Rule2022-15495
Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 21, 2022
Effective
August 22, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
The U.S. Fish and Wildlife Service ("the Service") is rescinding the rule titled "Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat" that published on December 18, 2020, and became effective January 19, 2021. The rule set forth new regulations addressing how we exclude areas of critical habitat under section 4(b)(2) of the Endangered Species Act of 1973, as amended, outlining when and how the Service will undertake an exclusion analysis. This action removes the regulations established by that rule.
Full Text
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<title>Federal Register, Volume 87 Issue 139 (Thursday, July 21, 2022)</title>
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[Federal Register Volume 87, Number 139 (Thursday, July 21, 2022)]
[Rules and Regulations]
[Pages 43433-43447]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-15495]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2019-0115; FF09E23000 FXES1111090FEDR 223]
RIN 1018-BD84
Endangered and Threatened Wildlife and Plants; Regulations for
Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (``the Service'') is
rescinding the rule titled ``Endangered and Threatened Wildlife and
Plants; Regulations for Designating Critical Habitat'' that published
on December 18, 2020, and became effective January 19, 2021. The rule
set forth new regulations addressing how we exclude areas of critical
habitat under section 4(b)(2) of the Endangered Species Act of 1973, as
amended, outlining when and how the Service will undertake an exclusion
analysis. This action removes the regulations established by that rule.
DATES: This final rule is effective August 22, 2022.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final
regulation, are available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-HQ-ES-2019-0115.
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
[[Page 43434]]
SUPPLEMENTARY INFORMATION:
Background
On January 20, 2021, the President issued Executive Order (E.O.)
13990, which, in section 2, required all executive departments and
agencies to review, and to consider revising or rescinding rules
inconsistent with the policy set forth therein, Federal regulations and
actions taken between January 20, 2017, and January 20, 2021. In
support of E.O. 13990, a ``Fact Sheet'' was issued that set forth a
non-exhaustive list of specific agency actions that agencies are
required to review to determine consistency with the policy
considerations articulated in section 1 of the E.O. (See
<a href="http://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a>). Among the agency actions
listed on the Fact Sheet was our December 18, 2020, final rule (85 FR
82376; hereafter referred to as ``the Final Rule'') that established
new regulations addressing how we implement section 4(b)(2) of the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.;
hereafter, ``the Act''). On January 14, 2021 (5 days before the Final
Rule took effect), seven environmental groups challenged it, filing
suit against the Service in Federal district court in Hawaii. Shortly
thereafter on January 19, 2021, 19 States similarly filed suit
challenging the Final Rule in the Northern District of California.
Parties in both cases have agreed to long-term stipulated stays in the
litigation as this rulemaking proceeds.
In our review of the Final Rule pursuant to E.O. 13990, we
evaluated the benefits and drawbacks of the Final Rule, the necessity
of the rule, its consistency with applicable case law, and other
factors. Following our review, we determined that the Final Rule is
problematic because it unduly constrains the Service's discretion in
administering the Act, potentially limiting or undermining the
Service's role as the expert agency and its ability to further the
conservation of endangered and threatened species through designation
of their critical habitats. Therefore, on October 27, 2021, we proposed
to rescind the Final Rule (86 FR 59346). We solicited public comments
on the proposed rule through November 26, 2021. In response to several
requests, we extended the deadline for submission of public comments to
December 13, 2021 (86 FR 67012, November 24, 2021).
In this final rule, we focus our discussion on the comments we
received during the comment period and our consideration of the issues
raised. For background on the statutory and legislative history and
case law relevant to the Final Rule, we refer the reader to the
proposed rule to the Final Rule (85 FR 55398, September 8, 2020). For
our detailed rationale for proposing to rescind the Final Rule, we
refer the reader to the proposed rule to this final rule (86 FR 59346,
October 27, 2021).
After consideration of the information provided through the public
comment process and for reasons outlined in the proposed rule and this
document, we are finalizing the proposal to rescind the December 18,
2020, Final Rule. After the effective date of this rule, the Policy
Regarding Implementation of Section 4(b)(2) of the Endangered Species
Act (16 U.S.C. 1533(b)(2)), which we published jointly with the
National Marine Fisheries Service (NMFS; collectively the Services) on
February 11, 2016 (81 FR 7226) (hereafter ``the Policy''), and the
joint regulations at 50 CFR 424.19, which were set forth by a final
rule that published August 28, 2013 (78 FR 53058) (in this document we
refer to these regulations either as 50 CFR 424.19 or as the ``2013
Rule''), will revert to being the governing rules and standards for any
critical habitat rulemakings that the Service publishes. We note,
however, as discussed below, that one aspect of the rulemakings for the
Policy and the 2013 Rule--the language in the preambles indicating that
decisions not to exclude areas under section 4(b)(2) are committed to
agency discretion and are judicially unreviewable--will no longer be
applicable. We have provided clarification to questions and concerns
below in the responses to public comments.
Rationale for Rescission
In the preamble to the Final Rule, we explained that, in light of
the Supreme Court's decision in Weyerhaeuser Co. v. U.S. FWS, 139 S.
Ct. 361 (2018) (Weyerhaeuser), we needed to revisit certain language in
the preambles for the 2013 Rule and the Policy that asserted that
exclusion decisions are committed to agency discretion and are
therefore judicially unreviewable. For example, in the preamble to the
2013 Rule, the Services had cited case law that supported their
conclusion that exclusions are wholly discretionary and that the
discretion not to exclude an area is judicially unreviewable (78 FR
53072, August 28, 2013). The Services also stated in the preamble to
the Policy that then-recent court decisions resoundingly upheld the
discretionary nature of the Secretaries' consideration of whether to
exclude areas from critical habitat (81 FR 7226, p. 7233; February 11,
2016), and that, although the Services will explain their rationale for
not excluding a particular area, that decision is judicially
unreviewable because it is committed to agency discretion (id. at
7234).
We explained in the Final Rule that the Supreme Court's opinion in
Weyerhaeuser had rendered inaccurate those prior assertions that
decisions not to exclude areas from critical habitat designations are
not judicially reviewable. Although the word ``may'' in the second
sentence of section 4(b)(2) of the Act indicates discretionary
authority and thus the Secretary is not required to exclude areas in
any particular circumstances (16 U.S.C. 1533(b)(2)), it was clear from
the Court's decision in Weyerhaeuser that courts may review decisions
not to exclude for abuse of discretion under section 706(2) of the
Administrative Procedure Act (APA, 5 U.S.C. 706(2)). 139 S. Ct. at 371.
The Final Rule summarized the effect of the Court's opinion in
Weyerhaeuser as having underscored how important it is for the Service
to be deliberate and transparent about how we go about making exclusion
decisions. The Final Rule further explained that the Service's
objective in promulgating the rule was to provide that ``transparency,
clarity, and certainty to the public and other stakeholders'' (85 FR
82376, p. 82385; December 18, 2020).
During the comment period for the 2020 proposed rule, we received
numerous public comments that provided both support and opposition for
many of the provisions included in that proposed rule (85 FR 55398,
September 8, 2020). At that time, we considered all of the comments and
decided that finalization of the Final Rule was a permissible policy
decision. In issuing the Final Rule, we concluded that the criticisms
brought forth by commenters were not sufficient to change our approach
in that rulemaking.
We acknowledge that we are now persuaded that many of the
commenters' criticisms regarding the Final Rule are valid, and we are
including some of those same criticisms as part of our support for
rescinding the Final Rule. We have reconsidered the Final Rule and
considered public comments and we have now changed our policy view of
the best way to strike the appropriate balance between transparency and
predictability on the one hand, and flexibility and discretion on the
other. We now find that the Final Rule is problematic for three
overarching reasons: it limits or undermines the Service's role as the
expert agency; it constrains the Service's discretion, thus decreasing
the agency's
[[Page 43435]]
ability to further the conservation of endangered and threatened
species through designation of their critical habitats; and it does not
further the goal of providing clarity and transparency and instead
creates confusion. We provide further explanation below as to why we
have concluded that implementation of the Policy and the regulations at
50 CFR part 424.19 is preferable to the Final Rule.
In the proposed rule we provided rationale for rescinding each of
the following provisions of the Final Rule: the statement that we will
always undertake a discretionary exclusion analysis whenever a
proponent of an exclusion provides credible information supporting the
exclusion; the generic prescription for weighing impacts; the statement
that we will always exclude areas from a critical habitat designation
whenever the benefits of exclusion outweigh the benefits of inclusion;
the treatment of Federal lands; and the enumeration of factors to
consider under section 4(b)(2) of the Act. Having reconsidered our
reasoning for rescinding each of these provisions in light of the
public comments we received on the proposed rule (86 FR 59346, October
27, 2021), we reaffirm our conclusions with respect to each of these
provisions. For the specific reasons set forth below and our detailed
rationale in our proposed rule, the Service now concludes that
rescinding the Final Rule and resuming implementation of 50 CFR 424.19
and the Policy will better enable the Service to ensure conservation of
endangered and threatened species and the ecosystems on which they
depend, as mandated by the Act.
First, the Final Rule potentially limits or undermines the
Service's role as the expert agency responsible for administering the
Act because it potentially gives undue weight to outside parties in
guiding the Secretary's statutory authority to exclude areas from
critical habitat designations. Through the Secretary, Congress
delegated the authority to designate critical habitat for listed
species to the Service. Section 4(b)(2) of the Act sets out some of the
responsibilities and steps that this authority entails, including
evaluating information about the economic, national security, and other
relevant impacts of designating particular areas as critical habitat;
determining which among competing data on potential impacts is
reliable; weighing the impacts of designation against the benefits of
designating those areas and determining the weight that each should
receive in the analysis; and making exclusion decisions based on the
best scientific and commercial data available. The Final Rule
potentially limits the Service from fulfilling aspects of this role by
giving parties other than the Service, including proponents of
particular exclusions, an outsized role in determining whether and how
the Secretary will conduct exclusion analyses. This undue reliance on
outside, and potentially directly affected parties in certain aspects
of the process interferes with the Secretary's authority to evaluate
and weigh the information provided by those parties in the course of
determining what specific areas to designate as critical habitat for a
species.
