Endangered and Threatened Wildlife and Plants; Amending the Formats of the Lists of Endangered and Threatened Wildlife and Plants

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (FWS), propose to amend the formats of the Lists of Endangered and Threatened Wildlife and Plants to include current practices and standards that will make the regulations and Lists easier for the public to understand. When we finalize this proposed rule, we will publish the Lists of Endangered and Threatened Wildlife and Plants in their entirety in the new formats.

DATES:

We must receive comments by September 4, 2008 in order to ensure their consideration in our final decision.

ADDRESSES:

You may submit comments by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R9-ES-2008-0063; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov . This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT:

Michael Franz, Office of Program Support, Endangered Species, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA, 22203; telephone 703-358-2079. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

The Lists of Endangered and Threatened Wildlife and Plants (Lists), found in the Code of Federal Regulations (CFR) at 50 CFR 17.11 for wildlife and 50 CFR 17.12 for plants, contain the names of species officially listed as endangered or threatened under the Endangered Species Act of 1973, as amended 16 U.S.C. §§1531 et seq. (ESA). The most recent compilation of Lists appears in the 2007 edition of title 50 CFR, which was issued in early 2008. That compilation included regulatory amendments effective as of October 1, 2007.

The species were placed on the Lists by FWS, by the National Marine Fisheries Service (NMFS) of the Department of Commerce's National Oceanic and Atmospheric Administration, or by both of these agencies in joint rulemaking actions. References to “Services” in the text of §17.11 and §17.12 refer to both of these agencies.

The Lists represent the official Government record of which species are listed and where they are considered listed under the ESA. Over time, we have noted numerous anomalies in the Lists, including ambiguous entries and confusing format and column titles. After detailed research on the origin, history, and purpose of the Lists, we determined that the format, references, and standards need to be updated. This rule is designed to address these observed problems and propose corrections to enhance the clarity of the lists.

History of the Lists of Endangered and Threatened Species

The first endangered species list was published March 8, 1969 (35 FR 5034) and included only two columns, Common Name and Scientific Name. In 1971, that list was added to title 50 CFR in the newly created section 17 and divided into two separate lists with appendix A being the “U.S. List of Endangered Foreign Fish and Wildlife” with three columns (Common Name, Scientific Name, and Where Found) and appendix D being the “United States' List of Endangered Native Fish and Wildlife” with still only the original two columns (Common Name and Scientific Name).

In 1974, the two appendices were changed into the now familiar locations in §17.11 and §17.12 with the appendix A becoming §17.11 (Foreign) and appendix D becoming §17.12 (Native). In 1975, the two Lists were fused into one list at §17.11 (Wildlife), and the columns were expanded from three to eight (Common Name, Scientific Name, Population, Known Distribution, Portion of Range Where Endangered or Threatened, Status, When Listed, and Special Rules). See figure 1, below. The “When Listed” footnote system was created with 11 footnotes. Section 17.12 was reserved for “Endangered and Threatened Plants”.

Figure 1 - §17.11 Wildlife

In 1977, §17.12 was populated with only seven columns (Common Name, Scientific Name, Known Distribution, Portion of Range Where Threatened or Endangered, Status, When Listed, and Special rules). See figure 2, below. The §17.12 List had its own footnote system, which was only one footnote at that time.

Figure 2 - §17.12 Plants

In 1980, the Lists were reformatted into their present columns. A proposed rule was published on August 15, 1979 (44 FR 47862), proposing to include the following columns for §17.11: Common name, Scientific name, Historic range, Population where endangered or threatened, Status, When listed, Critical habitat, and Special rules; and the following columns for §17.12: Scientific name, Common name, Historic range, Status, When listed, Critical habitat, and Special rules. A final rule was published on February 27, 1980 (45 FR 13010), with the following columns for §17.11: Common name, Scientific name, Historic range, Vertebrate population where endangered or threatened, Status, When listed, Critical habitat, and Special rules. The final rule adopted the columns for §17.12 as they had appeared in the proposed rule. See figures 3 and 4.

Figure 3 - §17.11 Wildlife

Figure 4 - §17.12 Plants

Neither the proposed rule nor the final rule included the entire Lists. The Lists were published in the new format with technical errors corrected on May 20, 1980 (45 FR 33767). On September 30, 1994 (59 FR 49848), the family grouping of the plants, which had resided in the scientific name column, was moved to a new column named “Family.” See figure 5.

Figure 5 - §17.12 Plants

Rule Purpose

We are proposing all of the changes in this rulemaking to update the regulations to include current practices and standards and ensure that the regulations and lists are easy for the public to understand. We are also standardizing entries and correcting numerous anomalies, ambiguous entries, and confusing formats. None of the proposed changes are regulatory in nature; we are proposing them for the purpose of clarity. Technical corrections in the final rulemaking will include but are not limited to updating or correcting: historical range, footnotes, references to certain other applicable portions of title 50 CFR, synonyms, the spelling of species' names and providing more current names. No revisions will be made to the species, as defined in current 50 CFR 17.11(b) or 17.12(b), or its status. These two actions would require separate rulemakings following the procedures of part 424 of 50 CFR.

