[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Rules and Regulations]
[Pages 24300-24335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06899]
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Vol. 89
Friday,
No. 67
April 5, 2024
Part V
Department of the Interior
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Fish and Wildlife Service
Department of Commerce
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National Oceanic and Atmospheric Administration
50 CFR Part 424
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Endangered and Threatened Wildlife and Plants; Listing Endangered and
Threatened Species and Designating Critical Habitat; Final Rule
Federal Register / Vol. 89 , No. 67 / Friday, April 5, 2024 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 424
[Docket No. FWS-HQ-ES-2021-0107, FXES1111090FEDR-245-FF09E23000; Docket
No. 240325-0088]
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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS; collectively, the ``Services''),
finalize revisions to portions of our regulations that implement
section 4 of the Endangered Species Act of 1973, as amended. The
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 (Lists) and designating critical
habitat.
DATES: This final rule is effective May 6, 2024.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final rule,
are available online at https://www.regulations.gov in docket number
FWS-HQ-ES-2021-0107.
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 (``Secretaries'' or
``Secretary'') share responsibilities for implementing most of the
provisions of the Endangered Species Act of 1973, as amended (``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 (CFR) at 50 CFR part 424, were most recently revised in
2019 (84 FR 45020, August 27, 2019; ``the 2019 rule'' or ``the 2019
regulations''). Those revised regulations became effective on September
26, 2019.
Executive Order 13990 (E.O. 13990), entitled ``Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate
Crisis,'' was issued on January 20, 2021. E.O. 13990 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 https://www.whitehouse.gov/briefing-room/statementsreleases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/). In response to E.O. 13990 and litigation that ended with
a court remand of the 2019 rule, the Services reviewed the 2019 rule
and, on June 22, 2023, published a proposed rule to revise portions of
the implementing regulations at 50 CFR part 424 (88 FR 40764) that had
previously been revised by the 2019 rule. We solicited public comments
on the June 22, 2023, proposed rule for 60 days, ending August 21,
2023.
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)).
Once species are listed, section 4(c)(2) of the Act requires us to
conduct a review at least once every 5 years to determine whether the
listed species should be removed from the Lists or changed in status,
and section 4(f) of the Act requires that we develop and implement
recovery plans for the conservation and survival of the listed species
(unless a finding is made that such a plan would not promote the
conservation of the species) (16 U.S.C. 1533(c)(2) and (f)). To the
maximum extent practicable, recovery plans are required to provide
certain elements, including objective, measurable criteria, which when
met, would result in a determination that the species should be removed
from the list.
Section 4(a)(3)(A) of the Act requires the Services to designate
critical habitat concurrent with the listing rule to the maximum extent
prudent and determinable, or issue a final critical habitat rule within
1 year following a final listing rule 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
or biological features that are essential to the conservation of the
species and that may require special management considerations or
protection; 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 two parts of this definition for
critical habitat depend on whether the species occupies an area or does
not occupy an area at the time of
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listing. For simplicity, throughout this document we will refer to the
former type of area 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 enumerated 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
endangered or threatened species to the point at which protections
under the Act are no longer necessary. More broadly, designation of
critical habitat also 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)).
In this final rule, we summarize and discuss the comments received
in response to the proposed rule (88 FR 40764, June 22, 2023), and
outline changes from the proposed rule based on our consideration of
those comments and in light of the objectives of this rulemaking
process to address concerns we had identified in the 2019 rule, the
policies expressed in E.O. 13990, and our experience with implementing
the Act. In the event any provision is invalidated or held to be
impermissible as a result of a legal challenge, ``the remainder of the
regulation could function sensibly without the stricken provision.''
Belmont Mun. Light Dep't v. FERC, 38 F.4th 173, 187 (D.C. Cir. 2022)
(quoting MD/DC/DE Broad. Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir.
2001)). Because each of the provisions stand on their own, the Services
view each of the provisions as operating independently from the other
provisions. Thus, should a reviewing court invalidate any particular
provision(s) of this rulemaking, the remaining provisions would still
allow the Services to classify species and designate their critical
habitat. Specifically, these distinct provisions include: (1) economic
and other impacts; (2) foreseeable future; (3) factors considered in
delisting species; (4) not prudent determinations; and (5) designation
of unoccupied critical habitat. To illustrate this with one example, in
the event that a reviewing Court would find that the revisions to the
foreseeable future regulatory language is invalid, that finding would
not affect the revisions to the factors considered in the designation
of unoccupied critical habitat. Therefore, in the event that any
portion of this final rule is held to be invalid or impermissible, the
Services intend that the remaining aspects of the regulatory provisions
be severable.
In finalizing the specific changes to the ESA implementing
regulations in this document, the Services are establishing prospective
standards only. These regulations will apply to classification and
critical habitat rules finalized after the effective date of this rule
and will not apply retroactively to classification and critical habitat
rules finalized prior to the effective date of this rule. (For the
effective date of this rule, see DATES, above.) Nothing in these
revisions to the regulations is intended to require that any prior
final listing, delisting, or reclassification determinations or
previously completed critical habitat designations be reevaluated on
the basis of these final regulations.
This final rule is one of three final rules publishing in today's
Federal Register that make changes to the regulations that implement
the ESA. Two of these final rules, including this one, are joint
between the Services, and one final rule is specific to FWS.
Changes From the Proposed Rule
In this section, we discuss changes between the proposed regulatory
text and the regulatory text that we are finalizing in this document.
We have modified the text we proposed for two sections of the
regulations--the foreseeable future regulation in 50 CFR 424.11(d) and
the delisting regulations in 50 CFR 424.11(e). We are not making
modifications to any other sections of the regulations in 50 CFR part
424 that were addressed in the 2023 proposed rule (88 FR 40764, June
22, 2023); we are finalizing those sections as proposed.
Foreseeable Future
The ESA defines ``threatened species'' as ``any species that is
likely to become an endangered species in the foreseeable future'' (16
U.S.C. 1532(2)). As part of the 2019 rule, the Services issued a
regulation explaining how to apply the ``foreseeable future'' language
(50 CFR 424.11(d)). In the proposed rule, we proposed to revise the
second sentence of the foreseeable future regulation in 50 CFR
424.11(d) to state, ``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.''
As explained below, we have modified that sentence so that it now
states, ``The foreseeable future extends as far into the future as the
Services can make reasonably reliable predictions about the threats to
the species and the species' responses to those threats.''
The Services received numerous comments that the proposed revisions
were vague and unclear, would result in foreseeable-future timeframes
that were limitless, or lowered the standard needed to list species.
Some commenters requested that we rescind the regulation or rely on the
2009 Memorandum Opinion on the foreseeable future from the Department
of the Interior, Office of the Solicitor (M-37021, January 16, 2009;
``M-Opinion'', available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). Other commenters
stated that the Services should retain this regulation in some form, as
the M-Opinion does not have the force of law. In response to these
comments and upon further consideration, we decided not to rescind the
regulation but to, instead, modify it for clarity.
We are not rescinding the 2019 regulation because including a
foreseeable future framework in our regulations establishes binding
standards for the Services to apply and promotes transparency to the
public by setting out our understanding of the foreseeable future in
the CFR, where it can be read in context with other regulatory
provisions implementing section 4. We are, however, revising the
regulation because the language from the 2019 regulation (i.e.,
``reasonably determine that both the future threats and the species'
responses to those threats are likely'') created confusion. The 2019
regulation seemed to suggest that the Services had adopted a novel
requirement to determine the foreseeable future by first determining
the likely effects of threats on the species. With this rule, the
Services clarify that the foreseeable future regulation does not
function as an independent substantive standard in the context of a
listing decision. Rather, the foreseeable future articulates how the
Services determine the appropriate timeframe over which to evaluate the
best scientific and commercial data available when determining whether
the species meets the substantive standard
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set out in the Act's definition of a threatened species.
In response to public comments on the proposed rule, we have
further revised the second sentence of the regulation to state that the
foreseeable future extends as far into the future as the Services can
make reasonably reliable predictions about the threats to the species
and the species' responses to those threats. Specifically, we made two
changes to the second sentence. First, we removed the word ``term''
from the second sentence because it is unnecessary, and the sentence is
clearer without this word. Second, we removed the phrase ``reasonably
rely on information'' and replaced it with ``make reasonably reliable
predictions.'' In light of the public comments received, we determined
that the phrase ``reasonably rely on information'' in the proposed rule
did not provide the clarity that we intended with respect to explaining
how far into the future the Services can use information to assess
future threats and species' responses to those threats.
Many of the commenters referred to the M-Opinion as being
preferable because it better explains the role of the ``foreseeable
future'' phrase in the Act and is more understandable than the
regulatory text we proposed. The M-Opinion explains, based on
contemporaneous dictionary definitions of ``foreseeable'' and the
statutory context in which the term appears, that what constitutes the
foreseeable future for a particular listing determination must be
rooted in the best available data that allow predictions into the
future, and that the foreseeable future extends only so far as those
predictions are reliable. Because the M-Opinion provided a well-
reasoned interpretation of this statutory term, following a thorough
analysis of the text and structure of the ESA and its legislative
history, it has guided the Services' longstanding practice. The
comments we received confirmed that the interpretation we had been
applying, as guided by the M-Opinion, is well understood and accepted.
Therefore, we have now rephrased the regulatory text to better reflect
that legal analysis and our longstanding practice by stating that the
foreseeable future extends as far into the future as the Services can
``make reasonably reliable predictions.''
As noted above, the term ``foreseeable future'' is a term contained
in the statutory definition of ``threatened species'' (16 U.S.C.
1532(20)), yet Congress did not define ``foreseeable future'' in the
Act. Since 2009, the Services have relied on the M-Opinion for internal
guidance in interpreting and applying this term. As part of our
assessment of a species' status, we evaluate how threats may already
have affected the species by considering available data regarding
abundance and population trends, and we evaluate how threats may affect
the species in the future. When conducting this analysis, we must
review the degree of certainty and foreseeability concerning each of
the threats to the species and the species' responses to those threats.
We must assess the nature of the best scientific and commercial data
available concerning each threat and the degree to which the data allow
us to make reliable predictions. Predictions about the occurrence of an
event or a response in the future are inherently uncertain. The M-
Opinion explores ordinary definitions of the word ``foreseeable'' and
refers to the event as ``being such as may reasonably be anticipated''
or ``lying within the range for which forecasts are possible'' (M-
Opinion, at 8 (emphasis removed)). It goes on to explain further that a
``forecast'' is defined as a prophecy, estimate, or prediction of a
future happening or condition, and the verb ``forecast'' is defined as
to anticipate, calculate, or predict some future event or condition as
a result of rational study and analysis of pertinent data (id.). The M-
Opinion states that we look not only at the foreseeability of threats,
but also at the foreseeability of the impact of the threats on the
species. In some cases, a species' responses to a foreseeable threat
will manifest immediately; in other cases, it may be multiple
generations before a foreseeable threat's effect on the species can be
observed. But in each case, we must be able to make reliable
predictions about the future impact to the species from the foreseeable
threat. The further into the future that we assess threats to a species
or a species' responses to threats, the greater the burden on the
Services to explain how we can conclude that those future threats or
responses remain foreseeable--that is, that our assessments of them are
based on reasonably reliable predictions out to that point in the
future. In making these predictions, we must avoid speculation and
presumption. Thus, for a particular species, we may conclude, based on
the extent or nature of the best data available, that a trend has only
a certain degree or period of reliability, and that to extrapolate the
trend beyond that point would constitute speculation. Therefore,
following our consideration of the public comments, we have revised the
second sentence of the framework to state that the ``foreseeable
future'' extends as far into the future as the Services can make
reasonably reliable predictions about the threats to the species and
the species' responses to those threats. The remainder of the framework
is unchanged.
The M-Opinion, which we have relied on since 2009, includes a
detailed analysis of the Act, legislative history, and case law and,
based on that analysis, develops a set of considerations for
determining the extent of the foreseeable future. We provide here a
summary of those considerations to address comments that our discussion
of the M-Opinion in the proposed rule was insufficient and should have
been more detailed. We carefully considered both the M-Opinion analysis
that we referenced in the proposed rule and the public comments we
received on the proposed rule when making the additional revisions to
the foreseeable future framework we finalize here. We will continue to
consider the following as we determine the extent of the foreseeable
future when making classification decisions:
1. Congress intended the Secretary (of the Interior or Commerce) to
apply the concept of the foreseeable future based on the facts
applicable to the species being considered for listing. Congress
purposefully did not set a uniform timeframe for the Secretary's
consideration of whether a species was likely to become an endangered
species, nor did Congress intend that the Secretary set a uniform
timeframe. (Endangered Species Act of 1973: Hearings on S. 1592 and S.
1983 Before the Senate Subcomm. On the Environment of the Committee on
Commerce, 93d Cong. 51, 58-59, 61, 63, 66 (1973)).
2. In any particular analysis under section 4(a)(1) of the Act, the
Secretary has broad discretion with respect to what constitutes the
foreseeable future in the context of that analysis, as long as the
rationale is articulated.
3. The Secretary's discretion must be exercised consistent with the
ordinary meaning of the statutory language and context in which the
phrase is used. (BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006);
Food & Drug Admin. v. Brown & Williams Tobacco Co., 529 U.S. 120, 132-
33 (2000)).
4. The Secretary's analysis of what constitutes the foreseeable
future for a particular listing determination must be rooted in the
best available data that allow predictions into the future, and the
foreseeable future extends only so far as those predictions are
reliable. ``Reliable'' does not mean ``certain''; it means sufficient
to provide a reasonable
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degree of confidence in the prediction, in light of the conservation
purposes of the Act. (See generally Alaska Oil & Gas Ass'n v. Pritzker,
840 F.3d 671, 681 (9th Cir. 2016)).
5. Because the predictions relate to the status of the species, the
data relevant to an analysis of foreseeable future are those that
concern the future population trends and threats to the species, and
the likely consequences of those threats and trends.
6. Since the foreseeable future is uniquely related to population,
status, trends, and threats for each species and since species often
face multiple threats, the Secretary is likely to find varying degrees
of foreseeability with respect to the various threats. Although the
Secretary's conclusion as to the future status of a species may be
based on reliable predictions with respect to multiple trends and
threats over different periods of time or even threats without specific
time periods associated with them, the final conclusion is a synthesis
of that information.
7. The Secretary must make the determination of ``threatened
status'' based on the best scientific and commercial data available (16
U.S.C. 1533(b)(1)). This may include reliance on the exercise of
professional judgment by experts when such judgments are consistent
with the concepts laid out in the M-Opinion, including the need to
document the basis for the conclusion.
8. The Secretary need not identify the foreseeable future in terms
of a specific period of time. Rather, it is important that the
information and data used by the Secretary are reliable for the purpose
of making predictions with respect to a particular threat.
Nevertheless, if the information or data are susceptible to such
precision, it may be helpful to identify the time scale being used.
9. With respect to any relevant prediction, when the point is
reached that the conclusions concerning the trends or the impacts of a
particular threat are based on speculation, rather than reliable
prediction, those impacts are not within the foreseeable future. (E.g.,
Bennett v. Spear, 520 U.S. 154, 176 (1997); Bldg. Indus. Ass'n. v.
Norton, 247F.3d 1241, 1246-47 (D.C. Cir. 2001)).
10. The administrative record for a decision under section 4(a)(1)
of the Act should include more than just a conclusion as to what is
foreseeable given the data available; it should also explain how the
Secretary reached that conclusion.
Factors Considered in Delisting Species
The June 22, 2023, proposed rule (88 FR 40764) contained a series
of revisions to the regulation at 50 CFR 424.11(e), which addresses
delisting decisions under the ESA. As we explained in the proposed
rule, these changes were intended to clarify multiple aspects of this
regulation, which had been revised in 2019. The proposed text for this
regulation was as follows:
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.
While many commenters indicated they support the proposed revisions
to 50 CFR 424.11(e), many others requested that additional changes be
made to further clarify the intent of the proposed revisions and to
better indicate or ensure that delisting decisions would be based on
sufficient data and a thorough review of the best scientific data
available. Following our review and consideration of the public
comments, we have modified the text of this regulation to read as
follows:
Species will be delisted if the Secretary determines, based on
consideration of the factors and standards set forth in paragraph (c)
of this section, that the best scientific and commercial data available
substantiate that:
(1) The species is extinct;
(2) The species has recovered to the point at which it no longer
meets the definition of an endangered species or a threatened species;
(3) New information that has become available since the original
listing decision shows the listed entity does not meet the definition
of an endangered species or a threatened species; or
(4) New information that has become available since the original
listing decision shows the listed entity does not meet the definition
of a species.
