Proposed Rule2023-13053
Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat
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Published
June 22, 2023
Issuing agencies
Interior DepartmentFish and Wildlife ServiceCommerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively, the "Services"), propose to revise portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). The proposed revisions to the regulations clarify, interpret, and implement portions of the Act concerning the procedures and criteria used for listing, reclassifying, and delisting species on the Lists of Endangered and Threatened Wildlife and Plants and designating critical habitat.
Full Text
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<title>Federal Register, Volume 88 Issue 119 (Thursday, June 22, 2023)</title>
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[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Proposed Rules]
[Pages 40764-40774]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13053]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 424
[Docket No. FWS-HQ-ES-2021-0107, FF09E23000 FXES1111090FEDR 234; Docket
No. 230607-0142]
RIN 1018-BF95; 0648-BK47
Endangered and Threatened Wildlife and Plants; Listing Endangered
and Threatened Species and Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS; collectively, the ``Services''),
propose to revise portions of our regulations that implement section 4
of the Endangered Species Act of 1973, as amended (Act). The proposed
revisions to the regulations clarify, interpret, and implement portions
of the Act concerning the procedures and criteria used for listing,
reclassifying, and delisting species on the Lists of Endangered and
Threatened Wildlife and Plants and designating critical habitat.
DATES: We will accept comments from all interested parties until August
21, 2023. Please note that if you are using the Federal eRulemaking
Portal (see ADDRESSES below), the deadline for submitting an electronic
comment is 11:59 p.m. eastern time on that date.
ADDRESSES: You may submit comments and information on this document by
one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-HQ-ES-2021-0107,
which is the docket number for this rulemaking action. Then, click on
the Search button. On the resulting page, in the panel on the left side
of the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.'' Please ensure that you have found the correct rulemaking
before submitting your comment.
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2021-0107; U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
See Request for Comments, below, for further information.
FOR FURTHER INFORMATION CONTACT: Carey Galst, U.S. Fish and Wildlife
Service, Division of Ecological Services, Branch of Listing Policy and
Support Chief, 5275 Leesburg Pike, Falls Church, VA 22041-3803,
telephone 703-358-1954; or Angela Somma, National Marine Fisheries
Service, Office of Protected Resources, Endangered Species Division
Chief, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-
427-8403. 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.
SUPPLEMENTARY INFORMATION:
Background
The Secretaries of the Interior and Commerce (the ``Secretaries'')
share responsibilities for implementing most of the provisions of the
Endangered Species Act, as amended (hereafter referred to as ``ESA or
the Act;'' 16 U.S.C. 1531 et seq.), and authority to administer the Act
has been delegated by the respective Secretaries to the Director of FWS
and the Assistant Administrator for NMFS. Together, the Services have
promulgated regulations that interpret aspects of the listing and
critical habitat designation provisions of section 4 of the Act. These
joint regulations, which are codified in the Code of Federal
Regulations at 50 CFR part 424, were most recently revised in 2019 (84
FR 45020, August 27, 2019; hereafter, ``the 2019 rule''). Those revised
regulations became effective September 26, 2019.
Executive Order 13990, ``Protecting Public Health and the
Environment and Restoring Science To Tackle the Climate Crisis,''
issued January 20, 2021, directed all departments and agencies to
immediately review agency actions taken between January 20, 2017, and
January 20, 2021, and, as appropriate and consistent with applicable
law, consider suspending, revising, or rescinding agency actions that
conflict with important national objectives, including promoting and
protecting our public health and the environment, and to immediately
commence work to confront the climate crisis. A ``Fact Sheet'' that
accompanied E.O. 13990 provided a non-exhaustive list of particular
regulations requiring such a review and included the 2019 rule (see
<a href="http://www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a>). In response to E.O. 13990
and in light of recent litigation over the 2019 rule, the Services have
reviewed the 2019 rule, evaluated the specific regulatory revisions
promulgated through that process, and now propose to make revisions to
the regulations at 50 CFR part 424 as discussed in detail below.
The 2019 rule, along with other revisions to the ESA regulations
finalized in 2019, were subject to litigation in the United States
District Court for the Northern District of California. On July 5,
2022, the court issued a decision vacating the 2019 rule, without
reaching the merits of the case. On September 21, 2022, the United
States Court of Appeals for the Ninth Circuit temporarily stayed the
effect of the July 5th decision pending the District Court's resolution
of motions seeking to alter or amend that decision.
[[Page 40765]]
On October 14, 2022, the Services notified the District Court that we
anticipated proceeding with a rulemaking process to revise the 2019
rule. Subsequently, on November 14 and 16, 2022, the District Court
issued orders remanding the 2019 regulations to the Services without
vacating them, as the Services had asked the Court to do. Accordingly,
the Services have developed the following proposal to amend some
aspects of the 2019 rule.
This proposed rule is one of three proposed rules publishing in
today's Federal Register that propose changes to the regulations that
implement the ESA. Two of these proposed rules, including this one, are
joint between the Services, and one proposed rule is specific to FWS.
Section 2 of the Act states that the purposes of the Act include
providing a means to conserve the ecosystems upon which endangered and
threatened species depend, developing a program for the conservation of
listed species, and achieving the purposes of certain treaties and
conventions (16 U.S.C. 1531(b)). Section 2 of the Act also makes
explicit that it is the policy of Congress that all Federal agencies
and departments seek to conserve threatened and endangered species and
use their authorities to further the purposes of the Act (16 U.S.C.
1531(c)).
To determine whether listing a species is warranted, the Act
requires that the Services conduct a review of the status of the
species and consider any efforts being made by any State or foreign
nation (or subdivision thereof) to protect the species. The Act also
requires that determinations of whether a species meets the definition
of an endangered or threatened species be based solely on the best
scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)).
When a species warrants listing, the Act requires the Services to
designate critical habitat concurrent with the listing rule to the
maximum extent prudent and determinable, or within 1 year following
listing if critical habitat was not initially determinable. Critical
habitat is defined in section 3 of the Act as: (1) the specific areas
within the geographical area occupied by the species at the time it is
listed on which are found those physical and biological features that
are essential to the conservation of the species and that may require
special management considerations or protections; and (2) specific
areas outside the geographic area occupied by the species at the time
it is listed upon a determination by the Secretary that such areas are
essential for the conservation of the species (16 U.S.C. 1532(5)). The
Act sets forth a two-part definition for critical habitat based on
whether the species occupies an area or does not occupy an area at the
time of listing. For simplicity, throughout this document we will refer
to the former type as ``occupied'' critical habitat and the latter type
as ``unoccupied'' critical habitat.
In passing the Act, Congress viewed habitat loss as a significant
factor contributing to species endangerment, and the ``present or
threatened destruction, modification, or curtailment'' of a species'
habitat or range is specifically listed in section 4(a)(1) of the Act
as the first of the factors that may underlie a determination that a
species meets the definition of an endangered or threatened species.