Second, the rigid ruleset established by the Final Rule, in all
situations regardless of the specific facts, as to when and how the
Secretary will exercise the discretion to exclude areas from critical
habitat designations constrains the Service's discretion, thus
decreasing the agency's ability to further the conservation of
endangered and threatened species through designation of their critical
habitats. Although the preamble and response to comments in the Final
Rule refer to using the best available information and factoring in the
case-specific information to support exclusion analyses, the regulatory
text mandates a rigid process for when the Secretary will enter into an
exclusion analysis, how weights are assigned to impacts, and when an
area is excluded. Therefore, implementing the Final Rule undermines the
Service's ability to further the conservation of the species because
the ruleset applies in all situations regardless of the specific facts
at issue or the conservation outcomes. We now recognize that
implementing the Final Rule would result in competing and potentially
conflicting legal requirements when we undertake an exclusion analysis.
In section 4(b)(2) of the Act, Congress vested in the Secretary the
authority and responsibility to assign weights to the impacts of
designating particular areas as critical habitat. Automatically
assigning weights based on information from parties other than the
Secretary or their chain of command, including from parties that may
have direct economic or other interests in the outcome of the exclusion
analysis, regardless of whether those parties have expert or firsthand
information, is in tension with Congress's decision to place that
authority with the Secretary. Furthermore, the requirement that, unless
we have rebutting information, the Secretary must assign weights to
non-biological impacts based strictly on information from those
entities constrains the Secretary's discretion to use their expert
judgment and mandate to base designations on the best scientific data
available. Prior to the Final Rule, we implemented the Policy and
regulations at 50 CFR 424.19--neither of which set forth a rigid
ruleset regarding the level of information needed for us to consider
excluding areas, the weight we would assign to the information about
impacts of designation, or any requirement to exclude areas under
certain circumstances. The Service now recognizes that this approach
achieved the balance that Congress sought when it enacted section
4(b)(2), furthering the conservation of the species while still
allowing for exclusions of particular areas when the benefits of
exclusion outweighed the benefits of inclusion.
Finally, we find that the Final Rule does not accomplish the goal
of providing clarity and transparency. Section 4(b)(2) of the Act
requires the Service to consider the economic, national security, and
other relevant impacts of critical habitat designations. This
responsibility makes it particularly important that potentially
affected entities, including Federal agencies, Tribes, States, and
other relevant stakeholders have a clear understanding of what
information is relevant to the Secretary's evaluation of impacts of
critical habitat designations and of how that information fits into the
exclusion process. Having different 4(b)(2) regulations from those that
NMFS applies (i.e., 50 CFR 424.19) could result in different outcomes
in analogous circumstances between the two agencies or multiple
possible analyses for species over which the Services share
jurisdiction (e.g., sea turtle species, Atlantic salmon). This
difference poses a significant risk of confusing other Federal
agencies, Tribes, States, other potentially affected stakeholders and
members of the public, and agency staff responsible for drafting
critical habitat designations. We have not identified a science- or
mission-based reason for separate regulations for exclusions from
critical habitat that would outweigh that risk. Thus, it is preferable
for the Service's section 4(b)(2) processes and standards to be
consistent with those of NMFS, and it would not make sense for the
Service to suggest that NMFS should adopt a framework that we are
finding in this rulemaking to be at odds with the purposes, mandates,
and structure of the Act. Therefore, we find that the previous
approach--in which both agencies follow the joint implementing
regulations at 50 CFR 424.19 and the
[[Page 43436]]
Policy--provides greater clarity for the public and Service staff.
We also considered whether to retain any portions of the
regulation. However, the three reasons we identified for rescinding the
Final Rule apply to all portions of the regulation. The three reasons
are because the Final Rule undermines the Service's role as the expert
agency; constrains the Service's discretion and decreases the agency's
ability to further the conservation purposes of the Act; and fails to
add clarity or transparency. As discussed in detail in the proposed
rule, these reasons apply to all four of the key elements of the
regulation--the requirement to undertake an exclusion analysis whenever
a proponent of an exclusion provides credible information; the
prescription for weighing the impacts; the treatment of Federal lands;
and the requirement to exclude any area for which the benefits of
exclusion outweigh the benefits of inclusion (86 FR 59346, 59346-51;
October 27, 2021). Therefore, removing some combination of these
elements and retaining the rest would still constrain the Secretary's
discretion and thereby undermine the Service's role as the expert
agency, decrease the agency's ability to further the conservation
purposes of the Act, and fail to add clarity or transparency.
Even if we revised the standards within any of these elements, the
crux of each element would still be to put in place requirements that
constrain the Secretary's discretion and reduce the Service's ability
to further the conservation purposes of the Act. For example, revising
the ``credible information'' standard for triggering the requirement to
undertake an exclusion analysis would still require the Service to
undertake exclusion analyses in certain circumstances and thus
constrain the agency's discretion to determine whether, based on the
facts specific to each species and each potential exclusion,
undertaking an exclusion analysis does further the conservation
purposes of the Act. Also, replacing the ``credible information''
standard could merely serve to introduce a different new standard that
may decrease clarity like the ``credible information'' standard does.
Additionally, the only other elements of the Final Rule are already
directly addressed even without the regulations--through the Policy and
in some cases the requirements of the Act. For example, paragraphs
(d)(3) and (d)(4) of the Final Rule are almost entirely identical to
sections 3 and 2, respectively, of the Policy. Therefore, if we were to
remove all other parts of the Final Rule and retain paragraphs (d)(3)
and (d)(4), that new regulation would not add any additional clarity;
would be duplicative of, and potentially inconsistent with, those
elements in the Policy; and would be confusing for the public as to
which standards apply to each aspect of the Service's exclusion
analyses. Furthermore, paragraph (a) of the Final Rule includes non-
exhaustive lists of economic impacts and other relevant impacts.
Regardless of whether these lists are in regulation, we are required by
the Act to consider impacts in these categories. Including these
elements in a revised regulation in part or in whole would not change
the Service's consideration of impacts under section 4(b)(2) of the
Act.
The Final Rule was unnecessary for achieving its intended purpose
of increasing clarity and transparency to the public regarding when and
how we will exclude areas. The Weyerhaeuser decision made clear that we
need to explain decisions not to exclude areas from critical habitat,
and even before that decision, we acknowledged in the preamble to the
Policy that we would do so (81 FR 7234; February 11, 2016) (``If the
Services do not exclude an area that has been requested to be excluded
through public comment, the Services will respond to this request.
However, although the Services will explain their rationale for not
excluding a particular area, that decision is committed to agency
discretion.''). Therefore, we will always explain our decisions not to
exclude particular areas for which exclusion has been requested. Our
explanation will take into account the best scientific data available,
including the strength of the information provided by the proponent in
support of the exclusion. Although we stated in the Final Rule that
Weyerhaeuser (and the accompanying need for clarity and transparency
about the analyses underlying our exclusion and non-exclusion
decisions) was, in part, its impetus, we will always explain our
decisions not to exclude particular areas for which exclusion has been
requested, even without the Final Rule in place. The Policy and the
regulations at 50 CFR 424.19 already provided sufficient detail
regarding the analyses we undertake when considering and conducting
exclusions, and we have now concluded that the Final Rule was
unnecessary and that it increased confusion and decreased clarity by
articulating an approach that differed from both NMFS's approach and
the jointly promulgated Policy.
Because we have made the decision to rescind the Final Rule, the
Policy and joint regulations are no longer superseded, and the
Service's critical habitat and exclusions decisions will follow the
Policy and comply with the regulations at 50 CFR 424.19. In adopting
the specific changes to the regulations in this document and setting
out the accompanying clarifying discussion in this preamble, the
Service is adopting prospective standards only. Nothing in this
rescission is intended to require that any previously finalized
critical habitat designations or exclusion decisions be reevaluated on
the basis of this final decision.
Summary of Comments and Responses
In our proposed rule published on October 27, 2021 (86 FR 59346),
we requested public comments on the provisions of the proposed rule.
After considering several requests for extensions of the public comment
period beyond the original 30 days, we decided to extend the comment
period an additional 15 days to December 13, 2021. During the public
comment period, we received a request for public hearings. However,
public hearings are not required for regulation revisions of this type,
and we elected not to hold public hearings.
By the close of the public comment period on December 13, 2021, we
had received approximately 29,000 public submissions. We received
comments from a range of entities, including individual members of the
public, States, Tribes, industry organizations, legal foundations and
firms, and environmental organizations. The vast majority of the
comments (~28,800) were similar statements from individuals indicating
their general support for rescission of the rule.
We reviewed and considered all public comments prior to developing
this final rule. We provide summaries of substantive comments and our
responses below; we combined similar comments where appropriate. We did
not, however, consider or respond to comments that are not relevant and
are beyond the scope of this particular rulemaking. For example, we did
not discuss and respond to comments regarding our joint proposed rule
with NMFS to rescind the regulatory definition of ``habitat'' (see 86
FR 59353, October 27, 2021). We also received comments that we should
revise certain parts of 50 CFR 424.19 (e.g., revisiting the incremental
approach to considering economic impacts of a critical habitat
designation; defining economic impact), and certain portions of the
Policy (including the treatment of conservation agreements and habitat
conservation plans; revising the approach to treatment of Federal
lands; requiring
[[Page 43437]]
formal documentation of exclusion analyses for each designation; and
formalizing coordination with relevant State wildlife management
agencies, Tribes, and local governments when undertaking a designation
of critical habitat). Revising the joint implementing regulations at 50
CFR 424.19 or the Policy is outside the scope of this specific Service-
only action.
Comment 1: Commenters stated that the proposed rule is arbitrary
and capricious because the Service did not provide a substantive,
reasoned explanation for the change of position from the Final Rule.
