Proposed Rule2025-20550
Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat
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Published
November 21, 2025
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (FWS or the Service), propose to amend portions of our regulations for section 4 of the Endangered Species Act of 1973, as amended (Act or ESA). Specifically, we propose to revise regulations related to section 4(b)(2) of the Act. Section 4(b)(2) requires consideration of the economic impact, the impact on national security, and any other relevant impact of designating any particular area as critical habitat; and authorizes the exclusion of areas from critical habitat if the benefits of excluding the area outweigh the benefits of designating it as critical habitat. These proposed revisions articulate when and how we determine whether the benefits of excluding an area outweigh the benefits of designating the area as critical habitat (exclusion analysis). This proposed rule reflects the Service's experience and existing case law. The intended effect of this proposed rule is to provide greater transparency and certainty for the public and stakeholders.
Full Text
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[Federal Register Volume 90, Number 223 (Friday, November 21, 2025)]
[Proposed Rules]
[Pages 52592-52599]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-20550]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2025-0048; FXES11110900000-256-FF09E23000]
RIN 1018-BI76
Endangered and Threatened Wildlife and Plants; Regulations for
Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS or the Service),
propose to amend portions of our regulations for section 4 of the
Endangered Species Act of 1973, as amended (Act or ESA). Specifically,
we propose to revise regulations related to section 4(b)(2) of the Act.
Section 4(b)(2) requires consideration of the economic impact, the
impact on national security, and any other relevant impact of
designating any particular area as critical habitat; and authorizes the
exclusion of areas from critical habitat if the benefits of excluding
the area outweigh the benefits of designating it as critical habitat.
These proposed revisions articulate when and how we determine whether
the benefits of excluding an area outweigh the benefits of designating
the area as critical habitat (exclusion analysis). This proposed rule
reflects the Service's experience and existing case law. The intended
effect of this proposed rule is to provide greater transparency and
certainty for the public and stakeholders.
DATES: Comments must be received by December 22, 2025.
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-2025-0048,
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.'' 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.
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2025-0048; 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 a document
summarizing this proposed rule are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-HQ-ES-2025-0048.
FOR FURTHER INFORMATION CONTACT: John Tirpak, U.S. Fish and Wildlife
Service, Division of Conservation and Classification,
<a href="/cdn-cgi/l/email-protection#d3b9bcbbbd8ca7baa1a3b2b893b5a4a0fdb4bca5"><span class="__cf_email__" data-cfemail="f59f9a9d9baa819c8785949eb5938286db929a83">[email protected]</span></a>, 703-358-2163. 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 Endangered Species Act of 1973, as amended (hereafter referred
to as Act or ESA; 16 U.S.C. 1531 et seq.), states that the purposes of
the Act are to provide a means to conserve the ecosystems upon which
endangered and threatened species (listed species) depend, to develop a
program for the conservation of listed species, and to achieve the
purposes of certain treaties and conventions (16 U.S.C. 1531(b)).
Moreover, the Act states that it is the policy of Congress that the
Federal Government shall seek to conserve endangered species and
threatened species and shall use its authorities to further the
purposes of the Act (16 U.S.C. 1531(c)(1)).
The Secretaries of the Interior and Commerce (the ``Secretaries'')
share responsibilities for implementing most of the provisions of the
Act. Generally, marine and anadromous species are under the
jurisdiction of the Secretary of Commerce, and all other species are
under the jurisdiction of the Secretary of the Interior. Authority to
administer the Act has been delegated by the Secretary of the Interior
to the Director of the FWS and by the Secretary of Commerce to the
Assistant Administrator for the National Marine Fisheries Service
(NMFS) (collectively, the Services). Together, the Services administer
the Act via joint regulations in chapter IV of title 50 of the Code of
Federal Regulations (CFR). In addition, each of the Services also has
regulations specific to its own administration of the Act (located at
50 CFR part 17 for FWS and at 50 CFR parts 222 through 226 for NMFS).
Because this rulemaking, if finalized, would only apply to the FWS, the
regulations proposed in this rulemaking would not require NMFS to
change its processes for consideration of exclusions under section
4(b)(2) of the Act. Since this rulemaking is solely applicable to the
FWS, when we refer to
[[Page 52593]]
the Secretary, we mean the Secretary of the Interior.
The regulations we propose in this rule provide criteria or
otherwise clarify the processes by which the FWS will implement 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 ESA regulations in 50
CFR part 17 and the opportunity to comment on these proposed revisions.
