Proposed Rule2025-20549
Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and 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
November 21, 2025
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 for section 4 of the Endangered Species Act of 1973, as amended (ESA or Act). The proposed revisions to the regulations clarify and interpret 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
<html>
<head>
<title>Federal Register, Volume 90 Issue 223 (Friday, November 21, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 223 (Friday, November 21, 2025)]
[Proposed Rules]
[Pages 52607-52615]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-20549]
-----------------------------------------------------------------------
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-2025-0039, FXES11110900000-256-FF09E23000; Docket
No. 251105-0168]
RIN 1018-B173; 0648-BN70
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.
-----------------------------------------------------------------------
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 for section 4 of the
Endangered Species Act of 1973, as amended (ESA or Act). The proposed
revisions to the regulations clarify and interpret 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: Comments must be received by December 22, 2025.
ADDRESSES: Comment submission: 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-2025-0039,
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. Comments must be submitted to <a href="https://www.regulations.gov">https://www.regulations.gov</a> before 11:59 p.m. (Eastern Time) on the date
specified in DATES.
[[Page 52608]]
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2025-0039; U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments 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 (see Request for Comments, below, for more information).
Availability of reference materials: References and, in accordance
with 5 U.S.C. 553(b)(4), a summary of this proposed rule are available
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-HQ-ES-2025-0039.
FOR FURTHER INFORMATION CONTACT: FWS/NMFS, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, <a href="/cdn-cgi/l/email-protection#3f59484c7f59484c11585049"><span class="__cf_email__" data-cfemail="167061655670616538717960">[email protected]</span></a>, 703-
358-2163; or FWS/NMFS, National Marine Fisheries Service, Office of
Protected Resources, FWS/NMFS, 301-427-8466. 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.
Please see Docket No. FWS-HQ-ES-2025-0039 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Background
The Secretaries of the Interior and Commerce (the ``Secretaries'')
share responsibilities for administering 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 (CFR) at 50 CFR part 424, were revised in 2019 (84 FR
45020, August 27, 2019, effective September 26, 2019) and again most
recently in 2024 (89 FR 24300, April 5, 2024; hereafter, ``the 2019
rule'' and ``the 2024 rule,'' respectively). The 2024 rule became
effective on May 6, 2024.
Portions of the 2024 rule are subject to pending litigation in
three different courts. First, the 2024 rule, along with other
revisions to the ESA regulations finalized in 2019, are subject to both
substantive and procedural challenges in Center for Biological
Diversity et al. v. Dep't of Interior et al., 4:24-cv-4651 (N.D. Cal.).
In addition, the 2019 and 2024 amendments to 50 CFR 424.12(a)(1) have
been challenged in Defenders of Wildlife v. U.S. Fish & Wildlife
Service, 25-cv-45 (E.D. Cal.). Lastly, the 2024 rule changes to 50 CFR
424.11(e)(2) and 50 CFR 424.12(b)(2) have been challenged in American
Farm Bureau Federation et al. v. U.S. Fish & Wildlife Service et al.,
1:25-cv-00947 (D. DC); plaintiffs in that case seek to have the 2019
rule reinstated. Prior litigation over the 2019 rule was not resolved
on the merits (Animal Legal Defense Fund v. Haaland, et al. 4:19-cv-
06812-JST (N.D. Cal.); State of California et al. V. Haaland, et al.,
4:19-cv-06013-JST (N.D. Cal.); Center for Biological Diversity et al.
V. Haaland, et al., 4:19-cv-05206-JST (N.D. Cal.)); rather, on November
16, 2022, the district court issued orders remanding the 2019
regulations to the Services without vacating them, as the Services had
voluntarily asked the court to do. Accordingly, the Services developed
the 2024 regulations to amend some aspects of the 2019 rule.
