[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Proposed Rules]
[Pages 40764-40774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13053]


-----------------------------------------------------------------------

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-2021-0107, FF09E23000 FXES1111090FEDR 234; Docket 
No. 230607-0142]
RIN 1018-BF95; 0648-BK47


Endangered and Threatened Wildlife and Plants; 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; request for comment.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS; collectively, the ``Services''), 
propose to revise portions of our regulations that implement section 4 
of the Endangered Species Act of 1973, as amended (Act). The proposed 
revisions to the regulations clarify, interpret, and implement portions 
of the Act concerning the procedures and criteria used for listing, 
reclassifying, and delisting species on the Lists of Endangered and 
Threatened Wildlife and Plants and designating critical habitat.

DATES: We will accept comments from all interested parties until August 
21, 2023. 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 time on that date.

ADDRESSES: You may submit comments and information on this document 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-2021-0107, 
which is the docket number for this rulemaking action. Then, click on 
the Search button. On the resulting page, in the panel on the left side 
of the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.'' Please ensure that you have found the correct rulemaking 
before submitting your comment.
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-HQ-ES-2021-0107; U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    See Request for Comments, below, for further information.

FOR FURTHER INFORMATION CONTACT: Carey Galst, U.S. Fish and Wildlife 
Service, Division of Ecological Services, Branch of Listing Policy and 
Support Chief, 5275 Leesburg Pike, Falls Church, VA 22041-3803, 
telephone 703-358-1954; or Angela Somma, National Marine Fisheries 
Service, Office of Protected Resources, Endangered Species Division 
Chief, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301-
427-8403. Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

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, as amended (hereafter referred to as ``ESA or 
the Act;'' 16 U.S.C. 1531 et seq.), and authority to administer the Act 
has been delegated by the respective Secretaries to the Director of FWS 
and the Assistant Administrator for NMFS. Together, the Services have 
promulgated regulations that interpret aspects of the listing and 
critical habitat designation provisions of section 4 of the Act. These 
joint regulations, which are codified in the Code of Federal 
Regulations at 50 CFR part 424, were most recently revised in 2019 (84 
FR 45020, August 27, 2019; hereafter, ``the 2019 rule''). Those revised 
regulations became effective September 26, 2019.
    Executive Order 13990, ``Protecting Public Health and the 
Environment and Restoring Science To Tackle the Climate Crisis,'' 
issued January 20, 2021, directed all departments and agencies to 
immediately review agency actions taken between January 20, 2017, and 
January 20, 2021, and, as appropriate and consistent with applicable 
law, consider suspending, revising, or rescinding agency actions that 
conflict with important national objectives, including promoting and 
protecting our public health and the environment, and to immediately 
commence work to confront the climate crisis. A ``Fact Sheet'' that 
accompanied E.O. 13990 provided a non-exhaustive list of particular 
regulations requiring such a review and included the 2019 rule (see 
www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/). In response to E.O. 13990 
and in light of recent litigation over the 2019 rule, the Services have 
reviewed the 2019 rule, evaluated the specific regulatory revisions 
promulgated through that process, and now propose to make revisions to 
the regulations at 50 CFR part 424 as discussed in detail below.
    The 2019 rule, along with other revisions to the ESA regulations 
finalized in 2019, were subject to litigation in the United States 
District Court for the Northern District of California. On July 5, 
2022, the court issued a decision vacating the 2019 rule, without 
reaching the merits of the case. On September 21, 2022, the United 
States Court of Appeals for the Ninth Circuit temporarily stayed the 
effect of the July 5th decision pending the District Court's resolution 
of motions seeking to alter or amend that decision.

[[Page 40765]]

On October 14, 2022, the Services notified the District Court that we 
anticipated proceeding with a rulemaking process to revise the 2019 
rule. Subsequently, on November 14 and 16, 2022, the District Court 
issued orders remanding the 2019 regulations to the Services without 
vacating them, as the Services had asked the Court to do. Accordingly, 
the Services have developed the following proposal to amend some 
aspects of the 2019 rule.
    This proposed rule is one of three proposed rules publishing in 
today's Federal Register that propose changes to the regulations that 
implement the ESA. Two of these proposed rules, including this one, are 
joint between the Services, and one proposed rule is specific to FWS.
    Section 2 of the Act states that the purposes of the Act include 
providing a means to conserve the ecosystems upon which endangered and 
threatened species depend, developing a program for the conservation of 
listed species, and achieving the purposes of certain treaties and 
conventions (16 U.S.C. 1531(b)). Section 2 of the Act also makes 
explicit that it is the policy of Congress that all Federal agencies 
and departments seek to conserve threatened and endangered species and 
use their authorities to further the purposes of the Act (16 U.S.C. 
1531(c)).
    To determine whether listing a species is warranted, the Act 
requires that the Services conduct a review of the status of the 
species and consider any efforts being made by any State or foreign 
nation (or subdivision thereof) to protect the species. The Act also 
requires that determinations of whether a species meets the definition 
of an endangered or threatened species be based solely on the best 
scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)).
    When a species warrants listing, the Act requires the Services to 
designate critical habitat concurrent with the listing rule to the 
maximum extent prudent and determinable, or within 1 year following 
listing if critical habitat was not initially determinable. Critical 
habitat is defined in section 3 of the Act as: (1) the specific areas 
within the geographical area occupied by the species at the time it is 
listed on which are found those physical and biological features that 
are essential to the conservation of the species and that may require 
special management considerations or protections; and (2) specific 
areas outside the geographic area occupied by the species at the time 
it is listed upon a determination by the Secretary that such areas are 
essential for the conservation of the species (16 U.S.C. 1532(5)). The 
Act sets forth a two-part definition for critical habitat based on 
whether the species occupies an area or does not occupy an area at the 
time of listing. For simplicity, throughout this document we will refer 
to the former type as ``occupied'' critical habitat and the latter type 
as ``unoccupied'' critical habitat.
    In passing the Act, Congress viewed habitat loss as a significant 
factor contributing to species endangerment, and the ``present or 
threatened destruction, modification, or curtailment'' of a species' 
habitat or range is specifically listed in section 4(a)(1) of the Act 
as the first of the factors that may underlie a determination that a 
species meets the definition of an endangered or threatened species. 
The designation of critical habitat is a regulatory tool designed to 
further the conservation of a listed species, i.e., to help bring the 
threatened or endangered species to the point at which protection under 
the Act is no longer necessary. More broadly, designation of critical 
habitat also implicitly serves as a tool for meeting one of the Act's 
stated purposes: Providing a means for conserving the ecosystems upon 
which endangered and threatened species depend. Once critical habitat 
is designated, Federal agencies must ensure that any actions they 
authorize, fund, or carry out are not likely to result in destruction 
or adverse modification of the critical habitat (16 U.S.C. 1536(a)(2)).

