[Federal Register Volume 79, Number 126 (Tuesday, July 1, 2014)]
[Rules and Regulations]
[Pages 37577-37612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15216]



[[Page 37577]]

Vol. 79

Tuesday,

No. 126

July 1, 2014

Part VIII





Department of the Interior





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Fish and Wildlife Service





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50 CFR Chapter I





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Chapter II





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

Federal Register / Vol. 79 , No. 126 / Tuesday, July 1, 2014 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Chapter I

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Chapter II

[Docket No. FWS-R9-ES-2011-0031; FXES11130900000C6-145-FF09E42000; DOC 
Docket No. 110131072-4385-02]
RIN 1018-AX49; 0648-BA78


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

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

ACTION: Notice of final policy.

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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 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 final policy is to provide an 
interpretation and application of ``significant portion of its range'' 
that reflects a permissible reading of the law and minimizes 
undesirable policy outcomes, while fulfilling the conservation purposes 
of the Act. This final policy provides a consistent standard for 
interpretation of the phrase and its role in listing determinations.

DATES: This policy is effective on July 31, 2014.

ADDRESSES: This final policy is available on the Internet at http://www.regulations.gov at Docket Number FWS-R9-ES-2011-0031. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this policy, are also available at the same location on 
the Internet.

FOR FURTHER INFORMATION CONTACT: Gina Shultz, U.S. Fish and Wildlife 
Service, Ecological Services 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 301-427-8469; 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: 

Table of Contents

I. Introduction
II. Changes from the Draft Policy
III. Policy Explanation
    A. Purpose
    B. The First Component: Consequences of a Species Being in 
Danger of Extinction or Likely to Become So Throughout a Significant 
Portion of Its Range (SPR)
    C. Second Component: The Definition of ``Significant'' as it 
Relates to SPR
    1. Circumstances under which a portion can be ``significant''
    2. Biological basis for ``significant''
    3. The threshold for ``significant''
    D. Range and Historical Range
    E. Relationship of SPR to the Act's Distinct Population Segment 
(DPS) Authority
    F. Procedure for Implementing the Policy
IV. Summary of Comments and Responses
    A. The Policy is Not Needed, Needs Additional Process, or 
Legislation is Required
    B. The SPR Language Provides an Independent Basis for Listing
    C. Apply Protections to Entire Species if Listed Because it is 
Endangered or Threatened Throughout an SPR
    D. The Biological Basis for ``Significant''
    E. The Threshold for ``Significant''
    F. Quantitative Approaches or Rebuttable Presumptions to 
Determine Whether a Portion is ``Significant''
    G. Range and Historical Range
    H. Relationship with DPS Authority
    I. Whether a Species Can Be Both Threatened Throughout All of 
Its Range and Endangered Throughout an SPR
    J. Use of Best Available Science, Appropriate Analyses, Correct 
Conclusions
    K. Implementation in Listing Determinations
    L. Effects on Implementation of Other Portions of the Act
    M. Procedural Requirements and Compliance with Laws
V. Policy
VI. Effects of Policy
    A. Designation of Critical Habitat
    B. Rules Promulgated Under Section 4(d) of the Act
    C. Recovery Planning and Implementation
    D. Sections 7, 9, and 10 of the Act
VII. Required Determinations
    A. Regulatory Planning and Review (E.O.s 12866 and 13563)
    B. Regulatory Flexibility Act
    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)

I. Introduction

    On December 9, 2011, the Services published a notice of a draft 
policy in the Federal Register (76 FR 76987) regarding the 
interpretation and application of the phrase ``significant portion of 
its range'' (SPR) as it occurs in the Act's definitions of ``endangered 
species'' and ``threatened species.'' The Act defines the term 
``endangered species'' to mean any species which is in danger of 
extinction throughout all or a significant portion of its range and the 
term ``threatened species'' to mean any species which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. In the December 9, 2011, 
Federal Register notice, we provided the background for our draft 
policy in terms of the statute, legislative history, and case law. We 
also explained different aspects of the draft policy and discussed 
various alternatives for interpreting the phrase ``significant portion 
of its range,'' including defining ``significant.'' Finally, we 
discussed the effects the draft policy would have with respect to 
implementation of other sections of the Act.
    We intend this final policy to be legally binding. It sets forth 
the Services' interpretation of ``significant portion of its range'' 
and its place in the statutory framework of the Act. In this final 
policy, we focus our discussion on changes to the draft policy based on 
comments we received during the comment period. For background on the 
statutory, legislative history, and case law relevant to this policy, 
as well as alternatives we considered for interpreting the phrase 
``significant portion of its range'' and defining ``significant,'' we 
refer the reader to our draft policy and the environmental assessment 
of the policy, which is available at http://www.regulations.gov under 
Docket No. FWS-R9-ES-2011-0031.

II. Changes From the Draft Policy

    This final policy differs from our draft policy in one substantive 
respect and three editorial respects. Here we summarize those changes. 
They are explained in greater detail in section III. First, we modified 
the definition of ``significant.'' The definition in the draft policy 
was: ``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

[[Page 37579]]

danger of extinction.'' The definition in this final policy reads:

    A portion of the range of a species is `significant' if the 
species is not currently endangered or threatened throughout all of 
its range, but the portion's contribution to the viability of the 
species is so important that, without the members in that portion, 
the species would be in danger of extinction, or likely to become so 
in the foreseeable future, throughout all of its range.

    We explain in detail why we revised the definition of 
``significant'' in section III.C. In brief, the revised definition 
will:
    1. Remove problems associated with allowing a species to qualify as 
both threatened throughout its range and endangered throughout an SPR. 
The change to the first part of the definition ensures that only one 
legal status is assigned to the species: If a species is endangered or 
threatened throughout its range, no portions of its range can qualify 
as ``significant.'' We made this change in response to numerous 
comments, which raised two issues. First, commenters were concerned 
that a species simultaneously meeting the definitions of an 
``endangered species'' and a ``threatened species'' would be extremely 
confusing. Second, some commenters thought that it was inappropriate to 
protect the entire range of a species as endangered if the species, 
viewed rangewide, met the definition of a ``threatened species.'' This 
change eliminates these concerns.
    2. Lower and simplify the threshold for ``significant.'' Because we 
have changed ``the species would be in danger of extinction'' to ``the 
species would be in danger of extinction, or likely to become so in the 
foreseeable future,'' a portion of the range of a species would be 
significant if the species would, without that portion, be either 
endangered or threatened. Many commenters requested this change, and we 
concluded that the change is appropriate in combination with the other 
change we made to the definition of ``significant.'' A lower threshold 
will further the conservation purposes of the statute and more clearly 
avoid the appearance of similarity to the ``clarification'' approach. 
(The clarification approach was rejected by the Ninth Circuit, as 
discussed in the draft policy [76 FR 76987, p. 76991, section II.A].) 
Using this standard, we may list a few more species with important 
populations that are facing substantial threats. Nonetheless, this 
relaxed threshold is still relatively high. As discussed in the draft 
policy (76 FR 76987, p. 76995), this is desirable because we have 
concluded that, if a species is endangered or threatened in a 
significant portion of its range, it is protected throughout all of its 
range. Thus, we conclude that listings dependent on an SPR 
determination still will be infrequent.
    Second, we made a nonsubstantive change to the first section of the 
policy, regarding the consequences of a species being endangered or 
threatened throughout an SPR. The second paragraph of the draft policy 
stated (emphasis added):

    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.

    In the final policy, we replaced ``across the species' entire 
range'' with ``to all individuals of the species wherever found.'' This 
does not reflect a change in the intended meaning of the language but 
instead simply clarifies how protections will apply. As we explain in 
section III.D., the protections apply to the species itself, not the 
``range'' in which it is found. Further, this change aligns our 
interpretation with our regulations at 50 CFR 17.11(e) and 17.12(e) 
that state that once a species is determined to be an endangered 
species or threatened species, the protections of the Act apply ``to 
all individuals of the species, wherever found.''
    Third, we made a nonsubstantive change to the last section of the 
policy, reconciling the SPR and Distinct Population Segment (DPS) 
authorities. In the draft policy, this paragraph read (emphasis added):

    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.

    In the final policy, we have deleted the language in italics as 
redundant. It is no longer necessary to specify this as a prerequisite 
for when this provision will operate, in light of the revised 
definition of ``significant.'' Under the final policy, it will be a 
prerequisite to any SPR analysis that the Services first find that the 
species is neither endangered nor threatened throughout all of its 
range. Thus, the edit to this paragraph does not represent a change in 
meaning, but merely harmonizes the language in this paragraph with the 
previously described edit.
    Fourth, we substituted ``throughout'' for ``in'' or ``within'' in 
several places to track the statutory language (``throughout . . . a 
significant portion of its range'') more closely.

III. Policy Explanation

A. Purpose

    The purpose of this policy is to develop a joint interpretation of 
``significant portion of its range'' to reduce inconsistencies in 
applying the phrase and to improve effective and efficient 
implementation of the Act. The Services need to ensure that the policy 
is consistent with the plain language and mandates of the Act, is 
consistent with case law, provides clarity as to both the meaning and 
consequences of the SPR phrase so that the Services will be accorded 
deference when they apply the interpretation in making status 
determinations, and furthers the conservation purposes of the Act.
    The relevant statutory provisions together create a variety of 
tensions and ambiguities, so there is no single best interpretation. 
Here, we adopt a reasonable interpretation of these statutory 
provisions. We conclude that (1) if a species is found to be endangered 
or threatened throughout a significant portion of its range, the entire 
species is listed as endangered or threatened, respectively, and the 
Act's protections apply to all individuals of the species wherever 
found; (2) a portion of the range of a species is ``significant'' if 
the species is not currently endangered or threatened throughout all of 
its range, but the portion's contribution to the viability of the 
species is so important that, without the members in that portion, the 
species would be in danger of extinction, or likely to become so in the 
foreseeable future, throughout all of its range; (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 a vertebrate species is endangered or 
threatened throughout an SPR, 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 in the draft policy (76 FR 76987, pp. 76988-76990) and 
in more detail in the Department of the Interior (DOI) (2010) and FWS 
and NMFS SPR Working Group (2010), the role of the SPR language in the 
context of the entire statutory scheme is not clear from the text 
itself or the legislative history. However, the Ninth Circuit's ruling 
in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) 
(Defenders (Lizard)), indicates that, with respect to the statutory 
language ``throughout all or a significant portion of its range,'' we 
should give the words on either side of the ``or'' operational

[[Page 37580]]

meaning (see Defenders (Lizard) 258 F.3d at 1141-42). We agree, and we 
have therefore developed a policy that gives operational effect to the 
SPR language instead of treating it as merely a clarification of the 
``throughout all'' language. Thus, under our policy, a species will 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 throughout a significant 
portion of its range. The same is true for ``threatened species.''
    This policy addresses two separate, but interrelated, components to 
giving the phrase ``a significant portion of its range'' operational 
meaning. First, we establish the consequence of a species being 
endangered or threatened throughout 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 components in turn.
    We note that throughout this policy when discussing SPR and 
``portion of the range'' and similar phrases, we are referring to the 
members of 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 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 ``members of 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 Throughout a Significant Portion of 
Its Range (SPR)

    Given that we have determined 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) throughout 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: individuals of a species that are 
endangered or threatened throughout an SPR are protected wherever 
found, or individuals of a species that are endangered or threatened 
throughout an SPR are protected only in that SPR. The legal opinion 
issued by the Solicitor of the DOI in 2007 (referred to as the ``M-
Opinion'') (DOI 2007) took the latter view (for additional discussion 
of the M-Opinion, see our draft policy (76 FR 76987, p. 76990)). We 
conclude that the former view is the best interpretation of the Act. As 
we explained in the draft policy (76 FR 76987, pp. 76991-76993), the 
statutory text and the most relevant case law strongly support our 
conclusion, while the purposes of the Act, the legislative history, and 
past agency practice are of little help in answering this question. (We 
acknowledge that one of the district court opinions we discussed was 
vacated after we published the draft policy: Defenders of Wildlife v. 
Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010), vacated, 2012 U.S. App. 
Lexis 26769 (9th Cir. Nov. 7, 2012). That opinion was vacated, however, 
not on the merits, but solely because the pending appeal of the opinion 
became moot due to intervening congressional action. Thus, to the 
extent that this policy is informed by the reasoning of the district 
court opinion, it is because we have concluded that that reasoning is 
valid notwithstanding the opinion's vacatur for technical reasons.)
    In addition, we note that our revised definition of ``significant'' 
bolsters our conclusion in the draft policy that our interpretation 
does not render irrelevant the ``all'' language in the definitions of 
``endangered species'' and ``threatened species'' (76 FR 76987, p. 
76992). As discussed in our draft policy, the ``all'' language retains 
independent meaning via the practical way in which the Services 
actually determine the status of a species. Our revised definition of 
``significant'' further reinforces the ``all'' language by essentially 
stipulating that a portion can be significant only if we first find 
that the species is not currently endangered or threatened throughout 
all of its range. Thus, the ``all'' language will retain independent 
meaning and play an important role in status determinations.

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. As we 
explained in our draft policy, we have broad discretion to interpret 
``significant,'' particularly in the context of creating a policy 
related to SPR after notice and comment, as we have done here (see 76 
FR 76987, p. 76993). In this final policy, we determine that a portion 
of the range of a species is ``significant'' if the species is not 
currently endangered or threatened throughout all of its range, but the 
portion's contribution to the viability of the species is so important 
that, without the members in that portion, the species would be in 
danger of extinction, or likely to become so in the foreseeable future, 
throughout all of its range. Our definition of ``significant'' 
addresses three questions: (1) Under what circumstances can a portion 
be significant? (2) what information is relevant to determining whether 
a portion is significant? and (3) what is the threshold or level of 
importance required for a portion to be significant?
1. Circumstances Under Which a Portion Can Be ``Significant''
    As discussed in our draft policy (76 FR 76987, p. 76992), we have 
concluded that we must give both the ``all'' language and the SPR 
phrase operational effect. In other words, there must be some 
circumstances in which each provision results in listing species. The 
Act, however, does not specify the relationship between the two 
provisions. Based in part on public comments on our draft policy, we 
now conclude that a portion of the range of a species can be 
``significant'' only if the species is not currently endangered or 
threatened throughout all of its range.
    We reach this conclusion for both textual and practical reasons. 
With regard to the text of the Act, we note that Congress placed the 
``all'' language before the SPR phrase in the definitions of 
``endangered species'' and ``threatened species.'' This suggests that 
Congress intended that an analysis based on consideration of the entire 
range should receive primary focus, and thus that the agencies should 
do an SPR analysis as an alternative to a rangewide analysis only if 
necessary. Under this reading, the Services should first consider 
whether listing is appropriate based on a rangewide analysis and 
proceed to conduct an SPR analysis if (and only if) a species does not 
qualify for listing according to the ``all'' language.
    A practical consideration, as made clear by numerous commenters, is 
that interpreting the definitions of an

[[Page 37581]]

``endangered species'' and a ``threatened species'' in a way that a 
species could meet both definitions simultaneously (i.e., threatened 
throughout all of its range and endangered throughout a significant 
portion of its range) would be extremely confusing to the public. 
Limiting significance to circumstances in which the species is not 
currently endangered or threatened throughout all of its range 
eliminates that concern. A related benefit of limiting the 
applicability of the SPR language is to reduce the circumstances in 
which additional legal determinations are necessary. This will allow us 
to more efficiently use our limited resources to undertake additional 
actions required in administering the Act to further its conservation 
purposes.
    As noted below (section VI. Effects of Policy) and in the draft 
policy (76 FR 77003), we conclude that finding that a species is an 
endangered species or a threatened species based on its status in an 
SPR will occur only under a limited set of circumstances and will be 
relatively uncommon. Under the draft policy, finding that a species is 
threatened throughout its range and also endangered in a significant 
portion of its range is only one of the possible circumstances (of that 
already limited set) that would have led to finding that a species is 
endangered or threatened in an SPR, and thus would have been relatively 
uncommon even within that set of limited circumstances. Moreover, in no 
circumstance should the interpretation in this final policy lead to a 
reduction in protections that the Secretaries deem to be necessary and 
advisable, as the Secretaries have the authority under section 4(d) to 
apply the full protections of the Act to threatened species.
2. Biological Basis for ``significant''
    As we explained in our draft policy (76 FR 76987, p. 76994), 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 
policy's definition emphasizes the biological importance of the portion 
of the range to the conservation of the species as the measure for 
determining whether the portion is ``significant.'' For that reason, it 
describes the threshold for ``significant'' in terms of an increase in 
the risk of extinction for the species. We evaluate biological 
significance based on the principles of conservation biology using the 
concepts of redundancy, resiliency, and representation (the three Rs) 
(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.
3. The Threshold for ``significant''
    As discussed in our draft policy (76 FR 76987, p. 76995) and below, 
we conclude that the threshold for ``significant'' should be high 
enough to avoid dilution of conservation efforts and unnecessary 
restrictions that may result from listing a species based on its status 
throughout an SPR, but not so high as to make it indistinguishable from 
the ``clarification interpretation'' in the M-Opinion (the 
clarification approach was rejected by the Ninth Circuit, as discussed 
in the draft policy). After considering comments received on the draft 
policy, we have lowered the threshold for ``significant'' somewhat by 
incorporating the concept of being likely to become in danger of 
extinction in the foreseeable future (the threatened standard) along 
with the standard for endangered in the definition of ``significant.'' 
Use of the somewhat lowered threshold furthers the conservation 
purposes of the statute and more clearly avoids the appearance of 
similarity to the ``clarification'' approach while striking a balance 
between too high and too low a threshold. At the same time, use of the 
endangered and threatened standards in the definition of 
``significant'' minimizes the introduction of complicating new concepts 
into the status-determination process.
    Use of Endangered and Threatened Standards: We used the endangered 
and threatened standards from the Act to define the threshold for 
``significant'' because they are well-understood concepts that are 
directly linked to the conservation status of the species, and are 
within the expertise of the Services. Lowering the threshold further, 
beyond the endangered and threatened standards, would require that we 
define new standards that would complicate the understanding, and 
analysis, of how or whether a species meets the definitions of the Act. 
We also considered using another well-known standard--the definition of 
significance in the DPS policy--as a threshold for ``significant'' in 
this policy. We rejected this option, however, because it would result 
in all DPSs being SPRs, rendering the DPS language in the Act 
meaningless. We concluded that the threshold for significance must be 
higher than that in the DPS policy in order to avoid this outcome.
    Lower Threshold Furthers the Conservation Purposes of the Act: The 
threshold for ``significant'' in our draft policy furthered the 
conservation purposes of the Act by adding an independent basis for 
listing. In other words, under the draft policy we would consider not 
only whether a species is endangered or threatened throughout its 
range, but also whether it is endangered or threatened throughout an 
SPR. This final policy retains the additional, independent basis for 
listing and, by lowering the threshold for ``significant'' to 
incorporate the threatened standard, may slightly increase (compared to 
the draft policy) the number of species we consider for listing. In 
other words, the lower threshold for ``significant'' in this final 
policy will further the conservation purposes of the statute beyond 
that already embodied in the draft policy because it will enable us to 
provide protection under the Act to species with important populations 
facing significant threats that we might not have otherwise listed.
    Lower Threshold is More Clearly Distinguishable from the 
``Clarification Interpretation'': Although this final policy's 
definition establishes a threshold for ``significant'' that is 
relatively high, lowering it somewhat from what we described in the 
draft policy will make it clearer that we are giving the phrase ``a 
significant portion of its range'' independent meaning. Specifically, 
we have not set the threshold as high as it was under the 
interpretation presented by FWS in the Defenders (Lizard) litigation 
(termed the ``clarification interpretation'' in the M-Opinion). As 
discussed in the draft policy (76 FR 76987, p. 76989), 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 final policy, the portion of 
the range need not rise to such an exceptionally high level of 
biological significance. (Note that if the species is imperiled in a 
portion that rises to the high level of biological significance 
required under the clarification interpretation, then we should 
conclude that the species is in fact imperiled throughout all of its 
range--and we need not conduct an SPR analysis.) Rather, under this 
final policy we ask whether the species would be in danger of 
extinction or likely to become so in the foreseeable future without 
that portion, i.e., if the members of that portion were not just 
currently imperiled, but already completely extirpated.
    Unlike the clarification interpretation at issue in Defenders 
(Lizard), this final policy does not, by definition, limit the SPR 
phrase to situations in which it is

[[Page 37582]]

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 throughout 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 ``significant'' 
inherently made the statutory SPR phrase unnecessary and redundant. In 
contrast, the definition in this policy does not render the statutory 
phrase redundant. In fact, this policy's definition of ``significant'' 
itself makes it clear that a portion can only be significant if the 
species is not currently endangered or threatened throughout all of its 
range. Moreover, a portion of a species' range is significant when the 
species would be in danger of extinction or likely to become so in the 
foreseeable future 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 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 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 of its range rather than its status throughout a significant 
portion of its range. We would not go further to consider the status in 
any potentially 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 event. The severity 
of the threats posed by the stochastic event would therefore be smaller 
because there could be exchange between the populations following the 
stochastic event--and this exchange could 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. But, as long as Portion X 
contained an extant population, the resiliency and redundancy of the 
two portions combined would be sufficient that the species would not be 
in danger of extinction, or likely to become so in the foreseeable 
future, throughout all of its range, even in the face of severe threats 
to Portion X. Under these facts, Portion X would not be an SPR 
according to the clarification interpretation. Under this final policy, 
we first determine whether the species is endangered or threatened 
throughout all of its range and, if so, list the species accordingly. 
If the species is not endangered or threatened throughout all of its 
range, then we look further to determine whether it is endangered or 
threatened throughout a significant portion of its range. Under these 
facts, and in contrast to the clarification interpretation, Portion X 
would be an SPR under this policy because the species would not 
currently be endangered or threatened throughout all of its range, but 
the hypothetical loss of Portion X would cause the species to become 
endangered. Therefore, we would need to consider whether the species 
was endangered or threatened in Portion X, and, if so, we would list 
the species.
    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. Thus, an interpretation 
must not render irrelevant any 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 throughout a significant 
portion of its range; or threatened throughout a significant portion of 
its range). This policy's threshold for determining biological 
significance will give meaning to all four discrete bases for listing. 
Under our interpretation, there is at least one set of facts that falls 
uniquely within each of the four bases (without simultaneously fitting 
the standard of another basis).
    Lower Threshold Is Still High Enough to Be Compatible with Listing 
the Species Throughout its Range: Given that the consequence of finding 
a species to be endangered or threatened throughout an SPR is listing 
the species throughout its entire range, it is important not to use a 
threshold for ``significant'' that is too low (e.g., the threshold 
described by the definition of significance in the DPS policy, or that 
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 only minor 
conservation importance to the species is imperiled. In such a 
situation, a proportion of limited conservation resources would be 
diverted away from the conservation of species most vulnerable to 
extinction and used for species that might arguably better fit a lesser 
standard if viewed solely across their ranges. The threshold defined in 
this policy strikes a balance between being high enough to avoid these 
negative consequences, and low enough to give the SPR phrase 
independent meaning.
    Application of the Threshold: Under this policy, after having 
determined that the species is neither endangered nor threatened 
throughout all of its range, we will determine if a portion of a 
species' range is significant. To do so, we will ask whether, without 
that portion, the three Rs 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'') or likely to become so in the foreseeable 
future (i.e., would be ``threatened''). If so, then the portion in 
question is significant, and we will undertake an analysis of the 
threats to the species in that portion to determine if the species is 
endangered or threatened there. That analysis evaluates current and 
anticipated threats facing the species in that portion

[[Page 37583]]

now and into the foreseeable future, the impacts these threats are 
expected to have, and the species' anticipated responses to those 
impacts. If, on the other hand, 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.
    There are a number of circumstances in which we might determine 
that a portion of the range of a species 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 higher risk of extinction 
(e.g., Waples et al. 2007), such that those remaining populations might 
then warrant listing. Finally, if the population in the SPR contains 
important elements of genetic diversity, without that population 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).

