[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Rules and Regulations]
[Pages 25611-25623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10178]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 17 and 424

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 226 and 424

[Docket Nos. FWS-R9-ES-2010-0073; NOAA-110131071-2013-02; MO-92210-0-
0009-B4]
RIN 1018-AX44; 0648-BA77


Endangered and Threatened Wildlife and Plants; Revised 
Implementing Regulations for Requirements To Publish Textual 
Descriptions of Boundaries of Critical Habitat

AGENCY: United States Fish and Wildlife Service (FWS), Interior; 
National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We (FWS and NMFS; also jointly referred to as the Services) 
are revising regulations related to publishing textual descriptions of 
proposed and final critical habitat boundaries in the Federal Register 
for codification in the Code of Federal Regulations. In the interest of 
making the process of designating critical habitat more user-friendly 
for affected parties, the public as a whole, and the Services, as well 
as more efficient and cost effective, we are going to maintain the 
publication of maps of proposed and final critical habitat 
designations, but are making optional the inclusion of any textual 
description of the boundaries of the designation in the Federal 
Register for codification in the Code of Federal Regulations. The 
boundaries of critical habitat as mapped or otherwise described in the 
Regulation Promulgation section of a rulemaking that is published in 
the Federal Register will be the official delineation of the 
designation. The coordinates and/or plot points from which the maps are 
generated will be included in the administrative record for the 
designation, and will be available to the public on the Internet site 
of the Service promulgating the designation, at www.regulations.gov, 
and at the lead field office of the Service responsible for the 
designation. We will also continue our practice of providing the public 
with additional tools and supporting information, such as interactive 
maps and additional descriptions, on the Internet site of the Service 
promulgating the designation and at the lead field office responsible 
for the designation (and we may also include such information in the 
preamble and/or at www.regulations.gov) to assist the public in 
evaluating the coverage of the critical habitat designation. We have 
undertaken this effort as part of the Services' response to Executive 
Order 13563 (Jan. 18, 2011) directing Federal agencies to review their 
existing regulations and, inter alia, to modify or streamline them in 
accordance with what they learned.

DATES: This rule becomes effective May 31, 2012.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Supporting documentation used in the preparation 
of this rule will be available for public inspection, by appointment, 
during normal business hours at: U.S. Fish and Wildlife Service, 
Division of

[[Page 25612]]

Conservation and Classification, 4401 N. Fairfax Drive, Suite 420; 
Arlington, VA 22203, telephone 703/358-2171; facsimile 703/358-1735 and 
National Marine Fisheries Service, Office of Protected Resources, 1315 
East-West Highway, Silver Spring, MD 20910, telephone 301-713-1401; 
facsimile 301-713-0376.

FOR FURTHER INFORMATION CONTACT: Nicole Alt, U.S. Fish and Wildlife 
Service, Division of Conservation and Classification, 4401 N. Fairfax 
Drive, Suite 420; Arlington, VA 22203, telephone 703/358-2171; 
facsimile 703/358-1735 or Marta Nammack, National Marine Fisheries 
Service, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, telephone 301-427-8469; facsimile 301-713-0376. If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    Before a plant or animal species can receive the protection 
provided by the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.) (Act), it must first be added to the Federal lists of 
threatened and endangered wildlife and plants. The List of Endangered 
and Threatened Wildlife (found in title 50 of the Code of Federal 
Regulations (CFR) in Sec.  17.11) and the List of Endangered and 
Threatened Plants (found in 50 CFR 17.12) contain the names of all 
organisms that have been determined by the Services to qualify as 
``endangered species'' or ``threatened species.'' After a species is 
listed as endangered or threatened under the Act, the Service that 
listed the species designates as ``critical habitat,'' to the maximum 
extent prudent and determinable, specific areas essential for the 
conservation of the species.
    Under section 4(b)(5)(A) of the Act, the Services are required, 
when designating or revising critical habitat for species listed under 
the Act, to publish the complete text of the regulation in the 
Regulation Promulgation section of a rulemaking published in the 
Federal Register. The existing implementing regulations found in 50 CFR 
17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a) 
have interpreted this requirement to comprise publication of both maps 
and textual descriptions of the boundaries of such habitat. We have 
found over time that textual descriptions of critical habitat 
boundaries are often difficult to interpret and understand, and do not 
provide clarity regarding the areas being designated. Publishing these 
textual descriptions is also inefficient and costly. Below we discuss 
our current requirements and their limitations, and the regulation 
changes we are promulgating to address these issues.
    NMFS' current practice is to publish maps in the Federal Register 
along with a textual description of the boundaries of the areas being 
designated as critical habitat in both their proposed and final rules. 
FWS publishes only the maps in the proposed critical habitat rule and 
then publishes the maps along with a textual description of the 
boundaries in the final critical habitat rule. Historically we 
described the boundaries following a variety of methods, including 
Public Land Survey System designations (which specify township, range, 
and section; sometimes referred to as the ``rectangular survey 
system'') and metes-and-bounds (a system of describing a parcel of land 
using the physical features of local geography, along with directions 
and distances, to define the boundaries). However, as GIS and specific 
geographic-based data have become more available, we have been using 
predominantly the Universal Transverse Mercator (UTM) coordinate system 
(a grid-based system employing a series of 60 zones to specify 
locations on the surface of the Earth) and latitude-longitude. We 
adopted these practices because our current regulations at 50 CFR 
424.12(c) state, ``Each critical habitat will be defined by specific 
limits using reference points and lines as found on standard 
topographic maps of the area.'' Unfortunately, these descriptions are 
often difficult to interpret and understand, and do not provide clarity 
regarding which areas are being designated as critical habitat. 
Therefore, in addition to the maps and textual descriptions published 
in the Federal Register, over the last several years we have provided 
the public with interactive maps and additional descriptions, on the 
Services' Internet sites and at the lead field office responsible for 
the designation. References to these Internet sites are cited 
throughout the proposed (NMFS only) and final (NMFS and FWS) rules and 
in our outreach materials for the specific action. In addition, we have 
provided maps and GIS coverages (data layers) to affected Federal 
agencies, states, counties, jurisdictions, and interested parties for 
use in their computer databases and to make available to their 
constituencies. Our understanding that the public has referred to these 
latter materials in lieu of the detailed coordinates and other similar 
textual descriptions published in the Federal Register and codified in 
the Code of Federal Regulations reinforces our view that these textual 
descriptions are of limited utility in informing the public as to which 
areas are designated as critical habitat.
    Given that the textual descriptions are of limited utility, we are 
revising the implementing regulations contained within 50 CFR 17.94(b), 
226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to 
eliminate the requirement to publish textual descriptions of proposed 
(NMFS only) and final (NMFS and FWS) critical habitat boundaries in the 
Federal Register and reprinting in the CFR, and instead provide that 
the map(s), as clarified or refined by any textual language within the 
rule, constitutes the definition of the boundaries of a critical 
habitat. Each critical habitat area will be shown on a map, with more-
detailed information discussed in the preamble of the rulemaking 
documents published in the Federal Register. The map published in the 
CFR will be generated from the coordinates and/or plot points 
corresponding to the location of the boundaries. These coordinates and/
or plot points will be included in the administrative record for the 
designation, and will be available to the public on the Internet site 
of the Service promulgating the designation, at www.regulations.gov, 
and at the lead field office of the Service responsible for the 
designation. In addition, if the Service responsible for the 
designation concludes that additional tools or supporting information 
would be appropriate and would help the public understand the official 
boundary map, it will make the additional tools and supporting 
information available on our Internet sites and at the lead field 
office of the Service that is responsible for the critical habitat 
designation (and may also include it in the preamble and/or at 
www.regulations.gov). The maps and brief textual descriptions that we 
plan to publish in the Federal Register after we finalize this rule 
will be sufficient to inform the public of the boundaries of a 
particular critical habitat designation, and thus constitutes 
sufficient notice to the public. It is not necessary--or generally even 
helpful--for the public to have UTM or latitude-longitude coordinates 
in order to know where critical habitat is located. We believe these 
changes will be for the public good and make the process more user-
friendly, without compromising the public's understanding of the 
overall process.