The designation of critical habitat is a regulatory tool designed to
further the conservation of a listed species, i.e., to help bring the
threatened or endangered species to the point at which protection under
the Act is no longer necessary. More broadly, designation of critical
habitat also implicitly serves as a tool for meeting one of the Act's
stated purposes: Providing a means for conserving the ecosystems upon
which endangered and threatened species depend. Once critical habitat
is designated, Federal agencies must ensure that any actions they
authorize, fund, or carry out are not likely to result in destruction
or adverse modification of the critical habitat (16 U.S.C. 1536(a)(2)).
Proposed Changes to Part 424
Following a review of the specific regulatory revisions made in the
2019 rule, the Services propose to revise several of those same
regulatory provisions of 50 CFR part 424, as detailed below. The
specific changes to the regulations proposed herein are intended to be
prospective standards only. If finalized, these regulations would apply
to classification and critical habitat rules finalized after the
effective date of this rule and would not apply retroactively to
classification and critical habitat rules finalized prior to the
effective date of this rule. Nothing in these proposed revisions to the
regulations is intended to require (at such time as this rule becomes
final) that any prior final listing, delisting, or reclassification
determinations or previously completed critical habitat designations be
reevaluated on the basis of any final regulations.
Section 424.11--Factors for Listing, Delisting, or Reclassifying
Species
Economic Impacts
We are proposing to restore the phrase ``without reference to
possible economic or other impacts of such determination'' to the end
of 50 CFR 424.11(b) to clarify and affirm that, consistent with the
plain language of the statute, the economic impacts and any other
impacts that might flow from a listing decision must not be taken into
account when making listing, reclassification, and delisting
(collectively, classification) determinations. In 2019, when we removed
this phrase, we reasoned that it was not necessary because neither the
Act nor the legislative history indicates that Congress intended to
completely prohibit the Services from compiling economic information
about potential listings, and because there may be circumstances in
which referencing economic or other impacts would be informative to the
public. Based on our subsequent review of the 2019 rule, the language
of the Act, and the legislative history, we find that this change was
not the most reasonable interpretation and created the problematic
impression that the Services would begin to compile information
regarding the economic impacts of classification determinations and
that the Services might actually take such information into account
directly or indirectly when making classification determinations, which
would run afoul of the Act's mandate. When evaluating a species'
classification status, the Services cannot take into account potential
economic impacts that could stem from the classification decision, such
as costs associated with prohibitions on commercial harvest or
interstate sale of that species, or other impacts, such as potential
restrictions on land management.
The Act states that determinations under section 4(a)(1) are to be
made solely on the basis of the best scientific and commercial data
available. Congress added this requirement through amendments to the
Act in 1982 (Pub. L. 97-304, Oct. 13, 1982). The legislative history
for the 1982 amendments describes the purposes of the amendments using
the following language (emphases added): ``to ensure that [listing and
delisting] decisions . . . are based solely upon biological criteria,''
Conf. Rep. (H.R.) No. 97-835 (1982) (``Conf. Rep.''), at 19; ``to
prevent non-biological considerations from affecting [listing and
delisting] decisions,'' id.; and ``economic considerations have no
relevance to [listing and delisting] determinations,''
[[Page 40766]]
id. at 20. The legislative history of the Act is clear that the phrase
``commercial data'' is intended only to allow for consideration of
``trade data,'' '' was ``not intended, in any way, to authorize the use
of economic considerations in the process of listing a species.'' See
H.R. Rep. 97-657 (H.R. Rep. No. 567, 97th Cong., 2nd Sess. 1982, 1982
U.S.C.C.A.N. 2807, 1982 WL 25083) at 20. Similarly, clarifying that the
Services cannot take into account potential economic impacts stemming
from classification when making such determinations does not preclude
the Services from evaluating economic data and information relevant to
understanding the threats to the species that must be assessed under
the statutory factors. In passing the Act, Congress declared that
untempered economic growth and development had rendered species extinct
(16 U.S.C. 1531(a)(1)) and instructed the Services to assess whether
species are threatened by habitat destruction and other human-made
threats (16 U.S.C. 1533(a)(1)(A)-(E)).
The removal of this phrase from the regulations, as well as certain
statements made by the Services in the preamble accompanying its
removal (see 83 FR 35193 at 35194-95, July 25, 2018), caused confusion
regarding the Services' intentions with respect to the collection,
presentation, and consideration of economic impact information stemming
from the classification of species. The Services never intended, as a
matter of general or routine practice, to compile, analyze, or present
information pertaining to the economic impacts of species
classification. However, as a result of removing this phrase, some
stakeholders expected us to do just that and provided comments to that
end. Restoring this phrase to the regulations would address this
confusion and remove this expectation.
Furthermore, even the appearance of an intention to consider
economic impact information could undermine the Services'
classification determinations. Any suggestion by the Services that they
could ignore the clear statutory sideboards in reaching their
classification determinations could appear to taint an otherwise
appropriate, science-based listing determination and could lead to
needless and time-consuming litigation to determine whether any
economic impact considerations were improperly taken into account--
litigation that would do nothing to further the conservation of
species. We find that the previous regulatory language is most
consistent with the intent of Congress and provides an important
guardrail for the scientific integrity of classification
determinations; therefore, we are proposing to restore this language to
the regulations.
Foreseeable Future
We propose to revise Sec. 424.11(d), which describes the Services'
framework for interpreting and implementing the term ``foreseeable
future'' in the Act's definition of ``threatened species'' (16 U.S.C.
1532(20)). The interpretation in the 2019 rule's framework, consistent
with the Services' longstanding practice, was based on a 2009 opinion
from the Department of the Interior, Office of the Solicitor (M-37021,
January 16, 2009; ``M-Opinion''), that provides guidance on addressing
the concept of the foreseeable future within the context of determining
the status of species. Following promulgation of the 2019 regulations,
the language in the final rule created confusion regarding the way in
which the Services interpret and implement this term. We now find it is
appropriate to revise this regulatory provision to explain more clearly
the concept of the foreseeable future as it is used in the Act's
definition of a ``threatened species'' and to align the regulatory
language more closely to that of the M-Opinion as discussed below. As
noted below, however, we are also considering whether rescission of the
provision at Sec. 424.11(d) may be more appropriate than revising the
regulatory framework.
The ``foreseeable future'' concept in the Act's definition of
``threatened species'' sets the temporal structure that guides the
Services in evaluating the best available scientific information when
determining whether the species meets the substantive standard set out
in the Act's definition of a threatened species. The second sentence in
the ``foreseeable future'' paragraph we added to the regulations in
2019 (i.e., ``reasonably determine that both the future threats and the
species' responses to those threats are likely'') created confusion,
because it seemed to suggest the Services were adopting a novel
requirement to conduct an independent analysis of the status of the
species, rather than simply articulating how we determine the
appropriate timeframe over which to conduct that analysis. The
statutory reference to the ``foreseeable future'' simply sets the time
period within which to make the substantive determination about the
status of the species (i.e., whether the species is likely to become an
endangered species, within the foreseeable future, 16 U.S.C. 1532(20).
