[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)]
[Rules and Regulations]
[Pages 64481-64485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30947]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Notice of Final
Decision on Identification of Candidates for Listing as Endangered or
Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of final decision.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) has decided to
discontinue the practice of maintaining a list of species regarded as
``category-2 candidates.'' Future lists of species that are candidates
for listing under the Endangered Species Act (Act) will be restricted
to those species for which the Service has on file sufficient
information to support issuance of a proposed listing rule. A variety
of other lists describe ``species of concern'' or ``species in
decline'' and the Service believes that these lists are more
appropriate for use in land management planning and natural resource
conservation efforts that extend beyond the mandates of the Act. The
Service is committed to working closely with the State natural resource
and natural heritage agencies, Territories and Tribes, other Federal
agencies, and other interested parties to cooperatively identify new
species that should be regarded as candidates for protection under the
Act. The Service will continue to contract for, solicit, and accept
information on the biological status and threats facing individual
species on a continuing basis.
ADDRESSES: The complete record pertaining to this matter is available
for inspection, by appointment, during normal business hours at the
Division of Endangered Species, U.S. Fish and Wildlife Service, 4401
North Fairfax Drive, Room 452, Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service (telephone: 703/358-
2171; facsimile: 703/358-1735) (see ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Background
On February 28, 1996, the Service published a revised candidate
notice of review in the Federal Register (61 FR 7596) that announced
changes to the way the Service identifies species that are candidates
for listing under the Endangered Species Act of 1973 (Act), as amended
(16 U.S.C. 1531 et seq.). The Service noted its intention to
discontinue maintaining a list of species that were previously
identified as ``Category-2 candidates.'' Category-2 candidates were
species for which the Service had information indicating that
protection under the Act may be warranted but for which it lacked
sufficient information on status and threats to determine if elevation
to ``category-1 candidate'' status was warranted.
In addition to soliciting biological information on taxa that are
candidates for listing under the Act, the Service also solicited public
comments of a general nature when it announced the revisions to the
candidate identification process in the February 28, 1996, notice (61
FR 7596). The candidate notice specified no closing date for comments
of either a general or a species-specific nature. On September 17,
1996, the Service published in the Federal Register (61 FR 48875) a
notice announcing that it would consider all public comments on the
matter of discontinuing the practice of identifying category-2
candidate species that were received on or before October 17, 1996. In
the September 17, 1996, notice (61 FR 48875), the Service stated that
it would publish a subsequent notice in the Federal Register addressing
comments received and indicating a final decision on this issue and how
the Service intends to identify species that are under consideration
for possible addition to the list of endangered or threatened species.
As solicited in the Service's February 28, 1996, candidate notice
(61 FR 7596), comments and information relating to the biological
status and threats of particular taxa that are, or should be, regarded
as candidates for protection under the Act may be submitted at any time
to the Regional Director of the Region identified as having lead
responsibility. Biological status and threat information for species
that do not have a designated lead Region should be submitted to the
Division of Endangered Species, Washington, D.C. (see ADDRESSES
section).
When the Service first started publishing comprehensive lists of
candidates and potential candidates, no comparable list existed because
few organizations were tracking species of concern. Now, a number of
agencies and organizations track species that may be declining,
including State natural resource agencies and Natural Heritage
Programs, Federal land-management agencies, the Biological Resources
Division of the U.S. Geological Survey (USGS), professional societies,
and conservation organizations. The added attention and wider range of
focus means that there is vastly superior information available on
species of concern than was maintained in the Service's list of
category-2 species. Duplicative effort to maintain lists is not the
best use of limited endangered species funding.
The quality of the information supporting the former category-2
list varied considerably, ranging from extremely limited or old data to
fairly comprehensive assessments. It is the intent of the Service to
work with all interested parties and to use scientifically credible
sources of peer-reviewed information, when available, to identify new
candidate species.
