[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 45020-45053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17518]
[[Page 45019]]
Vol. 84
Tuesday,
No. 166
August 27, 2019
Part III
Department of the Interior
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Fish and Wildlife Service
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 424
Endangered and Threatened Wildlife and Plants; Regulations for Listing
Species and Designating Critical Habitat; Final Rule
Federal Register / Vol. 84 , No. 166 / Tuesday, August 27, 2019 /
Rules and Regulations
[[Page 45020]]
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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; Regulations for
Listing Species and Designating Critical Habitat
AGENCY: U.S. Fish and Wildlife Service, Interior; National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Final 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''), revise portions of our regulations that
implement section 4 of the Endangered Species Act of 1973, as amended
(Act). The 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.
DATES:
Effective date: This final regulation is effective on September 26,
2019.
Applicability date: These revised regulations apply to
classification and critical habitat rules for which a proposed rule was
published after September 26, 2019.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final
regulation, are available on the internet at http://www.regulations.gov
in Docket No. FWS-HQ-ES-2018-0006.
FOR FURTHER INFORMATION CONTACT: Gary Frazer, U.S. Fish and Wildlife
Service, Department of the Interior, Washington, DC 20240, telephone
202/208-4646; or Samuel D. Rauch, III, National Marine Fisheries
Service, Department of Commerce, 1315 East-West Highway, Silver Spring,
MD 20910, telephone 301/427-8000. If you use a telecommunications
device for the deaf (TDD), call the Federal Relay Service at 800/877-
8339.
SUPPLEMENTARY INFORMATION:
Background
On July 25, 2018, the Services published a proposed rule in the
Federal Register (83 FR 35193) regarding section 4 of the Act and its
implementing regulations in title 50 of the Code of Federal Regulations
(CFR), part 424, which sets forth the procedures for the addition,
removal, or reclassification of species on the Federal Lists of
Endangered and Threatened Wildlife and Plants (lists) and designating
critical habitat. In the July 25, 2018, Federal Register document, we
provided the background for our proposed revisions to these regulations
in terms of the statute, legislative history, and case law.
In this final rule, we focus our discussion on changes from the
proposed revisions based on comments we received during the comment
period and our further consideration of the issues raised. For
background on the statutory and legislative history and case law
relevant to these regulations, we refer the reader to the proposed rule
(83 FR 35193, July 25, 2018).
In finalizing the specific changes to the regulations in this
document, and setting out the accompanying clarifying discussion in
this preamble, the Services are establishing prospective standards
only. Although these regulations are effective 30 days from the date of
publication as indicated in DATES above, they will apply only to
relevant rulemakings for which the proposed rule is published after
that date. Thus, the prior version of the regulations at 50 CFR part
424 will continue to apply to any rulemakings for which a proposed rule
was published before the effective date of this rule. Nothing in these
final revised regulations is intended to require that any previously
completed classification decision or critical habitat designation must
be reevaluated on the basis of these final regulations.
This final rule is one of three related final rules that are
publishing in this issue of the Federal Register. All of these
documents finalize revisions to various regulations that implement the
Act.
Discussion of Changes From the Proposed Rule
In this section we discuss changes between the proposed regulatory
text and regulatory text that we are finalizing in this document
regarding the foreseeable future, factors for delisting, and
designation of unoccupied critical habitat. We also explain a revision
to the regulatory definition of ``physical or biological features.'' We
are not modifying the proposed regulatory text for the section on
prudent determinations of critical habitat or the proposed revision to
50 CFR 424.11(b). We are finalizing those sections as proposed.
Foreseeable Future
We proposed that the framework for the foreseeable future in 50 CFR
424.11(d) provide that 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.
The Services received numerous comments stating that many of the
terms and phrases in the proposed framework are vague and unclear, and
that the proposed framework impermissibly raises the bar for listing
species as threatened species. Some commenters suggested in particular
that ``likely'' should be used instead of ``probable,'' to avoid
confusion and to ensure that the provision is consistent with the
statutory definition of ``threatened species.'' In response to these
comments and upon further consideration, we have revised the framework
to provide that the term foreseeable future extends only so far into
the future as the Services can reasonably determine that both the
future threats and the species' responses to those threats are likely.
The Services will describe the foreseeable future on a case-by-case
basis, using the best available data and taking into account
considerations such as the species' life-history characteristics,
threat-projection timeframes, and environmental variability. The
Services need not identify the foreseeable future in terms of a
specific period of time.
We have removed the phrase ``conditions potentially posing a danger
of extinction in the foreseeable future,'' and are replacing it with
``both the future threats and the species' responses to those
threats.'' In light of the public comments received, we determined that
[[Page 45021]]
this particular phrase, as originally proposed, could be read
incorrectly to imply that ``conditions'' could include something other
than ``threats,'' and that ``conditions'' affecting the species need
only be ``potential conditions'' and not actual or operative threats.
In addition, we concluded that the phrase ``posing a danger of
extinction'' could conflate the concept of the foreseeable future with
the status of the species, instead of indicating that the foreseeable
future is the period of time in which the Services can make reliable
predictions about the threats and the species' responses to those
threats.
We have also replaced the word ``probable'' with the word
``likely.'' While we had intended ``probable'' to have its common
meaning, which is synonymous with the term ``likely,'' we have
determined that it is most consistent with the statutory definition of
``threatened species'' to instead use the term ``likely.'' We have
deleted the term ``probable'' and replaced it with the term ``likely''
to avoid any confusion on this point and to address public comments. We
clarify that by ``likely'' the Services mean ``more likely than not.''
This is consistent with the Services' long-standing interpretation and
previous judicial opinions.
Factors Considered in Delisting Species
We are making one minor change to the proposed regulatory text for
50 CFR 424.11(e). We have replaced ``will'' with ``shall'' in the first
sentence of this provision to make it consistent with the language in
other sections of 50 CFR 424.11. While we have not made any other
changes, we note that when we use the term ``status review'' in the
context of evaluating extinction or not meeting the definition of a
``species,'' this review may not necessarily involve an evaluation of
the species' status relative to the five listing factors in section
4(a)(1) of the Act. As is our common practice, if the Services
determine the entity does not meet the statutory definition of a
``species,'' the status review would conclude at that point. Likewise,
if the Services determine an entity is extinct, there would be no need
for the Services to evaluate the factors affecting the species as part
of a status review.
We received many comments expressing concern over removing the
terms ``recovery'' and ``error'' from the regulatory text because of a
perception that the basis of the Services' actions would not be clear.
As is the Services' current practice, we will continue to explain in
proposed and final delisting rules why the species is being removed
from the lists--whether due to recovery, extinction, error, or other
reasons. These revisions do not alter, in any way, the Services'
continued goal of recovery for all listed species.
Not Prudent Determinations
We proposed that 50 CFR 424.12(a)(1)(v) provide that after
analyzing the best scientific data available, the Secretary otherwise
determines that designation of critical habitat would not be prudent.
We note that this formulation could be misconstrued to suggest that
the Secretary may make a determination irrespective of the data,
provided the Secretary first analyzes the data. This interpretation,
although grammatically possible, was not our intent and is not
permissible under the Act. However, given that numerous comments
expressed concern about expanding circumstances when the Services may
find critical habitat designation to be not prudent, we decided to
reorder 50 CFR 424.12(a)(1)(v) to provide that the Secretary otherwise
determines that designation of critical habitat would not be prudent
based on the best scientific data available.
Designating Unoccupied Areas
We proposed that 50 CFR 424.12(b)(2) provide that 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.
The Services received numerous comments that the term ``efficient
conservation'' is vague and would introduce a requirement not contained
in the statute. We also received numerous comments that the reasonable
likelihood standard was not defined and is unclear. In response to
these comments and upon further consideration, we revised 50 CFR
424.12(b)(2) to provide that the Secretary will designate as critical
habitat, at a scale determined by the Secretary to be appropriate,
specific areas outside the geographical area occupied by the species
only upon a determination that such areas are essential for the
conservation of the species. When designating critical habitat, the
Secretary will first evaluate areas occupied by the species. The
Secretary will only consider unoccupied areas to be essential where a
critical habitat designation limited to geographical areas occupied
would be inadequate to ensure the conservation of the species. In
addition, for an unoccupied area to be considered essential, the
Secretary must determine that there is a reasonable certainty both that
the area will contribute to the conservation of the species and that
the area contains one or more of those physical or biological features
essential to the conservation of the species.
We have removed the proposed language regarding ``efficient
conservation.'' Therefore, we will only designate unoccupied critical
habitat if we determine that occupied critical habitat is inadequate
for the conservation of the species. Public comments indicated that the
``efficient conservation'' concept was confusing and that
implementation of this provision would be inordinately complex and
difficult.
We have also revised the proposed language by replacing
``reasonable likelihood'' with ``reasonable certainty.'' Although
``reasonable likelihood'' and ``reasonable certainty'' both convey the
need for information beyond speculation but short of absolute
certainty, we find that the latter requires a higher level of certainty
than the former. We intend the phrase ``reasonable certainty'' as
applied to designation of unoccupied critical habitat in this final
regulation to preclude designations of unoccupied critical habitat
based upon mere potential or speculation--either as to the contribution
of the area of unoccupied critical habitat to the species' conservation
or as to the existence of one or more of the physical or biological
features essential to the conservation of the species. At the same
time, we do not intend to require that designations of unoccupied
critical habitat be based upon guarantees or absolute certainty about
the future conservation contributions of, or features present within,
unoccupied critical habitat. In light of the public comments that the
``reasonable likelihood'' language was undefined and unclear, and could
allow too much discretion to designate areas that would not ultimately
contribute to species conservation, we concluded that the language of
this final rule better reflects the need for high confidence that an
area designated as unoccupied critical habitat will actually contribute
to the
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conservation of the species. We consider the phrase ``reasonable
certainty'' to confer a higher level of certainty than ``reasonable
likelihood,'' meaning a high degree of certainty, but not to require
absolute certainty.
The Supreme Court recently held that an area must be habitat before
that area could meet the narrower category of ``critical habitat,''
regardless of whether that area is occupied or unoccupied. See
Weyerhaeuser Co. v. U.S. FWS, 139 S Ct. 361 (2018). We have addressed
the Supreme Court's holding in this rule by adding a requirement that,
at a minimum, an unoccupied area must have one or more of the physical
or biological features essential to the conservation of the species in
order to be considered as potential critical habitat. We note that we
do not in the rule attempt to definitively resolve the full meaning of
the term ``habitat.''
First, the language and structure of the statute support this
interpretation. By its very terms the Act requires that areas
designated as critical habitat be habitat for the species: ``The
Secretary . . . shall . . . designate any habitat of [a listed] species
which is then considered to be critical habitat'' (section
4(a)(3)(A)(i) of the Act (emphasis added)). Moreover, paragraph (C) of
the statutory definition of ``critical habitat'' at section 3(5) makes
clear that ``critical habitat shall not include the entire geographical
area which can be occupied by the [listed] species.'' The phrase ``can
be occupied'' in the definition demonstrates that all critical
habitat--both occupied and unoccupied alike (the use of ``can be''
instead of ``is'' demonstrates that the provision is not limited to
occupied habitat)--must be habitat because the only way that an area
``can be occupied'' is if it is habitat. Further, the use of the
present tense--``are essential''--in section 3(5)(A)(ii) indicates that
for an unoccupied area to qualify as ``critical habitat,'' it must
currently be essential for the conservation of the species. The
Services interpret this requirement to mean that there is a reasonable
certainty both that the area currently contains one or more of the
physical or biological features essential to the conservation of the
species and that the area will contribute to the species' conservation.
A reasonable reading of the statutory definition of ``unoccupied''
critical habitat would find that areas that do not contain at least one
of the features essential to life processes of the species or will not
contribute to the conservation of the species cannot be essential for
conservation.
Second, the legislative history supports the conclusion that
unoccupied habitat must contain one or more of those physical or
biological features essential to the conservation of the species. While
the 1973 Act did not define ``critical habitat,'' the Services' 1978
regulations did define ``critical habitat'' as ``any air, land, or
water area . . . and constituent elements thereof, the loss of which
would appreciably decrease the likelihood of survival and recovery of a
listed species . . . . The constituent elements of critical habitat
include, but are not limited to: physical structures and topography,
biota, climate, human activity, and the quality and chemical content of
land, water, and air. Critical habitat may represent any portion of the
present habitat of a listed species and may include additional areas
for reasonable population expansion.'' 43 FR 870, 874-875 (Jan. 4,
1978).
In response to the Tellico Dam decision by the Supreme Court,
Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), Congress
amended the Act in a number of ways, including by providing a statutory
definition of ``critical habitat.'' Notably, Congress did not adopt the
Services' regulatory definition. Congress was concerned that the
agencies' ``regulatory definition could conceivably lead to the
designation of virtually all of the habitat of a listed species as its
critical habitat.'' H.R. Rep. No. 95-1625, at 25 (1978). The House
``narrow[ed]'' the definition and told the agencies to be ``exceedingly
circumspect in the designation of critical habitat outside of the
presently occupied areas of the species.'' Id. at 18, 25. Additionally,
the Senate Report noted there is ``little or no reason to give exactly
the same status to lands needed for population expansion as is given to
those lands which are critical to a species' continued survival.'' S.
Rep. No. 95-874, at 10 (1978).
The Senate Report recognized the potential value of designating
unoccupied habitat to expand populations, but questioned how broadly it
could be used. Id. at 9-10 (``The goal of expanding existing
populations of endangered species in order that they might be delisted
is understandable''; ``This process does, however, substantially
increase the amount of area involved in critical habitat designation
and therefore increases proportionately the area that is subject to the
regulations and prohibitions which apply to critical habitats''). The
Senate specifically criticized designations of critical habitat that
include land ``that is not habitat necessary for the continued
survival'' of the species, but is instead ``designated so that the
present population within the true critical habitat can expand.'' Id.
at 10.
Thus, we conclude that Congress intended that the test be more
demanding for designating unoccupied critical habitat than for occupied
habitat. All the courts to address this issue have agreed with this
general principle. E.g., Home Builders Ass'n v. U.S. Fish & Wildlife
Service, 616 F.3d 983, 990 (9th Cir. 2010) (``Essential conservation is
the standard for unoccupied habitat . . . and is a more demanding
standard than that of occupied critical habitat.''); Cape Hatteras
Access Pres. All. v. U.S. Dep't of Interior, 344 F. Supp. 2d 108, 119
(D.D.C. 2004) (``it is not enough that the area's features be essential
to conservation, the area itself must be essential''). As the Act and
its legislative history makes clear, Congress intended that unoccupied
critical habitat be defined more narrowly than as areas contemplated
for species expansion. H.R. Rep. No. 95-1625 pp. 18, 25 (1978); S. Rep.
No. 95-874, at 9-10 (1978). We have concluded that requiring that areas
contain one or more features that the species needs furthers this
congressional intent.
Note that, although the Conference Committee changed the definition
of ``critical habitat'' so that it was no longer modeled after the 1978
regulatory definition as closely, Congress did not call into question
the rest of that definition, which focused uniformly on aspects of
habitat that were analogous to the concept of ``essential features'':
```Critical habitat' means any air, land, or water area . . . and
constituent elements thereof . . . . The constituent elements of
critical habitat include, but are not limited to: Physical structures
and topography, biota, climate, human activity, and the quality and
chemical content of land, water, and air.'' 43 FR 870, 874-875 (Jan. 4,
1978). Moreover, areas outside the occupied geographical range are not
likely to be ``essential for the conservation of the species'' unless
they contain at least one of the features that are essential for
survival and recovery of the species.
We acknowledge that the reference to ``physical or biological
features'' in the definition of ``critical habitat'' only occurs in the
portion addressing occupied habitat. Nevertheless, given that Congress
intended that a higher standard apply to the designation of unoccupied
critical habitat than to the designation of occupied critical habitat,
the Services conclude that it furthers congressional intent to require
that those areas contain one or more of the physical or biological
features that are essential to the conservation of the
[[Page 45023]]
species. This interpretation retains the 1978 regulation's focus on
physical or biological features and furthers the objective Congress
referenced when it adopted the definition of ``critical habitat'' that
included both occupied and unoccupied habitat: Allowing for the
possibility of protecting areas that are reasonably certain to
contribute to the conservation of the species while limiting the
designation to areas where the species can survive.
We note that the Services have not previously taken the position
that unoccupied habitat must contain physical or biological features
that are essential to the conservation of the species. In fact, in
litigation FWS has sometimes argued the contrary. E.g., Weyerhaeuser
Co. v. U.S. FWS, No. 17-71 (S. Ct.); Bear Valley Mutual Water Co. v.
Jewell, 790 F.3d 977 (9th Cir. 2015). Although our previous
interpretation was reasonable, we have revisited our interpretation in
light of the recent Weyerhaeuser decision, which held that critical
habitat must be ``habitat.'' Given the ambiguity of the language at
issue, we may interpret it in any manner that is a reasonable
construction of the Act and consistent with controlling court
decisions.
Physical or Biological Features
We received a number of comments in response to our invitation for
recommendations on whether the Services should consider modifying the
definition of ``physical or biological features'' at 50 CFR 424.02. We
adopted this regulatory definition in 2016 to provide an interpretation
of this term, which appears in the Act's definition of ``critical
habitat,'' that was simpler and closer to the statutory text than the
prior approach we had followed since 1984. The prior approach had
involved identification of ``primary constituent elements,'' which is a
term not used in the statute and which we found led to significant
confusion.
We defined the term ``physical or biological features'' at a
general level in 2016, with the expectation that the Services would
first identify the physical or biological features that support the
species' life-history needs, and then narrow that group of features
down to a subset of those features that meet all the requirements the
statute imposes for features that could lead to a designation of
occupied critical habitat. Thus, once physical or biological features
had been identified, the Services would apply the language from section
3(5)(A) of the Act. That language layers on additional qualifiers,
including that the features ``are essential to the conservation of the
species'' and ``may require special management considerations or
protection.'' Further, the statute limits designation of occupied
habitat to ``specific areas'' on which one or more of those features
are found.
Many commenters expressed concern that the definition should be
more clearly limited only to those features that could, in the context
of the statutory requirements, actually lead to designation of a
specific area as critical habitat.
We have decided in the interests of clarity to make minor
modifications to the existing definition to provide that physical or
biological features essential to the conservation of the species are
the features that occur in specific areas and that are essential to
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.
We find that the changes we are making, which we detail below, are
helpful to emphasize the key statutory language and make clear that
only those features that are essential to the conservation of the
species can lead to a designation of occupied critical habitat
(assuming the requirement that the features may require special
management considerations or protection is also met). First, in order
to bring such clarity directly into the regulatory text, we have found
that we should identify the term more specifically. The full term used
in the statutory definition of occupied critical habitat is ``physical
or biological features . . . essential to the conservation of the
species,'' and therefore we are modifying the defined term to read
``physical or biological features essential to the conservation of the
species.''
Second, we incorporate the statutory requirement that essential
features be found on specific areas by qualifying ``features'' with the
new phrase ``that occur in specific areas.'' We note that the use of
the word `on' in the statute has been interpreted by the Services to
mean `in' when used in conjunction with specific areas. Therefore,
``features found on specific areas'' is synonymous with ``features
found in specific areas.'' Finally, instead of referring to the broader
group of features that ``support the life-history needs'' of the
species, and in keeping with further focusing the scope of the defined
term, we have added language specifying that these are the features
which are ``essential to support the life-history needs'' of the
species. We retain the rest of the language of the current definition,
which makes clear that, in identifying the essential physical or
biological features, the Services are to articulate those features with
the level of specificity previously associated with ``primary
constituent elements'' (an issue we discuss further in response to
comments, below).
Summary of Comments and Responses
In our proposed rule published on July 25, 2018 (83 FR 35193), we
requested public comments on our specific proposed changes to 50 CFR
part 424. We also sought 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 sought public comment on
whether we should consider modifying the definitions of ``geographical
area occupied by the species'' or ``physical or biological features''
in 50 CFR 424.02. We received several requests for public hearings and
requests for extensions to the public comment period. Public hearings
are not required for regulation revisions of this type, and we elected
not to hold public hearings or extend the public comment period beyond
the original 60-day public comment period. We received more than 65,000
submissions representing hundreds of thousands of individual
commenters. Many comments were nonsubstantive in nature, expressing
either general support for or opposition to provisions of the proposed
rule with no supporting information or analysis. We also received many
detailed substantive comments with specific rationale for support of or
opposition to specific portions of the proposed rule. Below, we
summarize and respond to the significant, substantive public comments
sent by the September 24, 2018, deadline and provide responses to those
comments.
Comments on Presentation of Economic or Other Impacts
Comment: Most commenters disagreed with removing the phrase
``without reference to possible economic
[[Page 45024]]
or other impacts of such determination'' and our proposal to present
the economic impacts of listing determinations. Many stated that this
change violates the intent of the Act and cited the Act and its
legislative history in support of their statements. Furthermore, a
commenter also stated that the Services are prohibited by the Act from
compiling and presenting economic data on the listing of a species as a
threatened or an endangered species, citing the conference report
language from the 1982 amendments to the Act: ``economic considerations
have no relevance to determinations regarding the status of species and
the economic analysis requirements of Executive Order 12291, and such
statutes as the Regulatory Flexibility Act and the Paperwork Reduction
Act, will not apply to any phase of the listing process.'' Many
commenters also questioned how the Services could compile such economic
information and not have it influence their decision whether to list a
species as a threatened or an endangered species, noting that the
statute and legislative history are clear that listing decisions are to
be based solely on the best scientific and commercial data available.
