[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Proposed Rules]
[Pages 59346-59353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23011]



[[Page 59346]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2019-0115; FF09E23000 FXES1111090FEDR 212]
RIN 1018-BD84


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

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (``the Service'') proposes 
to rescind the final rule titled ``Endangered and Threatened Wildlife 
and Plants; Regulations for Designating Critical Habitat'' that 
published on December 18, 2020, and became effective January 19, 2021 
(``the Final Rule''). The proposed rescission, if finalized, would 
remove the regulations established by that rule.

DATES: We will accept comments from all interested parties until 
November 26, 2021. 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: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2019-0115, 
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.''
    (2) By hard copy: Submit by U.S. mail: Public Comments Processing, 
Attn: FWS-HQ-ES-2019-0115; U.S. Fish and Wildlife Service, MS:JAO (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 https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife 
Service, Division of Conservation and Classification, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. If you use a 
telecommunications device for the deaf, call the Federal Relay Service 
at 800/877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Title 50 of the Code of Federal Regulations (CFR) pertains to 
Wildlife and Fisheries. Chapter I, which consists of parts 1 through 
199, includes regulations administered by the Service. The implementing 
regulations for the designation of critical habitat for listed species 
are located in 50 CFR part 424. Relevant definitions are at 50 CFR 
424.02, and the standards and procedures for identifying critical 
habitat are at 50 CFR 424.12. These regulations are jointly 
administered by the Service and the National Marine Fisheries Service 
(NMFS) (collectively, the Services). On February 11, 2016, the Services 
issued a joint policy describing how they implement the authority to 
exclude areas from critical habitat designations (Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act, 81 FR 
7226; ``the Policy'').
    On December 18, 2020, the Service (``we'' or ``our'') amended 
portions of our regulations that implement section 4 of the Endangered 
Species Act of 1973, as amended (codified at 16 U.S.C. 1531 et seq.) 
(``the Act''). The final regulation (85 FR 82376 (``the Final Rule'')) 
was incorporated into 50 CFR part 17 (at Sec.  17.90) because the rule 
applied solely to critical habitat designated by the U.S. Fish and 
Wildlife Service. The Final Rule set forth a process for implementing 
section 4(b)(2) of the Act, which requires us to consider the impacts 
of designating critical habitat and allows us to exclude particular 
areas following a discretionary exclusion analysis subject to certain 
limitations (16 U.S.C. 1533(b)(2)). The Final Rule also summarized and 
responded to numerous public comments that we received on the proposed 
rule, which was published on September 5, 2020, (85 FR 55398). That 
proposed rule provided the background for proposed revisions in terms 
of the statute, legislative history, and case law.
    Section 4(b)(2) of the Act requires that the Service consider the 
economic impact, the impact on national security, and any other 
relevant impact of designating any particular areas as critical 
habitat. It provides that the Service then may engage in a further 
discretionary consideration and exclude particular areas from the 
designation if the benefits of exclusion outweigh the benefits of 
inclusion and exclusion would not result in extinction of the species. 
In the Final Rule, we discussed our desire to articulate clearly when 
and how we will undertake such an exclusion analysis under section 
4(b)(2), including identifying a non-exhaustive list of categories of 
potential impacts for the Service to consider (85 FR at 82376; December 
18, 2020).
    The Final Rule revisited certain language in the preamble of the 
Policy, as well as certain statements in the preamble to a 2013 rule 
that had revised the regulations on the timing of our economic analyses 
at 50 CFR 424.19 (78 FR 53058, August 28, 2013) (``the 2013 Rule'')). 
Our goal for the Final Rule was to clarify, based on agency experience, 
how the Service considers impacts caused by critical habitat 
designations and conducts our discretionary exclusion analyses, 
partially in light of the Supreme Court's recent decision in 
Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018) (Weyerhaeuser). The 
Final Rule also stated that the Service's implementation of the 2016 
Policy would be superseded by implementation of the regulations at 50 
CFR 17.90.

Rationale for Rescission

    On January 20, 2021, the President issued Executive Order 13990 (86 
FR 7037; ``the E.O.''), which, among other things, required all 
agencies to review agency actions issued between January 20, 2017 and 
January 20, 2021 to determine consistency with the purposes articulated 
in section 1 of the E.O. A ``Fact Sheet'' supporting the E.O. set forth 
a non-exhaustive list of specific agency actions that agencies were 
required to review. One of the agency actions included on the Fact 
Sheet was the December 18, 2020 Final Rule. Pursuant to the direction 
in the E.O., we have reviewed the Final Rule to assess whether to keep 
the rule in place or to revise any aspects of it. Our review included 
evaluating the benefits or drawbacks of the rule, the necessity of the 
rule, its consistency with applicable case law, its inconsistency with 
NMFS's process for applying section 4(b)(2) of the Act, and other 
factors. Based on our evaluation, we propose to rescind the Final Rule. 
If we make a final decision to rescind the Final Rule, the 2016 Policy 
will no longer be superseded, and we will resume full implementation of 
the Policy and the regulations at 50 CFR 424.19. In proposing the 
specific changes to the regulations in this document and setting out 
the accompanying clarifying discussion in this preamble, FWS is 
proposing prospective standards only. Nothing in this proposed 
rescission is intended to require (if this rule becomes final) that