Proposed Changes to Part 424

    Following a review of the specific regulatory revisions made in the 
2019 rule, the Services propose to revise several of those same 
regulatory provisions of 50 CFR part 424, as detailed below. The 
specific changes to the regulations proposed herein are intended to be 
prospective standards only. If finalized, these regulations would apply 
to classification and critical habitat rules finalized after the 
effective date of this rule and would not apply retroactively to 
classification and critical habitat rules finalized prior to the 
effective date of this rule. Nothing in these proposed revisions to the 
regulations is intended to require (at such time as this rule becomes 
final) that any prior final listing, delisting, or reclassification 
determinations or previously completed critical habitat designations be 
reevaluated on the basis of any final regulations.

Section 424.11--Factors for Listing, Delisting, or Reclassifying 
Species

Economic Impacts

    We are proposing to restore the phrase ``without reference to 
possible economic or other impacts of such determination'' to the end 
of 50 CFR 424.11(b) to clarify and affirm that, consistent with the 
plain language of the statute, the economic impacts and any other 
impacts that might flow from a listing decision must not be taken into 
account when making listing, reclassification, and delisting 
(collectively, classification) determinations. In 2019, when we removed 
this phrase, we reasoned that it was not necessary because neither the 
Act nor the legislative history indicates that Congress intended to 
completely prohibit the Services from compiling economic information 
about potential listings, and because there may be circumstances in 
which referencing economic or other impacts would be informative to the 
public. Based on our subsequent review of the 2019 rule, the language 
of the Act, and the legislative history, we find that this change was 
not the most reasonable interpretation and created the problematic 
impression that the Services would begin to compile information 
regarding the economic impacts of classification determinations and 
that the Services might actually take such information into account 
directly or indirectly when making classification determinations, which 
would run afoul of the Act's mandate. When evaluating a species' 
classification status, the Services cannot take into account potential 
economic impacts that could stem from the classification decision, such 
as costs associated with prohibitions on commercial harvest or 
interstate sale of that species, or other impacts, such as potential 
restrictions on land management.
    The Act states that determinations under section 4(a)(1) are to be 
made solely on the basis of the best scientific and commercial data 
available. Congress added this requirement through amendments to the 
Act in 1982 (Pub. L. 97-304, Oct. 13, 1982). The legislative history 
for the 1982 amendments describes the purposes of the amendments using 
the following language (emphases added): ``to ensure that [listing and 
delisting] decisions . . . are based solely upon biological criteria,'' 
Conf. Rep. (H.R.) No. 97-835 (1982) (``Conf. Rep.''), at 19; ``to 
prevent non-biological considerations from affecting [listing and 
delisting] decisions,'' id.; and ``economic considerations have no 
relevance to [listing and delisting] determinations,''

[[Page 40766]]

id. at 20. The legislative history of the Act is clear that the phrase 
``commercial data'' is intended only to allow for consideration of 
``trade data,'' '' was ``not intended, in any way, to authorize the use 
of economic considerations in the process of listing a species.'' 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. Similarly, clarifying that the 
Services cannot take into account potential economic impacts stemming 
from classification when making such determinations does not preclude 
the Services from evaluating economic data and information relevant to 
understanding the threats to the species that must be assessed under 
the statutory factors. In passing the Act, Congress declared that 
untempered economic growth and development had rendered species extinct 
(16 U.S.C. 1531(a)(1)) and instructed the Services to assess whether 
species are threatened by habitat destruction and other human-made 
threats (16 U.S.C. 1533(a)(1)(A)-(E)).
    The removal of this phrase from the regulations, as well as certain 
statements made by the Services in the preamble accompanying its 
removal (see 83 FR 35193 at 35194-95, July 25, 2018), caused confusion 
regarding the Services' intentions with respect to the collection, 
presentation, and consideration of economic impact information stemming 
from the classification of species. The Services never intended, as a 
matter of general or routine practice, to compile, analyze, or present 
information pertaining to the economic impacts of species 
classification. However, as a result of removing this phrase, some 
stakeholders expected us to do just that and provided comments to that 
end. Restoring this phrase to the regulations would address this 
confusion and remove this expectation.
    Furthermore, even the appearance of an intention to consider 
economic impact information could undermine the Services' 
classification determinations. Any suggestion by the Services that they 
could ignore the clear statutory sideboards in reaching their 
classification determinations could appear to taint an otherwise 
appropriate, science-based listing determination and could lead to 
needless and time-consuming litigation to determine whether any 
economic impact considerations were improperly taken into account--
litigation that would do nothing to further the conservation of 
species. We find that the previous regulatory language is most 
consistent with the intent of Congress and provides an important 
guardrail for the scientific integrity of classification 
determinations; therefore, we are proposing to restore this language to 
the regulations.

Foreseeable Future

    We propose to revise Sec.  424.11(d), which describes the Services' 
framework for interpreting and implementing the term ``foreseeable 
future'' in the Act's definition of ``threatened species'' (16 U.S.C. 
1532(20)). The interpretation in the 2019 rule's framework, consistent 
with the Services' longstanding practice, was based on a 2009 opinion 
from the Department of the Interior, Office of the Solicitor (M-37021, 
January 16, 2009; ``M-Opinion''), that provides guidance on addressing 
the concept of the foreseeable future within the context of determining 
the status of species. Following promulgation of the 2019 regulations, 
the language in the final rule created confusion regarding the way in 
which the Services interpret and implement this term. We now find it is 
appropriate to revise this regulatory provision to explain more clearly 
the concept of the foreseeable future as it is used in the Act's 
definition of a ``threatened species'' and to align the regulatory 
language more closely to that of the M-Opinion as discussed below. As 
noted below, however, we are also considering whether rescission of the 
provision at Sec.  424.11(d) may be more appropriate than revising the 
regulatory framework.
    The ``foreseeable future'' concept in the Act's definition of 
``threatened species'' sets the temporal structure that guides the 
Services in evaluating the best available scientific information when 
determining whether the species meets the substantive standard set out 
in the Act's definition of a threatened species. The second sentence in 
the ``foreseeable future'' paragraph we added to the regulations in 
2019 (i.e., ``reasonably determine that both the future threats and the 
species' responses to those threats are likely'') created confusion, 
because it seemed to suggest the Services were adopting a novel 
requirement to conduct an independent analysis of the status of the 
species, rather than simply articulating how we determine the 
appropriate timeframe over which to conduct that analysis. The 
statutory reference to the ``foreseeable future'' simply sets the time 
period within which to make the substantive determination about the 
status of the species (i.e., whether the species is likely to become an 
endangered species, within the foreseeable future, 16 U.S.C. 1532(20).
    Therefore, we are proposing to delete the current second sentence 
and replace it with the following new sentence: ``The term foreseeable 
future extends as far into the future as the Services can reasonably 
rely on information about the threats to the species and the species' 
responses to those threats.'' This proposed language more clearly 
explains the appropriate role of the foreseeable future concept in 
listing determinations and is also consistent with the M-Opinion that 
has guided the Services since 2009 in interpreting this statutory term.
    Under the M-Opinion, the extent of the foreseeable future depends 
on our ability to reasonably rely on information to anticipate the 
future. The M-Opinion describes a forecast or prediction into the 
foreseeable future as something that a reasonable person would rely on 
in making predictions about their own future (M-37021, at 8). 
Consistent with the best available information standard, we do not need 
to have absolute certainty about the information we use; rather, we 
need to have a reasonable degree of confidence in the prediction. Under 
the revisions we are proposing, the Services would continue to avoid 
speculation and ensure that the data, information, analysis, and 
conclusions we rely upon are rationally articulated and fully 
supported.
    While we propose specific revisions to Sec.  424.11(d), the 
Services are also considering whether this paragraph should be 
rescinded in its entirety. Prior to the addition of this provision to 
the regulations in 2019, both Services had been relying on M-Opinion 
37021 to construe the phrase ``foreseeable future'' and would continue 
to do so even in the absence of the regulatory framework regarding the 
foreseeable future. Maintaining an interpretation of this statutory 
phrase in the regulations is of limited utility to the Services, as 
well as potentially confusing to the public, if that regulatory 
provision is susceptible to being read or understood as inconsistent 
with the M-Opinion, which provides a more thorough and detailed 
examination and explanation of how this statutory phrase is 
interpreted. While the M-Opinion standing alone does not have the force 
of law and is not binding on NMFS, both Services nonetheless continue 
to find it is a reasonable interpretation of the statute and intend to 
continue relying on it to support their listing decisions. In the 
absence of a regulatory framework regarding the foreseeable future, the 
Services would still be required to document and explain in their 
listing determinations how the best available data support decisions 
with respect to