Response: We acknowledge the well-established principle that
agencies must provide a reasoned explanation for its changes in
position. E.g., Coalition, 2022 WL 1073346, at 12 (citing Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016)). We have satisfied
that requirement in this final rule and in the proposed rule. We refer
the commenters to the proposed rule section ``Rationale for
Rescission'' and the summary in this final rule, both of which set
forth our detailed explanation for rescinding the Final Rule. To
summarize, we now find three ways in which the Final Rule is
problematic. First, it potentially limits or undermines the Service's
role as the expert agency responsible for administering the Act because
it potentially gives undue weight to outside parties in guiding the
Secretary's statutory authority to exclude areas from critical habitat
designations. Second, it constrains the Service's discretion because it
employs a rigid ruleset in all situations regardless of the specific
facts as to when and how the Secretary will exercise the discretion to
exclude areas from critical habitat designations. Finally, it does not
accomplish our previously stated goal of providing clarity and
transparency.
Comment 2: Commenters stated that rescinding the Final Rule will
negatively affect those who might make decisions in reliance on
application of the Final Rule now (e.g., third parties having reliance
interests).
Response: The Final Rule became effective on January 19, 2021. On
January 20, 2021, the President issued E.O. 13990 and an associated
Fact Sheet with a non-exhaustive list of agency actions, directing the
Services to review the Final Rule and other regulations. The Service
publicly announced on June 4, 2021, that they would propose to rescind
the Final Rule. In the proposal to rescind the rule, we did not
identify any affected reliance interests because we were unaware that
any existed, especially due to the rule's limited practical
applicability and the limited time it has been in effect.
Although several commenters expressed the possibility that there
may have been reliance on the Final Rule, none provided any specific
examples of actual reliance, nor did any articulate why such reliance
would have been reasonable given the limited time that elapsed between
the Final Rule's effective date and when it was identified for
reconsideration. The Final Rule has been in place for a relatively
short time and has a potential applicability on a small number of
critical habitat designations. We did not identify any instances of a
third party making a decision relying on application of the Final Rule
with outcomes anticipated to be different than if we relied on the
regulations at 50 CFR 424.19. Even if there has been reliance on the
Final Rule, any information gathered by proponents of an exclusion and
submitted to the Service after the Final Rule is rescinded would be
fully considered under 424.19 regulations and the Policy. Therefore, we
conclude that rescinding the Final Rule and resuming implementation of
the regulations at 424.19 and the Policy will not affect any reliance
interests.
Comment 3: Commenters suggested that in proposing the rescission,
the Service did not allow sufficient time for implementation and
evaluation of the effects of the regulation. The Service did not
provide examples of how the Final Rule has constrained the agency
discretion or led to decisions that are contrary to the Act or other
Federal policy. Furthermore, the Service's rationale for rescission is
largely unsupported, inconsistent with the Act, and is not capable of
being ``ascribed to a difference in view or the product of agency
expertise.''
Response: We acknowledge that the Final Rule has been in place for
a relatively short time and only has a potential bearing on the
potentially limited set of designations where there is a factual basis
to support exclusions of particular areas. Nevertheless, although there
has been limited opportunity for the Service to provide tangible
examples of how this regulation has affected a particular designation,
we do not need to wait until we have evidence of such effects in order
to rescind the Final Rule that we now conclude was ill-advised. The
Federal Government does not require that regulations must have been in
place for a period of time for an agency to have the authority to
rescind them, nor must an agency provide examples of when a regulation
caused confusion. Rather, the standard for rescinding previous
regulations is the same standard as for promulgating new regulations,
and we have met that standard--making a reasonable decision and
providing an explanation for the decision that draws a rational
connection between the facts found and the decision made.
Executive Order 13990, issued on January 20, 2021, provided the
impetus for our review of the Final Rule. We are rescinding the Final
Rule on the basis of our legal authority under the Act (16 U.S.C. 1531
et seq.). We have provided a rational explanation in the proposed rule
and in this document detailing the multiple reasons why we are
rescinding the Final Rule. After reviewing the regulation and its
preamble, we find the Final Rule to be problematic because it unduly
constrains the Service's discretion in administering the Act,
potentially limiting or undermining the Service's role as the expert
agency. We also found that the rigid rule sets in the Final Rule
constrain the Service's ability to further the conservation of
endangered and threatened species through designation of their critical
habitats. Moreover, rather than providing clarity and transparency, the
Final Rule introduces additional confusion. Because these shortcomings
cannot be addressed by putting further effort into revising the Final
Rule, we have determined that it is in the best interests of
stakeholders and for the conservation purposes of the Act to minimize
the time that the Final Rule is in effect by swiftly rescinding it.
Comment 4: Commenters noted that, in their opinion, the Final Rule
greatly increased transparency of the exclusion process because it gave
substance to the Service's decisionmaking process and allowed Federal
agencies, Tribes, States, and other stakeholders to know how the
Service will weigh factors when considering exclusion from critical
habitat. Further, commenters stated that one benefit of the Final Rule
was helping to ensure that the Service provides sufficient
justification for exclusion decisions, and the Service has not
explained how making the process more difficult to follow by returning
to the Policy would address the Service's concerns about needing to be
more ``deliberate and transparent'' in decisionmaking regarding
exclusions from critical habitat. Additionally, commenters stated that,
if the Final Rule is rescinded, regulatory transparency will be
reduced, and this situation would be inconsistent with the Supreme
Court ruling in Weyerhaeuser because decisions regarding exclusion
would be shrouded by agency discretion until and unless a party seeks
judicial review. Additionally, counter to the Supreme
[[Page 43438]]
Court ruling, the Policy specifically states that decisions not to
exclude particular areas from critical habitat are committed to agency
discretion and therefore not subject to judicial review.
Response: As described above, we will resume implementation of the
Policy and 50 CFR 424.19, which set forth a stepwise approach to
conducting the mandatory considerations of the economic impact, the
impact on national and homeland security, and other relevant impacts of
the designation of critical habitat without unduly constraining the
Service's discretion as to when to exclude areas under section 4(b)(2)
of the Act. The primary focus of the Policy describes how we consider
``other relevant impacts,'' including conservation plans and
partnerships, when designating critical habitat, which is similar to
how the Final Rule addressed these issues. Because the Policy does not
limit our consideration of information in an exclusion analysis, it
allows us to consider any fact pattern for exclusion that may be raised
by commenters, including the categories of ``other relevant impacts''
defined by the Final Rule. By removing the Final Rule, we are not
removing our responsibility to evaluate information and make a rational
decision regarding exclusion of particular areas. Nor will rescission
of the Final Rule result in less transparency or inconsistency with
Weyerhaeuser, as the commenter asserts. Rather, we will continue to
critically evaluate information presented by proponents of exclusion
and will decide whether to enter into a discretionary exclusion
analysis based on reasonable and reliable information regarding
potential impacts of designating critical habitat. Finally, even though
the Policy states that decisions not to exclude are not reviewable, we
recognize the Supreme Court's ruling in Weyerhaeuser, and we will
continue to explain our decisions not to exclude particular areas from
designations of critical habitat for which exclusion has been
requested.
Comment 5: Commenters noted that if, as the Service claims, the
phrase ``credible information'' is vague, then in comparison the phrase
``best available information'' is no clearer. Additionally, contrary to
the rationale in our proposal to rescind the Final Rule, there is
nothing vague about commonly understood terms. Commenters also noted
that there was no discussion of the ``confusion'' noted in the proposed
rule, but there should be, including who was confused, whether the
confusion was resolved, and whether it was well-founded.
Response: The phrase ``credible information'' is only part of the
regulatory language included in Sec. 17.90(c)(2)(i) of the Final Rule,
and the entirety of what we refer to as the ``credible information
standard'' is: ``credible information regarding the existence of a
meaningful economic or other relevant impact supporting a benefit of
exclusion for that particular area.'' We find multiple parts of this
standard to be vague. For instance, ``a benefit of exclusion'' could be
interpreted to mean almost anything to a proponent of an exclusion,
which we find to be unhelpful and vague as the basis for the standard
to judge whether the Service should enter into the discretionary
exclusion analysis. In addition, the word ``meaningful'' is subjective
and open-ended in this context.
We do not mean to suggest that any degree of vagueness is
disqualifying for regulatory language. But when the stated goals of a
regulation include clarity and transparency, the degree of vagueness is
at least relevant to considering the efficacy of the regulation. We do
not agree that the phrase ``best scientific data available'' is as
vague as the phrase ``credible information regarding the existence of a
meaningful economic or other relevant impact supporting a benefit of
exclusion for that particular area.'' The phrase ``best scientific data
available'' is the standard in the Act that applies to the designation
of critical habitat, and numerous court decisions have clarified what
constitutes the best scientific data available. The courts have made
clear, for example, that the phrase ``on the basis of the best
scientific data available'' establishes a standard that ``prohibits
[the Service] from disregarding available scientific data that is in
some way better than the evidence it relies upon''; the standard also
allows the Service to rely on data that qualifies as the best
scientific data available even if that data is quite inconclusive.
E.g., Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th
Cir. 2006); City of Las Vegas v. Lujan, 891 F.2d 927, 933 (D.C. Cir.
1989); Southwest Center for Biological Diversity v. Babbitt, 215 F.3d
58, 60 (D.C. Cir. 2000).
Upon our review of the Final Rule, we determined that establishing
a new information standard that could be interpreted differently from
the standard in the Act does not meet our stated goal of transparency
and clarity. The Service has a long-standing track record of basing our
classification decisions and critical habitat designations on the best
scientific and commercial data available, and we find that it is
unnecessary and confusing to define a separate information standard for
the purposes of section 4(b)(2) exclusion analyses.