[[Page 25613]]

    In addition to making the process more accessible to the public, 
eliminating the need to publish detailed textual descriptions in the 
Federal Register and annually in the CFR will also result in 
significant financial savings, thereby saving Federal resources. In 
FWS's final designations, UTM coordinate pairs or other textual 
descriptions of the boundaries of areas often account for more than 
half of the rulemaking document; therefore, eliminating the requirement 
to publish those textual descriptions will result in significant 
savings of Federal Register publication costs. For example, FWS spent 
$764,523 in fiscal year 2008, $539,639 in fiscal year 2009, and 
$662,952 in fiscal year 2010 to publish critical habitat designations 
in the Federal Register, for a total of $1,967,114 for the three fiscal 
years combined. If, based on the percentage of critical habitat Federal 
Register pages that were devoted in 2010 to textual descriptions, we 
estimate that 50 percent of those total costs were spent on the 
publication of the textual descriptions of the boundaries, then 
publishing those descriptions cost the Service $983,557 for the three 
fiscal years, or $327,852 per fiscal year.
    In addition, the regulation portion of the rule, including the maps 
and textual descriptions of the boundaries, is reprinted annually in 
the CFR, resulting in a further expenditure of taxpayer resources. FWS 
spent $80,000 in fiscal year 2008, $92,400 in fiscal year 2009, and 
$83,160 in fiscal year 2010 to reprint critical habitat designations in 
the CFR. Based on a review of the current volume (i.e., number of 
pages) of critical habitat designations represented in the CFR, we 
estimate that the textual descriptions account for approximately 75 
percent of the volume and therefore 75 percent of the printing costs. 
Using the estimated 75 percent as the cost of reprinting the textual 
descriptions of the boundaries, publishing those descriptions cost FWS 
$191,670 for the three fiscal years. Adding this to the Federal 
Register costs discussed above, we estimate that the annual cost for 
publishing textual descriptions of boundaries in the Federal Register 
and then reprinting them in the CFR is nearly $391,742 for FWS alone. 
Thus, eliminating the need to publish latitude-longitude coordinates, 
UTM coordinate pairs, or other detailed textual descriptions in the 
Federal Register and CFR would result in a significant cost savings to 
the Services and the public as a whole.
    Finally, relying on maps and brief textual descriptions to identify 
areas designated as critical habitat is consistent with the Act. 
Section 4(a)(3)(A) of the Act only requires that critical habitat be 
designated ``by regulation.'' Moreover, section 4(b)(5)(A) of the Act 
indicates that the Secretary shall ``not less than 90 days before the 
effective date of the regulation--(i) publish a general notice and the 
complete text of the proposed regulation in the Federal Register, and 
(ii) give actual notice of the proposed regulation (including the 
complete text of the regulation).'' We interpret the mandate to publish 
the ``complete text'' of the proposed regulation as requiring that the 
regulation provide a sufficiently detailed description of the area 
included within the proposed designation, in the form of maps and any 
accompanying text, so as to provide all interested persons with an 
understanding of, and a meaningful opportunity to comment on, the 
critical habitat boundaries. As is already the current practice with 
critical habitat designations containing detailed UTM coordinates as 
required by the existing regulations, the public will be able to refer 
to any additional supporting information we make available through our 
outreach efforts, Internet sites, and at the lead field office 
responsible for the designation to assist the public in understanding 
the official boundary.
    We note that the Services never maintained that requiring detailed 
textual descriptions was legally necessary. Instead, the first critical 
habitat regulations required only that critical habitat designations be 
``accompanied by maps and/or geographical descriptions.'' 43 FR 870, 
876 (Jan. 4, 1978). Although the Services subsequently added the 
requirement that critical habitat designations include textual 
descriptions describing the specific boundary limits of the critical 
habitat, there is nothing in the preamble to that rule indicating that 
the Services did so because the Act required it. Rather, it was in 
response to several commenters, who had opined that the proposed rule 
was not sufficiently clear in setting out the method by which critical 
habitat boundaries would be described. 45 FR 13009, 13015 (Feb. 27, 
1980). With this change, the regulations would continue to be explicit 
as to the method by which critical habitat boundaries would be 
described; it would just do so by means that do not require detailed 
textual descriptions.

Summary of Comments and Recommendations

    In the proposed rule published on May 17, 2011 (76 FR 28405), we 
requested that all interested parties submit written comments on the 
proposal by July 18, 2011. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties, and invited them to comment on the proposal. We did 
not receive any requests for a public hearing.
    During the comment period for the proposed rule, we received 14 
comment letters directly addressing the proposed regulations for 
requirements to publish textual descriptions of boundaries of critical 
habitat. Five commenters supported the proposal, 8 commenters opposed 
it, and one commenter was neutral. All substantive information provided 
during comment periods has either been incorporated directly into this 
final determination or addressed below.

Federal Agency Comments

    (1) Comment: Two Federal agencies suggested that we provide a link 
and a point of contact within the Federal Register publication to the 
internet sites maintained by both Services.
    Our Response: We will provide a link and a point of contact within 
the Federal Register publication to the Internet sites that will house 
the GIS information regarding the location of critical habitat.
    (2) Comment: Two Federal agencies suggested we provide more 
information on our GIS maps, such as detailed scale, legend, scale bar, 
north arrow, title, source, the date critical habitat was finalized, 
and Federal Register citation.
    Our Response: We will provide as much information as possible on 
the GIS maps to improve their usefulness.

Comments From States

    Section 4(i) of the Act states, ``[T]he Secretary shall submit to 
the State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from State agencies regarding the proposal to revise 
the implementing regulations requiring textual descriptions of critical 
habitat boundaries are addressed below.
    (3) Comment: Technical publishing limitations can create a barrier 
to utilizing the best scientific data available in the pictorial maps 
published in the Federal Register.
    Our Response: Although it is true there are technical publishing 
limitations imposed by the Federal Register regarding map size and 
detail, these limitations will not affect our mandated practice of 
using the best available science. In addition, if there are limitations 
imposed due to map size such that additional rule text would be 
necessary to ensure that interested

[[Page 25614]]