Executive Order (E.O.) 14154, ``Unleashing American Energy,''
issued January 20, 2025, directed all departments and agencies to
immediately review agency actions to identify those actions that
potentially impose an undue burden on the identification, development,
or use of domestic energy resources, and, as appropriate and consistent
with applicable law, consider suspending, revising, or rescinding
agency actions identified as unduly burdensome that conflict with this
national objective. To administer provisions of E.O. 14154, the
Secretary of the Interior subsequently issued Secretary's Order (S.O.)
3418, which indicated that FWS would work with NMFS to suspend, revise,
or rescind the ESA regulations that had been revised in 2024. E.O.
14219 also directs all departments and agencies to review and rescind
unlawful regulations that are ``based on anything other than the best
reading of the underlying statutory authority.'' See also Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024). In response to these
orders, and in light of recent case law and ongoing litigation, the
Services have reviewed the 2024 rule and evaluated the specific
regulatory revisions promulgated through that process. Now, as
discussed below, we propose to revise the regulations at 50 CFR part
424 by replacing the regulations promulgated in 2024 with those
promulgated in 2019.
The regulations we propose in this document provide criteria or
otherwise clarify the processes by which the Services will interpret
various statutory requirements set forth in section 4 of the Act. This
proposed rule is intended to provide the public with a clear,
transparent explanation of how we are proposing to revise the
regulations in 50 CFR part 424 and the opportunity to comment on these
proposed revisions.
We interpret our authorities under the statutory scheme consistent
with the best reading of the ESA. For example, the meaning of the term
``foreseeable future,'' which is used in the definition of ``threatened
species'' and thus an innate part of making a listing decision under
section 4(a), is not set out in the Act. By contrast, where the Act
contains clear direction, regulatory text is less necessary to ensure
that we efficiently and effectively apply the statute in our decision-
making processes. While the regulations at 50 CFR part 424 are process-
oriented regulations, they nonetheless are useful for administering the
Act in a consistent manner, and for informing the public about those
processes.
Section 2 of the Act states that the purposes of the ESA 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 endangered and threatened species and
use their authorities to further the purposes of the Act (16 U.S.C.
1531(c)).
To receive the protections afforded by the Act, a species must
first be listed as either an endangered or a threatened species.
Whether a species warrants listing under the Act depends upon its risk
of extinction. To determine whether listing a species is warranted, the
Act requires that the Services conduct a review of the species' status
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)).
[[Page 52609]]
When the Services determine that a species warrants listing, the
Act requires the Services to designate critical habitat concurrently
with the listing rule to the maximum extent prudent and determinable,
or up to 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 (I) essential to the conservation of the species
and (II) which may require special management considerations or
protection; 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)). Thus, and as explained in the 2019 and
2024 rules, the Act lays out two distinct types of areas that may be
designated as critical habitat for a given species. 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 species or a 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 endangered or threatened species to the point at which
protection under the Act is no longer necessary. More broadly,
designation of critical habitat also 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 50 CFR Part 424
Following a review of the specific regulatory revisions made in the
2024 rule, the Services propose to revise the regulatory provisions in
50 CFR part 424 that were promulgated in 2024 and return to the version
of these regulations promulgated in 2019. Each of the proposed
revisions is described in the sections 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 the final rule and would not apply retroactively to
classification and critical habitat rules finalized prior to the
effective date of the final 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.
This proposed rule is one of four proposed rules publishing in
today's Federal Register that affect the regulations for the ESA. Two
of these proposed rules, including this one, are joint between the
Services, and two proposed rules are specific to FWS.
Section 424.11--Factors for Listing, Delisting, or Reclassifying
Species
Economic Impacts
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 after conducting a review of the status of the species.
To be consistent with the plain language of the statute requiring
that classification determinations must be made solely on the basis of
the best scientific and commercial data available, we are proposing to
remove the phrase ``without reference to possible economic or other
impacts of such determination'' from the end of 50 CFR 424.11(b). In
2019, this phrase was removed to more closely align with the statutory
language. In 2024, we reinserted this phrase into the regulations.
