Revised Petition Regulations Final

Vol. 81

Tuesday,

No. 187

September 27, 2016

Part IV

Department of the Interior
Fish and Wildlife Service

Department of Commerce

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National Oceanic and Atmospheric Administration
50 CFR Part 424
Endangered and Threatened Wildlife and Plants; Revisions to the
Regulations for Petitions; Final Rule

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Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 424
[Docket Nos. FWS–HQ–ES–2015–0016 and
DOC 150506429–6767–04; 4500030113]
RIN 1018–BA53; 0648–BF06

Endangered and Threatened Wildlife
and Plants; Revisions to the
Regulations for Petitions
U.S. Fish and Wildlife Service
(FWS), Interior; National Marine
Fisheries Service (NMFS), National
Oceanic and Atmospheric
Administration (NOAA), Commerce.
ACTION: Final rule.
AGENCY:

We, the U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service (Services),
finalize changes to the regulations
concerning petitions, to improve the
content and specificity of petitions and
to enhance the efficiency and
effectiveness of the petition process to
support species conservation. Our
revisions to the regulations clarify and
enhance the procedures by which the
Services evaluate petitions under
section 4(b)(3) of the Endangered
Species Act of 1973, as amended. These
revisions will also maximize the
efficiency with which the Services
process petitions, making the best use of
available resources.
DATES: This rule is effective October 27,
2016.
FOR FURTHER INFORMATION CONTACT:
Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and
Classification, 5275 Leesburg Pike, Falls
Church, VA 22041–3803; telephone
703/358–2171; facsimile 703/358–1735;
or Angela Somma, National Marine
Fisheries Service, Office of Protected
Resources, 1315 East-West Highway,
Silver Spring, MD 20910; telephone
301/427–8403. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

Background
The Administrative Procedure Act
(APA; 5 U.S.C. 553(e)) gives interested
persons the right to petition for the
issuance, amendment, or repeal of an
agency’s rule. The U.S. Fish and
Wildlife Service and the National

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Marine Fisheries Service (Services) use
the rulemaking process in our
administration of the Endangered
Species Act of 1973 (Act; 16 U.S.C. 1531
et seq.), as amended, in particular
section 4. Section 4(b)(3) of the Act
establishes deadlines and standards for
making findings on petitions to conduct
rulemakings under section 4. Thus, in
this context, the primary purpose of the
Act’s petition process is to empower the
public, in effect, to direct the attention
of the Services to (1) species that may
be imperiled and may warrant listing,
but whose status the Services have not
yet determined, (2) changes to a listed
species’ threats or other circumstances
that may warrant reclassification of that
species’ status (i.e., ‘‘downlisting’’ the
species from an endangered species to a
threatened species, or ‘‘uplisting’’ from
a threatened species to an endangered
species) or delisting of the species (i.e.,
removing the species from the Federal
List of Endangered and Threatened
Wildlife or List of Endangered and
Threatened Plants), or (3) information
that would support making revisions to
critical habitat designations. The
petition process is a central feature of
the Act, and serves a beneficial public
purpose.
Purpose of Revising the Regulations
The Services are revising the
regulations at 50 CFR 424.14 concerning
petitions to improve the content and
specificity of petitions in order to
enhance the efficiency and effectiveness
of the petition process to support
species conservation. Our revisions to
§ 424.14 clarify and enhance the
procedures by which the Services will
evaluate petitions under section 4(b)(3)
of the Act (16 U.S.C. 1533(b)(3)). The
revised regulations pertaining to the
petition process will provide greater
clarity to the public on the petitionsubmission process, which will assist
petitioners in providing complete
petitions. These revisions will also
maximize the efficiency with which the
Services process petitions, making the
best use of available resources. These
changes will improve the quality of
petitions through clarified content
requirements and guidelines, and, in so
doing, better focus the Services’
resources on petitions that merit further
analysis. In the following discussion, we
first summarize the comments received
during the two public comment periods;
we then summarize the changes and
explain the benefits of making these
changes.

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Summary of Comments and
Recommendations
In the proposed rule published on
May 21, 2015 (80 FR 29286), we
requested that all interested parties
submit written comments on the
proposal by July 20, 2015. We did not
receive any requests for a public
hearing. We received several requests
for an extension of the public comment
period, and on July 17, 2015 (80 FR
42466), we extended the public
comment period to October 18, 2015. In
total, we received 347 comments.
After further consideration of the
issues, we revised the proposed rule and
reopened a comment period for an
additional 30 days on April 21, 2016 (81
FR 23448), to allow the public an
opportunity to comment on proposed
changes made in response to the
comments we received on the original
proposal. In that revised rule, we also
requested comment on the information
collection aspects of the proposed rule
under the Paperwork Reduction Act. We
received 27 comments on the revised
proposed rule. All substantive
information and relevant comments
provided during the comment periods
have been considered, and where
appropriate, have either been
incorporated directly into this final rule
or addressed in the more specific
responses to comments below.
Comments are grouped into categories.
General Comments
Comment (1): Several commenters
expressed concern that the proposal
would create a substantial burden and
restriction of petitioners’ rights under
various authorities, including the First
Amendment, APA, and Executive Order
13563.
Our Response: These regulations do
not restrict or limit a citizen’s right to
petition the Services, but rather clarify
the petition process for the public by
identifying what would make the
process most efficient and effective for
both citizens and agencies. Although the
First Amendment to the U.S.
Constitution guarantees members of the
public the rights to, among other things,
‘‘petition the Government for a redress
of grievances’’ and to express their
views, it does not require a Federal
agency to treat every such expression as
a petition under the APA. The APA
requires Federal agencies to give ‘‘an
interested person the right to petition
for the issuance, amendment, or repeal
of a rule,’’ 5 U.S.C. 553(e), but does not
speak to the particulars of the petition
process. As a result, agencies have
discretion to design a reasonable and
efficient process for receiving and

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considering petitions. Many Federal
agencies have developed regulations to
govern the petition process, including
setting out requirements for the content
and informational support of petitions
similar to those included in this final
rule. See Jason A. Schwartz and Richard
L. Revesz, ‘‘Petitions for Rulemaking:
Final Report to the Administrative
Conference of the United States’’ (Nov.
5, 2014). In further response to the
comment, we note that executive orders
such as E.O. 13563 set out guidance for
Federal agencies, but do not create
substantive or procedural rights in any
party.
Comment (2): A commenter noted that
general claims about efficiency do not
justify restrictions on fundamental
rights.
Our Response: The revised
regulations do not restrict the right of
the public to petition the Services under
the Act. Rather, they provide
clarification to petitioners as to what
they must include in a petition in order
for the Services to be able to evaluate
whether or not the petition contains
substantial information indicating that
the petitioned action may be warranted.
As noted above, agencies have
discretion to devise reasonable
requirements as to the format, content
and informational support of petitions
to ensure that agency resources are used
effectively.
Comment (3): A commenter noted that
the Services’ proposed rule departs
significantly from the case law that
states the threshold for a substantial 90day finding is low, and therefore should
not necessitate a petitioner assembling
all the information available on a
species. The Services should make a
preliminary finding on a petition
without access to all of the scientific
information that could be discovered;
that approach is more appropriate in a
status review.
Our Response: The Act places the
obligation squarely on the petitioner to
present the requisite level of
information to meet the ‘‘substantial
information’’ test to demonstrate that
the petitioned action may be warranted.
Therefore, in determining whether the
petition presents substantial
information, the Services are not
required to seek out any supporting
source materials beyond what is
included with a given petition. As a
result, the Services will not base their
90-day findings on any claims for which
supporting source materials have not
been provided in the petition. However,
as discussed in more detail below in the
section, Findings on a Petition to List,
Delist, or Reclassify—Paragraph (h), the
Services are confirming that they have

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the discretion to consider, as
appropriate, readily available
information that provides context
necessary to evaluate whether the
information that a petition presents is
timely and up-to-date, and whether it is
reliable or representative of the
available information on that species, in
making a determination as to whether
the petition presents substantial
information. If the Services were to
consider petitions in a vacuum, this
could lead to consequences that would
be at odds with the purposes of the Act
by diverting agency resources to matters
that only appear superficially to meet
the statutory and regulatory standards
for further consideration. In these
regulatory amendments, the Services
have crafted a balanced approach that
will ensure that the Services may
evaluate the information readily
available to us, without conducting a
more wide-ranging collection of
information and analysis more
appropriate for a 12-month status
review.
Comment (4): Several commenters
expressed concern that the initially
proposed requirements could
potentially be cost-prohibitive with
respect to the provisions for State precoordination and gathering all relevant
data. Thus, whether an interested
person submits a petition to the Services
may be influenced by the financial
capacity of the petitioner, and not based
on the best scientific evidence available.
Our Response: Based on public
feedback and reconsideration of the
issues, the Services revised our original
proposal, as discussed in our April 21,
2016 revised proposed rule (81 FR
23448). In the re-proposal, we modified
the originally proposed requirement for
pre-coordination with States and the
proposed requirement to provide all
relevant data. For further discussion of
these changes, please see comments and
responses below under Paragraph (b)—
Requirement for State Coordination
Prior to Petition Submission to FWS and
Paragraph (c)—All Relevant Data
Certification.
Comment (5): A commenter stated
that the Services should provide
examples of good and bad petitions.
Our Response: In the revised
regulation, we provide greater clarity
and detail as to what elements make up
a thorough, complete, and robust
petition. The facts of each petition may
vary significantly, so it is difficult to
extrapolate that across the board.
However, each petition and subsequent
finding is available on http://
www.regulations.gov, so the public can
evaluate the petitions and findings
themselves.

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Comment (6): A commenter stated
that there should be a nominal filing fee
for each petition. This requirement
could serve as a deterrent for filing
hundreds of petitions at a time.
Our Response: Petitioning the
Services is a right the public has under
the Act and the APA. Neither of those
authorities provides for assessing fees.
We conclude that the petition process is
not like an application for a permit,
where charging a fee may be
appropriate; petitioners do not receive
any tangible authorizations or rights
through submission of a petition.
Instead, the intent of the petition
process is to allow the public to direct
the Services’ attention to a matter
concerning the status of a species under
their jurisdictions and authority.
Comment (7): A commenter stated
that the Services should publish in the
Federal Register notices indicating that
they received petitions to list, delist, or
reclassify a species, or publish the
petitions themselves. Further, the
Services should post all information
from a petition under review on a public
Web site if a species status review is
begun.
Our Response: The Services are
required, to the maximum extent
practicable, to reach an initial finding
on a petition within 90 days of receiving
the petition and to promptly publish
such finding in the Federal Register.
The Act does not include a requirement
to publish notices of the receipt of a
petition. To publish separate Federal
Register notices simply to announce our
receipt of petitions would unnecessarily
burden this process and take resources
away from evaluating petitions and
conducting higher-priority conservation
work. The Services provide information
on publicly accessible Web sites
showing all currently active petitions
(see https://ecos.fws.gov/ecp/report/
table/petitions-received.html and http://
www.nmfs.noaa.gov/), and we make the
petitions available as supporting
information on http://www/
regulations.gov when we publish our
90-day findings.
Comment (8): A commenter stated
that the Services should set up a Web
site for electronic submission of
petitions to offset any potential
increased cost of printing and mailing of
multiple petitions.
Our Response: We currently receive
many petitions electronically by email,
and encourage petitioners to submit
petitions electronically as well. Current
contact information for both Services
may be found on their respective Web
sites, at https://www.fws.gov/ecologicalservices/map/index.html and http://
www.nmfs.noaa.gov/pr/contact.htm.

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However, given the file size of source
information typically provided with
petitions, it may not always be
practicable to provide source material
by email. In such cases, we recommend
that petitioners mail appropriate digitalstorage media (or hard copies, if
preferable to the petitioner) to the
appropriate office. This should help
reduce printing costs for petitioners.
Further, we are not requiring that copies
of petitions be mailed to States.
Comment (9): A commenter noted that
a similar alteration in the citizen
petition process in a 1996 policy was
rejected by the Ninth Circuit Court of
Appeals and the District of Columbia
Court (Ctr. For Biological Diversity v.
Norton, 254 F.3d 833 (9th Cir. 2001);
Am. Lands Alliance v. Norton, 360 F.
Supp. 2d 1, 6 (D.D.C. 2003)). The
proposed rule change at issue here has
the same effect.
Our Response: We have revised the
language of the rule to make clear that
the cases the commenter references do
not apply to this rule. Those cases
involved a provision of the 1996
Petition Management Guidance (PMG)
that stated, ‘‘[A] petition to list a
candidate species is redundant and will
be treated as a second petition.’’ The
PMG also provided that a second
petition would require only a prompt
response informing the submitter of the
prior petition, and would be treated as
a comment on the previous petition.
The courts held that this ‘‘redundancy’’
provision in the PMG violated the Act,
because it allowed the Secretary to
avoid explaining why the petitioned
action was precluded, did not create a
sufficient record to allow for meaningful
judicial review of any finding on a
‘‘redundant’’ petition, and circumvented
the statutory requirement that the
Service comply with deadlines for
making petition findings. In contrast,
this rule, as revised, does not provide
for treating petitions to list a candidate
species as second petitions. Rather,
§ 424.14(h)(1)(iii) provides that any
previous reviews or findings contributes
to the context for making a petition
finding:
The ‘‘substantial scientific or
commercial information’’ standard must
be applied in light of any prior reviews
or findings the Services have made on
the listing status of the species that is
the subject of the petition. Where the
Services have already conducted 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
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reasonable person conducting an
impartial scientific review would
conclude that the action proposed 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 present
substantial scientific and commercial
information indicating that the action
may be warranted unless the petition
provides new information not
previously considered.
As explained in response to Comment
(55), below, all requests which meet the
requirements of § 424.14(c) are
considered petitions, will be evaluated,
and a finding will be made. Therefore,
§ 424.14(h)(1)(iii) does not suffer from
the deficiencies that the courts
identified with respect to the
‘‘redundancy’’ provision in the PMG.
The Services will still evaluate and
make petition findings on all petitions
they receive regardless of whether the
species is already a candidate or a
finding on a petition requesting the
same action has already been made. In
making such a petition finding, we
would have created a record that would
allow for meaningful review not only of
any determination that listing is
warranted, but also of any
determination that listing is precluded
by higher-priority listing actions and we
are making expeditious progress
towards adding qualified species to the
lists. Finally, the findings on such a
petition will still be subject to the Act’s
statutory deadlines.
Comment (10): A commenter stated
that petitioners should be advised if
their request was screened out and
provided with the reasons for the
petition rejection. The Services could
develop a form letter indicating which
mandatory requirements the petition
was missing. This way, a petitioner may
easily understand which items of
information should have been included
in the petition but were not.
Our Response: Section 424.14(e)(1) of
the revised proposed rule (81 FR 23448;
April 21, 2016) (§ 424.14(f)(1) in this
rule) does provide that, if the Services
reject a petition for not meeting the
requirements of proposed § 424.14(b)
(§ 424.14(c) in this rule), they will,
within a reasonable timeframe, notify
the sender and provide an explanation
of the rejection. It further provides that
the Services will generally reject the
request without making a finding;
therefore, the submitter could rectify the
deficiencies in the petition and resubmit
it. We appreciate the suggestion of form
letters, and will identify which elements
are missing in our responses.

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Comment (11): A commenter stated
that the Services propose to replace the
title ‘‘the Secretary’’ or ‘‘the Secretaries’’
with ‘‘the Services’’ throughout the
regulation text because the Services are
the designees of the Secretaries of
Commerce and the Interior in
implementing the Act. The commenter
disagreed with the change. Although the
Services are the agencies designated to
implement the Act, the Secretaries are
those designated and confirmed by
Congress to serve on the Cabinet and
responsible for carrying out those
specific acts given to the Executive
Branch by the Legislative Branch of the
government.
Our Response: While we agree that
the authority for making decisions
under the Act ultimately rest with the
Secretaries of Commerce and the
Interior, the Secretaries have formally
delegated authority to make petition
findings to the Services. As such, we
have maintained the language as ‘‘the
Services.’’
Paragraph (b)—Requirement for State
Coordination Prior To Petition
Submission to FWS
Comment (12): We received many
comments raising concerns with the
requirement for State pre-coordination,
as originally proposed on May 21, 2015
(80 FR 29286). These included concerns
that the provision would be too
burdensome, potentially requiring a
petitioner to mail thousands of pages of
petition material; it is outside the
responsibility of the petitioner to do this
coordination; it is the responsibility of
the Services to coordinate with the
States; it could result in adversarial
relationships between petitioners and
States; and it would slow the petition
process. Concerns were also expressed
that the coordination requirement could
create a significant amount of additional
work for State agencies. In addition,
most State commenters requested a
longer coordination period, as long as
120 days.
Our Response: We have removed the
requirement for coordination from this
final rule, and replaced it with the
simpler requirement that a prospective
petitioner send a notification letter to
the State(s) within the current range of
the species stating the intent to file a
petition with either Service at least 30
days prior to filing the petition. This
notification will allow States time and
opportunity to send data directly to the
Services, should they desire. This
change acknowledges the special role of
States as evidenced in section 6 of the
Act while not overly burdening
petitioners.

