Proposed Rule2025-20551
Endangered and Threatened Wildlife and Plants; Interagency Cooperation Regulations
Primary source
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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 7 of the Endangered Species Act of 1973, as amended (ESA or Act). The proposed revisions to the interagency cooperation regulations confirm the Services' application of statutory requirements for interagency cooperation, while continuing to provide for the conservation of listed species.
Full Text
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[Federal Register Volume 90, Number 223 (Friday, November 21, 2025)]
[Proposed Rules]
[Pages 52600-52607]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-20551]
[[Page 52600]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 402
[Docket No. FWS-HQ-ES-2025-0044, FXES11140900000-256-FF09E23000; Docket
No. 251105-0167]
RIN 1018-BI75; 0648-BN79
Endangered and Threatened Wildlife and Plants; Interagency
Cooperation Regulations
AGENCY: U.S. Fish and Wildlife Service, Interior; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS; collectively, the ``Services'') propose
to revise portions of our regulations for section 7 of the Endangered
Species Act of 1973, as amended (ESA or Act). The proposed revisions to
the interagency cooperation regulations confirm the Services'
application of statutory requirements for interagency cooperation,
while continuing to provide for the conservation of listed species.
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-2025-0044,
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.
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2025-0044; 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 is available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-HQ-ES-2025-0044.
FOR FURTHER INFORMATION CONTACT: Craig Aubrey, Chief, U.S. Fish and
Wildlife Service, Ecological Services, Division of Environmental
Review, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone 703-
358-2442; or Tanya Dobrzynski, National Marine Fisheries Service,
Office of Protected Resources, Endangered Species Act Interagency
Cooperation Division, 1315 East-West Highway, Silver Spring, MD 20910,
telephone 301-427-8400. 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-
0044 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 implementing 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 establish the procedures governing interagency
cooperation under section 7 of the Act, which requires Federal
agencies, in consultation with and with the assistance of the
Secretaries of the Interior and Commerce, to insure that any action
authorized, funded, or carried out by such agencies is not likely to
jeopardize the continued existence of endangered or threatened species
or result in the destruction or adverse modification of critical
habitat of such species. These joint regulations, which are codified in
title 50 of the Code of Federal Regulations (CFR) at part 402 (50 CFR
part 402), were revised in 2019 (84 FR 44976, August 27, 2019) and
again in 2024 (89 FR 24268, April 5, 2024; hereafter, ``the 2019 rule''
and ``the 2024 rule,'' respectively).
States and environmental organizations challenged the 2019
regulations in the Northern District of California, with other States
and industry participants intervening to support the regulations (Ctr.
for Biological Diversity v. Haaland, No. 19-cv-5206 (N.D. Cal.)
(related to California v. Haaland, 19-cv-6013, and ALDF v. Haaland, No.
19-cv-6812)). The district court remanded the regulations to the
Services, and the Services developed the 2024 regulations, affirming
some parts of the 2019 rule and revising or rescinding others. The 2024
rule became effective on May 6, 2024.
Like the 2019 rule, portions of the 2024 rule were challenged in
several court cases (National Hydropower Ass'n v. U.S. Fish & Wildlife
Service, No. 1:24-cv-02285 (D.D.C.) (challenges to the 2024 revisions
to 50 CFR 402.14(i)(1)-(3), allowing the incorporation of offsets into
reasonable and prudent measures); Ctr. for Biological Diversity v.
Dept. of the Interior, No. 4:24-cv-04651-JST (N.D. Cal.) (substantive
and procedural challenges to both the 2019 and 2024 regulations); Am.
Farm Bureau Fed'n v. U.S. Fish & Wildlife Service, No. 1:25-cv-00947
(D.D.C.) (challenges to the 2024 rule and request to reinstate the 2019
rule)).
Additionally, months after the 2024 rule went into effect, the
Supreme Court issued Loper Bright Enterprises v. Raimondo, 603 U.S. 369
(2024). This case overruled Chevron, U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837 (1984), which previously allowed courts
to defer to ``permissible'' agency interpretations of ambiguous
statutory language, even where another, more reasonable interpretation
existed (Id. at 843-44 and n.11).
Further, several Executive Orders (E.O.s) were issued following the
2024 rule's promulgation and the Loper Bright decision that direct
agencies to reconsider multiple aspects of the regulatory process.