As indicated in this revised version of 50 CFR 424.11(e), the
opening sentence now includes a cross reference to the ``factors and
standards'' for making listing determinations, which are set forth in
an earlier paragraph (i.e., paragraph (c)) of the implementing
regulations. In the proposed rule, this cross reference had appeared
only in 50 CFR 424.11(e)(2). This modified opening sentence also
includes the more-straightforward wording, ``species will be delisted
if,'' in place of the proposed wording, ``it is appropriate to delist a
species if''; it also includes slightly different phrasing that
indicates the best available data must ``substantiate that'' one of the
listed circumstances for delisting has been met. These additional
modifications to 50 CFR 424.11 are intended to address various and
diverse concerns and comments asserting that the Services could, when
making delisting determinations, apply novel factors and standards,
base their decision on insufficient scientific evidence, delist species
automatically if any of the identified circumstances are met, or
purposely delay delisting species even if any of the identified
circumstances are met. As revised, the text more clearly indicates that
the factors and standards that the Services must consider and apply
when listing a species also apply when a species is being evaluated for
delisting (e.g., consideration of threats per section 4(a)(1) of the
ESA), regardless of the particular circumstances for that species
(e.g., extinction, recovery). The revised text also removes potentially
confusing language regarding the Services' intentions (i.e., ``it is
appropriate to delist'') and better emphasizes that the Services would
not promulgate a delisting rule unless the best available data provide
sufficient scientific evidence that the species no longer warrants
protection under the ESA.
The text in 50 CFR 424.11(e)(2) is also modified from the proposed
text to simultaneously address disparate comments and concerns
regarding the proposed reinsertion of ``recovery'' into the regulation.
Some comments expressed concerns that by reinserting ``recovery'' into
the regulation, the Services intend to link delisting to recovery plans
or would require recovery plan criteria to be met to delist species.
Other comments expressed concerns that by simply inserting a reference
to ``recovery'' into an existing provision, the Services are not
sufficiently emphasizing recovery of species as a principal goal of the
ESA and a principal responsibility of the Services. The modified text
for 50 CFR 424.11(e)(2) now sets out recovery as one of the distinct
circumstances in which species will be delisted. The modified text also
explicitly links ``recovery'' to the definitions of an endangered
species and a threatened species to make it clear that the standard for
assessing whether a species
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is recovered is not exclusively or inextricably linked to any recovery
plan criteria; instead, ``recovery'' must be assessed against the
definitions of an endangered species and a threatened species in the
Act.
We also modified the text to separately list two other potential
circumstances for delisting a species, which are now set forth at 50
CFR 424.11(e)(3) and (e)(4). These additional modifications were made
in response to comments that the Services were creating vague or novel
bases for delisting. We acknowledge that in our effort to simplify and
streamline this text in 2019, we removed some of the explanatory
context for these circumstances and, as a result, created the false
impression that these were novel circumstances for delisting. As this
was not our intent, we have modified the text to provide the necessary
context for understanding that these other two circumstances for
delisting are limited to situations in which new data become available
after a species is listed that change the scientific understanding of
that species--with respect to either its taxonomy or its status.
Scientific understanding of species is often not perfectly or fully
resolved at the time of listing; nevertheless, the Services are
required to make listing determinations based on the best data
available while adhering to statutory time limits. The ESA does not
permit the Services to delay or extend these statutory deadlines
indefinitely to conduct additional studies or resolve all
uncertainties. In cases where we have listed species that are later
shown, on the basis of new information, to not be taxonomically valid
``species'' or not be facing risk of extinction, the Services will
undertake a rulemaking to propose to delist those species. The revised
text at 50 CFR 424.11(e)(3) and (e)(4) is intended to better reflect
those circumstances, which both Services have experienced in their
years of implementing the ESA (See, e.g., 75 FR 52272, August 25, 2010
(new survey data showed additional populations and greater geographical
range of the Utah valvata snail, Valvata utahensis, than were known at
the time of listing); 86 FR 74378, December 30, 2021 (new genetic and
morphological data demonstrated that the listed coral, Siderastrea
glynni, is synonymous with another coral species)).
In the section below, we provide further discussion and
explanations of the changes to 50 CFR 424.11.
Summary of Comments and Responses
Comments on the proposed rule, which published on June 22, 2023 (88
FR 40764), were solicited from all interested parties through August
21, 2023. In addition to requesting comments on the proposed revisions
to 50 CFR part 424, we solicited comments on the analyses and
conclusions in the Required Determinations section of the proposed
rule. We also indicated that we would accept public comments on all
aspects of the 2019 rule, including whether any of those provisions
should be rescinded in their entirety (restoring the prior regulatory
provisions) or revised in a different way.
During the public comment period, we held a series of six
informational sessions to provide interested Federal agencies, Tribes,
States, nongovernmental organizations, and industry groups an overview
of the proposed rule. More than 500 attendees participated in these
informational sessions, and we addressed questions from the
participants during the sessions. We received and considered several
requests for an extension of the 60-day public comment period; however,
we decided not to grant these requests because we concluded that 60
days was sufficient to afford the public a meaningful opportunity to
comment. The majority of the proposed revisions are to portions of the
regulations that were previously revised and thus subjected to public
review and comment in 2019, and we had also publicly announced in a
press release our intention to revise these regulations in June of
2021.
More than 95,000 comment submissions representing more than 163,000
individual commenters were received by the close of the comment period
on August 21, 2023. Comments were received from a range of interested
parties, including individual members of the public, States, Tribes,
industry organizations, legal foundations and firms, and environmental
organizations. The majority of commenters requested that the 2019 rule
be rescinded in full. Among the submissions we received were multiple
letters from organizations signed by thousands of individuals
expressing general opposition to the proposed rule because we had not
proposed to rescind or revise some provisions of the 2019 rule. Many of
the individual comments we received were non-substantive in nature,
expressing either general support for, or opposition to, the proposed
rule with no supporting information or analysis, but we also received
many detailed substantive comments expressing support for, or
opposition to, specific portions of the proposed rule. We reviewed and
considered all public comments prior to developing this final rule.
Below, we summarize and provide responses to the substantive public
comments, and we indicate where we made revisions to the proposed
regulations in response to those comments. Similar comments are
combined where appropriate. We did not consider, and did not include
below, comments that are not relevant to, or that are beyond the scope
of, this particular rulemaking or the 2019 rule.
Comments on the Presentation of Economic or Other Impacts
Comment 1: Many commenters expressed support for reinserting
``without reference to possible economic or other impacts'' into the
regulatory text, stating that it was most consistent with the plain
language of the ESA and would further the science-based conservation
purposes of the ESA. Several commenters stated that the 2019
regulations violated congressional intent with respect to the ESA and
inappropriately injected economic considerations into listing
decisions.
Response: The Services appreciate the support for reinstating
``without reference to possible economic or other impacts'' into the
regulatory text related to listing determinations and agree that it is
consistent with the Act and congressional intent regarding section
4(b)(1)(A) of the Act. 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, October 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,'' id. at 20. See also Rep. 97-657 (H.R. Rep. No. 567,
97th Cong., 2nd Sess. 1982, 1982 United States Code Congressional and
Administrative News (U.S.C.C.A.N.). 2807, 2819, 1982 WL 25083, *20).
We find the removal of this language from the regulatory text
created the impression, and possibly even expectation, that the
Services would compile information regarding the economic impacts of
classification
[[Page 24305]]
determinations, and it created concerns that the Services would
inappropriately consider such information when making classification
determinations (e.g., ``Science Loses Ground to Economics with New
Endangered Species Act Rules,'' (McGlashen 2019); ``Biodiversity on the
Brink: The Consequences of a Weakened Endangered Species Act,'' (Bleau
2020)). For example, during the comment period for the California
spotted owl proposed listing rule (88 FR 11600; February 23, 2023), we
received a comment (FWS-R8-ES-2022-0166-0052) asking the FWS to ``do
their due diligence'' and conduct ``a comprehensive economic analysis
that includes evaluation of impacts'' on various stakeholders and
activities and stating: ``FWS must refrain from issuing a final
decision on whether or not to approve the proposed listing for Spotted
Owls until after a comprehensive economic analysis has been completed,
and the public has had an opportunity to review said analysis and
submit comments on it.'' As it was never our intention to take such
information into account when making classification decisions, and
doing so would clearly run afoul of the Act, we find that reinstating
this regulatory text should help dispel these misperceptions and
concerns.
Comment 2: A commenter noted that economic impact analyses are
already addressed through other means such as through project planning
and National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.)
compliance for specific projects and should not be included in the
listing process.
Response: The Services agree that economic impact analyses for
specific projects can be addressed through other means and should not
be conducted for listing, delisting, and reclassification decisions,
consistent with the clear intent of the Act.
Comment 3: Several commenters stated that the Services are not
precluded from compiling data and referring to the economic impact of a
listing determination as long as that information is not used in the
listing determination. A number of commenters stated that compiling
this information and making it available to the public, local and State
governments, and stakeholders at the time of listing a species would
improve transparency, would allow decision-makers to make better
informed choices concerning activities that may affect the species, and
may spur voluntary conservation actions. One commenter stated that if
the Services restored this language to the regulation, it would prevent
them from making decisions that are least cost to small entities.
Response: As we explained in the proposed rule and discuss above in
response to Comment 1, the removal of this phrase from the regulations
in 2019, as well as certain statements made by the Services in the
preamble accompanying its proposed 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. In some instances, and as implied by these comments, removal
of this language even created the expectation that the Services should
consider economic impacts of a listing decision in an effort to
minimize the economic impacts of species' listings. However, 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, and doing so could lead to needless
and time-consuming litigation to determine whether any economic impact
considerations were improperly taken into account. Restoring the
language ``without reference to possible economic or other impacts''
will help eliminate these public expectations and better reflects both
the statutory requirements of section 4(b)(1) of the Act and the
Services' actual practice.
Comment 4: Some commenters stated that the Services should be
compelled to compile data on the economic impact of listing species
because all ESA regulatory programs, including listing decisions, must
consider economic impacts. One commenter stated the Services should
also consider impacts to the human environment in addition to economic
impacts. One commenter stated that the Services lack clear authority to
omit disclosure of economic impacts from listings.
Response: Congress amended the ESA in 1982 to ensure that listing
determinations are based solely on the best scientific and commercial
data available. The Act is clear that the Services cannot consider
economic impacts when making listing decisions. Likewise, the Act does
not permit the Services to consider impacts to the human environment
when making listing decisions. The regulation we are finalizing, which
is explicitly linked to making listing, reclassification, and delisting
determinations under the Act, simply reiterates these existing legal
requirements. With respect to the comment that the Services must
disclose economic impacts of listing decisions, the Act is clear that
listing decisions must be based solely on the best scientific and
commercial data available and any impacts that may stem from the
classification decision are not to be considered in making the
determination. When proposing and finalizing rules to list, reclassify,
or delist species, the Services are only required to disclose the data
upon which the species classification decision is based (see 16 U.S.C.
1533(b)(8)). The 2019 rule premised the removal of the phrase, in part,
on our inherent authority to administer our programs in the interest of
public transparency (84 FR 45020 at 45025, August 27, 2019), rather
than a specific grant of statutory authority. This goal of transparency
was poorly served, however, because we created the problematic
impression that the Services would begin to compile information
regarding the economic impacts of classification determinations and,
further, that the Services might take such information into account
directly or indirectly when making classification determinations, which
would run afoul of the Act's mandate.
Comment 5: Several commenters suggested the Services could consider
economic impacts when making listing determinations. One commenter
stated the Services could refrain from listing a species if they
determine that because of the economic impact of listing the species,
they could leverage more conservation resources from other parties by
not listing the species.
Response: The Act requires the Services to make listing
determinations solely on the basis of the best scientific and
commercial data available. We are not permitted to consider the
economic impact of listing a species when making a species
classification determination. If, following an assessment of a species'
status, a species meets the Act's definition of an endangered species
or a threatened species based on the best scientific and commercial
data available, the Services are required to list that species
regardless of economic impact.
Comment 6: Some commenters stated that the Services had not
adequately explained why we reversed our view that the ESA permits us
to compile and share economic data about listing decisions. They
disagreed that the legislative history cited in our proposed rule
supports the Services' rationale. Some commenters stated that we had
misinterpreted congressional intent, while others cautioned the
Services not to rely too much on legislative history, arguing that if
Congress sought to
[[Page 24306]]
exclude consideration of economic data or other impacts from listing
decisions, it could have done so through statutory language.
Response: When we removed this phrase from the regulations in 2019,
we stated 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. We also made clear that we could not consider economic or other
impacts in making listing determinations because the Act prohibits it.
Based on our subsequent review of the 2019 rule and our experiences
implementing it, the language of the Act, and the legislative history,
we find that this change created the problematic impression that the
Services would begin to compile information regarding the economic
impacts of classification determinations and that the Services might
take such information into account directly or indirectly when making
classification determinations, which would clearly 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.
As we describe above in response to Comment 1, 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,
October 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., 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,'' id. at 20. The
legislative history for the 1982 amendments is equally clear that use
of the term ``commercial data'' was to ``allow the use of trade data''
for purposes of evaluating threats to species and that ``retention of
the word `commercial' is not intended, in any way, to authorize the use
of economic considerations in the process of listing a species'' (See
H.R. Rep. No. 567 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2820,
1982 WL 25083, *20).
As we explained in the June 22, 2023, proposed rule, 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 addresses this confusion
and removes this expectation.
Comment 7: Some commenters stated the proposed regulatory text was
contrary to law because ``commercial data'' in the requirement to list
species based solely on the best scientific and commercial data
available includes economic impacts and the reference to it in the ESA
allows flexibility for the Services to account for data that could be
considered ``economic'' in nature.
Response: As indicated above, the legislative history of the Act is
clear that the phrase ``commercial data'' is ``not intended, in any
way, to authorize the use of economic considerations in the process of
listing a species'' (H.R. Rep. No. 97-567 (1982), reprinted in 1982
U.S.C.C.A.N. 2807, 2820, 1982 WL 25083, *20. The determination of
whether a species should be listed as endangered or threatened must be
based on several factors that relate to the species and the threats to
its continued existence, but do not include a consideration of the
economic effects stemming from the listing, reclassification, or
delisting of the species. While the origins of threats to a species may
be caused by development or other economic activities, classification
determinations are expressly to be made ``solely on the basis of the
best scientific and commercial data available'' regarding the threats
and the species' response to the threats. The word ``solely'' was added
in the 1982 amendments to the Act to clarify that the determination of
endangered or threatened status was intended to be made without
reference to economic impacts of listing the species. The House
committee report (Id. at 19-20) elaborated on this point and also
stated that ``commercial data'' refers to trade data:
The principal purpose of the amendments to [s]ection 4 is to
ensure that decisions pertaining to the listing and delisting of
species are based solely upon biological criteria and to prevent
non-biological considerations from affecting such decisions. To
accomplish this and other purposes, [s]ection 4(a) is amended in
several instances . . . .
Section 4(b) of the Act is amended in several instances by
[s]ection 1(a)(2) of H.R. 6133. First, the legislation requires that
the Secretary base [her] determinations regarding the listing or
delisting of species ``solely'' on the basis of the best scientific
and commercial data available to [her]. The addition of the word
``solely'' is intended to remove from the process of the listing or
delisting of species any factor not related to the biological status
of the species. The Committee strongly believes that economic
considerations have no relevance to determinations regarding the
status of species . . . .
The Committee did not change this information standard because
of its interpretation of the word ``commercial'' to allow the use of
trade data. Retention of the word ``commercial'' is not intended, in
any way, to authorize the use of economic considerations in the
process of listing a species.
The 1982 Conference Report (Conference Report, for Endangered
Species Act Amendments of 1982, H.R. No. 97-835, at 19-20 (September
17, 1982)) also underscored the point that the Services must not
consider economic information when making classification decisions:
The principal purpose of these amendments is to ensure that
decisions in every phase of the process pertaining to the listing
and delisting of species are based solely upon biological criteria
and to prevent non-biological considerations from affecting such
decisions . . . .
[E]conomic considerations have no relevance to determinations
regarding the status of species . . . .
Comment 8: One commenter stated Congress's intent that economic
information be compiled at the time of listing is reflected in the
ESA's directives that the Services consider ``economic impact[s]'' in
establishing critical habitat designations and because the Services are
required to designate critical habitat concurrently with listing
decisions, we could disclose to the public and potential conservation
partners the economic information that is already in the Services'
possession or readily available to them.