Based on our subsequent review of the 2024 rule, the language of the
Act, and recent case law, we have concluded that reverting to the 2019
regulatory text best aligns with the Act.
Foreseeable Future
Section 3(20) of the Act defines a ``threatened species'' as any
species which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range
(16 U.S.C. 1532(20)). The term ``foreseeable future'' is not further
described within the Act, and until 2019, it was not further described
in the Services' regulations either. The ``foreseeable future'' concept
is a fundamentally important one, as it sets the analytical timeframe
over which the Services must apply the best scientific data available
when determining whether a species meets the Act's definition of a
threatened species. How this term is interpreted and applied dictates
whether species are listed and whether they are listed as an endangered
species or a threatened species.
In 2019, as part of a larger effort to improve, clarify, and
streamline the administration of the Act, we finalized the first
regulatory framework for the statutory term ``foreseeable future'' to
explain how the Services will consider and apply this term when making
classification decisions under the Act. The foreseeable future
regulatory framework that was finalized in 2019 was subsequently
revised in the 2024 rule. That revised, and now current, version of the
foreseeable future regulation reads as follows:
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 foreseeable
future extends as far into the future as the Services can make
reasonably reliable predictions 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. (See 50
CFR 424.11(d).)
After re-evaluating the current regulation and the justifications
for the 2024 revisions, we propose reverting to the original regulation
as finalized in 2019 to align with the best meaning of the Act and our
best policy judgment about how to administer the Act. Thus, we propose
to remove the current regulatory text in Sec. 424.11(d) and replace it
with the version of Sec. 424.11(d) that was promulgated in 2019. (See
84 FR 45020 at 45052, August 27, 2019, and the proposed regulatory text
in this document for 50 CFR 424.11(d).)
Both the 2019 and the current interpretations of the ``foreseeable
future'' were based directly on a 2009 memorandum opinion from the
Department of the Interior, Office of the Solicitor (M-37021, January
16, 2009; ``M-Opinion''), which provides guidance on addressing the
concept of the foreseeable future within the context of determining the
status of species under the ESA. The M-Opinion, which the Services have
relied on since 2009, includes a detailed analysis of the Act,
[[Page 52610]]
legislative history, and case law, and--based on that analysis--
develops a set of considerations for determining the extent of the
foreseeable future. In initially developing the 2019 rule, the Services
specifically worked to capture the guidance and considerations provided
in the M-Opinion in a clear, concise, and understandable regulation.
A comparison between the 2019 and the current regulation describing
the ``foreseeable future'' demonstrates that the text of the two
regulations is largely the same but for a rewording of the second
sentence of this regulation.
Compare:
``The foreseeable future extends as far into the future as the
Services can make reasonably reliable predictions about the threats
to the species and the species' responses to those threats.''
(Current regulation).
Versus:
``The term foreseeable future extends only so far into the
future as the Services can reasonably determine that both the future
threats and the species' responses to those threats are likely.''
(2019 version).
Returning to ``only so far into the future,'' from ``extends as far
into the future,'' and to ``reasonably determine'' from ``reasonably
reliable predictions'' more clearly expresses an interpretation of
``foreseeable future'' that is bounded by what is foreseeable based on
the best scientific and commercial data available. Also, stating that
``foreseeable future'' requires a determination that ``both the future
threats and the species' responses to those threats must be likely''
would clarify that these requirements are conjunctive. The language in
the 2024 rule, by contrast, is insufficiently clear and risks
(mistakenly) encouraging a reading of them as disjunctive.
Thus, after re-evaluating the revisions to the foreseeable future
framework made in 2024, we now find it appropriate to revert to the
regulation as finalized in 2019.
Factors Considered in Delisting Species
In 2019, the Services made revisions to Sec. 424.11(e) to better
clarify the procedure and standards that the Services apply when making
delisting decisions. Prior to 2019, this section of the regulations,
which had been unchanged since 1984 (see 49 FR 38900, October 1, 1984;
see also 45 FR 13010 at 13022-13023, February 27, 1980), identified
three main circumstances in which delisting a species was appropriate:
(1) extinction of the species, (2) recovery of the species, and (3)
error in the original classification data or their interpretation.
