[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Rules and Regulations]
[Pages 25611-25623]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10178]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 17 and 424
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 226 and 424
[Docket Nos. FWS-R9-ES-2010-0073; NOAA-110131071-2013-02; MO-92210-0-
0009-B4]
RIN 1018-AX44; 0648-BA77
Endangered and Threatened Wildlife and Plants; Revised
Implementing Regulations for Requirements To Publish Textual
Descriptions of Boundaries of Critical Habitat
AGENCY: United States Fish and Wildlife Service (FWS), Interior;
National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We (FWS and NMFS; also jointly referred to as the Services)
are revising regulations related to publishing textual descriptions of
proposed and final critical habitat boundaries in the Federal Register
for codification in the Code of Federal Regulations. In the interest of
making the process of designating critical habitat more user-friendly
for affected parties, the public as a whole, and the Services, as well
as more efficient and cost effective, we are going to maintain the
publication of maps of proposed and final critical habitat
designations, but are making optional the inclusion of any textual
description of the boundaries of the designation in the Federal
Register for codification in the Code of Federal Regulations. The
boundaries of critical habitat as mapped or otherwise described in the
Regulation Promulgation section of a rulemaking that is published in
the Federal Register will be the official delineation of the
designation. The coordinates and/or plot points from which the maps are
generated will be included in the administrative record for the
designation, and will be available to the public on the Internet site
of the Service promulgating the designation, at www.regulations.gov,
and at the lead field office of the Service responsible for the
designation. We will also continue our practice of providing the public
with additional tools and supporting information, such as interactive
maps and additional descriptions, on the Internet site of the Service
promulgating the designation and at the lead field office responsible
for the designation (and we may also include such information in the
preamble and/or at www.regulations.gov) to assist the public in
evaluating the coverage of the critical habitat designation. We have
undertaken this effort as part of the Services' response to Executive
Order 13563 (Jan. 18, 2011) directing Federal agencies to review their
existing regulations and, inter alia, to modify or streamline them in
accordance with what they learned.
DATES: This rule becomes effective May 31, 2012.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Supporting documentation used in the preparation
of this rule will be available for public inspection, by appointment,
during normal business hours at: U.S. Fish and Wildlife Service,
Division of
[[Page 25612]]
Conservation and Classification, 4401 N. Fairfax Drive, Suite 420;
Arlington, VA 22203, telephone 703/358-2171; facsimile 703/358-1735 and
National Marine Fisheries Service, Office of Protected Resources, 1315
East-West Highway, Silver Spring, MD 20910, telephone 301-713-1401;
facsimile 301-713-0376.
FOR FURTHER INFORMATION CONTACT: Nicole Alt, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 4401 N. Fairfax
Drive, Suite 420; Arlington, VA 22203, telephone 703/358-2171;
facsimile 703/358-1735 or Marta Nammack, National Marine Fisheries
Service, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, telephone 301-427-8469; facsimile 301-713-0376. If
you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Before a plant or animal species can receive the protection
provided by the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.) (Act), it must first be added to the Federal lists of
threatened and endangered wildlife and plants. The List of Endangered
and Threatened Wildlife (found in title 50 of the Code of Federal
Regulations (CFR) in Sec. 17.11) and the List of Endangered and
Threatened Plants (found in 50 CFR 17.12) contain the names of all
organisms that have been determined by the Services to qualify as
``endangered species'' or ``threatened species.'' After a species is
listed as endangered or threatened under the Act, the Service that
listed the species designates as ``critical habitat,'' to the maximum
extent prudent and determinable, specific areas essential for the
conservation of the species.
Under section 4(b)(5)(A) of the Act, the Services are required,
when designating or revising critical habitat for species listed under
the Act, to publish the complete text of the regulation in the
Regulation Promulgation section of a rulemaking published in the
Federal Register. The existing implementing regulations found in 50 CFR
17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a)
have interpreted this requirement to comprise publication of both maps
and textual descriptions of the boundaries of such habitat. We have
found over time that textual descriptions of critical habitat
boundaries are often difficult to interpret and understand, and do not
provide clarity regarding the areas being designated. Publishing these
textual descriptions is also inefficient and costly. Below we discuss
our current requirements and their limitations, and the regulation
changes we are promulgating to address these issues.
NMFS' current practice is to publish maps in the Federal Register
along with a textual description of the boundaries of the areas being
designated as critical habitat in both their proposed and final rules.
FWS publishes only the maps in the proposed critical habitat rule and
then publishes the maps along with a textual description of the
boundaries in the final critical habitat rule. Historically we
described the boundaries following a variety of methods, including
Public Land Survey System designations (which specify township, range,
and section; sometimes referred to as the ``rectangular survey
system'') and metes-and-bounds (a system of describing a parcel of land
using the physical features of local geography, along with directions
and distances, to define the boundaries). However, as GIS and specific
geographic-based data have become more available, we have been using
predominantly the Universal Transverse Mercator (UTM) coordinate system
(a grid-based system employing a series of 60 zones to specify
locations on the surface of the Earth) and latitude-longitude. We
adopted these practices because our current regulations at 50 CFR
424.12(c) state, ``Each critical habitat will be defined by specific
limits using reference points and lines as found on standard
topographic maps of the area.'' Unfortunately, these descriptions are
often difficult to interpret and understand, and do not provide clarity
regarding which areas are being designated as critical habitat.
Therefore, in addition to the maps and textual descriptions published
in the Federal Register, over the last several years we have provided
the public with interactive maps and additional descriptions, on the
Services' Internet sites and at the lead field office responsible for
the designation. References to these Internet sites are cited
throughout the proposed (NMFS only) and final (NMFS and FWS) rules and
in our outreach materials for the specific action. In addition, we have
provided maps and GIS coverages (data layers) to affected Federal
agencies, states, counties, jurisdictions, and interested parties for
use in their computer databases and to make available to their
constituencies. Our understanding that the public has referred to these
latter materials in lieu of the detailed coordinates and other similar
textual descriptions published in the Federal Register and codified in
the Code of Federal Regulations reinforces our view that these textual
descriptions are of limited utility in informing the public as to which
areas are designated as critical habitat.
Given that the textual descriptions are of limited utility, we are
revising the implementing regulations contained within 50 CFR 17.94(b),
226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to
eliminate the requirement to publish textual descriptions of proposed
(NMFS only) and final (NMFS and FWS) critical habitat boundaries in the
Federal Register and reprinting in the CFR, and instead provide that
the map(s), as clarified or refined by any textual language within the
rule, constitutes the definition of the boundaries of a critical
habitat. Each critical habitat area will be shown on a map, with more-
detailed information discussed in the preamble of the rulemaking
documents published in the Federal Register. The map published in the
CFR will be generated from the coordinates and/or plot points
corresponding to the location of the boundaries. These coordinates and/
or plot points will be included in the administrative record for the
designation, and will be available to the public on the Internet site
of the Service promulgating the designation, at www.regulations.gov,
and at the lead field office of the Service responsible for the
designation. In addition, if the Service responsible for the
designation concludes that additional tools or supporting information
would be appropriate and would help the public understand the official
boundary map, it will make the additional tools and supporting
information available on our Internet sites and at the lead field
office of the Service that is responsible for the critical habitat
designation (and may also include it in the preamble and/or at
www.regulations.gov). The maps and brief textual descriptions that we
plan to publish in the Federal Register after we finalize this rule
will be sufficient to inform the public of the boundaries of a
particular critical habitat designation, and thus constitutes
sufficient notice to the public. It is not necessary--or generally even
helpful--for the public to have UTM or latitude-longitude coordinates
in order to know where critical habitat is located. We believe these
changes will be for the public good and make the process more user-
friendly, without compromising the public's understanding of the
overall process.
