly publish in the Federal petitioner that are not provided to us by
publish such finding in the Federal Register a proposed regulation to the petitioner in the format required by
Register and so notify the petitioner. implement the action pursuant to paragraph (b)(6) of this section or
(i) For the purposes of this section, § 424.16; or otherwise readily available in our
‘‘substantial scientific or commercial (iii) The petitioned action is possession.
information’’ refers to credible scientific warranted, but: (2) Within 12 months after receiving
or commercial information in support of (A) The immediate proposal and a petition found to present substantial
the petition’s claims such that a timely promulgation of a regulation to information indicating that revision of a
reasonable person conducting an implement the petitioned action is critical habitat designation may be
impartial scientific review would precluded because of other pending warranted, the Secretary will determine
conclude that the action proposed in the proposals to list, delist, or change the how to proceed with the requested
petition may be warranted. Conclusions listed status of species; and revision, and will promptly publish
drawn in the petition without the (B) Expeditious progress is being notice of such intention in the Federal
support of credible scientific or made to list, delist, or change the listed Register. Such finding may, but need
commercial information will not be status of qualified species, in which not, take a form similar to one of the
considered ‘‘substantial information.’’ case such finding will be promptly findings described under paragraph
(ii) The Secretary will consider the published in the Federal Register (g)(2) of this section.
information referenced at paragraphs together with a description and (i) Petitions to designate critical
(b), (c), and (f) of this section. The evaluation of the reasons and data on habitat or adopt special rules. Upon
Secretary may also consider information which the finding is based. The receiving a petition to designate critical
readily available in the agency’s Secretary will make a determination of habitat or to adopt a special rule to
possession at the time the determination expeditious progress in relation to the provide for the conservation of a
is made in reaching his or her initial amount of funds available after species, the Secretary will promptly
finding on the petition. The Secretary complying with nondiscretionary duties conduct a review in accordance with the
tkelley on DSK3SPTVN1PROD with PROPOSALS

will not consider any supporting under section 4 of the Act and court Administrative Procedure Act (5 U.S.C.
materials cited by the petitioner that are orders and court-approved settlement 553) and applicable Departmental
not provided to us by the petitioner in agreements to take actions pursuant to regulations, and take appropriate action.
the format required at paragraph (b)(6) section 4 of the Act. (j) Withdrawal of petition. A
of this section or otherwise readily (3) If a finding is made under petitioner may withdraw the petition at
available in our possession. paragraph (g)(2)(iii) of this section with any time during the petition process by
(iii) The ‘‘substantial scientific or regard to any petition, the Secretary submitting such request in writing. This
commercial information’’ standard must will, within 12 months of such finding, request must include the name,

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Document Created: 2018-10-24 10:27:13
Document Modified: 2018-10-24 10:27:13

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		We will accept comments that we receive on or before July 20, 2015. Please note that if you are using the Federal eRulemaking Portal
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.
FR Citation		80 FR 29286
RIN Number		1018-BA53 and 0648-BF06
CFR Associated		Administrative Practice and Procedure and Endangered and Threatened Species

80 FR 29286 - Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Petitions

DEPARTMENT OF THE INTERIORFish and Wildlife ServiceDEPARTMENT OF COMMERCENational Marine Fisheries Service

Federal Register Volume 80, Issue 98 (May 21, 2015)

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Marine Fisheries Service