        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Parts 17 and 424
        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 226 and 424
        [Docket No. FWS-R9-ES-2010-0073; Docket No. 110131071-1153-01; MO-92210-0-0009-B4]
        RIN 1018-AX44; RIN 0648-BA77
        Endangered and Threatened Wildlife and Plants; Revised Implementing Regulations for Requirements To Publish Textual Descriptions of Boundaries of Critical Habitat

          AGENCY:
          United States Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:

          We (FWS and NMFS; also collectively referred to as the Services) propose to revise regulations related to publishing textual 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 proposing to maintain the publication of maps of proposed and final critical habitat designations, but make optional the inclusion of any textual 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, and we will continue to provide the public with additional tools, such as interactive maps and additional descriptions, on the Services' Internet sites, Regulations.gov, and at local field offices that will represent the Service's interpretation of which areas are covered by the designation. We are undertaking this effort as part of the agencies' response to Executive Order 13563 (Jan. 18, 2011) directing agencies to review their existing regulations and, inter alia, to modify or streamline them in accordance with what has been learned.

          DATES:

          We will accept comments from all interested parties until July 18, 2011. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES section below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Standard Time on this date.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal:  http://www.regulations.gov. In the box that reads “Enter Keyword or ID,” enter the Docket number for this proposed rule, which is FWS-R9-ES-2010-0073. Check the box that reads “Open for Comment/Submission,” and then click the Search button. You should then see an icon that reads “Submit a Comment.” Please ensure that you have found the correct rulemaking before submitting your comment.
          • U.S. mail or hand delivery: Public Comments Processing, Attn: [Docket No. FWS-R9-ES-2010-0073]; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.
          We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Request for Information section below for more information).

          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 301-713-1401; 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.

        SUPPLEMENTARY INFORMATION:
        Request for Information
        We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions from governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties. We seek information on the following:
        1. What is the best way for us to share information about critical habitat designation boundaries with the public?
        2. Could we improve the usefulness of the maps in the Federal Register and Code of Federal Regulations (CFR)? If so how?

        3. Does publication of the textual descriptions of boundaries of critical habitat in the Federal Register and CFR provide any practical value?
        4. What is the usefulness of the critical-habitat-boundary descriptions in latitude-longitude, Public Land Survey descriptions, or Universal Transverse Mercator (UTM) coordinates?
        5. Besides the Internet, what other methods should we use to convey information regarding critical habitat boundaries?
        6. Will the changes proposed make our critical habitat designations easier to understand? Are there other changes that are needed?

        You may submit your information concerning this proposal by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov or by appointment during normal business hours at the U.S. Fish and Wildlife Service, Endangered Species Program, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171 or National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910; telephone 301-713-1401 (see FOR FURTHER INFORMATION CONTACT).
        Background

        Before a plant or animal species can receive the protection provided by the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), it must first be added to the Federal lists of threatened and endangered wildlife and plants. The List of Endangered and Threatened Wildlife (found in title 50 of the Code of Federal Regulations (CFR) in § 17.11) and the List of Endangered and Threatened Plants (found in 50 CFR 17.12) contain the names of all organisms that have been determined by the FWS and NMFS (jointly referred to as the Services) to qualify as “endangered species” or “threatened species.” When a species is listed as endangered or threatened under the Act, the Services designate specific areas as “critical habitat.”

        Under section 4(b)(5)(A) of the Act, as amended (16 U.S.C. 1531 et seq.), and the implementing regulations contained within 50 CFR sections 17.94(b), 226.101, 424.12(c), 424. 16(b) and (c)(1)(ii), and 424.18(a), the Services are required, when designating or revising critical habitat for species listed under the Act, to publish the complete text of the regulation, maps, and descriptions of such habitat in the Regulation Promulgation section of a rulemaking published in the Federal Register. We have found over time that textual descriptions of critical habitat boundaries are often difficult to interpret and understand, and do not provide clarity regarding the areas being designated. Publishing these textual descriptions is also inefficient and costly. Below we discuss our current requirements and their limitations, and proposed regulation changes to address these issues.
        NMFS' current practice is to publish maps in the Federal Register along with a textual description of the boundaries of the areas being designated as critical habitat in both their proposed and final rules. FWS publishes only the maps in the proposed critical habitat rule and then publishes the maps along with a textual description of the boundaries in the final critical habitat rule. We previously described the boundaries following a variety of methods including Public Land Survey System designations (which specify township, range, and section; sometimes referred to as the “rectangular survey system”) and metes-and-bounds (a system of describing a parcel of land using the physical features of local geography, along with directions and distances, to define the boundaries). However, as GIS and specific geographic-based data have become more available, we have been using predominantly Universal Transverse Mercator (UTM) coordinate system (a grid-based system employing a series of 60 zones to specify locations on the surface of the Earth) and latitude-longitude. We adopted these practices because our current regulations at 50 CFR 424.12(c) state “Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area.” Unfortunately, these descriptions are often difficult to interpret and understand, and do not provide clarity regarding which areas are being designated as critical habitat. Therefore, in addition to the maps and textual descriptions published in the Federal Register, over the last several years we have provided the public with interactive maps and additional descriptions, on the Services' Internet sites, Regulations.gov, and at local field offices. References to these Internet sites are cited throughout the proposed (NMFS only) and final (NMFS and FWS) rules and in our outreach materials for the specific action. In addition, we have provided maps and GIS coverages (data layers) to affected Federal agencies, States, counties, jurisdictions, and interested parties for use in their computer databases and to make available to their constituencies. The public's reliance on these latter materials in lieu of the textual descriptions published in the Federal Register and codified in the Code of Federal Regulations reinforces our view that the textual descriptions are of limited utility in informing the public as to which areas are designated critical habitat.

        Given that the textual descriptions are of limited utility, we are proposing to revise the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in the Federal Register and reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. 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. The maps and brief textual descriptions that we plan to publish in the Federal Register after we finalize this proposed rule will be sufficient to inform the public as to where a particular critical habitat designation is located, and thus sufficient to provide notice to the public and give them an opportunity to comment. We will provide further information online on our web sites, but we do not think it is necessary for the public to have UTM or latitude-longitude coordinates in order to know where critical habitat is located. We believe these changes will be for the public good and make the process more user-friendly, without compromising the public involvement or the overall process.

        Eliminating the need to publish detailed textual descriptions in the Federal Register and annually in the CFR will also result in significant financial savings, thereby saving Federal resources. In FWS's final designations, UTM coordinate pairs or other textual descriptions of the boundaries of areas often account for more than half of the document, resulting in significant Federal Register publication costs. For example, FWS spent approximately $764,523 in fiscal year 2008, $539,639 in fiscal year 2009, and $662,952 in fiscal year 2010 to publish critical habitat designations in the Federal Register, for a total of approximately $1,967,114 for the three fiscal years combined. If we estimate that 50 percent of those costs are spent on the publication of the textual descriptions of the boundaries, then publication of those descriptions will cost $983,557 for the three fiscal years, or approximately $327,852 per fiscal year.