[[Page 25613]]
In addition to making the process more accessible to the public,
eliminating the need to publish detailed textual descriptions in the
Federal Register and annually in the CFR will also result in
significant financial savings, thereby saving Federal resources. In
FWS's final designations, UTM coordinate pairs or other textual
descriptions of the boundaries of areas often account for more than
half of the rulemaking document; therefore, eliminating the requirement
to publish those textual descriptions will result in significant
savings of Federal Register publication costs. For example, FWS spent
$764,523 in fiscal year 2008, $539,639 in fiscal year 2009, and
$662,952 in fiscal year 2010 to publish critical habitat designations
in the Federal Register, for a total of $1,967,114 for the three fiscal
years combined. If, based on the percentage of critical habitat Federal
Register pages that were devoted in 2010 to textual descriptions, we
estimate that 50 percent of those total costs were spent on the
publication of the textual descriptions of the boundaries, then
publishing those descriptions cost the Service $983,557 for the three
fiscal years, or $327,852 per fiscal year.
In addition, the regulation portion of the rule, including the maps
and textual descriptions of the boundaries, is reprinted annually in
the CFR, resulting in a further expenditure of taxpayer resources. FWS
spent $80,000 in fiscal year 2008, $92,400 in fiscal year 2009, and
$83,160 in fiscal year 2010 to reprint critical habitat designations in
the CFR. Based on a review of the current volume (i.e., number of
pages) of critical habitat designations represented in the CFR, we
estimate that the textual descriptions account for approximately 75
percent of the volume and therefore 75 percent of the printing costs.
Using the estimated 75 percent as the cost of reprinting the textual
descriptions of the boundaries, publishing those descriptions cost FWS
$191,670 for the three fiscal years. Adding this to the Federal
Register costs discussed above, we estimate that the annual cost for
publishing textual descriptions of boundaries in the Federal Register
and then reprinting them in the CFR is nearly $391,742 for FWS alone.
Thus, eliminating the need to publish latitude-longitude coordinates,
UTM coordinate pairs, or other detailed textual descriptions in the
Federal Register and CFR would result in a significant cost savings to
the Services and the public as a whole.
Finally, relying on maps and brief textual descriptions to identify
areas designated as critical habitat is consistent with the Act.
Section 4(a)(3)(A) of the Act only requires that critical habitat be
designated ``by regulation.'' Moreover, section 4(b)(5)(A) of the Act
indicates that the Secretary shall ``not less than 90 days before the
effective date of the regulation--(i) publish a general notice and the
complete text of the proposed regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (including the
complete text of the regulation).'' We interpret the mandate to publish
the ``complete text'' of the proposed regulation as requiring that the
regulation provide a sufficiently detailed description of the area
included within the proposed designation, in the form of maps and any
accompanying text, so as to provide all interested persons with an
understanding of, and a meaningful opportunity to comment on, the
critical habitat boundaries. As is already the current practice with
critical habitat designations containing detailed UTM coordinates as
required by the existing regulations, the public will be able to refer
to any additional supporting information we make available through our
outreach efforts, Internet sites, and at the lead field office
responsible for the designation to assist the public in understanding
the official boundary.
We note that the Services never maintained that requiring detailed
textual descriptions was legally necessary. Instead, the first critical
habitat regulations required only that critical habitat designations be
``accompanied by maps and/or geographical descriptions.'' 43 FR 870,
876 (Jan. 4, 1978). Although the Services subsequently added the
requirement that critical habitat designations include textual
descriptions describing the specific boundary limits of the critical
habitat, there is nothing in the preamble to that rule indicating that
the Services did so because the Act required it. Rather, it was in
response to several commenters, who had opined that the proposed rule
was not sufficiently clear in setting out the method by which critical
habitat boundaries would be described. 45 FR 13009, 13015 (Feb. 27,
1980). With this change, the regulations would continue to be explicit
as to the method by which critical habitat boundaries would be
described; it would just do so by means that do not require detailed
textual descriptions.
Summary of Comments and Recommendations
In the proposed rule published on May 17, 2011 (76 FR 28405), we
requested that all interested parties submit written comments on the
proposal by July 18, 2011. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties, and invited them to comment on the proposal. We did
not receive any requests for a public hearing.
During the comment period for the proposed rule, we received 14
comment letters directly addressing the proposed regulations for
requirements to publish textual descriptions of boundaries of critical
habitat. Five commenters supported the proposal, 8 commenters opposed
it, and one commenter was neutral. All substantive information provided
during comment periods has either been incorporated directly into this
final determination or addressed below.
Federal Agency Comments
(1) Comment: Two Federal agencies suggested that we provide a link
and a point of contact within the Federal Register publication to the
internet sites maintained by both Services.
Our Response: We will provide a link and a point of contact within
the Federal Register publication to the Internet sites that will house
the GIS information regarding the location of critical habitat.
(2) Comment: Two Federal agencies suggested we provide more
information on our GIS maps, such as detailed scale, legend, scale bar,
north arrow, title, source, the date critical habitat was finalized,
and Federal Register citation.
Our Response: We will provide as much information as possible on
the GIS maps to improve their usefulness.
Comments From States
Section 4(i) of the Act states, ``[T]he Secretary shall submit to
the State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments received from State agencies regarding the proposal to revise
the implementing regulations requiring textual descriptions of critical
habitat boundaries are addressed below.
(3) Comment: Technical publishing limitations can create a barrier
to utilizing the best scientific data available in the pictorial maps
published in the Federal Register.
Our Response: Although it is true there are technical publishing
limitations imposed by the Federal Register regarding map size and
detail, these limitations will not affect our mandated practice of
using the best available science. In addition, if there are limitations
imposed due to map size such that additional rule text would be
necessary to ensure that interested
[[Page 25614]]
persons have adequate notice to afford them a meaningful opportunity to
comment on the critical habitat boundary, we will provide language in
the rule text to clarify the map. Plus, the coordinates and/or plot
points from which the maps are generated will be included in the
administrative record for the designation, and will be available to the
public on the Internet site of the Service promulgating the
designation, at www.regulations.gov, and at the lead field office of
the Service responsible for the designation. For the convenience of the
public, we will continue to provide additional tools and supporting
information on our Internet sites and at the lead field office of the
Service that is responsible for the critical habitat designation (and
some of this information may also be included in the preamble and/or at
www.regulations.gov).
(4) Comment: Pictorial maps cannot always provide the same level of
detail that a textual description can provide.
Our Response: Although maps may not be as detailed as UTM and
latitude-longitude coordinates, the maps and any accompanying textual
description published in the Federal Register will provide sufficient
notice to the public of the designation. We are not prohibiting textual
descriptions. We always have the option to include them, and if we
determine they are needed to ensure the public has adequate notice, we
will include them in the rule text. We will also include in the
administrative record for the designation the coordinates and/or plot
points on which the maps are based, and will make them available to the
public on the Internet site of the Service promulgating the
designation, at www.regulations.gov, and at the lead field office of
the Service responsible for the designation. In addition, as is the
current practice, if we determine that any other supporting information
or additional tools would help the public understand the official
boundary map, we will make them available on our Internet sites and at
the lead field office responsible for the designation (and we may also
include such information in the preamble and/or at
www.regulations.gov).