First, on January 20, 2025, President Donald Trump signed E.O. 14154,
``Unleashing American Energy.'' Section 3(b) of that E.O. requires that
agency heads begin implementing action plans to suspend, revise, or
rescind all agency actions
[[Page 52601]]
identified as unduly burdensome on the development of domestic energy
sources. Second, on January 24, 2025, President Trump issued E.O.
14181, ``Emergency Measures to Provide Water Resources in California
and Improve Disaster Response in Certain Areas.'' Section 2(e) of that
E.O. directed the Secretary of the Interior to ``promptly review,
revise, or rescind any regulations or procedures specific to
implementation of section 1536 of title 16 United States Code, as
needed and consistent with applicable law, to conform with the plain
meaning of the statute.'' The 2024 rule includes regulations specific
to the implementation of section 1536 of title 16 of the U.S. Code and
is therefore directly implicated by this E.O. Third, on February 19,
2025, the Services were directed to review their regulations for
consistency with statutory text through E.O. 14219, ``Ensuring Lawful
Governance and Implementing the President's `Department of Government
Efficiency' Deregulatory Initiative.'' The E.O. requires review of
various classes of regulations, and section 2(a)(iii) specifically
requires review of any ``regulations that are based on anything other
than the best reading of the underlying statutory authority or
prohibition.''
Secretary of the Interior Burgum also issued Secretary's Order
(S.O.) 3418 to implement E.O. 14154. Section 4(b) of S.O. 3418 requires
FWS to review the 2024 regulations and develop a plan to ``suspend,
revise, or rescind'' the 2024 regulatory revisions, as appropriate.
In compliance with these directives, the Services immediately began
coordinating to re-evaluate the 2024 rule. The agencies, as discussed
further below, have since identified concerns with the 2024 regulations
in light of the intervening Loper Bright Supreme Court decision and
various E.O.s and S.O.s, including those noted above.
Consistent with these ongoing regulatory efforts and
considerations, the Services in National Hydropower Ass'n v. U.S. Fish
& Wildlife Service, No. 1:24-cv-02285 (D.D.C.), filed a motion on April
14, 2025, requesting a voluntary remand without vacatur of the 2024
rule to allow the Services to address the substantial and legitimate
concerns that the Services have with the 2024 regulatory revisions that
allowed for the incorporation of offsets into reasonable and prudent
measures, as described in more detail below. Specifically, the Services
noted concerns that certain aspects of the 2024 rule are not considered
the ``best reading'' of the statute. The Services recognized that
``offset'' does not appear in the statutory text, nor is the term
``mitigation'' employed in the portion of the statute related to
reasonable and prudent measures. See 16 U.S.C. 1536. The Services also
wished to reevaluate whether the offset provisions, described in 50 CFR
402.02 and 402.14(i)(1)-(3), are consistent with the regulatory
requirement not to impose anything more than ``minor changes'' to a
proposed action through reasonable and prudent measures (See 50 CFR
402.14(i)(2)).
Thus, in accordance with the various E.O.s and S.O.s and in
consideration of recent case law, the Services have reviewed the 2024
rule and evaluated the specific regulatory revisions promulgated
through that process. The Services now consider that parts of the 2024
rule are likely inconsistent with the best reading of the ESA. The
Services also find that parts of the 2024 rule are likely unnecessary
or inadvisable for various reasons, including their lack of clarity for
the regulated Federal agencies and applicants engaged in the
consultation process.
Regarding the offset provisions specifically, and as noted above,
NMFS and FWS recognize that the term ``offset'' is not used in the
statutory text, nor is the term ``mitigation'' employed in the portion
of the statute related to reasonable and prudent measures. See 16
U.S.C. 1536. Therefore, NMFS and FWS propose removing the 2024 rule's
offset provisions, consistent with the best reading of the Act.
Based on our considerations described in this preamble, and taking
into account Loper Bright and the E.O.s described above, the Services
also propose to revise the regulations at 50 CFR part 402 by
reinstating certain provisions that were promulgated in 2019, with
proposed modifications to the definition of ``environmental baseline''
in Sec. 402.02 and to provisions addressing the ``reasonably certain
to occur'' standard in Sec. 402.17. These proposed changes are further
explained below. We are not, however, proposing to revise the 2024
revisions to Sec. 402.16 (Reinitiation of consultation).
The regulations that the Services propose in this rule reaffirm the
processes by which the Services will interpret and implement various
statutory requirements set forth in section 7 of the Act, while
continuing to provide for the conservation of listed species. This
proposed rule is intended to provide the public with a transparent
explanation of proposed revisions to the regulations in 50 CFR part 402
and the opportunity to comment on these proposed revisions.