        In addition, the regulation portion of the rule, including the maps and textual descriptions of the boundaries, is reprinted annually in the CFR, resulting in a further expenditure of taxpayer resources. FWS has spent approximately $80,000 in fiscal year 2008, $92,400 in fiscal year 2009, and $83,160 in fiscal year 2010 to reprint critical habitat designations in the CFR. Based on a review of the current volume (i.e., number of pages) of critical habitat designations represented in the CFR, we estimate that the textual descriptions account for approximately 75 percent of the volume and therefore 75 percent of the printing costs. Using the estimated 75 percent as the cost of reprinting the textual descriptions of the boundaries, publication of those descriptions will cost $191,670 for the three fiscal years, or approximately $63,890 per fiscal year. Adding this to the Federal Register costs discussed above, we estimate that the annual cost for publishing textual descriptions of boundaries in the Federal Register and then reprinting them in the CFR will be nearly $391,742 for FWS alone. Thus, eliminating the need to publish latitude-longitude coordinates, UTM coordinate pairs or other detailed textual descriptions in the Federal Register and CFR would result in a significant cost savings to the Services and the public as a whole.

        Finally, relying on maps and brief textual descriptions to identify areas designated as critical habitat is consistent with the ESA. Section 4(a)(3)(A) of the Act only requires that critical habitat be designated “by regulation.” Moreover, section 4(b)(5)(A) of the Act indicates that the Secretary shall “not less than 90 days before the effective date of the regulation—(i) publish a general notice and the complete text of the proposed regulation in the Federal Register, and (ii) give actual notice of the proposed regulation (including the complete text of the regulation).” In the context of critical habitat designation, we interpret the mandate to publish the “complete text” of the proposed regulation as requiring that the regulation provide a sufficiently detailed description of the area included within the proposed designation, in the form of maps and any accompanying text, so as to provide all interested persons with a meaningful opportunity to comment. Due to the technical limitations on what can be published in the Federal Register (i.e., map size and detail), we anticipate that information we make available to the public through our outreach efforts, Internet sites, and at local Services offices will also assist the Services in addressing day-to-day questions about the designation. To the extent that questions arise from the public as to the precise coverage of a proposed or final designation (e.g., due to the scale at which the published maps are drawn), additional materials will be available on the Web site or at Service offices to provide the needed clarity.
        In this regard, we note that the Services never maintained that requiring detailed textual descriptions was legally necessary. Instead, the first critical habitat regulations required only that critical habitat designations be “accompanied by maps and/or geographical descriptions.” 43 FR 870, 876 (Jan. 4, 1978). Although the Services subsequently added the requirement that critical habitat designations include textual descriptions describing the specific boundary limits of the critical habitat, there is nothing in the preamble to that rule indicating that the Services did so because the ESA required it. Rather, it was in response to several commenters, who had opined that the proposed rule was not sufficiently clear in setting out the method by which critical habitat boundaries would be described. 45 FR 13009, 13015 (Feb. 27, 1980). With this change, the regulations would continue to be explicit as to the method by which critical habitat boundaries would be described; it would just do so by means that did not require detailed textual descriptions.
        Regulation Changes
        The following table shows the current and proposed CFR text. After Table 1, we provide explanations of why we are proposing to revise the text as indicated.

          Table 1—Current and Proposed Regulatory Text Setting Forth the Designation of Critical Habitat for Species Listed Under the Endangered Species Act
          [16 U.S.C. 1531 et seq.]

            Title 50 CFR section and paragraph
            Current CFR text
            Proposed CFR text

            17.94(b)
            (b) The map provided by the Director does not, unless otherwise indicated, constitute the definition of the boundaries of a Critical Habitat. Such maps are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the Critical Habitat. 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. Unless otherwise indicated within the Critical Habitat description, the State and county(ies) names are provided for informational purposes only

            (b)(1) For Critical Habitat designations published and effective after [EFFECTIVE DATE OF FINAL RULE], 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. 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 office of the Service responsible for such designation. Each area will be referenced to the State(s), county(ies), or other local governmental 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 within the mapped area. Unless otherwise indicated within the Critical Habitat descriptions, the names of the State(s) and county(ies) are provided for informational purposes only and do not constitute the boundaries of the area.

            (b)(2) For Critical Habitat designations published and effective on or prior to [EFFECTIVE DATE OF FINAL RULE], the map provided by the Secretary of the Interior is for reference purposes to guide Federal Agencies and other interested parties in locating the general boundaries of the Critical Habitat. The map does not, unless otherwise indicated, constitute the definition of the boundaries of a Critical Habitat. 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. Unless otherwise indicated within the Critical Habitat description, the State and county(ies) names are provided for informational purposes only.

            226.101 (last sentence)
            Maps and charts identifying designated critical habitat that are not provided in this section may be obtained upon request to the Office of Protected Resources (see § 222.102, definition of “Office of Protected Resources”)
            Additional information regarding designated critical habitats that are not provided in this part may be obtained upon request to the Office of Protected Resources (see § 222.102, definition of “Office of Protected Resources”).

            424.12(c)

            (c) Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area. Each area will be referenced to the State(s), county(ies), or other local governmental units within which all or part of the critical habitat is located. Unless otherwise indicated within the critical habitat descriptions, the names of the State(s) and county(ies) are provided for information only and do not constitute the boundaries of the area. Ephemeral reference points (e.g., trees, sand bars) shall not be used in defining critical habitat

            (c) 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 office of the Service responsible for such designation. 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. Each area will be referenced to the State(s), county(ies), or other local governmental units within which all or part of the critical habitat is located. Unless otherwise indicated within the critical habitat descriptions, the names of the State(s) and county(ies) are provided for informational purposes only and do not constitute the boundaries of the area. Ephemeral reference points (e.g., trees, sand bars) shall not be used in any textual description used to clarify or refine the boundaries of critical habitat.

            424.16(b)
            (b) Contents. A notice of a proposed rule to carry out one of the actions described in § 424.10 shall contain the complete text of the proposed rule, a summary of the data on which the proposal is based (including, as appropriate, citation of pertinent information sources), and shall show the relationship of such data to the rule proposed. If such a rule designates or revises critical habitat, such summary shall, to the maximum extent practicable, include a brief description and evaluation of those activities (whether public or private) that, in the opinion of the Secretary, if undertaken, may adversely modify such habitat, or may be affected by such designation. Any proposed rule to designate or revise critical habitat shall contain a map of such habitat. Any such notice proposing the listing, delisting, or reclassification of a species or the designation or revision of critical habitat shall also include a summary of factors affecting the species and/or critical habitat
            (b) Contents. A notice of a proposed rule to carry out one of the actions described in § 424.10 will contain a detailed description of the proposed action and a summary of the data on which the proposal is based (including, as appropriate, citation of pertinent information sources) and will show the relationship of such data to the rule proposed. If such a rule designates or revises critical habitat, such summary will, to the maximum extent practicable, include a brief description and evaluation of those activities (whether public or private) that, in the opinion of the Secretary, if undertaken, may adversely modify such habitat, or may be affected by such designation. Any proposed rule to designate or revise critical habitat will contain a map of such habitat. Any such notice proposing the listing, delisting, or reclassification of a species or the designation or revision of critical habitat will also include a summary of factors affecting the species or its designated critical habitat or both.