(5) Comment: Under the proposed change, access to the GIS data
underlying the maps would be restricted.
Our Response: Access to the GIS data underlying the maps would
continue to be available on our Internet sites and from the lead field
office of the Service responsible for the critical habitat designation.
We will also make hard copies available for individuals who do not have
access to the internet upon request at our field offices. Our statement
that ``we do not think it is necessary for the public to have UTM or
latitude-longitude coordinates in order to know where critical habitat
is located,'' is based on our understanding that for the last few years
the public has not used the UTM or latitude-longitude coordinates to
determine if their property is located in critical habitat areas, and
that the UTM and latitude-longitude coordinates published in the
Federal Register have not helped most individuals determine if their
property is in or out of critical habitat designations, because they
would need to have access to USGS quadrangle maps in order to plot the
coordinates to determine the boundaries of critical habitat. We will
continue to include in the administrative record the coordinates and/or
plot points on which the maps are based, and we will make those
coordinates and/or plot points available to the public on our Internet
sites and at the lead field office of the Service responsible for the
critical habitat designation, and at www.regulations.gov, but will not
publish these data in the Federal Register.
(6) Comment: The Service's intention to address the technical
publishing limitations by directing the public to their Internet sites
and local offices for more information is inadequate.
Our Response: As discussed in our response to comment 4, we will
address the technical publishing limitations by including whatever
explanatory text the Service responsible for the designation determines
is necessary to ensure the public has adequate notice of the
designation. In addition, the coordinates and/or plot points from which
the maps are generated will be included in the administrative record
for the designation, and will be available to the public on the
Internet site of the Service promulgating the designation, at
www.regulations.gov, and at the lead field office of the Service
responsible for the designation. For the convenience of the public, we
will continue the current practice of making available on the Internet
site and at the local field office of the designating Service any
supporting information or additional tools that it determines would
help the public understand the official boundary map.
(7) Comment: The reliance on pictorial maps would affect the
Services' ability to analyze the primary constituent elements (PCE),
economic, national security, or other relevant impacts and the ability
of the States and the public to consider and comment on these issues.
Our Response: The Services are not changing the way we analyze the
physical and biological features essential to the conservation of the
species, including the primary constituent elements, economic, national
security, or other relevant impacts. We will continue to define the
critical habitat areas with coordinate data and use that data to
generate the critical habitat map contained in the rule. The only
difference from the way we presently are operating is that we would no
longer publish the coordinate data in the Federal Register. The States
and the public would still have that information in the supporting
administrative record, and would be able to obtain it on our Internet
sites, at www.regulations.gov, and at the lead field office of the
Service responsible for the critical habitat designation.
(8) Comment: Internet site addresses that contain the critical
habitat boundaries should be provided in easily accessible locations
for both the proposed and final rules.
Our Response: We will continue to provide the critical habitat
boundary information on our Internet sites and at the lead field office
of the Service responsible for the critical habitat designation and
will make it available at www.regulations.gov for easy access. We will
also continue to publish the Internet sites and local office addresses
in the Federal Register for both the proposed and final critical
habitat rules.
(9) Comment: Complete metadata related to critical habitat maps, as
well as a complete legal description of the boundary, should be
available on the Services' Internet sites and at all local field
offices within the region of the designation.
Our Response: We will provide this information on our Internet
sites and at the lead field office of the Service responsible for the
critical habitat designation (and we may also make it available at
www.regulations.gov).
(10) Comment: In describing the proposed and final critical habitat
boundary designation, the maps and data used in the Federal Register
and other information vehicles should include references to how
accurate the underlying data are and what at least the essential
elements of the metadata are.
Our Response: Information about the metadata and the accuracy of
the data will be provided in the supporting rulemaking files for the
proposed and final critical habitat boundaries. We will not publish
this information in the Federal Register.
(11) Comment: Critical habitat boundaries should be available in a
[[Page 25615]]
geographic information system (GIS) compatible format for downloading.
Our Response: We concur, and we will provide GIS maps on our
Internet sites and at the lead field office of the Service responsible
for the critical habitat designation (and we may also make it available
at www.regulations.gov).
Public Comments
(12) Comment: Three commenters fully support the proposal, because
it would significantly streamline the process of designating critical
habitat, would not weaken the effectiveness of the Act for wildlife,
and would not undermine the public's ability to identify the boundaries
of proposed and final critical habitat designations.
Our Response: We appreciate the comments, and agree.
(13) Comment: One commenter stated that there was inconsistent
language in the proposed rule that should be clarified and corrected.
In 50 CFR 424.12(c) we use an ``and'' between the clauses and in 50 CFR
424.18(a) we use an ``or'' between the clauses.
Our Response: We do not believe that the language is inconsistent
as proposed. The ``and'' between the phrases in 50 CFR 424.12(c) is
referring to the detailed information that will be provided in the
preamble for each critical habitat designation. This information will
also be on our Internet sites and at the lead field office of the
Service responsible for the critical habitat designation. The ``or''
between the clauses in 50 CFR 424.18(a) is referring to the additional
tools and supporting information that we will make available if we
determine it would help the public understand the official boundary
map. Such additional tools or supporting information may be published
in the preamble of the rulemaking document or at www.regulations.gov,
or--depending on the size, detail, etc.--may only be made available
from our Internet sites and the lead office of the Service responsible
for the designation.
(14) Comment: Two commenters stated the definitive regulatory text
is necessary to set forth the extent of critical habitat, its intended
function and purpose, its regulatory basis, and any related
interpretations.
Our Response: We will continue to provide textual descriptions as
necessary for purposes of clarifying or refining the location and
boundaries of each area or to explain the exclusion of sites (e.g.,
paved roads, buildings) within the mapped area. The major change from
the way we are currently doing business is that we would not publish
the coordinates of the critical habitat boundaries in the Federal
Register. This information would still be part of the administrative
record underlying the designation, and will be available to the public
on the Internet site of the Service promulgating the designation, at
www.regulations.gov, and at the lead field office of the Service
responsible for the designation.
(15) Comment: The proposed rule raises the possibility of overbroad
designations of critical habitat made without careful prior analysis of
the primary constituent elements, areas of exclusion for existing
facilities, and delineation of the critical habitat boundaries.
Our Response: We are not changing the way we analyze physical and
biological features essential to the conservation of the species,
including the primary constituent elements, areas of exclusion for
existing facilities or delineation of the critical habitat boundaries.
We will continue to generate the coordinates of the boundaries of the
critical habitat, which will in turn provide the basis for the maps and
any necessary textual descriptions published in the Federal Register.
Therefore, the coordinate information will be part of the rulemaking
files and will be available to the public. This will save the Federal
government money, and provide better and easier public access to the
data.
(16) Comment: One commenter asked why the public was left out of
the 50 CFR 424.16(ii) language.
Our Response: This section only applies to State and local
governments. The public is always invited to comment, and this in no
way prevents that from occurring.
(17) Comment: One commenter wanted to know at whose discretion is
the optional additional textual data provided, and what criteria go
into that decision.