Proposed Changes to 50 CFR Part 402 Resulting From Our Review of the
2024 Rule
Following a review of the 2024 rule, we propose to revise the
regulations at 50 CFR part 402 by replacing all provisions of the
regulations promulgated in 2024 with those promulgated or otherwise in
existence in 2019, with the exception of Sec. 402.16 (Reinitiation of
consultation). In addition, we propose to make additional clarifying
edits to the definition of ``environmental baseline'' in Sec. 402.02
and to provisions addressing the ``reasonably certain to occur''
standard in Sec. 402.17. Each of the proposed revisions is described
below. The specific changes to the regulations proposed herein are
intended to be prospective standards only. If finalized, these
regulations would apply to section 7(a)(2) consultations finalized
after the effective date of the final rule and would not apply
retroactively to section 7(a)(2) consultations 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 the final
rule becomes effective) that any previously completed section 7(a)(2)
consultations be reevaluated to comply with any subsequent regulatory
changes.
This proposed rule is one of four proposed rules publishing in
today's Federal Register affecting the regulations for the ESA. Two of
these proposed rules, including this one and one on listing species and
designating critical habitat at 50 CFR part 424, are joint between the
Services, and two proposed rules related to critical habitat exclusions
and threatened species protections at 50 CFR part 17 are specific to
FWS.
Section 402.02--Definitions
Definition of ``Effects of the Action''
The revisions we are proposing to the definition of ``effects of
the action'' at 50 CFR 402.02 are discussed below under Proposed
Reinstatement of Other Provisions.
Definition of ``Environmental Baseline''
In 2019, we removed the definition of ``environmental baseline''
from the definition of ``effects of the action'' and established it as
its own stand-alone definition at 50 CFR 402.02. We also added
additional detail to the definition. In the new first sentence, we
described environmental baseline as the condition of the listed species
or critical habitat in the action area without the consequences caused
by the proposed action. In the new third sentence, we
[[Page 52602]]
stated that the consequences to listed species or designated critical
habitat from ongoing agency activities or existing agency facilities
that are not within the agency's discretion to modify are part of the
environmental baseline. In 2024, we did not make any changes to the
first sentence and adopted minor revisions to the third sentence to
replace the term ``consequences'' with the word ``impacts,'' removed
the word ``ongoing,'' and added the word ``Federal'' in two locations
to emphasize the central question of the Federal agency's discretion
over their own activities and facilities in determining what is
properly categorized as part of the environmental baseline. As we noted
in the June 22, 2023, proposed rule, the Services consider
``consequences,'' ``impacts,'' and ``effects'' to be equivalent terms,
and we modified the text to be consistent with the language in the
previous sentences of the definition (88 FR 40753 at 40755). Because
ongoing agency activities or existing agency facilities that are not
within the agency's discretion to modify belong in the environmental
baseline and not the proposed action, we revised the text to
consistently use the term ``impacts'' throughout the definition for
items that belong in the environmental baseline, while retaining the
use of the term ``consequences'' in the first sentence for effects that
are caused by the proposed action and not included in the environmental
baseline. Further, we were concerned that the use of the term
``ongoing'' distracted from the intended focus on Federal agency
discretion. These revisions in no way altered the intended meaning or
application of the third sentence of the definition of environmental
baseline.
We are now proposing revisions to the first and third sentence of
environmental baseline. For the first sentence, the Services are
proposing clarifying revisions so the sentence would read:
``Environmental baseline is evaluated at the time of the proposed
action and refers to the current condition of the listed species or its
designated critical habitat in the action area as would reasonably be
expected to occur without the consequences to the listed species or
designated critical habitat caused by the proposed action.'' Because
defining the environmental baseline can be one of the most challenging
aspects of section 7 consultation, the Services are taking this
opportunity to provide more detail on the approach to its
establishment. The proposed revisions reflect the Services' existing
practice. As we noted in the 2019 final rule, environmental baseline
should be used to compare the condition of the listed species and the
designated critical habitat in the action area with and without the
effects of the proposed action, and this comparison is the effects of
the action. (84 FR at 44976). The additions of ``is evaluated at the
time of the proposed action,'' the term ``current,'' and ``as they
would be reasonably expected to occur'' emphasize that the agency looks
to the best available scientific information at the time of the
consultation to inform its understanding of the condition of the listed
species or its designated critical habitat, and to draw the necessary
comparison described in the 2019 final rule.