Therefore, we are proposing to delete the current second sentence
and replace it with the following new sentence: ``The term foreseeable
future extends as far into the future as the Services can reasonably
rely on information about the threats to the species and the species'
responses to those threats.'' This proposed language more clearly
explains the appropriate role of the foreseeable future concept in
listing determinations and is also consistent with the M-Opinion that
has guided the Services since 2009 in interpreting this statutory term.
Under the M-Opinion, the extent of the foreseeable future depends
on our ability to reasonably rely on information to anticipate the
future. The M-Opinion describes a forecast or prediction into the
foreseeable future as something that a reasonable person would rely on
in making predictions about their own future (M-37021, at 8).
Consistent with the best available information standard, we do not need
to have absolute certainty about the information we use; rather, we
need to have a reasonable degree of confidence in the prediction. Under
the revisions we are proposing, the Services would continue to avoid
speculation and ensure that the data, information, analysis, and
conclusions we rely upon are rationally articulated and fully
supported.
While we propose specific revisions to Sec. 424.11(d), the
Services are also considering whether this paragraph should be
rescinded in its entirety. Prior to the addition of this provision to
the regulations in 2019, both Services had been relying on M-Opinion
37021 to construe the phrase ``foreseeable future'' and would continue
to do so even in the absence of the regulatory framework regarding the
foreseeable future. Maintaining an interpretation of this statutory
phrase in the regulations is of limited utility to the Services, as
well as potentially confusing to the public, if that regulatory
provision is susceptible to being read or understood as inconsistent
with the M-Opinion, which provides a more thorough and detailed
examination and explanation of how this statutory phrase is
interpreted. While the M-Opinion standing alone does not have the force
of law and is not binding on NMFS, both Services nonetheless continue
to find it is a reasonable interpretation of the statute and intend to
continue relying on it to support their listing decisions. In the
absence of a regulatory framework regarding the foreseeable future, the
Services would still be required to document and explain in their
listing determinations how the best available data support decisions
with respect to
[[Page 40767]]
species' status over the foreseeable future.
Factors Considered in Delisting Species
We propose to make several revisions to Sec. 424.11(e) to better
clarify the procedure and standards that the Services will apply when
making delisting decisions. (These provisions were previously included
at Sec. 424.11(d).) First, we propose to revise the opening sentence
of this section by replacing the phrase ``shall delist a species if''
with ``it is appropriate to delist a species if.'' While this proposed
revision does not substantively change the meaning, standards, or
procedure for delisting, we find this change would remove the potential
for confusion or concerns that the Services can or will take immediate
action to delist a species upon completion of a status review without
following notice-and-comment rulemaking procedures, or that the outcome
of such a rulemaking is predetermined in any way. The fundamental
question under the Act for listing, delisting, or reclassification is
whether the species meets the definition of an ``endangered species''
or ``threatened species'' because of any of the factors in section
4(a)(1) of the Act, which is the standard we have retained in our
regulations. As required by the Act, the Services intend to continue to
base delisting determinations on the best available scientific and
commercial data and to delist species through a rulemaking process that
allows for peer review, a proposed delisting rule open to public
comment, and a final rule that responds to and incorporates comments as
appropriate. Furthermore, the word ``shall'' in these regulations is
not necessary for requiring or ensuring that the Services abide by the
Act's standards, which apply to all delisting decisions and cannot be
supplanted by regulation.
The current regulations in Sec. 424.11(e) list three circumstances
in which it is appropriate to delist a species: the species is extinct,
the species does not meet the definition of a threatened or endangered
species, and the listed entity does not meet the definition of a
species. These three general categories of circumstances have been in
the Services' joint regulations for decades (e.g., see 45 FR 13010 at
13022, February 27, 1980). Revisions to the wording of these
circumstances were made in 2019 to achieve three main goals: to
simplify and streamline what was considered unnecessary and potentially
confusing regulatory text, to eliminate the possibility of
misinterpreting the categories of circumstances as actual criteria for
delisting, and to clarify that the standards applicable to listing and
delisting determinations are the same. As part of those revisions, we
removed the word ``recovery'' from the list of reasons for delisting at
what was then Sec. 424.11(d)(2)) and changed the wording of the
circumstance indicating that a species warrants delisting if it does
not meet the definition of a threatened or endangered species.
Specifically, this circumstance, as currently specified in 50 CFR
424.11(e)(2)), was revised in 2019 to indicate that a species would be
delisted if it does not meet the definition of an endangered species or
a threatened species and that, in making such a determination, the
Services would apply the same factors and standards as when making
listing and reclassification determinations.
As we explained in the 2019 rule and the associated proposed rule,
in making this revision, our intention was to clarify that the standard
for whether a species merits protection under the Act should be applied
consistently, regardless of whether the context is potential listing,
reclassification, or delisting; and to remove the misperception that
delisting decisions are contingent upon the satisfaction of a recovery
plan for that species (e.g., 84 FR 45020 at 45036, August 27, 2019).
This revision and the removal of the word ``recovery'' were the focus
of many public comments. Commenters expressed concerns that the
Services would begin to delist species before they are recovered and
asserted that these revisions could circumvent recovery plans and
improperly make section 4(f) of the Act meaningless (84 FR 45020 at
45035, August 27, 2019). As we explained in the 2019 rule, we disagreed
that the Services would begin to delist species before they are
recovered and indicated that we would continue to develop and use
recovery plans to guide recovery of listed species consistent with the
Act. We also explained that the revisions in no way would diminish the
Services' goal of recovering threatened and endangered species.
Although we do not agree that any of the outcomes expressed in
comments received in 2019 would come to pass under the regulations as
revised in 2019, after reconsidering these regulations we find that it
is appropriate and preferable to include ``recovered'' in the delisting
regulations as an express, important example of when a species should
be delisted. Therefore, we propose to insert the phrase ``the species
is recovered'' at the beginning of this particular provision.
Specifically, we are proposing to revise 50 CFR 424.11(e)(2) to read as
follows: The species is recovered or otherwise does not meet the
definition of a threatened or endangered species. In making such a
determination, the Secretary shall consider the factors and apply the
standards set forth in paragraph (c) [of Sec. 424.11] regarding
listing and reclassification.
We find that inclusion of the word ``recovered,'' and thus the
concept of recovery, in the delisting regulations acknowledges one of
the principal goals of the Act and of the Services. Using the term
``recovered'' in our regulations maintains a clear linkage between this
primary goal and one of the circumstances in which the Services would
delist a species. Because this section of the regulations still clearly
indicates that the Secretary must consider the factors and standards of
section 4 of the Act when evaluating species for delisting, the
revision we now propose does not alter, in any way, the set of
circumstances in which delisting is appropriate, or the standards or
process for doing so. As courts have made clear, satisfying a recovery
plan is one, but not the exclusive, possible pathway by which a species
may reach the point of no longer requiring the protections of the Act
(Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012)).