Our Response: The discretion would fall to the Secretary of the
Interior for critical habitat being designated by the Fish and Wildlife
Service and to the Secretary of Commerce for critical habitat being
designated by the National Marine Fisheries Service. The conditions
that would lead the designating Secretary to make the decision to
publish rule text in addition to the maps would include instances in
which the rule text is necessary to ensure that the public has adequate
notice of the location and boundaries of the designation or to explain
the exclusion of sites (e.g., paved roads, buildings) within the mapped
area.
(18) Comment: One commenter stated that this proposal makes an
already inadequate and unlawful notification system even worse by
removing all meaningful constraints and requirements on how the
Services designate critical habitat.
Our Response: This regulation change does not alter how the
Services designate critical habitat. Under the Administrative Procedure
Act, the designating Service must ensure that the public has adequate
notice to provide meaningful comment on the proposed designation. To do
this, the notice of proposed rulemaking must fairly apprise interested
persons of the issues in the rulemaking, and the agency must make
available the data on which the rule is based. In the context of
designation of critical habitat, this means, among other things, that
the notice must fairly apprise interested persons as to what areas may
be included in the final designation, and the designating Service must
make available the coordinate information and/or plot points on which
the maps published in the Federal Register are based. It is our intent
that every designation issued pursuant to these revised regulations
meet this standard. This rule would simply allow us to eliminate
publishing the rarely-used coordinate data in the Federal Register,
while still providing the public with adequate notification.
(19) Comment: The Services are violating the Act by unlawfully
shifting the burden of demonstrating what is or is not critical habitat
to the landowner by this proposed rule change.
Our Response: This rule change would not shift the responsibility
of determining which specific areas are critical habitat to the
landowner; this would still be the responsibility of the Services. The
map combined with any additional rule text should provide adequate
notice to the public regarding the critical habitat boundaries.
Landowners would have no added burden of demonstrating what is or is
not critical habitat, and as with critical habitat designations under
the existing regulations, will continue to have access to the
coordinates and/or plot points underlying the maps, as well as all of
the additional tools and supporting information the Service responsible
for the designation routinely makes available to help the public
understand the official boundary.
(20) Comment: The Services' proposal violates the Act's mandate
that the agencies designate specific, not general, areas.
Our Response: The Services would continue to be responsible for
identifying specific areas, to the maximum extent prudent and
[[Page 25616]]
determinable, that meet the definition of critical habitat in the Act.
The changes to the regulations discussed herein will not have any
effect or bearing on that statutory requirement. We have determined,
however, that the manner in which we have been describing the
boundaries of the specific areas in our Federal Register document is
not the most helpful or useful to the public.
(21) Comment: One commenter stated that removal of the textual
descriptions of critical habitat would violate the Act.
Our Response: Relying on maps and brief textual descriptions to
identify areas designated as critical habitat is consistent with the
Act, as explained above. In fact, the current requirement to publish
the textual descriptions is not found in the Act itself, but in our
implementing regulations. With this change, the implementing
regulations would continue to prescribe the manner in which the
Secretaries will delineate critical habitat boundaries; the manner
those regulations prescribe for delineating critical habitat boundaries
would leave to the discretion of the agencies whether it was necessary
to include the publication of textual descriptions in the Federal
Register in a particular designation.
(22) Comment: The Services' assertion that even more limited
descriptions of critical habitat will be sufficient to inform the
public is unsupported and wrong, because map scales are too general to
be of much use to individual landowners.
Our Response: It is true that due to technical publishing
limitations, the scale of some maps that will be published in the
Federal Register may necessitate that we provide explanatory text for
clarification. If the maps are ambiguous such that rule text would be
needed to ensure the public has adequate notice of the designation, we
will include accompanying text in the rule. Moreover, as with critical
habitat designations under the existing regulations, the public will
continue to have access to the coordinates and/or plot points
underlying the maps, as well as all of the additional tools and
supporting information the Service responsible for the designation
routinely makes available to help the public understand the official
boundary.
(23) Comment: The Services' proposal supplants established
surveying techniques with unspecified general descriptions to the
detriment of private landowners.
Our Response: We would continue to use established surveying
techniques for defining the boundaries of critical habitat, which would
then be represented in the maps and any accompanying textual
descriptions in the Federal Register.
(24) Comment: One commenter stated that publishing only a detailed
description of the critical habitat violates the Act, which requires
publication of the complete text of the critical habitat.
Our Response: We interpret the mandate to publish the ``complete
text'' of the proposed regulation as requiring that the regulation
provide a sufficiently detailed description of the area included within
the proposed designation so as to provide all interested persons with
an understanding of the critical habitat boundaries and a meaningful
opportunity to comment on those boundaries. The regulation changes will
allow us to continue to meet that mandate by publishing maps of the
critical habitat boundaries.
(25) Comment: The Services' proposed changes would deny landowners
due process.
Our Response: We will continue to provide a sufficiently detailed
description in the Federal Register of the critical habitat area in the
form of maps and any accompanying rule text that is needed to provide
landowners with a meaningful opportunity to comment. We will also
continue to include within the administrative record for the
designation the coordinates and/or plot points that were used to
generate the maps and will make this data available on the Services'
Internet sites, www.regulations.gov, and at the lead field office of
the Service responsible for the designation. In addition, as we already
do under the existing regulations, whenever we conclude that additional
tools or supporting information would help the public understand the
official boundary, we will make those materials available on our
Internet sites and at the lead field office of the Service responsible
for the critical habitat designation (and we may also provide them at
www.regulations.gov). These changes will continue to provide landowners
due process, as they will not alter the nature of the information the
public currently uses to identify critical habitat boundaries.
(26) Comment: The projected cost savings is minuscule compared to
the increased cost burdens that will be imposed on individual property
owners.
Our Response: We do not anticipate that this change would impose
increased cost burdens on individual property owners. The critical
habitat boundaries will be reflected in maps and any accompanying text
published in the Federal Register. In addition, individual property
owners will be able to easily access additional information regarding
the critical habitat designation on our Internet sites, at
www.regulations.gov, and at the lead field office of the Service
responsible for the critical habitat designation. We will not only save
Federal monies, but also reduce the cost burden on individual property
owners by making critical habitat information easier to obtain.
(27) Comment: The Services should provide written notice directly
to the owners of land by mail whenever they propose to include land in
a critical habitat designation.
Our Response: In addition to the Federal Register notices, the
Services provide notification through outreach materials including
press releases and legal notices in newspapers of the affected areas.
We believe these outreach efforts are sufficient to inform the public
about proposed critical habitat designations. Notifying property owners
by mail would be costly, time consuming, and largely duplicative of our
current outreach efforts.
(28) Comment: The Services should publish maps in the Federal
Register of a sufficient scale and with sufficient detail to allow a
landowner to determine whether their property falls within a proposed
critical habitat designation.
Our Response: The Federal Register limitations on map size and
detail prevent the Services from being able to improve upon the present
maps being published in the Federal Register. We will publish maps in
the Federal Register in as detailed a manner as possible, given the
technical limitations. For designations with large-scale maps, the map
itself may leave ambiguity as to whether a particular property is
within the mapped boundaries (and therefore covered by the critical
habitat designation). When the designating Service determines that
additional regulatory text clarifying ambiguities in the map is needed
to ensure that the public would have adequate notice of the critical
habitat boundaries, the designating Service will provide additional
regulation text. The designating Service will ensure that the notice of
proposed rulemaking provides sufficient notice of the boundary of the
proposed designation to afford the public a meaningful opportunity to
comment on it. Moreover, the Services will make available the
underlying rulemaking files for the proposed and final rule (including
the coordinate information and/or plot points on which the maps
published in the Federal Register are based).
