[Federal Register Volume 76, Number 237 (Friday, December 9, 2011)]
[Notices]
[Pages 76987-77006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31782]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. FWS-R9-ES-2011-0031; FXES11130900000C6-123-FF09E32000; DOC 
Docket No. 110131072-1277-01]
RIN 1018-AX49; 0648-BA78


Draft Policy on Interpretation of the Phrase ``Significant 
Portion of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species''

AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries 
Service, NOAA, Commerce.

ACTION: Notice of draft policy; request for public comments.

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SUMMARY: We, the United States Fish and Wildlife Service (FWS) and the 
National Marine Fisheries Service (NMFS) (collectively, the Services), 
announce a draft policy to provide our interpretation of the phrase 
``significant portion of its range'' in the Endangered Species Act's 
(Act's) definitions of ``endangered species'' and ``threatened 
species.'' The purpose of this notice is to provide a draft 
interpretation and application of ``significant portion of its range'' 
that reflects a permissible reading of the law and its legislative 
history and minimizes undesirable policy outcomes, while fulfilling the 
conservation purposes of the Act. We seek public comments on this draft 
policy. It is our intent to publish a final policy that will provide a 
consistent standard for interpretation of the phrase and its role in 
listing determinations that will be accorded deference by the federal 
courts.

DATES: We will consider comments and information we receive from all 
interested parties on or before February 7, 2012.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on docket number FWS-
R9-ES-2011-0031.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R9-ES-2011-0031; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Rick Sayers, U.S. Fish and Wildlife 
Service, Endangered Species Program, 4401 North Fairfax Drive, Room 
420, Arlington, VA 22203; telephone (703) 358-2171; facsimile (703) 
358-1735; or Marta Nammack, National Marine Fisheries Service, Office 
of Protected Resources, 1315 East-West Highway, Silver Spring, MD 
20910; telephone (301) 713-1401; fax (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:

Table of Contents

    The following topics are discussed in this draft policy:

I. Background
    A. Introduction
    B. The Statute
    C. The Legislative History
    D. Case Law
II. Policy Explanation
    A. Purpose
    B. The First Component: Consequences of a Species Being in 
Danger of Extinction or Likely To Become So in an SPR
    C. Second Component: The Definition of ``Significant'' as It 
Relates to SPR
    1. Biological Basis for ``Significant''
    2. The Threshold for ``Significant''
    D. Range and Historical Range
    E. Relationship of SPR to the Act's DPS Authority
    1. Differing Definitions of ``Significant'' for SPR and DPS
    2. This Draft Policy's Definition of ``Significant'' Creates 
Little Overlap Between SPR and DPS
    3. What would be protected in those situations in which a DPS 
also constitutes an SPR?
    F. Alternatives for Interpreting the Phrase ``Significant 
Portion of Its Range''
    G. Alternatives for Defining ``Significant''
    H. Implementation of the Policy
    I. Interpretation and Application of the SPR Language Prior to 
Finalizing This Policy
III. Draft Policy
IV. Effects of Draft Policy
    A. Designation of Critical Habitat
    B. Section 4(d) of the Act Special Rules
    C. Recovery Planning and Implementation
    D. Sections 7, 9, and 10 of the Act
V. Public Comments; Request for Information
VI. Required Determinations
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act

[[Page 76988]]

    C. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
    D. Takings (E.O. 12630)
    E. Federalism (E.O. 13132)
    F. Civil Justice Reform (E.O. 12988)
    G. Government-to-Government Relationship With Tribes
    H. Paperwork Reduction Act
    I. National Environmental Policy Act
    J. Energy Supply, Distribution or Use (E.O. 13211)
    K. Clarity of This Policy

I. Background

A. Introduction

    The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.) (Act) provides for the classification (i.e., the listing) and 
protection of ``endangered species'' and ``threatened species.'' It is 
implemented jointly by the Services. Where language in the Act is 
ambiguous and open to interpretation, the Secretaries of the Interior 
and Commerce (Secretaries) have the discretion to provide a reasonable 
interpretation of that language. One such ambiguity is the meaning of 
the phrase ``significant portion of its range'' (SPR) found in the 
Act's definitions of ``endangered species'' and ``threatened species.''
    Despite the fact that the definitions of ``endangered species'' and 
``threatened species'' have been part of the Act since its enactment in 
1973, prior to 2007, neither agency had adopted a regulation or binding 
policy defining or explaining the application of the phrase 
``significant portion of its range,'' an element common to both 
definitions. Specifically, the Services have never addressed in their 
regulations: (1) The consequences of a determination that a ``species'' 
\1\ is either endangered or likely to become so throughout a 
significant portion of its range, but not throughout all of its range; 
or (2) what qualifies a portion of a range as ``significant.'' To 
address this, the Solicitor of the Department of the Interior (DOI) 
issued a legal opinion in 2007 addressing several issues regarding the 
meaning of the SPR phrase (referred to as the ``M-Opinion'') (DOI 
2007). The M-Opinion's conclusion regarding the interpretation of the 
SPR phrase that provided for applying the Act's protections to a listed 
species in only a portion of its range was rejected by subsequent court 
rulings, as explained below, and the M-Opinion was withdrawn on May 4, 
2011 (DOI 2011). Following withdrawal of the M-Opinion, neither agency 
has had a policy providing a uniform interpretation of the phrase 
``significant portion of its range.''
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    \1\ The term ``species'' is specifically defined as a term of 
art in the Act to include ``subspecies'' and, for vertebrate 
species, ``distinct population segments,'' in addition to taxonomic 
species. 16 U.S.C. Sec.  1532(16). Therefore, when we use the term 
``species'' in this draft policy, with or without quotation marks, 
we generally mean to refer to this statutory usage. In some 
instances, however, where we intend to place specific emphasis on 
the term, we will use quotation marks. Where, on the other hand, the 
Services intend to use the biological meaning of the term, we will 
use the term ``taxonomic species.''
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    Here we notify the public of a draft policy regarding the 
interpretation and application of the SPR phrase. Specifically, this 
draft policy includes: (1) An explanation of the consequences of a 
species being in danger of extinction or likely to become so in an SPR, 
but not throughout all of its range; (2) a definition of the term 
``significant'' as it applies to SPR; (3) an interpretation of the term 
``range'' and explanation of how historical range is considered as it 
applies to SPR; and (4) a means of reconciling our draft interpretation 
of SPR with the inclusion of ``distinct population segment'' (DPS) in 
the Act's definition of ``species.'' This draft policy is preceded by a 
detailed explanation of the conclusions reached in the draft policy, as 
well as the alternatives we considered.
    Our intent is to finalize a legally binding policy that will set 
forth the Services' interpretation of ``significant portion of its 
range'' and its place in the statutory framework of the Act. This draft 
policy has been jointly developed by the Services and will be finalized 
after full consideration of alternatives and public comments.

B. The Statute

    A policy interpretation of the SPR phrase must consider not only 
the definitions in which the phrase occurs but also other relevant 
parts of the statute. As noted above, the Act provides for the 
classification (i.e., the listing) and protection of ``endangered 
species'' and ``threatened species.'' The Act defines the terms 
``endangered species'' and ``threatened species'' as follows:

    The term ``endangered species'' means any species which is in 
danger of extinction throughout all or a significant portion of its 
range * * * (16 U.S.C. 1532(6)).
    The term ``threatened species'' means any species which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range (16 U.S.C. 
1532(20)).

    The Act contains no definition of the phrase ``significant portion 
of its range.'' The definition of ``species'' is also relevant to this 
discussion. Section 3 defines the term ``species'' as follows:

    The term ``species'' includes any subspecies of fish or wildlife 
or plants, and any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 
1532(16)).

    The Act's definition of ``species'' originally included taxonomic 
species, subspecies, ``and any other group of fish or wildlife of the 
same species or smaller taxa in common spatial arrangement that 
interbreed when mature'' (Pub. L. 93-205, 87 Stat. 884 (1973)). The 
quoted clause was a precursor for what in 1978 would become, through 
amendment, the current language: ``any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature'' (Pub. L. 95-632, 92 Stat. 3751 (1978)). In 1996, the Services 
jointly adopted a policy to guide implementation of the ``distinct 
population segment'' (DPS) concept in listings, delistings, and 
reclassifications (DPS Policy; 61 FR 4722, February 7, 1996). The DPS 
Policy looks to the discreteness and significance of populations, as 
well as their conservation status, to determine whether they qualify 
for listing. The DPS language is relevant to considering an 
interpretation of the SPR phrase because they both involve analysis of 
less than the entire range of a taxonomic species or subspecies in 
making listing determinations, although the consequences may differ as 
discussed further in this Policy.
    Both prior to and in the years between the issuance of the DPS 
Policy and the advent of a string of court decisions discussing SPR 
issues beginning in 2001 (see Case Law below), it had generally been 
understood (although not expressly articulated) by the Services that, 
given the Act's definition of ``species,'' the only way to list less 
than a taxonomic species or subspecies was as a DPS. For example, in 
1976 the FWS listed the U.S. population of the Bahama swallowtail 
butterfly (41 FR 17736). When the Act was amended in 1978 to limit 
population listings only to vertebrates, the Service removed the 
subspecies from the list because the U.S. population was not a distinct 
subspecies from the Bahama populations and the subspecies to which the 
U.S. population belonged itself was not threatened (49 FR 34501). Thus, 
the FWS did not believe the Act allowed listing units below taxonomic 
species or subspecies, except in the case of vertebrate DPSs. As 
discussed below, the M-Opinion took the contrary position.
    Finally, section 4(c)(1) of the Act states that the lists of 
endangered species and threatened species ``shall refer to the species 
contained therein by scientific and common name or names,

[[Page 76989]]

if any, [and] specify with respect to each such species over what 
portion of its range it is endangered or threatened (emphasis added)'' 
(16 U.S.C. 1533(c)(1)). The intent of this language must also be 
considered in determining the regulatory consequences of an 
interpretation of the SPR phrase.

C. The Legislative History

    Interpretation of the statutory language can be assisted at times 
by reading the legislative history. However, in this case, the 
legislative history is somewhat contradictory and is not particularly 
conclusive as to the role Congress intended the SPR phrase to play.
    The precursor to the Endangered Species Act of 1973 was the 
Endangered Species Conservation Act of 1969 (Pub. L. 91-135, 83 Stat. 
275) (ESCA). The ESCA defined an ``endangered species'' by stating: ``A 
species or subspecies of fish or wildlife shall be deemed to be 
threatened with worldwide extinction whenever the Secretary determines, 
based on the best scientific and commercial data available to him, * * 
* that the continued existence of such species or subspecies of fish or 
wildlife is * * * endangered * * *'' (section 3(a)). Thus, to be 
protected under the ESCA, a species had to be endangered worldwide.
    In the 1973 Act, Congress addressed what it saw as limitations in 
the ESCA. As explained in more detail in a summary developed by DOI 
explaining the origins of the SPR phrase and its current placement in 
the Act (DOI 2010) and available for viewing at http://www.regulations.gov, the SPR language originated in proposed endangered 
species legislation drafted by DOI and introduced the previous year as 
H.R. 13111. (This language was also included in the bill H.R. 37 
introduced in the 93rd Congress that would ultimately become the 
Endangered Species Act of 1973.) It was included in a single sentence 
that combined aspects of the provisions currently found in sections 
3(6), (16), and (20), and 4(a)(1), and (b)(1) of the Act. Section 
2(c)(1) of the DOI bill provided that

    A species or subspecies of fish or wildlife shall be regarded as 
an endangered species whenever, in his discretion, the Secretary 
determines, based on the best scientific and commercial data 
available to him and after consultation, as appropriate, with the 
affected States, and, in cooperation with the Secretary of State, 
the country or countries in which such fish and wildlife are 
normally found or whose citizens harvest the same on the high seas, 
and to the extent practicable, with interested persons and 
organizations, and other interested Federal agencies, that the 
continued existence of such species or subspecies of fish or 
wildlife is, in the judgment of the Secretary, either presently 
threatened with extinction or will likely within the foreseeable 
future become threatened with extinction, throughout all or a 
significant portion of its range, due to any of the following 
factors: (i) The destruction, drastic modification, or severe 
curtailment of its habitat; or (ii) its overutilization or 
commercial, sporting, scientific, or educational purposes; or (iii) 
the effect on it of disease or predation; or (iv) the inadequacy of 
existing regulatory mechanisms; or (v) other nature or manmade 
factors affecting its continued existence.

(Emphasis added.) That sentence was immediately followed by language 
now found in section 4(c)(1) of the Act:

    [T]he Secretary shall publish * * * a list, by scientific and 
common name of such endangered species, indicating as to each 
species and subspecies so listed whether such species or subspecies 
is presently threatened with extinction or likely within the 
foreseeable future to become threatened with extinction and, in 
either case, over what portion of the range of such species this 
condition exists.

    A ``Final Environmental Statement'' (DOI 1972) on that bill 
prepared by DOI indicated that DOI intended the SPR language to play 
the role eventually played by the precursor to the Act's current DPS 
language. According to the Final Environmental Statement, ``[t]he term 
`significant portion' of its range is used in the definition of 
endangered to provide the Secretary with the authority to protect a 
population unique to some portion of the country without regard to its 
taxonomic status, or a population that is now endangered over a large 
portion of its range even if the population inhabiting that portion of 
the range is not recognized as a distinct subspecies from a more 
abundant population occuring [sic] elsewhere.'' In response to 
comments, the Final Environmental Statement also states ``The term `a 
significant portion of its range' allows the Secretary to use 
discretion in listing a distinct population which may be a subspecies, 
race, form, or a unique or disjunct segment of a species without regard 
to whether it is a recognized subspecies or not.''
    The DOI bill did not include a definition of ``species'' or the 
language that was the precursor to the Act's current DPS language (H.R. 
4758, 93d Cong. (1972)). However, in the bill that eventually became 
the 1973 Act, Congress split up the single sentence from the DOI bill 
into multiple pieces and placed them in different portions of the Act. 
Simultaneously, it added the DPS precursor language to the definition 
of ``species,'' but did not delete the SPR language. Instead Congress 
moved the SPR language, without explanation, to the definitions of 
``endangered species'' and ``threatened species.''
    As a general matter, the various committee reports note a number of 
problems with the prior legislation that the 1973 Act was intended to 
fix. See generally S. Rep. No. 93-307 (1973); H.R. Rep. No. 93-412 
(1973). Unfortunately, the reports did not clearly state which language 
in the new law was intended to address which problem. Thus, it is 
unclear what role Congress intended the SPR language (as opposed to the 
definition of ``species'' or the addition of the new ``threatened 
species'' category) to play. Consequently, the legislative history is 
not determinative.

