[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Proposed Rules]
[Pages 27066-27078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10504]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 424

[Docket No. FWS-HQ-ES-2012-0096; Docket No. 120106025-3256-01; 
4500030114]
RIN 1018-AX86; RIN 0648-BB79


Listing Endangered and Threatened Species and Designating 
Critical Habitat; Implementing Changes to the Regulations for 
Designating Critical Habitat

AGENCY: U.S. Fish and Wildlife Service, Interior; National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (collectively referred to as the 
``Services'' or ``we''), propose to amend portions of our regulations, 
which implements the Endangered Species Act of 1973, as amended (Act). 
Our regulation clarifies, interprets, and implements portions of the 
Act concerning the procedures and criteria used for adding species to 
the Lists of Endangered and Threatened Wildlife and Plants and 
designating and revising critical habitat. Specifically, we propose to 
amend portions of our regulations that clarify procedures for 
designating and revising critical habitat. The proposed amendments 
would make minor edits to the scope and purpose, add and remove some 
definitions, and clarify the criteria for designating critical habitat. 
These proposed amendments are based on the Services' review of the 
regulations and are intended to add clarity for the public,

[[Page 27067]]

clarify expectations regarding critical habitat and provide for a 
credible, predictable, and simplified critical-habitat-designation 
process. Finally, the proposed amendments are also part of the 
Services' response to Executive Order 13563 (January 18, 2011), which 
directs agencies to review their existing regulations and, among other 
things, modify or streamline them in accordance with what has been 
learned.

DATES: We will accept comments from all interested parties until July 
11, 2014. Please note that if you are using the Federal eRulemaking 
Portal (see ADDRESSES below), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Standard Time on this date.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. In 
the Search box, enter the Docket Number for this proposed rule, which 
is FWS-HQ-ES-2012-0096. You may submit a comment by clicking on 
``Comment Now!''. Please ensure that you have found the correct 
rulemaking before submitting your comment.
     U.S. mail or hand delivery: Public Comments Processing, 
Attn: [Docket No. FWS-HQ-ES-2012-0096]; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Request for Information section below for more 
information).

FOR FURTHER INFORMATION CONTACT: Douglas Krofta, U.S. Fish and Wildlife 
Service, Division of Conservation and Classification, 4401 N Fairfax 
Drive, Suite 420, Arlington, VA, 22203, telephone 703/358-2527; 
facsimile 703/358-1735; or Marta Nammack, National Marine Fisheries 
Service, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, telephone 301/427-8469; facsimile 301/713-0376. If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: Today, we publish in the Federal Register 
three related documents that are now open for public comment. We invite 
the public to comment individually on these documents as instructed in 
their preambles. This document is one of the three, of which two are 
proposed rules and one is a draft policy:
     A proposed rule to amend the existing regulations 
governing section 7 consultation under the Endangered Species Act to 
revise the definition of ``destruction or adverse modification'' of 
critical habitat. The current regulatory definition has been 
invalidated by several courts for being inconsistent with the language 
of the Act. This proposed rule would revise title 50 of the Code of 
Federal Regulations (CFR) at part 402. The Regulatory Identifier Number 
(RIN) is 1018-AX88, and the proposed rule may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.
     A proposed rule to amend existing regulations governing 
the designation of critical habitat under section 4 of the Act. A 
number of factors, including litigation and the Services' experience 
over the years in interpreting and applying the statutory definition of 
critical habitat, have highlighted the need to clarify or revise the 
current regulations. This proposed rule would revise 50 CFR part 424. 
It is published under RIN 1018-AX86 and may be found on http://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096.
     A draft policy pertaining to exclusions from critical 
habitat and how we consider partnerships and conservation plans, 
conservation plans permitted under section 10 of the Act, tribal lands, 
national security and homeland security impacts and military lands, 
Federal lands, and economic impacts in the exclusion process. This 
policy is meant to complement the proposed revisions to 50 CFR part 424 
and to provide for a simplified exclusion process. The policy is 
published under RIN 1018-AX87 and may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104.

Background

    The Endangered Species Act of 1973, as amended (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 listed species depend, to develop a 
program for the conservation of listed species, and to achieve the 
purposes of certain treaties and conventions. Moreover, the Act states 
that it is the policy of Congress that the Federal Government will seek 
to conserve threatened and endangered species, and use its authorities 
in furtherance of the purposes of the Act.
    In passing the Act, Congress viewed habitat loss as a significant 
factor contributing to species endangerment. Habitat destruction and 
degradation have been a contributing factor causing the decline of a 
majority of species listed as threatened or endangered under the Act 
(Wilcove et. al. 1998). The present or threatened destruction, 
modification, or curtailment of a species' habitat or range is included 
in the Act as one of the factors on which to base a determination of 
threatened or endangered. One of the tools provided by the Act to 
conserve species is the designation of critical habitat.
    The purpose of critical habitat is to identify the areas that are 
or will be essential to the species' recovery. Once critical habitat is 
designated, it provides for the conservation of listed species in 
several ways. Specifying the geographic location of critical habitat 
facilitates implementation of section 7(a)(1) of the Act by identifying 
areas where Federal agencies can focus their conservation programs and 
use their authorities to further the purposes of the Act. Designating 
critical habitat also helps focus the conservation efforts of other 
conservation partners, such as State and local governments, 
nongovernmental organizations, and individuals. Furthermore, when 
designation of critical habitat occurs near the time of listing it 
provides early conservation planning guidance (e.g., identifying some 
of the areas that are needed for recovery, the physical and biological 
features needed for the species, and special management considerations 
or protections) to bridge the gap until the Services can complete more 
thorough recovery planning.
    In addition to serving as a notification tool, the designation of 
critical habitat also provides a significant regulatory protection--the 
requirement that Federal agencies consult with the Services under 
section 7(a)(2) of the Act to ensure that their actions are not likely 
to destroy or adversely modify critical habitat. The Federal 
Government, through its role in water management, flood control, 
regulation of resources extraction and other industries, Federal land 
management, and the funding, authorization, and implementation of a 
myriad of other activities, may propose actions that are likely to 
affect critical habitat. The designation of critical habitat ensures 
that the Federal Government considers the effects of its actions on 
habitat important to species' conservation and avoids or modifies those 
actions that are likely to destroy or adversely modify critical 
habitat. This benefit should be especially valuable when, for example, 
species presence or habitats are ephemeral in nature, species presence 
is difficult to establish through surveys (e.g., when a species such as 
a plant's ``presence'' may be limited to a seed bank), or protection of 
unoccupied habitat is

[[Page 27068]]

essential for the conservation of the species.
    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 FWS and by the Secretary of Commerce to the 
Assistant Administrator for NMFS.
    There have been no comprehensive amendments to the Act since 1988, 
and no comprehensive revisions to part 424 of the implementing 
regulations since 1984. In the years since those changes took place, 
the Services have gained considerable experience in implementing the 
critical habitat requirements of the Act, and there have been numerous 
court decisions regarding the designation of critical habitat.
    On May 1, 2012, the Services finalized the revised implementing 
regulations related to publishing textual descriptions of proposed and 
final critical habitat boundaries in the Federal Register for 
codification in the Code of Federal Regulations (77 FR 25611). That 
final rule revised 50 CFR 424.12(c) to make the process of designating 
critical habitat more user-friendly for affected parties, the public as 
a whole, and the Services, as well as more efficient and cost 
effective. Since the final rule became effective on May 31, 2012, the 
Services have maintained the publication of maps of proposed and final 
critical habitat designations in the Federal Register, but the 
inclusion of any textual description of the designation boundaries in 
the Federal Register for codification in the Code of Federal 
Regulations is optional. Because we revised 50 CFR 424.12(c) 
separately, we do not discuss that paragraph further in this proposed 
rule.
    On August 28, 2013, the Services finalized revisions to the 
regulations for impact analyses of critical habitat (78 FR 53058). 
These changes were made as directed by the President's February 28, 
2012, Memorandum, which directed us to take prompt steps to revise our 
regulations to provide that the economic analysis be completed and made 
available for public comment at the time of publication of a proposed 
rule to designate critical habitat. These revisions also state that the 
impact analysis should focus on the incremental effects resulting from 
the designation of critical habitat. Because we have revised 50 CFR 
424.19 separately, we do not discuss that section further in this 
proposed rule.