We note that we are not proposing to remove the phrase ``does not
meet the definition of a threatened or endangered species,'' which was
added to Sec. 424.11(e) in 2019. We are retaining this phrase because
the Act requires that species added to or retained on the lists of
threatened and endangered species meet the definition of either a
``threatened species'' or an ``endangered species.'' We are also
retaining this phrase because recovery is not the only reason that a
species may not meet the definition of a threatened or endangered
species. For example, additional data may become available after a
species has been listed that reveal that another species that was
previously classified as taxonomically distinct is actually part of the
listed entity. In this hypothetical example, the additional data could
potentially lead to a finding that the particular listed species does
not meet the definitions of either ``threatened species'' or
``endangered species'' and should therefore be delisted.
Lastly, we propose to remove the word ``same'' from both instances
where it occurs in the sentence stating that we must ``consider the
same factors and apply the same standards'' when determining whether a
species is recovered or no longer warrants listing as when listing or
reclassifying a
[[Page 40768]]
species. As already stated, while delisting determinations must review
the species' status and consider the factors listed in section 4(a)(1)
of the Act using the best scientific and commercial data available, we
propose to remove the word ``same'' to eliminate any possible, though
unintended, confusion that the analysis is limited to those same,
specific factors or threats that initially led us to list that
particular species. For example, a particular threat or combination of
threats, such as overfishing and inadequate harvest regulations, may
have caused a species' initial decline and endangerment, but those
threats may have subsequently been controlled, and other threats, such
as habitat modification and disease, may have since arisen. A status
review conducted to determine whether a species warrants delisting must
consider not just the same factors that led to the initial listing, but
also any relevant factors that affect the biological status of the
species. Thus, while the set of factors identified in section 4(a)(1)
of the Act and the standards outlined in section 4(b)(2) of the Act
apply in the context of listing, delisting, and reclassification
decisions, the particular circumstances and facts may differ.
In addition to the substantive revisions discussed above, we are
also proposing one administrative revision to Sec. 424.11(a) to
correct a cross-reference. The citation to ``Sec. 424.02(k)'' is wrong
as Sec. 424.02 does not include a paragraph (k) or any designated
paragraphs. Therefore, we are proposing to replace the reference to
``Sec. 424.02(k)'' with a reference to ``Sec. 424.02.''
Section 424.12--Criteria for Designating Critical Habitat
Not-Prudent Determinations
We propose to revise Sec. 424.12(a)(1), which provides a non-
exhaustive list of circumstances in which the Services may find it is
not prudent to designate critical habitat. Specifically, we propose to
remove the second half of Sec. 424.12(a)(ii), which states that
designation of critical habitat would not be prudent if threats to the
species' habitat stem solely from causes that cannot be addressed
through management actions resulting from consultations under section
7(a)(2) of the Act. This was a newly identified circumstance adopted
through the 2019 rule. In adding this language, our stated intent was
to identify a circumstance in which designation of critical habitat may
not contribute to the conservation of the species. As explained in the
preamble to the 2019 rule, scenarios in which such a circumstance might
arise include when the listed species is experiencing adverse impacts
solely from climate-driven threats such as melting glaciers, sea-level
rise, or reduced snowpack and no other habitat-related threats (84 FR
45020 at 45042, August 27, 2019).
Following our review of this language in light of the goals laid
out in E.O. 13990, we find that this clause requires that the Services
presuppose the scope and outcomes of future section 7 consultations
under the Act and suggests that the only conservation benefits of a
critical habitat designation are through the section 7 process, a
presumption not supported by the language of the Act or court decisions
(see, e.g., Natural Res. Def. Council v. U.S. Dep't of the Interior,
113 F.3d 1121, 1126 (9th Cir. 1997) (rejecting FWS's argument that, in
order for there to be a benefit from designation, the majority of land
use activities in critical habitat would have to be subject to section
7 consultation); Conservation Council for Haw. v. Babbitt, 2 F. Supp.
2d 1280, 1286 (D. Haw. 1998) (reasoning that even though consultation
requirements apply only to Federal activities, Congress did not exclude
private lands from the designation of critical habitats in part because
``the designation of the critical habitat provides greater information
[than listing alone] to the public and state and local government by
informing not only that the species is endangered or threatened but
also what area is essential to the conservation of the species.'')).
This language has also been interpreted by the public as potentially
allowing the Services to regularly decline to designate critical
habitat for species threatened by climate change, which was not our
intent.
For these reasons, and to clarify that the Services intend to
continue to consider anticipated climate-change impacts in the context
of critical habitat designations, we are now proposing to remove this
language. While the Act provides some limited flexibility to find that
the designation of critical habitat should not be undertaken for
particular species, as we described in the preamble to the 2019 rule,
not-prudent determinations are rare, and we anticipate they will
continue to be rare.
We also propose to delete Sec. 424.12(a)(1)(v), which is the last
circumstance set forth in Sec. 424.12(a)(1), and states that the
Secretary otherwise determines critical habitat would not be prudent
based on the best scientific data available. Setting this text out
separately within the list of circumstances in which the Secretary
could potentially make a not-prudent determination inadvertently gave
the appearance that the Services might overstep their authority under
the Act by issuing ``not prudent'' determinations for any number of
unspecified reasons that may be inconsistent with the purposes of the
Act. As this was not our intention, we are proposing to remove the
circumstance set out in Sec. 424.12(a)(1)(v). However, we cannot
foresee all possible circumstances in which critical habitat may not be
prudent, and the statute does not identify the circumstances in which a
designation is ``not prudent.'' Rather, the statute delegates to the
Secretary the authority to make a determination that critical habitat
is not prudent, subject to the requirements that the determination is
based on the best available scientific data and so long as the
determination is not inconsistent with the conservation purposes of the
Act. Therefore, we propose to retain in the regulations a recognition
that the Secretary may make not-prudent determinations in cases that do
not fit within the remaining circumstances set forth in Sec.
424.12(a)(1)(i)-(iv) by inserting a clause into the opening sentence of
this section to indicate that the list of identified circumstances is
not intended to be exhaustive.
Designating Unoccupied Areas
We propose to make several revisions to Sec. 424.12(b)(2) to
address the designation of specific areas as unoccupied critical
habitat (specific areas outside the geographical area occupied by the
species at the time the species is listed under the Act). As we discuss
further below, the changes we now propose would remove requirements for
designating unoccupied critical habitat that are not mandated by the
language or structure of the Act and, in the view of the Services,
would better fulfill the Secretaries' authority to further the
conservation purposes of the Act. As part of these revisions, we also
propose to make a series of wording changes to improve readability and
organization of this section of the regulations.