In contrast, several commenters stated that providing the economic
impacts of listing species shows transparency to the public and local,
State, and tribal governments, and could be useful for planning
purposes. Commenters noted that making this information available does
not mean that it will be used in the decisionmaking process, but it
would provide important information about the impacts of implementing
the Act.
Response: In this final rule, the Services remove the phrase
``without reference to possible economic or other impacts of such
determination.'' As discussed in the preamble to the proposed rule, we
acknowledge that the statute and its legislative history are clear that
listing determinations must be made solely on the basis of the best
scientific and commercial data available. Moreover, the listing
determination must be based on whether a species is an endangered
species or a threatened species because of any of the five statutory
factors. However, the Act does not prohibit the Services from compiling
economic information or presenting that information to the public, as
long as such information does not influence the listing determination.
Similarly, the statements Congress included in the legislative history
focus on ensuring that economic information would not affect or delay
listing determinations, but do not demonstrate an intention to prohibit
the Services from compiling information about economic impacts. For
example, the legislative history for the 1982 amendments to the Act
describes the purposes of the amendments using the following language
(emphases added): ``to prevent non-biological considerations from
affecting [listing] decisions,'' Conf. Rep. (H.R.) No. 97-835 (1982)
(``Conf. Rep.''), at 19; ``[listing and delisting] decisions are based
solely upon biological criteria,'' Conf. Rep., at 20; ``economic
considerations have no relevance to [listing] determinations,'' Conf.
Rep., at 20; ``to prevent [critical habitat] designation] from
influencing the [listing] decision,'' H.R. Rep. No. 97-567, at 12.
Because neither the statute nor the legislative history indicates that
Congress intended to prohibit the Services from compiling economic
information altogether, we removed the language at issue.
Comment: Some commenters stated that Congress intended that ``the
balancing between science and economics should occur subsequent to
listing'' and pointed to statements in the legislative history and in
the court's decision in Alabama Tombigbee Rivers Coal. v. Kempthorne,
477 F.3d 1250, 1266 (11th Cir. 2007): ``While `economic analysis' is
meant to `offer[ ] some counter-point to the listing of species without
due consideration for the effects on land use and other development
interests,' Congress wanted `to prevent [habitat] designation from
influencing the decision on the listing of a species,' and for that
reason intended that the `balancing between science and economics
should occur subsequent to listing through the exemption process.'
House Report at 12 (emphasis added); cf. Senate Report at 4.''
Response: The commenters' characterizations of the legislative
history and the court's decision in the Alabama-Tombigbee case are not
accurate. In that case, FWS listed two fish without concurrently
designating critical habitat, and the court concluded that Congress did
not intend to prohibit designating critical habitat subsequent to the
final listing decision. The court based its reasoning on the statute
and legislative history: The requirement to complete final listing
determinations within 1 year of listing proposals, the removal of the
requirement to propose critical habitat concurrently with proposed
listings, the addition of authority to make not-determinable findings
for critical habitat, and the quoted language in the legislative
history demonstrating Congress's intent to keep consideration of
economic factors (part of the critical habitat designation process)
separate from listing decisions. Thus, the court in that case was
analyzing not whether compilation of economic information must come
after the final listing decision, but whether compilation of economic
information during the critical habitat designation may come after
listing decisions. As a result, the decision in Alabama-Tombigbee and
the legislative history that the court quoted in that case are an
unsuitable comparison to the regulatory change the Services proposed.
And, more fundamentally, the mandate that the Secretary ``shall,
concurrently with making a [listing] determination . . ., designate any
habitat of such species which is then considered to be critical
habitat'' is qualified by the ``to the maximum extent prudent and
determinable'' language. Therefore, Congress authorized, but did not
require, the Services to designate critical habitat after the final
listing decision, and the Services continue to publish final critical
habitat designations (whenever designation is prudent) concurrently
with final listing decisions unless they are not determinable at the
time of listing.
Comment: Some commenters stated that the Services' comparison to
the Environmental Protection Agency's (EPA's) practice of conducting
cost-benefit analyses under the Clean Air Act's National Ambient Air
Quality Standards is irrelevant and pointed to differences between the
Act and the Clean Air Act. Specifically, the Clean Air Act directs the
EPA to compile economic information and has a follow-on process
(development of State implementation plans) that the economic
information informs. Other commenters stated that EPA's process for
completing a regulatory impact analysis (RIA) of the ambient air
quality standards under the Clean Air Act is not comparable to the
Services' process for listing a species under the Act. These commenters
stated that the costs associated with ambient air quality measures are
more easily estimated, and that costs associated with listing a species
do not necessarily have an economic value and assessing their ``worth''
or ``value'' would be very difficult. Some commenters also noted that
EPA typically does not ``make reference'' to the impact analysis in
their rules proposing or adopting air standards.
Response: While the Services recognize that there are differences
between the statutory frameworks of the Clean Air Act and the Act, the
EPA example illustrates that it is possible for an agency to compile
and present
[[Page 45025]]
economic data for one purpose while not considering it in the course of
carrying out a decision process where consideration of economic data is
prohibited. Nothing in the Act precludes the agencies from compiling or
disclosing information relating to the economic impacts for purposes of
informing the public. With regard to whether EPA ``makes reference'' to
its impact analyses in its rulemakings adopting national ambient air
quality standards, we note that the commenter's observation highlights
an ambiguity in the existing regulatory language that we are removing.
The commenter seems to equate ``reference'' to economic impacts to mean
``making reference to,'' i.e., ``citing,'' the information in agency
determinations or giving such considerations significance in the
decisionmaking. However, the term ``reference'' can be construed more
broadly as an instance of simply referring to something as a source of
information, i.e., to use or consult, which could be done in passing.
It is not our intention to ``make reference'' to economic information
in our listing determinations either by citing it or by considering it.
Comment: Some commenters noted that the Act does not expressly
authorize compiling or referring to economic information regarding
listing determinations. Some noted that it would not be appropriate to
attempt to do so to inform critical habitat designations (citing
Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1173 (9th Cir.
2010) (holding that analysis of the impacts of designation of critical
habitat is separate from analyzing impacts from listing)).
Response: The Act does not expressly authorize compiling economic
information, and the statute does not prohibit compiling the
information in order to inform the public. We rely on our inherent
authority to administer our programs in the interest of public
transparency in concluding that the Services have discretion to compile
such information regarding a particular listing if they choose.
Comment: Several commenters asserted that the Services' reasoning
for deleting the ``without reference to economic or other impacts of
listing'' phrase contradicts their interpretation and reasoning from
when they adopted the previous regulations following the 1982
amendments to the Act, which added the word ``solely.'' They cited to
the Services' proposed rule, which stated: ``Changes made by the
Amendments were designed to ensure that decisions in every phase of the
listing process are based solely on biological consideration, and to
prohibit considerations of economic or other non-biological factors
from affecting such decisions. . . . This new paragraph is proposed to
implement the requirement of the Amendments that determinations
regarding the biological status of a given species not be affected or
delayed by any consideration of the possible economic or other effects
of such a determination.'' 48 FR 36062 (Aug. 8, 1983).
Response: The preamble to the 1984 final rule originally adopting
the existing language is illuminating. After the language was proposed
in 1983, a commenter had recommended that the ``without reference to
possible economic or other impacts of such determination'' not be
included in the final language, but the Services responded that ``no
substantial change'' would result from adopting such a recommendation.
49 FR 38900, 38903 (Oct. 1, 1984). At the time, the Services felt that
including the language would more clearly express Congressional intent
and reflect the guidance in the Conference Report to the 1982
amendments, but also made clear their understanding that the legal
effect of the 1982 amendment adding the word ``solely'' was to insure
economic or other impacts were not ``considered'' by the decision-maker
``as part of the identification and listing process,'' id., and to
prevent such considerations from ``affecting decisions regarding
endangered or threatened status'' or being ``taken into account in
deciding whether to list a given species.'' Id. at 38900.
The statutory amendment requiring that listing determinations be
based solely on the best scientific and commercial data did not address
whether the Services could prepare information for the public on other
aspects of the implications of their decisions. On its face, the
statutory amendments merely required that the Services not take such
matters into consideration in determining whether a species meets the
definition of a threatened species or an endangered species. Some
members of the public and Congress have become increasingly interested
in better understanding the impacts of regulations including listing
decisions. Therefore, we find it is in the public interest and
consistent with the statutory framework to delete the unnecessary
language from our regulation while still affirming that we will not
consider information on economic or other impacts in the course of
listing determinations.
Comment: Several commenters opined that removing the existing
regulatory language ``without reference to possible economic or other
impacts of such determination'' would signal that the Services'
commitment to abide by the will of Congress to base listing decisions
solely on the best scientific and commercial data has weakened. Some
commenters suggested that the Services' motives were suspect given that
the regulation has been in place since 1984 with no indication that
implementation was problematic. Some claimed that removing the
regulatory language was inconsistent with the Supreme Court's holdings
in T.V.A. v. Hill, 437 U.S. 153 (1978).
Response: Removing the phrase does not signal any difference in the
basis upon which listing determinations will be made. As we have
affirmed in several instances through the proposed and final rules, the
Services understand and appreciate the statutory mandate to base
listing determinations solely on whether a species is an endangered
species or a threatened species because of any of the factors
identified in section 4(a)(1) using the best scientific and commercial
data available. Removing this phrase from the regulation, which could
be construed to not allow the Services to inform the public of the
economic implications of the Services' listing decisions, will not
violate any direction of Congress or holdings of the Supreme Court.
Rather, we are responding to strong and growing interest by some
members of Congress and the public for increased transparency regarding
the economic impacts of regulations. We note that the T.V.A. decision
was decided in the particular context of compliance with section 7
after a species had been listed and has no direct bearing on
interpretation of the Act's listing provisions. T.V.A. was also decided
before Congress amended section 4(a)(1) to include the term ``solely,''
so its holding has no relevance to the interpretation of this term in
the statute.
Comment: One commenter suggested that it was unnecessary to delete
the ``without reference to economic or other impacts'' language if the
Services' intent is merely to be able to inform the public of the
impacts of listing. The commenter agreed that Congress did not prohibit
doing so, as long as the listing determinations are not influenced by
such information, but noted that the Services had not pointed to any
situation where the existing language had presented a hurdle to
providing desired public information. Rather, the commenter asserted,
maintaining the existing language in the regulations would provide a
daily reminder to Service staff about the importance of cabining
consideration in listing
[[Page 45026]]
determinations to only the factors authorized under the Act.
Response: We believe that the removal of the phrase will more
closely align the regulatory language to the statutory language.
Because the prior language could be read to preclude conducting an
analysis merely for the purposes of informing the public, it is more
transparent to delete the phrase.
Comment: Many commenters asked for more information regarding when
the Services would conduct an economic analysis for listing
determinations, how the Services would estimate potential economic
impacts, what criteria would be considered, and whether economic
benefits of a particular species, which can be difficult to quantify,
would be considered. Some commenters expressed concern that cost/
benefit analyses would be skewed toward only accounting for potential
costs. Another commenter suggested our impacts analysis include an
analysis of the negative impacts to other species, as management for a
listed species could be a contributing factor for the endangerment of a
non-listed species.
Response: The Services are not creating a framework or guidelines
for how or when the presentation of economic impacts of listing,
reclassifying, or delisting species would occur as part of this
rulemaking. We remain committed to basing species' classification
decisions on the best available scientific and commercial data and will
not consider economic or other impacts when making these decisions.
Comment: Many commenters questioned how the Services would comply
with the statutory timeframes if we conducted economic analyses on the
listing determination. Commenters stated that the Services have not
explained how they will deal with this additional workload. They also
expressed concerns about the amount of time and effort it would take to
gather the necessary economic or other impact information and stated
that this added work would slow the number of listings that could be
done under current budget conditions. Such a delay, the commenters
stated, could make the Services more vulnerable to deadline litigation.
Response: The Services intend to comply with statutory, court-
ordered, and settlement agreement timelines for classification
determinations. The Services are equally committed to public
transparency in the implementation of the Act. Additionally, we
recognize the uncertainty of budget cycles and appropriated funding.
Therefore, we will continue to prioritize our work according to the
requirements of the Act and remain flexible to work on other actions as
funding allows.
Comment: At least one commenter suggested that the Services should
affirmatively declare that information regarding the economic or
related impacts of a potential listing can be considered in making
listing determinations, in light of the statutory reference to the best
scientific ``and commercial data'' available.
Response: We decline to do so.
Comment: Some commenters stated that even though the Act does not
expressly prohibit presenting information regarding economic impacts,
doing so will contravene Congress' intention that listing decisions
should be purely a biological question immune from political concerns.
They asserted that presenting analysis of economic impacts even merely
to inform the public would open the Services to pressure to avoid
listings where there are significant social, political, or economic
implications. They noted that the provisions regarding designation of
critical habitat expressly authorize consideration of economic and
other impacts, demonstrating that Congress consciously chose not to
authorize such for listing decisions. They cited the decision in
Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988), as
an example where the court set aside a decision not to list a species
on the grounds that it was ``arbitrary and capricious or contrary to
law,'' predicting that such litigation and adverse results would be
more common if the proposed change is finalized.
Response: Congress did not authorize the Services to consider the
economic impacts of listing decisions. Therefore, the Services have
expressly confirmed their intention that all listing determinations
must be based solely on the best scientific and commercial data
available. While the commenter is correct that the Hodel decision was
unfavorable for FWS, resulting in remand of the determination not to
list the northern spotted owl, the basis for the decision was the
court's view of the sufficiency of the scientific support and
explanation for the FWS' decision, rather than a direct consideration
of whether economic considerations had impermissibly played a role in
the determination.
Comment: The Services cannot rely on the Regulatory Flexibility Act
(RFA) as providing authority for presentation of economic impact
information of listing determinations because the Services have taken
the position that the RFA is not applicable to listing determinations.
See, e.g., Endangered and Threatened Wildlife and Plants: Final Rule to
List the Taiwanese Humpback Dolphin as Endangered Under the Endangered
Species Act, 83 FR 21182, 21186 (May 9, 2018).
Response: We do not rely on the RFA as a basis for presentation of
economic impacts of classification determinations (H.R. Conf. Rep. No.
97-835, at 20 (1982)). The Services may elect to provide a presentation
of economic impacts of particular listing decisions to inform the
public of those costs. The Act does not preclude the compilation and
presentation of those impacts to the public.
Comments on the Foreseeable Future
Comment: Commenters stated that if the intended goal of the
proposed foreseeable future framework is to continue to follow a 2009
opinion from the Department of the Interior (M-37021) for
interpretation of ``foreseeable future,'' as the Services indicate in
the proposed rule, then there is no need to make the proposed revision
to the regulations. Some commenters recommended that the Services
simply base the ``foreseeable future'' on the best available data and
not proceed with the proposed regulation, which does nothing to clarify
how the Services will determine the foreseeable future.
Response: Although listing determinations must be based on the best
available scientific and commercial data, the Services also must be
able to determine the likelihood of a species' future state, and in
some circumstances the best available data may not be sufficient to go
beyond speculation. In these cases, the data are insufficient to allow
the Services to foresee the future threats and the species' response to
those threats so as to be able to determine that a species is likely to
become endangered in the future. To give meaning to the phrase
``foreseeable future,'' the Services are providing a consistent
explanation of this term, and we find that it is appropriate to do so
in our implementing regulations. While the two Services have both
applied the principles articulated in a 2009 opinion from the DOI
Office of the Solicitor when interpreting the phrase ``foreseeable
future,'' including a foreseeable future framework in our joint
implementing regulations gives the public more transparency, provides
the Services with a shared regulatory meaning for this important term,
and makes it clear that both agencies will adhere to the same
framework.
Comment: Numerous commenters supported the Services' effort to
clarify
[[Page 45027]]
the meaning of the term ``foreseeable future''; however, most of these
commenters also stated that one or more of the terms used in the
proposed ``foreseeable future'' framework, such as ``potential,''
``probable,'' ``reasonably,'' ``reasonably determine,'' and
``reliable,'' are vague, unclear, or could be misinterpreted.
Commenters specifically requested that one or more of these terms be
clarified or removed, because they give the public little understanding
of what criteria the Services will use to evaluate the foreseeable
future. Various commenters were concerned that the proposed foreseeable
future language could allow for speculation, prevent or undermine the
Service's ability to rely on the best available science, result in a
less streamlined process, or invite political interference with listing
decisions.
Several commenters recommended that the terms ``potentially'' and
``reasonably'' be omitted, because those terms could be misread and
dilute the statutory standard of ``likely.'' A commenter stated that
``reasonably'' could be misconstrued to suggest a reasonable basis is
sufficient, rather than the affirmative finding of ``likely'' actually
required by the Act. Another commenter noted that a standard that
relies on a mere ``potential'' for future conditions to pose a danger
invites speculation about future circumstances, and, as the Services
acknowledge, they should ``avoid speculating as to what is
hypothetically possible.'' 83 FR at 35196, July 25, 2018.
Other commenters recommend specific edits, such as replacing
``reasonably determine'' with ``scientifically determine,'' and removal
of the term being defined (i.e., ``foreseeable future'') from the
proposed definition of ``foreseeable future.''
Response: We appreciate the many comments regarding the wording of
the proposed ``foreseeable future'' framework. We agree with the
comments that including the term ``foreseeable future'' as part of the
definition of this term is somewhat circular and therefore not
appropriate, so we have revised the language to remove this circular
phrasing. We have also removed the phrase containing the word
``potentially'' as explained further in response to the comment below.
However, we are not defining the terms ``reliable'' and ``reasonably
determine,'' because these terms are commonly used and should be
interpreted as having their everyday meaning. The regulatory framework
is consistent with how these terms are used in the M-Opinion (M-37021,
January 16, 2009), which states, in a footnote, that ``the words
``rely'' and ``reliable'' [are used] according to their common, non-
technical meanings in ordinary usage. Thus, for the purposes of this
memorandum, a prediction is reliable if it is reasonable to depend upon
it in making decisions.'' As a concluding statement, the M-Opinion also
states that ''reliable'' does not mean ``certain''; it means sufficient
to provide a reasonable degree of confidence in the prediction, in
light of the conservation purposes of the Act.'' We find that these
statements make it clear how the Services intend to interpret these
terms and conclude that further attempts to define words within the
``foreseeable future'' framework are not necessary.
Lastly, we find that the framework's term ``reasonably'' does not
dilute or establish an incompatible, lower standard for the affirmative
finding of ``likely'' required by the statute. The foreseeable future
framework acknowledges that we must make a `reasonable determination,'
based on the best available data. In other words, in the context of
determining the foreseeable future, our conclusions need not be made
with absolute certainty, but they must be reasonable, and must not be
arbitrary or capricious. We also decline to replace the phrase
``reasonably determine'' with ``scientifically determine,'' because the
foreseeable framework does not in any way alter the requirement that
the Services rely on the best available scientific and commercial data
when interpreting the foreseeable future and listing species as
threatened. We fully intend to continue to apply the best available
data when making conclusions about the foreseeable future.
Comment: Several commenters stated that the foreseeable future
should not be based on general ``conditions'' and requested that we
clarify that the word ``conditions'' refers to threats and species'
responses to those threats. Commenters stated the statute does not
allow for broader consideration of any ``conditions'' that are not
encompassed within the five factors defined by Congress. Another
commenter also stated that the use of the term ``conditions'' in the
context of the proposed regulatory framework suggests that the Services
will only examine the environmental conditions affecting a species
(i.e., the threat factors) and not the corresponding response of the
species when determining the species' future population status. The
commenter noted that it is well established that a species cannot be
listed merely because there is an identified threat (e.g., Ctr. for
Biological Diversity v. Lubchenco, 758 F. Supp. 2d 945, 955 (N.D. Cal.
2010); Defenders of Wildlife v. Norton, 258 F.3d 1136, 1143 (9th Cir.
2001)). The commenter stated that by referencing conditions
``potentially posing a danger of extinction,'' the Services are not
incorporating the appropriate level of certainty with respect to
whether the ``conditions'' will occur and the corresponding
relationship to the future status of the species. The Services are also
raising the possibility that a ``benefit of the doubt'' standard could
erroneously be applied during the listing determination (Bennett v.
Spear, 520 U.S. 154, 176 (1997); Greater Yellowstone Coal., Inc. v.
Servheen, 665 F.3d 1015, 1028 (9th Cir. 2011)).
Response: As some commenters point out, the Act requires listing
determinations to be based on whether a species is an endangered
species or threatened species because of one or more of the five
factors in section 4(a)(1), and it is the Services' long-established
practice to refer to these factors in listing determinations. The
``foreseeable future'' framework in these final regulations does not
supplant those five factors or the statutorily required status review.
Rather, use of the word ``conditions'' was intended to capture the full
range of possible natural and manmade threats that may be affecting a
particular species and that would be considered under section 4(a)(1).
However, we now find it is more clear to simply use the word
``threats,'' rather than ``conditions,'' and thus have made this
revision to the final regulatory text. In addition, after further
consideration of the proposed language, we find that the phrase
``potentially posing a danger of extinction'' could be interpreted as
implying that the Services would rely on a ``benefit of the doubt''
standard for determining the existence of a threat or consider the mere
possibility of threat occurring sufficient when assessing a species'
future status. This was not our intention, and we acknowledge that the
statutory requirement to use the ``best scientific and commercial data
available'' is intended ``to ensure that the Act not be implemented
haphazardly, or on the basis of speculation or surmise.'' See Bennett
v. Spear, 520 U.S. 154, 176-77 (1997) (construing substantially
identical requirement in section 7 context). Thus, we have removed this
phrase from the final regulatory language to eliminate this source of
confusion.