We interpret our authorities under the statutory scheme consistent with
the best reading of the Act as a whole. These regulatory guidelines are
based on our expertise in evaluating and protecting species, as well as
in employing traditional tools of statutory interpretation that the
courts have outlined.
One of the tools that the Act provides to conserve species is the
designation of critical habitat. The purpose of critical habitat is to
identify the areas that are essential to the listed species'
conservation. 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 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)).
When the FWS concludes that a critical habitat designation is
prudent and determinable for species listed under the Act, FWS must
follow the statutory and regulatory provisions to designate critical
habitat. The Act's language makes clear that biological considerations
drive the initial step of identifying critical habitat. Section 4(b)(2)
expressly requires designations to be made based on the best scientific
data available. Therefore, the process begins by relying on the best
scientific data available to identify the species' habitat. Next, the
Act's definition of ``critical habitat'' requires the Secretary to
identify those areas of habitat occupied by the species at the time of
listing that contain physical or biological features that are essential
to the conservation of the species and that may require special
management considerations or protection; and the specific areas of
unoccupied habitat that are essential to the conservation (i.e.,
recovery) of the species.
Section 4(b)(2) also requires that, in designating critical
habitat, the Secretary must take into consideration the impacts of
specifying any particular area as critical habitat (16 U.S.C.
1533(b)(2)). The second part of section 4(b)(2) then provides the
Secretary the authority to exclude any particular area from a critical
habitat designation if the benefits of exclusion outweigh the benefits
of inclusion for that area, so long as excluding it will not result in
the extinction of the species. Our regulations in 50 CFR part 424 set
forth relevant definitions (50 CFR 424.02), describe the standards and
procedures for identifying critical habitat (50 CFR 424.12) and
describe the standards and procedures for exclusions of particular
areas of critical habitat (50 CFR 424.19). In addition to our joint
regulations, the Services developed the joint Policy Regarding
Implementation of Section 4(b)(2) of the ESA that provided direction
regarding how we would exercise discretion to exclude areas from
critical habitat designations (81 FR 7226, February 11, 2016; hereafter
``2016 policy''). On December 18, 2020, we finalized FWS-only
regulations that set forth a process for excluding areas of critical
habitat under section 4(b)(2) of the Act (85 FR 82376; hereafter, ``the
2020 rule''). Then on July 21, 2022, we rescinded those regulations (87
FR 43433). We again are undertaking a revision to the regulations
pertaining to exclusions of particular areas of critical habitat under
section 4(b)(2) of the ESA.
Executive Order (E.O.) 14154, ``Unleashing American Energy,''
issued January 20, 2025, directed all departments and agencies to
immediately review agency 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 that
conflict with this national objective. To implement provisions of E.O.
14154, the Department of the Interior subsequently issued Secretary's
Order (S.O.) 3418, which directed Assistant Secretaries to take steps,
as appropriate, to suspend, revise, or rescind multiple actions that
had been finalized under the prior Administration. In response to E.O.
14154 and S.O. 3418, we propose to reinstate the 2020 rule. This
proposed revision would not require review of, or alter, any designated
critical habitat if and when the revision is finalized.
This proposed rule is one of four proposed rules publishing in
today's Federal Register that propose changes to the regulations that
implement the Act. Two of these proposed rules are joint between the
Services, and two (including this document) are specific to the
Service.
Section 4(b)(2) of the Endangered Species Act
In 1982, Congress added section 4(b)(2) to the Act, both to require
the Secretaries to consider the relevant impacts of designating
critical habitat and to provide a means for minimizing negative impacts
of designation by excluding, in appropriate circumstances, particular
areas from a designation. The first sentence of section 4(b)(2) sets
out a mandatory requirement that the Secretaries consider the economic
impact, impact on national security, and any other relevant impacts of
specifying any particular area as critical habitat. As required by this
sentence, FWS always considers those impacts for every designation of
critical habitat. The statute does not prescribe how the FWS should
take into consideration these impacts. The second sentence of section
4(b)(2) provides the authority for a process by which the Secretaries
may exclude an area from critical habitat. The FWS's consideration of
impacts under the first sentence of section 4(b)(2) informs the
decision whether to engage in the discretionary exclusion analysis
under the second sentence of section 4(b)(2). Although the term
``homeland security'' was not in common usage in 1982, the Services
concluded in the 2016 policy that Congress intended that ``national
security'' includes what we now refer to as ``homeland security'' (see
81 FR 7226, at 7227, February 11, 2016).
Conducting an exclusion analysis under section 4(b)(2) involves
balancing or weighing the benefits of excluding a particular area from
a critical habitat designation against the benefits of including that
area in the designation. The Act provides that if the benefits of
exclusion outweigh the benefits of inclusion, the Secretary may exclude
the particular area from the designation, unless the Secretary
determines that the exclusion will result in the extinction of the
species concerned.