Additional text in the regulations elaborated on these three
circumstances but used some imprecise and unclear terms. For instance,
to be considered extinct, the regulations stated that a ``sufficient
period of time must be allowed before delisting to indicate clearly
that the species is extinct'' (49 FR 38900 at 38909, October 1, 1984).
What qualified as a ``sufficient period of time'' thus required
additional interpretation. In addition, inclusion of the recovery
circumstance in these regulations led to some later interpretations
that, in order to delist a species due to its recovery, the criteria
established under section 4(f)(1)(B)(ii) of the ESA as part of a
species' recovery plan must be met.
In 2019, after accruing significant experience administering these
regulations, the Services revised them to better clarify the
circumstances in which species should be delisted (see, e.g., Friends
of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012)). In making
those revisions, the Services explained that some of the text of the
regulations in place at that time had, in some instances, been
misinterpreted as establishing criteria for delisting (83 FR 35193 at
35196, July 25, 2018). To streamline, simplify, and better align the
regulatory text with section 4(a) of the Act, we also removed some of
the unnecessary and potentially confusing language that had been in the
regulations (See 84 FR 45020 at 45052, August 27, 2019, and the
proposed regulatory text in this document for 50 CFR 424.11(e).)
As revised, the 2019 regulations achieved the Services' stated goal
of aligning the regulations more closely with the text of the Act by
making clear that the standards for delisting a species are the same as
the standards for a decision not to list it in the first instance. In
other words, they made clear that the parameters for both listing
determinations and delisting determinations are the same--and that
those parameters are reflected in the factors listed in section 4(a)(1)
of the Act, the requirements of section 4(b) of the Act, and the
definitions of ``endangered species'' and ``threatened species'' in
sections 3(6) and 3(20) of the Act.
These regulations were revised again in 2024. After reviewing these
regulations in response to E.O. 14154 and S.O. 3418, we now propose to
revert to the 2019 regulations in Sec. 424.11(e) that list three
circumstances in which it is appropriate to delist a species: (1) the
species is extinct, (2) the species does not meet the definition of an
endangered species or a threatened species, and (3) the listed entity
does not meet the definition of a species. We have considered that the
revisions made in 2019 reflect the single, best meaning of the Act.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
Fundamentally, the statute must be read to have the same criteria for
delisting as for listing, and the regulations cannot artificially
constrain the decisionmaker. In addition, as there is no express
reference to ``recovery'' in section 4(c)(2) of the Act, we find that
including mention of recovery in these regulations is not necessary,
nor is it necessarily helpful. If a species has in fact recovered to
the point at which the measures provided pursuant to the Act are no
longer necessary, then it would no longer meet the definition of an
endangered or threatened species and would warrant delisting.
Accordingly, it is more straightforward to simply state that delisting
is appropriate when the species no longer meets the definition of an
endangered or threatened species. Thus, this proposed revision better
aligns the regulations with the statute and better achieves the
fundamental objective of clarifying the standards and requirements that
apply to delisting decisions.
Section 424.12--Criteria for Designating Critical Habitat
Not-Prudent Determinations
We propose to revise Sec. 424.12(a)(1), which provides
circumstances in which the Services may, but are not required to, find
it is not prudent to designate critical habitat. Section 4(a)(3) of the
Act requires that, to the maximum extent prudent and determinable, we
designate a species' critical habitat concurrently with listing the
species. The statute does not define or further clarify the term ``not
prudent''; this term and its application are instead clarified in Sec.