Comment: A large number of comments addressed the Services' use of
the word ``probable'' within the proposed foreseeable future framework.
Several commenters stated that the use of the word ``probable''
introduces more
[[Page 45028]]
ambiguity to an already ambiguous framework and that it is unclear, for
example, what degree of probability and certainty are required to be
considered ``probable.'' Several commenters specifically requested that
the Services clarify that the term ``probable'' means ``likely'' in
this particular context, and others requested use of the word
``likely'' in place of ``probable'' to reflect the statutory standard.
Some commenters stated that the word ``probable'' implies that the
Services will rely on too low of an evidence threshold and that the
word ``probable'' should be replaced with ``clear and convincing.''
The majority of commenters who addressed this issue stated that use
of the word ``probable'' would set too high of a bar for threatened
listings, provides the Services greater latitude to reject listings,
and contravenes Congress's intent that the Act ``give the benefit of
the doubt to the species'' (H.R. Rep. No. 96-697, at 12 (1979)). The
commenters also argued that the proposed regulation would be
inconsistent with the statements expressed in the M-Opinion (M-37021,
January 16, 2009). Multiple commenters indicated specifically their
view that the proposed framework is much narrower than that expressed
in the 2009 M-Opinion, which does not use the term ``probable,'' and
that the Services did not adequately explain their reasoning for
departing from the standards expressed in the M-Opinion. Commenters
further noted that the ``probable'' standard would undermine the
Secretary's duty to list species that are primarily threatened by
climate change. Others stated that it would prevent the application of
the Act's requirement to rely on the ``best available scientific and
commercial data'' and that the Services cannot interpret the
foreseeable future in a way that sets an arbitrary threshold for how
much science is required before a species can be listed as threatened.
Multiple commenters recommended that if the Services wish to adopt a
definition in line with the M-Opinion, they should adhere more closely
to the 2009 Solicitor's opinion or publish it as a draft joint policy
for notice and comment, which would accord with the Services' past
practice of publishing joint policies to interpret the Act's key
phrases such as ``significant portion of the range'' and ``distinct
population segment.''
Some commenters provided discussions of other reasons why use of a
``probable'' standard would be inappropriate. A group of commenters
stated that use of the term ``probable'' implies that the Services may
only consider threats that have a 50 percent or greater chance of
occurring during a particular time period and that the Services have
not explained how they would reliably quantify the percentage of
likelihood of threats to species. These commenters also noted that it
would be unlawful and arbitrary to discount several threats that may
be, say, 40 percent likely but that would be extremely dangerous to the
species and that such an approach would be contrary to the Services'
longstanding precautionary approach. Cf. 48 FR 43098, 43102-43103
(Sept. 21, 1983) (FWS guidelines for reclassification from threatened
species to endangered species status based on magnitude and immediacy
of threats). Other commenters pointed out the only way to assess what
is ``probable'' requires quantitative methods such as statistical
prediction and modeling. Several commenters stated that this approach
is flawed in that it does not take into account the severity of the
threats or the different types or levels of uncertainty associated with
various threats.
Lastly, we received comments suggesting that because the Services
used both terms--``likely'' and ``probable''--in the proposed
regulatory framework, the inconsistent terminology suggests that
different meanings are contemplated. Other comments noted that, to the
extent that the Services intend ``probable'' to require any greater
likelihood than the statutory term ``likely'' from the definition of
``threatened species'' at 16 U.S.C. 1532(20), it would be an
impermissible interpretation of the statute, and that neither
``likely'' nor ``probable'' can permissibly be interpreted to require
the probability of extinction is ``more likely than not.''
Response: For maximum clarity and consistency with the statutory
language, this final rule uses ``likely'' in place of ``probable'' in
the relevant sentence of the provision describing the ``foreseeable
future.'' We are making this change to avoid any unintended confusion.
We further clarify that ``likely,'' in turn, means ``more likely than
not.'' This interpretation is supported by case law (e.g., Alaska Oil
and Gas Association v. Pritzker, 840 F.3d 671, 684 (9th Cir. 2016);
Trout Unlimited v. Lohn, 645 F. Supp. 2d 929, 944 (D. Or. 2007); WWP v.
FWS, 535 F.Supp.2d 1173, 1184 & n.3 (D. Idaho 2007). Our foreseeable
future framework does not depart from the standards expressed in the
2009 M-Opinion that forms the basis for the framework (M-37021, January
16, 2009); rather, it is fully consistent with that opinion.
Our replacement of the term ``probable'' with ``likely'' within the
foreseeable future framework should also eliminate concerns that the
Services are impermissibly raising the bar for listing species as
threatened to something beyond a threshold of ``likely'' or allowing
that classification determinations could be based on anything other
than the ``best scientific and commercial data'' standard. We must rely
on the ``best scientific and commercial data,'' available, but that
data may or may not indicate whether something is likely. To determine
an event is likely, we must be able to determine that it is more likely
to occur than not after taking the ``best scientific and commercial
data'' into account. We will continue to apply the best available
scientific and commercial data in making our listing determinations as
required under the Act.
We appreciate the recommendation to develop and publish a more
detailed policy based on the M-Opinion. However, at this time, we
expect that the regulatory framework that we revise in this final
regulation after considering public comment, in combination with the
supporting text of the existing M-Opinion that further explains the
background and reasoning for this longstanding approach, will provide
adequate guidance to the Services.
Comment: Some commenters stated that when concluding that a species
should be listed, the Services must specifically find ``that both
future threats and the species' responses to those threats are
probable.'' In contrast, other commenters questioned the Services'
proposal to assess the foreseeable future based on both ``future
threats'' and the ``species' responses.'' These commenters said this
would involve a combined evaluation of both time and impact and instead
recommended that the Services separate the concept of foreseeable
future from its analysis of the potential threats that the Service can
concretely determine will affect the species during that time period.
Others cautioned that we should evaluate the species' response at the
population level because threats faced by one segment of the population
do not necessarily result in a negative response by the population as a
whole.
Response: This regulation takes the position that ``the foreseeable
future extends only so far into the future as the Services can
reasonably determine that both the future threats and the species'
responses to those threats are likely.'' This approach is consistent
with the M-Opinion (M-37021, January 16, 2009). It is not sufficient
for us to determine that a particular threat is likely; we must
[[Page 45029]]
also conclude that the manifestation of that threat is likely to result
in a response from the species. By ``species' response'' we mean a
change in the species' status after encountering the adverse effects of
the threats. We cannot separate the forward-looking analysis of threats
from the forward-looking consideration of how those threats are
expected to affect the species. To do so would essentially prevent an
evaluation of the species' status in the foreseeable future.
With respect to consideration of threats operating in the
foreseeable future that affect only a portion or some individuals
within the species (i.e., species, subspecies, or DPS) being evaluated
for listing, we agree with the commenter that during a status review we
must consider how that threat is affecting the particular species at a
population or higher level. Listing decisions are ultimately based on a
synthesis of all relevant data regarding the status of the species and
the threats, taking into consideration how those threats may vary
spatially or temporally across individuals or populations of that
species.
Comment: Several commenters referred to the Council on
Environmental Quality's (CEQ's) implementing regulations for the
National Environmental Policy Act (NEPA regulations) at 40 CFR 1502.22,
which present discussion of reasonably foreseeable significant adverse
impacts. The commenter noted that the NEPA regulations do not define
``reasonably foreseeable,'' but requested that the Services adopt a
regulatory definition for foreseeable future rather than apply a
subjective, case-by-case approach for defining foreseeable future.
Commenters specifically requested we adopt the following ``accepted
legal definition'' or something similar: ``A consequence is reasonably
foreseeable if it could have been anticipated by an ordinary person of
average intelligence as naturally flowing from his actions.'' The
commenters stated that a definition along these lines would inject
reasonable consideration of common sense into decisions that have such
profound impacts on the human environment.
Response: As requested by the commenters, we reviewed the
regulations at 40 CFR 1502.22, which address situations in which a
Federal agency is evaluating reasonably foreseeable significant adverse
effects on the human environment in an environmental impact statement
and there is incomplete or unavailable information. The CEQ NEPA
regulations, as noted by the commenter, do not provide a definition for
the term ``reasonably foreseeable.'' Overall, we did not find these
regulations useful in refining or revising the foreseeable future
framework. The Act has a very different purpose and imposes different
mandates on the Services than NEPA. Whereas NEPA directs agencies to
engage in a process to consider a broad range of potential impacts as a
means to guide the agencies in choosing among possible actions, the Act
directs specific actions and imposes a mandate that decisions be based
on the best available information. We have not adopted the commenters'
proposed alternative definition.
Comment: Many commenters stated that they supported the Services'
attempt to clarify the term ``foreseeable future'' in the proposed
regulations, and many agreed with the proposed qualitative framework in
which the foreseeable future would be determined on a case-by-case
basis using the best available scientific and commercial data for the
particular species. However, some of these commenters stated that the
foreseeable future should still be defined in terms of a specific
period of time or range of years (e.g., 20-25 years) so that the
reasonableness of this particular aspect of threatened listings can be
assessed in a meaningful way by the public. In contrast, many other
commenters stated that the same time period should be applied as the
foreseeable future for all species, because the information on
foreseeability is not species dependent. We also received a specific
recommendation to use a definition for the foreseeable future that is
already in place and used by many indigenous people--the next seven
generations of human life.
Response: Using a predetermined number of years or period of time
(e.g., seven generations) as a universally applied ``foreseeable
future'' for all listings would be arbitrary and would preclude the
Services from relying on the best available data. Although some threats
might manifest according to certain consistent timeframes, the species'
likely response to those stressors is uniquely related to the
particular plant or animal's characteristics, status, trends, habitats,
and other operative threats. Furthermore, when multiple threats affect
a particular species, these threats may have synergistic effects that
are also unique to that particular species. Therefore, we do not intend
to specify a particular timeframe to be applied universally to all
species. However, we will continue to provide information regarding the
particular timeframes used when evaluating threats and a species' risk
of extinction to the extent possible in all listing decisions.
Providing such information facilitates the public's ability to evaluate
the reasonableness of the Services' listing decisions.
Comment: Multiple commenters recommended that the Services adopt a
more quantitative approach in determining the foreseeable future to
reduce uncertainty and litigation and increase transparency and
consistency. Many of these commenters also recommended adopting certain
quantitative approaches, such as: Defining risk of extinction and
uncertainty in a manner similar to approaches used by The
Intergovernmental Panel on Climate Change; identifying timeframes over
which certain threats (e.g., wind-energy development) or certain
population trends for specific taxonomic groups (e.g., salmonids) are
foreseeable; and using previous listing decisions to identify any
consistent patterns in the time horizons used for certain types of
threats or taxa.
Response: When quantitative methods are available and consistent
with best practices, we use them along with other available data and
methods. However, the `best available data' standard under the Act does
not necessarily require use of quantitative methods and data, and we
are not specifying particular quantitative methods in the regulations
we are finalizing in this document.
Comment: Several commenters stated that to assess the danger of
extinction, and thus be able to list a species as threatened, the
Services must first identify the extinction threshold for that species
and the likelihood of reaching that point in the future. Commenters
noted that NMFS has explained previously that ``[a] species is
`threatened' if it exhibits a trajectory indicating that in the
foreseeable future it is likely to be at or near a qualitative
extinction threshold below which stochastic/depensatory processes
dominate and extinction is expected.'' (NMFS, Interim Protocol for
Conducting Endangered Species Act Status Reviews at 12 (2007).)
Commenters also stated that in cases where the Services lack the data
or ability to identify future population trends, assess the impact of
population declines on the species' overall population status, or
establish an extinction threshold, it is not possible to determine or
foresee the likelihood of future extinction for purposes of the listing
determination. A commenter noted that Congress explained that the
threatened classification was included to give effect to the
Secretary's ability to
[[Page 45030]]
forecast population trends (S. Rep. No. 93-307 at 3 (July 1, 1973)).
Response: The Services do not need to identify an extinction
threshold or the likelihood of reaching that threshold in the future in
order to determine whether a species meets the definition of a
threatened species. Rather than wait for such data and analyses to
become available, the Services are required to apply the best available
data to make a determination whether the species meets the definition
of a ``threatened species'' or an ``endangered species'' as a result of
any of the factors outlined in section 4(a)(1) of the Act. Secondly,
predicting extinction thresholds requires certain data regarding
population parameters and environmental variables, and it requires the
use of appropriate models. Modeling extinction thresholds is often not
possible with the nature or type of data available.
Comment: A commenter recommended that the Services formally define
``in danger of extinction'' and apply the definitions and analysis in
the remanded memorandum that FWS filed with the United States District
Court for the District of Columbia in In re: Polar Bear Endangered
Species Act Listing and Sec. 4(d) Rule Litigation, No. 08-mc-00764-
EGS, Doc. No. 237 (Dec. 22, 2010) (``Polar Bear memo'').
Response: FWS developed the Polar Bear memo after the court in that
case held that the definition of ``endangered species'' under the Act
is ambiguous and ordered the agency to provide on remand an additional
explanation for the legal basis of the agency's decision to list the
polar bear as a threatened species. To develop the Polar Bear memo, FWS
surveyed the history of the agency's listing determinations in light of
the text of the Act and the applicable legislative history and
encapsulated FWS's overall, general understanding of the phrase ``in
danger of extinction'' as ``currently on the brink of extinction in the
wild.'' Polar Bear memo at 3. FWS noted that it does not employ its
general understanding in a narrow or inflexible way and that a species
need not be likely to become extinct to be ``on the brink of
extinction.'' Id. The memo also described four categories of
circumstances in which FWS had found species to be ``currently on the
brink of extinction in the wild.'' Id. at 4-6.
Although the Polar Bear memo is not binding and does not have the
force of law, see Alliance for the Wild Rockies v. Zinke, 265 F. Supp.
3d 1161, 1180-81 (D. Mont. 2017), it remains a statement by FWS as to
what may constitute ``in danger of extinction.'' FWS stated explicitly
in the memo that it applied only to the listing decision for the polar
bear. Polar bear memo at 1 n.1. FWS's general understanding, the
historical survey of its listing decisions in the memo, and the
associated discussion in the Polar Bear memo can still serve as a
useful starting point for analyzing whether a species is in danger of
extinction.
As the Polar Bear memo noted, FWS has not promulgated a binding
interpretation of ``in danger of extinction,'' due in part to the
contextual and fact-dependent nature of listing determinations. Id. at
3. The Services continue to conclude that codification of FWS's general
understanding of ``in danger of extinction'' is not necessary at this
time.
Comment: We received comments expressing disagreement with the
Services' proposed framework for foreseeable future in that it allows
for different ``foreseeable futures'' depending on the particular
threat being considered. Instead, the commenter recommended that the
Services select a single number of years or range of years in which to
determine the future status of the species. The commenter stated that
if the Services adopt varying foreseeable futures for the different
listing factors for a single species, they are conceivably assessing
whether that species is likely to become an endangered species based on
fewer than all the listing factors. While the Act allows the Service to
list a species based on a single factor, it does not allow the Service
to disregard any of the factors in making the holistic determination
whether a species has ``become an endangered species.'' In addition,
the listing factors assess both positive and negative impacts on the
status of the species. So being unable to assess certain listing
factors at the end of a long foreseeable future for other listing
factors means the Service is ignoring potentially beneficial
conditions, for example, the existing regulatory mechanisms.
Response: We appreciate the commenter's concern and clarify in this
response that, although there may be different degrees of
``foreseeability'' with respect to particular threats and their impacts
on the species, we ultimately base listing determinations on
consideration of all of the available data and a review of all of the
section 4(a)(1) factors. As stated in the M-Opinion, ``Although the
Secretary's conclusion 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.'' (M-37021, January 16, 2009). The Services have
been following this approach for nearly a decade, and courts have found
it to be reasonable and appropriate (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). The approach reflects the reality that
there is a variation among the kinds and levels of information the
Services typically have available when assessing specific threats. The
approach allows the Services to comprehensively consider all that is
known about the threats acting on the species, and the listing
determination itself is based on a synthesis of that information. No
information is disregarded merely because it relates to a time horizon
that is different from that associated with other threats. As a matter
of practice, the Services consider applicable data regarding both
negative (e.g., poaching) and positive (e.g., enforcement efforts to
reduce poaching) factors when making their listing determinations and
will continue to do so under the ``foreseeable future'' framework being
finalized in this rule.
Comment: A commenter stated that the discussion included in the
proposed rule on data and use of models is unclear. The commenter
specifically pointed to the statements in the proposed rule that the
foreseeable future can extend only as far as the Services can
reasonably depend on the available data to formulate a reliable
prediction and avoid speculation and preconception, and that ``in cases
where the available data allow for quantitative modeling or projection,
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.'' The commenter said this seems to be contradictory,
because if there is enough information to provide a reliable prediction
that avoids speculation, based on quantitative modeling or projection,
it seems that the Services should consider that as a ``foreseeable
future.'' The commenter said this phrasing seems to indicate that
models may show specific time periods, but that it can still be
ignored. The commenter said all data and information should be reviewed
and interpreted, including modeling.
Response: We agree that, if available and reliable, quantified
studies or analyses should not be ignored, and our proposed rule was
not meant to imply otherwise. Our intention with the particular
language quoted by the
[[Page 45031]]
commenter was to indicate that the existence of a quantitative model or
projection will not necessarily determine the foreseeable future in all
cases or situations. A particular model or analysis may in fact be used
by the Services to determine the period of time that can be considered
the foreseeable future. However, this will not always be the case. In
some instances, a model's time horizon may fall short of how far into
the future the Services can foresee; and in other instances, a model
may extend out to a point at which the model's predictions become
speculative or highly uncertain. In both cases, the time period covered
by the particular model would not dictate the time period for what the
Services consider to be ``foreseeable.'' In addition, even if a model
is considered reliable, it may not be possible to limit the time
horizon considered in the status review based on what one particular
model or analysis indicates as a reasonable period of time. When we
review a species' status over the foreseeable future, we must take all
available data into account. In other words, while we fully agree that
reliable predictions based on quantitative models should not be
ignored, those quantitative models may not in themselves establish what
constitutes the ``foreseeable future'' for the entire species or every
threat. They may simply reflect possible, but not likely, outcomes.
Comment: Multiple commenters stated that foreseeable-future
timeframes are very uncertain with respect to forecasted climate-change
impacts and that additional clarifications or modifications to the
proposed ``foreseeable future'' framework are needed. Various
commenters stated that there is too much uncertainty associated with
foreseeable futures that extend too far (e.g., 100 years) and that the
foreseeable future should be shorter (e.g., 10 years, 25-30 years).
Commenters, citing Congressional reports, stated that Congress intended
the foreseeable future to be in the near future. Commenters provided
various suggested approaches or parameters that would dictate how far
the foreseeable future could extend, such as using three generation
lengths for long-lived species, and considering threats in light of the
biology of the species (e.g., long generation versus short generation
lengths). Commenters stated that if predictions are too speculative,
then the Services cannot give the species the benefit of the doubt and
must acknowledge that listing the species is not warranted. Lastly,
commenters requested that NMFS align its procedures for determining
foreseeable future with those of the FWS, particularly regarding
incorporation of uncertainty in climate models and other elements.
Response: We acknowledge that levels of uncertainty can increase
the further into the future that climate-change impacts are projected.
The magnitude of this increase in uncertainty over time will vary from
case to case depending on the available data for the particular issues
at hand. Nevertheless, we must carefully consider the available data
and the levels of uncertainty, make a reasoned conclusion, and explain
that conclusion in a transparent way in our proposed and final listing
determinations. Our regulatory framework for the ``foreseeable future''
does not undermine these requirements.
For these reasons, we do not agree that a predetermined period of
years is appropriate in order to minimize uncertainty when making
threatened species listing determinations. Including such a time limit
in the foreseeable future regulation would be arbitrary and would
preclude the Services from meeting the best-available-data standard
required under section 4 of the Act. Furthermore, as noted in the M-
Opinion, Congress purposefully did not set a 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. Thus, we do not intend to specify one in the
regulatory framework being finalized in this document.
We conclude that it is generally appropriate to consider the
foreseeable future in light of the particular species' biology. This
principle is explicitly embedded in the regulatory framework for the
foreseeable future, which states: ``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.''
We agree that listing decisions cannot be based on speculation. As
stated in our proposed rule, ``the foreseeable future can extend only
as far as the Services can reasonably depend on the available data to
formulate a reliable prediction and avoid speculation and
preconception.'' 83 FR 35195, 35196, July 25, 2018. Our ``foreseeable
future'' framework is explicit in this respect, because it states that
foreseeable future extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats ``are likely.'' However, we note that as
long as that standard is met, we are not required to wait to make
listing determinations until better or more-concrete science is
available, and that the Act requires that we base our decision on the
best available data. See, e.g., San Luis & Delta-Mendota Water
Authority v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (``best
available'' standard does not require perfection or best information
possible) (citing Building Indus. Ass'n v. Norton, 247 F.3d 1241, 1246
(D.C. Cir. 2001)); Alaska v. Lubchenco, 825 F. Supp. 2d 209, 223
(D.D.C. 2011) (same); Maine v. Norton, 257 F. Supp. 2d 357, 389 (D. Me.
