[Federal Register Volume 85, Number 151 (Wednesday, August 5, 2020)]
[Proposed Rules]
[Pages 47333-47337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17002]


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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-2020-0047, FF09E23000 FXES1111090FEDR 201; Docket 
No. 200720-0197]
RIN 1018-BE69; 0648-BJ44


Endangered and Threatened Wildlife and Plants; Regulations for 
Listing Endangered and Threatened Species and Designating Critical 
Habitat

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

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (collectively referred to as the 
``Services'' or ``we''), propose to add a definition of ``habitat'' to 
our regulations that implement section 4 of the Endangered Species Act 
of 1973, as amended (Act).

DATES: We will accept comments from all interested parties until 
September 4, 2020. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES below), the deadline for submitting 
an electronic comment is 11:59 p.m. Eastern Standard Time on this date.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal:
    http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-
2020-0047, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. You 
may submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-HQ-ES-2020-0047; U.S. Fish & Wildlife Service, 
MS: PRB(3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: 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, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910, telephone 301/427-8403. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service (FRS) at 800/877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    The Secretaries of the Interior and Commerce (the ``Secretaries'') 
share responsibilities for implementing most of the provisions of the 
Endangered Species Act of 1973, as amended (``Act''; 16 U.S.C. 1531 et 
seq.). Generally, marine and anadromous species are under the 
jurisdiction of the Secretary of Commerce, and all other species are 
under the jurisdiction of the Secretary of the Interior. (For ease of 
reading, we refer to ``the Secretary'' in this rule, which could be 
either the Secretary of the Interior or the Secretary of Commerce.) 
Authority to administer the Act has been delegated by the Secretary of 
the Interior to the Director of FWS and by the Secretary of Commerce to 
the Assistant Administrator for NMFS.
    The purposes of the Act are to provide a means to conserve the 
ecosystems upon which listed species depend, to develop a program for 
the conservation of listed species, and to achieve the purposes of 
certain treaties and conventions. 16 U.S.C. 1531(b). Moreover, the Act 
states that it is the policy of Congress that the Federal Government 
will seek to conserve threatened and endangered species and use its 
authorities to further the purposes of the Act. 16 U.S.C. 1531(c)(1).
    One of the tools under the Act to conserve species is the 
designation of critical habitat. The purpose of critical habitat is to 
identify the areas that are essential to the species' recovery. In 
section 3(5)(A) of the Act, Congress defined ``critical habitat'' as:

[[Page 47334]]

    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the provisions of 
section 1533 of this title, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection; and
    (ii) specific areas outside the geographical area occupied by the 
species at the time it is listed in accordance with the provisions of 
section 1533 of this title, upon a determination by the Secretary that 
such areas are essential for the conservation of the species. 16 U.S.C. 
1532(5)(A).
    Our existing implementing regulations at 50 CFR 424.02 set forth 
relevant definitions pertaining to listing species under the Act and 
designating critical habitat.

Proposed Regulatory Revisions

    We are proposing a regulatory definition of ``habitat,'' as that 
term is used in the context of critical habitat designations under the 
Act. The Act defines ``critical habitat'' in Section 3(5)(A), 
establishing separate criteria depending on whether the relevant area 
is within or outside of the geographical area occupied by the species 
at the time of listing, but does not define the broader term 
``habitat.'' See 16 U.S.C. 1532(5)(A). Nor have the Services previously 
adopted a definition of the term ``habitat'' through regulations or 
policy; rather, we have traditionally applied the criteria from the 
definition of ``critical habitat'' based on the implicit premise that 
any specific area satisfying that definition was habitat.
    However, the Supreme Court recently held that an area must 
logically be ``habitat'' in order for that area to meet the narrower 
category of ``critical habitat'' as defined in the Act, regardless of 
whether that area is occupied or unoccupied. Weyerhaeuser Co. v. U.S. 
FWS, 139 S. Ct. 361 (2018). The Court stated: ``Section 4(a)(3)(A)(i) 
does not authorize the Secretary to designate [an] area as critical 
habitat unless it is also habitat for the species.'' 139 S. Ct. at 368. 
Given this holding in the Supreme Court's opinion in Weyerhaeuser, we 
are proposing to add a regulatory definition of ``habitat.'' We took an 
initial step to address the Supreme Court's decision in Weyerhaeuser in 
our recent revisions to the implementing regulations governing 
designation of critical habitat (at 50 CFR 424.12). In those revisions, 
the Services made some modifications to the regulatory requirements 
that must be met for areas outside the geographical area occupied at 
the time of listing to be considered ``essential for the conservation 
of the species'' (which is the standard that an unoccupied area must 
meet to be considered ``critical habitat''). Because the factual 
situation at issue before the Supreme Court involved unoccupied areas, 
it made sense to address that aspect of our regulations first. However, 
we noted that we were not attempting to define ``habitat'' in those 
revisions, but instead were considering developing such a definition 
through separate rulemaking. We now undertake that task in order to 
provide transparency, clarity, and consistency for stakeholders.
    Under the text and logic of the statute, the definition of 
``habitat'' must inherently be broader than the statutory definition of 
``critical habitat.'' To give effect to all of section 3(5)(A), the 
definition of ``habitat'' we propose is broad enough to include both 
occupied critical habitat and unoccupied critical habitat, because the 
statute defines ``critical habitat'' to include both occupied and 
unoccupied areas.

