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

38906

032956

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

of the recommendation is already
provided for in ~! 424.12 and 424.19.
NWF requested that ~ 424.14(d) be
expanded to indicate information
standards. time limitations. Ilnd appeal
provisions for petitions to designate new
- critical habitat. Because the Act imposes
no specific standards for such petitions.
the Services see no necessity to adopt
such standards administratively.
Properly considered, the Act's specific
petition procedures appear to be
inlended 8S an attention-calling device
to ensure that the Services take prompt
and appropriate action when newly
notified of a situation affecting the
welfare of a species or of the apparent
inappropriateness of some past listing or
designation of critical habitat. Because
consideration of designating critical
habitat is an integral pari of the process
of listing 8 species. it is unlikely that a
petition to designate critical habitat for
a listed species will be intended to call
the Services' attention to a situation of
which they were previously unaware. It
thus makes sense not to treat petitions
to designate critical habitat under
standards as stringent as those applied
10 other petitions.

Section ~24.15 Notices of review.

CUS requested a clarification of what
was meant by the statement that. "No
legal consequences shall arise under the
Acl as a result of the designation of a
species as a candidate for listing." This
statement was intended to make clear
that species so identified. but not
proposed for listing. are not subject to
the protections or prohibitions of the Act
under sections 7 and 9.
HSC recommended lhat candidate
species be given some legal protection
to prevent destruction of the species or
their habitats before a listing decision is
made. The Services note that the Act
makes no provisions for the legal
protection of candidl:l.te species. and
thus none can be afforded in thesp.rnles.
Nevertheless. it is the belief of the
Services. as also recommended by EDF.
that such species should be taken into
consideration in environmentctl planning
under such laws as the Na tional .
Environmental Policy Act. Such .
consideration, however. is not
appropriately included in the present
rule. which is intended only to govern
listing procedures under the uulhorily of
the Endangered Species Act.
The Department of State requested
that an alteration be made in the
notlficCltion provisions of this section to
ensure that notifications to foreign
countries be made through the Secretary
of Stale. This correction has been made
in the final rule.

SeCtion 424.16 Proposed rules.

NWF questioned the advisability of
including a map in all proposals of
critical habitat because of the possibility
of thereby increasing the threat to 8
species by making public the area in
which it occurs. When publication of
maps would increase threats '0 species.
the Services intend to forego entirely the
designation of critical habitat as not
prudent. Critical habitat designation will
be proposed. and detailed maps
published, only when it is judged that
such designation will be to the net
benefit of the species involved.
AAPA supportpd the proviSion
contained in ~ 424.16(cIl1Ilii) for
notifying local authorities. but
recommended that it be broadened to
include all jurisdictions within a local
area. The Services intend to notify all
known affected local authorities of
proposed rules. Section 424.16(cIl1)(iii)
has been modified to express this intent.
.EPA requested that this section
require notification of all appropriate
Federal agencies. A provision has been
added to the final rule at
I 424.16(c)(1)[iii) to make clear that the
Services will notify Federal agencies as
well 8S priva te individuals and
organizations known to be affected by a
proposal. This is in keeping with
existing administrative practice.
The State of Utah requested that
provisions be made in t 424.16(c)(1)(vi)
for publication of notice of any proposed
rule in appropriate scientific journals.
The Services note that t 424.16(c)(1)(v)
requires notification of appropriate
scientific organizations. as required in
the Amendments. The Services believe
ihat this provision adequately allows for
notification of the scientific community.
NWF requested thaI f 424.16[c)(2)
specifically provide that a comment
period may be extended for good cause.
The Services note that tbe paragraph in
question provides only minimum periods
far public comment. without any express
or implied limitation of the maximum
period lhal may be allowed.
Nevertheless. the paragraph has been
modified in the final rule in order to
clarify the Secretary's discretion to
extend or reopen 8 comment period on a
proposed rule.
NWF also pointed out that the
legislative history of the Amendments
indir.ates that more than one public
hearing nli::lY be held in connection with
a proposed rule. Although the Services
do not believe the proposed rule
necessarily implied any limitation on the
Secretary's discretion to hold more than
one hearing. the final version of
~ 424.16(c)(3) has been modified to make
this poinl clear.

Section 424.17 Time limits and
required actions.

EDF requested that I 424.17[a)(1)(iii(
(now at f 424.17[a)[1)(iv)) be expande
to indicate that the substantial
disagreement concerning the suITiciency
or accuracy of data. upon which a 6-
month extension may be based. must be
8 disaoreement among scientists
knowl~doeable aboul the species in
question~ The Services agree that this
was the intention of the Amendments.
and have modified the final rule to make
this clear.
NWF recommended lhat the clarity of
the rule would be improved if
U 424.17{a)(1) (iii) and (iv) were
reversed in order. The Services agree
and have so modified the final rule.

Section 424.18 Final roles-general.

NWF recommended two minor
changes in this section: (1) Specification
that a final rule would take effect 30
days after publication. rather than. "not
less than" 30 days. and (2) substitution
of "proposed regulation" for
"regulation" in ! 424.18(c). In the first
case. the Services note that final
regulations adopted pursuant to Part 424
ordinarily do take effect 30 days .
foHowing publication. but prefer not to
make this 8 regulatory requirement. Th(e
-second recommendation would connie
with the provisions of the Act as
amended. which deal with the adoption.
rather than proposal. of a regulation.
The paragraph remains as proposed.
WLF A recommended that any
justification provided a State agency
under f 424.18(c) be required to.
". . . set forth the reasons that the
State agency's position was rejected. in
sufficient detail and with sufficient
supporting data. that the agency may
have an evidentiary basis for comparing
its position with that of the Secretary:'
The. Services do not believe that
Congress intended to establish such a
strict standard for justifications to Stale
sgencies. Rather. the Services interpret
this provision of the Act to provide that
State agencies be adequately informed
of the basis for any action that is not in
agreement with that agency's
recommendation. Section 424.18(c)
remains in the form proposed.

Section 424.19 Final rules-impact
analysis of critical habitat.

MSS recommended that provisions for
considering economic and other impacts
of critical habitat designations be
relocated to 1424.12. because the
proposed placement. ". . . diminishes
the weight to be given economic impacL
in the designation of Critical Habitats.'

",