[[Page 40767]]

species' status over the foreseeable future.

Factors Considered in Delisting Species

    We propose to make several revisions to Sec.  424.11(e) to better 
clarify the procedure and standards that the Services will apply when 
making delisting decisions. (These provisions were previously included 
at Sec.  424.11(d).) First, we propose to revise the opening sentence 
of this section by replacing the phrase ``shall delist a species if'' 
with ``it is appropriate to delist a species if.'' While this proposed 
revision does not substantively change the meaning, standards, or 
procedure for delisting, we find this change would remove the potential 
for confusion or concerns that the Services can or will take immediate 
action to delist a species upon completion of a status review without 
following notice-and-comment rulemaking procedures, or that the outcome 
of such a rulemaking is predetermined in any way. The fundamental 
question under the Act for listing, delisting, or reclassification is 
whether the species meets the definition of an ``endangered species'' 
or ``threatened species'' because of any of the factors in section 
4(a)(1) of the Act, which is the standard we have retained in our 
regulations. As required by the Act, the Services intend to continue to 
base delisting determinations on the best available scientific and 
commercial data and to delist species through a rulemaking process that 
allows for peer review, a proposed delisting rule open to public 
comment, and a final rule that responds to and incorporates comments as 
appropriate. Furthermore, the word ``shall'' in these regulations is 
not necessary for requiring or ensuring that the Services abide by the 
Act's standards, which apply to all delisting decisions and cannot be 
supplanted by regulation.
    The current regulations in Sec.  424.11(e) list three circumstances 
in which it is appropriate to delist a species: the species is extinct, 
the species does not meet the definition of a threatened or endangered 
species, and the listed entity does not meet the definition of a 
species. These three general categories of circumstances have been in 
the Services' joint regulations for decades (e.g., see 45 FR 13010 at 
13022, February 27, 1980). Revisions to the wording of these 
circumstances were made in 2019 to achieve three main goals: to 
simplify and streamline what was considered unnecessary and potentially 
confusing regulatory text, to eliminate the possibility of 
misinterpreting the categories of circumstances as actual criteria for 
delisting, and to clarify that the standards applicable to listing and 
delisting determinations are the same. As part of those revisions, we 
removed the word ``recovery'' from the list of reasons for delisting at 
what was then Sec.  424.11(d)(2)) and changed the wording of the 
circumstance indicating that a species warrants delisting if it does 
not meet the definition of a threatened or endangered species. 
Specifically, this circumstance, as currently specified in 50 CFR 
424.11(e)(2)), was revised in 2019 to indicate that a species would be 
delisted if it does not meet the definition of an endangered species or 
a threatened species and that, in making such a determination, the 
Services would apply the same factors and standards as when making 
listing and reclassification determinations.
    As we explained in the 2019 rule and the associated proposed rule, 
in making this revision, our intention was to clarify that the standard 
for whether a species merits protection under the Act should be applied 
consistently, regardless of whether the context is potential listing, 
reclassification, or delisting; and to remove the misperception that 
delisting decisions are contingent upon the satisfaction of a recovery 
plan for that species (e.g., 84 FR 45020 at 45036, August 27, 2019). 
This revision and the removal of the word ``recovery'' were the focus 
of many public comments. Commenters expressed concerns that the 
Services would begin to delist species before they are recovered and 
asserted that these revisions could circumvent recovery plans and 
improperly make section 4(f) of the Act meaningless (84 FR 45020 at 
45035, August 27, 2019). As we explained in the 2019 rule, we disagreed 
that the Services would begin to delist species before they are 
recovered and indicated that we would continue to develop and use 
recovery plans to guide recovery of listed species consistent with the 
Act. We also explained that the revisions in no way would diminish the 
Services' goal of recovering threatened and endangered species.
    Although we do not agree that any of the outcomes expressed in 
comments received in 2019 would come to pass under the regulations as 
revised in 2019, after reconsidering these regulations we find that it 
is appropriate and preferable to include ``recovered'' in the delisting 
regulations as an express, important example of when a species should 
be delisted. Therefore, we propose to insert the phrase ``the species 
is recovered'' at the beginning of this particular provision. 
Specifically, we are proposing to revise 50 CFR 424.11(e)(2) to read as 
follows: The species is recovered or otherwise does not meet the 
definition of a threatened or endangered species. In making such a 
determination, the Secretary shall consider the factors and apply the 
standards set forth in paragraph (c) [of Sec.  424.11] regarding 
listing and reclassification.
    We find that inclusion of the word ``recovered,'' and thus the 
concept of recovery, in the delisting regulations acknowledges one of 
the principal goals of the Act and of the Services. Using the term 
``recovered'' in our regulations maintains a clear linkage between this 
primary goal and one of the circumstances in which the Services would 
delist a species. Because this section of the regulations still clearly 
indicates that the Secretary must consider the factors and standards of 
section 4 of the Act when evaluating species for delisting, the 
revision we now propose does not alter, in any way, the set of 
circumstances in which delisting is appropriate, or the standards or 
process for doing so. As courts have made clear, satisfying a recovery 
plan is one, but not the exclusive, possible pathway by which a species 
may reach the point of no longer requiring the protections of the Act 
(Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012)).
    We note that we are not proposing to remove the phrase ``does not 
meet the definition of a threatened or endangered species,'' which was 
added to Sec.  424.11(e) in 2019. We are retaining this phrase because 
the Act requires that species added to or retained on the lists of 
threatened and endangered species meet the definition of either a 
``threatened species'' or an ``endangered species.'' We are also 
retaining this phrase because recovery is not the only reason that a 
species may not meet the definition of a threatened or endangered 
species. For example, additional data may become available after a 
species has been listed that reveal that another species that was 
previously classified as taxonomically distinct is actually part of the 
listed entity. In this hypothetical example, the additional data could 
potentially lead to a finding that the particular listed species does 
not meet the definitions of either ``threatened species'' or 
``endangered species'' and should therefore be delisted.
    Lastly, we propose to remove the word ``same'' from both instances 
where it occurs in the sentence stating that we must ``consider the 
same factors and apply the same standards'' when determining whether a 
species is recovered or no longer warrants listing as when listing or 
reclassifying a