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While not required under this final
rule, we encourage members of the
public who are preparing a petition to
coordinate with the appropriate State
agencies when gathering information;
this coordination will help in preparing
a complete petition with adequate
information. Additionally, we value the
input and expertise of our State partners
and wish to provide them the
opportunity to be aware that species in
their States are the subject of petitions
and to provide pertinent information on
those species to the Services, should
they have such information and wish to
share it.
Comment (13): Several States and
other commenters expressed concerns
that the Services removed the originally
proposed requirement for full State precoordination, which would have
assured the States a role in the petition
process.
Our Response: Affected States will
have the opportunity to submit data and
information to the Services in the 30day period before a petition is filed.
Further, § 424.14(h)(1)(ii) of this revised
regulation allows us to consider data
and information readily available at the
time the finding is made. Because
information received after the petition is
filed would be readily available at the
time the finding is made, the Services
could consider any information received
up until the time the Services make
their findings (including any data and
information States have voluntarily sent
to the Services in response to the
notification letters).
The requirement of a petitioner to
notify States at least 30 days prior to
filing a petition is a minimum. We
encourage petitioners to notify States
earlier, even as soon as they
contemplate petitioning a species for
protection under the Act. Further, we
encourage petitioners to contact State
wildlife agencies and consult State Web
sites as valuable sources of information
on their subject species, and incorporate
any such information in their petitioned
requests.
The use of such information, up until
the time the Services make their
findings, is a change from prior practice.
However, we find that this change will
expand the ability of the States and any
interested parties to take the initiative of
submitting input and information for
the Services to consider in making
90-day findings, thereby making the
petition process both more efficient and
more thorough. In addition, this
interpretation is consistent with the
statutory purpose and with case law. It
is consistent with the statutory purposes
of the Act because providing for
consideration of all information,

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regardless of when it was received, will
put the Services in a better position to
make the statutorily required finding—
whether or not the petition presents
substantial information indicating that
the petitioned action may be
warranted—by providing factual context
in which to evaluate the information
provided in the petition. Further,
nothing in the Act precludes
consideration of information up until
the time a decision is made. It is
consistent with case law because it
stops short of allowing the Services to
solicit new information for purposes of
a 90-day finding, which courts have
held to be beyond the scope of a 90-day
finding. E.g., Colorado River Cutthroat
Trout v. Kempthorne, 448 F. Supp. 2d
170 (D.D.C. 2006). Please see Findings
on a Petition to List, Delist, or
Reclassify—Paragraph (h) under
Summary of Changes to Previous
Regulations at 50 CFR 424.14, below, for
further discussion.
Comment (14): A commenter
expressed concern that the changed
requirement for State coordination
undermines our expectation that
petitioners present unbiased and
balanced information. If petitioners are
not required to seek State information,
they may keep their awareness of the
complete information intentionally low.
Our Response: While we encourage
prospective petitioners to contact State
wildlife agencies for information on
their subject species as part of creating
a robust, well-balanced petition, we
conclude that at the 90-day finding
stage, it is not appropriate to expect
petitioners to coordinate on the contents
of a petition with another entity.
Comment (15): A commenter
requested that the Services increase the
timeframe for States to respond to a
petition to at least 60 days.
Our Response: The Services think that
a minimum of 30-day notification prior
to filing a petition provides time for
States to engage the Services during the
petition process without substantially
increasing the likelihood that the
Services will be unable to meet the
90-day timeframe. Further, while we
encourage States to submit any
information within this 30-day time
period, the States (and any interested
parties) are able to submit information
up until the finding is made (please see
our response to Comment (13), above).
The requirement that a petitioner
notify States at least 30 days prior to
filing a petition is, as noted, a
minimum. Also, we encourage
petitioners to contact State wildlife
agencies and consult State Web sites as
valuable sources of information on their
subject species, and incorporate any

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such information in their petitioned
requests.
Comment (16): Several commenters
expressed concern that the revised
requirement for State coordination
would create a burden on State
agencies, because it would shift the
States’ role from determining what
information was missing from a petition
to directing their limited resources
towards providing potentially all of the
relevant information on a petitioned
species, even if this is redundant with
what the petitioner eventually provides.
Our Response: This final rule does not
require the States to submit information
to the Services; whether they do so will
be their choice. If a relevant State would
like to have a copy of the petition, they
may ask petitioners or the Services for
a copy, or obtain a copy from the
respective Service’s Web sites after the
petition has been filed.
Comment (17): Commenters noted
that nothing in the Act requires
consultation (with respect to petitions)
with anyone. A requirement to notify a
third party, specifically State agencies,
prior to the submission of a petition
under the Act or the APA is without
legal support. The APA provides the
right of each citizen to petition the
government, and the Act provides the
right to petition for the listing, delisting,
or reclassifying of a species.
Our Response: Section 4(b)(1)(A) and
6 of the Act require the Services to take
into consideration those efforts by States
to protect species and their habitats and
coordinate with States on the
conservation of listed species and
species at risk. Our modified language
requiring petitioners to notify State
wildlife agencies of their intent to file a
petition with respect to a species found
in those States with the appropriate
Service assists us in meeting the
requirements of the Act regarding State
coordination. Our revised requirement
for State coordination does not infringe
on the right of the public to submit
petitions under section 4 of the Act.
Rather, it allows States the opportunity,
should they choose, to participate in the
petition process by providing
information to the Services, while at the
same time removing any potentially
onerous requirements on petitioners.
Comment (18): Several commenters
asked how they determine to which
State agencies they must send letters of
intent to file a petition. One commenter
seemed to suggest that the Services
provide each State the opportunity to
designate all appropriate agencies to
receive a copy of the petition, and
maintain a master contact list for
petitioners to access when contacting
States.

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Our Response: Petitioners must send
letters to the State(s) that are in the
known, current geographic range of the
species. Section 3(18) of the Act defines
the term ‘‘State agency’’ to mean any
State agency, department, board,
commission, or other governmental
entity which is responsible for the
management and conservation of fish,
plant, or wildlife resources within a
State. The Association of Fish and
Wildlife Agencies (AFWA), which is a
professional association for State,
provincial and territorial fish and
wildlife agencies, is a helpful resource
in determining contact information for
State agencies. Further, in researching
the information to support the
petitioned request, the petitioner should
look for range information, and thereby
find the State(s) in which the species
occurs. We note that when there are
multiple range States and in cases
where there is some ambiguity about the
extent of range, we would not envision
rejecting a petition because the
petitioner did not notify every State in
question, as long as it appears that the
petitioner made an attempt to do so.
Comment (19): A commenter
recommended that, to further reduce the
burden on petitioners, petitioners be
allowed to send (email) notification
letters to State wildlife agencies
electronically instead of limiting the
requirement to mailing hard copy
letters.
Our Response: We appreciate this
suggestion, and clarify in this rule that
petitioners are to include copies of
notification letters or emails as a
required part of their petition
submission.
Comment (20): One commenter stated
that the minimum 30-day requirement
for notifying States of intent to file a
petition improperly extends the
mandatory timelines that Congress
established. Another commenter stated
that a required 30-day coordination
timeframe with States could be to the
detriment of imperiled species,
especially those petitioned for
emergency listing.
Our Response: The Act directs the
Services to make a finding on whether
a petition presents substantial scientific
or commercial information indicating
that the petitioned action may be
warranted within 90 days of the receipt
of the petition, to the maximum extent
practicable. The 30 days’ notice that
will be given under the regulations prior
to submitting a petition is by definition
not part of the 90-day statutory
timeframe that begins to run from
receipt of the petition. Further, the State
notification requirement need not delay
petitioners from filing their petitions

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close to the time they would have done
so in the absence of the notification
requirement. In fact, we encourage
prospective petitioners to contact States
notifying them of their intent to file a
petition on a subject species as soon as
they contemplate doing so. Thus, some
or all of the notification period could
run concurrently with the time that the
petitioner is researching and preparing
the petition submission.
Petitioners may request listing on an
emergency basis; however, the Services
are only required to treat such requests
as a regular listing petition, and to
follow the statutory timelines for
responding to the petition as a regular
listing petition. At any time, if one of
the Services determines that there is an
emergency posting a significant risk to
the well-being of a species, it is within
that Service’s discretion under Section
4(b)(7) whether to consider
promulgating a regulation that takes
effect immediately.
Comment (21): A commenter noted
that petitions regarding species under
NMFS jurisdiction should also be
subjected to the provision of precoordination with States within the
range of the petitioned species. They
stated that the rationale of increased
logistical difficulties for petitions on
NMFS species is not a valid argument
because many terrestrial and freshwater
species under FWS jurisdiction are also
wide-ranging and would theoretically
present the same logistical problems.
Our Response: In our revised
proposed rule (81 FR 23448; April 21,
2016), we revised the requirement for
petitioners to simply notify States of
their intent to file petitions at least 30
days prior to submission of petitions to
the Services, and we applied this
requirement to petitions sent to either
Service. Therefore, this final rule
applies to submissions to both NMFS
and FWS.
Comment (22): Several commenters
were opposed to the provision in the
original proposal requiring the
petitioner to certify inclusion of data
from State Web sites, as the information
on those sites is superficial and not
adequate for a species review.
Our Response: After reviewing public
comment on the May 21, 2015,
proposed rule (80 FR 29286), we
developed a revised proposal that
removed this provision. This final
regulation in no way limits petitioners
to the sources of information they may
consult and include in petitions. We
encourage petitioners to use a broad
range of source materials, in order to
create a well-balanced presentation of
facts, including information provided by
researchers, species experts, State data,

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and Tribal information, as well as other
sources.
Comment (23): A commenter
encouraged the Services to reject
petitions that do not include data and
information from the affected States
because, in their view, these would not
present a complete, balanced
representation of the relevant facts.
Our Response: As noted, we
encourage petitioners to use a broad
range of source materials, including
information from State wildlife
agencies, which often have considerable
experience and information on the
species within their boundaries.
However, we would evaluate the
petition and supporting evidence on a
case-by-case basis to determine whether
it presents substantial information to
indicate that the action may be
warranted. We note that, in this final
rule, § 424.14 (d)(5) and (e)(6) state that,
in determining whether a petition
presents substantial information
indicating that the petitioned action
may be warranted, one of the factors the
Services will consider is whether the
petition presents a complete and
balanced representation of the relevant
facts. Because it is not required in
section (c), the inclusion of a complete
and balanced representation of the
relevant facts is not part of the essential
information that is required for all
petitions to be accepted as a petition.
Rather, whether such a presentation is
included is one of the factors the
Services will consider in making our
finding of whether a petition presents
substantial information that the
requested action may be warranted. We
nevertheless encourage petitioners to
check for availability of such
information, to contact State wildlife
agencies or consult State Web sites in
researching species that are the subject
of their requests, and to include in the
petition any State information that
would contribute to providing the
detailed narrative and/or citations
required under § 424.14(c)(4) and (c)(5).
Comment (24): A commenter noted
that the discretion for the Services to
choose whether or not to consider
information provided by States is a
disincentive to the States to undertake
the considerable work necessary to
provide information.
Our Response: The Services
appreciate all information and data
provided by States, and generally intend
to consider timely information provided
by the States, along with other readily
available information, to put the
information in the petition in context.
Further, following substantial 90-day
findings, the Services will carefully
evaluate all information provided in

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conducting subsequent status reviews.
For further discussion, please see
Findings on a Petition to List, Delist, or
Reclassify—Paragraph (h), in Summary
of Changes to Previous Regulations at 50
CFR 424.14, below.
Comment (25): A commenter
suggested that the Services add a
requirement that petitioners must
inform the affected States of the actual
date that they intend to submit their
petitions to one of the Services. If, for
example, a petitioner gives a State
notice 12 months before submitting a
petition and that State provides data to
the Services within 30 days of receiving
that notice, the State’s data that the
Services ultimately use to consider the
petition could be outdated.
Our Response: We encourage
petitioners to give the States an estimate
of when the petitioner will be
submitting the petition to the Services,
but we do not require it. While we
appreciate the commenter’s concern that
the Services be provided the best, most
current information, we do not think it
will pose a problem if a petitioner
chooses to notify States of their intent
to file a petition more than 30 days prior
to submission to the Services. In fact,
we encourage prospective petitioners to
notify States earlier than 30 days before
submission, to allow States more time to
submit species information to the
Services.
Comment (26): A commenter noted
that Congress chose to provide States
the same procedural rights that every
other stakeholder is provided—an
opportunity to provide their
perspectives on positive 90-day findings
and to submit any relevant information
concerning the finding and species
during the 12-month review process.
They should not have an opportunity to
comment on petitions before the
Services have made their 90-day
findings.
Our Response: We have revised our
original proposed rule (80 FR 29286;
May 21, 2015) such that we do not
require petitioners to provide copies of
their petitions to States before
submission to the Services. However,
we do note the special role envisioned
for States under section 6 of the Act and
find it is helpful for States to receive
notifications of intent to file petitions on
species found within their borders, to
afford States the opportunity to provide
information to the Services on those
species, should they choose. If, in
response to the required notification
letter, any such State information is
received before the 90-day finding is
made, it may be useful in placing the
information in the petition in context.
Further, we encourage States to provide

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the Services with information they may
have on species of concern at any time.
Finally, during any subsequent status
reviews, it is the practice of the Services
to request additional information from
all interested parties, including State
wildlife agencies.
Comment (27): A commenter
suggested adding a new paragraph in
§ 424.14(h)(2): ‘‘During the 12-month
finding, the Service will fully include
State biologists in evaluating the current
status of the species proposed for
listing. Status assessments will typically
include: developing population and
habitat models, identifying and
evaluating threats, habitat requirements,
and current species distributions. When
possible, authorship of the Species
Status Assessments will be shared
between State and Service biologists to
balance workload and promote data
sharing.’’
Our Response: The scope of this
regulation only includes how the
Services will conduct 90-day petition
findings, so it would not be appropriate
to include the proposed language.
However, to the extent practicable and
appropriate, we will consult with and
involve State agencies and other
appropriate experts when conducting
status reviews. The ability and need to
do so will vary case-by-case, and
depend on the expertise and resources
available. However, the Act specifically
charges the Services with the authority
and obligation to implement the
provisions of the Act; the Services are
ultimately responsible for making
determinations under the Act and
cannot delegate that authority to other
agencies.
The Services recognize the expertise
and in-depth knowledge many State
wildlife agencies have concerning
species under their jurisdictions, value
greatly our partnerships with State
wildlife agencies, and take seriously the
provisions of section 4 and 6 of the Act
in coordinating and cooperating with
the States. It is the practice of the
Services to contact State wildlife
agencies during status reviews to seek
information on the subject species, and
we invite States at any time to provide
information and data they may have on
species within the State. Many States
provide frequent, regular updates to the
Services on information about species
that occur in their States.
Comment (28): Several commenters
suggested adding Tribal entities to the
originally proposed requirement for
petitioners to send copies of petitions to
State wildlife agencies, and
incorporating any materials States send
as part of the petition. They cited
Secretarial Order 3206 and the

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Presidential Memorandum of 1994,
which set forth the general conditions
under which these consultative actions
are to occur, and cited Executive Order
13175, which specifically provides
guidance for coordination and
collaboration on policies that have
Tribal implications. Further, FWS’ tribal
policy supports early coordination with
Tribes, and states that the ‘‘Service will
consult with Native American
governments on fish and wildlife
resource matters of mutual interest and
concern,’’ and that the ‘‘goal is to keep
Native American governments involved
in such matters from initiation to
completion of related Service activities’’
[emphasis added].
Our Response: The Services greatly
value the conservation partnerships we
have with Tribes, as reflected in the
intra-governmental guidance documents
cited, and appreciate the conservation
efforts and programs many Tribes have
established. While there are no specific
notification requirements for petitioners
regarding Tribes, we encourage
prospective petitioners, should they
find that the range of a species includes
Tribal lands, to contact the appropriate
Tribes to coordinate with them and
obtain information which they may
have, and include this information in
their petition documents. Further,
during any subsequent status reviews,
the Services are committed to
proactively coordinating with Tribes on
any species of interest on Tribal lands
and to incorporating information and
data Tribes provide into our reviews of
those species.
Comment (29): In response to our
revised proposed rule (81 FR 23448;
April 21, 2016), a commenter noted that
the Services should expand the
requirements to send a letter to States of
intent to file a petition to also include
other government entities. Many
county-level governments have
dedicated wildlife departments that
manage and monitor species and that
could provide additional data on
species status and habitat requirements.
Our Response: It would be difficult
for petitioners to determine all countylevel or other level government agencies
that may have information on a subject
species, and contact all such entities.
Therefore, it would be unrealistic to
make this a requirement for a request to
qualify as a petition. However, we do
encourage petitioners to avail
themselves of such potential
information sources whenever they are
aware of them.

