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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, amend the format of the Lists of Endangered and Threatened Wildlife and Plants (Lists) to reflect current practices and standards that will make the regulations and Lists easier to understand. The Lists, in the new format, are included in their entirety and have been updated to correct identified errors.

DATES:

This rule is effective August 4, 2016.

FOR FURTHER INFORMATION CONTACT:

Don Morgan, Ecological Services Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041; telephone 703-358-2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

The Lists of Endangered and Threatened Wildlife and Plants (Lists), found in title 50 of the Code of Federal Regulations (CFR) at 50 CFR 17.11 for wildlife and 50 CFR 17.12 for plants, contain the names of endangered species and threatened species officially listed pursuant to the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq., (ESA)). The most recent compilation of Lists appeared in the 2015 edition of title 50 CFR, which was issued in early 2016. That compilation included regulatory amendments effective as of October 1, 2015.

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

The Lists represent the official Federal Government record of which species are listed and where they are considered listed under the ESA. The Lists also contain information regarding other designations and regulations issued under specific provisions of the ESA, such as section 4(d) regarding threatened species, section 10(j) regarding experimental populations, and critical habitat.

Over time, we have noted numerous unintentional errors, ambiguous entries, and confusing format and column titles in the Lists. After detailed research on the origin, history, and purpose of the Lists, we determined that the format, references, and standards needed to be updated to better reflect current practices and standards. Consequently, we published a proposed rule in the Federal Register on August 5, 2008, to address these observed problems and make corrections to enhance the clarity of the Lists (73 FR 45383). In the rule portion of this document, we set forth the corrected Lists in entirety in the new format.

Summary of Changes From Proposed Rule

The following adjustments have been made which are different from the proposed document. We have decreased the total columns to 5 instead of 8 for both Lists by removing the “Historical range” columns, and combining the “When listed”, “Critical habitat” and “Special rules” columns.

History of the Lists of Endangered and Threatened Species

The first endangered species list was published March 11, 1967 (32 FR 4001), pursuant to the Endangered Species Preservation Act of 1966, and included only two columns, Common Name and Scientific Name. In 1970, after passage of the Endangered Species Conservation Act in 1969, that list was added to title 50 CFR in the newly created part 17. In 1971, that list was divided into two separate lists with appendix A being the “U.S. List of Endangered Foreign Fish and Wildlife” with three columns (Common Name, Scientific Name, and Where Found) and appendix D being the “United States' List of Endangered Native Fish and Wildlife” with only the original two columns (Common Name and Scientific Name).

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

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

In 1980, the Lists underwent the last major formatting change prior to this current rulemaking action. A proposed rule was published on August 15, 1979 (44 FR 47862), proposing to include the following columns for § 17.11 (Wildlife): Common name, Scientific name, Historic range, Population where endangered or threatened, Status, When listed, Critical habitat, and Special rules; and the following columns for § 17.12 (Plants): Scientific name, Common name, Historic range, Status, When listed, Critical habitat, and Special rules. A final rule that published on February 27, 1980 (45 FR 13010), set forth the following columns for § 17.11: Common name, Scientific name, Historic range, Vertebrate population where endangered or threatened, Status, When listed, Critical habitat, and Special rules. The final rule adopted the columns for § 17.12 as they had appeared in the proposed rule. See figures 3 and 4.

Neither the August 1979 proposed rule nor the February 1980 final rule included the entire contents of the Lists. The Lists in their entirety were published in the new format with corrections to technical errors on May 20, 1980 (45 FR 33767). On September 30, 1994 (59 FR 49848), the family grouping of the plants, which had resided in the scientific name column, was moved to a new column named “Family.” See figure 5.

Rule Purpose

Through this rulemaking, we are changing the format of the Lists to include current practices and standards, thereby ensuring that the regulations and Lists are easy for the public to understand. We are also standardizing entries and correcting numerous errors and ambiguous entries. Technical corrections in this rulemaking include updating or correcting footnotes, references to certain other applicable portions of title 50 CFR, synonyms, and the spelling of species' names. We also provide more current common names. Textual descriptions of the List format, such as the meaning of the column titles, are included within these changes to the regulations at §§ 17.11 and 17.12. None of the changes are regulatory in nature with respect to the entities on the List; these changes are for the purpose of clarity. These revisions do not alter species' protections or status in any way. Such actions would require separate rulemaking actions following the procedures of 50 CFR part 424.