[[Page 40768]]

species. As already stated, while delisting determinations must review 
the species' status and consider the factors listed in section 4(a)(1) 
of the Act using the best scientific and commercial data available, we 
propose to remove the word ``same'' to eliminate any possible, though 
unintended, confusion that the analysis is limited to those same, 
specific factors or threats that initially led us to list that 
particular species. For example, a particular threat or combination of 
threats, such as overfishing and inadequate harvest regulations, may 
have caused a species' initial decline and endangerment, but those 
threats may have subsequently been controlled, and other threats, such 
as habitat modification and disease, may have since arisen. A status 
review conducted to determine whether a species warrants delisting must 
consider not just the same factors that led to the initial listing, but 
also any relevant factors that affect the biological status of the 
species. Thus, while the set of factors identified in section 4(a)(1) 
of the Act and the standards outlined in section 4(b)(2) of the Act 
apply in the context of listing, delisting, and reclassification 
decisions, the particular circumstances and facts may differ.
    In addition to the substantive revisions discussed above, we are 
also proposing one administrative revision to Sec.  424.11(a) to 
correct a cross-reference. The citation to ``Sec.  424.02(k)'' is wrong 
as Sec.  424.02 does not include a paragraph (k) or any designated 
paragraphs. Therefore, we are proposing to replace the reference to 
``Sec.  424.02(k)'' with a reference to ``Sec.  424.02.''

Section 424.12--Criteria for Designating Critical Habitat

Not-Prudent Determinations

    We propose to revise Sec.  424.12(a)(1), which provides a non-
exhaustive list of circumstances in which the Services may find it is 
not prudent to designate critical habitat. Specifically, we propose to 
remove the second half of Sec.  424.12(a)(ii), which states that 
designation of critical habitat would not be prudent if 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. This was a newly identified circumstance adopted 
through the 2019 rule. In adding this language, our stated intent was 
to identify a circumstance in which designation of critical habitat may 
not contribute to the conservation of the species. As explained in the 
preamble to the 2019 rule, scenarios in which such a circumstance might 
arise include when the listed species is experiencing adverse impacts 
solely from climate-driven threats such as melting glaciers, sea-level 
rise, or reduced snowpack and no other habitat-related threats (84 FR 
45020 at 45042, August 27, 2019).
    Following our review of this language in light of the goals laid 
out in E.O. 13990, we find that this clause requires that the Services 
presuppose the scope and outcomes of future section 7 consultations 
under the Act and suggests that the only conservation benefits of a 
critical habitat designation are through the section 7 process, a 
presumption not supported by the language of the Act or court decisions 
(see, e.g., Natural Res. Def. Council v. U.S. Dep't of the Interior, 
113 F.3d 1121, 1126 (9th Cir. 1997) (rejecting FWS's argument that, in 
order for there to be a benefit from designation, the majority of land 
use activities in critical habitat would have to be subject to section 
7 consultation); Conservation Council for Haw. v. Babbitt, 2 F. Supp. 
2d 1280, 1286 (D. Haw. 1998) (reasoning that even though consultation 
requirements apply only to Federal activities, Congress did not exclude 
private lands from the designation of critical habitats in part because 
``the designation of the critical habitat provides greater information 
[than listing alone] to the public and state and local government by 
informing not only that the species is endangered or threatened but 
also what area is essential to the conservation of the species.'')). 
This language has also been interpreted by the public as potentially 
allowing the Services to regularly decline to designate critical 
habitat for species threatened by climate change, which was not our 
intent.
    For these reasons, and to clarify that the Services intend to 
continue to consider anticipated climate-change impacts in the context 
of critical habitat designations, we are now proposing to remove this 
language. While the Act provides some limited flexibility to find that 
the designation of critical habitat should not be undertaken for 
particular species, as we described in the preamble to the 2019 rule, 
not-prudent determinations are rare, and we anticipate they will 
continue to be rare.
    We also propose to delete Sec.  424.12(a)(1)(v), which is the last 
circumstance set forth in Sec.  424.12(a)(1), and states that the 
Secretary otherwise determines critical habitat would not be prudent 
based on the best scientific data available. Setting this text out 
separately within the list of circumstances in which the Secretary 
could potentially make a not-prudent determination inadvertently gave 
the appearance that the Services might overstep their authority under 
the Act by issuing ``not prudent'' determinations for any number of 
unspecified reasons that may be inconsistent with the purposes of the 
Act. As this was not our intention, we are proposing to remove the 
circumstance set out in Sec.  424.12(a)(1)(v). However, we cannot 
foresee all possible circumstances in which critical habitat may not be 
prudent, and the statute does not identify the circumstances in which a 
designation is ``not prudent.'' Rather, the statute delegates to the 
Secretary the authority to make a determination that critical habitat 
is not prudent, subject to the requirements that the determination is 
based on the best available scientific data and so long as the 
determination is not inconsistent with the conservation purposes of the 
Act. Therefore, we propose to retain in the regulations a recognition 
that the Secretary may make not-prudent determinations in cases that do 
not fit within the remaining circumstances set forth in Sec.  
424.12(a)(1)(i)-(iv) by inserting a clause into the opening sentence of 
this section to indicate that the list of identified circumstances is 
not intended to be exhaustive.