Comment 6: Commenters stated that the ``credible information''
standard appropriately placed the burden on the Service for evaluation
of information used in exclusion analyses and that the Final Rule
properly ensures evaluation of exclusions where credible information is
presented. Furthermore, commenters noted that if, as the Service
claims, even without the Final Rule the Service is already required to
consider reasonable information presented by a proponent of an
exclusion, there would be no additional burden of considering that
information under the ``credible information'' standard. The Service
appears to misread both the Act's data standard as well as the Final
Rule's ``credible evidence standard'' when asserting that the credible
information standard is in conflict with the Act's best scientific and
commercial data available standard.
Response: We agree with the commenter that we must assess
information submitted in support of a potential exclusion regardless of
whether the Final Rule is rescinded. While the Policy does not contain
a requirement to consider and evaluate information submitted in support
of exclusions, we will always evaluate information submitted by
proponents of exclusions as mandated by section 4(b)(2) of the Act to
consider ``other relevant impacts.'' Additionally, the Policy sets
forth general guidelines for considering certain types of information
and establishes a preference for assigning ``great weight'' to certain
types of fact patterns, including demonstrated partnerships, including
those with Tribes; the existence of operative conservation plans
permitted under section 10 of the Act; and national-security and
homeland-security impacts. The Policy also allows consideration of
other fact patterns that may provide a rational basis by which we may
exclude particular areas of critical habitat.
Furthermore, we are aware that, under the Weyerhaeuser ruling, any
time that we make a decision not to exclude a particular area, that
decision will be judicially reviewable for abuse of discretion.
Therefore, in the final rule for any particular critical habitat
designation, we will clearly explain the basis for our decision not to
exclude any particular area for which exclusion has been requested. The
commenter asserts that we misread the Act's data standard, as well as
the Final Rule's ``credible
[[Page 43439]]
evidence'' standard; however, we did not use the phrase ``credible
evidence'' (the term in the regulation is ``credible information'') and
have only described the ``best scientific data available'' standard as
the one that applies to the process of designations of critical
habitat. We did not state that the ``credible information'' standard
conflicts with the ``best scientific data available''; rather, we
stated that having a different, and vague, standard is not helpful, nor
does it increase transparency.
Comment 7: Commenters stated that, even with the provision of the
Final Rule giving weight to economic and other non-scientific analyses
consistent with the weights described by exclusion proponents, there
would be no impact on the Service's evaluation of scientific or
biological information. They asserted that, contrary to the position of
the proposed rescission rule, the Final Rule protects the Service's
discretion as to when an exclusion analysis would be undertaken and
what information would be considered in that analysis. Taken together,
the Final Rule makes clear that the Service is the ultimate arbiter of
whether a particular area should be excluded and retains the Service's
ability to rely on the best scientific data available and even to rebut
non-biological data submitted by outside parties.
Response: The Final Rule provides that the weight given to non-
biological impacts will be consistent with purported expert or
firsthand knowledge unless the Secretary has information to rebut that
weight. We do not agree that the Final Rule protected the Secretary's
discretion as to when an analysis would be undertaken. Because the
credible-information standard in the Final Rule is a low bar, in cases
where a proponent presents any benefit of exclusion, regardless of the
level of impact, the Service would be committing to enter into a
discretionary exclusion analysis absent any information to rebut. And
further, once in the discretionary exclusion analysis, if the analysis
concluded that the benefits of exclusion outweigh benefits of
inclusion, the Service would be committing to exclude that area, unless
the exclusion would result in the extinction of the species. Thus, we
also disagree with the commenters that the regulations taken together
protected discretion as to when we would exclude. We would be required
to weight impacts based on information that outside proponents provide
and then required to exclude any area for which the weight of the
impact is greater, or merely appears greater based solely on the expert
or first-hand information that the proponents provide, than the weight
of the benefits of inclusion. Therefore, it does not logically follow
that the Service would be the ``ultimate arbiter'' of whether a
particular area should be excluded.
Comment 8: Commenters stated that the Service has expertise in a
wide array of biological science disciplines but that the agency does
not have a similar expertise in areas such as economics, finance,
employment, or community planning. This lack of expertise is
demonstrated by the fact that the Service routinely uses outside
contractors to assess the potential economic impact of critical habitat
designations. Commenters also stated that, by rescinding the Final
Rule, the Service is assuming that other entities do not have more
expertise in certain subjects and that the agency is implying that it
alone has the requisite conservation expertise and knowledge of the Act
to support critical habitat exclusions. Similarly, commenters stated
that the Final Rule does not give undue weight to outside parties,
citing the review of information submitted in the petition process as
an example of where the Service already reviews and evaluates
information from outside parties. A commenter stated that Congress
recognized the need for outside coordination with State, Tribal, and
local governments, in particular in section 6 and other provisions,
when drafting the Act.
Response: We acknowledge that we regularly use outside entities to
develop economic analyses of critical habitat designations. We also
routinely seek out expertise from community planners to get the best
available information as it pertains to development projects within
areas that support the conservation of the species. As part of our
normal process, we incorporate all of this information into our draft
economic analysis, and we make it available with the proposed critical
habitat designation for public comment; we further consider any
additional comment and information related to the economic analysis
when we finalize critical habitat rules. When we receive comments and
information from proponents of an exclusion, we always consider their
comments regarding potential impacts from the designation of critical
habitat to their activities or operations. It is our responsibility to
evaluate the information, assign appropriate weights to any impacts in
light of the information we have received, and weigh those impacts
against the benefits of designating any areas as critical habitat so
that we can ensure that critical habitat designations contribute to the
conservation of species and further the conservation purposes of the
Act. We agree with the commenter that Congress recognized the
importance of coordination with State, Tribal, and local governments;
therefore, we make it part of our process to coordinate with
stakeholders throughout the process of designating critical habitat.
Rescinding the Final Rule and resuming implementation of the Policy and
50 CFR 424.19 will not change this important aspect of our process to
designate critical habitat.
Comment 9: Commenters stated that reverting to the Policy does not
remove issues with weighting of impacts because the Policy states the
Service will ``give great weight'' to certain types or categories of
impacts.
Response: The phrasing in the Policy noted by the commenter, ``give
great weight,'' is an indication of how we intend to weight impacts in
those instances. The Policy includes categories of impacts where we
intend to ``give great weight'' to the benefits of exclusion for
situations where we have a general knowledge and experience that the
benefits of exclusion may outweigh the benefits of inclusion. This
phrase intends to be transparent, without being predecisional, about
how we will weight information in the discretionary exclusion analysis.
It also preserves discretion because it specifies that the Secretary
will ``give great weight'' to particular concerns ``in analyzing the
benefits of exclusion.'' In contrast, the Final Rule requires the
Secretary to give a weight that is consistent with purported expert or
firsthand information received from outside parties, which has the
effect of delegating to those outside parties the Service's authority
to weight the specified categories of impacts when we analyze the
benefits of inclusion.
Comment 10: A commenter suggested that by instituting a process for
soliciting and considering outside expertise, the Final Rule
facilitated the requirement in the Act to use the best scientific and
commercial data available in making decisions regarding critical
habitat designations. If the Service rescinds the Final Rule, it would
undercut the statutory mandate to use the best scientific and
commercial data available.
Response: As part of our routine process in designating critical
habitat, regardless of the status of the Final Rule, we consider all
comments and information submitted by proponents of exclusions of
specific areas from critical habitat designations. Rescinding the Final
Rule will not undercut our
[[Page 43440]]
requirement to base our designations on the best scientific data
available (considering the economic, national security, and other
relevant impacts) when making determinations for critical habitat
because we have always solicited information regarding the impacts of
critical habitat designations from stakeholders through the rulemaking
process and will continue to do so in the future.
Comment 11: Some commenters expressed concern that the commitment
to consider non-biological impacts identified by State or local
governments in the Final Rule would no longer be in place if the Final
Rule is rescinded. This outcome would potentially be in tension with
the Act, which states the Secretary is required to ``cooperate to the
maximum extent practicable with the States'' and would discount local
knowledge about impacts. Specifically, a commenter noted that the
current administration's commitment to including traditional ecological
knowledge in Federal decisionmaking is a marked contrast to the
proposed rule's criticism of giving local communities an outsized role
in critical habitat designations.
Response: With the rescission of the Final Rule, we will continue
to consider non-biological impacts identified by State or local
governments or Tribal entities just as we did before the Final Rule was
in place. Section 4(b)(2) of the Act mandates that we consider the
economic and other relevant impacts of designating critical habitat.
Our regulations at 50 CFR 424.19 and the Policy (e.g., provisions 4 and
7) allow us to consider the potential impacts to these entities. To
comply with this mandate, we always conduct an economic analysis of the
proposed designation, which includes, if appropriate, the incremental
impact of a designation of critical habitat to State or local
governments or Tribal entities. In addition, we make our economic
analysis available with the proposed designation of critical habitat
and solicit public comments on both. Through this public notice-and-
comment process, we address all comments received and ensure that we
have considered all relevant impacts, including any impacts to State or
local governments or Tribal entities.
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act'' (June
5, 1997) acknowledges that we consider traditional knowledge (TK) in
Federal land management decisionmaking. Since the issuance of S.O.
3206, we have routinely considered TK in the process of designating
critical habitat. Our use of TK is a matter of using the best available
information to inform our decisionmaking. Rescinding the Final Rule
does not change our commitment to considering impacts identified by
State or local governments or Tribal entities or to following the
guidelines in S.O. 3206.
Comment 12: Multiple commenters disagreed with our proposal to
return to the Policy's approach to treatment of Federal lands in
designations of critical habitat. They further stated that we should
retain the same treatment of lands regardless of ownership, in part
because the Act's requirement to consider economic impacts, the impact
on national security, and other relevant impacts is not limited to
specific land ownership. At least one commenter expressed concern that
the Policy does not provide for non-Federal permittees, lessees, or
contractors to request exclusions based on economic impacts. Some
stated that the Act, other regulations, or courts do not require
Federal land to be designated as critical habitat. Others stated that
we did not provide adequate rationale for the change from the Final
Rule to proposing to adopt the Policy's approach on Federal lands.
