reviewed by the Director may include, but are not limited to, scientific or commercial publications, administrative reports, maps or other graphic materials, information received from persons expert on the subject, and comments from interested parties. Prior to proposing a rule to list or remove a species, the Director shall conduct a review of the status of the species.

§ 424.14 Petitions.

(a) Any interested person may submit a petition to the Director to review the status of any species with a view to taking one of the actions described in § 424.10. Such petitions must be in writing, contain the date submitted, and the name, signature, address, telephone number, and the association, institution, or business, if any, represented by the petitioner. The Director shall acknowledge in writing receipt of the petition within 30 days.

(b) The Director shall determine whether substantial evidence has been presented in support of the measure recommended by a petitioner. "Substantial evidence" is that amount of evidence that would lead a reasonable person to conclude that the measure proposed in the petition is warranted. In making this determination the Director shall consider whether the petition:

(1) Clearly indicates the administrative measure recommended, the scientific and any common name of the species involved, and if appropriate, the precise area recommended as Critical Habitat;

(2) Contains detailed narrative justification for the recommended measure, describing, based on available information, the past and present numbers and distribution of the involved species, the particular threats confronting the species, and the features and importance of any recommended Critical Habitat;

(3) Indicates any beneficial or adverse effect on the species of designating Critical Habitat;

(5) Is accompanied by appropriate supporting documentation such as a list of bibliographic references, reprints of pertinent publications, copies of written reports or letters from authorities, and maps, as appropriate.

(c) If the Director finds that substantial evidence has not been presented, the petition shall be denied and the petitioner shall be so notified and advised of the reasons for denial within 90 days. If the petitioner proposes to list, delist, or change the status of a species and the Director finds that substantial evidence has been presented in such petition, the Director shall:

(1) Promptly publish a notice in the FEDERAL REGISTER announcing such determination, (2) conduct and publish in the FEDERAL REGISTER a status review of the species that is the subject of the petition within 90 days of receipt of the petition and (3) indicate at the time the status review is published how the Service intends to proceed with respect to the listing, delisting, or reclassifying of the species.

(d) If the petition relates only to Critical Habitat or a special rule for the conservation of a species, the Director will promptly conduct a review in accordance with the Administrative Procedure Act (5 U.S.C. 553) and respective departmental regulations and take appropriate action.

§ 424.15 Notices of review.

If the Director finds that one of the actions described in § 424.10 may be warranted, but that the available evidence is not sufficiently definitive to justify proposing the action, he may publish a notice of review in the FEDERAL REGISTER. The notice of review will describe the measure under consideration, briefly explain the reasons for considering the action, and solicit comments and additional information on the action under consideration. At the time of publication of the notice, notification in writing shall be sent to the Governors of any affected States and the governments of any foreign countries in which the subject species normally occurs. If a Critical Habitat area is involved in the review, notification will also be sent in writing to any

Federal agencies and local governments with jurisdiction over lands or waters under consideration and to all general local governments within or adjacent to the potential Critical Habitat.

§ 424.16 Proposed rules-general.

(a) Based on the initial review conducted pursuant to § 424.14(c), § 424.15, § 424.20, or on other information that the Service has obtained, the Director may propose revising the lists as described in § 424.10.

(b) Procedures-(1) Content of proposed rule. A proposed rule promulgated to carry out the purposes of the Act will be published in the FEDERAL REGISTER. These proposals will include the complete text of the proposed rule, a summary of the data on which the proposal is based (including, when appropriate, citation of pertinent information sources), and the relationship of such data to the proposed rule. Rules proposing the listing, delisting or reclassifying of a species or the designation of Critical Habitat will also include a summary of factors affecting the species and a description of the anticipated effects of the rulemaking if finalized in proposed form.

(2) Period for public comments. At least 60 days will be allowed for public comment following publication in the FEDERAL REGISTER of a rule proposing the listing, reclassifying, or removal of a species. Except as provided under § 424.17(b)(2), all other proposed rules will be subject to a comment period of at least 30 days following the publication in the FEDERAL REGISTER.

(3) Notification of and comment by governors of affected states and governments of foreign countires. For proposed rules to list, delist or reclassify a species the Director shall give notice of any proposed rule in writing through the Department of State to the governments of any foreign countries in which the subject species normally occurs or whose citizens harvest such species from the high seas. With respect to resident species of fish and wildlife the Director shall give notice of any proposed rule in writing to the Governors of the States in which the subject species normally occurs. The Governor(s) so contacted will be al

lowed 90 days after notification to submit comments and recommendations on the proposed rule except to the extent that such period is shortened by agreement between the Director and Govenor(s) concerned.

(4) Offer for publication. For rules proposing the listing, delisting or reclassifying of species or designating Critical Habitat the Director shall offer the substance of the FEDERAL REGISTER notice proposing the rule for publication in appropriate journals or newsletters of the scientific communi

ty.