Designating Unoccupied Areas

    We propose to make several revisions to Sec.  424.12(b)(2) to 
address the designation of specific areas as unoccupied critical 
habitat (specific areas outside the geographical area occupied by the 
species at the time the species is listed under the Act). As we discuss 
further below, the changes we now propose would remove requirements for 
designating unoccupied critical habitat that are not mandated by the 
language or structure of the Act and, in the view of the Services, 
would better fulfill the Secretaries' authority to further the 
conservation purposes of the Act. As part of these revisions, we also 
propose to make a series of wording changes to improve readability and 
organization of this section of the regulations.
    The regulations governing the designation of unoccupied critical 
habitat have been amended twice within recent years, once through a 
2016 rule (81 FR 7414, February 11, 2016) and then through the 2019 
rule that we are now revisiting (84 FR 45020, August 27, 2019). In both 
the 2016 and 2019 rules, the Services addressed the concept of 
prioritizing or sequencing how occupied and unoccupied areas should be 
considered when developing a critical habitat designation. In the 2019 
rule, we revised the criteria for designating unoccupied critical 
habitat to explicitly

[[Page 40769]]

require a two-step process that prioritizes the designation of occupied 
areas over unoccupied areas by adding the following sentence: 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 (84 FR 
45020 at 45053, August 27, 2019). A similar prioritization step was 
removed from the implementing regulations in 2016, because, at that 
time, we determined that it was an unnecessary and unintentionally 
limiting requirement (81 FR 7414 at 7434, February 11, 2016). The 
revisions made in 2016 instead allowed for simultaneous consideration 
of occupied and unoccupied habitat according to the definition of 
``critical habitat'' in the Act. In justifying the adoption of new 
regulatory requirements for designating unoccupied areas in 2019, which 
included a two-step prioritization process, we explained that we were 
responding to concerns that the Services would inappropriately 
designate overly expansive areas of unoccupied critical habitat (83 FR 
35193 at 35197-98, July 25, 2018), and that a two-step approach would 
help further Congress' intent to place increased importance on habitat 
within the geographical area occupied by the species (84 FR 45020 at 
45043, August 27, 2019).
    We now propose to address this issue anew by revising Sec.  
424.12(b)(2) to set out a clear and logical approach for identifying 
unoccupied critical habitat that, as we discuss below, better fulfills 
the statutory objectives regarding critical habitat. Specifically, our 
proposed, revised version of Sec.  424.12(b)(2) is as follows: After 
first evaluating areas occupied by the species, the Secretary will 
identify, at a scale determined by the Secretary to be appropriate, 
specific areas outside the geographical area occupied by the species at 
the time of listing that the Secretary determines are essential for the 
conservation of the species. Such a determination must be based on the 
best scientific data available.
    This proposal would insert text stating ``after identifying areas 
occupied by the species at the time of listing'' to the first sentence 
and delete the second sentence of the current regulation stating that 
the Secretary will first identify areas occupied by the species. As is 
clear from the text, under this proposed change the Services would 
continue to identify and consider areas that are occupied by the 
species before evaluating areas that are unoccupied by the species. We 
find that this approach is the most logical way to begin a critical 
habitat analysis and has consistently been the practice of the Services 
regardless of which regulations have been in place.
    However, we also propose to remove the sentence that was added in 
2019 stating that the Secretary ``will only consider'' unoccupied areas 
to be essential where a critical habitat designation limited to 
occupied areas would be inadequate to ensure the conservation of the 
species. Deletion of this sentence from the current regulation would 
remove the requirement that the Secretary exhaust all occupied areas 
before considering whether any unoccupied areas may be essential for 
conservation of the particular species. Neither the Act nor the 
legislative history creates a requirement to exhaust occupied areas 
before considering designation of unoccupied areas; therefore, this is 
an area where the statutory framework contains a gap that the Services 
may fill with a reasonable interpretation as we are presenting here.
    In the preamble to the 2019 rule, we presented certain legislative 
history to support the approach in that final rule, but those sources 
do not unequivocally support the approach that was ultimately adopted. 
For example, although we stated in 2019 that Congress intended to place 
increased importance on habitat within the geographical area occupied 
by the species (84 FR 45020 at 45043, August 27, 2019), it is not clear 
that that was the best interpretation of the intent of Congress from 
the H.R. Rep. 95-1804, which we cited. Moreover, the Act does not 
require that occupied habitat be found inadequate for conservation 
before unoccupied habitat can be designated. Rather the Act requires 
that the Services identify areas that meet the definition of critical 
habitat--occupied and unoccupied--based on the best available data, and 
then consider economic, national security, and other relevant impacts 
of designating any particular area. The 1978 House Report, for example, 
expressed the House Committee's belief that ``the Secretary should be 
exceedingly circumspect in the designation of critical habitat outside 
of the presently occupied area of the species'' (H.R. 96-1625, at 25 
(1978)), but it does not require determining that a designation limited 
to occupied critical habitat is inadequate before allowing any 
consideration of unoccupied areas.
    More importantly, the ``inadequacy'' requirement added in 2019 
could undermine the Secretaries' duty to designate areas that otherwise 
meet the definition of critical habitat and are essential to support 
the conservation of the species. Under the proposed revisions, we would 
no longer need to determine that a designation limited to occupied 
areas is ``inadequate to ensure the conservation of the species'' 
before we could even consider designating unoccupied habitat. In short, 
the proposed revision removes unnecessary constraints to the 
Secretaries' duty to consider designation of unoccupied areas where 
such areas are essential for the species' conservation and, in our 
view, better aligns the regulations with the statutory definition of 
``critical habitat.'' Furthermore, under the proposed revision, we 
would still be required to provide a rational explanation of why any 
unoccupied areas are essential for the conservation of the species. 
Because the identification of areas that are essential for the 
conservation of a species is a scientific and fact-specific inquiry, we 
continue to recognize that the exercise of this authority requires a 
reasoned explanation in the supporting administrative record for a 
particular designation of why any areas that are not occupied by the 
species are essential for its conservation.
    In Sec.  424.12(b)(2), we also propose to strike the last sentence, 
which states that for an unoccupied area to be considered essential, 
the Secretary must determine, with reasonable certainty, both that the 
area will contribute to the conservation of the species and that it 
contains one or more of the physical or biological features essential 
to the conservation of the species. After reconsidering this particular 
sentence, which was added to the regulations in 2019, we find that 
these additional criteria for determining whether an area is 
``essential'' impose standards for designating unoccupied critical 
habitat that go beyond, and could potentially conflict with, the 
science-based determination required by the statute and the Act's 
mandate to designate critical habitat to the maximum extent prudent and 
determinable based on the best scientific data available (see 16 U.S.C. 
1533(a)(3)(A), 1533(b)). The Act requires that critical habitat be 
designated on the basis of the best scientific data available and, 
based on those data, whether and what specific unoccupied areas are 
essential for the conservation of the species.
    Imposing a ``reasonable certainty'' standard is also unnecessary in 
light of the best available data standard of the Act, because this 
standard already inherently contains an obligation for the Services not 
to base their decisions on information that is merely potential or 
speculative. Moreover, the statutory best