persons have adequate notice to afford them a meaningful opportunity to 
comment on the critical habitat boundary, we will provide language in 
the rule text to clarify the map. Plus, the coordinates and/or plot 
points from which the maps are generated will be included in the 
administrative record for the designation, and will be available to the 
public on the Internet site of the Service promulgating the 
designation, at www.regulations.gov, and at the lead field office of 
the Service responsible for the designation. For the convenience of the 
public, we will continue to provide additional tools and supporting 
information on our Internet sites and at the lead field office of the 
Service that is responsible for the critical habitat designation (and 
some of this information may also be included in the preamble and/or at 
www.regulations.gov).
    (4) Comment: Pictorial maps cannot always provide the same level of 
detail that a textual description can provide.
    Our Response: Although maps may not be as detailed as UTM and 
latitude-longitude coordinates, the maps and any accompanying textual 
description published in the Federal Register will provide sufficient 
notice to the public of the designation. We are not prohibiting textual 
descriptions. We always have the option to include them, and if we 
determine they are needed to ensure the public has adequate notice, we 
will include them in the rule text. We will also include in the 
administrative record for the designation the coordinates and/or plot 
points on which the maps are based, and will make them available to the 
public on the Internet site of the Service promulgating the 
designation, at www.regulations.gov, and at the lead field office of 
the Service responsible for the designation. In addition, as is the 
current practice, if we determine that any other supporting information 
or additional tools would help the public understand the official 
boundary map, we will make them available on our Internet sites and at 
the lead field office responsible for the designation (and we may also 
include such information in the preamble and/or at 
www.regulations.gov).
    (5) Comment: Under the proposed change, access to the GIS data 
underlying the maps would be restricted.
    Our Response: Access to the GIS data underlying the maps would 
continue to be available on our Internet sites and from the lead field 
office of the Service responsible for the critical habitat designation. 
We will also make hard copies available for individuals who do not have 
access to the internet upon request at our field offices. Our statement 
that ``we do not think it is necessary for the public to have UTM or 
latitude-longitude coordinates in order to know where critical habitat 
is located,'' is based on our understanding that for the last few years 
the public has not used the UTM or latitude-longitude coordinates to 
determine if their property is located in critical habitat areas, and 
that the UTM and latitude-longitude coordinates published in the 
Federal Register have not helped most individuals determine if their 
property is in or out of critical habitat designations, because they 
would need to have access to USGS quadrangle maps in order to plot the 
coordinates to determine the boundaries of critical habitat. We will 
continue to include in the administrative record the coordinates and/or 
plot points on which the maps are based, and we will make those 
coordinates and/or plot points available to the public on our Internet 
sites and at the lead field office of the Service responsible for the 
critical habitat designation, and at www.regulations.gov, but will not 
publish these data in the Federal Register.
    (6) Comment: The Service's intention to address the technical 
publishing limitations by directing the public to their Internet sites 
and local offices for more information is inadequate.
    Our Response: As discussed in our response to comment 4, we will 
address the technical publishing limitations by including whatever 
explanatory text the Service responsible for the designation determines 
is necessary to ensure the public has adequate notice of the 
designation. In addition, the coordinates and/or plot points from which 
the maps are generated will be included in the administrative record 
for the designation, and will be available to the public on the 
Internet site of the Service promulgating the designation, at 
www.regulations.gov, and at the lead field office of the Service 
responsible for the designation. For the convenience of the public, we 
will continue the current practice of making available on the Internet 
site and at the local field office of the designating Service any 
supporting information or additional tools that it determines would 
help the public understand the official boundary map.
    (7) Comment: The reliance on pictorial maps would affect the 
Services' ability to analyze the primary constituent elements (PCE), 
economic, national security, or other relevant impacts and the ability 
of the States and the public to consider and comment on these issues.
    Our Response: The Services are not changing the way we analyze the 
physical and biological features essential to the conservation of the 
species, including the primary constituent elements, economic, national 
security, or other relevant impacts. We will continue to define the 
critical habitat areas with coordinate data and use that data to 
generate the critical habitat map contained in the rule. The only 
difference from the way we presently are operating is that we would no 
longer publish the coordinate data in the Federal Register. The States 
and the public would still have that information in the supporting 
administrative record, and would be able to obtain it on our Internet 
sites, at www.regulations.gov, and at the lead field office of the 
Service responsible for the critical habitat designation.
    (8) Comment: Internet site addresses that contain the critical 
habitat boundaries should be provided in easily accessible locations 
for both the proposed and final rules.
    Our Response: We will continue to provide the critical habitat 
boundary information on our Internet sites and at the lead field office 
of the Service responsible for the critical habitat designation and 
will make it available at www.regulations.gov for easy access. We will 
also continue to publish the Internet sites and local office addresses 
in the Federal Register for both the proposed and final critical 
habitat rules.
    (9) Comment: Complete metadata related to critical habitat maps, as 
well as a complete legal description of the boundary, should be 
available on the Services' Internet sites and at all local field 
offices within the region of the designation.
    Our Response: We will provide this information on our Internet 
sites and at the lead field office of the Service responsible for the 
critical habitat designation (and we may also make it available at 
www.regulations.gov).
    (10) Comment: In describing the proposed and final critical habitat 
boundary designation, the maps and data used in the Federal Register 
and other information vehicles should include references to how 
accurate the underlying data are and what at least the essential 
elements of the metadata are.
    Our Response: Information about the metadata and the accuracy of 
the data will be provided in the supporting rulemaking files for the 
proposed and final critical habitat boundaries. We will not publish 
this information in the Federal Register.
    (11) Comment: Critical habitat boundaries should be available in a

[[Page 25615]]

geographic information system (GIS) compatible format for downloading.
    Our Response: We concur, and we will provide GIS maps on our 
Internet sites and at the lead field office of the Service responsible 
for the critical habitat designation (and we may also make it available 
at www.regulations.gov).

Public Comments

    (12) Comment: Three commenters fully support the proposal, because 
it would significantly streamline the process of designating critical 
habitat, would not weaken the effectiveness of the Act for wildlife, 
and would not undermine the public's ability to identify the boundaries 
of proposed and final critical habitat designations.
    Our Response: We appreciate the comments, and agree.
    (13) Comment: One commenter stated that there was inconsistent 
language in the proposed rule that should be clarified and corrected. 
In 50 CFR 424.12(c) we use an ``and'' between the clauses and in 50 CFR 
424.18(a) we use an ``or'' between the clauses.
    Our Response: We do not believe that the language is inconsistent 
as proposed. The ``and'' between the phrases in 50 CFR 424.12(c) is 
referring to the detailed information that will be provided in the 
preamble for each critical habitat designation. This information will 
also be on our Internet sites and at the lead field office of the 
Service responsible for the critical habitat designation. The ``or'' 
between the clauses in 50 CFR 424.18(a) is referring to the additional 
tools and supporting information that we will make available if we 
determine it would help the public understand the official boundary 
map. Such additional tools or supporting information may be published 
in the preamble of the rulemaking document or at www.regulations.gov, 
or--depending on the size, detail, etc.--may only be made available 
from our Internet sites and the lead office of the Service responsible 
for the designation.
    (14) Comment: Two commenters stated the definitive regulatory text 
is necessary to set forth the extent of critical habitat, its intended 
function and purpose, its regulatory basis, and any related 
interpretations.
    Our Response: We will continue to provide textual descriptions as 
necessary for purposes of clarifying or refining the location and 
boundaries of each area or to explain the exclusion of sites (e.g., 
paved roads, buildings) within the mapped area. The major change from 
the way we are currently doing business is that we would not publish 
the coordinates of the critical habitat boundaries in the Federal 
Register. This information would still be part of the administrative 
record underlying the designation, and will be available to the public 
on the Internet site of the Service promulgating the designation, at 
www.regulations.gov, and at the lead field office of the Service 
responsible for the designation.
    (15) Comment: The proposed rule raises the possibility of overbroad 
designations of critical habitat made without careful prior analysis of 
the primary constituent elements, areas of exclusion for existing 
facilities, and delineation of the critical habitat boundaries.
    Our Response: We are not changing the way we analyze physical and 
biological features essential to the conservation of the species, 
including the primary constituent elements, areas of exclusion for 
existing facilities or delineation of the critical habitat boundaries. 
We will continue to generate the coordinates of the boundaries of the 
critical habitat, which will in turn provide the basis for the maps and 
any necessary textual descriptions published in the Federal Register. 
Therefore, the coordinate information will be part of the rulemaking 
files and will be available to the public. This will save the Federal 
government money, and provide better and easier public access to the 
data.
    (16) Comment: One commenter asked why the public was left out of 
the 50 CFR 424.16(ii) language.
    Our Response: This section only applies to State and local 
governments. The public is always invited to comment, and this in no 
way prevents that from occurring.
    (17) Comment: One commenter wanted to know at whose discretion is 
the optional additional textual data provided, and what criteria go 
into that decision.
    Our Response: The discretion would fall to the Secretary of the 
Interior for critical habitat being designated by the Fish and Wildlife 
Service and to the Secretary of Commerce for critical habitat being 
designated by the National Marine Fisheries Service. The conditions 
that would lead the designating Secretary to make the decision to 
publish rule text in addition to the maps would include instances in 
which the rule text is necessary to ensure that the public has adequate 
notice of the location and boundaries of the designation or to explain 
the exclusion of sites (e.g., paved roads, buildings) within the mapped 
area.
    (18) Comment: One commenter stated that this proposal makes an 
already inadequate and unlawful notification system even worse by 
removing all meaningful constraints and requirements on how the 
Services designate critical habitat.
    Our Response: This regulation change does not alter how the 
Services designate critical habitat. Under the Administrative Procedure 
Act, the designating Service must ensure that the public has adequate 
notice to provide meaningful comment on the proposed designation. To do 
this, the notice of proposed rulemaking must fairly apprise interested 
persons of the issues in the rulemaking, and the agency must make 
available the data on which the rule is based. In the context of 
designation of critical habitat, this means, among other things, that 
the notice must fairly apprise interested persons as to what areas may 
be included in the final designation, and the designating Service must 
make available the coordinate information and/or plot points on which 
the maps published in the Federal Register are based. It is our intent 
that every designation issued pursuant to these revised regulations 
meet this standard. This rule would simply allow us to eliminate 
publishing the rarely-used coordinate data in the Federal Register, 
while still providing the public with adequate notification.
    (19) Comment: The Services are violating the Act by unlawfully 
shifting the burden of demonstrating what is or is not critical habitat 
to the landowner by this proposed rule change.
    Our Response: This rule change would not shift the responsibility 
of determining which specific areas are critical habitat to the 
landowner; this would still be the responsibility of the Services. The 
map combined with any additional rule text should provide adequate 
notice to the public regarding the critical habitat boundaries. 
Landowners would have no added burden of demonstrating what is or is 
not critical habitat, and as with critical habitat designations under 
the existing regulations, will continue to have access to the 
coordinates and/or plot points underlying the maps, as well as all of 
the additional tools and supporting information the Service responsible 
for the designation routinely makes available to help the public 
understand the official boundary.
    (20) Comment: The Services' proposal violates the Act's mandate 
that the agencies designate specific, not general, areas.
    Our Response: The Services would continue to be responsible for 
identifying specific areas, to the maximum extent prudent and