(29) Comment: One commenter was concerned that if the proposed rule
is
[[Page 25617]]
adopted, it will reduce information that must be published in the
Federal Register when designating critical habitat, and would
potentially provide the opportunity to change the information available
at agencies without going through rulemaking.
Our Response: We would not be able to change the critical habitat
designation without going through the rulemaking process. We have
acknowledged that what is printed in the Federal Register and
subsequently in the CFR will be the legally binding delineation of
critical habitat. Should there be ambiguity due to the scale of the map
such that additional regulatory text clarifying ambiguities in the map
is needed to ensure that the public would have adequate notice of the
boundaries, we will provide additional regulation text. The only change
in the Federal Register would be the lack of the detailed coordinate
data of the boundaries of the specific areas being designated as
critical habitat (i.e., latitude-longitude and UTM coordinates). We
would still generate that data, and would make it available on our
Internet sites, at www.regulations.gov, and at the lead field office of
the Service responsible for the critical habitat designation. Neither
the critical habitat designation published in the Federal Register, nor
the underlying data on which it is based, could be changed without
undergoing a further rulemaking.
(30) Comment: One commenter stated that the proposed approach could
create significant concerns if implemented in a manner that designates
wide swaths of lands on a map, only certain areas of which contain the
physical and biological features necessary for conservation of the
species.
Our Response: The way we designate critical habitat would not
change. This rule change would simply remove the requirement that we
publish the reference points (i.e., textual descriptions) in the
Federal Register and reprint them annually in the CFR. In addition, in
instances where there are areas within a bigger area that do not
contain the physical and biological features necessary for the
conservation of the species, the Services would have the option of
drawing the map to reflect only those parts of the area that do contain
those features, or including a textual description that excludes from
the designation specific areas that do not contain those features.
(31) Comment: One commenter proposes that we add the following
sentence to 50 CFR 424.18(a): ``General descriptions of the location
and boundaries of each area may be provided for clarification purposes
or to explain the exclusion of sites (e.g., paved roads, buildings,
etc.) within the mapped area.''
Our Response: We have inserted that language in 50 CFR 424.12(c).
We do not believe it is necessary to repeat this in 50 CFR 424.18(a).
(32) Comment: One commenter was concerned about the removal of the
textual descriptions of existing final critical habitat boundaries set
forth in the CFR and whether the broad scale maps would increase
critical habitat.
Our Response: Removing the coordinate data from the Federal
Register and CFR will not increase or otherwise change the critical
habitat boundaries or areas. We are merely planning to remove the
reference points (i.e., UTM or latitude-longitude coordinates) of the
textual descriptions from existing final critical habitat designations
in the Federal Register and CFR in future rule making. We will,
however, continue to provide this information on our Internet sites, at
www.regulations.gov, and at the lead field office of the Service
responsible for the critical habitat designation.
(33) Comment: One commenter stated that, without the requirement of
a written description, there is no assurance that the maps will or will
not indicate the boundary of the critical habitat.
Our Response: We are making the textual descriptions optional. This
means we will not, in most cases, publish the reference points (i.e.,
UTM or latitude-longitude coordinates) in the Federal Register.
However, every critical habitat designation must include a map
delineating the critical habitat boundary, and may also include general
textual descriptions for clarification purposes or to explain the
exclusion of sites (e.g., paved roads, buildings, etc.) within the
mapped area. The critical habitat map, combined with any general
textual descriptions included in the rule text, will provide the public
with adequate notice of where the boundary of the critical habitat
designation is located. As we have acknowledged, therefore, the final
rule published in the Federal Register and subsequently in the CFR will
continue to contain the legally binding delineation of critical
habitat. However, if for some reason a member of the public is
uncertain about the boundaries of a particular critical habitat
designation even after reading the map and any regulatory text, they
will continue to have access to the coordinates and/or plot points
underlying the maps, as well as all of the additional tools and
supporting information the Service responsible for the designation
already routinely makes available to assist the public in understanding
the official boundary.
(34) Comment: One commenter stated that our proposed changes to 50
CFR 17.94(b) (Each Critical Habitat area will be shown on a map, with
more-detailed information discussed in the preamble of the rulemaking
documents published in the Federal Register and made available from the
lead field office of the Service responsible for such designation) was
in conflict with our proposed changes to 50 CFR 424.18(a) (The Service
may also create additional explanatory text, information, or maps and
include them in the preamble of the rulemaking document or make them
available from the lead office responsible for the designation).
Our Response: The two provisions referenced by the commenter are
consistent. Both provisions have two components. The first component
requires that the detailed description of the action contained in the
Federal Register rule and then in the CFR will include a map
delineating the boundary of the designation. This can be found at 50
CFR 424.18(a) (``For a rule designating or revising critical habitat,
the detailed description of the action will include a map that
delineates the official boundary of the designation.'') and at 50 CFR
17.94(b) (``Each Critical Habitat area will be shown on a map * * *'').
The requirement to include a map in the detailed description of the
action does not eliminate the option of also including additional
clarifying rule text within that detailed description. The second
component of the two provisions outlines ways to provide more
information that we believe would be helpful to inform the public on
the location of critical habitat above and beyond the detailed
description of the action. This can be found at 50 CFR 17.94(b) (``with
more-detailed information discussed in the preamble of the rulemaking
documents published in the Federal Register and made available from the
lead field office of the Service responsible for such designation.'')
and at 50 CFR 424.18(a) (``The Service responsible for the designation
will include more-detailed information in the preamble of the
rulemaking document and will make the coordinates and/or plot points on
which the map is based available to the public on the Internet site of
the Service promulgating the designation, at www.regulations.gov, and
at the lead field office of the Service responsible for the
designation. In addition, if the Service responsible for the
designation concludes that additional tools or supporting information
would be appropriate and would help the public
[[Page 25618]]
understand the official boundary map, it will, for the convenience of
the public, make those additional tools and supporting information
available on our Internet sites and at the lead field office of the
Service that is responsible for the critical habitat designation (and
may also include it in the preamble and/or at www.regulations.gov)'').
Therefore, in accordance with 50 CFR 17.94(b), the more-detailed
information we provide in the preamble of the rulemaking document will
also be available from the lead Service office responsible for the
designation. Any additional tools or supporting information--
explanatory text, information, or maps--that we may provide would, in
accordance with 50 CFR 424.18(a), be available through our Internet
sites and at the lead field office responsible for the designation, and
depending on the size and format of that supporting information, it may
also be included in the preamble to the rulemaking document and/or at
www.regulations.gov. Also under 50 CFR 424.18(a), the coordinates and/
or plot points on which the map is based would be available at the
Internet site and lead field office of the Service promulgating the
designation and at www.regulations.gov.