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Paragraph (c)—Single Species Petition
Limitation
Comment (30): We received several
comments expressing concerns about
the single species per petition
requirement. These included concerns
that limiting a petition to a single
species will lead to an increase in the
Services’ processing time, a decrease in
the efficiency of the listing process, and
a reduction in listing species under the
Act.
Our Response: By having multiple
well-organized and complete singlespecies petitions, we anticipate that in
many cases we will be able to evaluate
each petition much more efficiently and
effectively compared to a multi-species
petition. It has been our experience that
the quality of the information varies
from species to species in the multispecies petitions we have received.
Multispecies petitions have often
generalized or referenced information
across species, which significantly
complicates the evaluation process,
because it is unclear which references
apply to which species. Because the Act
requires us to make a finding on each
petitioned action and species
individually, we have determined that
the approach outlined in this final rule
will greatly enhance efficiency and
effectiveness for both the public and the
Services. Further, we do not think it
will take appreciably more time or effort
for the petitioner to provide a series of
well-organized and complete singlespecies petitions than it would to
produce one well-organized and
complete multi-species petition.
Comment (31): One commenter
asserted that requiring separate petitions
to list species, or one or more
subspecies or distinct population
segment (DPS) of the same species will
result in an increase to the Services’
workload. Another commenter noted
that if a petitioner seeks an action on a
subspecies or DPS, the petition must
present substantial scientific or
commercial information indicating that
the action may be warranted for each
specified subspecies or DPS. The
petitioner cannot rely upon general
information regarding the species to
support petitioned actions related to
particular subspecies or DPS.
Our Response: We agree with the
comments regarding the petitioner’s
burden to provide specific information
to support requested actions for all
‘‘species’’ included in the petition. We
clarify in this final rule that a petition
may address either a single species or
any number and configuration of
‘‘species’’ as defined by the Act
(including subspecies of fish or wildlife

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or subspecies or varieties of plants, and
DPSs of vertebrate species) that consist
of members of a single species. Please
see a more detailed discussion of this
issue in Summary of Changes to
Previous Regulations at 50 CFR 424.14,
Requirements for Petitions—Paragraph
(c), below.
We encourage members of the public
to write their petition so that it
addresses the appropriate rank (species,
subspecies, variety, or population
segment), but we also recognize that it
is sometimes difficult to clearly
determine the appropriate rank with the
available information. We do not expect
members of the public who may not
have the expertise in taxonomy or
genetics to make independent
determinations on conflicting
taxonomic assessments that may be
available in the scientific literature.
Along a similar line, if there is
information to suggest that a vertebrate
species occurs in population segments
that may be discrete and significant (per
the DPS Policy), then the petitioner may
request that we consider one or more of
these population segments as DPSs.
Such a petitioner should include
information to allow the Services to
determine whether a given population
segment of a vertebrate species may
qualify as a DPS (i.e., whether it may be
both discrete and significant to the
taxon to which it belongs). Thus, when
the appropriate rank for listing is not
clear to a petitioner, it is reasonable for
a petition to address multiple entities,
potentially at various ranks, as long as
they all refer to the same species. In any
case, as noted above, the petitioner has
the burden to demonstrate that any
entity not already recognized as a
‘‘species’’ under the Act may qualify as
such, and to provide specific
information to demonstrate that listing
may be warranted.
Comment (32): Commenters expressed
the opinion that species sharing the
same habitat types or facing the same
threats, or having other commonalities
in data should be allowed to be
included in one petition for the sake of
efficiency as to the preparation of
petitions and review of petitions. Other
commenters noted that, if the Services
find the petition does not provide
sufficient information for one species,
the Services have the right to make a
negative finding for that species.
Our Response: The Act requires us to
make findings for each petitioned
species individually. Therefore, multispecies petitions do not save the
Services time, even for species within
similar habitat or facing similar threats.
Even if species are found within similar
habitats or face similar threats, we must

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be able to demonstrate the relevance of
general information to each individual
species in order to support our finding.
The petition needs to clearly link the
information provided to particular
species and claims made. The petition
needs to make the case for each
individual species. However, nothing
would prevent petitioners from
submitting a batch of separate but
related petitions for species occurring in
the same habitats or experiencing
similar threats. While petitioners might
prefer to prepare a request that
addresses species in groups for their
own convenience, we find that the
purposes of the statute are directly
furthered by requiring petitions to
present information species-by-species,
because this will promote clarity and
facilitate making the determinations
required under the Act.
Comment (33): Several commenters
cited the 1994 Services’ Interagency
Policy for the Ecosystem Approach to
the Endangered Species Act. In that
document, the first stated policy of the
Services is to ‘‘[g]roup listing decisions
on a geographic, taxonomic, or
ecosystem basis where possible.’’ The
commenters stated that the proposed
rule does not acknowledge that these
other ecosystem-based policies exist, or
that there may be practical
consequences stemming from these
proposed changes.
Our Response: While in some
instances it has proven to be efficient for
the Services to adopt an ecosystembased approach to listing several species
in the same ecosystem facing the same
threats, we have found through
experience that applying this approach
to petitions has proven impractical. As
noted above, we must make individual
findings on each species for which we
receive a petition. Species-specific
petitions facilitate the Services’ ability
to make the determinations for each
species efficiently. However, if the
Services find that multiple species
warrant listing in a specific ecosystem,
then we can propose a listing rule
setting out determinations for each of
several species in that common
ecosystem. The Services have found
great efficiencies in resources and time
in grouping determinations into a single
rule, and that approach comports with
our 1994 policy.
Paragraph (c)—All Relevant Data
Certification
Comment (34): We received many
comments expressing concerns about
the requirement for including all
relevant data in petitions and certifying
to that effect, as we originally proposed.
The commenters raised various

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concerns regarding the practicality and
legality of this provision.
Our Response: The Services
appreciate the difficulty of determining
whether all relevant information on a
subject species has been gathered.
Therefore, in our April 21, 2016 (81 FR
23448), revised proposed rule, we
removed this requirement, and instead
require petitioners to include a
‘‘detailed narrative justification for the
recommended administrative action that
contains an analysis of the information
presented,’’ and recommend that
petitioners provide a ‘‘complete,
balanced representation of the relevant
facts, including information that may
contradict claims in the petition.’’ In
availing themselves of the petition
process, petitioners seek to direct the
Services’ focus and resources to
particular species. They should be
forthcoming as to the known, relevant
facts so that the Services have an
accurate basis from which to evaluate
the merits of the petition while making
efficient use of its focus and resources.
Comment (35): Several commenters
expressed support for the provision
requiring submitters to include all
relevant data in petitions and to certify
that they have done so, because it would
provide supporting and refuting
information and avoid limiting the
Services to consideration of only biased
information. Other commenters support
the provision authorizing the Services to
reject petitions if they do not meet the
‘‘all relevant data’’ requirement.
Our Response: We realize that it
would be difficult to provide all
relevant data, and difficult to assess
(and certify) that all information
concerning a species has been
discovered; for example, not all species
information is publicly available, and
research for many species is ongoing.
Therefore, we have revised this final
rule so that we encourage petitioners to
provide a complete, balanced
presentation of facts, including those
which may tend to refute or contradict
claims in the petition. However, that is
not part of the essential information that
is required in all petitions. Rather, it is
one of the factors that the Services will
consider when making the 90-day
finding on the petition. This change is
to encourage prospective petitioners to
include in the petition a complete,
balanced presentation of facts for the
Services to evaluate in the 90-day
finding and, if the finding is substantial,
to consider in a species status
assessment, without establishing it as an
essential requirement that could unduly
burden petitioners.
We are revising the regulations to
clearly communicate the essential

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information that is required in all
petitions (§ 424.14(c)), and identified
the specific information which will help
the Services in reaching their finding
(§ 424.14(d) and (§ 424.14(e)). The
Services retain discretion to consider a
request to be a petition and process a
petition where the Services determine
there has been substantial, but not full
technical, compliance with the relevant
requirements (see discussion under
Responses to Requests—Paragraph (f),
in Summary of Changes to Previous
Regulations at 50 CFR 424.14, below).
Comment (36): A commenter noted
that petitioners need to let the Services
know what sources were consulted. If
an obvious source is missing or used
incorrectly, then the Services should be
able to quickly and efficiently reject the
petition.
Our Response: Under the revised
regulations, requests for agency action
must contain electronic or hard copies
of supporting materials, or appropriate
excerpts or quotations from those
materials, to qualify as petitions.
Therefore, the Services are not required
to consider claims for which cited
source materials are not included with
the petition. The Services will review
this information to ensure compliance
with the provisions set forth in this rule,
and will take into consideration the
extent to which the source materials
included with the petition support a
complete, balanced presentation of the
facts, in any 90-day findings on
petitions.
Comment (37): A commenter stated
that there is a lack of peer-reviewed
science in petitions. Further, data in
petitions should be reviewed by the
affected States’ wildlife agencies using
local information, science, and
observations to corroborate the findings
before the data could be used in a
petition.
Our Response: We encourage
petitioners to conduct a review of the
peer-reviewed literature on the species
at issue as thoroughly as possible in
order to ensure the petition is wellsupported. While State review of
petitions and their supporting
information would be helpful, it would
be impractical to require this during the
time frame associated with our making
90-day findings. However, should the
Services make a substantial 90-day
finding, States and members of the
public will have an opportunity to
review and provide comments on source
materials used in the petition at that
time, as well as provide additional
information.
Comment (38): A commenter stated
that the removal of the proposed
requirement that petitioners coordinate

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with States before submitting a petition
also removes the element of cooperation
that was being fostered through the
original proposal. Anything the Services
can do to foster increased dialogue
between petitioners, other interest
groups and State agencies engaged in
wildlife conservation will ultimately be
for the benefit of the species.
Our Response: By requiring the
notification of States at least 30 days
prior to submission of a petition, it is
the Services’ intention both to inform,
and to foster the cooperation of, State
partners while balancing the desire for
State coordination with the required
timeframes associated with petition
findings and the rights of petitioners.
This change provides a role for State
agencies that the current regulations do
not have. We agree that communication
and collaboration between State
agencies or other interested parties and
the Services generally helps further the
conservation of species. State agencies
may send the Services any information
relevant to a petition after they have
been notified of a petition’s pending
submission. In order for the information
to be available to be considered as
context for the petition, it should be
submitted in a timely fashion.
Paragraph (c)—Other Requirements
Comment (39): A commenter stated
the requirement of proposed
§ 424.14(b)(6) (§ 424.14(c)(6) in this
rule), concerning providing electronic or
hard copies of supporting material)
could become burdensome and quite
expensive for petitioners. Additionally,
the Services should clarify that the
provisions of proposed § 424.14(b)(6)
would cover only sources that the
petitioners choose to rely on for their
petitions. The commenter further
suggested revising proposed
§ 424.14(b)(8) to: ‘‘For a petition to list
a species, delist a species, or change the
status of a listed species, information on
the current geographic range of the
species, including range States or
countries, to the extent that petitioners
have this information.’’
Our Response: Copies of source
material cited in support of a petitioned
action are key information needed by
the Services to evaluate a petition
efficiently and effectively. The Services
are not required to search out source
materials not provided in the petition to
find justification for claims in the
petition. Therefore, it is the petitioner’s
responsibility to provide justification for
the claims in the detailed narrative; this
responsibility includes providing the
source material on which they base their
claims. These sources may be provided
in hard copy or in electronic form. Most

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petitioners opt to provide source
materials electronically, which saves
mailing and printing costs and provides
an efficient way to include this essential
part of a petition to the Services.
Further, a robust petition should
provide a balanced presentation of facts,
including those which may be
contradictory. Including such
information and source material
demonstrates that the petitioner has
diligently investigated the important
issues addressed in their petition and
not merely compiled an
unrepresentative sample of information.
Including contradictory information
also gives the petitioner the opportunity
to offer their analysis or explanation as
to why that contradictory information is
not conclusive.
Finally, the suggested language
regarding requiring geographic range
and range State information is already
covered in this rule at § 424.14(c)(8),
and would be redundant. This is
important information to include in a
petition, and we do not think it
unreasonable to make this a requirement
under § 424.14(c)(8).
Comment (40): A commenter stated
that the Services should carefully
consider the implications of requiring
petitioners to include ‘‘electronic or
hard copies of supporting materials
(e.g., publications, maps, reports, letters
from authorities) cited in the petition.’’
Petitioners often cite publications that
are available only through paid
databases that restrict the distribution
and use of those publications through
copyright law. Because publications
appended to listing petitions are
presumably accessible to the public
(e.g., through Freedom of Information
Act (FOIA; 5 U.S.C. 552) requests), there
may be conflicts between the supporting
materials requirement and the legal
restrictions under which petitioners
obtain certain publications.
Our Response: We have clarified in
section (c)(6) of the final regulations that
petitioners may provide either full
copies of supporting materials or
appropriate excerpts or quotations that
support the assertions in the petition.
Where a petitioner believes a source
material to be protected by copyright
laws, they should consider including
limited excerpts or quotations from such
material that they believe support their
statements. This will fulfill the
petitioners’ obligation to present
information to support the statements in
the petition, without creating potential
conflicts with copyright protections.
Where materials are subject to copyright
protection, the Services may not be able
to obtain such materials.

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Comment (41): A commenter stated
forcing petitioners to append
information from the States interferes
with a petitioner’s rights under the APA
because it no longer allows for a
balanced presentation of information to
the Federal Government.
Our Response: Based on public
comments on our May 21, 2015,
proposed rule (80 FR 29286), we
published a revised proposed rule (81
FR 23448; April 21, 2016) removing the
requirement that petitioners must
include information from States in their
petitions. As a result, in this final rule,
we clarify that petitioners should
include information from various
sources in support of their requests, and
we require that copies of the cited
source information be included with
submitted requests, in order for the
Services to be able to evaluate the
claims in the petition. In determining
whether the petition presents
substantial information, the Services are
not required to consider claims for
which supporting materials are not
included with the petition. In the past,
we have found that that information in
petitions can be incomplete,
misrepresented, or one-sided. As a
result, we have revised these regulations
to encourage petitioners to provide a
complete, balanced presentation of
facts, including any information the
petitioner is aware of that contradicts
claims in the petition.
Comment (42): A commenter noted
that petitioners occasionally reference
unpublished data. The proposed rules
contain no criteria for use of and access
to these data. We recommend the
Services specify that such material is
subject to the same requirements.
Our Response: We agree that copies of
all information used to support a
petitioned action should be provided
with the petition for the Services to
consider and evaluate.
Paragraph (d)—Types of Information To
Be Included in Petitions To List, Delist,
or Change the Status of a Listed Species
Comment (43): Some comments
related to our definitions and usage of
the terms ‘‘substantial information’’ and
‘‘substantial scientific and commercial
information.’’ These comments included
a suggestion to define the relevant terms
in the first paragraph in which they
appear and to be consistent in the use
of the terminology throughout the rule.
Our Response: We appreciate the
comments. We have revised the text of
this rule to reflect the specific language
of the Act setting out the standard that
applies to each type of petition. The
standard that applies to petitions to list,
delist, or reclassify a species is that the

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petition must present ‘‘substantial
scientific or commercial information’’
indicating that the petitioned action
may be warranted (§ 4(b)(3)(A)), whereas
a petition to revise a critical habitat
designation must present ‘‘substantial
scientific information’’ (§ 4(b)(3)(D)(i)).
Note that the statute does use the term
‘‘substantial information’’ in § 4(b)(3)(B)
and and 4(b)(3)(D)(ii). In the final rule,
we continue to define the relevant terms
directly in the respective subsections
setting out how we make findings on
each type of petition. For example, our
explanation of what we consider to be
substantial scientific or commercial
information appears in final
§ 424.14(h)(1)(i), because paragraph (h)
explains the standards we use in making
findings on petitions to list species,
delist listed species, or reclassify listed
species, and is therefore the most logical
place for that explanation, even though
the term is first used in § 424.14(d)
(which alludes to the standard that the
Secretary must apply but primarily is
setting out recommended content
items).
Comment (44): A commenter
suggested changing proposed
§ 424.14(c)(3) (§ 424.14(d)(3) in this
rule), concerning inclusion of
magnitude and imminence of threats in
the petition) by omitting the final clause
and replacing it with: ‘‘. . . including,
where available, a description of the
magnitude and imminence of the
threats.’’
Our Response: The change the
commenter is requesting is the addition
of the condition ‘‘where available’’ with
respect to including a description of the
magnitude and imminence of threats to
a species. Please note that the elements
of § 424.14(d) in this rule are not
absolute requirements to qualify as a
petition, but the Services’ findings will
depend, in part, on the degree to which
the petition includes this type of
information. The magnitude and
imminence of threats are generally key
determinants of whether a species may
or may not warrant protection under the
Act. Thus, although we would not reject
a petition for not including information
on magnitude and imminence of threats,
our evaluation of whether the petition
presents substantial information
indicating that the petitioned action
may be warranted would need to take
into consideration the presence, the
imminence, and the severity of threats.
Therefore, we think it advisable to
include in petitions information
regarding the threat severity
(magnitude) and the timing of those
threats (currently occurring, imminent,
in the foreseeable future, etc.).

