50 CFR § 424.01-424.21 - Listing endangered and threatened species and designating critical habitat

404 50 CFR Ch. IV (10–1–22 Edition) Pt. 424 PART 424—LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING CRITICAL HABITAT Subpart A—General Provisions Sec. 424.01 Scope and purpose. 424.02 Definitions. 424.03 Has the Office of Management and Budget approved the collection of infor mation? Subpart B—Revision of the Lists 424.10 General. 424.11 Factors for listing, delisting, or re classifying species. 424.12 Criteria for designating critical habi tat. 424.13 Sources of information and relevant data. 424.14 Petitions. 424.15 Notices of review. 424.16 Proposed rules. 424.17 Time limits and required actions. 424.18 Final rules—general. 424.19 Impact analysis and exclusions from critical habitat. 424.20 Emergency rules. 424.21 Periodic review. AUTHORITY: 16 U.S.C. 1531 et seq. SOURCE: 49 FR 38908, Oct. 1, 1984, unless otherwise noted. Subpart A—General Provisions § 424.01 Scope and purpose. (a) Part 424 provides regulations for revising the Lists of Endangered and Threatened Wildlife and Plants and designating or revising the critical habitats of listed species. Part 424 pro vides criteria for determining whether species are endangered or threatened species and for designating critical habitats. Part 424 also establishes pro cedures for receiving and considering petitions to revise the lists and for con ducting periodic reviews of listed spe cies. (b) The purpose of the regulations in part 424 is to interpret and implement those portions of the Act that pertain to the listing of species as threatened or endangered species and the designa tion of critical habitat. [81 FR 7438, Feb. 11, 2016] § 424.02 Definitions. The definitions contained in the Act and parts 17, 222, and 402 of this title apply to this part, unless specifically modified by one of the following defini tions. Definitions contained in part 17 of this title apply only to species under the jurisdiction of the U.S. Fish and Wildlife Service. Definitions contained in part 222 of this title apply only to species under the jurisdiction of the National Marine Fisheries Service. Candidate. Any species being consid ered by the Secretary for listing as an endangered or threatened species, but not yet the subject of a proposed rule. Conserve, conserving, and conservation. To use and the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures pro vided pursuant to the Act are no longer necessary, i.e., the species is recovered in accordance with § 402.02 of this chap ter. Such methods and procedures in clude, but are not limited to, all activi ties associated with scientific re sources management such as research, census, law enforcement, habitat ac quisition and maintenance, propaga tion, live trapping, and transplan tation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Geographical area occupied by the spe cies. An area that may generally be de lineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). List or lists. The Lists of Endangered and Threatened Wildlife and Plants found at 50 CFR 17.11(h) or 17.12(h). Physical or biological features essential to the conservation of the species. The features that occur in specific areas and that are essential to support the VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00414 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 405 FWS, DOI, and NOAA, Commerce § 424.11 life-history needs of the species, in cluding but not limited to, water char acteristics, soil type, geological fea tures, sites, prey, vegetation, sym biotic species, or other features. A fea ture may be a single habitat char acteristic, or a more complex combina tion of habitat characteristics. Fea tures may include habitat characteris tics that support ephemeral or dy namic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution dis tances, and connectivity. Public hearing. An informal hearing to provide the public with the oppor tunity to give comments and to permit an exchange of information and opin ion on a proposed rule. Special management considerations or protection. Methods or procedures use ful in protecting the physical or bio logical features essential to the con servation of listed species. Species. Includes any species or sub species of fish, wildlife, or plant, and any distinct population segment of any vertebrate species that interbreeds when mature. Excluded is any species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of the Act would present an overwhelming and overriding risk to man. Wildlife or fish and wildlife. Any mem ber of the animal kingdom, including without limitation, any vertebrate, mollusk, crustacean, arthropod, or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof. [81 FR 7438, Feb. 11, 2016, as amended at 84 FR 45052, Aug. 27, 2019; 85 FR 81421, Dec. 16, 2020; 87 FR 37771, June 24, 2022] § 424.03 Has the Office of Management and Budget approved the collection of information? The Office of Management and Budg et reviewed and approved the informa tion collection requirements contained in subpart B and assigned OMB Control No. 1018–0165. We use the information to evaluate and make decisions on pe titions. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. You may send comments on the information collection require ments to the Information Collection Clearance Officer, U.S. Fish and Wild life Service, at the address listed at 50 CFR 2.1(b). [81 FR 66484, Sept. 27, 2016] Subpart B—Revision of the Lists § 424.10 General. The Secretary may add a species to the lists or designate critical habitat, delete a species or critical habitat, change the listed status of a species, revise the boundary of an area des ignated as critical habitat, or adopt or modify special rules (see 50 CFR 17.40– 17.48 and parts 222 and 227) applied to a threatened species only in accordance with the procedures of this part. § 424.11 Factors for listing, delisting, or reclassifying species. (a) Any species or taxonomic group of species (e.g., genus, subgenus) as de fined in § 424.02(k) is eligible for listing under the Act. A taxon of higher rank than species may be listed only if all included species are individually found to be endangered or threatened. In de termining whether a particular taxon or population is a species for the pur poses of the Act, the Secretary shall rely on standard taxonomic distinc tions and the biological expertise of the Department and the scientific com munity concerning the relevant taxo nomic group. (b) The Secretary shall make any de termination required by paragraphs (c), (d), and (e) of this section solely on the basis of the best available scientific and commercial information regarding a species’ status. (c) A species shall be listed or reclas sified if the Secretary determines, on the basis of the best scientific and com mercial data available after conducting a review of the species’ status, that the species meets the definition of an en dangered species or a threatened spe cies because of any one or a combina tion of the following factors: (1) The present or threatened de struction, modification, or curtailment of its habitat or range; VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00415 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 406 50 CFR Ch. IV (10–1–22 Edition) § 424.12 (2) Overutilization for commercial, recreational, scientific, or educational purposes; (3) Disease or predation; (4) The inadequacy of existing regu latory mechanisms; or (5) Other natural or manmade factors affecting its continued existence. (d) In determining whether a species is a threatened species, the Services must analyze whether the species is likely to become an endangered species within the foreseeable future. The term foreseeable future extends only so far into the future as the Services can rea sonably determine that both the future threats and the species’ responses to those threats are likely. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life history characteristics, threat-projec tion timeframes, and environmental variability. The Services need not iden tify the foreseeable future in terms of a specific period of time. (e) The Secretary shall delist a spe cies if the Secretary finds that, after conducting a status review based on the best scientific and commercial data available: (1) The species is extinct; (2) The species does not meet the def inition of an endangered species or a threatened species. In making such a determination, the Secretary shall consider the same factors and apply the same standards set forth in para graph (c) of this section regarding list ing and reclassification; or (3) The listed entity does not meet the statutory definition of a species. (f) The fact that a species of fish, wildlife, or plant is protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (see part 23 of this title) or a similar international agreement on such species, or has been identified as requiring protection from unrestricted commerce by any foreign nation, or to be in danger of extinction or likely to become so within the foreseeable fu ture by any State agency or by any agency of a foreign nation that is re sponsible for the conservation of fish, wildlife, or plants, may constitute evi dence that the species is endangered or threatened. The weight given such evi dence will vary depending on the inter national agreement in question, the criteria pursuant to which the species is eligible for protection under such au thorities, and the degree of protection afforded the species. The Secretary shall give consideration to any species protected under such an international agreement, or by any State or foreign nation, to determine whether the spe cies is endangered or threatened. (g) The Secretary shall take into ac count, in making determinations under paragraph (c) or (e) of this section, those efforts, if any, being made by any State or foreign nation, or any polit ical subdivision of a State or foreign nation, to protect such species, wheth er by predator control, protection of habitat and food supply, or other con servation practices, within any area under its jurisdiction, or on the high seas. [49 FR 38908, Oct. 1, 1984, as amended at 84 FR 45052, Aug. 27, 2019] § 424.12 Criteria for designating crit ical habitat. (a) To the maximum extent prudent and determinable, we will propose and finalize critical habitat designations concurrent with issuing proposed and final listing rules, respectively. If des ignation of critical habitat is not pru dent or if critical habitat is not deter minable, the Secretary will state the reasons for not designating critical habitat in the publication of proposed and final rules listing a species. The Secretary will make a final designa tion of critical habitat on the basis of the best scientific data available, after taking into consideration the probable economic, national security, and other relevant impacts of making such a des ignation in accordance with § 424.19. (1) The Secretary may, but is not re quired to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by tak ing or other human activity and identi fication of critical habitat can be ex pected to increase the degree of such threat to the species; (ii) The present or threatened de struction, modification, or curtailment of a species’ habitat or range is not a VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00416 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 407 FWS, DOI, and NOAA, Commerce § 424.12 threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise deter mines that designation of critical habi tat would not be prudent based on the best scientific data available. (2) Designation of critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform re quired analyses are lacking; or (ii) The biological needs of the spe cies are not sufficiently well known to identify any area that meets the defini tion of ‘‘critical habitat.’’ (b) Where designation of critical habitat is prudent and determinable, the Secretary will identify specific areas within the geographical area oc cupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. (1) The Secretary will identify, at a scale determined by the Secretary to be appropriate, specific areas within the geographical area occupied by the species for consideration as critical habitat. The Secretary will: (i) Identify the geographical area oc cupied by the species at the time of listing. (ii) Identify physical and biological features essential to the conservation of the species at an appropriate level of specificity using the best available sci entific data. This analysis will vary be tween species and may include consid eration of the appropriate quality, quantity, and spatial and temporal ar rangements of such features in the con text of the life history, status, and con servation needs of the species. (iii) Determine the specific areas within the geographical area occupied by the species that contain the phys ical or biological features essential to the conservation of the species. (iv) Determine which of these fea tures may require special management considerations or protection. (2) The Secretary will designate as critical habitat, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species only upon a determination that such areas are es sential for the conservation of the spe cies. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reason able certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. (c) Each critical habitat area will be shown on a map, with more-detailed in formation discussed in the preamble of the rulemaking documents published in the FEDERAL REGISTER and made available from the lead field office of the Service responsible for such des ignation. Textual information may be included for purposes of clarifying or refining the location and boundaries of each area or to explain the exclusion of sites (e.g., paved roads, buildings) with in the mapped area. Each area will be referenced to the State(s), county(ies), or other local government units within which all or part of the critical habitat is located. Unless otherwise indicated within the critical habitat descrip tions, the names of the State(s) and county(ies) are provided for informa tional purposes only and do not con stitute the boundaries of the area. Ephemeral reference points (e.g., trees, sand bars) shall not be used in any tex tual description used to clarify or re fine the boundaries of critical habitat. (d) When several habitats, each satis fying the requirements for designation as critical habitat, are located in prox imity to one another, the Secretary VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00417 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 408 50 CFR Ch. IV (10–1–22 Edition) § 424.13 may designate an inclusive area as critical habitat. (e) The Secretary may designate crit ical habitat for those species listed as threatened or endangered but for which no critical habitat has been previously designated. For species listed prior to November 10, 1978, the designation of critical habitat is at the discretion of the Secretary. (f) The Secretary may revise existing designations of critical habitat accord ing to procedures in this section as new data become available. (g) The Secretary will not designate critical habitat within foreign coun tries or in other areas outside of the ju risdiction of the United States. (h) The Secretary will not designate as critical habitat land or other geo graphic areas owned or controlled by the Department of Defense, or des ignated for its use, that are subject to a compliant or operational integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a) if the Secretary determines in writing that such plan provides a conservation ben efit to the species for which critical habitat is being designated. In deter mining whether such a benefit is pro vided, the Secretary will consider: (1) The extent of the area and fea tures present; (2) The type and frequency of use of the area by the species; (3) The relevant elements of the INRMP in terms of management objec tives, activities covered, and best man agement practices, and the certainty that the relevant elements will be im plemented; and (4) The degree to which the relevant elements of the INRMP will protect the habitat from the types of effects that would be addressed through a destruc tion-or-adverse-modification analysis. [49 FR 38908, Oct. 1, 1984, as amended at 77 FR 25622, May 1, 2012; 81 FR 7439, Feb. 11, 2016; 84 FR 45053, Aug. 27, 2019] § 424.13 Sources of information and relevant data. When considering any revision of the lists, the Secretary shall consult as ap propriate with affected States, inter ested persons and organizations, other affected Federal agencies, and, in co operation with the Secretary of State, with the country or countries in which the species concerned are normally found or whose citizens harvest such species from the high seas. Data re viewed by the Secretary may include, but are not limited to scientific or commercial publications, administra tive reports, maps or other graphic ma terials, information received from ex perts on the subject, and comments from interested parties. § 424.14 Petitions. (a) Ability to petition. Any interested person may submit a written petition to the Services requesting that one of the actions described in § 424.10 be taken for a species. (b) Notification of intent to file petition. For a petition to list, delist, or