[[Page 25616]]

determinable, that meet the definition of critical habitat in the Act. 
The changes to the regulations discussed herein will not have any 
effect or bearing on that statutory requirement. We have determined, 
however, that the manner in which we have been describing the 
boundaries of the specific areas in our Federal Register document is 
not the most helpful or useful to the public.
    (21) Comment: One commenter stated that removal of the textual 
descriptions of critical habitat would violate the Act.
    Our Response: Relying on maps and brief textual descriptions to 
identify areas designated as critical habitat is consistent with the 
Act, as explained above. In fact, the current requirement to publish 
the textual descriptions is not found in the Act itself, but in our 
implementing regulations. With this change, the implementing 
regulations would continue to prescribe the manner in which the 
Secretaries will delineate critical habitat boundaries; the manner 
those regulations prescribe for delineating critical habitat boundaries 
would leave to the discretion of the agencies whether it was necessary 
to include the publication of textual descriptions in the Federal 
Register in a particular designation.
    (22) Comment: The Services' assertion that even more limited 
descriptions of critical habitat will be sufficient to inform the 
public is unsupported and wrong, because map scales are too general to 
be of much use to individual landowners.
    Our Response: It is true that due to technical publishing 
limitations, the scale of some maps that will be published in the 
Federal Register may necessitate that we provide explanatory text for 
clarification. If the maps are ambiguous such that rule text would be 
needed to ensure the public has adequate notice of the designation, we 
will include accompanying text in the rule. Moreover, as with critical 
habitat designations under the existing regulations, the public will 
continue to have access to the coordinates and/or plot points 
underlying the maps, as well as all of the additional tools and 
supporting information the Service responsible for the designation 
routinely makes available to help the public understand the official 
boundary.
    (23) Comment: The Services' proposal supplants established 
surveying techniques with unspecified general descriptions to the 
detriment of private landowners.
    Our Response: We would continue to use established surveying 
techniques for defining the boundaries of critical habitat, which would 
then be represented in the maps and any accompanying textual 
descriptions in the Federal Register.
    (24) Comment: One commenter stated that publishing only a detailed 
description of the critical habitat violates the Act, which requires 
publication of the complete text of the critical habitat.
    Our Response: We interpret the mandate to publish the ``complete 
text'' of the proposed regulation as requiring that the regulation 
provide a sufficiently detailed description of the area included within 
the proposed designation so as to provide all interested persons with 
an understanding of the critical habitat boundaries and a meaningful 
opportunity to comment on those boundaries. The regulation changes will 
allow us to continue to meet that mandate by publishing maps of the 
critical habitat boundaries.
    (25) Comment: The Services' proposed changes would deny landowners 
due process.
    Our Response: We will continue to provide a sufficiently detailed 
description in the Federal Register of the critical habitat area in the 
form of maps and any accompanying rule text that is needed to provide 
landowners with a meaningful opportunity to comment. We will also 
continue to include within the administrative record for the 
designation the coordinates and/or plot points that were used to 
generate the maps and will make this data available on the Services' 
Internet sites, www.regulations.gov, and at the lead field office of 
the Service responsible for the designation. In addition, as we already 
do under the existing regulations, whenever we conclude that additional 
tools or supporting information would help the public understand the 
official boundary, we will make those materials available on our 
Internet sites and at the lead field office of the Service responsible 
for the critical habitat designation (and we may also provide them at 
www.regulations.gov). These changes will continue to provide landowners 
due process, as they will not alter the nature of the information the 
public currently uses to identify critical habitat boundaries.
    (26) Comment: The projected cost savings is minuscule compared to 
the increased cost burdens that will be imposed on individual property 
owners.
    Our Response: We do not anticipate that this change would impose 
increased cost burdens on individual property owners. The critical 
habitat boundaries will be reflected in maps and any accompanying text 
published in the Federal Register. In addition, individual property 
owners will be able to easily access additional information regarding 
the critical habitat designation on our Internet sites, at 
www.regulations.gov, and at the lead field office of the Service 
responsible for the critical habitat designation. We will not only save 
Federal monies, but also reduce the cost burden on individual property 
owners by making critical habitat information easier to obtain.
    (27) Comment: The Services should provide written notice directly 
to the owners of land by mail whenever they propose to include land in 
a critical habitat designation.
    Our Response: In addition to the Federal Register notices, the 
Services provide notification through outreach materials including 
press releases and legal notices in newspapers of the affected areas. 
We believe these outreach efforts are sufficient to inform the public 
about proposed critical habitat designations. Notifying property owners 
by mail would be costly, time consuming, and largely duplicative of our 
current outreach efforts.
    (28) Comment: The Services should publish maps in the Federal 
Register of a sufficient scale and with sufficient detail to allow a 
landowner to determine whether their property falls within a proposed 
critical habitat designation.
    Our Response: The Federal Register limitations on map size and 
detail prevent the Services from being able to improve upon the present 
maps being published in the Federal Register. We will publish maps in 
the Federal Register in as detailed a manner as possible, given the 
technical limitations. For designations with large-scale maps, the map 
itself may leave ambiguity as to whether a particular property is 
within the mapped boundaries (and therefore covered by the critical 
habitat designation). When the designating Service determines that 
additional regulatory text clarifying ambiguities in the map is needed 
to ensure that the public would have adequate notice of the critical 
habitat boundaries, the designating Service will provide additional 
regulation text. The designating Service will ensure that the notice of 
proposed rulemaking provides sufficient notice of the boundary of the 
proposed designation to afford the public a meaningful opportunity to 
comment on it. Moreover, the Services will make available the 
underlying rulemaking files for the proposed and final rule (including 
the coordinate information and/or plot points on which the maps 
published in the Federal Register are based).
    (29) Comment: One commenter was concerned that if the proposed rule 
is