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Paragraph (e)—Information to Be
Included in Petitions to Revise Critical
Habitat
Comment (45): Several commenters
noted that the requirement of proposed
§ 424.14(d)(6) for ‘‘a complete
presentation of the relevant facts,
including an explanation of what
sources of information the petitioner
consulted in drafting the petition, as
well as any relevant information known
to the petitioner not included in the
petition,’’ would be duplicative and
indiscernible from the requirements of
proposed § 424.14(b) (§ 424.14(c) in this
rule), and recommended proposed
§ 424.14 (d)(6) not be adopted. Another
commenter asked how ‘‘a complete
presentation of the relevant facts’’
differs from a ‘‘detailed justification for
the recommended administrative action
that contains an analysis of the
information presented.’’
Our Response: Based on comments
received on the original proposal, we
revised our proposal to address these
issues. Recognizing that it could be an
undue burden to require petitioners to
include all relevant information that is
reasonably available, and certify to that
effect, in this rule we have removed the
certification requirement from the
§ 424.14(c) list of essential requirements
for all petitions. Section 424.14(c)
retains the more-general essential
requirement that all petitions include a
detailed narrative justification for the
recommended administrative action that
contains an analysis of the information
presented. The Services will reject
petitions that do not meet this detailednarrative requirement, but petitioners
could still resubmit their petition after
adding a detailed narrative in
accordance with § 424.14(c). In this rule,
paragraphs (d) and (e) of § 424.14(d) and
(e), on the other hand, do not prescribe
essential requirements for all petitions,
and instead identify factors that the
Services will consider in making 90-day
findings. One of these factors, set forth
at § 424.14(d)(5) and § 424.14(e)(6), is
the degree to which the petition
includes ‘‘[a] complete, balanced
representation of the relevant facts,
including information that may
contradict claims in the petition.’’ A
request will not be rejected as a petition
for failing to meet § 424.14(d)(5) or
§ 424.14(e)(6). It may be difficult for a
non-scientist to locate and present all of
the relevant facts completely, and,
although the Services encourage
petitioners to provide a balanced
presentation of facts, there may not
always be information contradicting
claims made in the petition. As a result,
the Services will consider this

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information, along with readily
available information we may consult
for context on the species and the
requested action, when determining if
the petition presents substantial
information indicating that the
petitioned action may be warranted.
Comment (46): Many commenters
noted the language of proposed
§ 424.14(d)(5) (§ 424.14(e)(5) in this
rule) was inconsistent with the previous
regulations at 50 CFR 424.12 in that the
proposed petition regulations do not
reference a ‘‘determination’’ that
occupied areas are not enough for
conservation of a species before moving
on to consideration of unoccupied areas
(e.g., limiting the designation of critical
habitat to the species’ current range
would be inadequate to conserve the
species).
Our Response: This rule is consistent
with the revised 50 CFR 424.12
regulations that became effective on
March 14, 2016 (81 FR 7414; February
11, 2016). The current 50 CFR 424.12(b)
states ‘‘Where designation of critical
habitat is prudent and determinable, the
Secretary will identify specific areas
within the geographical area occupied
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.’’ The Services are no
longer required to consider whether a
designation limited to the occupied
areas would be sufficient before
considering unoccupied areas.
Therefore, no additional language is
needed in the provision of § 424.14(e)(5)
of this rule.
Comment (47): A commenter stated
that the requirement to describe the
physical or biological features (PBFs)
provides little value because the
Services have already described them in
the final critical habitat rule for the
species.
Our Response: In requests to revise
critical habitat in occupied areas, it is
essential to provide information on
whether the PBFs are present or absent
in those areas (see § 424.14(e)(4): ‘‘For
any areas petitioned for removal from
currently designated critical habitat
within the geographical area occupied
by the species at the time it was listed,
information indicating that the specific
areas do not contain the physical or
biological features. . . .’’). In some
cases, petitioners may believe that we
have misidentified or not included all
PBFs, and that recognizing a different
set of PBFs would lead to additional
areas of occupied habitat qualifying for
inclusion in a designation, or certain
areas of the existing designation no
longer qualifying. Similarly, PBFs may

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have moved (no longer present in one
area, but more recently developed in
others), or there may be newer
information on a species’ needs and,
consequently, PBFs may change, PBFs
previously identified may no longer be
essential to the conservation of the
species, or new PBFs may be identified.
Therefore, the Services will consider
petitions seeking to modify the
description of PBFs in an original
designation where recognizing a
different set of PBFs would result in
changes to the areas of occupied habitat
that would qualify for inclusion. PBFs
are analyzed in the course of developing
designations, but it is the specific areas
as shown on a map that are designated.
Quite often scientific understanding of
essential features advances after a
designation is made, and the Services
must consider the best available
information when conducting section 7
consultations, not just what was
described at the time of designation.
Thus, even without a rule revising a
critical habitat designation, the Services
will always consider the best available,
current information about the essential
PBFs and what makes them essential in
the course of section 7 consultations.
Petitions seeking to ‘‘revise’’ a list of
features, with no consequential changes
to areas of occupied habitat that are
included in a designation, are thus both
unnecessary and ineffective.
Comment (48): A commenter
suggested specific wording revisions to
proposed § 424.14(d)(5) (§ 424.14(e)(5)
in this rule): ‘‘For any areas petitioned
to be added to critical habitat that were
outside the geographical area occupied
by the species at the time it was listed,
information explaining: (1) Why the
species’ present range is inadequate to
ensure its conservation; (2) why the
petitioned area presently contains
features essential to the conservation of
the species; and (3) how the designation
will impact, economically and
otherwise, the use of the petitioned area
for other purposes. For any areas
petitioned to be removed from critical
habitat that were outside the
geographical area occupied by the
species at the time it was listed,
information indicating why the
petitioned areas are no longer essential
to the conservation of the species.’’
Our Response: We appreciate the
commenter’s concern that unoccupied
habitat not be added to an existing
critical habitat designation without good
reason, but choose to retain the
proposed language at § 424.14(e)(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,

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information indicating why the
petitioned areas are or are not essential
for the conservation of the species.’’
There are several reasons for this:
• In light of recent revisions to 50
CFR 424.12, the Services are not
required to first consider whether a
designation limited to present range is
adequate to ensure conservation.
• This provision needs to address
requests to add as well as remove
unoccupied areas from a critical habitat
designation.
• The language is consistent with the
definition of critical habitat in the Act
(16 U.S.C. 1532(5)(A)(ii)), which
includes unoccupied areas, that is,
‘‘specific areas outside the geographical
area occupied by the species at the time
it is listed in accordance with the
provisions of section 4 of this Act, upon
a determination by the Secretary that
such areas are essential for the
conservation of the species.’’ Unlike the
geographical areas occupied by the
species at the time it is listed,
unoccupied areas need not include the
essential PBFs (see 16 U.S.C. 1532(5)(A)
(i) of the Act). Therefore, it would be
inconsistent with the Act to require
such information in requests to revise
unoccupied critical habitat.
• A determination as to whether
unoccupied areas are essential for the
conservation of the species is made by
the Services, not the petitioner.
However, it may be helpful if the
petitioners include information
indicating why the petitioned areas are
or are not essential for the conservation
of the species.
Paragraph (f)—Response to Requests
Comment (49): A commenter stated
the Services should accept petitions that
make a good faith effort to comply with
provisions of the regulations and not
reject for minor procedural flaws. The
Services should include a ‘‘cure’’
provision in which the Services alert the
petitioner to flaws in the petition and
the steps that must be taken to remedy
them and allow a specified amount of
time for the petitioner to fix the flaws.
Unless petitioners are supplied with
constructive feedback, this will greatly
hamper the petition process.
Our Response: In this rule at
§ 424.14(f), the Services retain
discretion to treat as a petition a request
that the Services determine
substantially complies with the relevant
requirements. Therefore, it is unlikely
that a request will be rejected for minor
omissions. However, if the Services
determine that the request does not
meet the requirements set forth at
§ 424.14(c), they will, as noted at
paragraph § 424.14(f)(1), within a

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reasonable timeframe, notify the sender
and provide an explanation of the
rejection. The petitioner will then be
able to correct the request and resubmit
to the Services at their convenience.
Comment (50): Some commenters
asked whether petitioners would be
notified when a request is determined
not to constitute a petition and given the
reasons for such determination. As
drafted, the proposed rule does not
indicate the Services will notify
petitioners of a compliant petition.
Our Response: As noted above,
submissions that do not qualify as
petitions will be returned to the sender,
along with a form letter or checklist
describing what components are
missing. However, for expediency, we
will generally not notify petitioners of
acceptance of petitions in a separate
communication; in most cases,
publication of the Services’ 90-day
findings will serve as such notifications.
Comment (51): A commenter
supported the deletion of the phrase ‘‘in
the agency’s possession’’ as it relates to
information the Services may consider
when analyzing a petition. In the past,
the ‘‘in the agency’s possession’’
requirement has been interpreted as the
inability of the Services to even do a
simple Internet search for helpful
information after a petition has been
received. The Services should not be
limited to the use of information they
have in their possession at the time they
receive a petition. Such a limitation
could lead to a ‘‘substantial’’ 90-day
finding, not because a species may be at
risk, but simply because the petition
presents a skewed or impartial view of
the facts.
Our Response: We agree. The phrase
‘‘in the agency’s possession’’ was
interpreted by some as meaning hard
(paper) copies of information materials
stored in agency office files at a physical
location. Most information and data are
now accessed and stored electronically.
Therefore, it is appropriate for the
Services to place petitions in context by
consulting readily available
information, such as information that is
stored electronically in databases
routinely consulted by the Services in
the ordinary course of their work. For
example, it would be appropriate to
consult online databases such as the
Integrated Taxonomic Information
System (http://www.itis.gov), a database
of scientifically credible taxonomic
nomenclature information maintained
in part by the Services. This rule allows
the Services to use readily available
information to provide context for the
claims in the petition, even should it be
received after the time the petition is
filed, up to the time we make the

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finding. Please see Findings on a
Petition to List, Delist, or Reclassify—
Paragraph (h) under Summary of
Changes to Previous Regulations at 50
CFR 424.14, below, for further
discussion.
Paragraph (h)—Findings on Petitions To
List, Delist, or Reclassify
Comment (52): Several commenters
expressed concerns about the
information standard we use in
evaluating petitioned requests. Some
specifically noted the addition of the
term ‘‘credible’’ in definition of the
substantial scientific or commercial
information standard in proposed
§ 424.14(g) (§ 424.14(h) in this rule).
One commenter expressed concern that
the Services would define credible as
precluding certain categories of
information or data, such as traditional
ecological knowledge or gray literature
that may not be published or available
in traditional scientific journals.
Conversely, another commenter noted
that the Services should only consider
peer-reviewed literature provided in a
petition to be credible, sound science.
Our Response: Section 4(b)(3)(A) of
the Act directs the Services to make a
finding as to whether a petition presents
‘‘substantial scientific or commercial
information indicating that the
petitioned action may be warranted.’’
This is the threshold required of the
information provided in a petition, and
is the standard we use at § 424.14(h) in
this rule. The Act notably does not
require that the Services make 90-day
findings on the basis of the ‘‘best
scientific and commercial data
available.’’ Nevertheless, we are
cognizant that positive ‘‘substantial
information’’ findings require that the
Services devote additional time and
resources towards completing status
assessments for those species, as well as
12-month findings. Therefore, we have
concluded that it would be more
efficient and would better advance the
purposes of the Act to clarify for
petitioners that—for a petition to
indicate that the petitioned action may
be warranted, and thereby merit this
additional expenditure of the Services’
resources—the information provided in
the petition must, at a minimum, be
credible. ‘‘Credible scientific or
commercial information’’ may include
all types of data, such as peer-reviewed
literature, gray literature, traditional
ecological knowledge, etc.
Comment (53): A commenter stated
that the Secretaries still appear to have
broad discretion in establishing the
definition of ‘‘reasonable person.’’ The
commenter asserts that the definition
leaves open the very type of arbitrary or

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capricious litigation the Service is
attempting to resolve by citing the
reasoning in the Congressional
Conference Report. The courts typically
defer to the agencies’ interpretation of
scientific information. Therefore,
petitioners are left without remedy
when placed in disagreement with the
Secretary’s conclusion.
Our Response: The Act requires the
Services to consider whether a petition
presents substantial information to
demonstrate that the requested action
may be warranted, but does not define
‘‘substantial information.’’ The Services
therefore have discretion to adopt a
reasonable interpretation of this
foundational standard that furthers the
statutory purposes and reflects the
scientific context in which the Service
makes decisions.
In the interest of providing greater
clarity and transparency to the public,
we have promulgated this rule to clarify
and more thoroughly explain what is
required in a petition and how the
Services make their findings. We thus
explain that the ‘‘substantial scientific
or commercial information’’ standard
(which applies to listing, delisting, and
reclassification petitions) refers to
credible scientific or commercial
information in support of the petition’s
claims such that a reasonable person
conducting an impartial scientific
review would conclude that the action
proposed in the petition may be
warranted. (We similarly interpret the
‘‘substantial scientific information’’
standard that applies to petitions
seeking critical habitat revisions.) This
interpretation clarifies that the Services
must evaluate petitions in their capacity
as biologists with the scientific expertise
to investigate whether a species may be
imperiled. As such, the Services analyze
and decide whether petitions present
‘‘substantial information’’ consistent
with the analyses and decisions that a
hypothetical reasonable biologist would
make. In addition, this hypothetical
reasonable scientist would need to be
impartial and approach the question as
he or she would any scientific inquiry.
Finally, the hypothetical person
evaluating the information in the
petition would need to perceive that the
information is credible; conclusions
drawn in the petition without the
support of credible scientific or
commercial information will not be
considered ‘‘substantial information.’’
These concepts are in no way new to the
Services’ practice; this is how we have
and must evaluate petitions. Further, we
believe this clarification aligns with the
House Conference report, which states
that, when courts review such a
decision, the ‘‘object of [the judicial]

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review is to determine whether the
Secretary’s action was arbitrary or
capricious in light of the scientific and
commercial information available
concerning the petitioned action.’’ (H.R.
Conf. Rep. No. 97–835, at 20 (1982),
reprinted in 1982 U.S.C.C.A.N. 2860,
2862) [emphasis added]. Finally, a
‘‘reasonable person’’ standard is
commonly used in legal contexts.
If a person disagrees with a Service’s
finding, in the case of 90-day petition
findings in which the Service finds
there is substantial information
indicating that the petitioned action
may be warranted (in other words, not
a final agency action), that person could
provide additional information
regarding the species to help inform
future agency actions such as the
subsequent 12-month finding. In the
case of not-substantial 90-day findings
(which are final agency actions), one
remedy would be to submit a new
petition with further justification and
rationale for the requested action. Also,
final agency actions are judicially
reviewable.
Comment (54): Proposed
§ 424.14(g)(1)(i) (§ 424.14(h)(1)(i) in this
rule) expands on the ‘‘substantial
scientific or commercial information’’
standard of the Act. Under the existing
petitions regulation, ‘‘substantial
scientific or commercial information’’
means ‘‘that amount of information that
would lead a reasonable person to
believe that the measure proposed in the
petition may be warranted.’’ Now, the
Services add to this ‘‘a reasonable
person conducting an impartial
scientific review would conclude that
the action proposed in the petition may
be warranted.’’ Normally, reasonable
people do not, in the course of their
daily lives, conduct impartial scientific
reviews.
Our Response: Section 424.14(h)(1)(i)
clarifies and expands on the substantialinformation standard by defining it as
credible scientific and commercial
information that would lead a
reasonable person conducting an
impartial scientific review to conclude
that the action proposed in the petition
may be warranted. (We similarly define
the ‘‘substantial scientific information’’
standard that applies to petitions
seeking revisions to critical habitat at
424.12(i)(1)(i).) As discussed in
response to Comment 53, the Services
have the discretion and a need to adopt
a reasonable interpretation of this key
standard, which is not defined in the
statute. We have included the term
‘‘credible,’’ because—for a petition to
indicate that the standard for the
petitioned action may have been met,
and thereby merit the additional

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expenditure of the Services’ resources—
the information provided in the petition
must, at a minimum, be credible. In
other words, the Services must evaluate
whether the information in the petition
is substantiated and not mere
speculation or opinion. Only those
claims or conclusions drawn in the
petition with the support of credible
scientific or commercial information
should be considered ‘‘substantial
information.’’
The addition of ‘‘conducting an
impartial scientific review’’ to the
reasonable person standard for what
constitutes ‘‘substantial scientific and
commercial information’’ similarly
clarifies to petitioners the context
against which the Services will
necessarily evaluate petitions. The
Services must evaluate petitions on the
basis of the scientific validity of the
request; that is, impartially evaluate
whether there is a scientific basis for the
requested action, and not just
unsubstantiated claims. Because the
context for this action involves
evaluating scientific information, it is
appropriate and necessary to take as our
reference a person conducting an
impartial scientific review. There is
nothing in the Act to suggest that 90-day
findings should be evaluated based on
what persons lacking scientific
background would conclude, and to
adopt a generic standard would not
further the purposes of the Act or reflect
how the Services must and do actually
go about evaluating petitions.
Comment (55): Several commenters
raised questions regarding the Services’
treatment of a subsequent petition,
including the definitions and
interpretations of the terms
‘‘considered’’ and ‘‘sufficient’’; how our
determination would relate to other
reviews, such as 5-year reviews; and
how new information or new analyses,
such as models, would be evaluated.
Our Response: In this rule,
§ 424.14(h)(1)(iii) addresses situations in
which the Services have already made
a finding on or conducted a review of
the listing status of a species, and, after
such finding or review, receive a
petition seeking to list, delist, or
reclassify that species. The provisions at
§ 424.14(h)(1)(iii) do not state or imply
that such petitions will be rejected
outright; indeed, as noted below, we
will consider all requests that meet the
requirements of § 424.14(c) to be
petitions, and we will evaluate all
petitions and make findings on them.
Instead, we include this provision to
provide prospective petitioners greater
predictability and clarity, by making
clear that we must evaluate such
petitions in light of the previous