reclas sify a species, or for petitions to revise critical habitat, petitioners must pro vide notice to the State agency respon sible for the management and con servation of fish, plant, or wildlife re sources in each State where the species that is the subject of the petition oc curs. This notification must be made at least 30 days prior to submission of the petition. This notification requirement shall not apply to any petition sub mitted pertaining to a species that does not occur within the United States. (c) Requirements for petitions. A peti tion must clearly identify itself as such, be dated, and contain the fol lowing information: (1) The name, signature, address, telephone number, if any, and the asso ciation, institution, or business affili ation, if any, of the petitioner; (2) The scientific name and any com mon name of a species of fish or wild life or plants that is the subject of the petition. Only one species may be the subject of a petition, which may in clude, by hierarchical extension based on taxonomy and the Act, any sub species or variety, or (for vertebrates) any potential distinct population seg ments of that species; (3) A clear indication of the adminis trative action the petitioner seeks (e.g., listing of a species or revision of critical habitat); (4) A detailed narrative justifying the recommended administrative action VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00418 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 409 FWS, DOI, and NOAA, Commerce § 424.14 that contains an analysis of the infor mation presented; (5) Literature citations that are spe cific enough for the Services to readily locate the information cited in the pe tition, including page numbers or chap ters as applicable; (6) Electronic or hard copies of sup porting materials, to the extent per mitted by U.S. copyright law, or appro priate excerpts or quotations from those materials (e.g., publications, maps, reports, letters from authorities) cited in the petition; (7) For a petition to list, delist, or re classify a species, information to es tablish whether the subject entity is a ‘‘species’’ as defined in the Act; (8) For a petition to list a species, or for a petition to delist or reclassify a species in cases where the species’ range has changed since listing, infor mation on the current and historical geographic range of the species, includ ing the States or countries intersected, in whole or part, by that range; and (9) For a petition to list, delist or re classify a species, or for petitions to re vise critical habitat, copies of the noti fication letters or electronic commu nication which petitioners provided to the State agency or agencies respon sible for the management and con servation of fish, plant, or wildlife re sources in each State where the species that is the subject of the petition cur rently occurs. (d) Information to be included in peti tions to add or remove species from the lists, or change the listed status of a spe cies. The Service’s determination as to whether the petition provides substan tial scientific or commercial informa tion indicating that the petitioned ac tion may be warranted will depend in part on the degree to which the peti tion includes the following types of in formation: (1) Information on current population status and trends and estimates of cur rent population sizes and distributions, both in captivity and the wild, if avail able; (2) Identification of the factors under section 4(a)(1) of the Act that may af fect the species and where these factors are acting upon the species; (3) Whether and to what extent any or all of the factors alone or in com bination identified in section 4(a)(1) of the Act may cause the species to be an endangered species or threatened spe cies (i.e., the species is currently in danger of extinction or is likely to be come so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the spe cies and its habitat are; (4) Information on adequacy of regu latory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) A complete, balanced representa tion of the relevant facts, including in formation that may contradict claims in the petition. (e) Information to be included in peti tions to revise critical habitat. The Serv ices’ determinations as to whether the petition provides substantial scientific information indicating that the peti tioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) A description and map(s) of areas that the current designation does not include that should be included, or in cludes that should no longer be in cluded, and a description of the bene fits of designating or not designating these specific areas as critical habitat. Petitioners should include sufficient supporting information to substantiate the requested changes, which may in clude GIS data or boundary layers that relate to the request, if appropriate; (2) A description of physical or bio logical features essential for the con servation of the species and whether they may require special management considerations or protection; (3) For any areas petitioned to be added to critical habitat within the geographical area occupied by the spe cies at time it was listed, information indicating that the specific areas con tain one or more of the physical or bio logical features (including characteris tics that support ephemeral or dy namic habitat conditions) that are es sential to the conservation of the spe cies and may require special manage ment considerations or protection. The petitioner should also indicate which specific areas contain which features; VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00419 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 410 50 CFR Ch. IV (10–1–22 Edition) § 424.14 (4) For any areas petitioned for re moval from currently designated crit ical