Discussion of Proposed Changes to Part 424

    This proposal would amend 50 CFR 424.01, 424.02, and 424.12 (except 
for paragraph (c) as mentioned) to clarify the procedures and criteria 
used for designating critical habitat, addressing in particular several 
key issues that have been subject to frequent litigation.
    In proposing the specific changes to the regulations that follow, 
and setting out the accompanying clarifying discussion in this 
preamble, the Services are establishing prospective standards only. 
Nothing in these proposed revised regulations is intended to require 
(now or at such time as these regulations may become final) that any 
previously completed critical habitat designation must be reevaluated 
on this basis.

Section 424.01 Scope and Purpose

    We propose minor revisions to this section to update language and 
terminology. The first sentence in section 424.01(a) would be revised 
to remove reference to critical habitat being designated or revised 
only ``where appropriate.'' This wording implied a greater flexibility 
regarding whether to designate critical habitat than is correct. The 
Services believe that circumstances when critical habitat designation 
will be deemed not prudent are rare. Therefore, the new language 
removes the phrase ``where appropriate.'' Other revisions to this 
section are minor word changes to use more plain language.

Section 424.02 Definitions

    This section of the regulations defines terms used in the context 
of section 4 of the Act. We propose revisions to section 424.02 to 
update it to current formatting guidelines, to revise several 
definitions related to critical habitat, to delete definitions that are 
redundant of statutory definitions, and to add two newly defined terms. 
Section 424.02 is currently organized with letters as paragraph 
designation for each term (e.g., 424.02(b) Candidate). The Office of 
the Federal Register now recommends setting out definitions in the CFR 
without paragraph designations. We propose to revise the formatting of 
the entire section accordingly. Discussion of the revised definitions 
and newly defined terms follows.
    We note that, although revising the formatting of the section 
requires that the entirety of the section be restated in the proposed-
amended-regulation section, we are not at this time revisiting the text 
of those existing definitions that we are not specifically revising, 
including those that do not directly relate to designating critical 
habitat. In particular, we are not in this rulemaking proposing to 
amend the definitions of ``plant,'' ``wildlife,'' or ``fish and 
wildlife'' to reflect changes in taxonomy since the ESA was enacted in 
1973. In 1973, only the Animal and Plant Kingdoms of life were 
universally recognized by science, and all living things were 
considered to be members of one of these kingdoms. Thus, at enactment, 
the ESA applied to all living things. Advances in taxonomy have 
subsequently split additional kingdoms from these two. Any species that 
was considered to be a member of the Animal or Plant Kingdoms in 1973 
will continue to be treated as such for purposes of the administration 
of the Act regardless of any subsequent changes in taxonomy. We may 
address this issue in a future rulemaking relating to making listing 
determinations (as opposed to designating critical habitat). In the 
meantime, the republication of these definitions here should not be 
viewed as an agency determination that these definitions reflect the 
scope of the Act in light of our current understanding of taxonomy.
    The current regulations include a definition for ``Conservation, 
conserve, and conserving.'' We propose to revise the title of this 
entry to ``Conserve, conserving, and conservation,'' changing the order 
of the words to conform to the statute. Additionally, we propose to 
revise the first sentence of the definition to include the phrase 
``i.e., the species is recovered'' to clarify the link between 
conservation and recovery of the species. The statutory definition of 
``conserve, conserving, and conservation'' is ``to bring any endangered 
or threatened species to the point at which measures provided pursuant 
to the Act are no longer necessary.'' This is the same concept as the 
definition of recovery found in section 402.02: ``improvement in the 
status of listed species to the point at which listing is no longer 
appropriate.'' The Services, therefore, view ``conserve, conserving, 
and conservation'' as a process culminating at the point at which a 
species is recovered.
    We propose to delete definitions for ``critical habitat,'' 
``endangered species,'' ``plant,'' ``Secretary,'' ``State Agency,'' and 
``threatened species,'' because these terms are defined in the Act and 
the existing regulatory definitions do not add meaning to the terms.
    We also propose to define the previously undefined term 
``geographical area occupied by the species'' as: ``the geographical 
area

[[Page 27069]]

which may generally be delineated around the species' occurrences, as 
determined by the Secretary (i.e., range). Such areas may include those 
areas used throughout all or part of the species' life cycle, even if 
not used on a regular basis (e.g., migratory corridors, seasonal 
habitats, and habitats used periodically, but not solely by vagrant 
individuals).'' This term appears in the definition of ``critical 
habitat'' found in section 3(5)(A)(i) and (ii) of the Act, but is not 
defined in the Act or in our current regulations. The inclusion of this 
new regulatory definition reflects the Services' efforts to clarify the 
critical-habitat-designation process.
    The definition of ``critical habitat'' in the Act has two parts, 
section 3(5)(A)(i) and (ii), which establish two distinct categories of 
critical habitat, based on species occupancy in an area at the time of 
listing. Therefore, to identify specific areas to designate as critical 
habitat, we must first determine what area constitutes the 
``geographical area occupied by the species at the time of listing,'' 
which is the language used in the Act. The scale of this area is likely 
to be larger than the specific areas that would then be analyzed for 
potential designation under section 3(5)(A)(i). This is because the 
first part of the critical habitat definition in the Act directs the 
Services to identify ``specific areas within'' the geographical area 
occupied by the species at time of listing. This intentional choice to 
use more narrow terminology alongside broader terminology suggests that 
the ``geographical area'' was expected most often to be a larger area 
that could encompass multiple ``specific areas.'' Thus, we find the 
statutory language supports the interpretation of equating the 
geographical area occupied by the species to the wider area around the 
species' occurrences at the time of listing. A species occurrence is a 
particular location in which members of the species are found 
throughout all or part of their life cycle. The geographic area 
occupied by the species is thus the broader, coarser-scale area that 
encompasses the occurrences, and is what is often referred to as the 
``range'' of the species.
    In the Act, the term ``geographical area occupied by the species'' 
is further modified by the clause, ``at the time it is listed.'' 
However, if critical habitat is being designated or revised several 
years after the species was listed, it can be difficult to discern what 
was occupied at the time of listing. The known distribution of a 
species can change after listing for many reasons, such as discovery of 
additional localities, extirpation of populations, or emigration of 
individuals to new areas. In many cases, information concerning a 
species' distribution, particularly on private lands, is limited as 
surveys are not routinely carried out on private lands unless performed 
as part of an environmental analysis for a particular development 
proposal. Even then, such surveys typically focus on listed rather than 
unlisted species, so our knowledge of a species' distribution at the 
time of listing in these areas is often limited and the information in 
our listing rule may not detail all areas occupied by the species at 
that time.
    Thus, while some of these changes in a species' known distribution 
reflect changes in the actual distribution of the species, some reflect 
only changes in the quality of our information concerning distribution. 
In these circumstances, the determination of which geographic areas 
were occupied at the time of listing may include data developed since 
the species was listed. This interpretation was supported by a recent 
court decision, Otay Mesa Property L.P. v. DOI, 714 F. Supp. 2d 73 
(D.D.C. 2010), rev'd on other grounds, 646 F.3d 914 (D.C. Cir. 2011) 
(San Diego fairy shrimp). In that decision, the judge noted that the 
clause ``occupied at the time of listing'' allows FWS to make a 
postlisting determination of occupancy based on the currently known 
distribution of the species. Although the D.C. Circuit disagreed with 
the district court that the record contained sufficient data to support 
the FWS's determination of occupancy in that case, the D.C. Circuit did 
not disagree that the Act allows FWS to make a postlisting 
determination of occupancy if based on adequate data. The FWS 
acknowledges that to make a postlisting determination of occupancy we 
must distinguish between actual changes to species occupancy and 
changes in available information. For succinctness, herein and 
elsewhere we refer to areas as ``occupied'' when we mean ``occupied at 
the time of listing.''
    The second sentence of the proposed definition for ``geographical 
area occupied by the species'' would clarify that the meaning of the 
term ``occupied'' includes areas that are used only periodically or 
temporarily by a listed species during some portion of its life 
history, and is not limited to those areas where the listed species may 
be found more or less continuously. Areas of periodic use may include, 
for example, breeding areas, foraging areas, and migratory corridors. 
The Ninth Circuit recently supported this interpretation by FWS, 
holding that a determination that a species was likely to be 
temporarily present in the areas designated as critical habitat was a 
sufficient basis for determining those areas to be occupied, even if 
the species was not continuously present. Arizona Cattle Growers' 
Assoc. v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (Mexican spotted owl).
    Nonetheless, periodic use of an area does not include use of 
habitat in that area by vagrant individuals of the species who wander 
far from the known range of the species. Occupancy by the listed 
species must be based on evidence of regular periodic use by the listed 
species during some portion of the listed species' life history. 
However, because some species are difficult to survey, or, we may 
otherwise have incomplete survey information, the Services will rely on 
the best available scientific data, which may include indirect or 
circumstantial evidence, to determine occupancy. We further note that 
occupancy does not depend on identifiable presence of adult organisms. 
For example, periodical cicadas occupy their range even though adults 
are only present for 1 month every 13 or 17 years. Similarly, the 
presence (or reasonably inferred presence) of eggs or cysts of fairy 
shrimp or seed banks of plants constitute occupancy even when mature 
individuals are not present.
    We also propose a definition for the term ``physical or biological 
features.'' This phrase is used in the statutory definition of 
``critical habitat'' to assist in identifying the specific areas within 
the entire geographical area occupied by the species that can be 
considered for designation as critical habitat. We propose to define 
``physical or biological features'' as ``the features that support the 
life-history needs of the species, including but not limited to water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.''
    The proposed definition clarifies that physical and biological 
features can be the features that support the occurrence of ephemeral 
or dynamic habitat conditions. For example, a species may require 
early-successional riparian vegetation in the Southwest to breed or 
feed. Such vegetation may exist only 5 to 15 years after a local 
flooding event. The necessary features, then, may include not only the 
suitable vegetation