[[Page 25617]]

adopted, it will reduce information that must be published in the 
Federal Register when designating critical habitat, and would 
potentially provide the opportunity to change the information available 
at agencies without going through rulemaking.
    Our Response: We would not be able to change the critical habitat 
designation without going through the rulemaking process. We have 
acknowledged that what is printed in the Federal Register and 
subsequently in the CFR will be the legally binding delineation of 
critical habitat. Should there be ambiguity due to the scale of the map 
such that additional regulatory text clarifying ambiguities in the map 
is needed to ensure that the public would have adequate notice of the 
boundaries, we will provide additional regulation text. The only change 
in the Federal Register would be the lack of the detailed coordinate 
data of the boundaries of the specific areas being designated as 
critical habitat (i.e., latitude-longitude and UTM coordinates). We 
would still generate that data, and would make it available on our 
Internet sites, at www.regulations.gov, and at the lead field office of 
the Service responsible for the critical habitat designation. Neither 
the critical habitat designation published in the Federal Register, nor 
the underlying data on which it is based, could be changed without 
undergoing a further rulemaking.
    (30) Comment: One commenter stated that the proposed approach could 
create significant concerns if implemented in a manner that designates 
wide swaths of lands on a map, only certain areas of which contain the 
physical and biological features necessary for conservation of the 
species.
    Our Response: The way we designate critical habitat would not 
change. This rule change would simply remove the requirement that we 
publish the reference points (i.e., textual descriptions) in the 
Federal Register and reprint them annually in the CFR. In addition, in 
instances where there are areas within a bigger area that do not 
contain the physical and biological features necessary for the 
conservation of the species, the Services would have the option of 
drawing the map to reflect only those parts of the area that do contain 
those features, or including a textual description that excludes from 
the designation specific areas that do not contain those features.
    (31) Comment: One commenter proposes that we add the following 
sentence to 50 CFR 424.18(a): ``General descriptions of the location 
and boundaries of each area may be provided for clarification purposes 
or to explain the exclusion of sites (e.g., paved roads, buildings, 
etc.) within the mapped area.''
    Our Response: We have inserted that language in 50 CFR 424.12(c). 
We do not believe it is necessary to repeat this in 50 CFR 424.18(a).
    (32) Comment: One commenter was concerned about the removal of the 
textual descriptions of existing final critical habitat boundaries set 
forth in the CFR and whether the broad scale maps would increase 
critical habitat.
    Our Response: Removing the coordinate data from the Federal 
Register and CFR will not increase or otherwise change the critical 
habitat boundaries or areas. We are merely planning to remove the 
reference points (i.e., UTM or latitude-longitude coordinates) of the 
textual descriptions from existing final critical habitat designations 
in the Federal Register and CFR in future rule making. We will, 
however, continue to provide this information on our Internet sites, at 
www.regulations.gov, and at the lead field office of the Service 
responsible for the critical habitat designation.
    (33) Comment: One commenter stated that, without the requirement of 
a written description, there is no assurance that the maps will or will 
not indicate the boundary of the critical habitat.
    Our Response: We are making the textual descriptions optional. This 
means we will not, in most cases, publish the reference points (i.e., 
UTM or latitude-longitude coordinates) in the Federal Register. 
However, every critical habitat designation must include a map 
delineating the critical habitat boundary, and may also include general 
textual descriptions for clarification purposes or to explain the 
exclusion of sites (e.g., paved roads, buildings, etc.) within the 
mapped area. The critical habitat map, combined with any general 
textual descriptions included in the rule text, will provide the public 
with adequate notice of where the boundary of the critical habitat 
designation is located. As we have acknowledged, therefore, the final 
rule published in the Federal Register and subsequently in the CFR will 
continue to contain the legally binding delineation of critical 
habitat. However, if for some reason a member of the public is 
uncertain about the boundaries of a particular critical habitat 
designation even after reading the map and any regulatory text, they 
will continue to have access to the coordinates and/or plot points 
underlying the maps, as well as all of the additional tools and 
supporting information the Service responsible for the designation 
already routinely makes available to assist the public in understanding 
the official boundary.
    (34) Comment: One commenter stated that our proposed changes to 50 
CFR 17.94(b) (Each Critical Habitat area will be shown on a map, with 
more-detailed information discussed in the preamble of the rulemaking 
documents published in the Federal Register and made available from the 
lead field office of the Service responsible for such designation) was 
in conflict with our proposed changes to 50 CFR 424.18(a) (The Service 
may also create additional explanatory text, information, or maps and 
include them in the preamble of the rulemaking document or make them 
available from the lead office responsible for the designation).
    Our Response: The two provisions referenced by the commenter are 
consistent. Both provisions have two components. The first component 
requires that the detailed description of the action contained in the 
Federal Register rule and then in the CFR will include a map 
delineating the boundary of the designation. This can be found at 50 
CFR 424.18(a) (``For a rule designating or revising critical habitat, 
the detailed description of the action will include a map that 
delineates the official boundary of the designation.'') and at 50 CFR 
17.94(b) (``Each Critical Habitat area will be shown on a map * * *''). 
The requirement to include a map in the detailed description of the 
action does not eliminate the option of also including additional 
clarifying rule text within that detailed description. The second 
component of the two provisions outlines ways to provide more 
information that we believe would be helpful to inform the public on 
the location of critical habitat above and beyond the detailed 
description of the action. This can be found at 50 CFR 17.94(b) (``with 
more-detailed information discussed in the preamble of the rulemaking 
documents published in the Federal Register and made available from the 
lead field office of the Service responsible for such designation.'') 
and at 50 CFR 424.18(a) (``The Service responsible for the designation 
will include more-detailed information in the preamble of the 
rulemaking document and will make the coordinates and/or plot points on 
which the map is based available to the public on the Internet site of 
the Service promulgating the designation, at www.regulations.gov, and 
at the lead field office of the Service responsible for the 
designation. In addition, if the Service responsible for the 
designation concludes that additional tools or supporting information 
would be appropriate and would help the public

[[Page 25618]]

understand the official boundary map, it will, for the convenience of 
the public, make those additional tools and supporting information 
available on our Internet sites and at the lead field office of the 
Service that is responsible for the critical habitat designation (and 
may also include it in the preamble and/or at www.regulations.gov)''). 
Therefore, in accordance with 50 CFR 17.94(b), the more-detailed 
information we provide in the preamble of the rulemaking document will 
also be available from the lead Service office responsible for the 
designation. Any additional tools or supporting information--
explanatory text, information, or maps--that we may provide would, in 
accordance with 50 CFR 424.18(a), be available through our Internet 
sites and at the lead field office responsible for the designation, and 
depending on the size and format of that supporting information, it may 
also be included in the preamble to the rulemaking document and/or at 
www.regulations.gov. Also under 50 CFR 424.18(a), the coordinates and/
or plot points on which the map is based would be available at the 
Internet site and lead field office of the Service promulgating the 
designation and at www.regulations.gov.