            424.16(c)(1)(ii)
             (ii) Give actual notice of the proposed regulation (including the complete text of the regulation) to the State agency in each State in which the species is believed to occur, and to each county or equivalent jurisdiction therein in which the species is believed to occur, and invite the comment of each such agency and jurisdiction;
            (ii) Give actual notice of the proposed regulation to the State agency in each State in which the species is believed to occur, and to each county or equivalent jurisdiction therein in which the species is believed to occur, and invite the comment of each such agency and jurisdiction;

            424.18(a)
            (a) Contents. A final rule promulgated to carry out the purposes of the Act will be published in the Federal Register. This publication will contain the complete text of the rule, a summary of the comments and recommendations received in response to the proposal (including applicable public hearings), summaries of the data on which the rule is based and the relationship of such data to the final rule, and a description of any conservation measures available under the rule. Publication of a final rule to list, delist, or reclassify a species or designate or revise critical habitat shall also provide a summary of factors affecting the species. A rule designating or revising critical habitat will also contain a description of the boundaries and a map of such habitat and will, to the maximum extent practicable, be accompanied by a brief description and evaluation of those activities (whether public or private) that might occur in the area and which, in the opinion of the Secretary, may adversly [sic] modify such habitat or be affected by such designation
            (a) Contents. A final rule promulgated to carry out the purposes of the Act will be published in the Federal Register. This publication will contain a detailed description of the action being finalized, a summary of the comments and recommendations received in response to the proposal (including applicable public hearings), summaries of the data on which the rule is based and the relationship of such data to the final rule, and a description of any conservation measures available under the rule. Publication of a final rule to list, delist, or reclassify a species or designate or revise critical habitat will also provide a summary of factors affecting the species. For a rule designating or revising critical habitat, the detailed description of the action will include a map that delineates the official boundary of the designation. The official boundary may also be clarified or refined by rule text, or by the map as modified by rule text. The Service may also create additional explanatory text, information, or maps and include them in the preamble of the rulemaking document or make them available from the lead Service office responsible for the designation. The rule will, to the maximum extent practicable, include a brief description and evaluation of those activities (whether public or private) that might occur in the area and which, in the opinion of the Secretary, may adversely modify such habitat or be affected by such designation.

        50 CFR 17.94(b)
        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 proposing to change the wording of the first sentence to state “For critical habitat designations published and effective after [EFFECTIVE DATE OF FINAL RULE], the map(s) provided by the Secretary of DOI constitutes the definition of the boundaries of a critical habitat designation.” We are replacing “the Director” with “the Secretary of DOI” 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, and this authority has not been delegated to the Director. For existing critical habitat designations, we also intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR, without changing the boundaries of those designations, in separate rulemakings in order to save the annual reprinting cost.

        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 proposing to revise 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 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. However, should there be ambiguity with the scale of the map, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead office responsible for such designation habitat.

        We are proposing also to replace the third existing sentence “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 would 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 for clarification purposes 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 proposing to replace 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 useful information to the public concerning areas designated as critical habitat.

        50 CFR 424.12(c)

        We are proposing to remove the references to defining critical habitat by specific limits using reference points and lines as found on standard topographic maps of the area. The proposed revision would 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 office of the Service responsible for such designation.” This proposed revision would 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 with the scale of the map, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead office responsible for such designation habitat. We also 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.

        We are proposing to add the following sentence to this regulation: “General descriptions of the location and boundaries of each area may be provided for clarification purposes or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area.”
        50 CFR 424.16(b)

        The proposed 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 § 424.10 shall contain the complete text of the proposed rule.” We are proposing to change 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 text of the proposed regulation,” as required by 16 U.S.C 1533(b)(5)(A)(i), this change in wording, along with the other changes in this notice, will clarify how we interpret this mandate in the context of critical habitat designation. As discussed above, should there be ambiguity with the scale of the map, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead office responsible for such designation habitat.
        Because the regulation will be the legally binding description of the designation, we included the language “will contain a detailed description of the proposed action” to clarify that the regulation (in the form of maps and any accompanying text) must itself provide a sufficiently detailed description.
        50 CFR 424.16(c)(1)(ii)

        The proposed change to this section is removing the parenthetical phrase that states “(including the complete text of the regulation).” As stated above, this change in wording, along with the other changes proposed in this notice, will clarify how we interpret this mandate in the context of critical habitat designation. As discussed above, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead office responsible for such designation habitat.
        Because the regulation will be the legally binding description of the designation, we included the language “will contain a detailed description of the proposed action” to clarify that the regulation (in the form of maps and any accompanying text) must itself provide a sufficiently detailed description.
        50 CFR 424.18(a)

        This section addresses the final rule requirements. In the second sentence of the existing regulation, we are proposing to replace “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 how we interpret this mandate in the context of critical habitat designation. As discussed above, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead office responsible for such designation habitat. Because the regulation will be the legally binding description of the designation, we included the language “will contain a detailed description of the proposed action” to clarify that the regulation (in the form of maps and any accompanying text) must itself provide a sufficiently detailed description.

        In the fourth sentence of the existing regulation, we are proposing to remove 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 proposed section would read: “A rule designating or revising critical habitat will also include a map of the critical habitat area. The map itself constitutes the official boundary of the designation. The official boundary may also be delineated by rule text or by the map as modified by rule text. The Services may also create additional explanatory text, information, or maps and include them in the preamble of the rulemaking document or make them available from the lead Service office responsible for the designation.” This change will provide more clarity regarding the areas being designated, as well as allow us to reduce our printing costs in both the Federal Register and for the annual reproductions of the CFR. Our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead office responsible for such designation habitat. We believe this change will not increase the burden on the public.
        Required Determinations
        Regulatory Planning and Review—Executive Order 12866
        The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
        a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        b. Whether the rule will create inconsistencies with other Federal agencies' actions.
        c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

        d. Whether the rule raises novel legal or policy issues.

        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

        Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., whenever an 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 effects 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 the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic effect on a substantial number of small entities as defined under the RFA.

        This proposed rule would revise the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in the Federal Register and reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. A full description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule. The proposed rule does not duplicate, overlap, or conflict with other Federal rules.
        This rulemaking amends the procedural requirements for NMFS and FWS when designating critical habitat. NMFS and FWS are the only entities that are directly impacted by this rule, and they are not considered to be small entities under SBA's size standards. No other entities are directly impacted by this rule.