Other commenters noted that prioritizing inclusion of Federal lands in
critical habitat was reasonable. Some said that because Federal land
management decisions necessarily have the Federal nexus required to
trigger consultation, a designation on Federal lands is more likely to
result in some benefit to the species. At least one commenter found
this to be reasonable based upon the affirmative duties of Federal land
managers under section 7(a)(1) of the Act.
Response: Upon returning to implementing the Policy, we will
continue to consider the economic impacts, the impacts on national
security, and any other relevant impacts regardless of landownership as
required in the Act. The Policy does not limit what exclusions
proponents may request, nor does it prohibit the Service from excluding
particular areas on the basis of fact patterns not enumerated in the
Policy. Rather, the Policy sets out general principles and
considerations that guide the Service's exclusion analyses. The Policy
states that Federal lands should be prioritized to support the recovery
of species, because there is always a nexus for section 7 consultation
on Federal lands; in addition, by generally not excluding Federal
lands, any real or perceived regulatory burdens on non-Federal lands
can be minimized. However, nothing in the Policy requires that Federal
lands be categorically designated as critical habitat, and the Policy
does not prohibit exclusion of Federal lands. Therefore, depending on
the species-specific and situation-specific facts, we may exclude areas
of critical habitat from designations on Federal lands, but the Policy
indicates that in most cases we would expect that the benefits of
inclusion of Federal lands would be greater than the benefits of
exclusion.
As stated in the proposed rule, the Secretary would retain the
discretion to exclude Federal lands when the factual circumstances
merit it. We find that the approach in the Policy better equips the
Service with the flexibility necessary to account for the wide
variability of circumstances in which the Secretary makes exclusion
decisions--variability in the needs of the species, in the geography
and quality of critical habitat areas, and of land-ownership
arrangements. For example, while the transactional costs of
consultation with Federal agencies tend to be a relatively minor cost
in most situations, and while activities on Federal lands automatically
have a Federal nexus (which usually would require consultation and thus
increase the potential for conservation benefits if those lands are
designated), we have found that in some instances the benefits of
exclusion nevertheless outweigh the benefits of designating those
areas. In those situations when the benefits of excluding Federal lands
outweigh the benefits of designating them as critical habitat, the
Policy provides sufficient discretion for the Secretary to exclude
Federal lands. The rescission of the Final Rule will not change our
mandatory consideration of those impacts on Federal lands. Further,
consistent with Weyerhaeuser, in those situations where we consider
exclusion but do not exclude particular areas, we will explain our
rationale for not excluding particular areas for which exclusion has
been requested. We refer the commenter to the rationale in the proposed
rule and in this final rule, both of which set forth our detailed
explanation for rescinding the Final Rule.
Comment 13: Commenters stated that, prior to the Final Rule, the
Service implemented the Act in a manner that effectively removed the
requirement that the Service consider economic and other impacts of
critical habitat designations. Other commenters disagreed that the
Service's consideration of economic and other factors is at all
discretionary under section 4(b)(2) of the Act. They suggested that,
after conducting a balancing analysis, if the Service
[[Page 43441]]
concludes that the benefits of exclusion outweigh those of inclusion,
then the reasonable conclusion is that the area should be excluded so
long as the exclusions will not result in the extinction of the
species. These commenters stated that if the Service is seeking to
retain discretion not to exclude an area when the benefits of exclusion
outweigh those of inclusion, this justification is incompatible with
the Act, and unsupportable under the APA.
Response: The Act does not require us to undertake an exclusion
analysis; however, section 4(b)(2) of the Act requires that we consider
the economic impact, the impact on national security, and any other
relevant impacts. We have and will continue to comply with this
mandatory consideration prior to finalizing any designation of critical
habitat. The implementing regulations at 50 CFR 424.19 also require
that we make available the draft economic analysis concurrent with each
proposed critical habitat designation. We have, and always will,
consider the economic impact of designating critical habitat, and we do
that through completing an economic analysis of each designation of
critical habitat, and then considering that economic analysis in
deciding whether to engage in an exclusion analysis under the second
sentence of section 4(b)(2).
By the express language in section 4(b)(2) in the Act, other
aspects of exclusion decisions are discretionary. For example, the
Secretary has discretion on when to undertake an exclusion analysis,
the assignments of weights, and making the final exclusion decision.
Simply weighting every non-biological impact according to outside
parties could constrain the Secretary's discretion and could conflict
with the conservation purposes of the Act and our responsibility to
implement the Act. Therefore, we do not intend to delegate to outside
parties our authority to assign weights to non-biological impacts. If,
after weighting and weighing the benefits of inclusion and the benefits
of exclusion, we determine that the benefits of exclusion outweigh
those of inclusion and that exclusion would not result in the
extinction of the species, we agree that exclusion is generally
appropriate.
However, determining the benefits of exclusion and the benefits of
inclusion is not always straightforward. Benefits of exclusion are
primarily the avoidance of economic costs (e.g., the incremental costs
associated with consultations related to impacts to critical habitat
and potentially implementing reasonable and prudent alternatives).
Benefits of inclusion are generally the support of conservation and
recovery of species (e.g., the requirement of Federal agencies to
ensure that actions that they fund, authorize, or carry out are not
likely to result in the destruction or adverse modification of any
designated critical habitat). Including a particular area within
critical habitat may also have one or more other benefits, potentially
including indirect benefits. While some of these benefits of inclusion
can be quantified and monetized, others may be hard to quantify or
monetize but may nevertheless be significant. Often, the weighing
analysis requires a comparison of the benefits of avoiding quantified
economic costs against the benefits of maintaining qualitative value
for conservation and recovery. Comparisons such as these are not
precise, and it may not be obvious that the benefits of inclusion
outweigh those of exclusion. But we do not take this relative
imprecision to suggest that conservation benefits are any less
important or worthy of inclusion and consideration when weighing costs
and benefits. Indeed, insofar as we may not be able to quantify
precisely the incremental benefits of a designation of critical
habitat, retaining the discretion not to exclude an area even if the
quantified benefits of exclusion appear to outweigh the quantified
benefits of inclusion allows the Service to account for those kinds of
imprecisions.
Further, the statute specifically states that the decision to
exclude is discretionary: ``The Secretary may exclude any area from
critical habitat . . ..'' (emphasis added). Finally, the decision in
Weyerhaeuser acknowledged that the Service has discretion to exclude so
long as the exclusion is reasonably applied and supported by the
decisional record. Additionally, the decision in Weyerhaeuser made
clear that a decision not to undertake an exclusion analysis is
reviewable for abuse of agency discretion. Therefore, if we do not
undertake an exclusion analysis despite a request for exclusion or
supporting information having been submitted, we will explain our
rationale, and any reviewing court could review our decision and
determine whether we abused our discretion. For any exclusion
decisions, we will fully explain our rationale and provide a detailed
explanation of our analysis consistent with the requirements of the
APA.
Comment 14: Some commenters stated that the Final Rule does not
limit the Service's ability to conserve listed species in any areas
that would be excluded from a designation of critical habitat if the
``shall'' exclude language is retained in regulation. The Service would
retain the flexibility to consider the specific facts at issue or the
conservation outcomes on a fact-specific basis with the Final Rule in
place.
Response: As described in the preamble to both the proposed and
this final rule, we find that the ``shall exclude'' language of the
Final Rule constrains the Secretary's discretion once we make a
determination that the benefits of exclusion outweigh, or appear to
outweigh based on the expert or first-hand information that proponents
provide, the benefits of inclusion. Congress clearly did not intend to
constrain the Secretary's discretion in this manner, or the Act would
not contain the provision that the Secretary ``may exclude.''
Furthermore, the Solicitor's Memorandum Opinion M-37016, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (the
Solicitor's M-Opinion; October 3, 2008), underscores the Secretary's
discretion to exclude areas as a result of the statute's inclusion of
the phrase ``may exclude'' (pp. 6-9). We also find that the ``shall
exclude'' language, combined with the allowance of weights of impacts
to be determined by outside parties, is likely to further constrain the
Secretary's discretion in certain cases. We recognize regulations are
intended to interpret statutory language that they implement. The Final
Rule stated that the ``shall exclude'' language was an exercise of
Secretarial discretion. However, in this instance, we find that the way
in which the Final Rule constrains the Secretary's discretion is
potentially in conflict with our responsibilities to administer the Act
and fails to take into account the species-specific and situation-
specific facts that are necessary to ensure that critical habitat
designations contribute to the conservation of listed species.
Comment 15: Some commenters stated that the Service's approach to
critical habitat designations must reflect the requirements of section
4(b)(2) of the Act in consideration of the economic impact and relative
benefits before deciding whether to exclude an area from critical
habitat.
Response: The Act in section 4(b)(2) and our implementing
regulations at 50 CFR 424.19 set forth clear requirements for
considering the economic impact, the impact on national security, and
any other relevant impacts of including particular areas within
designated critical habitat. We always comply with this mandatory
obligation to consider these impacts prior to finalizing any
[[Page 43442]]
designation of critical habitat. Rescinding the Final Rule will not
change our practice of considering these impacts or eliminate the
statutory requirement to consider these impacts. We find that
rescinding the Final Rule better reflects the requirements of section
4(b)(2) of the Act because applying 50 CFR 424.19 and the Policy will
retain the requirement to consider the mandatory impacts and preserve
the Secretary's discretion to exclude particular areas if the benefits
of exclusion outweigh the benefits of inclusion, so long as exclusion
will not result in extinction of the species.
Comment 16: Commenters stated that the economic impact of a
designation of critical habitat is an important consideration, but by
itself the economic impact can fail to capture the broader impact of a
critical habitat designation on a community. Commenters contend that a
flaw with the proposed rescission is that removing the discussion of
what ``other relevant impacts'' includes may cause impacts to
communities to take a back seat in exclusion analyses.