Regulation Changes

50 CFR 17.94(b)

    The existing regulation states that the map provided by the 
Director does not, unless otherwise indicated, constitute the 
definition of the boundaries of a critical habitat. In order to provide 
more clarity regarding the areas being designated, as well as be more 
efficient and cost-effective, we are changing the wording of the first 
sentence to state, ``For the critical habitat designations published 
and effective after May 31, 2012, the map provided by the Secretary of 
the Interior, as clarified or refined by any textual language within 
the rule, constitutes the definition of the boundaries of a critical 
habitat.'' We are replacing ``the Director'' with ``the Secretary of 
the Interior'' since the authority to designate critical habitat under 
the Act lies with the Secretary due to the Secretarial discretion under 
section 4(b)(2) of the Act to exclude specific areas from final 
critical habitat. We are limiting application of the new language to 
critical habitat designations published after the effective date of the 
final rule. For existing critical habitat designations, we also intend 
to remove the textual descriptions of final critical habitat boundaries 
set forth in the CFR in order to save the annual reprinting cost, but 
we must do so in separate rulemakings to ensure that removing the 
textual descriptions does not change the existing boundaries of those 
designations.
    The second sentence of the existing regulation states, ``Such maps 
are provided for reference purposes to guide Federal agencies and other 
interested parties in locating the general boundaries of the Critical 
Habitat.'' We are revising this sentence to read ``Each Critical 
Habitat area will be shown on a map, with more-detailed information 
discussed in the preamble of the rulemaking documents published in the 
Federal Register and made available from the lead field office of the 
Service responsible for such designation.'' We believe this will 
provide greater clarity regarding the areas being designated, as well 
as be a more efficient and cost-effective way to provide information to 
the public concerning areas designated as critical habitat. We 
acknowledge that what is printed in the Federal Register and 
subsequently in the CFR will be the legally binding delineation of 
critical habitat. In addition, the Services will include more-detailed 
information in the preamble of the rulemaking document and will make 
the coordinates and/or plot points on which the official map is based 
available to the public on the Internet site of the Service 
promulgating the designation, at www.regulations.gov, and at the lead 
field office of the Service responsible for the designation. 
Furthermore, if the Service responsible for the designation concludes 
that additional tools or supporting information would be appropriate 
and would help the public understand the official boundary map, it 
will, for the convenience of the public, make those additional tools 
and supporting information available on our Internet sites and at the 
lead field office of the Service that is responsible for the critical 
habitat designation (and may also include it in the preamble and/or at 
www.regulations.gov).
    We are replacing the third existing sentence, which currently 
reads, ``Critical habitats are described by reference to surveyable 
landmarks found on standard topographic maps of the area and to the 
States and county(ies) within which all or part of the Critical Habitat 
is located.'' The new wording will be ``Each area will be referenced to 
the State(s), county(ies), or other local government units within which 
all or part of the Critical Habitat is located. General descriptions of 
the location and boundaries of each area may be provided to clarify or 
refine what is included within the boundaries depicted on the map, or 
to explain the exclusion of sites (e.g., paved roads, buildings) within 
the mapped area.'' This change will relieve us of the regulatory and 
financial burden of publishing the textual descriptions of the 
boundaries of critical habitat in the regulations, which have shown to 
be of limited use to the general public.

50 CFR 226.101

    This section addresses critical habitat designations made by the 
Secretary of Commerce. We are replacing the ``Maps and charts 
identifying designated critical habitat * * *'' phrase in the beginning 
of the last sentence with ``Additional information regarding designated 
critical habitat * * *.'' This new language will provide the 
flexibility needed to provide any kind of useful information to the 
public concerning areas designated as critical habitat, and not just 
maps and charts.

50 CFR 424.12(c)

    We are removing the references to defining critical habitat by 
specific limits using reference points and lines as found on standard 
topographic maps of the area. The revision will read, ``Each Critical 
Habitat area will be shown on a map, with more-detailed information 
discussed in the preamble of the rulemaking documents published in the 
Federal Register and made available from the lead field office of the 
Service responsible for such designation.'' This revision will provide 
more clarity regarding the areas being designated, as well as relieve 
the regulatory and financial burden of both Services being required to 
print these reference points in the Federal Register and reprint them 
annually in the CFR. We acknowledge that what is printed in the Federal 
Register and subsequently in the CFR will be the legally binding 
delineation of critical habitat. However, should there be ambiguity due 
to the scale of the map such that regulatory text clarifying the 
ambiguity is needed to ensure that the public would have adequate 
notice of the designation, the Services will include clarifying rule 
text. The designating Service will make the coordinates and/or plot 
points on which the map is based available to the public on the 
Internet site of the Service promulgating the designation, at 
www.regulations.gov, and at the lead field office of the Service 
responsible for the designation. In addition, if the Service 
responsible for the designation concludes that additional tools or 
supporting information would be appropriate and would help the public 
understand the official boundary map, it will, for the convenience of 
the public, make those additional tools and supporting information 
available on our Internet sites and at the lead field office

[[Page 25619]]

of the Service that is responsible for the critical habitat designation 
(and may also include it in the preamble and/or at 
www.regulations.gov). In the future, we intend to remove the textual 
descriptions of final critical habitat boundaries set forth in the CFR 
for existing critical habitat designations in separate rulemakings in 
order to save the annual reprinting cost, without changing those 
boundaries.
    We are adding the following sentence to this regulation: ``Textual 
information may be included for purposes of clarifying or refining the 
location and boundaries of each area or to explain the exclusion of 
sites (e.g., paved roads, buildings) within the mapped area.''

50 CFR 424.16(b)

    The change to this section is in the first sentence where it 
currently states, ``A notice of a proposed rule to carry out one of the 
actions described in Sec.  424.10 shall contain the complete text of 
the proposed rule.'' We are changing the wording ``shall contain the 
complete text of the proposed rule'' to ``will contain a detailed 
description of the proposed action.'' Although we will in fact publish 
the complete proposed critical habitat designation, it could be 
confusing to require that the notice of a proposed critical habitat 
designation contain ``the complete text'' of the proposed regulation,'' 
since as a result of the other changes in this notice, the boundaries 
of a critical habitat designation may be identified using only a map. 
Because the regulation will consist of the legally binding detailed 
description of the designation, which will include the map, we included 
the language ``will contain a detailed description of the proposed 
action'' to clarify that the proposed rule must include the maps, and 
may include any accompanying text, that establish the legal boundary of 
the designation. We also added that the proposed rule ``may also 
include rule text that clarifies or modifies the map'' to make clear 
that the designating Service has the option of including textual 
descriptions that clarify or modify the map.

50 CFR 424.16(c)(1)(ii)

    The change to this section is that we have removed the 
parenthetical phrase ``(including the complete text of the 
regulation).'' As stated above, although we would still give notice of 
the complete proposed critical habitat designation, it could be 
confusing to require that the notice include the ``complete text'' of 
the designation, since as a result of the other changes in this notice, 
we are interpreting the ``complete text'' of the designation to be the 
map, along with any optional rule text that may clarify the map. As 
discussed above, the Services will include more-detailed information in 
the preamble of the rulemaking document and will make the coordinates 
and/or plot points on which the map is based available to the public on 
the Internet site of the Service promulgating the designation, at 
www.regulations.gov, and at the lead field office of the Service 
responsible for the designation. In addition, if the Service 
responsible for the designation concludes that additional tools or 
supporting information would be appropriate and would help the public 
understand the official boundary map, it will, for the convenience of 
the public, make those additional tools and supporting information 
available on our Internet sites and at the lead field office of the 
Service that is responsible for the critical habitat designation (and 
may also include it in the preamble and/or at www.regulations.gov).

