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, ~ ,~ :_, on 954 38904 Federal Register / Vol. 49, No. 191 I Monday, October 1, 1984 / Rules and Regulations - the presence of a pesticide is an element of the habitat occupied by a species. In anJ.' event. such consideralions are more properly addressed in determining whether designation is prudent, rather than whelher critical habitat is determinable. In cases in which critical habitat designation would nol be of benefit to a species. Ihe Services believe that sufficient discretion exists under the Act and ~ 424.12[a)(1) 10 forego designation on grounds of prudence, AAPA recommended deletion of proposed ~ 424.12(a)(2)(ii), because they failed to.... .. . see how a species can be determined to be endangered i( its biological needs are not suCficiently well.known to allow idcntiCication of its critical habitat needs." The Services believe that it is possible to determine that a species is endangered or threatened. on the basis of its known and documented decline or evidence of threats to it. without knowing what precise habitat resources the species requires for survival and recovery. This is one reason for which the "determinable" standard was inserted by rhe Amendments and is reflected. wilh explanation. in the proposed and final regulations. EEl recommended Ihat ~ 424.12(e) be modified to allow designations of critical habitat outside the present geographical range of a species only when such designation is required to prevent the species' extinction. The Services believe that such a change would be inconsistent with the Act's purpose of conserving and recovering species as well as the definitions of critical habitat contained in the Act and these regulations. both of which allow designation of critical habitat beyond a species' known range when such designation is essential for the species' conservation. The Services also disagree with EE1'5 further statement in this regard that extensions beyond 8 species' present range are unlikely to occur without artificial assistance, and that such additions to critical habitat are more properly considered under those portions of the Act and proposed regulations treating experirnent.al populations. Designations of critical habitat outside current range are normally undertaken when essential to a species' conservation and to provide for natural range expansion into adjacent suitable habitat or to assure proper management of resources. Neither of these cases is appropriately addressed under provisions governing the eSli:lblishment of experimental populations. APC recommended that provisions regarding analysis of impacts of critical habitat designation. proposed to be localed at ~ 424.19, be relocaled 10 ~ 424.12(c). The Services consider this inadvisable inasmuch as ~ 424.12 deals with both proposed and final rules to designate crilical habitat. Current procedures call for the consideration of economic impacts only after publication of a proposed rule, so that placement of the relevant provisions in ~ 424.12 would be inappropriate. The final version of A 424.19 has been altered to reflect the proper timing of analyses of critical habitat designations. Reference to Ihe economic considerations for final rules has been included in ~ 424,12, EDF recommended that the Services, .... . . not foreclose the authority to designate critical habitat in foreign countries." as proposed in ~ 424.12(h). The Services believe thai the clear instruction of the House Committee on Merchant Marine and Fisheries. contained in its report on the Amendments and implicitly accepted by the Committee of Conference, must control any consideration of designating critical habitat in foreign countries. The House report noted with approval an opinion of the Office of the Solicitor, Department of the Interior. that the Act does not contain authority to designate critical habitat in areas outside U.S, jurisdiction. Given this clear instruction in the legislative history of the Amendments and the original 1973 Act. the Services perceive no discretion to interpret the Act otherwise. and have retained ~ 424.12(h) in the final rule in order to cJarify their position in this regard. Section 424,13 Sources of information and relevant data. NWF commented thai the statement in the proposal that. "[TJhe last sentence of this section would be deleted because a similar provision is proposed to be added to ~ 424.11(d)," was misleading and incorrect. The Services agree; the rererence should have been to I 424.11(c}. Inasmuch as this error was part of the section-by-section analysis. rather than the text of the proposed rule. no change in the final rule is necessary. The Services regret any misunderstanding that might have arisen. EPA recommended that this seclion be revised to require that the Secretary consult with individuals. agencies. or sovereign nations whenever a specific interest in a species is known to exist on the part of such entities. rather than requiring such contacts only "as appropriate," The Services note that this provision was originally included in ~ 424.13 to rencct a former provision of section 4[bJ(l) of the Act. Although the relevant portion of the Act was removed by the Amendments. the Services h( retained the provision for consultati with affected parties. In the absence any legislated requirement in the amended Act. however. the Services consider it inappropriate to make this provision any more stringent than it was in the proposed version. Dr. Johnson suggested thai the phrase. "if available" be inserted at the beginning of the second sentence of ~ 424.13. so that the Secretary may review only those 9ata that are available. Inasmuch as a substantive review can only address information that is in hand. the Services believe this qualification to be unnecessary. CNAP expressed the opinion that "interested parties" must specifically include any person affected by the proposed designation. The Services agree that such persons should be consulted in formulating any proposed change in the lists, and intend to do so. Inclusion of such a slatement in the regulations, however, would imply thai only such persons are to be consulted. and thus would lend to limit the scope of inlerested parties that might be consulted. The Services believe that such implied limitation would be inadvisable, (I Section 424.14 Petitions. NWF questioned the basis for applying different standards to petitions dealing wilh critical habitat than those applied to petitions regarding a species' listing. Section 4(b){3) of the Act explicitly prescribes the different standards to be applied to such petitions: the Services follow the clear language of the Act in this case. Dr. Johnson suggested that ~ 424.14(a) be altered 10 require that a petition contain substantial scientific or commercial information, The Services note that the paragraph in question is intended to identify those elements that must be included in 8 document for it to be considered a petition, Inasmuch as the Act requires that petitions be evaluated to determine whether they . contain such substantial information. it would be contradictory to require such information in order for a documenl to be considered to be a petition, NWF requested that a provision be added to this section to require the Secretary. when making a negative' finding under ~ 424.14(b){I), to so notify the petitioner in writing and explain any deficiencies of information in Ihe petition, so that it could be corrected and resubmitted. Although the servicee wi~l notify peliti~ners of findings and pomt out the baSIS on which negative .