Renaming and Reorganizing the Lists' Columns

With this proposed rule, we are renaming and reorganizing the columns in the lists to clarify the types of information being presented.

“When listed” to “Citations”

For both Lists, we will replace the column heading “When listed” with “Citations.” This column currently contains footnote numbers referencing a table of citations for final listing rules and special rules under section 4(d) of the Act. When we last proposed to reformat the Lists in 1979, this table contained only 44 footnotes. The current table has more than 700 entries, and has become hard to manage and use. To correct this, we propose to replace the footnote numbers that currently populate this column with the actual Federal Register citation (volume and document starting page number) and publication date that are in the table following each list. We will also standardize the references so that they all refer to the first page of the published document and correct any errors. For example, some existing footnotes reference the wrong date or miss a citation reference. When we publish the Lists for the final rule, we will correct those entries to standardize and ease information promulgation.

“Vertebrate population where endangered or threatened” to “Where listed”

In the October 1, 2000, edition of the CFR, in the List of Endangered and Threatened Wildlife found at §17.11(h), all of the entries for invertebrate species within the column “Vertebrate population where endangered or threatened” were erroneously changed to “Entire”. We had originally published these entries with “NA” (Not Applicable) in that column due to the title only applying to vertebrate populations. The error was purely editorial; it in no way changed any of the applicable provisions of law. Upon further investigation, we found that the location information of invertebrate species with experimental populations were placed in this column. We also discovered that as the experimental populations of invertebrate species were added to the wildlife list by the Service, many of those entries contained “Dittos” to show duplicate information in the Lists. Some of those entries containing “Dittos” followed entries that had been erroneously changed to “Entire” in 2000. As a result, there were numerous errors.

For the list of wildlife (§17.11(h)) only, we propose replacing the column heading “Vertebrate population where endangered or threatened” with “Where listed,” because certain entries in this column apply to invertebrate experimental populations. The new name “Where listed” better reflects the data within the column. We also propose changing all the current entries “N/A” to “Entire” to reflect the change in the column title. And lastly, we will no longer utilize the “Dittos” system to show duplicate information.

For the list of plants (§17.12(h)), we propose replacing the “Family” column with a “Where listed” column to standardize both lists to identical column and structure. We also propose populating each entry for that column with “Entire” because the ESA protection for all of the plants currently on the list applies to all individuals of a plant species wherever found. Future additions to the list may have a more limited entry under the “Where listed” column. The family name is available for each entry on the species' profile page accessible through the Service's website ( http://www.fws.gov/endangered/ ).

These proposed amendments to the Lists are editorial in nature and involve no substantive changes to the List of Endangered and Threatened Wildlife found at 50 CFR 17.11(h) or the List of Endangered and Threatened Plants found at 50 CFR 17.12(h), nor to any applicable regulations.

Adding ESU and DPS Subtitles to “Common Name”

Since the lists were last reformatted, the Services have implemented several policies that have affected the format of the §17.11 (h) list. NMFS's Evolutionarily Significant Unit (ESU) policy (56 FR 58612, November 20, 1991) and the interagency Policy Regarding the Recognition of Distinct Population Segment (DPS; 61 FR 4721, February 7, 1996) allow for more refined application of the ESA that better reflects the conservation needs of the taxon being considered, and avoids the inclusion of entities that may not warrant protection under the ESA. Currently, the “Vertebrate population where endangered or threatened” column distinguishes the different ESU and DPS entries for the same species by describing the geographic area where they occur, but without providing a name for the population. To facilitate distinguishing the ESU/DPS entries, we are proposing to add the ESU or DPS subtitle to the Common Name column in brackets (§17.11(h) only).

Reorganizing the Columns

We have reorganized the columns to separate the regulatory data columns from the “information only” and “navigational reference” data columns. We have placed all the regulatory columns [“Species (Common name (ESU/DPS) and Scientific name),” “Status,” and “Where listed”] together as the first four columns of the lists, the information-only column [“Historic range”] as the next column, and the navigational references [“Citations,” “Special rules,” and “Critical habitat”] as the final three columns. See Figures 6 - 9.

Figure 6 - Current §17.11 Column Titles and Positions:

Figure 7 - Proposed §17.11 Column Title and Positions:

Figure 8 - Current §17.12 Column Titles and Positions:

Figure 9 - Proposed §17.12 Column Title and Positions:

We also propose to reorganize and update the text introducing the lists of wildlife and plants (§17.11(h) and §17.12(h), respectively) to reflect the proposed changes described above.