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findings or determinations. Thus, if no
new information or analysis is provided
in such a petition, the outcome will
likely (but not always) be a notsubstantial 90-day finding.
To clarify some of the terms we used,
by using the term ‘‘considered’’ in the
phrase ‘‘new information not previously
considered,’’ we mean that information
or analysis was evaluated in a previous
finding, status review, or listing
determination. ‘‘Sufficient’’ new
information is that information or
analysis which would lead a reasonable
person conducting an impartial
scientific review to conclude that the
action proposed in the petition may be
warranted, despite the previous review
or finding.
With respect to prior listing
determinations, the prospective
petitioner may review the final listing
rule and any supporting documentation
to see what information was considered
and evaluated. Five-year status reviews
are not published in the Federal
Register but are posted on the Services’
Web sites. FWS status reviews and
Federal Register documents are posted
on the species profile pages maintained
in FWS’ Environmental Conservation
Online System (ECOS). Species profiles
may be accessed by searching on the
species name at http://
www.ecos.fws.gov/ecp. NMFS’
documents can be found at http://
www.nmfs.noaa.gov. In conducting
status reviews, the Services may
reevaluate data they already considered
in previous status reviews. Petitioners
may similarly present a new analysis of
existing data in support of their
requests, and the Services will evaluate
such requests on that basis. A petitioned
request could be based on discovery of
an error in research regarding
information previously considered by
the Services.
Unless such a petition provides
different data, or a different analysis or
interpretation of, or errors discovered
in, the data, model or analytic
methodology used in a previous finding,
review, or determination, the
conclusions may be the same, and the
Services may find that such a petition
does not provide substantial
information indicating that the
petitioned action may be warranted.
We make the distinction that, in the
case of prior reviews that led to final
agency actions (such as final listings,
12-month not-warranted findings, and
90-day not-substantial findings), a
petition would generally be presumed
not to provide substantial information
unless the petition provides new
information or a new analysis not
previously considered in the final

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agency action. On the other hand, if the
previous status review did not result in
a final agency action, the petition would
not be required to overcome the
presumption that, unless it includes
information or analysis that was not
considered in the previous status
review, it generally will not present
substantial information indicating that
the petitioned action may be warranted.
Comment (56): One commenter stated
that the ‘‘new information’’ requirement
in the revised proposed rule (81 FR
23448; April 21, 2016) could severely
limit the ability to file delisting
petitions that assert flaws in the
Services’ prior consideration of
information. Petitioners should be able
to assert that information the Services
previously considered was misused,
misrepresented, or misinterpreted, or
that the original data for the species’
classification were in error as the basis
for delisting.
Our Response: This rule will not limit
the ability to file delisting or other
petitions. In cases where petitioners
request an outcome that differs from the
outcome reached in a previous Service
finding or determination, the rule
simply recognizes that the courts apply
a presumption that agency actions are
valid and reasonable, and therefore the
petitioner should provide new or
additional information or a new analysis
not previously considered. We add this
requirement to prevent the petition
process from being used inefficiently—
in effect, to voice disagreement with a
previous determination by one of the
Services without providing any new
information or analysis relevant to the
question at issue, and instead of using
the appropriate judicial forum to
challenge the previous determination
directly. An appropriate showing may
include an explanation of how
information used in the previous
analysis was misused, misrepresented,
or misinterpreted. Also, this rule does
not prevent a petitioner from requesting
a delisting of a listed entity based on
error in classification of that listed
entity.
Paragraph (h)—Use of Information in
Agency Files
Comment (57): Several commenters
support the agencies’ use of additional
information as described in the
proposed rule, as long as it is clear that
such information is readily available
and does not serve as a justification for
the Service to actively supplement the
petition or initiate new data collection
processes, contracts or research as part
of the 90-day finding process.
Our Response: The Services recognize
that the statute places the obligation

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squarely on the petitioner to present the
requisite level of information to meet
the ‘‘substantial information’’ test;
therefore, the Services should not seek
to supplement petitions. However, in
determining whether the petition
presents substantial scientific or
commercial information, it may be
appropriate to consider readily available
information to provide context to the
information the petition presents. It is
not the intent of the Services to initiate
any data collection or research methods,
nor is there time for the Services to
conduct such methods in the 90-day
petition finding process.
Comment (58): A commenter stated
that, to the extent that the Service
intends to review and rely upon readily
available information, there first must
be a public notice and availability of
such information for review and
comment by the public. Otherwise, the
public would not be made aware of such
information and afforded the ability to
comment on the accuracy, sufficiency
and relevance of such information.
Our Response: The statute does not
provide for a public comment process at
the 90-day stage of review of petitions.
The Services provide public notice and
request information when publishing a
positive 90-day finding and initiating a
12-month status review in response to a
petition, but it is neither appropriate nor
feasible to do this prior to making a 90day finding due to statutory time
constraints. Although the Services may
consider readily available information
to provide context in which to evaluate
the information presented in a petition,
the 90-day petition finding is based on
the information provided in the
petition. A 90-day finding is an initial
assessment of information provided in
the petition and, when appropriate,
information readily available to the
Services. When our 90-day findings are
published in the Federal Register, the
petition and supporting information,
and any other information we may have
relied upon for our finding, is posted
online and made available to the public.
If we find the petition presents
substantial information that the action
may be warranted, we announce the
initiation of a status review and request
information from the public, which may
include feedback on the accuracy,
sufficiency, and relevance of any
information considered in making the
finding. For petitions that are found to
be not substantial, we publish the
finding and make available the petition
and any supporting information
considered for the finding. The public is
invited to submit information on any
species at any time, which may include

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evaluation of information considered for
any finding.
Comment (59): A commenter raised a
question regarding proposed
§ 424.14(g)(1)(ii) (§ 424.14(h)(1)(ii) in
this rule), asking how can the Services
state that ‘‘the intent is not to solicit
new information,’’ when the proposed
regulations at § 424.14(b)(10) would
require the petitioner to gather ‘‘all
relevant information’’ about a species,
as well as information from every State
where a species could possibly be
found.
Our Response: In this final rule, we
have removed the proposed
requirements to which the commenter
refers (i.e., that petitioners precoordinate with States and certify that
they have provided all relevant data). In
this rule, § 424.14(h)(1)(ii) describes the
type of readily available additional
information the Services may consider
to place a petition in context when
making their findings. Section
424.14(h)(1)(ii) states that, in reaching
the initial finding on the petition, the
Services will consider information
submitted by the petitioner and may
also consider information readily
available at the time the determination
is made. This provides a balanced
approach that will ensure that the
Services may take into account the
information available to us to provide
context for assessing the petition,
without opening the door to the type of
wide-ranging information request more
appropriate for a status review. The
intent of this approach is for the
Services to be able to use readily
available information to provide context
in which to evaluate the information
presented in the petition, not for the
Services to solicit new information on
which to make a finding.
Comment on National Environmental
Policy Act
Comment (60): A commenter stated
that the Services must prepare an
environmental impact statement (EIS)
for the proposed rule because the net
effect of the changes to the existing
regulations will be fewer species being
protected under the Act, more
extinctions, and consequently more
ecosystems upon which endangered
species depend being degraded and lost.
Our Response: We do not anticipate
that the changes to the regulation set
forth in this rule will result in fewer
species being listed. By providing
clearer requirements and expectations to
prospective petitioners, the quality and
completeness of petitions will likely
improve, leading to more accurate 90day findings and consequently more
efficient use of limited resources.

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As discussed in greater detail in the
National Environmental Policy Act
Determination section below and in the
Environmental Action Statement
(available at http://www.regulations.gov,
under Docket Nos. FWS–HQ–ES–2015–
0016 and DOC 150506429–5429–01), we
have concluded that this final rule
revising the regulations at 50 CFR
424.14 falls within categorical
exclusions from NEPA under both
applicable DOI regulations and NOAA
guidance. Specifically, the regulation
falls within the DOI categorical
exclusion for ‘‘[p]olicies, directives,
regulations, and guidelines: That are of
an administrative, financial, legal,
technical, or procedural nature.’’ 43 CFR
46.210(i). It also falls within the
substantially identical NOAA
categorical exclusion for ‘‘policy
directives, regulations and guidelines of
an administrative, financial, legal,
technical or procedural nature.’’ See
NOAA Administrative Orders (NAOs)
216–6A (section 6.01) and 216–6
(section 6.03c.3(i)).
We do not anticipate that this final
rule will change the outcomes of the
Services’ 90-day findings as to whether
petitions present substantial
information indicating that the
petitioned actions may be warranted,
because it is administrative and
procedural in nature, and is designed
merely to clarify and streamline the
petition process consistent with
statutory language, legislative history,
and case law. Moreover, the revised
regulations do not limit Secretarial
discretion, because they do not mandate
particular outcomes in future decisions
regarding whether a request should be
accepted as a petition or whether a
petition presents substantial
information that a petitioned action may
be warranted.
Although the revised regulations
expand on what information must be
included in a request for it to qualify as
a petition under section 4(b)(3) of the
Act, they also provide for a process to
inform petitioners when the request
fails to meet the required criteria and
allow discretion for the Services to
consider a request that substantially
complies with the required elements
even if there is not full technical
compliance. The Services will, within a
reasonable timeframe, notify the
petitioners of the required information
that is missing. This will allow the
submitters to cure any deficiencies
before resubmitting the petition to the
Services, should they choose to do so.
Therefore, we do not expect that this
additional procedural requirement will
affect the substantive outcomes of 90day findings on well supported

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petitions; rather, it will make the
Services’ consideration of petitions
more efficient.
Summary of Changes to Previous
Regulations at 50 CFR 424.14
General
Throughout the regulation text we
replace the title ‘‘the Secretary’’ or ‘‘the
Secretaries’’ with ‘‘the Services,’’ as the
Services are the formal designees of the
Secretaries of Commerce and the
Interior who have the delegated
authority to implement the Act.
We also change the overall
organization of the regulations. Instead
of organizing all aspects of the
regulations into the two categories of
petitions under the Act (petitions to list,
delist, or reclassify a species are
discussed in current paragraph (b), and
petitions to revise critical habitat are
discussed in current paragraph (c)), the
new regulations are organized by
function. Requirements that apply to all
petitions under the Act appear first (in
new paragraphs (a), (b), (c)), followed by
the list of factors the Services will
consider in making findings on the two
categories of petitions, respectively, (in
new paragraphs (d) and (e)). Similarly,
procedures that apply to all petitions
under the Act are set out first (in new
paragraphs (f) and (g) (and also (k)),
followed by procedures that apply to the
different categories of petitions (in new
paragraphs (h) and (i) (and also at (j),
which provides procedures for APA
petitions)). We move some of the
specific provisions from the previous
regulations accordingly to fit better into
this overall structure.
Ability To Petition—Paragraph (a)
Section 424.14(a) retains the
substance of the first sentence of the
current section, stating that 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.
Notification of Intent To File Petition—
Paragraph (b)
In our April 21, 2016, revised
proposed rule (81 FR 23448), we
included in § 424.14(b)(9) the
requirement that, at least 30 days prior
to filing a petition, the petitioners
provide State agencies responsible for
the management and conservation of
wildlife with notice, by letter or
electronic mail, of their intent to file a
petition with the Services, and that
copies of these letters or
communications be included with the
petition when it is submitted to the
Services. In finalizing this rule, we

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realized that the requirement to provide
notice to State agencies did not belong
with the rest of paragraph (b), because
that paragraph outlined a list of
information to be included with a
petition submission, not actions
required of a petitioner before filing.
Therefore, for clarity and consistency,
we have reformatted the regulation by
adding a new paragraph (b) requiring
that petitioners notify States before
filing petitions. The list of required
information that was formerly contained
in paragraph (b) has now been
redesignated as paragraph (c). All
subsequent paragraphs have been
appropriately redesignated.
Therefore, new § 424.14(b) requires
that for a petition to list, delist, or
reclassify a species, or for petitions to
revise critical habitat, petitioners must
provide notice to the State agency or
agencies primarily responsible for the
management and conservation of fish,
plant, or wildlife resources in each State
where the species that is the subject of
the petition occurs. Petitioners must
notify the State agency of their intent to
file a petition, with either Service, at
least 30 days prior to petition
submission. If the State agency has data
or information on the subject species
that it would like to share with the
Services, the agency may submit the
data and information directly to FWS or
NMFS. This provision will allow the
Services to benefit from the States’
considerable experience and
information on the species within their
boundaries, because the States would
have an opportunity to submit to the
Service any information they have on
the species early in the petition process.
The Services, in formulating an initial
finding, may use their discretion to
consider any information provided by
the States (as well as other readily
available information, including any
information they have received from
other interested parties before the initial
finding) as part of the context in which
they evaluate the information contained
in the petition.
Also in § 424.14(b), we added the
following sentence for clarification to
the language of the revised proposed
rule (81 FR 23448; April 21, 2016):
‘‘This notification requirement shall not
apply to any petition submitted
pertaining to a species that does not
occur within the United States.’’ This
addition is to clarify that this provision
does not apply to foreign species that do
not occur in the United States, and
further that, consistent with the
definition in the Act at 16 U.S.C.
1532(17), ‘‘States’’ refers only to the
States, the District of Columbia, and the

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territories and commonwealths of the
United States.
Requirements for Petitions—Paragraph
(c)
As stated earlier, new § 424.14(c)
incorporates the substance of the
revised proposal’s (81 FR 23448; April
21, 2016) § 424.14(b), setting forth a
number of minimum content
requirements for a request for agency
action to qualify as a petition for the
purposes of section 4(b)(3) of the Act, 16
U.S.C. 1533(b)(3). These include some
of the minimum requirements from the
second and third sentences of current
paragraph (a). As with § 424.14(b) in the
revised proposal, new § 424.14(c) also
expands upon the list of requirements
for a petition, drawing in part from the
provisions in current paragraph (b)(2).
New § 424.14(c)(2) requires that a
petition address only one species.
However, we revised the language from
this statement in the revised proposal
(81 FR 23448; April 21, 2016) to clarify
that a petition addressing only one
species could include any configuration
of members of that single species as
defined by the Act (the full species, one
or more subspecies or varieties, and, for
vertebrate species, one or more distinct
population segments (DPSs)). The
taxonomic (biological) classification
system is hierarchical, which means a
taxon of the rank of species also
includes all subspecies or varieties, if
any, under that species. Similarly,
applying the concept of hierarchical
entities to the Act’s use of the term
‘‘species,’’ a vertebrate species would
also include any potential DPSs.
Therefore, a single-species petition may
address (a) one species of fish, wildlife,
or plant; (b) one or more subspecies
(variety) of fish, wildlife, or plant; or (c)
one or more population segments of any
vertebrate species (which FWS or NMFS
will evaluate per the Services’ Policy
Regarding the Recognition of District
Vertebrate Population Segments (61 FR
4722; February 7, 1996) (DPS Policy) as
to whether it qualifies as a DPS). As
such, the petitioner need not file
separate petitions to address different
hierarchical configurations of the same
species.
Although the Services in the past
have accepted multi-species petitions,
in practice it has often proven to be
difficult to know which supporting
materials apply to which species. That
has at times made it difficult to follow
the logic of the petition. Because
petitioners can submit multiple
petitions, this requirement does not
place any limitation on the ability of an
interested party to petition for section 4
actions, but does ensure that petitioners

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organize the information in a way (on a
species-by-species basis) that is
necessary to inform the species-specific
determinations required by the Act and
will allow more efficient action by the
Services.
The first six requirements
(§ 424.14(c)(1) through (c)(6)) apply to
each type of petition recognized under
section 4(b)(3) of the Act. The first four
requirements (§ 424.14(c)(1) through
(c)(4)) were all contained in the
previous regulations at § 424.14(a) and
(b). The fifth and sixth requirements
(§ 424.14(c)(5) and (c)(6)) clarify and
expand on the previous provisions at
§ 424.14(b)(2)(iv) regarding a petition’s
supporting documentation.
At § 424.14(c)(5), we use the word
‘‘readily’’ before ‘‘locate the information
cited in the petition, including page
numbers or chapters as applicable.’’ The
Services should not have to search
through reference material to locate
specific information; the petition should
provide clear, specific citations that
allow the supporting information to be
located readily.
The seventh requirement
(§ 424.14(c)(7)) applies only to petitions
to list, delist, or reclassify a species from
an endangered species to a threatened
species (i.e, downlisting) or from a
threatened species to an endangered
species (i.e., uplisting), and requires that
information be presented to demonstrate
that the subject entity is or may be a
‘‘species’’ as defined in the Act (which
includes a species, a subspecies or
variety, or a distinct population segment
of a vertebrate species that FWS or
NMFS may determine to be a DPS). We
note that currently-listed species are
generally recognized by the Services as
species under the Act; therefore,
petitions regarding already-listed
species need only refer to that species,
except when the petition seeks a change
in the delineation of a ‘‘species’’ under
the Act (for example, to divide a species
into more than one species, delist or
reclassify a portion of a listed species,
a change in how FWS or NMFS
delineates a DPS, or otherwise
reconfigure the current listing). Section
4(b)(3)(A) of the Act applies only to ‘‘a
petition . . . to add a species to, or to
remove a species from, either of the lists
[of endangered or threatened wildlife
and plants]’’ [emphasis added]. This
provision screens from needless
consideration those requests that clearly
do not involve a species, subspecies, or
distinct population segment of a
vertebrate species.
The eighth requirement
(§ 424.14(c)(8)), applies only to petitions
to list a species, and to petitions to
delist or reclassify a species in cases