D. Range and Historical Range

    When considering an interpretation of the SPR phrase, we must also 
consider the meaning of the term ``range.'' The term is not defined in 
the Act. Indeed, it is used only six times, two of which are in the SPR 
phrases of the definitions of ``endangered species'' and ``threatened 
species.'' None of these uses sheds much light on precisely what 
Congress meant by the term ``range.'' The context in which Congress 
used the term is, however, instructive. In the Act, ``range'' is used 
as a conceptual and analytical tool related to (1) identifying 
endangered and threatened species under section 4, and (2) identifying 
areas appropriate for the establishment of experimental populations. In 
contrast, the concept of ``range'' plays no direct role in 
implementation of the key operative provisions of the Act that protect 
species that we determine are endangered or threatened. (We note that 
it would be possible to interpret the use of ``range'' in section 
4(c)(1) of the Act in isolation to control the scope of the operative 
protections under the Act. However, as discussed in our draft policy 
(76 FR 76987, pp. 76991-76992, section II.B.), the interpretation of 
section 4(c)(1) that best harmonizes the various parts of the Act and 
relevant case law is to treat section 4(c)(1) as an informational 
rather than a substantive provision.)
    Once we determine that a species is an ``endangered species'' or 
``threatened species,'' the protections of the Act are applied to the 
species itself, not the ``range'' in which it is found.\1\ For example, 
sections 7 and 9 of the Act contain no reference to ``range'' and their 
provisions are applied to the species or individuals of the species, 
rather than a specified ``range.'' In other words, as explicitly 
acknowledged in the regulations governing the Lists of Endangered and 
Threatened Wildlife and Plants, the protections of the Act are applied 
``to all individuals of the species, wherever found'' (50 CFR 17.11(e), 
17.12(e)). As long as a species is listed, these protections apply to 
all populations and individuals of the species regardless of how that 
species' range changes over time (whether the range contracts due to 
continuing threats or expands as a result of recovery efforts). The 
protections can be modified only through rules promulgated under 
sections 4(d) and 10(j) of the Act, or completely removed through 
delisting and removal of the species from the List of Endangered and 
Threatened Wildlife or the List of Endangered and Threatened Plants.
---------------------------------------------------------------------------

    \1\ We note that for species listed as DPSs, because individuals 
in a distinct population segment are most often not morphologically 
or visually distinct from other members of their taxonomic species 
or subspecies, the population (``species'' as defined by the Act) is 
often defined geographically. This geographic description (except in 
the case of international boundaries) is intended to define the 
``species'' by indicating the area within which it is highly likely 
that individuals are members of the listed DPS rather than members 
of other populations of the same taxonomic species or subspecies. It 
may include areas that are generally not occupied by the species but 
where an individual of the species, if found, is most likely a 
member of the DPS. Geographic descriptions are meant to aid in 
identification of individuals of the listed entity rather than limit 
protections. In other words, the geographic description can define 
the species. It is often true that individuals of the taxonomic 
species or subspecies found outside the geographic area defining the 
listed DPS are considered to belong to other populations of the 
species (unless identity can be established by other means) and are 
thus not protected. Within the area defining the species, all 
members are assumed to belong to the DPS and protections of the Act 
apply to ``all individuals of the species.'' It is important to note 
that, while the geographic description of some listed DPSs (e.g., 
Pacific salmon) do not explicitly state that the boundaries of the 
DPS include the marine range of the DPS, individuals of these DPSs 
are protected wherever they go (to the extent that they can be 
identified).
---------------------------------------------------------------------------

    Thus, the term ``range'' is relevant to whether the Act protects a 
species, but not how that species is protected. Having concluded that 
the term ``range'' is used primarily in determining whether a species 
qualifies as an endangered species or threatened species, we must still 
consider its meaning in that context. The Services interpret the term 
``range'' to be the general geographical area within which the species 
is currently found, including 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.
    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'' throughout 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--is inconsistent with 
common usage. Thus, ``range'' must mean ``current range,'' not 
``historical range.''
    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 already take into account in our 
determinations the effects that loss of historical range may have on 
the current and future viability of the species. We conclude that this 
consideration is sufficient to account for the effects of loss of 
historical range when evaluating the current status of the species, and 
a specific consideration of whether lost historical range constitutes a 
significant portion of the range is not necessary. In other words, we 
do not base a determination to list a species on the status 
(extirpated) of the species in lost historical range. We base this 
conclusion on the present tense language of the Act and on the fact 
that considering the status of the species in its current range is in 
fact applying

[[Page 37584]]

the test required by our SPR definition as explained below.
    Given our definition of SPR, we will arrive at the appropriate 
status conclusion by considering the effects of loss of historical 
range on the current status of the species even though we do not 
explicitly consider whether lost historical range is itself an SPR. In 
other words, considering the status of the species in its current range 
is in fact applying exactly the test envisioned by our definition of 
SPR, with the difference that the scenario is actual rather than 
hypothetical. Under this policy's definition, we consider whether, 
under a hypothetical scenario, a species would be endangered or 
threatened without the portion in question. When we consider the status 
of a species in its current range, we are considering whether, without 
that portion (i.e., lost historical range) the species is endangered or 
threatened. If lost historical range had indeed been an SPR prior to 
its loss, then, with the loss having occurred, the species should 
currently be endangered or threatened in its remaining current range. 
When considering the status of a species that has lost historical 
range, the scenario is no longer hypothetical but actual, and the 
status of the remaining portion is no longer hypothetical but is 
determined by examining the species in its current range. Thus, we 
conclude that the appropriate focus of our analysis is the status of 
the species in its current range.
    While we conclude that it is not necessary to separately consider 
whether lost historical range is an SPR, evaluating the effects of lost 
historical range on the viability of the species is an important 
component of evaluating the current status of the species. Past range 
reduction can stem from habitat destruction or degradation, or from 
factors that cause displacement of the species from an area they once 
occupied. Range reduction may result in reduced numbers of individuals 
and populations, changes in available resources and carrying capacity, 
changes in demographic characteristics (survival, reproductive rate, 
metapopulation structure, etc.), and changes in genetic diversity and 
gene flow, which in turn can increase a species' vulnerability to a 
wide variety of threats, including habitat loss. In other words, past 
range reduction can reduce the redundancy, resiliency, and 
representation of a species in its remaining range. Additionally, 
factors other than habitat loss may become important as a species loses 
its range, and these factors that result from past range reduction are 
evaluated as current or future threats. For example, a species with a 
reduced range is at greater risk of all or most of its populations 
being affected by a catastrophic event such as a hurricane or fire. We 
collectively evaluate all the current and potential threats to a 
species, including those that result from past loss of historical 
range. 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. The effect of loss of historical range on the 
viability of the species 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. 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. (We also note that a species that has not 
experienced any loss of historical range may still be vulnerable to a 
wide variety of threats and in fact meet the definition of an 
``endangered species'' or a ``threatened species.'' Thus, loss of 
historical range is not necessarily determinative of a species' status, 
but must be considered in the context of all factors affecting a 
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 of historical range. If the 
causes of the loss are still continuing, then that loss is also 
relevant as 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.
    In implementing listing determinations (including reclassifications 
and delistings), the Services use the best scientific and commercial 
data available, including data on the species' current range, 
regardless of the point in time at which we examine the status of the 
species (12-month listing finding, reclassification, proposed listing 
or delisting rule, 5-year review, and so forth). For example, if we are 
petitioned to reclassify an already listed species, we examine the 
status of the species in the range it currently occupies, not the range 
it occupied at the time of listing. As explained above, 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 only the 
species' current range. Protections of the Act (except as modified 
through sections 10(j) and 4(d) of the Act) apply ``to all individuals 
of the species, wherever found'' (50 CFR 17.11(e) and 50 CFR 17.12(e)), 
even if the range of the species changes over time. 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 definitions of ``conserve'' and ``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 of Appeals has held 
that 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 Society 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

[[Page 37585]]

reasons described above, however, we respectfully disagree with this 
holding of the Ninth Circuit, 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 undertake an analysis different 
from 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 
throughout all of its current range. Second, if the species is not 
endangered or threatened throughout its current range, but there are 
areas in its current range in which the species has not been 
extirpated, but is in danger of extirpation (or is 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 Distinct Population Segment (DPS) 
Authority

    As we explained in our draft policy (76 FR 76987, p. 76998), the 
definition of ``significant'' for the purpose of SPR analysis differs 
from the definition of ``significant'' found in our DPS policy and used 
for DPS analysis. We expect, based on our experience in applying the 
DPS policy, that the differences between the two standards, the 
specific circumstance described by the definition of ``significant 
portion of its range,'' and the high bar this policy sets will seldom 
result in situations in which the population within an SPR for a 
taxonomic species or subspecies might also constitute a DPS. In those 
rare circumstances, under this policy we will consider the DPS to be 
the proper entity for listing. Please refer to our draft policy for a 
discussion of various issues we considered in choosing an appropriate 
relationship between the SPR language and the Act's DPS authority, 
including: (1) The differing definitions of ``significant'' in each 
context; (2) the overlap between SPR and DPS analyses; and (3) the 
portions of the species to protect when a DPS also constitutes an SPR. 
This final policy includes what we conclude is the most reasonable 
approach.

F. Procedure for Implementing the Policy

    This policy will be applied to all status determinations, including 
analyses for the purposes of making listing, delisting, and 
reclassification determinations. The procedure for conducting analyses 
of whether any portion is an SPR is similar, regardless of the type of 
status determination we are making. The first step in our analysis of 
the status of a species is to determine its status throughout all of 
its range. If we determine that the species is in danger of extinction, 
or likely to become so in the foreseeable future, throughout all of its 
range, we will list the species as endangered (or threatened) and no 
SPR analysis will be required. If the species is neither endangered nor 
threatened throughout all of its range, we will determine whether the 
species is endangered or threatened throughout a significant portion of 
its range. If it is, we will list the species as endangered or 
threatened, respectively; if it is not, we will conclude that listing 
the species is not warranted. (Figure 1)

[[Page 37586]]

[GRAPHIC] [TIFF OMITTED] TR01JY14.028

    If we conclude a species is neither endangered nor threatened 
throughout all of its range, we must examine whether it is endangered 
or threatened throughout a portion of its range. When we conduct an SPR 
analysis, we will first identify any portions of the species' range 
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 will determine whether there is substantial 
information indicating that (1) the portions may be significant and (2) 
the species may be in danger of extinction in those portions or likely 
to become so within the foreseeable future. We emphasize that answering 
these questions in the affirmative is not a determination that the 
species is endangered or threatened throughout a significant portion of 
its range--rather, it is a step in determining whether a more detailed 
analysis of the issue is required. In practice, a key part of this 
analysis will be whether the threats are geographically concentrated in 
some way. If the threats to the species are affecting it uniformly 
throughout its range, no portion is likely to warrant further 
consideration. Moreover, if any concentration of threats apply only to 
portions of the range that clearly do not meet the biologically based 
definition of ``significant'' (i.e., the loss of that portion clearly 
would not be expected to increase the vulnerability to extinction of 
the entire species), those portions will not warrant further 
consideration. (Figure 2)

[[Page 37587]]

[GRAPHIC] [TIFF OMITTED] TR01JY14.029

    If we have identified any portions that may be both (1) significant 
and (2) endangered or threatened, we will engage in a more detailed 
analysis to determine whether these standards are indeed met. As 
discussed above, to determine whether a portion of the range of a 
species is significant, we consider whether, under a hypothetical 
scenario, the portion's contribution to the viability of the species is 
so important that, without the members in that portion, the species 
would be in danger of extinction or likely to become so in the 
foreseeable future throughout all of its range. This analysis will 
consider the contribution of that portion to the viability of the 
species based on principles of conservation biology. Contribution would 
be evaluated using the concepts of redundancy, resiliency, and 
representation. (These concepts can similarly be expressed in terms of 
abundance, spatial distribution, productivity, and diversity.)
    To determine whether a species is endangered or threatened 
throughout a portion of its range, we will use the same standards and 
methodology that we use to determine if a species is endangered or 
threatened. The identification of an SPR does not create a presumption, 
prejudgment, or other determination as to whether the species in that 
identified SPR is endangered or threatened. We must go through a 
separate analysis to determine whether the species is endangered or 
threatened in the SPR. Depending on the biology of the species, its 
range, and the threats it faces, it may be more efficient to address 
the ``significant'' question first, or the status question first. Thus, 
if we determine that a portion of the range is not ``significant,'' we 
will not need to determine whether the species is endangered or 
threatened there; if we determine that the species is not endangered or 
threatened in a portion of its range, we will not need to determine if 
that portion was ``significant.''

IV. Summary of Comments and Responses

    The notice announcing our draft policy (76 FR 76987) requested 
written comments and information from the public. That notice 
established a 60-day comment period ending February 7, 2012. We 
received several requests to extend the public comment period and 
subsequently published a notice (77 FR 6138) that extended the comment 
period an additional 30 days, from February 7, 2012, through March 8, 
2012.
    During the public comment period, we received approximately 42,000 
comments, of which approximately 41,500 were form letters and 
approximately 100 were duplicate submissions. We received comments from 
State and local governments, tribes, commercial and trade 
organizations, conservation organizations, nongovernmental 
organizations, private citizens, and others. The range of comments 
varied from those that provided statements of support or opposition to 
the draft policy with no additional explanatory information, to those 
that provided extensive comments and information (supporting or 
opposing the draft policy or specific aspects of the policy) and 
suggestions for revisions. Some comments were strictly editorial and 
included suggested specific line edits or word usage, which we 
addressed as appropriate in this document.
    All substantive information provided during the comment period has 
been considered in this final policy and, where appropriate, has been 
incorporated directly into this final policy or is addressed below. 
Comments received were grouped into general issues specifically 
relating to the draft policy, and are presented below along with our 
responses to these comments.

A. The Policy Is Not Needed, Needs Additional Process, or Legislation 
Is Required

    Comment (1): The Services should amend the Act to exclude the 
phrase ``throughout a significant portion of its range.''

[[Page 37588]]

    Response: Amendments to the Act are outside the scope of this 
policy. Only Congress has the authority to amend the Act.
    Comment (2): One commenter stated that the internal review process 
did not involve enough pragmatic review.
    Response: We disagree. A team of experienced, informed staff within 
both Services spent many hours reviewing the statutory language, 
legislative history, and case law relating to SPR. The team looked at 
every practical option of how to address SPR before developing the 
draft policy, including detailed discussion of pragmatic 
considerations. The team's recommendations were reviewed more broadly 
by practitioners and officials at both agencies. These reviews took 
pragmatic considerations into account. Nonetheless, the Services' 
ultimate decision is also constrained by legal considerations, as 
detailed above and in the draft policy--implementation of the statutory 
language that is ``pragmatic'' but likely to be rejected by the courts 
as inconsistent with the statute is not truly pragmatic.
    Comment (3): Several commenters, including the Association of Fish 
and Wildlife Agencies (AFWA), stated that the draft policy needs 
significant work and that it is neither necessary nor timely for 
finalizing at this time. They urged it be given no further 
consideration until a determination of need and timeliness is 
concluded. Another commenter stated there is no compelling need to 
advance a revised definition at this time because the Services have 
acknowledged that the SPR definition would be only sparingly used.
    Response: The SPR phrase is integral to the Act's definitions of 
``endangered species'' and ``threatened species,'' terms that are 
relevant to all listing determinations. We have not previously provided 
a joint interpretation of the phrase. In part as a result, we have 
faced an increasing amount of litigation related to our application of 
the phrase. Therefore, we have determined that we need to promulgate a 
binding interpretation of the SPR phrase. This policy will allow us to 
more efficiently and consistently carry out our responsibilities under 
section 4 of the Act and reduce litigation. Although we anticipate that 
the policy will affect the outcome of only relatively few 
determinations, the policy itself will be relevant to numerous 
determinations.
    Comment (4): Several commenters recommended that we refer the draft 
SPR policy to a panel comprised of representatives nominated by 
scientific, professional, and conservation societies as the Act advises 
the Services to do in section 4(b)(5)(C) with regard to listing 
decisions.
    Response: As the commenters acknowledge, section 4(b)(5)(C) of the 
Act applies only to particular determinations under section 4(a); it 
does not apply to generic policies and rules promulgated by the 
Services to guide implementation of the Act. In any case, section 
4(b)(5)(C) simply states that we should give notice of a proposed 
regulation to such professional scientific organizations as the 
Secretary deems appropriate. We notified professional scientific 
organizations of our draft policy and accepted public comments from 
those organizations, as well as all other interested parties, during 
the public comment period.
    Comment (5): AFWA, the Hawaii Department of Land and Natural 
Resources, the Florida Fish and Wildlife Conservation Commission, and 
the Washington Department of Fish and Wildlife recommended that the 
draft policy be referred to the Joint Federal/State Task Force on 
Endangered Species Act Policy (JTF) for review.
    Response: The Services acknowledged the special and unique 
relationship between the States, FWS, and NMFS through the formation of 
the JTF in 2011. However, we had substantially formulated the draft SPR 
policy (the culmination of a multi-year effort on the parts of the 
Services, DOI, and DOC) prior to the formation of the JTF. While 
formulating the draft policy predated the JTF, we nevertheless briefed 
the JTF on development of the draft SPR policy prior to its 
publication, and through the JTF and AFWA, we hosted webinars in 2011 
and 2012 with State fish and wildlife agencies during the public 
comment period to inform the States and provide opportunities for 
feedback. The open comment period provided an additional opportunity 
for the States to comment. We have considered and addressed comments we 
received from the States in the development of this final policy. In 
light of our ongoing need to have established guidance on this 
important policy matter to guide our listing determinations, and in the 
absence of discrete concerns raised by the States that have not already 
been thoroughly considered, we have determined that the most 
appropriate course of action is to proceed with finalizing this policy. 
We will continue to coordinate with the States on application of this 
policy as needed.
    Comment (6): The Arizona Game and Fish Department questioned 
whether this policy is necessary in the absence of ``thorough 
development and review of alternatives conducted by the affected 
parties.'' They further suggested that a task force should develop and 
analyze alternatives and present them to the public for comment.
    Response: The draft policy presented a detailed discussion of 
alternatives. The notice-and-comment opportunity provided on the draft 
policy allowed for adequate development and review of alternatives by 
affected parties.