[[Page 40770]]

scientific data available standard has not previously been interpreted 
to require a specific level of certainty, such as the ``high degree'' 
level articulated in the 2019 final rule preamble (84 FR 45020 at 
45022, August 27, 2019). Imposing a specific standard of certainty 
therefore could potentially result in the Services excluding from 
consideration the best available data merely because it was deemed not 
to be sufficiently certain. All of the Services' critical habitat 
designations must comply with both the Act's ``best scientific data 
available'' standard as well as the standards for rational agency 
decision-making.
    Courts have held that the Act's ``best scientific data available'' 
standard, which also applies (with slight differences not relevant 
here) to listing decisions and biological opinions under section 7, 
does not require that the information relied upon by the Services be 
perfect or free from uncertainty. (See, e.g., Oceana, Inc. v. Ross, 321 
F. Supp. 3d 128, 142 (D.D.C. 2018) (``the plain language of the 
provision requires NMFS only to use the best data available, not the 
best data possible'') (emphases in original); Alaska Oil & Gas Ass'n v. 
Jewell, 815 F.3d 544, 555 (9th Cir. 2016) (noting that the Act's best-
data-available requirement does not require perfection in the data but 
only precludes basing decisions on speculation or surmise) (citations 
omitted).
    In short, the Act ``accepts agency decisions in the face of 
uncertainty'' where the Services have used the best data available. 
Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 
2010) (citations omitted); see also In re Polar Bear Endangered Species 
Act Listing & 4(d) Rule Litigation, 794 F. Supp. 2d 65, 106 (D.D.C. 
2011) (``It is well-settled in the D.C. Circuit that FWS is entitled--
and, indeed, required--to rely upon the best available science, even if 
that science is uncertain or even `quite inconclusive.' '') (citation 
omitted), aff'd, 709 F.3d 1 (D.C. Cir. 2013); Oceana, Inc. v. Evans, 
384 F. Supp. 2d 203, 219 (D.D.C.) (``Time and again courts have upheld 
agency action based on the `best available' science, recognizing that 
some degree of speculation and uncertainty is inherent in agency 
decision-making, even in the precautionary context of the ESA.'') 
(emphasis in original), order clarified, 389 F. Supp. 2d 4 (D.D.C. 
2005).
    In proposing to delete the last sentence of Sec.  424.12(b)(2), we 
would also remove the requirement for unoccupied areas to contain (with 
reasonable certainty) one or more of the physical or biological 
features essential to the conservation of the species (``essential 
features''). Congress expressly defined occupied critical habitat and 
unoccupied critical habitat separately, mentioning essential features 
only in connection with occupied critical habitat (see 16 U.S.C. 
1532(5)(A)(i)). Further, with respect to unoccupied habitat, the Act 
requires a determination that designated areas are essential for the 
conservation of the species (see 16 U.S.C. 1532(5)(A)(ii)). However, in 
2019, we interpreted the legislative history as supporting a conclusion 
that unoccupied critical habitat must contain one or more essential 
feature(s). In particular, in the 2019 rule preamble, we pointed to a 
statement in the 1978 House Committee report and asserted that the 
Services' 1978 regulatory definition of ``critical habitat'' 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)), and we implied that this statement, among others, reflected an 
intention on the part of Congress that unoccupied critical habitat be 
defined more narrowly than as areas contemplated for species expansion. 
See 84 FR 45020 at 45022, August 27, 2019 (citing H.R. Rep. No. 95-1625 
pp. 18, 25 (1978); S. Rep. No. 95-874, at 9-10 (1978)).
    In reviewing the discussion presented in the 2019 rule and the 
legislative history related to the 1978 amendments to the Act, we now 
find that the 2019 rule preamble created unnecessary tension with the 
statutory text as adopted (see 16 U.S.C. 1532(5)(A); 84 FR 45020 at 
45022, August 27, 2019 (describing portions of 1978 House and Senate 
Reports reacting to the Services' 1978 regulatory definition of 
``critical habitat'')). While we relied on those excerpts from 
legislative history regarding earlier draft statutory language as 
illuminating the meaning of ``unoccupied critical habitat,'' the actual 
text of the Act does not carry over the requirements for occupied 
critical habitat into the definition of unoccupied critical habitat. 
The best evidence of congressional intent is well understood to be 
reflected in the text of a statute itself (see, e.g., Sutherland 
Statutes and Statutory Construction, volume 2A, section 45:5 (7th ed.) 
(``Judicial opinions overwhelmingly emphasize the legislature's words 
as the most reliable source of legislative intent, particularly when a 
statute is `unambiguous.' '') (internal citations omitted)), and the 
statutory definition of ``critical habitat'' clearly establishes 
different criteria for occupied and unoccupied critical habitat (see 16 
U.S.C. 1532(5)(A)). By confounding the criteria for defining occupied 
and unoccupied critical habitat, we eroded the statutory distinction 
between those two types of areas and made the standards for designating 
those areas more similar than what the Act plainly indicates.
    We acknowledge, as discussed in the preamble to the 2019 rule, that 
a number of court decisions have addressed the relationship between the 
standards for designation for unoccupied critical habitat and those for 
occupied critical habitat. The revised Sec.  424.12(b)(2) we now 
propose would be consistent with the cases referenced in the 2019 
preamble (Home Builders Ass'n v. U.S. Fish & Wildlife Serv., 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 the 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'')). These decisions do not add any 
limitations to the designation of unoccupied critical habitat that do 
not appear in the Act itself. Our proposal best conforms to the 
statutory standard for designating unoccupied critical habitat by 
reiterating the requirement that the Secretary must determine any 
unoccupied areas identified for designation are essential to the 
species' conservation.
    The preamble of the 2019 rule also pointed to the decision in 
Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018), as justification 
for adding the requirement that at least one essential feature be 
present in order for unoccupied areas to qualify for designation as 
critical habitat. In Weyerhaeuser, the Court held that an area is 
eligible for designation as critical habitat under the Act only if it 
is habitat for that species. The Weyerhaeuser decision, however, does 
not resolve the specific issue of how to define ``habitat'' against the 
backdrop of the two prongs of the statutory definition of ``critical 
habitat.'' To avoid the potential for rendering any part of the 
statutory language surplusage, we find that our implementing 
regulations must clearly accord independent meaning to each prong. 
Therefore, we no longer find that importing language from the statutory 
definition of ``occupied'' critical habitat (regarding essential 
features) into the requirements for defining ``unoccupied'' critical 
habitat is the best way to resolve this issue. We now find that 
requiring