As discussed earlier, the 2016 policy provided direction regarding
how the Services would exercise this discretion to balance or weigh
benefits and use that information to exclude areas from critical
habitat designations. We have
[[Page 52594]]
concluded that adding elements of the 2016 policy back into our
regulations would be more effective in guiding agency activities and
would provide greater transparency and certainty to the public and
stakeholders. The proposed regulations, however, would put into effect
some differences in our approach relative to what was outlined in the
2016 policy. These differences from the 2016 policy include an
information standard applicable to when FWS undertakes a discretionary
weighing analysis, a clarification of how considerations for exclusions
will be conducted for Federal lands, and an approach to assigning the
weight of the benefits of inclusion or exclusion of any particular
areas designated as critical habitat. If this proposed rule is
finalized, NMFS will continue to implement the 2016 policy and
regulations at 50 CFR 424.19.
Proposed Regulatory Revisions
This proposed rule provides the framework for the role of the FWS's
consideration of the economic impact, impact on national security, and
any other relevant impacts under section 4(b)(2) of the Act in
identifying any potential exclusions from designations of critical
habitat.
Once the Secretary has assessed the relevant impacts of designating
particular areas as critical habitat, section 4(b)(2) authorizes the
exclusion of any area from the designation if the Secretary determines
that the benefits of excluding the area outweigh the benefits of
including the area in the critical habitat designation (unless failure
to designate the area will result in the extinction of the species) (16
U.S.C. 1533(b)(2)). The FWS refers to this comparative weighing of the
impacts of excluding and including particular areas under 4(b)(2) as an
``exclusion analysis.''
To undertake an exclusion analysis, we first evaluate whether there
are any meaningful impacts from designating any area such that avoiding
those impacts may outweigh the benefits of including the area in the
designation. If there are no such impacts, there is no need to proceed
further with weighing the impacts of designation. If there are any such
impacts, we undertake a comparative weighing of those impacts. The ESA
does not prescribe any elements of the analysis, such as what weight to
assign to each factor or impact in determining the benefits of
inclusion and the benefits of exclusion. Therefore, as long as, in
completing the exclusion analysis, the FWS has considered all the
relevant impacts, as required by the Administrative Procedure Act (APA;
5 U.S.C. 551 et seq.), the ESA affords the Secretary broad discretion
in deciding whether or not to exclude any area for which the benefits
of exclusion outweigh the benefits of inclusion.
Framework for Considering an Exclusion and for Conducting a
Discretionary 4(b)(2) Exclusion Analysis (Sec. 17.90(a))
We propose to reinstate Sec. 17.90(a) as set forth in the 2020
rule and in the proposed regulation promulgation portion of this
document. This reinstated section carries over the two sentences in the
existing interagency regulation at 50 CFR 424.19(a) without change. It
then makes clear that the proposed rule will identify known national
security and other relevant impacts of the proposed designation and
identify any areas that the Secretary has reason to consider for
exclusion and explain why. We also propose to include a non-exhaustive
list of categories of potential impacts that the Secretary will
identify, when known, at the proposed rule stage. We note that these
impacts are the same as those that the Secretary will consider, as
appropriate, when conducting the mandatory consideration of any other
relevant impacts as expressed in the first sentence of section 4(b)(2)
of the Act. Including this list of categories for consideration
provides greater transparency and clarity to the public and
stakeholders.
The proposed regulations would explain that economic impacts may
include, for example, the economy of a particular area, productivity,
and creation or elimination of jobs, opportunity costs potentially
arising from critical habitat designation (such as those anticipated
from reasonable and prudent alternatives that may be identified through
a section 7 consultation), and potential benefits from a potential
designation such as outdoor recreation or ecosystem services. The
proposed regulations would provide categories of ``other relevant
impacts'' that we may consider, including public health and safety,
community interests (e.g., such as a planned school or hospital), and
the environment (such as increased risk of wildfire or pest and
invasive species management). This list is not an exhaustive list of
the types of impacts that may be relevant in a particular case; rather,
it provides additional clarity by identifying some additional types of
impacts that may be relevant. Our discussion of proposed new paragraph
(d), below, describes specific considerations related to Tribes,
States, and local governments; national security; conservation plans,
agreements, or partnerships; and Federal lands.