        The revisions to the implementing regulations proposed herein are not expected to impose any direct costs on regulated entities. The elimination of the procedural requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in the Federal Register and reprinting in the CFR is an administrative action, and it is intended to facilitate public understanding of the critical habitat designation process and make it easier for the public to determine if specific areas are within the critical habitat designation. In fact, this regulation would make the process more cost-effective for the agencies and the public as a whole and would potentially save the FWS alone an estimated $391,742 annually. Therefore, for the reasons above, this proposed rule would not have 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.), the Services make the following findings:
        a. This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
        b. We do not believe this rule will significantly or uniquely affect small governments, because the revisions to the implementing regulations proposed herein will facilitate public understanding of the critical habitat designation process, and the areas included within the critical habitat, and make the process more cost-effective for the agencies and the public as a whole by potentially saving the FWS alone an estimated $391,742 annually. As such, we do not believe that a Small Government Agency Plan is required.
        Takings—Executive Order 12630
        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have evaluated the proposal to revise the implementing regulations for designating critical habitat and have determined that this proposed rule does not pose significant takings implications. The proposed revisions to the implementing regulations are intended to facilitate the public understanding of the rulemaking process for critical habitat.
        Federalism—Executive Order 13132
        In accordance with Executive Order 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. The revisions to the regulations addressed in this proposed rule are intended to facilitate the public understanding of the rulemaking process for critical habitat, and thus should not significantly affect or burden the authority of the States to govern themselves.
        Civil Justice Reform—Executive Order 12988
        In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The revisions to the regulations addressed in this proposed rule are intended to facilitate the public understanding of the rulemaking process for critical habitat, and thus should not significantly affect or burden the judicial system.
        Paperwork Reduction Act of 1995

        This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency 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.
        National Environmental Policy Act (NEPA)

        We determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register.

        Also, it is our position that, outside the jurisdiction of the United States Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld by the Circuit Court of the United States for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

        However, we have analyzed this proposed rule in accordance with the criteria of the National Environmental Policy Act. Since this proposal is administrative in nature (i.e., we are making optional the inclusion of any textual description of the boundaries of the designation in the Federal Register), there is no effect to the quality of the human environment. This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required.
        Government-to-Government Relationship With Tribes
        In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior Manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Native American Tribes on a government-to-government basis. We have evaluated the potential effects on federally recognized Tribes from these proposed revisions to our implementing regulations for critical habitat. We have determined that there are no potential effects to federally recognized Tribes since the revisions to the implementing regulations are intended to facilitate the public understanding of critical habitat designations and save taxpayer monies. We will, however, continue to coordinate with Tribes as we promulgate critical habitat designations.
        Energy Supply, Distribution, or Use
        Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule to revise the implementing regulations for designating critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
        Clarity of the Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        a. Be logically organized;
        b. Use the active voice to address readers directly;
        c. Use clear language rather than jargon;
        d. Be divided into short sections and sentences; and
        e. Use lists and tables wherever possible.

        If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise this rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        Author(s)
        The primary authors of this package are staff members from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

          List of Subjects in 50 CFR Parts 17, 226, and 424
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

        Proposed Regulation Promulgation
        Accordingly, we propose to amend parts 17, 226, and 424, 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; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

          2. In § 17.94, revise paragraph (b) as set forth below:

            § 17.94
            Critical habitats.

            (b)(1) For the Critical Habitat designations published and effective after [EFFECTIVE DATE OF FINAL RULE], the map provided by the Secretary of DOI, as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. 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 office of the Service responsible for such designation. 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. Unless otherwise indicated within the Critical Habitat descriptions, the names of the State(s) and county(ies) are provided for informational purposes only and do not constitute the boundaries of the area.

            (2) For Critical Habitat designations published and effective on or prior to [EFFECTIVE DATE OF FINAL RULE], the map provided by the Director is for reference purposes to guide Federal Agencies and other interested parties in locating the general boundaries of the Critical Habitat. The map does not, unless otherwise indicated, constitute the definition of the boundaries of a Critical Habitat. 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. Unless otherwise indicated within the Critical Habitat description, the State and county(ies) names are provided for informational purposes only.

          PART 226—[AMENDED]
          3. The authority citation for part 226 continues to read as follows:

            Authority:
            16 U.S.C. 1533.

          4. Revise § 226.101 to read as follows:

            § 226.101
            Purpose and scope.

            The regulations contained in this part identify those habitats designated by the Secretary of Commerce as critical, under section 4 of the Act, for endangered and threatened species under the jurisdiction of the Secretary of Commerce. Those species are enumerated at § 223.102 of this chapter if threatened and at § 224.101 of this chapter if endangered. For regulations pertaining to the designation of critical habitat, see part 424 of this title; for regulations pertaining to prohibitions against the adverse modification or destruction of critical habitat, see part 402 of this title. Additional information regarding designated critical habitats that is not provided in this section may be obtained upon request to the Office of Protected Resources (see § 222.102, definition of “Office of Protected Resources”).

          PART 424—[AMENDED]
          5. The authority citation for part 424 continues to read as follows:

            Authority:

            Pub. L. 93-205, 87 Stat. 884; Pub. L. 95-632, 92 Stat. 3751; Pub. L. 96-159, 93 Stat. 1225; Pub. L. 97-304, 96 Stat. 1411 (16 U.S.C. 1531 et seq.); unless otherwise noted.

          6. In § 424.12, revise paragraph (c) as set forth below:

            § 424.12
            Criteria for designating critical habitat.

            (c) 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 office of the Services responsible for such designation. 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. Each area will be referenced to the State(s), county(ies), or other local government units within which all or part of the Critical Habitat is located. Unless otherwise indicated within the Critical Habitat descriptions, the names of the State(s) and county(ies) are provided for informational purposes only and do not constitute the boundaries of the area. Ephemeral reference points (e.g., trees, sand bars) shall not be used in any textual description used to clarify or refine the boundaries of critical habitat.

            7. In § 424.16, revise paragraphs (b) and (c)(1)(ii) as set forth below:

            § 424.16
            Proposed rules.

            (b) Contents. A notice of a proposed rule to carry out one of the actions described in § 424.10 will contain a detailed description of the proposed action and a summary of the data on which the proposal is based (including, as appropriate, citation of pertinent information sources) and will show the relationship of such data to the rule proposed. If such a rule designates or revises critical habitat, such summary will, to the maximum extent practicable, include a brief description and evaluation of those activities (whether public or private) that, in the opinion of the Secretary, if undertaken, may adversely modify such habitat or may be affected by such designation. Any proposed rule to designate or revise critical habitat shall contain a map of such habitat. Any such notice proposing the listing, delisting, or reclassification of a species or the designation or revision of critical habitat will also include a summary of factors affecting the species and/or its designated critical habitat.
            (c) * * *
            (1) * * *
            (ii) Give actual notice of the proposed regulation to the State agency in each State in which the species is believed to occur and to each county or equivalent jurisdiction therein in which the species is believed to occur, and invite the comment of each such agency and jurisdiction;

            8. In § 424.18, revise paragraph (a) to read as follows:

            § 424.18
            Final rules—general.
            (a) Contents. A final rule promulgated to carry out the purposes of the Act will be published in the Federal Register. This publication will contain a detailed description of the action being finalized, a summary of the comments and recommendations received in response to the proposal (including applicable public hearings), summaries of the data on which the rule is based and the relationship of such data to the final rule, and a description of any conservation measures available under the rule. Publication of a final rule to list, delist, or reclassify a species or designate or revise critical habitat will also provide a summary of factors affecting the species. For a rule designating or revising critical habitat, the detailed description of the action will include a map that delineates the official boundary of the designation. The official boundary may also be clarified or refined by rule text or by the map as modified by rule text. The Services may also create additional explanatory text, information, or maps and include them in the preamble of the rulemaking document or make them available from the lead office of the Service responsible for the designation. The rule will, to the maximum extent practicable, include a brief description and evaluation of those activities (whether public or private) that might occur in the area and which, in the opinion of the Secretary, may adversely modify such habitat or be affected by such designation.