50 CFR 424.18(a)

    This section addresses the final rule requirements. In the second 
sentence of the existing regulation, we are replacing ``the complete 
text of the rule'' with ``a detailed description of the action being 
finalized.'' As with the sections above that deal with the requirements 
for a proposed rule, changing the wording here, along with the other 
changes proposed in this notice, will clarify that the final rule must 
contain the detailed description of the designation as reflected in the 
map and any optional additional rule text that clarifies or refines the 
map. As discussed above, the Services will include more-detailed 
information in the preamble of the rulemaking document and will make 
the coordinates and/or plot points on which the map is based available 
to the public on the Internet site of the Service promulgating the 
designation, at www.regulations.gov, and at the lead field office of 
the Service responsible for the designation. In addition, if the 
Service responsible for the designation concludes that additional tools 
or supporting information would be appropriate and would help the 
public understand the official boundary map, it will, for the 
convenience of the public, make those additional tools and supporting 
information available on our Internet sites and at the lead field 
office of the Service that is responsible for the critical habitat 
designation (and may also include it in the preamble and/or at 
www.regulations.gov). Because the regulation will consist of the 
legally binding detailed description of the designation, which will 
include the map, we included the language ``will contain a detailed 
description of the proposed action'' to clarify that the final rule 
must include the maps, and may include any accompanying text, that 
establish the legal boundary of the designation.
    In the fourth sentence of the existing regulation, we are removing 
the references to the final rule containing a description of the 
boundaries of the critical habitat being designated. We are modifying 
this section and expanding the discussion on the requirement for a map. 
The new section will read, ``For a rule designating or revising 
critical habitat, the detailed description of the action will include a 
map of the critical habitat area, and may also include rule text that 
clarifies or modifies the map. The map itself, as modified by any rule 
text, constitutes the official boundary of the designation. The Service 
responsible for the designation will include more-detailed information 
in the preamble of the rulemaking document and will make the 
coordinates and/or plot points on which the map is based available to 
the public on the Internet site of the Service promulgating the 
designation, at www.regulations.gov, and at the lead field office of 
the Service responsible for the designation. In addition, if the 
Service responsible for the designation concludes that additional tools 
or supporting information would be appropriate and would help the 
public understand the official boundary map, it will, for the 
convenience of the public, make those additional tools and supporting 
information available on our Internet sites and at the lead field 
office of the Service that is responsible for the critical habitat 
designation (and may also include it in the preamble and/or at 
www.regulations.gov).'' This change will provide more clarity regarding 
the areas being designated, and will assist the public in evaluating 
the coverage of the critical habitat designation, as well as allow us 
to reduce our printing costs in both the Federal Register and for the 
annual reproductions of the CFR.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    a. Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the

[[Page 25620]]

environment, or other units of the government.
    b. Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    c. Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    d. Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule, if adopted, would not have a significant 
economic effect on a substantial number of small entities as defined 
under the RFA. This certification is available upon request (see 
ADDRESSES section above).
    This rule will revise the implementing regulations contained within 
50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 
424.18(a), to eliminate the requirement to publish textual descriptions 
of proposed (NMFS only) and final (NMFS and FWS) critical habitat 
boundaries in the Federal Register and reprinting in the CFR, and 
instead provide that the map(s), as clarified or refined by any textual 
language within the rule, constitutes the definition of the boundaries 
of a Critical Habitat. A full description of the action, why it is 
being considered, and the legal basis for this action are contained in 
the preamble to this rule. The rule does not duplicate, overlap, or 
conflict with other Federal rules.
    This rulemaking amends the procedural requirements for NMFS and FWS 
when designating critical habitat. NMFS and FWS are the only entities 
that are directly affected by this rule, and they are not considered to 
be small entities under SBA's size standards. Therefore, no small 
entities are directly affected by this rule.
    The revisions to the implementing regulations herein are not 
expected to impose any direct costs on regulated entities. Although the 
Services will make additional information available to assist small 
entities in evaluating the coverage of the critical habitat delineated 
by the published maps, the Services already make such information 
available, and our understanding is that small entities and the public 
already routinely make use of such information. Therefore, eliminating 
the requirement to publish textual descriptions and instead publishing 
the maps in the Federal Register and making additional information 
available on the Internet site of the Service promulgating the 
designation, at www.regulations.gov, and at local field offices would 
not impose any additional burden on small entities. The elimination of 
the procedural requirement to publish textual descriptions of proposed 
(NMFS only) and final (NMFS and FWS) critical habitat boundaries in the 
Federal Register and reprinting in the CFR is an administrative action, 
and it is intended to facilitate public understanding of the critical 
habitat designation process and make it easier for the public to 
determine if specific areas are within the critical habitat 
designation. In fact, this regulation would make the process more cost-
effective for the agencies and the public as a whole, and would 
potentially save the FWS alone an estimated $391,742 annually. 
Therefore, for the reasons above, this rule will not have a significant 
economic impact on a substantial number of small entities.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Services make the following findings:
    a. This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)--(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    b. This rule will not significantly or uniquely affect small 
governments, because the revisions to the implementing regulations 
herein will facilitate public understanding of the critical habitat 
designation process, and the areas included within the critical 
habitat, and make the process more cost-effective for the agencies and 
the public as a whole by potentially saving the FWS alone an estimated 
$391,742 annually. As such, we do not believe that a Small Government 
Agency Plan is required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have evaluated the revised implementing regulations for 
designating critical habitat, and have determined that this rule does 
not pose significant takings implications. The revisions to the 
implementing regulations are intended to facilitate the public 
understanding of the rulemaking process for critical habitat. It does 
not involve individual property rights.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A

[[Page 25621]]

Federalism assessment is not required. The revisions to the regulations 
addressed in this rule are intended to facilitate the public 
understanding of the rulemaking process for critical habitat, and thus 
should not significantly affect or burden the authority of the States 
to govern themselves.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The revisions to the 
regulations addressed in this rule are intended to facilitate the 
public understanding of the rulemaking process for critical habitat, 
and thus should not significantly affect or burden the judicial system.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    We analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(c)), 
43 CFR part 46, and 516 Departmental Manual (DM) 2 and 8.
    A categorical exclusion from NEPA documentation applies to 
policies, directives, regulations, and guidelines that are ``of an 
administrative, financial, legal, technical, or procedural nature'' (43 
CFR 46.210(i)). However, even if an individual Federal action falls 
within a categorical exclusion, the Service must still prepare 
environmental documents pursuant to NEPA if one of the 12 exceptions 
listed in 43 CFR 46.215 applies.
    We have reviewed each of the 12 exceptions and have found that 
because this rule is administrative in nature (i.e., we are making 
optional the inclusion of any textual description of the boundaries of 
the designation in the Federal Register), none of the exceptions apply. 
Therefore, this action meets the requirements for a categorical 
exclusion from the NEPA process

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior Manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Native 
American Tribes on a government-to-government basis. We have evaluated 
the potential effects on federally recognized Tribes from these 
revisions to our implementing regulations for critical habitat. We have 
determined that there are no potential effects to federally recognized 
Tribes, since the revisions to the implementing regulations are 
intended to facilitate the public understanding of critical habitat 
designations and save taxpayer monies. We will, however, continue to 
coordinate with Tribes as we promulgate critical habitat designations.

Energy Supply, Distribution, or Use

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. ``Significant energy action'' means any action by an 
agency (normally published in the Federal Register) that promulgates or 
is expected to lead to the promulgation of a final rule or regulation, 
including notices of inquiry, advance notices of proposed rulemaking, 
and notices of proposed rulemaking that is a significant regulatory 
action under Executive Order 12866 or any successor order, and is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or that is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action. This rule to revise the implementing 
regulations for designating critical habitat does not qualify as a 
significant regulatory action under Executive Order 12866 and will not 
have a significant adverse effect on the supply, distribution, or use 
of energy, and has not been designated by the Adminstrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, this action is not a significant energy action and 
no Statement of Energy Effects is required.