[[Page 27070]]

itself, but also the flooding events, topography, soil type, and flow 
regime, or a combination of these characteristics and the necessary 
amount of the characteristics that can result in the periodic 
occurrence of the suitable vegetation. Thus, the Services could 
conclude that essential physical or biological features exist in a 
specific area even in the temporary absence of suitable vegetation, and 
could designate such an area as critical habitat if all of the other 
applicable requirements were met and if there were documented 
occurrences of the particular habitat type in the area and a reasonable 
expectation of that habitat occurring again.
    In Cape Hatteras Access Preservation Alliance v. DOI, 344 F. Supp. 
2d 108, 123 n.4 (D.D.C. 2004), the court rejected FWS's designation for 
the piping plover as including lands that did not currently contain the 
features defined by FWS, but noted that it was not addressing ``whether 
dynamic land capable of supporting plover habitat can itself be one of 
the `physical or biological features' essential to conservation.'' The 
new definition for ``physical or biological features'' would clarify 
that features can be dynamic or ephemeral habitat characteristics. 
However, an area within the geographical area occupied by the species, 
with habitat that is not ephemeral by nature but that has been degraded 
in some way, must have one or more of the physical or biological 
features at the time of designation.
    Having proposed to define ``physical or biological features,'' we 
also propose to remove the term ``primary constituent element'' and all 
references to it from the regulations in section 424.12. As with all 
other aspects of these proposed revisions, this will apply only to 
future critical habitat designations and is further explained below in 
the discussion of the proposed changes to section 424.12, where the 
term is currently used.
    We are also proposing to revise the definition of ``special 
management considerations or protection'' which is found in section 
424.02. Here we propose to remove the phrase ``of the environment'' 
from the current regulation. This phrase is not used in this context 
elsewhere in the regulations or the Act and, therefore, may create 
ambiguity. We also propose to insert the words ``essential to'' to 
conform to the language of the Act.
    In determining whether an area has essential features that may 
require special management considerations or protection, the Services 
do not base their decision on whether management is currently in place 
or whether that management is adequate. FWS formerly took the position 
that special management was required only if whatever management was in 
place was inadequate and that additional special management was needed. 
This position was rejected by the court in Center for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003) (Mexican 
spotted owl), the only court to address this issue. The Services agree 
with the conclusion of the court on this point--it is incorrect to read 
the statute as asking whether additional special management may be 
required. The consideration of whether features in an area may require 
special management or protection occurs independent of whether any form 
of management or protection occurs in the area.
    We expect that, in most circumstances, the physical or biological 
features essential to the conservation of endangered species may 
require special management in all areas in which they occur, 
particularly for species that have significant habitat-based threats. 
However, if in some areas the essential features do not require special 
management or protections because there are no applicable threats to 
the features that have to be managed or protected for the conservation 
of the species, then that area does not meet this part (section 
3(5)(A)(i)) of the definition of ``critical habitat.'' Nevertheless, we 
expect such circumstances to be rare.
    Furthermore, it is not necessary that a feature currently require 
special management considerations or protection, only that it may 
require special management to meet the definition of ``critical 
habitat.'' 16 U.S.C. 1532(5)(A)(i) (emphasis added). Two district court 
decisions have emphasized this point. CBD v. Norton (Mexican spotted 
owl); Cape Hatteras Access Preservation Alliance v. DOI, 344 F. Supp. 
2d 108 (D.D.C. 2004) (piping plover). The legislative history supports 
the view that Congress purposely set the standard as ``may require.'' 
Earlier versions of the bills that led to the statutory definition of 
``critical habitat'' used the word ``requires,'' but ``may require'' 
was substituted prior to final passage. In any case, an interpretation 
of a statute should give meaning to each word Congress chose to use, 
and our interpretation gives the word ``may'' meaning.
    Finally, we explain our interpretation of the meaning of the phrase 
``interbreeds when mature,'' which is found in the definition of 
``species.'' The ``interbreeds when mature'' language is ambiguous. 
Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1032 (9th Cir. 
2010). Although we are not proposing to revise the regulations at this 
time, we are using this notice to inform the public of our longstanding 
interpretation of this phrase. We have always understood the phrase 
``interbreeds when mature'' to mean that a distinct population segment 
(DPS) must consist of members of the same species or subspecies in the 
wild that would be biologically capable of interbreeding if given the 
opportunity, but all members need not actually interbreed with each 
other. A DPS is a subset of a species or subspecies, and cannot consist 
of members of different species or subspecies. The ``biological 
species'' concept, which defines species according to a group of 
organisms' actual or potential ability to interbreed, and their 
relative reproductive isolation from other organisms, is one widely 
accepted approach to defining species. We interpret the phrase 
``interbreeds when mature'' to reflect this understanding and signify 
only that a DPS must be composed solely of members of the same species 
or subspecies. As long as this requirement is met, a DPS may include 
multiple groups of vertebrate organisms that do not actually interbreed 
with each other. For example, a DPS may consist of multiple groups of a 
fish species separated into different drainages. While it is possible 
that the members of these groups do not actually interbreed with each 
other, their members are biologically capable of interbreeding.