(5) Public meetings on proposals not involving Critical Habitat. If the rule proposes to list, delist or change the status of a species and does not specify Critical Habitat, the Director shall promptly hold a public meeting on the proposed rule within or adjacent to the area in which the species is located, if a request for such a meeting is made in writing by any person to the Director within 45 days after the date of publication of the proposal in the FEDERAL REGISTER. The specific locations and times of such meetings will be determined by the Director and published in the FEDERAL REGISTER.

§ 424.17 Proposed rules-additional procedures for Critical Habitat.

(a) In addition to the general procedures for proposed rules in § 424.16, there are additional requirements for proposals involving Critical Habitat.

(b) Procedures-(1) Additional content of proposed rule. The proposed rule will contain a map of the proposed Critical Habitat and will, to the maximum extent practicable, be accompanied by a brief description of those activities (whether public or private) that might occur in the area and, in the opinion of the Director, may adversely modify such habitat or may be affected by designating the area as Critical Habitat.

(2) Period for public comments. At least 60 days will be allowed for public comment following publication in the FEDERAL REGISTER of a proposal involving Critical Habitat.

(3) Public meetings or hearings. If a proposed rule includes Critical Habitat, the Director shall hold a public

meeting on the proposal within the area in which such Critical Habitat is located in each State. The specific locations and times of such meetings shall be determined by the director and published in the FEDERAL REGISTER. A public hearing shall be held after the public meeting in each State in which such habitat is proposed, if requested in writing no later than 15 days after a scheduled public meeting. Requests for a public hearing must be addressed to the Director. A public hearing will be held promptly but not sooner than 15 days after notice of the hearing is given unless good cause is shown. The Director may conduct a public hearing on his own motion.

(4) Other notifications and notices. When the proposed rule involves Critical Habitat, the Director shall: (i) Notify in writing any Federal agencies with jurisdiction over lands included in the area under consideration; (ii) publish a summary of the proposed rule (including a source of further information and a map of the Critical Habitat) in a newspaper of general circulation within or adjacent to such habitat within 30 days of the date of the proposal; and (iii) give actual notice of the proposed rule (including its complete text), draft National Environmental Policy Act documents, and impact analyses prepared on the proposed rule to all general local governments located within or adjacent to the proposed Critical Habitat within 30 days of the date of the proposal. However, any accidental failure to provide actual notice pursuant to paragraph (b)(4)(iii)(c) of this section to all such local governments will not invalidate any Critical Habitat determination.

(5) Consideration of economic and other impacts. (i) Upon determining that the proposal of a particular area as Critical Habitat is appropriate for biological reasons, the Director shall gather economic and other information on impacts associated with the Critical Habitat designation on significant activities in the area, contacting appropriate Federal agencies, States, and other knowledgeable entities.

(ii) The Service may publish a notice of intent or review in the FEDERAL REGISTER prior to proposal of a rule in

(a) Prior to the time of a final rulemaking involving Critical Habitat in the proposal, the Service shall prepare a final impact analysis based upon information the contained in draft impact analysis and that received during the comment period, including information provided at public meetings and hearings. The final impact analysis will analyze and discuss both the beneficial and deterimental economic and other relevant impacts of possible Critical Habitat configurations on significant activities in the area. This analysis will form the basis for the Director's decision as to whether or not to exclude any area from the Critical Habitat. The Director may exclude an area from Critical Habitat upon determining that the benefits of excluding such an area from the Critical Habitat outweigh the benefits of specifying the area as part of the Critical Habitat. However, an area may not be excluded from Critical Habitat if the best scientific and commercial data available show that the failure to designate that area as Critical Habitat will result in the extinction of the species.

(b) After consideration of public comments and the available data, the Director shall either publish a final rule or publish a notice of withdrawal of the proposal in the FEDERAL REGISTER.

(c) Contents of the final rule. A final rule promulgated to carry out the purposes of the Act will be published in the FEDERAL REGISTER. The document will include the complete text of the

rule, a summary of the comments and recommendations received on the proposal (including any 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 the anticipated effects of the rulemaking. Final rules that list, delist or reclassify a species or designate Critical Habitat shall also provide a summary of factors effecting the species. A rule involving a Critical Habitat area will also contain a description of the boundaries of such area and a map of any designated Critical Habitat, and will, to the maximum extent practicable, be accompanied by a brief description of those kinds of activities (whether public or private) that might occur in the area and which, in the opinion of the Director, may adversely modify such habitat or be impacted by designation of the area as Critical Habitat.

(d) Two-year limitation of proposal. A final regulation adding a species to the lists shall be published in the FEDERAL REGISTER not later than two years after the date such rule was proposed. If a final rule is not adopted within this two-year period, the Director shall withdraw the proposed rule and will publish notice of such withdrawal in the FEDERAL REGISTER not later than 30 days after the end of such period. The Director shall not propose a regulation adding to the list any species for which a proposed regulation has been withdrawn under this section unless he determines that sufficient new information is available to warrant the proposal of a rule. Notwithstanding the above provision, the Director may withdraw a proposal voluntarily upon a determination that available information and data do not support the proposal.