[[Page 59347]]

any previously finalized critical habitat designations be reevaluated 
on the basis of the final decision.
    In the preamble to the Final Rule, we explained that, in light of 
the Supreme Court's decision in Weyerhaeuser, we needed to revisit 
certain language in the preambles for the 2013 Rule and the Policy that 
asserted that exclusion decisions are committed to agency discretion 
and therefore judicially unreviewable. For example, in the preamble to 
the 2013 Rule, the Services had cited case law that supported their 
conclusion that exclusions are wholly discretionary and that the 
discretion not to exclude an area is judicially unreviewable (78 FR 
53072; August 28, 2013). The Services also stated in the preamble to 
the Policy that then-recent court decisions resoundingly upheld the 
discretionary nature of the Secretaries' consideration of whether to 
exclude areas from critical habitat (81 FR 7226, 7233; February 11, 
2016), and that, although the Services will explain their rationale for 
not excluding a particular area, that decision is judicially 
unreviewable because it is committed to agency discretion (id. at 
7234).
    The Supreme Court's opinion in Weyerhaeuser rendered inaccurate 
prior statements regarding judicial reviewability. Although the word 
``may'' in the second sentence of section 4(b)(2) indicates 
discretionary authority, such that the Secretary is not required to 
exclude areas in any particular circumstances (16 U.S.C. 1533(b)(2)), 
the Court in Weyerhaeuser held that decisions not to exclude areas may 
be reviewed by courts for abuse of discretion under section 706(2) of 
the Administrative Procedure Act (APA, 5 U.S.C. 706(2)). 139 S. Ct. at 
371. In response, we stated in our December 18, 2020, Final Rule that 
the ruling in Weyerhaeuser underscored the importance of being 
deliberate and transparent about how the Service goes about making 
exclusion decisions, such that we were proposing regulations to provide 
that ``transparency, clarity, and certainty to the public and other 
stakeholders'' (85 FR 82385).
    During the comment period for the proposed rule, we received 
numerous public comments that provided both support and opposition for 
many of the provisions included in the proposed rule. At that time, we 
considered all of the comments and decided that finalization of the 
Final Rule was an appropriate policy decision. In issuing the Final 
Rule, we concluded that the criticisms brought forth by commenters were 
not sufficient to change our approach in that rulemaking.
    We acknowledge that we are now adopting many of those criticisms as 
support for rescinding the Final Rule. Upon our reconsideration, we are 
now changing our view of the best way to provide a balance between 
transparency and predictability on the one hand, and flexibility and 
discretion on the other. We explain below why we have concluded that 
this changed approach is preferable to the Final Rule. We now find that 
the Final Rule is problematic because it unduly constrained the 
Service's discretion in administering the Act, potentially limiting or 
undermining the Service's role as the expert agency and its ability to 
further the conservation of endangered and threatened species through 
designation of their critical habitats. Our specific rationale for why 
we now find that the Final Rule does not achieve its stated goals or 
further the conservation of species is set forth below.
    First, the Final Rule potentially limits or undermines the 
Service's role as the expert agency responsible for administering the 
Act because it potentially gives undue weight to outside parties in 
guiding the Secretary's statutory authority to exclude areas from 
critical habitat designations. Through the Secretary, Congress 
delegated the authority to designate critical habitat for listed 
species to the Service. Performance of parts of these responsibilities 
is outlined in section 4(b)(2) of the Act and includes evaluating 
information about the impacts of designating particular areas as 
critical habitat on economic, national security, and other 
considerations; determining which among competing data on potential 
impacts is the ``best available''; comparing the impacts of designation 
against the benefits of designating those areas and determining the 
weight that each should receive in the analysis; and making exclusion 
decisions based on the best scientific data available. The Final Rule 
potentially limits the Service from fulfilling aspects of this role by 
giving parties other than the Service, including proponents of 
particular exclusions, an outsized role in determining whether and how 
the Secretary will conduct exclusion analyses. This undue reliance on 
outside, directly affected parties in certain aspects of the process 
interferes with the Secretary's authority to evaluate and weigh the 
information provided by those parties, when determining what specific 
areas to designate as critical habitat for a species.
    Second, the Final Rule employs a rigid ruleset in all situations 
regardless of the specific facts as to when and how the Secretary will 
exercise the discretion to exclude areas from critical habitat 
designations. Although the preamble and response to comments in the 
Final Rule refers to using the best available information and based on 
the case-specific information to support exclusions analyses, the 
regulatory text mandates a rigid process for when the Secretary will 
enter into an exclusion analysis, how weights are assigned to impacts, 
and when an area is excluded. Therefore, implementing the Final Rule 
undermines the Service's ability to further the conservation of the 
species because the ruleset applies in all situations regardless of the 
specific facts at issue or the conservation outcomes. We now recognize 
that keeping the Final Rule would result in competing and potentially 
conflicting legal requirements when we undertake an exclusion analysis 
and could increase our legal vulnerability. Prior to the Final Rule, we 
implemented the Policy and 2013 Rule--neither of which set forth a 
rigid ruleset regarding the level of information needed for us to 
consider excluding areas, the weight we would assign to the information 
about impacts of designation, or any requirement to exclude areas under 
certain circumstances. In the Service's view, this approach achieved 
the balance that Congress sought when it enacted section 4(b)(2): It 
furthered the conservation of the species while still allowing for 
exclusions of particular areas when the benefits of exclusion 
outweighed the benefits of inclusion.
    Finally, we find that the Final Rule does not accomplish the goal 
of providing clarity and transparency. Section 4(b)(2) requires the 
Service to consider relevant information provided by other Federal 
agencies, Tribes, States, and other potentially affected stakeholders 
and members of the public about the economic, national security, and 
other relevant impacts of critical habitat designations. This 
responsibility makes it particularly important that potentially 
affected entities and other relevant stakeholders have a clear 
understanding of what information is relevant to the Secretary's 
evaluation of impacts of critical habitat designations and of how that 
information fits into the exclusion process. Thus, in this context it 
is preferable for the Service's section 4(b)(2) processes and standards 
to be consistent with those of NMFS. Having different regulations from 
those NMFS applies (i.e., 50 CFR 424.19) could result in different 
outcomes in analogous circumstances or for species where the Services 
share jurisdiction and therefore