The need for a species of concern list extends beyond
implementation of the Endangered Species Act. Using the old category-2
list as a ``species of concern'' list was inappropriate; it is widely
believed that sensitive, rare, and declining species are more inclusive
than those found in the old category-2 list. Many Divisions of the Fish
and Wildlife Service, such as Migratory Birds, Refuges, Endangered
Species, Habitat Conservation, Environmental Contaminants, and Fish and
Wildlife Management Assistance will continue to work with partners to
identify and protect species of concern.
The result of such collaboration should be a far more comprehensive
and
[[Page 64482]]
reliable accounting of biological resources that are declining or
otherwise at risk. This approach is consistent with the purposes of
numerous Federal environmental policies and statutes, not just the Act.
Summary of Comments and Recommendations
The Service received 163 comment letters--one from a Federal
agency, 10 from State agencies, and 152 from individuals or groups. One
commenter supported the proposed action, 159 expressed concerns, and 3
were either neutral or expressed support and opposition equally.
Comments received during the comment period are addressed in the
following summary. Comments of a similar nature are grouped into a
number of general issues. These issues and the Service's response to
each are discussed below.
Issue 1: Commenters noted that the category-2 list was a critically
important tool for agencies, researchers, and other partners in land-
use planning. Commenters claimed that elimination of the category-2
list will prevent land-use planners from easily identifying which
species are at risk. Respondents also commented that the category-2
list provided greater certainty to private landowners by notifying them
of species for which management actions might later be needed.
Service Response: While a list of species of concern is highly
useful in conserving plant and wildlife species, it is important to
recognize that this purpose is far broader than the purposes of the
Act. The Act is meant to serve as a ``safety net,'' to identify species
at risk of extinction and focus efforts to recover those species. There
are numerous Federal laws, such as the National Forest Management Act
and the Federal Land Management Planning Act, that have broad mandates
to protect biodiversity. Limiting the application of these laws only to
species under study for possible listing under the Act would be too
narrowly focused.
The Service's former list of category-2 species was far from a
thorough compilation of species of concern. In fact, the quality of the
information supporting the category-2 list varied considerably, ranging
from extremely limited or old data to fairly comprehensive assessments.
When the Service first started publishing comprehensive lists of
candidates and potential candidates, no comparable list existed because
few groups were tracking species of concern. Now a number of groups
track declining species, including State natural resource agencies and
Natural Heritage Programs, Federal land-management agencies, the
Biological Resources Division of the USGS, professional societies, and
conservation organizations. Given the Service's budgetary constraints
and ever-increasing workloads, the Service can no longer afford to
duplicate these efforts and instead must be a partner in contributing
to these various sources.
The Service will continue to take a proactive role in species
conservation. The Service acknowledges that an effective program for
the conservation of endangered species requires a means of addressing
species that have not yet been listed but that face immediate,
identifiable risks. Numerous Service programs are already actively
working with partners and other knowledgeable individuals to identify
species of concern, identify research needs, set priorities for
developing the information, and determine how to accomplish the work
needed to resolve the species' status. For example, the Service's
Refuges program works to conserve many declining species, not merely
those that are listed under the Act. The Migratory Bird Management
Office identifies ``species of management concern'' to focus attention
on declining bird species and the Division of Habitat Conservation
works with private landowners across the nation to conserve species and
habitats through the ``Partners for Wildlife'' program.
Federal agencies, consultants, permit applicants, and others
routinely request lists of species from the Service to use during
project planning and for other purposes. These requests are often
associated with activities that could require consultations under
section 7 of the Act or section 10 permits. The Service will continue
to be responsive by providing information on candidate, proposed and
listed species and proposed or designated critical habitat. Where
possible, the Service will refer the requestor to other appropriate
sources for information on species of concern or other environmental
issues that may occur in or near the project area.
Many agencies, such as the USFS, BLM, and DOD, are working with The
Nature Conservancy's (TNC) Heritage system to evaluate including all
``G1-G3'' species and ``T1-T3'' subspecies on their sensitive lists.