Definition of Habitat

    We propose to add the following definition of the term ``habitat'' 
to Sec.  424.02.
    The physical places that individuals of a species depend upon to 
carry out one or more life processes. Habitat includes areas with 
existing attributes that have the capacity to support individuals of 
the species.
    In addition, we have provided, and solicit comment on, an 
alternative definition of ``habitat'' as follows:

    The physical places that individuals of a species use to carry 
out one or more life processes. Habitat includes areas where 
individuals of the species do not presently exist but have the 
capacity to support such individuals, only where the necessary 
attributes to support the species presently exist.

    We solicit comment on these definitions, in particular on whether 
``depend upon'' in the proposed definition sufficiently differentiates 
areas that could be considered habitat, or whether ``use'' better 
describes the relationship between a species and its habitat. We also 
solicit comment on the second sentence of the alternative definition. 
Though it is similar to the second sentence of the proposed definition, 
it expressly limits unoccupied habitat for a species to areas ``where 
the necessary attributes to support the species presently exist,'' and 
explicitly excludes areas that have no present capacity to support 
individuals of the species. We invite comment on whether either 
definition is too broad or too narrow or is otherwise proper or 
improper, and on whether other formulations of a definition of 
``habitat'' would be preferable to either of the two definitions, 
including formulations that incorporate various aspects of these two 
definitions.
    The proposed definition \1\ reflects the principle that a species' 
habitat is based on its particular ecology. In developing this 
particular definition of habitat, we reviewed many definitions of 
habitat from the ecological literature; however, no pre-existing 
definition was adequate to address the particular regulatory framework 
that we are implementing. Therefore, we incorporated useful concepts 
from the literature to the extent appropriate and added concepts based 
on our decades of expertise so as to define the term ``habitat'' in a 
manner that would be sufficiently broad to fully encompass both the 
occupied and unoccupied prongs of the definition of ``critical 
habitat'' in the Act. In particular, the proposed definition is written 
so as to include unoccupied habitat, whereas many of the definitions in 
the ecological literature that we reviewed did not appear to consider 
unoccupied areas. While we have intentionally refrained from using 
within this proposed regulatory definition of ``habitat'' terms of art 
from other definitions in the Act to avoid potential confusion, 
including the phrase ``physical or biological features'' from the 
definition of ``critical habitat,'' we propose ``existing attributes'' 
to include, but not be limited to, such ``physical or biological 
features.'' We invite comment on this issue, including whether the 
words ``existing attributes'' are appropriate to include and whether 
they warrant further clarification or change or should be differently 
or further defined or explained.
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    \1\ We believe that the following discussion of the proposed 
definition applies generally to both the main definition and the 
alternative definition described above. Nonetheless, we invite 
comment on whether any aspects of this discussion apply more to one 
definition than to the other definition. We also invite comment on 
the significance of any such differences.
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    The Services are responsible for a vast array of species, including 
freshwater vertebrates and invertebrates; terrestrial plants and 
animals; and marine fish, marine mammals, turtles, and corals. Because 
of this diversity, the definition of the term ``habitat'' must be 
somewhat generic to accommodate the wide variety of abiotic or biotic 
attributes species need to carry out their life processes. Habitat 
contains food, water, cover, or space that individuals of a species 
depend upon to carry out one or more of their life processes.