Making clear to the public the areas that the Secretary has reason
to consider excluding allows the public not only to submit comments on
the benefits of exclusion and inclusion in general, but to focus their
comments on those benefits as they relate to the specific areas most
likely to be considered for exclusion. Codifying and making transparent
this existing practice is intended to allow commenters to provide
information specific to those areas that the Secretary anticipates
considering for exclusion. Additionally, as is current practice, as
part of any proposed rulemaking we will continue to seek comment on any
additional impacts that may result from including any area in the
designation and to make clear that, at any time during the process of
designating critical habitat, the Secretary may still consider
additional exclusions, including areas that were not identified in the
proposed rule.
Finally, we propose to carry over language from 50 CFR 424.19(b)
that explains that the Secretary will consider impacts at a scale that
the Secretary determines to be appropriate and that impacts may be
qualitatively or quantitatively described.
Considering Relevant Impacts (Sec. 17.90(b))
Section 4(b)(2) of the Act sets out a mandatory requirement that
the FWS consider the economic impact, impact on national security, and
any other relevant impacts prior to designating an area as part of a
critical habitat designation. The Act does not further define ``other
relevant impacts.''
We propose to reinstate Sec. 17.90(b) as set forth in the 2020
rule and in the proposed regulation promulgation portion of this
document. This would carry over the language of the existing
interagency regulation at 50 CFR 424.19(b) that already states that the
Secretary will consider the probable economic, national security, and
other relevant impacts of the designation.
Approach to Determining Whether To Conduct a Discretionary Exclusion
Analysis (Sec. 17.90(c))
After we consider the relevant impacts, we determine whether to
undertake a discretionary exclusion analysis. We propose paragraph (c)
to provide clarity and transparency about how the Secretary intends to
exercise discretion regarding when undertaking the discretionary
exclusion analysis under section 4(b)(2).
[[Page 52595]]
We propose to reinstate Sec. 17.90(c) as set forth in the 2020
rule and in the proposed regulation promulgation portion of this
document. This would carry over the language of the existing
interagency regulation at 50 CFR 424.19(c) but modify the language to
describe how the Secretary intends to exercise discretion and
articulate clearly the factors that will prompt the Secretary to
undertake the discretionary exclusion analysis under section 4(b)(2) of
the Act. Including this provision in the regulations will clarify and
codify the process and standards underlying exclusion analyses and
decisions. Proposed paragraph (c)(1) reiterates that the Secretary has
discretion whether to undertake an exclusion analysis under section
4(b)(2) of the Act.
Proposed paragraph (c)(2) describes the two circumstances in which
FWS will conduct an exclusion analysis for a particular area: either
(1) when a proponent of excluding the area has presented credible
information in support of the request, or (2) if such information has
not been presented, when the Secretary exercises his or her discretion
to evaluate any particular area for potential exclusion.
As part of the public notice-and-comment process, the FWS routinely
receives information from the public regarding probable economic,
national security, or other relevant impacts of designating any area
that may be included in the final designation of critical habitat and
the benefits of including or excluding areas that exhibit these
impacts. The term ``credible information'' refers to information that
constitutes a reasonably reliable indication regarding the existence of
a meaningful economic or other relevant impact supporting a benefit of
exclusion for a particular area. In evaluating whether a proponent has
provided ``credible information'' in support of a claim that an area
should be excluded, we look at two factors--whether the proponent has
provided factual information in support of the claimed impacts and
whether the claimed impacts may be meaningful for purposes of an
exclusion analysis. The information provided by submitters or
proponents could address either the benefits of exclusion, or the
benefits of inclusion, and we do not expect proponents to conduct a
comparison of the impacts relative to the conservation value of the
specific area. The ``credible information'' standard would be relevant
only to the question of whether to undertake an analysis. Meeting this
standard would not indicate that the area will in fact be excluded from
the designation.
The second pathway to an exclusion analysis for a particular area
would be if the Secretary decides to exercise his or her discretion to
undertake the exclusion analysis. See proposed paragraph (c)(2)(ii) in
the proposed regulation promulgation section of this document. In
either case, the FWS intends to document the basis for any decision not
to undertake an exclusion analysis. An explanation of the decision not
to undertake an exclusion analysis for a particular area will be
included in the final determination regarding critical habitat for the
species.