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where the species’ range has changed
since listing, and requires that
information be included in the petition
describing the current and historical
range of the species, including range
States or countries, as appropriate. It is
important that the Services have
information on both the current and
historical range of the species; for
example, a historical range that is
significantly larger than the current
range would show range contraction,
which may be an important
consideration. The previous regulations
at § 424.14(b)(2)(ii) identified as one of
the factors the Services will consider in
evaluating listing, delisting, and
reclassification petitions the degree to
which the petition contains a detailed
narrative describing ‘‘past and present
. . . distribution of the species. . . .’’
New § 424.14(c)(8) now expands on this
requirement and includes it as one of
the essential requirements for a petition.
The ninth requirement, § 424.14(c)(9)
relates to the requirement of § 424.14(b)
that petitioners must provide notice to
the State agency responsible for the
management and conservation of fish,
plant, or wildlife resources in each State
where the species that is the subject of
the petition occurs, at least 30 days
prior to petition submission. Copies of
the letter or electronic communication
from the petitioner notifying the State
agency of the petitioner’s intent to file
a petition with either Service must be
included with the petition when it is
submitted; such copies are considered a
required part of the petition.
Please note that any decision to
provide the protections of the Act to a
species in an expedited manner under
the Act’s section 4(b)(7) (i.e., emergency
listing) is at the discretion and
determination of the Services upon a
review of the best available scientific
information. In any case, because the
Services retain discretion to consider a
petition that has only substantially
complied with the requirements for
filing petitions, they retain discretion to
consider such petitions in appropriate
circumstances, such as where it appears
to the Services that expedited listing
may be warranted. The Services also
have discretion to simply treat them as
petitions seeking the species listing on
a non-emergency basis.
The Services apply § 424.14(c) to
identify those requests that contain all
the elements of a petition, so that
consideration of the request will be an
efficient and wise use of agency
resources. A request that fails to meet
these elements may be screened out
from further consideration, as discussed
below, because a request cannot meet
the statutory standard for demonstrating

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that the petitioned action may be
warranted if it does not contain at least
some information on each of the areas
relevant to that inquiry. However, as
discussed further below, the screening
out of petitions due to missing required
information does not constitute a
petition finding under Section 4(b)(3)(A)
of the Act. In such a situation, the
Services will explain to petitioners what
information was missing so that the
petitioners can have an opportunity to
cure the deficiencies in a new petition
and obtain a finding on the petition
under section 4(b)(3)(A) of the Act.
Information To Be Included in Petitions
To List, Delist, or Change the Status of
a Listed Species—Paragraph (d)
Section 424.14(d) describes the types
of information that are relevant to the
Services’ determinations as to whether
the petition provides substantial
scientific or commercial information
that the petitioned action may be
warranted. Petitioners are advised that
compliance with paragraph (c) is the
minimum necessary to require the
Services to consider their petition, but
to provide a more complete and robust
petition, petitioners should include as
much of the types of information listed
in paragraph (d) as possible, to the
extent that it is relevant to the type of
petition being filed.
The informational elements for
listing, delisting, and reclassification
petitions in § 424.14(d)(1) through (d)(3)
are rooted in the substance of current
paragraphs (b)(2)(ii) and (iii). These
elements clarify in the regulations the
key considerations that are relevant
when the Services are determining
whether or not the petition presents
‘‘substantial scientific or commercial
information indicating that the
petitioned action may be warranted,’’
which is the standard for making a
positive 90-day finding as described in
section 4(b)(3)(A) of the Act, 16 U.S.C.
1533(b)(3)(A).
Section 424.14(d)(3) refers to
inclusion in a petition of a description
of the magnitude and immediacy of
threats. This type of information
regarding the severity of threats on the
species or its habitat is generally needed
in conducting status reviews, and is
therefore relevant to determining
whether the petition presents
substantial information indicating that
the petitioned action may be warranted.
In addition, this information may assist
FWS in assessing the listing priority
number of species if FWS subsequently
makes a warranted-but-precluded
finding under FWS’ September 21,
1983, guidance, which requires
assessing, in part, the magnitude and

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immediacy of threats (48 FR 43098). In
addition to being useful for status
reviews, this information should be
included to assist in determinations on
uplisting requests. While such
information may also be useful to
NMFS, NMFS has not adopted the 1983
FWS guidance, and so would not apply
that guidance to petitions within its
jurisdiction.
Section 424.14(d)(4) refers to
inclusion in a petition of information on
any conservation actions that States, or
other parties, have initiated or that are
ongoing, that benefit the subject species.
Because this information is relevant to
an ultimate determination of whether or
not listing a species is warranted (the
12-month finding standard), it is
indirectly relevant and may be useful in
evaluating whether the action may be
warranted (the 90-day finding standard).
We add a new § 424.14(d)(5), stating
that a petitioner should provide a
complete, balanced presentation of facts
pertaining to the petitioned species,
which would include any information
the petitioner is aware of that
contradicts claims in the petition. The
intent of this provision is not to place
an unnecessary burden on petitioners,
but rather to encourage petitioners to
avoid presenting in a petition only
information that supports the claims in
the petition. This is particularly true for
information publicly available from
affected States or Tribes, who often have
important and relevant species data and
information, as well as special status
and concerns with respect to
implementation of the Act. Fostering
greater inclusion of such data will help
ensure that any petition submitted to
the Services is based on reliable and
unbiased information and does not
consist simply of selected data. We find
that, to further the purposes of the Act,
petitioners should be forthcoming as to
the known, relevant facts so that the
Services have an accurate basis from
which to evaluate the merits of the
petition. Fostering a more transparent
and informed petition process will
ensure that the Services’ resources are
directed productively and not diverted
to matters that only superficially appear
meritorious.
Section 424.14(d) does not include
the language in current paragraph (b)(2)
that describes information a petitioner
may include for consideration in
designating critical habitat in
conjunction with a listing or
reclassification. We have deleted these
two sentences because, at the initial
stage, the Services focus their evaluation
of the information to make a finding on
whether the petition presents
substantial information indicating that

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the species may warrant listing,
delisting, or reclassification. If the
Services find that the petition presents
substantial information that listing may
be warranted and proceeds to initiating
a status review, the Services will seek
information concerning critical habitat
at that time.
Information To Be Included in Petitions
To Revise Critical Habitat—Paragraph
(e)
Section 424.14(e) sets forth the kinds
of information a petitioner should
include in a petition to revise a critical
habitat designation. The Service’s
determination as to whether the petition
provides ‘‘substantial scientific
information indicating that the revision
may be warranted’’ (16 U.S.C.
1533(b)(3)(D)(i)) will depend in part on
the degree to which the petition
includes this type of information.
The items set out at new § 424.14(e)
are an expanded and reworded version
of the substance of current paragraph
(c)(2). Section 424.14(e)(1) advises that,
to help justify a revision to critical
habitat, it is important to demonstrate
that the existing designation includes
areas that should not be included or
does not include areas that should be
included. The petition should discuss
the benefits of designating additional
areas, or the reasons to remove areas
from an existing designation.
Additionally, including maps with
sufficient detail to clearly identify the
particular area(s) being recommended
for inclusion or exclusion will be useful
to the Services in making a petition
finding.
New § 424.14(e)(2), (e)(3), and (e)(4)
are drawn from the substance of current
paragraphs (c)(2)(i) and (ii), which have
been reorganized and clarified. Sections
424.14(e)(2), (e)(3), and (e)(4) clarify that
several distinct pieces of information
are helpful in analyzing whether any
area of habitat should be designated,
beginning with a description of the
‘‘physical or biological features’’ that are
essential for the conservation of the
species and which may require special
management. If a petitioner believes that
the already-identified physical or
biological features in an existing critical
habitat designation have been
incorrectly identified, the petition
should provide information supporting
the recognition of a different set of
features and explain how the different
set of features would lead to
identification of different areas as
qualifying for inclusion in a designation
of occupied critical habitat. (See also
our response to comment 47). In other
words, petitioners requesting revisions
to critical habitat designations need not

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provide information on which physical
or biological features are essential
unless the relevant areas were occupied
at the time of listing and the petitioners
contend that some features recognized
at the time of designation as essential
are not, or that features not recognized
in the designation as essential should
be.
Also, paragraphs (e)(3) and (e)(4) of
§ 424.14 detail the informational needs
the Services will have in considering
whether the petition presents
substantial information indicating that it
may be warranted to add to, or remove
from, the critical habitat designation
specific areas occupied by the species at
the timing of listing. Further, we clarify
that ‘‘features’’ specifically refers to the
‘‘physical or biological features,’’ as
described in our recent revision to 50
CFR 424.12 (81 FR 7414; February 11,
2016). Further, to use the same language
as the revised 50 CFR 424.12, we
replace the clause ‘‘(including features
that allow the area to support the
species periodically, over time)’’ with
‘‘(including characteristics that support
ephemeral or dynamic habitat
conditions).’’
Section 424.14(e)(5) describes the
particular informational needs
associated with evaluating habitat that
was unoccupied at the time of listing—
that is, information that fulfills the
statutory requirement that any specific
areas designated are ‘‘essential for the
conservation of the species.’’ See section
3(5)(A)(ii) of the Act, 16 U.S.C.
1532(5)(A)(ii).
Section 424.14(e)(6) mirrors the
revised § 424.14(d)(5), stating that a
petitioner should provide a complete,
balanced presentation of facts pertaining
to the species’ potential critical habitat,
which would include any information
the petitioner is aware of that
contradicts claims in the petition. This
provision recognizes that, in availing
themselves of the petition process,
petitioners seek to direct the Services’
focus and resources to particular
species.
Responses to Petitions—Paragraph (f)
Section 424.14(f) sets out the possible
responses the Services may make to
requests. Section 424.14(f)(1) clarifies
that a request that fails to satisfy the
mandatory elements set forth in
paragraph (c) will generally be returned
by the Services with an explanation of
the reason for the rejection, but without
a determination on the merits of the
request. In light of the volume of
petitions received by the Services, it is
critical that we have the option to
identify in a reasonable timeframe those
requests that on their faces are

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incomplete, in order to ensure that
agency resources are not diverted from
higher priorities. Although this
authority is implied in the current
regulations, making the point explicit in
these revised regulations provides
additional notice to petitioners and will
result in better-quality petitions and
more efficient and effective (in terms of
species conservation) use of agency
resources.
The Services retain discretion to
determine whether a request constitutes
a petition and to process that petition
where the Services determine there has
been substantial compliance with the
relevant requirements. The Services
need to maintain some discretion in
order to apply common-sense principles
in accepting or rejecting petitions.
Petitions will not likely be rejected for
minor omissions of the requirements set
forth at § 424.14(c). The Services also
recognize that not all elements will be
as crucial for particular kinds of
petitions (e.g., petitions to delist a
species due to recovery need not
provide information on the validity of
the entity; currently-listed species can
be assumed to be valid entities as the
Services routinely review such matters
for listed species under our
jurisdiction), and maintain discretion
regarding acceptance of petitions
accordingly.
We would apply such discretion
judiciously. If most of the cited source
materials have been provided, the
Services may accept the petition and
may evaluate the petition without
considering those claims for which the
source materials have not been
provided. Thus, even if the petition is
accepted, the absence of cited source
materials may make it more likely to
result in a finding that the petition does
not present substantial information. To
avoid rejection of the petition or an
increased likelihood of a ‘‘not
substantial’’ finding, we encourage the
petitioner to include all cited materials
with the petition, as this is an important
step in substantiating the petitioner’s
claims. It should not present a hardship
to provide the source material that the
petitioner used in preparing the
petitioned request.
Section 424.14(f)(1) states that the
Services will determine whether or not
a request contains all of the requisite
information for qualifying as a petition
‘‘within a reasonable timeframe.’’
Although this does not establish a
specific timeframe, the Act already
prescribes a number of binding,
enforceable deadlines for making
petition findings, and we do not intend
to create a new one with this provision.
Our goal is to minimize the amount of

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time it will take the Services to review
a request and determine whether it
qualifies as a petition. We anticipate
that the determination can be made
within weeks of receiving the request.
The revision to § 424.14(f)(2) confirms
that a request that complies with the
mandatory requirements will be
acknowledged (as required under
current 424.14(a)); however, we have
removed the requirement to provide the
acknowledgement in writing within 30
days of the receipt of the petition. We
make this revision to allow the Services
greater flexibility in the means and
timing of communicating with the
petitioner its determination of whether
the petition complies with the
mandatory requirements. This revision
also reflects the fact that, in light of
current electronic means of
communication, it is more efficient for
petitioners to refer to the Services’
online lists of active petitions, which
are accessible to the public at http://
ecos.fws.gov/ecp/report/table/petitionsreceived.html and http://
www.nmfs.noaa.gov, or on individual
species profile pages accessed by
searching for the species at https://
www.ecos.fws.gov and http://
www.nmfs.noaa.gov. We find that
continuing the practice of sending
confirmations via formal letter no longer
provides the most effective or efficient
means of communicating to all
interested parties regarding the status of
petitions.
Supplemental Information—Paragraph
(g)
We clarify in § 424.14(g) that a
petitioner submitting supplemental
information later in time from their
original petition has the option to
specify whether or not the information
being submitted is intended to be part
of the petition. Specifying that the
supplemental information is intended to
be part of the petition will have the
consequence that the Services will be
obligated to consider it in the course of
reaching a finding on the petition. It
will also, however, have the related
consequence that the timeframes under
section 4 of the Act for when findings
are due will be reset and begin to run
anew from the time the supplemental
information is received. In contrast, if
the petitioner does not specify that the
information is intended to be part of the
petition, the Services will treat the
supplemental information as they
would any readily available information
from any source. As we have explained,
the Services have discretion to consider
such information as appropriate to place
the petition in context, but are not
required to consider such information.

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Because the Act requires that the 90-day
finding evaluate whether the petition
presents substantial information to
indicate that the petitioned action may
be warranted, the submission of new
information intended to supplement a
petition is in effect a new petition. It is
thus reasonable and necessary to reset
the timeframes when new information
intended to supplement the petition is
received. The final regulation thus
strikes a balance that is fair to
petitioners by giving them the choice to
determine the consequences of
submitting new information.
This provision will ensure the
Services have adequate time to consider
the supplemental information relevant
to a petition and that the process is not
interrupted by receipt of new
information that may fundamentally
change the evaluation. Also, by
providing clear notice of this process,
the Services are encouraging petitioners
to assemble all the information
necessary to support the petition prior
to sending it to the Services for
consideration, further enhancing the
efficiency of the petition process.
Findings on a Petition To List, Delist, or
Reclassify—Paragraph (h)
Section 424.14(h) explains the kinds
of findings the Services may make on a
petition to list, delist, or reclassify a
species, and the standards to be applied
in that process. Section 424.14(h)(1) is
drawn largely from current paragraph
(b)(1), with some revisions. Most
significantly, § 424.14(h)(1)(i) clarifies
the substantial-information standard for
90-day findings by defining it as
credible scientific and commercial
information that would lead a
reasonable person conducting an
impartial scientific review to conclude
that the action proposed in the petition
may be warranted. Thus it makes clear
that conclusory statements made in a
petition without the support of credible
scientific or commercial information are
not ‘‘substantial information.’’ For
example, a petition that states only that
a species is rare, and thus should be
listed, without other credible
information regarding its status and
threats, likely does not provide
substantial information. As
demonstrated by the Scott’s riffle beetle
case (WildEarth Guardians v. Salazar,
No. 10–cv–00091–WYD (D. Colo. Sept.
14, 2011)), the inclusion of this
statement clarifies, but does not alter,
the Services’ standard for evaluating 90day findings. In that case, FWS made a
negative 90-day finding, because the
petition did not present any information
of any potential threat currently
affecting the species or reasonably likely

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to do so in the foreseeable future, nor
did it indicate a population decline. The
court rejected a merits challenge to that
petition finding, and found that
information as to the rarity of a species,
without more information, is not
‘‘substantial information’’ that listing
the species may be warranted.
In § 424.14(h)(1)(ii), we have added a
new sentence to clarify that the Services
are not required to consider any
supporting materials cited by the
petitioner if the cited documents, or
relevant excerpts or quotations from the
cited documents, are not provided in
accordance with paragraph (c)(6) of this
section. Additionally, we clarify that the
Services may consider information
provided in a petition in the context of
other information that is readily
available at the time it makes a 90-day
finding. For purposes of § 424.14(h)(1),
the Services recognize that the statute
places the obligation squarely on the
petitioner to present the requisite level
of information to meet the ‘‘substantial
information’’ test, and that the Services
should not seek to supplement
petitions. (See the Columbian sharptailed grouse case (WildEarth Guardians
v. U.S. Secretary of the Interior, No.
4:08–CV–00508–EJL–LMB (D. Idaho
Mar. 28, 2011)), which provided, among
other things, that the petitioner has the
burden of providing substantial
information.) In order for the Services to
find that a petition presents substantial
information indicating that the
petitioned action may be warranted, the
petition should itself present that
information. The Services need not
resort to supplemental information to
bolster, plug gaps in, or otherwise
supplement a petition that is inadequate
on its face.
However, in determining whether a
petition is substantial or not, the
Services must determine whether the
claims are credible. Therefore, it is
appropriate for the Services to consider
readily available information that
provides context in which to evaluate
whether or not the information that a
petition presents is timely and up-todate, and whether it is reliable or
representative of the available
information on that species, in making
its determination as to whether the
petition presents substantial
information.
The precise range of information
considered will vary with
circumstances. In a discussion of
judicial review of the Secretary’s 90-day
findings on petitions, a House
Conference report states that, when
courts review such a decision, the
‘‘object of [the judicial] review is to
determine whether the Secretary’s

