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( ( l ... "r.;..... 0n2951 Federal Register I Vol. 49, No. 191 I Monday, October 1, 1984 I Rules and Regulations 38901 conservation. but the analysis necessary to designate critical habitat has not been completed. the listing must .be made final within the 1.year (or la-month) period without designaling critical habital; the critical habitat segment of the proposal then would be completed and maue final separately. WhFm critical habi!at has been deemed "not determinable" within the 1- year (or la-month] period. the initial 1. year period may be extended by not more than 1 additional year. At the end of the additional year. or earlier. critical habitat must be del ermined to "the maximum extent prudent." Revisions may be made as new information becomes available. Finally. the Amendments require that if the Secretary adopts a rule over the objection of a State conservation agency or fails to take an action petitioned by such an agency. a written justification must be provided to the agency. Summary of Comments and Recommendations The Services received comments from the following individuals and organizations: the American Association of Port Authorities (AAPAI: the Edison Electric Institule (EEl): the National Wildlife Federalion (NWF): the Sierra Club, Hawaii Chapter (HSC): the We 51 ern Timber Association (WTA); the Wildlife Legisla tion Fund of America [WLFA): the Alabama Power Company (APC]: Chevron U.s.A.. Inc. (CUS): Conoeo" Inc.. North American Production (CNAPl; Middle South Services,lnc. (MSS]: Texas Utility Services. Inc. (supporting the comments of EEl); the U.S. Department of Agriculture. Farest Service (USDA): the Office of the Assistant Secretary of Defense. Manpower, Reserve Affairs. and Logistics (DOD]: the Department of Energy: the Office of Federal Activities of the U.S. Environmental Protection Agency (EPA): the Office of Environment and Energy. Department of Housing and Urban D,evelopment; the Office of Food and Natural Resources. Deparlment of State (DS); Dr. Mark K. Johnson. of the School of Forestry and Wildlife Management. Louisiana Sta te University; Mr. Richard W. Klukas. Wind Cave National Park: Dr. Lovett E. Williams; the ColoTl'ldo River Water Conservation District (CRWCD): the Michigan State Department of Natural Resources; the Department of " Environmental Resources of the Commonwealth of Pennsylvania: and the Office of Planning and Budget, State "of Utah. Joint commenls were submitted by the Environmental Defense Fund. Defenders of Wildlife. the Center for Environmental Educa tion. the Humane Society of the United States, the Nalural Resources Defense Council. the Friends of the Sea Otter. and the National Audubon Society (ED F). Many comments expressed general approval of the proposal. Comments of a general nature are addressed below. More specific recommendations and responses follow. organized by the sections of the proposed rule to which they refer. CUS. noting the Amendments' intenlion to expedite decisions on listings and delistings. encouraged the Sen'ices to avoid using the full time allotted to issue rules. and to especially avoid extensions of listing deadlines. The Services agree with the rationale presented in this comment. that both the species involved and industry project planning are best served by expeditious determinations of species' status. The Services intend listings and delistings to 'be processed as quickly as possible. consistent with the need to consider carefully all information in formulating rules. It is intended that the provisions for extending deadlines. contained in both the Act and the present procedural rules. will be invoked rarely and only in cases of real need 10 do so. EDF expressed concern that detenninations regarding the substantiality of petitions not be made according to the listing priority system previously published by the U.S. Fish and Wildlife Service (4B FR 4309B. September 21.1983). The Services regret any impression that may have been given in the preamble to the proposed listing regulations that determinations of substantiality of pelitions would follow that priority system. Although considerations of priority may preclude prompt actions in response to petitions. it is not intended that they wit! affect the substantive finding that must be made regarding substantiality or the later finding that a petitioned action is or is not warranted. EDF also recommended that a declaration be made that. "species the' subject of 'pending proposals' previously withdrawn may be reproposed without regard to when the biological informalion was developed:' The Services consider that this posilion is clear both in the amended Act and in the proposed regulations. Species withdrawn for purely administrative reasons under the 2-year limit on proposal~. which is no longer contained in the Act. may be reproposed whenever information is available to supporl such a proposal. Comments expressed contrary opinions with regard to the timing of critical habitat designations. Three (Dr. Gilbert. Mr. Klukas, WTA) held thaI delaying designation of critical habitat until after the listing of a species would likely benefil the species by expetlHing listing, while three others (AAPA. CRWCD, HSC) recommended that such designation regularly be concurrent wilh listing. The Services appreciale the concerns of those who believe that definition and designation of critical htlbitat in most cases slows the listing process. Although Congress. in passing the Amendments. clearly expressed the intention that the economic considerations connected 10 critical htlbitat designation not delay listing. other elements of the designation process clearly slow the pace of lis ting species. The Services also are aware of the concern that. if critical habitat is not designated concurrently with the listing of a species. potential conflicts may not be identified early enough 10 be satisfactorily resolved. or important areas of habitat may be inadvertently destroyed. It should be noted. however. that the Services may notify affected organizations and individuals of the habitat needs of species without going through the forma! designation or crilical habitat. In making decisions regarding the timing and advisability of crHical habitat designations. the Services will apply the requirements of the Act in a reasonable fashion. Legislative history' makes clear that Congress intended designation of critical habitat to be beneficial to the conservation of SDp.dp.~. Experience has shown. neverthele.ss. that precise identification of habitat of vulnerable species carries inherent risks" of vandRlism and taking. In some cases. these risks can be controlled through vigorous enforcement of Section 9 of the Act. In other cases. because of enforcement difficulties. or because no viola tion of Section 9 may be involved (as in taking of plants on non-Federal land or the destruction of plants even on Federal land without their reduction to possession}. designalion of critical habitat may have a net adverse effect on a species. II is this net effect. toking into account potential risks and benefits of a particulClr designation. that will guide the ServiCf~s in decisions regarding the prudence of a particular designation. The liming of critical habilat designation is explicitly mandated in the Ac.t. along with the possibility of deferring action for a limited time after listing a species whp.n crilical habitat is judged not to be d~terminable concurrently with listing. The laller deferral of designation can allow listings to go forward in a timely manner and critical habitat to be designaled I.ater. The Services believe ----'-------'-'.,. -_: "