Regulation Changes
50 CFR 17.94(b)
The existing regulation states that the map provided by the
Director does not, unless otherwise indicated, constitute the
definition of the boundaries of a critical habitat. In order to provide
more clarity regarding the areas being designated, as well as be more
efficient and cost-effective, we are changing the wording of the first
sentence to state, ``For the critical habitat designations published
and effective after May 31, 2012, the map provided by the Secretary of
the Interior, as clarified or refined by any textual language within
the rule, constitutes the definition of the boundaries of a critical
habitat.'' We are replacing ``the Director'' with ``the Secretary of
the Interior'' since the authority to designate critical habitat under
the Act lies with the Secretary due to the Secretarial discretion under
section 4(b)(2) of the Act to exclude specific areas from final
critical habitat. We are limiting application of the new language to
critical habitat designations published after the effective date of the
final rule. For existing critical habitat designations, we also intend
to remove the textual descriptions of final critical habitat boundaries
set forth in the CFR in order to save the annual reprinting cost, but
we must do so in separate rulemakings to ensure that removing the
textual descriptions does not change the existing boundaries of those
designations.
The second sentence of the existing regulation states, ``Such maps
are provided for reference purposes to guide Federal agencies and other
interested parties in locating the general boundaries of the Critical
Habitat.'' We are revising this sentence to read ``Each Critical
Habitat area will be shown on a map, with more-detailed information
discussed in the preamble of the rulemaking documents published in the
Federal Register and made available from the lead field office of the
Service responsible for such designation.'' We believe this will
provide greater clarity regarding the areas being designated, as well
as be a more efficient and cost-effective way to provide information to
the public concerning areas designated as critical habitat. We
acknowledge that what is printed in the Federal Register and
subsequently in the CFR will be the legally binding delineation of
critical habitat. In addition, the Services will include more-detailed
information in the preamble of the rulemaking document and will make
the coordinates and/or plot points on which the official map is based
available to the public on the Internet site of the Service
promulgating the designation, at www.regulations.gov, and at the lead
field office of the Service responsible for the designation.
Furthermore, if the Service responsible for the designation concludes
that additional tools or supporting information would be appropriate
and would help the public understand the official boundary map, it
will, for the convenience of the public, make those additional tools
and supporting information available on our Internet sites and at the
lead field office of the Service that is responsible for the critical
habitat designation (and may also include it in the preamble and/or at
www.regulations.gov).
We are replacing the third existing sentence, which currently
reads, ``Critical habitats are described by reference to surveyable
landmarks found on standard topographic maps of the area and to the
States and county(ies) within which all or part of the Critical Habitat
is located.'' The new wording will be ``Each area will be referenced to
the State(s), county(ies), or other local government units within which
all or part of the Critical Habitat is located. General descriptions of
the location and boundaries of each area may be provided to clarify or
refine what is included within the boundaries depicted on the map, or
to explain the exclusion of sites (e.g., paved roads, buildings) within
the mapped area.'' This change will relieve us of the regulatory and
financial burden of publishing the textual descriptions of the
boundaries of critical habitat in the regulations, which have shown to
be of limited use to the general public.
50 CFR 226.101
This section addresses critical habitat designations made by the
Secretary of Commerce. We are replacing the ``Maps and charts
identifying designated critical habitat * * *'' phrase in the beginning
of the last sentence with ``Additional information regarding designated
critical habitat * * *.'' This new language will provide the
flexibility needed to provide any kind of useful information to the
public concerning areas designated as critical habitat, and not just
maps and charts.
50 CFR 424.12(c)
We are removing the references to defining critical habitat by
specific limits using reference points and lines as found on standard
topographic maps of the area. The revision will read, ``Each Critical
Habitat area will be shown on a map, with more-detailed information
discussed in the preamble of the rulemaking documents published in the
Federal Register and made available from the lead field office of the
Service responsible for such designation.'' This revision will provide
more clarity regarding the areas being designated, as well as relieve
the regulatory and financial burden of both Services being required to
print these reference points in the Federal Register and reprint them
annually in the CFR. We acknowledge that what is printed in the Federal
Register and subsequently in the CFR will be the legally binding
delineation of critical habitat. However, should there be ambiguity due
to the scale of the map such that regulatory text clarifying the
ambiguity is needed to ensure that the public would have adequate
notice of the designation, the Services will include clarifying rule
text. The designating Service will make the coordinates and/or plot
points on which the map is based available to the public on the
Internet site of the Service promulgating the designation, at
www.regulations.gov, and at the lead field office of the Service
responsible for the designation. In addition, if the Service
responsible for the designation concludes that additional tools or
supporting information would be appropriate and would help the public
understand the official boundary map, it will, for the convenience of
the public, make those additional tools and supporting information
available on our Internet sites and at the lead field office
[[Page 25619]]
of the Service that is responsible for the critical habitat designation
(and may also include it in the preamble and/or at
www.regulations.gov). In the future, we intend to remove the textual
descriptions of final critical habitat boundaries set forth in the CFR
for existing critical habitat designations in separate rulemakings in
order to save the annual reprinting cost, without changing those
boundaries.
We are adding the following sentence to this regulation: ``Textual
information may be included for purposes of clarifying or refining the
location and boundaries of each area or to explain the exclusion of
sites (e.g., paved roads, buildings) within the mapped area.''
50 CFR 424.16(b)
The change to this section is in the first sentence where it
currently states, ``A notice of a proposed rule to carry out one of the
actions described in Sec. 424.10 shall contain the complete text of
the proposed rule.'' We are changing the wording ``shall contain the
complete text of the proposed rule'' to ``will contain a detailed
description of the proposed action.'' Although we will in fact publish
the complete proposed critical habitat designation, it could be
confusing to require that the notice of a proposed critical habitat
designation contain ``the complete text'' of the proposed regulation,''
since as a result of the other changes in this notice, the boundaries
of a critical habitat designation may be identified using only a map.
Because the regulation will consist of the legally binding detailed
description of the designation, which will include the map, we included
the language ``will contain a detailed description of the proposed
action'' to clarify that the proposed rule must include the maps, and
may include any accompanying text, that establish the legal boundary of
the designation. We also added that the proposed rule ``may also
include rule text that clarifies or modifies the map'' to make clear
that the designating Service has the option of including textual
descriptions that clarify or modify the map.
50 CFR 424.16(c)(1)(ii)
The change to this section is that we have removed the
parenthetical phrase ``(including the complete text of the
regulation).'' As stated above, although we would still give notice of
the complete proposed critical habitat designation, it could be
confusing to require that the notice include the ``complete text'' of
the designation, since as a result of the other changes in this notice,
we are interpreting the ``complete text'' of the designation to be the
map, along with any optional rule text that may clarify the map. As
discussed above, the Services will include more-detailed information in
the preamble of the rulemaking document and will make the coordinates
and/or plot points on which the map is based available to the public on
the Internet site of the Service promulgating the designation, at
www.regulations.gov, and at the lead field office of the Service
responsible for the designation. In addition, if the Service
responsible for the designation concludes that additional tools or
supporting information would be appropriate and would help the public
understand the official boundary map, it will, for the convenience of
the public, make those additional tools and supporting information
available on our Internet sites and at the lead field office of the
Service that is responsible for the critical habitat designation (and
may also include it in the preamble and/or at www.regulations.gov).