Section 424.12 Criteria for Designating Critical Habitat

    We propose to revise the first sentence of paragraph (a) to clarify 
that critical habitat shall be proposed and finalized ``to the maximum 
extent prudent and determinable . . . concurrent with issuing proposed 
and final listing rules, respectively.'' The existing language is 
``shall be specified to the maximum extent prudent and determinable at 
the time a species is proposed for listing.'' We propose to add the 
words ``proposed and finalized'' to be consistent with the Act, which 
requires that critical habitat be finalized concurrent with listing. 
The existing language could be interpreted to mean proposing critical 
habitat concurrent with listing was the only requirement. Additionally, 
the existing phrase ``shall be specified'' is vague and not consistent 
with the requirements of the Act, which is to propose and finalize a 
designation of critical habitat. The last two sentences in proposed 
paragraph (a) contain minor language changes to use the active voice.

[[Page 27071]]

    Paragraphs (a)(1) and (a)(1)(i) would not be changed.
    The first sentence of paragraph (a)(1)(ii) would remain the same. 
However, we propose to add a second sentence to paragraph (a)(1)(ii) to 
provide examples of factors that we may consider in determining whether 
a designation would be beneficial to the species. A designation may not 
be beneficial and, therefore, not prudent, under certain circumstances, 
including but not limited to: The present or threatened destruction, 
modification or curtailment of a species' habitat or range is not a 
threat to the species, or no areas meet the definition of ``critical 
habitat.'' For example, this provision may apply to a species that is 
threatened primarily by disease but the habitat that it relies upon 
continues to exist unaltered throughout an appropriate distribution 
that, absent the impact of the disease, would support conservation of 
the species. Another example is a species that occurs in portions of 
the United States and a foreign nation. In the foreign nation, there 
are multiple areas that have the features essential for the 
conservation of the species; however, in the United States there are no 
such areas. Consequently, there are no areas within the United States 
that meet the definition of ``critical habitat'' for the species. 
Therefore, there is no benefit to designation of critical habitat, and 
designation is not prudent.
    While this provision is intended to reduce the burden of regulation 
in rare circumstances in which designation of critical habitat does not 
contribute to the conservation of the species, the Services recognize 
the value of critical habitat as a conservation tool and expect to 
designate it in most cases.
    Section 424.12(a)(2) would remain unchanged from the current 
regulation, and proposed subparagraphs (i) and (ii) contain minor 
language changes to be consistent with the language in the Act.
    The Services propose to completely revise section 424.12(b) of the 
current regulations. For the reason explained below, we also propose to 
remove the terms ``principal biological or physical constituent 
elements'' and ``primary constituent elements'' from this section. 
These concepts would be replaced by the statutory term ``physical or 
biological features,'' which we propose to define as described above.
    The first part of the statutory definition of ``critical habitat'' 
(section 3(5)(A)(i)) contains terms necessary for (1) identifying 
specific areas within the geographical area occupied by the species 
that may be considered for designation as critical habitat and (2) 
describing which features on those areas are important to the species. 
In current section 424.12(b), the Services use the phrase ``primary 
constituent elements'' to focus identification of critical habitat on 
areas that contain these elements. However, the regulations are not 
clear as to how primary constituent elements relate to or are distinct 
from physical or biological features, which is the term used in the 
statute. Adding a term not found in the statute that is at least in 
part redundant with the term ``physical or biological features'' has 
proven confusing. Trying to parse features into elements and give them 
meaning distinct from one another has added an unnecessary layer of 
complication during the designation process.
    The proposed definition of ``physical or biological features,'' 
described above, would encompass similar habitat characteristics as 
currently described in section 424.12(b), such as roost sites, nesting 
grounds, spawning sites, feeding sites, seasonal wetland or dryland, 
water quality or quantity, host species or plant pollinator, geological 
formation, vegetation type, tide, and specific soil types. Our proposal 
is intended to simplify and clarify the process, and to remove 
redundancy, without substantially changing the manner in which critical 
habitat is designated.
    Proposed section 424.12(b) describes the process to be used to 
identify the specific areas to be considered for designation as 
critical habitat, based on the statutory definition of ``critical 
habitat.'' With respect to both parts of the definition, the proposed 
regulations would emphasize that the Secretary would identify areas 
that meet the definition ``at a scale determined by the Secretary to be 
appropriate.'' The purpose of this language is to clarify that the 
Secretary cannot and need not make determinations at an infinitely fine 
scale. Thus, the Secretary need not determine that each square inch, 
yard, acre, or even mile independently meets the definition of 
``critical habitat.'' Nor would the Secretary necessarily consider 
legal property lines in making a scientific judgment about what areas 
meet the definition of ``critical habitat.'' Instead, the Secretary has 
discretion to determine at what scale to do the analysis. In making 
this determination, the Secretary may consider, among other things, the 
life history of the species, the scales at which data are available, 
and biological or geophysical boundaries (such as watersheds).
    Under the first part of the statutory definition, in identifying 
specific areas for consideration, the Secretary must first identify the 
geographical area occupied by the species at the time of listing. 
Within the geographical area occupied by the species, the Secretary 
must identify the specific areas on which are found those physical or 
biological features (1) essential to the conservation of the species, 
and (2) which may require special management considerations or 
protection.
    Under proposed section 424.12(b)(1)(i), the Secretary would 
identify the geographical area occupied by the species using the 
definition of this term as proposed above. Under proposed section 
424.12(b)(1)(ii), the Secretary would then identify those physical and 
biological features essential for the conservation of the species. 
These physical or biological features are to be described at an 
appropriate level of specificity, based on the best scientific data 
available at the time of designation. For example, physical features 
might include gravel of a particular size required for spawning, alkali 
soil for germination, protective cover for migration, or susceptibility 
to flooding that maintains early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or a maximum level of nonnative species consistent with 
conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic needed to support the life history of the species. For 
example, a feature may be a specific type of forage grass that is in 
close proximity to a certain type of shrub for cover. Because the 
species would not consume the grass if there were not the nearby shrubs 
in which to hide from predators, one of these characteristics in 
isolation would not be an essential feature; the feature that supports 
the life-history needs of the species would consist of the combination 
of these two characteristics in close proximity to each other.
    In considering whether features are essential to the conservation 
of the species, the Services may consider an appropriate quality, 
quantity, and spatial and temporal arrangement of habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species. For example, a small patch of meadow may 
have the native flowers, full sun, and a biologically insignificant 
level of invasive ants that have been determined to be important 
habitat characteristics that support the life-history needs of an 
endangered butterfly. However, that small patch may be too far away 
from other patches to allow for mixing of the

[[Page 27072]]