424.12(a)(1), which identifies circumstances when it may not be prudent
to designate critical habitat for a listed species. The first not-
prudent circumstance--when the species is threatened by taking or other
human activity and identification of critical habitat can be expected
to increase the degree of such threat to the species--has been included
in the regulations continuously for 40 years and has not been
invalidated by the courts (see Building Industry Ass'n v. Babbitt, 979
F. Supp. 893, 906 (D.D.C. July 25, 1997)).
Other not-prudent circumstances have been added or removed at
different times. For example, the additional circumstance in which no
areas meet the definition of critical habitat was added to these
regulations in 2016 (81
[[Page 52611]]
FR 7414, February 11, 2016). This circumstance was retained in both the
2019 and 2024 rules. Another example is the removal in 2024 of the
circumstance that had been inserted in 2019 indicating that critical
habitat designation may not be prudent when threats to the species'
habitat stem solely from causes that cannot be addressed through
management actions resulting from section 7 consultations. Some
revisions made in 2024 merely involved reorganization of text; in
particular, the 2024 rule moved what had been listed as a fifth
circumstance (the ``Secretary otherwise determines that designation of
critical habitat would not be prudent based on the best scientific data
available'') into the opening paragraph of this section of the
regulations. While the 2024 rule used different phrasing, it captured
the same non-exhaustive nature of the list of not-prudent
circumstances.
After re-evaluating the 2019 and 2024 revisions to the not-prudent
regulations, we find it appropriate to revert to the regulations as
finalized in 2019. This proposed revision would entail two changes to
the text of 424.12(a)(1): (1) reinserting the specific circumstance
into the regulations that had been removed in 2024 (i.e., ``threats to
a species' habitat that lead to endangered-species or threatened-
species status stem solely from causes that cannot be addressed by
management actions identified in a section 7(a)(2) consultation''); and
(2) moving the language regarding non-exhaustive circumstances as one
of the specific circumstances when a designation of critical habitat
may not be prudent (``The Secretary otherwise determines that
designation of critical habitat would not be prudent based on the best
scientific data available''), instead of including this phrase in the
introductory language at 50 CFR 424.12(a)(1).
The first of these two proposed changes would explicitly identify a
circumstance when designation of critical habitat may not be prudent.
As we explained during the rulemaking for the revisions in 2019, we
have encountered situations in which the threats to a species' habitat
that lead to endangered-species or threatened-species status stem
solely from causes that cannot be addressed by management actions
identified in a section 7(a)(2) consultation. Although listing this
circumstance would not make a not-prudent finding mandatory or preclude
a critical habitat designation, a not-prudent finding may nevertheless
be appropriate in this circumstance (84 FR 45020 at 45042, August 27,
2019). We find it is clearer and more transparent to include this
possible situation in the enumerated list of circumstances when
designating critical habitat may not be prudent. As stated in the 2019
rule, we reiterate here that a not-prudent determination relying on
this provision would need to take into account the specific factual
circumstances at issue for the particular species, and that we
anticipate not-prudent determinations will continue to be rare.
The second proposed change would not alter the non-exhaustive
nature of the list of circumstances when a designation of critical
habitat may not be prudent. As this concept was included in both the
2019 and 2024 rules, it does not represent a change in the Services'
interpretation or administration of these regulations. However, we find
that the text, as framed in the 2019 regulations, more clearly
explained that any such determination must be based on the best
available data. Thus, we propose to remove the current regulatory text
in Sec. 424.12(a)(1) and replace it with the version of Sec.
424.12(a)(1) that was promulgated in 2019. (See 84 FR 45020 at 45053,
August 27, 2019, and the proposed regulatory text below in this
document for 50 CFR 424.12(a)(1).)