Response: Section 4(b)(2) of the Act requires that, in the course
of designating critical habitat, the Services must consider the
economic and other relevant impacts of designating any particular area
as critical habitat. Section 4(b)(1) does not permit the Services to
consider economic or other
[[Page 24307]]
impacts when making a listing determination. The fact that the Services
are required to designate critical habitat concurrently with listing a
species as endangered or threatened does not mean that Congress
intended the Services to compile economic information regarding the
impacts of listing a species. In fact, and as discussed above, Congress
amended the Act in 1982 to make clear that the Services are to make
listing decisions solely on the basis of the best scientific and
commercial data available. The Services limit the analysis of the
potential economic impact of a critical habitat designation to
estimating the economic impacts that could stem from the designation
alone, even when the designation is proposed and finalized at the same
time as listing. Reinstating the phrase ``without reference to possible
economic or other impacts of such determination'' in Sec. 424.11(b)
clarifies the Services' longstanding practice and does not preclude the
Services from continuing to analyze and present the economic impacts
associated with the designation of critical habitat even when the
designation is completed concurrently with a species' listing. The
reinstated language at Sec. 424.11(b) applies specifically to listing,
delisting, and reclassification decisions, as indicated in the
regulation, and thus does not prohibit the Services from conducting and
presenting economic analyses for other types of rulemakings or actions
under the Act, where appropriate.
Comment 9: Several commenters stated that the ESA already prohibits
consideration of economic or other impacts when making a listing
determination and suggested that adding this language back into the
regulations could prevent the disclosure of information needed for the
designation of critical habitat.
Response: The Services consider the economic impact of designating
an area as critical habitat before an area is designated pursuant to
section 4(b)(2) of the Act. The economic impact analysis is made
available to the public for review and comment with the proposed rule
to designate critical habitat. The reinstatement of the regulatory text
preventing the Services from considering economic or other impacts when
making listing determinations will have no effect on the compilation or
disclosure of information needed for the designation of critical
habitat.
Comment 10: One commenter suggested the regulatory text be revised
to state: ``The Services are not required to compile economic data, and
listing determinations will be made without regard to economic
impacts.''
Response: The Services decline to make this suggested change. The
Act is clear that the Services are not required to compile economic
data when making listing determinations, and the addition of such text
is unnecessary. In addition, the suggested text could be potentially
confusing to the public because it differs from the text that was in
the regulations from 1984 until 2019 and could create the impression
that we would compile economic information when making listing
determinations.
Comment 11: A commenter suggested the Services should define
``other'' in the proposed regulatory text.
Response: The Services decline to define ``other'' in the phrase
``economic or other impacts.'' ``Other'' in this phrase refers to any
impact stemming from the listing determination other than economic
impacts. As described in this rulemaking, the Services must make
listing, delisting, and reclassification determinations based solely on
the best scientific and commercial data available and cannot take into
consideration economic or any other impacts stemming from the listing,
reclassification, or delisting of a species when making species
classification decisions.
Comments on the Foreseeable Future
Comment 12: Commenters expressed general support for the proposed
revisions, stating that maintaining a regulatory framework to determine
the ``foreseeable future'' is important to ensure consistency and
transparency. Additionally, commenters stated that the ``reliable''
standard is appropriate for determining the extent of the foreseeable
future, but that more guidance would be needed because the term is
subjective and has been applied in different ways since the 2009 M-
Opinion was released. Other commenters stated that the Services should
rescind the 2019 foreseeable future regulation rather than revise it,
and they asserted that the proposed revisions to the regulatory
language are confusing and inconsistent with the M-Opinion and the Act.
Response: After review of the foreseeable future regulation and
consideration of public comments received, the Services have determined
that including it in the regulations is preferred because it codifies
some of the key elements of our longstanding interpretation of this
term as guided by the M-Opinion and creates binding standards that both
Services will apply. The changes we finalize in this rule will help to
ensure a consistent interpretation and application of the term
``foreseeable future'' within the context of status reviews and listing
decisions. Our use of the phrase in the second sentence, ``make
reasonably reliable predictions,'' tracks closely with the text on page
13 of the M-Opinion, which the Services have relied on since 2009. As
both the M-Opinion and the foreseeable future regulation indicate, we
will describe the foreseeable future on a case-by-case basis. We
recognize that there will continue to be some subjectivity assessing
what is foreseeable, but each listing determination or rule will have
to support that the ``reasonably reliable'' standard has been met. At
this time, we do not find that, in addition to the regulation and the
M-Opinion, additional guidance on how to interpret the foreseeable
future is necessary.
Comment 13: Commenters stated that the Services should ensure that
the regulation for determining foreseeable-future timeframes and the
subsequent application of that framework are not artificially
shortened, particularly when considering listing of long-lived species.
Response: The Services evaluate the extent of the foreseeable
future on a case-by-case basis for each species when we assess its
classification status and must rely on the best scientific and
commercial data available when completing these assessments. As
described in the preamble to this final rule, the foreseeable-future
timeframe is limited by our ability to make reasonably reliable
predictions about threats and the species' responses to the threats. We
note that the framework we codify in these regulations reflects and
tracks with guidance provided in the M-Opinion. The M-Opinion states
that the analysis of what constitutes the foreseeable future for a
particular listing determination must be rooted in the best available
data that allow predictions into the future, and the foreseeable future
extends only so far as those predictions are reliable. For example, to
be reliable, predictions and the data on which they rely need not be
certain; rather, they must be ``sufficient to provide a reasonable
degree of confidence in the prediction'' (M-Opinion, at 13). In
addition, as stated in the M-Opinion, ``when the point is reached that
the conclusions concerning the trends or the impacts of a particular
threat are based on speculation, rather than reliable prediction, those
impacts are not within the foreseeable future'' (M-Opinion, at 14).
Therefore, just as the Services cannot speculate beyond when we can
make reliable predictions, we cannot arbitrarily limit the extent of
the foreseeable future. The regulatory framework we finalize today
addresses these inherent limitations by reference
[[Page 24308]]
to our ability to make reasonably reliable predictions.
Comment 14: Commenters stated that there was not an adequate
justification for proposing to revise the foreseeable future framework
and noted that the proposed rule did not present examples of confusion
or inconsistencies between the M-Opinion and the current regulation.
Response: Our proposed rule provided a clear and sufficient
justification for proposing changes to the foreseeable future
regulation (88 FR 40764 at 40766-40767, June 22, 2023). As we explained
in the proposed rule, the language in the 2019 regulation created
confusion regarding the way in which the Services interpret and
implement the term ``foreseeable future.'' We discussed how the second
sentence in the ``foreseeable future'' paragraph that we had 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'' 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)). The Services must then determine whether a species is
``likely to become an endangered species'' within this timeframe.
Confusion with respect to this regulation was evident, as some comments
on the 2019 rule expressed concern that the Services would be using a
more-stringent standard to determine whether a species was threatened
or would be demanding a level of scientific certainty that we had not
previously required (see 84 FR 45020 at 45028, August 27, 2019). Other
comments on the June 22, 2023, proposed rule stated that we were doing
something different from the M-Opinion. We never intended for the
regulations to create a different standard from the one explained in
the M-Opinion. We reconsidered those points, including our responses to
those comments in 2019, in accordance with E.O. 13990. We determined it
would be better to eliminate this confusion proactively now and revise
the regulatory provision so that it aligns more closely with the M-
Opinion rather than taking a ``wait-and-see'' approach to determine
whether these identified issues with the 2019 rule would manifest in
specific listing determinations.
Comment 15: Commenters that expressed support for a regulation
interpreting the ``foreseeable future'' suggested that the Services
revise the proposed rule language and offered general concepts and/or
specific language. Some commenters stated that the Services should use
a specific time period of no longer than 12 to 18 years; others
recommended that we use ``commonly accepted timeframes,'' and still
others recommended the inclusion of a clear endpoint of the foreseeable
future. Some commenters suggested that the Services provide more rigid
bounds to the extent of the foreseeable future so that greater
consistency could be achieved. Other commenters suggested that we apply
timeframes only as far as the five factors in the Act, along with the
species' responses to those factors, can be reliably predicted.
Response: As stated above, after reviewing the 2019 regulations
setting out the foreseeable future framework and considering the public
comments on our proposed revisions to those regulations, we have
elected to retain the regulation with the revisions described above. We
are declining to use a predetermined number of years or period of time
(e.g., seven generations as suggested by a commenter) as a universally
applied ``foreseeable future'' for all listings because picking a
predetermined number of years would be arbitrary and could preclude the
Services from relying on the best scientific and commercial data
available. Although some threats might manifest according to certain
consistent timeframes, the species' likely responses to those stressors
are uniquely related to the particular plant or animal's
characteristics, status, trends, habitats, and other operative threats.
Furthermore, when multiple threats affect a particular species, these
threats may have synergistic effects that are also unique to that
particular species. Therefore, we decline to adopt any one particular
timeframe to be applied universally to all species in lieu of a
regulation that describes how we will identify the foreseeable future
timeframe for each species. In addition, consistent implementation of
the regulation does not mean that the extent of the foreseeable future
will automatically be the same number of years into the future or that
it will necessarily be the same for each threat to a particular
species. To the extent possible, we will continue to provide
information in all listing decisions regarding the particular
timeframes used when evaluating threats and a species' risk of
extinction in the foreseeable future. Providing such information
facilitates the public's ability to evaluate the reasonableness of the
Services' listing decisions.
Comment 16: Some commenters recommended rescinding the foreseeable
future regulation and using the M-Opinion alone. Those who supported
this position stated that the M-Opinion is sufficient for interpreting
and applying the foreseeable future. Other commenters disagreed that
relying on the M-Opinion alone is sufficient without additional
guidance. They further stated that they opposed the use of the M-
Opinion alone because it did not go through public notice and comment
and as a result it is non-binding.
Response: As stated above, after our review of the 2019 regulations
setting out the foreseeable future framework, as well as the public
comments on the June 22, 2023, proposed rule, we have elected to retain
the ``foreseeable future'' regulation with the further revisions
described above. The approach we codify in regulation largely reflects
the reasoning in the M-Opinion, which does not have the force of law.
Therefore, we conclude that it is preferable to codify language in the
regulations that more closely reflects the interpretation of the ESA
provided in the M-Opinion, which has guided the Services since 2009.
Regulations are also subject to a rigorous review process, and the
public provided numerous substantial comments on the proposed revisions
that helped to inform our conclusion that retaining a regulation
regarding the foreseeable future was ultimately a better solution to
our concerns about the existing text than rescission. The M-Opinion
will continue to be a helpful resource to both Services' staff and the
public and can be read without the risk of conflicting with our
regulatory text.
Comment 17: Some commenters were unsupportive of the proposed
revision to the second sentence of the foreseeable future regulation;
in particular, they disagreed with the phrase in the second sentence
(i.e., ``reasonably rely''), stating that the phrase is vague,
confusing, and should be revised to be clearer.
Response: As stated above, after our review of the 2019 regulations
setting out the foreseeable future framework, as well as the public
comments on the June 22, 2023, proposed revisions to those regulations,
we have revised the second sentence of the framework to specifically
align the text to the M-Opinion as described above. The bulk of the
comments received stated that the
[[Page 24309]]
M-Opinion was understandable, clear, and conveyed a logical description
of the limit of the foreseeable future. The changes we codify track the
language in the M-Opinion and will provide a transparent and logical
framework that the Services will use when making classification
decisions. Responses to additional comments below provide further
discussion on this aspect of the revisions to the foreseeable future
regulation.
Comment 18: Some commenters favored keeping the current regulatory
text for 50 CFR 424.11(d) and specifically stated that they opposed
removing the word ``likely'' (in the phrase ``. . . both the future
threats and the species' responses to those threats are likely'')
because, they asserted, foreseeability is limited to what is likely or
must be tied to what is likely. Other commenters supported removal of
``likely'' because it would interfere with the Services' use of the
best scientific data available.
Response: As explained in the proposed rule, we found that the use
of ``likely'' in the 2019 regulations created confusion and 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. (See also our responses to Comments 12 and 15).
We agree that, to determine that a species meets the definition of a
``threatened species,'' we must provide a rational explanation of why
the particular species is ``likely to become an endangered species in
the foreseeable future.'' In addition, when determining how far into
the future is foreseeable for purposes of determining whether a species
is threatened, we are required to rely on the best available scientific
information and to provide a rational basis for looking out to that
point in the future. The comments on the proposed rule have confirmed
the importance of removing the word ``likely'' because commenters
clearly inferred that use of that word was intended to create a
separate or higher bar for listing decisions. Under the revisions we
are now finalizing, the Services will follow longstanding practice and
continue to apply the guidance set out in the M-Opinion, and thereby
avoid speculation and ensure that the data, information, analysis, and
conclusions we rely upon are rationally articulated and fully
supported. We find that removing the term ``likely'' revises the
regulations in a way that better aligns with the interpretation of the
ESA provided in the M-Opinion, continues our longstanding practice, and
will result in consistent application of the process we apply to
determine what constitutes the foreseeable future. The ultimate
conclusion of whether a species meets the Act's definition of a
threatened species will still depend on whether it is likely to become
an endangered species within that timeframe.
Comment 19: Some commenters expressed concern that the proposed
changes would allow the use of inaccurate and biased models and
treatment of them as factual and would result in overall inconsistency
in determining the foreseeable future. They stated that we should not
base decisions on speculation or use computer models based on
``suspicions'' of what the future might look like in hundreds of years,
and they further stated that endpoints of models should not define the
extent of the foreseeable future.
Response: We agree that we are not permitted to speculate or rely
on inaccurate models or limitless timeframes, as suggested by some
commenters. Regardless of the regulatory text, the Services are
required to base classification decisions solely on the best scientific
and commercial data available. Because evaluating a species' status is
fact-specific, a case-by-case analysis is required, and we must base
our decisions on predictions about the threats and the species'
responses to those threats that are reasonable and supported by the
best scientific and commercial data available. As described in the M-
Opinion, we look not only at the foreseeability of threats, but also at
the foreseeability of the impact of the threats on the species. In some
cases, foreseeable threats will manifest themselves immediately; in
other cases, it may be multiple generations before the manifestation of
the threats occurs. In each case, the Secretary must be able to make
reasonably reliable predictions about the future. The further into the
future that an assessment of threats or species' responses progresses,
the greater the burden with respect to explaining how the future
remains foreseeable for the period being assessed.
We agree with what the M-Opinion states on this point:
[T]he analysis of what constitutes the foreseeable future for a
particular listing determination must be rooted in the best available
data that allow predictions into the future, and the foreseeable future
extends only so far as those predictions are reliable. ``Reliable''
does not mean ``certain''; it means sufficient to provide a reasonable
degree of confidence in the prediction, in light of the conservation
purposes of the Act. (M-37021 at 13).
Comment 20: Some commenters opposed removing the phrase
``reasonably determine'' (in the phrase ``The term foreseeable future
extends only so far into the future as the Services can reasonably
determine that . . .'') because, they argued, the phrase ensures the
foreseeable future is not based on vague or speculative information and
does not lead to a limitless foreseeable future. Some commenters stated
that this proposed revision seems to fully adopt the precautionary
principle when deciding to list, which the ESA does not allow.
Response: We have concluded that replacing the proposed phrase
``reasonably rely on information'' with the phrase ``make reasonably
reliable predictions'' better aligns the second sentence of the
regulation with the language of the statute as explained by the M-
Opinion and reflected in the Services' longstanding practice. As
explained above and in more detail in the M-Opinion, the statutory
language does not permit the Services to base our determinations of the
foreseeable future on vague or speculative information and does not
lead to a limitless foreseeable future. In implementing this
regulation, we will review the degree of certainty and foreseeability
concerning each of the threats to the species and the species'
responses to those threats. The foreseeable future must be based on the
best scientific and commercial data available, and none of the changes
finalized here adopt a precautionary approach to listing
determinations.
Comment 21: Commenters expressed concern that the proposed
regulatory text, if made final, would provide no regulatory certainty,
result in limitless foreseeable future timeframes, and lower the
``bar'' on listing species, leading to an increase in species listings.
Response: The Services do not agree that the revised regulatory
language will lower the ``bar'' on, or standards for, listing decisions
or result in limitless foreseeable futures. As discussed above, the
revisions we are finalizing today are consistent with the reasoning in
the M-Opinion. Therefore, we are revising the regulation to better
align with the interpretation of the statute provided in the M-Opinion
that the foreseeable future be based on our ability to make reasonably
reliable predictions about the threats and species' responses to those
threats.
Comment 22: Commenters questioned the use of the phrase
``reasonably rely'' in the proposed rule language and asked whether the
standard for the foreseeable
[[Page 24310]]
future should instead be how far into the future the ``best scientific
and commercial data available'' goes, based on section 4(b)(1)(A) of
the Act.
Response: The commenters are correct that the Services are required
to make decisions about species' classification status on the basis of
the best scientific and commercial data available. Our implementing
regulations at 50 CFR 424.11(c) also restate this requirement and apply
it to determinations of the foreseeable future. However, even for
analyses or predictions that are based on the best scientific and
commercial data, determining the status of any species at some point in
the future is inherently challenging because we cannot predict the
future with precise certainty. Therefore, we have revised the second
sentence of the regulation to include the phrase ``make reasonably
reliable predictions'' to indicate how far into the future predictions
based on the best scientific and commercial data available can extend.