Such efforts should lead to the shared interagency use of a more
comprehensive list than the Service's former category-2 list.
The mandates of most Federal land-managing agencies exceed those of
the Act in protecting biodiversity on their lands. The Act is a tool to
be used when species decline despite these other mandates. To enhance
interagency efforts to conserve candidates and other species of
concern, the USFS, BLM, NPS, National Marine Fisheries Service, and the
Service entered into a MOU that creates a framework for cooperation to
conserve species and their habitats before they reach the point where
listing may be necessary. Although the MOU was signed in January 1994,
when the Service still maintained a category-2 list, compliance with
the MOU is in no way dependent upon the existence of that list. The
Service and these agencies remain committed to the concept of
addressing conservation needs of both candidate species and other
species of concern.
Issue 2: The Service should clarify the process it intends to use
to identify potential candidate species. The commenters also asked for
clarification on the mechanism the Service will use to determine which
species need status reviews.
Service Response: The Service's Endangered Species Program will
identify candidates for addition to the list of endangered or
threatened species through a collaborative process among all Federal,
State, Tribal, and private partners. The Service's Endangered Species
staff will take an active role with these partners to identify species
that should be candidates for listing under the Act, identify research
needs, set priorities for developing the information and determine how
to accomplish the work needed to resolve the conservation status of
species.
Tools available to the Service and its partners for use as a
foundation for identifying potential candidates include: the Natural
Heritage Central Database of The Nature Conservancy (TNC) and the
International Network of Natural Heritage Programs and Conservation
Data Centres, the Service's list of Migratory Nongame Birds of
Management Concern in the United States, species protected by State
endangered species laws or identified by State agencies as rare or
vulnerable, species identified by other Federal agencies as vulnerable
or of management concern such as the USFS and BLM ``sensitive
species,'' and species identified by professional scientific societies
as rare or vulnerable (e.g., the American Fisheries Society and
National Audubon Society/Partners in Flight).
One of the most comprehensive information sources on rare or
imperiled species is the Natural Heritage Central Database, developed
by TNC and the network of State Natural Heritage programs. This
database ranks the conservation status of species at the
[[Page 64483]]
global, national, and state levels and is available from TNC and the
State Heritage programs. At present, the Service regards the species
ranked G1, G2, or G3, and subspecies ranked T1, T2, or T3, in the TNC
database as a reasonable subset of species and subspecies from which to
identify those that may be candidates for listing under the Act.
When all available information has been evaluated, the Service will
determine whether a species, subspecies, or distinct population segment
meets the information standards and status criteria for listing and
should be placed on the candidate list. Recognized subspecies and
species, as well as distinct population segments, will be recommended
by the Regional Director to the Service's Director for addition to the
candidate list. Other species may warrant further review or monitoring
or not warrant further consideration for listing.
A status review is the act of reviewing all the available
information on a species to determine whether it should be considered
for candidate status. Status reviews are a required component of the
listing process (section 4(b)(1)(A) of the Act). The mechanism for
identifying species needing status reviews has not significantly
changed. Service offices will continue to work with State and Federal
biologists and other knowledgeable individuals to identify the highest
priority species of concern, identify research needs, set priorities
for developing the information and determine how to accomplish the work
needed to resolve species status. The Service will maximize its limited
resources through a stronger emphasis on a collaborative process
between the Service and its partners to rank these species by their
need for study and accomplish these studies cooperatively. State
agencies, often using funds partially provided under section 6 of the
Act, conduct status reviews on species of concern annually. The
Biological Resources Division of the USGS annually requests proposals
for research on species-at-risk, including status assessments. Because
the Service is involved in the call for proposals, it can help focus
such proposals on priority species. The Service believes that this is a
more effective and efficient way to develop and compile the information
needed to make biologically and ecologically sound, cost-effective
decisions.