Renaming and Reorganizing the Lists' Columns

With this rule, we are renaming, reorganizing, and removing columns in the Lists to clarify the types of information being presented. The following paragraphs describe the new columns.

Changing “When Listed” to “Listing Citations and Applicable Rules”

For both Lists, we are replacing the column heading “When listed” with “Listing citations and applicable rules.” This column currently contains footnote numbers referencing a table of citations for final listing rules. When we proposed the changes to the format of the Lists in 1979 that instituted this footnote system, the Lists contained only 44 footnotes. The Lists now have more than 800 footnotes, and, consequently, the footnote system has become hard for us to manage and for the public to use. To correct this situation, we are replacing the footnote numbers that currently populate this column with the actual Federal Register citation (volume and document starting page number) and publication date of the listing rule and other applicable rulemaking actions. We are also correcting any errors contained in the previous footnotes or referenced citations. For example, some existing footnotes included the wrong date, wrong page numbers, or were missing a citation reference. Please note that all the referenced citations are available through the Services' Web sites for each listed species ( http://www.fws.gov/ endangered/ and http://www.nmfs.noaa.gov/pr/species/esa/listed.htm ).

Moving “Critical Habitat” and “Special Rules” Entries Into New “Listing Citations and Applicable Rules” Column

These columns provide the citations for pertinent regulations for the listed species and were created solely for the convenience of the public. To consolidate these purely navigational columns, we are combining the “Special rules,” “Critical habitat,” and “When listed” columns into the renamed “Listing citations and applicable rules” column. Superscripts utilized in this column are identified in the revised regulatory text at §§ 17.11(f)(1) and 17.12(f)(1). For additional information concerning these entries and downloadable maps of proposed and designated critical habitat, please visit the Services' Web sites ( http://www.fws.gov/endangered/ and http://www.nmfs.noaa.gov/pr/species/esa/listed.htm ).

Changing “Vertebrate Population Where Endangered or Threatened” and “Family” to “Where Listed”

We originally published the entries for invertebrate species indicating “not applicable” (shown as “NA”) in the column “Vertebrate population where endangered or threatened” because that column applied only to distinct population segments of vertebrate species. In the October 1, 2000, edition of the CFR, in the Lists found at § 17.11(h), all of the entries for invertebrate species within the column “Vertebrate population where endangered or threatened” were erroneously changed to “Entire.” While it is generally true that the invertebrate species are listed wherever found thus, throughout their entire range, except where listed as experimental populations, it is more accurate to state that this column is not applicable since it pertains to vertebrate populations. The error was purely editorial; it in no way changed any of the applicable provisions of law. As indicated in the prior regulations at § 17.11(e), all individuals of the invertebrate species are protected wherever found, regardless of whether “NA” or “Entire” appeared in the column. However, amendments to the Act in 1982 included the addition of section 10(j) which allows for the designation of reintroduced populations of listed species as “experimental populations.” Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate as an experimental population a population of endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range. The format of the Lists published in 1980, prior to the 1982 amendments, did not envision this change and therefore did not provide specifically for indicating experimental population designations. When the Service published regulations regarding experimental population at 50 CFR 17.80 (49 FR 33885, August 27, 1984), we stated that experimental population designations would be indicated by a separate line in the Lists at §§ 17.11 and 17.12. Thus, the location information for experimental population designations of listed species began to be placed in the column originally intended to indicate species listed as distinct population segments of vertebrate species. Additionally, as the Service began to expand our use of section 10(j) in recovery of listed species, we also included location information for experimental population designations of invertebrate species, causing an inconsistency between the column's title and its application.

To address these issues, for the wildlife list (§ 17.11(h)) only, we are replacing the column heading “Vertebrate population where endangered or threatened” with “Where listed,” to more broadly accommodate the information regarding the geographic specificity of both distinct population segments of vertebrate species and experimental population designations. Thus, the new name “Where listed” better reflects the data within the column. We are also changing all the current “NA” entries to “Wherever found” to reflect the change in the column title. All current entries that have the word “Entire” will be changed to “Wherever found” to standardize all entries to the same format. And, lastly, we will no longer use the “ditto” system (shown as “do” in the current tables) to indicate duplicative information.