D. Case Law

    Past judicial opinions can provide insight into possible statutory 
interpretations and indicate where courts find support for them in the 
statutory text, legislative history, and purposes of the Act. 
Nonetheless, an agency may interpret a statute in a way inconsistent 
with past judicial opinions if (1) the agency's interpretation is 
otherwise entitled to judicial deference, and (2) the court did not 
conclude that the court's interpretation was required by the 
unambiguous terms of the statute, leaving no room for agency 
discretion. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet 
Servs., 545 U.S. 967, 982 (2005). Because it is our intent that 
judicial deference will apply to the final policy that results from 
this draft policy, as provided in Chevron v. Natural Resources Defense 
Council, 467 U.S. 837 (1984), and because we conclude, as have a number 
of courts, that the relevant statutory provisions are ambiguous, our 
conclusions ultimately may differ from some of the conclusions reached 
by the various courts, as discussed below.
    Beginning in 2001, a number of judicial opinions have addressed 
this statutory language. The seminal case was Defenders of Wildlife v. 
Norton, 258 F.3d 1136 (9th Cir. 2001) (Defenders (Lizard)). The court 
held that the SPR language was ``inherently ambiguous,'' finding that 
it was something of an oxymoron to speak of a species being at risk of 
extinction in only a portion of its range (id. at 1141), and because 
the Act does not define a ``significant portion,'' the Secretary has 
wide discretion to delineate it (id. at 1145).
    However, the court found that the interpretation FWS offered in 
that particular litigation was unacceptable because it would allow for 
listing only when a species ``is in danger of extinction everywhere'' 
(id. at 1141).

[[Page 76990]]

The approach FWS described there, which has come to be called the 
``clarification interpretation,'' viewed the SPR language as merely 
clarifying that a portion of the range of a species could be so 
important to its conservation that threats there could determine the 
status of the species overall. Thus, the only circumstance in which a 
species would be in danger of extinction in a significant portion of 
its range is one in which it was in fact in danger of extinction 
throughout all of its range.
    The court held that every part of the language of the Act's 
definition of ``endangered species'' must be given meaning. In 
particular, the SPR phrase, ``or a significant portion of its range,'' 
must be given some independent meaning to avoid being rendered 
superfluous to the ``throughout all'' language. The court rejected the 
clarification interpretation because, under that interpretation, there 
would be no circumstance in which a species that was in danger of 
extinction in a significant portion of its range would not also be in 
danger of extinction throughout all of its range. Thus, the SPR 
language would be superfluous, or redundant to the other language in 
the Act. The court also rejected the Plaintiff environmental 
organization's argument that a specific percentage loss of habitat 
should automatically qualify a species for listing.
    At the conclusion of a chain of reasoning that appears to some 
extent to have blurred the line between loss of historical range and 
current threats to habitat, the court concluded that ``where * * * it 
is on the record apparent that the area in which the lizard is expected 
to survive is much smaller than its historical range, the Secretary 
must at least explain her conclusion that the area in which the species 
can no longer live is not a `significant portion of its range' '' (id. 
at 1145). The court suggested that, had FWS done such an analysis, it 
might have concluded that ``enhanced protections'' or ``different 
degrees of protection'' might be needed for some parts of the species 
(id. at 1146).
    In the years after the Defenders (Lizard) decision was issued, a 
number of district courts have addressed issues relating to the SPR 
language. Most have purported to follow one or more aspects of the 
Ninth Circuit's opinion (see, e.g., Ctr. for Biological Diversity v. 
Kempthorne, 2007 U.S. Dist. LEXIS 4816 (N.D. Cal. Jan. 19, 2007); but 
see Ctr. for Biological Diversity v. Norton, 411 F. Supp. 2d 1271 
(D.N.M. 2005), vacated by No. 06-2049 (10th Cir. May 14, 2007); Ctr. 
for Biological Diversity v. U.S. Fish & Wildlife Serv., 2007 U.S. Dist. 
LEXIS 16175 (D. Colo. Mar. 7, 2007), vacated by No. 07-1203 (10th Cir, 
Oct. 22, 2007)).
    In 2007, the Solicitor of DOI issued the M-Opinion (DOI 2007). The 
M-Opinion accepted the primary holding of the Defenders (Lizard) 
decision and concluded that FWS should interpret the SPR language to 
have independent meaning. The opinion also interpreted the SPR phrase 
to authorize FWS to consider application of the Act's protections to 
less than all members of a taxonomic species, subspecies, or DPS (DOI 
2007, p. 15). The M-Opinion drew support for this position from section 
4(c)(1) (see Statute above), interpreting the language of 4(c)(1) as 
having substantive effect rather than being merely a recordkeeping 
provision.
    Two recent district court decisions have addressed whether the SPR 
language allows the Services to list or protect less than all members 
of a defined species: Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 
1207 (D. Mont. 2010), concerning FWS's delisting of the Northern Rocky 
Mountain gray wolf (74 FR 15123, Apr. 12, 2009); and WildEarth 
Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30, 
2010), concerning FWS's 2008 finding on a petition to list the 
Gunnison's prairie dog (73 FR 6660, Feb. 5, 2008). FWS had asserted in 
both of these determinations, based on the M-Opinion, that it had 
authority, in effect, to protect under the Act only some members of a 
species, as defined by the Act (i.e., taxonomic species, subspecies, or 
DPS). Both courts ruled that the determinations were arbitrary and 
capricious on the grounds that the M-Opinion approach violated the 
plain and unambiguous language of the Act. The courts concluded that 
reading the SPR language to allow protecting only a portion of a 
species' range is inconsistent with the Act's definition of 
``species,'' which forecloses listing any population that does not 
qualify as a taxonomic species, subspecies, or DPS.
    These two decisions hold that the SPR language may not be used as a 
basis for listing less than all members of a species. According to 
these courts, the SPR language requires rangewide listing of species 
whenever they are endangered or threatened in an SPR, even if they are 
healthy in other areas. Thus, the courts concluded that the SPR 
language ``does not qualify where a species is endangered, but rather 
it qualifies when it is endangered'' (729 F. Supp. 2d at 1218). The SPR 
language is intended to ensure that a species receives protection even 
if threats are not so widespread that the species is threatened with 
worldwide extinction (which was the standard under the ESCA of 1969). 
The courts concluded that once a determination is made that a species 
meets the definition of an ``endangered species'' or ``threatened 
species,'' it must be placed on the list in its entirety and the Act's 
protections applied to all members throughout its range (which 
protections are thereafter subject to modification through other 
provisions of the Act, such as sections 4(d), 4(f), and 10(j)).
    According to the Montana district court in Defenders of Wildlife v. 
Salazar, it is the DPS concept in the definition of ``species,'' not 
the SPR language in the other definitions, that allows the Services 
flexibility to provide different levels of protection for populations 
of the same taxonomic species or subspecies. Because the M-Opinion 
interpretation sought to anchor flexibility in the SPR language, it 
would impermissibly render the DPS language redundant. 729 F. Supp. 2d 
at 1225. The court further concluded that the M-Opinion interpretation 
would thwart the intent of Congress to limit listings below the 
subspecies level to only vertebrate fish and wildlife by allowing the 
SPR language to side-step the DPS mechanism and allow flexible listings 
of invertebrates and plants. Id. at 1225-26.
    The Montana district court in Defenders of Wildlife v. Salazar also 
found that the section 4(c)(1) language (see Statute above), which the 
M-Opinion had emphasized as supporting the FWS approach, cannot 
reasonably be read to create substantive ambiguity in the statute, but 
rather was a publishing requirement that comes into play only after a 
listing determination has been made. Id. at 1220-21.

II. Policy Explanation

A. Purpose

    The purpose of this draft policy is to offer an interpretation and 
application of ``significant portion of its range'' that reflects a 
permissible reading of the law and its legislative history, while 
fulfilling the purposes of the Act. The various relevant statutory 
provisions together create a variety of tensions and ambiguities. Here, 
we propose to adopt a reasonable interpretation of these statutory 
provisions. We conclude that (1) if a species is found to be endangered 
or threatened in only a significant portion of its range, the entire 
species is listed as endangered or threatened, respectively, and the 
Act's protections apply across the species' entire range; (2) a portion 
of the range

[[Page 76991]]

of a species is ``significant'' if its contribution to the viability of 
the species is so important that, without that portion, the species 
would be in danger of extinction; (3) the range of a species is 
considered to be the general geographical area within which that 
species can be found at the time FWS or NMFS makes any particular 
status determination; and (4) if the species is not endangered or 
threatened throughout all of its range, but it is endangered or 
threatened within a significant portion of its range, and the 
population in that significant portion is a valid DPS, we will list the 
DPS rather than the entire taxonomic species or subspecies.
    As discussed above and in more detail in DOI (2010) and FWS and 
NMFS SPR Working Group (2010), the role of the SPR language in the 
context of the entire statutory scheme created by the Act is not clear 
from the text itself or the legislative history. However, the Ninth 
Circuit Court's ruling in Defenders (Lizard) indicates that we should 
give the phrase on either side of the ``or'' in these definitions 
operational meaning (see Defenders (Lizard) 258 F.3d at 1141-42). We 
now agree with this interpretation, and we have therefore developed a 
policy that would give operational effect to the SPR language instead 
of treating it as merely a clarification of the ``throughout all'' 
language. Thus, under our draft policy, a species would be able to 
qualify as an endangered species in two different situations: (1) If it 
is in danger of extinction throughout all of its range, or (2) if it is 
in danger of extinction in a significant portion of its range. The same 
is true for threatened species.
    There are two separate, but interrelated, components to giving the 
phrase ``a significant portion of its range'' operational meaning. 
First, we establish what the consequence would be of a species being 
endangered or threatened in an SPR. Second, we define ``significant,'' 
thereby providing a standard for determining when a portion of a 
species' range constitutes an SPR, and thus when that consequence may 
be triggered. (We address the consequences issue first because the 
Services have greater discretion in defining ``significant,'' and those 
consequences play an important role in the Services' decision as to how 
to exercise that discretion.) We address each of these in turn.
    We note that throughout this policy when discussing SPR and 
``portion of the range'' and similar phrases, we are referring to the 
species within that portion of the range. As explained further below, 
when analyzing portions of ranges we consider the contribution of the 
individuals in that portion to the viability of the species in 
determining whether a portion is significant, and we consider the 
status of the species in that portion. Thus, when we refer to ``portion 
of its range,'' we most often intend to mean the individuals of the 
species that occupy that portion. However, for the sake of readability, 
in this policy we sometimes refer to ``a portion of the range'' or 
similar phrases as a short hand for the ``species in that portion of 
its range.''

B. The First Component: Consequences of a Species Being in Danger of 
Extinction or Likely To Become So in an SPR

    Given that we have determined that this draft policy would 
recognize that a species may be an endangered species or threatened 
species if it is in danger of extinction (endangered) or likely to 
become so (threatened) in an SPR, but not throughout all of its range, 
we considered what consequences under the Act flow from such a 
determination. In particular, we considered two alternative 
interpretations: A species that is endangered or threatened in an SPR 
is protected throughout all of its range, or a species that is 
endangered or threatened in an SPR is protected only in that SPR. The 
M-Opinion took the latter view. We conclude that the former view is the 
best interpretation of the Act. Our conclusion is based on an 
examination of (1) The statutory text, (2) the purposes of the Act, (3) 
the legislative history, (4) past agency practice, and (5) relevant 
case law.
    First, protection throughout the range of the species is most 
consistent with the plain meaning of the text of the Act itself. Under 
section 3(6) of the Act, ``any species which is in danger of extinction 
throughout * * * a significant portion of its range (emphasis added)'' 
is an ``endangered species.'' Thus, if a species is in danger of 
extinction throughout an SPR, then that species is an ``endangered 
species.'' The same analysis applies to ``threatened species.'' 
Moreover, the protections of section 7 and section 9 of the Act make no 
distinction between portions of range and species; those protections 
apply to ``endangered species'' and, in the case of section 7, 
``threatened species.''
    In addition, the Act has a separate definition of ``species.'' The 
most logical way to interpret the roles of the three definitions at 
issue is for the definition of ``species'' to determine what may be 
protected, and the definitions of ``endangered species'' and 
``threatened species'' to be limited to the question of whether a 
species must be protected. The courts in the Northern Rocky Mountain 
gray wolf and Gunnison's prairie dog cases (Defenders of Wildlife v. 
Salazar, 729 F. Supp. 2d 1207, 1218 (D. Mont. 2010); WildEarth 
Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253, *16 (D. Ariz. Sept. 
30, 2010) held that ``species'' is limited to the three items included 
in the scope of the definition of that term. For the purposes of making 
listing determinations under the Act, we agree with that view. See also 
Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1163 (D. Or. 
2001) (``Congress expressly limited the Secretary's ability to make 
listing distinctions among species below that of subspecies or a DPS of 
a species.''). A related point is that the definition of ``species'' 
expressly provides for the protection of less than a full taxonomic 
species under certain circumstances (i.e., when a group of organisms 
qualifies as a subspecies or DPS). Interpreting the SPR language to 
allow protections to apply only in the SPR creates unnecessary tension 
between the SPR language and the DPS language.
    The primary difficulty in the text of the statute with interpreting 
the SPR language to provide rangewide protection is section 4(c)(1) of 
the Act. That provision directs the Secretary, when publishing a list 
of those species found by the Services to be endangered or threatened, 
to ``specify with respect to such species over what portion of its 
range it is endangered or threatened.'' The M-Opinion relied primarily 
on this provision in concluding that a species listed pursuant to the 
SPR language was protected only within the SPR within which the species 
is in danger of extinction or likely to become so (endangered or 
threatened) concluding that section 4(c)(1) created an ambiguity as to 
the effect of the SPR language. The alternative to interpreting section 
4(c)(1) as supporting the position taken in the M-Opinion is that 
section 4(c)(1) is in effect a bookkeeping provision that should not be 
viewed as undermining the plain meaning of the key substantive 
provisions of the Act. Under this interpretation, the ``portion of its 
range'' language in section 4(c)(1) (see The Statute above) serves an 
informational purpose, providing the public with information either as 
to the portion of the range that led to the species being in danger of 
extinction or likely to become so (and protected throughout its range), 
or as to where protections vary below the taxonomic species or 
subspecies level based on the authority of substantive provisions of 
the Act (i.e., a DPS under the definition of ``species''