B. The SPR Language Provides an Independent Basis for Listing

    Comment (7): Most commenters who addressed this topic agreed that 
the SPR language provides an independent basis for listing. One 
commenter asserted that this interpretation is more consistent with 
both the statutory language and the spirit of the Act, and will help 
facilitate resource adaptation and provide the protections of the Act 
to more species that need it.
    Response: We appreciate the commenters' feedback.
    Comment (8): The Wisconsin Department of Natural Resources stated 
that interpreting the SPR language as providing an independent basis 
for listing may not be appropriate, and suggested (without further 
explanation) that other alternatives, such as equating the SPR language 
with the ``distinct population segment'' language, may be more 
appropriate, understandable, and simpler to implement and defend.
    Response: As indicated in the draft policy (76 FR 76987, pp. 76997-
76999), we considered a number of other alternatives, including 
equating the SPR language with the DPS language. For the reasons 
described there and elsewhere in this final policy, we have determined 
that interpreting the SPR language to provide an independent basis for 
listing is the most appropriate interpretation; the Wisconsin 
Department of Natural Resources comments presented no analysis that 
rebutted this conclusion.
    Comment (9): One commenter thought that separate analyses with 
respect to significant portions of the range would create an arbitrary 
process that is difficult to understand and explain. The commenter 
recommended that the Services return to a simpler definition and stated 
that Congress intended species should be listed when threats reach a 
large-enough portion of the range to affect the entire species.
    Response: This appears to be an argument in favor of the 
clarification interpretation, which FWS had unsuccessfully advanced in 
the litigation that culminated in the Ninth Circuit's Defenders 
(Lizard) decision. As discussed in the draft policy (76 FR 76987, pp. 
76989-76990) and elsewhere in this final policy, that interpretation

[[Page 37589]]

has been rejected by most courts, and we have accepted those judicial 
determinations as correctly interpreting the statute's language.

C. Apply Protections to Entire Species if Listed Because It Is 
Endangered or Threatened Throughout an SPR

    Comments on the topic of whether to list the whole species or 
instead apply protections only to a portion of the range were split 
almost entirely by group affiliation: Environmental groups asserted 
that this result was required by the Act and will increase the 
likelihood that the species will be conserved and restored; the 
regulated community and States asserted that either the Act requires 
the opposite result, or that it is unwise policy to interpret the Act 
in this way. Responses to more specific comments follow.
    Comment (10): One commenter, while admitting that the Act and 
relevant case law prohibits listing distinctions below the subspecies 
or DPS level, argued that the definition of ``species'' governs only 
the taxonomic level of what can be listed, not where a ``species'' can 
be listed.
    Response: We disagree. The Act's limitation of listing solely 
``species'' would have no meaning if we interpreted the Act to allow 
``species'' to be listed or protected only in certain places.
    Comment (11): Numerous commenters opposed to this interpretation 
pointed to section 4(c)(1) of the Act for support, with at least one 
arguing that we have misinterpreted the district court's decision in 
Defenders of Wildlife v. Salazar. They argued that the language about 
specifying ``with respect to each species over what portion of its 
range it is threatened or endangered'' means that a species can be 
listed and protected in only a portion of its range. They further 
argued that the interpretation in the draft policy writes this language 
out of the statute. One commenter claims that the Services' treatment 
of section 4(c)(1) is ``without authority or even reasoning.''
    Response: As we indicated in the draft policy, it is a challenge to 
harmonize the various relevant provisions of the Act. However, we have 
concluded that section 4(c)(1) of the Act is a bookkeeping provision, 
and should not be interpreted to change the otherwise plain meaning of 
the operative and definitional provisions of the Act. The type of 
information to be conveyed may include, for example, whether the 
species was listed on the basis that it is endangered or threatened in 
a portion of its range, and if so, which portion. This does not render 
the ``portion of its range'' language in section 4(c)(1) meaningless, 
as such information can, for example, help focus recovery efforts. 
Moreover, even if it would have been reasonable to interpret the 1972 
bill as using the SPR language to authorize listings of significant 
portions of the ranges of species (as opposed to entire ``species''), 
the final language of the 1973 Act moved the SPR language to the 
definitions of ``endangered species'' and ``threatened species,'' and 
added the precursor to the DPS language to address the issue of 
listings of less than a species or subspecies. This revised structure 
simply cannot support the interpretation preferred by these commenters, 
notwithstanding the fact that the 1973 Act carried over the language in 
section 4(c)(1) referring to ``portion of its range.'' Finally, despite 
the claim about lack of authority and reasoning, the draft policy cited 
relevant case law and provided the Services' reasoning (see 76 FR 
76991-76992). No commenter advanced a clear or persuasive explanation 
of their view that our interpretation of any of these sources or case 
law is in error.
    Comment (12): One commenter asserted that the draft policy was 
inconsistent with the requirement of section 4(b)(1) that listing 
determinations take into account State and local governmental efforts 
to protect species.
    Response: We disagree. Under this policy, those protection efforts 
still will be considered. Those efforts are, of course, relevant to the 
rangewide analysis, but they are also highly relevant to both the 
questions of significance of a portion of a range, and the status of 
the species throughout that portion. For example, the Services would 
consider whether local governmental protections in the portion at issue 
prevented the species from being endangered or threatened throughout 
that portion, and whether local governmental protections in the 
remainder of the range would make the population throughout the 
remainder sufficiently robust that the portion of the range at issue 
cannot meet the standard for being a ``significant portion.''
    Comment (13): One commenter asserted that our interpretation 
rendered meaningless the ``all'' language in the definitions of 
``endangered species'' and ``threatened species.''
    Response: We directly addressed this argument in the draft policy, 
noting that (1) the argument fails to take into account the fact that 
the Services as a practical matter consider a species' status 
throughout its range first, and (2) the relevant cases have rejected it 
(76 FR 76987, p. 76992). Also, as discussed above, the revised 
definition of ``significant'' in this final policy accords particular 
weight to the ``all'' language because it prescribes that the rangewide 
analysis be done first.
    Comment (14): Several commenters agreed with the Services' 
conclusion that the SPR language provides an independent basis for 
listing, but asserted that adherence to that principle required listing 
something other than the entire species when the species is endangered 
or threatened throughout an SPR. They did not explain the basis for 
this assertion.
    Response: We disagree. There is nothing inherently inconsistent 
with the SPR language providing an independent basis for listing and 
the result being listing the entire species. In other words, the SPR 
language provides an independent basis for listing the entire species; 
there are some circumstances covered by each basis that are not covered 
by the other. We discussed our reasons for choosing this interpretation 
in detail in the draft policy (76 FR 76987, pp. 76991-76993 and 76999-
77000).
    Comment (15): Several commenters argued that it is contradictory 
for us to determine that a species does not warrant listing rangewide, 
and then to list it rangewide because it is endangered or threatened 
throughout an SPR.
    Response: Determining that a species is not in danger of extinction 
throughout all of its range is not the same thing as determining that 
there is an absence of risk to the species. The species still may face 
a sufficient level of risk in portions of its range to warrant listing 
rangewide. This policy concludes that, under the properly construed 
definitions of the Act, a species that is in danger of extinction 
throughout an SPR does warrant listing rangewide, because it meets the 
definition of an ``endangered species.''
    Comment (16): Two commenters sought to analogize to the Act's 
provisions for designation of critical habitat as a basis for urging 
the Services not to apply protections throughout a species' range. 
Specifically, they pointed to the Act's provisions dividing potential 
critical habitat into areas occupied at the time of listing and areas 
not occupied, and requiring that unoccupied areas be included only if 
the areas themselves are found ``essential for the conservation of the 
species,'' as well as the proclamation that critical habitat generally 
shall not include the entire geographical area which can be occupied by 
the species

[[Page 37590]]

(see 16 U.S.C. 1532(5)). These provisions, they suggested, evince 
congressional recognition that it is possible and sometimes necessary 
to limit protections for listed species to only certain areas 
throughout their ranges. They urge the Services to conclude from this 
structure that Congress would similarly intend for the Services to have 
the ability to tailor the effect of a listing.
    Response: While it is true that Congress specifically provided that 
critical habitat need not be coextensive with the entire geographical 
area where a species can exist (except in circumstances where the 
Secretary determines that it should), 16 U.S.C. 1532(5)(C), Congress 
did not include such specific direction in the provisions governing 
listings. Nor does Congress' recognition that critical habitat need not 
cover the full range of a species imply that the geographic parameters 
of a listing also should be flexible; listing provides the fundamental 
level of protection to the species, whereas critical habitat's direct 
legal effect is limited to application of the destruction or adverse 
modification standard to Federal agency actions through section 7 of 
the Act. It is also important to note that the SPR analysis is not 
based on the physical and biological features of the area and is not 
designed to protect the area. Rather, it is based on an assessment of 
the biological importance of the members of the species in an area to 
the overall listed entity.
    Comment (17): One commenter asserted that the import of the 1978 
and 1979 amendments to the Act and the wolf and Gunnison's prairie dog 
district court opinions was that the Act does not allow listing of 
something ``smaller'' than a DPS--doing so would render the DPS 
language superfluous. The commenter suggested, however, that the 
Services could still limit a listing to an SPR if that SPR was 
``larger'' than the range occupied by a DPS.
    Response: The SPR and DPS authorities are distinct: DPSs do not 
have to be a particular size, and therefore we cannot mathematically 
compare the size of an SPR to that of a DPS. As discussed elsewhere, 
however, if the population within the SPR qualifies as a valid DPS, we 
will list the DPS, rather than the entire ``species'' of which the SPR 
is a part.
    Comment (18): Several commenters, including the Idaho Office of 
Species Conservation, questioned the propriety of the Services relying 
on two district court opinions (Defenders of Wildlife v. Salazar, 729 
F. Supp. 2d 1207 (D. Mont. 2010), vacated, 2012 U.S. App. Lexis 26769 
(9th Cir. Nov. 7, 2012), and WildEarth Guardians v. Salazar, 2010 U.S. 
Dist. Lexis 105253 (D. Ariz. Sept. 30, 2010)), rather than two circuit 
court opinions (Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th 
Cir. 2001), and Roosevelt Campobello Intl. Park Comm'n v. U.S. Envt'l 
Protection Agency, 684 F.2d 1041 (1st Cir. 1982)). Idaho specifically 
asserted that, although the Services referred to Defenders of Wildlife 
v. Norton as the seminal case, we did not discuss that case's analysis 
of the legislative history, which Idaho further asserted supports 
protecting species only in portions of their ranges. Commenters also 
criticized the reasoning of the district court decisions. Several 
commenters, including Idaho, suggested reinstating the M-Opinion at 
least until an appeals court has directly addressed the issue.
    Response: As discussed in the draft policy (76 FR 76987, p. 76990) 
the district court opinions represent the most recent and detailed 
judicial analyses of the precise point at issue. We find the reasoning 
of these cases to be persuasive. In contrast, the language in the 
circuit court opinions that lends some support to the commenters' 
position (that the Secretaries have the authority to list or protect 
species in only a portion of their range) is dicta and appears to be 
based in part on a misunderstanding of the basis for some of FWS' 
earlier listings. We conclude that both the First and Ninth Circuits 
would likely adopt conclusions consistent with the district court 
opinions, were the issue now directly presented to them. The Department 
of the Interior has withdrawn and no longer supports the reasoning of 
the M-Opinion. For this reason, we think it would be wasteful, 
inefficient, and unwise to pursue further litigation in support of this 
aspect of the M-Opinion.
    Comment (19): One commenter suggested that two additional district 
court cases support this aspect of the draft policy: In re Polar Bear 
Endangered Species Act Listing and Sec.  4(d) Rule Litigation, 794 F. 
Supp. 2d 65, 96 n.38 (D.D.C. 2011), and Center for Native Ecosystems v. 
Salazar, 795 F. Supp. 2d 1236, 1240 (D. Colo. 2011).
    Response: We agree, but because these cases cite the cases we 
discussed without additional analysis, we focused on the other cases.
    Comment (20): Several commenters argued that the legislative 
history clearly supports interpreting the Act to allow the Services to 
list just a portion of the range of a species. Other commenters pointed 
to legislative history that supports the contrary position. The Idaho 
Office of Species Conservation criticized the draft policy for not 
sufficiently analyzing the legislative history.
    Response: As discussed in the draft policy (76 FR 76987, p. 76989) 
and FWS (2011), aspects of the legislative history support different 
conclusions. And although there is some legislative history that 
suggests that Congress intended to give the Secretaries discretion to 
list less than full biological species, it is unclear how that 
intention relates to the various statutory provisions (e.g., the 
definition of ``species'' versus the definitions of ``endangered 
species'' and ``threatened species'') and to the restructuring of the 
operative provisions and definitions between the 1972 Nixon 
Administration bill and the 1973 Act as passed. Ultimately, we 
concluded that it would not be necessary or particularly helpful to the 
public to include in the draft policy itself a detailed written 
analysis of the legislative history, but we have made the summary 
available for public review.
    Comment (21): Several commenters asserted that FWS has a historical 
practice of protecting only portions of the range of species, citing 
the examples listed in Defenders of Wildlife v. Norton, 258 F.3d 1136 
(9th Cir. 2001); the Idaho Office of Species Conservation asserted that 
the draft policy completely ignored this history. One commenter further 
stated that if the authority for these listings was not section 4(c)(1) 
(with respect to SPRs) of the Act, the Services must explain what 
statutory basis other than section 4(c)(1) of the Act authorized the 
partial protections provided in those examples.
    Response: Contrary to Idaho's assertion, we directly referred to 
the examples listed in Defenders in explaining that the draft policy 
did not conflict with established agency practice. The draft policy 
concluded that those listings could also be explained as relying on the 
authority of the DPS language in the definition of ``species'' or the 
precursor to that language (76 FR 76987, pp. 76992-76993). The draft 
policy (76 FR 76987, p. 76988) also explained that prior to and in the 
years following the issuance of the DPS Policy (61 FR 4722, February 7, 
1996) the Services had generally understood (although not expressly 
articulated) 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, on April 28, 1976, FWS listed the U.S. population of a 
subspecies 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

[[Page 37591]]

population because it did not qualify as a ``species'' under the 
revised definition (49 FR 34501, August 31, 1984). Thus, past practice 
indicates FWS did not believe the Act allowed listing units below 
taxonomic species or subspecies, except (after 1978) in the case of 
vertebrate DPSs.
    Comment (22): Several commenters, including several States, argued 
against a one-size-fits-all approach, noting that various provisions of 
the Act provide the Services with flexibility. They noted that the 
flexibility provided by allowing the listing of a species in a portion 
of its range (with the remainder unlisted) would also recognize the 
States' role in managing fish and wildlife populations within their 
borders, and would provide an incentive for States to conserve 
imperiled species. In contrast, the approach in the draft policy was 
described by one commenter as ``heavy handed'' and likely to generate 
increased animosity towards the Act. Another commenter suggested that 
being endangered or threatened throughout an SPR should result in a 
rangewide listing only if protective actions anywhere in the range 
would reduce the threat of extinction in the SPR, an assumption that 
may not be valid in all cases.
    Response: Although we agree that in a number of areas Congress 
provided the Services with administrative flexibility, that flexibility 
derives from particular statutory language. As discussed in the draft 
policy, here the better reading of the relevant statutory language (and 
the only one permissible under prevailing case law, as discussed 
previously) is that Congress did not intend to allow partial listing of 
``species.'' Regarding providing an incentive to States to conserve 
imperiled species, we recognize that in some circumstances allowing 
protection only in certain portions of the range would provide a 
stronger incentive to States. However, under this policy States will 
have an incentive to conserve species, as State conservation efforts 
are relevant to both listing and delisting determinations under section 
4(b)(1) of the Act.
    Comment (23): One commenter suggested that, taken to its logical 
conclusion, the draft policy would mean that any time a species is 
endangered or threatened ``in some isolated area,'' it could be listed 
throughout its current range. The Florida Fish and Wildlife 
Conservation Commission expressed concern that listing would be 
required even if a species is ``thriving and well managed in some 
portion of its range.'' Other States expressed similar concerns, 
particularly the Alaska Department of Fish and Game given its isolation 
from the contiguous 48 States.
    Response: A species would only be listed because of its status 
throughout an ``isolated area'' if that area was ``significant'' (i.e., 
the contribution of the members of the species in that portion of its 
range to the viability of the species was so important that, without 
that portion, the species would be in danger of extinction or likely to 
become so within the foreseeable future). In that unlikely 
circumstance, listing the species throughout its range is appropriate 
and consistent with the statutory language. Similarly, if a species is 
``thriving and well managed'' in some portion of its range, in most 
circumstances the other parts of its range would not be ``significant'' 
as defined in this policy, and would be listed, if at all, only under 
our authority to list DPSs.
    Comment (24): Several commenters, including the Hawaii Department 
of Land and Natural Resources, suggested that listing only the 
endangered or threatened portions of the range of a species would allow 
the Services to focus their limited resources where they can be most 
effective in furthering the purposes of the Act, and that listing 
rangewide would be inequitable to stakeholders in the remainder of the 
range.
    Response: Although we acknowledge that focusing conservation 
efforts on the most imperiled portions of a species range is one of the 
benefits of interpreting the Act to allow for listings of portions of 
ranges, there are also benefits of the contrary interpretation (76 FR 
76987, pp. 76991-76993). Moreover, as discussed elsewhere (76 FR 76987, 
p. 76992), we have concluded that requiring rangewide listings is the 
best way of harmonizing the various provisions of the Act. And, as also 
discussed elsewhere (76 FR 76987, p. 77004), we will use what 
discretion is available to us to focus conservation efforts on the 
areas where those efforts are most likely to lead to recovery of the 
species.
    Comment (25): One commenter stated that interpreting the Act to tie 
the hands of the Secretary to impose protections that apply no 
additional benefit is indefensible.
    Response: We disagree that rangewide listing will provide no 
additional benefit. We recognize that, in most cases, the key to 
recovery of a species listed because it is endangered or threatened 
throughout a significant portion of its range will be to reduce the 
threats in that portion, so that it is no longer endangered or 
threatened there. But, in some cases, protections throughout all of the 
range may lead to recovery. This may occur if the conservation status 
of the members in the remainder of the range is improved such that the 
endangered or threatened portion of the range loses its significance. 
For instance, the resiliency and redundancy of the remainder of the 
range may be increased through conservation actions to the point that 
the endangered or threatened portion of the range's relative 
contribution to the viability of the species is reduced, and the status 
of the species in the remainder of the range is not dependent on the 
portion of the range in which the species is endangered or threatened. 
In other words, the remainder of the range may become secure enough 
that it would not qualify as endangered (or threatened) even in the 
absence of the portion of the range that was endangered or threatened 
at the time of listing.
    Comment (26): One commenter agreed that the issue is a difficult 
one, and expressed no opinion as to the right interpretation. The 
commenter did suggest that listing the species rangewide would be 
consistent with the ``precautionary principle'' and scientific 
principles of conservation biology, but recognized that rangewide 
listing ``will likely result in unintended consequences that may be 
contrary to congressional intent . . . and may result in the [Act] 
being applied to protect populations where those protections are not 
needed.'' The commenter, however, expressed the opinion that the 
Services should not even attempt to answer this question in a policy 
defining ``significant,'' as doing so injects considerations of 
economic and regulatory consequences in conflict with the mandate of 
section 4(b) of the Act that listing decisions be based solely on the 
best scientific and commercial data available. Therefore, the commenter 
suggested removing this section of the draft policy.
    Response: Section 4(b)(1) of the Act requires the Services to 
``make determinations required by subsection (a)(1) solely on the basis 
of the best scientific and commercial data available.'' Section 4(a)(1) 
governs individual listing determinations. The commenter failed to 
recognize that defining ``significant'' is not itself a listing 
decision; rather, it is an interpretive exercise with legal, policy, 
and biological components. In other words, the policy is not a 
``determination[] required by subsection (a)(1),'' and therefore 
section 4(b)(1) does not by its own terms apply to the policy. In 
resolving ambiguities in the Act and providing guidance for its

[[Page 37592]]

implementation, it is lawful and completely appropriate for the 
Services to consider a wide variety of factors.
    Comment (27): One commenter suggested that if the final policy also 
concluded that an entire species must be listed if endangered or 
threatened throughout an SPR, then that authority should be used 
sparingly.
    Response: We agree that rangewide listings should not be made 
lightly, and as discussed in the draft policy (76 FR 76987, p. 76995) 
and above in the II. Changes from the Draft Policy section, part of our 
reasoning for adopting the relatively high standard of this final 
policy for the definition of ``significant'' is to avoid unnecessary 
regulatory burdens. However, we have a duty to apply the Act's 
definitions in the context of the best available scientific and 
commercial information in each case and must not hesitate to use the 
authority where appropriate.
    Comment (28): One commenter suggested that when a species is 
endangered or threatened throughout an SPR outside of the United 
States, that the U.S. population should not be included in the listing.
    Response: As the commenter pointed out, the draft policy is silent 
as to the effect of jurisdictional boundaries on the operation of the 
SPR language. There is, however, a good reason for this: Section 4 of 
the Act makes no reference to any different treatment of species found 
outside of the United States. Rather, it only specifies notification 
requirements to foreign governments, and clarifies that the 
conservation efforts of those governments should be considered in 
making listing determinations. That said, as indicated in the draft 
policy (76 FR 76987, p. 77003) and elsewhere here, if an SPR that 
warrants listing also qualifies as a DPS, we will list the DPS, 
including those with boundaries that correspond with international 
boundaries.
    Comment (29): One group of commenters opposed application of the 
policy to foreign species. The commenters asserted that the 
conservation considerations for foreign species are very different than 
those for domestic species. The commenters were particularly concerned 
that rangewide listing resulting from application of the draft policy 
would interfere with sport-hunting programs in countries that manage a 
species well, and provided several existing examples of FWS providing a 
species with different listing statuses in different countries. The 
commenters also asserted that the DPS concept is not an adequate 
safeguard to prevent that interference. One commenter stated that the 
Services should issue a separate policy for foreign species to take 
into account foreign programs and practices and congressional language 
not to list areas that do not themselves warrant being listed.
    Response: We disagree. The standards for listing are the same for 
domestic and foreign species, although the nature of the data to be 
analyzed can differ. Moreover, as discussed in the draft policy, our 
policy stipulates that if an endangered or threatened SPR of a species 
also qualifies as a DPS, we will list the DPS rather than the entire 
taxonomic species or subspecies. This treatment is consistent with the 
commenters' examples and maintains the full flexibility of the DPS 
authority to apply differing statuses across the range of a vertebrate 
taxon comprising multiple DPSs, including those that qualify as DPSs 
based on different management across international boundaries. Thus, 
our SPR policy honors congressional intent that suggests we should 
apply differing statuses for species across international boundaries if 
there are differences in management.
    Comment (30): Colorado Parks and Wildlife commented that it would 
be unreasonable to list the Gunnison's prairie dog rangewide if the 
prairie portion of its range does not warrant listing itself, and if 
adequate mechanisms do not exist for the recovery of the montane 
population, which is subject to much greater threats.
    Response: On November 14, 2013, FWS published (78 FR 68660) a not-
warranted finding for Gunnison's prairie dog consistent with 
application of the principles laid out in this policy.