populations, or the meadow may be too small for the population to 
persist over time. So the area could have important characteristics, 
but those characteristics may not contribute to the conservation of the 
species because they lack the appropriate size and proximity to other 
meadows with similar characteristics. Conversely, the exact same 
characteristics (native flowers, full sun, and a biologically 
insignificant level of invasive ants), when combined with the 
additional characteristics of larger size and short dispersal distance 
to other meadows, may in total constitute a physical or biological 
feature essential to the conservation of the species.
    Under proposed section 424.12(b)(1)(iii), the Secretary would then 
determine the specific areas within the geographical area occupied by 
the species on which are found those physical or biological features 
essential to the conservation of the species.
    Proposed section 424.12(b)(1)(iv) provides for the consideration of 
whether those physical or biological features may require special 
management considerations or protection. In this portion of the 
analysis, the Secretary must determine whether there are any ``methods 
or procedures useful in protecting physical and biological features for 
the conservation of listed species.'' Only those physical or biological 
features that may be in need of special management considerations or 
protection are considered further. The Services may conduct this 
analysis for the need of special management considerations or 
protection at the scale of all specific areas, but they may also do so 
within each specific area.
    The ``steps'' outlined in subparagraphs (i) through (iv) above are 
not necessarily intended to be applied strictly in a stepwise fashion. 
The instructions in each subparagraph must be considered, as each 
relates to the statutory definition of ``critical habitat.'' However, 
there may be multiple pathways in the consideration of the elements of 
the first part of the definition of ``critical habitat.'' For instance, 
one may first identify specific areas occupied by the species, then 
identify all features needed by a species to carry out life-history 
functions in those areas through consideration of the conservation 
needs of the species, then determine which of those specific areas 
contain the features essential to the conservation of the species. The 
determination of which features are essential to the conservation of 
the species may consider the spatial arrangement and quantity of such 
features in the context of the life history, status, and conservation 
needs of the species. In some circumstances, not every location that 
contains one or more of the habitat characteristics that a species 
needs would be designated as critical habitat. Some locations may have 
important habitat characteristics, but are too small to support a 
population of the species, or are located too far away from other 
locations to allow for genetic exchange. Considered in context of the 
conservation needs of the species, the proposed section 424.12(b)(1)(i) 
through (iv) would allow for sufficient flexibility to determine what 
areas within the geographical area occupied by the species are needed 
to provide for the conservation of the species.
    Occasionally, new taxonomic information may result in a 
determination that a previously listed species or subspecies is 
actually two or more separate entities. In such an instance, the 
Services must have flexibility, when warranted, to continue to apply 
the protections of the Act to preserve the conservation value of 
critical habitat that has been designated for a species listed as one 
listable entity (i.e., species, subspecies, or distinct population 
segment (DPS)), and which is being reproposed for listing as one or 
more different listable entities (e.g., when the Services propose to 
list two or more species, subspecies, or DPSs that had previously been 
listed as a single entity). Where appropriate (such as where the range 
of an entity proposed for listing and a previously designated area of 
critical habitat align), the Services have the option to find, 
simultaneously with the proposed listing of the proposed entity or 
entities, that the relevant geographic area(s) of the existing 
designation continues to apply as critical habitat for the new entity 
or entities. Such a finding essentially carries forward the existing 
critical habitat (in whole or in part). Alternatively, the Services 
have the option to pursue a succinct and streamlined notice of proposed 
rulemaking to carry forward the existing critical habitat (in whole or 
in part), that draws, as appropriate, from the existing designation.
    More broadly, when applying the proposed 424.12(b)(1) to the facts 
relating to a particular species, the Services will usually have more 
than one option available for determining what specific areas 
constitute the critical habitat for that species. In keeping with the 
conservation-based purpose of critical habitat, the relevant Service 
may find it best to first consider broadly what it knows about the 
biology and life history of the species, the threats it faces, the 
species' status and condition, and therefore the likely conservation 
needs of the species with respect to habitat. If there already is a 
recovery plan for that species (which is not always the case and not a 
prerequisite for designating critical habitat), then that plan would be 
useful for this analysis.
    Using principles of conservation biology such as the need for 
appropriate patch size, connectivity of habitat, dispersal ability of 
the species, or representation of populations across the range of the 
species, the Service may evaluate areas needed for the conservation of 
the species. The Service must identify the physical and biological 
features essential to the conservation of the species and unoccupied 
areas that are essential for the conservation of the species. When 
using this methodology to identify areas within the geographical area 
occupied by the species at the time of listing, the Service will 
expressly translate the application of the relevant principles of 
conservation biology into the articulation of the features. Aligning 
the physical and biological features identified as essential with the 
conservation needs of the species will maximize the effectiveness of 
the designation in promoting recovery of the species.
    We note that designation of critical habitat relies on the best 
available scientific data at the time of designation. The Services may 
not know of, or be able to identify, all of the areas on which are 
found the features essential to the conservation of a species. After 
designation of final critical habitat for a particular species, the 
Services may become aware of or identify other features or areas 
essential to the conservation of the species, such as through 5-year 
reviews and recovery planning. Newly identified features that are 
useful for characterizing the conservation value of designated critical 
habitat can be considered in consultations conducted under section 
7(a)(2) of the Act as part of the best available scientific and 
commercial data. We also note that if there is uncertainty as to 
whether an area was ``within the geographical area occupied by the 
species, at the time it is listed,'' the Services may in the 
alternative designate the area under the second part of the definition 
if the relevant Service determines that the area is essential for the 
conservation of the species.
    The second part of the statutory definition of ``critical habitat'' 
(section 3(5)(A)(ii)) provides that areas outside the geographical area 
occupied by the species at the time of listing should be

[[Page 27073]]

designated as critical habitat if they are determined to be ``essential 
for the conservation of the species.'' Proposed section 424.12(b)(2) 
further describes the factors the Services would consider in 
identifying any areas outside the geographical area occupied by the 
species at the time of listing that may meet this aspect of the 
definition of ``critical habitat.'' Under proposed section 
424.12(b)(2), the Services will determine whether unoccupied areas are 
essential for the conservation of the species by considering ``the 
life-history, status, and conservation needs of the species.''
    Proposed section 424.12(b)(2) would subsume and supersede section 
424.12(e) of the existing regulations. Section 424.12(e) currently 
provides that the Secretary shall designate areas outside the 
``geographical area presently occupied by a species'' only when ``a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' Although the current provision 
represents one reasonable approach to giving meaning to the term 
``essential'' as it relates to unoccupied areas, the Services believe 
this provision is both unnecessary and unintentionally limiting. While 
Congress supplied two different standards to govern the Secretary's 
designation of these two types of habitat, there is no suggestion in 
the legislative history that the Services were expected to exhaust 
occupied habitat before considering whether any unoccupied area may be 
essential. In addition, although section 3(5)(C) of the Act reflects 
Congressional intent that a designation generally should not include 
every area that the species can occupy, this does not necessarily 
translate into a mandate to avoid designation of any unoccupied areas 
unless relying on occupied areas alone would be insufficient. 
Therefore, we conclude that deleting this provision would restore the 
two parts of the statutory definition (for occupied and unoccupied 
areas) to the appropriate relative statuses envisioned by Congress.
    However, even if we were to conclude that Congress intended the 
Services to rely primarily on occupied areas, we think the existing 
regulatory provision is unnecessary because the Secretary in any case 
must find that the unoccupied area is ``essential.'' In many cases the 
Secretary may conclude that an integral part of analyzing whether 
unoccupied areas are essential is to begin with the occupied areas, but 
the Act does not require the Services to first prove that the occupied 
areas are insufficient before considering unoccupied areas.
    As it is currently written, the provision in section 424.12(e) also 
confusingly references present range, while the two parts of the 
statutory definition refer to the area occupied at the time of listing. 
In practice, these concepts may be largely the same, given that 
critical habitat ideally should be designated at or near the time of 
listing. Nevertheless, the Services believe it will reduce confusion to 
change the regulations to track the statutory distinction. In addition, 
because critical habitat may be revised at any time, the statutory 
distinction may be important during a revision, which could occur 
several years after the listing of the species.
    However, we note that unoccupied areas must be essential for the 
conservation of the species, but need not have the features essential 
to the conservation of the species: This follows directly from the 
inclusion of the ``features essential'' language in section 3(5)(A)(i) 
but not in section 3(5)(A)(ii). In other words, the Services may 
identify areas that do not yet have the features, or degraded or 
successional areas that once had the features, or areas that contain 
sources of or provide the processes that maintain the features as areas 
essential to the conservation of the species. Areas may develop 
features over time, or, with special management, features may be 
restored to an area. Under proposed section 424.12(b)(2), the Services 
would identify unoccupied areas, either with the features or not, that 
are essential for the conservation of a species. This proposed section 
is intended to be a flexible, rather than prescriptive, standard to 
allow the Services to tailor the inquiry about what is essential to the 
specific characteristics and circumstances of the particular species.
    The Services anticipate that critical habitat designations in the 
future will likely increasingly use the authority to designate specific 
areas outside the geographical area occupied by the species at the time 
of listing. As the effects of global climate change continue to 
influence distribution and migration patterns of species, the ability 
to designate areas that a species has not historically occupied is 
expected to become increasingly important. For example, such areas may 
provide important connectivity between habitats, serve as movement 
corridors, or constitute emerging habitat for a species experiencing 
range shifts in latitude or altitude (such as to follow available prey 
or host plants). Where the best available scientific data suggest that 
specific unoccupied areas are, or it is reasonable to infer from the 
record that they will eventually become, necessary to support the 
species' recovery, it may be appropriate to find that such areas are 
essential for the conservation of the species and thus meet the 
definition of ``critical habitat.''
    An example may clarify this situation: A butterfly depends on a 
particular host plant. The host plant is currently found in a 
particular area. The data show the host plant's range has been moving 
up slope in response to warming temperatures (following the cooler 
temperatures) resulting from climate change. Other butterfly species 
have been documented to have shifted from their historical ranges in 
response to changes in the range of host plants. Therefore, we 
rationally conclude that the butterfly's range will likely move up 
slope, and we would designate specific areas outside the geographical 
area occupied by the butterfly at the time it was listed if we 
concluded this area was essential based on this information.
    Adherence to the process described above will ensure compliance 
with the requirement in section 3(5)(C) of the Act, which states that, 
except in those circumstances determined by the Secretary, critical 
habitat shall not include the entire geographical area which can be 
occupied by the threatened or endangered species.
    Existing section 424.12(c) has been revised in a separate 
rulemaking (77 FR 25611).
    The proposed section 424.12(d) would include minor language changes 
and would remove the example as it is not necessary for the text of the 
regulation.
    We propose to remove current section 424.12(e), as this concept--
designating specific areas outside the geographical 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--would be captured in proposed section 424.12(b)(2).
    We propose to redesignate the current section 424.12(f) as section 
424.12(e) and to add a second sentence to emphasize that designation of 
critical habitat for species that were listed prior to 1978 is at the 
discretion of the Secretaries. The first sentence of proposed section 
424.12(e) would provide that the Secretary ``may designate critical 
habitat for those species listed as threatened or endangered species 
but for which no critical habitat has been previously designated.'' 
This is substantially the same as current paragraph section 424.12(f) 
in the existing regulations, although the Services have changed the 
passive voice to the active voice.

[[Page 27074]]

    The new second sentence would codify in the regulations the 
principle that the decision whether to designate critical habitat for 
species listed prior to the effective date of the 1978 Amendments to 
the Act (November 10, 1978) is at the discretion of the Secretary. This 
principle is clearly reflected in the text of the statute and firmly 
grounded in the legislative history. The definition of ``critical 
habitat'' added to the Act in 1978 provided that the Secretary ``may,'' 
but was not required to, establish critical habitat for species already 
listed by the effective date of the 1978 amendments. See Public Law 95-
632, 92 Stat. 3751 (Nov. 10, 1978) (codified at 16 U.S.C. 1532(5)(B)); 
see also Conservancy of Southwest Florida v. United States Fish & 
Wildlife Service, No. 2:10-cv-106-FtM-SPC, 2011 WL 1326805, *9 (M.D. 
Fla. April 6, 2011) (Florida panther) (plain language of statute 
renders designation of habitat for species listed prior to the 1978 
Amendments discretionary), aff'd, 677 F.3d 1073 (11th Cir. 2012); Fund 
for Animals v. Babbitt, 903 F. Supp. 96, 115 n.8 (D.D.C. 1995) (grizzly 
bear) (same). Similarly, the 1982 amendments expressly exempted species 
listed prior to the 1978 amendments from the requirement that critical 
habitat must be designated concurrently with listing. See Public Law 
97-304, 96 Stat. 1411, Sec.  2(b)(4) (Oct. 13, 1982). To reduce 
potential confusion, it will be useful for the regulations to reflect 
the discretionary nature of designations for such species.
    As recent litigation has highlighted, the statutory history 
regarding the procedures for undertaking proposals to designate 
critical habitat for certain species is nuanced and has proven 
confusing in other respects as well. For species listed before passage 
of the 1982 amendments to the Act (October 13, 1982), any proposed 
regulations issued by the Secretary to designate critical habitat are 
governed by the provisions in section 4 of the Act applicable to 
proposals to revise critical habitat designations. This is specified in 
an uncodified provision of the 1982 amendments. See Public Law 97-304, 
96 Stat. 1411, 1416, 2(b)(2), 16 U.S.C. 1533 (note) (``Any regulation 
proposed after, or pending on, the date of the enactment of this Act to 
designate critical habitat for a species that was determined before 
such date of enactment to be endangered or threatened shall be subject 
to the procedures set forth in section 4 of such Act of 1973 . . . for 
regulations proposing revisions to critical habitat instead of those 
for regulations proposing the designation of critical habitat.''); see 
also Center for Biological Diversity v. FWS, 450 F.3d 930, 934-35 (9th 
Cir. 2006) (unarmored three-spine stickleback). While the Services do 
not propose to add regulatory text to address this narrow issue, we 
explain below how these provisions must be understood within the 
general scheme for designating critical habitat.
    As a result of the above-referenced provision of the 1982 
amendments, final regulations to designate critical habitat for species 
that were listed prior to October 13, 1982, are governed by section 
4(b)(6)(A)(i) of the Act. By contrast, for species listed after October 
13, 1982, final regulations are governed by section 4(b)(6)(A)(ii). 
Proposed rules for species listed both pre- and post-1982 are governed 
by section 4(b)(5). Thus, the Services have additional options at the 
final rule stage with regard to a proposal to designate critical 
habitat for those species listed prior to 1982 that they do not have 
when proposing to designate habitat for other species. These include an 
option to make a finding that the revision ``should not be made'' and 
to extend the 12-month deadline by an additional period of up to 6 
months if there is substantial disagreement regarding the sufficiency 
or accuracy of available data. See 16 U.S.C. 1533(b)(6)(B)(i); see also 
Center for Biological Diversity, 450 F.3d at 936-37.
    These provisions, however, do not affect the handling or 
consideration of petitions seeking designation of critical habitat for 
species listed prior to1982. The term ``petition'' is not used in 
section 2(b)(2) of the 1982 amendments to the Act (compare to section 
2(b)(1) of the same amendments, which mentions ``[a]ny petition'' and 
``any regulation''). Thus, the special rules for finalizing proposals 
to designate critical habitat for species listed prior to1982 come into 
play only upon a decision by the Secretary to actually propose to 
designate critical habitat for such species. Petitions seeking such 
designations are governed just like any other petition seeking 
designation, which are governed by the provisions of the Administrative 
Procedure Act rather than section 4 of the Endangered Species Act. See 
50 CFR 424.14(d); Conservancy of Southwest Florida, 2011 WL 1326805, at 
*9 (``It is the Secretary's proposal to designate critical habitat that 
triggers the statutory and regulatory obligations, not plaintiffs' 
requests that the Secretary do so.''); Fund for Animals v. Babbitt, 903 
F. Supp. at 115 (petitions to designate critical habitat are governed 
by the APA, not the ESA).
    We propose to redesignate current section 424.12(g) as section 
424.12(f) with minor language changes.
    We propose to redesignate current section 424.12(h) as section 
424.12(g) with minor language changes.
    We propose to add a new section 424.12(h). Proposed section 
424.12(h) would reflect the amendment to section 4(a)(3)(B)(i) of the 
Act in the National Defense Authorization Act for Fiscal Year 2004 
(Pub. L. 108-136). This proposed paragraph would codify the amendments 
to the Act that prohibit the Services from designating as critical 
habitat lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, if those lands are 
subject to an integrated natural resources management plan (INRMP) 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), and if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is being designated. In other 
words, if the Services conclude that an INRMP ``benefits'' the species, 
the area covered is ineligible for designation. Unlike the Secretary's 
decision on exclusions under section 4(b)(2) of the Act, this result is 
not subject to the discretion of the Secretary (once a benefit has been 
found).
    Neither the Act nor the National Defense Authorization Act for 
Fiscal Year 2004 defines the term ``benefit.'' However, the conference 
report on the 2004 National Defense Authorization Act (Report 108-354) 
instructed the Secretary to ``assess an INRMP's potential contribution 
to species conservation, giving due regard to those habitat protection, 
maintenance, and improvement projects . . . that address the particular 
conservation and protection needs of the species for which critical 
habitat would otherwise be proposed.'' We therefore conclude that 
Congress intended ``benefit'' to mean ``conservation benefit.'' In 
addition, because a finding of benefit would result in an exemption 
from critical habitat designation, and given the specific mention of 
``habitat protection, maintenance, and improvement'' in the conference 
report, we infer that Congress intended that an INRMP provide a 
conservation benefit to the habitat (e.g., essential features) of the 
species, in addition to the species. Examples of actions that would 
provide habitat-based conservation benefit to the species include: 
Reducing fragmentation of habitat; maintaining or increasing 
populations in the wild; planning for catastrophic events; protecting, 
enhancing, or restoring habitats; buffering protected areas; and 
testing