50 CFR 424.18(a)
This section addresses the final rule requirements. In the second
sentence of the existing regulation, we are replacing ``the complete
text of the rule'' with ``a detailed description of the action being
finalized.'' As with the sections above that deal with the requirements
for a proposed rule, changing the wording here, along with the other
changes proposed in this notice, will clarify that the final rule must
contain the detailed description of the designation as reflected in the
map and any optional additional rule text that clarifies or refines the
map. As discussed above, the Services will include more-detailed
information in the preamble of the rulemaking document and will make
the coordinates and/or plot points on which the map is based available
to the public on the Internet site of the Service promulgating the
designation, at www.regulations.gov, and at the lead field office of
the Service responsible for the designation. In addition, if the
Service responsible for the designation concludes that additional tools
or supporting information would be appropriate and would help the
public understand the official boundary map, it will, for the
convenience of the public, make those additional tools and supporting
information available on our Internet sites and at the lead field
office of the Service that is responsible for the critical habitat
designation (and may also include it in the preamble and/or at
www.regulations.gov). Because the regulation will consist of the
legally binding detailed description of the designation, which will
include the map, we included the language ``will contain a detailed
description of the proposed action'' to clarify that the final rule
must include the maps, and may include any accompanying text, that
establish the legal boundary of the designation.
In the fourth sentence of the existing regulation, we are removing
the references to the final rule containing a description of the
boundaries of the critical habitat being designated. We are modifying
this section and expanding the discussion on the requirement for a map.
The new section will read, ``For a rule designating or revising
critical habitat, the detailed description of the action will include a
map of the critical habitat area, and may also include rule text that
clarifies or modifies the map. The map itself, as modified by any rule
text, constitutes the official boundary of the designation. The Service
responsible for the designation will include more-detailed information
in the preamble of the rulemaking document and will make the
coordinates and/or plot points on which the map is based available to
the public on the Internet site of the Service promulgating the
designation, at www.regulations.gov, and at the lead field office of
the Service responsible for the designation. In addition, if the
Service responsible for the designation concludes that additional tools
or supporting information would be appropriate and would help the
public understand the official boundary map, it will, for the
convenience of the public, make those additional tools and supporting
information available on our Internet sites and at the lead field
office of the Service that is responsible for the critical habitat
designation (and may also include it in the preamble and/or at
www.regulations.gov).'' This change will provide more clarity regarding
the areas being designated, and will assist the public in evaluating
the coverage of the critical habitat designation, as well as allow us
to reduce our printing costs in both the Federal Register and for the
annual reproductions of the CFR.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
a. Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the
[[Page 25620]]
environment, or other units of the government.
b. Whether the rule will create inconsistencies with other Federal
agencies' actions.
c. Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
d. Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule, if adopted, would not have a significant
economic effect on a substantial number of small entities as defined
under the RFA. This certification is available upon request (see
ADDRESSES section above).
This rule will revise the implementing regulations contained within
50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and
424.18(a), to eliminate the requirement to publish textual descriptions
of proposed (NMFS only) and final (NMFS and FWS) critical habitat
boundaries in the Federal Register and reprinting in the CFR, and
instead provide that the map(s), as clarified or refined by any textual
language within the rule, constitutes the definition of the boundaries
of a Critical Habitat. A full description of the action, why it is
being considered, and the legal basis for this action are contained in
the preamble to this rule. The rule does not duplicate, overlap, or
conflict with other Federal rules.
This rulemaking amends the procedural requirements for NMFS and FWS
when designating critical habitat. NMFS and FWS are the only entities
that are directly affected by this rule, and they are not considered to
be small entities under SBA's size standards. Therefore, no small
entities are directly affected by this rule.
The revisions to the implementing regulations herein are not
expected to impose any direct costs on regulated entities. Although the
Services will make additional information available to assist small
entities in evaluating the coverage of the critical habitat delineated
by the published maps, the Services already make such information
available, and our understanding is that small entities and the public
already routinely make use of such information. Therefore, eliminating
the requirement to publish textual descriptions and instead publishing
the maps in the Federal Register and making additional information
available on the Internet site of the Service promulgating the
designation, at www.regulations.gov, and at local field offices would
not impose any additional burden on small entities. The elimination of
the procedural requirement to publish textual descriptions of proposed
(NMFS only) and final (NMFS and FWS) critical habitat boundaries in the
Federal Register and reprinting in the CFR is an administrative action,
and it is intended to facilitate public understanding of the critical
habitat designation process and make it easier for the public to
determine if specific areas are within the critical habitat
designation. In fact, this regulation would make the process more cost-
effective for the agencies and the public as a whole, and would
potentially save the FWS alone an estimated $391,742 annually.
Therefore, for the reasons above, this rule will not have a significant
economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Services make the following findings:
a. This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)--(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
b. This rule will not significantly or uniquely affect small
governments, because the revisions to the implementing regulations
herein will facilitate public understanding of the critical habitat
designation process, and the areas included within the critical
habitat, and make the process more cost-effective for the agencies and
the public as a whole by potentially saving the FWS alone an estimated
$391,742 annually. As such, we do not believe that a Small Government
Agency Plan is required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have evaluated the revised implementing regulations for
designating critical habitat, and have determined that this rule does
not pose significant takings implications. The revisions to the
implementing regulations are intended to facilitate the public
understanding of the rulemaking process for critical habitat. It does
not involve individual property rights.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A
[[Page 25621]]
Federalism assessment is not required. The revisions to the regulations
addressed in this rule are intended to facilitate the public
understanding of the rulemaking process for critical habitat, and thus
should not significantly affect or burden the authority of the States
to govern themselves.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. The revisions to the
regulations addressed in this rule are intended to facilitate the
public understanding of the rulemaking process for critical habitat,
and thus should not significantly affect or burden the judicial system.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.). This rule will not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We analyzed this rule in accordance with the criteria of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(c)),
43 CFR part 46, and 516 Departmental Manual (DM) 2 and 8.
A categorical exclusion from NEPA documentation applies to
policies, directives, regulations, and guidelines that are ``of an
administrative, financial, legal, technical, or procedural nature'' (43
CFR 46.210(i)). However, even if an individual Federal action falls
within a categorical exclusion, the Service must still prepare
environmental documents pursuant to NEPA if one of the 12 exceptions
listed in 43 CFR 46.215 applies.
We have reviewed each of the 12 exceptions and have found that
because this rule is administrative in nature (i.e., we are making
optional the inclusion of any textual description of the boundaries of
the designation in the Federal Register), none of the exceptions apply.
Therefore, this action meets the requirements for a categorical
exclusion from the NEPA process
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior Manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Native
American Tribes on a government-to-government basis. We have evaluated
the potential effects on federally recognized Tribes from these
revisions to our implementing regulations for critical habitat. We have
determined that there are no potential effects to federally recognized
Tribes, since the revisions to the implementing regulations are
intended to facilitate the public understanding of critical habitat
designations and save taxpayer monies. We will, however, continue to
coordinate with Tribes as we promulgate critical habitat designations.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. ``Significant energy action'' means any action by an
agency (normally published in the Federal Register) that promulgates or
is expected to lead to the promulgation of a final rule or regulation,
including notices of inquiry, advance notices of proposed rulemaking,
and notices of proposed rulemaking that is a significant regulatory
action under Executive Order 12866 or any successor order, and is
likely to have a significant adverse effect on the supply,
distribution, or use of energy; or that is designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action. This rule to revise the implementing
regulations for designating critical habitat does not qualify as a
significant regulatory action under Executive Order 12866 and will not
have a significant adverse effect on the supply, distribution, or use
of energy, and has not been designated by the Adminstrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, this action is not a significant energy action and
no Statement of Energy Effects is required.