Non-candidate species under petition for listing will require
initiation of a status review whenever the Service makes a finding that
the petitioners presented substantial scientific data indicating that
listing may be warranted. If the Service makes a 12-month finding of
``warranted'' or ``warranted but precluded,'' the species would then be
considered as a candidate species.
The Service will publish an annual Notice of Review to provide an
updated list of candidate species to advise other Federal agencies,
State and Tribal governments, local governments, industry, and the
public of those species that are candidates for a listing proposal
under the Act. Publishing this list annually, rather than biennially as
before, will ensure that an updated list is always available. This will
allow resource managers to alleviate threats and thereby possibly
remove the need to list these species. The annual revision to the
candidate list will also serve as recycled petition findings until a
final determination can be made on whether to publish a listing
proposal for a particular candidate species.
Issue 3: Commenters stated that the regularly updated Notices of
Review for candidates have provided a key source of public information
and a process for public review, input, and refinement. The commenters
were concerned that without a category-2 list maintained by the
Service, that publicly available information source will no longer
exist. They stated that the public will not know where to submit new
information or research results on former category-2 species.
Service Response: The Service will continue to accept data and
other information on all species. The Service's Notice of Review for
candidate species, published annually, requests information on the
species currently considered candidates as well as any other species
that may warrant candidate status. The addresses of the Service's
regional offices and the states for which they have jurisdiction are
included in the Notice of Review.
The process of providing new information or research results to the
Service has not changed. The Service will continue to receive such
information for review and consideration. Under a current cooperative
agreement with TNC, the Service shares information with TNC for
incorporation into the Natural Heritage Central Database. A number of
other currently available tools used to identify species of concern in
order to focus research efforts and for planners to use in their
decision-making process were listed under Issues 1 and 2.
Issue 4: Commenters noted that prior to the new candidate policy,
category-2 species were considered in section 7 consultations and
Habitat Conservation Plans (HCPs). They stated that excluding those
species from section 7 consultations and HCPs may result in further
declines in their status, in some cases to the point of requiring
listing.
Service Response: The consideration of category-2 candidates in
project planning was always discretionary because candidate species
receive no statutory protection under the Act. The Service recognizes
that the category-2 candidate list was used as a planning tool;
however, more complete and more appropriate lists are now available for
that purpose (as discussed in Issue 1).
Under both section 7 and 10, the Service will continue to encourage
the protection of candidate species and species of concern, but the Act
does not mandate protection for either group. For example, under
section 10, the Service encourages applicants for incidental take
permits to consider candidate species and other unlisted species. The
Service's final HCP Handbook (completed in November 1996) provides that
unlisted species, such as candidate species, former category-2 species,
and other species of concern, may be included in HCPs for listed
species. Furthermore, under section 7 and section 10, the Service will
continue to aid in the identification of listed, proposed, and
candidate species that may be in or near a project area. The Service
will also refer the requestor to other appropriate sources for
information on species of concern or environmental issues concerns that
may occur in or near the project area (see Issue 1).
Issue 5: Commenters claimed that elimination of the category-2
candidate list is a major Federal action under the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and
requires preparation of an EIS. Furthermore, because other Federal
agencies, such as USFS and BLM, have afforded protection to category-2
species and will no longer be compelled to do so, the commenters
asserted that an EIS must be prepared to evaluate this and all other
direct, indirect, and cumulative impacts associated with eliminating
the category-2 list.
Service Response: The Service does not consider its decision to
discontinue the maintenance of a list of category-2 candidate species
in Notices of Review to be a major Federal action significantly
affecting the quality of the human environment for purposes of NEPA.
(See NEPA section of this notice below for a more detailed discussion.)
The purpose of the NEPA is to ensure that Federal agency planning
and decisions consider environmental values. The Service recognizes
that the
[[Page 64484]]
category-2 list was used as a planning tool by various Federal, State,
and Tribal agencies but these management entities can and should avail
themselves of other information sources (as described previously in
Issue 1) to fill this need. Therefore, the discontinuance of the
category-2 list is not a significant loss as characterized under NEPA.