[[Page 40771]]

reasonable certainty that one or more essential features are present in 
an area is an unnecessary and, ultimately, an incomplete substitute for 
the full science-based and species-specific inquiry into whether an 
area qualifies as habitat. As we articulated in the recent final rule 
rescinding the regulatory definition of the term ``habitat,'' we 
recognize the importance of the Supreme Court's ruling in Weyerhaeuser 
and will ensure that the administrative record for each designation 
documents how the designated areas are in fact habitat for the 
particular species at issue, using the best available scientific data 
and explaining the needs of that species (87 FR 37757, June 24, 2022).
    In the 2019 rule preamble, we also acknowledged that the Services 
had not previously taken the position that unoccupied critical habitat 
must contain essential features (see 84 FR 45023, August 27, 2019). As 
a practical matter, many areas of unoccupied habitat that are included 
in a critical habitat designation will contain one or more habitat 
features essential to the conservation of the species. However, the 
plain language of the Act does not require this to be the case, and we 
no longer consider the best reading of the Act to require that 
unoccupied areas contain ``one or more of those physical or biological 
features essential to the conservation of the species'' for the area 
itself to be essential for that species' conservation. The revisions we 
are now proposing would bring the Services' interpretation in line with 
this better reading of the statute.
    In addition, we note that neither the two-step prioritization 
process for designating unoccupied critical habitat nor the requirement 
for ``reasonable certainty'' for conservation or presence of essential 
features is necessary to achieve the purported goal of avoiding overly 
expansive designations. The Act sufficiently guards against this 
outcome by requiring the Secretary to explain why any unoccupied areas 
are essential for the conservation of the species and by providing in 
section 3 that the Secretary will generally not designate all areas 
that can be occupied by the species (16 U.S.C. 1532(5)(C)).
    We also propose to make a series of more minor revisions to Sec.  
424.12(b)(2) that collectively would streamline the text and improve 
clarity and readability. Specifically, we propose to make the 
regulatory language of Sec.  424.12(b)(2) consistent with, and parallel 
to, the regulatory language of the preceding paragraph (Sec.  
424.12(b)(1)) by replacing the existing phrase ``will designate as 
critical habitat'' with the words ``will identify, at a scale 
determined by the Secretary to be appropriate, specific areas. . . .'' 
This proposed revision would also describe the process of designating 
critical habitat in a more logical way, because identifying specific 
areas that may qualify as unoccupied critical habitat must occur before 
any designation of those areas; even after identifying specific areas 
that qualify as critical habitat, the Services must complete 
subsequent, required steps (e.g., consideration of impacts as outlined 
in 50 CFR 424.19) before designating those areas as critical habitat.
    We also propose to make a minor clarifying amendment to the first 
sentence of Sec.  424.12(b)(2) by inserting the phrase ``at the time of 
listing'' to avoid potential ambiguity and align the characterization 
of unoccupied areas with the statutory definition of ``critical 
habitat.'' While this additional language does not alter the meaning or 
intent of the first sentence of Sec.  424.12(b)(2), the proposed 
language would improve the clarity of the regulatory text. In the first 
sentence, we also propose to simplify the regulatory text by replacing 
the existing phrase ``only upon a determination that such areas'' with 
``that the Secretary determines.'' The current phrase is unnecessary, 
as the Act already clearly establishes through the section 3 definition 
of ``critical habitat'' that the designation of unoccupied areas must 
be based upon a determination that those areas are essential for the 
conservation of the species (see 16 U.S.C. 1532(5)(a)(ii)).
    Lastly, we propose to add a sentence to the end of Sec.  
424.12(b)(2) that reiterates the statutory requirement to identify 
unoccupied critical habitat using the best scientific data available. 
This additional proposed sentence serves to emphasize the statutory 
requirement that the determination of whether a specific area is 
essential for the conservation of the species must be driven by the 
best available data.
    In conclusion, we have reconsidered the 2019 rule and now find that 
the interpretation of unoccupied critical habitat adopted in 2019 is 
not the best one for the multiple reasons outlined here. In view of the 
Act's framework and conservation purposes, as well as the ``best 
scientific data available'' standard (16 U.S.C. 1533(b)(2)) and the 
requirement to designate critical habitat ``to the maximum extent 
prudent and determinable'' (16 U.S.C. 1533(a)(3)(A)), we find that it 
is most appropriate for the Services to make all the required 
determinations on the basis of the best available science and the 
particular record for the action at hand, consistent with the generally 
applicable legal standards. By deleting the multiple, additional 
requirements for designating unoccupied critical habitat that were 
added in 2019, we would restore the implementation of section 3(5)(A) 
of the Act so as to better reflect the statutory language and the 
legislative history.

Request for Comments

    We are seeking comments from all interested parties on the proposed 
revisions to 50 CFR part 424, as well as on any of our analyses or 
conclusions in the Required Determinations section of this document. We 
will also accept public comment on all aspects of the 2019 rule, 
including whether any of those provisions should be rescinded in their 
entirety (restoring the prior regulatory provision) or revised in a 
different way. All relevant information will be considered prior to 
making a final determination regarding the regulations for listing 
endangered and threatened species and designating critical habitat. 
Depending on the comments received, we may change the proposed 
regulations based upon those comments. You may submit your comments and 
materials concerning the proposed rule by one of the methods listed in 
ADDRESSES. We request that you send comments only by the methods 
described in ADDRESSES. Comments sent by any other method, to any other 
address or individual, may not be considered.
    Comments and materials we receive will be posted and available for 
public inspection 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. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order 12866, as amended by Executive Order 14094, 
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 proposed rule is significant.
    Executive Order 14094 amends E.O. 12866 and reaffirms the 
principles of E.O. 12866 and E.O 13563 and states that regulatory 
analysis should facilitate

[[Page 40772]]