None of these revisions will affect the opportunity for public
involvement in, or outcome of, either agency's analyses or decisions
regarding critical habitat. Although reverting to the 2019 version of
the regulation would increase the regulatory list of circumstances when
designation of critical habitat may be not prudent, the changes to the
regulations are not intended to increase the occurrence of not-prudent
determinations, and as stated previously, the Services anticipate that
not prudent determinations will continue to be rare. Rather, these
revisions are intended to provide clarity and specificity with respect
to the circumstances in which it may not be prudent to designate
critical habitat. We emphasize that the circumstances that the
regulations identify for when not-prudent findings may be appropriate
are not mandatory, and a designation may nevertheless be prudent even
if one of the enumerated not-prudent circumstances is present. The
Services recognize the value of critical habitat as a conservation tool
and, as demonstrated by past practice, expect to designate it in most
cases.
Designating Unoccupied Areas
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Section 3(5)(A) of the Act
defines the term ``critical habitat'' as (i) the specific areas within
the geographical area occupied by the species, at the time it is listed
in accordance with the provisions of section 4 of this Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon
a determination by the Secretary that such areas are essential for the
conservation of the species.
The regulations governing the designation of unoccupied critical
habitat at 50 CFR 424.12(b)(2) have been amended multiple times within
recent years, once through a 2016 rule (81 FR 7414, February 11, 2016),
then through the 2019 rule (84 FR 45020, August 27, 2019), and then
again through the 2024 rule (89 FR 24300, April 5, 2024), which we are
now revisiting. In all of these rules, the Services addressed the
concept of prioritizing or sequencing how occupied and unoccupied areas
should be considered when designating critical habitat.
In the 2019 rule, we revised the criteria for designating
unoccupied critical habitat to explicitly 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). This requirement was included in the initial 1984
regulations but was removed from the regulations in 2016, because, at
that time, we made a policy determination 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 regulations 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 35197-35198,
[[Page 52612]]
July 25, 2018), and that a two-step approach would help further
Congress' intent to place greater importance on habitat within the
geographical area occupied by the species (84 FR 45020 at 45043, August
27, 2019). In the revisions made in 2024, the two-step process was
again removed from the regulations. There was also a new change
finalized in 2019 that, in order for an area to be considered
``essential,'' the Secretary was required to make a determination that
there was reasonable certainty both that a particular unoccupied area
will contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
After re-evaluating the revisions to the unoccupied critical
habitat regulations made in 2024, we now propose reverting to the
regulation as finalized in 2019. (See 84 FR 45020 at 45053, August 27,
2019, and see proposed regulatory text below in this document for 50
CFR 424.12(b)(2).) These proposed revisions would result in again
requiring the two-step process of first evaluating occupied areas
before considering unoccupied areas for designation. As a practical
matter, we have always begun the process of identifying critical
habitat by first evaluating occupied areas and then considering whether
there may be any unoccupied areas that are essential for the
conservation of the species. We find that requiring an express
determination that a critical habitat designation limited to occupied
areas would be inadequate to conserve the species more appropriately
reflects how areas are prioritized biologically--i.e., areas needed for
survival of the species within its occupied range must be identified as
critical habitat before we can determine what, if any, additional,
unoccupied areas are necessary for future expansion of recovering
populations.
In addition, this approach furthers Congress's intent to place
greater importance on habitat within the geographical area occupied by
the species when it originally defined ``critical habitat'' in 1978.
The Conference Report accompanying the amendments specified that
Congress was defining ``critical habitat'' as ``specific areas within
the geographical area occupied by the species at the time it is listed
that is essential to the species conservation and requires special
management consideration'' (H.R. Rept. No. 95-1804, at 18 (emphasis in
the original)). The report went on to state, ``In addition, the
Secretary may designate critical habitat outside the geographical area
occupied by the species at the time it is listed if he determines such
areas are essential for the conservation of the species'' (emphasis
added).
Reverting to the 2019 version of this regulation would also
reinstate the requirement that, to designate unoccupied areas as
critical habitat, the Secretary must make a determination that there is
reasonable certainty both that the area will contribute to the
conservation of the species and that the area contains one or more of
those physical or biological features essential to the conservation of
the species.
This proposed change would align the regulations with the best
meaning of the Act. Loper Bright Enterprises v. Raimondo, 603 U.S. 369
(2024). To begin, the Supreme Court recently held that an area must be
habitat before an area can meet the definition of critical habitat.