Response: Under section 4(b)(2) of the Act, ``other relevant
impact'' is a separate entity in the text and has equal importance with
``economic impact'' and the ``impact on national security.'' We always
consider these categories of impacts, and rescinding the Final Rule
will not change that approach. The Policy describes the types of
categories of impacts that we may consider when evaluating the impacts
of a critical habitat designation. The Policy provides examples such as
plans and partnerships, but in no way excludes considerations of
impacts to communities. Furthermore, the Solicitor's M-Opinion
thoroughly describes the Secretary's broad discretion to determine what
other relevant impacts might be relevant (p. 12). If we receive
requests for exclusion of particular areas from a designation of
critical habitat based on impacts to communities, we will fully
consider that information and provide a rational basis to support our
decision to exclude or not exclude based on this or other available
information.
Comment 17: Some commenters stated that the Service must consider
how imposition of costs on private landowners will affect their
incentive to conserve, maintain, or restore habitat for species.
Conversely, the Service must also consider the conservation costs of
critical habitat--that is, whether landowners may preemptively destroy
habitat or forgo restoration to prevent habitat features from
developing or to avoid perceived stigma effects of a designation.
Conservation benefits also need to be considered, but the Service often
concludes designations of critical habitat will have little benefit.
Response: The designation of particular areas as critical habitat
does not impose obligations to conserve, preserve, or restore any area
designated as critical habitat for a species. Where there is a Federal
nexus, the Federal agency must ensure their actions do not destroy or
adversely modify designated critical habitat. We are aware that there
may be perceptional effects that result in economic impacts. For
example, people may be reluctant to purchase lands that are identified
as critical habitat, or landowners may change their land use or
planning as a result of the area being designated as critical habitat.
Our economic analysis evaluates the potential for those effects, and we
describe the perceptional effects in our analysis. Actions taken to
preemptively destroy habitat or to prevent habitat features from
developing to prevent an area from being considered as critical habitat
could result in a violation of section 9 of the Act even if an area is
not designated as critical habitat.
We also recognize that there can be some risk to species or their
habitat associated with drawing lines on a map to define areas of
critical habitat but acknowledge that the effects from section 7
consultation provide a conservation benefit. In some instances, we will
determine that a designation of critical habitat is not prudent because
there is evidence of a threat of collection of the species or other
threats would be exacerbated due to the publication of maps detailing
the location of the species.
In instances where critical habitat is proposed, we look for the
existence of partnerships, plans, or agreements that may provide a
conservation benefit for the species. If appropriate, and after
conducting an exclusion analysis, we may find that the benefits of
exclusion outweigh the benefits of inclusion. So long as the exclusion
will not result in the extinction of the species concerned, we have
always excluded such areas. These conservation mechanisms incentivize
landowners to enter into these types of agreements to further the
conservation of species. Additionally, our economic analysis includes
an assessment of the benefits of the designation of critical habitat,
and where possible we quantify those benefits; however, in most cases
we qualitatively describe the benefits in terms of conservation value
of the designation of the particular areas of critical habitat.
Comment 18: Several commenters found our argument that having
different regulations than NMFS created confusion to be unpersuasive.
Some stated that the Final Rule would result in the Service being more
similar to NMFS in terms of actually conducting exclusion analyses and
that absent the regulations there would be no binding guidance or
requirement for the Service to comply with section 4(b)(2) of the Act.
Commenters stated that wanting to be consistent with NMFS is not a
compelling rationale and cited the Service's June 4, 2021, intention to
return to using blanket 4(d) rules, which would then be inconsistent
with NMFS' approach.
Response: As discussed above, differences with NMFS poses a
significant risk of confusing other Federal agencies, Tribes, States,
other potentially affected stakeholders and members of the public, and
agency staff responsible for drafting critical habitat designations. We
have not identified a science- or mission-based reason for separate
regulations for exclusions from critical habitat that would outweigh
that risk.
Whether it is confusing to the public if the Service applies
different regulations than NMFS depends on the standards and processes
contained in each particular regulation. In some situations, the
regulated community is best served if the agencies have the same
regulations and policy; this scenario applies to the regulations that
make clear to proponents of exclusions how the information they submit
will be considered, because consistency makes it easier for proponents
of exclusions or other members of the public to know what information
to submit. However, in other situations it may make sense for the
Service and NMFS to apply their own regulations; this approach applies
to regulations under section 4(d) of the Act, because the protection
needs vary between species, and the nature, scope, and scale of the
protective regulations that are needed for marine species subject to
NMFS' jurisdiction may differ considerably from the needs of species
subject to the Service's jurisdiction. In addition, regardless of
whether the Service reinstates ``blanket'' 4(d) rules, we will
undertake a species-specific analysis to determine what protections are
necessary and advisable for the species at hand as described in section
4(d) of the Act, resulting in a similar process as NMFS uses.
After rescinding this regulation, both Services will apply the
implementing regulations at 50 CFR 424.19 and the Policy. This will
avoid the potential for different implementation of section
[[Page 43443]]
4(b)(2) of the Act between the agencies and for confusion on the part
of proponents of exclusions regarding what information to submit and
what to expect from the exclusion process.
With the rescission of the Final Rule, the Service will continue to
comply with section 4(b)(2) of the Act when designating critical
habitat. The Service routinely conducts exclusion analyses: more than
40 percent of our final critical habitat rules have exclusion analyses.
Regardless of any regulation, we must document our rationale for
decisions not to exclude areas from critical habitat in the face of
requests for exclusions because the Weyerhaeuser decision held that
decisions not to exclude are judicially reviewable.
Comment 19: Commenters stated that the Service should affirm that
we will give meaningful consideration to information provided by Alaska
Native Corporations (ANCs) and will address impacts on lands owned by
Alaska Natives, including lands covered by the Alaska Native Claims
Settlement Act, when designating critical habitat.
Response: We value information provided by ANCs and will always
consider comments and information provided by ANCs when we are
proposing and finalizing designations of critical habitat. We consider
impacts on all native-owned lands, including on lands owned by Alaska
Natives, to categorically fall within the other relevant impacts that
section 4(b)(2) of the Act requires that we consider when designating
critical habitat. We will always consider requests for exclusion from
ANCs, and any decision not to exclude will be fully explained in our
final rule consistent with the Weyerhaeuser ruling.
Comment 20: Numerous commenters stated that the Service should
revise the Final Rule rather than rescind it in its entirety,
consistent with Supreme Court rulings (e.g., in Dep't of Homeland
Security v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020)
(Regents) and FCC v. Fox Television. 129 S. Ct. 1800 (2009) (Fox
Television)). In some instances, commenters included specific
suggestions to keep existing regulatory language, add new regulatory
language, and revise or clarify particular provisions of the
regulations. For example, some commenters suggested that we add
additional examples of categories that could be considered as bases for
exclusions, requested that we clarify when the rigid ruleset would not
be appropriate to use, or asked that we further define terms such as
``national security.'' In other cases, the commenters did not provide
detailed recommendations. Others noted that the Service should retain
the Final Rule and that NMFS should adopt corresponding regulations.
Response: We reviewed and considered all suggestions of how to
revise the regulations instead of rescinding them. We find that the
suggestions of specific possible revisions or clarifications support
our conclusion that the Final Rule did not provide the clarity or
transparency that was intended. For example, there would be no need to
identify additional bases for exclusions, eliminate the rigid rulesets
in the Final Rule, or define additional terms if we rescind the Final
Rule and instead implement the Policy and 50 CFR 424.19 because those
authorities properly balance the goals of transparency and
predictability of process with the benefit of preserving the
Secretarial flexibility and discretion to exclude areas from
designations of critical habitat for listed species. With respect to
the comments seeking revision instead of rescission without providing
specific recommendations on how to revise the Final Rule, we did not
further address those commenters because there was not enough
specificity to evaluate.
As explained earlier, we have considered whether to retain any
portions of the regulation. However, the three reasons we identified
for rescinding the Final Rule apply to all four of the key elements of
the regulation: (1) the requirement to undertake an exclusion analysis
whenever a proponent of an exclusion provides credible information; (2)
the prescription for weighting the impacts; (3) the treatment of
Federal lands; and (4) the requirement to exclude any area for which
the benefits of exclusion outweigh the benefits of inclusion. Revising
any of the standards in these elements, or even removing some
combination of these elements and retaining the rest, would still
result in constraining the Secretary's discretion and decreasing the
agency's ability to further the conservation purposes of the Act, and
would be unlikely to increase clarity or transparency. Additionally,
the other elements of the Final Rule are already directly addressed
even without the regulations--through the Policy and in some cases the
requirements of the Act. Including these elements in a revised
regulation in part or in whole would serve only to create additional
confusion without changing or clarifying the Service's consideration of
impacts under section 4(b)(2) of the Act.
We note also that this rescission is different from the rescissions
addressed in the court decisions that commenters referenced. For
example, unlike the rescission in Regents, this rescission will not
``eliminate the centerpiece of'' the critical habitat program or the
consideration of exclusions from critical habitat designations. See
Regents, 140 S. Ct. at 1913 (where DHS rescission had entirely
eliminated both the forbearance and the benefits aspects of the DACA
program but had only analyzed the benefits aspects). Rather, the
Service would be required to continue to consider the impacts of
critical habitat designations and would simply return to applying the
2016 Policy in considering exclusions from critical habitat. In
addition, this rescission does not affect a right under the First
Amendment. See Fox Television, 129 S. Ct. at 1805-06 (requiring that,
in regulation of speech, FCC put in place the ``least restrictive
alternative'').
After thoughtful consideration of the specific revisions commenters
have suggested, as well as of the possibility of rescinding only parts
of the Final Rule or revising instead of rescinding the Final Rule in
its entirety, we conclude that the conservation purposes of the Act are
best served by promptly rescinding the Final Rule and resuming
implementation of 50 CFR 424.19 and the Policy.