[[Page 76992]]

or an experimental population under section 10(j)).
    In fact, since 1980 the FWS has implemented this language in 
section 4(c)(1) using a column in the published list of Endangered and 
Threatened Wildlife entitled ``Vertebrate population where endangered 
or threatened.'' See 50 CFR 17.11(h); see also 45 FR 13010 (Feb. 27, 
1980) (instituting current format of Sec.  17.11(h)). The FWS thus 
equated section 4(c)(1)'s requirement to specify the endangered or 
threatened portion of a species' range with the DPS language in the 
definition of ``species'' (``vertebrate population''). And prior to the 
issuance of the M-Opinion, the FWS used that column to identify listed 
DPSs.
    On balance, we conclude that treating the ``portion of its range'' 
language in section 4(c)(1) as informational rather than substantive is 
the best way to harmonize the various provisions of the Act. See 
Defenders of Wildlife v. Salazar, 729 F. Supp. 2d at 1220-21 (section 
4(c)(1) is a publishing requirement that cannot alter a substantive 
determination; ``over what portion of its range it is endangered or 
threatened'' relates to specifying a ``species'' below the taxonomic 
level, i.e., a DPS). The conclusion that section 4(c)(1) is itself 
informational and is not the basis for finding ambiguity in the 
definitions of ``endangered species'' and ``threatened species'' in no 
way affects the substantive differences in protection that can result 
from application of other provisions of the Act, such as sections 4(d) 
and 10(j).
    A related argument from the text of the Act is that this 
interpretation makes irrelevant the ``all or'' language in the 
definitions of ``threatened species'' and ``endangered species.'' 
According to that argument, the Services would never need to address 
the question of threats throughout all of the range of the species, as 
they would be required to list the species if it is in danger of 
extinction or likely to become so in any SPR.
    That argument, however, fails to take into account the practical 
way in which the Services actually determine the status of a species. 
As discussed below in the Implementation of the policy section, the 
first step in our analysis is to determine the status of the species 
throughout all of its range. Indeed, the analysis at this level will be 
determinative unless there is a particular reason in the record to 
analyze the status in something less than the entire range. The 
Services will only engage in a detailed analysis of portions of the 
range of the species if they have substantial information suggesting 
both that a portion of the range is significant and that the species 
may be in danger of extinction there or likely to become so due to, for 
instance, the concentration of threats in an important geographic area. 
Moreover, if such an analysis is done, the range-wide analysis will 
provide important context for the SPR analysis. Thus, the ``all or'' 
language will also retain independent meaning and play an important 
role in status determinations.
    This conclusion is consistent with both cases that have addressed 
this argument. In WildEarth Guardians, the court rejected the argument 
that interpreting the Act to protect species range-wide when in danger 
of extinction in a significant portion of its range made the ``all of 
'' language superfluous. 2010 U.S. Dist. LEXIS 105253 at *11-13 
(stating that, in this context, `` `all' provides an indication of what 
would make a portion of a species' range significant''). Moreover, the 
court suggested that it is reasonable to infer that Congress meant 
``throughout all or a significant portion'' to function as a single 
concept solely designed to ensure that the extent of impacts across the 
range was considered. Id. at *12-13 (``Moreover, common English usage 
accepts some level of redundancy without violating a canon of statutory 
construction. It was more natural for Congress to say `all or a 
significant portion' than to just say `a significant portion.' That is 
the way we speak.''). Defenders of Wildlife v. Salazar, likewise 
rejected the ``all of'' argument. 729 F. Supp. 2d 1219.
    Second, the formal purposes and policies included in the text of 
the Act itself do not help resolve this interpretive question (see 16 
U.S.C. 1531). Although those provisions speak to the necessity and 
importance of protecting endangered species, they do not shed light on 
what should be considered an endangered species. More broadly, however, 
protecting the entire species when it is endangered or threatened in a 
significant portion of its range is consistent with the congressional 
intent of the 1973 Act, an important aspect of which was to expand the 
protection of its predecessors so that action could be taken before a 
species was threatened with worldwide extinction (S. Rep. No. 93-307 
(1973); H.R. Rep. No. 93-412 (1973)). We recognize that this 
interpretation may lead to application of the protections of the Act in 
areas in which a species is not currently endangered or threatened with 
extinction, and in some circumstances may lead to the expenditure of 
resources without concomitant conservation benefits; however, this 
concern is reduced by interpreting the word ``significant'' within the 
SPR phrase relatively strictly, as discussed below. We have the 
discretion to implement the Act, where possible, to avoid or minimize 
expending resources on actions that either do not address threats that 
led to the species warranting listing or do not advance recovery of the 
species. While all the provisions of the Act would apply throughout the 
range of the species, as we discuss under the section Effects of 
Policy, below, we have many tools available to us to focus 
implementation of the Act on those actions with greatest effect on the 
conservation of the species. For example, we may modify prohibitions 
for threatened species through use of special rules under section 4(d) 
of the Act, focus recovery planning and implementation efforts on 
specific areas where threats are acting on the species, and use various 
mechanisms to streamline permitting and consultation processes under 
sections 7 and 10 of the Act. Thus, we conclude that interpreting the 
SPR language to protect species rangewide is consistent with the 
purposes of the Act.
    Third, as discussed above, the legislative history does not provide 
significant insight into the meaning or effect of the SPR phrase. The 
M-Opinion cites the remarks of Senator Tunney in the floor debate 
regarding the Act, which suggest that he understood that the SPR 
language would allow for a species to be subject to different levels of 
protection in different portions of its range (119 Cong. Rec. 25,669 
(1973)). This provides some support for the position reflected in the 
M-Opinion. Other items in the legislative history could be read to 
support this position as well, but taken as a whole, the legislative 
history is unclear as to the specific meaning and application of the 
SPR phrase. However, for all the reasons discussed herein, we (and the 
courts that have thus far considered the matter) do not find this 
statement, or anything else in the legislative history, to be 
dispositive.
    Fourth, our interpretation does not conflict with an established 
past agency practice, as no consistent, long-term agency practice has 
been established. The conclusion reached in this draft policy is, as 
noted above, inconsistent with the M-Opinion, and, consequently, a 
number of listing determinations made by FWS since the issuance of the 
M-Opinion. Of course, that opinion has now been withdrawn. Prior to the 
decision in Defenders (Lizard), neither FWS nor NMFS had explained its 
interpretation of the SPR language, or

[[Page 76993]]

expressly explained how it implemented or used that authority in its 
individual determinations under section 4 of the Act. The Ninth Circuit 
surmised that a number of the determinations we made in the past that 
protected only part of the range of a taxonomic species did so on the 
basis of the SPR language. 258 F.3d at 1145. However, these listings 
can also be explained as relying on the authority of the DPS language 
in the definition of ``species'' or the precursor of that language.
    Finally, our interpretation is also consistent with the judicial 
opinions that have most closely examined this issue. In both Defenders 
of Wildlife v. Salazar and WildEarth Guardians v. Salazar, the district 
courts rejected the argument that the Act allows for protections for 
listed species to be limited to portions of the range within which a 
species is determined to be endangered or threatened and held that such 
an interpretation would be contrary to the plain meaning of the Act. 
Instead, the courts found that the authority to provide a taxonomic 
species with different levels of protection stems from the definition 
of ``species'' (i.e., the DPS language).
    We recognize that previous judicial opinions lend some support to 
the conclusion that the Secretaries have the authority to list or 
protect species only in portions of their range. In Defenders (Lizard), 
although the court did not expressly direct FWS to consider listing or 
protecting only some members of a species, its discussion implied that 
FWS could apply varying degrees of protection in different portions of 
the lizard's range (258 F.3d at 1144-45; see also Roosevelt Campobello 
Intl. Park Comm'n v. U.S. Envt'l Protection Agency, 684 F.2d 1041, 1050 
n.5 (1st Cir. 1982)). However, the question of the authority to provide 
varying degrees of protection was not briefed in Defenders (Lizard), 
nor was it central to the court's decision to vacate the FWS's listing 
determination, and both of the district court cases cited above found 
the Ninth Circuit Court's reasoning on this particular issue was not 
applicable. In any event, the Ninth Circuit Court issued its decision 
without the benefit of a formal agency position, which this policy, 
when finalized, will constitute (see Nat'l Cable & Telecomms. Ass'n v. 
Brand X Internet Servs., 545 U.S. 967, 983-85 (2005)).

C. Second Component: The Definition of ``Significant'' as It Relates to 
SPR

    Having concluded that the phrase ``significant portion of its 
range'' provides an independent basis for listing and protecting the 
entire species, we next turn to defining ``significant'' to establish a 
standard for when such an independent basis for listing exists. This 
draft policy includes the following definition of ``significant'' as it 
relates to SPR: a portion is ``significant'' in the context of the 
Act's ``significant portion of its range'' phrase if its contribution 
to the viability of the species is so important that, without that 
portion, the species would be in danger of extinction. In this section, 
we explain why the draft policy defines the term ``significant'' in 
this way. This definition of ``significant'' addresses two questions: 
(1) How we will measure or on what basis we will determine whether a 
portion is ``significant''; and (2) at what threshold or level of 
importance we will determine a portion is ``significant''? We first 
explain why we have chosen a biological basis to define 
``significant.'' We then describe our definition's threshold, or level 
of importance, a portion must meet for it to be considered 
``significant'' and why that threshold is appropriate.
    The Act does not define ``significant'' as it relates to SPR, and 
the legislative history does not elucidate Congressional intent. 
Dictionary definitions of ``significant'' provide a number of possible 
meanings; one of the most prominent is ``important.'' E.g., Random 
House Dictionary of the English Language at 1326 (unabridged ed. 1967). 
We conclude that ``important'' is the most relevant meaning, but that 
it provides little guidance as to precisely what ``significant'' means 
in the context of the definitions of ``endangered species'' and 
``threatened species.'' We note that one district court interpreted 
``significant'' to mean ``a noticeably or measurably large amount.'' 
Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 19 (D.D.C. 2002) 
(addressing whether FWS had adequately explained its conclusion that 
three of the four areas in the contiguous United States that 
historically supported Canada lynx populations were not collectively a 
significant portion of the range of the lynx DPS's range). The court 
did so without analysis or any reference to alternate meanings, such as 
``important.'' Even if this is a plausible definition, nothing in that 
Court's decision explains why there are no other reasonable 
interpretations. Moreover, we believe that a standard of ``noticeably 
or measurably large'' provides little meaningful guidance to the 
Services or to the public.
    Case law and relevant principles of statutory construction and 
judicial review suggest that the Services have broad discretion in 
defining ``significant,'' particularly in the context of creating a 
policy related to SPR after public notice and comment (see Nat'l Cable 
& Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983-85 
(2005)). In fact, the Ninth Circuit expressly noted that ``[t]he 
Secretary necessarily has a wide degree of discretion in delineating `a 
significant portion of its range,' since the term is not defined in the 
statute'' (Defenders (Lizard), 258 F.3d at 1145). In exercise of this 
discretion, the Services have sought to establish a standard that would 
give meaningful guidance regarding when a portion of a species' range 
is significant. To establish such a standard, we must determine first 
the basis upon which an evaluation of significance must be grounded 
(i.e., what the portion must be significant for), and second the 
threshold at which the portion becomes significant on that basis.
1. Biological Basis for ``Significant''
    This subsection describes the first part of the definition of 
``significant''--it lays out the criteria for determining the portion's 
contribution to the viability of the species. Although there are 
potentially many ways to determine which portions of a species' range 
could be considered important, and therefore ``significant,'' we 
conclude that a definition of ``significant'' that is biologically 
based best conforms to the purposes of the Act, is consistent with 
judicial interpretations, and best ensures species' conservation. This 
draft policy's definition would emphasize the biological importance of 
the portion to the conservation of the species as the measure for 
determining whether the portion is ``significant.'' It would for that 
reason describe the threshold for ``significant'' in terms of an 
increase in the risk of extinction for the species. By recognizing the 
species itself as the reference point for determining whether a portion 
of the range is ``significant,'' we properly give priority to the use 
of science and biology for decision-making in status determinations, 
consistent with the Act's requirement to use the best available 
scientific and commercial data in determining the status of a species 
(16 U.S.C. 1533(b)(1)(A)). This definition based on the principles of 
conservation biology is well within the expertise of FWS and NMFS to 
apply. Finally, the result of using a biological- or conservation-
importance approach would be to apply protections and resources to 
those species in greatest need of conservation and thus this approach 
would meet the purposes of the Act.