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poses a significant risk of confusing other Federal agencies, Tribes, 
States, other potentially affected stakeholders and members of the 
public, and agency staff responsible for drafting critical habitat 
designations. We have not identified a science- or mission-based reason 
for separate regulations that would outweigh that risk. Thus, we find 
that the previous approach--in which both agencies follow the joint 
implementing regulations at 50 CFR 424.19 and the Policy--provides 
greater clarity for the public and Service staff. The Weyerhaeuser 
decision made clear that we now need to explain decisions not to 
exclude areas from critical habitat. Therefore, we will always explain 
our decisions not to exclude, with or without the Final Rule. Although 
we stated in the Final Rule that Weyerhaeuser was, in part, its 
impetus, even without the Final rule, and implementing the Final policy 
and 50 CFR 424.19, we will always explain our decisions not to exclude. 
We did not issue the final rule solely because of that decision. 
Rather, our intent was to provide greater clarity and transparency 
about the analyses we undertake and explain decisions not to exclude. 
However, the Policy and the regulations at 50 CFR 424.19 already 
provided that, and we have now concluded that the Final Rule was 
unnecessary and that it increased confusion and decreased clarity by 
articulating an approach that differed from both NMFS's approach and 
the jointly promulgated Policy. For these reasons, the Service now 
concludes that rescinding the Final Rule and resuming implementation of 
the 2013 Rule and the Policy will better enable the Service to ensure 
conservation of endangered and threatened species and the ecosystems on 
which they depend, as mandated by the Act. In addition to this 
overarching rationale, we explain below our basis for rescinding each 
of the primary substantive provisions contained in the Final Rule: The 
mandate to undertake a discretionary exclusion analysis whenever a 
proponent of an exclusion provides credible information supporting the 
exclusion; the generic prescription for weighing impacts; the mandate 
to exclude areas from a critical habitat designation whenever the 
benefits of exclusion outweigh the benefits of inclusion; the treatment 
of Federal lands; and the enumeration of factors to consider under 
section 4(b)(2).