For the third sentence, the Services are proposing to reinstate the
2019 definition of ``environmental baseline'' which describes
``consequences'' to listed species as part of ``ongoing agency
activities.'' As we noted in 2023 and reaffirm here, when we refer to
an ``agency,'' ``action agency,'' or ``Federal agency,'' it is in
reference to the Federal agency that has proposed the action undergoing
section 7 consultation. Consistent with Sec. 402.03, the obligation of
a Federal agency to consult on a Federal action pursuant to section 7
and the requirements of the part 402 regulations apply to all actions
in which there is discretionary Federal involvement or control.
Therefore, those components of Federal activities or Federal facilities
in which there is no discretionary involvement or control of the
Federal agency are not subject to the requirement to consult, and, as a
result, the impacts of those nondiscretionary activities and facilities
to listed species and critical habitat are not a consequence of a
proposed discretionary Federal action (88 FR 40753 at 40755-40756, June
22, 2023). This is supported by the Supreme Court's conclusion in
National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
667-71 (U.S. 2007) (``Home Builders''), where the Court held that it
was reasonable for the Services to narrow the application of section 7
to a Federal agency's discretionary actions because ``[t]he
regulation's focus on `discretionary' actions accords with the
commonsense conclusion that, when an agency is required to do something
by statute, it simply lacks the power to `insure' that such action will
not jeopardize endangered species.'' Id. Thus, the final sentence of
the definition of ``environmental baseline'' is applicable only to
Federal agency facilities and Federal activities that are not within
the Federal agency's discretion to modify.
While the intent in 2024 was to further refine the 2019 definition
of ``environmental baseline,'' upon review, we believe the minor
revisions in 2024 were unnecessary as they do not meaningfully clarify
or change the definition, and that the prior version is already
consistent with longstanding practice. Therefore, the Services find
that reverting back to the third sentence in the 2019 definition
adheres to the plain meaning in the statute, follows longstanding
practice, and does not change our understanding and application of the
environmental baseline to the jeopardy and destruction or adverse
modification analyses.
Definition of ``Reasonable and Prudent Measures''
The revisions we are proposing to the definition of ``reasonable
and prudent measures'' at 50 CFR 402.02 are discussed below under
Proposed Changes to Reasonable and Prudent Measures.
Proposed Changes to Reasonable and Prudent Measures
Section 402.02, Definition of ``Reasonable and Prudent Measures,'' and
Section 402.14, Formal Consultation
In the 2024 rule, we made amendments to the regulatory provisions
relating to the scope of reasonable and prudent measures (RPMs) in an
incidental take statement (ITS) and the definition of RPMs to
facilitate ``offsetting'' RPMs, i.e., measures intended to compensate
for the impacts of incidental take on listed species.
Upon further review and in accordance with the E.O.s and S.O.s
described above, we have determined that the 2024 regulation's use of
the terms ``offset'' and ``mitigation'' is not sufficiently rooted in
express statutory language in section 7 of the ESA. After reconsidering
the statutory and regulatory text in view of Loper Bright, the Services
propose to rescind all changes made in 2024 that created the option for
offsetting RPMs. We therefore propose to revert to these provisions as
they existed prior to 2024 in 50 CFR part 402, in particular in the
regulatory text at Sec. 402.14(i)(1)-(3) and in the definition of RPMs
at Sec. 402.02.
Proposed Reinstatement of Other Provisions
Section 402.17, Other Provisions, and Section 402.02, Definition of
``Effects of the Action''
In the 2019 and 2024 rules, the Services explained that the
regulatory
[[Page 52603]]
revisions of Sec. 402.17 were intended to provide additional clarity
to the interagency consultation process and did not change the various
standards and requirements of the statutory or regulatory framework.
The 2019 rulemaking, which added Sec. 402.17, and the subsequent 2024
rulemaking, which removed Sec. 402.17, both discussed the meaning and
application of this provision and, in 2024, reasons for revoking the
provision. Readers are directed to those Federal Register publications
(84 FR 44976, August 27, 2019; 89 FR 24268, April 5, 2024) for a full
explanation. Our reasons for removal in 2024 included (1) avoiding a
need for reference to multiple sections of the regulations for a full
definition of ``effects of the action''; (2) a potential source of
confusion and tension between the phrase ``clear and substantial
information'' and the statutory requirement to use the best scientific
and commercial information available; and (3) a stated intent to
include the type of guidance encompassed within Sec. 402.17 in a
planned revision of the 1998 Consultation Handbook.