Author(s)

    The primary authors of this package are staff members from the U.S. 
Fish and Wildlife Service and the National Marine Fisheries Service.

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Parts 17, 226, and 424

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we are amending parts 17, 226, and 424, title 50 of 
the Code of Federal Regulations, as set forth below:

CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE 
INTERIOR

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. In Sec.  17.94, revise paragraph (b) to read as follows:


Sec.  17.94  Critical habitats.

* * * * *
    (b)(1) For the critical habitat designations published and 
effective after May 31, 2012, the map provided by the Secretary of the 
Interior, as clarified or refined by any textual language within the 
rule, constitutes the definition of the boundaries of a critical 
habitat. Each critical habitat area will be shown on a map, with more-
detailed information discussed in the preamble of the rulemaking 
documents published in the Federal Register and made available from the 
lead field office of the Service responsible for such designation. Each 
area will be referenced to the State(s), county(ies), or other local 
government units within which all or part of the critical habitat is 
located. General descriptions of the location and boundaries of each 
area may be provided to clarify or refine what is included within the 
boundaries depicted on the map, or to explain the exclusion of sites 
(e.g., paved roads, buildings) within the mapped area. Unless otherwise 
indicated within the critical habitat descriptions, the names of the 
State(s) and county(ies) are provided for informational purposes only 
and do not constitute the boundaries of the area.
    (2) For critical habitat designations published and effective on or 
prior to

[[Page 25622]]

May 31, 2012, the map provided by the Secretary of the Interior is for 
reference purposes to guide Federal Agencies and other interested 
parties in locating the general boundaries of the critical habitat. The 
map does not, unless otherwise indicated, constitute the definition of 
the boundaries of a critical habitat. Critical habitats are described 
by reference to surveyable landmarks found on standard topographic maps 
of the area and to the States and county(ies) within which all or part 
of the critical habitat is located. Unless otherwise indicated within 
the critical habitat description, the State and county(ies) names are 
provided for informational purposes only.
* * * * *

CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND 
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

PART 226--[AMENDED]

0
3. The authority citation for part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.

0
4. Revise Sec.  226.101 to read as follows:


Sec.  226.101  Purpose and scope.

    The regulations contained in this part identify those habitats 
designated by the Secretary of Commerce as critical, under section 4 of 
the Act, for endangered and threatened species under the jurisdiction 
of the Secretary of Commerce. Those species are enumerated at Sec.  
223.102 of this chapter if threatened and at Sec.  224.101 of this 
chapter if endangered. For regulations pertaining to the designation of 
critical habitat, see part 424 of this title; for regulations 
pertaining to prohibitions against the adverse modification or 
destruction of critical habitat, see part 402 of this title. Additional 
information regarding designated critical habitats that is not provided 
in this section may be obtained upon request to the Office of Protected 
Resources (see Sec.  222.102, definition of ``Office of Protected 
Resources'').

CHAPTER IV--JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE, 
DEPARTMENT OF THE INTERIOR AND NATIONAL MARINE FISHERIES SERVICE, 
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF 
COMMERCE); ENDANGERED SPECIES COMMITTEE REGULATIONS

PART 424--[AMENDED]

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

    Authority:  Pub. L. 93-205, 87 Stat. 884; Pub. L. 95-632, 92 
Stat. 3751; Pub. L. 96-159, 93 Stat. 1225; Pub. L. 97-304, 96 Stat. 
1411 (16 U.S.C. 1531 et seq.); unless otherwise noted.


0
6. In Sec.  424.12, revise paragraph (c) to read as follows:


Sec.  424.12  Criteria for designating critical habitat.

* * * * *
    (c) Each critical habitat area will be shown on a map, with more-
detailed information discussed in the preamble of the rulemaking 
documents published in the Federal Register and made available from the 
lead field office of the Service responsible for such designation. 
Textual information may be included for purposes of clarifying or 
refining the location and boundaries of each area or to explain the 
exclusion of sites (e.g., paved roads, buildings) within the mapped 
area. Each area will be referenced to the State(s), county(ies), or 
other local government units within which all or part of the critical 
habitat is located. Unless otherwise indicated within the critical 
habitat descriptions, the names of the State(s) and county(ies) are 
provided for informational purposes only and do not constitute the 
boundaries of the area. Ephemeral reference points (e.g., trees, sand 
bars) shall not be used in any textual description used to clarify or 
refine the boundaries of critical habitat.
* * * * *

0
7. In Sec.  424.16, revise paragraphs (b) and (c)(1)(ii) to read as 
follows:


Sec.  424.16  Proposed rules.

* * * * *
    (b) Contents. A notice of a proposed rule to carry out one of the 
actions described in Sec.  424.10 will contain a detailed description 
of the proposed action and a summary of the data on which the proposal 
is based (including, as appropriate, citation of pertinent information 
sources) and will show the relationship of such data to the rule 
proposed. If such a rule proposes to designate or revise critical 
habitat, such summary will, to the maximum extent practicable, include 
a brief description and evaluation of those activities (whether public 
or private) that, in the opinion of the Secretary, if undertaken, may 
adversely modify such habitat or may be affected by such designation. 
For any proposed rule to designate or revise critical habitat, the 
detailed description of the action will include a map of the critical 
habitat area, and may also include rule text that clarifies or modifies 
the map. Any such notice proposing the listing, delisting, or 
reclassification of a species or the designation or revision of 
critical habitat will also include a summary of factors affecting the 
species and/or its designated critical habitat.
    (c) * * *
    (1) * * *
    (ii) Give actual notice of the proposed regulation to the State 
agency in each State in which the species is believed to occur and to 
each county or equivalent jurisdiction therein in which the species is 
believed to occur, and invite the comment of each such agency and 
jurisdiction;
* * * * *

0
8. In Sec.  424.18, revise paragraph (a) to read as follows:


Sec.  424.18  Final rules--general.

    (a) Contents. A final rule promulgated to carry out the purposes of 
the Act will be published in the Federal Register. This publication 
will contain a detailed description of the action being finalized, a 
summary of the comments and recommendations received in response to the 
proposal (including applicable public hearings), summaries of the data 
on which the rule is based and the relationship of such data to the 
final rule, and a description of any conservation measures available 
under the rule. Publication of a final rule to list, delist, or 
reclassify a species or designate or revise critical habitat will also 
provide a summary of factors affecting the species.
    (1) For a rule designating or revising critical habitat, the 
detailed description of the action will include a map of the critical 
habitat area, and may also include rule text that clarifies or modifies 
the map. The map itself, as modified by any rule text, constitutes the 
official boundary of the designation.
    (i) The Service responsible for the designation will include more-
detailed information in the preamble of the rulemaking document and 
will make the coordinates and/or plot points on which the map is based 
available to the public on the Internet site of the Service 
promulgating the designation, at www.regulations.gov, and at the lead 
field office of the Service responsible for the designation.
    (ii) In addition, if the Service responsible for the designation 
concludes that additional tools or supporting information would be 
appropriate and would help the public understand the official boundary 
map, it will, for the convenience of the public, make those additional 
tools and supporting information available on our Internet sites and at 
the lead field office of the Service that is responsible for the 
critical habitat designation (and may

[[Page 25623]]

also include it in the preamble and/or at www.regulations.gov).
    (2) The rule will, to the maximum extent practicable, include a 
brief description and evaluation of those activities (whether public or 
private) that might occur in the area and which, in the opinion of the 
Secretary, may adversely modify such habitat or be affected by such 
designation.
* * * * *

    Dated: April 18, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks, U.S. 
Department of the Interior.
    Dated: April 4, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-10178 Filed 4-30-12; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P