D. The Biological Basis for ``Significant''

    Comment (31): Most commenters, including the Wisconsin Department 
of Natural Resources and Idaho Office of Species Conservation, 
supported the biological basis for the definition of ``significant.'' 
One noted that a percentage-of-range test departs from the biological 
conservation of listed species and the ``best science'' features of the 
Act, and moves away from the areas of expertise of Service biologists. 
Another thought size of the portion would be most straightforward, but 
acknowledged that size will not always be directly related to 
biological/conservation importance, which matters most when trying to 
conserve endangered and threatened species.
    Response: We appreciate the commenters' constructive feedback.
    Comment (32): Several commenters supported the biological basis for 
the definition of ``significant,'' but questioned how the Services will 
make these determinations. For example, the Nevada Department of 
Wildlife questioned whether decisions based on an analysis of 
biological significance (based on the principles of conservation 
biology using the concepts of representation, resiliency, and 
redundancy (the three Rs)) can be articulated and supported in a manner 
that will be able to withstand challenges. The Idaho Department of Fish 
and Game found it difficult to imagine the multitude of potential 
analyses of different geographically based configurations of how much 
of the taxonomic species' range is required to meet the threshold of 
``significance.'' The Hawaii Department of Land and Natural Resources 
was concerned that the biological basis may be too subjective. It was 
unclear to another commenter how a species with a metapopulation 
structure throughout all of its extant range would be affected by the 
proposed interpretation.
    Response: Although these determinations are necessarily subjective 
to some degree, we will make them based on the best available 
scientific and commercial data. Our expertise and experience uniquely 
qualify us to make these sorts of determinations. The biologically 
based definition of ``significant'' requires the same types of analyses 
that we already conduct, and we are confident that we can apply this 
standard in a manner that will be able to withstand challenges. With 
regard to the concern about the multitude of potential analyses that 
would be required, we acknowledged this in the draft policy, and 
explained how our process for considering SPRs would address that 
concern (76 FR 76987, p. 77002). The process we outlined is appropriate 
for species with a metapopulation structure throughout all of its 
extant range, since a metapopulation is a group of spatially separated 
populations of the same species that interact at some level. One or 
more of these populations can constitute an SPR.
    Comment (33): Several commenters supported the biological basis of 
the definition of ``significant,'' but asked how we will determine that 
the threats in a portion are so ``significant'' as to warrant a listing 
determination based on an SPR.
    Response: The commenters' question goes to the second step of the 
SPR analysis, which asks whether a species is endangered or threatened 
throughout an SPR. We will make these determinations in the same way we 
determine whether any species is endangered or threatened. The only

[[Page 37593]]

difference in these determinations is that they will be made with 
reference to the members in a smaller portion of the species' range. We 
do not ask whether the threats acting on the portion are 
``significant,'' but whether they cause the species to be either in 
danger of extinction or likely to become so within the foreseeable 
future throughout that portion.
    Comment (34): One commenter suggested that we include the more 
detailed language about the three Rs and four viability criteria 
(abundance, spatial distribution, productivity, and diversity) in the 
definition itself, instead of only in the preamble, to ensure that the 
definition is more specific and less open to interpretation and debate. 
Otherwise, ``in danger of extinction'' will be difficult to apply 
consistently.
    Response: We disagree. A succinct policy statement is beneficial 
both to the Services and the public, and additional guidance is 
available by referring to the preamble. If we determine that it would 
be helpful to do so in the future, the Services may develop internal 
guidance that would include such details to help their biologists 
implement the policy.
    Comment (35): One commenter was concerned about the emphasis placed 
on the term ``viability'' because this term is not defined.
    Response: We use the term to describe conservation biology 
principles, as it is a common term in the field of conservation 
biology. ``Viability'' is the ability of a population to persist and 
avoid extinction. The viability of a population will increase or 
decrease in response to changes in the rates of birth (or germination), 
death, immigration, and emigration of individuals.
    Comment (36): One commenter wondered how the Services will 
determine what will constitute a significant portion of the range for 
plants with disjunct distributions. What criteria will we use (genetic 
data, population viability analysis (PVA), population modeling, or 
other methods)? The commenter was concerned that genetic diversity may 
be lost if the ``significance'' of a portion of a plant species' range 
or genetic diversity or both across its range is not adequately 
investigated and understood. The commenter also opined that climate 
change (changing precipitation patterns and temperature regimes) may 
increase the significance of populations located at the extremes of a 
species' range because those populations may make disproportionately 
high contributions to the total adaptive capacity of species.
    Response: All of these considerations are subsumed within our 
evaluation of the three Rs and four viability criteria. In evaluating 
the status of species, the Services encounter species with a wide range 
of life histories, circumstances, and varying levels of data quality 
and quantity. Because of this, it is not possible to lay out a single 
set of specific criteria in this policy. Analyses will necessarily be 
species-specific and will rely on the best scientific and commercial 
data available for that species. However, as explained in the draft 
policy (76 FR 76987, p. 76994), the framework of the three Rs and four 
viability criteria include considerations such as spatial distribution, 
abundance, and genetic diversity. Where we have quantitative data, we 
may be able to use PVAs or population modeling. In less data-rich 
situations, we will use qualitative methods. In the response to Comment 
84 below, we provide an example of the application of this framework to 
the Queen Charlotte goshawk. In that analysis, we specifically 
considered geographic barriers and genetic diversity in our evaluation 
of whether portions of the species' range could be ``significant.''
    Comment (37): A few commenters, including the Alaska Department of 
Fish and Game, recommended changing the definition of significant to 
read, ``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 the individuals 
in that portion, the species would be in danger of extinction.'' The 
commenters suggested that this would eliminate confusion that could 
arise from the fact that ``range'' usually refers to a geographic area 
rather than the individuals in that area.
    Response: The commenters are correct that our determinations are 
made with reference to the biological organisms, not the geographic 
area. Therefore, we changed the definition of ``significance'' to 
clarify that ``that portion'' refers to members of the species in the 
portion of the range.
    Comment (38): Two commenters suggested the following modification 
to our definition of ``significant'': ``In implementing the assessment 
of a portion of a range's contribution to the viability of a species, 
the Services shall identify and explain those physical attributes and 
biological elements that are present in the species' occupied range and 
are so integral to the life cycle of the species that they make a 
unique and irreplaceable contribution to the species' ability to 
survive.''
    Response: The biologically based definition in our draft policy 
refers to the biological organisms, not the geographic area. 
Regardless, the biological principles that we will consider when 
evaluating whether a portion's contribution to the viability of a 
species is so important that, without the members in that portion, the 
species would be in danger of extinction or likely to become so within 
the foreseeable future already incorporate the concepts suggested by 
these commenters because it is impossible to separate these habitat 
concepts from the species' needs. These concepts will be reflected in 
the viability of the species.
    Comment (39): A number of commenters argued in favor of using other 
factors (e.g., size, esthetic, ecological, educational, recreational, 
cultural, U.S. presence) to define ``significant'' instead of applying 
a purely biological/conservation approach. For example, South Dakota 
Game, Fish and Parks suggested that we include both the options of 
conservation value and size for defining ``significant,'' and another 
commenter stated that percentage of range and percentage of population 
should be required components of a science-based SPR analysis 
throughout all ecotypes within the species' current and historical 
range. Other commenters preferred that we base our approach on the 
``Values of the Act'' so that we can retain broad discretion to 
determine that a particular portion of a species' range should be 
deemed significant based on the specific national ``values'' set forth 
in the Act itself.
    Response: We considered these factors as well as other factors when 
we were developing the draft policy (76 FR 76987, pp. 77000-77002). 
However, we concluded 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. An approach that is based on 
biological importance necessarily includes consideration of factors 
such as size of the population, spatial distribution across ecotypes, 
etc. Such a biological approach is most appropriate because the Act 
focuses on protecting species, and to protect species requires that we 
assess whether they are biologically viable. The commenters did not 
present a clear explanation or rationale for why or how non-
biologically based factors would be better than a biological/
conservation approach.
    Comment (40): The Kalispel Tribe of Indians suggested a hybrid 
approach, incorporating both the biological/conservation importance and 
the values identified in section 2 of the Act. Under this approach, if 
a portion is

[[Page 37594]]

``significant'' for biological or conservation reasons, the portion 
would be a ``significant portion of [the species'] range''; if not, the 
Services would, in consultation with the affected Tribe, look to 
whether that portion is ``significant'' because of the values 
articulated by the Act (e.g., cultural, historical, educational). If 
the portion is important because of any of these values, it would then 
be ``significant.''
    Response: All of the reasons we gave in the draft policy (and in 
response to Comment (39), above) for not applying a values approach (76 
FR 76987, p. 77001) apply as well to the hybrid approach suggested by 
the Kalispel Tribe. Therefore, we concluded that the biological/
conservation approach should be used alone in determining whether a 
portion of the range of a species is significant.
    Comment (41): One commenter suggested that a variety of factors 
should be used to determine the significance of a portion of the range 
of a species, including whether that portion supports unique habitats 
or adaptations for the species, and whether its loss would result in a 
significant gap in the species' range.
    Response: Unique adaptations are incorporated in the three Rs or 
four viability criteria. Since the Act is a species-focused law (rather 
than ecosystem-focused), incorporating the concept of ``unique 
habitats'' is not appropriate unless the species' presence in that 
habitat contributes to its resilience. Evaluating whether the loss of 
the portion would result in the species being endangered or threatened 
already captures the commenter's suggestion of evaluating whether its 
loss would result in a significant gap in the species' range. We 
deliberately chose not to use the phrase, ``significant gap in the 
species' range'' because that is a factor in the DPS Policy, and 
``significant'' in the SPR phrase is not the same as ``significant'' in 
the DPS Policy.
    Comment (42): Several commenters recommended that we incorporate 
ecosystem principles into our definition of ``significant.'' For 
example, one commenter recommended rewording the definition of 
``significant'' so that when the loss of a portion of a species' range 
would result in the extirpation of that species from a defined 
ecoregion or ecosystem unit, then that portion is significant to the 
species and the species must be protected under the Act. The commenter 
further argues that an ecosystem-unit assessment provides for a 
meaningful distinction between the concept of endangered throughout an 
SPR and threatened throughout an SPR. Another commenter recommended 
that we revise the draft policy by defining the word ``significant'' in 
a way that recognizes the ecological significance of various parts of a 
species' range to the species and the ecosystem, does not diminish the 
species' resilience or potential to adapt in response to rapidly 
changing environmental conditions, and does not rule out the 
possibility that areas that do not now constitute good habitat might 
become so as a consequence of the same processes that are causing the 
loss or degradation of presently occupied areas. As an example, this 
commenter suggested that the loss of a large whale population from an 
ecosystem (i.e., Gulf of Alaska, Bering Sea, or Sea of Okhotsk) would 
be significant at the species and ecosystem level, and therefore, this 
loss could be considered a loss from an SPR. Similarly, this commenter 
argued that portions of a species' range that are important for 
supporting vital functions such as reproduction, feeding, and refuge 
from predators could reasonably be considered SPRs. This commenter 
emphasized the importance of preserving the populations' capacity to 
adapt to changing environmental conditions by not allowing a population 
to decline as a result of human impacts throughout an SPR.
    Response: We explained our rationale for choosing a biologically 
based definition of ``significant'' in detail in the draft policy (76 
FR 76987, pp. 76993-76994 and 77001). A biologically based definition 
best conforms to the purposes of the Act, is consistent with judicial 
interpretations, and best ensures species' conservation. While one of 
the purposes of the Act is to provide a means whereby the ecosystems 
upon which endangered species and threatened species depend may be 
conserved, the Act provides for protecting listed species and their 
critical habitat, not ecosystems. Therefore, we declined to reword our 
draft policy to incorporate ecoregions or ecosystem units, although we 
note that extirpation of a species from an ecoregion or ecosystem unit 
can be a relevant consideration under the policy, even if not 
dispositive. With regard to the comment that an ecosystem-unit 
assessment provides for a meaningful distinction between the concept of 
endangered throughout an SPR and threatened throughout an SPR, the 
commenter did not explain how this would be provided, and therefore, we 
cannot offer a response. When determining whether a species is 
endangered or threatened, we recognize the ecological significance of 
various parts of its range to the species and the ecosystem, and 
consider its resilience or potential to adapt in response to rapidly 
changing environmental conditions; there is no need to revise the draft 
policy to recognize this. In response to this commenter's 
recommendation that we consider the possibility for low- quality areas 
to become good habitat, nothing in our policy precludes us from 
considering the dynamic ecological and evolutionary processes that lead 
to these changes in habitat quality when determining whether a portion 
of the range of a species is significant.
    Comment (43): One commenter stated that the draft policy equates 
``significant'' only with ``biological viability'' when it should be 
focusing on viability and geographic representation. Another commenter 
stated that ``significant'' should be defined to include a geographic 
component that is related to but not subsumed by viability, citing 
Congressional Report No. 93-412, historical application of the Act, and 
peer-reviewed assessments (Vucetich et al. 2006 and Carroll et al. 
2010) to support its claim. Another commenter notes that species cannot 
be effectively protected without protecting the habitats and ecosystems 
on which they depend and without considering the species' integral 
ecological processes; this commenter supported the use of the 
conservation-biology principles of resilience, representation, and 
redundancy, but believed that our focus on species viability as the 
sole criterion for listing contradicts these three principles. As an 
example, this commenter argued that misinformed and harmful 
``mitigation'' for a proposed groundwater-pumping-and-exportation 
project would be allowed under the species-viability focus in our 
proposed approach.
    Response: As we discussed in the draft policy, we consider the 
conservation-biology principles (three Rs or four viability criteria) 
when evaluating whether a portion is significant (76 FR 76987, p. 
76994). Consideration of these principles necessitates an evaluation of 
geographic representation as all of the three Rs (resilience, 
representation, and redundancy) and the spatial distribution criterion 
(one of the four viability criteria) include geographic components. 
While one of the Act's purposes is to provide a means whereby the 
ecosystems upon which endangered and threatened species depend may be 
conserved, the actual, operational provisions of the Act are explicitly 
species-focused and do not specifically provide for protection of 
ecosystems (though critical habitat designation

[[Page 37595]]

offers some protection). However, the species' integral ecological 
processes are considered in any evaluation of the status of a species. 
With regard to the comment expressing concern about harmful 
``mitigation'' resulting from our draft policy, the commenter did not 
explain the connection between this concern and our draft policy. 
However, we disagree that there would be any harmful mitigation as a 
result of implementing the policy

E. The Threshold for ``Significant''

    Comment (44): A number of commenters supported a lower bar that 
would include ``threatened.'' Arguments offered in favor of this 
include: (1) A recommendation to apply the precautionary principle and 
protect species before they become endangered (when it is too late) and 
species recovery becomes more costly; and (2) concern that the draft 
definition does not provide a meaningful distinction between when a 
species is endangered throughout an SPR and when a species is 
endangered throughout all its range (citing Defenders (Lizard)).
    Response: Although we disagree with the assertion that the 
precautionary principle should be applied to listing determinations 
under section 4 of the Act (see CBD v. Lubchenco, 758 F. Supp. 2d 945, 
955 (N.D. Cal. 2010)), as discussed above, this final policy adopts the 
standard suggested by these commenters. See section II. Changes from 
the Draft Policy, above.
    Comment (45): Two commenters stated that the threshold in the draft 
policy was too high and would result in decreased protections for 
species with important populations that are facing significant threats. 
They expressed concern that many populations important to the 
redundancy, resiliency, and representation within the species will not 
warrant protection. The commenters proposed that a population be 
considered ``significant'' if its loss would ``meaningfully 
compromise'' redundancy, resiliency, or representation for the species 
as a whole. They suggested that this would ensure that all species are 
represented by multiple viable populations distributed across the range 
of variation of that species including geographic, ecological, and 
genetic variation. Another commenter agreed that the threshold was too 
high, and asserted that the Services are giving economic impacts of 
listing species too much emphasis and not giving conservation success 
enough emphasis.
    Response: We agree that the threshold should be lower than in the 
draft policy to ensure that species with important populations that are 
facing significant threats receive protection under the Act, but we do 
not believe ``meaningfully compromise the redundancy, resiliency, or 
representation for the species as a whole'' is an appropriate and clear 
standard. In addition to its ambiguity, the recommended threshold would 
appear to set an inappropriately low standard for ``significant'' given 
the effect of finding that a species is endangered or threatened 
throughout an SPR, i.e., rangewide listing. For the reasons discussed 
above, we have lowered the threshold for ``significance,'' but we 
decline to adopt this recommendation. We do not agree with the 
commenter who asserted that we are giving economic impacts of listing 
species too much emphasis and not giving conservation success enough 
emphasis. We developed our policy by examining the Act, its legislative 
history, and case law, and the result is a policy that balances the 
need to give full meaning to both ``throughout all of its range'' and 
``throughout a significant portion of its range'' while affording 
appropriate protections to species.
    Comment (46): Many commenters, including the Idaho Department of 
Fish and Game, Alaska Department of Fish and Game, Wisconsin Department 
of Natural Resources, and Hawaii Department of Land and Natural 
Resources supported the high threshold for ``significant'' in the draft 
policy. A few argued that introducing the consideration of whether a 
species is ``likely to become endangered'' as part of identifying a 
``significant portion'' would confuse the purpose of the identification 
of an SPR. Another stated that the use of the endangered standard would 
provide a more straightforward approach for determining if a species' 
range is ``significant'' because it would avoid adding the temporal 
element of the threatened standard. The commenter also suggested that 
use of a higher standard lessens the risk of unnecessary species 
listings that would result in application of the Act's protections 
across the species' range.
    Response: We do not think introducing the consideration of whether 
a species would meet or exceed the standard for threatened as part of 
the threshold for ``significant'' confuses the purpose of the 
identification of an SPR. Determining whether a portion is 
``significant'' is a separate exercise from determining whether the 
members of the species in that portion meet the status test of 
``endangered'' or ``threatened.'' The inquiry assumes that all members 
in that portion are extirpated, without reference to a particular point 
in time. Regarding use of the threatened standard in the definition of 
``significant,'' in our draft policy we also concluded that the use of 
the endangered standard was more straight-forward. However, for the 
reasons discussed in sections II. and III.C.3., above, we now conclude 
that it is more appropriate to include the threatened standard along 
with the endangered standard in the definition of ``significant,'' and 
have done so in this final policy.

F. Quantitative Approaches or Rebuttable Presumptions To Determine 
Whether a Portion is ``Significant''

    Comment (47): One commenter asked us to rescind the draft policy 
and instead adopt one that considers the plain meaning of significance 
of the range in terms of the majority of the range as measured in 
quantitative or numerical terms. However, most commenters, including 
the Wisconsin Department of Natural Resources, Hawaii Department of 
Land and Natural Resources, and Alaska Department of Fish and Game, 
agreed with us that a quantitative approach or rebuttable presumption 
should not be used for determining whether a portion of a species' 
range is significant. Many commenters noted that a single metric, 
percentage, or other quantitative measure should not be used to 
establish a presumption for identifying an SPR. Instead, they suggested 
that we must draw upon those myriad factors specific to the species and 
the portion of the range at issue to determine whether that portion 
meets the threshold for identification and review under the SPR 
inquiry.
    One commenter added that, based on research indicating variation in 
habitat quality and productivity at the scale of the species' range, 
percentage of range or population is an unreliable indicator of 
biological or conservation significance. Therefore, a rebuttable 
presumption would be either overly strict in many instances, would 
somehow result in ``shifting to the public'' an assessment the Services 
are better equipped to make, or would be generally under-protective. 
Another thought using percentage of range or habitat as the threshold 
for ``significant'' is appealing because it is more tangible and 
objective, but admitted that it is likely to be impossible to develop 
size-based criteria that will work for all possible scenarios. Another 
pointed out that a predetermined percentage of the species' overall 
range should not be used to define ``significant''; significant 
reduction in a species' range, particularly when coupled with reduced 
abundance, could be a sufficient basis

[[Page 37596]]

for listing even if that portion fails to meet some predetermined 
percentage of the species' range.
    Two other commenters noted that the use of size (either of a 
population or a range) as a rebuttable presumption would provide a 
quantitative measure that could be easier to apply as a first cut, but 
acknowledge that it could ultimately complicate the issue rather than 
streamline the process because it would not take into account species-
specific characteristics, and determining what is necessary to rebut 
the presumption would be problematic. They concluded that the use of 
the size approach, and necessary size-threshold determination, would be 
arbitrary and likely impossible to apply in a consistent or systematic 
manner. They agreed with us that percentage of range or population as a 
rebuttable presumption would be inconsistent with case law (the Ninth 
Circuit has already rejected the argument that a specific percentage 
loss of habitat should automatically qualify a species for listing 
(Defenders (Lizard), 258 F.3d at 1143-44)).
    Response: In view of the comments received and the complications 
identified in the draft policy, we have concluded that it is not 
feasible to implement a purely quantitative approach. The Services 
specifically contemplated the possibility of using a quantitative 
threshold for ``significant'' when we considered using size as a basis 
for determining significance. We specifically rejected using size 
because a single quantitative threshold would be unlikely to be 
applicable to the widely varying life histories, habitats, and needs of 
the species for which we conduct status reviews. We also specifically 
requested comment on the possibility of developing a specific 
quantitative threshold for significance that could be used as a 
rebuttable presumption to streamline and simplify our analyses and 
provide for greater transparency (a rebuttable presumption would 
provide a standard quantifiable threshold for significance that would 
be applied unless certain assumptions or conditions are not met). Most 
commenters who addressed this issue replied that developing 
quantitative thresholds (even as a rebuttable presumption) would not be 
feasible or useful or would be unnecessarily complicated given the 
variety of circumstances, species life histories, and variability in 
the types of data that would be available to the Services. We agree.