However, the Services are now proposing to reinstate Sec. 402.17
to prevent confusion and provide more clarity in the regulatory text.
Additionally, the Services are proposing to add a fourth factor to
Sec. 402.17(a) for consideration when evaluating whether activities
are reasonably certain to occur. In Sec. 402.17(b), the Services are
proposing to add two additional factors to consider for determining
that a consequence is not caused by the proposed action.
The term ``reasonably certain to occur'' is found in the regulatory
definitions (Sec. 402.02) of ``effects of the action'' and
``cumulative effects'' and is also an important concept for identifying
``activities that are caused by the proposed action'' within ``effects
of the action.'' We established a separate provision (Sec. 402.17) in
2019 to provide a non-exclusive list of factors to consider when it is
unclear if a consequence or activity is reasonably certain to occur.
The proposed text addresses the basis upon which a conclusion of
reasonably certain to occur may be reached and is intended to help
practitioners avoid inclusion of consequences or activities whose
occurrence would be considered remote, but also does not require that
the consequence or activity be absolutely certain to occur. While the
proposed reinstatement of Sec. 402.17 will again require practitioners
to reference two separate sections of the regulations in their
consideration of either ``effects of the action'' or ``cumulative
effects,'' we now believe the previous concern regarding reference to
two separate sections was overstated. In particular, the proposed
definition of ``effects of the action'' includes an express reference
to Sec. 402.17, making it clear to any reader that this section should
be consulted in addition to the definition itself. Similarly, the
entire 50 CFR part 402 regulations are intended to work in concert with
one another to administer the express statutory language of the ESA.
Federal agencies and applicants engaged in the consultation process
cannot effectively apply any of the specific sections in isolation but
must consult all relevant sections in order to appropriately engage in
effective consultation. To the extent there are lingering questions of
how one provision of the regulations may fit with another, the Services
will continue working with other Federal agencies to minimize the risk
of confusion.
When the Services removed Sec. 402.17 in 2024, the supporting
discussion in both the 2023 proposed rule and the 2024 final rule noted
potential confusion and tension between the phrase ``clear and
substantial information'' and the statutory requirement for the
Services and all Federal agencies to use the ``best scientific and
commercial information available'' (16 U.S.C. 1536 (a)(2)). Largely,
this confusion and tension stemmed from the appearance that the phrase
added a second and potentially higher standard for the information and
supporting basis used to determine if a consequence or activity was
``reasonably certain to occur.''
Although we are proposing to reinstate Sec. 402.17, it is
important to note that there is no actual tension between the use of
``best available scientific information'' and an expectation that
``clear and substantial information'' assists in the determination of
``reasonably certain to occur.'' The key sentence reads ``[a]
conclusion of reasonably certain to occur must be based on clear and
substantial information, using the best scientific and commercial data
available.'' Thus, as an initial matter, the standard expressly
recognizes, consistent with the Act, that we use the best scientific
and commercial data available to determine whether a particular
consequence is reasonably certain to occur or not. Similarly, the
standard does not limit what information and data the Services will
consider in making that determination. Given the definition of
``effects of the action'' requires reasonable certainty that a
consequence or activity will occur, relying on ``clear and
substantial'' information is appropriate.
We additionally note as we did in 2019 that the inclusion of Sec.
402.17 would neither raise nor lower the bar on application of the
``effects of the action'' test. We also reiterate that the proposed
reinsertion of Sec. 402.17 as revised is not intended to require a
certain numerical amount of data; rather, it is simply to illustrate
that the determination of a consequence or activity to be reasonably
certain to occur must be rooted in the best scientific and commercial
information available, and should not be based on speculation or
conjecture. The proposed reinserted section also does not mean the
nature of the information would have to support that a consequence or
activity is guaranteed to occur. The Services will continue to follow
accepted scientific methods and evaluate all lines of best available
evidence to arrive at principled scientific determinations, including
as to what consequences and activities are or are not reasonably
certain to occur. When understood in this manner, it becomes evident
there is not a tension in the key sentence guiding the application of
the ``reasonably certain to occur'' standard.
The Services also noted in both the 2023 proposed rule and 2024
final rule (88 FR 40753, June 22, 2023, and 89 FR 24268, April 5, 2024,
respectively) that portions of the Sec. 402.17 text from the 2019
rulemaking were unnecessary in regulatory text because we intended to
discuss those considerations and other examples, as appropriate, in a
revised Consultation Handbook. The Services are still working on a
revised Handbook, and absent a specific timeline for completing that
work, we have determined that the set of factors originally included in
Sec. 402.17(a) and (b) in the 2019 rulemaking should also be
reinstated and expanded upon to clarify the regulatory requirements for
section 7 practitioners and to avoid confusion due to lack of guidance
to Federal agencies and applicants engaged in the consultation process.