[[Page 76994]]

    Analyzing ``significant'' in terms of the conservation of the 
species at issue is consistent with the Services' past practices, to 
the limited extent that the Services have addressed the issue. In those 
instances where the Services have addressed whether a portion of a 
species' range may be ``significant'' in a status determination, we 
have based consideration on the conservation or biological importance 
of the portion to the species. NMFS examples include: The proposed rule 
for bearded seal (75 FR 77496, 77507 (December 10, 2010)); the proposed 
rule for two coral species (70 FR 24359, 24360 (May 9, 2005)); the 
proposed rule for green sturgeon (70 FR 17386, 17387, 17395 (April 6, 
2005)); and the proposed rule for spotted seal (74 FR 53683, 53692-93 
(October 20, 2009)). Similarly, FWS has generally considered the 
contribution to the conservation of the species when evaluating whether 
a portion constitutes a significant portion of its range. Examples 
include the proposed rule for the Colorado portion of the range of 
Preble's meadow jumping mouse (72 FR 62992, 63017 (Nov. 7, 2007)); 
final rule for the Wyoming portion of Northern Rocky Mountains DPS of 
gray wolf (74 FR 15123, 15153 (Apr. 2, 2009)); the 12-month finding for 
the montane portion of the range of Gunnison's prairie dog (73 FR 6660, 
6675 (Feb. 5, 2008)); the Campbell Plateau portion of the New Zealand/
Australia DPS of the southern rockhopper penguin (73 FR 77264, 77275 
(Dec. 18, 2008)); and the Queen Charlotte Island portion of the British 
Columbia DPS of Queen Charlotte goshawk (72 FR 63123, 63128 (Nov. 8, 
2007)). More generally, the Services as a matter of common practice 
routinely analyze the biological or conservation importance of areas to 
listed species in carrying out activities under the Act. It is in fact 
a long-standing and central component to implementing the Act. For 
example, the Services consider and analyze conservation importance to 
the species when establishing recovery units, recovery criteria, and 
site-specific management actions in recovery plans; when designating 
critical habitat; and when evaluating the impacts of Federal activities 
during section 7 consultation. Considering biological or conservation 
importance is the common central theme necessary to meet the purposes 
of the Act. Moreover, it is consistent with the little case law that 
exists on the subject (see Greater Yellowstone Coalition v. Servheen, 
672 F. Supp. 2d 1105, 1124 (D. Mont. 2009) (approving definition of 
```significant' based on a variety of factors that indicate the 
importance of the range to the species' survival and the preservation 
of the species' ecosystem'')).
    We evaluate biological significance based on the principles of 
conservation biology using the concepts of redundancy, resiliency, and 
representation (Schaffer and Stein 2000). These concepts also can be 
expressed in terms of the four viability characteristics used more 
commonly by NMFS: Abundance, spatial distribution, productivity, and 
diversity of the species. Resiliency (abundance, spatial distribution, 
productivity) describes the characteristics of a species that allow it 
to recover from periodic disturbance. Redundancy (having multiple 
populations distributed across the landscape; abundance, spatial 
distribution) may be needed to provide a margin of safety for the 
species to withstand catastrophic events. Representation (the range of 
variation found in a species; spatial distribution, diversity) ensures 
that the species' adaptive capabilities are conserved. Redundancy, 
resiliency, and representation are not independent of each other, and 
some characteristic of a species or area may contribute to all three. 
For example, distribution across a wide variety of habitats is an 
indicator of representation, but it may also indicate a broad 
geographic distribution contributing to redundancy (decreasing the 
chance that any one event affects the entire species), and the 
likelihood that some habitat types are less susceptible to certain 
threats, contributing to resiliency (the ability of the species to 
recover from disturbance). Because precise circumstances are likely to 
vary considerably from case to case, it is not possible to describe 
prospectively all the classes of information that might bear on the 
biological significance of a portion of the range of a species. 
Therefore, the information that determines whether a portion of a range 
is significant may include, but is not limited to, the concepts 
described in this paragraph. Further, none of these concepts is 
intended to be mutually exclusive, and a portion of a species' range 
may be determined to be ``significant'' due to its contributions under 
any one of these concepts.
2. The Threshold for ``Significant''
    This subsection describes the second part of the significance 
definition: what threshold the Services would use to determine that a 
portion's biological contribution to the conservation of the species is 
so important that the portion qualifies as ``significant.'' Under this 
draft policy, to determine if a portion of a species' range is 
significant, FWS or NMFS would ask whether, without that portion, the 
representation, redundancy, or resiliency of the species--or the four 
viability characteristics used more commonly by NMFS--would be so 
impaired that the species would have an increased vulnerability to 
threats to the point that the overall species would be in danger of 
extinction (i.e., would be ``endangered''). If so, the portion is 
significant. For example, the population in the remainder of the 
species' range without the population in the SPR might not be large 
enough to be resilient to environmental catastrophes or random 
variations in environmental conditions. Or, if the viability of the 
species depends on the productivity of the population in the SPR, the 
population in the remainder of the range might not be able to maintain 
a high-enough growth rate to persist in the face of threats without 
that portion. Further, without the population in the SPR, the spatial 
structure of the entire species could be disrupted, resulting in 
fragmentation that could preclude individuals from moving from degraded 
habitat to better habitat. If habitat loss is extensive, especially in 
core areas, remaining populations become isolated and fragmented, and 
demographic and population dynamic processes within the species can be 
disrupted to the extent that the entire species is at risk of 
extinction (e.g., Waples et al. 2007). Finally, if the population in 
the SPR contains important elements of genetic diversity, without it, 
the remaining population may not be genetically diverse enough to allow 
for adaptations to changing environmental conditions. Diversity is 
generally thought to buffer a species against environmental 
fluctuations in the short term and to provide evolutionary resilience 
to meet future environmental changes (e.g., Hilborn et al. 2003).
    In evaluating whether a species qualifies for listing because of 
its status in only a portion of its range, the Services first determine 
whether that portion is so important to the species as a whole that its 
hypothetical loss would render the species endangered rangewide. If the 
answer is negative, that is the end of the inquiry: the portion in 
question is not significant and the species does not qualify for 
listing on the basis of the SPR language. If, on the other hand, the 
answer is affirmative, then the portion in question is significant, and 
the Service undertakes a detailed analysis of the threats to the 
species in that portion to determine if the species is endangered or 
threatened there. That analysis would evaluate current and anticipated 
threats acting on the species now and into the

[[Page 76995]]

foreseeable future, the impacts that these threats are expected to 
have, and the species' anticipated responses to those impacts.
    Note that this draft policy's definition establishes a threshold 
for ``significant'' that is relatively high. On the one hand, given 
that the consequences of finding a species to be endangered or 
threatened in an SPR would be listing the species throughout its entire 
range, it is important not to use a threshold for ``significant'' that 
is too low (e.g., a portion of the range is ``significant'' if its loss 
would result in any increase in the species' extinction risk, even a 
negligible one). Although we recognize that most portions of a species' 
range contribute at least incrementally to a species' viability, use of 
such a low threshold would require us to impose restrictions and expend 
conservation resources disproportionately to conservation benefit; 
listing would be rangewide, even if a portion of the range of minor 
conservation importance to the species is imperiled. Conversely, a 
threshold for ``significant'' that is too high (e.g., a portion of the 
range is ``significant'' only if threats in that portion result in the 
entire species' being currently endangered or threatened) would not 
give the SPR phrase independent meaning.
    The definition of ``significant'' in this draft policy carefully 
balances these concerns. By setting a relatively high threshold, we 
minimize the degree to which restrictions will be imposed or resources 
expended that do not contribute substantially to species conservation. 
But we have not set the threshold so high that the phrase ``in a 
significant portion of its range'' does not have independent meaning. 
Specifically, we have not set the threshold as high as it was under the 
interpretation presented by FWS in the Defenders litigation (termed the 
``clarification interpretation'' in the M-Opinion). Under that 
interpretation, the portion of the range must be so important that 
current imperilment there would mean that the species would be 
currently imperiled everywhere. Under this draft policy, the portion of 
the range need not rise to such an exceptionally high level of 
biological significance. (We recognize that if the species is imperiled 
in a portion that rises to that level of biological significance, then 
we should conclude that the species is in fact imperiled throughout all 
of its range, and that we would not need to rely on the SPR language 
for such a listing.) Rather, under this draft policy we ask whether the 
species would be in danger of extinction everywhere without that 
portion, i.e., if that portion were completely extirpated.
    Another way to look at it is that, unlike the clarification 
interpretation at issue in Defenders (Lizard), this draft policy does 
not by definition limit the SPR phrase to situations in which it is 
unnecessary. The clarification interpretation defined ``significant'' 
in such a way that a portion of a species' range could be significant 
only if the current status of the species throughout its range were 
endangered or threatened (in particular, as a result of the endangered 
or threatened status of the species in that portion of its range). But 
if the current status of the species throughout its range is endangered 
or threatened, then the species could be listed even without the SPR 
phrase. Thus, that definition of ``significance'' inherently made the 
statutory SPR phrase unnecessary and redundant. In contrast, the 
definition in this draft policy does not inherently make the statutory 
phrase redundant. Under this draft policy, a portion of a species' 
range is significant when the species would be in danger of extinction 
rangewide if the species were extirpated in that portion; but that will 
not be the case at the time of the analysis because by definition an 
SPR is a portion of the current range of the species, and therefore the 
species cannot yet be extirpated there. In other words, this draft 
policy's definition leaves room for listing a species that is not 
currently imperiled throughout all of its range.
    Two examples illustrate the difference between the draft policy's 
definition and the clarification interpretation. First, a species might 
face severe threats only in the portions of the range it uses in one 
part of its life cycle (Portion A). Because the species cannot complete 
its life cycle without Portion A, threats in Portion A affect all 
individuals of the species even if other portions of the species' range 
are free of direct threats. In other words, if the species is 
endangered in Portion A, it is in fact endangered throughout all of its 
range. Portion A would be an SPR under the clarification 
interpretation. Under this policy's interpretation, we would still list 
this species, but its listing would be based on its status throughout 
all its range rather than its status in a significant portion of its 
range.
    In contrast, another species may have two main populations. The 
first of those populations (found in Portion Y) currently faces only 
moderate threats, but that population occurs in an area that is so 
small or homogeneous that a stochastic (i.e., random, unpredictable, 
due to chance) event could devastate that entire area and the 
population inhabiting it. Therefore, if it were the only population, 
the species would be so vulnerable to stochastic events that it would 
be in danger of extinction. (With two main populations, it is unlikely 
that both would be affected by the same stochastic events, so the 
severity of the threats to each population would be reduced, because 
there would be exchange with the other population following a 
stochastic event that would help to stabilize the population that has 
suffered declines.) Thus, without the portion of the range currently 
occupied by the second population (Portion X), the species would be in 
danger of extinction. In such a situation, even severe threats to the 
species in Portion X, as long as they did not in fact result in the 
extirpation of the species in Portion X, would not cause the species 
currently to be in danger of extinction throughout all of its range. 
Portion X would not be an SPR under the clarification interpretation, 
but it would be an SPR under this draft policy.
    More broadly, and as a logical corollary to the reasoning of 
Defenders (Lizard), any interpretation of the definitions of 
``endangered species'' and ``threatened species'' must afford practical 
meaning to each part of the statutory language. None of the four 
discrete bases, or categories, for listing set forth in the plain 
language of the statute (that a species is: endangered throughout all 
of its range; threatened throughout all of its range; endangered in a 
significant portion of its range; or threatened in a significant 
portion of its range) may be rendered irrelevant. We conclude that this 
draft policy's threshold for determining biological significance will 
give meaning to all four discrete bases, or categories, for listing. 
Under our interpretation, there is at least one set of facts that would 
uniquely fall within each of the four categories or routes to listing 
(and would not simultaneously fit the standard of another category).
    The prototypical scenario in which a species would be considered 
endangered throughout all of its range would be one in which a species 
is currently affected by threats to such a degree that they affect the 
species, directly or indirectly, throughout its entire range and the 
entire species is rendered in danger of extinction. Similarly, the 
prototypical scenario whereby a species would be ``threatened 
throughout all of its range'' would be one in which a species is 
currently affected by threats to such a degree that they affect the 
species, directly or indirectly, throughout its entire range and the 
entire species is rendered likely to become in danger of extinction in 
the

[[Page 76996]]

foreseeable future. Note that fitting the ``endangered'' or 
``threatened'' category on the basis of impacts ``throughout the 
range'' does not necessarily mean that threats must be found to be 
equally distributed throughout all of the species' range as a 
geographical matter. The status of the entire species may be affected 
if threats are acting in an area that is so critical to the species' 
overall status that the threats indirectly affect the entire species, 
such that any finding that a species is imperiled in the area where the 
threat is acting directly is in fact tantamount to a finding that the 
species is endangered overall. For example, when a species' only 
breeding population is affected, the entire range is actually affected, 
because a species cannot continue to exist if it cannot breed 
successfully.
    The prototypical scenario in which a species would be considered 
endangered based on a significant portion of its range would be one in 
which the species faces a concentration of threats or impacts (to the 
degree that the members in that portion are in danger of extinction) in 
a portion of the range that is biologically very important to the 
species but not so important that the threats there are currently 
determinative of the status of the species throughout its range. 
Similarly, the prototypical situation where a species would be 
considered threatened based on a significant portion of its range would 
be one in which the species faces a concentration of threats or impacts 
that renders the members in a portion that is biologically very 
important likely to become endangered within the foreseeable future 
(but threats there are not currently determinative of the status of the 
entire species).
    The Services recognize that, although each of the four categories 
retains unique and independent meaning under our draft policy, in 
practice there is likely to be much overlap among these four 
categories. In many cases, a species that is endangered in a 
significant portion of its range would also qualify as endangered in a 
rangewide review of its status. In other cases, because the 
determination that a portion of a species' range is significant is 
largely independent of the determination of the species' current status 
rangewide, the best available scientific and commercial information may 
simultaneously support determinations that a species appears to have 
the status of ``endangered'' in a significant portion of its range and 
also to have the status of ``threatened'' throughout its range. This 
would occur if a species is found to be not only currently endangered 
in, but also likely in the foreseeable future to become extirpated 