The regulations governing the designation of unoccupied critical
habitat have been amended twice within recent years, once through a
2016 rule (81 FR 7414, February 11, 2016) and then through the 2019
rule that we are now revisiting (84 FR 45020, August 27, 2019). In both
the 2016 and 2019 rules, the Services addressed the concept of
prioritizing or sequencing how occupied and unoccupied areas should be
considered when developing a critical habitat designation. In the 2019
rule, we revised the criteria for designating unoccupied critical
habitat to explicitly
[[Page 40769]]
require a two-step process that prioritizes the designation of occupied
areas over unoccupied areas by adding the following sentence: The
Secretary will only consider unoccupied areas to be essential where a
critical habitat designation limited to geographical areas occupied
would be inadequate to ensure the conservation of the species (84 FR
45020 at 45053, August 27, 2019). A similar prioritization step was
removed from the implementing regulations in 2016, because, at that
time, we determined that it was an unnecessary and unintentionally
limiting requirement (81 FR 7414 at 7434, February 11, 2016). The
revisions made in 2016 instead allowed for simultaneous consideration
of occupied and unoccupied habitat according to the definition of
``critical habitat'' in the Act. In justifying the adoption of new
regulatory requirements for designating unoccupied areas in 2019, which
included a two-step prioritization process, we explained that we were
responding to concerns that the Services would inappropriately
designate overly expansive areas of unoccupied critical habitat (83 FR
35193 at 35197-98, July 25, 2018), and that a two-step approach would
help further Congress' intent to place increased importance on habitat
within the geographical area occupied by the species (84 FR 45020 at
45043, August 27, 2019).
We now propose to address this issue anew by revising Sec.
424.12(b)(2) to set out a clear and logical approach for identifying
unoccupied critical habitat that, as we discuss below, better fulfills
the statutory objectives regarding critical habitat. Specifically, our
proposed, revised version of Sec. 424.12(b)(2) is as follows: After
first evaluating areas occupied by the species, the Secretary will
identify, at a scale determined by the Secretary to be appropriate,
specific areas outside the geographical area occupied by the species at
the time of listing that the Secretary determines are essential for the
conservation of the species. Such a determination must be based on the
best scientific data available.
This proposal would insert text stating ``after identifying areas
occupied by the species at the time of listing'' to the first sentence
and delete the second sentence of the current regulation stating that
the Secretary will first identify areas occupied by the species. As is
clear from the text, under this proposed change the Services would
continue to identify and consider areas that are occupied by the
species before evaluating areas that are unoccupied by the species. We
find that this approach is the most logical way to begin a critical
habitat analysis and has consistently been the practice of the Services
regardless of which regulations have been in place.
However, we also propose to remove the sentence that was added in
2019 stating that the Secretary ``will only consider'' unoccupied areas
to be essential where a critical habitat designation limited to
occupied areas would be inadequate to ensure the conservation of the
species. Deletion of this sentence from the current regulation would
remove the requirement that the Secretary exhaust all occupied areas
before considering whether any unoccupied areas may be essential for
conservation of the particular species. Neither the Act nor the
legislative history creates a requirement to exhaust occupied areas
before considering designation of unoccupied areas; therefore, this is
an area where the statutory framework contains a gap that the Services
may fill with a reasonable interpretation as we are presenting here.
In the preamble to the 2019 rule, we presented certain legislative
history to support the approach in that final rule, but those sources
do not unequivocally support the approach that was ultimately adopted.
For example, although we stated in 2019 that Congress intended to place
increased importance on habitat within the geographical area occupied
by the species (84 FR 45020 at 45043, August 27, 2019), it is not clear
that that was the best interpretation of the intent of Congress from
the H.R. Rep. 95-1804, which we cited. Moreover, the Act does not
require that occupied habitat be found inadequate for conservation
before unoccupied habitat can be designated. Rather the Act requires
that the Services identify areas that meet the definition of critical
habitat--occupied and unoccupied--based on the best available data, and
then consider economic, national security, and other relevant impacts
of designating any particular area. The 1978 House Report, for example,
expressed the House Committee's belief that ``the Secretary should be
exceedingly circumspect in the designation of critical habitat outside
of the presently occupied area of the species'' (H.R. 96-1625, at 25
(1978)), but it does not require determining that a designation limited
to occupied critical habitat is inadequate before allowing any
consideration of unoccupied areas.
More importantly, the ``inadequacy'' requirement added in 2019
could undermine the Secretaries' duty to designate areas that otherwise
meet the definition of critical habitat and are essential to support
the conservation of the species. Under the proposed revisions, we would
no longer need to determine that a designation limited to occupied
areas is ``inadequate to ensure the conservation of the species''
before we could even consider designating unoccupied habitat. In short,
the proposed revision removes unnecessary constraints to the
Secretaries' duty to consider designation of unoccupied areas where
such areas are essential for the species' conservation and, in our
view, better aligns the regulations with the statutory definition of
``critical habitat.'' Furthermore, under the proposed revision, we
would still be required to provide a rational explanation of why any
unoccupied areas are essential for the conservation of the species.
Because the identification of areas that are essential for the
conservation of a species is a scientific and fact-specific inquiry, we
continue to recognize that the exercise of this authority requires a
reasoned explanation in the supporting administrative record for a
particular designation of why any areas that are not occupied by the
species are essential for its conservation.
In Sec. 424.12(b)(2), we also propose to strike the last sentence,
which states that for an unoccupied area to be considered essential,
the Secretary must determine, with reasonable certainty, both that the
area will contribute to the conservation of the species and that it
contains one or more of the physical or biological features essential
to the conservation of the species. After reconsidering this particular
sentence, which was added to the regulations in 2019, we find that
these additional criteria for determining whether an area is
``essential'' impose standards for designating unoccupied critical
habitat that go beyond, and could potentially conflict with, the
science-based determination required by the statute and the Act's
mandate to designate critical habitat to the maximum extent prudent and
determinable based on the best scientific data available (see 16 U.S.C.
1533(a)(3)(A), 1533(b)). The Act requires that critical habitat be
designated on the basis of the best scientific data available and,
based on those data, whether and what specific unoccupied areas are
essential for the conservation of the species.
Imposing a ``reasonable certainty'' standard is also unnecessary in
light of the best available data standard of the Act, because this
standard already inherently contains an obligation for the Services not
to base their decisions on information that is merely potential or
speculative. Moreover, the statutory best
[[Page 40770]]
scientific data available standard has not previously been interpreted
to require a specific level of certainty, such as the ``high degree''
level articulated in the 2019 final rule preamble (84 FR 45020 at
45022, August 27, 2019). Imposing a specific standard of certainty
therefore could potentially result in the Services excluding from
consideration the best available data merely because it was deemed not
to be sufficiently certain. All of the Services' critical habitat
designations must comply with both the Act's ``best scientific data
available'' standard as well as the standards for rational agency
decision-making.
Courts have held that the Act's ``best scientific data available''
standard, which also applies (with slight differences not relevant
here) to listing decisions and biological opinions under section 7,
does not require that the information relied upon by the Services be
perfect or free from uncertainty. (See, e.g., Oceana, Inc. v. Ross, 321
F. Supp. 3d 128, 142 (D.D.C. 2018) (``the plain language of the
provision requires NMFS only to use the best data available, not the
best data possible'') (emphases in original); Alaska Oil & Gas Ass'n v.
Jewell, 815 F.3d 544, 555 (9th Cir. 2016) (noting that the Act's best-
data-available requirement does not require perfection in the data but
only precludes basing decisions on speculation or surmise) (citations
omitted).