Author(s)
The primary authors of this package are staff members from the U.S.
Fish and Wildlife Service and the National Marine Fisheries Service.
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Parts 17, 226, and 424
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we are amending parts 17, 226, and 424, title 50 of
the Code of Federal Regulations, as set forth below:
CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.94, revise paragraph (b) to read as follows:
Sec. 17.94 Critical habitats.
* * * * *
(b)(1) For the critical habitat designations published and
effective after May 31, 2012, the map provided by the Secretary of the
Interior, as clarified or refined by any textual language within the
rule, constitutes the definition of the boundaries of a critical
habitat. Each critical habitat area will be shown on a map, with more-
detailed information discussed in the preamble of the rulemaking
documents published in the Federal Register and made available from the
lead field office of the Service responsible for such designation. Each
area will be referenced to the State(s), county(ies), or other local
government units within which all or part of the critical habitat is
located. General descriptions of the location and boundaries of each
area may be provided to clarify or refine what is included within the
boundaries depicted on the map, or to explain the exclusion of sites
(e.g., paved roads, buildings) within the mapped area. Unless otherwise
indicated within the critical habitat descriptions, the names of the
State(s) and county(ies) are provided for informational purposes only
and do not constitute the boundaries of the area.
(2) For critical habitat designations published and effective on or
prior to
[[Page 25622]]
May 31, 2012, the map provided by the Secretary of the Interior is for
reference purposes to guide Federal Agencies and other interested
parties in locating the general boundaries of the critical habitat. The
map does not, unless otherwise indicated, constitute the definition of
the boundaries of a critical habitat. Critical habitats are described
by reference to surveyable landmarks found on standard topographic maps
of the area and to the States and county(ies) within which all or part
of the critical habitat is located. Unless otherwise indicated within
the critical habitat description, the State and county(ies) names are
provided for informational purposes only.
* * * * *
CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
PART 226--[AMENDED]
0
3. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
4. Revise Sec. 226.101 to read as follows:
Sec. 226.101 Purpose and scope.
The regulations contained in this part identify those habitats
designated by the Secretary of Commerce as critical, under section 4 of
the Act, for endangered and threatened species under the jurisdiction
of the Secretary of Commerce. Those species are enumerated at Sec.
223.102 of this chapter if threatened and at Sec. 224.101 of this
chapter if endangered. For regulations pertaining to the designation of
critical habitat, see part 424 of this title; for regulations
pertaining to prohibitions against the adverse modification or
destruction of critical habitat, see part 402 of this title. Additional
information regarding designated critical habitats that is not provided
in this section may be obtained upon request to the Office of Protected
Resources (see Sec. 222.102, definition of ``Office of Protected
Resources'').
CHAPTER IV--JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE,
DEPARTMENT OF THE INTERIOR AND NATIONAL MARINE FISHERIES SERVICE,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF
COMMERCE); ENDANGERED SPECIES COMMITTEE REGULATIONS
PART 424--[AMENDED]
0
5. The authority citation for part 424 continues to read as follows:
Authority: Pub. L. 93-205, 87 Stat. 884; Pub. L. 95-632, 92
Stat. 3751; Pub. L. 96-159, 93 Stat. 1225; Pub. L. 97-304, 96 Stat.
1411 (16 U.S.C. 1531 et seq.); unless otherwise noted.
0
6. In Sec. 424.12, revise paragraph (c) to read as follows:
Sec. 424.12 Criteria for designating critical habitat.
* * * * *
(c) Each critical habitat area will be shown on a map, with more-
detailed information discussed in the preamble of the rulemaking
documents published in the Federal Register and made available from the
lead field office of the Service responsible for such designation.
Textual information may be included for purposes of clarifying or
refining the location and boundaries of each area or to explain the
exclusion of sites (e.g., paved roads, buildings) within the mapped
area. Each area will be referenced to the State(s), county(ies), or
other local government units within which all or part of the critical
habitat is located. Unless otherwise indicated within the critical
habitat descriptions, the names of the State(s) and county(ies) are
provided for informational purposes only and do not constitute the
boundaries of the area. Ephemeral reference points (e.g., trees, sand
bars) shall not be used in any textual description used to clarify or
refine the boundaries of critical habitat.
* * * * *
0
7. In Sec. 424.16, revise paragraphs (b) and (c)(1)(ii) to read as
follows:
Sec. 424.16 Proposed rules.
* * * * *
(b) Contents. A notice of a proposed rule to carry out one of the
actions described in Sec. 424.10 will contain a detailed description
of the proposed action and a summary of the data on which the proposal
is based (including, as appropriate, citation of pertinent information
sources) and will show the relationship of such data to the rule
proposed. If such a rule proposes to designate or revise critical
habitat, such summary will, to the maximum extent practicable, include
a brief description and evaluation of those activities (whether public
or private) that, in the opinion of the Secretary, if undertaken, may
adversely modify such habitat or may be affected by such designation.
For any proposed rule to designate or revise critical habitat, the
detailed description of the action will include a map of the critical
habitat area, and may also include rule text that clarifies or modifies
the map. Any such notice proposing the listing, delisting, or
reclassification of a species or the designation or revision of
critical habitat will also include a summary of factors affecting the
species and/or its designated critical habitat.
(c) * * *
(1) * * *
(ii) Give actual notice of the proposed regulation to the State
agency in each State in which the species is believed to occur and to
each county or equivalent jurisdiction therein in which the species is
believed to occur, and invite the comment of each such agency and
jurisdiction;
* * * * *
0
8. In Sec. 424.18, revise paragraph (a) to read as follows:
Sec. 424.18 Final rules--general.
(a) Contents. A final rule promulgated to carry out the purposes of
the Act will be published in the Federal Register. This publication
will contain a detailed description of the action being finalized, a
summary of the comments and recommendations received in response to the
proposal (including applicable public hearings), summaries of the data
on which the rule is based and the relationship of such data to the
final rule, and a description of any conservation measures available
under the rule. Publication of a final rule to list, delist, or
reclassify a species or designate or revise critical habitat will also
provide a summary of factors affecting the species.
(1) For a rule designating or revising critical habitat, the
detailed description of the action will include a map of the critical
habitat area, and may also include rule text that clarifies or modifies
the map. The map itself, as modified by any rule text, constitutes the
official boundary of the designation.
(i) The Service responsible for the designation will include more-
detailed information in the preamble of the rulemaking document and
will make the coordinates and/or plot points on which the map is based
available to the public on the Internet site of the Service
promulgating the designation, at www.regulations.gov, and at the lead
field office of the Service responsible for the designation.
(ii) In addition, if the Service responsible for the designation
concludes that additional tools or supporting information would be
appropriate and would help the public understand the official boundary
map, it will, for the convenience of the public, make those additional
tools and supporting information available on our Internet sites and at
the lead field office of the Service that is responsible for the
critical habitat designation (and may
[[Page 25623]]
also include it in the preamble and/or at www.regulations.gov).
(2) The rule will, to the maximum extent practicable, include a
brief description and evaluation of those activities (whether public or
private) that might occur in the area and which, in the opinion of the
Secretary, may adversely modify such habitat or be affected by such
designation.
* * * * *
Dated: April 18, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks, U.S.
Department of the Interior.
Dated: April 4, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 2012-10178 Filed 4-30-12; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P