habitat within the geographical area occupied by the species at the time it was listed, information indi cating that the specific areas do not contain the physical or biological fea tures (including characteristics that support ephemeral or dynamic habitat conditions) that are essential to the conservation of the species, or that these features do not require special management considerations or protec tion; (5) For areas petitioned to be added to or removed from critical habitat that were outside the geographical area occupied by the species at the time it was listed, information indi cating why the petitioned areas are or are not essential for the conservation of the species; and (6) A complete, balanced representa tion of the relevant facts, including in formation that may contradict claims in the petition. (f) Response to petitions. (1) If a re quest does not meet the requirements set forth at paragraph (c) of this sec tion, the Services will generally reject the request without making a finding, and will, within a reasonable time frame, notify the sender and provide an explanation of the rejection. However, the Services retain discretion to proc ess a petition where the Services deter mine there has been substantial com pliance with the relevant require ments. (2) If a request does meet the require ments set forth at paragraph (c) of this section, the Services will acknowledge receipt of the petition by posting infor mation on the respective Service’s Web site. (g) Supplemental information. If the petitioner provides supplemental infor mation before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted informa tion, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. (h) Findings on petitions to add or re move a species from the lists, or change the listed status of a species. (1) To the maximum extent practicable, within 90 days of receiving a petition to add a species to the lists, remove a species from the lists, or change the listed sta tus of a species, the Services will make a finding as to whether the petition presents substantial scientific or com mercial information indicating that the petitioned action may be war ranted. The Services will publish the finding in the FEDERAL REGISTER. (i) For the purposes of this section, ‘‘substantial scientific or commercial information’’ refers to credible sci entific or commercial information in support of the petition’s claims such that a reasonable person conducting an impartial scientific review would con clude that the action proposed in the petition may be warranted. Conclu sions drawn in the petition without the support of credible scientific or com mercial information will not be consid ered ‘‘substantial information.’’ (ii) In reaching the initial finding on the petition, the Services will consider the information referenced at para graphs (c), (d), and (g) of this section. The Services may also consider infor mation readily available at the time the determination is made. The Serv ices are not required to consider any supporting materials cited by the peti tioner if the cited document is not pro vided in accordance with paragraph (c)(6) of this section. (iii) The ‘‘substantial scientific or commercial information’’ standard must be applied in light of any prior re views or findings the Services have made on the listing status of the spe cies that is the subject of the petition. Where the Services have already con ducted a finding on, or review of, the listing status of that species (whether in response to a petition or on the Services’ own initiative), the Services will evaluate any petition received thereafter seeking to list, delist, or re classify that species to determine whether a reasonable person con ducting an impartial scientific review would conclude that the action pro posed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action, a petitioned action generally would not be considered to VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00420 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 411 FWS, DOI, and NOAA, Commerce § 424.14 present substantial scientific and com mercial information indicating that the action may be warranted unless the petition provides new information not previously considered. (2) If the Services find that a petition presents substantial information indi cating that the petitioned action may be warranted, the Services will com mence a review of the status of the spe cies concerned. At the conclusion of the status review and within 12 months of receipt of the petition, the Services will make one of the following find ings: (i) The petitioned action is not war ranted, in which case the Service shall publish a finding in the FEDERAL REG ISTER. (ii) The petitioned action is war ranted, in which case the Services shall publish in the FEDERAL REGISTER a pro posed regulation to implement the ac tion pursuant to § 424.16; or (iii) The petitioned action is war ranted, but: (A) The immediate proposal and timely promulgation of a regulation to implement the petitioned action is pre cluded because of other pending pro posals to list, delist, or change the list ed status of species; and (B) Expeditious progress is being made to list, delist, or change the list ed status of qualified species, in which case such finding will be published in the FEDERAL REGISTER together with a description and evaluation of the rea sons and data on which the finding is based. The Secretary will make any de termination of expeditious progress in relation to the amount of funds avail able after complying with nondis cretionary duties under section 4 of the Act and court orders and court-ap proved settlement agreements to take actions pursuant to section 4 of the Act. (3) If a finding is made under para graph (h)(2)(iii) of this section with re gard to any petition, the Services