The National Marine Fisheries Service (NMFS) and Fish and Wildlife Service (FWS)are revising regulations related to publishing written descriptions of proposed and final critical habitat boundaries in the Federal Register for codification in the Code of Federal Regulations. In the interest of making the process of designating critical habitat more user-friendly for affected parties, the public as a whole, and the Services, as well as more efficient and cost effective, we are going to maintain the publication of maps of proposed and final critical habitat designations, but are making optional the inclusion of any written description of the boundaries of the designation in the Federal Register for codification in the Code of Federal Regulations.
The boundaries of critical habitat as mapped or otherwise described in the Regulation Promulgation section of a rulemaking that is published in the Federal Register will be the official delineation of the designation. The coordinates and/or plot points from which the maps are generated will be included in the administrative record for the designation, and will be available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation.
We will also continue our practice of providing the public with additional tools and supporting information, such as interactive maps and additional descriptions, on the Internet site of the Service promulgating the designation and at the lead field office responsible for the designation (and we may also include such information in the preamble and/or at www.regulations.gov) to assist the public in evaluating the coverage of the critical habitat designation. We have undertaken this effort as part of the Services' response to Executive Order 13563 (Jan. 18, 2011) directing Federal agencies to review their existing regulations and, inter alia, to modify or streamline them in accordance with what they learned.
DATES: This rule becomes effective May 31, 2012.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Supporting documentation used in the preparation of this rule will be available for public inspection, by appointment,
during normal business hours at: U.S. Fish and Wildlife Service, Division of Conservation and Classification, 4401 N. Fairfax Drive, Suite 420; Arlington, VA 22203, telephone 703/358-2171; facsimile 703/358-1735 and National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-713-1401; facsimile 301-713-0376.
FOR FURTHER INFORMATION CONTACT: Nicole Alt, U.S. Fish and Wildlife Service, Division of Conservation and Classification, 4401 N. Fairfax Drive, Suite 420; Arlington, VA 22203, telephone 703/358-2171;
facsimile 703/358-1735 or Marta Nammack, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-427-8469; facsimile 301-713-0376. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
The existing regulation states that the map provided by the Director does not, unless otherwise indicated, constitute the definition of the boundaries of a critical habitat. In order to provide more clarity regarding the areas being designated, as well as be more efficient and cost-effective, we are changing the wording of the first sentence to state, ``For the critical habitat designations published and effective after May 31, 2012, the map provided by the Secretary of the Interior, as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a critical habitat.'' We are replacing ``the Director'' with ``the Secretary of the Interior'' since the authority to designate critical habitat under the Act lies with the Secretary due to the Secretarial discretion under section 4(b)(2) of the Act to exclude specific areas from final critical habitat. We are limiting application of the new language to critical habitat designations published after the effective date of the final rule. For existing critical habitat designations, we also intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR in order to save the annual reprinting cost, but we must do so in separate rulemakings to ensure that removing the textual descriptions does not change the existing boundaries of those designations.
The second sentence of the existing regulation states, ``Such maps are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the Critical Habitat.'' We are revising this sentence to read ``Each Critical Habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead field office of the Service responsible for such designation.'' We believe this will provide greater clarity regarding the areas being designated, as well as be a more efficient and cost-effective way to provide information to the public concerning areas designated as critical habitat. We acknowledge that what is printed in the Federal Register and subsequently in the CFR will be the legally binding delineation of critical habitat. In addition, the Services will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the official map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. Furthermore, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov).
We are replacing the third existing sentence, which currently reads, ``Critical habitats are described by reference to surveyable landmarks found on standard topographic maps of the area and to the States and county(ies) within which all or part of the Critical Habitat is located.'' The new wording will be ``Each area will be referenced to the State(s), county(ies), or other local government units within which all or part of the Critical Habitat is located. General descriptions of the location and boundaries of each area may be provided to clarify or refine what is included within the boundaries depicted on the map, or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area.'' This change will relieve us of the regulatory and financial burden of publishing the textual descriptions of the boundaries of critical habitat in the regulations, which have shown to be of limited use to the general public.