As stated above, other lists of species of concern are more accurate
and comprehensive than the former category-2 list, and nothing in the
Act requires Federal agencies to use or consider that specific list.
Issue 6: Commenters noted that limited financial resources should
be concentrated on species of greatest concern in a cost-effective
manner before very costly ``emergency room'' measures, such as captive
breeding, are required. They were concerned that under the new
candidate policy, prelisting (candidate conservation) funds will not be
available for species of concern and that it will also become more
difficult for Service offices to obtain badly needed section 6
(Cooperative Endangered Species Grants to States and Territories)
proposals for such species.
Service Response: Funding for the endangered species program has
fallen short of program needs. Therefore, it is important that
appropriations under the Act be directed primarily toward species for
which the Service has direct statutory responsibility under the Act. As
such, expenditure of candidate conservation allocations must be limited
to activities related to identifying candidate species and conserving
candidate species. In fiscal year 1997 the Service will direct roughly
four-fifths of its appropriations (for candidate conservation) to
candidate conservation agreements and activities and one-fifth to
status assessments for species of concern that may warrant candidate
status. Clearly, such a policy achieves the stated goal of focusing
funding on those species thought to be in gravest peril.
Section 6 funds allocated to State and Territorial fish and
wildlife agencies may be used for status assessments for species that
may warrant candidate status and for conservation and recovery of
listed, proposed, and candidate species. Candidate status determination
activities have often occurred through section 6 of the Act. The
Service will continue to work closely with the States and Territories
through existing cooperative agreements to determine the assessments
that should have the highest priority for funding. The Service will
also continue to work with States and Territories to strengthen or
develop cooperative agreements for section 6 activities.
Issue 7: Commenters asserted that the evaluation of former
category-2 species for possible inclusion on the February 28, 1996,
Notice of Review was inadequate because Service Regional offices did
not have enough time to properly evaluate over 4,000 category-2
species. In addition, commenters stated that the Service violated the
public notice and comment requirements of the Act and the
Administrative Procedure Act (APA) by putting its new policy on
candidate species into effect on February 28, 1996, without requesting
a public comment period and evaluating public comments.
Service Response: A Notice of Review is a snapshot of the species
that the Service considers candidates at the time. Service staff will
continue to evaluate species of concern and elevate to candidate status
those that meet the appropriate criteria.
Service Field and Regional offices were provided sufficient advance
notice to evaluate candidate lists for the February 28, 1996, Notice of
Review. The data call for the update of the plant notice was issued in
January 1995, with a response due in 90 days. An update of all plant
and animal taxa that the Regions recommended for category-1 status was
requested on May 17, 1995. In addition, Regional offices were asked on
August 31, 1995, to provide comments or corrections on a draft notice
of review.
In a notice published in the Federal Register on September 17, 1996
(61 FR 48875), the Service notified the public that the comment period
for the new candidate policy would remain open until October 17, and
that public comments would be taken into consideration in developing
the final decision. All procedural requirements of the Act and the APA
have been met.
Issue 8: A commenter requested clarification on a statement in the
February 28, 1996, notice of review regarding whether species not known
to exist in the wild could qualify for candidate status.
Service Response: Species not currently known to exist in the wild,
captivity, or cultivation cannot be considered for candidate status.
However, the Service has not, nor did it intend to, remove species from
consideration for candidate status if they are believed to be extinct
in the wild but known to be extant in captivity or cultivation. Species
that are presently known only in captivity or cultivation, but that
otherwise meet the criteria for listing established by section 4 of the
Act, may be considered as candidates for possible listing.
Issue 9: Commenters stated that they do not believe that public
confusion constitutes a reasonable basis for eliminating the category-2
list. Various commenters suggested changing the name of the list to
``watch list,'' ``species of concern,'' or ``species of uncertain
status,'' rather than eliminating the list altogether.