Credible Information

    The Final Rule commits the Secretary to conduct a discretionary 
exclusion analysis whenever a proponent of an exclusion presents 
``credible information'' regarding the existence of a meaningful 
economic or other relevant impact supporting a benefit of exclusion for 
that particular area (85 FR at 82388; December 18, 2020). The preamble 
describes ``credible information'' as information that constitutes a 
``reasonably reliable indication'' regarding the impact, and stated 
that, in determining what constitutes ``credible information,'' we will 
look at whether the proponent presents factual information in support 
of the claimed impact (85 FR at 82380; December 18, 2020).
    We find that the ``credible information'' standard is vague and 
does not accomplish the stated goal of improving transparency about 
what information will or will not trigger an exclusion analysis, 
potentially resulting in inefficiencies and wasting the Service's 
limited resources. A requirement to always undertake an exclusion 
analysis when this standard is met does not accomplish its stated goal 
of providing transparency and clarity as to when the Service would 
conduct an exclusion analysis because the standard is not clear. In the 
Final Rule, we did not define ``meaningful impact,'' but we stated our 
intention for the phrase to mean only more than a de minimis impact. 
The Act requires us to take into consideration the best available data 
about the impacts of specifying particular areas as critical habitat, 
including information that any proponents of exclusions provide about 
the impacts of the designation (See 16 U.S.C. 1533(b)(2)). In addition, 
the Supreme Court's opinion in Weyerhaeuser already made clear that 
decisions not to exclude areas from critical habitat designation are 
judicially reviewable for abuse of discretion. 139 S. Ct. at 371. In 
light of that opinion, and regardless of the Final Rule, we must 
provide an explanation and support for our decisions to exclude any 
particular area, as well as decisions not to exclude (where a request 
with specific and relevant information has been made), as part of our 
critical habitat designations. Regardless of the Final Rule, the 
statutory requirement to designate critical habitat on the basis of the 
best scientific data available requires the Service to consider any 
information submitted by the public, including proponents of 
exclusions. Moreover, multiple court decisions have outlined standards 
and requirements to guide the Service's compliance with the best-
scientific-data-available requirement; these court decisions provide 
the Service with sufficient guidance on this topic. For example, the 
courts have held that, to comply with the requirement to designate 
critical habitat on the basis of the best scientific data available, 
the Service cannot ignore evidence just because it falls short of 
scientific certainty. Additionally, courts have held that, to comply 
with the requirement to designate critical habitat on the basis of the 
best scientific data available, the Service (1) must provide 
substantial evidence to support its designations of critical habitat, 
Otay Mesa Property v. U.S. DOI, 646 F.3d 914, 916-17 (D.C. Cir. 2011) 
(conclusion that San Diego fairy shrimp occupied an area at the time of 
listing was held to be invalid because it was not supported by 
substantial evidence); (2) may use flawed studies or data if the agency 
acknowledges and explains the limitations, In re Polar Bear ESA Listing 
and Section 4(d) Rule Litigation, 709 F.3d 1, 13 (D.C. Cir. 2013) 
(listing of the polar bear was valid even though it relied on flawed 
climate models because the Service explained the methodology of the 
models, acknowledged their limitations, and only used the models for 
the limited purpose of confirming the ``general direction and 
magnitude'' of the population trends; but (3) may reject studies if 
they are not reliable, Home Builders Ass'n of Cal. v. U.S. FWS, 529 F. 
Supp. 2d 1110, 1121 (N.D. Cal. 2007) (listing of the California tiger 
salamander, after rejecting a population estimate study as not being 
the best scientific data available, was valid because FWS had evaluated 
the study and founds its methodology to be flawed to the point of not 
being reliable), aff'd, 321 Fed. Appx. 704 (9th Cir. 2009); and (4) 
cannot ignore information if it is in some way better than the evidence 
on which it relies, Kern County Farm Bureau v. Allen, 450 F.3d 1072, 
1080-81 (9th Cir. 2006) (listing of the Buena Vista lake shrew was 
valid because the agency did not ignore three studies that were 
inconsistent with the final rule and instead evaluated and incorporated 
the studies into its analysis); (5) even if the information falls short 
of scientific certainty, Alabama-Tombigbee Rivers Coal. v. Kempthorne, 
477 F.3d 1250, 1260 (11th Cir. 2007) (listing of Alabama sturgeon as an 
endangered species was valid despite taxonomic uncertainty as to 
whether it is a separate species from the shovelnose sturgeon; ``[w]hen 
specialists express conflicting views, an agency must have discretion 
to rely on the reasonable opinions of its own qualified experts''). The 
``credible information'' provision is not necessary for improving 
clarity, and, to the contrary, it creates confusion by