2003) (noting that the ``best available'' standard ``is not a standard
of absolute certainty''). By the same token, we acknowledge that the
precautionary principle does not apply to listing determinations, so we
do not list species merely as a precaution if there is not reliable
evidence indicating that the species meets the definition of a
``threatened species.'' E.g., Center for Biological Diversity v.
Lubchenco, 758 F. Supp. 2d 945, 955 (N.D. Cal. 2010) (finding the
``benefit of the doubt'' concept does not apply in the listing
context); Trout Unlimited v. Lohn, 645 F. Supp. 2d 929, 947 (D. Or.
2007).
Lastly, as the two Services agree to these principles and have
worked cooperatively to develop this rule, we find that the two
Services have already largely aligned their approaches. Any apparent
differences in outcomes stem from species-specific considerations
rather than from having different interpretations of the statute.
Comment: A few commenters stated that, although a uniform
``foreseeable future'' time period should not be applied to all
species, the Services must identify the period of foreseeability for
each operative threat and the species' response to that threat. A
commenter also stated the Services should be specific regarding what
time period they are using for a particular decision and that, absent
that information, their decisions will be extremely unclear,
unpredictable, and difficult to review.
Response: We agree that status reviews and listing determinations
should transparently discuss the time horizons over which any analyses
were conducted, threats were evaluated, and/or species' responses were
projected. However, it is not always possible or even necessary in
every circumstance to define the ``foreseeable future'' as a particular
number of years. As stated in the M-Opinion: ``In some cases,
quantifying the foreseeable future in terms of years may add rigor and
transparency to the Secretary's analysis
[[Page 45032]]
if such information is available. Such definitive quantification,
however, is rarely possible and not required for a `foreseeable future'
analysis.'' (M-37021, January 16, 2009). Ultimately, although the
Secretary has broad discretion to determine what is foreseeable, this
discretion is exercised based on the best scientific and commercial
data available and is subject to review in accordance with the
applicable standards of the Act and the Administrative Procedure Act.
Comment: Multiple commenters stated that the Services must modify
the definition of the ``foreseeable future'' such that healthy, viable
species are not listed as threatened species. Another commenter stated
that the Services should only rarely list currently viable, stable
species as threatened so that their resources can be more appropriately
focused on species already in need of conservation. Commenters also
stated that the Services should not list healthy species, like polar
bears and ice seals, based on speculation or on the possibility of a
future threat. Multiple commenters stated that Congress intended that
only species experiencing current threats that are affecting their
population numbers may be considered for listing and stated that a
species must already be experiencing the effects of a threat and be
``depleted in numbers'' to be considered for listing as threatened.
Commenters also asserted that the Ninth Circuit's interpretation in
Alaska Oil & Gas Assoc. v. Pritzker, 840 F.3d 671, 683 (9th Cir. 2016)
was an illogical result of the potential application of the Act to
every species based on the possibility that climate-related threats may
pose some effect at some remote future time. Commenters noted this
Congressional intent is also reflected by the definition of
``conservation'' in section 3 of the Act, which they noted clearly does
not apply to a healthy species that is not being affected by present
threats to its existence because it would not be possible to ``bring''
that species ``to the point'' where the protections of the Act ``are no
longer necessary.''
Response: We agree that we cannot list a species as threatened due
to speculation about future declines of that species; however, it does
not follow that listing a species as threatened under the Act requires
that a decline has already begun. If the best available scientific and
commercial data allow us to make a reliable prediction (as opposed to
speculating) that a not-yet-begun decline makes it likely that the
species will become in danger of extinction, then that species meets
the definition of a threatened species. In other words, the Services
need not wait until a species has reached a particular tipping point if
the best available data indicate the threats the species currently
faces will result in it likely becoming an endangered species within
the foreseeable future. Furthermore, the Services cannot ignore the
threats a species faces even if the species has not yet begun to
decline. Some species may also exhibit nonlinear changes in their
population levels. For example, some species are vulnerable, due to
demographic factors affecting their abundance, productivity, or other
reasons, to sudden ecological regime shifts, which can cause population
collapse even though population declines had not been previously
evident.
Lastly, we do not agree with the suggestion that the definition of
``conservation'' in section 3 of the Act reflects an intention by
Congress that only species with declining abundances be listed under
the Act. The Act defines ``conserve,'' ``conserving,'' and
``conservation'' as ``to use and the use of all methods and procedures
which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to this
Act are no longer necessary.'' A species that is properly listed due to
reliable predictions of future declines can benefit from conservation
methods and procedures that will forestall or ameliorate that decline.
If successful, such conservation measures will eventually no longer be
necessary, the species will no longer be ``likely to become an
endangered species,'' and the species can be delisted. Listing a
species as threatened due to future declines that are foreseeable is
thus completely compatible with the definition of ``conservation.''
Comment: Multiple commenters expressed concern that under the
proposed ``foreseeable future'' framework the Services would consider
climate change as a hypothetical and not a ``probable'' threat or would
otherwise ignore the best available science on climate change.
Commenters stated that under the proposed definition of ``foreseeable
future,'' the Services could arbitrarily cite climate change as a
justification to avoid species protections if none of the specific
projections reaches the 50 percent ``probability'' threshold due to
uncertainty stemming from environmental variability. They further
stated that the regulations should instead be explicit that the best
available science regarding the ``foreseeable future'' must include
climate-change and ocean-acidification projections as well as any
studies regarding what those projections will mean for both specific
species and larger ecosystems. The commenters stated that the Services
must consider the associated ranges of probabilities and uncertainties
as best science even though they do not present a single likelihood of
any particular impact. Commenters further noted that oftentimes there
is high confidence in the directionality of a climate trend or impact
(e.g., sea-level rise), even when there is lower confidence in the rate
or ultimate magnitude of the change, and that under the proposed
definition of ``foreseeable future'' it would be possible to dismiss
such projections by focusing on the uncertainty in rate instead of the
certainty in trend.
Response: Consistent with our longstanding practice, in all
classification decisions we will consider the best available science
and evaluate impacts to the species that may result from changing
climate within the foreseeable future. Also consistent with our
standard practice and per the Act's section 4(a)(1) factors for
listing, we will consider what the particular climate-related
predictions mean in terms of impacts on the species as well as impacts
on the larger ecosystem. In reviewing and applying the best available
data in our foreseeable future framework, we will also consider the
ranges of probabilities and uncertainties associated with the available
data, and we will not arbitrarily dismiss reliable aspects of various
climate change predictions or projections (e.g., directionality) even
if other aspects (e.g., rate of change) have greater levels of
uncertainty. We will take all of the available climate change data into
consideration when making a reasonable determination regarding the
foreseeable future and the status of the species in the foreseeable
future.
Comment: Numerous commenters expressed concern regarding how the
Services will address uncertainty and reliability under the proposed
foreseeable future framework when models are used. Commenters noted
that models used to project future conditions are often flawed by the
inclusion of too few factors, or the exclusion of factors that may be
unknown or not fully known, and that models can be manipulated.
Therefore, commenters recommended that explanatory language should
state that models must be identified as such and data inputs used to
construct them must be listed, and that model outputs do not constitute
data in and of themselves. Other commenters stated that models often
cannot provide reliable
[[Page 45033]]
predictions of future conditions at narrow geographical scales or on
short time horizons sufficient to support specific conclusions about
the future condition of species or habitat at precise locations. The
commenters specifically noted that, in withdrawing their proposed rule
to list the wolverine as threatened, the FWS recognized the significant
disagreement and uncertainty regarding the accuracy of localized
climate change projections for a species' habitat or population
persistence (79 FR 47522, 47533; August 13, 2014). In contrast, other
commenters stated the Services can rely on models even if they are not
perfect, and that, under the proposed approach, species will
impermissibly be left without protection until the science is developed
enough to establish with ``reasonable certainty'' that they will be in
danger of extinction.
Response: We agree that, when models are applied in a status
review, we should provide detailed, explanatory language to describe
the particular data sources and inputs used to construct the model. We
will also strive to explicitly describe the assumptions, limitations,
and relevant measures of uncertainty associated with the particular
models. However, it is important to note that models can often provide
useful and robust predictions even in the absence of certain variables
or data. Thus, the Services may consider, among other sources of
scientific data, models that are not ``perfect'' or do not indicate a
``reasonable certainty'' of a species being in danger of extinction.
Indeed, nothing in the framework we have set forth for determining the
``foreseeable future'' we adopt is designed or intended to require
``reasonable certainty'' of a species being in danger of extinction in
the foreseeable future before it may be listed as threatened. Models
are analytical tools that can be applied to better understand complex
datasets. We will continue to use various types of analytical tools, as
appropriate and as transparently as possible, when conducting status
reviews. We conclude that the requirement to use the ``best available''
data means that we cannot insist that information must be free from all
uncertainty, and further agree that the Act's protections should not be
withheld until a species' status has declined to the point that the
future risk of extinction is certain.
With respect to the comment regarding the degree of spatial and
temporal precision of models, we agree that models will not always
support specific conclusions about the future condition of species or
habitat at fine scales or in precise locations. As stated previously,
in reaching any conclusions regarding the foreseeable future or the
extinction risk of a particular species, we will apply model results
only to the extent that we have determined they are the best available
data and they are relevant.
Comment: A few commenters stated that ``professional judgment'' is
ambiguous terminology and there is no clear indication on when use of
professional judgment is considered appropriate. Some commenters
expressed concern that subjectivity and opinion would take the place of
data where gaps exist in the available science, and one commenter noted
that the use of best professional judgment does not relieve the
Services of their statutory duty to make listing determinations
``solely on the basis of the best scientific and commercial data
available.'' One commenter recommended adopting guidance requiring that
experts provide their credentials demonstrating their expertise and
that their detailed recommendations be made available to the public.
Response: These comments refer to a discussion in the proposed rule
regarding the types of data that may inform what is ``foreseeable.''
Specifically, we stated that, 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.'' (83 FR 35193, July 25, 2018).
This discussion was intended to clarify that the data underlying
any ``foreseeable future'' could take several forms and that it would
not, for example, exclusively depend on quantitative analysis.
Professional judgment is not used in place of the best available
scientific or commercial data; it is used when there are gaps in such
data that require scientific interpretation to address. We note that
when professional judgment is applied, it should be done transparently
and in accordance with applicable standards.
Comment: Multiple commenters raised concerns regarding what
constitutes the ``best available scientific and commercial data'' in
establishing a probable foreseeable future and requested we further
clarify the term and its use. Several commenters stated it is
imperative that the data considered during the listing process be made
available to the public, and that any assumptions made are disclosed in
a transparent manner. One commenter stated that the FWS has
inconsistently applied standards for what constitutes the best
available science and suggested that, to avoid interference with the
application of the best available data, the words ``the Services''
should be replaced with ``the Services' biologists.'' We also received
a request to insert the words ``scientific and commercial'' into the
phrase ``best available data'' within the foreseeable future regulatory
text. Lastly one commenter noted that the proposed rule fails to
provide clarifying language regarding what constitutes ``commercial
data'' and expressed concern that this could open the door to an over-
reliance on the use of potentially biased and non-peer-reviewed data
for listing and delisting decisions.
Response: Multiple requirements have already been established to
guide the Services' use and application of the best available data and
provide sufficient guidance on this topic. For example, the Information
Quality Act (IQA, Pub. L. 106-554), agency policy directives for
implementing the IQA (e.g., NMFS Policy Directive 04-108, June 2012,
and FWS Information Quality Guidelines, June 2012; and the Office of
Management and Budget's (OMB's) Final Information Quality Bulletin for
Peer Review (M-05-03, December 16, 2004) guide the Services in ensuring
and maximizing the quality, objectivity, utility, and integrity of
information (including statistical information) disseminated by the
Services. In addition, the Services comply with the policy memorandum
issued on February 22, 2013, by the Office of Science and Technology
Policy regarding public access to federally funded research results.
That memorandum establishes a set of principles to guide Federal
agencies in providing access to and archiving results of Federal or
federally funded research. Lastly, as a matter of practice, the
Services' status reviews are subjected to both peer and public review
before they are relied upon in a final listing determination. Overall,
we find these existing requirements sufficient to ensure the quality,
integrity, and accessibility of the data used by the Services in
support of their listing decisions.
To ensure status reviews and listing decisions are transparently
based on the best available scientific and commercial data, we fully
disclose any assumptions made. The Services consider this to be a
standard best practice. Additionally, the Services make available cited
[[Page 45034]]
literature that is used in listing rules and that are not already
publicly available, taking into account issues of intellectual property
law, copyright, and open access.
We decline to specify in our regulations that the Services'
biologists make any determination of what constitutes the best
available data. The proposed wording change is both unnecessary and in
conflict with the statute. In practice, it is the Services' biologists
that gather, review, and synthesize the best available data, but as the
statute clearly requires, the Secretary must make the ultimate
determination regarding whether species meet the definition of a
threatened or endangered species.
Likewise, we decline to make the requested insertion of the words
``scientific and commercial'' into the regulatory framework for the
foreseeable future, which we had originally omitted for conciseness and
readability. The addition of these words is unnecessary, because the
Services are held to the requirement to rely on the best ``scientific
and commercial data'' under section 4(b)(1)(A) of the Act. The
regulatory foreseeable future framework does not alter this statutory
requirement in any way.
We also decline to add clarifying language to the regulations
regarding the term ``commercial data,'' and we disagree that the
absence of such language may lead to reliance on potentially biased and
non-peer-reviewed data for listing and delisting decisions. The term
``commercial data'' is used in the statute and, as clearly indicated by
the legislative history, this term refers to trade data such as
commercial harvest and landings data. See H.R. Rep. 97-657 (H.R. Rep.
No. 567, 97th Cong., 2nd Sess. 1982, 1982 U.S.C.C.A.N. 2807, 1982 WL
25083) at 20. While those data are not subject to a peer review process
equivalent to the process applied to published scientific literature
articles, the statute clearly allows the Services to consider them.
When doing so, the Services apply their own assessment of the nature,
quality, and limitations of the data, and use the data only to the
extent appropriate. Furthermore, when commercial data are used, the
Services discuss their application and interpretation of the data
transparently and subject that interpretation to both peer and public
review.
Comment: Some commenters noted that, while they generally support
the proposed changes to the regulations regarding the foreseeable
future, the general framework for making threatened determinations
would benefit from additional specific criteria. In particular, they
requested that the framework require that the best available scientific
and commercial data demonstrate that listing the species as threatened
would have a measurable beneficial effect.
Response: The suggested change is not consistent with the statute.
Section 4(a)(1) sets out the factors by which the Secretaries may
determine a species is threatened or endangered. These factors do not
include a category that allows for or requires consideration of the
beneficial effect of the listing. Therefore, we have no basis for
requiring that a species listing have some measurable benefit in order
for that species to receive the protections of the Act.
Comment: Some commenters stated that the Services should provide
additional clarification on how they will address future projections
associated with a species' life-history characteristics and demographic
factors, as well as divergent projections associated with each threat-
projection timeframe. The commenters stated that the Services should
further explain how species' responses will be predicted and should
explicitly state that the adaptability and resilience of a species to
each operative threat will also be considered. The commenters
specifically noted that adaptability and resilience are important
considerations when contemplating the risk of extinction in relation to
loss of range. Another commenter stated that, while they appreciate
that the proposed foreseeable future framework takes into account
considerations such as the species' life-history characteristics,
threat-projection timeframes, and environmental variability, they
recommended adding additional considerations, such as changes in
climatic characteristics, phenology, geographic ranges, and home range
sizes of some species, which can be particularly informative in the
face of global changes to climate for which the only reference
condition is the past.
Response: As we indicated in the proposed rule, how we analyze and
predict species' responses to threats will vary from case to case. For
example, in data-rich cases, population viability analyses may be used
to predict species' responses, whereas in data-poor situations, we will
likely conduct a qualitative risk assessment. In all cases, species'
likely responses to particular threats will be evaluated using the best
data available for that species.
We can and do take factors such as climate, adaptability,
resilience, phenology, and home-range sizes into account when assessing
a species' status into the foreseeable future. It is our longstanding
practice to take such types of information into account, as
appropriate, when conducting status reviews. The foreseeable future
framework refers to several categories of considerations (i.e., ``such
as life-history characteristics, threat-projection timeframes, and
environmental variability'') as examples of relevant factors that will
inform how far into the future the foreseeable future extends for a
particular species. The framework does not exclude other relevant
considerations. Thus, we conclude that additional revisions to
foreseeable future framework are not necessary.
Comments on Delisting
Comment: Several commenters agreed with the proposal that the
criteria for determining whether a species qualifies for protection
under the Act are the same whether the context is a potential decision
to delist or the initial decision whether to list a species. Numerous
commenters stated that the standard for delisting a species should be
higher than for listing a species; thus, the Services have a higher
burden in proving that a listed species has recovered such that it can
be delisted than they have in listing the species in the first
instance. Further, some stated that under the precautionary principle
embodied in the Act, scientific uncertainty must be considered
differently in the context of delistings and downlistings versus
initial listings. Many commenters stated that the precautionary
principle embodied in the Act necessarily means that, once a species is
listed, a subsequent reversal of that conclusion must be specifically
supported by evidence that explains why the species no longer meets the
definition associated with its prior listing.
Response: 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 approach 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. The Services
determine whether species meet the definitions of a ``threatened
species'' or an ``endangered species'' based on the best scientific and
commercial data available. We must consider the best available
scientific data the same way regardless of whether it is in the context
of delistings and downlistings versus initial listings. This
interpretation is
[[Page 45035]]
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. Therefore, we
have finalized the proposed change.
Comment: Some commenters stated that the only ``standard''
articulated in the proposed regulations is that the 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.'' Further, they stated that
a decision to delist a species is not made against a blank slate.
Rather, it is made in light of a prior factual determination by the
Service. Therefore, the Services must explain and factually
substantiate the departure from that prior determination. In making a
new evaluation of a species' status, the Services cannot base their
decision only on the available scientific and commercial data but must
also consider their prior determination and substantiate the reasons
for departing from their prior conclusions. An agency must provide ``a
more detailed justification'' when it makes a decision that ``rests
upon factual findings that contradict'' its prior findings. A failure
to do so violates the Administrative Procedure Act.
Response: The Act defines ``threatened species'' and ``endangered
species'' and directs the Services to make determinations regarding
whether a species is threatened or endangered based upon the best
available scientific and commercial data. This determination requires
the Services to take into account all material in the record, including
prior findings and the discussion of facts supporting those findings,
and discuss how the newly available information has led to different
conclusions in a transparent manner.
The underlying obligation of the Services to articulate a rational
connection between their decisions and facts in the record is the same
regardless of the context of the determination being made (listing or
delisting). Of course, where there is substantial information in the
record that a listed species is likely to face a continuing threat,
this responsibility is particularly acute. See Greater Yellowstone
Coalition, Inc. v. Servheen, 665 F.3d 1015, 1030 (9th Cir. 2011)
(holding that, in particular circumstance where strong evidence of
continuing threat to species was documented in the record, the Act's
policy of ``institutionalized caution'' required that FWS explain why
delisting the species was appropriate in face of the uncertainty
regarding the extent of the threat).
Comment: Several commenters stated that the removal of recovery as
one of the reasons for delisting is in direct conflict with the main
stated purpose of the Act and will allow the Services to delist species
before they are recovered. They also stated that the Services have
failed to adequately explain the purpose of removing the word
``recovery'' from Sec. 424.11(d)(2). They noted the only reasoning
provided in the proposed rule was to align with statutory definitions
of endangered and threatened species. The Services did not explain how
removing this word creates better alignment.
Response: We note that the Act does not use the term `recovery' or
`recovered' when referring to removing a species from the list. Rather,
a species is removed from the list when it does not meet the definition
of an endangered species or threatened species. Furthermore, the
Services do not agree that this change will allow species to be
delisted before they are recovered. The Services will continue to use
the best scientific and commercial data available to make
determinations as to whether species meet the definition of an
endangered species or a threatened species. If a review of a listed
species indicates a species does not meet either definition, the
Services will propose the species for delisting. Likewise if, following
a review, a listed species is determined to still meet the definition
of an endangered or a threatened species, the Services would not
propose the species for delisting. Thus, this revision in no way
conflicts with the intention of the Act.
The Services removed the reference to ``recovery'' from Sec.
424.11(d)(2) because the existing regulatory language, which was
intended to provide examples of when a species should be removed from
the lists, has been, in some instances, misinterpreted as establishing
criteria for delisting. Although we are removing the word ``recovery''
from this section, the language will continue to include species that
have recovered, because recovered species would no longer meet the
definition of either an ``endangered species'' or a ``threatened
species.'' However, the Services reiterate that the goal of the Act and
the Services is to recover threatened and endangered species.
Comment: Some commenters objected to the removal of recovery from
Sec. 424.11 and stated the proposed rule appeared to circumvent
recovery plans and improperly make section 4(f) of the Act meaningless.
Additionally, they stated that removing this provision disconnects
recovery from species recovery plans that in turn guide State-level
actions and are effective means to address recovery. They argued the
Services should include a discussion of recovery and recovery plans as
part of this change and consider if protections are in place to support
continued recovery of the species into the future.