will, within 12 months of such finding, again make one of the findings described in paragraph (h)(2) of this section with re gard to such petition. (i) Findings on petitions to revise crit ical habitat. (1) To the maximum extent practicable, within 90 days of receiving a petition to revise a critical habitat designation, the Services will make a finding as to whether the petition pre sents substantial scientific informa tion indicating that the revision may be warranted. The Services will publish such finding in the FEDERAL REGISTER. (i) For the purposes of this section, ‘‘substantial scientific information’’ refers to credible scientific information in support of the petition’s claims such that a reasonable person conducting an impartial scientific review would con clude that the revision proposed in the petition may be warranted. Conclu sions drawn in the petition without the support of credible scientific informa tion will not be considered ‘‘substan tial information.’’ (ii) The Services will consider the in formation referenced at paragraphs (c), (e), and (g) of this section. The Services may also consider other information readily available at the time the deter mination is made in reaching its initial finding on the petition. The Services are not required to consider any sup porting materials cited by the peti tioner if the cited documents are not provided in accordance with paragraph (b)(6) of this section. (2) If the Services find that the peti tion presents substantial information that the requested revision may be warranted, the Services will determine, within 12 months of receiving the peti tion, how to proceed with the requested revision, and will promptly publish no tice of such intention in the FEDERAL REGISTER. That notice may, but need not, take a form similar to one of the findings described under paragraph (h)(2) of this section. (j) Petitions to designate critical habitat or adopt rules under sections 4(d), 4(e), or 10(j) of the Act. The Services will con duct a review of petitions to designate critical habitat or to adopt a rule under section 4(d), 4(e), or 10(j) of the Act in accordance with the Adminis trative Procedure Act (5 U.S.C. 553) and applicable Departmental regulations, and take appropriate action. (k) Withdrawal of petition. A peti tioner may withdraw the petition at any time during the petition process by submitting such request in writing. If a petition is withdrawn, the Services may, at their discretion, discontinue action on the petition finding, even if VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00421 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 412 50 CFR Ch. IV (10–1–22 Edition) § 424.15 the Services have already made a 90 day finding that there is substantial information indicating that the re quested action may be warranted. [81 FR 66484, Sept. 27, 2016] § 424.15 Notices of review. (a) If the Secretary finds that one of the actions described in § 424.10 may be warranted, but that the available evi dence is not sufficiently definitive to justify proposing the action at that time, a notice of review may be pub lished in the FEDERAL REGISTER. The notice will describe the measure under consideration, briefly explain the rea sons for considering the action, and so licit comments and additional informa tion on the action under consideration. (b) The Secretary from time to time also may publish notices of review con taining the names of species that are considered to be candidates for listing under the Act and indicating whether sufficient scientific or commercial in formation is then available to warrant proposing to list such species, the names of species no longer being con sidered for listing, or the names of list ed species being considered for delisting or reclassification. However, none of the substantive or procedural provisions of the Act apply to a species that is designated as a candidate for listing. (c) Such notices of review will invite comment from all interested parties regarding the status of the species named. At the time of publication of such a notice, notification in writing will be sent to State agencies in any af fected States, known affected Federal agencies, and, to the greatest extent practicable, through the Secretary of State, to the governments of any for eign countries in which the subject spe cies normally occur. § 424.16 Proposed rules. (a) General. Based on the information received through §§ 424.13, 424.14, 424.15, and 424.21, or through other available avenues, the Secretary may propose re vising the lists as described in § 424.10. (b) Contents. A notice of a proposed rule to carry out one of the actions de scribed in § 424.10 will contain a de tailed description of the proposed ac tion and a summary of the data on which the proposal is based (including, as appropriate, citation of pertinent in formation sources) and will show the relationship of such data to the rule proposed. If such a rule proposes to des ignate or revise critical habitat, such summary will, to the maximum extent practicable, include a brief description and evaluation of those activities (whether public or private) that, in the opinion of the Secretary, if under taken, may adversely modify such habitat or may be affected by such des ignation. For any proposed rule to des ignate or revise critical habitat, the detailed description of the action will include a map of the critical habitat area, and may also include rule text that clarifies or modifies the map. Any such notice proposing the listing, delisting, or reclassification of a spe cies or the designation or revision of critical habitat will also include a summary of factors affecting the spe cies and/or its designated critical habi tat. (c) Procedures—(1) Notifications. In the case of any proposed rule to list, delist, or reclassify