WSP06932

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 10/1/1984
• Author: Federal Register
• Title: Federal Register - DOI-FWS - DOC-NOAA - Listing Threatened-Endangered Species - Designating Critical Habitat-Amended Procedures to Comply with 1982 Amendments to ESA-Final Rule
• Water Supply Pro - Doc Type: Publication

Ob~951

38900 Federal Register I Vol. 49. No. 191 I Monday, October 1, 1984 I Rules and Regulations

DEPARTMENT OF TIlE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric
Administration

50 CFR Part 424

Listing Endangered and Threatened
Species and Designating Critical
Habitat; Amended Procedures To
Comply With the 1982 Amendments to
the Endangered Species Act

AGENCIES: Fish and Wildlife Service,
Interior; National Marine Fisheries
Service, National Oceanic and
Atmospheric Administration.
Commerce.
ACTION: Final rule.

SUMMARV: The U.S. Fish and Wildlife
Service and the National Marine
Fisheries Service (Services) amend Part
424 of Title 50 of the U.S. Code of
Federal Regulations in order to comply
with changes made in Ihe Endangered
Species Act of 1973 (Act) by the
Endangered Species Act Amendments of
1982 (Amendments). Part 424 is
amended to alter the procedures
followed by the Services in determining
whether species are endangered or
threatened and in designating or
revising critical habilat. Changes are
made in the treatment of petitions from
the public. mandatory time limits for
various actions. standards under which
determinations are made. and other
procedural ma lIers.
EFFECTIVE DATE: This rule takes effect
on October 31.1984.
ADDRESS: The complete file for this rule
is available for inspection, by
appoinfment. during nonnal business
hours: at the Office of Ellrlangered
Species. U.S. Fish and Wildlife Service.
1000 Norlh Glebe Road. Arlington.
Virginia.
FOR FURTHER INFORMATION CONTACT:
Mr. John L. Spinks, Jr.. Chief. Office of
Endangered Species. U.S. Fish and
\Vildlife Service. \Vashington. D.C.
20240 (703/235-2771). or Dr. Charles
kClrnella. Office of Protected Spedes
and Habitat Conservation. National
Marine Fisheries Servir.e. Washington.
D.C. 20235 (202/834-7471).
SUPPLEMENTARY INFORMATION: The
Services first adopted regulations
governing the listing, delisting. and
reclassification of species. and the
designation and revision of critical
habitat. on February 27, 1980 (45 FR
130~2). These regulations are codified at
00 CFR Pari 424. The Endangered

Species Acl Amendments of 1962
became law on October 13. 1982. making
several changes in the required
procedures to be followed under Ihe
Act.
In order to implement the changes of
the Amendments. the Services proposed
to amend 50 CFR Part 424 on August 8,
1983 (48 FR 36082). Comments were
invited at that time from all interested
parties. and the comment period on the
,proposal closed on October 7. 1983.
The present final rule essentially
adopts the proposal of Augusl 8, 1983.
Some minor changes have been made in
response to comments. as discussed
below in the Summary of Comments and
Recommendations. Some minor editorial
changes have been made for the sake of
clarity.
In addition the terms "endangered."
"threatened," and "critical habitat" are
.not routinely capitalized in the final
rule. This change from past practice is
adop~ed to confurm more closely with
conventional English usage.
Changes made by the Amendments
were designed to ensure that decisions
in every phase of the listing process are
based solely on biological
considerations. and to prohibit
considerations of economic or other
nonbiological factors from affecting
decisions regarding endangered or
threatened status. The legislative history
accompanying Ihe Amendments makes
it clear that. although economic
considerations are relevant for the
designation of critical habitat. such
considerations should not be taken into
account in deciding whether to list a
given species. The listing process has
been streamlined by reducing the time
periods for adopting rules. by
consolida ting public meeting and
hearing requirements. and by providing
for the separation of critical habitat
designations from the listing process
when appropriate.
After receiving a petition to list. delist,
or reclassify a species. the Secretary
must now act "to the maximum extent
practicable" within a 90-day period to
publish a finding that the petition does
or does not present substantial
information indicating that the
petitioned action may be warranted. The
requirement to make such a finding
within 90 days may be waived only if
the devotion of staff resources to
petition responses would interfere with
actions needed to list other species in
greater nep.d of protection. Decisions to
take one action rather Ihan another
must be made in conjunction with a
scientifically-based priority system
(such a system is embodied in U.S. Fish
and Wildlife Service guidelines

published September 21. 1983.48 FR
43098).
Within 12 months of receiving a (
pelition that presents "subslantial
scientific or commercial information,"
the Secretary must publish a proposed
rule, determine that the petitioned
action is not warranted. or determine
Ihat the action is warranted bul that
other listing, delisling. or reclassification
actions preclude the preparation oC a
proposal. In any case. a notice of such
findings must be published in Ihe
Federal Register. If 8 negative finding is
made wilh regard to a petition. the
finding is subject to judicial review.
The Amendments criso provide that
the 12-month time period may be
extended only if the Secretary can
demonstrate expeditious progress on
other listings. delistings. and
reclassifici;ltions. Any petition so
extended is treated as if resubmitled.
and an additional year is allowed for the
required action. The justification for
failure to propose an otherwise
warranted petitioned species is subject
to judicial review. Petitions to list, deliSI,
or reclassify species that were pending
at the lime of passage of the
Amendments are also covered by these
new provisions,
Petitions to revise critical habitat. or
to designate critical habitat concurrently
with 8 listing. are not required to preset
economic information relevant to the
proposed revision or designation. They
will be treated in the same manner as
other petitions except that the Services
need not propose a revision supported
by a petition containing substantial
scientific information within 12 months
of receipt. Rather. they must publish
notice of on intended course of action.
Final action on listing. delisting. or
critical habitat proposals now must be
taken within 1 year of publication of the
proposed rule. ins lead of 2 years as was
previously allowed. A 6-month
extension is permissible only if there
exists substantial disagreement among
specialists regarding the suHiciency or
accuracy of the required biological data.
This 6-month extension is not
permissible to allow additional time 10
conduct economic or other analyses .
relating to critical habitat designations.
Th.e Amendments restate the general
reqUirement of concurrent listing and
critical habitat designation for a given
species but authorize listing without the.
latter in certain circumstances. If a
critical habitat designalion is found "not
prudent." Ihe listing can become final at
any time during the 1-year (or la-month)
period. When scientific and commercial
information indicates that prompt listinse
of the species is essential to its