The phrase ``reasonably reliable predictions'' is also consistent with
generally applicable administrative law principles that we provide a
rational basis for our decision.
Comments on Delisting
Comment 23: Some commenters stated that they support the proposed
delisting regulation because it addresses the concern that, under the
2019 regulation, the Services would delist species prematurely.
Numerous other commenters, however, requested that we instead rescind
the 2019 delisting regulation and reinstate the regulation that had
been in place prior to 2019, which the commenters asserted was clearer,
better emphasized the goal of recovery, and better ensured a science-
based delisting process. Some commenters specifically requested that we
provide additional direction for assessing extinction or restore the
waiting-period requirement for declaring species extinct, because
extinction is not otherwise explained or defined, nor can it be
assessed by the Act's section 4(a)(1) factors. Some commenters
specifically requested we reinstate the previous regulatory language
indicating delisting may be warranted when the original data were in
error to ensure such decisions are based on scientific data and not
intervening statutory or regulatory changes.
Response: In response to these and other related comments, we have
made several changes to the proposed regulation at 50 CFR 424.11(e) to
include certain aspects of the regulations that had been in place prior
to 2019. For instance, we rephrase two of the listed circumstances to
provide more context, which indicate those circumstances are limited to
cases in which new data demonstrate the original listing is not
accurate. We also rephrase the text to explicitly indicate that
delisting is contingent upon whether the best scientific and commercial
data substantiate that the species meets one of the identified
circumstances. We make these changes because we recognize that in our
efforts to simplify and streamline the delisting regulation in 2019, we
removed the explanatory context necessary to understand the intent and
meaning of specific provisions, and the 2023 proposed rule included too
few changes to adequately address that concern and clarify the
regulation. We find that this final rule strikes the appropriate
balance of being simple and straightforward while also clearly
describing the various circumstances for delisting species and more
firmly establishing that delisting decisions are science-based
decisions.
We do not, however, find it necessary or helpful to include
additional regulatory direction or guidance on how to assess
extinction. Determinations and assessments to establish whether a
species is extinct are inherently fact- and case-specific, and we do
not agree that the regulations should establish universally applicable
guidance beyond the existing requirement to base our conclusions on the
best scientific and commercial data available. We, therefore, find that
some of the streamlining of this regulation achieved through the 2019
rule, such as the removal of ambiguous phrasing (e.g., ``a sufficient
period of time must be allowed''), is still appropriate. The wording of
the regulation finalized in this rule does not undermine the
requirement to substantiate the extinction of a species prior to
delisting it. Each rulemaking to remove a species from the official
Lists must provide the scientific basis for the delisting and must be
subject to public review and comment, whether the delisting is due to
extinction, recovery, or a change in our understanding of the species
due to the availability of new information.
Comment 24: A commenter recommended we delete Sec. 424.11(e) of
the regulations because it is unnecessary and the Services should
instead rely on section 4(c) of the ESA, which provides the criteria
for delisting.
Response: We decline to remove Sec. 424.11(e) of the implementing
regulations, because it provides a useful and transparent
interpretation of the statutory basis for delisting and identifies the
possible circumstances in which a species may be delisted. While
section 4(c) of the Act does indicate the basis for review and revision
of the Lists of Endangered and Threatened Wildlife and Plants, it does
not identify or describe the various circumstances in which delisting
may be appropriate. For example, it does not acknowledge extinction as
a basis for delisting, nor does it account for the fact that there are
instances when new information may become available that alters the
original basis for listing, whether it be new information about the
species' status or its taxonomy.
Comment 25: Multiple commenters were opposed to the proposed
changes to the delisting regulations, and some of these commenters
requested that we withdraw the proposed rule. Other commenters noted
that if the proposed changes are finalized, the Services should provide
a detailed explanation of the factors that will be considered in
delisting decisions and include a straightforward process by which
recovered species may be expeditiously delisted.
Response: As noted previously and as discussed further in responses
to related comments below, we have made several revisions to the
proposed delisting regulation. Some of these revisions were made in
response to comments stating that aspects of the regulation were
confusing, vague, or ambiguous. We find the final delisting regulation
is clear with respect to the basis, standards, and circumstances for
delisting species. There are no other factors outside of those
indicated in this regulation that can or could provide a basis for
delisting pursuant to the Act. Straightforward requirements and
procedures for proposed and final rules are also already provided at 50
CFR 424.16 and 424.18, and we find no purpose or basis for adding
separate or different requirements for delisting rules.
Comment 26: Some commenters asserted that the proposed changes to
the delisting regulation were not adequately justified in the proposed
rule. The commenters stated that the Services' rationale that these
changes are intended as clarifications and to eliminate potential
confusion is not credible because the proposed changes are not limited
to clarifications, and because the Services did not provide evidence of
any confusion stemming from the 2019 rule.
Response: We disagree and find that the proposed rule provided
adequate justification for the several changes proposed to the
delisting regulations at 50 CFR 424.11(e). For example, in the proposed
rule, we stated that some changes were intended to remove the
[[Page 24311]]
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 (see 88 FR
40764 at 40767, June 22, 2023). Indications of such confusion and
concerns can be found in comments we received and discussed in the 2019
rule (e.g., ``the revised 424.11(e) creates an expedited delisting
process,'' 84 FR 45020 at 45038, August 27, 2019), as well as in
comments on the recent 2023 proposed rule and discussed herein (see
comment summaries below). Thus, there is adequate indication of
confusion regarding the text and implications of this regulation, and
our decision to finalize additional revisions to this regulation to
further reduce or eliminate any confusion with respect to the when and
how of delisting actions is well-justified. We determined it would be
better to address this confusion proactively and in an effort to be
consistent with E.O. 13990's policy of improving protections to the
environment rather than taking a ``wait-and-see'' approach to determine
whether these identified issues with the 2019 rule would manifest in
specific delisting determinations.
In the proposed rule, we also explained that removal of the
reference to recovery in the delisting regulations was the focus of
many public comments and that commenters expressed concerns that the
Services would delist species before they were recovered (see 88 FR
40764 at 40767, June 22, 2023). In the proposed rule, we also indicated
that, upon review and reconsideration of the 2019 rule, we now 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. This revision made in this final rule is
intended to more clearly indicate that the Services have no intention
of delisting species prematurely and that recovering listed species is
no less of a priority. As the agencies charged with implementing the
Act, we view this change as an important and appropriate clarification
to the delisting regulation.
Comment 27: Multiple commenters objected to the proposed removal
and replacement of the phrase ``the Secretary shall delist if'' with
the phrase ``it is appropriate to delist if'' in the opening sentence
of the regulation concerning the delisting process. Many of the
commenters opposing this change stated it would remove the directive
for the Services to take immediate action to delist species when the
specified criteria are met. Some commenters expressed concerns that
this proposed rewording would be interpreted as making delisting
discretionary or optional, or that it could delay, or allow for
purposeful delay of, delisting actions. Commenters stated that
delisting is mandatory, because the ESA requires that we delist species
when they no longer meet the criteria for listing or when they become
extinct; therefore, implying that delisting is discretionary is
contrary to the ESA. Other commenters asserted that this change was
vague or would create more confusion regarding the process for
delisting. Commenters noted that delisting must be treated as a
priority and that delisting species in a timely fashion reduces the
regulatory burden on the public and helps to better demonstrate the
success of the ESA.
Response: As we discussed in the proposed rule, the intention of
this particular proposed change was to remove the potential for
confusion or concerns that, by inserting the phrase ``the Secretary
shall delist if'' into this regulation in 2019, the Services would or
could take immediate action to delist a species without following
notice-and-comment rulemaking procedures, or that the outcome of such a
rulemaking was predetermined. However, based on these and other
comments, the text finalized in this rule replaces the phrase ``it is
appropriate to delist a species if'' with the more direct phrase,
``species will be delisted if.'' The final text of this regulation
better reflects both that the Services have no intention of either
purposely delaying delisting actions or circumventing any ESA or
Administrative Procedure Act (APA; 5 U.S.C. 551 et seq.) requirements.
We also note that the Act does not establish strict timelines for
removing species from the Lists once a status review is completed.
While the Services make every effort to complete delisting rules when
supported by the data and evidence, we acknowledge that doing so is
contingent upon our available resources. We also note that regardless
of how quickly the Services are able to take action to formally remove
a species from the list, the Act allows any interested party to
petition the Services to do so and thereby compel the Services to take
action to consider delisting that species.
Comment 28: Some commenters indicated they oppose removal of the
``shall delist'' phrase from this regulation because it would make the
delisting regulation inconsistent with the listing and reclassification
regulation at paragraph (c) of Sec. 424.11, which states that ``a
species shall be listed or reclassified if . . . .'' Other commenters
noted that the ``shall'' phrasing aligns with the language Congress
used in section 4 of the ESA. Other commenters supported retaining the
``shall'' clause or other text that would acknowledge the obligation to
delist and also recommended additional revisions to indicate that
delisting is not automatic and would still involve a rulemaking
process. Several commenters recommended regulatory text that would
explicitly instruct the Services to initiate the process to delist, and
some commenters also suggested that similar language be included in
Sec. 424.11(c) with respect to listing and uplisting (i.e.,
reclassification from a threatened species to an endangered species).
Response: We have considered these comments and the structure of
the listing and reclassification regulations at 50 CFR 424.11(c), and
we have modified the text of the delisting regulation in this final
rule. Specifically, and as already discussed, we have changed the
proposed phrasing to instead state that ``species will be delisted if .
. . ,'' which matches the structure of the listing and reclassification
regulation at 50 CFR 424.11(c). We also note that we have elected to
use the verb ``will'' instead of ``shall'' to be consistent with the
2011 Federal Plain Language Guidelines at III.a.1.iv. (available online
at https://www.plainlanguage.gov/media/FederalPLGuidelines.pdf), which
recommend against using ``shall'' due to the term being outdated and
imprecise, and the Office of the Federal Register's Principles of Clear
Writing (available online at https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html), which suggest the use of ``will''
to predict future action. These verbs in no way represent or reflect a
difference in terms of the required actions that must be undertaken by
the Services when listing, reclassifying, or delisting species.
We do not find it necessary or consistent with the Act or 50 CFR
424.11(c) to include additional text to indicate any specific
requirements for initiating rulemaking. Those requirements are already
provided in section 4 of the ESA, the APA, and 50 CFR 424.16 and
424.18. For these same reasons, we also decline to revise the
implementing regulation at 50 CFR 424.11(c) to include instructions for
initiating rulemakings to list and reclassify species.
Comment 29: Multiple commenters expressed support for removing the
phrase stating the ``Secretary shall delist if'' and replacing it with
the phrase ``it
[[Page 24312]]
is appropriate to delist if'' to avoid implying that delisting is a
foregone conclusion without agency discretion or public comment. Some
commenters stated that this proposed change appropriately reflects that
the delisting process must be based not only on a status review using
the best scientific and commercial data available but also on a
subsequent notice-and-comment rulemaking, rather than imposing or
implying a requirement to delist a species immediately following a
status review. Some commenters, however, stated this proposed change
did not go far enough and that the regulations should also state that
species can only be delisted through the process indicated at 50 CFR
424.16(c). Another commenter requested we rephrase the proposed
regulation to state ``it is appropriate to consider delisting a species
if'' to further alleviate concerns that the Services would take
immediate action to delist species when one of the listed circumstances
is met.
Response: We appreciate the comments in support of the proposed
regulation. However, as noted above and in response to other comments
we received, we have made several modifications to the regulatory text
to more closely align this section of the regulations with the listing
and reclassification regulation at 50 CFR 424.11(c), and to more
clearly indicate that we will delist species when the best available
data substantiate that decision. We find that the wording of the final
regulation best reflects the Services' intention that delistings be
neither premature nor purposely delayed. As finalized in this rule, the
regulations are clear that removal of a species from the Lists requires
a status review, consideration of the factors listed in section 4(a)(1)
of the Act, application of the best available data, and notice-and-
comment rulemaking.
Comment 30: Multiple commenters indicated they support the proposed
reference to recovery in the delisting regulation because it
acknowledges that recovery is a fundamental objective of the ESA and
represents an important pathway to delisting. Some commenters indicated
they support this proposed change because it encourages the Services to
delist species when they have recovered. Some commenters stated that
removal of this term from the regulation in 2019 had appeared to
circumvent recovery plans or make section 4(f) of the ESA meaningless.
Response: We appreciate these comments in support of inclusion of
recovery as a circumstance in which a species should be delisted. We
also reiterate that although the delisting regulation does not
specifically refer to section 4(f) of Act, the statutory requirement to
develop recovery plans pursuant to section 4(f) of the Act remains a
priority for the Services; recovery plans will continue to be an
important tool for guiding, tracking, and implementing conservation
actions. This final regulation explicitly refers to recovery but also
makes it clear that the delisting of a species requires a status review
of that species, consideration of threats as outlined in section
4(a)(1) of the Act, and scientific and commercial data that
substantiate that the species is no longer endangered or threatened.
Comment 31: Some commenters noted they support acknowledging
recovery in the delisting regulation but stated the proposed regulation
does not sufficiently emphasize recovery as the ultimate goal of the
ESA. Some commenters requested that the regulation specifically state
that recovery is a primary reason for delisting. Several commenters
asserted the Services' goal of acknowledging the importance of recovery
is undermined or diminished by the proposed insertion of the term
``recovered'' into the phrase ``or otherwise does not meet the
definition of a threatened or endangered species.''
Response: We have addressed some of these comments in the final
delisting regulation, which includes the modified phrase, ``The species
has recovered to the point at which it no longer meets the definition
of an endangered species or a threatened species.'' In contrast to the
phrasing in the proposed rule (i.e., ``The species is recovered or
otherwise does not meet the definition of a threatened or endangered
species''), the phrasing of the final regulation appropriately
identifies species' recovery as one of the separate, distinct
circumstances in which species should be delisted. We decline to make
other revisions requested by these commenters, however, because we do
not agree that the implementing regulations are the appropriate place
to provide a discussion or characterizations of the goals or purposes
of the Act, nor do we find it necessary to do so.
Comment 32: Several commenters described the proposed insertion of
``is recovered'' in this regulation as vague, ambiguous, or confusing.
Commenters requested that we reword the text to be clearer, include a
definition of ``recovered,'' or adopt more-specific regulatory text
indicating delisting is warranted after a species has recovered or has
met recovery plan objectives. Some commenters stated that linking the
regulation to recovery plan criteria would also trigger a delisting
action when a recovery plan's objectives are met and would, therefore,
likely lead to significantly more buy-in for advancing recovery plan
goals. In contrast, other commenters stated that, although they support
acknowledging recovery as a basis for delisting, the Services should
add language to explicitly indicate that species do not have to meet
the specific criteria set forth in a recovery plan in order to be
delisted, as such a requirement is not supported by the ESA, the
implementing regulations, or existing case law.
Response: In response to the comments describing the proposed
revision as confusing and vague, as well as other comments received on
the proposed text, we have modified the text in the final regulation.
Specifically, we have rephrased the text to read: ``The species has
recovered to the point at which it no longer meets the definition of an
endangered species or a threatened species.'' We find this statement is
clear on its face and further instruction or guidance is not necessary:
the terms ``endangered species'' and ``threatened species'' are defined
in section 3 of the Act, and the standards and requirements the
Services must apply when making listing, reclassification, and
delisting decisions are set forth in section 4(a) and (b) of the Act.
As we have acknowledged previously and as supported by existing
case law, recovery plan criteria are not binding and cannot in all
cases serve as a measure by which the Services can judge the status of
a listed species (See Ctr. for Biological Diversity v. Haaland, 58
F.4th 412, 418 (9th Cir. 2023); Friends of the Blackwater v. Salazar,
691 F.3d 428, 432-34 (D.C. Cir. 2012); see also Ctr. for Biological
Diversity v. Bernhardt, 509 F. Supp. 3d 1256, 1267 (D. Mont. 2020);
Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996)
(``Section 1533(f) makes it plain that recovery plans are for guidance
purposes only.'')). Thus, we do not find it necessary to make any of
the other requested changes to indicate that recovery plan criteria
must be met, or do not have to be met, to delist a species as a result
of its recovery. We also do not find it necessary to insert a
definition of ``recovered'' into this section of the regulations
because the term ``recovery'' is already defined in our joint
implementing regulations in 50 CFR 402.02 as ``improvement in the
status of listed species to the point at which listing is no longer
appropriate under the criteria set out in section 4(a)(1) of the
Act.'').