a species, or to designate or revise critical habitat, the Secretary shall— (i) Publish notice of the proposal in the FEDERAL REGISTER; (ii) Give actual notice of the pro posed regulation to the State agency in each State in which the species is be lieved to occur and to each county or equivalent jurisdiction therein in which the species is believed to occur, and invite the comment of each such agency and jurisdiction; (iii) Give notice of the proposed regu lation to any Federal agencies, local authorities, or private individuals or organizations known to be affected by the rule; (iv) Insofar as practical, and in co operation with the Secretary of State, give notice of the proposed regulation to list, delist, or reclassify a species to each foreign nation in which the spe cies is believed to occur or whose citi zens harvest the species on the high seas, and invite the comment of such nation; (v) Give notice of the proposed regu lation to such professional scientific organizations as the Secretary deems appropriate; and VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00422 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 413 FWS, DOI, and NOAA, Commerce § 424.18 (vi) Publish a summary of the pro posed regulation in a newspaper of gen eral circulation in each area of the United States in which the species is believed to occur. (2) Period of public comments. At least 60 days shall be allowed for public com ment following publication in the FED ERAL REGISTER of a rule proposing the listing, delisting, or reclassification of a species, or the designation or revision of critical habitat. All other proposed rules shall be subject to a comment pe riod of at least 30 days following publi cation in the FEDERAL REGISTER. The Secretary may extend or reopen the pe riod for public comment on a proposed rule upon a finding that there is good cause to do so. A notice of any such ex tension or reopening shall be published in the FEDERAL REGISTER, and shall specify the basis for so doing. (3) Public hearings. The Secretary shall promptly hold at least one public hearing if any person so requests with in 45 days of publication of a proposed regulation to list, delist, or reclassify a species, or to designate or revise crit ical habitat. Notice of the location and time of any such hearing shall be pub lished in the FEDERAL REGISTER not less than 15 days before the hearing is held. [49 FR 38908, Oct. 1, 1984, as amended at 77 FR 25622, May 1, 2012] § 424.17 Time limits and required ac tions. (a) General. (1) Within 1 year of the publication of a rule proposing to de termine whether a species is an endan gered or threatened species, or to des ignate or revise critical habitat, the Secretary shall publish one of the fol lowing in the FEDERAL REGISTER: (i) A final rule to implement such de termination or revision, (ii) A finding that such revision should not be made, (iii) A notice withdrawing the pro posed rule upon a finding that avail able evidence does not justify the ac tion proposed by the rule, or (iv) A notice extending such 1-year period by an additional period of not more than 6 months because there is substantial disagreement among sci entists knowledgeable about the spe cies concerned regarding the suffi ciency or accuracy of the available data relevant to the determination or revision concerned. (2) If an extension is made under paragraph (a)(1)(iv) of this section, the Secretary shall, within the extended period, take one of the actions de scribed in paragraphs (a)(1) (i), (ii), or (iii) of this section. (3) If a proposed rule is withdrawn under paragraph (a)(1)(iii) of this sec tion, the notice of withdrawal shall set forth the basis upon which the pro posed rule has been found not to be supported by available evidence. The Secretary shall not again propose a rule withdrawn under such provision except on the basis of sufficient new in formation that warrants a reproposal. (b) Critical habitat designations. A final rule designating critical habitat of an endangered or a threatened spe cies shall to the extent permissible under § 424.12 be published concurrently with the final rule listing such species, unless the Secretary deems that— (1) It is essential to the conservation of such species that it be listed prompt ly; or (2) Critical habitat of such species is not then determinable, in which case, the Secretary, with re spect to the proposed regulation to des ignate such habitat, may extend the 1 year period specified in paragraph (a) of this section by not more than one additional year. Not later than the close of such additional year the Sec retary must publish a final regulation, based on such data as may be available at that time, designating, to the max imum extent prudent, such habitat. § 424.18 Final rules—general. (a) Contents. A final rule promulgated to carry out the purposes of the Act will be published in the FEDERAL REG ISTER. This publication will contain a detailed description of the action being finalized, a summary of the comments and recommendations received in re sponse to the proposal (including appli cable public hearings), summaries of the data on which the rule is based and the relationship of such data to the final rule, and a description of any con servation measures available under the rule. Publication of a final rule to list, VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00423 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 414 50 CFR Ch. IV (10–1–22 Edition) § 424.19 delist, or reclassify a species or des ignate or revise critical habitat will also provide a summary of factors af fecting the species. (1) For a rule designating or revising critical habitat, the detailed descrip tion of the action will include a map of the critical habitat area, and may also include rule text that clarifies or modi fies the