from, a significant portion of its range. (This is not necessarily the 
case, because ``endangered'' means only that the species is in danger 
of extinction throughout its range (or in danger of extirpation in a 
portion of its range, in the context of an SPR), not necessarily that 
it is likely to become extinct (or extirpated, in the context of an 
SPR). Because a determination of significance means that, without that 
portion, the species would be endangered throughout its range, a 
determination that the species is in fact likely to be without that 
portion (that is, likely to be extirpated from it) within the 
foreseeable future is also a determination that the species is likely 
to become endangered throughout its range in the foreseeable future. 
The species would therefore currently also meet the definition of 
threatened throughout its range. In such a situation, the best 
available information would support both listing the species as 
endangered rangewide (because it is endangered in a significant portion 
of its range) and listing the species as threatened rangewide (because 
it is likely to become extirpated in a significant portion of its 
range, and therefore likely to become in danger of extinction 
throughout all of its range, in the foreseeable future).
    While this partial overlap among categories could potentially be 
confusing to the public or to biologists conducting status evaluations, 
we conclude that in practice it will not be a significant hurdle to 
implementing our draft policy. This is because, consistent with the 
recent court decisions discussed in Case Law above, under our 
interpretation of the statutory definitions, the Services would list 
and protect a species throughout its range if it meets the categories 
of endangered or threatened in a significant portion of its range. 
Viewed against the backdrop of the four categories for listing created 
in the definitions of ``endangered species'' and ``threatened 
species,'' this leads us to conclude that a species should be afforded, 
at the rangewide level, the highest level of protection for which the 
best available science indicates it is qualified in any significant 
portion of its range. In the last example in the preceding paragraph, 
the species would be listed as an endangered species.
    Therefore, if a species is determined to be endangered in an SPR, 
under this draft policy, the species would be listed as endangered 
throughout all of its range, even in situations where the facts 
simultaneously support a determination that the species is threatened 
throughout all of its range. However, we recognize that this approach 
may raise concerns that the Services will be applying a higher level of 
protection where a lesser level of protection might arguably fit if 
viewed across a species' range. The Services are particularly 
interested in public comments on this issue.
    We also recognize that the Services could choose to set a lower 
standard or threshold for ``significant'' by incorporating the concept 
of being likely to become in danger of extinction in the foreseeable 
future (the threatened standard), rather than being in danger of 
extinction (the endangered standard), in the definition of 
``significant.'' However, this draft definition of ``significant'' uses 
the endangered standard to promote a simpler, more straight-forward 
definition and to avoid the added complexity of the temporal component 
introduced by the ``foreseeable future'' language. We specifically 
request input on whether this draft policy's definition of 
``significant'' should include both the endangered standard and 
threatened standard, or just the endangered standard. It is important 
to understand that this does not affect whether our analysis will lead 
to a listing of ``endangered'' or ``threatened,'' as that determination 
is based on the status of the species within the SPR. That is a 
separate question from whether the portion of the range is sufficiently 
biologically significant to constitute an SPR in the first place.

D. Range and Historical Range

    When considering an interpretation of the SPR phrase, we must also 
consider the meaning of the term ``range.'' The Services interpret the 
term ``range'' to be the general geographical area within which the 
species is currently found and to include those areas used throughout 
all or part of the species' life cycle, even if not used on a regular 
basis. We consider the ``current'' range of the species to be the range 
occupied by the species at the time the Services make a determination 
under section 4 of the Act.
    Some have questioned whether lost historical range may constitute a 
significant portion of the range of a species, such that the Services 
must list the species rangewide because of the extirpation in that 
portion of the historical range. We conclude that while loss of 
historical range must be considered in evaluating the current status of 
the species, lost historical range cannot be a significant portion of 
the range. In other words, we cannot base a determination to list a 
species on

[[Page 76997]]

the status of the species in lost historical range.
    We reach this conclusion based on the text of the Act. As defined 
in the Act, a species is endangered only if it ``is in danger of 
extinction'' in all or a significant portion of its range. The phrase 
``is in danger'' denotes a present-tense condition of being at risk of 
a current or future, undesired event. Hence, to say a species ``is in 
danger'' in an area where it no longer exists--i.e., in its historical 
range where it has been extirpated--would be inconsistent with common 
usage. Thus, ``range'' must mean ``current range,'' not ``historical 
range.'' This interpretation of ``range'' is further supported by the 
fact that when determining whether a species is an endangered species, 
the Secretary must consider the ``present'' or ``threatened'' (i.e., 
future), rather than the past, ``destruction, modification, or 
curtailment'' of a species' habitat or range (16 U.S.C. 1533(a)(1)(A)). 
Additional support for this interpretation is found in the Act's 
requirement that a summary of a proposed listing regulation be 
published in a newspaper ``in each area of the United States in which 
the species is believed to occur'' (16 U.S.C. 1533(b)(5)(D)). There is 
no requirement to publish such notice in areas where the species no 
longer occurs. Therefore, to determine whether a species is presently 
``in danger of extinction throughout * * * a significant portion of its 
range,'' we must focus on the range in which the species currently 
exists.
    Lost historical range may, however, be an important factor in 
evaluating the current status of the species. The effect of loss of 
historical range on the viability of the species can be an important 
consideration in our status determination, and could prompt us to list 
a species because the loss of historical range has contributed to its 
present status as endangered or threatened throughout all or a 
significant portion of its range. In such a case, we do not list a 
species because it is ``endangered'' or ``threatened'' in its lost 
historical range, but rather because it is ``endangered'' or 
``threatened'' throughout all or a significant portion of its current 
range because that loss of historical range is so substantial that it 
undermines the viability of the species as it exists today. For 
example, the loss of historical range may have resulted in a species 
for which distribution and abundance is restricted, gene flow is 
inhibited, or population redundancy is reduced to such a level that the 
entity is now vulnerable to extinction or likely to become so within 
the foreseeable future throughout all or a significant portion of its 
current range. Conversely, a species suffering a similar loss of 
historical range would not be listed if viability of the remaining 
individuals was not compromised to the point of endangering or 
threatening the species.
    In addition to considering the effects that loss of historical 
range has had on the current and future viability of the species, we 
must also consider the causes of that loss. If the causes of the loss 
are still continuing, then that loss is evidence of the effects of an 
ongoing threat. Loss of historical range for which causes are not known 
or well understood may be evidence of the existence of threats to the 
remaining range.
    We make listing determinations with respect to current range 
regardless of the point in time at which we examine the status of the 
species (12-month listing finding, proposed listing or delisting rule, 
5-year reviews, and so forth). However, examining the current status of 
the species in its current range in no way constrains or limits use and 
application of the tools of the Act to the species' current range. In 
fact, reducing a species' vulnerability to threats and ultimately to 
extinction often requires recovering the species in some or all of its 
lost historical range. Indeed, the Act's definition of ``conserve,'' 
the Act's definition of ``critical habitat,'' and the provisions of 
section 10(j) of the Act all indicate that Congress specifically 
contemplated that recovering species in lost historical range may be 
needed to bring a species to the point that it no longer needs the 
protections of the Act. Thus, examining a species' status in its 
current range does not set the bar for recovery; rather it is simply 
the approach that the Act requires us to apply when we examine a 
species' current and future vulnerability to extinction.
    We acknowledge that the Ninth Circuit Court has held that the FWS 
must consider whether lost historical range is a significant portion of 
a species' range (Defenders (Lizard), 258 F.3d at 1145) (``where * * * 
it is on the record apparent that the area in which the lizard is 
expected to survive is much smaller than its historical range, the 
Secretary must at least explain her conclusion that the area in which 
the species can no longer live is not a `significant portion of its 
range' ''). This appears to have been based at least in part on a 
misunderstanding of FWS's position, which the Ninth Circuit Court 
interpreted as a denial of the relevance of lost historical range (see 
Tucson Herpetological Soc'y v. Salazar, 566 F.3d 870, 876 (9th Cir. 
2009) (``On appeal, the Secretary clings to his argument that lost 
historical habitat is largely irrelevant to the recovery of the 
species, and thus the [Act] does not require him to consider it.''). As 
explained above, the fact that historical range has been lost can be 
highly relevant to the conservation status of the species in its 
current range. The Services also consider historical range during 
recovery planning. For the reasons described above, however, we 
respectfully disagree with this holding of the Ninth Circuit Court, and 
conclude that the status of lost historical range should not be 
separately evaluated; ultimately, it is the conservation status of the 
then-current range at the time of the listing determination in question 
that must be evaluated (see Ctr. for Biological Diversity v. Norton, 
411 F. Supp. 2d 1271 (D.N.M. 2005), vacated by No. 06-2049 (10th Cir. 
May 14, 2007); Ctr. for Biological Diversity v. U.S. Fish & Wildlife 
Serv., 2007 U.S. Dist. LEXIS 16175 (D. Colo. Mar. 7, 2007), vacated by 
No. 07-1203 (10th Cir, Oct. 22, 2007)). Thus, if a species ``is 
expected to survive [in an area] much smaller than its historical 
range,'' we would undertake an analysis different than that apparently 
contemplated by the Ninth Circuit. In fact, two different analyses may 
be required. First, if the species has already been extirpated in some 
areas, the Services must determine whether the loss of those areas 
makes the species endangered or threatened in its current range. 
Second, if the species has not been extirpated from those areas, but is 
in danger of extirpation there (or likely to become so in the 
foreseeable future), the Services must determine whether those areas 
constitute a significant portion of its range, and, if so, list the 
species in its entirety.

E. Relationship of SPR to the Act's DPS Authority

    The Act's definition of ``species'' includes ``any subspecies of 
fish or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish and wildlife which interbreeds when mature 
(16 U.S.C. 1532(16)).'' Thus, the definition of ``species'' allows, for 
vertebrates, consideration of the status of a taxonomic species or 
subspecies over less than its entire range. The phrase ``significant 
portion of its range'' similarly also allows us to consider the status 
of a species over something less than all its range. Because of the 
potential overlap between these two statutory provisions, we must 
explain their relationship.

[[Page 76998]]

    In this draft policy, the definition of ``significant'' differs for 
the purpose of SPR analysis from the definition of ``significant'' 
defined in our DPS policy and used for DPS analysis. We expect, based 
on our experience and knowledge of already listed DPSs, that the 
differences in the two standards, the specific circumstance described 
by the definition of ``significant portion of its range,'' and the high 
bar it sets will seldom result in situations in which the population 
within a SPR for a taxonomic species or subspecies might also 
constitute a DPS. In those rare circumstances, under this draft policy, 
we would consider the DPS to be the proper entity for listing.
    We considered various possible relationships between the SPR 
language and the Act's DPS authority. This draft policy includes what 
we consider to be a reasonable approach. We describe our reasoning 
below, and we request public comments on it.
1. Definitions of ``Significant'' for SPR and DPS
    Our interpretation of the DPS language in the statute is explained 
in the Services' ``Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments Under the Endangered Species Act'' (DPS 
policy) (61 FR 4722, February 7, 1996). Both that policy and the 
statutory SPR language employ the concept of ``significance.'' The DPS 
policy requires that for a vertebrate population to meet the Act's 
definition of ``species,'' it must be discrete from other populations 
and must be significant to the taxon as a whole. We considered using 
the standard for significance under the DPS policy to define 
``significant'' in the SPR language. If the definition of 
``significant'' were the same as that defined in the DPS policy, the 
range of a DPS would also always constitute an SPR. We note that the 
converse, that a SPR would always be a DPS, would not always be true 
because, unlike a DPS, an SPR is not required to be discrete from other 
populations.
    We would then have to consider what would be protected--only the 
DPS, or the entire taxon (taxonomic species or subspecies) to which it 
belongs? The first possibility is that when we determine a DPS is 
endangered or threatened, we would then list the entire taxonomic 
species or subspecies as a result of the DPS being significant to the 
taxon as a whole and constituting a SPR. However, this would render the 
DPS portion of the definition of ``species'' meaningless, if as a 
result of a DPS being significant to the taxon as a whole, we list the 
entire taxon. We conclude that this option is not appropriate because 
Congress intended that we treat DPSs as ``species'' themselves. The 
second possibility would be to list the entire taxon when a plant or 
invertebrate is endangered or threatened in an SPR, but only list the 
distinct population when a vertebrate species is endangered or 
threatened in an SPR. However, this approach would render the SPR 
language meaningless with respect to vertebrates. In addition, this 
could be viewed as contrary to congressional intent to allow greater 
regard for vertebrates afforded by the Act's definition of ``species.''
    Considering the potential results of using the same standard for 
significance under the DPS policy to define ``significant'' in the SPR 
language leads us to conclude that the two provisions cannot utilize 
the same definitions for ``significant.'' We also considered revising 
the DPS policy to either revise or remove the requirement that a 
population must be significant to the taxon as a whole to qualify as a 
DPS. However, given the Services' history of use of the DPS policy, and 
the fact that policy has already been through public review and comment 
and has been considered by many courts, we declined to take that 
approach. We conclude that this draft policy's definition of 
``significant,'' which sets a high threshold for the purposes of SPR 
analysis, would help to promote the consistent application of SPR 
analysis among vertebrates and plants and invertebrates, while 
maintaining the flexibility afforded by the DPS authority to apply 
differing statuses (and thus differing management) across the range of 
vertebrate species.
2. This Draft Policy's Definition of ``Significant'' Creates Little 
Overlap Between SPR and DPS
    Although there are similarities in the definition of 
``significant'' under this draft policy and the definition of 
``significance'' in the DPS policy, there are important differences 
between the two. The DPS policy requires that for a vertebrate 
population to meet the Act's definition of ``species,'' it must be 
discrete from other populations and must be significant to the taxon as 
a whole. The significance criterion under the DPS policy is necessarily 
broad, and could be met under a wider variety of circumstances. This is 
appropriately so, as the DPS language, unlike the SPR language, allows 
a population segment to have a different listing status than the taxon 
to which it belongs. In fact, because a DPS must also be discrete, it 
may in fact function somewhat independently of the rest of the range, 
and its status may not directly influence that of the remainder of the 
taxon.
    In contrast, under this draft policy a portion of a species' range 
would be significant if its contribution to the viability of the 
species is so important that without that portion, the species would be 
in danger of extinction. The definition of ``significant'' in this 
draft policy requires a specific set of circumstances that demonstrate 
a relationship between that portion of the range and the potential 
future conservation of the species as a whole. The bar for significance 