Service Response: As discussed also in the Background section and
Issue 1 above, the Service's decision to discontinue the category-2
list was based on numerous factors. The quality of the information for
category-2 species was inconsistent and maintenance of such a list by
the Endangered Species program is highly duplicative of other efforts.
A combination of factors, including budgetary priorities, duplicative
functions, uncertain data quality, and public confusion, forms the
basis for the decision to discontinue maintenance of a list of
category-2 species. The Service simply lacks the resources to continue
such a list at a time of shrinking budgets, especially when mandatory
section 4 demands are increasing and when non-Federal sources are
providing a superior product.
Decision
After review of comments and further consideration, the Service
discontinues the maintenance of a list of category-2 species. The
Service's Endangered Species Program will identify candidates for
addition to the list of endangered or threatened species through a
collaborative process between the public and private sectors. The
Service, through all its appropriate programs, will take an active role
with its partners and other knowledgeable individuals to identify and
conserve species of concern, identify research needs, set priorities
for developing the information and determine how to accomplish the work
needed to resolve the status of species.
Tools available to the Service and its partners for use as a
foundation for identifying potential candidates include: the Natural
Heritage Central Database of TNC and the International Network of
Natural Heritage Programs and Conservation Data Centres, the Service's
list of Migratory Nongame Birds of Management Concern in the United
States, species protected by State endangered species laws or
identified by State agencies as rare or vulnerable, species identified
by other Federal agencies as vulnerable or of management concern (e.g.,
the USFS's and BLM's ``sensitive species''), and
[[Page 64485]]
species identified by professional scientific societies as rare or
vulnerable (e.g., the American Fisheries Society and National Audubon
Society/Partners in Flight). The most comprehensive single source of
information on rare or imperilled species is the Natural Heritage
Central Database, developed by TNC and the network of State Natural
Heritage programs, which ranks the conservation status of species at
the global, national, and state levels. This information is available
from TNC and the State Heritage programs.
When all available information has been evaluated, the Service will
determine if a particular species meets the information standards and
status criteria for recognition as a candidate species, and if so, the
Regional Director will recommend to the Service's Director that the
species be added to the candidate list. Other species may warrant
further review or monitoring or not warrant further consideration for
candidate status at that time. Non-candidate species petitioned for
listing will require initiation of a status review when the Service
makes a 90-day finding of ``substantial information.'' If the Service
makes a 12-month finding of ``warranted'' or ``warranted but
precluded,'' the species would then become a candidate. The annual
update of the candidate notice of review will serve as recycled
petition findings until such time as a final determination can be made
on whether a proposed listing rule should be published.
National Environmental Policy Act
As stated in the September 17, 1996, notice (61 FR 48875), the
Service does not consider its decision to discontinue the maintenance
of a list of category-2 species in Notices of Review to be a major
Federal action significantly affecting the quality of the human
environment for purposes of the NEPA.
Further, the Department of the Interior's Departmental Manual (DM)
categorically excludes from consideration under NEPA, ``activities
which are educational, informational, advisory or consultative to other
agencies, public or private entities, visitors, individuals, or the
general public'' (516 DM 2, Appendix 1, item 1.11). Notices of Review
serve the purpose of informing Federal agencies, state agencies, and
the general public of species that are candidates for possible addition
to the lists of endangered or threatened wildlife and plants. They also
serve as data-gathering tools to assist the Service in developing the
best available scientific and commercial data on such species. There is
no statutory or regulatory mandate on how to structure or when to
publish these notices. Therefore, even if the Service's decision to
discontinue maintenance of a list of category-2 species in Notices of
Review were considered an ``action'' for purposes of the NEPA, this
categorical exclusion would apply. The Service also believes that the
exceptions to categorical exclusions (516 DM 2, Appendix 2) would not
be applicable to this decision, especially in light of the absence of
environmental effects for such action.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: November 27, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-30947 Filed 12-4-96; 8:45 am]
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