Weyerhaeuser Company v. United States Fish & Wildlife Service, 586 U.S.
9, 19-20 (2018) (interpreting Section 4(a)(3)(A)(i)). To say that an
area that is currently uninhabitable for a species at the time of
listing is ``essential'' for the conservation of such species defies
logic. And to meet the definition of ``critical habitat,'' the
``specific areas outside the geographical area occupied by the
species'' must be ``essential for the conservation of the species.''
Section 3(5)(A)(ii) (emphasis added). It follows, then, that when
determining whether unoccupied areas are ``essential,'' the Services
should determine that ``there is a reasonable certainty both that the
area will contribute to the conservation of the species and that the
area contains one or more physical or biological features essential to
the conservation of the species.'' A ``reasonable certainty''
determination precludes designations of unoccupied land based upon mere
potential or speculation; it requires high confidence that the
unoccupied areas are essential. This reading accords with the language
of other, related provisions in the Act. For example, the use of the
present tense--``are essential''--in section 3(5)(A)(ii) indicates that
for an unoccupied area to qualify as ``critical habitat,'' it must
currently be essential for the conservation of the species.
Congress has also made clear that it intended for designation of
unoccupied areas as critical habitat to meet a higher standard than
designating occupied areas and that the Services should be exceedingly
circumspect in the designation of critical habitat outside of the
presently occupied areas of the species (43 FR 870, January 4, 1978).
Courts agree. See, e.g., Home Builders Ass'n v. U.S. Fish & Wildlife
Serv., 616 F.3d 983 (9th Cir. 2010). Therefore, including these two
express requirements of reasonable certainty--that an area will
contribute to the conservation of the species and that the area
contains one or more of the physical or biological features essential
for the conservation of the species--is a way to demonstrate that
designations of unoccupied critical habitat will meet this higher bar
and be consistent with the best reading of the Act, congressional
intent, and case law. This proposed change would also represent the
Services' best policy judgment about how to administer the Act. We also
note that any designation of critical habitat must still be based on
the best scientific data available and comply with the statutory
definition of critical habitat in section 3(5)(A) of the Act.
Request for Comments
We are seeking comments from all interested parties on the specific
revisions we are now proposing to 50 CFR part 424, as well as the
regulatory revisions we made in the 2019 rule and in the 2024 rule, and
any of our analyses or conclusions in the Required Determinations
section of this document. All relevant information will be considered
prior to making a final determination regarding these regulations.
Depending on the comments received, we may change the final regulations
based upon those comments.
You may submit your comments concerning this proposed rule by one
of the methods listed in ADDRESSES. Comments sent by any other method,
to any other address or individual, may not be considered. Comments
must be submitted to <a href="https://www.regulations.gov">https://www.regulations.gov</a> before 11:59 p.m.
(eastern time) on the date specified in DATES. We cannot guarantee that
we will have time to consider hand-delivered or mailed comments that we
do not receive by the date specified in DATES.
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.
[[Page 52613]]
Required Determinations
Regulatory Planning and Review--E.O.s 12866 and 13563
Executive Order (E.O.) 12866 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 and has reviewed it.
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. 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.
Unleashing Prosperity Through Deregulation--E.O. 14192
This proposed rule is expected to be an E.O. 14192 deregulatory
action.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), 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 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. We certify that, if adopted as proposed, this proposed rule
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. The proposed regulations would not expand the reach of species
protections or designations of 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 above in the Regulatory
Flexibility Act section, 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 E.O. 12630, this proposed rule would not have
significant takings implications. This proposed rule would not pertain
to ``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 E.O. 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 ESA
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
E.O. 12988. This proposed rule would clarify factors for listing,
delisting, or reclassifying species and designation of critical habitat
under the ESA.
Government-to-Government Relationship With Tribes
In accordance with E.O 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 Secretary's Order 3206
(``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act,'' June 5, 1997).