Section 402.17(a) includes a non-exclusive list of factors intended
to guide determinations as to what activities (either for purposes of
``effects of the action'' or ``cumulative effects'') are reasonably
certain to occur. The factors originally included in 2019 in Sec.
402.17(a) that we propose to reinsert focus on considerations such as
past experience, existing plans, and remaining requirements related to
a potential activity. These considerations are similar to those
mentioned in the preamble to the 1986 final rule on interagency
cooperation (51 FR 19926 at
[[Page 52604]]
19933, June 3, 1986) and in the Services' 1998 Consultation Handbook
(Handbook at 4-32). To those three factors, we also propose to add a
fourth factor in Sec. 402.17(a)(4): ``[t]he amount of State, tribal,
territorial, or local administrative discretion remaining to be
exercised.'' This factor is a relevant consideration because the less
administrative discretion that remains relative to an activity, the
more likely it is to be considered reasonably certain to occur and,
correspondingly, greater remaining discretion suggests greater
uncertainty. The factor operates in a manner similar to Sec.
402.17(a)(3), which considers the remaining economic, administrative,
and legal requirements related to an activity.
The text at Sec. 402.17(b) similarly describes a non-exclusive
list of factors to determine when a consequence may not be reasonably
certain to occur for purposes of applying the ``effects of the action''
definition. The factors originally included in 2019 in Sec. 402.17(b)
that we propose to reinsert focus on whether a consequence is remote in
time, geographically remote, or may only be reached through a lengthy
causal chain. As we noted in 2019, these are relevant considerations
that help determine whether a particular consequence may or may not be
considered reasonably certain to occur and are consistent with our
longstanding practices (84 FR at 44981).
To those three considerations, we are proposing to add two
additional provisions that are also relevant in determining whether a
consequence is reasonably certain to occur. Section 402.17(b)(4)
focuses on whether ``the agency has no ability to prevent the
consequence due to its limited statutory authority.'' Like
402.17(b)(1)-(3), considering the extent of an action agency's
authority applies normal principles of proximate causation and helps
determine whether a consequence is appropriately attributable to the
proposed action. In the 2019 final rule, we noted that our two-part
causation test reflected in our definition of ``effects of the action''
(but-for causation plus reasonably certain to occur) adopts analogous
principles to those of proximate causation (84 FR at 44991). While we
declined to adopt an express third element in our effects test for the
``jurisdiction or control'' of the action agency in 2019 (84 FR at
44991), Seven County Infrastructure Coalition vs. Eagle County,
Colorado recently confirmed that ``a mere `but-for' causal relationship
is insufficient to make an agency responsible for a particular
effect.'' 221 L.Ed.2d.820, 841 (2025) (citing Department of
Transportation v. Public Citizen, 541 U.S. 752, 767 (2004)). The
principles of proximate causation articulated in Seven County are
trans-substantive and make clear that an agency's action cannot be
considered a cause of an environmental effect when the agency has no
authority to prevent the effect. As such, it is appropriate to consider
the statutory authority of an action agency. Additionally, we are
proposing to add Sec. 402.17(b)(5) that examines ``[i]f the
consequence would occur regardless of whether the proposed action goes
forward.'' If a consequence will happen irrespective of the proposed
action, then it cannot be caused by the proposed action, i.e., it would
not be a reasonably certain result of the proposed action. For this
reason, we believe it is a useful addition to the non-exclusive list of
considerations that action agencies and the Services should examine in
determining what consequences of the proposed action are reasonably
certain to occur.
One final proposed change to note is that in 2024, the Services
removed Sec. 402.17 from the regulations and revised the definition of
``effects of the action'' at 50 CFR 402.02 to remove the parenthetical
reference to that section. Additionally, to retain a complete ``effects
of the action'' definition, the Services moved the phrase ``but that
are not part of the action'' from Sec. 402.17 to the ``effects of the
action'' definition in Sec. 402.02.
Therefore, in coordination with our proposed reinstatement of Sec.