[[Page 47335]]

    Seasonally or intermittently used areas also constitute habitat for 
various species and may include reproductive habitat, nursery habitat, 
dispersal habitat, migration habitat, and overwintering habitat. For 
example, a terrestrial mammal may need a particular space for denning 
at a certain time of the year separate from areas needed for feeding. 
We would consider both the seasonally used breeding areas and the 
feeding areas to be habitat for this species. In other instances, 
species' habitat may be variable, both temporally and spatially, such 
as beach overwash areas, early-successional riparian communities, or 
riverine sandbars. For example, the sand bars that interior least terns 
use in a river may develop during particular times of the year 
correlating to changes in flow rates of a stream or river system. 
Although we are not able to predict exactly where within the river sand 
bars will form, we know they will form within that general setting and 
their precise location will likely change from year to year. In this 
case, the particular stream reach in which the sand bars are known to 
periodically form constitutes ``habitat'' for the tern.
    In proposing to establish this definition, we do not intend to 
create a new procedural step that would need to be undertaken prior to 
designating critical habitat in every case. We expect that in the vast 
majority of cases that would be unnecessary, in light of the specific 
criteria of the statutory definition of ``critical habitat'' coupled 
with the changes recently finalized at 50 CFR 424.12. Specifically, we 
interpret the statutory definition of ``critical habitat,'' as it 
applies to occupied habitat, to inherently verify that an area meeting 
that definition is ``habitat.'' By application of the statutory 
definition, such an area is by definition part of the species' occupied 
range at the time of listing and contains one or more of the essential 
physical or biological features. In those fewer cases where unoccupied 
habitat is at issue, we would consider any questions raised as to 
whether the area is ``habitat'' in the context of the new regulatory 
requirements at Sec.  424.12(b)(2) and document the determination 
whether the area is habitat. In this way, the proposed regulatory 
definition of ``habitat'' would not impose any additional procedural 
steps or change in how we designate critical habitat, but would instead 
serve as a regulatory standard to help ensure that unoccupied areas 
that we designate as critical habitat are ``habitat'' for the species 
and are defensible as such. With the addition of the regulatory 
definition of ``habitat,'' the process of designating critical habitat 
will remain efficient by limiting the need to evaluate whether an area 
is ``habitat'' to only those cases where genuine questions exist.
    In proposing the specific definition in this rule and setting out 
the accompanying clarifying discussion in this preamble, the Services 
are proposing prospective standards only. Nothing in this proposed 
regulation is intended to require that any previously finalized 
critical habitat designations (i.e., designations that were made final 
on or before the date on which this rule becomes effective) be 
reevaluated on the basis of any final revisions to this proposed rule.

Public Comments

    We solicit comment on all aspects of this proposal, including 
whether any other language should be included in or excluded from the 
final definition to be set forth in our regulations and whether the 
main and alternative definitions have (or do not have) implications for 
the use of the term ``habitat'' as it appears in other provisions of 
the Act.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. Comments must be 
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern 
Time) on the date specified in DATES. We will not consider mailed 
comments that are not postmarked by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. 
Comments and materials we receive, as well as supporting documentation 
we used in preparing this proposed rule, will be available for public 
inspection on http://www.regulations.gov.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements. This proposed rule is consistent with 
Executive Order 13563, and in particular with the requirement of 
retrospective analysis of existing rules, designed ``to make the 
agency's regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''

Executive Order 13771

    This proposed rule is an Executive Order 13771 ``other'' action.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
601 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency, or his designee, certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. We certify that, if adopted as 
proposed, this proposed rule would not have a significant economic 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    This rulemaking implements applicable Supreme Court case law and 
revises and clarifies procedures for NMFS and FWS regarding designating 
critical habitat under the Endangered Species Act to reflect agency 
experience and, with minor changes, codifies current agency practices. 
The proposed