map. The map itself, as modi fied by any rule text, constitutes the official boundary of the designation. (i) The Service responsible for the designation will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Serv ice promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. (ii) In addition, if the Service respon sible for the designation concludes that additional tools or supporting informa tion would be appropriate and would help the public understand the official boundary map, it will, for the conven ience of the public, make those addi tional tools and supporting informa tion available on our Internet sites and at the lead field office of the Service that is responsible for the critical habi tat designation (and may also include it in the preamble and/or at www.regulations.gov). (2) The rule will, to the maximum ex tent practicable, include a brief de scription and evaluation of those ac tivities (whether public or private) that might occur in the area and which, in the opinion of the Secretary, may adversely modify such habitat or be affected by such designation. (b) Effective date. A final rule shall take effect— (1) Not less than 30 days after it is published in the FEDERAL REGISTER, except as otherwise provided for good cause found and published with the rule; and (2) Not less than 90 days after (i) pub lication in the FEDERAL REGISTER of the proposed rule, and (ii) actual noti fication of any affected State agencies and counties or equivalent jurisdic tions in accordance with § 424.16(c)(1)(ii). (c) Disagreement with State agency. If a State agency, given notice of a pro posed rule in accordance with § 424.16(c)(1)(ii), submits comments dis agreeing in whole or in part with a pro posed rule, and the Secretary issues a final rule that is in conflict with such comments, or if the Secretary fails to adopt a regulation for which a State agency has made a petition in accord ance with § 424.14, the Secretary shall provide such agency with a written jus tification for the failure to adopt a rule consistent with the agency’s comments or petition. [49 FR 38908, Oct. 1, 1984, as amended at 77 FR 25622, May 1, 2012] § 424.19 Impact analysis and exclu sions from critical habitat. (a) At the time of publication of a proposed rule to designate critical habitat, the Secretary will make avail able for public comment the draft eco nomic analysis of the designation. The draft economic analysis will be sum marized in the FEDERAL REGISTER no tice of the proposed designation of crit ical habitat. (b) Prior to finalizing the designation of critical habitat, the Secretary will consider the probable economic, na tional security, and other relevant im pacts of the designation upon proposed or ongoing activities. The Secretary will consider impacts at a scale that the Secretary determines to be appro priate, and will compare the impacts with and without the designation. Im pacts may be qualitatively or quan titatively described. (c) The Secretary has discretion to exclude any particular area from the critical habitat upon a determination that the benefits of such exclusion out weigh the benefits of specifying the particular area as part of the critical habitat. In identifying those benefits, in addition to the mandatory consider ation of impacts conducted pursuant to paragraph (b) of this section, the Sec retary may assign the weight given to any benefits relevant to the designa tion of critical habitat. The Secretary, however, will not exclude any par ticular area if, based on the best sci entific and commercial data available, the Secretary determines that the fail ure to designate that area as critical VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00424 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B 415 FWS, DOI, and NOAA, Commerce § 424.21 habitat will result in the extinction of the species concerned. [78 FR 53076, Aug. 28, 2013] § 424.20 Emergency rules. (a) Sections 424.16, 424.17, 424.18, and 424.19 notwithstanding, the Secretary may at any time issue a regulation im plementing any action described in § 424.10 in regard to any emergency pos ing a significant risk to the well-being of a species of fish, wildlife, or plant. Such rules shall, at the discretion of the Secretary, take effect immediately on publication in the FEDERAL REG ISTER. In the case of any such action that applies to a resident species, the Secretary shall give actual notice of such regulation to the State agency in each State in which such species is be lieved to occur. Publication in the FED ERAL REGISTER of such an emergency rule shall provide detailed reasons why the rule is necessary. An emergency rule shall cease to have force and effect after 240 days unless the procedures de scribed in §§ 424.16, 424.17, 424.18, and 424.19 (as appropriate) have been com plied with during that period. (b) If at any time after issuing an emergency rule, the Secretary deter mines, on the basis of the best sci entific and commercial data available, that substantial evidence does not then exist to warrant such rule, it shall be withdrawn. § 424.21 Periodic review. At least once every 5 years, the Sec retary shall conduct a review of each listed species to determine whether it should be delisted or reclassified. Each such determination shall be made in accordance with §§ 424.11, 424.16, and 424.17 of this part, as appropriate. A no tice announcing those species under ac tive review will be published in the FEDERAL REGISTER. Notwithstanding this section’s provisions, the Secretary may review the status of any species at any time based upon a petition (see § 424.14) or upon other data available to the Service. SUBCHAPTER B [RESERVED] VerDate Sep<11>2014 14:05 Oct 24, 2022 Jkt 256246 PO 00000 Frm 00425 Fmt 8010 Sfmt 8010 Q:\50\50V11.TXT PC31kp ay ne o n V M O F R W IN 70 2 w ith $ $ JO B