402.17, the Services propose to remove ``but that are not part of the
action'' from the ``effects of the action'' definition in Sec. 402.02
and add the parenthetical reference to Sec. 402.17 back to the end of
that definition. The phrase ``but that are not part of the action'' is
in proposed Sec. 402.17. The proposed definition for ``effects of the
action'' would therefore reinstate the 2019 version, as set forth below
under Proposed Regulation Promulgation.
Overall, as provided in our explanation in the 2019 final rule and
as discussed in more detail above, the reinsertion and revision of
Sec. 402.17 provides helpful guidance consistent with the plain
meaning of the statute and agency practice. This proposed change does
not revise the scope of the ``effects of the action'' nor change the
application of the ``but for'' and ``reasonably certain to occur''
causation test to determine consequences or activities caused by the
proposed action.
Request for Comments
We seek public comments from all interested parties on the specific
revisions we are now proposing to 50 CFR part 402, as well as the
regulatory revisions we made in the 2019 and 2024 rules, and any of our
analyses or conclusions discussed under Required Determinations, below.
All relevant information will be considered prior to making a final
determination regarding these regulations.
Based on comments received and on our experience in administering
the Act, the final rule may include revisions to any provisions in part
402 that are a logical outgrowth of this proposed rule, consistent with
the Administrative Procedure Act (5 U.S.C. subchapter II).
In proposing the above revisions, we also are considering whether
there are legitimate reliance interests (e.g., commercial, economic,
environmental, or aesthetic interests) on the regulations under
reexamination. Dep't of Homeland Sec. v. Regents of the Univ. of
California, 591 U.S. 1, 30 (2020). We therefore solicit public comment
on reliance interests.
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 will not 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.
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.
[[Page 52605]]
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 proposed rule, if made final, would be applied in determining
whether a Federal agency has insured, in consultation with the
Services, that any action it would authorize, fund, or carry out is not
likely to jeopardize listed species or result in the destruction or
adverse modification of critical habitat. The proposed rule would serve
to confirm the Services' longstanding application of statutory
requirements for interagency cooperation pursuant to section 7 of the
ESA. 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 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 interagency consultation processes
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 reaffirm the interagency
consultation processes 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, the Department of Commerce (DOC) ``Tribal Consultation and
Coordination Policy'' (May 21, 2013), DOC Departmental Administrative
Order (DAO) 218-8, and National Oceanic and Atmospheric Administration
(NOAA) Administrative Order (NAO) 218-8 (April 2012), we considered
possible effects of this proposed rule on federally recognized 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).
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 Office of Management and
Budget (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
[[Page 52606]]
on Implementation of National Environmental Policy Act (43 CFR part
46.), the Department of the Interior Manual (516 DM 1), the NOAA
Administrative Order (NAO) 216-6A, and the NOAA Companion Manual,
``Policy and Procedures for Compliance with the National Environmental
Policy Act and Related Authorities'', which became effective 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'
promulgation of rules that govern their implementation of the Act
itself is not an action that is subject to the Act's provisions,
including section 7(a)(2). The Services have a historical practice of
issuing their regulations under the ESA without undertaking section 7
consultation. This practice accords with the plain language, structure,
and purposes of the ESA. Nothing in the statue places a consultation
obligation on the Services' promulgation of regulations. 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'' implementing
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 not also implementing the Act to propose or take a specific
action. The Services are carrying out the most fundamental exercise of
our roles 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 402
Endangered and threatened species.
Proposed Regulation Promulgation
For the reasons set out in the preamble, we hereby propose to amend
part 402, subchapter A of chapter IV, title 50 of the Code of Federal
Regulations, as set forth below:
PART 402--INTERAGENCY COOPERATION--ENDANGERED SPECIES ACT OF 1973,
AS AMENDED
0
1. The authority citation for part 402 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Amend Sec. 402.02 by revising the definitions of ``Effects of the
action,'' ``Environmental baseline,'' and ``Reasonable and prudent
measures'' to read as follows:
Sec. 402.02 Definitions.
* * * * *
Effects of the action are all consequences to listed species or
critical habitat that are caused by the proposed action, including the
consequences of other activities that are caused by the proposed
action. A consequence is caused by the proposed action if it would not
occur but for the proposed action and it is reasonably certain to
occur. Effects of the action may occur later in time and may include
consequences occurring outside the immediate area involved in the
action. (See Sec. 402.17).