agency efforts to develop regulations that serve the public interest, 
advance statutory objectives, and be consistent with E.O. 12866, E.O. 
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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 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.''
    We are proposing revisions to the Services' implementing 
regulations at 50 CFR 424.11 and 424.12. Specifically, the Services are 
proposing changes to implementing regulations at: (1) Sec.  424.11(b), 
the factors for listing, delisting, or reclassifying species; (2) Sec.  
424.11(d), the foreseeable future framework; (3) Sec.  424.11(e), the 
standards for delisting; (4) Sec.  424.12(a), criteria for not prudent 
determinations for critical habitat; and (5) Sec.  424.12(b)(2), the 
criteria for designation of unoccupied critical habitat. The preamble 
to this proposed rule explains in detail why we anticipate that the 
regulatory changes we are proposing will improve the implementation of 
the Act.
    When we made changes to these same sections in 2019, we compiled 
historical data on the occurrence of specific metrics of listing and 
critical habitat determinations by the Services in an effort to 
describe for OMB and the public the potential scale of any effects of 
those regulations (on https://www.regulations.gov, see Supporting 
Document No. FWS-HQ-ES-2018-0006-0002 of Docket No. FWS-HQ-ES-2018-
0006; Docket No. 180202112-8112-01). We presented various metrics 
related to the regulation revisions, as well as historical data 
supporting the metrics.
    For the 2019 regulations, we concluded--with respect to the 
provisions related to listing, reclassification, and delisting of 
species--that, because those revisions served to clarify rather than 
alter the standards for classifying species, the 2019 regulation 
revisions would not change the average number of species classification 
(i.e., listing, reclassification, delisting) outcomes per year. With 
respect to the critical habitat provisions, we concluded that, because 
the outcomes of critical habitat determinations are highly fact-based, 
it was not possible to forecast reliably whether more or fewer not-
prudent determinations or designations of unoccupied critical habitat 
would be made each year if the 2019 regulation revisions were 
finalized.
    The revisions we are now proposing to the listing, delisting, and 
reclassification provisions as described above are intended to align 
more closely with the statute and to provide transparency and clarity--
not only to the public and stakeholders, but also to the Services' 
staff in the implementation of the Act. As a result, we do not 
anticipate any change in the rate or frequency or particular 
classification outcomes due to the proposed regulation. Similarly, the 
proposed revisions to the provisions related to the Secretaries' duty 
to designate critical habitat are intended to align the regulations 
with the Act, and--because the outcomes of critical habitat analyses 
are so highly fact-specific and it is not possible to forecast how many 
related circumstances will arise--any future benefit or cost stemming 
from these revisions is currently unknowable.
    These changes provide transparency and clarity, and there are no 
identifiable, quantifiable effects from the proposed rule. Further, we 
do not anticipate any material effects such that the rule would have an 
annual effect that would reach or exceed $200 million or would 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, territorial, or Tribal governments 
or communities.

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 are certifying that these 
proposed regulations would not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    This proposed rule would revise and clarify requirements for NMFS 
and FWS in classifying species and designating critical habitat under 
the Act and do not directly affect small entities. NMFS and FWS are the 
only entities that would be directly affected by this proposed rule 
because we are the only entities that list species or designate 
critical habitat. No external entities, including any small businesses, 
small organizations, or small governments, will experience any direct 
economic impacts from this proposed rule. Therefore, we certify that, 
if adopted as proposed, this rule would not have a significant economic 
effect on a substantial number of small entities.

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

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule would not 
pertain to

[[Page 40773]]

``taking'' of private property interests, nor would it directly affect 
private property. A takings implication assessment is not required 
because this proposed rule (1) would not effectively compel a property 
owner to suffer a physical invasion of property and (2) would not deny 
all economically beneficial or productive use of the land or aquatic 
resources. This proposed rule would substantially advance a legitimate 
government interest (conservation and recovery of endangered species 
and threatened species) and would not present a barrier to all 
reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

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

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' the Department of the 
Interior's manual at 512 DM 2, and the Department of Commerce (DOC) 
``Tribal Consultation and Coordination Policy'' (May 21, 2013), DOC 
Departmental Administrative Order (DAO) 218-8, and NOAA Administrative 
Order (NAO) 218-8 (April 2012), we considered possible effects of this 
proposed rule on federally recognized Indian Tribes. This proposed rule 
is general in nature and does not directly affect any specific Tribal 
lands, treaty rights, or Tribal trust resources. Therefore, we 
preliminarily conclude that this proposed rule does not have ``tribal 
implications'' under section 1(a) of E.O. 13175. Thus, formal 
government-to-government consultation is not required by E.O. 13175 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. See Joint Secretaries' 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 collection of 
information that requires approval by the OMB under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 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 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 invite the public to comment on 
the extent to which these proposed regulations may have a significant 
impact on the human environment or fall within one of the categorical 
exclusions for actions that have no individual or cumulative effect on 
the quality of the human environment. We will complete our analysis, in 
compliance with NEPA, before finalizing this proposed rule.

Endangered Species Act

    In developing this proposed rule, the Services are acting in their 
unique statutory role as administrators of the Act and are engaged in a 
legal exercise of interpreting the standards of the Act. The Services' 
promulgation of interpretive rules that govern their implementation of 
the Act is not an action that is in itself subject to the Act's 
provisions, including section 7(a)(2). The Services have a historical 
practice of issuing their general implementing regulations under the 
ESA without undertaking section 7 consultation. Given the plain 
language, structure, and purposes of the ESA, we find that Congress 
never intended to place a consultation obligation on the Services' 
promulgation of implementing regulations under the Act. In contrast to 
actions in which we have acted principally as an ``action agency'' in 
implementing the Act to propose or take a specific action (e.g., 
issuance of section 10 permits and actions under statutory authorities 
other than the ESA), here, the Services are carrying out an action that 
is at the very core of their unique statutory role as administrators--
promulgating general implementing regulations interpreting the terms 
and standards of the statute.

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

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

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you 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 sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Authority

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

List of Subjects in 50 CFR Part 424

    Administrative practice and procedure, Endangered and threatened 
species.

Proposed Regulation Promulgation

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

[[Page 40774]]

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

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

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

0
2. Amend Sec.  424.11 by:
0
a. In paragraph (a), removing the text ``Sec.  424.02(k)'' and adding 
in its place the text ``Sec.  424.02''; and
0
b. Revising paragraphs (b), (d), and (e) 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 without reference to possible economic or other impacts 
of such determination.
* * * * *
    (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 as far into the future as the Services can reasonably 
rely on information about the threats to the species and the species' 
responses to those threats. 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) It is appropriate to delist a species if the Secretary finds, 
after conducting a status review based on the best scientific and 
commercial data available, that:
    (1) The species is extinct;
    (2) The species is recovered or otherwise does not meet the 
definition of a threatened or endangered species. In making such a 
determination, the Secretary shall consider the factors and apply the 
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.
* * * * *
0
3. Amend Sec.  424.12 by:
0
a. Revising the introductory text of paragraph (a)(1) and paragraphs 
(a)(1)(ii) through (iv);
0
b. Removing paragraph (a)(1)(v); and
0
c. Revising paragraph (b)(2).
    The revisions read as follows:


Sec.  424.12  Criteria for designating critical habitat.

    (a) * * *
    (1) Designation of critical habitat may not be prudent in 
circumstances such as, but not limited to, the following:
* * * * *
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species;
    (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; or
    (iv) No areas meet the definition of critical habitat.
* * * * *
    (b) * * *
    (2) After identifying areas occupied by the species at the time of 
listing, the Secretary will identify, at a scale determined by the 
Secretary to be appropriate, specific areas outside the geographical 
area occupied by the species at the time of listing that the Secretary 
determines are essential for the conservation of the species. Such a 
determination must be based on the best scientific data available.
* * * * *

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.

Richard W. Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere, NOAA 
Administrator, National Oceanic and Atmospheric Administration.
[FR Doc. 2023-13053 Filed 6-21-23; 8:45 am]
BILLING CODE 4333-15-P