For the plants list (§ 17.12(h)), we are replacing the “Family” column with a “Where listed” column to standardize both Lists to identical columns and structure. We are also populating each entry for that column with “Wherever found” because the ESA protection for all of the plants currently on the list applies to all individuals of a plant species wherever found. Future additions to the list may have a more limited entry under the “Where listed” column if experimental populations of plant species are designated. Including the “Where listed” column in the List of plants facilitates our ability to provide more specific information in the future, if applicable. While we are no longer including a plant species' taxonomic family in order to standardize the format between the Lists, information regarding a species taxonomy is readily available through links provided on our species profile pages. A link to the Integrated Taxonomic Information System (ITIS), which displays the taxonomic hierarchy of a species, including its family name, is provided on each species' profile page accessible through the Services' Web sites ( http://www.fws.gov/endangered/ and http://www.nmfs.noaa.gov/pr/species/esa/listed.htm ) or information is available directly through the ITIS. (These amendments to the Lists are editorial in nature and involve no substantive changes to the List of Endangered and Threatened Wildlife found at 50 CFR 17.11(h) or the List of Endangered and Threatened Plants found at 50 CFR 17.12(h), nor to any applicable regulations. While we have changed the name of the column to better reflect its current content, we do not intend to change the use of this column. Unless the column is used to define a distinct population segment of a vertebrate species or an experimental population designation of any taxa, the entry in this column will be “Wherever found,” indicating that the protections of the Act will apply to all individuals of the species wherever found.

Adding ESU and DPS Subtitles to “Common Name”

The ESA defines “species” to include any “distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” (16 U.S.C. 1532(16)). NMFS's Evolutionarily Significant Unit (ESU) policy (56 FR 58612, November 20, 1991) defines how it will apply this definition of “species” in evaluating Pacific salmon stocks for listing under the ESA. The Services' interagency Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS) (61 FR 4721, February 7, 1996) clarifies their interpretation of the phrase “distinct population segment of any species of vertebrate fish or wildlife” for the purpose of listing, delisting, and reclassifying species under the ESA. Currently, the “Vertebrate population where endangered or threatened” column distinguishes the different ESU and DPS entries for the same species by describing the geographic area where it is found, but without providing a name for the population or indicating it is an ESU or DPS listing. We are adding the ESU or DPS subtitle to the Common Name column in brackets to clarify when it is an ESU or DPS listing.

Removing Historic Range Columns

The “Historic range” column is not required by the ESA (see section 4(c)(1)) and is part of the “other data in the list” currently referenced in 50 CFR 17.11(d) and 17.12(d) as “nonregulatory in nature” and “provided for the information of the reader.” However, since its creation in 1980, it has been a source of contention and confusion, leading to questions of how it is defined; its regulatory use; what time period it represents; and should it instead be changed to “Historical Range”. These and similar concerns were raised in the 1980 reformat (see 45 FR 13011, February 27, 1980), for which the Services took the following position regarding suggestions for specific criteria to define this column: “In light of this broad diversity and the guidance of both the Act and the legislative history, the Services find it inadvisable to establish new criteria as suggested. The Services will continue to consider this issue, however, and will propose criteria at a later date, if warranted.” Given prior concerns regarding this column in the 1980 reformat and continued long-standing confusion regarding its use and meaning, we revisited this issue in making our final determination on this action. The Services have consistently indicated that information provided regarding historic range is purely informational and does not alter or imply any limitation on the application of the prohibitions in the Act or implementing rules. Additionally, historic range information often only represented the Service's best approximation of historic range based on the scientific literature, given that past range was not always well or thoroughly documented for many species. We also indicated that only the columns entitled “Common Name,” “Scientific Name,” and “Vertebrate Population Where Endangered or Threatened” define the species of wildlife for purposes of implementing the Act. Despite this, the column “Historic range” column continued to be a point of confusion with regard to where protections of the Act apply to a species. Based on concerns raised by commenters on the 2008 proposed rule (See “Summary of Comments Received”) and to help alleviate confusion to the public, the Services have decided to remove the “Historic range” column from both tables. However, to provide further clarification regarding where protections of the Act apply, we state in our revised §§ 17.11(d) and 17.12(d) that unless the new “where listed” column indicates a distinct population segment of a vertebrate species, or an experimental population, prohibitions of the Act apply to all individuals of the species, wherever found. Please note that the general information regarding the historic range of a species, as previously provided in this column, is discussed in listing determinations and is available in the listing rule documents provided in the “Listing citations and applicable rules” column. See figures 6 and 7 for the new format of the tables.