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deviating from both the statutory standard and the Service's 
longstanding approach and practice.
    Prior to the Final Rule, under the Policy, the Service always 
considered requests for exclusion; in fact, in a response to a comment 
on the Policy, the Services stated that if a commenter provided a 
reasoned rationale for an exclusion, including measures undertaken to 
conserve species and habitat on the land at issue (such that the 
benefit of inclusion is reduced), the Services would consider exclusion 
of those lands. However, that provision retained the Secretaries' 
discretion to decide not to conduct exclusion analyses in appropriate 
circumstances. The Final Rule, on the other hand, makes a commitment to 
undertake exclusion analyses whenever proponents of an exclusion submit 
``credible information'' of a meaningful impact. This commitment 
reduces the Secretary's discretion not to conduct exclusion analyses in 
individual circumstances, even in situations in which it is clear to 
the Service, in its expert judgment and experience, that the benefits 
of exclusions are not going to outweigh the benefits of inclusion, 
thereby likely leading to unnecessary and time-consuming analyses. 
Because Congress appropriates a finite amount of funding for completing 
listing and critical habitat actions to protect endangered and 
threatened species, any resources that the Service expends on 
undertaking, and then potentially defending, unnecessary exclusion 
analyses for one species will reduce the Service's capacity to make 
listing and critical habitat decisions to protect other species.
    Furthermore, NMFS applies the Policy to guide the exercise of the 
Secretary's discretion in implementation of section 4(b)(2) of the Act. 
This significant difference in implementation of the same provision of 
the Act is likely to be confusing to other Federal agencies, Tribes, 
States, and other potentially affected stakeholders and members of the 
public, particularly in situations where fact patterns are largely 
similar. Implementing the Policy instead of the Final Rule would 
provide for a consistent approach between the Service and NMFS as to 
when we undertake an exclusion analysis at the request of a landowner, 
land manager, or other entity without compromising transparency or 
clarity in our implementation of section 4(b)(2) of the Act.

Assigning Weights According to Who Has the Expertise

    The Final Rule (85 FR 82380) states that, for impacts outside the 
scope of the Service's expertise, which was narrowly defined to extend 
only to biological issues, the Secretary will assign weights to the 
benefits of inclusion or exclusion consistent with the available 
information from experts and parties with firsthand knowledge, unless 
the Secretary has knowledge or material evidence that rebuts that 
information. ``Impacts that are outside the scope of the Service's 
expertise,'' according to the Final Rule, expressly include 
nonbiological impacts identified by States or local governments.
    After reconsidering the Final Rule, we find the provision to 
automatically assign weights based on the nonbiological impacts 
identified by entities outside the agency does not advance the 
conservation goals of the Act. Not only does it unduly constrain our 
authority and responsibility as the agency with the expert judgment in 
implementation of the Act, but it could also be at odds with the Act's 
mandate to base designations on the best scientific data available. 
Although the preamble and response to comments in the Final Rule 
addressed this concern by pointing out that we would make exclusion 
decisions on a case-by-case basis using the best available information, 
the regulatory text mandates a rigid process for how weights are 
assigned to impacts. We now recognize that keeping the Final Rule would 
result in competing and potentially conflicting legal requirements when 
we undertake an exclusion analysis and could increase our legal 
vulnerability. In section 4(b)(2) of the Act, Congress vested in the 
Secretary the authority and responsibility to assign weights to the 
impacts of designating particular areas as critical habitat. 
Automatically assigning weights based on information from parties other 
than the Secretary or their chain of command, including to parties that 
may have direct economic or other interests in the outcome of the 
exclusion analysis, regardless of whether those parties have expert or 
firsthand information, is in tension with Congress's decision to place 
that authority with the Secretary. Furthermore, the requirement that, 
unless we have rebutting information, the Secretary must assign weights 
to non-biological impacts based strictly on information from those 
entities constrains the Secretary's discretion to use their expert 
judgment and mandate to base designations on the best scientific data 
available.
    In addition, the requirement to assign weights consistent with 
expert or firsthand information submitted by proponents of exclusions 
was unnecessary. Even without that provision, the Service was already 
required to, and did, take into consideration expert and firsthand 
information submitted by proponents when it assigned weights to the 
impacts of designation. The Service applied the Policy, which states 
that the Secretary will assign weights to the benefits of inclusion and 
exclusion when conducting an exclusion analysis. Without the Final 
Rule, our consideration of impacts, including the weights we assigned 
to the impacts and identification of the best available data, would 
still be subject to judicial review under the APA's ``abuse of 
discretion'' standard. See Weyerhaeuser 139 S. Ct. at 371. The Policy 
would again guide the Service to consider relevant information provided 
by commenters without creating presumptions in tension with the 
statute's requirement that we designate critical habitat. Therefore, in 
applying the Policy (if this proposed rule were finalized), we would 
continue to consider information submitted by proponents of exclusions, 
as we did before the Final Rule was promulgated.
    We now find that the significant constraints that the Final Rule 
places on the Secretary's discretion undermine our role in undertaking 
an impartial evaluation of the relevant data, including information 
that proponents of exclusions provide, and hinders our ability to 
designate critical habitat based on the scientific data available as 
required by the statute and to provide for conservation of species.

Federal Lands

    The Policy states we would generally not exclude Federal lands from 
a designation of critical habitat because of the unique obligations of 
Federal land managers under the Act to conserve listed species and 
their habitats. The Final Rule states that the standards for evaluating 
Federal and non-Federal lands are the same and provided that our 
consideration of nonbiological impacts to permittees, lessees, or 
others with a permit, lease, or contract would be the same regardless 
of land ownership. It also states that the Secretary will assign 
weights to nonbiological impacts consistent with information provided 
by permittees, lessees, or contractor applicants for permits, leases, 
or contracts on Federal lands.