G. Range and Historical Range

    Comment (48): Many commenters appeared to believe the policy would 
limit protections of a species to only the range occupied at the time 
of listing. Other commenters recommended we explain that ``range'' is 
not a regulatory concept.
    Response: The Services noted in the draft policy that our 
interpretation of the term ``range'' does not limit application of the 
tools and protections of the Act (76 FR 76987, pp. 76997 and 77003-
77004). However, in this final policy, we have further clarified that 
the term ``range'' is relevant to whether the Act protects a species, 
but not how that species is protected. We note that the protections of 
the Act are applied ``to all individuals of the species, wherever 
found,'' the phrasing used in 50 CFR 17.11(e) and 17.12(e).
    Comment (49): Many commenters believe that the policy would result 
in the Services giving no consideration of loss of historical range or 
reasons for its loss in our listing determinations. Several commenters 
believed that defining range as current range would result in a 
``shifting baseline.'' Commenters assumed that we would establish the 
current range as the baseline for comparison of a species' status 
without consideration of historical information to provide context to 
interpret the species' current status.
    Response: As explained in the draft policy (76 FR 76987, pp. 76996-
77007), loss of historical range, its impact on the current and future 
viability of the species, and its causes are important considerations 
in determining a species' status. While the definition of ``range'' 
establishes that the question of whether a species is endangered or 
threatened is a forward-looking inquiry, nothing in the policy suggests 
that current range would be used as the baseline against which to 
measure whether a species is endangered or threatened. In fact, because 
asking whether a species is currently in danger of extinction or likely 
to become so is a forward-looking exercise, there is no specific 
``baseline'' of comparison. As we explain above in section III.D., a 
species' current and future status is informed by past trends and 
events and the Services agree that information regarding historical 
range cannot be ignored. We have further clarified the importance and 
relevance of evaluating the effects of loss of historical range on the 
current and future viability of the species.
    Comment (50): Many commenters supported the Services' 
interpretation of range as current range and noted additional support 
in other provisions of the Act and other case law for the policy's 
interpretation that ``range'' must mean current range.
    Response: We appreciate the commenters' supportive feedback.
    Comment (51): One commenter suggested the Services more clearly 
make a distinction between the roles of SPR and consideration of lost 
historical range. Further, the commenter recommended that the Services 
explain that SPR concerns the biological significance of a portion of 
currently occupied range, while loss of historical range is a factor in 
determining whether a species is currently viable.
    Response: We have added further explanation of the roles and 
relationships of SPR and lost historical range in determining the 
status of a species.
    Comment (52): Many commenters believe that defining ``range'' as 
the current range accepts that lost historical range is unrecoverable 
and that it would limit options going forward for recovery. Some have 
suggested that defining ``range'' as current range would exclude from 
conservation and protection efforts any areas from which a species has 
been extirpated.
    Response: We explained in the draft policy (76 FR 76987, p. 76997) 
and in section III.D., above, that examining a species' status in its 
current range in no way constrains or limits use and application of the 
tools of the Act to the current range of the species. Such tools 
include, but are not limited to, designation of critical habitat 
outside areas occupied by the species at the time it is listed; 
protection, restoration and management of habitat to allow for natural 
range expansion; improvement in population growth rates to allow for 
natural expansion; and translocation and reintroduction to areas 
outside the current range of the species (e.g., California condor, 
black-footed ferret, peregrine falcon). We specifically note that 
recovering a species in some or all of its historical range may be 
necessary, and that the language of the Act indicates Congress 
specifically contemplated this necessity. However, we have added 
further explanation that the term ``range'' is a conceptual and 
analytical tool related to identifying threatened and endangered 
species and plays no direct role in implementing the Act to protect and 
recover species.
    Comment (53): Some commenters asked how range would be determined 
for listing determinations and status reviews. Some commenters 
requested we explain how the Services would address specific scenarios, 
such as species with disjunct populations,

[[Page 37597]]

recently restored populations, captive populations, or species found 
only in captivity.
    Response: The available information on current and historical 
ranges varies widely among species. For example, we may have very 
detailed information for some species and more limited data for others. 
Similarly, we may have detailed information in some portions of a 
species' range and very limited data in others. There is no single 
method for defining a species' range that can be used for all species 
and all situations. We describe the range, both current and historical, 
based on the best scientific and commercial data available. We note 
that range is described in our findings and status reviews for the 
purposes of conducting analyses of the species' status. As explained in 
section III.D., above, description of a species' range does not limit 
where protections of the Act apply, as the protections apply to the 
species itself. The same would be true for a species with disjunct 
populations. Similarly, protections of the Act would be extended to 
newly restored populations, as the protections of the Act are applied 
to the species itself, not the ``range.'' We note that with regard to 
considering whether newly restored populations constitute an SPR, we 
would consider such populations to be part of the range of the species 
for purposes of any status reviews because ``range'' is defined as the 
current range of the species at the time of the determination (not the 
range defined at listing or another previous determination). Whether or 
not a newly restored population would be considered an SPR would depend 
on its contribution to the conservation of the species. As for any 
other portion of a species' range, we would consider its contribution 
to the resiliency, redundancy, and representation of the species (such 
considerations could include the size of the newly restored population, 
its likelihood of persistence, or its contribution to the genetic 
diversity of the species). With regard to species found in captivity, 
the Services consider a captive population to have no ``range'' 
separate from that of the species to which it belongs (captive 
populations cannot be considered an SPR). Captive members have the same 
legal status as the species as a whole. In situations where all members 
of the species in the wild are gone, either because they are extirpated 
or because, as a last resort, the remaining wild members are captured 
and moved into captivity, the species remains listed as endangered or 
threatened until the species can be reintroduced and recovered in the 
wild. Our reasoning regarding the status of captive populations is 
further detailed at 78 FR 33790 (June 5, 2013).

H. Relationship With DPS Authority

    Comment (54): One commenter asserted that the draft policy 
conflates the identification of the relevant ``species'' with the 
determination of whether it is an ``endangered species'' or a 
``threatened species.'' According to the commenter, the fact that a 
population could be protected either because a DPS is endangered or 
threatened throughout all of its range or because a biological species 
is endangered or threatened throughout a significant portion of its 
range does not mean that either provision is superfluous. Moreover, the 
commenter asserted that Congress's adoption of the DPS concept in 1978 
did not alter the SPR phrase or otherwise change its meaning.
    Response: We agree that the identification of the ``species'' and 
the determination of whether it is endangered or threatened are two 
different steps. Once we determine that a species meets the definition 
of an ``endangered species'' or a ``threatened species,'' the operative 
provisions of the Act do not provide that protections only apply with 
respect to some members of the species (absent, for example, an 
applicable rule under section 4(d) or section 10(j) of the Act that 
modifies those protections). As we discussed in the draft policy, a 
species that is in danger of extinction throughout a significant 
portion of its range is an ``endangered species.'' Take of an 
``endangered species'' (not just of an endangered species where it is 
endangered) is prohibited by section 9 of the Act. Moreover, we did not 
assert that interpreting the Act to allow protections solely in an SPR 
would make the DPS language redundant. We merely asserted that doing so 
``creates unnecessary tension between the SPR language and the DPS 
language'' (76 FR 76987, p. 76991). Also, we did not argue that the 
addition of the DPS language in the 1978 amendments to the Act changed 
the meaning of the SPR language. The commenter's preferred 
interpretation would also have created unnecessary tension with the 
1973 definition of ``species.''
    Comment (55): Many commenters, including the Florida Fish and 
Wildlife Conservation Commission, agreed that the draft policy struck a 
reasonable balance between the DPS policy and the statutory SPR 
language. The Wisconsin Department of Natural Resources appeared to 
agree that endangered or threatened DPSs that also qualify as SPRs 
should not be the basis for listing the entire taxonomic species of 
which it is a part. Otherwise, the agency suggested, the result could 
be ``unintended listings of DPSs'' (which we take to mean the portions 
of the range outside the SPR/DPS); the remainder of the range 
presumably is one or more DPSs, for which independent listing 
determinations should be made.
    Response: We appreciate the constructive feedback of the 
commenters.
    Comment (56): A number of commenters recommended that the Services 
reevaluate the DPS policy. In particular, several commenters, including 
the Wisconsin Department of Natural Resources, suggested that the DPS 
policy be revised to allow DPS boundaries to be defined by State 
borders, or by ecoregion or ecosystem unit boundaries, without 
requiring that DPSs be disjunct from one another. The Alaska Department 
of Fish and Game suggested that the Services clarify that, for purposes 
of the DPS policy, Alaska is separated from the contiguous 48 States by 
international boundaries. One commenter suggested distinguishing DPS 
analysis from SPR analysis by relaxing or eliminating the significance 
requirement of the DPS policy. Another commenter suggested adding a 
fifth criterion for significance to the DPS policy (geographic 
representation in an ecosystem unit), and another suggested that any 
reevaluation of the DPS policy should include a notice-and-comment 
process for formulating a more rational approach to reconciling the SPR 
and DPS language.
    Response: Revision of the DPS policy is outside the scope of the 
current effort. This policy does, however, describe the relationship 
between the DPS language and the SPR language in the Act.
    Comment (57): One commenter asserted that giving ``significant'' 
different meaning in the SPR and DPS contexts runs afoul of Supreme 
Court precedent that statutory terms should normally be given the same 
meaning throughout a statute.
    Response: We disagree. ``Significant'' is not a statutory term in 
the DPS context--``significant'' is used in the DPS policy, not in the 
statute. The case law cited by the commenter is simply not applicable.
    Comment (58): Several commenters asserted that despite our 
explanation to the contrary, the draft policy defines ``significant'' 
in the exact same way as the DPS policy because both refer to the 
concept of importance. They argued that this has the effect of 
rendering the DPS

[[Page 37598]]

language moot and illegally amending the Act.
    Response: We disagree. The fact that the concept of significance in 
the draft policy and the DPS policy both relate to importance (as 
opposed to, for example, statistical significance) does not mean that 
the terms are defined identically. As explained in great detail in the 
draft policy, the draft policy sets a much higher and more specific bar 
than the DPS policy (76 FR 76987, pp. 76998-76999). In other words, 
although both relate to importance, under the draft policy a portion of 
the range must be much more important to be ``significant'' than a 
population must be to be significant to the taxon as a whole under the 
DPS policy. This remains true under the revised definition of 
``significant'' in this final policy.
    Comment (59): One commenter suggested that we will not be able to 
list a DPS rather than the entire species if an endangered or 
threatened DPS occupies an SPR of the species, because the policy 
requiring rangewide listing will be binding.
    Response: We disagree. The policy expressly provides that where a 
DPS overlaps with an SPR only the DPS will be listed.
    Comment (60): Several commenters suggested that we should list a 
species rangewide even if there is a valid DPS that could be listed 
instead. Two of these commenters cited the disparity between the 
treatment of vertebrates and invertebrates if the draft policy is 
followed, with the paradoxical result that a similarly situated 
invertebrate could receive more protection than a vertebrate, in 
contravention of congressional intent. Another suggested that because 
DPS and SPR inquiries encompass different kinds of characteristics, 
they should be assessed independently.
    Response: As discussed in the draft policy (76 FR 76987, pp. 76988-
76989), it is very difficult to harmonize the various provisions of the 
Act and the goals that Congress intended to pursue. We conclude that 
the position taken in this policy strikes the best balance and 
appropriately reconciles these two distinct authorities.
    Comment (61): One commenter asserted that the draft policy did not 
provide an adequate rationale for listing only the DPS where its range 
is coextensive with an SPR of the taxon to which it belongs. The 
commenter argued that the rationale given is undermined by the fact 
that section 4(d) of the Act allows the Service to tailor restrictions 
for threatened species. Also, the commenter suggested that, for 
domestic species, DPSs are unlikely to correspond to political 
boundaries in the absence of international borders.
    Response: As we discussed in the draft policy (76 FR 76987, pp. 
76998-76999), DPSs will not often correspond to SPRs, but we determined 
that the policy should explain what happens if they do because the Act 
does not indicate how these two distinct authorities should interact 
with one another. Rules promulgated under section 4(d) of the Act are 
not adequate to address the problem, as section 4(d) does not apply to 
endangered species.
    Comment (62): Several commenters, including the Alaska Department 
of Fish and Game, stated that the draft policy should be modified to 
require the Services to determine whether a proposed SPR is encompassed 
by a DPS.
    Response: As discussed in the draft policy, we generally will 
identify, as a matter of practice, relevant DPSs before considering 
SPRs, although in some circumstances a different order or scope of 
analysis may be more appropriate. To preserve flexibility, we find 
there would be no benefit to expressly requiring this in the policy.
    Comment (63): One commenter expressed concern that the draft 
policy's discussion of DPSs would lead the Services ``to conduct a 
review that is out of order''--apparently considering the proper order 
to be to identify the ``species'' first, and then apply the definitions 
of ``endangered species'' and ``threatened species'' to the species.
    Response: As we stated in the draft policy, we agree that we will 
usually identify the species to be analyzed first. In fact, in our 
draft policy, our treatment of DPSs that are also SPRs helps justify 
conducting the analysis in this order, without a need to reexamine 
endangered or threatened DPSs to determine whether they also constitute 
SPRs. Under the draft policy, no change in the listing would result 
from that additional analysis, so there would be no need for the 
Services to conduct it.
    Comment (64): Several commenters asserted that an SPR inquiry 
should not be used in evaluating whether a DPS warrants listing. In 
other words, those commenters think that a DPS should not be listed 
because it is endangered or threatened throughout a significant portion 
of its range. Another commenter took the opposite position, and 
suggested that we clarify this fact.
    Response: As stated in the draft policy, the same logic applies to 
DPSs that applies to taxonomic species and subspecies (76 FR 76987, p. 
76998). Natural operation of the language of the statute leads to the 
conclusion that any ``species,'' including a DPS, can be an 
``endangered species'' because it is ``in danger of extinction 
throughout . . . a significant portion of its range.''
    Comment (65): The Wisconsin Department of Natural Resources 
suggested defining SPR and DPS as the same where there is substantial 
overlap to allow for more effective, efficient, and practical 
application of listing and delisting efforts.
    Response: Although they use the same word, the DPS Policy and the 
SPR language have different purposes: The DPS policy helps define what 
counts as a ``species,'' and the SPR language helps determine whether a 
species is endangered or threatened. Therefore, it is reasonable for 
``significant'' to have different meanings in those different contexts. 
Moreover, as discussed above and in the draft policy (76 FR 76987, p. 
76995), given the effect of finding a species to be endangered or 
threatened in a significant portion of its range, it is appropriate for 
``significant'' in that context to be a demanding standard. The 
definition of ``significant'' used in the DPS Policy, although 
appropriate in that context, would, applied in the SPR context, be too 
low a standard, and result in the listing of many species with little 
long-term risk of extinction, diluting the conservation efforts of the 
Services, and imposing costs with relatively little conservation 
benefit. Finally, defining ``significant'' the same way in both 
contexts would tend to make the DPS language of the Act irrelevant, as 
DPSs of a species would always constitute SPRs of that species.
    Comment (66): Two commenters thought that the discussion of the 
relationship between DPSs and SPRs was confusing and should include 
examples or case studies. One commenter specifically suggested the 
Services need to provide spatial diagrams to explain the relationship 
of SPR to DPS.
    Response: There is no static relationship between these concepts, 
and not every species will have both an SPR and a DPS. Beyond the 
general framework that we have laid out, the relationship between DPSs 
and SPRs is highly fact-specific; we do not see the value of providing 
additional examples or case studies. Also, as ``significance'' is 
defined differently for SPR versus DPS, these concepts are not in 
tension.
    Comment (67): One commenter noted that the draft policy's 
discussion was unclear as to whether the Services would give any 
consideration to the status of the species as a whole if a DPS warrants 
listing. The commenter pointed to a number of current examples in which 
a DPS is listed as endangered, and the species of which it is a part is 
listed as threatened.

[[Page 37599]]

    Response: We generally look at taxonomic species and subspecies 
before considering DPSs, and we will always consider whether a species 
is in danger of extinction (or likely to become so in the foreseeable 
future) throughout all of its range before we engage in an SPR analysis 
(76 FR 76987, p. 77002). In addition, our revised definition of 
``significant'' will preclude existence of an SPR if the species is in 
danger of extinction, or likely to become so in the foreseeable future, 
throughout all of its range. Nothing in this policy will change how the 
Services conduct the analysis of ``species'' throughout their ranges. 
When a taxonomic species or subspecies is endangered in one DPS, and 
threatened throughout the rest of its range, the Services will continue 
to make separate listing determinations for the two (or more) 
populations, and list those populations accordingly.
    Comment (68): One commenter suggested that we add a discussion of 
the relationship of the SPR language and NMFS' evolutionary significant 
unit (ESU) policy.
    Response: ESUs identified under NMFS' ESU policy (56 FR 58612, 
November 20, 1991) are DPSs, and for the purposes of this policy will 
be treated as DPSs.
    Comment (69): Montana Fish, Wildlife & Parks asserted that the 
Services already list populations as DPSs even though they do not meet 
the criteria of the DPS policy, and expressed concern that the Services 
not use the DPS policy to list populations that are not SPRs.
    Response: We disagree with Montana's assertion; the Services 
rigorously apply the DPS criteria, and list DPSs sparingly, as 
suggested by Congress (Senate Report 151, 96th Congress, 1st Session). 
Moreover, the fact that a DPS may be imperiled in a portion of its 
range that is not significant will not provide a basis for listing the 
DPS.

I. Whether a Species Can Be Both Threatened Throughout All of Its Range 
and Endangered Throughout an SPR

    Comment (70): Many commenters, including the Wisconsin Department 
of Natural Resources, South Dakota Game, Fish and Parks, and Idaho 
Department of Fish and Game, stated that, where the Act would allow 
either an endangered or a threatened listing, the Services should favor 
the more flexible threatened listing. They asserted that the part of 
the draft policy supporting an endangered listing in those 
circumstances is undesirable over-regulation that would produce 
needless economic dislocation. They suggested that the Services embrace 
the flexibility of tailoring ``take'' rules and reducing regulatory 
burdens with respect to threatened species, in response to a 
Presidential Order (E.O. 13563 to promote economic growth, innovation, 
competitiveness, and job creation), a Supreme Court ruling, and 
congressional intent. The New Mexico Department of Game & Fish was 
concerned that the many different analyses we would need to do under 
the draft policy would affect the Services' Act-mandated deadlines for 
responses to petitions and other potential listing actions.
    Response: Although we do not necessarily agree with all of the 
rationale provided by these commenters, for the reasons described 
above, we agree with their conclusion, and thus the final policy 
defines ``significant'' such that a portion cannot be significant if 
the species already warrants listing throughout all of its range. 
Therefore, as this policy is applied, there will be no circumstance in 
which a species is threatened throughout all of its range and 
endangered throughout an SPR (see section II., above).
    Comment (71): A commenter noted that the most efficient use of 
limited Service resources is to focus first on the entire species, and 
to use the SPR concept only secondarily and sparingly. Under that 
approach, once the Services find that a species is threatened 
throughout its range, the species should be listed as threatened, and 
an SPR-based endangered listing should not be considered further.
    Response: We agree with the commenter and have changed the policy 
in part in response to this comment.
    Comment (72): Some commenters expressed concern about a species 
being both threatened throughout its range and endangered throughout an 
SPR because it would be confusing to have two statuses for the same 
species.
    Response: We have changed the definition of ``a significant portion 
of its range'' to avoid the confusion of a species potentially 
qualifying both as threatened throughout its range and endangered 
throughout an SPR.
    Comment (73): One commenter suggested that, when a species is found 
to be endangered throughout an SPR, the species should be listed as 
endangered only in that portion of its range and threatened in the 
remainder of its range. This would allow more flexibility to issue a 
rule under section 4(d) of the Act for the species where it is only 
threatened. Other commenters, including the Hawaii Department of Land 
and Natural Resources, suggested that we apply protections according to 
the degree of threat in different portions of a species' range. Two 
commenters believed it is fine to protect a species as endangered if it 
is threatened throughout all of its range but endangered throughout an 
SPR, but protective efforts should be focused on the portion of the 
range where threats are greatest.
    Response: For reasons set out above and in the preamble of the 
draft policy (76 FR 76987), we cannot list an entity smaller than a 
species (i.e., species, subspecies, or DPS). Once a species is listed 
as endangered, it is listed as endangered wherever found, and all of 
the Act's section 9 prohibitions apply. We cannot apply different 
listing statuses to the same species in different portions of its range 
(except to the extent that those portions of the range correspond to 
subspecies or DPSs, i.e., are in fact different ``species''). That 
said, with the revisions incorporated into this final policy, a species 
that in fact warrants listing as threatened because of its status 
throughout all of its range will, by definition, not contain any 
endangered SPRs.

J. Use of Best Available Science, Appropriate Analyses, Correct 
Conclusions

    Comment (74): Several commenters stated that we should revise the 
draft SPR policy's current heavy and litigation-inviting reliance on 
the principles and concepts of conservation biology in determining 
biological significance. Conservation biology is a philosophy and 
pseudoscience.
    Response: The Act requires that we use the best available science 
in making listing determinations. The principles and concepts of 
conservation biology are commonly accepted throughout the scientific 
community, and make up part of the best available science relevant to 
listing determinations. We always consider relevant and available 
species-specific evidence as well.
    Comment (75): One commenter stated that the basis for the draft 
policy is flawed in that it fails to consider the full array of 
scholarly research, economic information, and legal considerations 
related to the issues and effects of various policy choices 
legitimately before the Secretary.
    Response: We did consider the best scientific information available 
as well as recent judicial opinions relating to SPR. We considered a 
wide variety of policy options and the pros and cons of each. This 
final policy reflects the Services' expert judgment as to the best way 
to interpret and apply ``significant portion of its range'' as that 
phrase

[[Page 37600]]

appears in the Act. The commenter did not offer any specific 
constructive suggestions that we have not already considered.

K. Implementation in Listing Determinations

    Comment (76): Some commenters requested we clarify when SPR 
analyses would be required. Several commenters requested we clarify how 
SPRs will be identified, what criteria will be used to identify SPRs, 
and whether threats will always be used to identify SPRs.
    Response: When making a determination according to section 4(a)(1) 
of the Act, the Services must always interpret and apply the 
definitions of ``endangered species'' and ``threatened species,'' 
including the SPR language. We must always ensure that we are fully 
considering all the parts of these definitions. We explain how and when 
an SPR analysis will be conducted under the approach adopted in this 
policy in section III.F., above. No analysis of SPR is required when we 
find a species to be either endangered or threatened throughout all of 
its range. Where the rangewide analysis does not lead to a 
determination that the species is endangered or threatened, an SPR 
analysis is required. However, the level of detail of analysis 
necessary will vary according to the specific species and data under 
consideration. In general, a more detailed SPR analysis would likely be 
needed to fully address and consider all parts of the definitions when 
the kinds and levels of threats vary across a species' range. This is 
more likely to occur for species with large ranges than for narrow 
endemics with a very small range. Narrow endemics are likely to 
experience the same kinds and levels of threats in all parts of their 
ranges, and thus, no portion would likely have an increased level of 
threats and thus a different status. Essentially, we would conduct a 
``screening'' analysis to determine whether additional analysis is 
needed. As a matter of definition, the SPR does not always have to be 
identified according to threats. In practice, a portion is most likely 
to be identified if there is a concentration of threats that could 
indicate the individuals in that portion may be endangered or 
threatened. The Services would then ask whether the portion also may be 
significant. If we determine that the portion is not significant (e.g., 
if it were an extremely small area), we would not analyze it further. 
The Services may also identify a portion for further consideration 
based on biological characteristics, such as population structure or 
spatial distribution, that indicate a portion may be of particular 
biological importance (i.e., it may be significant). However, if we 
determine that the portion is not endangered or threatened there (e.g., 
if threats were not acting on the species in that area), we would not 
analyze it further.
    Comment (77): One commenter suggested that we clarify that the 
identification of an SPR does not create a presumption, prejudgment, or 
other determination as to whether the species in that identified SPR 
warrants protection under the Act as either endangered or threatened.
    Response: As we stated in the draft policy (76 FR 76987, pp. 76994, 
77002), the determination of whether a portion of the range of a 
species is significant is completely separate from the determination of 
whether a species is endangered or threatened throughout a significant 
portion. We have added some language to this document to make this even 
clearer.
    Comment (78): Montana Fish, Wildlife & Parks asked whether certain 
species will be treated as exceptions to this policy.
    Response: We plan to apply this policy consistently to all species, 
unless we need to do otherwise to comply with a court order.
    Comment (79): Some commenters expressed concern that adopting the 
SPR Policy will require the Services to undertake additional analyses 
that could affect timelines for completing determinations or otherwise 
affect the Services' resources. Some commenters asked for clarification 
of when detailed analysis of SPRs is needed. Some expressed concern 
that the Services will have to devote scarce resources to ensure 
consistency in interpretation.
    Response: As explained above (section III.F.), the policy outlines 
a stepwise process to ensure that we engage in the level of analysis 
that is appropriate for the particular species. This process will not 
only ensure that the Services are not expending resources on 
unnecessarily detailed analyses, but also promote a consistent approach 
to conducting the analyses. We cannot predict every possible scenario 
we will encounter and must necessarily leave room for best professional 
judgment based on specific circumstances, but a consistent 
interpretation and stepwise analytical process will promote a 
consistent approach.
    Comment (80): Several commenters requested we clarify that 
identifying the species, as defined by the Act, would be the first step 
in the process of making a listing determination. Some seemed concerned 
that the Services might instead identify potential SPRs and then 
broadly ask what entity (species, subspecies, or DPS) of which it may 
be a part.
    Response: We have clarified in the policy explanation that the 
Services first determine what entity meets the definition of 
``species.''
    Comment (81): Some commenters suggested that the Services should 
develop quantitative tools and standards for measuring contribution to 
the viability of the species to ensure objective and unbiased SPR 
analysis. (We addressed the similar but distinct issue of whether to 
incorporate a quantitative threshold or rebuttable presumption as part 
of the definition of ``significant'' in response to Comment (47), 
above.)
    Response: Our policy applies a conceptual framework that identifies 
the relationship a portion must have to the conservation of the species 
as a whole rather than a specific quantitative approach such as a 
numerical threshold. As with any listing determination, analyses 
applying this framework may use quantitative methods if data are 
available and allow for applying appropriate methodologies. However, 
quantitative data and methodologies are not required if the data 
available do not allow for quantitative analyses. Section 4(b)(1)(A) of 
the Act requires us to make determinations based on the best scientific 
and commercial data available. Thus, we must make determinations as to 
whether species are endangered species, threatened species, or neither, 
regardless of whether the data allow for quantitative analyses. In 
other words, we cannot defer making a determination where we lack the 
ideal kinds and quantity of data. Our policy accommodates the wide 
variety of situations and types of data available.
    Comment (82): Several commenters requested that the Services 
provide more detail on how the policy will be implemented. Requests 
included providing more detail on what kinds of data will be used to 
determine whether a portion is significant (genetic data, PVAs, 
modeling, etc.), as well as how a variety of specific circumstances 
will be addressed and evaluated.
    Response: The Services must use and base our determinations on the 
best scientific and commercial data available. We also must interpret 
and apply the definitions of ``endangered species'' and ``threatened 
species,'' including the SPR phrase, in all our determinations, 
regardless of the kind and quality of the data or the specific 
circumstances. However, the same kinds of information that have always 
been useful in determining a species' status

[[Page 37601]]

may be relevant to evaluating the relative contribution of a portion of 
its range to the viability of a species. The kinds of data include, but 
are not limited to, species biology and life history, genetic data, 
population-viability analyses, species distribution and abundance data, 
population and metapopulation structure, threats and species response 
to threats, etc. While particular kinds of data (and especially 
detailed, up-to-date data and information) may be most useful, we are 
required to apply the definitions of ``endangered species'' and 
``threatened species'' regardless of the kind, quantity, or quality of 
the data available. We cannot predict every possible circumstance or 
scenario we will encounter. This policy, therefore, lays out a broad, 
conceptual framework that will allow the Services to evaluate a wide 
variety of circumstances. The Services have made numerous 
determinations prior to this policy as to whether a species meets the 
definitions of ``endangered species'' or ``threatened species.'' These 
determinations span a wide variety of species and circumstances, as 
well as a wide variety in the types, amount, and quality of data and 
information available. We expect to encounter the same variety in the 
future and will continue to apply our expertise to base our 
determinations on the best scientific and commercial data available.
    Comment (83): The Arizona Game and Fish Department suggested that 
the policy, if approved, should ``more thoroughly describe how it would 
be applied during . . . application of the Policy on the Evaluation of 
Conservation Efforts (PECE) criteria.''
    Response: Nothing in the SPR policy affects application of PECE or 
related considerations. Of course, the status of a species throughout 
an SPR can be affected by conservation efforts, as can its status 
throughout all of its range.
    Comment (84): Several commenters requested we provide examples for 
real species.
    Response: The Services have continued to publish numerous 
determinations in which we apply the definitions of ``endangered 
species'' and ``threatened species,'' including, as appropriate, the 
SPR language in those definitions. These include 12-month findings on 
petitions to list, reclassify, and delist species, as well as proposed 
and final rules to list, reclassify, and delist species. The Services 
have been applying an approach that is similar to this policy on a 
case-by-case basis when circumstances warrant giving some consideration 
to whether the species is endangered or threatened throughout an SPR. 
While the definitions applied on a case-by-case basis prior to this 
final policy may differ slightly from this final policy's definition of 
SPR, our recent determinations generally illustrate how we would apply 
the analysis framework laid out in this policy. We provide examples 
below.
    Example 1: FWS was petitioned to list Van Rossem's gull-billed tern 
(a subspecies of gull-billed tern) and conducted a status review to 
determine whether listing was warranted. In our 12-month finding (76 FR 
58650, September 21, 2011), FWS determined that this species was not 
endangered or threatened throughout all of its range. We next examined 
the question of whether the species might be endangered throughout a 
significant portion of its range. We identified two portions of the 
species' breeding range that may have a greater concentration of 
threats because of reductions in water levels that could increase nest 
predation and make the locations less suitable as nesting habitat. We 
next examined the question of whether these portions could be SPRs by 
examining their contribution to the resiliency, redundancy, and 
representation of the species. We determined that these two nesting 
locations were not unique or biologically different from other nesting 
locations. We also concluded that, even if these sites were to be 
abandoned in the future, it is likely that the Van Rossem's gull-billed 
tern would move and nest elsewhere because the species displays low 
nest-site fidelity. Additionally, existing and potential nesting 
locations are distributed along a 2,250-km (1,400-mi) stretch of the 
species' range, such that the two locations, either individually or 
combined, would not constitute a significant portion of the total 
breeding range. We therefore concluded that these two nesting areas 
were not SPRs because their contribution to the viability of the 
species is not so important that the species would be in danger of 
extinction without those portions. In this example, we identified 
portions based on a concentration of threats but determined the 
portions were not SPRs and therefore did not further examine the status 
of the species in those portions.
    Example 2: On November 4, 2013, NMFS published a final rule 
removing the eastern distinct population segment of the Steller sea 
lion from the List of Endangered and Threatened Wildlife (78 FR 66139). 
After considering the status of the DPS throughout all of its range, 
NMFS next considered whether any portions of the DPS qualified as SPRs. 
NMFS identified as a potential SPR the southern portion of the range in 
California because of previously identified concerns over performance 
of rookeries in this portion. While this portion of the range has 
poorer performance compared to the rest of the DPS, data indicate that 
this portion is not in decline, nor does its poorer performance appear 
to be affecting the recovery of the DPS elsewhere. In other words, it 
does not appear to be endangered or threatened in that portion, and its 
contribution to the viability of the DPS is not so important, that 
without it, the DPS would be in danger of extinction now or in the 
foreseeable future. NMFS also identified the California Current 
Ecoregion as a potential SPR. Trend and threat information for this 
portion indicate that this portion is not in danger of extinction or 
likely to become so. Because NMFS determined that the California 
portion was not significant, and neither the California portion nor the 
California Current Ecoregion portion was endangered or threatened, NMFS 
did not evaluate them further. NMFS then concluded that the DPS no 
longer meets the definitions of an endangered species or threatened 
species. This example illustrates the process of identifying portions. 
The first portion was identified by considering information that could 
indicate the species could be endangered or threatened there (poor 
performance of rookeries). The second portion was identified by 
considering information that could indicate that the area is important 
to the conservation of the species (an ecoregion). This example also 
illustrates that we treat DPSs in the same manner as species and 
subspecies when applying the SPR language in our status determinations.
    Comment (85): Several commenters suggested that visual aids such as 
charts or diagrams would be helpful in illustrating how the policy will 
be implemented.
    Response: See Figures 1 and 2 in section III.F., above.
    Comment (86): One commenter suggested the Services should provide 
an opportunity for public comment on the potential characterization of 
any portion of the range as ``significant'' for a particular species 
prior to the Services making any listing or status-related 
determination for the SPR. Specifically, the commenter suggested the 
Services include in their policies and procedures a requirement to 
publish a notice in the Federal Register prior to initiating a status 
review (i.e., at the 90-day finding stage on a petition or prior to 
conducting the annual candidate notice of review) and prior to any 
proposed

[[Page 37602]]

listing of a species as endangered or threatened on the basis of an 
SPR. At a minimum, the commenter further suggested that this advance 
public notice should include mapping, identification of factors 
considered, identification of all studies and information to be 
considered, and an explanation as to any proposed basis for the 
identification of an SPR.
    Response: The commenter's suggestion is not consistent with the 
requirements of the Act and is not necessary or feasible. The statute 
does not require the Services to engage in a rulemaking process to 
arrive at a 90-day or a 12-month finding on a listing petition. The 
statute generally requires an initial determination on a petition 
within 90 days of receipt, and a 12-month finding (along with any 
proposal to list) within one year of receipt, following a status 
review. Even if the Services were required to conduct rulemaking-style 
activities as part of the review of a petition, the requirement of 
relatively quick turnaround and relatively low ``may be warranted'' 
standard at the 90-day stage would make it wholly infeasible to try to 
seek public comment on the identification of an SPR prior to the 
Services completing their analysis and announcing their decision to 
commence a status review. In any event, an SPR analysis is a part of 
the overall analysis of whether a species is endangered or threatened 
under the Act, and no need is served by pre-publishing separate 
findings prior to our overall finding. Of course, if the Services 
determine that any portion of the range is both significant and either 
endangered or threatened and propose to list a species based on this 
(or to reclassify or delist), we will publish a proposed listing rule 
upon which the public will have an opportunity to comment. At that time 
the public can review and respond to the explanation of the basis 
developed by the agency and submit additional relevant information to 
be considered in development of a final listing rule.
    Comment (87): The commenter further suggested that the Services 
should revise their regulations governing the petition process to 
prescribe strict requirements for the petitioner to provide information 
specifying and documenting an SPR. The commenter also recommended that 
we modify our petition regulations to specify that the Services will do 
SPR analyses only when specifically petitioned to do so and that 
failure to submit the requisite level of information will result in the 
petition being construed to request listing on a rangewide basis. Other 
commenters requested we clarify whether petitioners will be required to 
identify SPRs or whether the Services will identify them.
    Response: Modifying our petition regulations is outside of the 
scope of this policy. However, we agree that, if petitioners intend 
that the Services should base their analysis on an SPR, the petitioners 
should include as much information as they have about any potential 
area of special importance so the Services can determine whether the 
area may qualify as an SPR. Such petitions should include substantial 
information to indicate that a particular portion may be both 
significant and in danger of extinction or likely to become so. We have 
emphasized that, unless there is evidence to suggest both prongs are 
met, the Services need not conduct a detailed SPR analysis. However, 
the Services conclude that it is not necessary to more specifically 
prescribe the showing that needs to be made in a particular petition, 
as the Services must evaluate each petition in context to determine if 
the standard of section 4(b)(3)(A) of the Act (whether the petition 
``presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted'') is met. In any case, we 
conclude that it is preferable to retain the discretion to address SPR 
issues in petitions as needed in the context of particular 
circumstances, rather than create a binding rule. At the initial review 
stage (i.e., development of a 90-day finding), the standard the 
Services must apply is whether the petition presents substantial 
information indicating that the petitioned action may be warranted. At 
the 12-month finding stage, the Services have a responsibility to 
interpret and apply the Act's definitions, including (if a species is 
found to be neither endangered nor threatened rangewide) the SPR 
language, regardless whether a petition specifically identifies any 
SPRs. Thus, we will identify any SPRs as necessary and based on the 
best scientific and commercial data available.
    Comment (88): Some commenters suggested that the policy should more 
clearly articulate that determining whether a species is endangered or 
threatened in a SPR requires two separate tests and both must be met: 
that the portion is ``significant,'' and that the species is endangered 
or threatened throughout that portion.
    Response: We have clarified this further in section III.F., above.
    Comment (89): Several commenters inquired as to the continuing 
relevance or functioning of an SPR, such as how a spatial area to be 
``designated'' as an SPR will be identified and defined, how SPRs will 
be defined and mapped, and whether areas that qualify as SPRs would be 
subject to periodic review.
    Response: To the extent commenters believe the Services will map or 
``designate'' SPRs as entities or boundaries formalized in regulations, 
they misunderstand the purpose of our interpretation of the SPR 
language. Under this policy, the SPR phrase and its interpretation is 
used solely to determine whether a species is an endangered species or 
threatened species, pursuant to the definitions in the Act and the 
requirements of section 4(a)(1) of the Act. Once we determine that a 
species is an endangered species or threatened species, the SPR 
language has no direct effect on implementation of the Act. If a 
species is an endangered species or threatened species because of its 
status throughout an SPR, the entire species is listed and the Act's 
protections are applied to the entire species, not just to the SPR. The 
process of listing a species does not ``designate an SPR'' for the 
species. Once a species is listed, there is no formal relevance of the 
SPR. Of course, consistent with current practice, the identification of 
a concentration of threats in a certain portion of its range may be 
relevant in a variety of contexts, such as identifying actions needed 
for recovery, formulating rules under section 4(d) of the Act, and 
analyzing proposed actions under section 7 of the Act. In other words, 
the SPR language is an analysis tool, not an entity or a designation, 
and it does not directly result in regulations or requirements specific 
to the SPR, but may inform development of other measures as discussed 
above. In fact, once a species is listed, periodic review of the 
species' status (through 5-year reviews or petitions, 
reclassifications, or delistings) will be conducted as for any species, 
and the SPR interpretation will be applied independent of previous 
findings. As a species' status changes over time, we expect that what 
constitutes an SPR for the species may also change (for instance, if 
new populations are established, portions of the range previously 
identified as SPRs may contribute relatively less to the viability of 
the species in the remainder of the range) and therefore will require 
new analyses as the species progresses toward recovery. Threats may 
also change over time and alter the basis for listing a species or 
alter its status. For example, if new threats are identified that 
affect the species throughout its range, it may warrant listing because 
it is now threatened or endangered throughout all of its range and no 
longer just in a significant portion of its range.

[[Page 37603]]

    Some examples may be useful. Example 1: A species that has few 
populations may be listed because it was threatened throughout most 
populations, and those populations constituted an SPR (without those 
populations, the remaining populations would be endangered or 
threatened--even though with those populations extant, the species is 
not threatened or endangered throughout all of its range). Recovery 
efforts reestablished several populations, and the species recolonized 
and expanded into unoccupied habitat in additional areas. The 
populations that were originally considered an SPR now make up a much 
smaller percentage of the total number of populations and their loss 
would no longer result in the remaining populations (that are more 
widespread) being likely to be in danger of extinction in the 
foreseeable future. Under this scenario, the original SPR is no longer 
an SPR because of the increased number of populations and expanded 
species' range. The species might then be proposed for delisting even 
though the threats in what had been an SPR have not abated.
    Example 2: A species is threatened throughout an SPR, and the 
species is therefore listed as threatened. For this species, threats 
from development and land-use activities are acting primarily in the 
SPR. Over time, new threats emerge (a new invasive plant is altering 
habitat and outcompeting the species' primary host plant) that affect 
the species throughout its entire range. We determine during a new 
status review that the species is threatened throughout all of its 
range. The status throughout the range is determinative, because an SPR 
is relevant only where a species is neither endangered nor threatened 
throughout its range. Therefore, it is no longer necessary to examine 
the original SPR or any other potential SPR. The species remains listed 
as threatened, but now on a different basis.
    Comment (90): Several commenters, including the Arizona Game and 
Fish Department and Montana Fish, Wildlife & Parks, requested we 
clarify how the policy would be applied to already-listed species and 
in delisting species. Some recognized that we said that ``listing'' 
really meant all determinations under section 4(a)(1) of the Act but 
still believed more explanation would be useful.
    Response: The interpretation of SPR in this policy applies to all 
future determinations made under section 4(a)(1) of the Act. Section 
4(a)(1) requires that we determine whether any species meets the 
definitions of an ``endangered species'' or ``threatened species.'' 
This same process applies to all status determinations regardless of 
whether we are evaluating a potential listing, or a reclassification or 
delisting of an already-listed species. We will begin with first 
assessing the status of a species throughout all of its range. If the 
species is neither endangered nor threatened throughout its range, then 
we will assess whether any portions require further examination, and if 
so, ask whether the species is endangered or threatened throughout an 
SPR. For example, if we are petitioned to delist a species, we would 
first evaluate the status of the species rangewide. If we determine 
that the species is neither endangered nor threatened throughout all of 
its range, we would then examine the question of whether it might 
remain endangered or threatened throughout any SPRs. This is identical 
to the process we undertake in considering whether a species should be 
listed.
    Comment (91): Some commenters, including Montana Fish, Wildlife & 
Parks, suggested that a species listed on the basis of an analysis in 
an SPR must be considered for delisting once recovered in the SPR that 
led to listing.
    Response: We agree that significant improvement in the species' 
status in the SPR would be relevant and important to considering the 
species' listing status, but cannot agree with any suggestion that the 
species should automatically be delisted in that situation. Once the 
species is listed, the same standards and processes apply to reviewing 
the listing regardless of whether the listing was based on status 
throughout an SPR. Thus, it is not correct to think of a portion of the 
range as being ``recovered''; the status of the species (and by 
extension whether the species is ``recovered'') is assessed at the 
level of the listed entity. While we might generally expect it to be 
the case that a species would no longer qualify for the protections of 
the Act once it is no longer facing significant threats in the area 
analyzed as an SPR at the time of listing, there could be situations 
where the status of the originally examined portion of the range 
improves, but where other portions have become less stable (see Example 
2 in our response to Comment (89), above). Since the result of listing 
the species after an SPR evaluation is a rangewide listing, we would 
need to consider whether the best available data at the time indicated 
that the species had become endangered or threatened throughout any 
other SPRs or had become endangered or threatened overall prior to 
proposing to delist.
    Comment (92): Several commenters, including Montana Fish, Wildlife 
& Parks, asked if we could delist a species if it was recovered 
throughout a significant portion of its range regardless of the basis 
for the original listing.
    Response: As we noted in the response to the previous comment, 
determining whether a species is ``recovered'' is in reality 
considering whether the species still meets the definitions of 
``endangered species'' or ``threatened species.'' In evaluating whether 
a species should be delisted due to recovery, we do not ask whether a 
species is recovered throughout an SPR; the concept of ``recovery'' 
(like listing itself) is applicable only at the level of the species. 
We begin by asking whether the species is an ``endangered species'' or 
``threatened species'' rangewide using the same process as explained 
above. We could determine that a species is neither endangered nor 
threatened throughout all of its range under two circumstances: (1) 
Threats throughout the range of the species have been sufficiently 
ameliorated and all populations of the species are secure; or (2) some 
threats to the species have been ameliorated and the species is secure 
in a portion of its range. (In other words, a species cannot be 
endangered or threatened throughout all of its range if it is secure in 
a portion of its range; however, it still could be endangered or 
threatened in another portion of its range.) If we examine the status 
of a listed species rangewide and determine it is neither endangered 
nor threatened throughout all of its range, we would then ask whether 
it is endangered or threatened throughout an SPR. Under the first 
scenario, we would likely not identify any portion for further SPR 
analysis since no area is likely to be endangered or threatened (i.e., 
no remaining unaddressed threats). Under the second scenario, we would 
consider whether the remaining threats cause the species to be 
endangered or threatened throughout an SPR. We may find that some areas 
of the species' range still experience threats, but these areas are not 
SPRs. In that case, we would conclude the species does not meet the 
definition of an ``endangered species'' or ``threatened species,'' and 
we would propose to delist the species.
    Comment (93): Several commenters suggested that the draft policy 
would exacerbate the problem of the ``virtually irreversible nature'' 
of listings, and suggested returning to the position taken in the M-
Opinion. The Wisconsin Department of Natural Resources also opined that 
the draft policy's interpretation may make it more

[[Page 37604]]

difficult for species to be delisted and their management turned over 
to the States.
    Response: The Services disagree. As discussed in section VI. 
Effects of Policy, the Services anticipate there would be relatively 
few circumstances in which the SPR language would change the outcome of 
a listing or delisting determination. Furthermore, some delistings have 
occurred since the Services have begun to apply an analysis consistent 
with the one adopted here. For example, since the M-Opinion was 
withdrawn in May of 2011, the Services have delisted, due to recovery, 
the Tennessee purple coneflower (76 FR 46632, August 3, 2011), Lake 
Erie watersnake (76 FR 50680, August 16, 2011), Concho watersnake (76 
FR 66780, October 27, 2011), Magazine Mountain shagreen (78 FR 28513, 
May 15, 2013), Morelet's crocodile (77 FR 30820, May 23, 2012), and 
eastern DPS of Steller sea lion (78 FR 66139, November 4, 2013). A 
number of other species have been proposed to be delisted.
    Comment (94): The Arizona Game and Fish Department suggested the 
Services should discuss the impact of this policy on the monitoring of 
species following their removal from the Lists of Endangered and 
Threatened Wildlife and Plants.
    Response: This final policy will affect only future listing 
determinations (including delistings and reclassifications). We do not 
anticipate changing existing monitoring plans as a result of this 
policy. Moreover, the process and standards for future post-delisting 
monitoring will not change. We will still direct monitoring resources 
first to those areas where the species had previously experienced 
significant adverse impacts. Those areas will be identified in the 
delisting rule. Of course, if monitoring of a delisted species leads us 
to conclude that a species again warrants listing, including because of 
threats in an SPR, we may initiate a new listing process for that 
species.
    Comment (95): The Arizona Game and Fish Department suggested that 
all previous listing determinations made under the now withdrawn M-
Opinion must be reexamined. The agency appeared to be concerned that we 
may convert any existing listings to rangewide listings.
    Response: During the time the M-Opinion was in effect (2007-2011), 
FWS made a number of listing determinations, some of which resulted in 
listings and some of which ended in negative findings on listing 
petitions. Most of these listings were based on information about the 
status of the species throughout its range; only a handful turned on 
consideration of the species' status throughout an SPR. Only two final 
listing rules based on consideration of status throughout an SPR 
resulted from application of the M-Opinion (concerning Northern Rocky 
Mountain wolves (74 FR 15123, April 2, 2009) and Preble's meadow 
jumping mouse (73 FR 39790, July 10, 2008)), and both of these have 
been modified or nullified for different reasons and thus are not 
subject to revision as the commenter suggests.
    We do not intend to reexamine every listing determination that was 
made while the M-Opinion was in effect. Regulations and policies are 
generally presumed to have prospective (forward-looking) impact only. 
Further, consistent with the presumption of regularity of agency 
decisions, all listing determinations are presumed consistent with the 
then-existing guidance. Of course, anyone may petition us to reconsider 
any listing determination if there is a basis to think the result would 
be different under this final policy. It is unlikely, though, that a 
species that was found not to qualify for listing during the time in 
which the M-Opinion was in effect would be found to meet the standards 
of this policy.

L. Effects on Implementation of Other Portions of the Act

    Comment (96): Some commenters urged the Services to ensure that, in 
applying the policy, we use all available tools to limit application of 
the statutory protections for ``endangered species'' and ``threatened 
species'' only to those members of the species in the SPR that is the 
basis for a listing determination. Montana Fish, Wildlife & Parks, for 
example, suggested that there needs to be more emphasis on utilizing 
available tools under the Act in a creative manner to provide 
regulatory relief and other incentives in areas where a species is 
doing well and a commitment to work with regulated entities to provide 
regulatory relief.
    Response: The Services are committed to working with stakeholders 
to develop innovative ways to further species protection consistent 
with the statute. As we explained in the preamble to the draft policy 
(76 FR 76987), the Services intend to use the flexibilities of the 
statute to tailor protections to those members of the species most at 
risk whenever possible. Where the statute permits flexibility, the 
Services will use it to promote conservation without causing 
unnecessary burdens that provide no benefit to the species. However, 
because the Act requires us to list and manage entire species, 
subspecies, or DPSs, the Services may not always be free to craft ideal 
solutions that would satisfy all stakeholders. The purposes of the Act 
go beyond just recognizing where a species has already become 
imperiled. The ultimate goal is to bring species to the point where the 
protections are no longer needed, which means managing the listed 
entity to bring the health of the entity as a whole to that point. In 
some cases protecting members outside the SPR may be necessary or 
important to this overall goal.
    Comment (97): Several commenters (including the Florida Fish and 
Wildlife Conservation Commission and Montana Fish, Wildlife & Parks) 
requested that the Services revise the text of the draft policy itself 
to include additional detail from the discussion in the preamble as to 
the tools and methods that would be used to minimize unintended 
consequences and avoid over-regulation, with reference to several 
specific sections of the Act. Other commenters requested we develop 
additional guidance to explain how the Services plan to use available 
tools to increase the efficiency of section 7 consultations for species 
listed on the basis of status throughout an SPR. Some commenters, 
including the Idaho Office of Species Conservation, suggested that we 
failed to give adequate consideration to the burdens that will be 
caused by the policy, particularly in relation to section 7 
consultations and permitting under section 10 of the Act.
    Response: The role of the language in the actual policy statement 
is to concisely set out the fundamental principles that constitute the 
Services' interpretation of the key phrase ``significant portion of its 
range.'' While we have provided discussion of issues regarding the need 
for flexibility in applying other portions of the Act above, we find it 
unnecessary to expand the policy statement itself to discuss these 
ancillary issues. Further, we have adequately considered any additional 
regulatory burdens that might result from this policy. We specifically 
considered this issue in developing this policy and in setting the 
threshold for SPRs. The Services expect that the policy is unlikely to 
lead to many new listings on the basis of an SPR, suggesting that it 
would not be a wise use of agency resources to develop detailed 
guidance at this time. As explained in section VI. Effects of Policy, 
where threats vary across the range of a species, we may use methods 
such as programmatic consultations, low-effect HCPs, or other methods 
to streamline consultation and permitting

[[Page 37605]]

procedures for areas where the species is relatively more secure or the 
effects of the action are small. We expect these same analyses and 
procedures to be applicable regardless of whether a species is listed 
because of its status throughout an SPR or throughout all of its range. 
It does not appear that developing guidance in detail for species 
listed on the basis of their status throughout an SPR would be a 
valuable use of our resources because all consultations are driven by 
highly fact-specific considerations. If these issues in practice arise 
more frequently or pose more difficulty than expected at this time, the 
Services will consider developing further guidance for agency staff.
    Comment (98): Some commenters requested that the Services expressly 
limit designations of critical habitat for species listed on the basis 
of SPR to avoid undue impacts to projects that would have effects 
outside the SPR. Some suggested that the Services should adopt a ``high 
threshold'' or ``rebuttable presumption'' that would limit a 
designation of critical habitat to the area within the SPR that was the 
basis for listing the species. Appearing to key off of the distinction 
in the statutory definition between ``occupied'' and ``unoccupied'' 
habitat, these commenters suggested that a designation of critical 
habitat should first focus on the physical and biological features (or 
primary constituent elements) inside the SPR and should include areas 
outside the SPR only upon a finding that the area inside the SPR would 
not satisfy the purposes of critical habitat designation.
    Response: All provisions governing designations of critical 
habitat, including the definition in section 3(5) of the Act, must be 
applied for species listed on the basis of an SPR analysis in the same 
manner as for any other listed species. Thus, since a listing based on 
an SPR analysis is of the entire listed entity, not just the members in 
the SPR, it would be incorrect to apply the provisions governing 
habitat occupied at the time of listing to only the areas within the 
SPR and ignore other areas where members of the listed entity are 
present. Also, it would not be appropriate to categorically or 
presumptively foreclose designation of areas outside the SPR, as we 
discussed in the preamble to the draft policy (76 FR 76987, pp. 77003-
77004.). In light of the strong conservation purpose of critical 
habitat and the definition of ``conservation'' as meaning all tools 
useful to bring a species to the point where the protections of the Act 
are no longer needed, we must consider the role all suitable habitat 
can play in supporting species' recovery. However, while we cannot 
agree that areas outside the SPR should be disqualified from the scope 
of areas that may meet the definition of ``critical habitat,'' we note 
that the impacts analysis and discretionary exclusions process of 
section 4(b)(2) of the Act are key mechanisms for tailoring 
designations to the areas where conservation benefits are greatest and 
not outweighed by other impacts. As we have indicated, we would expect 
the Secretary to consider using his or her discretion to tailor 
designations where threats are present in only a portion of the range.
    Comment (99): Some commenters suggested that section 4(c)(1) of the 
Act provides a basis upon which to limit the scope of critical habitat 
designations to the areas within an SPR. They argued that the text of 
section 4(c)(1) should be interpreted as a substantive grant of 
authority to the Services to tailor a critical habitat designation to 
those areas within the SPR.
    Response: Section 4(c)(1) of the Act simply has no substantive 
bearing on the scope of critical habitat designations. As we have 
explained, we adopt the view of the courts that have recently held that 
section 4(c)(1) is meant to serve an informational purpose rather than 
substantively constraining the scope of either listings or, by 
extension, critical habitat designations. Further, even if section 
4(c)(1) had substantive meaning, the commenters appear to misread the 
last clause of section 4(c)(1), which does not refer to ``such 
portion'' but refers to ``such range.''
    Comment (100): One commenter asked that the Services confirm they 
will exclude under section 4(b)(2) of the Act those areas where 
benefits of exclusion outweigh benefits of inclusion, except where 
exclusion would result in extinction of the species. (Another commenter 
acknowledged that section 4(b)(2) ``enables'' the Services to exclude 
areas rather than requires them.) Another suggested that there could 
never be a circumstance where failure to include an area could result 
in extinction of the species (which is the only circumstance in which 
section 4(b)(2) prohibits excluding a specific area) and that the net 
benefits analysis will likely always lean in favor of exclusion.
    Response: We agree, as we have indicated in our draft policy (76 FR 
76987, p. 77003) and in our response to Comment (98), above, that our 
authority to exclude areas from critical habitat designations may be an 
important tool in tailoring protections for a species listed because of 
its status throughout an SPR. However, it is important to understand 
that the application of the authority to exclude areas under section 
4(b)(2) of the Act is discretionary rather than mandatory. While the 
Secretary must ``consider'' economic and other relevant impacts prior 
to designating, he or she is not required to undertake a particular 
method of analysis and is not required to weigh benefits of exclusion 
against benefits of inclusion. Exclusions under section 4(b)(2) are 
always discretionary (see Building Industry Association (BIA) v. DOC, 
No. C 11-4118 PJH, 2012 WL 6002511, *5-7 (N.D. Cal. Nov. 30, 2012) 
(green sturgeon)).
    Comment (101): One commenter suggested that the Services should 
include a statement of intent to limit critical habitat designations to 
areas within the SPR in any new policy regarding application of section 
4(b)(2) and perhaps in the handbook.
    Response: We clarified above (e.g., response to Comment (100)) the 
role of section 4(b)(2) of the Act in appropriately tailoring critical 
habitat designations. At this time we do not see a need to separately 
address these issues through other policies or documents not within the 
scope of the policy being adopted. If in practice there are more 
listings on the basis of SPR than we currently expect, such that these 
issues arise frequently or otherwise need further clarification, we may 
consider promulgating additional guidance.
    Comment (102): One commenter suggested that a February 28, 2012, 
Presidential Memorandum addressing FWS' designation of critical habitat 
for the northern spotted owl directed the Services to exclude private 
lands from all critical habitat designations.
    Response: The commenter misconstrues the scope and effect of the 
cited memorandum. In any event, these issues are beyond the scope of 
the present policy, which is focused on the interpretation of the 
``significant portion of its range'' language in the definitions of 
``endangered species'' and ``threatened species.'' We have separately 
amended the regulations governing the designation of critical habitat 
(50 CFR 424.19) to respond to the memorandum (78 FR 53058, August 28, 
2013).
    Comment (103): Several commenters (including the Alaska Department 
of Fish and Game and Southern Nevada Water Authority) expressed 
concerns about how this policy was intended to influence the conduct of 
interagency consultation under section 7(a)(2) of the Act. Some appear 
to believe that the Services intend to categorically consider any 
action that would have an adverse

[[Page 37606]]

effect on members in an SPR to be likely to jeopardize the listed 
species' continued existence. For example, the Alaska Department of 
Fish and Game suggested the Services need to explain, ``whether a 
jeopardy determination would differ if the proposed project affected 
species outside the SPR as opposed to within the SPR. It also does not 
address whether the Services would be more likely to make a `no 
jeopardy' finding if a project is conducted outside of the SPR with no 
direct impact on the individuals within the SPR.''
    Response: We must make determinations under section 7(a)(2) of the 
Act based on a review of the best available scientific and commercial 
data assessed at the level of the entire listed entity (species/
subspecies/DPS). It has always been the case that impacts to 
particularly sensitive or critical members of the listed entity may be 
found to appreciably reduce the likelihood of survival or recovery of 
the entire species, such as if those members are a critical breeding 
population. This is very fact-specific. This policy does not establish 
a presumption that a proposed Federal action that would adversely 
affect the members in an SPR will automatically result in a jeopardy 
determination under section 7(a)(2). Nor does this policy suggest that 
impacts to members that are not located within the SPR will 
automatically be found not likely to jeopardize the species. We will 
analyze each situation on its own facts.
    Comment (104): The Alaska Department of Fish and Game suggested 
that one of the methods available to the Services to streamline 
consultation would be to use section 4(d) rules at the listing stage to 
tailor protections, and requested the Services to explain how the draft 
policy would influence issuance of section 4(d) rules.
    Response: As discussed further in the section of this document 
discussing rules issued under section 4(d) of the Act (see section 
VI.B., below), we agree that the ability to issue section 4(d) rules to 
tailor protections for threatened species may be particularly important 
for species listed on the basis of an SPR analysis. Thus, where 
appropriate, we will consider whether certain activities in certain 
areas can be exempted from the take prohibition of section 9 of the Act 
even where those prohibitions are generally being applied for that 
species. However, section 7(a)(2) creates independent obligations on 
Federal agencies to avoid authorizing, funding, or carrying out actions 
that would be likely to appreciably reduce the likelihood of survival 
or recovery of listed species or to destroy or adversely modify their 
critical habitat. Thus, even where the Services have tailored take 
protections for threatened species, this would not relieve Federal 
agencies of their consultation obligations.
    Comment (105): One commenter seemed to question whether NMFS or FWS 
would engage in ``consultation'' with foreign countries in the event 
that a species is listed rangewide even though only a portion of its 
range (and perhaps only insignificant portions) falls within the United 
States, its territories, or its Exclusive Economic Zone (EEZ). The 
commenter further suggested that the lack of ability to apply 
protections outside the United States should influence how the Services 
apply this policy in reaching listing determinations.
    Response: Section 7(a)(2) of the Act does not apply to foreign 
governments, so we do not engage in ``consultations'' with foreign 
nations in the sense that that term is used in connection with section 
7. However, we inform affected countries of potential listings and seek 
information in return. We also provide some technical assistance after 
listing when requested and feasible. In any event, our limited ability 
to regulate the species outside of the United States does not factor 
into either the development of this policy or individual listing 
determinations. Listing determinations must be based solely on the best 
available scientific and commercial data after taking into account 
certain factors as specified in section 4 of the Act. Our authority to 
list species worldwide has been an acknowledged feature of the Act and 
its precursors, without regard to our limited ability to apply the 
protections of the Act outside of the United States, its territories, 
its EEZ, and on the high seas. This final SPR policy will in no way 
affect the current framework.
    Comment (106): Some commenters (including the Governor of Wyoming 
and Alaska Department of Fish and Game) suggest that the Services 
should choose to list species as threatened whenever possible, instead 
of basing a listing on an endangered status inside an SPR, so that the 
Services may take advantage of the ability to promulgate rules under 
section 4(d) of the Act.
    Response: We have revised the definition of ``significant'' in this 
final policy. Under the new definition, it will not be possible for a 
species to be simultaneously classified as threatened throughout its 
range and endangered throughout an SPR. Thus, the commenters' 
suggestion is no longer relevant. Of course, where a species is listed 
as threatened, each agency will continue its practice of considering 
whether a rule promulgated under section 4(d) of the Act would be 
appropriate.
    Comment (107): At least one commenter suggested that the Services 
should clarify in the final policy that section 4(d) has two distinct 
provisions, and that rules under the first requires a ``necessary and 
advisable'' finding, while rules under the second (determining whether 
to apply the take prohibitions) do not.
    Response: While we acknowledge that this has been recognized by 
courts as a permissible reading of section 4(d) of the Act, most 
recently in the polar bear litigation, it is beyond the scope of the 
SPR policy to construe section 4(d) at this level of detail (see In Re 
Polar Bear Endangered Species Act Listing And Sec.  4(D) Rule 
Litigation, 818 F.Supp.2d 214, 228 (D.D.C. 2011)).
    Comment (108): The Governor of Wyoming stated that the Act's 
``policy reform needs to address implementing laws particularly prone 
to litigation.''
    Response: This policy is an attempt to address an issue that has 
frequently led to litigation. It is beyond the scope of the current 
effort to comprehensively address other areas of the Act that could 
benefit from reform.
    Comment (109): The Arizona Game and Fish Department suggests that 
the policy, if approved, should ``more thoroughly describe how it would 
be applied during development of Recovery Plans.''
    Response: As discussed in section III.F., above, we reiterate that 
we anticipate recovery planning to focus first on ameliorating threats 
in the SPR. This is consistent with current practice--our traditional 
and reasonable approach, even for species not listed on the basis of an 
SPR, has been to focus on the areas where members face greatest peril. 
However, members of the species outside the SPR should not be ignored 
in planning for overall species conservation and recovery.
    Comment (110): One commenter suggested the agencies need to explain 
how implementation of the SPR policy can be harmonized with the 
candidate-review process and the process to implement FWS' settlements 
with WildEarth Guardians and the Center for Biological Diversity.
    Response: In reviewing whether a species is a candidate (or should 
be removed from the candidate list), FWS considers the same definitions 
of ``endangered species'' and ``threatened species,'' including the SPR 
phrase, as we would for a proposed listing determination or any other 
status review. As candidate species are reviewed for either proposed 
listing or for removal from the candidate list as a