In Weyerhaeuser Co. v. U.S. FWS, 586 U.S. 9 (2018), the Supreme
Court held that decisions not to exclude areas from critical habitat
designations are judicially reviewable under the abuse-of-discretion
standard. The Court reasoned, although the use of the word ``may'' in
section 4(b)(2) clearly confers discretion, that ``does not segregate''
the decision not to exclude from the procedures mandated by the Act.
Among those mandated procedures, the Court referred specifically to the
ESA requirement in section 4(b)(2) to consider relevant impacts and the
APA requirement to consider all of the relevant factors. Because a
decision not to undertake a discretionary exclusion analysis precludes
the Secretary from excluding any areas from the designation, the FWS's
current practice is to document the rational basis for such decisions.
The proposed regulation simply codifies this practice.
Approach to Conducting Discretionary Exclusion Analyses (Sec.
17.90(d))
We propose to reinstate paragraph (d) as set forth as set forth in
the 2020 rule and in the proposed regulation promulgation section of
this document. Proposed paragraph (d) describes how the FWS would
undertake an exclusion analysis once the Secretary exercises the
discretion to undertake one.
Proposed paragraph (d)(1) describes how the FWS would consider
benefits (of including or excluding any particular area) that may be
outside the scope of FWS's expertise. The Secretary would give weight
to benefits consistent with expert or firsthand information, unless the
Secretary has knowledge or material evidence that rebuts that
information. Proposed subparagraphs (i)-(iv) in paragraph (d)(1)
identify a non-exhaustive list of categories of impacts that may be
outside the scope of FWS's expertise. Even though some of the
categories on this list refer to ``nonbiological impacts,'' we
recognize that many sources outside of the FWS also have information
and expertise regarding biological impacts. The FWS would consider that
information or expertise in the weighing of benefits of inclusion or
exclusion of particular areas. However, in some instances the Secretary
may have knowledge or material evidence that rebuts the information
provided by experts or sources with firsthand knowledge. This
information could include the FWS's expert judgment about the likely
effects of designating critical habitat upon the need to engage in, or
likely outcomes of, consultations under section 7 of the Act, or other
information available to the agency, such as the information in the
economic analysis, as informed by public input. Therefore, if the
Secretary has additional knowledge or material evidence that qualifies
as the best information available, the Secretary would assign weights
to the benefits of inclusion or exclusion consistent with the
information from experts, firsthand knowledge, and the best information
available that the Secretary may have to rebut that information.
The proposed revisions would not differ from the FWS's current
practice in considering the benefits of including or excluding certain
areas as critical habitat, except for the current practice in
considering Federal lands. Proposed paragraph (d)(1)(iv) addresses
Federal lands where there are non-Federal entities that have a permit,
lease, contract, or other authorization for use. This provision
reverses the 2016 policy position that we generally do not exclude
Federal lands from designations of critical habitat (outside of routine
consideration of impacts to national security). There is nothing in the
Act that states that lands could not be excluded from designation of
critical habitat simply because that land is managed by the Federal
Government. In some instances, the benefits of excluding Federal lands
from a critical habitat designation may outweigh the benefits of
including them.
It is noteworthy that Federal land managers will continue to have
unique obligations under the Act, and that Congress declared as its
policy that ``all Federal departments and agencies shall seek to
conserve endangered species and threatened species and shall utilize
their authorities in furtherance of the purposes of this Act'' (section
2(c)(1)). Further, all Federal agencies have responsibilities under
section 7 of the Act to carry out programs for the conservation of
listed species and to ensure that their actions are not likely to
jeopardize the continued existence of listed species (section 7(a)(1)).
With regard to consideration of an exclusion based on economic or
other relevant considerations, under the Act,
[[Page 52596]]
the costs that a critical habitat designation may impose can be divided
into two types: (1) the additional administrative or transactional
costs associated with the consultation process with a Federal agency
pursuant to section 7, (2) the costs to Federal agencies and other
affected parties, including applicants for Federal authorizations
(e.g., permits, licenses, leases, contracts) of any project
modifications necessary to avoid destruction or adverse modification of
critical habitat, and (3) the opportunity cost associated with projects
and activities (such as those anticipated from reasonable and prudent
alternatives that may be identified through a section 7 consultation).
In contrast to the 2016 policy (see 81 FR 7226, at 7231, February
11, 2016), we now will consider the avoidance of the administrative or
transactional costs associated with the consultation process as a
benefit of exclusion of a particular area of Federal land. We did
acknowledge then, and restate now, that we will also consider the
extent to which consultation would produce an outcome that has economic
or other impacts, such as by requiring project modifications and
additional conservation measures by the Federal agency or other
affected parties. While we acknowledge that Federal lands are important
areas to the conservation of species habitat, we do not wish to
foreclose the potential to exclude areas under Federal ownership.