[[Page 59350]]

    Some commenters in the rulemaking process for the Final Rule 
asserted that the change in policy with respect to considering 
exclusion of Federal lands was arbitrary and capricious because we did 
not adequately explain the basis for the change or elaborate on any 
changed circumstances. The reasoning that the preamble described for 
making this change in the Final Rule was that we did not wish to 
foreclose the potential to exclude areas under Federal ownership in 
cases where the benefits of exclusion outweigh the benefits of 
inclusion. We find that the reasoning that the preamble describes for 
this change was incomplete because it overlooked some key context 
underscoring the benefits of focusing critical habitat designations on 
Federal lands.
    First, Congress declared its policy that ``all Federal departments 
and agencies shall seek to conserve endangered species and threatened 
species and shall utilize their authorities in furtherance of the 
purposes of this Act.'' (U.S.C 1531(c)(1)).
    Second, all Federal agencies have responsibilities under section 7 
of the Act to carry out programs for the conservation of listed species 
and to ensure their actions are not likely to jeopardize the continued 
existence of listed species or result in the destruction or adverse 
modification of critical habitat. Federal agencies should use their 
authorities to further the purposes of the Act, and Federal lands are 
often important to the recovery of listed species. To the extent 
possible, we intend to focus designation of critical habitat on Federal 
lands in an effort to avoid the real or perceived regulatory burdens on 
non-Federal lands.
    Finally, while the Final Rule acknowledges a change in the 
consideration of Federal lands from the Policy, it fails to recognize 
that the Policy does not prohibit exclusions of Federal lands, nor does 
it prohibit consideration of information provided by permittees, 
lessees, or contractors on Federal lands when the Secretary assigns 
weights to impacts under section 4(b)(2) of the Act. Thus, if this 
proposed rule were finalized, consistent with the Policy, the Secretary 
would retain their discretion to exclude Federal lands when the factual 
circumstances merit it. We find that the approach in the Policy better 
equips the Service with the flexibility necessary to account for the 
wide variability of circumstances in which the Secretary makes 
exclusion decisions--variability in the needs of the species, in the 
geography and quality of critical habitat areas, and of land ownership 
arrangements. For example, while the transactional costs of 
consultation with Federal agencies tend to be a relatively minor cost 
in most situations, and while activities on Federal lands automatically 
have a Federal nexus (which usually would require consultation and thus 
increase the potential for conservation benefits if those lands are 
designated), we have found that in some instances the benefits of 
exclusion nevertheless outweigh the benefits of designating those 
areas. In those situations when the benefits of excluding Federal lands 
outweigh the benefits of designating them as critical habitat, the 
Policy provides sufficient discretion for the Secretary to exclude 
Federal lands. Therefore, we find that it is unwise to constrain the 
Secretary's discretion in the regulations. Further, resuming the 
implementation of the Policy would realign our implementation of 
section 4(b)(2) of the Act with that of NMFS.

``Shall Exclude''

    The Final Rule states that the Secretary ``shall'' exclude an area 
where the benefits of exclusion outweigh those of inclusion, so long as 
the exclusion will not result in the extinction of the species 
concerned. Using the phrase ``shall exclude'' requires exclusion of the 
area when a balancing analysis finds the benefits of exclusion 
outweighs those of inclusion. Although, as we stated in the preamble to 
the Final Rule, adding this requirement to the regulations was an 
exercise of the Secretary's discretion, we now find that exercising the 
Secretary's discretion in this way interferes with the statute's 
conservation goals by making a binding rule that ties the hands of 
current and future Secretaries in a particular way in all situations, 
regardless of the case-specific facts or the conservation outcomes. We 
recognize this change may result in a decrease in the exclusion 
proponent's sense of predictability in the ultimate outcome of an 
exclusion analysis. However, we find that advancing the conservation 
goals of the statute and providing a rational basis for our decision 
are more important than providing increased predictability, and the 
statute's conservation goals will be better achieved if we rescind the 
Final Rule and resume the implementation of the provisions of the 
Policy, under which the Secretary would retain discretion not to 
exclude an area when the benefits of exclusion outweigh those of 
inclusion. Although the Policy does not require exclusion when the 
benefits of exclusion outweigh the benefits of inclusion, it states 
that we would generally exclude an area in those circumstances. One 
difference is that the Policy acknowledges that we cannot anticipate 
all possible fact patterns; thus, it preserves the Secretary's 
discretion on exclusions regardless of the outcome of the balancing. 
Regardless of implementation of the Final Rule, or the Policy, when the 
Secretary undertakes an exclusion analysis, Weyerhaeuser requires us to 
be transparent and provide a rational basis to support the decision. 
Therefore, our explanation will make the basis of our decision clear to 
proponents of an exclusion and to the general public. We find that the 
``shall exclude'' language in the Final Rule is an unnecessarily broad 
constraint on the Secretary's discretion. Moreover, in light of the 
numerous possible fact patterns regarding the relationship between 
critical habitat and conservation of a particular species, we find that 
preserving the Secretary's discretion regarding whether or not to 
exclude areas when the benefits of exclusion outweigh the benefits of 
inclusion is most consistent with the Supreme Court's characterization 
of the Act as representing ``a policy [of] `institutionalized caution.' 
'' Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).