Regarding commenters' suggestions that NMFS adopt regulations
corresponding to the regulations the Service adopted, we are not in a
position to compel NMFS to adopt regulations similar to the ones we are
rescinding with this final rule; nor would it further the policies of
the Act for the Service to urge NMFS to adopt a framework at odds with
the purposes, mandates, and structure of the Act.
Comment 21: A commenter contends that we have violated Executive
Orders 12866 and 13563 because the public participation effort simply
consisted of an abbreviated public comment period, no public hearings,
and no focused stakeholder outreach.
Response: Section 6(a)(1) of E.O. 12866 states that in most cases
rules should include a comment period of not less than 60-days. Due to
the agreement for a long-term stay in litigation on this rulemaking,
development and review of this final rule was completed on an expedited
timeframe which included shortening the public comment period to a
total of 45 days. In addition to holding a 45-day public comment period
and responding to all of the comments received, the Service, pursuant
to E.O. 12866, submitted the proposed rule and this final rule to the
Office of Management and Budget's Office of Information and Regulatory
Affairs (OIRA) for review. Under E.O.
[[Page 43444]]
12866, OIRA and the issuing agency meet with any interested party to
discuss issues related to a rule under review, and during the proposed
and final rule reviews, we participated in several such meetings. In
addition, we held three separate webinars for Tribes and Tribal
organizations to provide an overview of, and information on how to
provide input on, a series of rulemakings related to implementation of
the Act that the Services were developing, including the proposed rule
to rescind the Final Rule. We note that public hearings are not
required for implementing regulations, and we declined to hold optional
public hearings that were requested for this rulemaking.
Comment 22: A commenter stated that we should have conducted an
analysis under the Regulatory Flexibility Act (RFA) because the vast
majority of business concerns involved in the forestry industry in
Alabama are small businesses that could be economically affected by
critical habitat designations.
Response: We complied with the requirements of the RFA. No
regulatory flexibility analysis is required if the head of an agency,
or their designee, certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The Small
Business Regulatory Enforcement Fairness Act of 1996 amended the RFA to
require Federal agencies to provide a statement of the factual basis
for certifying that a rule will not have a significant economic impact
on a substantial number of small entities. In the proposed and this
final rule, we certify that the rescission of the Final Rule would not
have a significant economic effect on a substantial number of small
entities. The Service is the only entity directly affected by the
rulemaking and by definition is not a small entity, and the rulemaking
therefore will not have a significant effect on any small entities. In
species-specific designations of critical habitat, we always evaluate
whether a designation of critical habitat may directly affect small
businesses. Therefore, the commenter's concern regarding potential
impacts to forestry operations in Alabama would be evaluated in the
regulatory flexibility analysis in any future species-specific critical
habitat designation.
Comment 23: A commenter stated that an analysis under the Unfunded
Mandates Reform Act (UMRA) should have been conducted because the facts
presented in the Weyerhaeuser case when extrapolated across the United
States would have certainly exceeded the $100 million threshold for
that statute.
Response: The requirement to undertake an analysis under the UMRA
applies only to regulations containing ``federal mandates'' that meet
the threshold levels under the Act. 2 U.S.C. 1532-1535. The UMRA
defines ``federal mandate'' as a regulation that would impose either
``an enforceable duty upon State, local, or tribal governments''
(federal intergovernmental mandate'') or ``an enforceable duty upon the
private sector'' (``federal private sector mandate''). 2 U.S.C. 658(5)-
(7). The rescission of the Final Rule does not impose an enforceable
duty on State, local, or Tribal governments, or the private sector. The
only direct impact of this final rule is upon the Service because this
rulemaking action pertains to how the Service evaluates potential
exclusions from critical habitat designations.
Comment 24: A commenter stated that our determinations with respect
to Takings and E.O. 13132 warrant additional explanation given the
facts in the Weyerhaeuser case, where the designation of critical
habitat ``threatened to impose a $33 million cost'' based on one unit
of critical habitat alone.
Response: The rescission of the Final Rule will not allow for any
unlawful takings. The facts in the Weyerhaeuser case are not directly
applicable because they related to a specific designation of critical
habitat for a species, not an overarching regulation outlining the
designation process. Furthermore, the rescission of the Final Rule does
not directly affect private property, nor does it cause a physical or
regulatory taking. It does not result in a physical taking because it
does not effectively compel a property owner to suffer a physical
invasion of property. Further, the rule does not result in a regulatory
taking because it does not deny all economically beneficial or
productive uses of the land or aquatic resources, it does substantially
advance a legitimate government interest (conservation and recovery of
endangered species and threatened species), and it does not present a
barrier to all reasonable and expected beneficial uses of private
property.
The requirement to avoid the destruction or adverse modification of
critical habitat applies to actions on private land only when they
involve Federal actions such as authorization or Federal funding. Where
an action does implicate authorization or funding by a Federal agency,
or the Federal agency directly carries out an activity on private
lands, any resulting section 7 consultation under the Act on the
designated critical habitat would then consider the effects of the
particular proposed action (e.g., issuance of a land-use-related
permit) to ensure the critical habitat is not likely to be destroyed or
adversely modified by the action. And even a finding that the action
was likely to destroy or adversely modify the critical habitat would
not result in an unlawful taking, because that finding would not
require the Federal action agency or the landowner to restore the
critical habitat or recover the species, but rather to implement
reasonable and prudent alternatives to avoid destruction or adverse
modification of critical habitat. Rather than imposing an affirmative
requirement that Federal actions improve critical habitat, section
7(a)(2) of the Act prohibits Federal actions from reducing the critical
habitat's existing capacity to conserve the species. (Final Rule
Establishing Definition of ``Destruction or Adverse Modification'' of
Critical Habitat, 81 FR 7214, p. 7224, February 11, 2016; extending to
the adverse-modification analysis the conclusion in Nat'l Wildlife
Fed'n v. National Marine Fisheries Service, 524 F.3d 917, 930 (9th Cir.
2007), that agency action can only violate section 7(a)(2) of the Act
``if that agency action causes some deterioration in the species' pre-
action condition''). In other words, the requirement for Federal
agencies to ensure their actions are not likely to result in
destruction or adverse modification of critical habitat is a
prohibitory standard only; it does not mandate or prohibit any action
by any private landowner.
Comment 25: A commenter stated that a better analysis or
explanation is needed as to why the rulemaking does ``not directly
affect . . . Tribal lands'' and only directly affects the Service.
Response: The rescission of the Final Rule does not directly affect
any lands; the only direct effect is to guide the Service's analysis
when it designates critical habitat. To the extent that Tribal or other
lands may be affected by critical habitat designations, we would
consider those cases in future species-specific designations that may
affect those lands and where an action had a Federal nexus. Further, as
explained above, even in the cases where an action has a Federal nexus,
the Federal agency only has a duty to avoid destruction or adverse
modification of the critical habitat.
Comment 26: A commenter disagrees with the Service's determination
that the rule is procedural in nature and qualifies for a categorical
exclusion under the National Environmental Policy Act (NEPA). They
contend that
[[Page 43445]]
designation of critical habitat or exclusion from critical habitat has
an impact on the human environment and that impact should not be
dismissed.
Response: As discussed below, this rule sets out the overarching
process and considerations that the Service undertakes when it
designates critical habitat, and this rulemaking action has no
significant impacts on the human environment.
Comment 27: A commenter noted that our determination for federalism
and E.O. 13132 may achieve the opposite intent of those requirements,
resulting in unclear legal standards and leading to an increase in
litigation.
Response: For the reasons outlined in the proposed and in this
final rule, we have determined that the Final Rule is problematic
because it unduly constrained the Service's discretion in administering
the Act, potentially limiting or undermining the Service's role as the
expert agency and its ability to further the conservation of endangered
and threatened species through designation of their critical habitats.
We note that the legal standards will still be clear absent the Final
Rule because the Policy and 50 CFR 424.19 will apply. We acknowledge
that there may be differing views on the best way to achieve species
conservation and implementation of the Act. When implementing the Act,
we strive to strike a balance between establishing clear legal
standards and retaining the discretion necessary for making the best
possible decisions based on the specific facts at issue.
Comment 28: A commenter stated that the proposed rescission does
not achieve the goals of the Civil Justice Reform Act to write
regulations that minimize litigation and provide a clear legal
standard.
Response: As we articulated in the proposed rule and this final
rule, we find that the Final Rule's language in part is vague, thereby
setting an unclear legal standard that was unlikely to minimize future
litigation on individual critical habitat designations and any decision
to exclude or not. As mentioned above, on January 14, 2021, which was 5
days before the Final Rule took effect, seven environmental groups
challenged it, filing suit against the Service in Federal district
court in Hawaii. Based on this legal challenge, we also find that the
Final Rule did not ``minimize litigation.'' By rescinding the Final
Rule, we will return to implementing the regulations at 50 CFR 424.19
and the Policy. Nothing in this action unduly burdens the judicial
system, and the rule meets the applicable standards provided in
sections 3(a) and 3(b)(2) of E.O. 12988.
Comment 29: A commenter stated that our determination that the
rescission of the Final Rule would not have effects under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use, was conclusory in nature.
Response: In order for a regulation to be deemed significant under
E.O. 13211, the regulation must be (1)(i) a significant regulatory
action under E.O. 12866 or any successor order, and (ii) likely to have
a significant adverse effect on the supply, distribution, or use of
energy; or (2) one that is designated by OIRA as a significant energy
action. While OIRA deemed this rule as significant under E.O. 12866,
OIRA did not identify the proposed rule as having a significant adverse
effect on the supply, distribution, or use of energy, nor did the
Administrator of OIRA conclude this is a significant energy action. The
rescission of an overarching regulation outlining the process and
considerations of exclusions from critical habitat is not expected to
have a significant adverse effect on the supply, distribution, or use
of energy. Any effect on these issues that may result from future final
designations of critical habitat has been, and will continue to be,
documented and analyzed in those species-specific designations of
critical habitat.