Comment 33: Some commenters indicated their support for the
proposed reference to ``recovery'' but asserted that
[[Page 24313]]
the Services are missing the opportunity to provide additional
requirements that recovery goals be clear, consistent, measurable, and
based on the best available science, to ensure that the long-term
health and viability of recovered species will be maintained after they
are returned to State management. Another commenter stated that
recovery plans should be updated periodically to address current
conditions and new threats.
Response: We appreciate the commenters' feedback on recovery plans;
however, regulatory requirements for recovery plans are outside the
scope of this current rulemaking. Therefore, we have not added
additional text to this final rule to address the content of recovery
plans or the process or frequency with which the Services will update
recovery plans. The Services do not have joint implementing regulations
addressing section 4(f) of the Act; however, both agencies have
developed detailed guidance on recovery planning and implementation.
Those documents are available online (see https://www.fisheries.noaa.gov/resource/document/nmfs-recovery-planning-handbook-version-10; and https://www.fws.gov/media/interim-endangered-and-threatened-species-recovery-planning-guidance). We also note that
both Services release draft recovery plans for public review and
comment prior to issuing final plans; this provides the public with the
opportunity to provide specific input to help ensure plans contain
clear, measurable, scientifically sound management actions and
criteria.
Comment 34: Multiple commenters stated they opposed the proposed
reference to recovery in the delisting regulations. Some of these
commenters stated this change was unnecessary because the regulations
already sufficiently cover the circumstance of species recovery. A
commenter asserted this proposed change is confusing because a species
may no longer meet the definition of an endangered or a threatened
species yet not be fully recovered, i.e., the species may still require
conservation actions to be self-sustaining.
Response: We agree that the delisting regulation, as finalized in
2019, did inherently cover the circumstance of recovery as a basis for
delisting; however, and as explained in the proposed rule, removal of
the reference to recovery from this regulation in 2019 created concerns
that the Services would delist species before they were truly recovered
or would no longer prioritize recovery planning or recovery efforts in
general. We have no intention to diminish or undermine the critical
role that recovery plans play in guiding, tracking, and facilitating
conservation actions. Because recovery (i.e., conservation) of listed
species is a principal goal of the Act and a clearly legitimate basis
for delisting species, we conclude it is better and clearer to
explicitly refer to recovery in our delisting regulation (see also
response to Comment 36, below).
The Services have defined ``recovery'' to mean ``improvement in the
status of listed species to the point at which listing is no longer
appropriate under the criteria set out in section 4(a)(1) of the Act''
(50 CFR 402.02). Under this regulatory definition, which informs how we
construe this term under the section 424 regulations, for a species to
be considered recovered, it must no longer be an endangered or a
threatened species. Thus, we disagree with the comment that the text of
the regulation is confusing.
Comment 35: Multiple commenters objected to reinserting
``recovery'' into the delisting regulations and stated that it adds a
factor that is not indicated in section 4(a)(1) of the ESA and adds a
new or heightened standard that is inconsistent with the ESA. The
commenters noted that the existing regulation is clear and that adding
the term ``recovery'' to the regulations would create confusion
regarding the delisting process, which can only be based on the factors
and standards outlined in section 4 of the ESA and is not contingent on
meeting a separate recovery standard. Commenters stated that because
recovery is not a statutorily permissible basis for delisting,
``recovery'' has no independent meaning in the regulation and is thus
purposeless. Some commenters expressed the concern that insertion of
this term would result in making recovery plans a requirement for
delisting or would lead to the need for the Services to demonstrate
that a recovery plan's criteria have been met to delist a species.
Response: We agree with the commenters that the criteria set forth
in a recovery plan do not establish the standards for delisting
species; those standards are instead set forth in section 4(a) and (b)
of the Act. However, recovering endangered and threatened species is
one of the primary goals of the ESA, and a recovered status (i.e., when
a species no longer meets the definition of an endangered or a
threatened species) is a valid circumstance in which a species should
be delisted. (See H.R. Rep. No. 95-1625, at 5 (1978) (``The primary
purpose of the Endangered Species Act of 1973 is to prevent animal and
plant species endangerment and extinction caused by man's influence on
ecosystems, and to return the species to the point where they are
viable components of their ecosystems.''); Alaska v. Lubchenco, 723
F.3d 1043, 1054 (9th Cir. 2013) (``The goal of the ESA is not just to
ensure survival, but to ensure that the species recovers to the point
it can be delisted.'' (citations omitted))). Thus, we find that
including recovery as an express example of when delisting is warranted
is not only appropriate but entirely consistent with the Act. We,
therefore, also find that including the reference to recovery has both
purpose and meaning.
This final rule, which has been modified from the proposed rule, is
consistent with the Act and existing case law, and in no way requires
that recovery plan criteria are satisfied before the species may be
delisted (see generally Friends of the Blackwater v. Salazar, 691 F.3d
428 (D.C. Cir. 2012); Ctr. for Biological Diversity v. Bernhardt, 509
F. Supp. 3d 1256, 1267 (D. Mont. 2020) (``. . . recovery plans do not
bind an agency into any single course of action''); Fund for Animals,
Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) (``Section 1533(f)
makes it plain that recovery plans are for guidance purposes only.'')).
The final delisting regulation also very clearly links the concept of
recovery to the Act's definitions of endangered species and threatened
species, the section 4(a)(1) factors in the Act, and the requirement to
base the status review on the best scientific and commercial data.
Thus, this regulation does not create the need for the Services to
demonstrate that a recovery plan's criteria have been met to delist a
species.
Comment 36: Some commenters stated that the justification for
inserting the term ``recovery''--to acknowledge one of the principal
goals of the ESA--was erroneous, because Congress did not use the term
``recovery'' when outlining the purposes of the Act in section 2 or
when defining the terms ``conserve, conserving, and conservation'' in
section 3. Some commenters asserted that the Services were overstating
the role of recovery plans in decisions regarding downlisting and
delisting and stated they are guidance documents only.
Response: We acknowledge that Congress did not use the term
``recovery'' in section 2 of the Act when it outlined the goals of this
Act, or in section 3 of the Act, where it defined the terms ``conserve,
conserving, and conservation.'' For nearly 40 years, the Services have,
however, used a regulatory definition of ``recovery'' that
[[Page 24314]]
clearly establishes that this term refers to a condition in which a
species has improved, or has been conserved, such that it no longer
warrants protection under the Act (see 50 CFR 402.02; 51 FR 19926 at
19958, June 3, 1986). Therefore, we do not find it erroneous to use
this term in a manner consistent with its regulatory definition in 50
CFR 402.02 of our joint implementing regulations.
As the delisting regulation in 50 CFR 424.11(e) makes no reference
to recovery plans or section 4(f) of the Act, we do not agree that the
regulation overstates the role of recovery plans; rather it makes no
statement about them at all.
Comment 37: Some commenters requested additional revisions to the
regulation to ensure the Services can apply a precautionary approach
when making delisting decisions. These commenters asserted that it
should be easier to list species than to delist them and that
additional changes to the regulations should be made to correct the
false equivalency between listing and delisting. Some commenters
requested that the regulations include a statement that, when there is
reasonable uncertainty, the Services should err against delisting.
Commenters also requested that the regulations be modified to indicate
that a higher level of certainty and standards is required for
delisting compared to those specified in 50 CFR 424.11(c) for listing
and reclassifying species.
Response: We decline to make the additional requested revisions,
because such revisions would not, in our view, be consistent with the
Act and existing case law. As we have stated previously in response to
similar comments in 2019 (84 FR 45020 at 45035, August 27, 2019), the
Act directs the Services to make determinations regarding whether a
species is endangered or threatened based on the best scientific and
commercial data available and by applying the factors and standards in
section 4(a) and (b) of the Act. The same set of standards applies and
the same level of certainty is required regardless of whether we are
making a listing determination or delisting determination. In either a
listing or delisting context, the Services must substantiate their
determination based solely on the best available data. Similarly, if
there is sufficient uncertainty regarding the status of a species, the
Services could not support a listing determination, nor a delisting
determination (Humane Soc'y of the U.S. v. Zinke, 865 F.3d 585, 597
(D.C. Cir. 2017) (``In addition, the statute requires the Service to
attend to both parts of the listing process--the initial listing, and
the revision or delisting--with equal care. . . . Nothing in the
statutory text compels the Service to put a thumb on the scale in favor
of listing, nor does the text require the Service to temporize when the
best evidence indicates that a revision is warranted.'')).
As with listing determinations, when considering whether to delist
a species, the Services are required to take into account the best
available data and information relevant to assessing the species'
status and risk of extinction, including prior findings and the
discussion of facts supporting those findings, and discuss how the
available information supports the conclusions in a well-reasoned,
transparent manner. We acknowledge that the factual analyses in the two
contexts may differ: in determining whether to list a species, we can
generally rely on past and current data and trends regarding the
species and the threats to the species to determine whether the species
meets the definition of an endangered or a threatened species; but, in
cases where a species may have recovered, determining whether to delist
a species also requires that we assess the status of the species in the
hypothetical absence of protections it currently receives under the
Act. Nevertheless, the underlying standards and obligation of the
Services to articulate a rational connection between their conclusions
and facts in the record are still the same regardless of the context of
the determination being made (listing or delisting).
Comment 38: Some commenters stated that the proposed removal of the
word ``same'' from the phrase ``the Secretary shall consider the same
factors and apply the same standards'' was not substantiated and is
unnecessary. The commenters stated there is no evidence that this
regulation has caused the ``possible'' confusion discussed in the
proposed rule. The commenters stated that rather than eliminate
possible confusion, this proposed change would create new confusion
about whether the Services intend to consider different factors and
apply different standards depending on whether we are considering a
species' listing, delisting, or reclassification. Commenters stated
that it is important that the Services remain clear that the five
factors in section 4(a)(1) of the Act are the same when listing a
species and when delisting a species, and that this proposed change
would not expand or otherwise revise the criteria that may be
considered when determining whether to delist a species.
Response: As we outlined in the proposed rule, this revision
eliminates the possible, though unintended, confusion that the
delisting analysis is limited to those same, specific factors or
threats that initially led us to list that particular species. We find
that elimination of possible misinterpretation of our regulations is an
appropriate and adequate justification for making this minor wording
change. As we have stated in response to other comments, we are not
obligated to wait to take action to address confusion until it
manifests itself in specific circumstances. The possible confusion here
could present a serious issue, as an overly literal reading of the 2019
rule could lead to a premature delisting of a species for whom
protections under the Act are still warranted. Resolving this issue
now, with a simple word change, is appropriate and consistent with E.O.
13990. The regulation also clearly and plainly states that delisting
decisions will be based on consideration of the factors and standards
set forth in paragraph (c) of Sec. 424.11. The cross-referenced
paragraph (c) identifies the factors and standards that must be applied
when listing and reclassifying species, which correspond to the factors
and standards set forth in section 4 of the Act. Therefore, removal of
the word ``same'' does not allow the Services to apply different
requirements, standards, or factors depending on whether we are making
listing, reclassification, or delisting decisions.
Comment 39: Multiple commenters agreed with the proposed removal of
the word ``same'' from the delisting regulation because it would help
eliminate any possible confusion that the delisting analysis is limited
to the specific factors or threats that led to the need to list the
species. Commenters stated this change makes it clear that the analysis
must be conducted on all the threats facing the species at the time of
the analysis, not only on the threats that were present at the time of
listing. One commenter pointed to specific examples of listed species
for which the types of threats affecting the species has changed or
increased since the time of their listing. A commenter noted that this
proposed change is consistent with the best available science standard
and appropriately allows the Services to consider additional
information that may arise after a Services' listing determination that
supports their decision--whether that be keeping the species on the
Lists or delisting it.
Response: We appreciate and agree with these comments.
[[Page 24315]]
Comment 40: Some commenters stated that the circumstances for
delisting identified in the regulation should be limited to extinction
and recovery, and that the other vague factors should not be
considered. Some commenters disagreed with including the species ``does
not meet the statutory definition of a species'' as a circumstance in
which the Services may delist a species, because such inquiries are no
longer limited to the data that were available to the Services at the
time of listing. Instead, the commenters asserted, this provision would
allow for delisting based on other considerations, such as changes in
policies or regulations governing the ESA.
Response: In response to these comments, we have modified the text
of the regulation to clarify that the particular circumstance
referenced by the commenters is limited to instances in which new data
indicate the original listing can no longer be considered accurate or
valid. Specifically, the regulation now states: ``New information that
has become available since the original listing decision shows the
listed entity does not meet the definition of a species.'' Under the
Act, the Services can only list ``species,'' a term which is defined in
the Act to include subspecies of fish, wildlife, and plants, and
distinct population segments of vertebrates (16 U.S.C. 1532(16)).
Although infrequent, there have been instances in which the Services
have removed ``species'' from the Lists because scientific information
that subsequently became available showed that the listed entity had
been misclassified or incorrectly identified as a unique species. For
instance, after the foreign coral, Siderastrea glynni, was listed as an
endangered species in 2015, new genetic and morphological information
became available that demonstrated that S. glynni was not a unique
species or subspecies and was instead synonymous with another coral
species. Based on this information, S. glynni did not meet the
statutory definition of a species, and it was on this basis that NMFS
delisted it in 2021 (see 86 FR 74378, December 30, 2021).
Comment 41: Some commenters noted that the factors listed in
section 4(a)(1) of the ESA address threats only, and that although
threats must be addressed before a species is delisted, the section
4(a)(1) factors do not provide science-based factors for delisting.
Other commenters stated that a review of the listing factors alone
could fail to adequately consider a population's long-term stability
and thus potentially result in premature delisting.
Response: We agree that the section 4(a)(1) factors address threats
only; however, in addition to considering the threats listed in section
4(a)(1) of the Act, delisting determinations must also be made in
accordance with section 4(b) of the Act, which requires a review of the
species' status based on the best scientific and commercial data
available (16 U.S.C. 1533(b)(1)(A)). We also note that under factor (E)
of section 4(a)(1) of the Act, which includes ``other natural or
manmade factors,'' the Services routinely consider potential
demographic threats (e.g., low abundance, declining population trends,
limited genetic diversity, limited or disconnected distribution) and
factor those types of threats into their assessment of the species'
risk of extinction.
Comments on Not-Prudent Determinations
Comment 42: Multiple commenters supported our proposed removal of
the second part of Sec. 424.12(a)(1)(ii), which established in 2019
the circumstance that a designation of critical habitat may be not
prudent when the 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. Commenters
supported removal of this provision because they felt it would increase
the protections provided to species through designation of critical
habitat and allow for the full benefit of critical habitat designations
to be realized. Commenters supported our proposal because of their
concern that this provision allowed the Services to decline to
designate critical habitat for species when climate change is a primary
threat. They also stated that declining to designate critical habitat
when climate change is a primary threat could thwart the conservation
purposes of the Act and undermine the efficacy of critical habitat
designations. Commenters also expressed the opinion that allowing the
Services not to designate critical habitat when climate change is a
primary threat was not supported by court decisions.
Response: We appreciate the support of these commenters. They
raised many of the same concerns that we detailed in our proposed rule,
and we agree that removing this provision is a better way to advance
the conservation of endangered species and threatened species,
particularly in the face of the ongoing climate crisis.
In our 2019 rule, we stated that we did not intend for the
revisions either to suggest that as a standard practice we would find
that designating critical habitat is not prudent for species that are
primarily threatened by impacts related to climate change, or to
preclude us from designating critical habitat whenever the effects from
climate change are a primary threat to the species (84 FR 45020 at
45042, August 27, 2019). Further, we explained that we will not
prejudge outcomes associated with future potential section 7
consultations because the analysis will be based on whether the threats
can be--not whether they will be--addressed by management actions
resulting from consultation (e.g., id. at 45043). However, upon further
review and as discussed in the 2023 proposed rule (88 FR 40764, June
22, 2023), we find that this clause did, in fact, require that the
Services presuppose the scope and outcomes of future section 7
consultations under the Act, and did suggest 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. The public has also interpreted this language as
allowing the Services to regularly decline to designate critical
habitat for species threatened by climate change, which was not our
intent (e.g., see Delach 2019, https://www.realclearpolitics.com/articles/2019/08/28/new_trump_rules_will_abet_loss_of_climate-threatened_species_141107.html). Therefore, we conclude that removing
this provision is appropriate. As we stated in the preambles to our
2019 rule and 2023 proposed rule, we anticipate not-prudent
determinations will continue to be rare, consistent with congressional
intent (e.g., S. Rep. 106-126, at 4 (1999), 1999 WL 33592886).
Comment 43: Multiple commenters expressed opposition to our
proposed removal of the second part of Sec. 424.12(a)(1)(ii), which
established in 2019 the circumstance that a designation of critical
habitat may be not prudent when the 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.