Response: This change does not make recovery meaningless. Section
4(f) requires the development of recovery plans for most listed
species. Recovery plans are a key component in conservation planning
and provide an important roadmap for a species' recovery. This
provision does not undermine the importance or effectiveness of
recovery plans. Recovery plans will continue to guide the Services'
recovery efforts.
Comment: A commenter expressed concern that the proposed addition
of new paragraph (e) to Sec. 424.11 would circumvent the requirement
that delisting decisions must be made based on the best science and
data available at the time of the decision. The commenter argued that
the proposed revisions would allow for delisting based solely upon
achieving any recovery criteria identified at the time of listing, even
if this occurs prior to the attainment of the plan's recovery criteria
and without regard to current information.
Response: The Services are required to make delisting
determinations based upon the best scientific and commercial data
available at the time the determination is made. When the Services
determine whether a species meets the definition of a ``threatened
species'' or ``endangered species,'' they will rely upon the best
available data. The Services will continue to review all relevant
information when making a delisting determination, including whether
the recovery criteria have been achieved. Recovery plans provide
[[Page 45036]]
important guidance to the Services, States, and other partners on
methods of minimizing threats to listed species and measurable
objectives against which to measure progress towards recovery, but they
are not regulatory documents. A decision to revise the status of a
species or remove a species from the List is ultimately based on an
analysis of the best scientific and commercial data available to
determine whether a species is no longer an endangered species or a
threatened species, regardless of whether that information differs from
the recovery plan.
Comment: Some commenters suggested that the Services clarify that
delisting decisions are not contingent upon the satisfaction of a
recovery plan. Others requested that the proposed revision at 50 CFR
424.11 also explicitly specify that species should be considered for
delisting when the original recovery objective (i.e., target population
goal) in the species' recovery plan is met.
Response: The Services conclude that further clarification in this
regard is not necessary. As noted in the proposed rule, the Services'
intention is to clarify that the standard for whether a species merits
protection under the Act should be applied consistently whether the
context is potential listing or potential delisting. Thus, delisting
decisions are not contingent upon the satisfaction of a recovery plan
for that species. This interpretation 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. The Services will delist a species
when, based upon the best available scientific and commercial data,
they determine the species no longer meets the definition of a
threatened or endangered species.
Comment: Several commenters stated that removing the requirement
that the data substantiate that the species is no longer endangered or
threatened lowers the bar for delisting a species and will promote
delisting species before they are actually recovered. Several
commenters stated that the Services' proposed revisions to drop the
requirement that data ``substantiate'' any delisting decision would
strip listed species of the Act's protections and contravene the policy
of ``institutionalized caution'' Congress adopted in enacting the Act.
Tenn. Valley Auth. v. Hill, 437 U.S. at 194.
Response: The Services do not agree that removing this language
will lower the bar for delisting species and allow them to be delisted
before they have recovered. As required by the Act, the Services make
determinations as to whether species warrant listing, including
decisions to remove species from the lists of threatened or endangered
species, based on the best scientific and commercial data available.
The Services will not proceed with a delisting determination unless the
best scientific and commercial data support that conclusion. Because
the statutory standard for delisting is whether a species meets the
definition of a threatened or endangered species based on the best
scientific and commercial data available, it is not necessary to have a
separate requirement that the data substantiate that the species is no
longer threatened or endangered. Therefore, removing the requirement
that the data substantiate that the species is no longer endangered or
threatened does not contravene the policy of institutionalized caution
because, before making a determination to delist a species, the
Services are already required to assess the best scientific and
commercial data available about the status of the species, threats it
may face, the adequacy of regulatory mechanisms, and the effectiveness
of any conservation efforts.
Comment: Some commenters stated that the Services inappropriately
propose to be allowed to delist a species by simply reinterpreting data
that were used to make the original listing determination.
Response: In proposing this change, the Services attempted to
address any ambiguities in the regulatory text by simplifying this
provision and returning to the underlying statutory standard. In order
to delist a species, the Services must evaluate the best scientific and
commercial data available at the time a determination to delist a
species is made. They must review all information that is available and
may not limit their inquiry to the interpretation of data that were
used to make the original listing determination. However, if the best
available data supports reinterpreting the data used in the original
listing determination, the Services may do so.
Comment: Several commenters stated that the proposed revision to
the regulation addressing delisting based on extinction provides no
rationale for weakening the informational requirements imposed by the
current regulations. They stated that the language describing the
period of time that must pass before a species can be delisted due to
extinction should be retained because it allows for consistent
implementation of the Act and provides clarity to the public.
Additionally, some commenters stated that the proposed changes stating
that evidence may include survey information is inconsistent with the
precautionary approach that should be used when protecting imperiled
species. Others stated that criteria should be developed for
determining ``extinction'' or defining the term ``extinct'' for
purposes of removing a species from the list due to extinction.
Response: The Services modified the text in this section because
the Services' 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). That decision may include, among other things,
survey data and information regarding the period since the last
documented occurrence or sighting of the species. We will make each
determination on a case-by-case basis, considering the species-specific
biological evidence for species extinction. We find it is more
consistent with the statute to acknowledge this overarching obligation
that all classification decisions must use the best available
scientific and commercial data than to highlight only certain kinds of
information as the current regulatory provision does. A determination
that a species is ``extinct'' will be based on the best scientific and
commercial data available, as required under section 4(b)(1)(A),
according to the common understanding of the term.
Comment: Some commenters supported the provision related to
delisting due to extinction, but requested that the Services add
another section to this provision that would state that, when a species
that was extinct in one area is reintroduced into an area, the
reintroduced species can be managed to protect the new ecosystem that
developed in the absence of the extinct species.
Response: The Services decline to add the proposed section. There
are other
[[Page 45037]]
provisions of the Act, such as section 10(j), that govern the
introduction of populations back into areas where they no longer exist,
and that issue is therefore beyond the scope of the regulations
implementing section 4 of the Act.
Comment: Some commenters requested the Services add the term
``extirpated'' in addition to ``extinct.'' They suggested this addition
would be useful in cases where a particular species may be extirpated
from a region or local area without being fully extinct from an
adjoining State or region.
Response: The Services decline to add ``extirpated'' to this
section of the regulations. This provision of the regulations, and the
Services' modifications to this section of the regulations, govern
factors considered in delisting species. Extirpation of a population of
a listed species from a particular area is not the equivalent of a
species being extinct nor a valid reason to remove the species from the
lists of threatened and endangered species.
Comment: Several commenters opposed the clarification that listed
entities would be delisted if they do not meet the definition of
``species'' because they believe it is an effort to give the Services
additional tools not to list species in need of listing and protection
of the Act. Others argued that the proposed language would allow the
Services to provide less or no protection to some populations within a
larger species. And still others argued that, while it is true that new
information could suggest a currently listed species is not a taxonomic
species or subspecies, new science is not always definitive. Those
commenters stated the proposed language could lead the Services to move
prematurely to delist a species based on new information that may be
inadequate, or later proved to be inaccurate, without any evaluation of
whether the particular population in question is a threatened or
endangered distinct population segment (DPS) of the new taxonomic
subspecies or species into which the new evidence places it.
Response: This provision merely reflects the text and intent of the
Act, i.e., only ``species,'' as defined in section 3 of the Act, may be
listed under the Act. If the Services determine that a group of
organisms on the list does not constitute a ``species,'' then the
listing is contrary to the Act, and the Services may initiate
rulemaking procedures to delist the entity. We note that the Services
may choose to consider whether there is an alternative, valid basis for
listing some or all of the listed entity before finalizing a delisting.
For example, in some circumstances, for vertebrate species, if the
constituent vertebrate populations constitute DPSs, they may be
separately listed. This does not preclude the Services from considering
whether a valid ``species,'' comprising some or all of the organisms
covered by the delisted entity, warrants listing as a threatened or
endangered ``species.''
This provision would apply if new information, or a new analysis of
existing information, leads the Secretary to determine that a currently
listed entity is not a taxonomic species, subspecies, or a DPS. When,
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 should be removed from the list because it no longer
meets the Act's definition of a ``species.'' In other instances, new
data could indicate that a particular listed DPS 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 qualify for listing under the Act.
Contrary to one of the comments, this provision would not allow
some populations to be delisted while others remain listed if the
combination of populations still meets the definition of a ``species''
and that species meets the definition of ``threatened species'' or
``endangered species.'' The courts have made clear that, before
delisting any DPS of a listed species, the Services must consider how
the delisting will affect other members of the listed entity. E.g.,
Humane Soc'y of the U.S. v. Zinke, 865 F.3d 585, 602 (D.C. Cir. 2017)
(holding that the delisting of the Western Great Lakes DPS of the grey
wolf was invalid because FWS had failed to consider ``whether both the
segment and the remainder of the already-listed wolves would have
mutually independent statuses as species''); Crow Indian Tribe v.
U.S.A., 343 F. Supp. 3d 999, 1014 (D. Mont. 2018) (delisting of the
Greater Yellowstone Ecosystem population of grizzly was invalid because
FWS had failed to consider how delisting would affect the remainder).
The Services agree that new scientific data or information is not
necessarily more definitive, and we acknowledge that scientific and
taxonomic data are always evolving. Delisting a species following a
determination that it no longer meets the definition of a species will
only be undertaken after a rigorous review of the best available
scientific and commercial data, and a proposed and final rulemaking
process.
Comment: Some commenters opposed the provision regarding delisting
when an entity does not meet the definition of a ``species,'' because
they are concerned the change would allow the Services to retroactively
reanalyze original listing information and decide that a species,
evolutionarily significant unit, or DPS no longer requires protection
based on political factors.
Response: The Services' determination that a species no longer
meets the definition of a species must be based on the best available
scientific and commercial data. Even under the current regulations
(current 50 CFR 424.11(d)(3)), the Services have the ability to delist
when the entity is found not to qualify as a listable entity. The
Services do not intend the regulatory language change to allow for
listing determinations to be based on anything but the statutory
standard.
Comment: Some commenters opposed delisting a species when it does
not meet the definition of a ``species'' because they believe it will
increase litigation and result in continuous listings, delistings, and
relistings by focusing on how a species is defined rather than the
species' status.
Response: Under the current regulations, we have authority to
delist entities that do not meet the definition of a ``species'' under
the Act, so the language does not change our requirements in this
regard. Acting consistently with the Act in this way allows the
Services to focus their resources on recovering species that are
threatened or endangered. If a species, subspecies, or DPS no longer
meets the Act's definition of a ``species,'' it should be removed from
the list so the Services can focus their resources on species most in
need.
Comment: Some commenters opposed delisting based on a listed entity
not meeting the definition of ``species'' because they argued many
taxonomic changes have been made in recent years based solely on DNA
information and analysis. They argued that, while DNA analysis is a
good tool, it has limitations and is still subjective in regard to
distinct species because our taxonomic system is subject to human
error.
Response: As stated above, new information is not always
definitive. The Services' determinations identifying species,
subspecies, and DPSs are not typically made solely on the basis of DNA
analyses. Determinations that a listed entity does not meet the
definition of ``species'' will be based on the best available
scientific and commercial data.
[[Page 45038]]
Comment: Some commenters stated that delisting an entity when it
does not meet the definition of ``species'' would allow the Services to
forgo considering whether the taxonomic subspecies or species of which
the Service now believes the entity to be a part must now be considered
threatened or endangered in a significant portion of its range based on
the status of that population.
Response: This provision will not allow the Services to delist one
or more populations of a species or subspecies without considering
whether the species or subspecies is threatened or endangered
throughout all or a significant portion of its range. As discussed
earlier, the courts have made clear that, before delisting a population
of a listed species, the Services must consider how the delisting will
affect other members of the listed species.
Comment: Several commenters objected to delisting a species when it
does not meet the definition of ``species'' because they believe it
would result in leaving highly imperiled populations at risk of a gap
in the Act's protections merely because of a taxonomic
reclassification.
Response: Delisting a species when it does not meet the definition
of a ``species'' under the Act would not leave imperiled populations
that otherwise would merit listing at risk. This provision refers to
taxonomic reclassifications. If a particular entity no longer meets the
Act's definition of a species, that entity would not qualify for
listing under the Act.
Comment: Some commenters opposed delisting a species when it does
not meet the definition of ``species'' because they believe it is
unnecessary. They stated this type of taxonomic information would come
out in a species assessment using the five factors. They argued the
taxonomic proposal is duplicative, in that it singles out one issue for
specific treatment, when it is already covered by the broader language
of Sec. 424.11(e)(2). Further, some stated that, in addition to the
regulatory change, the Services should also consider adopting objective
standards and criteria for the Services' taxonomic determinations.
Response: The Services conclude that this provision provides a
helpful clarification of the basis for delisting a species.
Specifically, if an entity is not a ``species'' within the meaning of
the Act, then, by definition, it cannot be a ``threatened species'' or
``endangered species.'' The Services will make their determinations
based on the best available scientific information for determining
whether a group of organisms is a species, subspecies, or DPS. The
Services joint DPS Policy (61 FR 4722, February 7, 1996) already
provides sufficient criteria and standards when determining whether
vertebrate species are DPSs. In order to be designated a DPS,
vertebrate populations must be discrete and significant to the taxon as
a whole.
Comment: Some commenters were concerned that recovery actions that
mix genes of a DPS with other populations of the taxon, or
significantly modify the distribution of the DPS, may inadvertently
undermine protections of the Act. That outcome may occur if the
proposed rule allows for the interpretation that a DPS for which
recovery actions have modified genetic makeup or distribution is no
longer discrete or significant and therefore does not meet the species
definition required for protection under the Act.
Response: We understand the commenter's concern; however, if a
population or set of populations qualify as a DPS under the two
criteria set out in the DPS Policy it is extremely unlikely that a
situation such as described by the commenter would arise, and it is not
the Services' intention to create such situations. Secondly, if,
through the process of recovery, a listed DPS begins mixing or
interbreeding with other populations of that taxon such that it no
longer met the DPS criteria, the Services could still evaluate whether
that altered or larger entity is a ``species'' at risk of extinction
and that warrants listing under the Act. As with any listing and
delisting determination, the Services would base any such determination
on the best available scientific and commercial data and after
conducting a status review of the particular ``species.''
Comment: Several commenters stated that the reference to data in
error as a reason for delisting should be retained because it is
important for the public to know when an error has been made. Other
commenters stated its removal is unnecessary and was not justified by
the Services. They also requested the following be added as a fourth
fact for delisting as 50 CFR 424.11(e)(4): ``The best scientific or
commercial data available when the species was listed, or the
interpretation of such data, were in error.''
Response: The Services have determined this provision is
unnecessary because the other delisting factors being finalized in this
rule, including whether the listed entity meets the definition of
``species'' or a determination that a species meets the definition of a
``threatened species'' or ``endangered species,'' adequately capture
instances in which a species was listed due to an error in the data, or
in the interpretation of that data, at the time of the original
classification. Furthermore, our delisting rules will clearly contain
the rationale and justification for our proposed and final actions; if
a species were listed in error, these rules would provide the requested
transparency to the public. The Services had also rarely invoked the
prior Sec. 424.11(e)(3) due to confusion about when it should apply,
so adopting a more simple structure that tracks the foundational
statutory standards is appropriate and will result in more transparent
and fulsome explanations of precisely why particular species are no
longer found to warrant protection under the Act. We have therefore
decided not to make the requested regulatory text change.
Comment: Some commenters stated that the revised Sec. 424.11(e)
creates an expedited delisting process whereby a 5-year status review
automatically leads to delisting. They suggested the proposed changes
would trigger that automatic process for delisting, but not for
uplisting a species.
Response: Section 424.11(e) does not create an expedited or
automatic delisting process following a 5-year review. Under the
revised regulations finalized in this document, as is the case
currently, no changes to a species' listing status will be made except
through a rulemaking that complies with the notice and comment
procedures of the Act. This is true regardless of whether a species is
considered for uplisting, downlisting, or delisting.
Comment: Some commenters suggested the introductory clause of
proposed Sec. 424.11(e) be revised to read, ``The Secretary will
delist a species if the Secretary, based on the best available
scientific and commercial data available, including any information
received in accordance with procedures set forth in Sec. 424.15 or
Sec. 424.16(c), finds that:'' They believe this change will help
clarify that the public will continue to have a role in reviewing,
commenting on, and providing information concerning proposed
delistings.
Response: The additional language suggested by the commenter is not
necessary. The procedures set forth in Sec. 424.15 and Sec. 424.16(c)
relate to providing the public notice and an opportunity to review
proposed regulations and other decisions such as identification of
candidate species. As noted above, any determination by the Services to
list, delist, or reclassify a species must be effectuated through the
[[Page 45039]]
rulemaking process, which provides the public the right to review and
comment on those determinations before they are finalized.
Comment: Some commenters suggested the Services should expressly
permit a species to be delisted in part of its range because doing so
would allow the Services to better tailor the protections of the Act to
a species' conservation needs by removing unneeded protections while
retaining protections in other parts of its range.
Response: The Act authorizes the Services to list ``species,''
which includes species, subspecies, or DPSs. With regard to vertebrate
species, the Services may determine there are DPSs within a listed
species or subspecies. The Services may then assess the status of those
DPSs. Should any of those DPSs be determined not to meet the definition
of a threatened or endangered species, they could be delisted under the
Act after the Services consider how delisting the DPS would affect the
listed species or subspecies. This approach permits the Services to
better tailor protections and prohibitions of the Act to the listed
DPSs that warrant protection.
Comment: Some commenters stated the delisting process should be
streamlined to allow for easier removal of species once documentation
shows they are no longer threatened or endangered.
Response: The process that must be followed to delist or reclassify
a species is the same as must be followed in listing a species. The
Services are required to assess the status of a species based on the
best available scientific and commercial data, applying the five
factors, and engaging in the mandatory notice-and-comment rulemaking
procedures as noted above.
Comment: Some commenters requested that ``will'' be replaced with
``shall'' in the first sentence of Sec. 424.11(e) to ensure the
Services abide by the strict requirements of the Act.
Response: The Services have made this change to make this provision
consistent with the other paragraphs of Sec. 424.11.
Comment: Some commenters stated that the Services should add
conservation plans and agreements as a factor to consider in delisting
decisions.
Response: The Services consider conservation plans and agreements,
as well as all other conservation efforts, in their decisions to list,
reclassify, or delist a species. Section 4(b)(1)(A) of the Act requires
the Secretary to make determinations solely on the basis of the best
scientific and commercial data available after conducting a review of
the status of the species and after taking into account those efforts,
if any, by any State or foreign nation, or any political subdivision of
a State or foreign nation, to protect such species when determining
whether a species meets the definition of a ``threatened'' or
``endangered'' species.
Comment: Some commenters requested the regulatory text for the
proposed delisting factors at 50 CFR 424.11(e) address these issues by
being revised to add ``reclassify.'' They requested that the text would
read: ``The Secretary will delist or reclassify a species if the
Secretary finds that, after conducting a status review based on the
best scientific and commercial data available. . . .''
Response: As noted in the heading of 50 CFR 424.11, this section
addresses factors for listing, delisting, and reclassifying species.
Paragraph (e) of that section pertains only to delisting species.
Therefore, it would not be appropriate to reclassify a species if any
of the three findings in 50 CFR 424.11(e) are made by the Secretary.
Reclassification is covered in existing (and revised) 50 CFR 424.11(c).
Comment: Some commenters stated that the Services should develop
criteria to inform the assessment of the ``adequacy'' of State or local
regulatory programs when making a delisting or downlisting
determination. To ensure that future delisting and downlisting
decisions are fully explained, documented, and can proceed
expeditiously, the Services should develop guidelines establishing the
necessary criteria for the development, and the Services' review, of
State and local regulatory mechanisms. They further requested the
Services convene a working group that includes representatives of State
and local governments and members of the regulated community to inform
the development of the appropriate guidelines and that the Services
make these guidelines available for public review and comment prior to
adoption.
Response: The Services decline to adopt or develop criteria at this
time. The Services may in the future consider developing such criteria,
such as in guidance.
Comment: Some commenters stated the Act's five listing criteria are
not particularly well suited to delisting. While they need to be
addressed prior to delisting, they are focused on threats instead of
recovery, and, therefore, do not provide a science-based recovery
objective. They suggested the Services should provide recovery teams
with additional clarity on how to identify recovery goals that are
clear, consistent, measurable, and based on the best available science,
in order to ensure that the long-term health and viability of recovered
species will be maintained after they are returned to State management.
Response: The Services decline to make revisions to these
regulations in this regard. First, regarding the suggestion that
section 4(a)(1) factors are not relevant to a delisting determination,
the statute and case law are in fact clear that the section 4(a)(1)
factors are intrinsically central to determining whether a species
meets the definition of a ``threatened species'' or an ``endangered
species,'' whether the question is asked in the context of a potential
listing or a potential delisting. [See discussion above and citation to
the Friends of Blackwater case.] In response to the suggestion to
provide guidance to recovery teams, the Services note that they rely on
their Joint Interim Recovery Planning Guidance to provide guidance to
recovery teams and others on developing recovery goals.
Comment: Some commenters stated the five listing criteria should be
based on ``known'' data and information, instead of making assumptions
in order to list a species.
Response: The Services are required to make listing decisions based
on the best available scientific and commercial data. Those data are
not required to be free from uncertainty. We are not required to wait
to make listing determinations until better or more concrete science is
available, and the Act requires that we base our decision on the best
available data. See, e.g., San Luis & Delta-Mendota Water Authority v.
Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (``best available'' standard
does not require perfection or best information possible) (citing
Building Indus. Ass'n v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001));
Alaska v. Lubchenco, 825 F. Supp. 2d 209, 223 (D.D.C. 2011) (same);
Maine v. Norton, 257 F. Supp.2d 357, 389 (D.Me. 2003) (noting that the
``best available'' standard ``is not a standard of absolute
certainty'').
Comment: Some commenters expressed agreement that the standard and
criteria for delisting should be no more than that for listing. The
standards should be the same but for one exception the FWS has
previously recognized. The commenter stated that the prioritization to
list [sic] foreign species should be greater than for domestic listed
species because of the lack of benefits for foreign listed species in
the negative effects in the balance.
Response: We assume the commenter to mean `prioritization for
delisting',
[[Page 45040]]
rather than `list'. The Services agree that the standards for listing
and delisting are the same. The Act does not allow the Services to use
different standards with regard to listing domestic and foreign
species. FWS recognizes that the benefits of listing species that are
not under U.S. jurisdiction may be more limited than the benefits that
domestic species realize and allocates its funding to reflect this
difference. With the limited resources that FWS allocates to foreign
species, we prioritize those where listing can result in conservation,
for example, species that are in trade across U.S. borders.
Comment: Some commenters noted that the proposed regulations
include changes in paragraph designations and cross-references, but not
in the substantive content of certain provisions, in particular new
paragraphs (f) and (g). The commenter requested that these provisions
be modified to better take into account State and foreign nation
programs and species listings under the Convention on International
Trade in Endangered Species (CITES) when making listing determinations.
Response: The Services decline to make this change. Those
provisions sufficiently take into account State and foreign programs
and CITES listings when making listing determinations under the Act and
do not merit revision at this time.
Comments Regarding Not Prudent Determinations Comment
Several commenters thought the Services should retain as a basis
for a not-prudent determination that designation of critical habitat
for a species would not be beneficial to its conservation. Some noted
that this approach would be consistent with legislative history and
several court decisions that cited to the legislative history. See
Natural Resources Council v. U.S. Dep't of the Interior, 113 F.3d 1121
(9th Cir. 1997); Conservation Council of Hawaii v. Babbitt, 2 F. Supp.
2d 1280 (D. Hawaii 1998).
Response: The House Report for the 1978 amendments contains
statements indicating that Congress intended for the Services to
designate critical habitat except in those rare instances when critical
habitat would not be ``beneficial to'' or ``in the best interests of''
the species. H.R. Rep. No. 97-1625, at 16-18 (1978). Consistent with
this understanding of the authority to make not prudent findings, we
identify in these revised regulations a number of specific
circumstances in which we anticipate that it would not be prudent to
designate critical habitat because it would not benefit the species.
This final regulation includes some circumstances that were already
captured in the current regulations at Sec. 424.12(a)(1)(ii) and some
additional circumstances that we have identified based on our
experience in designating critical habitat.
Basing prudency 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. It also eliminates
some confusion reflected in the courts' decisions in the NRDC and
Conservation Council cases. In those decisions, the courts remanded the
not prudent determinations at issue because the FWS had not articulated
a rational connection between the facts and the agency's conclusion
that designating critical habitat would not be beneficial for the
species. 113 F.3d at 1125-26; 2 F. Supp. 2d at 1284. Although the
courts held that FWS had failed to weigh the benefits and risks, or had
failed to consider potential benefits beyond consultation benefits, the
courts' reasoning indicates that the decisions were based on the
insufficiency or absence of any factual analyses of the specific data
available. The court in NRDC also found that, in implementing the
regulations that were in place at the time, FWS had erroneously applied
a ``beneficial to most of the species'' standard instead of a
``beneficial to the species'' standard. Moreover, the decisions'
reliance on the legislative history statements equating ``not prudent''
with ``not beneficial to the species'' is undermined by the fact that
ultimately Congress did not choose to include the ``not beneficial to
the species'' language as a standard or limitation in the statute.
Further, we note that in both decisions the courts seem to have
considered principles related to the discretionary process for weighing
the impacts of critical habitat designation under section 4(b)(2) of
the Act, which do not govern ``not prudent'' determinations. In part,
this appears to be due to the courts' interpretations of statements the
Services had made regarding their intentions in applying the regulatory
provisions. See 113 F.3d at 1125 (citing 49 FR 38900, 38903 (1984)
(noting that the Services would balance the risks to the species of
designating and the benefits that might derive from designation and
would forgo designations of critical habitat where the possible adverse
consequences would outweigh the benefits)). We now take the opportunity
to clarify the separate nature of ``not prudent'' designations and the
discretionary analyses that we may elect to take under section 4(b)(2)
of the Act. We intend these evaluations to address separate factors.
We emphasize that determining that a species falls within one or
more of the circumstances identified in the revised regulations does
not bring the prudency analysis to an end. As the courts in both NRDC
and Conservation Council found, in determining whether or not
designation of critical habitat is prudent, the Services must take into
account the specific factual circumstances at issue for each species.
113 F.3d at 1125; 2 F. Supp. 2d at 1287-88. However, as we clarify
below, this does not require the Services to engage in the type of
area-by-area weighing process that applies under section 4(b)(2) of the
Act.
Comment: Numerous commenters stated that the expansion of
circumstances when the Services may find critical habitat designation
to be not prudent is not consistent with the Act or congressional
intent. Commenters expressed concerns that this change will result in
numerous species being denied the protections afforded by critical
habitat designations. They also stated that determinations that
critical habitat is not prudent will be much more common under the
proposed regulations than they have been in the past, and that this is
a major change from the current regulation.
Response: It is permissible under the Act, as well as the current
and revised regulations, for the Services to determine that designating
critical habitat for a species is not prudent. See 16 U.S.C.
1533(a)(3)(A) (directing the Secretary to designate critical habitat
for listed species concurrent with listing that species ``to the
maximum extent prudent and determinable''). The changes to the
regulations are not intended to expand the circumstances in which the
Services determine that designation of critical habitat is not prudent.
Rather, the revisions are intended to provide clarity and specificity
with respect to the circumstances in which it may not be prudent to
designate critical habitat by replacing the vague phrase ``not
beneficial.'' Congress recognized that not all listed species would be
conserved by, or benefit from, the designation of critical habitat, but
did not specify what those circumstances might be. While the statutory
language allows us to forgo designating critical habitat in rare
circumstances in which designation of critical habitat does not
contribute to the conservation of the
[[Page 45041]]
species, the Services recognize the value of critical habitat as a
conservation tool and expect to designate it in most cases. Therefore,
the Services anticipate that not prudent findings will remain rare and
would be limited to situations in which designating critical habitat
would not further the conservation of the species.
Comment: Several commenters stated that the Services may only
properly make a not prudent determination if there is specific
information that a species would be harmed by designating critical
habitat.
Response: Congress did not impose any such limitation on the
Secretaries' authority to make not prudent determinations. The
statutory language requires that the Services designate critical
habitat ``to the maximum extent prudent.'' The Services have long
interpreted that language to apply to a broader range of circumstances
beyond those in which a species would be harmed by the designation.
Other circumstances occasionally may arise where a designation is not
wise, such as when a designation would apply additional regulation but
not further the conservation of the species. The current regulations
(81 FR 7414; February 11, 2016, and at 50 CFR 424.12(a)(1)) allow for a
determination that critical habitat is not prudent for a species if
such designation would: (1) Increase the degree of threat to the
species through the identification of critical habitat, or (2) not be
beneficial to the species. The determination that critical habitat is
not prudent for a listed species is uncommon, especially because most
species are listed, in part, because of impacts to their habitat or
curtailment of their range. Most not prudent determinations have
resulted from a determination that there would be increased harm or
threats to a species through the identification of critical habitat.
For example, if a species was highly prized for collection or trade,
then identifying specific localities of the species could render it
more vulnerable to collection and, therefore, further threaten it.
However, Congress did not limit ``not prudent'' findings to those
situations; in some circumstances, a species may be listed because of
factors other than threats to its habitat or range, such as disease. In
such a case, a not prudent determination may be appropriate.
Comment: Several commenters suggested additional circumstances
where designation may not be prudent, including when the economic and
societal impacts outweigh the benefits to the species, when areas to be
designated are already under Federal management for other purposes, or
when areas are covered by a habitat conservation plan under section
10(a)(1)(B) or other conservation plan.
Response: Under section 4(b)(2) of the Act, the Secretaries have
the discretion to determine whether areas should be excluded from a
critical habitat designation if the benefits of exclusion outweigh the
benefits of inclusion, unless the exclusion will result in the
extinction of the species concerned. A discretionary weighing analysis
under section 4(b)(2) can involve economic or other impacts and land
management of the areas concerned. We note that the ``not prudent''
determination and any section 4(b)(2) weighing are separate processes.
Because of the specific reference in section 4(b)(2) to weighing of
benefits, we conclude that Congress intended the prudency language to
address other matters, as reflected in this final regulation.
As a result, we do not infer from the NRDC and Conservation Council
decisions that, to determine whether or not it is prudent to designate
critical habitat, the Services must undertake a balancing or weighing
of benefits akin to the section 4(b)(2) analysis for determining
whether or not to exclude specific areas from a critical habitat
designation. We now take the opportunity to clarify the separate nature
of ``not prudent'' designations and the discretionary analyses that we
may elect to take under section 4(b)(2) of the Act. First, in making
prudency determinations, the Services evaluate critical habitat
designation as a whole for that species, while in making exclusion
determinations under section 4(b)(2) the Services must evaluate
specific areas. Second, as referenced earlier, unlike exclusion
analyses under section 4(b)(2), the statute does not expressly require
a balancing of benefits. Third, prudency determinations must be made at
the time of listing based on the best scientific information available
at that time, while exclusion determinations are only made if the
Secretary first determines the boundaries of the areas that meet the
definition of ``critical habitat.'' Based on these differences,
prudency determinations must address different factors, on a different
scale, based on a different set of data, and usually at a different
time from section 4(b)(2) analyses. Indeed, a ``not prudent''
determination precludes the need to undertake the process of
identifying specific areas and considering the impacts of designation
of such specific areas under section 4(b)(2).
Comment: Several commenters objected to the Services making a not
prudent determination if areas within U.S. jurisdiction would provide
only negligible conservation value to a species that occurs primarily
outside the jurisdiction of the United States. Some expressed concern
that ``negligible'' is vague and undefined. Some stated that this
course of action is contrary to the plain language of the Act and does
not consider the need for migratory or transitory areas that contribute
to the conservation of the species.
Response: In our 2016 revision of these regulations (81 FR 7414;
February 11, 2016), we noted in the preamble that the consideration of
whether areas within U.S. jurisdiction provide conservation value to a
species that occurs in areas primarily outside U.S. jurisdiction could
be a basis for determining that critical habitat designation would not
be prudent (81 FR 7432; February 11, 2016). For the purposes of clarity
and transparency, we proposed to add this consideration directly to the
regulatory text. In the preamble to our proposed regulations, we
explained that 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 dictionary defines ``negligible'' to mean ``so small or
unimportant as to be not worth considering; insignificant.'' In the
context of ``negligible conservation value'' we mean that the
conservation value of habitats under U.S. jurisdiction would be
insignificant to the conservation of the listed entity. The
circumstances when a critical habitat designation would provide
negligible conservation value for a species that primarily occurs
outside of U.S. jurisdiction will be determined on a case-by-case
basis, and factors such as threats to the species or its habitat and
the species' recovery needs may be considered.
Finally, if areas under U.S. jurisdiction are important to the
species' conservation for migratory or transitory purposes, we expect
that we would not make a determination that critical habitat is not
prudent. Based on the Services' history of implementing critical
habitat, we anticipate that not prudent determinations will continue to
be rare.
Comment: Some commenters suggested that critical habitat carries
substantive and procedural benefits aside from those arising from the
obligation to consult under section 7, even if consultation through
section 7 is the sole regulatory mechanism for
[[Page 45042]]
protecting critical habitat under the Act. These benefits include
educating the public and State and local governments about the
importance of certain areas to listed species, assisting in species
recovery planning efforts, protecting against unanticipated Federal
actions affecting the habitat that could be important in allowing the
species time to adapt or demonstrate possible resilience to encroaching
effects of climate change, or establishing a uniform protection plan
prior to consultation. They cited the decisions in NRDC and
Conservation Council, 113 F.3d at 1121; 2 F. Supp. 2d at 1280. They
also noted that the Services acknowledged such benefits at the time of
adopting the prior regulations, at 81 FR 7414-7445 (Feb. 11, 2016)
(describing ``several ways'' that critical habitat ``can contribute to
the conservation of listed species''). In light of the myriad benefits
of designating, the commenters assert that the threat of climate change
actually emphasizes the importance of designating critical habitat
rather than justifying creating an additional exception from
designation where threats to habitat stem from climate change. They
further urge that designation can still benefit a species even if
section 7 alone cannot address all the threats to a species' habitat.
Response: Although the direct benefit that the statute provides for
designated critical habitat is through section 7 consultation,
depending on the factual circumstances surrounding a given species,
designating critical habitat may carry incidental additional benefits
to the species beyond the protections from section 7 consultation.
These regulatory revisions would not preclude us from designating
critical habitat if any of the specific circumstances that the revised
regulations identify, including climate change, is present--when we
determine that designating critical habitat could still provide for the
conservation of the species. However, through implementing the Act we
have encountered situations in which threats to the species' habitat
leading to endangered or threatened status stem solely from causes that
cannot be addressed by management actions identified through
consultations under the destruction or adverse modification standard of
section 7(a)(2) of the Act.
In those situations, a designation of critical habitat could create
a regulatory burden, as well as divert resources away from listing and
designating critical habitat for other species, without providing any
overall 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-related
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 ensure protection of
the habitat. The revised regulations identify this situation as a
circumstance in which designation of critical habitat is often not
prudent, but determining that a species falls within this category does
not make a not prudent finding mandatory, nor is the list of
circumstances in which designation may not be prudent exhaustive. As we
discussed in response to an earlier comment, in such situations (as
with all not prudent analyses), the Services would need to take into
account the specific factual circumstances at issue for the given
species.
Comment: Several commenters expressed concern that the proposed
regulatory changes to the circumstances in which the designation of
critical habitat would not be prudent would result in the Services not
designating critical habitat for species threatened by climate change.
This outcome would eliminate the possibility of designating unoccupied
critical habitat that could provide habitat for species under a
changing climate in the future.
Response: The Services intend to make not prudent determinations
only in the rare circumstance when the designation of critical habitat
would not assist in conserving the species. For example, the Services
might conclude that Federal action agencies could take no meaningful
actions to address the threats to the habitat of a particular species
that might arise from climate change. Under these circumstances, the
Services might determine that it is not prudent to designate critical
habitat because the designation would not be able to further the
conservation of the species in the face of these threats, and our
resources are better spent on other actions that assist in the
conservation of listed species. These regulatory revisions would not
preclude us from designating occupied or unoccupied critical habitat if
any of the specific circumstances that the revised regulations
identify, including climate change, is present if we determine that
designating critical habitat could still provide for the conservation
of the species.
Comment: Several commenters stated that the Services should be
required to determine that a designation is not prudent when any of the
situations listed in the proposed regulation at Sec. 424.14(a)(1)
exist, rather than stating that the Secretary ``may, but is not
required to, determine that a designation would not be prudent.''
Others thought that use of phrases such as ``not limited to'' was too
open-ended and would result in more not-prudent determinations. Both
sets of commenters believe the proposed approach leaves too much
discretion to the Services.
Response: We recognize that some commenters would appreciate the
greater certainty that would occur if a not prudent determination were
mandatory rather than discretionary, while other commenters believe
that critical habitat designation should be prudent in almost all
cases. However, the question regarding whether designating critical
habitat is prudent must be addressed on a case-by-case basis. Each
species is different, and the threats they face can be complex; a one-
size-fits-all approach is not required by the statute and may not be in
the best interests of the species. The inclusion of ``but not limited
to'' to modify the statement ``the factors the Services may consider
include'' allows for the consideration of circumstances where a
determination that critical habitat is not prudent would be
appropriate. It is important to expressly reflect this flexibility in
the revised regulations. Any future rule that includes a not prudent
determination will clearly lay out the Services' rationale as to why a
not prudent determination is appropriate in that particular
circumstance.
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.
Comment: Several commenters thought the Services should simply
delete Sec. 424.12(a)(1)(ii) instead of revising it. They further
stated that the Act does not require that a species currently be
threatened by habitat loss before critical habitat is designated and
protected, and the spirit of the Act would not be served by the
imposition of such a requirement by regulation.
Response: The Services are finalizing the proposed revisions to
Sec. 424.12(a)(1)(ii) because we have concluded that they will provide
the public and the Services with a clearer, more transparent, and more
straightforward interpretation of when it may not be prudent to
designate critical habitat. Critical habitat is a conservation tool
under the Act that can provide for the regulatory protection of a
species' habitat. The previous regulations and these revisions do not
establish a
[[Page 45043]]
requirement that a species be threatened by the modification,
fragmentation, or curtailment of its range for critical habitat to be
prudent to designate. However, the regulation and revisions establish a
framework whereby if we list a species under the Act and determine
through that process that its habitat is not threatened by destruction,
modification, or fragmentation, or that threats to the species' habitat
stem primarily from causes that cannot be addressed by management
actions, then the Secretary may find that it would not be prudent to
designate critical habitat. 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
ensure protection of the habitat. While this provision is intended to
reduce the burden of regulation in rare circumstances in which
designating critical habitat would not contribute to conserving the
species, the Services recognize the value of critical habitat as a
conservation tool and expect to designate it in most cases.
Comment: Some commenters suggested that, by allowing for not
prudent determinations where the threats stem solely from causes that
cannot be addressed through management actions resulting from
consultation under section 7(a)(2) of the Act, the Services would be
pre-judging future Federal actions and outcomes of the consultations
without basis for doing so. They cited two decisions from the Ninth
Circuit Court of Appeals holding that the Services may not rely on the
availability of other protections as a basis for not carrying out the
mandatory duty of designating critical habitat.
Response: The Services will make a determination as to whether a
designation of critical habitat is prudent based upon the best
scientific data available to us at the time of listing. This
determination includes a thorough analysis of the factors contributing
to listing; therefore, we will be able to assess the degree to which
these factors can be--not whether they will be--influenced by
consultations under the destruction or adverse modification standard of
section 7(a)(2) of the Act. In the rare circumstances in which we
determine that the threats to the species' habitat are of such a nature
that Federal action agencies are unable to modify or manage their
actions such that the underlying causes posing risks to the habitat can
be affected or influenced, then conducting consultations under the
destruction or adverse modification standard of section 7(a)(2) of the
Act on the impacts of the Federal action on critical habitat would not
further the conservation of the species, and designation of critical
habitat would be not prudent. If the best available information changes
over time such that habitat-based human intervention is possible, we
can designate critical habitat at that time. In reaching the conclusion
that it may not be prudent to designate in such circumstances, we are
not relying on the existence of other protections and thus the cited
cases are not relevant. Our interpretation of the statutory term
``prudent'' set forth in this rule is not contingent on there being
other available protections.
Comments Regarding Unoccupied Critical Habitat
Comment: Numerous commenters stated that the Services have not
justified the proposed change from current regulations that were
recently amended in 2016.
Response: On May 12, 2014, the Services published a proposed rule
revising the regulations at Sec. 424.12 (79 FR 27066), in which we
changed the step-wise approach we had been using since 1984 to allow
for simultaneous consideration of occupied and unoccupied habitat
according to the definition of ``critical habitat'' in the Act. We
finalized the rule on February 11, 2016 (81 FR 7414), eliminating the
sequenced approach to considering occupied habitat before unoccupied
habitat. In carrying out Executive Order 13777, ``Enforcing the
Regulatory Reform Agenda,'' the Department of the Interior (DOI) and
the National Oceanic and Atmospheric Administration (NOAA) published
documents in the Federal Register in summer 2017 (82 FR 28429, June 22,
2017; 82 FR 31576, July 7, 2017) requesting public comment on how the
agencies could implement regulatory reform and improve the efficiency
and effectiveness of regulations. Both of these documents resulted in
input from States, trade organizations, and private landowner groups
indicating that the Services should go back to considering occupied
habitat before unoccupied habitat when designating critical habitat.
This final rule responds to those concerns as well as comments made
on the proposed rule here by restoring the requirement that the
Secretary will first evaluate areas occupied by the species. In
addition, this approach furthers Congress's intent to place increased
importance on habitat within the geographical area occupied by the
species when it originally defined ``critical habitat'' in 1978. The
Conference Report accompanying the amendments specified that Congress
was defining ``critical habitat'' as ``specific areas within the
geographical area occupied by the species at the time it is listed that
is essential to the species conservation and requires special
management.'' H.R. Rept. No. 95-1804 (emphasis in the original). The
report went on to state in the paragraph that followed: ``In addition,
the Secretary may designate critical habitat outside the geographical
area occupied by the species at the time it is listed if he determines
such areas are essential for the conservation of the species.''
Comment: Returning to the sequenced approach of considering
occupied habitat first will result in critical habitat designations
that are not adequate to conserve species that may face range shifts
into previously unoccupied habitat that will be species' best chance
for survival in a rapidly changing environment as a result of climate
change.