Environmental baseline is evaluated at the time of the proposed
action and refers to the current condition of the listed species or its
designated critical habitat in the action area as would reasonably be
expected to occur, without the consequences to the listed species or
designated critical habitat caused by the proposed action. The
environmental baseline includes the past and present impacts of all
Federal, State, or private actions and other human activities in the
action area, the anticipated impacts of all proposed Federal projects
in the action area that have already undergone formal or early section
7 consultation, and the impact of State or private actions which are
contemporaneous with the consultation in process. The consequences to
listed species or designated critical habitat from ongoing agency
activities or existing agency facilities that are not within the
agency's discretion to modify are part of the environmental baseline.
* * * * *
Reasonable and prudent measures refer to those actions the Director
believes necessary or appropriate to minimize the impacts, i.e., amount
or extent, of incidental take.
* * * * *
0
3. Amend Sec. 402.14 by:
0
a. Revising paragraphs (i)(1) and (2);
0
b. Removing paragraph (i)(3); and
0
c. Redesignating paragraphs (i)(4) through (7) as paragraphs (i)(3)
through (6).
The revisions read as follows:
Sec. 402.14 Formal consultation.
* * * * *
(i) Incidental take. (1) In those cases where the Service concludes
that an action (or the implementation of any reasonable and prudent
alternatives) and the resultant incidental take of listed species will
not violate section 7(a)(2), and, in the case of marine mammals, where
the taking is
[[Page 52607]]
authorized pursuant to section 101(a)(5) of the Marine Mammal
Protection Act of 1972, the Service will provide with the biological
opinion a statement concerning incidental take that:
(i) Specifies the impact, i.e., the amount or extent, of such
incidental taking on the species. A surrogate (e.g., similarly affected
species or habitat or ecological conditions) may be used to express the
amount or extent of anticipated take provided that the biological
opinion or incidental take statement describes the causal link between
the surrogate and take of the listed species, explains why it is not
practical to express the amount or extent of anticipated take or to
monitor take-related impacts in terms of individuals of the listed
species, and sets a clear standard for determining when the level of
anticipated take has been exceeded. (ii) Specifies those reasonable and
prudent measures that the Director considers necessary or appropriate
to minimize such impact;
(iii) In the case of marine mammals, specifies those measures that
are necessary to comply with section 101(a)(5) of the Marine Mammal
Protection Act of 1972 and applicable regulations with regard to such
taking;
(iv) Sets forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with by the
Federal agency or any applicant to implement the measures specified
under paragraphs (i)(1)(ii) and (i)(1)(iii) of this section; and
(v) Specifies the procedures to be used to handle or dispose of any
individuals of a species actually taken.
(2) Reasonable and prudent measures, along with the terms and
conditions that implement them, cannot alter the basic design,
location, scope, duration, or timing of the action, and may involve
only minor changes.
* * * * *
0
4. Add Sec. 402.17 to read as follows:
Sec. 402.17 Other provisions.
(a) Activities that are reasonably certain to occur. A conclusion
of reasonably certain to occur must be based on clear and substantial
information, using the best scientific and commercial data available.
Factors to consider when evaluating whether activities caused by the
proposed action (but not part of the proposed action) or activities
reviewed under cumulative effects are reasonably certain to occur
include, but are not limited to:
(1) Past experiences with activities that have resulted from
actions that are similar in scope, nature, and magnitude to the
proposed action;
(2) Existing plans for the activity; and
(3) Any remaining economic, administrative, and legal requirements
necessary for the activity to go forward; and
(4) The amount of State, tribal, territorial, or local
administrative discretion remaining to be exercised.
(b) Consequences caused by the proposed action. To be considered an
effect of a proposed action, a consequence must be caused by the
proposed action (i.e., the consequence would not occur but for the
proposed action and is reasonably certain to occur). A conclusion of
reasonably certain to occur must be based on clear and substantial
information, using the best scientific and commercial data available.
Considerations for determining that a consequence to the species or
critical habitat is not caused by the proposed action include, but are
not limited to:
(1) The consequence is so remote in time from the action under
consultation that it is not reasonably certain to occur; or
(2) The consequence is so geographically remote from the immediate
area involved in the action that it is not reasonably certain to occur;
or
(3) The consequence is only reached through a lengthy causal chain
that involves so many steps as to make the consequence not reasonably
certain to occur; or
(4) The agency has no ability to prevent the consequence due to its
limited statutory authority; or
(5) If the consequence would occur regardless of whether the
proposed action goes forward.
(c) Required consideration. The provisions in paragraphs (a) and
(b) of this section must be considered by the action agency and the
Services.
* * * * *
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. 2025-20551 Filed 11-19-25; 11:15 am]
BILLING CODE 4333-15-P
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