Economic Impacts and Other Relevant Impacts
Proposed paragraph (d)(2) addresses economic impacts or other
relevant impacts as identified in proposed paragraph (b). Economic
impacts may play an important role in the discretionary 4(b)(2)
exclusion analysis under the second sentence of section 4(b)(2). The
FWS always considers the probable incremental economic impacts of the
designation of critical habitat. When undertaking a discretionary
4(b)(2) exclusion analysis with respect to a particular area, the FWS
will continue to weigh the economic benefits of exclusion (and any
other benefits of exclusion) against any benefits of inclusion
(primarily the conservation value of designating the area). The nature
of the probable incremental economic impacts, and not necessarily a
particular threshold level, should trigger considerations of exclusions
based on probable incremental economic impacts. For example, if an
economic or other analysis indicates high probable incremental impacts
of designating a particular critical habitat unit of lesser
conservation value (relative to other areas potentially included in the
designation), the FWS may consider excluding that particular unit. When
analyzing whether to exclude any area, the Secretary will weigh such
impacts relative to the conservation value of that area.
For benefits of inclusion or exclusion based on impacts that fall
within the scope of the FWS's expertise, the Secretary will assign the
weight given to those benefits in light of the FWS's expertise. The
FWS's expertise includes, but is not limited to, implementation and
enforcement of the Act; identification of the biological needs of
species; identification of threats to species and their habitats;
identification of important or essential components of habitat; species
protection measures; and the process and outcomes of interagency
consultations under section 7 of the Act.
Conservation Plans or Agreements and Partnerships
Proposed paragraphs (d)(3) and (d)(4) address conservation plans,
agreements, or partnerships, respectively, those permitted under, and
those not permitted under, section 10 of the ESA. These proposed
regulations generally follow our practices from the 2016 policy. We
frequently exclude specific areas from critical habitat designations
based on the existence of private or other non-Federal conservation
plans or agreements and their attendant partnerships when the benefits
of exclusion outweigh the benefits of inclusion. A conservation plan or
agreement describes actions that are designed to provide for the
conservation needs of a species and its habitat and may include actions
to minimize or mitigate negative effects on the species caused by
activities on or adjacent to the area covered by the plan. Conservation
plans or agreements can be developed by private entities with no
involvement of the FWS, or in partnership with the FWS. In the case of
a habitat conservation plan, safe harbor agreement, candidate
conservation agreement with assurances, or conservation benefit
agreement, a plan or agreement is developed in partnership with the FWS
for the purposes of obtaining a permit under section 10 of the Act to
authorize any take of listed species caused incidentally by the
activities described in the plan or agreement. We place great value on
the partnerships that are developed during the preparation and
implementation of conservation plans and agreements.
The benefits of excluding lands with conservation plans or
agreements include relieving landowners, communities, and counties of
any additional regulatory burdens that might be imposed as a result of
the critical habitat designation. A related benefit of exclusion is the
unhindered, continued ability to maintain existing partnerships, as
well as the opportunity to seek new partnerships with potential plan
participants, including States, counties, local jurisdictions,
conservation organizations, and private landowners. Together, these
entities can implement conservation actions that the FWS would be
unable to accomplish without their participation. These partnerships
can lead to additional conservation efforts for listed species. This is
particularly important because conservation plans or agreements often
cover a wide range of species, including listed plant species and
species that are not federally listed.
The protections that a conservation plan or agreement provides to
habitat can reduce the benefits of including the covered area in the
critical habitat designation. However, even in light of such reduction,
there may still be significant benefits of critical habitat
designation. As such, the FWS will weigh the benefits of inclusion
against the benefits of exclusion (usually the maintenance or fostering
of partnerships that provide existing conservation benefits or may
result in future conservation actions).
If a plan under section 10 of the ESA is still under development
when we undertake a discretionary 4(b)(2) exclusion analysis, we will
evaluate these draft plans under regulations proposed at paragraph
(d)(4).
Approach To Excluding Areas
We propose to reinstate paragraph (e) as set forth in the 2020 rule
and in the proposed regulation promulgation portion of this document.