Response: As the Act requires, we designate unoccupied critical
habitat when it is essential to the conservation of the species. For
species threatened by climate change, we will designate unoccupied
habitat if we determine that occupied areas are inadequate to ensure
the conservation of the species and we identify unoccupied areas that
are essential for the conservation of the species (including that there
is a reasonable certainty both that the area will contribute to the
conservation of the species and that the area currently contains one or
more of those physical or biological features essential to the
conservation of the species).
In specific circumstances where the best scientific data available
indicate that a species may be shifting habitats or habitat use, it is
permissible to include specific areas accommodating these changes in a
designation, provided that the Services can explain why the areas meet
the definition of ``critical habitat.'' In other words, we may find
that an unoccupied area is currently ``essential for the conservation''
even though the functions the habitat is expected to provide may not be
used by the species until a point in the future. The data and rationale
on which such a designation is based will be clearly articulated in our
proposed rule designating critical habitat. The Services will consider
whether habitat is occupied or unoccupied when determining whether to
designate it as critical habitat and use the best available scientific
data on a case-by-
[[Page 45044]]
case basis regarding the current and future suitability of such habitat
for recovery of the species.
Comment: Many commenters stated that the changes to the procedures
for designating unoccupied habitat do not adequately account for the
species' recovery needs. Relatedly, some commenters suggested that the
Services designate enough critical habitat at the time of listing to
ensure that a species can recover.
Response: Although designation of critical habitat and the
development of recovery plans are guided by two separate provisions of
the Act and implementing regulations, the ultimate goal of each is the
same: To provide for the conservation of listed species.
``Conservation'' is defined as 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 Sec.
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.
In evaluating which areas qualify as critical habitat (subject to
section 4(b)(2) exclusions), we follow the statutory requirements.
Designation of critical habitat is one important tool that contributes
to recovery, but a critical habitat designation alone may not be
sufficient to achieve recovery. Indeed, given the limited regulatory
role of a critical habitat designation (i.e., through section 7's
mandate that Federal agencies avoid destruction or adverse modification
of critical habitat), it is generally not possible for a critical
habitat designation alone to ensure recovery. Also, we must designate
critical habitat according to mandatory timeframes, very often prior to
development of a formal recovery plan. See Home Builders Ass'n of
Northern Cal. v. U.S. Fish and Wildlife Service, 616 F.3d 983, 989-90
(9th Cir. 2010). However, although a critical habitat designation will
not necessarily ensure recovery, it will generally further recovery
because the Services base the designation on the best available
scientific data about the species' habitat needs at the time of
designation.
Comment: Many commenters did not agree with the Service's proposal
that we would consider whether unoccupied areas could result in more
efficient conservation when determining whether these areas are
essential, for a variety of reasons. Some stated that ``less-efficient
conservation'' is not defined and no thresholds were offered for
determining what would be considered efficient conservation. Others
thought this provision would grant the Services overreaching discretion
to designate unoccupied areas that is not based on what is actually
essential for conservation. Others stated that a decision on whether
unoccupied areas are essential for conservation should be a scientific
determination. Some commenters stated that the Services should not
consider societal conflicts when designating critical habitat. They
further stated that determining whether an area is essential for the
survival or recovery of a species is an entirely different question
than determining whether managing that area would be economically
``efficient.''
Response: Based on the confusion generated by this provision, we
have removed the provision allowing the designation of unoccupied
habitat where a designation limited to occupied habitat would result in
less efficient conservation. We will only consider whether unoccupied
areas are essential to the conservation of a species when occupied
areas are not sufficient to conserve the species. When the Services
propose to designate specific areas pursuant to section 3(5)(A)(ii), we
will explain the basis for the determination, including the supporting
data. Thus, the Services' explanation will be available for public
comment in the context of each proposed critical habitat designation.
Comment: Some commenters suggested that the Act requires concurrent
consideration of potential occupied and unoccupied critical habitat
together, based on data showing occupancy at the time of listing as
well as at the time of designating critical habitat, which could be
later. The commenters are concerned that, if the Services prioritize
occupied habitat and are not designating until later in time, some
areas that the species used to occupy at the time of listing will lose
the opportunity for protection. They suggest this course of action
would violate the approach of ``institutionalized caution'' mandated in
T.V.A. v. Hill, 437 U.S. 153, 194 (1978).
Response: As explained in the preamble to the final rule in 2016,
the Services acknowledge that occupancy is to be determined with
reference to where the species could be found at the time of listing.
Where designation is taking place later in time, the Services will rely
on evidence that was contemporaneous with the time of listing where
possible or, where necessary, may rely on more current evidence of
distribution if there is a reasonable basis to conclude that it
reflects distribution at the time of listing. Thus, the Services are
able to appropriately analyze areas for possible inclusion as occupied
critical habitat using the touchstone of occupancy at the time of
listing even where designation takes place later in time. This course
of action adequately fulfills the Services' statutory mandate to
designate critical habitat. We note that T.V.A. v. Hill was decided in
the context of a section 7 consultation and an earlier version of the
statute that predated even the statutory definition of ``critical
habitat.'' The decision does not shed light on proper interpretation of
the statutory provisions addressing designation of critical habitat.
Comment: Several commenters were concerned that the Services must
commit to using the best scientific data available when designating
unoccupied areas as critical habitat.
Response: We are mandated by the Act to use (and are committed to
using) the best scientific data available in determining any specific
areas as critical habitat, regardless of occupancy.
Comment: Some commenters stated that landowner willingness is an
undefined term and will lead to confusion and inconsistent
implementation. They further stated that success of conserving species
is dependent on working with non-Federal landowners, and facilitating a
process where they would be relieved from the responsibility of
conserving species will put an undue burden on Federal and State
landowners.
Response: We recognize that ``landowner willingness'' is not a
defined term, but we are not required to define every term used in a
preamble. Rather, it is appropriate to give such phrases their ordinary
meaning in the context of making case-specific determinations. Given
the varied circumstances that may be involved in designation of
critical habitat, we conclude that it is a relevant factor to consider
when we evaluate whether an unoccupied area is likely to contribute to
the conservation of the species. We agree that conservation of most
listed species is dependent on working with non-Federal landowners.
That said, section 7 of the Act places special responsibility on
Federal agencies to provide for the conservation of listed species.
Therefore, it is appropriate to place more responsibility, relative to
the
[[Page 45045]]
public generally or to private landowners, on Federal landowners to
conserve listed species.
Comment: Some commenters stated that the definition of
``essential'' in the proposed regulations would limit Secretarial
discretion to designate unoccupied areas as critical habitat.
Response: The statute limits Secretarial discretion to designate
unoccupied areas to when we can determine such areas are essential to
the conservation of a species. In the final regulation we explain that
to be a specific area that is essential to the conservation there must
be a reasonable certainty that the area currently contains one or more
of those physical or biological features that are essential to the
conservation of the species. It is appropriate through regulation to
describe the circumstances or considerations that would lead the
Secretary to conclude that unoccupied habitat is essential. Consistent
with the requirements of section 3(5)(A)(ii), the question of whether
unoccupied areas are essential can be complex and include an evaluation
of which unoccupied areas are best suited to provide for long-term
conservation. For example, unoccupied areas might be in Federal or
conservation ownership with willing partners already committed to
working on restoration and reintroduction. Some unoccupied areas could
be free of threats or face reduced threats in comparison with other
areas. Some unoccupied areas might require fewer financial and human
resources in order to contribute to the conservation of a species than
other areas. These are the types of case-specific factors that could be
considered when making a determination that we are reasonably certain
an area will contribute to the conservation of a species.
Comment: Numerous commenters raised issues with the proposed
regulatory language that unoccupied areas needed to have a ``reasonable
likelihood'' of contributing to conservation in order to be designated
as critical habitat. Some thought this language provided too much
deference to the willingness of the current landowner. Others raised
concerns that the preamble language allowing the Services to use a
lower threshold than ``likely'' to contribute to conservation would
allow the Services too much discretion to designate unoccupied areas
that would not be likely to contribute to species conservation and
could lead to arbitrary decisions. Others suggested additional
considerations of how we should determine that an area has a
``reasonable likelihood'' of contributing to the species conservation.
Response: In this final rule, we replace ``reasonable likelihood''
with ``reasonable certainty.'' As described above, in light of the
public comments that the ``reasonable likelihood'' language was
undefined, unclear, and could allow too much discretion to designate
areas that would not ultimately contribute to species conservation, we
concluded that the language of this final rule better reflects the need
for high confidence that an area designated as unoccupied critical
habitat will actually contribute to the conservation of the species. We
consider the phrase ``reasonable certainty'' to confer a higher level
of certainty than ``reasonable likelihood'' but not to require absolute
certainty.
Comment: Some commenters stated that the Services should require a
higher bar for designation of unoccupied critical habitat and require
that unoccupied habitat be ``habitable'' as is, without restoration.
Other commenters recommended that the Services require that unoccupied
areas contain all the physical or biological features that occupied
habitat has in order to designate them, or, if the Services determine
they have the authority to designate unoccupied lands that require
restoration, they should expressly declare a policy that doing so is a
disfavored approach, only appropriate in dire circumstances.
Response: After considering these comments carefully, we agree that
requiring reasonable certainty that any unoccupied area has, at the
time of the designation, one or more of those physical or biological
features that are essential to the conservation of the species comports
with the language, legislative history, and purposes of the Act.
Therefore, we have changed the regulatory text to substitute
``reasonable certainty'' for ``reasonable likelihood'' and are
requiring that one or more of the physical or biological features be
present.
Comment: Numerous commenters stated that the Services should have
specific criteria for designating unoccupied critical habitat. They
suggested criteria specifying: whether the area currently supports
usable habitat for the species; the extent to which restoration may be
needed for the area to become usable habitat; the financial and other
resources available to accomplish any needed restoration; any landowner
or other constraints on such restoration; how valuable the potential
contributions will be to the biology of the species; and how likely it
is that section 7 consultations will be triggered by Federal agency
actions in the area.
Response: We agree and have clarified that one or more of those
physical or biological features essential to the conservation of the
species must be present for an area to be designated, even an
unoccupied area.
Comment: A commenter recommended adding ``significantly'' to the
last sentence of unoccupied habitat so that it reads, ``the Secretary
must determine that there is a reasonable likelihood that the area will
significantly contribute to the conservation of the species.''
Response: The insertion of ``significantly'' is not necessary
because the Act already requires unoccupied critical habitat to be
``essential,'' and addition of the term ``significantly'' would be
vague and unclear. Therefore, we decline to adopt the commenter's
suggestion and will continue to rely on the statutory standard that
unoccupied critical habitat must be ``essential for the conservation
of'' a species.
Comment: Some commenters suggested that the Services have not
adequately identified a reasonable basis to shift back to the
sequential approach for designating critical habitat (of focusing first
on occupied habitat and then looking to unoccupied habitat only if
limiting to the first type of habitat would be inadequate to conserve
the species). They cited to the explanation provided by the Services in
a 2014 rulemaking action that proposed revisions to this provision that
indicated the Services did not believe Congress mandated this
restriction and that such a restriction was unnecessary in light of the
statutory limitation of designation of unoccupied areas to those that
are ``essential'' for the species' conservation. See, e.g., 79 FR
27066, 27073 (May 12, 2014). They stated that, in the face of such a
definitive rejection of the approach in 2016, the Services now propose
to revert to a version of the prior approach based merely on
perceptions that the Services intended to designate expansive areas of
unoccupied habitat.
Response: The Services' preamble statements at the time of
proposing the 2016 amendments to these regulations (in 2014) are not
binding law, and we have explained the reasons for reconsidering these
provisions. Even if the Services were correct in 2014 that the
provision requiring sequencing of occupied and unoccupied habitat was
not necessary, there was no suggestion that the prior provision had
exceeded the Services' discretion. It is permissible for the Services
to nevertheless reincorporate a similar provision back into the
regulations that we have concluded is a preferable approach.
[[Page 45046]]
While we initially proposed during this rulemaking to adopt a slightly
different approach from the one we followed prior to 2016 (in that we
proposed to allow for designation of unoccupied areas in lieu of
occupied areas where doing so would result in ``more efficient
conservation,''), a number of commenters expressed concerns with that
approach as being vague in that it introduces uncertainty and
unpredictability into the determination and may be difficult to
implement. After considering those comments, we concluded that the
concept ultimately was not the best interpretation of the statute.
Therefore, the approach in this final rule has been changed to be more
aligned with the approach taken in the regulations prior to 2016.
Comment: The Services should require that both (1) occupied areas
are insufficient and (2) designation of occupied areas would result in
less-efficient conservation.
Response: As explained above, in response to comments that the
``efficient conservation'' concept was vague, we have removed the
provisions regarding ``efficient conservation.'' Thus, unoccupied areas
can be considered for potential designation only if limiting the
designation to occupied areas would be inadequate to ensure recovery.
Comment: One State recommended that the Services develop a policy
or metric to determine whether a particular area should be designated
as critical habitat in unoccupied areas.
Response: This final rule explains the Services' general parameters
for designating critical habitat. The details of why a specific area is
determined to be essential to the conservation of the species will be
in part informed by any generalized conservation strategy that may have
been developed for the species, which is an optional step, and clearly
articulated in our proposed and final rules designating critical
habitat. That determination is a fact-specific analysis and is based on
the best available scientific data for the species and its conservation
needs. The proposed rule for each critical habitat designation will be
subject to public review and comment.
Comments on Geographical Area Occupied by the Species
Comment: We received multiple comments stating that the regulatory
definition of the ``geographical area occupied by the species'' gives
the Services too much discretion and allows for the inclusion of areas
that are not occupied by the species. Some commenters cited the court's
decision in Arizona Cattlegrowers' Ass'n v. Salazar, 606 F.3d 1160,
1166 (9th Cir. 2010), in support of this view. Some commenters
requested that the Services revise the definition to avoid inclusion of
areas that are only used temporarily or periodically by the species, or
modify the definition to explicitly equate occupancy with sustained or
regular use rather than mere presence or occurrence of the species.
Several commenters requested we remove the term ``range'' because, as
indicated by the statute's use of this word in section 4(c), ``range''
is a broader concept than ``geographical area occupied by the species''
and can include unoccupied areas. Some commenters requested that the
existing definition be withdrawn.
Response: We are not revising the regulatory definition of
``geographical area occupied by the species'' at this time.
Comment: Numerous commenters stated that protection of habitat is a
key to species' survival and that the Services should not alter their
existing definition of ``geographical area occupied by the species.''
Commenters stated that changing this definition could have a
significant negative impact on habitat conservation. Multiple
commenters stated that the existing regulatory definition should not be
changed, because it appropriately reflects the importance of wildlife
connectivity to the survival of migratory species in particular. Some
comments also stated that, because the Services did not propose
specific changes to the regulations, they could not provide meaningful
comments regarding this regulation.
Response: We are retaining the existing regulatory definition for
``geographical area occupied by the species'' and are not revising the
definition as part of this rulemaking.
Comment: Multiple commenters stated that the current regulatory
definition for ``geographical area occupied by the species''
inappropriately allows the Services to determine occupancy at the time
of listing based on presumed migratory corridors or based on indirect
or circumstantial evidence. Several commenters also stated that
occupancy should be based on population-level information, and that it
cannot be determined based on an ``occurrence'' of a species or on data
for individual animals.
Response: Although we requested comment on the definition of the
phrase ``geographical area occupied by the species,'' we have decided
not to include such a definition in the regulations at this time.
Comment: We received comments stating that the existing regulatory
definition for ``geographical area occupied by the species'' could be
in conflict with the proposed changes to 50 CFR 424.12(b)(2), where the
Secretary is given discretion to designate 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.'' In order to remove this conflict commenters suggested
removing, ``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).''
Response: The existing regulatory definition for ``geographical
area occupied by the species'' is not in conflict with the changes to
50 CFR 424.12(b)(2) regarding the designation of unoccupied areas
because areas that are not permanently occupied are still considered
occupied for both determining the range of a species and when
designating critical habitat. Some areas that may not be permanently
occupied by the species may be crucial for a species to complete
necessary phases of its life cycle. For example, terrestrial amphibians
might only inhabit breeding ponds for a short time of year, but without
these ponds the species would not be able to successfully reproduce.
Comment: Some commenters stated that use of the term ``life-cycle''
is confusing and requires further clarification. The commenters noted
that a species' occupancy of an area and its habitat needs from such
area may fundamentally change depending upon the species' life-cycle
stage, and that an area and its supporting habitat features may be
``essential'' to conservation of the species in certain life stages,
but not others. The commenters requested that the Services address
these complexities by further detailing, in regulatory text, how they
will identify the species' life-cycle stages, and habitat features for
such life-cycle stages, requiring designation of critical habitat.
Response: While we agree with the comment that a species'
distribution and habitat use can change depending upon the particular
stages in its life cycle, we disagree that additional clarification
within our implementing regulations is required to explain how this
possibility will affect the designation of critical habitat. The
existing regulatory definition for
[[Page 45047]]
``geographical area occupied by the species'' makes clear that any
areas used by the species, at any one or more stages of its life
history, are considered ``occupied'' areas. To determine what specific
areas within the ``geographical area occupied by the species'' meet the
definition of critical habitat, the Services must evaluate the best
available scientific data regarding that species' habitat requirements.
A clear rationale, supported by the best available science, must then
be articulated in any subsequent proposed rule to designate critical
habitat. The nature and type of areas included in any proposed rule
will depend on the particular species and the scientific understanding
of that species' habitat needs during its life cycle.
Comments Related to Physical or Biological Features
Comment: We received a number of comments in response to our
request for feedback on the existing regulatory definition of
``physical or biological features.'' Several commenters suggested that
it would be preferable for the Services to return to the ``primary
constituent elements'' approach followed since 1980 and until the 2016
revisions to the Services' implementing regulations, which added the
current definition, because the commenters claim that approach requires
a higher degree of specificity in describing the attributes of critical
habitat and is more consistent and objective than the approach codified
in the current regulation.
Response: While the Services understand and agree with the need for
as much specificity in the description of the attributes of critical
habitat as the best available scientific data allow, we conclude that
it is neither necessary nor desirable to revive the prior approach.
Over our three decades of experience implementing the prior regulatory
provision, the Services found that the ``primary constituent elements''
terminology had unnecessarily complicated implementation of the
statutory provision. Also, the language of the ``primary constituent
elements'' provision was itself somewhat vague and non-specific. As
explained when we proposed to add the regulatory definition of the term
``physical or biological features,'' the ``primary constituent
elements'' concept did not have a clear or consistent relationship to
the operative statutory language--``physical or biological features''
(see 79 FR 27066 and 27071, May 12, 2014). In shifting away from the
term ``primary constituent elements,'' our intent was to simplify the
designation process and make it more transparent. We ensured continuity
between the prior and current approaches by incorporating some of the
previous regulatory language that had described primary constituent
elements and emphasizing that designations should continue to be as
specific as possible (See 81 FR 7414 and 7426, Feb. 11, 2016) (``The
specificity of the primary constituent elements that has been discussed
in previous designations will now be discussed in the descriptions of
the physical or biological features essential to the conservation of
the species.''). Because the statutory term ``physical or biological
features'' is the operative concept under the statute, we concluded in
our 2016 final rule (and reaffirm) that it is most efficient and
transparent to focus on clarifying that concept rather than reintroduce
unnecessary and complicated terminology.
Comment: Several commenters suggested that the definition of
physical or biological features should focus on those features that are
``essential to the conservation of the species'' rather than those that
``support the life-history needs of the species.'' The commenters
stated that ``essential to the conservation of the species'' is a
greater biological significance than ``supporting the life-history
needs of the species'' and we should not be allowed to designate an
area that is of lower significance than ``essential to the conservation
of the species.''
Response: As noted above, we have decided to clarify the term
``physical or biological features'' to more specifically track some of
the key statutory language from the Act's definition of ``critical
habitat.'' We have slightly modified the defined term, which is now
``physical or biological features essential to the conservation of the
species.'' In doing so we have focused the definition more precisely on
only those features that may be the basis for a designation of occupied
critical habitat if the other conditions are met (i.e., that the
features are found in specific areas and may require special management
considerations or protections). We have made clear that the essential
features are only the subset of physical or biological features that
are necessary to support the species' life-history needs.
Comment: Several commenters stated that the phrase ``including but
not limited to'' in the definition of physical or biological features
is too vague or broad and should be removed from the definition.
Response: In defining physical and biological features and
including this particular phrase, we provided a non-exhaustive list of
examples of types of features and conditions that we have found to be
essential to certain species based on experience over many years of
designating critical habitat for a wide variety of species. The
determination of specific features essential to the conservation of a
particular species will be based on the best scientific data available
and explained in the proposal to designate critical habitat for that
species, which will be available for public comment and peer review.
Comment: Several commenters stated that the Services should not
include the phrase ``habitat characteristics that support ephemeral or
dynamic habitat conditions'' as a feature that could be considered
essential and a basis for designation under section 3(5)(A)(i) of the
Act. They stated that the definition goes too far by allowing the
Services to include areas that do not currently have the essential
physical or biological features necessary for a species, and it
improperly allows the critical habitat designation to include areas
that may develop the essential features sometime in the future.
Further, some stated that it is not clear what is meant by ``habitat
characteristics that support ephemeral or dynamic habitat conditions.''
They stated that the language is unbounded, and the Services should
define what is meant to support these conditions.