Other Regulatory Provisions of the Final Regulations

    The Final Rule contains other provisions identifying factors for 
the Secretary to consider when conducting exclusion analyses that 
involve particular categories of impacts. For example, 50 CFR 17.90(a) 
includes non-exhaustive lists of the types of impacts that the terms 
``economic impacts'' and ``other relevant impacts'' may include. 
Because these lists are examples of possible factors to be considered, 
and are neither mandatory nor exhaustive, with or without the Final 
Rule the Secretary can consider whatever factors on or off of those 
lists that they determine appropriate given the specific facts of a 
designation and its impacts. As a result, removing them, if this 
proposed rule is made final, will not affect the Service's 
implementation. Similarly, 50 CFR 17.90(d) identifies factors for the 
Secretary to consider in evaluating impacts related to economics, 
national and homeland security, and conservation plans that are or are 
not permitted under section 10 of the Act. These factors are mostly the 
same as the factors identified in the Policy. Therefore, we find that 
it is unnecessary to include these provisions in the regulations and 
that, if the Final Rule is rescinded, resuming the

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implementation of the Policy would not alter our implementation of 
section 4(b)(2) of the Act with respect to these factors.
    The one change in the Final Rule as compared to the Policy is the 
fourth factor for evaluating non-permitted plans and partnerships. The 
fourth factor in the Policy is whether compliance with the National 
Environmental Policy Act (NEPA) (codified at 42 U.S.C. 4321 et seq.) is 
required, but the Final Rule adds language to make clear that we may 
consider plans that have had reviews similar to NEPA review even if the 
reviews were not technically completed under NEPA. However, that 
language was unnecessary because the Policy specifies that the factors 
it identifies for evaluating nonpermitted plans are not exclusive. As a 
result, even without that added language under the fourth factor in the 
Final Rule, we may consider plans that have had reviews similar to NEPA 
review, but no NEPA reviews. In short, we find that it is unnecessary 
to include in the regulations the additional language regarding reviews 
of nonpermitted plans that are similar to NEPA reviews, and that, if 
the Final Rule is rescinded, resuming the implementation of the Policy 
would not substantially change our implementation of section 4(b)(2) of 
the Act with respect to evaluating nonpermitted plans.

Public Comments

    We are soliciting public comment on this proposal and supporting 
material. All relevant information will be considered prior to making a 
final determination regarding the regulations for exclusions from 
critical habitat. You may submit your comments and materials concerning 
the proposed rule by one of the methods listed in ADDRESSES. Comments 
must be submitted to https://www.regulations.gov (Docket FWS-HQ-ES-
2019-0115) 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 all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us. If you provide personal identifying information in your comment, 
you may request at the top of your document that we withhold this 
information from public review. However, we cannot guarantee that we 
will be able to do so.

Required Determinations

Regulatory Planning and Review (E.O.s 12866 and 13563)

    Executive Order 12866 (``E.O. 12866'') provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. OIRA has determined that 
this rule is significant.
    Executive Order 13563 (``E.O. 13563'') reaffirms the principles of 
E.O. 12866 while calling for improvements in the nation's regulatory 
system to promote predictability, to reduce uncertainty, and to use the 
best, most innovative, and least burdensome tools for achieving 
regulatory ends. E.O. 13563 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 and further emphasizes that 
regulations must be based on the best available science and that the 
rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements. This proposed rule is consistent 
with E.O. 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.''

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 that person's designee, certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA amended the 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 
impact on a substantial number of small entities. The following 
discussion explains our rationale.
    This rulemaking proposes to rescind a rule that outlines Service 
procedures regarding exclusion of areas from designations of critical 
habitat under the Act. If finalized, the Service would resume the 
implementation of the 2013 Rule and the Policy jointly with NMFS.
    As discussed above, resuming the implementation of the 2013 Rule 
and the Policy will not substantially alter our implementation of 
section 4(b)(2) of the Act. To the extent that the Final Rule differs 
from the Policy, it is limited to identifying specific factors for 
consideration that the Policy already authorizes the Service to 
consider in weighing the benefits of excluding areas against the 
benefits of including them, but in a more general sense. Moreover, the 
Service is the only entity that would be directly affected by this rule 
because the Service is the only entity that was implementing the final 
regulations under this portion of the CFR. No external entities, 
including any small businesses, small organizations, or small 
governments, will experience any economic impacts directly from this 
rule because the Service would continue to take into consideration the 
relevant impacts of designating specific areas as critical habitat and 
retain the ability to apply the factors identified in the Final Rule. 
In addition, our decisions to exclude or not exclude areas (where a 
specific request has been made) based on this consideration of impacts 
will continue to be judicially reviewable in accordance with the 
Supreme Court's opinion in Weyerhaeuser.

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 proposed rule would not impose a cost of $100 
million or more in any given year on local or State governments or 
private entities. A Small Government Agency Plan is not required. As 
explained above, small governments would not be affected because the 
proposed rule would not place additional requirements on any city, 
county, or other local municipalities.
    (b) This proposed rule would not produce a Federal mandate on 
State,

[[Page 59352]]

local, or Tribal governments or the private sector of $100 million or 
greater in any year; that is, this proposed rule is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. This 
proposed rule would impose no obligations on State, local, or Tribal 
governments.

Takings (E.O. 12630)

    In accordance with E.O. 12630, this proposed rule would not have 
significant takings implications. This proposed rule would not 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 E.O. 13132, we have considered whether this 
proposed rule would have significant federalism effects and have 
determined that a federalism summary impact statement is not required. 
This proposed rule pertains only to factors for designation of critical 
habitat under the Act and would not have substantial direct effects on 
the States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

Civil Justice Reform (E.O. 12988)

    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 
E.O. 12988. This proposed rule would rescind a rule that was solely 
focused on exclusions from critical habitat under the Act.

Government-to-Government Relationship With Tribes

    In accordance with E.O. 13175, ``Consultation and Coordination with 
Indian Tribal Governments,'' and the Department of the Interior's 
manual at 512 DM 2, we are considering possible effects of this 
proposed rule on federally recognized Indian Tribes. The Service has 
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. This proposed rule would rescind the December 
18, 2020 Final Rule that modified certain aspects of the critical 
habitat designation processes that we have been implementing in 
accordance with previous guidance and policies. If finalized, we would 
resume the implementation of the 2013 Rule and the Policy jointly with 
NMFS. Further, the 2013 Rule and the Policy are almost identical to the 
treatment of Tribal lands under the Final Rule and will not have Tribal 
implications. These proposed regulatory revisions directly affect only 
the Service, and with or without these revisions the Service would be 
obligated to continue to designate critical habitat based on the best 
available data. Therefore, we conclude that these proposed 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 Department of 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 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 Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (45 U.S.C. 3501 
et seq.). We may not conduct or sponsor, and you are 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 NEPA, the Department of the Interior regulations on 
Implementation of the National Environmental Policy Act (43 CFR 46.10-
46.450), and the Department of the Interior Manual (516 DM 8). The 
effect of this proposed rulemaking would be to rescind the Service-only 
procedures for considering exclusion of areas from a designation of 
critical habitat under the Act and return to implementing the 2013 Rule 
and the Policy jointly with NMFS. As we discussed earlier, resuming the 
implementation of the Policy will not substantially alter our 
implementation of section 4(b)(2) of the Act, and to the extent the 
Final Rule differs from the Policy, it is limited to identifying 
specific factors for consideration that the Policy already authorizes 
the Service to consider in weighing the benefits of excluding areas 
against the benefits of including them, but in a more general sense.
    As a result, we anticipate, similar to our conclusion stated in the 
Final Rule, that the categorical exclusion found at 43 CFR 46.210(i) 
likely applies to the proposed regulation changes. In 43 CFR 46.210(i), 
the Department of the Interior has found that the following categories 
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.'' However, as a result of 
public comments received, the final rule may differ from this proposed 
rule and our analysis under NEPA may also differ from the proposed 
rule. We will complete our analysis, in compliance with NEPA, before 
finalizing this regulation.

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

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. The proposed revised 
regulation is 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. For 
example, you should tell us the numbers of the

[[Page 59353]]

sections or paragraphs that you believe are unclearly written, identify 
any sections or sentences that you believe are too long, and identify 
the sections where you believe lists or tables would be useful.

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 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons discussed in the preamble, the U.S. Fish and 
Wildlife Service proposes to amend part 17 of chapter I, title 50 of 
the Code of Federal Regulations as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

Subpart I [Removed]

0
2. Remove subpart I, consisting of Sec.  17.90.

Subpart J [Redesignated as Subpart I]

0
3. Redesignate subpart J, consisting of Sec. Sec.  17.94 through 17.99, 
as subpart I.

Subpart K [Redesignated as Subpart J]

0
4. Redesignate subpart K, consisting of Sec. Sec.  17.100 through 
17.199, as subpart J.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-23011 Filed 10-26-21; 8:45 am]
BILLING CODE 4333-15-P