[[Page 52614]]
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
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 (42 U.S.C. 4321 et seq.)
We are analyzing this proposed rule in accordance with the criteria
of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.), the Department of the Interior regulations on Implementation of
the National Environmental Policy Act (43 CFR part 46), the Department
of the Interior Manual (516 DM 1), the NOAA Administrative Order 216-
6A, and the companion manual, ``Policy and Procedures for Compliance
with the National Environmental Policy Act and Related Authorities,''
(June 30, 2025).
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 reasonably foreseeable effects on the quality of
the human environment. We will complete our analysis, in compliance
with NEPA, before finalizing this proposed rule.
Energy Supply, Distribution or Use--E.O. 13211
E.O. 13211 (Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use) requires agencies to
prepare statements of energy effects ``to the extent permitted by law''
when undertaking actions identified as significant energy actions (66
FR 28355; May 22, 2001). E.O. 13211 defines a ``significant energy
action'' as an action that (i) is a significant regulatory action under
E.O. 12866 (or any successor order); and (ii) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy. The proposed revised regulations are not expected to affect
energy supplies, distribution, and use. Therefore, this action is not a
significant energy action, and there is no requirement to prepare a
statement of energy effects for this action.
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
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'
administration of the Act is not in itself subject to the Act's
provisions, including section 7(a)(2). The Services have a historical
practice of issuing their general regulations under the ESA without
undertaking section 7 consultation. This practice accords with the
plain language, structure, and purposes of the ESA, which does not
place a consultation obligation on the Services' administration of the
Act. Although the Services consult on actions through intra-agency
consultations where appropriate (e.g., issuance of section 10 permits
and actions under statutory authorities other than the ESA), the
Services in those instances are acting principally as an ``action
agency'' carrying out provisions of the Act or other statutes. Here, by
contrast, the Services are acting solely in their role as
administrators of the ESA; we are also not administering the Act to
propose or take a specific action. The Services are carrying out the
most fundamental exercise of our role as administrators of the ESA, and
the Act cannot reasonably be construed as requiring the Services to
``consult'' with themselves under section 7(a)(2) in such cases.
Clarity of the Proposed Rule
We are required by E.O.s 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:
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 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.
* * * * *
(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 only so far into the future as the Services can
reasonably determine that both the future threats and the species'
responses to those threats are likely. 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) The Secretary shall delist a species if the Secretary finds
that, after conducting a status review based on the best scientific and
commercial data available:
(1) The species is extinct;
(2) The species does not meet the definition of an endangered
species or a threatened species. In making such a determination, the
Secretary shall consider the same factors and apply the same 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 revising paragraphs (a)(1) and (b)(2) to read
as follows:
[[Page 52615]]
Sec. 424.12 Criteria for designating critical habitat.
(a) * * *
(1) The Secretary may, but is not required to, determine that a
designation would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or 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;
(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;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
* * * * *
(b) * * *
(2) The Secretary will designate as critical habitat, at a scale
determined by the Secretary to be appropriate, specific areas outside
the geographical area occupied by the species only upon a determination
that such areas are essential for the conservation of the species. When
designating critical habitat, the Secretary will first evaluate areas
occupied by the species. 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. In addition, for an unoccupied area to be
considered essential, the Secretary must determine that there is a
reasonable certainty both that the area will contribute to the
conservation of the species and that the area contains one or more of
those physical or biological features essential to the conservation of
the species.
* * * * *
Kevin Lilly,
Principal Deputy for Fish and Wildlife and Parks, exercising the
delegated authority of the Assistant Secretary for Fish and Wildlife
and Parks. Department of the Interior.
Neil A. Jacobs,
Under Secretary of Commerce for Oceans and Atmosphere and NOAA
Administrator.
[FR Doc. 2025-20549 Filed 11-19-25; 11:15 am]
BILLING CODE 4333-15-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on November 21, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.