Some commenters suggested the removal of the provision will result in
changes to how we designate critical habitat. For example, commenters
stated the Services will consider effects of climate change even when
the true effects are unknown. Other commenters suggested the removal
would create a potential for the Services to designate vast areas,
undermining the effectiveness of critical habitat by making it less
likely that a section 7
[[Page 24316]]
consultation on any particular project would result in a determination
of destruction or adverse modification.
Other commenters opposed the proposed removal of the provision
based on concerns about increased regulatory burden. They stated that
considering effects of climate change or other, non-anthropogenic,
threats when designating critical habitat may result in unnecessary
impacts to regulated entities without any benefits to species. Other
commenters stated that removing the provision could create an
unintended regulatory burden for project proponents during section 7
consultation because the proponents could be held responsible to
address impacts, like those stemming solely from climate change, that
are entirely outside of their control.
Response: As discussed in our previous response, both the Act and
case law indicate that ``not prudent'' determinations are rare
outcomes; the Act requires that the Services designate critical habitat
to the maximum extent prudent and determinable when we list species and
that we base critical habitat determinations on the best scientific
data available. In most instances, the Services have designated
critical habitat for listed species that occur within U.S.
jurisdiction. The removal of this provision affects whether there is a
designation of critical habitat; it does not affect how critical
habitat could or would be designated. Therefore, we do not agree that
removal of this particular provision in 50 CFR 424.12(a)(1)(ii) will
change the size or scope of critical habitat designations.
Climate change affects different species in different ways, and in
some cases we may have clear evidence that climate change has altered
habitats within the species' occupied range and is causing extirpations
and range shifts (e.g., Quino checkerspot butterfly; 74 FR 28776, June
17, 2009). Where the scientific data available support that areas
contain essential features (i.e., the ``physical or biological features
essential to the conservation of the species'') or that the areas
themselves are essential for the conservation of the species, it is
important and appropriate that the Services be able to designate those
areas. To ignore the impacts from climate change or to establish a
general principle of not designating critical habitat if we cannot
address habitat-related threats to the species through section 7 of the
Act (e.g., climate change) would undermine the conservation purposes of
the Act and would not have a rational basis.
Section 7(a)(2) requires that Federal agencies ensure their actions
are not likely to jeopardize the continued existence of any endangered
or threatened species or result in the destruction or adverse
modification of their critical habitat. Specific provisions in the
section 7 implementing regulations (e.g., 50 CFR 402.14(i)(2))
safeguard against scenarios where a project proponent would be held
responsible for finding a solution to an issue like climate change,
which operates on a global scale and is caused by many contributing
factors. However, reasonably foreseeable climate-change effects
themselves may well be relevant to analyzing effects of an action on
listed species and critical habitat and could potentially necessitate
changes in project design and operation. Nothing in the implementing
regulations for section 4 of the ESA changes the operation of the
section 7 consultation process.
Comment 44: Commenters stated that the current not-prudent
circumstance at Sec. 424.12(a)(1)(ii) (the present or threatened
destruction, modification, or curtailment of a species' habitat or
range is not a threat to the species) confuses the threats to the
species--which form the basis for listing the species--with the
protections that are needed to conserve the species--which form the
basis for designating the species' critical habitat. Some of these
commenters recommended that we remove Sec. 424.12(a)(1)(ii) entirely,
while others suggested that we modify this provision to include that
designation of critical habitat would not be prudent if habitat loss or
impacts are not a ``significant'' or ``primary'' threat. Still other
commenters stated the current Sec. 424.12(a)(1)(ii) should be modified
to address the court's decision invalidating the FWS's not-prudent
determination for the rusty patched bumble bee (Natural Res. Def.
Council v. U.S. FWS, No. 21-0770(ABJ), 2023 WL 5174337 (D.D.C. August
11, 2023)). Commenters also pointed out that in the absence of habitat-
based threats, critical habitat can still be an important tool to help
a species overcome non-habitat-based threats.
Response: We are finalizing Sec. 424.12(a)(1)(ii) as proposed,
which will continue to provide that the Services may find it is not
prudent to designate critical habitat in situations when the present or
threatened destruction, modification, or curtailment of a species'
habitat or range is not a threat to the species. While the provision in
Sec. 424.12(a)(1)(ii), which has been in the regulations since 2016
(81 FR 7414, February 11, 2016), is intended to reduce the burden of
regulation in rare circumstances in which designating critical habitat
does not contribute to conserving the species, the Services recognize
the value of critical habitat as a conservation tool and expect to
designate it in most cases. In addition, as the introductory text of
this section of the regulations indicates, the Services are not
required to make a not-prudent determination merely because one of the
listed circumstances occurs; all of the enumerated not-prudent
circumstances are discretionary, and the Services would have to
articulate a well-reasoned explanation for exercising that discretion
to determine that a specific designation is not prudent.
The court's decision in the rusty patched bumble bee case does not
preclude the Services from retaining Sec. 424.12(a)(1)(ii)--the not-
prudent circumstance for when the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species. In vacating and remanding the not-prudent
determination in that case, the court did not invalidate the regulatory
not-prudent circumstance that FWS had applied, but rather concluded
that the record had failed to set forth a reasoned basis for the
determination (2023 WL 5174337, at 14).
Comment 45: Commenters stated that critical habitat is an important
component of recovery planning and implementation success, and that the
only circumstance in which critical habitat should not be designated is
when a critical habitat designation would increase the risk of take or
otherwise harm a species because of the designation.
Response: The Services agree that critical habitat is an important
regulatory tool that contributes to the conservation and recovery of
species, and that instances when designating critical habitat is not
prudent should be, and are, rare (H.R. Rep. No. 97-1625, at 16-18
(1978); Natural Res. Def. Council v. U.S. Dep't of the Interior, 113
F.3d 1121, 1126 (9th Cir. 1997); N. Spotted Owl v. Lujan, 758 F. Supp.
621, 625-26 (W.D. Wash. 1991)).
Most not-prudent determinations have resulted from the Services
finding that there would be increased harm or threats to a species as a
consequence of identifying where the species occurs or identifying
areas that are essential to the species. For example, when a species is
highly prized for collection or trade, then identifying specific
localities where the species occurs could render it more vulnerable to
collection and, therefore, further increase threats to it. Nonetheless,
Congress did not limit ``not prudent'' findings to those situations,
and other circumstances may arise where a designation is not prudent
[[Page 24317]]
for the particular listed species. However, and as the Services' record
indicates, in most cases we will find that a designation of critical
habitat will further the conservation of the species and will be
designated.
Comment 46: Commenters expressed concern that the Services intend
to designate critical habitat in situations where there would be no
conservation benefit to the species.
Response: The Services disagree that we would designate critical
habitat when there would be no conservation benefit to the species.
Critical habitat is an important tool that we use to conserve
endangered species and threatened species. The Act establishes a
requirement for us to designate critical habitat to the maximum extent
prudent and determinable at the time a species is listed or finalize a
designation of critical habitat within 1 year of the final listing
rule. This statutory requirement is not limited to situations when
there is a specific conservation benefit from designating critical
habitat. Moreover, in most cases, and aside from protections afforded
under section 7 of the Act, designation of critical habitat does
provide other conservation benefits, for instance through informing
management partners of important habitats, stimulating scientific
surveys or research, promoting voluntary conservation actions, and
raising public awareness of habitats that are essential for the
conservation of a species.
Comment 47: Some commenters indicated they support the removal of
Sec. 424.12(a)(1)(v), which allowed for not-prudent determinations
when the Secretary ``otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available,'' but oppose the proposed change at Sec. 424.12(a)(1) to
make the list of not-prudent circumstances not exhaustive.
Specifically, commenters stated that making the list of circumstances
non-exhaustive is no change from the current regulations and allows the
Secretary unlimited discretion to determine critical habitat is not
prudent. Commenters stated that the non-exhaustive nature of the list
of circumstances would not provide clarity or certainty to the public
and that it would be contrary to the legislative history that makes
clear Congress intended for not-prudent determinations to be rare and
used only for circumstances when designation would harm a listed
species. Other commenters stated they support the catch-all nature of
the proposed rule text, stating that the Act provides flexibility to
the Services to make not-prudent determinations.
Response: As discussed in the 2023 proposed rule, 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 removing 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 making the list of circumstances non-exhaustive provides for the
ability to address those circumstances should they arise.
The question regarding whether designating critical habitat is not
prudent must be addressed on a case-by-case basis. Any future proposed
rule that includes a not-prudent determination will clearly lay out the
Services' rationale as to why a not-prudent determination is
appropriate in that particular circumstance. In some situations, the
Services may conclude, after a review of the best available scientific
data, that a designation would nevertheless be prudent even in the
enumerated circumstances. Congress recognized that for some species it
may not be prudent to designate critical habitat, but the Act does not
define or provide specificity with respect to when designation of
critical habitat might not be prudent. Section 424.12(a)(1)(i), (ii),
(iii), and (iv) partially fill in that gap by identifying general
circumstances for when designation of critical habitat may not be
prudent. Making the list of circumstances non-exhaustive does not allow
the Services to circumvent the clear direction of the Act (i.e., to
designate critical habitat) without adequate and rational
justification. Any determination that critical habitat is not prudent
must be based on the best scientific data available and an evaluation
of the fact-specific information for the individual species. As stated
elsewhere, we expect it to continue to be rare that we would find a
designation of critical habitat to be not prudent.
Comment 48: Commenters expressed opposition to the current not-
prudent circumstance at Sec. 424.12(a)(1)(iii) for areas within the
jurisdiction of the United States that are of negligible conservation
value for species occurring primarily outside the United States.
Commenters stated that there are no provisions in the Act to decline
designation of critical habitat in instances where species found
primarily outside the United States would have a small conservation
impact.
Response: We are retaining this particular provision without
revision. The commenters are correct that the Act does not contain a
provision for determining that it is not prudent to designate critical
habitat for species that occur primarily outside of the United States
if a designation would have a negligible conservation impact. Congress
did not place a statutory restriction on when the Services could
determine that designating critical habitat is not prudent. Instead,
Congress left discretion to the Secretaries of Commerce and the
Interior to determine the circumstances when designating critical
habitat may not be prudent. In our 2016 regulations (81 FR 7414,
February 11, 2016), we noted in the preamble that the consideration of
whether areas within U.S. jurisdiction provide conservation value to a
species that occurs in areas primarily outside U.S. jurisdiction could
be a basis for determining that critical habitat designation would not
be prudent (81 FR 7414 at 7432, February 11, 2016). As stated in our
2019 regulation (84 FR 45020 at 45041, August 27, 2019), the dictionary
defines ``negligible'' to mean ``so small or unimportant as to be not
worth considering; insignificant.'' In the context of ``negligible
conservation value'' we mean that the conservation value of habitats
under U.S. jurisdiction would be insignificant to the conservation of
the listed entity, and designation of critical habitat would not be
prudent.
For the purposes of clarity and transparency, we added this
consideration directly to the regulatory text in our 2019 rule (84 FR
45020 at 45053, August 27, 2019), and for the same reasons we continue
to conclude that this provision adds clarity without precluding the
authority to designate critical habitat where appropriate. We will make
case-specific determinations, based on the best scientific data
available, regarding whether critical habitat designations would
provide negligible conservation value for particular species that
primarily occur outside of U.S. jurisdiction.
Comment 49: Commenters suggested that the current not-prudent
circumstance at Sec. 424.12(a)(1)(iv) (where no areas meet the
definition of critical habitat) is superfluous because if no areas meet
the definition of critical habitat, none would be proposed as critical
habitat anyway.
Response: We are not revising this provision with this rulemaking.
These situations will be rare; however, the
[[Page 24318]]
Services find value in retaining the current Sec. 424.12(a)(1)(iv) for
instances when they do arise, and thus decline to remove it from the
regulation.
Comment 50: Some commenters who favor complete rescission of the
2019 rule supported their position by expressing support for the ``not
beneficial'' provision from the pre-2019 regulations, under which a
not-prudent determination would be appropriate when ``designation of
critical habitat would not be beneficial to the species.'' Other
commenters cited to critical habitat designations promulgated by the
FWS during the late 1990s and early 2000s that suggest critical habitat
has little benefit. Commenters used these examples to support their
contention that critical habitat should only be designated where there
would be a demonstrated conservation benefit to the species.
Response: After considering public comments and our reconsideration
under E.O. 13990, we decline to rescind the 2019 rule. By including the
``to the maximum extent prudent'' language, Congress recognized that
not all listed species would be conserved by, or benefit from, the
designation of critical habitat. However, Congress wrote into the Act
the fundamental requirement to designate critical habitat ``to the
maximum extent'' while still allowing the ``not prudent'' and ``not
determinable'' exceptions.
Congress did not provide specific direction or guidance on when
designation of critical habitat would be not prudent. We have come to
the conclusion that basing not-prudent determinations on whether
particular circumstances are present, rather than on whether a
designation would not be ``beneficial,'' provides an interpretation of
the Act that is clearer, more transparent, and more straightforward. It
also eliminates some confusion reflected in the courts' decisions in
Natural Resources Defense Council v. Department of the Interior, 113
F.3d 1121 (9th Cir. 1997) (``NRDC''), and Conservation Council for
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Haw. 1998) (``CCH''). In
those decisions, the courts remanded the not-prudent determinations at
issue because they found that the FWS had not articulated a rational
connection between the facts and the agency's conclusion that
designating critical habitat would not be beneficial for the species
(NRDC, 113 F.3d at 1125-26; CCH, 2 F. Supp. 2d at 1288). Although the
courts held that FWS had failed to weigh the benefits and risks of
designating critical habitat or had failed to consider potential
benefits beyond consultation benefits, the courts' reasoning indicates
that they found the decisions were based on the insufficiency or
absence of any factual analyses of the specific data available. The
court in NRDC also found that, in implementing the regulations that
were in place at the time, FWS had erroneously applied a ``beneficial
to most of the species'' standard instead of a ``beneficial to the
species'' standard. NRDC, 113 F.3d at 1126. Moreover, the decisions'
reliance on the legislative-history statements equating ``not prudent''
with ``not beneficial to the species'' is undermined by the fact that
ultimately Congress did not choose to include the ``not beneficial to
the species'' language as a standard or limitation in the Act. Further,
we note that in both decisions the courts seem to have considered
principles related to the discretionary process for weighing the
impacts of critical habitat designation under section 4(b)(2) of the
Act, which do not govern ``not prudent'' determinations. In part, this
appears to be due to the courts' interpretations of statements the
Services had made regarding their intentions in applying the regulatory
provisions (see NRDC, 113 F.3d at 1125 (``[T]he Service itself has said
that it will forgo habitat designation as a matter of prudence only `in
those cases in which the possible adverse consequences would outweigh
the benefits of designation.' 49 FR 38900, 38903.'' (emphasis
omitted))). We now take the opportunity to clarify the separate nature
of ``not prudent'' determinations and the discretionary analyses that
we may elect to take under section 4(b)(2) of the Act. We intend these
evaluations to address separate factors. We emphasize that determining
that a species falls within one or more of the circumstances identified
in the revised regulations does not bring the prudency analysis to an
end. As the court holdings in both NRDC and CCH demonstrate, in
determining whether designation of critical habitat is prudent, the
Services must take into account the specific factual circumstances at
issue for each species (NRDC, 113 F.3d at 1125; CCH, 2 F. Supp. 2d at
1287-88). However, this does not require the Services to engage in the
type of area-by-area weighing process that applies under section
4(b)(2) of the Act.
While the statutory language allows us to forgo designating
critical habitat in rare circumstances when designating critical
habitat would not contribute to the conservation of the species, the
Services recognize the value of critical habitat as an important
conservation tool, and we expect to designate it in most cases.
Comment 51: A commenter asserted that critical habitat does not
apply to Tribal lands and that, therefore, the Services lack the
authority to designate on Tribal lands.
Response: While the Services recognize their responsibilities and
commitments under Secretaries' Order 3206 and principles of Tribal
sovereignty, the Act does not allow for categorical presumptive
exclusion or omission of any areas within the jurisdiction of the
United States that meet the definition of critical habitat and
otherwise qualify for designation. If we determine that Tribal lands
meet the definition of ``critical habitat,'' the Act requires that we
identify those lands as meeting the definition. However, it is the
longstanding policy of the Services to consider and give great weight
to Tribal concerns and always consider excluding Tribal lands under
section 4(b)(2) of the Act (81 FR 7226, at 7230-7231, February 11,
2016).
Comments on Designation of Unoccupied Critical Habitat
Comment 52: Multiple commenters stated they opposed the proposed
revisions to the regulation addressing the designation of unoccupied
critical habitat at 50 CFR 424.12(b)(2) because they exceed the
Services' legal authorities. Commenters asserted that the 2019
regulatory revisions conformed to the ESA, its legislative history, and
case law interpreting the Act, while the proposed revisions do not.