In short, the Act ``accepts agency decisions in the face of
uncertainty'' where the Services have used the best data available.
Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1164 (9th Cir.
2010) (citations omitted); see also In re Polar Bear Endangered Species
Act Listing & 4(d) Rule Litigation, 794 F. Supp. 2d 65, 106 (D.D.C.
2011) (``It is well-settled in the D.C. Circuit that FWS is entitled--
and, indeed, required--to rely upon the best available science, even if
that science is uncertain or even `quite inconclusive.' '') (citation
omitted), aff'd, 709 F.3d 1 (D.C. Cir. 2013); Oceana, Inc. v. Evans,
384 F. Supp. 2d 203, 219 (D.D.C.) (``Time and again courts have upheld
agency action based on the `best available' science, recognizing that
some degree of speculation and uncertainty is inherent in agency
decision-making, even in the precautionary context of the ESA.'')
(emphasis in original), order clarified, 389 F. Supp. 2d 4 (D.D.C.
2005).
In proposing to delete the last sentence of Sec. 424.12(b)(2), we
would also remove the requirement for unoccupied areas to contain (with
reasonable certainty) one or more of the physical or biological
features essential to the conservation of the species (``essential
features''). Congress expressly defined occupied critical habitat and
unoccupied critical habitat separately, mentioning essential features
only in connection with occupied critical habitat (see 16 U.S.C.
1532(5)(A)(i)). Further, with respect to unoccupied habitat, the Act
requires a determination that designated areas are essential for the
conservation of the species (see 16 U.S.C. 1532(5)(A)(ii)). However, in
2019, we interpreted the legislative history as supporting a conclusion
that unoccupied critical habitat must contain one or more essential
feature(s). In particular, in the 2019 rule preamble, we pointed to a
statement in the 1978 House Committee report and asserted that the
Services' 1978 regulatory definition of ``critical habitat'' could
conceivably lead to the designation of virtually all of the habitat of
a listed species as its critical habitat (H.R. Rep. No. 95-1625, at 25
(1978)), and we implied that this statement, among others, reflected an
intention on the part of Congress that unoccupied critical habitat be
defined more narrowly than as areas contemplated for species expansion.
See 84 FR 45020 at 45022, August 27, 2019 (citing H.R. Rep. No. 95-1625
pp. 18, 25 (1978); S. Rep. No. 95-874, at 9-10 (1978)).
In reviewing the discussion presented in the 2019 rule and the
legislative history related to the 1978 amendments to the Act, we now
find that the 2019 rule preamble created unnecessary tension with the
statutory text as adopted (see 16 U.S.C. 1532(5)(A); 84 FR 45020 at
45022, August 27, 2019 (describing portions of 1978 House and Senate
Reports reacting to the Services' 1978 regulatory definition of
``critical habitat'')). While we relied on those excerpts from
legislative history regarding earlier draft statutory language as
illuminating the meaning of ``unoccupied critical habitat,'' the actual
text of the Act does not carry over the requirements for occupied
critical habitat into the definition of unoccupied critical habitat.
The best evidence of congressional intent is well understood to be
reflected in the text of a statute itself (see, e.g., Sutherland
Statutes and Statutory Construction, volume 2A, section 45:5 (7th ed.)
(``Judicial opinions overwhelmingly emphasize the legislature's words
as the most reliable source of legislative intent, particularly when a
statute is `unambiguous.' '') (internal citations omitted)), and the
statutory definition of ``critical habitat'' clearly establishes
different criteria for occupied and unoccupied critical habitat (see 16
U.S.C. 1532(5)(A)). By confounding the criteria for defining occupied
and unoccupied critical habitat, we eroded the statutory distinction
between those two types of areas and made the standards for designating
those areas more similar than what the Act plainly indicates.
We acknowledge, as discussed in the preamble to the 2019 rule, that
a number of court decisions have addressed the relationship between the
standards for designation for unoccupied critical habitat and those for
occupied critical habitat. The revised Sec. 424.12(b)(2) we now
propose would be consistent with the cases referenced in the 2019
preamble (Home Builders Ass'n v. U.S. Fish & Wildlife Serv., 616 F.3d
983, 990 (9th Cir. 2010) (``Essential conservation is the standard for
unoccupied habitat . . . and is a more demanding standard than that of
occupied critical habitat.''); Cape Hatteras Access Pres. All. v. U.S.
Dep't of the Interior, 344 F. Supp. 2d 108, 119 (D.D.C. 2004) (``it is
not enough that the area's features be essential to conservation, the
area itself must be essential'')). These decisions do not add any
limitations to the designation of unoccupied critical habitat that do
not appear in the Act itself. Our proposal best conforms to the
statutory standard for designating unoccupied critical habitat by
reiterating the requirement that the Secretary must determine any
unoccupied areas identified for designation are essential to the
species' conservation.
The preamble of the 2019 rule also pointed to the decision in
Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018), as justification
for adding the requirement that at least one essential feature be
present in order for unoccupied areas to qualify for designation as
critical habitat. In Weyerhaeuser, the Court held that an area is
eligible for designation as critical habitat under the Act only if it
is habitat for that species. The Weyerhaeuser decision, however, does
not resolve the specific issue of how to define ``habitat'' against the
backdrop of the two prongs of the statutory definition of ``critical
habitat.'' To avoid the potential for rendering any part of the
statutory language surplusage, we find that our implementing
regulations must clearly accord independent meaning to each prong.
Therefore, we no longer find that importing language from the statutory
definition of ``occupied'' critical habitat (regarding essential
features) into the requirements for defining ``unoccupied'' critical
habitat is the best way to resolve this issue. We now find that
requiring
[[Page 40771]]
reasonable certainty that one or more essential features are present in
an area is an unnecessary and, ultimately, an incomplete substitute for
the full science-based and species-specific inquiry into whether an
area qualifies as habitat. As we articulated in the recent final rule
rescinding the regulatory definition of the term ``habitat,'' we
recognize the importance of the Supreme Court's ruling in Weyerhaeuser
and will ensure that the administrative record for each designation
documents how the designated areas are in fact habitat for the
particular species at issue, using the best available scientific data
and explaining the needs of that species (87 FR 37757, June 24, 2022).
In the 2019 rule preamble, we also acknowledged that the Services
had not previously taken the position that unoccupied critical habitat
must contain essential features (see 84 FR 45023, August 27, 2019). As
a practical matter, many areas of unoccupied habitat that are included
in a critical habitat designation will contain one or more habitat
features essential to the conservation of the species. However, the
plain language of the Act does not require this to be the case, and we
no longer consider the best reading of the Act to require that
unoccupied areas contain ``one or more of those physical or biological
features essential to the conservation of the species'' for the area
itself to be essential for that species' conservation. The revisions we
are now proposing would bring the Services' interpretation in line with
this better reading of the statute.