Updating Standards for Scientific Nomenclature References

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

ITIS is an authoritative taxonomic database ( http://www.itis.gov ) maintained by a partnership of U.S., Canadian, and Mexican agencies; other organizations; and taxonomic specialists. The U.S. partners include the National Oceanic and Atmospheric Administration of the Department of Commerce; the U.S. Fish and Wildlife Service, U.S. Geological Survey, and National Park Service of the Department of the Interior; the Environmental Protection Agency; the Agricultural Research Service and Natural Resources Conservation Service of the Department of Agriculture; the Smithsonian Institution; and NatureServe (a nonprofit organization representing the Natural Heritage programs in the States).

CITES is an international convention among 182 signatory countries (Parties) to ensure that international trade in specimens of wild animals and plants does not threaten their survival (50 CFR part 23). The CITES Parties have adopted standard nomenclatural and taxonomic references for species included in the CITES Appendices, which are listed in the most recent CITES resolution on standard nomenclature. ( http://www.cites.org/eng/res/index.shtml )

Removing Unnecessary Examples, Updating Regulations, and Removing Entries Pursuant to Court Order

Upon review of the regulations connected to the Lists, we noted that § 17.50 had three examples that were pre-1980 table format. Rather than update them to the new format, we determined that these examples are not necessary and are, therefore, removing them. We have also determined that the introductory paragraph of § 17.52 should read as set forth in the rule portion of this document to provide more specific cross-references within part 17. The revised language specifies the sections in part 17 that may include language that differs from the provisions in § 17.52. These changes to the regulations are nonsubstantive.

Additionally, in 50 CFR 17.11(h), the List of Endangered and Threatened Wildlife, we are removing the Beringia DPS of the bearded seal to comply with the U.S. District Court for the District of Alaska's decision vacating the December 28, 2012, final rule by NMFS that listed the Beringia DPS of the Erignathus barbatus nauticus subspecies of the bearded seal as a threatened species (77 FR 76740) (Alaska Oil & Gas Ass'n v. Pritzker, 4:13-cv-00018-RRB, 2014 WL 3726121, 2014 U.S. Dist. Lexis 101446 (D. Alaska July 25, 2014), appeal docketed, No. 14-35806 (9th Cir. 2014)). NMFS has appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit, but as a result of the court decision the species is not currently listed. Depending on the outcome of that litigation, we may issue a technical rule to reinstate the listing.

We are removing the Arctic subspecies of the ringed seal to comply with the U.S. District Court for the District of Alaska's decision vacating the December 28, 2012, final rule by NMFS that listed the Arctic subspecies of the ringed seal, Phoca hispida hispida, as a threatened species (77 FR 76706) (Alaska Oil & Gas Ass'n v. NMFS, 4:14-cv-00029-RRB, 2016 WL 1125744, 2016 U.S. Dist. Lexis 34848 (D. Alaska Mar. 17, 2016), appeal docketed, No. 16-35380 (9th Cir. 2016)). NMFS has appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit, but as a result of the court decision the species is not currently listed. Depending on the outcome of that litigation, we may issue a technical rule to reinstate the listing.

We are removing slickspot peppergrass from the List of Endangered and Threatened Plants to comply with the decision of the U.S. District Court for the District of Idaho (Otter v. Salazar, Case No. 1:11-cv-358-CWD, 2012 U.S. Dist. Lexis 111743 (D. Idaho Aug. 8, 2012)) vacating the previous listing rule (74 FR 52014; October 8, 2009). The Service has already proposed to reinstate the listing (79 FR 8416; February 12, 2014) and will make a final determination shortly. This is a clerical change to comply with a court order, and not a final listing determination on the outstanding new proposal to list.