[[Page 37607]]

result of conservation actions or changed status, FWS will apply the 
definitions of ``endangered species'' and ``threatened species'' using 
the same process we have outlined in section III.F., above. If FWS 
determines a candidate species is not currently endangered or 
threatened throughout all of its range, we will consider whether there 
are any portions that may be both (1) significant and (2) endangered or 
threatened. If the species is endangered or threatened throughout an 
SPR, it would remain a candidate or be proposed for listing. If it is 
not currently endangered or threatened throughout all of its range and 
it is also not endangered or threatened throughout any SPR, then FWS 
would remove the species from the candidate list. This process will 
apply to all FWS determinations, regardless of any settlement 
agreements to complete such determinations--settlement agreements 
require that we make a determination by a date certain, but do not 
alter the standards the Services must apply to those determinations.
    Comment (111): One commenter suggested that FWS should give SPR 
candidates a low priority under its listing priority guidelines, and 
that the Services should make greater use of their authority to make 
warranted-but-precluded findings.
    Response: FWS follows the current listing priority guidance (48 FR 
43098, September 21, 1983) for assigning priorities to listing actions 
in order to make the most appropriate use of the limited resources 
available to implement the Act. The priority of a species depends on 
the magnitude of threats, the imminence of threats, and the taxonomic 
distinctness of the species (monotypic genus, species, or subspecies or 
DPS). Under this system, FWS assigns a ranking to a candidate species 
at the level of the entity considered for listing (species, subspecies, 
or DPS). FWS will apply this system to any species that is a candidate 
because of its endangered or threatened status throughout an SPR. 
Because the entity that would be listed is the entire species (not just 
the SPR), FWS will determine the ranking with respect to the species as 
a whole. In other words, FWS will consider the magnitude and imminence 
of threats to the entire species, not just the SPR. It is likely that a 
species that is a candidate because it is endangered or threatened 
throughout an SPR will not be experiencing the same level of threats 
throughout its range, or will not be experiencing threats that are 
currently acting on the entire range of the species. Thus, such a 
candidate may be ranked relatively lowly based on magnitude and 
imminence of threats. In other words, the current system, while not 
explicitly addressing ranking of a species that is a candidate because 
it is endangered or threatened throughout an SPR, allows for 
considering differences in the magnitude and imminence of threats that 
are likely to occur between species that are endangered or threatened 
throughout all their range and species that are endangered or 
threatened throughout an SPR.
    We noted that NMFS' definition of ``candidate species'' differs 
from that of FWS, and therefore the language above applies only to FWS. 
NMFS' candidate species are those petitioned species that are actively 
being considered for listing as endangered or threatened under the Act, 
as well as those species for which NMFS has initiated a status review 
that it has announced in the Federal Register (69 FR 19975, April 15, 
2004; 71 FR 61022, October 17, 2006).
    With regard to our authority to make warranted-but-precluded 
findings, the Services can only make those findings to the extent that 
prioritization of proposals and available resources allow, and 
expeditious progress on adding to and removing species from the Lists 
of Endangered and Threatened Wildlife and Plants can be demonstrated. 
To the extent that a species that is a FWS candidate because it is 
endangered or threatened throughout an SPR will tend to have lower 
priority rankings than other species, it may be more likely that FWS 
would make a warranted-but-precluding finding for it.

M. Procedural Requirements and Compliance With Laws

    Comment (112): Several commenters stated that the SPR policy is a 
major Federal action and, as such, the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) requires the preparation of an 
environmental impact statement.
    Response: We conducted an environment assessment, which concluded 
with a finding of no significant impact (FONSI). Under NEPA, an 
environmental impact statement is not required. See the discussion of 
NEPA under VII. Required Determinations, below, and in the FONSI.
    Comment (113): Several commenters stated that the required 
determinations (explaining compliance with various procedural 
requirements imposed by statutes and executive orders) in the Federal 
Register notice announcing the draft policy were inadequate.
    Response: We disagree. Specific criticisms are addressed 
individually below.
    Comment (114): One commenter suggested that the policy was contrary 
to Executive Order 13563.
    Response: We disagree. This is not a circumstance in which the 
Secretaries have complete discretion delegated by Congress as to the 
scope or substance of regulation. Here, we have determined that the 
most defensible legal interpretation of the Act is the one set forth in 
this policy. Nothing in the Executive Order suggests that agencies 
should take legally unsound positions to reduce regulation.
    Comment (115): One commenter stated that we misrepresented the 
effect of the policy on small entities. The commenter asserted that the 
policy will expand listings and require small businesses to get 
incidental take permits. The commenter further argued that the Services 
have no basis for asserting that they are the only entities affected by 
the draft policy. Similar comments were made with respect to State and 
Tribal governments, and local governments bear the burden of section 7 
consultation on public works projects that may affect listed species. 
Another commenter stated that the draft policy would have resulted in 
gray wolves remaining listed in Montana and Wyoming, which would have 
placed unreasonable burdens on small businesses.
    Response: The discussion of small-business impacts in the draft 
policy did not assert that no small businesses would be affected; 
rather, it concluded that no small businesses would be directly 
regulated. The draft policy went on to explain that we predict that few 
small entities, including governments, will even be affected because 
the policy is likely to result in only a small number of additional 
listings (even when compared to no implementation of the SPR language 
at all, which is not a legally sound option). As discussed below in 
section VII.B., a regulatory flexibility analysis is only required if a 
Federal action directly regulates small entities. The Services' current 
understanding is that this position is supported by existing case law 
regarding the certification requirements under the Regulatory 
Flexibility Act (RFA), the Small Business Regulatory Enforcement 
Fairness Act (SBREFA), and SBA's handbook, ``A guide for Government 
Agencies: How To Comply With the Regulatory Flexibility Act (2003). 
However, it is the current practice of the Services to assess, to the 
extent practicable, these potential impacts if sufficient data are 
available, whether or not this analysis is believed by the Services to 
be strictly required by the RFA. In addition, we noted

[[Page 37608]]

elsewhere in the draft policy that where a species is listed as 
threatened, the take prohibitions may be tailored under section 4(d) of 
the Act so as not to apply throughout its range. Finally, contrary to 
the assertion of one commenter, if the draft policy had been applied to 
the Northern Rocky Mountain DPS of gray wolves in 2009, it is not clear 
what the result would have been. In any case, that point is moot due to 
subsequent congressional action.
    Comment (116): One commenter asserted our conclusion that the draft 
policy would not have significant takings implications is incorrect. 
According to the commenter, the examples of delta smelt, northern 
spotted owl, and others demonstrate that the policy would present a 
barrier to all reasonable and beneficial use of private property 
affected by listings that result from the policy.
    Response: We stand by our analysis in the draft policy. We are 
unaware of any court having found that a listing under the Act imposes 
a taking under the Fifth Amendment of the Constitution. Therefore, even 
to the extent that this policy leads to the listing of a species that 
would not otherwise be listed, this policy will not cause a taking 
under the Fifth Amendment. See our statement below under section VII.D.
    Comment (117): One commenter asserted that we misstated the draft 
policy's federalism implications and that the policy would turn the Act 
into a massive land-use and zoning program administered by the Federal 
Government, obviating State authority. Another commenter asserted that 
our federalism conclusions are incorrect because listing determinations 
have great impacts on States and local communities, and the policy will 
create a disincentive on proactive State conservation.
    Response: We disagree. In some circumstances, listing 
determinations can have impacts on States and local communities, but, 
as discussed elsewhere, we predict that relatively few listing 
decisions will turn on application of this policy, so this policy is 
likely only in rare circumstances to have impacts on States and local 
communities. In any case, as we stated in the draft policy, any impacts 
would not be ``substantial, direct effects,'' the threshold under 
Executive Order 13132 (Federalism). Moreover, in no case does the Act, 
with or without this policy, supplant State authority to regulate land 
use or zoning.
    Comment (118): One commenter asserted that we misstate the policy's 
effect on energy supplies, distribution, or use, and cited the example 
of proposed energy regulations adopted by Bureau of Land Management in 
anticipation of protection of the greater sage-grouse.
    Response: We disagree. Although listing species under the Act can 
indirectly affect energy, as discussed elsewhere, we predict that 
relatively few listing decisions will turn on application of this 
policy. See our statement below under section VII.J.
    Comment (119): One commenter suggested that we add a discussion of 
how we will incorporate the Information Quality Act (IQA; Pub. L. 106-
554) and presidential directives into the process for evaluating 
species under the SPR policy.
    Response: The Services, in accordance with our July 1, 1994, peer 
review policy (59 FR 34270) and the Office of Management and Budget's 
December 16, 2004, Final Information Quality Bulletin for Peer Review, 
solicit independent scientific review of the information and analyses 
contained in our proposed listing determinations under the Act. This 
review usually occurs concurrently with the public comment period for 
the proposed action. Peer review would include consideration of the 
adequacy of the data relied on, the analyses, and the conclusions 
drawn, including any analyses of potential SPRs. In addition to 
conducting peer review where appropriate, the Services conduct pre-
dissemination review of information to ensure compliance with 
applicable Information Quality Act guidelines. The Services will follow 
the same procedures and policies for peer review of influential 
scientific documents and other supporting information for all listing 
determinations, including those that may be based on a species' status 
throughout an SPR. This SPR policy does not alter those procedures and 
the Services are committed to conducting peer review and pre-
dissemination review for all determinations as part of the process of 
ensuring our decisions are based on the best scientific and commercial 
data available.
    Comment (120): Colorado Parks and Wildlife asserted that the draft 
policy is inconsistent with the 1994 Interagency Cooperative Policy 
Regarding the Role of State Agencies in Endangered Species Act 
Activities (59 FR 34274, July 1, 1994).
    Response: The 1994 policy referred to by the commenter provides 
guidance on how we will involve the States in prelisting, listing, 
section 7 consultation, habitat conservation planning, and recovery. 
The 1994 policy requires us to utilize the expertise and solicit 
information from the States, and to provide notification to the States 
regarding particular prelisting and listing actions. This final SPR 
policy is not a particular prelisting or listing action. Nonetheless, 
the SPR policy will apply to those actions, and we will continue to 
implement the 1994 policy by notifying the States of those actions. 
Additionally, as noted in our response to Comment (5), we have been in 
close contact with the Joint Task Force concerning this issue.
    Comment (121): One commenter asserted that we must complete a 
comprehensive evaluation of the costs that will be caused by the draft 
policy, including consideration of small businesses.
    Response: We completed all required analyses; see section VII. 
Required Determinations, below.
    Comment (122): Several commenters asserted that we should be 
engaged in Administrative Procedure Act (APA; 5 U.S.C. chapter 5, 
subchapter II) legislative rulemaking (or ``full notice and comment 
rulemaking''), not adopting a ``policy.'' They further commented that 
the policy will have the effect of modifying the existing regulations, 
and requires a revision of the Code of Federal Regulations.
    Response: Labeling a document a ``policy'' or choosing not to 
include it in the Code of Federal Regulations is not inconsistent with 
APA rulemaking. In fact, in promulgating this policy, the Services have 
purposefully used the processes required for APA rules, including 
public notice of and opportunity for comment on the draft policy, even 
if they may not have been required, in order to ensure full compliance 
with the APA. Moreover, the Services have indicated that we intend to 
be bound by the policy. Thus, the Services are effectively treating 
this policy as an APA rulemaking. We note that several of these 
comments recommended ``formal'' APA rulemaking. As ``formal 
rulemaking'' is a technical term for a rare, trial-like proceeding 
required by statutes that require rules to be made ``on the record 
after opportunity for an agency hearing,'' 5 U.S.C. 553(c), we assume 
that these were references to ``informal rulemaking'' under 5 U.S.C. 
553 (commonly referred to as notice-and-comment rulemaking).
    Comment (123): One commenter asserted that the draft policy is 
inconsistent with 50 CFR 424.10, which states that the Secretary may 
list species ``only in accordance with the procedures of [part 424]'' 
and stated that listing a species like the western snowy plover 
(currently listed as a threatened species) as an endangered species if

[[Page 37609]]

FWS determines that it is endangered throughout a significant portion 
of its range would violate the express provisions of 50 CFR 424.10.
    Response: Nothing in the policy is inconsistent with the current 
regulations, as the current regulations do not elaborate on the 
statutory definitions of ``endangered species'' and threatened 
species,'' and, in particular, are silent as to the meaning or 
application of ``significant portion of its range.'' The policy merely 
clarifies how we will implement the statute under the current 
regulations. Therefore, no revision to the regulations is necessary. In 
any case, under the final policy, we could not determine that a species 
that is threatened throughout all of its range, like the western snowy 
plover, is endangered throughout an SPR.

V. Policy

    Consequences of a species being endangered or threatened throughout 
a significant portion of its range:
    The phrase ``significant portion of its range'' in 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 throughout only 
a significant portion of its range.
    If a species is found to be endangered or threatened throughout 
only a significant portion of its range, the entire species is listed 
as endangered or threatened, respectively, and the Act's protections 
apply to all individuals of the species wherever found.
    Significant: A portion of the range of a species is ``significant'' 
if the species is not currently endangered or threatened throughout its 
range, but the portion's contribution to the viability of the species 
is so important that, without the members in that portion, the species 
would be in danger of extinction, or likely to become so in the 
foreseeable future, throughout all of its range.
    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.
    Reconciling SPR with DPS authority: If the species is endangered or 
threatened throughout 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.

VI. Effects of Policy

    This 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 will be to classify as 
``significant'' (or not) 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'' will 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 policy may 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 will occur only under a limited set of 
circumstances. Under most circumstances, we anticipate that the 
outcomes of our status determinations with or without the policy will 
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 
will be listed throughout all of its range under this policy. Another 
key difference is that, in implementing the M-Opinion on a case-by-case 
basis, FWS generally interpreted ``significant'' as having a relatively 
lower threshold (a portion only had to meaningfully contribute to the 
viability of the whole species). FWS's experience with implementing the 
M-Opinion suggests that listings based on application of this policy 
will be relatively uncommon. During the time that the M-Opinion was in 
effect, between March 2007 and May 2011, FWS determined that a species 
should be listed based on its status throughout a significant portion 
of its range only five times. Under this policy, in those instances 
where we list a species because of its status throughout a significant 
portion of its range, protections will be applied throughout the 
species' range, rather than just in the portion. This outcome is 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 throughout 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 has reached a point that it has become endangered or threatened 
throughout all its range.
    Once we determine that a species is endangered or threatened, the 
provisions of the Act are applied in a straightforward manner, 
regardless of whether the species was listed because it is endangered 
or threatened throughout all its range or only throughout a significant 
portion of its range.

A. Designation of Critical Habitat

    If a species is listed because it is endangered or threatened 
throughout a significant portion of its range, the Services will 
designate critical habitat for the species (within areas under the 
jurisdiction of the United States) to the maximum extent prudent and 
determinable. We will use the same process for designating critical 
habitat for species regardless of whether they are listed because they 
are endangered or threatened throughout 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 throughout a significant 
portion of its range, the designation of critical habitat

[[Page 37610]]

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 find that the benefits of excluding an area 
from designation outweigh the benefits of specifying the area as 
critical habitat, which may lead to an exclusion under section 4(b)(2) 
of the Act.

B. Rules Promulgated Under Section 4(d) of the Act

    Determining that a species is threatened throughout 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 regulations 
``necessary and advisable to provide for the conservation'' of the 
species. This provision allows us to tailor regulations to the needs of 
the species. When a species is listed as threatened because of its 
status throughout an SPR, we will consider the development of a section 
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 throughout 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, the recovery plan 
predicts that when those 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 throughout 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 throughout which the 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 policy's standard 
for ``significant'' (i.e., loss of the species in the SPR would no 
longer cause the remainder to become endangered or threatened).

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 throughout only a significant portion of its range, the 
provisions of the Act apply to the entire species. A Federal agency is 
required to consult with FWS or NMFS under the jeopardy standard of 
section 7 of the Act if its actions may affect an endangered or 
threatened species anywhere in its range. Jeopardy analyses will be 
conducted at the scale of the species as a whole. Where threats vary 
across the range of a species, we may streamline consultation processes 
in areas where the species is 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 throughout only significant 
portions of their ranges. Similarly, analyses for issuing permits and 
exemptions under section 10 of the Act will apply throughout the 
species' range, and we will 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 throughout a significant portion 
of its range, the prohibitions under section 9 of the Act will apply 
throughout the species' range for endangered species, and as 
established by rules promulgated pursuant to section 4(d) of the Act 
for species listed as threatened.

VII. Required Determinations

A. Regulatory Planning and Review (E.O.s 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant regulations. OIRA has determined that this 
policy is significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this policy in a manner consistent 
with these requirements.

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 will not have a 
significant economic effect on a substantial number of small entities. 
The following discussion explains our rationale.
    This policy establishes binding requirements for NMFS and FWS in 
making listing determinations under the Endangered Species Act. NMFS 
and FWS will apply this policy 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 will affect our determinations in only a limited number 
of circumstances,

[[Page 37611]]

resulting in only a small number of additional species listed under the 
Act and application of the Act's protective regulations. Moreover, a 
regulatory flexibility analysis is only required if a Federal action 
directly regulates small entities; it is not sufficient that the action 
merely affects a small entity in some indirect manner. The Services' 
current understanding is that this position is supported by existing 
case law regarding the certification requirements under the Regulatory 
Flexibility Act (RFA), the Small Business Regulatory Enforcement 
Fairness Act (SBREFA), and SBA's handbook, ``A guide for Government 
Agencies: How To Comply With the Regulatory Flexibility Act (2003). 
However, it is the current practice of the Services to assess, to the 
extent practicable, these potential impacts if sufficient data are 
available, whether or not this analysis is believed by the Services to 
be strictly required by the RFA.
    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 throughout an SPR. We, therefore, cannot predict which 
entities (other than the Services) could even potentially be affected, 
much less directly regulated, by listing a species as endangered or 
threatened based on its status throughout an SPR or the extent of those 
potential impacts. Nonetheless, and given the reasons discussed in this 
document under section VI. Effects of Policy and our experience 
implementing the Act, we expect that few, if any, entities would be 
indirectly affected in any way, and none would be directly regulated.
    Moreover, NMFS and FWS are the only entities that are bound, and 
therefore directly regulated, by this policy, and they are not small 
entities under the Regulatory Flexibility Act. As discussed above, no 
other entities are directly regulated by this policy. Therefore, this 
policy will not have a significant economic effect on a substantial 
number of small entities.

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

D. Takings (E.O. 12630)

    In accordance with Executive Order 12630, this policy will not have 
significant takings implications. This policy will 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) will not effectively compel a property owner to 
suffer a physical invasion of property and (2) will not deny all 
economically beneficial or productive use of the land or aquatic 
resources. This policy will substantially advance a legitimate 
government interest (conservation and recovery of endangered and 
threatened species) and will not present a barrier to all reasonable 
and expected beneficial use of private property.

E. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this policy will have significant Federalism effects and have 
determined that a federalism summary impact statement is not required. 
This policy pertains only to determinations to list, delist, or 
reclassify species under section 4 of the Act, and will not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This 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 policy clarifies 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 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 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 throughout an SPR. We, 
therefore, cannot predict which entities, including federally 
recognized Indian tribes, will be affected by listing a species as 
endangered or threatened based on its status throughout an SPR or the 
extent of those impacts. Given our experience implementing the Act, we 
predict that few if any entities, including tribes, will 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 making 
a final decision. Our proposed rules to list, delist, or reclassify 
species 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 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 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.

I. National Environmental Policy Act

    We have analyzed this 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

[[Page 37612]]

Administration (NOAA) Administrative Order 216-6, and prepared an 
environmental assessment documenting our analysis. The environmental 
assessment presents the purpose of and need for this SPR policy, the 
proposed action and alternatives, and an evaluation of the effects of 
the alternatives under the requirements of NEPA, as implemented by the 
Council on Environmental Quality regulations (40 CFR 1500 et seq.) and 
according to the Department of the Interior's NEPA procedures. In our 
analysis of the probable environmental impacts of this SPR policy on 
the human environment, we have determined that there will be no 
significant impacts or effects caused by this SPR policy. The 
environmental assessment, as well as the finding of no significant 
impact (FONSI), is available for public inspection at http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0031.

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

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking actions that significantly affect 
energy supply, distribution, and use. This policy 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.

References Cited

    A complete list of all references cited in this document is 
available on the Internet at http://www.regulations.gov under Docket 
Number FWS-R9-ES-2011-0031 or upon request from the Ecological Services 
Program, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this policy are the staff members of the 
Ecological Services 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: June 18, 2014.
Dan Ashe,
Director, U.S. Fish and Wildlife Service.


    Dated: June 19, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-15216 Filed 6-27-14; 11:15 am]
BILLING CODE 4310-55-P