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changes to these regulations do not alter the reach of designations of 
critical habitat.
    NMFS and FWS are the only entities that are directly affected by 
this rule because we are the only entities that designate critical 
habitat under the Endangered Species Act. No external entities, 
including any small businesses, small organizations, or small 
governments, will experience any economic impacts from this rule.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) On the basis of information contained in the Regulatory 
Flexibility Act section above, this proposed rule would not 
``significantly or uniquely'' affect small governments. We have 
determined and certify pursuant to the Unfunded Mandates Reform Act, 2 
U.S.C. 1502, that this rule would not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments would not be affected because the proposed 
rule would not place additional requirements on any city, county, or 
other local municipalities.
    (b) This proposed rule would not produce a Federal mandate on 
State, local, or tribal governments or the private sector of $100 
million or greater in any year; that is, this proposed rule is not a 
``significant regulatory action''' under the Unfunded Mandates Reform 
Act. This proposed rule would impose no obligations on State, local, or 
tribal governments.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule would not 
directly affect private property, nor would it cause a physical or 
regulatory taking. It would not result in a physical taking because it 
would not effectively compel a property owner to suffer a physical 
invasion of property. Further, the proposed rule would not result in a 
regulatory taking because it would not deny all economically beneficial 
or productive use of the land or aquatic resources and it would 
substantially advance a legitimate government interest (conservation 
and recovery of endangered species and threatened species) and would 
not present a barrier to all reasonable and expected beneficial use of 
private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule would have significant Federalism effects 
and have determined that a federalism summary impact statement is not 
required. This proposed rule pertains only to 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 proposed rule does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988. This proposed rule pertains only to designation 
of critical habitat under the Endangered Species Act.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' the Department of the 
Interior's manual at 512 DM 2, and the Department of Commerce (DOC) 
Tribal Consultation and Coordination Policy (May 21, 2013), DOC 
Departmental Administrative Order (DAO) 218-8 (April 2012), and NOAA 
Administrative Order (NAO) 218-8 (April 2012), we are considering 
possible effects of this proposed rule on federally recognized Indian 
Tribes. The Services have reached a preliminary conclusion that the 
changes to these implementing regulations are general in nature and do 
not directly affect specific species or Tribal lands. These regulations 
clarify the processes for designating critical habitat and directly 
affect only the Services. With or without these regulatory revisions, 
the Services would be obligated to continue 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 therefore formal government-to-government 
consultation is not required by E.O. 13175 and related policies of the 
Departments of Commerce and 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 proposed rule does not contain any new collections of 
information that require approval by the OMB under the Paperwork 
Reduction Act. This proposed rule will not impose recordkeeping or 
reporting requirements on State, local, or Tribal governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We are analyzing this proposed regulation in accordance with the 
criteria of the National Environmental Policy Act (NEPA), the 
Department of the Interior regulations on Implementation of the 
National Environmental Policy Act (43 CFR 46.10-46.450), the Department 
of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-
6A, and the NOAA Companion Manual (CM), ``Policy and Procedures for 
Compliance with the National Environmental Policy Act and Related 
Authorities'' (effective January 13, 2017). This rulemaking responds to 
recent Supreme Court case law.
    As a result, we anticipate that the categorical exclusion found at 
43 CFR 46.210(i) applies to the proposed regulation changes. At 43 CFR 
46.210(i), the Department of the Interior has found that the following 
category of actions would not individually or cumulatively have a 
significant effect on the human environment and are, therefore, 
categorically excluded from the requirement for completion of an 
environmental assessment or environmental impact statement: ``Policies, 
directives, regulations, and guidelines: that are of an administrative, 
financial, legal, technical, or procedural nature.''
    NOAA's NEPA procedures include a similar categorical exclusion for 
``preparation of policy directives, rules, regulations, and guidelines 
of an administrative, financial, legal, technical, or procedural 
nature.'' (Categorical Exclusion G7, at CM Appendix E).
    We are continuing to consider the extent to which this proposed 
regulation may have a significant impact on the human environment or 
fall within one of the categorical exclusions for actions that have no 
individual or cumulative effect on the quality of the human 
environment. We invite the public to

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comment on these or any other aspects of NEPA analyses needed for these 
revisions. We will complete our analysis in accordance with applicable 
NEPA regulations before finalizing this regulation.

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

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

Clarity of the Rule

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

Authority

    We issue this proposed rule under the authority of the Endangered 
Species Act, as amended (16 U.S.C. 1531 et seq).

List of Subjects in 50 CFR Part 424

    Administrative practice and procedure, Endangered and threatened 
species.

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.
Chris Oliver,
Assistant Administrator, National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration.

Proposed Regulation Promulgation

    For the reasons set out in the preamble, we hereby propose to amend 
part 424, subchapter A of chapter IV, title 50 of the Code of Federal 
Regulations, as set forth below:

PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING 
CRITICAL HABITAT

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

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

0
2. Amend Sec.  424.02 by adding a definition for ``Habitat'' in 
alphabetical order to read as follows:


Sec.  424.02  Definitions.

* * * * *
    Habitat. The physical places that individuals of a species depend 
upon to carry out one or more life processes. Habitat includes areas 
with existing attributes that have the capacity to support individuals 
of the species.
* * * * *
[FR Doc. 2020-17002 Filed 8-4-20; 8:45 am]
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