Summary of Comments Received

In our proposed rule (73 FR 45383, August 5, 2008), we requested that all interested parties submit information, data, and comments regarding the format of the Lists. The comment period ended September 4, 2008. During the 30-day comment period, we received a total of 14 comments, of which we consider 8 to be substantive. The following paragraphs discuss the comments received.

Solicitor's Opinion and “Where Listed”

Several commenters were concerned that changing the “Vertebrate population where endangered or threatened” and “Family” columns to “Where listed” would allow for applying the protections of the Act to only limited geographic areas of a species' range. Commenters expressed concern that the proposed rule was an attempt to codify the March 16, 2007, opinion of the Solicitor of the Department of the Interior regarding “The Meaning of `In Danger of Extinction Throughout All or a Significant Portion of the Range',” which would have allowed in some cases applying protections to less than all members of the species (i.e., applying protections only to a portion of a species' range). As explained above, the intent of altering the column heading was to better align the column's title and definition with the current use of the column to indicate both distinct population segments of vertebrate species and experimental population designations for all taxa (invertebrates and plants as well as vertebrate species); we did not intend to alter its use. While this rulemaking never attempted to “codify” the 2007 opinion of the Solicitor, we believe the underlying concerns of the commenters have nevertheless been resolved by subsequent developments. Two district court decisions have addressed whether the ESA's language allows the Services to list or protect less than all members of a defined species: Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010), concerning FWS's delisting of the Northern Rocky Mountain gray wolf (74 FR 15123, Apr. 12, 2009); and WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30, 2010), concerning the Service's 2008 finding on a petition to list the Gunnison's prairie dog (73 FR 6660, Feb. 5, 2008). The courts concluded that reading the ESA's language to allow protecting only a portion of a species' range is inconsistent with the definition of “species,” which forecloses listing any population that does not qualify as a taxonomic species, subspecies, or DPS. These two decisions held that the “significant portion of its range” language may not be used as a basis for listing less than all members of a species. Rather, the ESA's language requires rangewide listing of species whenever they are endangered or threatened in a significant portion of the range, even if they are healthy in other areas.

On May 4, 2011, the Solicitor of the U.S. Department of the Interior (“Interior”) withdrew the 2007 opinion. On July 1, 2014, the Service published a new policy to clarify the interpretation of the phrase “significant portion of its range” in the ESA as it applies to decisions to list species as threatened or endangered (79 FR 37578). This policy stated that if a species is determined to be neither endangered nor threatened throughout all its range and a subsequent analysis reveals it is endangered or threatened within a significant portion of that range, then the entire species will be listed as an endangered species or threatened species and the Act's protections apply to all individuals of the species wherever found. To address this concern and to further clarify how the “Where listed” column will be used and protections applied, we have added language to §§ 17.11(d) and 17.12(d) to indicate that except when providing a geographic description of a DPS or ESU, or an experimental population designation, “Wherever found” will be used to indicate the Act's protections apply to all individuals of the species, wherever found.

Historic Range Column

One commenter suggested that the “Historic range” column is not “nonregulatory” nor “for informational purposes only” because it reinforced that a listed species may only receive protections in a portion of its range if it were found to be threatened or endangered in a significant portion of its current range.

Response: We disagree. The “Historic range” column is not required by the ESA (see section 4(c)(1)) and is part of the “other data in the list” currently referenced in 50 CFR 17.11(d) and 17.12(d) as “nonregulatory in nature” and “provided for the information of the reader.” Similar concerns were addressed in the 1980 reformat (see 45 FR 13011, February 27, 1980.). Please note that the general information regarding the historic range of a species, as previously provided in this column, is discussed in listing determinations and is available in the listing rule documents provided in the “Listing citations and applicable rules” column.

Where Listed Column

Several commenters suggested that, by changing “Vertebrate population where endangered or threatened” to “Where Listed,” the Service was limiting the protection of the listed species.

Response: We disagree. None of the changes encompassed in this rule are substantive in nature or in any way alter protections for listed species. As noted earlier in this rule, such actions would require separate rulemaking actions following the procedures of 50 CFR part 424. As stated previously, by changing “Vertebrate population where endangered or threatened” to “Where Listed,” the Service is allowing for the inclusion of invertebrate species and invertebrate experimental population entries that have been in the table since 2001. Also, by replacing “endangered or threatened” with “listed,” the Service is allowing for all the statuses recognized by the “Status” column. See §§ 17.11(d) and 17.12(d).