In addition, we note that neither the two-step prioritization
process for designating unoccupied critical habitat nor the requirement
for ``reasonable certainty'' for conservation or presence of essential
features is necessary to achieve the purported goal of avoiding overly
expansive designations. The Act sufficiently guards against this
outcome by requiring the Secretary to explain why any unoccupied areas
are essential for the conservation of the species and by providing in
section 3 that the Secretary will generally not designate all areas
that can be occupied by the species (16 U.S.C. 1532(5)(C)).
We also propose to make a series of more minor revisions to Sec.
424.12(b)(2) that collectively would streamline the text and improve
clarity and readability. Specifically, we propose to make the
regulatory language of Sec. 424.12(b)(2) consistent with, and parallel
to, the regulatory language of the preceding paragraph (Sec.
424.12(b)(1)) by replacing the existing phrase ``will designate as
critical habitat'' with the words ``will identify, at a scale
determined by the Secretary to be appropriate, specific areas. . . .''
This proposed revision would also describe the process of designating
critical habitat in a more logical way, because identifying specific
areas that may qualify as unoccupied critical habitat must occur before
any designation of those areas; even after identifying specific areas
that qualify as critical habitat, the Services must complete
subsequent, required steps (e.g., consideration of impacts as outlined
in 50 CFR 424.19) before designating those areas as critical habitat.
We also propose to make a minor clarifying amendment to the first
sentence of Sec. 424.12(b)(2) by inserting the phrase ``at the time of
listing'' to avoid potential ambiguity and align the characterization
of unoccupied areas with the statutory definition of ``critical
habitat.'' While this additional language does not alter the meaning or
intent of the first sentence of Sec. 424.12(b)(2), the proposed
language would improve the clarity of the regulatory text. In the first
sentence, we also propose to simplify the regulatory text by replacing
the existing phrase ``only upon a determination that such areas'' with
``that the Secretary determines.'' The current phrase is unnecessary,
as the Act already clearly establishes through the section 3 definition
of ``critical habitat'' that the designation of unoccupied areas must
be based upon a determination that those areas are essential for the
conservation of the species (see 16 U.S.C. 1532(5)(a)(ii)).
Lastly, we propose to add a sentence to the end of Sec.
424.12(b)(2) that reiterates the statutory requirement to identify
unoccupied critical habitat using the best scientific data available.
This additional proposed sentence serves to emphasize the statutory
requirement that the determination of whether a specific area is
essential for the conservation of the species must be driven by the
best available data.
In conclusion, we have reconsidered the 2019 rule and now find that
the interpretation of unoccupied critical habitat adopted in 2019 is
not the best one for the multiple reasons outlined here. In view of the
Act's framework and conservation purposes, as well as the ``best
scientific data available'' standard (16 U.S.C. 1533(b)(2)) and the
requirement to designate critical habitat ``to the maximum extent
prudent and determinable'' (16 U.S.C. 1533(a)(3)(A)), we find that it
is most appropriate for the Services to make all the required
determinations on the basis of the best available science and the
particular record for the action at hand, consistent with the generally
applicable legal standards. By deleting the multiple, additional
requirements for designating unoccupied critical habitat that were
added in 2019, we would restore the implementation of section 3(5)(A)
of the Act so as to better reflect the statutory language and the
legislative history.
Request for Comments
We are seeking comments from all interested parties on the proposed
revisions to 50 CFR part 424, as well as on any of our analyses or
conclusions in the Required Determinations section of this document. We
will also accept public comment on all aspects of the 2019 rule,
including whether any of those provisions should be rescinded in their
entirety (restoring the prior regulatory provision) or revised in a
different way. All relevant information will be considered prior to
making a final determination regarding the regulations for listing
endangered and threatened species and designating critical habitat.
Depending on the comments received, we may change the proposed
regulations based upon those comments. You may submit your comments and
materials concerning the proposed rule by one of the methods listed in
ADDRESSES. We request that you send comments only by the methods
described in ADDRESSES. Comments sent by any other method, to any other
address or individual, may not be considered.
Comments and materials we receive will be posted and available for
public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This generally means
that we will post any personal information you provide us. If you
provide personal identifying information in your comment, you may
request at the top of your document that we withhold this information
from public review. However, we cannot guarantee that we will be able
to do so. Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs (OIRA)
in the Office of Management and Budget will review all significant
rules. OIRA has determined that this proposed rule is significant.
Executive Order 14094 amends E.O. 12866 and reaffirms the
principles of E.O. 12866 and E.O 13563 and states that regulatory
analysis should facilitate
[[Page 40772]]
agency efforts to develop regulations that serve the public interest,
advance statutory objectives, and be consistent with E.O. 12866, E.O.
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further 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 proposed rule in a manner consistent with
these requirements. This proposed 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.''
We are proposing revisions to the Services' implementing
regulations at 50 CFR 424.11 and 424.12. Specifically, the Services are
proposing changes to implementing regulations at: (1) Sec. 424.11(b),
the factors for listing, delisting, or reclassifying species; (2) Sec.
424.11(d), the foreseeable future framework; (3) Sec. 424.11(e), the
standards for delisting; (4) Sec. 424.12(a), criteria for not prudent
determinations for critical habitat; and (5) Sec. 424.12(b)(2), the
criteria for designation of unoccupied critical habitat. The preamble
to this proposed rule explains in detail why we anticipate that the
regulatory changes we are proposing will improve the implementation of
the Act.
When we made changes to these same sections in 2019, we compiled
historical data on the occurrence of specific metrics of listing and
critical habitat determinations by the Services in an effort to
describe for OMB and the public the potential scale of any effects of
those regulations (on <a href="https://www.regulations.gov">https://www.regulations.gov</a>, see Supporting
Document No. FWS-HQ-ES-2018-0006-0002 of Docket No. FWS-HQ-ES-2018-
0006; Docket No. 180202112-8112-01). We presented various metrics
related to the regulation revisions, as well as historical data
supporting the metrics.
For the 2019 regulations, we concluded--with respect to the
provisions related to listing, reclassification, and delisting of
species--that, because those revisions served to clarify rather than
alter the standards for classifying species, the 2019 regulation
revisions would not change the average number of species classification
(i.e., listing, reclassification, delisting) outcomes per year. With
respect to the critical habitat provisions, we concluded that, because
the outcomes of critical habitat determinations are highly fact-based,
it was not possible to forecast reliably whether more or fewer not-
prudent determinations or designations of unoccupied critical habitat
would be made each year if the 2019 regulation revisions were
finalized.
The revisions we are now proposing to the listing, delisting, and
reclassification provisions as described above are intended to align
more closely with the statute and to provide transparency and clarity--
not only to the public and stakeholders, but also to the Services'
staff in the implementation of the Act. As a result, we do not
anticipate any change in the rate or frequency or particular
classification outcomes due to the proposed regulation. Similarly, the
proposed revisions to the provisions related to the Secretaries' duty
to designate critical habitat are intended to align the regulations
with the Act, and--because the outcomes of critical habitat analyses
are so highly fact-specific and it is not possible to forecast how many
related circumstances will arise--any future benefit or cost stemming
from these revisions is currently unknowable.