Some commenters stated that with these proposed regulatory changes, the
Services are claiming the regulatory authority to designate large areas
presently unoccupied by an ESA-listed species, even if those areas are
not necessary for, do not contribute to, or may never contribute to the
conservation of the species; do not contain an essential conservation
feature for the species; or are not based on the best scientific data
available. One commenter stated that this kind of broad and unfettered
discretion triggers heightened scrutiny under the ``major questions
doctrine.''
Response: The revisions that we proposed to 50 CFR 424.12(b)(2) and
are now finalizing in this rule are consistent with the ESA, its
legislative history, and the applicable case law. While the revisions
do remove certain criteria for designating unoccupied areas as critical
habitat, they do not expand the Services' authorities for designating
unoccupied habitat as critical habitat. The revisions remove the
requirement that the unoccupied areas have a
[[Page 24319]]
``reasonable certainty'' both to contribute to the species conservation
and to contain one or more features essential to the species'
conservation. These changes also remove the requirement to designate
all possible occupied areas as critical habitat before allowing the
Services to even consider designating any unoccupied areas. As we
discussed in the proposed rule and further in other responses to
comments below in this document, these added criteria, most of which
were newly added to the regulations in 2019, imposed requirements that
go beyond the statutory standards requiring a science-based finding
that an unoccupied area is ``essential for the conservation'' of the
listed species. We recognize that some commenters consider these now-
removed criteria to have provided the Services with reasonable guidance
for determining whether certain areas qualify as being ``essential for
conservation''; however, we no longer agree. We now find that the
criteria could undermine our duty to designate areas that otherwise
meet the definition of critical habitat and are essential to support
the conservation of the species. In addition, instead of providing a
useful interpretation of the Act, those criteria created the perception
that, rather than abide by the statutory requirement to base critical
habitat designations on the best scientific data available, the
Services would need to provide some heightened level of certainty with
respect to those data and the areas being designated. Furthermore, as
we stated in the proposed rule, imposing a ``reasonable certainty''
standard is also unnecessary in light of the best-available-data
standard of the Act, because this standard already prohibits the
Services from basing their decisions on speculation.
By removing requirements established under the 2019 regulations,
these revisions may allow for designations of unoccupied areas that
would have been ineligible for designation under the 2019 regulations.
However, because revisions to 50 CFR 424.12(b)(2) do not weaken or
undermine the requirements set forth in the ESA for defining critical
habitat, they do not allow for expanded or larger designations of
unoccupied areas than is permitted under the ESA. As discussed in the
proposed rule and further in responses to comments below, we find these
revisions appropriate and necessary. The Services must still apply the
best available scientific data, and for any critical habitat rulemaking
that includes a designation of unoccupied areas, they must explain why
the unoccupied areas are ``essential'' for that species' conservation
based on a supporting record. These standards prevent the Services from
designating large areas of unoccupied habitat that do not meet the
statutory requirements for critical habitat.
In short, the revisions to 50 CFR 424.12(b)(2) do not expand our
authorities under the ESA, because they do not remove, undermine, or in
any way weaken the existing statutory requirements to base critical
habitat designations on the best scientific data available, consider
potential impacts of designating areas, and make a finding that the
unoccupied areas are essential for that species' conservation. The
Services have no intention to exceed our authority under the Act by
designating ``large'' areas of unoccupied habitat that are not
essential for the conservation of the species. Since this regulation
directly corresponds to specific authorities granted to the Services
under the ESA, the major questions doctrine is not implicated. As
further explained below under our response to Comment 86, nothing in
this rule, including the revisions to 50 CFR 424.12(b)(2), is
inconsistent with, or extends beyond, the statutory authority expressly
granted to the Services by the Act.
We provide further discussion of the unoccupied critical habitat
regulation below in our responses to other related comments (e.g., see
also responses to Comment 61 and Comment 62, below).
Comment 53: Several commenters stated we should retain the existing
regulation at 50 CFR 424.12(b)(2) because it provides an analytical
process by which unoccupied critical habitat will be designated and
thus regulatory certainty for stakeholders. Commenters stated the
proposed regulation for designating unoccupied critical habitat should
provide guidance regarding when an unoccupied area may be considered
for designation as critical habitat, rather than simply repeating the
statutory language.
Response: Although the 2019 regulation did provide more
requirements with respect to designating unoccupied critical habitat,
it did not provide greater regulatory certainty to stakeholders or
private landowners. The requirement to designate critical habitat under
the ESA is directly tied to a species' listing and to any petitions
requesting that the Services revise critical habitat. Whether and where
critical habitat is ultimately designated depends on what petitions are
considered, what species are listed, the particular life history of the
species, and the best available data about the species' habitat. As the
Services cannot control or readily predict these series of facts and
information, there is little in the way of regulatory certainty that
can be achieved through general implementing regulations.
Determinations of whether a particular unoccupied area of habitat
qualifies as critical habitat for a species are fact-specific and
depend upon the scientific understanding of the particular species'
habitat and conservation needs, which vary tremendously across species
and must be addressed within each individual critical habitat
rulemaking. The revisions we are finalizing in this rule do not change
this practical reality.
Comment 54: Several commenters asserted that the proposed changes
to 50 CFR 424.12(b)(2) would put unnecessary and unreasonable economic
burdens and costs on local development and industries. The commenters
stated the proposed revisions would result in increased land-use
restrictions, reduced land values, or other economic impacts, with
little conservation benefit.
Response: We recognize and understand the concerns of these
commenters; however, as we discuss in our response to Comment 52, the
revised critical habitat regulation at 50 CFR 424.12(b)(2) does not
authorize or direct the Services to designate more or larger areas of
unoccupied critical habitat. Therefore, there is no basis to conclude
that this regulation will increase economic or other impacts of
critical habitat designations. The Services must still adhere to the
requirements of the ESA when designating areas as critical habitat.
These requirements include the mandatory consideration of economic,
national security, and other relevant impacts of designating any
particular area as critical habitat under section 4(b)(2) of the ESA,
which also permits the Services to exclude particular areas from a
designation if the benefits of that exclusion outweigh the benefits of
designation. Section 4(b)(2) of the ESA is the appropriate mechanism
for considering the type of impacts described by these commenters;
purposely constraining what and how areas may even be considered for
designation as critical habitat through implementing regulations is
not. We also note that because the direct regulatory effect of critical
habitat is on Federal agencies and Federal actions, costs associated
with conducting additional analyses under section 7 of the ESA are
typically born by the Federal action agencies, not by private
landowners, small businesses, or industry. Only in instances where a
Federal action would result in
[[Page 24320]]
destruction or adverse modification of the critical habitat would
economic impacts stemming from project modifications actually arise. As
the record for both Services indicates, such instances are rare (Macolm
and Li 2015; https://www.regulations.gov/document/FWS-HQ-ES-2018-0009-64309). Evidence to support assertions that property values invariably
decrease as a consequence of the area being designated as critical
habitat is equivocal at best (Mamun et al. 2022 IEc 2023; Auffhammer et
al. in prep). And while research specifically assessing the economic
impacts of critical habitat on land values has to date been limited,
there is an extensive body of economic literature indicating that there
are often economic benefits (e.g., increased land value, increased home
sale price) associated with land conservation (e.g., Bolitzer and
Netusil 2000; Curran 2001; MacConnell and Walls 2005; Black 2018).
Comment 55: Some commenters expressed concerns that the proposed
revisions to the 2019 regulations for designating unoccupied critical
habitat could allow for over-designation of critical habitat, which
could in turn undermine land-management activities (e.g., tree thinning
to reduce wildfire risk) or negatively affect cooperative conservation
and recovery efforts with private landowners. A commenter noted that
those impacts could also undercut the goals of E.O. 13990, ``Protecting
Public Health and the Environment and Restoring Science To Tackle the
Climate Crisis,'' which is a key justification of this current
rulemaking. Another commenter urged the Services to consider whether
the proposed revisions to the critical habitat regulations, and their
potential impacts on private landowners, would help or hamper
conservation and recovery efforts.
Response: Although we appreciate the concerns of these commenters,
the revised regulation at 50 CFR 424.12(b)(2) that we are finalizing in
this rule will not change the extent to which critical habitat
designations may impact ongoing management and conservation activities.
As discussed in our prior response, while the revised regulations may
potentially result in designation of different specific areas as
critical habitat, there is no basis to conclude that this regulation
will increase the size of areas designated as critical habitat. Under
section 4(b)(2) of the ESA, we are required to take into consideration
economic, national security, and other relevant impacts of designating
any particular area as critical habitat. As part of that analysis, and
as reflected in the Services' joint policy on implementing section
4(b)(2) of the ESA (``section 4(b)(2) policy'' 81 FR 7226, February 11,
2016), we evaluate the impact of designation on conservation plans and
agreements, as well as on their attendant partnerships. As expressed in
our section 4(b)(2) policy, it is our intention to encourage and foster
conservation partnerships. In the Services' experience, excluding from
a critical habitat designation areas that are covered by existing plans
and programs can encourage other land managers to partner with the
Services in the future by removing any real or perceived disincentives
for engaging in conservation activities. We will continue to apply the
section 4(b)(2) policy in the same manner under the revised critical
habitat regulation.
With respect to ongoing land-management activities, if those
activities involve a Federal agency action, such as permitting or
funding, and if they may affect designated critical habitat, then those
activities would be subject to the consultation requirements of section
7(a)(2) of the ESA. That statutory requirement is unaffected by the
critical habitat implementing regulation we are finalizing in this
rule. The outcome of any specific consultation is driven by the
particular Federal action and effects of that action on the critical
habitat. Thus, there is no basis to conclude that any land management
activities would be affected any differently as a result of this rule.
Furthermore, as stated previously, while the revised regulation may
potentially alter which specific areas are ultimately designated as
critical habitat, there is no basis to conclude that critical habitat
designations will be larger or include more areas. Consequently, there
is no basis to conclude that these revised regulations will result in
an increased impact on land management activities or hamper
conservation and recovery efforts.
Comment 56: One commenter stated the proposed text for 50 CFR
424.12(b)(2) was too long and the steps for designating unoccupied
critical habitat were not in logical order. Another commenter asserted
the proposed revisions also removed the ``essential'' criterion from 50
CFR 424.12(b)(2), which is clearly required by the Act. Another stated
the proposed changes were overly complicated and that the implications
of the proposed changes were hard to understand.
Response: We considered these comments and concluded that no
further changes are necessary to improve the logical ordering or length
of the proposed text for 50 CFR 424.12(b)(2); thus, we are finalizing
the text as proposed. As revised, the regulation is shorter and
contains fewer elements than the 2019 regulation and still indicates
that unoccupied areas must be ``essential for the conservation of the
species,'' which is clearly required by the Act. In this rule, we have
included explanations, both generally in the preamble as well as in
responses to specific comments, of the intent, meaning, and
implications of this particular revision. As we discuss in response to
other specific comments on this particular provision, the revised
regulation at 50 CFR 424.12(b)(2) does not expand the Services'
authorities beyond the limits established by the Act, nor will it
necessarily lead to larger or more expansive designation of unoccupied
critical habitat.
Comment 57: Several commenters stated that, as written, the
proposed text of 50 CFR 424.12(b)(2) would require the Secretary to
identify critical habitat outside the area occupied by the species at
the time of listing or appears to mandate the designation of unoccupied
critical habitat. Commenters stated the proposed revision fails to
acknowledge that the Services have the option not to designate
unoccupied areas. One commenter requested we reword this provision to
indicate that there may not be unoccupied areas that are essential to
conservation.
Response: We considered these comments and concluded that rewording
of the proposed 50 CFR 424.12(b)(2) is not necessary because the
regulation does not indicate or imply that designation of unoccupied
areas of critical habitat is required. The text of the regulation uses
the same phrasing as the other provisions set forth at 50 CFR
424.12(b)--i.e., ``the Secretary will identify''--and lays out only the
process and requirements for identifying areas ``to be considered for
designation as critical habitat'' (see 50 CFR 424.12(b)). The
regulation does not state that such areas will or must be designated as
critical habitat. This section of the regulations purposely does not
refer to designation because, as indicated in subsequent sections of
the regulations, there are additional requirements that must be met
prior to proposing or finalizing a critical habitat designation. The
Services could also still consider excluding particular areas from a
designation after considering the economic, national security, and
other relevant impacts of designating those areas as critical habitat
(see 16 U.S.C. 1533(b)(2), 50 CFR 424.19). Furthermore, unoccupied
areas may only be designated if they meet the statutory requirement
that they are
[[Page 24321]]
essential for the species' conservation, and the text of 50 CFR
424.12(b)(2) in no way mandates such a finding.
Comment 58: A commenter indicated they support the proposed changes
to the unoccupied critical habitat regulation, but also requested that
the Services use a Solicitor's M-Opinion for determining and describing
the process for designating unoccupied critical habitat. This commenter
stated such an opinion could provide an extensive evaluation of the
legislative and judicial history, a description of the complex
framework or process that the Services would implement, and examples of
how it may be applied. The commenter asserted this opinion would serve
as a publicly available standard reference document that could reduce
the likelihood of successful challenges in court.
Response: We appreciate this commenter's suggestion regarding
development of additional, publicly available guidance regarding the
designation of critical habitat, but we do not think such a document is
necessary at this time. The Services strive to provide clear,
transparent, and accessible information to the public whenever possible
so that interested and affected parties can more readily understand the
legal framework, legal and technical terms and standards, and
procedural requirements associated with mandated duties and obligations
under the ESA. In addition to the joint implementing regulations at 40
CFR part 424 and the Services' section 4(b)(2) policy, each agency
provides additional information and resources regarding critical
habitat on their respective websites (see https://www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat and https://www.fws.gov/project/critical-habitat), and
every critical habitat rule provides a detailed explanation of the
processes, analyses, and legal support that underlie that rule.
Comment 59: Numerous commenters stated they support the proposed
changes to 50 CFR 424.12(b)(2), which they stated better reflect both
the Act and the legislative history. Several commenters stated that
unoccupied habitat is sometimes essential to successfully recovering a
species, and when the best available science includes information
regarding the future habitat needs of a species, those areas should be
considered for critical habitat designation. Some commenters stated the
proposed changes would ensure that habitat protections will be
determined using the best available scientific data, and other
commenters noted the revisions are especially important for endangered
and threatened species with habitats that are being impacted by climate
change. Some commenters stated that the unnecessarily high standards
for designating unoccupied critical habitat established by the 2019
regulation were in conflict with the ESA and could negatively impact
future recovery efforts. Several commenters stated that the proposed
changes are consistent with and would better support the ESA's goal of
conserving ecosystems upon which endangered and threatened species
depend.
Response: We appreciate and agree with the comments in support of
the proposed rule.
Comment 60: Multiple commenters stated they support the proposed
removal of the strict sequencing requirement at 50 CFR 424.12(b)(2),
and some noted the proposed softening of this requirement follows good
conservation practice. Other commenters noted they agreed that the
Services should not be required to exhaust all possible occupied areas
before being able to consider designating unoccupied areas as critical
habitat. Several commenters, however, recommended this text be further
revised to indicate that the Services can consider occupied and
unoccupied areas simultaneously for possible designation as critical
habitat, or return to the 2016 version of this regulation, which did
not include a two-step process for determining critical habitat. One of
these commenters stated that the two-step process included in the
proposed rule creates unnecessary barriers to designation, leads to
less-effective conservation, and incorrectly implies that unoccupied
areas are less important to a species' survival and recovery.
Response: We appreciate and agree that unoccupied areas of critical
habitat may be just as important for a species' conservation as the
areas where the species was known to occur at the time of listing under
the ESA. We also recognize that, especially in light of climate change
and associated shifts from historical habitats into new areas,
unoccupied habitats may become increasingly important for species
conservation efforts in the future. We do not agree, however, that the
continued focus on occupied areas, and the approach of identifying
occupied areas first, will impede the Services' ability to designate
critical habitat in a way that effectively supports species' survival
and recovery. As mentioned previously, it has been our longstanding
practice to begin our assessments of potential critical habitat by
evaluating the areas that the species currently occupies. Understanding
how the species is currently distributed and using available habitat
helps support our analysis of whether additional, unoccupied areas are
needed to support the species' conservation. We do not view the
unoccupied areas as necessarily less important, but those areas should
be considered carefully and in light of what we know about the species'
habitat needs and its occupied habitats. Therefore, we are finalizing
this regulation as proposed.