Several commenters also suggested that defining the “Where listed” column as “the geographic area where the species is listed for purposes of the Act” also narrowed the protection of the listed species.

Response: While we understand the concern, this was not our intent. This column is intended only to provide a geographic description for distinct population segments of vertebrate, and invertebrate, vertebrate and plant experimental population designations. We added this column to § 17.12 to allow for indicating plant experimental population designations. Again, as we explain above, except for DPSs and experimental population designations, entries in this column will be “Wherever found.” None of the changes encompassed in this rule are substantive in nature or in any way alter protections for listed species. Such actions would require separate rulemaking actions following the procedures of 50 CFR part 424.

ITIS and CITES

One commenter suggested that relying on the Integrated Taxonomic Information System (ITIS) could pose problems by being more limiting than, and not as comprehensive as, the previous standards, especially for foreign species.

Response: We addressed the adoption of the previous standards in our rule of February 27, 1980 (45 FR 13010, 13012). At that time, we stated that: “In deciding which alternative taxonomic interpretations to accept, the Director will rely on the professional judgment available both within the Service and the scientific community and from the most recent taxonomic studies available pertaining to the subject species. However, no criteria other than these very general ones can be established for acceptance of taxonomic treatments. As a matter of practice, the Services review current taxonomic literature in considering the appropriateness of present and proposed listings. Although professional societies maintain lists of accepted taxa for some taxonomic groups, this is not true of all groups. The Services will rely on the generally accepted lists of taxa when they are available.” This is still the Services' current standard, as indicated in our regulations. See 50 CFR 424.11(a), which states that the Secretary must rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community in determining whether a particular taxon or population is a species for the purposes of the Act. To the cases where ITIS may not be sufficiently comprehensive, we may consult other sources or experts regarding appropriate taxonomic interpretations.

The Services have determined that ITIS is a reviewer of current taxonomic literature and maintains generally accepted lists of taxa that are determined to be both valid and verified. As such, to the extent practicable, the Services, in combination with the professional judgment available both within the Services and the scientific community (§ 424.11(a)), will utilize ITIS and, for international species not covered by ITIS, the taxonomic nomenclature adopted for use under CITES. In cases where taxonomy is in dispute or there is a newly described taxa that might not be updated in ITIS, we will use our own best professional judgment and the expertise of the scientific community.

Need for Immediate Effective Date

We find good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective upon the date set forth in DATES due to the continual changes being made to the Lists via new rulemaking actions. To ensure that we provide the most accurate and up-to-date information to the public, we must set forth the Lists in their entirety as soon as possible. The public would not be served by a 30-day delay in the effective date, particularly because this rule does not affect any legal rights.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 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 final rule in a manner consistent with these requirements.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act (SBREFA)

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

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

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

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

Unfunded Mandates Reform Act

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

Takings (E.O. 12630)

In accordance with E.O. 12630, this rule will not have significant takings implications. We are only reorganizing and clarifying existing regulations and providing new standard references for species' nomenclature. This action will, therefore, not interfere with constitutionally protected private property rights. A takings implication assessment is not required.

Federalism (E.O. 13132)

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

Civil Justice Reform (E.O. 12988)

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

Paperwork Reduction Act of 1995 (PRA)

This rule does not contain any information collection requirements for which Office of Management and Budget approval is required under the PRA (44 U.S.C. 3501 et seq.). 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.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act (NEPA) and the Department of the Interior Manual. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. We have determined this rule is categorically excluded under the Department of the Interior's NEPA regulations in 43 CFR 46.210(i). This categorical exclusion addresses policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature.

Government-to-Government Relationship With Tribes

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

Energy Supply, Distribution, or Use

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions that significantly affect energy supply, distribution, and use. This rule revises the formats of the Lists of Endangered and Threatened Wildlife and Plants and will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

Author

Michael Franz, Ecological Services, Headquarters, compiled this document.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17—[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

2. Revise § 17.11 to read as follows: