Fish and Aquatic Conservation

Categorical Exclusion for Injurious Wildlife Listings (posted July 1, 2013)

Asian carp

The U.S. Fish and Wildlife Service (Service) is proposing to add a categorical exclusion to the existing exclusions in the Department of the Interior’s Department Manual. The Service published a notice in the Federal Register to explain the proposed exclusion and to solicit public comments. Photo Caption: Silver carp leap out of the river when disturbed by boats, causing hazards to boaters. Silver carp were listed as injurious in 2007, almost 5 years after we received a petition to list them. Having a categorical exclusion would have helped reduce that listing preparation time. Credit: Chris Olds/USFWS 

News Release

Federal Register Notice Announcing Reopening of Public Comment Period (second reopening)
(January 22, 2014)

Federal Register Notice (July 1, 2013)

Federal Register Notice Announcing Reopening of Public Comment Period (August 16, 2013)

Please note : We received more than 5,000 public comments on our email address "prevent_invasives@fws.gov" and that were mailed or hand-carried to the Fish and Wildlife Service. We were not able to post them on this webpage in a way that would be user-friendly to view. Therefore, to make the public comments easily accessible to the public, we have taken the public comments that we received from our email address "prevent_invasives@fws.gov" and those that were mailed or hand-carried to the Fish and Wildlife Service and posted them on "www.regulations.gov" under Docket ID: FWS-HQ-FAC-2013-0118 .
http://www.regulations.gov/#!docketDetail;D=FWS-HQ-FAC-2013-0118

Important Clarifying Information on the Categorical Exclusion
The Service wants to clarify that the proposed categorical exclusion would not replace the rulemaking process. If a rule is appropriate for a categorical exclusion, the difference in the rulemaking process is that a proposed or final rule would not have an environmental assessment (EA) as one of the supplemental documents, nor would it have a finding that corresponds to the EA (such as a “FONSI”). All other aspects of the rulemaking process under the Administrative Procedure Act would still be required and would be followed. Our rules would still document our injurious evaluation process, we would still complete all of the required determinations (including Executive Order 12866), and our proposed rules would still provide for a public comment period. We would still address environmental and economic aspects in our rules. Our proposed and final rules will be published in the Federal Register, and supplemental documents as needed will be made available to the public.  

What is a categorical exclusion?
A categorical exclusion is a class of actions under the National Environmental Policy Act (42 U.S.C. 4321 et seq., NEPA) that do not individually or cumulatively have a significant effect on the human environment. Under NEPA, Federal agencies are required to consider the potential environmental impact of agency actions prior to implementation. Agencies are then generally required to prepare either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). However, when a Federal agency identifies classes of actions that under normal circumstances do not have a potentially significant environmental impact, either individually or cumulatively, the Council on Environmental Quality (CEQ) regulations allow the agency to establish a categorical exclusion and to bypass the completion of an EA or an EIS when undertaking those actions.

Why is the Service seeking a categorical exclusion?
When appropriately established and applied, categorical exclusions serve a beneficial purpose. They allow Federal agencies to expedite the environmental review process for proposals that typically do not require more resource-intensive EAs or EISs. The Service recognizes that the current process of listing species as injurious under the Lacey Act (18 U.S.C. 42, as amended) has aspects that are inefficient and counterproductive to our mission of safeguarding our natural resources. Our listing process can take several years, and in that period, a species that could have been stopped at the border could become irreversibly invasive. Therefore, the Service is seeking to refine the listing process by identifying steps of the process that could be improved.

One step that the Service examined is the NEPA requirements. We coordinated with the Department of the Interior’s Office of Environmental Policy and Compliance (OEPC) and with CEQ, and we determined that an EA or EIS is generally not needed for the action of listing species as injurious.

What exactly is this categorical exclusion for?
The proposed categorical exclusion would be added to the Department Manual as: “The adding of species to the list of injurious wildlife regulated under 50 CFR subchapter B, part 16, which prohibits the importation into the United States and interstate transportation of wildlife found to be injurious.”  In other words, neither an EA nor an EIS would be required for the regulatory listing action that places a species on a prohibited list under 50 CFR 16, which prohibits their importation into the United States and across State borders. Thus, the activities covered under the categorical exclusion are simply to keep species out of the country that are injurious or to prevent their spread across State lines. Therefore, the action should have no effect on the human or natural environment, because the species being listed are not naturally found there.

Where can I submit my comments?

Please read the Notice in the Federal Register for instructions for submitting public comments.

Where can I find more information?

  • Final guidance from CEQ published in Federal Register (December 6, 2010) at http://www.gpo.gov/fdsys/pkg/FR-2010-12-06/pdf/2010-30017.pdf

  • Previous Environmental Assessments (EA) and Findings of No Significant Impact (FONSIs): An EA was prepared for each of the following injurious listings, in accordance with NEPA.  Each EA resulted in a FONSI—in other words, the action was not a major Federal action under the National Environmental Policy Act.
  1. Raccoon Dog (Nyctereutes procyonoides)
    Environmental Assessment and FONSI

  2. Mitten Crabs (Genus Eriocheir)
    Final Rule (54 FR 22286 May 23, 1989)
    Environmental Assessment and FONSI not available

  3. Brown Tree Snake (Boiga irregularis)
    Final Rule (55 FR 174390, April 25, 1990)
    Environmental Assessment and FONSI not available

  4. Silver Carp (Hypophthalmicthyes molitrix)
    Environmental Assessment
    FONSI

  5. Largescale Silver Carp (Hypophthalmicthyes harmandi)
    Environmental Assessment
    FONSI

  6. Black Carp (Mylopharyngodon piceus)
    Environmental Assessment
  7. FONSI

          7, 8, 9, and 10. Large Constrictor Snakes
              Burmese Python (Python molurus)
              Northern African Python (Python sebae)
              Southern African Python (Python natalensis)
              Yellow Anaconda (Eunectes notaeus)
              Environmental Assessment
              FONSI

NOTE: Bighead carp (Hypophthalmichthys nobilis) was listed by Congress by statute and thus no environmental assessment was required.

Last updated: January 22, 2014