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action was arbitrary or capricious in
light of the scientific and commercial
information available concerning the
petitioned action’’ [emphasis added]
(H.R. Conf. Rep. No. 97¥835, at 20,
reprinted in 1982 U.S.C.C.A.N. 2860,
2862). By requiring courts to evaluate
the Secretary’s substantial information
findings in light of information
‘‘available,’’ this statement suggests that
the drafters anticipated that the
Secretary could evaluate petitions in the
context of scientific and commercial
information available to the Services,
and not limited arbitrarily to the subset
of available information that is
presented in the petitions. In these
regulatory amendments, the Services
have crafted a balanced approach that
will ensure that the Services may take
into account the information readily
available to us as context for the
information provided in a petition,
without opening the door to the type of
wide-ranging survey more appropriate
for a status review.
Although the Services are mindful
that, at the stage of formulating an
initial finding, they should not engage
in outside research or an effort to
comprehensively compile the best
available information, they must be able
to place the information presented in
the petition in context. The Act
contemplates a two-step process in
reviewing a petition. The 12-month
finding is meant to be the more in-depth
determination and follows a status
review, while the 90-day finding is
meant to be a quicker evaluation of a
more limited set of information.
However, based on our experience in
administering the Act, the Services
conclude that evaluating the
information presented in the petition in
a vacuum can lead to inaccurately
supported decisions and misdirection of
resources away from higher priorities. It
would be difficult for the Services to
bring informed expertise to their
evaluation of the facts and claims
alleged in a petition without
considering the petition in the context
of other information of the sort that the
Services have readily available and
would routinely consult in the course of
their work. It is reasonable for the
Services to be able to examine the
information and claims included in a
petition in light of readily available
scientific information prior to
committing limited Federal resources to
the significant expense of a status
review. Some examples of readily
available information that the Services
may use include information sent to the
Services by State wildlife agencies or
other parties, State fish and wildlife

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databases, the Integrated Taxonomic
Identification System (ITIS), the
International Union for the
Conservation of Nature (IUCN), the
Intergovernmental Panel on Climate
Change (IPCC), stock assessments, and
fishery management plans (this list is
not all-inclusive).
The information the Services may use
may not only be stored in the traditional
hard copy format in files, but may also
be electronic data files as well, or stored
on Web sites created by the Services or
other Web sites routinely accessed by
the Services. As noted, the range of
information considered readily available
will vary with circumstances, but could
include the information physically held
by any office within the Services
(including, for example, NMFS Science
Centers and FWS Field Offices), and
may also include information stored
electronically in databases routinely
consulted by the Services in the
ordinary course of their work. For
example, it would be appropriate to
consult online databases such as ITIS
(http://www.itis.gov), a database of
scientifically credible taxonomic
nomenclature information maintained
in part by the Services.
Section 424.14(h)(1)(iii) addresses
situations in which the Services have
already made a finding on or conducted
a review of the listing status of a
species, and, after such finding or
review, receive a petition seeking to list,
delist, or reclassify that species. Such
prior reviews constitute information
readily available to the Services and
provide important context for
evaluation of petitions. Although the
substantial-information standard applies
to all petitions under section 4(b)(3)(A)
of the Act, the standard’s application is
influenced by the context in which the
finding is being made. The context of a
finding after a status review and
determination is quite different from
that before any status review has been
completed. Further, prior reviews
represent a significant expenditure of
the Services’ resources, and it would be
inefficient and unnecessary to require
the Services to revisit issues for which
a determination has already been made,
unless there is a basis for
reconsideration. In the case of prior
reviews that led to final agency actions
(such as final listings, 12-month not
warranted findings, and 90-day notsubstantial findings), a petition
generally would not be found to provide
substantial information unless the
petition provides new information or a
new analysis or interpretation not
previously considered in the final
agency action. By ‘‘new’’ we mean that
the information was not considered by

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the Services in the prior determination
or that the petitioner is presenting a
different interpretation or analysis of
that data.
These revisions are not meant to
imply that the Service’s finding on a
petition addressing the same species as
a prior determination would necessarily
be negative. For example, the more time
that has elapsed from the completion of
the prior review, the greater the
potential that substantial new
information has become available. As
another example, the Services may have
concluded a 5-year status review in
which we find that a listed species no
longer warrants listing, but we have not
as yet initiated a rulemaking to delist
the species (in other words, have not yet
undertaken a final agency action). If we
receive a petition to delist that species,
in which the petitioner provides no new
or additional information than was
considered in the 5-year status review,
we would likely still find that the
petition presents substantial
information that the petitioned action
may be warranted.
Paragraph (h)(2) is substantially the
same as current paragraph (b)(3). Among
other changes, we added new language
clarifying the standard for making
expeditious-progress determinations in
warranted-but-precluded findings,
including (in paragraph (h)(2)(iii)(B)) a
clear acknowledgement that such
determinations are to be made in light
of resources available, after complying
with nondiscretionary duties, court
orders, and court-approved settlement
agreements to take actions under section
4 of the Act. In this rule, we are
redesignating current paragraph (b)(4) as
paragraph (h)(3), although we have
removed the reference in the current
language that ‘‘no further finding of
substantial information will be
required,’’ as it merely repeats statutory
language.
In § 424.14(h)(2), we replace the
conditional clause ‘‘If a positive finding
is made’’ (as we used in our proposed
rule published on May 21, 2015 (80 FR
29286)) with ‘‘If the Services find that
the petition presents substantial
information indicating that the
petitioned action may be warranted,’’
for clarity, and to avoid introducing an
additional, undefined term. We also add
clarity in § 424.14(h)(2), by adding the
phrase, ‘‘At the conclusion of the status
review,’’ before the reference to the
obligation of the Services to make a 12month finding.
Findings on a Petition To Revise Critical
Habitat—Paragraph (i)
Paragraph (i) explains the kinds of
findings that the Services may make on

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a petition to revise critical habitat.
Paragraph (i)(1) is essentially the same
as current paragraph (c)(1), and
describes the standard applicable to the
Service’s finding at the 90-day stage.
Please refer to the discussion of the
‘‘substantial information’’ standard
discussed in the description of
§ 424.14(h)(1), above. Paragraph (i)(2)
specifically acknowledges, consistent
with the statute, that a 12-month
determination on a petition that
presents substantial information
indicating that a revision to critical
habitat may be warranted may, but need
not, take a form similar to one of the
findings called for at the 12-month stage
in the review of a petition to list, delist,
or reclassify species. Section 4(a)(3)(A)
of the Act establishes a mandatory duty
to designate critical habitat for listed
species to the maximum extent prudent
and determinable at the time of listing,
but provides with respect to subsequent
revision of such habitat only that the
Services ‘‘may, from time-to-time
thereafter as appropriate, revise such
designation’’ [emphasis added] (16
U.S.C. 1533(a)(3)(A)(ii)).
The Services’ broad discretion to
decide when it is appropriate to revise
critical habitat is evident in the
differences between the Act’s provisions
discussing petitions to revise critical
habitat, on the one hand, and the far
more prescriptive provisions regarding
the possible findings that can be made
at the 12-month stage on petitions to
list, delist, or reclassify species, on the
other. Section 4(b)(3)(B) of the Act
includes three detailed and exclusive
options for 12-month findings on
petitions to list, delist, or reclassify
species. In contrast, section 4(b)(3)(D)(ii)
requires only that, within 12 months of
receipt of a petition to revise critical
habitat that has been found to present
substantial information that the
petitioned revision may be warranted,
the Secretaries (acting through the
Services) determine how they intend ‘‘to
proceed with the requested revision’’
and promptly publish notice of such
intention in the Federal Register. The
differences in these subsections
indicates that the statute does not
mandate that the 12-month finding
procedures for petitions to list, delist, or
reclassify species be followed in
determining how to proceed with
petitions to revise critical habitat. See
Sierra Club v. U.S. Fish and Wildlife
Service, 930 F. Supp. 2d 198 (D.D.C.
2013) (leatherback sea turtle) (12-month
determinations on petitions to revise are
committed to the agency’s discretion by
law, and thus unreviewable under the
Administrative Procedure Act); and

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Morrill v. Lujan, 802 F. Supp. 424 (S.D.
Ala. 1992) (revisions to critical habitat
are discretionary); see also Barnhart v.
Sigman Coal Co., Inc., 122 S. Ct. 941,
951 (2002) (noting that ‘‘it is a general
principle of statutory construction that
when ‘Congress includes particular
language in one section of a statute but
omits it in another section of the same
Act, it is generally presumed that
Congress acts intentionally and
purposely in the disparate inclusion or
exclusion’’’) (citing Russello v. United
States, 464 U.S. 16, 23 (1983)); Federal
Election Commission v. National Rifle
Ass’n of America, 254 F.3d 173, 194
(D.C. Cir. 2001) (same).
Further, the legislative history for the
1982 amendments that added the
petition provisions to the Act confirms
that Congress intended to grant
discretion to the Services in
determining how to respond to petitions
to revise critical habitat. After
discussing at length the detailed listing
petition provisions and their intended
meaning, Congress said of the critical
habitat petition requirements, ‘‘Petitions
to revise critical habitat designations
may be treated differently’’ (H.R. Rep.
No. 97–835, at 22 (1982), reprinted in
1982 U.S.C.C.A.N. 2860, 2862).
The Services may find in particular
situations that terminology similar to
that used in the listing-petition
provisions is useful for explaining their
determination at the 12-month stage of
how they intend to proceed on a
petition to revise critical habitat. For
example, the Services have, at times,
used the term ‘‘warranted’’ to indicate
that requested revisions of critical
habitat would satisfy the definition of
critical habitat in section 3 of the Act.
However, use of the listing-petition
terms in a determination of how the
Services intend to proceed on a petition
to revise critical habitat would not mean
that the associated listing-petition
procedures and timelines apply or are
required to be followed with respect to
the petition. For example, if the Services
find that a petitioned revision of critical
habitat is, in effect, ‘‘warranted,’’ in that
the areas would meet the definition of
‘‘critical habitat,’’ that finding would
not require the Services to publish a
proposed rule to implement the revision
in any particular timeframe. Similarly, a
finding on a petition to revise critical
habitat that uses the phrase ‘‘warranted
but precluded,’’ or a functionally similar
phrase, to describe the Secretary’s
intention would not trigger the
requirements of section 4(b)(3)(B)(iii) or
section 4(b)(3)(C) (establishing
requirements to make particular
findings, to implement a monitoring
system, etc.).

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Although the Services have discretion
to determine how to proceed with a
petition to revise critical habitat, the
Services think that certain factors
regarding conservation and recovery of
the species at issue are likely to be
relevant and potentially important to
most such determinations. Such factors
may include, but are not limited to: The
status of the existing critical habitat for
which revisions are sought (e.g., when
it was designated, the extent of the
species’ range included in the
designation); the effectiveness or
potential of the existing critical habitat
to contribute to the conservation of the
listed species at issue; the potential
conservation benefit of the petitioned
revision to the listed species relative to
the existing designation; whether there
are other, higher-priority conservation
actions that need to be completed under
the Act, particularly for the species that
is the subject of the petitioned revision;
the availability of personnel, funding,
and contractual or other resources
required to complete the requested
revision; and the precedent that
accepting the petition might set for
subsequent requested revisions.
At § 424.14(i)(2), compared to our
revised proposal of the rule (81 FR
23448; April 21, 2016), we add the
introductory clause, ‘‘If the Services
find that the petition presents
substantial information that the
requested revision may be warranted,’’
for clarity.
Petitions To Initially Designate Critical
Habitat and Petitions for 4(d), 4(e), and
10(j) Rules—Paragraph (j)
Paragraph (j) is substantially the same
as current paragraph (d), which refers to
petitions to ‘‘designate critical habitat or
adopt special rules.’’ In this regulation,
for clarity, we expressly refer to the
types of petitions that are covered,
which are those requesting that the
Services initially designate critical
habitat or adopt rules under sections
4(d), 4(e), or 10(j) of the Act.
Withdrawn Petitions—Paragraph (k)
Paragraph (k) describes the process for
a petitioner to withdraw a petition, and
the Services’ discretion to discontinue
action on the withdrawn petition.
Although the Services may discontinue
work on a 90-day or 12-month finding
for a petition that is withdrawn, in the
case of a petition to list a species, the
Services may use their own process to
evaluate whether the species may
warrant listing and whether it should
become a candidate for listing. In the
case of the withdrawal of a petition to
delist, uplist or downlist a species, the
Services may use the 5-year review

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process or the annual candidate review
to further evaluate the status of the
species, or elect to consider the issue at
any time.
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides
that the Office of Management and
Budget’s Office of Information and
Regulatory Affairs (OIRA) will review
all significant rules. The OIRA has
determined that this rule is not
significant.
E.O. 13563 reaffirms the principles of
E.O. 12866 while calling for
improvements in the nation’s regulatory
system to promote predictability, to
reduce uncertainty, and to use the best,
most innovative, and least burdensome
tools for achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements. This rule is
consistent with E.O. 13563, and in
particular with the requirement of
retrospective analysis of existing rules,
designed ‘‘to make the agency’s
regulatory program more effective or
less burdensome in achieving the
regulatory objectives.’’

asabaliauskas on DSK3SPTVN1PROD with RULES

Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(as amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996; 5 U.S.C. 601 et seq.),
whenever a Federal agency is required
to publish a notice of rulemaking for
any proposed or final rule, it must
prepare, and make available for public
comment, a regulatory flexibility
analysis that describes the effect of the
rule on small entities (i.e., small
businesses, small organizations, and
small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of an
agency, or his designee, certifies that the
rule will not have a significant
economic impact on a substantial
number of small entities. SBREFA
amended the Regulatory Flexibility Act
to require Federal agencies to provide a
statement of the factual basis for
certifying that a rule will not have a

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significant economic impact on a
substantial number of small entities.
Pursuant to section 605(b), the Chief
Counsel for Regulation, Department of
Commerce, certified to the Chief
Counsel for Advocacy, Small Business
Administration that this final rule, if
promulgated, will not have a significant
economic impact on a substantial
number of small entities. The Director of
the U.S. Fish and Wildlife Service also
certifies that this rule will not have a
significant economic impact on a
substantial number of small entities.
The following discussion explains our
rationale.
This rule will revise and clarify the
regulations governing documentation
needed by the Services in order to
effectively and efficiently evaluate
petitions under the Act. While some of
the changes may require petitioners to
expend some time (such as notifying
State(s)) and effort (providing complete
petitions), we do not expect this will
prove to be a hardship, economically or
otherwise. Further, following a review
of entities that have petitioned the
Services, we find that most are
individuals or organizations that are not
considered small business entities. And
while small entities may choose to
petition the Services, any economic
effects would be minimal because any
increase in costs (such as notification to
States or electronic filing of the petition
versus hardcopy should they choose)
will be nominal, i.e., not a significant
economic impact. As a result, we have
determined that these revised
regulations will not result in a
significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.):
(a) On the basis of information
contained in the Regulatory Flexibility
Act section above, this rule will not
‘‘significantly or uniquely’’ affect small
governments. We have determined and
certify pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502,
that this rule will not impose a cost of
$100 million or more in any given year
on local or State governments or private
entities. A Small Government Agency
Plan is not required. As explained
above, small governments will not be
affected because the rule will not place
additional mandates on any city,
county, or other local municipalities.
(b) This rule will not produce a
Federal mandate on State, local, or tribal
governments or the private sector of
$100 million or greater in any year; that

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is, this rule is not a ‘‘significant
regulatory action’’’ under the Unfunded
Mandates Reform Act. This rule will
impose no obligations on State, local, or
tribal governments.
Takings (E.O. 12630)
In accordance with E.O. 12630, this
rule will not have significant takings
implications. This rule will not pertain
to ‘‘taking’’ of private property interests,
nor will it directly affect private
property. A takings implication
assessment is not required because this
rule (1) will not effectively compel a
property owner to suffer a physical
invasion of property and (2) will not
deny all economically beneficial or
productive use of the land or aquatic
resources. This rule will substantially
advance a legitimate government
interest (conservation and recovery of
endangered and threatened species) and
will not present a barrier to all
reasonable and expected beneficial use
of private property.
Federalism (E.O. 13132)
In accordance with E.O. 13132, we
have considered whether this rule will
have significant Federalism effects and
have determined that a federalism
summary impact statement is not
required. This rule pertains only to the
petition process under the Endangered
Species Act, and will not have
substantial direct effects on the States,
on the relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
Civil Justice Reform (E.O. 12988)
This rule does not unduly burden the
judicial system and meets the applicable
standards provided in sections 3(a) and
3(b)(2) of Executive Order 12988. This
rule will clarify the petition process
under the Endangered Species Act.
Government-to-Government
Relationship With Tribes
In accordance with Executive Order
13175 (‘‘Consultation and Coordination
with Indian Tribal Governments,’’
November 6, 2000), the Department of
the Interior Manual at 512 DM 2, the
Department of Commerce (DOC) Tribal
Consultation and Coordination Policy
(May 21, 2013), DOC Departmental
Administrative Order (DAO) 218–8, and
NOAA Administrative Order (NAO)
218–8 (April 2012), we have considered
possible effects of this final rule on
federally recognized Indian Tribes.
Following an exchange of information
with tribal representatives, we have
determined that this rule, which