under this interpretation of ``significant portion of its range'' is a 
higher bar than that established under the DPS policy. This is 
necessarily so, in part, because the finding that a species is 
endangered or threatened in an SPR requires listing the entire species.
    It should be noted that in general practice, the Services determine 
what entity(s) meets the Act's definition of ``species'' (taxonomic 
species, subspecies, or distinct population segment of a vertebrate 
species) prior to analyzing its status as endangered or threatened. 
This means that typically we would first determine whether we should be 
analyzing status at the level of taxonomic species, subspecies, or, for 
vertebrates, DPS. This determination is made based on whether there are 
any taxonomic distinctions below the level of species, any recognized 
distinct populations or division in the species' range, and whether 
there are differences in management or threats that would indicate it 
may be appropriate to consider status of entities separately. We would 
then analyze whether the determined entity(s) is endangered or 
threatened throughout all or a significant portion of its range. We 
note that this also applies to analyzing the status of a DPS; a DPS 
could be listed because it is endangered or threatened in an SPR. In 
the case where we find a taxonomic species or subspecies of a 
vertebrate is endangered or threatened in a significant portion of its 
range, we will generally already have considered whether there are any 
appropriate DPSs for which we should conduct a status review, so it is 
unlikely that we would need to ask whether that portion of the species' 
range occupied by the DPS is also a SPR.
    We conclude, based on our knowledge of and experience with the DPS 
policy, that because of the differences between this draft SPR policy 
and the DPS policy, including how ``significant'' is defined in this 
draft policy and the higher bar it sets, there will seldom be 
situations in which a DPS is so important that, without the

[[Page 76999]]

portion of the species' range that the DPS occupies, the species would 
be in danger of extinction such that the portion would qualify as an 
SPR under this draft policy. However, we recognize that there may be 
some limited circumstances where the range of a DPS will also comprise 
a significant portion of the taxon's range. It may not be possible to 
entirely eliminate some instances of overlap without considerably 
altering the DPS policy, and we believe that there would be potential 
overlap under other possible approaches to defining ``significant'' as 
well. Given that circumstances may occur where the range of a DPS will 
also comprise a significant portion of the taxon's range, we must 
consider what would be protected in those situations in which the range 
of a DPS also constitutes an SPR.
3. What would be protected in those situations in which the range of a 
DPS also constitutes an SPR?
    In those circumstances in which the range of a DPS also comprises a 
significant portion of the taxonomic species' or subspecies' range, 
there are two possible approaches to what should be protected: (1) List 
and protect only the DPS; or (2) list and protect the entire taxonomic 
species or subspecies to which it belongs because it is also an SPR. We 
conclude that the most appropriate policy position is to list and 
protect only the DPS. We believe this to be a reasonable 
interpretation, in that it gives meaning to Congress' intent in 
authoring the DPS language, and it directs conservation efforts to the 
appropriate listable entity.
    We considered listing the entire taxonomic species or subspecies 
when the range of a DPS also constitutes an SPR. Under this approach, 
we could still list a DPS when the range of such a taxon within the DPS 
is not significant as defined by this draft policy, and therefore not 
an SPR, and we would therefore not make the DPS provision of the Act 
meaningless. This would create a consistent application of SPR for 
vertebrates and for plants and invertebrates. We also would still have 
the ability to provide additional consideration for vertebrates because 
we could list DPSs for vertebrates in cases in which the portion of the 
range occupied by the DPS is not an SPR of the taxonomic species or 
subspecies (an ability we would not have for plants and invertebrates). 
However, this would in some circumstances remove our flexibility to 
apply differing statuses across the range of a vertebrate taxon when it 
is comprised of multiple DPSs with differing statuses. In the case of 
species listed under the Act that occur outside the United States, this 
may unnecessarily restrict international trade, and may run counter to 
congressional intent that suggests we should apply differing statuses 
for species across international boundaries if there are differences in 
management. For example, a species may have a range that includes 
several countries. One country may be taking actions to manage threats 
to improve the species' status within its borders, while the remaining 
countries are not managing the species and are allowing exploitation. 
In this case, the population that is being well-managed may qualify as 
a DPS under the Services' DPS policy as a result of differences in 
management across international boundaries and may in fact be only 
threatened in that country while it is endangered everywhere else. 
However, because the DPS composed of the remainder of the species' 
range where it is endangered constitutes most of the range of the 
species, it may also be an SPR that would require us to apply the 
status of endangered to the entire range of the taxon. If we were 
required to list rangewide based on the SPR status, we would be unable 
to apply a different status to the population in the country that is 
proactively managing the taxon. If a status of threatened cannot be 
applied to the DPS in that country, special regulations that would 
allow regulated international trade could also not be applied and much 
needed revenue to fund continued management of the taxon would not be 
generated.
    We believe that Congress intended us to give consideration to 
differences in status across the range of a species, especially in the 
case of internationally listed species. Section 4(b)(1)(A) of the Act 
directs us, when making a status determination, to take into account 
``those efforts, if any, being made by any State or foreign nation, or 
any political subdivision of a State or foreign nation, to protect such 
species, whether by predator control, protection of habitat and food 
supply, or other conservation practices, within any area under its 
jurisdiction, or on the high seas.'' Legislative history, although not 
entirely clear on what mechanisms Congress intended the Services to 
use, also indicates that we should give consideration to differences in 
status, recognize and encourage other agencies to exercise their 
management authorities, and apply differing management where 
appropriate (see The Endangered Species Conservation Act of 1972: 
Hearings on S. 3199 and S. 3818 Before the Subcomm. On the Environment 
of the Senate Comm. on Commerce, 92d Cong. 109 (1972) (statement of 
Curtis Bohlen, Deputy Assistant Secretary for Fish and Wildlife and 
Parks, Department of the Interior: ``It is our hope that this ability 
to apply selective protections would provide protection to those 
animals needing it, encourage the agencies which have management and 
protective authority to exercise that authority and allow the 
recognition of such efforts''.)). We also note that a Senate Committee 
Report discussed the Secretary's failure to recognize differing status 
of populations of a species in response to testimony regarding game 
species listed in foreign countries (S. Rep. No. 97-418(1982)). The DPS 
authority to apply differing statuses across the range of a vertebrate 
taxon, along with the use of special regulations for threatened species 
under section 4(d) of the Act, is one of the few mechanisms available 
to us to consider and recognize efforts made by States or foreign 
nations in our application of protections of the Act. This draft 
policy's definition of ``significant,'' which sets a high threshold for 
the purposes of SPR analysis, would help to promote the consistent 
application of SPR analysis among vertebrates and plants and 
invertebrates, while maintaining the flexibility afforded by the DPS 
authority to apply differing statuses (and thus differing management) 
across the range of vertebrate species. Thus, we conclude that this 
policy honors this intent.

F. Alternatives for Interpreting the Phrase ``Significant Portion of 
Its Range''

    In addition to the interpretation proposed in this draft policy, we 
considered three alternative statutory interpretations of the phrase 
``significant portion of its range'': (1) That the SPR and DPS language 
comprise a single authority; (2) that the SPR language provides 
clarification of the endangered and threatened definitional language; 
and (3) that the SPR language provides an independent basis for 
listing, and protections of the Act would apply only in the SPR 
(consistent with the withdrawn M-Opinion).
    Under the first alternative interpretation considered, in which SPR 
and DPS comprise a single authority, the SPR phrase would not provide 
an independent basis for listing. Instead, the SPR phrase and the DPS 
language in the definition of ``species'' would be read together to 
provide a single authority to list populations. The Services would 
interpret the SPR phrase to be a descriptive term that places a 
limitation on the listing of populations

[[Page 77000]]

of vertebrate taxa by only allowing listing of vertebrate populations 
that make up a significant portion of the entire taxon's range. This 
interpretation is consistent with the stated meaning in DOI's Final 
Environmental Statement (DOI 1973) that accompanied the original 
legislative language drafted by the Nixon Administration: ``The term 
`significant portion' of its range is used in the definition of 
endangered to provide the Secretary with the authority to protect a 
population unique to some portion of the country without regard to its 
taxonomic status, or a population that is now endangered over a large 
portion of its range even if the population inhabiting that portion of 
the range is not recognized as a distinct subspecies from a more 
abundant population occuring [sic] elsewhere.'' However, it is unclear 
how that original intended meaning of this phrase can be ascribed to 
the different statutory framework in which the phrase was placed in the 
Act as enacted: the SPR language was moved from the operative language 
to one set of definitions (``endangered species'' and ``threatened 
species''), and the precursor to the DPS language was included in 
another (``species''). Under a literal reading of the current language 
of the Act, the Services determine whether a group of vertebrates is a 
DPS, and therefore a ``species,'' independent of the application of the 
definitions of ``endangered species'' and ``threatened species.'' Thus, 
a group of vertebrates need not inhabit an SPR in order to qualify as a 
DPS; rather, the entirety of a DPS, like any other ``species,'' may be 
listed if it is endangered throughout all of its range or throughout a 
significant portion of its range. In addition, it is unclear under this 
interpretation what meaning the ``significant portion of its range'' 
phrase would have with regard to plants, since the distinct population 
segment language applies only to vertebrates (and the precursor 
language only applied to fish and wildlife).
    Under the second alternative considered, the SPR phrase would not 
provide an independent basis for listing as envisioned in this draft 
policy. Instead, the phrase would be interpreted as clarifying the 
extent to which the Services must show that a species is endangered or 
threatened throughout its range. The language would allow the Services 
to list a species if we determine that a species is endangered or 
threatened in at least a portion of its range that is so significant to 
the whole that it is currently driving the status of the entire 
species. In other words, we would not need to demonstrate that threats 
occur throughout the range, or know definitively the status of the 
species everywhere, provided that we could infer its overall status 
based on knowledge of its status in a significant portion. This 
interpretation was specifically rejected by the Ninth Circuit in 
Defenders (Lizard), which held that this interpretation rendered the 
SPR language superfluous and inconsistent with the plain meaning of the 
Act (i.e., it does not give separate meaning to all parts of statute) 
because it ultimately relied on making a determination about the status 
of the whole species, which could already be done on the basis of the 
``throughout all * * * of its range'' language. The court concluded 
that our ability to list a species when we do not know definitively the 
status of the species in every part of its range, but can infer its 
overall status based on what we do know, does not rely on the SPR 
language, but rather relies on the best-available-science standard of 
the Act. (Note that under all alternatives, the Services could list a 
species when we do not have complete information but can infer the 
species' overall status. However, the alternatives differ in which 
statutory language is relied on as the authority to do so. The 
clarification alternative relies on the SPR phrase, whereas the other 
alternatives rely on the best-available-science standard of the Act to 
list a species when we do not have complete information but can infer 
the species' overall status.)
    Under the third alternative considered, the SPR phrase would 
provide an independent basis for listing, and the protections of the 
Act would apply only in the SPR. This interpretation (as with the one 
included in this draft policy) would create additional circumstances in 
which the Services may list a species. A species could be found to be 
endangered or threatened throughout all its range, or endangered or 
threatened in only a significant portion of its range. The SPR phrase 
would be interpreted as a substantive standard allowing the listing of 
a species that is endangered or threatened in a significant portion of 
its range but secure overall. Under this alternative interpretation, 
protections of the Act would be applied only in the SPR. As explained 
in Case Law above, two courts have concluded this approach violates the 
plain and unambiguous terms of the Act. Both courts concluded that the 
terms ``endangered species'' and ``threatened species'' must be read 
consistently with the term ``species'' as defined in the Act; the SPR 
language does not provide authority to redefine ``species'' or to list 
or protect less than a ``species.''
    Valid arguments can be made for and against adopting any of the SPR 
phrase interpretations we considered. In weighing the advantages and 
disadvantages of each against the other, we determined that the above 
three alternative interpretations were less acceptable than the 
interpretation in this draft policy. We found the three alternative 
interpretations to be less acceptable--and therefore both less 
desirable and more vulnerable to criticism--primarily due to their 
inconsistencies with the plain language of the Act, inconsistencies 
with court decisions on SPR, or both. Our detailed analysis of the SPR 
phrase interpretations we considered is presented in FWS and NMFS SPR 
Working Group (2010) and is available at http://www.regulations.gov.

G. Alternatives for Defining ``Significant''

    Under alternative interpretations of the SPR phrase, we must also 
define what is ``significant.'' There are several options for doing so, 
each with pros and cons. Depending on which alternative interpretation 
of the SPR phrase a definition is applied to, there may be additional 
implications and considerations for applying various definitions of 
``significant.'' Although we considered numerous ideas of how to define 
significance, they can all be placed into three general categories: (1) 
Biological/conservation importance; (2) values stated in section 2 of 
the Act; and (3) size. Our rationale for choosing a biological/
conservation importance alternative is explained above. The other 
alternatives are discussed below.
    Values of the Act: Values stated in section 2 of the Act could be 
an alternative way to define significance. Section 2(a)(3) of the Act 
states that threatened and endangered species ``are of esthetic, 
ecological, educational, historical, recreational, and scientific value 
to the Nation and its people.'' We could use these values to define 
whether a portion is significant. One variation on this theme would be 
to define the U.S. portions of a species' range to be ``significant,'' 
either automatically or based on a determination that the existence of 
the species in the United States is particularly significant to the 
Nation. Thus, a species could be listed as endangered in the United 
States even if its principal range is outside the United States and the 
U.S. portion of its range only constitutes the periphery of its range. 
Another option would be to define ``significant'' as ecologically

[[Page 77001]]

significant, where a portion of a species' range would be 
``significant'' if the species in that portion played an important 
ecological role (such as pollination), regardless of whether the 
portion of the range contributed substantially to the viability of the 
species as whole.
    Size alternatives: Size of the portion of range is another 
suggested approach for defining significance. There are several ways 
size of a portion can be defined: Percentage of total range, percentage 
of population(s), percent of habitat within that portion, and so forth. 
It should be noted that a biological/conservation importance approach 
may also consider size as a component or method of assessing 
biological/conservation importance because factors such as size and 
number of populations, amount of suitable habitat, and so forth, have a 
bearing on the contribution of an area to the conservation of a 
species. However, size is one among many factors and is considered in 
relation to its effect on species' viability.