These changes provide transparency and clarity, and there are no
identifiable, quantifiable effects from the proposed rule. Further, we
do not anticipate any material effects such that the rule would have an
annual effect that would reach or exceed $200 million or would
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or Tribal governments
or communities.
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 that person's 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. We are certifying that these
proposed regulations would not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
This proposed rule would revise and clarify requirements for NMFS
and FWS in classifying species and designating critical habitat under
the Act and do not directly affect small entities. NMFS and FWS are the
only entities that would be directly affected by this proposed rule
because we are the only entities that list species or designate
critical habitat. No external entities, including any small businesses,
small organizations, or small governments, will experience any direct
economic impacts from this proposed rule. Therefore, we certify that,
if adopted as proposed, this rule would not have a significant economic
effect on a substantial number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed 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 proposed 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 the
proposed rule would not place additional requirements on any city,
county, or other local municipalities.
(b) This proposed 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 proposed rule is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
Tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
pertain to
[[Page 40773]]
``taking'' of private property interests, nor would it directly affect
private property. A takings implication assessment is not required
because this proposed rule (1) would not effectively compel a property
owner to suffer a physical invasion of property and (2) would not deny
all economically beneficial or productive use of the land or aquatic
resources. This proposed rule 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 Executive Order 13132, we have considered
whether this proposed rule would have significant federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to factors for listing,
delisting, or reclassifying species and designation of critical habitat
under the Endangered Species 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 proposed rule would not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify factors for
listing, delisting, or reclassifying species and designation of
critical habitat under the Endangered Species Act.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' the Department of the
Interior's manual at 512 DM 2, and the Department of Commerce (DOC)
``Tribal Consultation and Coordination Policy'' (May 21, 2013), DOC
Departmental Administrative Order (DAO) 218-8, and NOAA Administrative
Order (NAO) 218-8 (April 2012), we considered possible effects of this
proposed rule on federally recognized Indian Tribes. This proposed rule
is general in nature and does not directly affect any specific Tribal
lands, treaty rights, or Tribal trust resources. Therefore, we
preliminarily conclude that this proposed rule does not have ``tribal
implications'' under section 1(a) of E.O. 13175. Thus, formal
government-to-government consultation is not required by E.O. 13175 and
related policies of the Departments of Commerce and the Interior. We
will continue to collaborate with Tribes on issues related to federally
listed species and their habitats. See Joint Secretaries' Order 3206
(``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act,'' June 5, 1997).
Paperwork Reduction Act
This proposed rule does not contain any new collection of
information that requires approval by the OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
We are analyzing this proposed regulation in accordance with the
criteria of NEPA, the Department of the Interior regulations on
implementation of NEPA (43 CFR 46.10-46.450), the Department of the
Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and
the companion manual, ``Policy and Procedures for Compliance with the
National Environmental Policy Act and Related Authorities,'' which
became effective January 13, 2017. We invite the public to comment on
the extent to which these proposed regulations may have a significant
impact on the human environment or fall within one of the categorical
exclusions for actions that have no individual or cumulative effect on
the quality of the human environment. We will complete our analysis, in
compliance with NEPA, before finalizing this proposed rule.
Endangered Species Act
In developing this proposed rule, the Services are acting in their
unique statutory role as administrators of the Act and are engaged in a
legal exercise of interpreting the standards of the Act. The Services'
promulgation of interpretive rules that govern their implementation of
the Act is not an action that is in itself subject to the Act's
provisions, including section 7(a)(2). The Services have a historical
practice of issuing their general implementing regulations under the
ESA without undertaking section 7 consultation. Given the plain
language, structure, and purposes of the ESA, we find that Congress
never intended to place a consultation obligation on the Services'
promulgation of implementing regulations under the Act. In contrast to
actions in which we have acted principally as an ``action agency'' in
implementing the Act to propose or take a specific action (e.g.,
issuance of section 10 permits and actions under statutory authorities
other than the ESA), here, the Services are carrying out an action that
is at the very core of their unique statutory role as administrators--
promulgating general implementing regulations interpreting the terms
and standards of the statute.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
and use. Therefore, this action is not a significant energy action, and
no statement of energy effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you believe that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Authority
We issue this proposed 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 424
Administrative practice and procedure, Endangered and threatened
species.
Proposed Regulation Promulgation
For the reasons set out in the preamble, we hereby propose to amend
part 424, subchapter A of chapter IV, title 50 of the Code of Federal
Regulations, as set forth below:
[[Page 40774]]
PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING
CRITICAL HABITAT
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Amend Sec. 424.11 by:
0
a. In paragraph (a), removing the text ``Sec. 424.02(k)'' and adding
in its place the text ``Sec. 424.02''; and
0
b. Revising paragraphs (b), (d), and (e) to read as follows:
Sec. 424.11 Factors for listing, delisting, or reclassifying species.
* * * * *
(b) The Secretary shall make any determination required by
paragraphs (c), (d), and (e) of this section solely on the basis of the
best available scientific and commercial information regarding a
species' status without reference to possible economic or other impacts
of such determination.
* * * * *
(d) In determining whether a species is a threatened species, the
Services must analyze whether the species is likely to become an
endangered species within the foreseeable future. The term foreseeable
future extends as far into the future as the Services can reasonably
rely on information about the threats to the species and the species'
responses to those threats. The Services will describe the foreseeable
future on a case-by-case basis, using the best available data and
taking into account considerations such as the species' life-history
characteristics, threat-projection timeframes, and environmental
variability. The Services need not identify the foreseeable future in
terms of a specific period of time.
(e) It is appropriate to delist a species if the Secretary finds,
after conducting a status review based on the best scientific and
commercial data available, that:
(1) The species is extinct;
(2) The species is recovered or otherwise does not meet the
definition of a threatened or endangered species. In making such a
determination, the Secretary shall consider the factors and apply the
standards set forth in paragraph (c) of this section regarding listing
and reclassification; or
(3) The listed entity does not meet the statutory definition of a
species.
* * * * *
0
3. Amend Sec. 424.12 by:
0
a. Revising the introductory text of paragraph (a)(1) and paragraphs
(a)(1)(ii) through (iv);
0
b. Removing paragraph (a)(1)(v); and
0
c. Revising paragraph (b)(2).
The revisions read as follows:
Sec. 424.12 Criteria for designating critical habitat.
(a) * * *
(1) Designation of critical habitat may not be prudent in
circumstances such as, but not limited to, the following:
* * * * *
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(iv) No areas meet the definition of critical habitat.
* * * * *
(b) * * *
(2) After identifying areas occupied by the species at the time of
listing, the Secretary will identify, at a scale determined by the
Secretary to be appropriate, specific areas outside the geographical
area occupied by the species at the time of listing that the Secretary
determines are essential for the conservation of the species. Such a
determination must be based on the best scientific data available.
* * * * *
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks, Department of the
Interior.
Richard W. Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere, NOAA
Administrator, National Oceanic and Atmospheric Administration.
[FR Doc. 2023-13053 Filed 6-21-23; 8:45 am]
BILLING CODE 4333-15-P
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