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Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations
clarifies the general process for
submission and review of petitions,
does not have ‘‘tribal implications’’ as
defined in Executive Order 13175. This
rule will assist petitioners in providing
complete petitions and enhance the
efficiency and effectiveness of the
petition process to support species
conservation. We will continue to
collaborate with Tribes on issues related
to federally listed species and their
habitats and work with them as we
implement the provisions of the Act.
See Joint Secretarial Order 3206
(‘‘American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities,
and the Endangered Species Act,’’ June
5, 1997).
Paperwork Reduction Act of 1995 (PRA)
This final rule contains information
collections for which the Office of
Management and Budget (OMB)
approval is required under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). We (National
Marine Fisheries Service and U.S. Fish
and Wildlife Service, Services) 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.
OMB has approved the information

collection requirements associated with
this rule and assigned OMB Control
Number 1018–0165, which expires
September 30, 2019.
Any interested person may submit a
written petition to the Services
requesting to add a species to the Lists
of Endangered or Threatened Wildlife
and Plants (Lists), remove a species
from the Lists, change the listed status
of a species, or revise the boundary of
an area designated as critical habitat.
OMB has approved the following
information collection:
Petitions. § 424.14(c) of this rule
specifies the information that must be
included in petitions.
Notification of States. § 424.14(b)
requires that petitioners must notify
applicable States of their intention to
submit a petition to list, delist, or
change the status of a species, or to
revise critical habitat. This notification
must be made at least 30 days prior to
submission of the petition. Copies of the
notification letters must be included
with the petition.
The burden table below includes
information for both NMFS and FWS.
Based on the average number of species
per year over the past 5 years regarding
which FWS and NMFS were petitioned,
we estimate the average annual number

asabaliauskas on DSK3SPTVN1PROD with RULES

of petitions received by both Services
combined to be 50 (25 for FWS and 25
for NMFS). Because each petition will
be limited to a single species under the
regulations, the average number of
species included in petitions over the
past 5 years may be more accurate than
the average number of petitions as a
gauge of the number of petitions we are
likely to receive going forward. This
estimate of the number of petitions the
Services will receive in the future may
be generous. We estimate that there will
be a need for a petitioner to notify an
average of 10 States per petition. Many
species are narrow endemics and may
only occur in one State, but others are
wide-ranging and may occur in many
States. However, we are erring on the
side of over-estimating the potential
number of States petitioners will need
to notify on average.
OMB Control No: 1018–0165.
Title: Petitions, 50 CFR 424.14.
Service Form Number(s): None.
Description of Respondents:
Individuals, businesses, or
organizations.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Estimated Annual Number of
Respondents: 50.
Frequency of Collection: On occasion.
Total annual
responses

Activity/requirement

66483

Completion
time per
response
(hours)

Total annual
burden hours

Petitioner—prepare and submit petitions ....................................................................................
Petitioner—notify States ..............................................................................................................

50
500

120
1

6,000
500

Total ......................................................................................................................................

550

........................

6,500

Total Annual Nonhour Cost Burden:
$1,000.00, based on $20 per petition (for
materials, printing, postage, data
equipment maintenance, etc).
During the proposed rule stage, we
solicited comments for a period of 30
days on the information collection
requirements. We received one
comment.
Comment: The commenter agreed that
most petitions can be prepared in
approximately 120 hours, but more
complex petitions can take much more
time to assemble the information within
the petition.
Response: We agree that in some
cases, time to prepare a petition
submission may be considerably greater
than our estimate, while in other cases,
it may be less. We believe 120 hours is
a reasonable estimate for the average
petition, acknowledging that there could
be a small proportion of submissions
that require more or less time. We have

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retained our estimate of 120 hours. All
comments on the rule are addressed in
the preamble above.
The public may comment, at any
time, on any aspect of the information
collection requirements in this rule and
may submit any comments to the
Information Collection Clearance
Officer, U.S. Fish and Wildlife Service,
MS: BPHC, 5275 Leesburg Pike, Falls
Church, VA 22041–3803 (mail); or
[email protected] (email).
National Environmental Policy Act
We have analyzed this regulation in
accordance with the criteria of the
National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.), the
Department of the Interior regulations
on Implementation of the National
Environmental Policy Act (43 CFR
46.10–46.450), the Department of the
Interior Manual (516 DM 1–6 and 8),
and NOAA Administrative Orders

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(NAOs) 216–6A and 216–6. Our analysis
includes evaluating whether this action
is administrative, legal, technical, or
procedural in nature and, therefore, a
categorical exclusion applies.
Following a review of the changes to
the regulations at 50 CFR 424.14 and
our requirements under NEPA, we find
that the categorical exclusion found at
43 CFR 46.210(i) applies to these
regulation changes. At 43 CFR 46.210(i),
the Department of the Interior has found
that the following category of actions
would not individually or cumulatively
have a significant effect on the human
environment and are, therefore,
categorically excluded from the
requirement for completion of an
environmental assessment or
environmental impact statement:
‘‘Policies, directives, regulations, and
guidelines: That are of an
administrative, financial, legal,
technical, or procedural nature.’’

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NAO 216–6 contains a substantially
identical exclusion for ‘‘policy
directives, regulations and guidelines of
an administrative, financial, legal,
technical or procedural nature’’
(§ 6.03c.3(i)).
At the time DOI’s categorical
exclusion was promulgated, there was
no preamble language that would assist
in interpreting what kinds of actions fall
within the categorical exclusion.
However, in 2008, the preamble for a
language correction to this categorical
exclusion gave as an example of an
action that would fall within the
exclusion the issuance of guidance to
applicants for transferring funds
electronically to the Federal
Government. In addition, an example of
a recent Federal Register notice
invoking this categorical exclusion was
a final rule that established the timing
requirements for the submission of a
Site Assessment Plan or General
Activities Plan for a renewable energy
project on the Outer Continental Shelf
(78 FR 12676; February 26, 2013). These
regulations fell within the categorical
exclusion because they affected the
process inherent to an agency action
rather than the agency action itself, or
clarified, rather than changed, the
substance of the agencies’ analyses or
outcomes of their decisions.
The changes to the petition
regulations are similar to these
examples of actions that are
fundamentally administrative,
technical, and procedural in nature. The
changes to the regulations at 50 CFR
424.14 clarify the procedures for
submitting and evaluating petitions
under Section 4 of the Act. In addition,
the regulation revisions provide
transparency for the practices and
interpretations that the Services have
adopted and applied as a result of case
law or pragmatic considerations. The
Services also make minor wording and
formatting revisions throughout the
regulations to reflect plain-language
standards. The regulation revision as a
whole carries out the requirements of
Executive Order 13563 because, in this
rule, the Services have analyzed existing
rules retrospectively ‘‘to make the
agencies’ regulatory program more
effective or less burdensome in
achieving the regulatory objectives.’’
We also considered whether any
‘‘extraordinary circumstances’’ apply to
this situation, such that the DOI
categorical exclusion would not apply.
See 43 CFR 46.215 (‘‘Categorical
Exclusions: Extraordinary
Circumstances’’). We determined that
no extraordinary circumstances apply.
Although the final regulations would
revise the implementing regulations for

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section 4 of the Act to provide greater
clarity to petitioners on information that
is likely to improve efficiency and
accuracy in processing petitions, the
effects of these proposed changes would
not ‘‘have significant impacts on species
listed, or proposed to be listed, on the
List of Endangered or Threatened
Species or have significant impacts on
designated Critical Habitat for these
species,’’ as nothing in the revised
regulations is expected to determine or
change the outcome of any status review
of a species or any decision on a
petition to revise critical habitat.
Furthermore, the revised regulations do
not ‘‘[e]stablish a precedent for future
action or represent a decision in
principle about future actions with
potentially significant environmental
effects’’ (43 CFR 46.215(e)). None of the
extraordinary circumstances in 43 CFR
46.215(a) through (l) apply to the
revised regulations.
Nor would the final regulations trigger
any of the extraordinary circumstances
of NAO 216–6. This rule does not
involve a geographic area with unique
characteristics, is not the subject of
public controversy based on potential
environmental consequences, will not
result in uncertain environmental
impacts or unique or unknown risks,
does not establish a precedent or
decision in principle about future
proposals, will not have significant
cumulative impacts, and will not have
any adverse effects upon endangered or
threatened species or their habitats
(§ 5.05c).
We completed an Environmental
Action Statement for the Categorical
Exclusion for the revised regulations in
50 CFR 424.14.
Energy Supply, Distribution or Use (E.O.
13211)
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions. This rule is not expected to
affect energy supplies, distribution, or
use. Therefore, this action is not a
significant energy action, and no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 424
Administrative practice and
procedure, Endangered and threatened
species.
Regulation Promulgation
Accordingly, we amend part 424,
subchapter A of chapter IV, title 50 of
the Code of Federal Regulations, as set
forth below:

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PART 424—LISTING ENDANGERED
AND THREATENED SPECIES AND
DESIGNATING CRITICAL HABITAT
1. The authority citation for part 424
continues to read as follows:

■

Authority: 16 U.S.C. 1531 et seq.
■

2. Add § 424.03 to read as follows:

§ 424.03 Has the Office of Management
and Budget approved the collection of
information?

The Office of Management and Budget
reviewed and approved the information
collection requirements contained in
subpart B and assigned OMB Control
No. 1018–0165. We use the information
to evaluate and make decisions on
petitions. 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
requirements to the Information
Collection Clearance Officer, U.S. Fish
and Wildlife Service, at the address
listed at 50 CFR 2.1(b).
■ 3. Revise § 424.14 to read as follows:
§ 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
reclassify a species, or for petitions to
revise critical habitat, petitioners must
provide notice to the State agency
responsible for the management and
conservation of fish, plant, or wildlife
resources in each State where the
species that is the subject of the petition
occurs. This notification must be made
at least 30 days prior to submission of
the petition. This notification
requirement shall not apply to any
petition submitted pertaining to a
species that does not occur within the
United States.
(c) Requirements for petitions. A
petition must clearly identify itself as
such, be dated, and contain the
following information:
(1) The name, signature, address,
telephone number, if any, and the
association, institution, or business
affiliation, if any, of the petitioner;
(2) The scientific name and any
common name of a species of fish or
wildlife or plants that is the subject of
the petition. Only one species may be
the subject of a petition, which may
include, by hierarchical extension based
on taxonomy and the Act, any
subspecies or variety, or (for vertebrates)

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Federal Register / Vol. 81, No. 187 / Tuesday, September 27, 2016 / Rules and Regulations
any potential distinct population
segments of that species;
(3) A clear indication of the
administrative action the petitioner
seeks (e.g., listing of a species or
revision of critical habitat);
(4) A detailed narrative justifying the
recommended administrative action that
contains an analysis of the information
presented;
(5) Literature citations that are
specific enough for the Services to
readily locate the information cited in
the petition, including page numbers or
chapters as applicable;
(6) Electronic or hard copies of
supporting materials, to the extent
permitted by U.S. copyright law, or
appropriate 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
reclassify a species, information to
establish 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,
information on the current and
historical geographic range of the
species, including the States or
countries intersected, in whole or part,
by that range; and
(9) For a petition to list, delist or
reclassify a species, or for petitions to
revise critical habitat, copies of the
notification letters or electronic
communication which petitioners
provided to the State agency or agencies
responsible for the management and
conservation of fish, plant, or wildlife
resources in each State where the
species that is the subject of the petition
currently occurs.
(d) Information to be included in
petitions to add or remove species from
the lists, or change the listed status of
a species. The Service’s determination
as to whether the petition provides
substantial scientific or commercial
information indicating that the
petitioned action may be warranted will
depend in part on the degree to which
the petition includes the following types
of information:
(1) Information on current population
status and trends and estimates of
current population sizes and
distributions, both in captivity and the
wild, if available;
(2) Identification of the factors under
section 4(a)(1) of the Act that may affect
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 combination
identified in section 4(a)(1) of the Act

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may cause the species to be an
endangered species or threatened
species (i.e., the species is currently in
danger of extinction or is likely to
become so within the foreseeable
future), and, if so, how high in
magnitude and how imminent the
threats to the species and its habitat are;
(4) Information on adequacy of
regulatory 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
representation of the relevant facts,
including information that may
contradict claims in the petition.
(e) Information to be included in
petitions to revise critical habitat. The
Services’ determinations as to whether
the petition provides substantial
scientific information indicating that the
petitioned 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
includes that should no longer be
included, and a description of the
benefits of designating or not
designating these specific areas as
critical habitat. Petitioners should
include sufficient supporting
information to substantiate the
requested changes, which may include
GIS data or boundary layers that relate
to the request, if appropriate;
(2) A description of physical or
biological features essential for the
conservation 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
species at time it was listed, information
indicating that the specific areas contain
one or more of the physical or biological
features (including characteristics that
support ephemeral or dynamic habitat
conditions) that are essential to the
conservation of the species and may
require special management
considerations or protection. The
petitioner should also indicate which
specific areas contain which features;
(4) For any areas petitioned for
removal from currently designated
critical habitat within the geographical
area occupied by the species at the time
it was listed, information indicating that
the specific areas do not contain the
physical or biological features
(including characteristics that support
ephemeral or dynamic habitat
conditions) that are essential to the

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66485

conservation of the species, or that these
features do not require special
management considerations or
protection;
(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 indicating why
the petitioned areas are or are not
essential for the conservation of the
species; and
(6) A complete, balanced
representation of the relevant facts,
including information that may
contradict claims in the petition.
(f) Response to petitions. (1) If a
request does not meet the requirements
set forth at paragraph (c) of this section,
the Services will generally reject the
request without making a finding, and
will, within a reasonable timeframe,
notify the sender and provide an
explanation of the rejection. However,
the Services retain discretion to process
a petition where the Services determine
there has been substantial compliance
with the relevant requirements.
(2) If a request does meet the
requirements set forth at paragraph (c)
of this section, the Services will
acknowledge receipt of the petition by
posting information on the respective
Service’s Web site.
(g) Supplemental information. If the
petitioner provides supplemental
information before the initial finding is
made and states that it is part of the
petition, the new information, along
with the previously submitted
information, 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
remove 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 status of a species, the Services
will make a finding as to whether the
petition presents substantial scientific
or commercial information indicating
that the petitioned action may be
warranted. 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 scientific
or commercial information in support of
the petition’s claims such that a
reasonable person conducting an
impartial scientific review would
conclude that the action proposed in the
petition may be warranted. Conclusions
drawn in the petition without the

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support of credible scientific or
commercial information will not be
considered ‘‘substantial information.’’
(ii) In reaching the initial finding on
the petition, the Services will consider
the information referenced at
paragraphs (c), (d), and (g) of this
section. The Services may also consider
information readily available at the time
the determination is made. The Services
are not required to consider any
supporting materials cited by the
petitioner if the cited document is not
provided 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 reviews
or findings the Services have made on
the listing status of the species that is
the subject of the petition. Where the
Services have already conducted 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 reclassify that
species to determine whether a
reasonable person conducting an
impartial scientific review would
conclude that the action proposed 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 present
substantial scientific and commercial
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
indicating that the petitioned action
may be warranted, the Services will
commence a review of the status of the
species 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 findings:
(i) The petitioned action is not
warranted, in which case the Service
shall publish a finding in the Federal
Register.
(ii) The petitioned action is
warranted, in which case the Services

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shall publish in the Federal Register a
proposed regulation to implement the
action pursuant to § 424.16; or
(iii) The petitioned action is
warranted, but:
(A) The immediate proposal and
timely promulgation of a regulation to
implement the petitioned action is
precluded because of other pending
proposals to list, delist, or change the
listed status of species; and
(B) Expeditious progress is being
made to list, delist, or change the listed
status of qualified species, in which
case such finding will be published in
the Federal Register together with a
description and evaluation of the
reasons and data on which the finding
is based. The Secretary will make any
determination of expeditious progress in
relation to the amount of funds available
after complying with nondiscretionary
duties under section 4 of the Act and
court orders and court-approved
settlement agreements to take actions
pursuant to section 4 of the Act.
(3) If a finding is made under
paragraph (h)(2)(iii) of this section with
regard 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
regard to such petition.
(i) Findings on petitions to revise
critical 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 presents substantial scientific
information 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
conclude that the revision proposed in
the petition may be warranted.
Conclusions drawn in the petition
without the support of credible
scientific information will not be
considered ‘‘substantial information.’’
(ii) The Services will consider the
information referenced at paragraphs

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(c), (e), and (g) of this section. The
Services may also consider other
information readily available at the time
the determination is made in reaching
its initial finding on the petition. The
Services are not required to consider
any supporting materials cited by the
petitioner if the cited documents are not
provided in accordance with paragraph
(b)(6) of this section.
(2) If the Services find that the
petition presents substantial
information that the requested revision
may be warranted, the Services will
determine, within 12 months of
receiving the petition, how to proceed
with the requested revision, and will
promptly publish notice 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 conduct 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 Administrative Procedure Act (5
U.S.C. 553) and applicable
Departmental regulations, and take
appropriate action.
(k) Withdrawal of petition. A
petitioner 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 the
Services have already made a 90-day
finding that there is substantial
information indicating that the
requested action may be warranted.
Dated: September 15, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
Dated: September 12, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2016–23003 Filed 9–26–16; 8:45 am]
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