    As we have discussed previously, congressional intent regarding the 
SPR phrase is unclear, particularly with regard to what would qualify 
as significant. The one exception is that Congress did indicate that we 
should have the authority to protect species within the United States 
even when they are more abundant elsewhere in their ranges. However, it 
is unclear how Congress intended us to do so, and all possible 
interpretations of the SPR phrase, in combination with any of the 
possible approaches for defining ``significant,'' allow us to protect 
U.S. populations to some extent. The approach to defining 
``significant'' that would give us the most latitude to do so would be 
one based on values.
    We also must consider whether the approaches to defining 
significance are legally sound. However, there is some inconsistency in 
the case law. The Ninth Circuit Court stated that the Secretary of the 
Interior has ``a wide degree of discretion in delineating'' what 
portion of a range is ``significant.'' One other court indicated that a 
determination of significance should be based on size. Despite this 
inconsistency in case law, none of the approaches is inherently 
inconsistent with the statutory language of the Act. However, for the 
values and size approaches, developing defensible methodologies for 
determining significance may be much more challenging, and the Ninth 
Circuit Court specifically rejected Plaintiff environmental 
organization's argument that a specific percentage loss of habitat 
should automatically qualify a species for listing: ``[T]he percentage 
of habitat loss that will render a species in danger of extinction or 
threatened with extinction will necessarily be determined on a case-by-
case basis. Furthermore, were a bright line percentage appropriate for 
determining when listing was necessary, Congress could simply have 
included that percentage in the text of the [Act]'' (258 F.3d at 1144). 
The court found persuasive the Secretary's argument that a simple 
quantitative approach to interpreting SPR would not be appropriate: 
``The Secretary offers a compelling counter-argument to the Defenders' 
suggested approach: A reading of the phrase `significant portion of its 
range,' that adopts a purely quantitative measurement of range and 
ignores fact-based examination of the significance of the threats posed 
to part of the species' range to the viability of the species as a 
whole, does not carry out the purpose of the statute. Such an 
interpretation would fail to protect species in danger of extinction 
because it might not allow listing of species where areas of range 
vital to the species' survival-but not the majority of the range-face 
significant threats''
    Of the three approaches to defining significance, the biological/
conservation importance approach may be the most scientifically 
supportable because the reference point is the significance to the 
species itself. For the values and size approaches, some thresholds of 
significance would have to be determined that are unrelated to the 
importance of the portion to the species. However, particularly with a 
size approach, a single threshold would likely be arbitrary and not be 
scientifically supportable because of the wide variation in situations 
and species biology we encounter. Plus, it could not be applied in a 
systematic and consistent manner. Multiple thresholds for a variety of 
situations could be considered, but it is likely that we would not be 
able to account for all possible situations, and we would need to 
retain some discretion to depart from standards in appropriate 
circumstances. Although we could likely develop methods, definitions, 
and/or thresholds under the values approach, judging whether a species 
has cultural, aesthetic, educational, historical, or recreational value 
would likely remain very subjective and thus inordinately subject to 
legal challenge. An additional concern is that a system incorporating 
values may favor certain kinds of organisms or taxa over others (such 
as birds that are of value to recreational bird-watchers). 
Alternatively, we could avoid developing thresholds under values and 
size approaches and instead broadly consider either size or values in 
assessing significance, but we would risk applying definitions 
inconsistently.
    We also considered whether any of the approaches to defining 
``significant'' are straightforward enough to be applied and 
implemented consistently. A size approach with simple thresholds would 
be the easiest to apply. However, determining appropriate analyses and 
thresholds would likely not be a simple exercise. Similarly, a values 
approach would require developing new guidance and analytical tools 
before we could effectively implement such an approach (although, 
ultimately, the analysis could be developed in such a way as to result 
in consistent application). The biological/conservation importance 
approach, while not necessarily a straightforward analysis, would 
require the least amount of new guidance because much of the 
consideration of whether portions are biologically significant to the 
species is inherent in the threats analyses the Services already 
conduct, and would build upon the Services' experience and existing 
practice, as similar frameworks already exist in the DPS policy and in 
the FWS draft SPR guidance implementing the M-Opinion (FWS 2008). 
Because the reference point for significance is the species itself, 
there would be no one-size-fits-all approach or threshold that could be 
seen as arbitrary. However, because each analysis would be case-
specific, this approach might be difficult to apply consistently. 
Nevertheless, we recognize that administering many portions of the Act 
likewise ultimately rely on a degree of professional judgment, which is 
to some degree inevitable.
    The final consideration is whether the approaches would provide a 
conservation benefit consistent with the purposes of the Act. Values 
approaches could potentially result in our applying protections and 
conservation resources when the portion of the range that is endangered 
or threatened is not biologically important to the conservation of the 
species even though it may be significant culturally or otherwise but 
not contribute to the conservation of the species. In other words, we 
could be expending resources on portions of the range of species that 
are biologically unimportant. Size approaches could also have the same 
result, especially if thresholds are low or if thresholds are not 
tailored to specific situations and species' life histories. (For 
example, some wide-ranging species may be viable even if

[[Page 77002]]

they lose a substantial amount of their range, or a species may be 
sparsely distributed over large areas at the periphery of its range 
that contribute little biologically but core areas that constitute 
smaller proportions of the range may be of much greater importance to 
the species' viability). We conclude that a biological/conservation 
importance approach would result in us applying protections and 
resources to portions that are biologically important and in need of 
conservation, consistent with the purposes of the Act.

H. Implementation of the Policy

    When we arrive at a final policy, after taking into consideration 
all comments we receive on this draft policy, we intend to issue 
detailed internal guidance to assist staff and the public in conducting 
analyses consistent with that policy. To allow the public to understand 
better how this draft policy would likely be implemented if finalized 
in substantially the same form, we provide an overview of how we 
anticipate the policy would be implemented.
    The first step in our analysis of the status of a species would be 
to determine the status of the species in all of its range. If we 
determined that the species is in danger of extinction throughout all 
of its range, we would list the species as an endangered species, and 
no SPR analysis would be required. If the species was threatened 
throughout all of its range, we would limit our SPR analysis to the 
question of whether the species is in danger of extinction in a 
significant portion of its range; if so, we would list the species as 
endangered; if not, we would list the species as threatened. If the 
species was neither endangered nor threatened throughout all of its 
range, we would determine whether the species was endangered or 
threatened in a significant portion of its range; if so, we would list 
the species as endangered or threatened, respectively; if not, we would 
conclude that listing the species is not warranted.
    When we conduct an SPR analysis, we would first identify any 
portions of the range of the species that warrant further 
consideration. The range of a species can theoretically be divided into 
portions in an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that are not reasonably likely to be 
significant and endangered or threatened. To identify only those 
portions that warrant further consideration, we would determine whether 
there was substantial information indicating that (i) the portions may 
be significant and (ii) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. In 
practice, a key part of this analysis would be whether the threats are 
geographically concentrated in some way. If the threats to the species 
were affecting it essentially uniformly throughout its range, no 
portion would be likely to warrant further consideration. Moreover, if 
any concentration of threats applied only to portions of the range that 
clearly would not meet the biologically based definition of 
``significant'' (i.e., the loss of that portion clearly would not 
reasonably be expected to increase the vulnerability to extinction of 
the entire species to the point that the species would then be in 
danger of extinction), such portions would not warrant further 
consideration.
    If we were to identify any portions that warrant further 
consideration, we would then determine their status (i.e., whether in 
fact the species was endangered or threatened in a significant portion 
of its range). Depending on the biology of the species, its range, and 
the threats it faces, it might be more efficient for us to address the 
``significant'' question first, or the status question first. Thus, if 
we determined that a portion of the range is not ``significant,'' we 
would not need to determine whether the species was endangered or 
threatened there; if we determined that the species was not endangered 
or threatened in a portion of its range, we would not need to determine 
if that portion was ``significant.''

I. Interpretation and Application of the SPR Language Prior to 
Finalizing This Policy

    While the M-Opinion was in place, the FWS used in its listing 
determinations the interpretations relating to the SPR language set 
forth in the M-Opinion. NMFS, on the other hand, has not used those 
interpretations, but neither has it issued separate guidance. It is our 
intent to publish a final policy that will provide a uniform standard 
for interpretation of the SPR language and its role in listing 
determinations. However, before it can become final the policy must go 
through public notice-and-comment procedures consistent with the 
requirements of the Administrative Procedure Act (APA) (5 U.S.C. 553). 
This notice begins that process.
    In the meantime, the Services have an obligation to make numerous 
determinations in response to petitions to list, reclassify, and delist 
species, and to meet statutory timeframes. During this interim period, 
we will not apply this policy as a binding interpretation of the SPR 
language. However, during this period, we will consider the 
interpretations and principles contained in this draft policy as 
nonbinding guidance in making individual listing determinations. Thus, 
as nonbinding guidance, we will apply those interpretations and 
principles only as the circumstances warrant, and we will independently 
explain and justify any decision made in this interim period in light 
of the circumstances of the species under consideration. In preparing a 
final policy, we will consider all comments and information received 
during the comment period on this draft policy, as well as our 
experience during the interim experience. Accordingly, we recognize 
that any interpretation in the final, binding policy may differ from 
those in this proposal and those applied during this interim period.

III. Draft Policy

    Below, we provide the text of our draft policy, which we developed 
based on the preceding information provided in this document.
    Consequences of a species being endangered or threatened in a 
significant portion of its range: The phrase ``significant portion of 
its range'' in the Endangered Species Act's (the Act's) definitions of 
``endangered species'' and ``threatened species'' provides an 
independent basis for listing; thus there are two situations (or 
factual bases) under which a species would qualify for listing: a 
species may be endangered or threatened throughout all of its range; or 
a species may be endangered or threatened in only a significant portion 
of its range.
    If a species is found to be endangered or threatened in only a 
significant portion of its range, the entire species is listed as 
endangered or threatened, respectively, and the Act's protections apply 
across the species' entire range.
    Significant: A portion of the range of a species is ``significant'' 
if its contribution to the viability of the species is so important 
that without that portion, the species would be in danger of 
extinction.
    Range: The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
FWS or NMFS makes any particular status determination. This range 
includes those areas used throughout all or part of the species' life 
cycle, even if they are not used regularly (e.g., seasonal habitats). 
Lost historical range is relevant to the analysis of the status of the 
species, but it cannot constitute a significant portion of a species' 
range.

[[Page 77003]]

    Reconciling SPR with DPS authority: If the species is not 
endangered or threatened throughout all of its range, but it is 
endangered or threatened within a significant portion of its range, and 
the population in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies.

IV. Effects of Draft Policy

    If made final, this draft policy's interpretation of the 
``significant portion of its range'' language in the Act's definitions 
of ``endangered species'' and ``threatened species'' provides a 
standard for determining whether a species meets the definitions of 
``endangered species'' or ``threatened species.'' The only direct 
effect of the policy would be to accept or reject as ``significant'' 
portions of the range of a species under consideration for listing, 
delisting, or reclassification. More uniform application of the Act's 
definitions of ``endangered species'' and ``threatened species'' would 
allow the Services, various other government agencies, private 
individuals and organizations, and other interested or concerned 
parties to better judge and concentrate their efforts toward the 
conservation of biological resources vulnerable to extinction.
    Application of the draft policy would result in the Services 
listing and protecting throughout their ranges species that previously 
we either would not have listed, or would have listed in only portions 
of their ranges. However, this result would occur only under a limited 
set of circumstances. Under most circumstances, we would anticipate 
that the outcomes of our status determinations with or without the 
draft policy would be the same. This comparison is true for both the 
period prior to the M-Opinion, and the period during which FWS 
implemented the M-Opinion. The primary difference when compared to the 
M-Opinion is that a species would be listed throughout all of its 
range. FWS's experience with implementing the M-Opinion (which differs 
from the draft policy primarily in that under the withdrawn M-Opinion 
we would list the species only within the SPR rather than the entire 
species) suggests that listings based on application of this draft 
policy likely would be relatively uncommon. During the time that the M-
Opinion was put into effect between March 2007 and May 2011, FWS had 
determined that a species should be listed based on its status in a 
significant portion of its range only five times. In those instances 
where we would list a species because of its status in a significant 
portion of its range, protections would be applied throughout the 
species' range, rather than just in the portion. This outcome would be 
a permissible interpretation of the statute, and it reflects the policy 
views of the Departments of the Interior and Commerce.
    Listing a species when it is endangered or threatened in a 
``significant portion of its range'' before it is endangered or 
threatened throughout all its range may allow the Services to protect 
and conserve species and the ecosystems upon which they depend before 
large-scale decline occurs throughout the entire range of the species. 
This may allow protection and recovery of declining organisms in a more 
timely and less costly manner, and on a smaller scale than the more 
costly and extensive efforts that might be needed to recover a species 
that is endangered or threatened throughout all its range.
    Once a species is determined to be an endangered species or a 
threatened species, the provisions of the Act are applied similarly, 
regardless of whether the species was listed because it is endangered 
or threatened throughout all its range or only in a significant portion 
of its range. As such, if the Services determine that a species is 
endangered or threatened in a significant portion of its range, we will 
list the species throughout its range, triggering statutory and 
regulatory requirements under other sections of the Act.

A. Designation of Critical Habitat

    If a species is listed because it is endangered or threatened in a 
significant portion of its range, the Services will designate critical 
habitat for the species. We will use the same process for designating 
critical habitat for species regardless of whether they are listed 
because they are endangered or threatened in a significant portion of 
their range or because they are endangered or threatened throughout all 