Updating Standards References

For species' nomenclature (scientific and common names), we propose to change the primary source upon which we rely. The current text introducing the lists in §17.11 and §17.12 references two standards for scientific nomenclature: The International Code of Zoological Nomenclature and The International Code of Botanical Nomenclature. Respectfully, instead of referencing those International Codes, we propose that the Service now rely to the extent practicable on the Integrated Taxonomic Information System (ITIS) which incorporates both of the International Code standards and the standard references adopted for the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

In addition to incorporating the standards the service has already been using, ITIS is an authoritative taxonomic database ( http://www.itis.gov ) maintained by a partnership of U.S., Canadian, and Mexican agencies; other organizations; and taxonomic specialists. The U.S. partners include the National Oceanic and Atmospheric Administration of the Department of Commerce; the U.S. Geological Survey and National Park Service of the Department of the Interior; the Environmental Protection Agency; the Agricultural Research Service and Natural Resources Conservation Service of the Department of Agriculture; the National Biological Information Infrastructure (NBII); the Smithsonian Institution; and NatureServe (a nonprofit organization representing the Natural Heritage programs in the States). The NBII is a broad-based, collaborative program among Federal, State, international, nongovernmental, academic, and private industry partners. Its Federal partners include the FWS and the Bureau of Land Management of the Department of the Interior; the National Aeronautics and Space Administration; the National Science Foundation; the Tennessee Valley Authority; the Forest Service of the Department of Agriculture; the Federal Geographic Data Committee; and the Gap Analysis Program.

CITES is an international convention among 173 signatory countries (Parties) to ensure that international trade in specimens of wild animals and plants does not threaten their survival (50 CFR part 23). The CITES Parties have adopted standard nomenclatural and taxonomic references for species included in the CITES Appendices, which are listed in the most recent CITES resolution on standard nomenclature. ( http://www.cites.org/eng/res/index.shtml )

Public Comments

You may submit your comments and materials concerning our proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov , your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hard copy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hard copy comments on http://www.regulations.gov .

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov [FDMS Docket Number: FWS-R9-ES-2008-0063], or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Office of Program Support, Endangered Species Program (see FOR FURTHER INFORMATION CONTACT).

You may obtain copies of the proposed rule by mail from the U.S. Fish and Wildlife Service, Office of Program Support, Endangered Species Program (see FOR FURTHER INFORMATION CONTACT), or by visiting the Federal eRulemaking Portal at http:// www.regulations.gov .

Required Determinations

Regulatory Planning and Review (E.O. 12866)

This proposed rule is not significant and is not subject to review by the Office of Management and Budget under Executive Order (E.O.) 12866. The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB based its determination upon the following four criteria:

(a)Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b)Whether the rule will create inconsistencies with other Federal agencies' actions.

(c)Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d)Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

The Department of the Interior certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The changes we are proposing to make are intended primarily to update the standards of scientific naming used in the Lists of Endangered and Threatened Wildlife and Plants and to clarify language in our regulations. These changes would not have a substantive impact on the scope of the regulation, and thus would not affect businesses or other small entities as defined in the RFA.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

1. Would not have an annual effect on the economy of $100 million or more.

2. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

3. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. Our proposal would simply reorganize and clarify existing regulations and provide new standard references for species' nomenclature. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. We are proposing only to reorganize and clarify existing regulations and provide new standard references for species' nomenclature. This action would therefore not interfere with constitutionally protected private property rights. A takings implication assessment is not required.

Federalism (E.O. 13132)

In accordance with E.O. 13132, this proposed rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. As our proposal involves reorganizing and clarifying existing regulations, and providing new standard references for species' nomenclature, we do not expect it would have any effect on State or local governments or their activities. A Federalism Assessment is not required.

Civil Justice Reform (E.O. 12988)

In accordance with E.O. 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

This proposed rule does not contain any new or revised information collections for which Office of Management and Budget approval is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act

This proposed rule has been analyzed under the criteria of the National Environmental Policy act and 318 DM 2.2 (g) and 6.3 (D). This proposed rule does not amount to a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/evaluation is not required. This proposed rule is categorically excluded from further National Environmental Policy Act requirements, under part 516 of the Departmental Manual, Chapter 2, Appendix 1.10. This categorical exclusion addresses policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature and whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis under NEPA.

Government-to-Government Relationship with Tribes

Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), and the Department of the Interior's Manual at 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects. Our proposal would simply reorganize and clarify existing regulations and provide new standard references for species' nomenclature.

Energy Supply, Distribution, or Use

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule proposes to revise the formats of the Lists of Endangered and Threatened Wildlife and Plants. This rule is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no Statement of Energy Effects is required.

Author

Michael Franz, Office of Program Support, compiled this document.

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Proposed Regulation Promulgation

For the reasons set forth in the preamble, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend §17.11 by revising paragraphs (a) through (g), and the introductory text and the column headings in the List of Endangered and Threatened Wildlife in paragraph (h), to read as follows: