[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Proposed Rules]
[Pages 35193-35201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15810]
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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-2018-0006; Docket No. 180202112-8112-01;
4500030113]
RIN 1018-BC88; 0648-BH42
Endangered and Threatened Wildlife and Plants; Revision of the
Regulations for Listing Species and Designating Critical Habitat
AGENCIES: 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 revise portions of our regulations
that implement section 4 of the Endangered Species Act of 1973, as
amended (Act). The proposed revisions to the regulations clarify,
interpret, and implement portions of the Act concerning the procedures
and criteria used for listing or removing species from the Lists of
Endangered and Threatened Wildlife and Plants and designating critical
habitat. We also propose to make multiple technical revisions to update
existing sections or to refer appropriately to other sections.
DATES: We will accept comments from all interested parties until
September 24, 2018. 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:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2018-0006,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-HQ-ES-2018-0006; U.S. Fish & Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 or
National Marine Fisheries Service, Office of Protected Resources, 1315
East-West Highway, Silver Spring, MD 20910.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments below for more information).
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171; or Samuel D.
Rauch, III, National Marine Fisheries Service, Office of Protected
Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone
301/427-8403. If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800/877-
8339.
SUPPLEMENTARY INFORMATION:
[[Page 35194]]
Background
The Endangered Species Act of 1973, as amended (``Act''; 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. 16 U.S.C.
1531(b). 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 to further the purposes of
the Act. 16 U.S.C. 1531(c)(1).
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' 16 U.S.C. 1532(6); (20).
The Act requires the Services to determine whether species meet either
of these definitions. 16 U.S.C. 1533(a); 1532(15). Section 4 of the Act
and its implementing regulations in Title 50 of the Code of Federal
Regulations at 50 CFR part 424 set forth the procedures for adding,
removing, or reclassifying species to the Federal Lists of Endangered
and Threatened Wildlife and Plants (lists). The lists are in 50 CFR
17.11(h) (wildlife) and 17.12(h) (plants). Section 4(a)(1) of the Act
sets forth the factors that we evaluate when we issue rules for species
to list (adding a species to one of the lists), delist (removing a
species from one of the lists), and reclassify (changing a species'
classification or its status).
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 essential to the conservation of the
species. The Act generally requires that the Services, to the maximum
extent prudent and determinable, designate critical habitat when
determining that a species is either an endangered species or a
threatened species. 16 U.S.C. 1533(a)(3)(A).
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.
Proposed Regulatory Revisions
In carrying out Executive Order 13777, ``Enforcing the Regulatory
Reform Agenda,'' the Department of the Interior (DOI) published a
document with the title ``Regulatory Reform'' in the Federal Register
of June 22, 2017 (82 FR 28429). The document requested public comment
on how DOI can improve implementation of regulatory reform initiatives
and policies and identify regulations for repeal, replacement, or
modification. This proposed rule addresses comments that DOI has
received in response to the regulatory reform docket.
As part of implementing E.O. 13777, the National Oceanic and
Atmospheric Administration (NOAA) published a notice entitled,
``Streamlining Regulatory Processes and Reducing Regulatory Burden''
(82 FR 31576, July 7, 2017). The notice requested public comments on
how NOAA could continue to improve the efficiency and effectiveness of
current regulations and regulatory processes. This proposed rule
addresses comments NOAA received from the public.
This proposed rule is one of three related proposed rules, two of
which are joint between the Services, that are publishing in today's
Federal Register. All of these documents propose revisions to various
regulations that implement the ESA.
Beyond the specific revisions to the regulations highlighted in
this proposed rule, the Services are comprehensively reconsidering the
processes and interpretations of statutory language set out in part
424. Thus, this rulemaking should be considered as applying to all of
part 424, and as part of the rulemaking initiated today, the Services
will consider whether additional modifications to the regulations
setting out procedures and criteria for listing or delisting species
and designating critical habitat would improve, clarify, or streamline
the administration of the Act. We seek public comments recommending,
opposing, or providing feedback on specific changes to any provisions
in part 424 of the regulations, including but not limited to revising
or adopting as regulations existing practices or policies, or
interpreting terms or phrases from the Act. In particular, we seek
public comment on whether we should consider modifying the definitions
of ``geographical area occupied by the species'' or ``physical or
biological features'' in section 424.02. Based on comments received and
on our experience in administering the Act, the final rule may include
revisions to any provisions in part 424 that are a logical outgrowth of
this proposed rule, consistent with the Administrative Procedure Act.
In proposing the specific changes to the regulations in this rule
and setting out the accompanying clarifying discussion in this
preamble, the Services are proposing prospective standards only.
Nothing in these proposed revisions to the regulations is intended to
require (at such time as this rule becomes final) that any prior final
listing, delisting, or reclassification determinations or previously
completed critical habitat designations be reevaluated on the basis of
any final regulations.
Section 424.11--Factors for Listing, Delisting, or Reclassifying
Species
Economic Impacts
We propose to remove the phrase, ``without reference to possible
economic or other impacts of such determination'', from paragraph (b)
to more closely align with the statutory language. Section 4(b)(1)(A)
of the Act requires the Secretary to make determinations based ``solely
on the basis of the best scientific and commercial data available after
conducting a review of the status of the species''. The word ``solely''
was added in the 1982 amendments to the Act (Pub. L. 97-304, 96 Stat.
1411) to clarify that the determination of endangered or threatened
status was intended to be made ``solely upon biological criteria and to
prevent non-biological considerations from affecting such decisions.''
In making the clarification, Congress expressed concerns with the
requirements of the Regulatory Flexibility Act, Paperwork Reduction
Act, and E.O. 12291 potentially introducing economic and other factors
into the basis for determinations under the Act (H.R. Rep. No. 97-567
at 19-20, May 17, 1982).
In removing the phrase, the Services will continue to make
determinations based solely on biological considerations. However,
there may be circumstances where referencing economic, or other impacts
may be informative to the public. For example, the Environmental
Protection Agency conducts benefits and costs analyses of each proposed
or revised National Ambient Air Quality Standard. These regulatory
impact analyses are designed to inform the public and state, local, and
tribal governments about the potential costs and benefits of
implementation; however, the regulatory impact analyses are not a part
of the standard selection
[[Page 35195]]
process. While Congress precluded consideration of economic and other
impacts from being the basis of a listing determination, it did not
prohibit the presentation of such information to the public. Since
1982, Congress has consistently expressed support for informing the
public as to the impacts of regulations in subsequent amendments to
statutes and executive orders governing the rulemaking process.
In removing the phrase, ``without reference to possible economic or
other impacts of such determination'', the Services are not suggesting
that all listing determinations will include a presentation of economic
or other impacts. Rather, there may be circumstances where such impacts
are referenced while ensuring that biological considerations remain the
sole basis for listing determinations. The Services seek comment on
this modification.
Foreseeable Future
We propose to add to section 424.11 a new paragraph (d) that sets
forth a framework for how the Services will consider the foreseeable
future. Section 3(20) of the Act defines a ``threatened species'' as
``any species which is likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range.'' The term ``foreseeable future'' is not further described
within either the Act or the Services' current implementing
regulations. Guidance addressing the concept of the foreseeable future
within the context of determining the status of species is articulated
in a 2009 opinion from the Department of the Interior, Office of the
Solicitor (M-37021, January 16, 2009). The Services have found the
reasoning and conclusions expressed in this document to be well-
founded, and this guidance has been widely applied by both Services. We
are proposing to amend section 424.11 to include a framework that sets
out how the Services will determine what constitutes the foreseeable
future when determining the status of species.
Specifically, we propose the following framework: In determining
whether a species is a threatened species, the Services must analyze
whether the species is likely to become an endangered species within
the foreseeable future. The term foreseeable future extends only so far
into the future as the Services can reasonably determine that the
conditions potentially posing a danger of extinction in the foreseeable
future are probable. The Services will describe the foreseeable future
on a case-by-case basis, using the best available data and taking into
account considerations such as the species' life-history
characteristics, threat-projection timeframes, and environmental
variability. The Services need not identify the ``foreseeable future''
in terms of a specific period of time, but may instead explain the
extent to which they can reasonably determine that both the future
threats and the species' responses to those threats are probable.
As stated above, under the proposed section 424.11(d), as under
current practice, the foreseeable future will be described on a case-
by-case basis. Congress did not set a uniform timeframe for the
Secretary's consideration of whether a species was likely to become an
endangered species, nor did Congress intend that the Secretary set a
uniform timeframe. For each species considered for listing, the
Services must review the best scientific and commercial data available
regarding the likelihood of extinction over time, and then determine,
with each status review, whether the species meets the definition of an
endangered species or a threatened species. The foreseeable future is
uniquely related to the particular species, the relevant threats, and
the data available. Courts have expressly endorsed the Services'
approach of tailoring analysis of the foreseeable future to each
listing determination and considering the foreseeability of each key
threat and the species' likely response. See, e.g., In Re Polar Bear
Endangered Species Act Listing and Section 4(d) Rule Litigation, 709
F.3d 1, 15-16 (D.C. Cir. 2013) (noting that FWS ``determines what
constitutes the `foreseeable' future on a case-by-case basis in each
listing decision'' based on how far into the future the available data
allow for reliable prediction of effects to the species from key
threats), cert. denied sub nom. Safari Club Intern. v. Jewell, 134 S.
Ct. 310 (2013).
The analysis of the foreseeable future should, to the extent
practicable, account for any relevant environmental variability, such
as hydrological cycles or oceanographic cycles, which may affect the
reliability of projections. Analysis of the foreseeable future should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Under proposed section 424.11(d), as under current practice, the
foreseeable future for a particular status determination extends only
so far as predictions about the future are reliable. ``Reliable'' does
not mean ``certain''; it means sufficient to provide a reasonable
degree of confidence in the prediction. ``Reliable predictions'' is
also used here in a non-technical, ordinary sense and not necessarily
in a statistical sense.
As outlined in section 4(b)(1)(A) of the Act, status determinations
must be based on the best scientific and commercial data available. By
extension, in the context of determining whether a species meets the
definition of a threatened species, the foreseeable future must also be
based on the best scientific and commercial data available. The
Services assess the data concerning each threat and the degree to which
reliable predictions can be made. In many instances, the amount or
quality of data available is likely to vary with respect to the
relevant issues evaluated in a particular status determination;
consequently, the Services may find varying degrees of foreseeability
with respect to the multiple threats and their effects on a particular
species. Although the Secretary's analysis as to the future status of a
species may be based on reliable predictions with respect to multiple
trends and threats over different periods of time or even threats
without specific time periods associated with them, the final
conclusion is a synthesis of that information. Thus, the foreseeable
future is not necessarily reducible to a particular number of years.
Nevertheless, if the information or data are susceptible to such
precision, it may be helpful to identify the time scale used.
Depending on the nature and quality of the available data,
predictions regarding the future status of a particular species may be
based on analyses that range in form from quantitative population-
viability models and modelling of threats to qualitative analyses
describing how threats will affect the status of the species. In some
circumstances, such analyses may include reliance on the exercise of
professional judgment by experts where appropriate. In cases where the
available data allow for quantitative modelling or projections, the
time horizon presented in these analyses does not necessarily dictate
what constitutes the ``foreseeable future'' or set the specific
threshold for determining when a species may be in danger of
extinction. Rather, the foreseeable future can extend only as far as
the Services can reasonably depend
[[Page 35196]]
on the available data to formulate a reliable prediction and avoid
speculation and preconception. Regardless of the type of data available
underlying the Service's analysis, the key to any analysis is a clear
articulation of the facts, the rationale, and conclusions regarding
foreseeability. Ultimately, to determine that a species is likely to
become an endangered species in the foreseeable future, the Services
must be able to determine that the conditions potentially posing a
danger of extinction in the future are probable. The Services will
avoid speculating as to what is hypothetically possible.
Factors Considered in Delisting Species
In section 424.11, we propose to redesignate current paragraph (d)
as paragraph (e) and revise it to clarify that we determine whether a
species is a threatened species or an endangered species using the same
standards regardless of whether a species is or is not listed at the
time of that determination. After identifying a ``species'' as defined
under the Act and conducting a review of the species' status
considering the factors under section 4(a)(1) of the Act, the Services
determine if the species meets the definition of a threatened species
or an endangered species. If the species does not meet either
definition, the species should not be listed (if it is not already), or
should be delisted (if it is currently listed). The standard for a
decision to delist a species is the same as the standard for a decision
not to list it in the first instance. This is consistent with the
statute, under which the five-factor analysis in section 4(a)(1) and
the definitions of ``endangered species'' and ``threatened species'' in
sections 3(6) and 3(20) establish the parameters for both listing and
delisting determinations without distinguishing between them.
Additionally, we propose to modify the current regulatory text to
clarify the situations in which it would not be appropriate for species
to remain on the lists of endangered and threatened species. The
current regulatory language was intended to provide examples of when a
species should be removed from the lists; however, the language in the
current regulations has been, in some instances, misinterpreted as
establishing criteria for delisting. This proposed change is consistent
with the Services' longstanding practice and the decision in Friends of
Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012). That decision
confirms that, when reviewing whether a listed species should be
delisted, the Services must apply the factors in section 4(a) of the
Act. 691 F.3d at 433 (upholding FWS's decision to delist the West
Virginia northern flying squirrel because the agency was not required
to demonstrate that all of the recovery plan criteria had been met
before it could delist the species and it was reasonable to construe
the recovery plan as predictive of the delisting analysis rather than
controlling it). In that case, the court held that ``Section 4(a)(1) of
the Act provides the Secretary `shall' consider the five statutory
factors when determining whether a species is endangered, and section
4(c) makes clear that a decision to delist `shall be made in
accordance' with the same five factors.'' Id. at 432.
To more clearly align section 424.11 with section 4(a) of the Act
we are proposing to streamline it. As is currently the case, any
determination to remove a species from the lists because it is has
become extinct is subject to the Act's requirement that any
determination as to the species' status must be based on the best
scientific and commercial data available. Thus, we are proposing to
retain text at the beginning of the new section 424.11(e) that states;
``The Secretary will delist a species if the Secretary finds that,
after conducting a status review based on the best scientific and
commercial data available:''
Secondly, to align more closely with the Act, we are proposing to
replace the current section 424.11(d)(1) with a new section
424.11(e)(1) that simply states the first reason for delisting a
species as, ``The species is extinct.'' Our conclusion that a species
is extinct will be based on the best scientific and commercial data
available, as required under section 4(b)(1)(A), which may include
survey data and information regarding the period of time since the last
detection (e.g., documented occurrence or sighting) of the species. It
is unnecessary, and potentially confusing in the context of particular
determinations, to specifically address these matters in the regulatory
text. Our evaluations will be conducted on a case-by-case basis,
considering the species-specific biological evidence for species
extinction.
Third, we are replacing current section 424.11(d)(2), which
referred to ``recovery,'' with language in new section 424.11(e)(2)
that aligns with the statutory definitions of an endangered species or
a threatened species. Although we are proposing to remove the word
``recovery'' from the current section 424.11(d)(2), we intend the
proposed language to continue to refer, among other things, to species
that have been recovered, because species that have been recovered no
longer meet the definition of either an endangered species or a
threatened species.
Fourth, we are proposing to add a new provision, section
424.11(e)(3), clarifying that listed entities will be delisted if they
do not meet the definition of ``species'' as set forth in the Act. This
could occur if new information, or new analysis of existing
information, leads the Secretary to determine that a currently listed
entity is neither a taxonomic species or subspecies, nor a ``distinct
population segment.'' For example, where, after the time of listing,
the Services conclude that a species or subspecies should no longer be
recognized as a valid taxonomic entity, the listed entity would be
removed from the list because it no longer meets the definition of a
``species.'' In other instances, new data could indicate that a
particular listed distinct population segment does not meet the
criteria of the Services' Policy Regarding the Recognition of Distinct
Vertebrate Population Segments Under the Endangered Species Act (``DPS
Policy''; 61 FR 4722, February 7, 1996). In either circumstance, the
entity would not meet the definition of a ``species'' and would not
qualify for listing under the Act.
Fifth, we are proposing to remove current section 424.11(d)(3),
which specifies that delisting could be due to error in the original
data that the Services relied upon when adding species to the lists.
This language is unnecessary because any circumstance in which a
species was listed in error would be covered by new section
424.11(e)(2) or (e)(3).
Lastly, we are proposing technical changes to the existing
regulations that remain in place to accommodate the proposed revisions
discussed above. We are proposing to modify current section 424.11(b)
to include a reference to the proposed section 424.11(d) regarding the
foreseeable future and the proposed section 424.11(e) regarding
delisting. We are proposing to modify current section 424.11(c) by
adding minor clarifying language to specify that this paragraph refers
to the statutory definitions of an endangered species and a threatened
species.
Section 424.12--Criteria for Designating Critical Habitat
Not Prudent Determinations
We propose to revise section 424.12(a)(1) to set forth a non-
exhaustive list of circumstances in which the Services may find it is
not prudent to designate critical habitat as contemplated in section
4(a)(3)(A) of the
[[Page 35197]]
Act. Under the clarifications that we propose in this revision, the
Services would have the authority but would not be required to find
that designation would not be prudent in the enumerated circumstances.
This is a change from the current framework, which sets forth two
situations in which critical habitat is not prudent. We anticipate that
not-prudent determinations would continue to be rare. 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.
We propose to retain the circumstance described in the longstanding
language of current section 424.12(a)(1)(i), which is that 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.
We propose to remove the language in section 424.12(a)(1)(ii)
indicating that it would not be prudent to designate critical habitat
when ``designation of critical habitat would not be beneficial to the
species.'' In a number of cases, courts have remanded not-prudent
findings to the Service(s) because the courts construed ``would not be
beneficial'' in ways the Services had not intended. For example, a
number of courts have held that it was unreasonable for FWS to make a
not-prudent determination simply because most or all of the areas that
would be designated would not be subject to consultations under ESA
section 7. E.g., Natural Resources Defense Council v. U.S. Dept. of
Interior, 113 F.3d 1121 (9th Cir. 1997); Conservation Council for
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Haw. 1998). In Conservation
Council, the court concluded that FWS had not determined that
designation would ``not be beneficial to the species'' because
designating critical habitat could bring other benefits to the species
beyond consultation, such as informational benefits. 2 F. Supp. 2d at
1288. In NRDC, the court held that determining critical habitat to be
not prudent because the majority of the areas that would be designated
as critical habitat would not be subject to consultation was based on
an improper interpretation of the regulatory phrase ``not beneficial to
the species'' to mean ``not beneficial to most of the species.'' 113
F.3d 1125-16. The existing regulatory language is not in the statute,
and the Services consider the language unnecessary and difficult to
understand and apply.
Basing determinations on whether particular circumstances are
present, rather than on whether a designation would be beneficial,
provides an interpretation of the statute that is clearer, more
transparent, and more straightforward. In some situations, the Services
may conclude, after a review of the best available scientific data,
that a designation would nevertheless be prudent even in the enumerated
circumstances. Conversely, the Services may find in some circumstances
that are not enumerated in the proposed language that a designation of
critical habitat would otherwise be not prudent.
We propose a number of circumstances in which designation of
critical habitat would generally be not prudent, including some
circumstances that were already captured in the current regulations at
section 424.12(a)(1)(ii) and some additional circumstances that we have
identified based on our experience in designating critical habitat. We
propose to retain and move into new section 424.12(a)(1)(iv) the
circumstance described in current section 424.12(a)(1)(ii), which is
that no areas meet the definition of critical habitat. It is not
possible for us to designate critical habitat when no areas meet the
definition of critical habitat in the Act; therefore, in these cases,
designation is not prudent. We also propose to retain and expand the
concept of current section 424.12(a)(1)(ii) regarding the lack of
habitat-based threats to the species.
In our 2016 revision of section 424.12(a)(1)(ii) (81 FR 7414,
February 11, 2016), we clarified that, in determining whether
designation may not be prudent, the Services could consider whether the
present or threatened destruction, modification, or curtailment of a
species' habitat or range (i.e., considerations under section
4(a)(1)(A) of the Act (Factor A)) is not a threat to the species. In
the 2016 revision, we provided an example of a designation that would
not be prudent due to the lack of habitat-based threats: A species is
threatened primarily by disease, but the habitat upon which it relies
remains intact without threat and would support conservation of the
species if not for the threat of disease. Since then, we have
encountered situations in which threats to the species' habitat stem
solely from causes that cannot be addressed by management actions that
may be identified through consultation under section 7(a)(2) of the
Act. In those situations, a designation could create a regulatory
burden without providing any conservation value to the species
concerned. Examples would include species experiencing threats stemming
from melting glaciers, sea level rise, or reduced snowpack but no other
habitat-based threats. In such cases, a critical habitat designation
and any resulting section 7(a)(2) consultation, or conservation effort
identified through such consultation, could not prevent glaciers from
melting, sea levels from rising, or increase the snowpack. Thus, we
propose in section 424.12(a)(1)(ii) that designation of critical
habitat in these cases may not be prudent because it would not serve
its intended function to conserve the species.
We also propose to add as an additional circumstance under section
424.12(a)(1)(iii) situations where critical habitat areas under the
jurisdiction of the United States provide negligible conservation value
for a species that primarily occurs in areas outside of U.S.
jurisdiction. In our 2016 revision of these regulations, we noted in
the preamble that this could be a basis for determining that critical
habitat designation would be not prudent; however, we find it is
clearer to add this consideration directly to the regulatory text. We
would apply this determination only to species that primarily occur
outside U.S. jurisdiction, and where no areas under U.S. jurisdiction
contain features essential to the conservation of the species. The
circumstances when a critical habitat designation would provide
negligible conservation value for a species will be determined on a
case-by-case basis and may consider such factors as threats to the
species or habitat and the species needs.
Designating Unoccupied Areas
On February 11, 2016, the Services published a final rule revising
the regulations at section 424.12, which establish criteria for
designating critical habitat (81 FR 7439). One of the revisions we made
was to eliminate the following paragraph (e): ``The Secretary shall
designate as critical habitat 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.''
The Services explained in the preamble to the final rule that we had
concluded that the ``rigid step-wise approach'' prescribed in that
prior regulatory language may not be the best conservation strategy for
the species and in some circumstances may result in a designation that
is geographically larger, but less efficient as a conservation tool (81
FR 7415). Nonetheless, we are aware of continued perceptions that, by
eliminating this provision, the Services
[[Page 35198]]
intended to designate as critical habitat expansive areas of unoccupied
habitat. To address this concern, the Services propose to revise
section 424.12(b)(2) by restoring the requirement that the Secretary
will first evaluate areas occupied by the species. We also propose to
clarify when the Secretary may determine unoccupied areas are essential
for the conservation 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 not designated concurrently with
listing, or is revised 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 because surveys are not routinely carried out on
private lands. Although surveys may be performed as part of an
environmental analysis for a particular development proposal, such
surveys typically focus on listed rather than non-listed species. Thus,
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 the
court's 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 post-
listing determination of occupancy based on the currently known
distribution of the species in some circumstances. Although the D.C.
Circuit disagreed with the district court that the record contained
sufficient data to support the FWS' determination of occupancy in that
case, the D.C. Circuit did not express disagreement with (or otherwise
address) the district court's underlying conclusion that the Act allows
FWS to make a post-listing determination of occupancy if based on
adequate data. The Services acknowledge that to make a post-listing
determination of occupancy we must distinguish between actual changes
to species occupancy and changes in available information.
The Act defines unoccupied critical habitat in terms of a
determination that such areas are essential for the conservation of the
species. The proposed section 424.12(b)(2) specifies how the Services
would determine whether unoccupied areas are essential. The proposed
language states the Services would only consider unoccupied areas to be
essential in two situations: When a critical habitat designation
limited to geographical areas occupied would (1) be inadequate to
ensure the conservation of the species, or (2) result in less-efficient
conservation for the species. The proposed changes will provide
additional predictability to the process of determining when
designating unoccupied habitat may be appropriate. For example, the
Services could consider unoccupied habitat to be essential when a
designation limited to occupied habitat would result in a
geographically larger but less effective designation.
There are situations where a designation focused on occupied
critical habitat would result in less efficient conservation for the
species than a designation that includes a mix of occupied and
unoccupied critical habitat. In these cases, the designation of some
unoccupied areas would result in the same or greater conservation for
the species but would do so more efficiently. Efficient conservation
for the species refers to situations where the conservation is
effective, societal conflicts are minimized, and resources expended are
commensurate with the benefit to the species. The flexibility to
include unoccupied areas in a designation where limiting the
designation to occupied areas would have resulted in less-efficient
conservation of the species will allow the Services to focus agency
resources thoughtfully in both designating critical habitat and
conducting future consultations on the critical habitat.
In addition, we propose to further clarify when the Secretary may
determine that an unoccupied area may be essential for the conservation
of the species. In order for an unoccupied area to be considered
essential, the Secretary must determine that there is a reasonable
likelihood that the area will contribute to the conservation of the
species. In making a determination as to whether such a reasonable
likelihood exists, the Services will continue to take into account the
best available science regarding species-specific and area-specific
factors. This could include such factors as: (a) Whether the area is
currently or is likely to become usable habitat for the species; (b)
the likelihood that interagency consultation under Section 7 will be
triggered, i.e., whether any federal agency actions are likely to be
proposed with respect to the area; and, (c) how valuable the potential
contributions of the area are to the biological needs of the species.
When the Services evaluate if an area is now, or is likely to
become, usable habitat for the species we would take into account,
among other things, the current state of the area and extent to which
extensive restoration would be needed for the area to become usable.
For example, the Services might conclude that an area is unlikely to
contribute to the conservation of the species where it would require
extensive affirmative restoration that does not seem likely to occur
such as when a non-federal landowner or necessary partners are
unwilling to undertake or allow such restoration. Although the
expressed intentions of such landowners or partners will not
necessarily be determinative, the Services would consider those
intentions in light of the mandatory duties and conservation purposes
of the Act.
When the Services evaluate the likelihood that interagency
consultation under section 7 will be triggered, we would consider
whether there are any federal agency actions likely to be proposed
within the area (i.e., federal nexus). Because the only regulatory
effect of a designation of critical habitat is the requirement that
federal agencies avoid authorizing, funding, or undertaking actions
that may destroy or adversely modify such habitat, the likelihood that
an area will contribute to conservation is, in most cases, greater for
public lands and lands for which such federal actions can be reasonably
anticipated than for other types of land.
However, the Services would continue to consider the conservation
purposes of the Act in determining how valuable the potential
contributions of the area are to the biological needs of the species.
In practice, this means that, in the rare instance where the potential
contribution of the unoccupied area to the conservation of the listed
species is extremely valuable, a lower threshold than ``likely'' may be
appropriate. For example, where an area represents the only potential
habitat of its type (i.e., is uniquely able to support certain life
functions of the species), the Services
[[Page 35199]]
may reasonably classify that area as essential even in the face of a
low likelihood that the area would contribute to species conservation.
Conversely, a greater showing of likelihood may be required for an area
that provides less significant conservation value.
Public Comments
You may submit your comments and materials concerning the proposed
rule by one of the methods listed in ADDRESSES. Comments must be
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are
not postmarked, by the date specified in DATES.
We will post your entire comment-- including your personal
identifying information--on http://www.regulations.gov. 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.
Comments and materials we receive, as well as supporting documentation
we used in preparing this proposed rule, will be available for public
inspection on http://www.regulations.gov.
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. OIRA 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. This proposed rule is consistent with
Executive Order 13563, and in particular with the requirement of
retrospective analysis of existing rules, designed ``to make the
agency's regulatory program more effective or less burdensome in
achieving the regulatory objectives.''
Executive Order 13771
This proposed rule is expected to be an Executive Order 13771
deregulatory action.
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 certify that, if adopted as
proposed, this proposed rule would not have a significant economic
effect on a substantial number of small entities. The following
discussion explains our rationale.
This rulemaking revises and clarifies requirements for NMFS and FWS
regarding factors for listing, delisting, or reclassifying species and
designating critical habitat under the Endangered Species Act to
reflect agency experience and to codify current agency practices. The
proposed changes to these regulations do not expand the reach of
species protections or 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 list species and
designate critical habitat under the Endangered Species Act. No
external entities, including any small businesses, small organizations,
or small governments, will experience any economic impacts from this
rule.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information contained in the Regulatory
Flexibility Act section above, this proposed rule would not
``significantly or uniquely'' affect small governments. We have
determined and certify pursuant to the Unfunded Mandates Reform Act, 2
U.S.C. 1502, that this rule would not impose a cost of $100 million or
more in any given year on local or State governments or private
entities. A Small Government Agency Plan is not required. As explained
above, small governments would not be affected because the proposed
rule would not place additional requirements on any city, county, or
other local municipalities.
(b) This proposed rule would not produce a Federal mandate on
State, local, or tribal governments or the private sector of $100
million or greater in any year; that is, this proposed rule is not a
``significant regulatory action''' under the Unfunded Mandates Reform
Act. This proposed rule would impose no obligations on State, local, or
tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. This proposed rule would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this proposed rule (1) would not effectively
compel a property owner to suffer a physical invasion of property and
(2) would not deny all economically beneficial or productive use of the
land or aquatic resources. This proposed rule would substantially
advance a legitimate government interest (conservation and recovery of
endangered species and threatened species) and would not present a
barrier to all reasonable and expected beneficial use of private
property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this proposed rule would have significant Federalism effects
and have determined that a federalism summary impact statement is not
required. This proposed rule pertains only to factors for listing,
delisting, or reclassifying species and designation of critical habitat
under the Endangered Species Act, and would not
[[Page 35200]]
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 does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988. This proposed rule would clarify factors for
listing, delisting, or reclassifying species and designation of
critical habitat under the Endangered Species Act.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' the Department of the
Interior's manual at 512 DM 2, and the Department of Commerce (DOC)
Tribal Consultation and Coordination Policy (May 21, 2013), DOC
Departmental Administrative Order (DAO) 218-8 (April 2012), and NOAA
Administrative Order (NAO) 218-8 (April 2012), we are considering
possible effects of this proposed rule on federally recognized Indian
Tribes. We will continue to collaborate/coordinate with tribes on
issues related to federally listed species and their habitats. See
Joint Secretarial Order 3206 (``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act,'' June
5, 1997).
Paperwork Reduction Act
This proposed rule does not contain any new collections of
information that require approval by the OMB under the Paperwork
Reduction Act. This proposed rule will not impose recordkeeping or
reporting requirements on State, local, or Tribal 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 this proposed regulation 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 8), the NOAA Administrative Order 216-
6A, and the NOAA Companion Manual (CM), ``Policy and Procedures for
Compliance with the National Environmental Policy Act and Related
Authorities'' (effective January 13, 2017).
We anticipate that the categorical exclusion found at 43 CFR
46.210(i) likely applies to the proposed regulation changes. At 43 CFR
46.210(i), the Department of the Interior has found that the following
category of actions would not individually or cumulatively have a
significant effect on the human environment and are, therefore,
categorically excluded from the requirement for completion of an
environmental assessment or environmental impact statement: ``Policies,
directives, regulations, and guidelines: that are of an administrative,
financial, legal, technical, or procedural nature.''
NOAA's NEPA procedures include a similar categorical exclusion for
``preparation of policy directives, rules, regulations, and guidelines
of an administrative, financial, legal, technical, or procedural
nature.'' (Categorical Exclusion G7, at CM Appendix E).
We invite the public to comment on the extent to which this
proposed regulation may have a significant impact on the human
environment, or fall within one of the categorical exclusions for
actions that have no individual or cumulative effect on the quality of
the human environment. We will complete our analysis, in compliance
with NEPA, before finalizing this regulation.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. The proposed revised
regulations are not expected to affect energy supplies, distribution,
and use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you 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 rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Authority
We issue this proposed rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq).