              Authority:

              The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

            Dated: March 11, 2011.
            Will Shafroth,
            Acting Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior.
            Dated: May 4, 2011.
            John Oliver,
            Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

      [FR Doc. 2011-11920 Filed 5-16-11; 8:45 am]
      BILLING CODE 4310-55-P; 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AT31

        Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To Delist the Mexican Bobcat (Lynx Rufus Escuinapae)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the 12-month finding that a petition to delist the Mexican bobcat (Lynx rufus escuinapae) under the Endangered Species Act of 1973, as amended (Act, or ESA), is warranted. The best available information indicates that the Mexican bobcat may not constitute a separate subspecies and does not constitute a distinct population segment (DPS). Despite habitat modification by humans, the bobcat remains abundant throughout Mexico. Accordingly, we herein propose to delist the Mexican bobcat under the Act. The Service seeks data and comments from the public on this proposed rule.

          DATES:
          Comments and information may be submitted until August 17, 2005. Public hearing requests must be received by July 5, 2005.

          ADDRESSES:

          Submit comments, information, and questions to the Chief, Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 750, Arlington, VA 22203, USA; or by fax (703-358-2276) or by e-mail (scientificauthority@fws.gov). Comments and supporting information will be available for public inspection, by appointment, from 8 a.m. to 4 p.m. at the above address.

          To request copies of the regulations regarding listed wildlife or inquire about prohibitions or permits, write to: Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, VA 22203, USA. Alternatively, you may contact us by telephone (703-358-2104; toll free, 1-800-358-2104), fax (703-358-227), or e-mail (managementauthority@fws.gov).

          FOR FURTHER INFORMATION CONTACT:

          Dr. Javier Alvarez at the above address; or by telephone (703-358-1708), fax (703-358-2276), or e-mail (scientificauthority@fws.gov).

        SUPPLEMENTARY INFORMATION:

        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.), requires the Service to make a finding on whether a petition to list, delist, or reclassify a species has presented substantial information indicating that the requested action may be warranted. This finding is to be based on all information available to us at the time the finding is made. To the maximum extent practicable, the finding shall be made within 90 days following receipt of the petition (this finding is referred to as the “90-day finding”) and published promptly in the Federal Register. If the 90-day finding is positive (i.e., the petition has presented substantial information indicating that the requested action may be warranted), Section 4(b)(3)(A) of the Act requires the Service to commence a status review of the species if one has not already been initiated under the Service's internal candidate-assessment process. In addition, Section 4(b)(3)(B) of the Act also requires the Service to make a finding within 12 months following receipt of the petition on whether the requested action is warranted, not warranted, or warranted but precluded by higher-priority listing actions (this finding is referred to as the “12-month finding”). The 12-month finding is also to be published promptly in the Federal Register.
        Previous Federal Action
        We listed the Mexican bobcat as an endangered species on June 14, 1976 (41 FR 24064). This subspecies was listed under the Act due to its inclusion in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). By July 1, 1975, the Convention was ratified by enough nations to enter into force, and at that time the countries participating in CITES agreed that the Mexican bobcat met the criteria for inclusion in Appendix I, which includes species threatened with extinction that are or may be affected by international trade. However, it is not clear why the Mexican bobcat was originally included in Appendix I. In 1992, during the 10-year review of species included in the CITES Appendices, the United States, with support from Mexico and other countries, proposed to transfer the Mexican bobcat to Appendix II, based on the bobcat's widespread and stable status in Mexico and the questionable taxonomy of this subspecies. The U.S. proposal was accepted and the transfer went into effect on November 6, 1992.

        On July 8, 1996, we received a petition dated June 30, 1996, from the National Trappers Association, Inc., Bloomington, Illinois. The petition and cover letter clearly identified itself as such and contained the name, address, and signature of the petitioning organization's representative. Information relating to the taxonomy, the present population status and trends, and threats were included in the petition. The petition requested that we delist the Mexican bobcat under the Act, and noted that downlisting to threatened status would not be an appropriate alternative. In a letter dated November 4, 1996, we acknowledged receipt of the petition (Service, in litt., 1996). We stated that we would address the petition as soon as possible. Due to staffing and budget constraints, we were unable to process the petition until 2003.

        On June 11, 2003, we made a positive 90-day finding on the National Trappers Association petition (i.e., the Service found that the petition presented substantial information indicating that the requested action may be warranted). That finding was published in the Federal Register on July 2, 2003 (68 FR 39590), thereby initiating a public comment period and status review for the species. In that notice, we indicated that we would determine whether delisting of the Mexican bobcat was warranted based on its status and taxonomy. If the subspecies designation was found not to be taxonomically valid, we would then evaluate if the listed population in Mexico constituted a Distinct Vertebrate Population Segment (DPS), and if so, whether or not we should retain the listing of this population. If this population did not meet the DPS criteria, we would then evaluate whether or not the listed population is endangered or threatened in a significant portion of the species' (i.e., Lynx rufus) range. The public comment period remained open until September 30, 2003.
        We received four comments during the public comment period, including two from the government of the range country (Mexico), one from a non-governmental conservation organization (Center for Biological Diversity [CBD]), and one from an individual (Mr. Lawrence G. Kline, who submitted the original petition on behalf of the National Trappers Association). The Government of Mexico (Comisión Nacional para el Conocimiento y Uso de la Biodiversidad/National Commission for the Understanding and Use of Biodiversity [CONABIO], and Secretaría de Medio Ambiente y Recursos Naturales/Ministry of Environment and Natural Resources [SEMARNAT]) did not object to the delisting. Mr. Kline supported the delisting, commenting that there is no evidence of taxonomic differences between bobcat populations in the United States and Mexico, and that the bobcat population in Mexico does not constitute a discrete population separate from the U.S. bobcat population. CBD opposed the delisting because of a lack of population information. CBD further argued that continued listing was necessary to help prioritize research, and that development along the U.S.-Mexico border was likely to increase, thus reducing genetic flow between bobcat populations in Mexico and the United States. However, no substantial new information was provided by any of the four commenters. The comments submitted by Mr. Kline and CBD are addressed in the sections below.
        In our 90-day finding, we stated that we had used all relevant literature and information available at that time (June 2003) on current status of and threats to the Mexican bobcat. Since then, a limited amount of relevant new information has become available as a result of the status review and separate consultations with the Mexican Government on a U.S. proposal to remove the bobcat from Appendix II of CITES. That information has been incorporated, as appropriate, in this 12-month finding.
        Taxonomy and Biology of the Species

        The Mexican bobcat belongs to the mammalian family Felidae and has been reported to be a subspecies of Lynx rufus. The number of taxa described within Lynx rufus ranges from 11 to 14. According to Larivière and Walton (1997), six subspecies of bobcat occur in Mexico, including L. r. escuinapae. The distribution of L. r. escuinapae extends from the northern states of Mexico, some distance south of the Rio Grande and the U.S.-Mexico border, to the Isthmus of Oaxaca in central Mexico (Larivière and Walton 1997). Allen (1903) first described the Mexican bobcat as a subspecies from two immature male specimens found in Escuinapa, Mexico, on the basis of color and cranial differences. However, the validity of this subspecies is questionable. Samson (1979) conducted a multivariate statistical analysis of a variety of skull measurements and found cranial characteristics of L. r. escuinapae to be similar to those of L. r. californicus and L. r. texensis. Also, the range of L. r. escuinapae overlaps with the ranges of L. r. baileyi and L. r. texensis, two subspecies found in the southern United States whose range extends into northern Mexico. However, McCord and Cardoza (1982) noted that statistical analysis of skull measurements only has meaning in large samples and is thus ineffective in the subspecific assignment of individual specimens. They also noted that the 11-14 subspecies of bobcats described to date comprise few realistically distinguishable taxa that have any real biological or conservation significance. Most recently, in a meeting of Mexican mammal experts, no consensus was reached about the taxonomic validity of L. r. escuinapae (Hesiquio Benítez-Díaz, CONABIO, in litt. 2004).

        The bobcat is the most widely distributed felid in North America (Anderson and Lovallo 2003). The majority of bobcats are found in the United States, where they range through a wide variety of habitats, including boreal coniferous and mixed forests in the north, bottomland hardwood forest and coastal swamp in the southeast, and desert and scrubland in the southwest. Even within a local area, individual bobcats usually use a variety of habitats (Wilson and Ruff 1999). Only large, intensively cultivated areas appear to be unsuitable habitat, presumably because of reductions in the availability of prey. Southern Canada represents the northern limit of bobcat range, with deep snow a significant limiting factor (Larivière and Walton 1997; Anderson and Lovallo 2003). In Mexico, bobcats are found in a wide range of habitats, including dry scrub, coniferous forests, mixed pine (Pinus spp.) and oak (Quercus spp.) forests, and tropical deciduous forests (Hall and Kelson 1959; Gonzalez and Leal 1984 and Woloszyn and Woloszyn 1982 cited by Nowell and Jackson 1996; López-González et al. 1998; Hesiquio Benítez-Díaz, CONABIO, in litt. 2004).
        Aside from being habitat generalists, bobcats are opportunistic in their choice of prey (Wilson and Ruff 1999; Anderson and Lovallo 2003). Although rabbits predominate in their diet, bobcats feed on a wide range of taxa as well as carrion, with some regional variations (Anderson and Lovallo 2003).

        Over the last century, the bobcat has expanded its range northward as the mature, continuous coniferous forests have been opened by lumbering, fire, and agriculture (Rollings 1945; Banfield 1974). Similarly, in Mexico, fragmentation and clearing of tropical forests appear to be contributing to the range expansion of bobcats (López-González et al. 1998), presumably because of increases in the diversity and abundance of prey species associated with forest edges and the opening of the forest canopy.
        Bobcats are polygamous (Larivière and Walton 1997). Most female bobcats reach reproductive maturity at 2 years of age and adults remain reproductively active until death (around 15 years of age) (Larivière and Walton 1997; Wilson and Ruff 1999). They generally have one litter per year, ranging in size from one to six, with an average of three young per litter. However, females are capable of producing a second litter if the first one is lost after birth (Anderson and Lovallo 2003).
        Censusing of bobcats is difficult because of their secretive nature, low densities, and wide dispersal (Anderson and Lovallo 2003). Although a wide range of techniques has been developed for estimating sizes of bobcat populations, these techniques remain imprecise and inaccurate (Anderson and Lovallo 2003).
        No population estimates are available for L. r. escuinapae, but the Mexican Government has stated that this subspecies is widespread and numerous, is not specialized in its habitat requirements, and is highly ecologically adaptable (Graciela de la Garza-García, Dirección General de Conservación y Ecología de los Recursos Naturales/General Direction of Conservation and Ecology of Natural Resources, in litt. 1991; Hesiquio Benítez-Díaz, CONABIO, in litt. 2004). Furthermore, in a recent meeting, Mexican experts noted that there is no evidence of population declines in central and southern Mexico (one of the most disturbed parts of the country) during the past 25 years (Hesiquio Benítez-Díaz, CONABIO, in litt. 2004).
        Distinct Vertebrate Population Segment
        “Species” is defined by the Act as including any subspecies of fish and wildlife or plants, and any distinct population segment of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)). We, along with the National Marine Fisheries Service (National Oceanic and Atmospheric Administration—Fisheries), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) (61 FR 4722; February 7, 1996) to help us in determining what constitutes a distinct population segment (DPS). Under this policy, we use three elements to assess whether a population under consideration for listing may be recognized as a DPS: (1) Discreteness of the population in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing.
        The DPS analysis is a stepwise analysis. Significance is considered only when discreteness of the population has been determined, and the conservation status is considered only when both discreteness and significance of the population have been established. Discreteness refers to the isolation of a population from other members of the species and is based on two criteria: (1) Marked separation from other populations of the same taxon resulting from physical, physiological, ecological, or behavioral factors, including genetic discontinuity; or (2) populations delimited by international boundaries. If the population is determined to be discrete, we determine significance by assessing the distinct population segment's importance and/or contribution to the species throughout its range. Measures of significance may include, but are not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside its historic range; and (4) evidence that the discrete population segment differs markedly from other populations of the taxon in its genetic characteristics.
        If we determine that a population meets the discreteness and significance criteria for a distinct population segment, we evaluate the threats to determine if classification as endangered or threatened is warranted based on the Act's standards. “Endangered” means the species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.
        In reviewing the taxonomic information on Mexican bobcat, the available information suggests that the subspecies designation may not be valid. Subsequently, we evaluated the status of the listed population in its range within Mexico to determine whether the listed population met the DPS policy, and if so, whether this population of bobcat should remain listed.

        The available information indicates that the bobcat population represented by L. r. escuinapae is not discrete. The population is not delineated by any international political boundary. It is contained entirely within Mexico and its range does not extend to any border between Mexico and another country, particularly the United States. It also does not represent the only bobcat population within Mexico and is not separated by physical, physiological, ecological, or behavioral factors from other bobcat populations. As already stated, the range of L. r. escuinapae overlaps with two other putative subspecies that occur in both Mexico and the United States, and there is no evidence that it is biologically distinguishable from them. Therefore, the Mexican bobcat does not constitute a DPS.
        Summary of Factors Affecting the Species
        Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations promulgated to implement the listing provisions of the Act (50 CFR part 424) set forth the procedures for deleting species from the Federal lists. A species may be determined to be an endangered or threatened species on the basis of one or more of the five factors described in section 4(a)(1). The same factors are used to determine if a listed species continues to qualify for listing. These factors and their application to the Mexican bobcat are as follows:
        A. Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range

        Distribution of bobcats may be negatively or positively affected by habitat modification (Larivière and Walton 1997; Woolf and Hubert 1998). In a recent meeting convened by the Mexican Government to evaluate the status of bobcats, Mexican experts noted that there is no evidence of population declines in central and southern Mexico during the past 25 years, even in heavily disturbed areas (Hesiquio Benítez-Díaz, CONABIO, in litt. 2004). To the contrary, the creation of semi-open areas by fragmentation and clearing of tropical forests may be contributing to a range expansion of Mexican bobcats (López-González et al. 1998). This is consistent with information from the United States that suggests that bobcats can easily colonize isolated or over-harvested areas (Anderson and Lovallo 2003), are very tolerant to habitat fragmentation and modification caused by land conversion for agriculture and urbanization (McCord and Cardoza 1982; Woolf and Hubert 1998; Crooks 2002; Riley et al. 2003), and modify their behavior to survive in human settings (Tigas et al. 2002; Riley et al. 2003).
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

        Human exploitation appears to be the predominant cause of bobcat mortality (Anderson and Lovallo 2003). Little information is available on utilization of the species in Mexico, but local hunting and trapping for subsistence are possible. According to the Mexican Government, its bobcat populations do not face any conservation problems (Hesiquio Benítez-Díaz, CONABIO, in litt. 2004). Thus, the species is not legally protected. The harvest of native Mexican species, including the bobcat, is regulated by the Mexican federal government through the Ecological Equilibrium Law (Ley General de Equilibrio Ecológico) and the Wildlife Law (Ley General de Vida Silvestre) (Jorge G. Alvarez-Romero, CONABIO, in litt. 2004). Under the Wildlife Law, utilization of native species on private, communal, state, and federal lands is allowed and restricted to areas referred to as Management Units for the Conservation of Wildlife (Unidades de Manejo para la Conservación de Vida Silvestre [UMAs]). To ensure that the removal of specimens is sustainable, these UMAs must be registered with and have a management plan approved by SEMARNAT. However, to date, there are no UMAs registered for the harvest of Mexican bobcats (Leonel Urbano, SEMARNAT, in litt. 2004).

        International trade in bobcats is regulated by CITES. International trade in bobcat pelts increased significantly in the 1970s after several species of cats were placed in Appendix I of CITES and commercial trade of their skins was prohibited (Woolf and Hubert 1998). However, between 1975 and 1992, commercial trade in bobcat skins was limited only to specimens originating in Canada and the United States as a result of the inclusion of L. r. escuinapae in Appendix I. International trade in Mexican bobcats was reopened in 1993 after transfer of L. r. escuinapae from Appendix I to Appendix II in 1992. According to the World Conservation Monitoring Centre (WCMC), between 1993 and 2002, only 155 bobcat specimens were exported from Mexico as trophies (20), live animals (4), skins (1), and undetermined (130). Thus, even after transfer of L. r. escuinapae to Appendix II, international trade in Mexican bobcats has been limited. Furthermore, there is no indication of significant illegal trade.
        Although there is no information available on the impact of commercial trade on the Mexican bobcat, information from the United States suggests that bobcat populations can withstand high levels of harvest and remain stable or increase, provided there are moderate levels of management (Woolf and Hubert 1998). Modeling suggests that harvest levels of up to 20% have little impact on bobcat populations, depending on prey availability, environmental conditions, poaching levels, disease, and density of competitors (Knick 1990). However, demand for furs from Europe (the main market for bobcat furs), particularly of those originating from wild animals, is expected to continue to decline as a result of animal rights campaigns and stricter import regulations imposed by the European Union. Thus, over-harvest for domestic or international trade does not appear to represent a threat to the bobcat population in Mexico.
        C. Disease or Predation
        Wild bobcats are susceptible to a wide range of diseases and parasites (Larivière and Walton 1997; Anderson and Lovallo 2003). Mountain lions, wolves, coyotes, and domestic dogs may predate on adult bobcats, and humans may depredate bobcats to protect small livestock (Larivière and Walton 1997; Anderson and Lovallo 2003). However, at the present time, neither disease nor predation is considered to threaten or endanger the species in any portion of its range.
        D. Inadequacy of Existing Regulatory Mechanisms
        As noted above, Mexico does not grant legal protection to bobcats since it considers that the species is abundant and not at risk. However, it has regulations pertaining to hunting and export of the species (see Overutilization for commercial, recreational, scientific, or educational purposes above). Although illegal take and trade in bobcats probably occur in Mexico, there is no evidence that such activities occur at higher levels than in the United States or Canada, or that they have led to a decline in numbers and/or distribution of the species in the country. Thus, the existing regulatory mechanisms appear to be adequate and sufficient to ensure the long-term survival of the species in Mexico.
        E. Other Natural or Manmade Factors

        Aside from the factors described above, bobcats may experience mortality due to starvation, vehicular collisions, and incidental poisoning (e.g., anticoagulant rodenticides and contaminants) (Tigas et al. 2002; Cain et al. 2003; Anderson and Lovallo 2003; Riley et al. 2003). However, none of these has led to significant declines in the distribution and abundance of bobcats in any portion of their range.
        Summary of Findings

        The Service has reviewed the information presented in the original petition, the literature cited in that petition, all public comments received, and other available literature and information. On the basis of the best scientific and commercial information available, the Service's 12-month finding is that the petitioned action is warranted. The best available information indicates that the Mexican bobcat may not constitute a separate subspecies and does not constitute a distinct population segment (DPS). Furthermore, despite habitat modification by humans, the bobcat remains abundant throughout Mexico and its range appears to be expanding. Therefore, neither listing of the Mexican bobcat as endangered, nor its downlisting to threatened, are appropriate. Accordingly, we herein propose to remove the Mexican bobcat, L. r. escuinapae, from the List of Endangered and Threatened Wildlife promulgated under the Endangered Species Act of 1973, as amended. Public comments on this proposed rule will be solicited, as will peer review (see subsequent sections of this FR notice).
        Available Conservation Measures
        Conservation measures provided to species listed as endangered or threatened under the Endangered Species Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals.

        Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR 402, requires Federal agencies to evaluate the impact of their actions within the United States or on the high seas on any species that is proposed or listed as endangered or threatened, and on critical habitat of an endangered or threatened species, if any is designated. Because L. r. escuinapae is not native to the United States, no critical habitat has been designated for this taxon, in accordance with 50 CFR 424.12(h). However, permits for import and export, foreign and interstate commerce, and take within the United States are currently required. Delisting of the Mexican bobcat under the Act would eliminate the need for the issuance of ESA permits by the Service's Division of Management Authority (DMA), and the required consultation with the Service's Division of Scientific Authority (DSA) under Section 7 of the Act prior to the issuance of any permit.
        The Act and its implementing regulations set forth a series of prohibitions and exceptions that generally apply to all endangered wildlife. The prohibitions, codified at 50 CFR 17.21, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), within U.S. territory or on the high seas, import or export, ship in interstate commerce in the course of a commercial activity, or sell or offer for sale in interstate or foreign commerce, any listed species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees or agents of the Service and State conservation agencies.
        Permits may be issued to carry out otherwise prohibited activities involving endangered wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 and 17.23. Such permits are available for scientific research purposes, for enhancement of the propagation or survival of the species, and/or for incidental take in the course of otherwise lawful activities. Because the bobcat is listed in Appendix II of CITES, a CITES permit is already required for export from the United States. In addition, shipments originating outside the United States must be accompanied by an export permit or re-export certificate issued by the exporting country. Under this rulemaking, no ESA permit would be required for import or export of Mexican bobcats to or from the United States.
        Public Comments Solicited
        The Service intends that any final action resulting from this proposal will be based on the most accurate and up-to-date information possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning the taxonomy, population status, commercial trade, or other relevant data concerning any threats to the Mexican bobcat. Final action on this proposed rule will take into consideration the comments and any additional information received by the Service, and such communications may lead to a final action that differs from this proposal.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Commenters may request that we withhold their home addresses, and we will honor these requests to the extent allowable by law. In some circumstances, we may also withhold a commenter's identity, as allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public comment in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

        The Endangered Species Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of the publication of this proposal in the Federal Register. Such requests must be made in writing and be addressed to: Chief, Division of Scientific Authority, 4401 North Fairfax Drive, Room 750, Arlington, Virginia 22203.
        Peer Review

        In accordance with our policy published on July 1, 1994 (59 FR 34270), we will seek expert opinions of at least three appropriate independent specialists regarding this proposed rule. The purpose of such review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule immediately following publication in the Federal Register to these peer reviewers.
        National Environmental Policy Act
        We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act of 1973, as amended.

          References Cited

          Allen, J. A. 1903. A new deer and a new lynx from the State of Sinaloa, Mexico. Bulletin of American Museum of Natural History, 19:613-615.
          Anderson, E. M., and M. J. Lovallo. 2003. Bobcat and lynx, pages 758-786, in Wild mammals of North America: Biology, management, and conservation. Second Edition. G. A. Feldhamer, B. C. Thompson, and J. A. Chapman, eds. The John Hopkins University Press, Baltimore, Maryland.
          Banfield, A.W. 1974. The mammals of Canada. University of Toronto Press, Toronto, Canada.
          Cain, A. T., V. R. Tuovila, D. G. Hewitt, and M. E. Tewes. 2003. Effects of a highway and mitigation projects on bobcats in southern Texas. Biological Conservation, 114:189-197.
          Crooks, K. R. 2002. Relative sensitivities of mammalian carnivores to habitat fragmentation. Conservation Biology, 16:488-502.
          Hall, E. R., and K. R. Kelson 1959. The mammals of North America. The Ronald Press Company, New York.

          Government of the United States. 1992. Proposal to Transfer Felis rufa escuinapae from Appendix I to Appendix II. Proceedings of the 8th Meeting of the Conference of the Parties to CITES, CITES Secretariat, Lausanne, Switzerland.
          Gonzalez, C.B., and C. G. Leal. 1984. [Forest Mammals of the Mexican Basin.] Programme on Man and the Biosphere (UNESCO) and Editorial Limusa. Mexico City (in Spanish).
          Knick, S. T. 1990. Ecology of bobcats relative to exploitation and prey decline in southeastern Idaho. Wildlife Monographs, 108:1-42.
          Lariviére, S., and L. R. Walton. 1997. Lynx rufus. Mammalian Species, 563:1-8.
          López-González, C. A., A. González-Romero, and J. W. Laundre. 1998. Range extension of the bobcat (Lynx rufus) in Jalisco, Mexico. Southwestern Naturalist, 43:103-105.

          McCord, C. M., and J. E. Cardoza. 1982. Bobcat and Lynx, pages 728-766, in Wild mammals of North America: Biology, management and economics. J. A. Chapman and G. A. Feldhamer, eds. John Hopkins University Press, Baltimore, Maryland.
          Nowell, K., and P. Jackson. 1996. Wild Cats: Status Survey and Conservation Action Plan. IUCN/SSC Cat Specialist Group, IUCN, Gland, Switzerland.
          Riley, S. P. D., R. M. Sauvajot, T. K. Fuller, E. C. York, D. A. Kamradt, C. Bromley, and R. K. Wayne. 2003. Effects of urbanization and habitat fragmentation on bobcats and coyotes in southern California. Conservation Biology, 17:566-576.
          Rollings, C. T. 1945. Habits, food and parasites of the bobcat in Minnesota. Journal of Wildlife Management, 9:131-145.

          Samson, F. B. 1979. Multivariate analysis of cranial characteristics among bobcats with a preliminary discussion of the number of subspecies, pages 80-86, in Proceedings of the 1979 Bobcat Research Conference. P. C. Escherich and L. Blum, eds. Science and Technology Series 6, National Wildlife Federation, Washington, D.C.
          Tigas, L. A., D. H. Van Vuren, and R. M. Sauvajot. 2002. Behavioral responses of bobcats and coyotes to habitat fragmentation and corridors in an urban environment. Biological Conservation, 108:299-306.
          Wilson, D. E., and S. Ruff. 1999. The Smithsonian Book of North American Mammals. Smithsonian Institution Press, Washington D.C.
          Woloszyn, D., and B. W. Woloszyn. 1982. [The Mammals of Sierra de La Laguna Baja California Sur.] Consejo Nacional de Ciencia y Tecnología, Mexico (in Spanish).
          Woolf, A., and G. F. Hubert, Jr. 1998. Status and management of bobcats in the United States over three decades: 1970s-1990s. Wildlife Society Bulletin, 26:287-293.
          Author
          The primary author of this proposed rule is Dr. Javier Alvarez, Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 750, Arlington, Virginia 22203.

          List of Subjects in 50 CFR Part 17
          Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

        Proposed Regulation Promulgation
        Accordingly, we hereby propose to 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; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

            § 17.11
            [Amended]
            2. Amend § 17.11 (h) by removing the entry “Bobcat, Mexican” under MAMMALS from the List of Endangered and Threatened Wildlife.

            Dated: April 27, 2005.
            Matt Hogan,
            Acting Director, Fish and Wildlife Service.

      [FR Doc. 05-10002 Filed 5-18-05; 8:45 am]
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