[[Page 27075]]

and implementing new habitat-based conservation strategies.
    In the conference report, Congress further instructed the Secretary 
to ``establish criteria that would be used to determine if an INRMP 
benefits the listed species.'' The Services, therefore, also propose in 
section 424.12(h) to describe some factors that would help us determine 
whether an INRMP provides a conservation benefit: (1) The extent of 
area and features present; (2) the type and frequency of use of the 
area by the species ; (3) the relevant elements of the INRMP in terms 
of management objectives, activities covered, and best management 
practices, and the certainty that the relevant elements will be 
implemented; and (4) the degree to which the relevant elements of the 
INRMP will protect the habitat from the types of effects that would be 
addressed through a destruction-or-adverse-modification analysis.
    Under the Sikes Act, the Department of Defense is also instructed 
to prepare INRMPs in cooperation with FWS and each appropriate State 
fish and wildlife agency. The approved INRMP shall reflect the mutual 
agreement of the involved agencies on the conservation, protection, and 
management of fish and wildlife resources. In other words, FWS must 
approve an INRMP (reflected by signature of the plan or letter of 
concurrence pursuant to the Sikes Act (not to be confused with a letter 
of concurrence issued in relation to consultation under section 7(a)(2) 
of the Act)) before an INRMP can be relied upon for making an area 
ineligible for designation under section 4(a)(3)(B)(i). As part of this 
approval process, FWS will also conduct consultation under section 
7(a)(2) of the Act, if listed species or designated critical habitat 
may be affected by the actions included in the INRMP. Section 7(a)(2) 
of the Act will continue to apply to any federal actions affecting the 
species once an INRMP is approved. However, if the area is ineligible 
for critical habitat designation under section 4(a)(3)(B)(i), then 
those consultations would address only effects to the species and the 
likelihood of the federal action to jeopardize the continued existence 
of the species.
    Proposed new section 424.12(h) would specify that an INRMP must be 
approved to make an area ineligible for designation under section 
4(a)(3)(B)(i). When the Department of Defense provides a draft INRMP 
for the Services' consideration during development of a critical 
habitat designation, the Services will evaluate it.
    Existing section 424.19 has been finalized in a separate rulemaking 
(78 FR 53058).

Request for Information

    We intend that a final regulation will consider information and 
recommendations from all interested parties. We, therefore, solicit 
comments, information, and recommendations from governmental agencies, 
Native American tribes, the scientific community, industry groups, 
environmental interest groups, and any other interested parties. All 
comments and materials received by the date listed in DATES above will 
be considered prior to the approval of a final document.
    You may submit your information concerning this proposed rule by 
one of the methods listed in ADDRESSES. If you submit information via 
http://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the Web site. If 
your submission is made via a hardcopy that includes personal 
identifying information, you may request at the top of your document 
that we withhold this personal identifying information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we receive in 
response to this proposed rule will be available for you to review at 
http://www.regulations.gov, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Division of Conservation 
and Classification (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is significant.
    Executive Order 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. 
The executive order 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 rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his designee, certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We are certifying that these 
proposed regulations would not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    This rulemaking revises and clarifies requirements for NMFS and FWS 
in designating critical habitat under the Endangered Species Act to 
reflect recent amendments to the Act and agency experience. This 
proposed rule, if made final, would revise the Services' regulations to 
be consistent with recent statutory amendments that make certain lands 
managed by the Department of Defense ineligible for designation of 
critical habitat; be consistent with Congressional intent; be 
consistent with recent case law; and would clarify our process for 
designating critical habitat. The other changes included in these 
proposed regulations serve to clarify, and do not expand the reach of 
potential designations of critical habitat.
    NMFS and FWS are the only entities that are directly affected by 
this rule because we are the only entities that designate critical 
habitat. No external entities, including any small businesses, small 
organizations, or small governments, will experience any economic 
impacts from this rule.

[[Page 27076]]

Therefore, the only effect to any external entities large or small 
would likely be positive, that is, gaining a greater understanding of 
the process we use for designating critical habitat.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the ``Regulatory 
Flexibility Act'' section above, these proposed regulations would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that these regulations 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 regulations would not place additional requirements on any 
city, county, or other local municipalities.
    (b) These proposed regulations 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, it is not a ``significant 
regulatory action''' under the Unfunded Mandates Reform Act. These 
proposed regulations would impose no obligations on State, local, or 
tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, these proposed 
regulations would not have significant takings implications. These 
proposed regulations would not pertain to ``taking'' of private 
property interests, nor would they directly affect private property. A 
takings implication assessment is not required because these proposed 
regulations (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. These 
proposed regulations would substantially advance a legitimate 
government interest (conservation and recovery of endangered and 
threatened species) and would not present a barrier to all reasonable 
and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether these proposed regulations would have significant Federalism 
effects and have determined that a Federalism assessment is not 
required. These proposed regulations pertain only to determinations to 
designate critical habitat under section 4 of the Act, and would not 
have substantial direct effects on the States, on the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government.

Civil Justice Reform (E.O. 12988)

    These proposed regulations do not unduly burden the judicial system 
and meet the applicable standards provided in sections 3(a) and 3(b)(2) 
of Executive Order 12988. These proposed regulations would clarify how 
the Services will make designations of critical habitat under section 4 
of the Act.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In our proposed 
regulations, we explain that the Secretaries have discretion to exclude 
any particular area from the critical habitat upon a determination that 
the benefits of exclusion outweigh the benefits of specifying the 
particular area as part of the critical habitat. In identifying those 
benefits, the Secretaries may consider effects on tribal sovereignty.

Paperwork Reduction Act

    This proposed rule does not contain any new collections of 
information that require approval by the OMB under the Paperwork 
Reduction Act. This proposed rule would not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We are analyzing these proposed regulations in accordance with the 
criteria of the National Environmental Policy Act (NEPA), the 
Department of the Interior regulations on Implementation of the 
National Environmental Policy Act (43 CFR 46.10-46.450), the Department 
of the Interior Manual (516 DM 1-6 and 8)), and National Oceanic and 
Atmospheric Administration (NOAA) Administrative Order 216-6. Our 
analysis includes evaluating whether this action is procedural, 
administrative or legal in nature, and therefore a categorical 
exclusion applies. We invite the public to comment on whether, and if 
so, how this proposed regulation may have a significant effect upon the 
human environment, including any effects identified as extraordinary 
circumstances at 43 CFR 46.215. We will complete our analysis, in 
compliance with NEPA, before finalizing these proposed regulations.