Response: We decline to remove the phrase ``habitat characteristics
that support ephemeral or dynamic habitat conditions'' from the
definition of physical of biological features. However, our proposed
and final rules designating critical habitat for each species always
include a detailed explanation of how the essential features relate to
the life-history and conservation needs of the species based on the
best scientific data available. When considering what features are
essential, it is sometimes necessary to allow for the dynamic nature of
the habitat, such as seasonal variations in habitat or successional
stages of habitat, which could consist of water flow or level changes
throughout the year or old-growth habitat or habitat newly formed
through disturbance events such as fire or flood events. Thus, the
physical or biological features essential to the conservation of the
species may include features that support the occurrence of ephemeral
or dynamic habitat conditions. The example we gave in the 2016 final
rule (81 FR 7430, February 11, 2016) was a species that 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 itself,
[[Page 45048]]
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. The flooding event would not be a subsidiary
characteristic, as suggested by the commenter, but would itself be a
feature necessary for the vegetation to return. As is our general
practice, this type of specificity regarding the features and how they
relate to the needs of the species will be clearly explained in each
proposed and final rule designating critical habitat.
Comment: Several commenters suggested that we remove ``principles
of conservation biology'' from the definition of ``physical or
biological features.'' Further, they stated that this theory should not
be included in regulations and it creates a higher bar than the best-
available-data standard.
Response: The sentence that reads, ``Features may also be expressed
in terms of relating to principles of conservation biology, such as
patch size, distribution distances, and connectivity'' explains more
clearly how we may identify the features. The principles of
conservation biology are generally accepted among the scientific
community and consistently used in species-at-risk status assessments
and development of conservation measures and programs. We stated in the
final rule (81 FR 7414, February 11, 2016) that, 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
Services may evaluate areas relative to the conservation needs of the
species. The Services 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 Services 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 and any conservation strategy that
may have been developed for the species allows us to develop more
precise designations that can serve as more effective conservation
tools, focusing conservation resources where needed and minimizing
regulatory burdens where not necessary. Furthermore, not including
widely accepted scientific concepts into our process and procedures for
designating critical habitat would amount to ignoring some of the best
available scientific data.
Comments on Required Determinations
Comment: Many commenters stated the proposed changes are
substantive and will have a significant impact on the environment and,
therefore, the Services must comply with NEPA and issue either an
environmental assessment or an environmental impact statement (EIS),
including a robust set of alternatives. CEQ regulations state that, if
a Federal action ``may adversely affect an endangered or threatened
species or its habitat that has been determined to be critical under
the'' Act, that possibility makes it more likely that the action may be
considered significant and a full environmental review be conducted. 40
CFR 1508.27(b)(9). Commenters stated the proposed changes constitute a
major Federal action because there is ``the possibility that an action
may have a significant environmental effect.'' See Citizens for Better
Forestry v. USDA, 481 F. Supp. 2d 1059, 1087 (N.D. Cal. 2007).
Furthermore, commenters stated the Services cannot delegate their
authority in NEPA by asking the public for opinions regarding whether
an EIS is or is not appropriate. Finally, the proposed changes cannot
be considered administrative, financial, legal, technical, or
procedural in nature and therefore do not qualify for categorical
exclusion.
Response: The Services have complied with NEPA by documenting their
invocation of the categorical exclusions afforded under their relative
procedures, including consideration as to whether the existence of any
``extraordinary circumstances'' would preclude invoking an exclusion
here. We have determined that this final regulation is categorically
excluded from further NEPA review and that no extraordinary
circumstances are present (see Required Determinations, below). We do
not consider merely asking the public for input regarding the
applicability of an EIS abrogating our authority in complying with the
provisions of NEPA, and it has been our practice to do so for similar
recent rulemakings.
Comment: Several commenters stated that the proposed rule, if made
final, would have significant economic impacts on small business, small
government jurisdictions, and small organizations and therefore
requires an initial regulatory flexibility analysis and economic
analysis under the Regulatory Flexibility Act (RFA).
Response: We interpret the RFA, as amended, to require that Federal
agencies evaluate the potential incremental impacts of rulemaking only
on those entities directly regulated by the rulemaking itself and,
therefore, not on indirectly regulated entities. Recent case law
supports this interpretation (Small Business Association 2012, pages
22-23). NMFS and FWS are the only entities that are directly affected
by this rule because we are the only entities that add or remove
species from the Lists and designate critical habitat. This rule
pertains to the procedures for carrying out those authorities. No
external entities, including any small businesses, small organizations,
or small governments, will experience any direct economic impacts from
this rule (see Required Determinations, Regulatory Flexibility Act,
below, for certification).
General Comments
Comment: We received many comments on topics that were not
specifically addressed in our proposed regulatory amendments, such as
recommendations to change our policies on DPSs and the significant
portion of a species' range, define ``best available scientific and
commercial information,'' modify the Services' implementation of
section 6 of the Act, and revise the regulations at Sec. 424.19
regarding how we consider the impacts of the designation of critical
habitat.
Response: The Services appreciate the many insightful comments and
suggestions we received on various areas of section 4 implementation.
While such input may inform the future development of additional
regulatory amendments, policies, or guidance, we have determined at
this time, in the interests of efficiency, to finalize the revisions
for which we specifically proposed regulatory text or on which we
sought particular comment (e.g., the term ``physical or biological
features''), and to defer action on other issues until a later time.
The Services are required only to respond to ``comments which, if true,
. . . would require a change in [the] proposed rule,'' Am. Mining Cong.
v. United States EPA, 907 F.2d 1179, 1188 (DC Cir. 1990) (quoting ACLU
v. FCC, 823 F.2d 1554, 1581 (DC Cir. 1987)). Such comments constitute
the universe of ``significant'' comments. Therefore, comments that
pertain to issues that were not specifically addressed in our proposed
regulatory amendments are not ``significant'' in the context of the
proposed rule. See also Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.
58 (DC Cir. 1977), cert. denied,
[[Page 45049]]
485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). We are not
responding to comments that are not ``significant.''
Comment: Some commenters suggested that the Services should delay
finalizing the proposed rule until the United States Supreme Court
resolves the pending Weyerhaeuser litigation (Weyerhaeuser Co. v. U.S.
Fish and Wildlife Service, No. 17-71 (docketed July 13, 2017)) because
the Court's analysis of the Act's statutory framework could have
implications for the interpretations of the proposed rule. The
commenters suggest that waiting until spring 2019 to finalize the rule
would allow time to digest the resulting decision, determine its
implications for this rulemaking, and make any modifications or take
any procedural steps that might be necessary in light of the decision.
Response: The Services carefully evaluated the Supreme Court's
recent opinion in the Weyerhaeuser litigation. The final rule has been
modified in response to the decision to make clear that unoccupied
habitat must be ``habitat,'' by requiring reasonable certainty that at
least one physical or biological feature essential to the conservation
of the species is present. This rule is therefore consistent with the
Court's decision. While the Services are considering further
clarification of the meaning of habitat through separate rulemaking, we
find that the Services' and public's interests are served by clarifying
the existing regulatory framework in this final rule without delay.
Comment: Several commenters stated that the proposed regulatory
changes to part 424 are an attempt by the Services to expand their own
discretion and authority without congressional authorization and thus
is neither justified nor lawful.
Response: The amended regulations do not expand the Services'
discretion beyond the authority provided in the Act. Rather, they
clarify the existing process and, in some instances, narrow the
Services' discretion when designating critical habitat based on lessons
learned over many years of implementing the Act and relevant case law.
The amendments synchronize the language in the implementing regulations
with that in the Act to minimize confusion and clarify the discretion
and authority that Congress provided to the Secretaries under the Act.
The Services are exercising their discretion to resolve ambiguities and
fill gaps in the statutory language, and the amended regulations are a
permissible interpretation of the statute.
Comment: Several commenters referred to the following statement in
the proposed rule: ``the final rule may include revisions to any
provisions in part 424 that are a logical outgrowth of this proposed
rule.'' The commenters stated that any amendments adopted in the final
rule must come from specific proposals announced in the proposed rule
and not the Services' open-ended request for suggestions. Furthermore,
commenters stated that if the Services make changes based on this open-
ended and vague premise, the final rule would fail the logical-
outgrowth test and be in violation of the Administrative Procedure Act
(APA) because this outcome would deny the public and all stakeholders
the opportunity to provide comments regarding these changes.
Response: Although we do not necessarily agree with the commenters'
interpretation of the APA, none of the changes we make in this final
rule relies upon the assertion in the quoted sentence that the final
rule may include changes to ``any provisions in part 424'' not
addressed in the proposed rule. The regulatory changes we finalize in
this document flow directly from the regulatory provisions in the
proposed rule, with modifications made in response to comments as
explained throughout this document, and from the Services' specific
invitation for public comment on whether they should modify the
definition of ``physical or biological features.'' We have determined
to reserve for a later date our consideration of, and any action
regarding, issues outside the scope of those specific provisions.
Comment: Many commenters had concerns regarding specific proposed
changes, calling them arbitrary and capricious and therefore in
violation of the APA.
Response: We do not agree with the assertion that the specific
proposed changes to our implementing regulations are arbitrary and
capricious. We published our proposal, detailed our proposed revised
regulation changes, explained our rationale for changes and explicitly
asked for public comment. We have now reviewed the public comments and
in this final rule have provided responses to significant comments and
made some changes in response to those comments as explained throughout
this document. As to two issues (the definitions for ``geographical
area occupied by the species'' and ``physical or biological
features''), we sought specific public comment without proposing
regulatory text. In this final rule, we have decided to address one of
those issues (the definition of ``physical or biological features
essential to the conservation of the species'') through minor
regulatory edits that merely incorporate and interpret some of the
statutory language from the Act's provision defining occupied critical
habitat without substantively changing the meaning or process for
identifying occupied critical habitat. We have provided the public with
our rationale and a meaningful opportunity to comment on all aspects of
the proposed rule. Thus, the process that we used to promulgate this
rule complied with the applicable requirements of the APA.
Comment: Several commenters stated that the Services have misled
stakeholders and effectively failed to provide adequate notice and
opportunity for public comment. The comments assert that we should
withdraw our proposal, republish it with a more accurate and clear
summary of the changes to the regulations and their implications, and
provide further opportunity for public comment.
Response: The Services have not misled stakeholders. We provided a
60-day public comment period on the proposed rule. Following
publication of our proposed rule, we held numerous webinars providing
an opportunity for States, tribes, non-governmental organizations, and
industry groups to ask questions and provide input directly to the
Services. This process satisfies the Services' obligation to provide
notice and comment under the APA.
Comment: Several tribes commented that traditional ecological
knowledge should constitute the best scientific data available and be
used by the Services.
Response: Traditional ecological knowledge (TEK) is important and
useful information that can inform us as to the status of a species,
historical and current trends, and threats that may be acting on it or
its habitat. The Services have often used TEK to inform decisions under
the Act regarding listings, critical habitat, and recovery. The Act
requires that we use the best scientific and commercial data available
to inform decisions to list a species and the best scientific data
available to inform designation of critical habitat, and in some cases
TEK may be included as part of what constitutes the best data
available. However, the Services cannot predetermine, as a general
rule, that TEK will be the best available data in every rulemaking. We
will continue to consider TEK along with other available data, weighing
all data appropriately in the decision process.
Comment: A State agency requested that we codify a requirement for
consultation with affected State wildlife management agencies, giving
effect to
[[Page 45050]]
the statutory language contained in section 7(a)(2) of the Act to
consult with the affected States on critical habitat designations, as
appropriate, to interpret inconclusive information, particularly
involving individuals.
Response: We do not agree that additional requirements are needed
to give effect to the statutory language in section 7(a)(2) regarding
consulting affected States prior to designating critical habitat. The
nature of this required consultation is already articulated in section
4(b)(5)(A)(ii), which requires the Secretary to give actual notice of
any proposed critical habitat designation to the appropriate State
agencies and invite their comment on the proposed designation. The
Services will continue to meet this requirement.
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 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 rule is 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. 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
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. At the proposed rule stage, we certified that this rule would not
have a significant economic effect on a substantial number of small
entities. Nothing in this final rule changes that conclusion.
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 Regulatory Flexibility
Act, above, this 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 rule would not place additional requirements on
any city, county, or other local municipalities.
(b) This 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 rule is not a ``significant regulatory
action''' under the Unfunded Mandates Reform Act. This rule would
impose no obligations on State, local, or tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this rule would not have
significant takings implications. This 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 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 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 rule would have significant federalism effects and have
determined that a federalism summary impact statement is not required.
This rule pertains only to factors for listing, delisting, or
reclassifying species and designation of critical habitat under the
Endangered Species 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)
This 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 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
[[Page 45051]]
Commerce (DOC) ``Tribal Consultation and Coordination Policy'' (May 21,
2013), DOC Departmental Administrative Order (DAO) 218-8, and NOAA
Administrative Order (NAO) 218-8 (April 2012), we have considered
possible effects of this final rule on federally recognized Indian
Tribes. Two informational webinars were held on July 31 and August 7,
2018, to provide additional information to interested Tribes regarding
the proposed regulations. After the opening of the public comment
period, we received multiple requests for coordination or Government-
to-Government consultation from multiple tribes: Cowlitz Indian Tribe;
Swinomish Indian Tribal Community; The Confederated Tribes of the Grand
Ronde Community of Oregon; Confederated Tribes of Warm Springs, Oregon;
Quinault Indian Nation; Makah Tribe; and the Suquamish Tribe. We
subsequently hosted a conference call on November 15, 2018, to listen
to Tribal concerns and answer questions about the proposed regulations.
On March 6, 2019, Service representatives attended the Natural
Resources Committee Meeting of the United and South and Eastern Tribes'
Impact Week conference in Arlington (Crystal City), VA. At this
meeting, we presented information, answered questions, and held
discussion regarding the regulatory changes.
The Services conclude that the changes to these implementing
regulations make general changes to the Act's implementing regulations
and do not directly affect specific species or Tribal lands or
interest. These regulations streamline and clarify the processes for
listing species and designating critical habitat and directly affect
only the Services. With or without these regulatory revisions, the
Services would be obligated to continue to list species and to
designate critical habitat based on the best available data. Therefore,
we conclude that these regulations do not have ``tribal implications''
under section 1(a) of E.O. 13175, and formal government-to-government
consultation is not required by the Executive order and related
policies of the Departments of Commerce and the Interior. We will
continue to collaborate with Tribes on issues related to federally
listed species and their habitats and work with them as we implement
the provisions of the Act. 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 rule does not contain any new collections of information that
require approval by the OMB under the Paperwork Reduction Act. This
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 analyzed this final rule in accordance with the criteria of
NEPA, the Department of the Interior regulations on implementation of
NEPA (43 CFR 46.10-46.450), the Department of the Interior Manual (516
DM 8), the NOAA Administrative Order 216-6A, and the Companion Manual,
``Policy and Procedures for Compliance with the National Environmental
Policy Act and Related Authorities,'' which became effective January
13, 2017. We have determined that the final regulation is categorically
excluded from further NEPA review and that no extraordinary
circumstances are present. The rule qualifies for the substantially
similar categorical exclusions set forth at 43 CFR 46.210(i) and NOAA
Administrative Order 216-6A and Companion Manual at Appendix E
(Exclusion G7).
These revisions are an example of an action that is fundamentally
administrative, legal, technical, or procedural in nature. The
revisions go no further than to clarify the existing regulations and
make them more consistent with the statutory language, case law, and
plain-language standards. They are an effort to streamline and clarify
the procedures and criteria that the Services use for listing or
delisting species and for designating critical habitat. These revisions
directly affect only the FWS and NMFS, which are the agencies charged
with implementing the provisions of the statute, and they do not affect
any specific areas. Specifically, rather than substantively changing
the status quo, the effect of these revisions is to respond to court
decisions and articulate the Services' understanding and practice with
respect to the statutory provisions for listing species and designating
critical habitat. Further, the Services must still continue to list
species and to designate critical habitat based on the best available
scientific information, with or without these regulatory revisions.
Finally, none of these revisions will affect the opportunity for public
involvement in, or outcome of, either agency's decisions on listing
species or designating critical habitat.
We also considered whether any ``extraordinary circumstances''
apply to this situation, such that the DOI categorical exclusion would
not apply. See 43 CFR 46.215 (``Categorical Exclusions: Extraordinary
Circumstances''). We have determined that none of the circumstances
apply to this situation. Although the final regulations would revise
the implementing regulations for section 4 of the Act, the effects of
these changes would not ``have significant impacts on species listed,
or proposed to be listed, on the List of Endangered or Threatened
Species or have significant impacts on designated Critical Habitat for
these species,'' as the effect of the revisions is to provide
transparency about the Services' implementation of the Act based upon
court decisions and the Services' understanding and practices.
Furthermore, the revised regulations do not ``[e]stablish a precedent
for future action or represent a decision in principle about future
actions with potentially significant environmental effects'' (43 CFR
46.215(e)), as any future listing, classification, or delisting
decisions will continue to be based on the best available scientific
information presented in a particular record. None of the extraordinary
circumstances in 43 CFR 46.215(a) through (l) apply to the revised
regulations in 50 CFR 17.31 or 17.71. Nor would the final regulations
trigger any of the extraordinary circumstances under NOAA's Companion
Manual to NAO 216-6A. This rule does not involve: (a) Adverse effects
on human health or safety that are not negligible or discountable; (b)
adverse effects on an area with unique environmental characteristics
(e.g., wetlands and floodplains, national marine sanctuaries, or marine
national monuments) that are not negligible or discountable; (c)
adverse effects on species or habitats protected by the ESA, the MMPA,
the MSA, NMSA, or the Migratory Bird Treaty Act that are not negligible
or discountable; (d) the potential to generate, use, store, transport,
or dispose of hazardous or toxic substances, in a manner that may have
a significant effect on the environment; (e) adverse effects on
properties listed or eligible for listing on the National Register of
Historic Places authorized by the National Historic Preservation Act of
1966, National Historic Landmarks designated by the Secretary of the
Interior, or National Monuments designated through the Antiquities Act
of 1906; Federally
[[Page 45052]]
recognized Tribal and Native Alaskan lands, cultural or natural
resources, or religious or cultural sites that cannot be resolved
through applicable regulatory processes; (f) a disproportionately high
and adverse effect on the health or the environment of minority or low-
income communities, compared to the impacts on other communities; (g)
contribution to the introduction, continued existence, or spread of
noxious weeds or nonnative invasive species known to occur in the area
or actions that may promote the introduction, growth, or expansion of
the range of the species; (h) a potential violation of Federal, State,
or local law or requirements imposed for protection of the environment;
(i) highly controversial environmental effects; (j) the potential to
establish a precedent for future action or an action that represents a
decision; in principle about future actions with potentially
significant environmental effects; (k) environmental effects that are
uncertain, unique, or unknown; or (l) the potential for significant
cumulative impacts when the proposed action is combined with other
past, present and reasonably foreseeable future actions, even though
the impacts of the proposed action may not be significant by
themselves.
FWS completed an Environmental Action Statement, which NOAA adopts,
explaining the basis for invoking the agencies' substantially similar
categorical exclusions for the regulatory revisions to 50 CFR 424.02,
424.11 and 424.12. The environmental action statement is available at
http://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0006.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. The revised
regulations 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.
Authority
We issue this 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.
Regulation Promulgation
For the reasons set out in the preamble, we hereby 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. 424.02 by removing the definition of ``Physical or
biological features'' and in its place adding a definition for
``Physical or biological features essential to the conservation of the
species'' to read as follows:
Sec. 424.02 Definitions.
* * * * *
Physical or biological features essential to the conservation of
the species. The features that occur in specific areas and that are
essential to 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.
* * * * *
0
3. Amend Sec. 424.11 by revising paragraphs (b) through (f) and adding
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 must analyze whether the species is likely to become an
endangered species within the foreseeable future. The term foreseeable
future extends only so far into the future as the Services can
reasonably determine that both the future threats and the species'
responses to those threats are likely. The Services will describe the
foreseeable future on a case-by-case basis, using the best available
data and taking into account considerations such as the species' life-
history characteristics, threat-projection timeframes, and
environmental variability. The Services need not identify the
foreseeable future in terms of a specific period of time.
(e) The Secretary shall delist a species if the Secretary finds
that, after conducting a status review based on the best scientific and
commercial data available:
(1) The species is extinct;
(2) The species does not meet the definition of an endangered
species or a threatened species. In making such a determination, the
Secretary shall consider the same factors and apply the same standards
set forth in paragraph (c) of this section regarding listing and
reclassification; or
(3) The listed entity does not meet the statutory definition of a
species.
(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) 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.
[[Page 45053]]
(g) The Secretary shall take into account, in making determinations
under paragraph (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
4. 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) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
* * * * *
(b) * * *
(2) The Secretary will designate as critical habitat, at a scale
determined by the Secretary to be appropriate, specific areas outside
the geographical area occupied by the species only upon a determination
that such areas are essential for the conservation of the species. When
designating critical habitat, the Secretary will first evaluate areas
occupied by the species. The Secretary will only consider unoccupied
areas to be essential where a critical habitat designation limited to
geographical areas occupied would be inadequate to ensure the
conservation of the species. In addition, for an unoccupied area to be
considered essential, the Secretary must determine that there is a
reasonable certainty both that the area will contribute to the
conservation of the species and that the area contains one or more of
those physical or biological features essential to the conservation of
the species.
* * * * *
Dated: August 12, 2019.
David L. Bernhardt,
Secretary, Department of the Interior.
Dated: August 9, 2019.
Wilbur Ross,
Secretary, Department of Commerce.
[FR Doc. 2019-17518 Filed 8-26-19; 8:45 am]
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