Proposed paragraph (e) describes that the Secretary would exercise the
broad discretion given under section 4(b)(2) by establishing as a
principle that the FWS will exclude areas whenever it determines that
the benefits of exclusion outweigh the benefits of inclusion, as long
as exclusion will not result in the extinction of the species.
Request for Comments
We are seeking comments from all interested parties on the specific
revisions we are proposing, as well as on any of our analyses or
preliminary conclusions in the Required Determinations section of this
document. All relevant information will
[[Page 52597]]
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 must submit your comments and materials concerning this
proposed rule by one of the methods listed in ADDRESSES. Comments sent
by any other method, or to any other address or individual, may not be
considered. Comments must be submitted to <a href="http://www.regulations.gov">http://www.regulations.gov</a>
before 11:59 p.m. (Eastern Time) on the date specified in DATES. We
cannot guarantee that we will be able to consider hand-delivered
comments that we do not receive, or mailed comments that are not
postmarked, 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.
Required Determinations
Regulatory Planning and Review--E.O.s 12866 and 13563
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. 13653 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.
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 rulemaking proposes to revise the Service's regulations
designating critical habitat for endangered and threatened species
under the Act.
The Service is the only entity that is directly affected by this
proposed regulation change at 50 CFR part 17 because changes to this
section of the Code of Federal Regulations merely describe how we will
designate critical habitat under the ESA. Since the only potential
entities directly affected by this proposed regulation change are not
small entities, including any small businesses, small organizations, or
small governments, 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 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)--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 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 designating
critical habitat under the ESA.
Government-to-Government Relationship With Tribes
In accordance with E.O.13175, (``Consultation and Coordination with
Indian Tribal Governments''), and the Department of the Interior's
manual at 512 DM 2, we considered possible
[[Page 52598]]
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 Department of 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.
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), and the
Department of the Interior Manual (516 DM 1).
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 FWS is acting in our unique
statutory role as administrator of the Act and is engaged in a legal
exercise of interpreting the standards of the Act. The FWS's
administration of the Act is not in itself subject to the Act's
provisions, including section 7(a)(2). The FWS has a historical
practice of issuing its 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 FWS's administration of the Act.
Although the FWS consults on actions through intra-agency consultations
where appropriate (e.g., issuance of section 10 permits and actions
under statutory authorities other than the ESA), in those instances the
FWS is acting principally as an ``action agency'' implementing
provisions of the Act or other statutes. Here, by contrast, the FWS is
acting solely in our role as administrator of the ESA in interpreting
the Act's provisions; we are also not implementing the Act to propose
or take a specific action. The FWS is carrying out the most fundamental
exercise of our role as administrator of the ESA, and the Act cannot
reasonably be construed as requiring the FWS to ``consult'' with
ourselves 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 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation, and Wildlife.
Proposed Regulation Promulgation
For the reasons discussed in the preamble, we hereby propose to
amend part 17 of chapter I, title 50 of the Code of Federal Regulations
as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Subpart J--[Redesignated as Subpart K]
0
2. Subpart J, consisting of Sec. Sec. 17.100 through 17.199, is
redesignated as subpart K.
Subpart I--[Redesignated as Subpart J]
0
3. Subpart I, consisting of Sec. Sec. 17.94 through 17.99, is
redesignated as subpart J.
0
4. New subpart I, consisting of Sec. 17.90, is added to read as
follows:
Subpart I--Considerations of Impacts and Exclusions from Critical
Habitat
Sec. 17.90 Impact analysis and exclusions from critical habitat.
(a) At the time of publication of a proposed rule to designate
critical habitat, the Secretary will make available for public comment
the draft economic analysis of the designation. The draft economic
analysis will be summarized in the Federal Register notice of the
proposed designation of critical habitat. The Secretary will also
identify any national security or other relevant impacts that the
Secretary determines are contained in a particular area of proposed
designation. Based on the best information available regarding
economic, national security, and other relevant impacts, the proposed
[[Page 52599]]
designation of critical habitat will identify the areas that the
Secretary has reason to consider for exclusion and explain why. The
identification of areas in the proposed rule that the Secretary has
reason to consider for exclusion is neither binding nor exhaustive.
``Economic impacts'' may include, but are not limited to, the economy
of a particular area, productivity, jobs, and any opportunity costs
arising from the critical habitat designation (such as those
anticipated from reasonable and prudent alternatives that may be
identified through a section 7 consultation), as well as possible
benefits and transfers (such as outdoor recreation and ecosystem
services). ``Other relevant impacts'' may include, but are not limited
to, impacts to Tribes, States, local governments, public health and
safety, community interests, the environment (such as increased risk of
wildfire or pest and invasive species management), Federal lands, and
conservation plans, agreements, or partnerships. The Secretary will
consider impacts at a scale that the Secretary determines to be
appropriate and will compare the impacts with and without the
designation. Impacts may be qualitatively or quantitatively described.
(b) Prior to finalizing the designation of critical habitat, the
Secretary will consider the probable economic, national security, and
other relevant impacts of the designation upon proposed or ongoing
activities.
(c)(1) Subject to paragraph (c)(2) of this section, the Secretary
has discretion as to whether to conduct an exclusion analysis under 16
U.S.C. 1533(b)(2).
(2) The Secretary will conduct an exclusion analysis when:
(i) The proponent of excluding a particular area (including, but
not limited to, permittees, lessees, or others with a permit, lease, or
contract on federally managed lands) has presented credible information
regarding the existence of a meaningful economic or other relevant
impact supporting a benefit of exclusion for that particular area; or
(ii) The Secretary otherwise decides to exercise discretion to
evaluate any particular area for possible exclusion.
(d) When the Secretary conducts a discretionary exclusion analysis
pursuant to paragraph (c) of this section, the Secretary shall weigh
the benefits of including or excluding particular areas in the
designation of critical habitat, according to the following principles:
(1) When analyzing the benefits of including or excluding any
particular area based on impacts identified by experts in, or by
sources with firsthand knowledge of, areas that may be outside the
scope of the Service's expertise, the Secretary will give weight to
those benefits consistent with the expert or firsthand information,
unless the Secretary has knowledge or material evidence that rebuts
that information. Impacts that may be outside the scope of the
Service's expertise include, but are not limited to:
(i) Nonbiological impacts identified by federally recognized Indian
Tribes, consistent with all applicable Executive and Secretary's
orders;
(ii) Nonbiological impacts identified by State or local
governments;
(iii) Impacts based on national security or homeland security
implications identified by the Department of Defense, Department of
Homeland Security, or any other Federal agency responsible for national
security or homeland security; and
(iv) Nonbiological impacts identified by a permittee, lessee, or
contractor applicant for a permit, lease, or contract on Federal lands.
(2) When analyzing the benefit of including or excluding any
particular area based on economic impacts or other relevant impacts
described in paragraph (b) of this section, the Secretary will weigh
such impacts relative to the conservation value of that particular
area. For benefits of inclusion or exclusion based on impacts that fall
within the scope of the Service's expertise, the Secretary will assign
weight to those benefits in light of the Service's expertise.
(3) When analyzing the benefits of including or excluding
particular areas covered by conservation plans, agreements, or
partnerships that have been authorized by a permit under section 10 of
the Act, the Secretary will consider the following factors:
(i) Whether the permittee is properly implementing the conservation
plan or agreement;
(ii) Whether the species for which critical habitat is being
designated is a covered species in the conservation plan or agreement;
and
(iii) Whether the conservation plan or agreement specifically
addresses the habitat of the species for which critical habitat is
being designated and meets the conservation needs of the species in the
planning area.
(4) When analyzing the benefits of including or excluding
particular areas covered by conservation plans, agreements, or
partnerships that have not been authorized by a permit under section 10
of the Act, factors that the Secretary may consider include, but are
not limited to:
(i) The degree to which the record of the plan, or information
provided by proponents of an exclusion, supports a conclusion that a
critical habitat designation would impair the realization of the
benefits expected from the plan, agreement, or partnership.
(ii) The extent of public participation in the development of the
conservation plan.
(iii) The degree to which agency review and required determinations
(e.g., State regulatory requirements) have been completed, as necessary
and appropriate.
(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) reviews or similar reviews occurred, and the nature of
any such reviews.
(v) The demonstrated implementation and success of the chosen
mechanism.
(vi) The degree to which the plan or agreement provides for the
conservation of the physical or biological features that are essential
to the conservation of the species;
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented;
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
(e) If the Secretary conducts an exclusion analysis under paragraph
(c) of this section, and if the Secretary determines that the benefits
of excluding a particular area from critical habitat outweigh the
benefits of specifying that area as part of the critical habitat, then
the Secretary shall exclude that area, unless the Secretary determines,
based on the best scientific and commercial data available, that the
failure to designate that area as critical habitat will result in the
extinction of the species concerned.
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.
[FR Doc. 2025-20550 Filed 11-19-25; 11:15 am]
BILLING CODE 4333-15-P
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