Energy Supply, Distribution or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. These proposed 
regulations, if made final, are not expected to affect energy supplies, 
distribution, and use. Therefore, this action is a not a significant 
energy action, and no Statement of Energy Effects is required.

Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule or policy we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the proposed rule, your comments should be as specific as 
possible. For example, you should tell us 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.

References Cited

    A complete list of all references cited in this document is 
available on the Internet at http://www.regulations.gov or upon request 
from the U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION 
CONTACT).

[[Page 27077]]

Authority

    We are taking this action under the authority of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 424

    Administrative practice and procedure, Endangered and threatened 
species.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 424, subchapter A of 
chapter IV, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 77 FR 51503, August 24, 2012, as set forth below:

PART 424--[AMENDED]

0
1. The authority citation for part 424 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq.

0
2. Revise Sec.  424.01 to read as follows:


Sec.  424.01  Scope and purpose.

    (a) Part 424 provides regulations for revising the Lists of 
Endangered and Threatened Wildlife and Plants and designating or 
revising the critical habitats of listed species. Part 424 provides 
criteria for determining whether species are endangered or threatened 
and for designating critical habitats. Part 424 also establishes 
procedures for receiving and considering petitions to revise the lists 
and for conducting periodic reviews of listed species.
    (b) The purpose of the regulations in part 424 is to interpret and 
implement those portions of the Act that pertain to the listing of 
species as threatened or endangered and the designation of critical 
habitat.
0
3. Revise Sec.  424.02 to read as follows:


Sec.  424.02  Definitions.

    The definitions contained in the Act and parts 17, 222, and 402 of 
this title apply to this part, unless specifically modified by one of 
the following definitions. Definitions contained in part 17 of this 
title apply only to species under the jurisdiction of the U.S. Fish and 
Wildlife Service. Definitions contained in part 222 of this title apply 
only to species under the jurisdiction of the National Marine Fisheries 
Service.
    Candidate. Any species being considered by the Secretary for 
listing as an endangered or threatened species, but not yet the subject 
of a proposed rule.
    Conserve, conserving, and conservation. To use and the use of all 
methods and procedures that are necessary to bring any endangered or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary, i.e., the species is recovered in 
accordance with section 402.02. Such methods and procedures include, 
but are not limited to, all activities associated with scientific 
resources management such as research, census, law enforcement, habitat 
acquisition and maintenance, propagation, live trapping, and 
transplantation, and, in the extraordinary case where population 
pressures within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
    Geographical area occupied by the species. An area which may 
generally be delineated around species' occurrences, as determined by 
the Secretary (i.e., range). Such areas may include those areas used 
throughout all or part of the species' life cycle, even if not used on 
a regular basis (e.g., migratory corridors, seasonal habitats, and 
habitats used periodically, but not solely by vagrant individuals).
    List or lists. The Lists of Endangered and Threatened Wildlife and 
Plants found at 50 CFR 17.11(h) or 17.12(h).
    Physical or biological features. The features that support the 
life-history needs of the species, including but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Public hearing. An informal hearing to provide the public with the 
opportunity to give comments and to permit an exchange of information 
and opinion on a proposed rule.
    Special management considerations or protection. Methods or 
procedures useful in protecting the physical or biological features 
essential to the conservation of listed species.
    Species. Any species or subspecies of fish, wildlife, or plant, and 
any distinct population segment of any vertebrate species that 
interbreeds when mature. A distinct population segment ``interbreeds 
when mature'' when it consists of members of the same species or 
subspecies in the wild that are capable of interbreeding when mature. 
Excluded is any species of the Class Insecta determined by the 
Secretary to constitute a pest whose protection under the provisions of 
the Act would present an overwhelming and overriding risk to man.
    Wildlife or fish and wildlife. Any member of the animal kingdom, 
including without limitation, any vertebrate, mollusk, crustacean, 
arthropod, or other invertebrate, and includes any part, product, egg, 
or offspring thereof, or the dead body or parts thereof.
0
4. In Sec.  424.12, revise paragraphs (a), (b), and (d) through (h) to 
read as follows:


Sec.  424.12  Criteria for designating critical habitat.

    (a) To the maximum extent prudent and determinable, we will propose 
and finalize critical habitat designations concurrent with issuing 
proposed and final listing rules, respectively. If designation of 
critical habitat is not prudent or if critical habitat is not 
determinable, the Secretary will state the reasons for not designating 
critical habitat in the publication of proposed and final rules listing 
a species. The Secretary will make a final designation of critical 
habitat on the basis of the best scientific data available, after 
taking into consideration the economic impact, the impact on national 
security, and other relevant impacts of making such a designation in 
accordance with section 424.19.
    (1) A designation of critical habitat is not prudent when any of 
the following situations exist:
    (i) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of such threat to the species; or
    (ii) Such designation of critical habitat would not be beneficial 
to the species. In determining whether a designation would be 
beneficial, the factors the Services may consider include, but are not 
limited to: The present or threatened destruction, modification or 
curtailment of a species habitat or range is not a threat to the 
species, or no areas meet the definition of critical habitat.
    (2) Designation of critical habitat is not determinable when one or 
both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking; or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of critical 
habitat.
    (b) Where designation of critical habitat is prudent and 
determinable, the Secretary will identify specific areas within the 
geographical area occupied by the species at the time of listing and 
any specific areas outside the

[[Page 27078]]

geographical area occupied by the species to be considered for 
designation as critical habitat.
    (1) The Secretary will identify, at a scale determined by the 
Secretary to be appropriate, specific areas within the geographical 
area occupied by the species for consideration as critical habitat. The 
Secretary will:
    (i) Identify the geographical area occupied by the species at the 
time of listing.
    (ii) Identify physical and biological features essential to the 
conservation of the species at an appropriate level of specificity 
using the best available scientific data. This analysis will vary 
between species and may include consideration of the appropriate 
quality, quantity, and spatial and temporal arrangements of such 
features in the context of the life history, status, and conservation 
needs of the species.
    (iii) Determine the specific areas within the geographical area 
occupied by the species that contain the physical or biological 
features essential to the conservation of the species.
    (iv) Determine which of these features may require special 
management considerations or protection.
    (2) The Secretary will identify, at a scale determined by the 
Secretary to be appropriate, specific areas outside the geographical 
area occupied by the species that are essential for its conservation, 
considering the life history, status, and conservation needs of the 
species.
* * * * *
    (d) When several habitats, each satisfying the requirements for 
designation as critical habitat, are located in proximity to one 
another, the Secretary may designate an inclusive area as critical 
habitat.
    (e) The Secretary may designate critical habitat for those species 
listed as threatened or endangered but for which no critical habitat 
has been previously designated. For species listed prior to November 
10, 1978, the designation of critical habitat is at the discretion of 
the Secretary.
    (f) The Secretary may revise existing designations of critical 
habitat according to procedures in this section as new data become 
available.
    (g) The Secretary will not designate critical habitat within 
foreign countries or in other areas outside of the jurisdiction of the 
United States.
    (h) The Secretary will not designate as critical habitat land or 
other geographic areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an approved 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a) if the Secretary 
determines in writing that such plan provides a conservation benefit to 
the species for which critical habitat is being designated. In 
determining whether such a benefit is provided, the Secretary will 
consider:
    (1) The extent of the area and features present;
    (2) The type and frequency of use of the area by the species;
    (3) The relevant elements of the INRMP in terms of management 
objectives, activities covered, and best management practices, and the 
certainty that the relevant elements will be implemented; and
    (4) The degree to which the relevant elements of the INRMP will 
protect the habitat from the types of effects that would be addressed 
through a destruction-or-adverse-modification analysis.

    Dated: April 3, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

    Dated: April 4, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-10504 Filed 5-9-14; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P