List of Subjects in 50 CFR Part 424
Administrative practice and procedure, Endangered and threatened
species.
Proposed Regulation Promulgation
For the reasons set out in the preamble, we hereby propose to amend
part 424, subchapter A of chapter IV, title 50 of the Code of Federal
Regulations, as set forth below:
PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING
CRITICAL HABITAT
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Amend Sec. 424.11 by revising paragraphs (b) through (f) and adding
a new paragraph (g) to read as follows:
Sec. 424.11 Factors for listing, delisting, or reclassifying
species.
* * * * *
(b) The Secretary shall make any determination required by
paragraphs (c), (d), and (e) of this section solely on the basis of the
best available scientific and commercial information regarding a
species' status.
(c) A species shall be listed or reclassified if the Secretary
determines, on the basis of the best scientific and commercial data
available after conducting a review of the species' status, that the
species meets the definition of an endangered species or a threatened
species because of any one or a combination of the following factors:
(1) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(2) Overutilization for commercial, recreational, scientific, or
educational purposes;
(3) Disease or predation;
(4) The inadequacy of existing regulatory mechanisms; or
(5) Other natural or manmade factors affecting its continued
existence.
(d) In determining whether a species is a threatened species, the
Services
[[Page 35201]]
must analyze whether the species is likely to become an endangered
species within the foreseeable future. The term foreseeable future
extends only so far into the future as the Services can reasonably
determine that the conditions potentially posing a danger of extinction
in the foreseeable future are probable. The Services will describe the
foreseeable future on a case-by-case basis, using the best available
data and taking into account considerations such as the species' life-
history characteristics, threat-projection timeframes, and
environmental variability. The Services need not identify the
foreseeable future in terms of a specific period of time, but may
instead explain the extent to which they can reasonably determine that
both the future threats and the species' responses to those threats are
probable.
(e) The Secretary will delist a species if the Secretary finds
that, after conducting a status review based on the best scientific and
commercial data available:
(1) The species is extinct;
(2) The species does not meet the definition of an endangered
species or a threatened species. In making such a determination, the
Secretary shall consider the same factors and apply the same standards
set forth in paragraph (c) of this section regarding listing and
reclassification; or
(3) The listed entity does not meet the statutory definition of a
species.
(f) The fact that a species of fish, wildlife, or plant is
protected by the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (see part 23 of this title 50) or a
similar international agreement on such species, or has been identified
as requiring protection from unrestricted commerce by any foreign
nation, or to be in danger of extinction or likely to become so within
the foreseeable future by any State agency or by any agency of a
foreign nation that is responsible for the conservation of fish,
wildlife, or plants, may constitute evidence that the species is
endangered or threatened. The weight given such evidence will vary
depending on the international agreement in question, the criteria
pursuant to which the species is eligible for protection under such
authorities, and the degree of protection afforded the species. The
Secretary shall give consideration to any species protected under such
an international agreement, or by any State or foreign nation, to
determine whether the species is endangered or threatened.
(g) The Secretary shall take into account, in making determinations
under paragraphs (c) or (e) of this section, those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or other
conservation practices, within any area under its jurisdiction, or on
the high seas.
0
3. Amend Sec. 424.12 by revising paragraphs (a)(1) and (b)(2) to read
as follows:
Sec. 424.12 Criteria for designating critical habitat.
(a) * * *
(1) The Secretary may, but is not required to, determine that a
designation would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) After analyzing the best scientific data available, the
Secretary otherwise determines that designation of critical habitat
would not be prudent.
* * * * *
(b) * * *
(2) The Secretary will designate as critical habitat, at a scale
determined by the Secretary to be appropriate, specific areas outside
the geographical area occupied by the species only upon a determination
that such areas are essential for the conservation of the species. When
designating critical habitat, the Secretary will first evaluate areas
occupied by the species. The Secretary will only consider unoccupied
areas to be essential where a critical habitat designation limited to
geographical areas occupied would be inadequate to ensure the
conservation of the species or would result in less efficient
conservation for the species. Efficient conservation for the species
refers to situations where the conservation is effective, societal
conflicts are minimized, and resources expended are commensurate with
the benefit to the species. In addition, for an unoccupied area to be
considered essential, the Secretary must determine that there is a
reasonable likelihood that the area will contribute to the conservation
of the species.
* * * * *
Dated: July 18, 2018
Ryan K. Zinke,
Secretary, Department of the Interior.
Dated: July 16, 2018.
Wilbur Ross,
Secretary, Department of Commerce.
[FR Doc. 2018-15810 Filed 7-24-18; 8:45 am]
BILLING CODE 4333-15-P; 3510-22-P