of their range. In either circumstance, we will designate all areas 
that meet the definition of ``critical habitat'' (unless excluded 
pursuant to section 4(b)(2)) of the Act. ``Critical habitat'' includes 
certain ``specific areas within the geographical area occupied by the 
species at the time it is listed'' and certain ``specific areas outside 
the geographic area occupied by the species at the time it is listed'' 
(16 U.S.C. 1532(5)(A)). Thus, critical habitat designations may include 
areas within the SPR, areas outside the SPR occupied by the species, 
and areas that are both outside the SPR and outside the area occupied 
by the species at the time of listing, as appropriate. If a species is 
listed, however, as a result of threats in a significant portion of its 
range, the designation of critical habitat may tend to focus on that 
portion of its range. For example, with respect to portions of the 
range of the species not facing relevant threats, the Secretary may be 
more likely to find that the benefits of excluding an area from 
designation outweigh the benefits of specifying the area as critical 
habitat.

B. Section 4(d) of the Act Special Rules

    Determining that a species is threatened in a significant portion 
of its range will result in the threatened status being applied to the 
entire range of the species. When a species is listed as threatened, 
section 4(d) of the Act allows us to issue special regulations 
``necessary and advisable to provide for the conservation'' of the 
species. This provision in effect allows us to tailor regulations to 
the needs of the species. When a species is listed as threatened 
because of its status in an SPR, we will consider the development of a 
4(d) rule to provide regulatory flexibility and to ensure that we apply 
the prohibitions of the Act where appropriate.

C. Recovery Planning and Implementation

    Regardless of whether a species is listed because it is endangered 
or threatened throughout all of its range, or because it is endangered 
or threatened in only a significant portion of its range, the goal of 
recovery planning and implementation is to bring the species to the 
point at which it no longer needs the protections of the Act. Recovery 
plans must, to the maximum extent practicable, include site-specific 
management actions and measurable, objective criteria for determining 
the point at which the species no longer meets the definition of an 
``endangered species'' or a ``threatened species.'' See 16 U.S.C. 
1533(f)(1)(b). In other words, when any established measurable, 
objective criteria are met, the species would not be likely to become 
an endangered species in the foreseeable future either throughout all 
of its range or throughout a significant portion of its range. As with 
recovery planning and implementation for species that are endangered or 
threatened throughout all of their ranges, a variety of actions may be 
necessary to recover species that are endangered or threatened in an 
SPR. Recovery actions should focus on removing threats to the species, 
and are thus likely to be focused on those areas where threats have 
been identified. However, recovery efforts are not constrained to just 
the significant portion of the range in which the

[[Page 77004]]

species was originally determined to be endangered or threatened, and 
may include recovery actions outside the SPR, or even outside the 
current range of the species. For example, reintroducing a species to 
parts of its historical range outside the SPR may increase the species' 
redundancy and resiliency such that the SPR no longer meets the draft 
policy's standard for ``significant'' (i.e., loss of the species in the 
SPR would no longer cause the remainder to become endangered).

D. Sections 7, 9, and 10 of the Act

    Regardless of whether a species is listed because it is endangered 
or threatened throughout all of its range, or because it is endangered 
or threatened in only a significant portion of its range, the 
provisions of the Act generally apply to the entire species. A Federal 
agency is required to consult with FWS or NMFS under section 7 of the 
Act if its actions may affect an endangered or threatened species 
anywhere throughout its range. Jeopardy analyses would be conducted at 
the scale of the species as a whole. Where threats vary across the 
range of a species, we may use various methods to streamline 
consultation processes in areas where the species are more secure. We 
note that threats, population trends, and relative importance to 
recovery commonly vary across the range for many species, especially as 
recovery efforts progress. The Services routinely account for this 
variation in our consultations. We expect to apply the same approach 
for species listed because they are endangered or threatened in only a 
significant portion of its range. Similarly, analyses for issuing 
permits and exemptions under section 10 of the Act would apply 
throughout the species' range, and we would use our expertise to 
streamline the processes and apply the appropriate level of protection 
for the areas under consideration. In the same way, even if a species 
is listed because it is endangered or threatened in a significant 
portion of its range, the prohibitions under section 9 of the Act would 
apply throughout the species' range for endangered species, and as 
established by special rules pursuant to section 4(d) of the Act for 
species listed as threatened.

V. Public Comments; Request for Information

    We intend that the final policy on interpretation of the phrase 
``significant portion of its range'' in the Act's definitions of 
``endangered species'' and ``threatened species'' will consider 
information and recommendations from all interested parties. We 
therefore solicit comments, information, and recommendations from 
governmental agencies, Native American tribes, the scientific 
community, industry groups, environmental interest groups, and any 
other interested parties. All comments and materials received by the 
date listed in the DATES section above will be considered prior to the 
approval of a final document. We seek comments and recommendations on:
    (1) Consequences of a species being endangered or threatened in a 
significant portion of its range:
    (a) The draft policy interprets the ``significant portion of its 
range'' language to provide an independent basis for listing. Is this 
an appropriate interpretation? Are the other alternative 
interpretations we considered more appropriate, and why or why not? Are 
there other alternative interpretations that we should consider?
    (b) When a species is listed due to being endangered or threatened 
throughout an SPR, should the protections of the Act apply throughout 
the range of the species? If so, how should we apply those protections?
    (2) The definition of ``significant'':
    (a) The draft policy includes a definition based on biological/
conservation importance. Are alternative ways to define ``significant'' 
more appropriate, and why or why not? Would such approaches be workable 
in terms of their transparency, harmony with all key portions of the 
Act, and ability to be implemented consistently?
    (b) We chose a relatively high threshold for ``significant'' which 
requires that loss of the portion would cause the overall species to 
become endangered (``in danger of extinction''). Is this threshold 
appropriate? Should it be higher or lower? Should the definition 
reference both ``in danger of extinction'' and ``likely to become 
endangered,'' thus reflecting both the definitions of ``endangered 
species'' and ``threatened species'' as the benchmark for biological 
significance? Or should it refer only to whether loss of the portion 
would render the whole ``in danger of extinction,'' as is currently 
included in the draft policy?
    (3) We recognize that our definition of ``significant'' in the 
draft policy has a difficult conceptual underpinning both to analyze 
and to convey. Would it be appropriate to use another measure, such as 
percentage of range or population, as a rebuttable presumption as to 
whether a portion meets the definition of ``significant,'' or whether a 
portion does not meet the definition of ``significant''? Doing so could 
potentially streamline analyses and allow us to use our resources more 
effectively, as well as provide some general guidance to the public on 
how the standard for ``significant'' would be applied. Would 
development of such a measure provide a useful tool? What measure would 
be an appropriate for a rebuttable presumption, and how would it be 
rebutted?
    (4) Range and historical range: What role should lost historical 
range play in determining whether a species is endangered or 
threatened?
    (5) Reconciling SPR with DPS authority: What is the proper 
relationship between SPR and DPS?
    (6) We recognize that under the draft policy, a species can be 
threatened throughout all of its range while also being endangered in 
an SPR. For the reasons discussed in this document, in such situations 
we would list the entire species as endangered throughout all of its 
range. However, we recognize that this approach may raise concerns that 
the Services would be applying a higher level of protection where a 
lesser level of protection may also be appropriate, with the 
consequences that the Services would have less flexibility to manage 
the species and that scarce conservation resources would be diverted to 
species that might arguably better fit a lesser standard if viewed 
solely across its range. The Services are particularly interested in 
public comment on this issue.
    Please include sufficient information with your submission (such as 
references to scientific journal articles or other publications) to 
allow us to verify any scientific or commercial information you 
include.
    You may submit your information concerning this draft policy by one 
of the methods listed in the ADDRESSES section. 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 you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation used in preparing this 
document is available for you to review at http://www.regulations.gov, 
or you may make an appointment during normal business hours at the U.S. 
Fish and Wildlife Service, Endangered Species Program (see FOR FURTHER 
INFORMATION CONTACT).

[[Page 77005]]

VI. Required Determinations

A. Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
draft policy is significant and has reviewed it under Executive Order 
12866 (E.O. 12866). OMB bases its determination upon the following four 
criteria:
    (a) Whether the rule will have an annual economic effect of $100 
million or more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of 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; or
    (d) Whether the rule raises novel legal or policy issues.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency 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 are certifying that this policy would not have a 
significant economic effect on a substantial number of small entities. 
The following discussion explains our rationale.
    This rulemaking establishes requirements for NMFS and FWS in 
listing determinations under the Endangered Species Act. 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. No 
other entities are directly affected by this rule.
    This draft policy, if made final, would be applied in determining 
whether a species meets the Act's definitions of ``endangered species'' 
or ``threatened species.'' However, based on agency experience, we 
predict application of this policy interpretation would affect our 
determinations in only a limited number of circumstances. This would 
likely only result in a small number of additional species listed under 
the Act and application of the Act's protective regulations.
    We cannot reasonably predict those species for which we will 
receive petitions to list, delist, or reclassify, or whether a species' 
specific circumstances would result in us listing a species based on 
its status in an SPR. We therefore cannot predict which entities (other 
than the Services) would be affected by listing a species as endangered 
or threatened based on its status in an SPR or the extent of those 
impacts. However, given our experience implementing the Act, we believe 
few if any entities would be affected.
    In addition, section 4(b) of the Act requires that we base 
decisions to list, delist, or reclassify species ``solely on the best 
scientific and commercial data available.'' In other words, we cannot 
consider economic or socioeconomic impacts in our status determinations 
(48 FR 49244, October 25, 1983). In status determinations that would 
apply this policy, we would not consider the economic impacts of those 
listings. However, the Act also requires that we give notice of and 
seek comment on any proposal to list, delist, or reclassify any species 
prior to a final decision. Our proposed rules to list, delist, or 
reclassify species would indicate the types of activities that may be 
affected by resulting regulatory requirements of the Act. Entities that 
may be affected may review and comment on this or any other aspect of 
our proposed rules.

C. 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 draft policy 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 policy 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 draft policy 
would not place additional requirements on any city, county, or other 
local municipalities.
    (b) This draft policy 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, it is not a ``significant regulatory 
action''' under the Unfunded Mandates Reform Act. This policy would 
impose no obligations on State, local, or tribal governments.

D. Takings (E.O. 12630)

    In accordance with Executive Order 12630, this draft policy would 
not have significant takings implications. This policy would not 
pertain to ``taking'' of private property interests, nor does it 
directly affect private property. A takings implication assessment is 
not required because this policy (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 policy 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.

E. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this draft policy would have significant Federalism effects and 
have determined that a Federalism assessment is not required. This 
draft policy pertains only to determinations to list, delist, or 
reclassify species under section 4 of the 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.

F. Civil Justice Reform (E.O. 12988)

    This draft policy does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
the Executive Order 12988. This draft policy would clarify how the 
Services will make determinations to list, delist, and reclassify 
species under section 4 of the Act.

G. 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, May 4, 1994), Executive Order 13175, the 
Department of the Interior Manual

[[Page 77006]]

Chapter 512 DM 2, and the Department of Commerce American Indian and 
Alaska Native Policy (March 30, 1995), we have considered possible 
effects on federally recognized Indian tribes and have determined that 
there are no potential adverse effects of issuing this draft policy. As 
noted above, we cannot reasonably predict those species for which we 
will receive petitions to list, delist, or reclassify, or whether a 
species' specific circumstances would result in us listing a species 
based on its status in an SPR. We therefore cannot predict which 
entities, including federally recognized Indian tribes, would be 
affected by listing a species as endangered or threatened based on its 
status in an SPR or the extent of those impacts. Given our experience 
implementing the Act, we believe few if any entities, including tribes, 
would be affected.
    However, the Act requires that we give notice of and seek comment 
on any proposal to list, delist, or reclassify any species prior to a 
final decision. Our proposed rules to list, delist, or reclassify 
species would indicate the types of activities that may be affected by 
resulting regulatory requirements of the Act. Any potentially affected 
federally recognized Indian tribes would be notified of a proposed 
determination and given the opportunity to review and comment on the 
proposed rules.

H. Paperwork Reduction Act

    This draft policy does not contain any new collections of 
information that require approval by Office of Management and Budget 
(OMB) under the Paperwork Reduction Act. This policy would 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.

I. National Environmental Policy Act

    We are analyzing this draft policy in accordance with the criteria 
of the National Environmental Policy Act (NEPA), the Department of the 
Interior Manual (318 DM 2.2(g) and 6.3(D)), and National Oceanic and 
Atmospheric Administration (NOAA) Administrative Order 216-6. We will 
complete our analysis, in compliance with NEPA, before finalizing this 
proposed policy.

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

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This draft policy, if 
made final, is not expected to affect energy supplies, distribution, 
and use. Therefore, this action is a not a significant energy action, 
and no Statement of Energy Effects is required.

K. Clarity of This Policy

    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 the ADDRESSES section. To 
better help us revise the policy, 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.

References Cited

    A complete list of all references cited in this document is 
available on the Internet at http://www.regulations.gov or upon request 
from the Endangered Species Program, U.S. Fish and Wildlife Service 
(see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this draft policy are the staff members of 
the Endangered Species Program, U.S. Fish and Wildlife Service, 4401 N. 
Fairfax Drive, Arlington, VA 22203, and the National Marine Fisheries 
Service's Endangered Species Division, 1335 East-West Highway, Silver 
Spring, MD 20910.

Authority

    We are taking this action under the authority of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 6, 2011.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
    Dated: December 6, 2011
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-31782 Filed 12-8-11; 8:45 am]
BILLING CODE 4310-55-P