Required Determinations
Regulatory Planning and Review (E.O.s 12866 and 13563)
Executive Order 12866 (``E.O. 12866'') provides that OIRA will
review all significant rules. OIRA has determined that this rule is
significant. ``Effects of Rescinding the FWS Regulation Exclusions of
Critical Habitat Under Section 4(b)(2) of the ESA RIN 1018-BD84 August
2021,'' which was prepared for the proposed rule (86 FR 59346),
provides an assessment of potential costs and benefits of this
regulatory action pursuant to E.O. 12866 and is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket No. FWS-HQ-ES-2019-0115. We decided not
to make any changes to the effects analysis after consideration of the
information provided through the public comment process. As noted in
the effects analysis, there is uncertainty regarding the conservation
needs of species, the specific locations where the species occur, the
nature of areas proposed for designation, existing conservation efforts
on the ground, and the land uses that are occurring or planned for the
relevant areas. The Final Rule's economic analysis made assumptions
based on Service staff experience and provided ranges of potential
benefits for illustrative purposes only, not because we thought that
any of the outcomes was more or less likely. Rescinding the Final Rule
does not automatically result in an economic change, and the magnitude
of the net economic impact from this final rule is uncertain.
Executive Order 13563 (``E.O. 13563'') reaffirms the principles of
E.O. 12866 while calling for improvements in the Nation's regulatory
system to promote predictability, to reduce uncertainty, and to use the
best, most innovative, and least burdensome tools for achieving
regulatory ends. E.O. 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives and further emphasizes that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this final rule in a manner
consistent with these requirements. This final rule is consistent with
E.O. 13563, and in particular with the requirement of retrospective
analysis of existing rules designed ``to make the agency's regulatory
program more effective or less burdensome in achieving the regulatory
objectives.''
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal 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 effect 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
an agency, or their designee, certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities.
This rulemaking rescinds a rule that outlines Service procedures
regarding exclusion of areas from designations of critical habitat
under the Act. When
[[Page 43446]]
effective, the Service will resume the implementation of the 2013 Rule
and the Policy jointly with NMFS. As discussed in our proposed rule, to
the extent that the Final Rule differs from the Policy, it is limited
to identifying specific factors for consideration that the Policy
already enumerates for the Service to consider in weighing the benefits
of excluding areas against the benefits of including them, but in a
more general sense. Moreover, the Service is the only entity that would
be directly affected by this final rule because the Service is the only
entity that was implementing the final regulations under 50 CFR 17.90.
No external entities, including any small businesses, small
organizations, or small governments, will experience any economic
impacts directly from this rule because the Service will continue to
take into consideration the relevant impacts of designating specific
areas as critical habitat and retain the ability to apply the factors
identified in the Final Rule.
The regulatory protections that stem from designating critical
habitat occur through section 7 of the Act, which requires Federal
agencies, in consultation with the Service, to ensure that any action
authorized, funded, or carried out by the agency is not likely to
destroy or adversely modify critical habitat. Therefore, under section
7, only Federal action agencies are directly subject to the specific
regulatory requirement (avoiding destruction and adverse modification)
imposed by critical habitat designation. Consequently, it is our
position that only Federal action agencies are directly regulated by
designations of critical habitat. There is no requirement under the
Regulatory Flexibility Act to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, even if this rule affects the scope or scale
of future critical habitat designations, no small entities will be
directly regulated by this rulemaking.
In addition, our decisions to exclude or not exclude areas (where a
specific request has been made) based on this consideration of impacts
will continue to be judicially reviewable in accordance with the
Supreme Court's opinion in Weyerhaeuser. At the proposed rule stage, we
certified that this rule would not have a significant economic effect
on a substantial number of small entities and a regulatory flexibility
analysis is not required. Nothing in this final rule changes that
conclusion.
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.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this final rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this final rule would not impose a cost of $100
million or more in any given year on local or State governments or
private entities. A small government agency plan is not required. As
explained above, small governments would not be affected because this
final rule would not place additional requirements on any city, county,
or other local municipalities.
(b) This final rule would not produce a Federal mandate on State,
local, or Tribal governments or the private sector of $100 million or
greater in any year; that is, this final rule is not a ``significant
regulatory action''' under the Unfunded Mandates Reform Act. This final
rule would impose no obligations on State, local, or Tribal
governments.
Takings (E.O. 12630)
In accordance with E.O. 12630, this final rule would not have
significant takings implications. This final rule would not directly
affect private property, nor would it cause a physical or regulatory
taking. It would not result in a physical taking because it would not
effectively compel a property owner to suffer a physical invasion of
property. Further, this final rule would not result in a regulatory
taking because it would not deny all economically beneficial or
productive use of the land or aquatic resources and it would
substantially advance a legitimate government interest (conservation
and recovery of endangered species and threatened species) and would
not present a barrier to all reasonable and expected beneficial use of
private property.
Federalism (E.O. 13132)
In accordance with E.O. 13132, we have considered whether this
final rule would have significant federalism effects and have
determined that a federalism summary impact statement is not required.
This final rule pertains only to factors for designation of critical
habitat under the Act and would not have substantial direct effects on
the States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
Civil Justice Reform (E.O. 12988)
This final rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
E.O. 12988. This final rule would rescind a rule that was solely
focused on exclusions from critical habitat under the Act.
Government-to-Government Relationship With Tribes
In accordance with E.O. 13175, ``Consultation and Coordination with
Indian Tribal Governments,'' and the Department of the Interior's
manual at 512 DM 2, we considered possible effects of this final rule
on federally recognized Indian Tribes. The Service has concluded that
rescinding the Final Rule would not directly affect specific species or
Tribal lands. With the rescission of the Final Rule, we will resume the
implementation of the 2013 Rule and the Policy jointly with NMFS, which
are almost identical to the treatment of Tribal lands under the Final
Rule.
During July 2021, we held three separate webinars for Tribes and
Tribal organizations to provide an overview of, and information on how
to provide input on, a series of rulemakings related to implementation
of the Act that the Services were developing, including the proposed
rule to rescind the section 4(b)(2) exclusions regulations. We received
written comments from Tribal organizations; however, we did not receive
any requests for consultation regarding this action.
This regulatory rescission directly affects only the Service, and
with or without this rescission the Service would be obligated to
continue to designate critical habitat based on the best available
data. Therefore, we conclude that this final rule to rescind the Final
Rule does not have ``tribal implications'' under section 1(a) of E.O.
13175, and therefore formal government-to-government consultation is
not required by E.O. 13175 and related policies of the Department of
the Interior. We will continue to collaborate with Tribes on issues
related to federally listed species and their habitats and work with
them as we implement the provisions of the Act. See Secretarial Order
3206, ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997).
Paperwork Reduction Act
This final rule does not contain any new collections of information
that
[[Page 43447]]
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (45 U.S.C. 3501 et seq.). We may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
We analyzed this final rule in accordance with the criteria of the
National Environmental Policy Act (NEPA), the Department of the
Interior regulations on Implementation of the National Environmental
Policy Act (43 CFR 46.10-46.450), and the Department of the Interior
Manual (516 DM 8). We have determined that a detailed statement under
NEPA is not required because the rule is covered by a categorical
exclusion. The Department of the Interior has found that the following
categories of actions would not individually or cumulatively have a
significant effect on the human environment and are, therefore,
categorically excluded from the requirement for completion of an
environmental assessment or environmental impact statement: ``Policies,
directives, regulations, and guidelines: that are of an administrative,
financial, legal, technical, or procedural nature; or whose
environmental effects are too broad, speculative, or conjectural to
lend themselves to meaningful analysis and will later be subject to the
NEPA process, either collectively or case-by-case.'' 43 CFR 46.210(i)
The effect of this rulemaking is to rescind the Service-only
procedures for considering exclusion of areas from a designation of
critical habitat under the Act and return to implementing the
regulations at 50 CFR 424.19 and the Policy that was issued jointly
with NMFS. As a result, we conclude that the categorical exclusion
found at 43 CFR 46.210(i) applies to this regulation. We also
considered whether any ``extraordinary circumstances'' apply to this
situation, such that the DOI categorical exclusion would not apply. See
43 CFR 46.215 (``Categorical Exclusions: Extraordinary
Circumstances''). We determined that no extraordinary circumstances
apply.
Therefore, having considered the extent to which this rule has a
significant impact on the human environment, we have determined it
falls within one of the categorical exclusions for actions that have no
effect on the quality of the human environment. As a result, we find
that the categorical exclusion found at 43 CFR 46.210(i) applies to
this regulation rescission, and the Service has not identified any
extraordinary circumstances that would preclude this categorical
exclusion. We did not receive any public comments regarding our stated
intention of invoking a categorical exclusion, with the exception of
comments asserting that the initial use of a categorical exclusion when
the Final Rule was codified (i.e., the rule we are now rescinding) was
incorrect. These comments do not conflict with or undermine our
analysis here or compliance with applicable NEPA regulations for this
rule.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. The rescission of the
Final Rule only effects the Service and is not expected to have a
significant adverse effect on the supply, distribution, or use of
energy, and it has not been otherwise designated by the Administrator
of OIRA as a significant energy action. Therefore, this action is a not
a significant energy action, and no Statement of Energy Effects is
required.
Authority
We issue this final rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
For the reasons discussed in the preamble, the U.S. Fish and
Wildlife Service amends part 17 of chapter I, title 50 of the Code of
Federal Regulations as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407, 1531-1544, and 4201-4245,
unless otherwise noted.
Subpart I [Removed]
0
2. Remove subpart I, consisting of Sec. 17.90.
Subpart J [Redesignated as Subpart I]
0
3. Redesignate subpart J, consisting of Sec. Sec. 17.94 through 17.99,
as subpart I.
Subpart K [Redesignated as Subpart J]
0
4. Redesignate subpart K, consisting of Sec. Sec. 17.100 through
17.199, as subpart J.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-15495 Filed 7-20-22; 8:45 am]
BILLING CODE 4333-15-P
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</html>Indexed from Federal Register on July 21, 2022.
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