50 CFR 226.101
This section addresses critical habitat designations made by the Secretary of Commerce. We are replacing the ``Maps and charts identifying designated critical habitat * * *'' phrase in the beginning of the last sentence with ``Additional information regarding designated critical habitat * * *.'' This new language will provide the flexibility needed to provide any kind of useful information to the public concerning areas designated as critical habitat, and not just maps and charts.
50 CFR 424.12(c)
We are removing the references to defining critical habitat by specific limits using reference points and lines as found on standard topographic maps of the area. The revision will read, ``Each Critical Habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead field office of the Service responsible for such designation.'' This revision will provide more clarity regarding the areas being designated, as well as relieve the regulatory and financial burden of both Services being required to print these reference points in the Federal Register and reprint them annually in the CFR. We acknowledge that what is printed in the Federal Register and subsequently in the CFR will be the legally binding delineation of critical habitat. However, should there be ambiguity due to the scale of the map such that regulatory text clarifying the ambiguity is needed to ensure that the public would have adequate notice of the designation, the Services will include clarifying rule text. The designating Service will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov). In the future, we intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR for existing critical habitat designations in separate rulemakings in order to save the annual reprinting cost, without changing those boundaries.
We are adding the following sentence to this regulation: ``Textual information may be included for purposes of clarifying or refining the location and boundaries of each area or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area.''
50 CFR 424.16(b)
The change to this section is in the first sentence where it currently states, ``A notice of a proposed rule to carry out one of the actions described in Sec. 424.10 shall contain the complete text of the proposed rule.'' We are changing the wording ``shall contain the complete text of the proposed rule'' to ``will contain a detailed description of the proposed action.'' Although we will in fact publish the complete proposed critical habitat designation, it could be confusing to require that the notice of a proposed critical habitat designation contain ``the complete text'' of the proposed regulation,'' since as a result of the other changes in this notice, the boundaries of a critical habitat designation may be identified using only a map. Because the regulation will consist of the legally binding detailed description of the designation, which will include the map, we included the language ``will contain a detailed description of the proposed action'' to clarify that the proposed rule must include the maps, and may include any accompanying text, that establish the legal boundary of the designation. We also added that the proposed rule ``may also include rule text that clarifies or modifies the map'' to make clear that the designating Service has the option of including textual descriptions that clarify or modify the map.
50 CFR 424.16(c)(1)(ii)
The change to this section is that we have removed the parenthetical phrase ``(including the complete text of the regulation).'' As stated above, although we would still give notice of the complete proposed critical habitat designation, it could be confusing to require that the notice include the ``complete text'' of the designation, since as a result of the other changes in this notice, we are interpreting the ``complete text'' of the designation to be the map, along with any optional rule text that may clarify the map. As discussed above, the Services will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov).
50 CFR 424.18(a)
This section addresses the final rule requirements. In the second sentence of the existing regulation, we are replacing ``the complete text of the rule'' with ``a detailed description of the action being finalized.'' As with the sections above that deal with the requirements for a proposed rule, changing the wording here, along with the other changes proposed in this notice, will clarify that the final rule must contain the detailed description of the designation as reflected in the map and any optional additional rule text that clarifies or refines the map. As discussed above, the Services will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the esignation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov). Because the regulation will consist of the legally binding detailed description of the designation, which will include the map, we included the language ``will contain a detailed description of the proposed action'' to clarify that the final rule must include the maps, and may include any accompanying text, that establish the legal boundary of the designation.
In the fourth sentence of the existing regulation, we are removing the references to the final rule containing a description of the boundaries of the critical habitat being designated. We are modifying this section and expanding the discussion on the requirement for a map. The new section will read, ``For a rule designating or revising critical habitat, the detailed description of the action will include a map of the critical habitat area, and may also include rule text that clarifies or modifies the map. The map itself, as modified by any rule text, constitutes the official boundary of the designation. The Service responsible for the designation will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov).'' This change will provide more clarity regarding the areas being designated, and will assist the public in evaluating the coverage of the critical habitat designation, as well as allow us to reduce our printing costs in both the Federal Register and for the annual reproductions of the CFR.