(e) Effective date of the final rule. Final rules shall become effective not less than 30 days after their publication in the FEDERAL REGISTER except as otherwise provided for good cause found and published with the rule. A final rule shall become effective no sooner than 60 days after all of the following have occurred: (1) The last public meeting or hearing on the proposal, (2) general notice of the proposal was published in the FEDERAL REGISTER, and (3) notice was given to the

general local governments and a summary published in a newspaper of local circulation, if Critical Habitat was part of the proposal.

[45 FR 13022, Feb. 27, 1980; 45 FR 64195, Sept. 29, 1980]

§ 424.19 Emergency rules.

Sections 424.16, 424.17, and 424.18 notwithstanding, the Director may by regulation take any action described in § 424.10 if such a measure is warranted by the development of a significant risk to the well being of a species of fish or wildlife or plant. Such rules shall, at the discretion of the Director, be effective immediately on publication in the FEDERAL REGISTER. No such action that applies to resident species will be taken until the Director has notified the Governor of the State(s) within which such species is then known to occur. At the time of publication in the FEDERAL REGISTER of the emergency rule, the Director shall give detailed reasons why the rule is necessary. An emergency rule shall cease to have force and effect after 240 days unless the procedures described in §§ 424.16, 424.17 (where appropriate), and 424.18 have been complied with during that period. If at any time after issuing an emergency regulation the Director determines, on the basis of the best scientific and commercial data available to him, that substantial evidence does not exist to warrant such regulations, he shall withdraw it. § 424.20 Periodic review.

At least once every five years the Director shall conduct a review of each listed species to determine whether it should be removed from the list, be changed from an Endangered to a Threatened status, or be changed from a Threatened to an Endangered status. Announcement of which species are under active review will be published in the FEDERAL REGISTER. Notwithstanding this section's provisions, the Director may review any species at any time based upon a petition (see § 424.14) or other data available to the Service.

[45 FR 13022, Feb. 27, 1980; 45 FR 64195, Sept. 29, 1980]

The following definitions apply to terms used in this subchapter.

(1) "Act" means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531, et seq.

(2) "Agency action" means all actions of any kind authorized, funded or carried out, in whole or in part by Federal agencies.

(3) "Alternative courses of action" means all reasonable alternatives, including both no action and alternatives extending beyond original project objectives and acting agency jurisdiction.

(4) "Benefits" means all benefits of an agency action, both tangible and intangible, including but not limited to economic, environmental and cultural benefits.

(5) "Biological assessment" means the report prepared pursuant to section 7(c) of the Act, 16 U.S.C. 1536(c).

(6) "Biological opinion" means the written statement prepared pursuant to section 7(b) of the Act, 16 U.S.C. 1536(b).

(7) "Chairman" means the Chairman of the Endangered Species Committee, who is the Secretary of the Interior.

(8) "Committee" means the Endangered Species Committee established pursuant to section 7(e) of the Act, 16 U.S.C. 1536(e).

(9) "Critical Habitat" refers to those areas listed as Critical Habitat in 50 CFR Parts 17 and 226.

(10) "Destruction or adverse modification" is defined at 50 CFR 402.02.

(11) "Federal agency" means any department, agency or instrumentality of the United States.

(12) "Irresolvable conflict" means, with respect to any action authorized, funded, or carried out by a Federal agency, a set of circumstances under which, after consultation as required in section 7(a)(2) of the Act, completion of such action would violate section 7(a)(2).

(13) "Jeopardize the continued existence of" is defined at 50 CFR 402.02.

(14) "Mitigation and enhancement measures" means measures, including live propagation, transplantation and habitat acquisition and improvement, necessary and appropriate (i) to minimize the adverse effects of a proposed action on listed species or their critical habitats and/or (ii) to improve the conservation status of the species beyond that which would occur without the action. The measures must be likely to protect the listed species or the critical habitat, and be reasonable in their cost, the availability of the technology required to make them effective, and other considerations deemed relevant by the Committee.

(15) "Permit or license applicant" means any person whose application to an agency for a permit or license has been denied primarily because of the application of section 7(a)(2) of the Act, 16 U.S.C. 1536(a)(2).

(16) "Person" means an individual, corporation, partnership, trust, association, or any other private entity, or any public body or officer, employee, agent, department, or instrumentality of the Federal government, of any State or political subdivision thereof, or of any foreign government.

(17) "Proposed action" means the action proposed by the Federal agency or by a permit or license applicant, for which exemption is sought.

(18) "Secretary" means the Secretary of the Interior or the Secretary of Commerce, or his or her delegate, depending upon which Secretary has responsibility for the affected species as determined pursuant to 50 CFR 402.01.

(19) "Service" means the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.

(20) "To the extent that such information is available to the applicant❞ means all pertinent information the applicant has on the subject matter at the time the application is submitted,