WSP06932 - Laserfiche WebLink

Home Browse Search

03295Z Federal Register / Vol. 49, No. 191 I Monday, Oclober 1, 1984 I Rules and Regulations 38902 that these provisions of the Act are accurately reflected in the proposed and final listing regulations. HSC recommended that provisions be made to include 8S part of the critical habitat... . . those portions of the historic range of an endangered species which are still suitable for the species but, because of one or more perturbations to it. no longer occurs there but almost certainly could if such perturbations were removed or adequately ameliorated," The Services note that the Act and the listing regulations allow designation of areag outside the known range of a species when such areas are essenlial to the species' conservation. These provisions adequately allow for erHical habitat designations in unoccupied portions of a species' historic range. CRWCD recommended that, '.. , . where a species listing proposal is known to connict with a water (or other) resources development project. the agencies should consull closely with lhe affected entity." The Services agree that early contact and sharing of information with affected entities is desirable and is in the best interests of candidate species as well as sound project planning. Subpart A-General provisions Section 424.02 Definitions. (b) "Condidote"-Several commenters [CUS, EDF. NWF, USDA) requested clarification of this term, parlicularly to differentiate between a candidate species being considered for listing and a species that has already been proposed to be listed. The defini tion has been altered in the final rule 10 make this point clear. As stated in the proposed rule. this term is included and defined to renect the Fish and Witdlife Service's current praclice of i!'>suing consolidated notices ot review, in which such species are identified, (c) "Conservation, conserve, and conserving"-NWF recommended that this definition be altered to conform to that proposed 10 be placed at 50 CFR 402.2 (48 FR 29998, June 29, 1983). The Services believe that the two definitions are essentially equivalent and. inasmuch 8S that proposed at ~ 424.02 precis'ely follows the definition contained in the Act, this version is adopted here, (d) "Critical habitat"-.CNAP recommended that this definition be altered to require that a positive showing be made (presumably that an area designaled is essenliallo a species' conservation) if critical haLitat extends beyond the area actually occupied by a species, and that multiple-use management of critical habitat be pro\'ided for. The Services consider bulh recommendations to fall outside the scope appropriate for a definilion. The former is adeql,lately addressed in ~ 424.12{e). The latterrecornmendalion is consislent with the provisions of Ihe Act and policies of the Services. No limita tion. express or implied, on multiple use of areas designated as critical habitat is contained in the Act or has been imposed by the Services. so long 8S such multiple use is consistent with section 7[a)(2) of the Act. (e) "Endangered species "-CNAP indicated that. to be endangered. a species must be in danger of extinction throughout all or a significant portion of its range. and expressed concern over the.... . . unjustified listing of subgroups or subspecies by location of a plentiful species (e.g.. Tennessee River tributary 'snail darter' and 'Houstonian [sic] toad'):' The Services note that both the snail darter {Percina tanas}l and the Houston toad (Hufo houstonensis) are recognized as full species and listed throughout their ranges. The Services further note that the Act explicitly allows for the listing of infraspecific taxa and. in the case of vertebrate species. populations as well. Thus. any change in this definition that would exclude such entities would be in conflict with the clear provisions of the Act. (g) "P1ant"'-NWF recommended that this definition be altered to make it conform more c10selv to the definition of . "wildlife" or "fish and wildlife" at ~ 424.02[n). The Services accept this recommendation for the sake of clarity and uniformity. The definition has been altered in the final rule. This is not viewed as a substantive change, inasmuch as the Services have always interpreted the two definitions as being comparable in scope. (i) "Secretary'~NAP questioned the appropriateness of having an authorized representative empowered to serve in the place of the Secretar~ in all cases. The represenlalive referred to is an individual with clearly delegated authority from the Secretary to undertake the actions covered by this rule. Nothing in the Act hinders such a delegalion. At present. these authorities have been delegated to the Assistant Secretary of the Interior for Fish and Wildlife and Parks. and the Assistant Administrator for Fisheries, National Marine Fisheries Service. Department of Commerce. (k) "Species "'-Dr. WilJioms suggested' that the Services consider defining this term so thl:lt it does not use the term "subspecies." because of the lack of consensus among biologists as to its precise meaning and significonce. and because of the likelihood that it would b~ misinterpreted by individul:Ils lacking an adequate background in biology. Th(e Services appreciate the possible uncertainty that could ~rise if the term "subspecies" were nol mterpreted carefullv. However. the Act specifically include~ this term within ils definition of "species." 50 lhat its exclusion from the regulatory definition would not be warranted. The Services are confident that they have access t~ sufficient biological expertise to ensure that the definition of "species" will be interpreted in a manner consistent with accepted. biological principles. Several additional terms were suggested by NWF for inclusion a'nd definition in this section. These were "maximum extent practicable." "promptly," "proposed species:" and "substantial information." The Services believe that the first two of these are not used in the regulations in any specialized sense that differs from their common meanings. and that regulatory definition is unnecessary, "Proposed species" was recommended for inclusion solely to draw a distinction between it and "candidate." Inasmuch as this dislinction is made in the altered definition of "candidate" finally adopted, the inclusion and definition of a new term is not necessary. The term ( "subslantial information" has specific applicability to findings necessary with regard to petitions. Because of this specific and narrow applicabilily. it has been defined in ~ 424.14(b). Inclusion of this definition in ~ 424.02 is unnecessary and could be misleading. Subpart B-Revision of the 1isls Section 424.10 General. EDF recommended thaI this section be broadened to extend the new petition procedures to petitions to designate experimental populations or to treat species as if listed because of similarity of appearance. The Services believe that Congress clearly expressed its intent with regard to the scope of the amended pelition provisions, and applied different requirements to each class of petitions covered by the Act. Inasmuch as no provision was made to subject either experimenti.J1 populations or sirnilarity-of.appearance cases to specific listing procedures under the Act. the Services consider it appropriate to treat such petitions. if received. only under the relevant provisions of the Administrative Procedure Act (5 U.S.C. 553). as opposed to subsections 4 (a) anP [b) of the Endangered Species Act. "---