Comment 61: Many commenters requested we retain the requirement at
50 CFR 424.12(b)(2) that the Services must first determine that
occupied critical habitat is inadequate to conserve the species before
we can consider whether any unoccupied areas are essential for the
species conservation--either by retaining the 2019 regulation or by
making additional revisions. Multiple commenters stated the
``sequencing'' or prioritization approach in the 2019 regulations is a
reasonable, or even a necessary, analytical framework for assessing
whether unoccupied areas are essential for the species because as a
matter of logic, an unoccupied area cannot be considered ``essential
for the conservation'' of a species if the occupied areas are adequate
to ensure its conservation. Some commenters asserted that the courts,
the Services' decades-old regulations, and fundamental logic all
indicate that it is not possible to conclude that an unoccupied area is
essential for the conservation of a species without knowing how the
species would fare if the unoccupied area were not designated.
Response: We do not agree that the inflexible approach established
in the 2019 regulations regarding unoccupied critical habitat was the
best or a necessary one. The revisions we are making to 50 CFR
424.12(b)(2) do not necessarily conflict with the logic expressed by
the commenters, as we are simply removing the rigid requirement to
exhaustively designate all occupied areas of critical habitat before we
can even consider whether any unoccupied areas are essential for the
species' conservation. As we have stated previously, a rigid step-wise
approach (i.e., ``exhausting'' the occupied critical habitat, and then
designating essential unoccupied habitat only if the occupied critical
habitat is not enough to support the species' conservation) does not
necessarily support the best conservation strategy for all species and
could even result in a designation that is both geographically larger
and potentially less effective as a
[[Page 24322]]
conservation tool. By removing this rigid ``sequencing'' or
``exhaustion'' requirement, the Services can instead consider the
inclusion of occupied and unoccupied areas in a critical habitat
designation in a manner that best supports the conservation needs of
the species, while also allowing for exclusions of particular areas
where appropriate under section 4(b)(2) of the ESA. Thus, removal of
the ``exhaustion'' requirement ensures that the Services have the
flexibility that is already authorized under the ESA to evaluate
unoccupied areas that are ``essential for conservation'' based on the
best scientific data available without first being required to
designate all occupied areas of critical habitat.
As discussed by some commenters, the 2019 regulation was not the
first time the Services' implementing regulations contained a two-step
or exhaustion approach for designating occupied and unoccupied critical
habitat; the implementing regulations took this approach from 1980 to
and 2016 (``pre-2016 regulation''), and from 2019 to the present (see
45 FR 13010, February 27, 1980; 49 FR 38900, October 1, 1984; 81 FR
7414, February 11, 2016; 84 FR 45020, August 27, 2019). As with the
2019 regulation, the pre-2016 regulation prioritized the designation of
occupied areas over unoccupied areas by allowing the Services to
designate unoccupied areas as critical habitat only if a critical
habitat designation limited to occupied areas would be inadequate to
ensure the conservation of the species (49 FR 38900 at 38909, October
1, 1984; 84 FR 45020 at 45053, August 27, 2019). This version of the
regulations suffered from the same issue as the 2019 regulations--the
possibility of being interpreted as saying that, to designate
unoccupied critical habitat, we must designate all of the occupied
areas that we could possibly designate because they meet the definition
of occupied critical habitat and then determine that the designation
would be inadequate to provide for the conservation of the species.
In 2016, we removed the two-step requirement entirely from the
implementing regulations, stating that it was an unnecessary and
unintentionally limiting requirement (81 FR 7414 at 7434, February 11,
2016), and we revised the regulation to instead allow for simultaneous
consideration of occupied and unoccupied areas. When we then reinstated
the two-step ``sequencing'' or ``exhaustion'' prioritization process in
2019, we explained that we were responding to concerns that the
Services would inappropriately designate overly expansive areas of
unoccupied critical habitat (see 83 FR 35193 at 35197-98, July 25,
2018), and that a two-step approach would help further Congress's
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 recognize that we can retain a two-step approach and
maintain an emphasis on occupied areas without imposing a rigid
limitation upon the Services' ability to designate unoccupied critical
habitat that is nowhere set forth in the statute itself. Thus, the
version of the regulation we are finalizing in this rule indicates that
the Services will first identify ``areas occupied by the species'';
however, as already noted, the regulation also allows the Services the
flexibility to identify unoccupied areas that are essential for the
species' conservation based on the best scientific data available--the
statutory standard--without requiring that the Services first exhaust
all occupied habitat--a limitation without a clear statutory basis.
This flexibility was lacking in both the pre-2016 and the 2019
regulations. The revised regulation provides a different and reasonable
approach for emphasizing occupied areas in a way that does not suggest
an ``exhaustion'' requirement or unnecessarily constrain the Services'
ability to designate unoccupied areas that are essential for the
species.
The approach we are finalizing in this rule is also not
inconsistent with case law cited by the commenters that interpreted the
pre-2016 regulations. While various court rulings provided some insight
with respect to the issue of ``sequencing'' and emphasizing occupied
critical habitat, none indicated there is a statutory obligation to
exhaustively designate all occupied areas before designating any
unoccupied areas. Likewise, no court has ruled that under the Act,
before designating unoccupied critical habitat, the Services must first
determine that designating all of the occupied critical habitat would
be ``inadequate'' and, therefore, that the Services must exhaust
designating all potential areas of occupied habitat before the Services
can determine that unoccupied areas are essential for a species'
conservation. Instead, these courts held that the Services' regulatory
interpretation at the time merely elaborated the statutory standard
requiring that, for unoccupied areas to meet the definition of
``critical habitat,'' they must be essential for the conservation of
the species (Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 994
(9th Cir. 2015); accord N.M. Farm & Livestock Bureau v. U.S. Dep't of
Interior, 952 F.3d 1216, 1231 (10th Cir. 2020)). Neither the Act nor
applicable case law contains a requirement to exhaust designating all
occupied critical habitat before designating unoccupied critical
habitat.
Comment 62: A number of commenters viewed the proposed regulatory
requirements for designating unoccupied critical habitat as being
unlawful and inconsistent with the ESA, existing case law, and the
legislative history related to the 1978 and 1982 amendments to the ESA.
Commenters stated that the two-part statutory definition in the ESA
effectively creates a two-part regulatory hierarchy that prioritizes
occupied areas over unoccupied areas, noting that the legislative
history indicates that the Services must be ``exceedingly circumspect''
when designating unoccupied critical habitat (H.R. 96-1625 at 25
(1978)), and designation of unoccupied areas should be more onerous.
Some commenters also pointed to various court rulings, including the
Supreme Court ruling in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.,
139 S. Ct. 361, 368-69 (2018) (hereafter, Weyerhaeuser), in support of
their view that unoccupied critical habitat must be absolutely
necessary or indispensable for the species' conservation, and,
therefore, the Services must first determine that occupied areas are
inadequate to conserve the species. Another commenter stated that,
while the ESA does not require a finding of inadequacy of the occupied
critical habitat to consider unoccupied areas, Congress emphasized the
need to focus on occupied areas first.
Response: We agree that both the legislative history surrounding
the amendments to the ESA establishing the definition and requirements
for critical habitat and the existing case law support a conclusion
that the standard for determining whether unoccupied areas qualify as
critical habitat is more onerous than the standard for determining
whether occupied areas qualify as critical habitat (e.g., Home Builders
Ass'n v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 990 (9th Cir. 2010)
(``Essential for conservation is the standard for unoccupied habitat .
. . and is a more demanding standard than that of occupied critical
habitat.''); Cape Hatteras Access Pres. All. v. U.S. Dep't of Interior,
344 F. Supp. 2d 108, 119 (D.D.C. 2004) (``[W]ith unoccupied areas, it
is not enough that the area's features be essential to conservation,
the area itself must be essential''); S. Rep. No. 95-874, at 9-10
(1978)). We also are aware of and considered the legislative
[[Page 24323]]
history that many commenters cited in support of their view that
designation of unoccupied critical habitat is supposed to meet a higher
or more onerous test (e.g., H.R. Rep. No. 95-1625, at 742 (1978)
(``[T]he Secretary should be exceedingly circumspect in the designation
of critical habitat outside of the presently occupied area of the
species'')), and we do not take issue with the statement or idea that
the Services should be exceedingly circumspect when designating
unoccupied areas as critical habitat.
However, none of these sources establishes a legal basis for
requiring that the standard for determining whether any unoccupied area
meets the definition of ``critical habitat'' must go beyond the
standard provided by the ESA. In defining ``critical habitat'' in
section 3 of the ESA, Congress established the two different standards
for determining whether an area is critical habitat, depending on
whether that area is occupied by the species at the time of its listing
or not occupied by the species at the time of its listing. Those
differing standards are how Congress chose to express its view that the
two types of areas should be assessed and treated differently. The
statutory definition provides the only test that the Services must meet
to designate an area as critical habitat. By revising the regulations
at 50 CFR 424.12(b)(2) to correspond more closely to the statutory
definition of ``critical habitat,'' and eliminating requirements in the
2019 regulations that go beyond those of the Act, we are adhering to
intent and direction of Congress.
Comment 63: Some commenters stated that the proposed removal of the
sequencing requirement at 50 CFR 424.12(b)(2) was not adequately
justified, and that because this was such a long-held interpretation,
the rationale that the proposed revisions provide a better
interpretation of the congressional intent is not plausible. Another
commenter stated that the proposed removal of the sequencing
requirement was poorly supported in part because the Services did not
provide any examples of how this requirement has constrained our
ability to designate unoccupied critical habitat.
Response: As we discussed in the proposed rule (88 FR 40764, June
22, 2023), we are revising the regulations regarding the designation of
unoccupied critical habitat to remove requirements that are not
mandated by the language or structure of the ESA and, in the view of
the Services, to better fulfill the Secretaries' authority to further
the conservation purposes of the ESA. By removing the rigid
``sequencing'' requirement, the Services can continue to prioritize our
consideration of occupied areas but still consider the inclusion of
occupied and unoccupied areas in a critical habitat designation without
having to exhaust all areas of occupied critical habitat first. We find
that this approach is more faithful to the statutory definition of
``critical habitat'' and will allow the Services necessary flexibility
to apply the best scientific data available to designate critical
habitat in a manner that best supports the conservation needs of the
species. We also find this revision is consistent with E.O. 13990's
policy of improving protections to the environment. Rather than taking
a ``wait-and-see'' approach to determine whether these identified
issues with the 2019 rule would manifest in specific critical habitat
designations, we are making this revision proactively.
Comment 64: Some commenters objected to the proposed removal of the
requirement to first determine that occupied areas are ``inadequate''
because they are concerned it would allow for arbitrary or overly
expansive or vast critical habitat designations. Commenters stated that
there is no indication that Congress intended critical habitat to
include large tracts of unoccupied lands for population expansion. Some
commenters asserted that by linking critical habitat to the listing
process and not delaying it until a recovery strategy was developed,
Congress clearly intended that designation of unoccupied critical
habitat should be limited to areas needed for the species' survival and
should not include areas for population expansion or recovery.
Response: We do not agree that the regulation regarding unoccupied
critical habitat that we proposed on June 22, 2023, and are finalizing
in this rule will lead to arbitrary or overly large designations. While
the changes we are finalizing do remove certain constraints for
designating unoccupied areas as critical habitat, these changes do not
expand the Services' authorities under the ESA. The Services must still
base critical habitat designations on the best scientific data
available and can only designate unoccupied areas if the data support a
conclusion that those areas are essential for that species' recovery.
Nothing in this rule undermines or weakens those foundational,
statutory requirements.
Despite some concerns expressed in the legislative history (e.g.,
S. Rep. No. 95-874, p. 10 (May 15, 1978)), we do not agree with the
comments stating or implying that Congress intended critical habitat
designations to be limited to only the areas needed for a species'
survival. The plain language of the ESA indicates this is not a correct
interpretation, as the definition of ``critical habitat'' refers
specifically to ``conservation'' and not ``survival.'' In defining the
terms ``conserve, conserving, and conservation'' in section 3 of the
ESA, Congress made it clear that the term ``conservation'' refers to
all actions needed to bring the species to the point at which
protections provided under the ESA are no longer necessary. We cannot
substitute the term ``survival'' and its meaning in place of the term
``conservation'' and its meaning when reading and interpreting the
statutory definition of critical habitat. Applicable case law has also
consistently supported the view that critical habitat is habitat
necessary for both survival and recovery of the listed species (see
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d
1059, 1070 (9th Cir. 2004) (``Clearly, then, the purpose of
establishing `critical habitat' is for the government to carve out
territory that is not only necessary for the species' survival but also
essential for the species' recovery.''); Sierra Club v. U.S. Fish &
Wildlife Serv., 245 F.3d 434, 442 (5th Cir. 2001) (noting that the
ESA's definition of critical habitat ``is grounded in the concept of
`conservation'''); Center for Biological Diversity, Defenders of
Wildlife v. Kelly, 93 F. Supp. 3d 1193, 1201 (D. Idaho 2015) (noting
that critical habitat is ``defined and designated `in relation to areas
necessary for the conservation of the species, not merely to ensure its
survival.''' (quoting Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d
1160, 1166 (9th Cir. 2010); Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d
544, 555-56 (9th Cir. 2016))).
Comment 65: Some commenters stated that the proposed elimination of
the sequencing requirement could lead to increased conflict,
controversy, and litigation, because the Services would have to rely on
their expertise and their ability to adequately explain the scientific
basis for when unoccupied habitat is deemed nonessential. As evidence
of such controversy, some commenters pointed to the recent Supreme
Court decision in Weyerhaeuser, in which unoccupied critical habitat
for the dusky gopher frog was contested by the private property owner.
The commenters also suggested that designation of unoccupied critical
habitat could undermine conservation and lead to perverse incentives
for landowners to destroy habitat before it becomes occupied by the
listed species.
[[Page 24324]]
The commenter suggested the Services focus on areas where a critical
habitat designation will encourage conservation.
Response: We do not agree that the changes we are now making to the
implementing regulations regarding the designation of unoccupied areas
of critical habitat will lead to increased conflict, litigation, or
controversy over critical habitat designations. Even with the changes
we are making in this rule, the Act will still require that we
designate critical habitat on the basis of the best scientific data
available. Despite their limited regulatory effect (i.e., through the
ESA section 7(a)(2) requirement that Federal agencies ensure their
actions are not likely to destroy or adversely modify critical
habitats), critical habitat designations are consistently one of the
most controversial protections afforded listed species under the ESA.
It has been the experience of both Services that controversy related to
critical habitat designations depends more on factors such as the size
and location of the designation rather than whether the areas being
designated are occupied or unoccupied.
The revisions we are making to 50 CFR 424.12(b)(2) do not alter the
Services' longstanding practice of first considering areas within the
geographical area occupied by the species when developing a critical
habitat designation. As reflected in the first sentence of this revised
regulation, the Services will still consider and identify occupied
areas first before assessing whether any unoccupied areas are essential
for the species' conservation. 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. The revisions we are making thus do not completely
remove the prioritization of occupied areas over unoccupied areas; they
instead remove the requirement that the Services exhaust all occupied
areas before considering whether any unoccupied areas may be essential
for conservation of the particular species.
As the critical habitat at issue in Weyerhaeuser was designated
under the pre-2016 regulations (see 77 FR 35118, June 12, 2012), which
included a two-step or ``sequencing'' requirement, this example does
not support the assertion that elimination of a ``sequencing''
requirement will increase litigation or controversy. Instead, the
Weyerhaeuser example aligns with our expectation that removal of the
strict sequencing step will have no effect on the level of controversy
associated with designations of unoccupied critical habitat, which in
our experience is largely driven by where the critical habitat is
located (e.g., on private lands) and its size.
The ESA allows for consideration of the potential impacts on
conservation efforts when designating critical habitat, and as
described in the Services' section 4(b)(2) policy (81 FR 7226, February
11, 2016), we will consider areas covered by conservation agreements or
plans when assessing the benefits of including and excluding particular
areas from a designation. In particular, the Services consider whether
such conservation plans are already providing on-the-ground
conservation that would reduce the benefit of designating the same area
as critical habitat. We expect that our approach of examining whether
to exclude from designation areas that are subject to voluntary
conservation agreements and plans will continue to provide a
substantial incentive to private landowners and help further the
conservation of listed species while also minimizing regulatory
impacts. This approach is also consistent with our authorities and the
intent of section 4(b)(2) of the ESA.
With respect to the perverse incentives described by the commenter,
we do not agree that the revisions we are making to 50 CFR 424.12(b)(2)
in this rule will alter those behaviors or attitudes. To the extent
that any perverse incentives exist with regard to modifying habitat
conditions on private lands, it has been the Services' experience that
these attitudes persist regardless of any specific regulation. We are
also aware that deliberate modification of areas to make private
property less hospitable to listed species may have occurred previously
in response to species' listings under the ESA rather than in response
to, or in potential avoidance of, a critical habitat designation.
Comment 66: A commenter recommended that, if we finalize the
proposed removal of the sequencing requirement at 50 CFR 424.12(b)(2),
the final rule should indicate that the Services will identify
unoccupied privately owned areas in recovery plans versus critical
habitat rules due to the controversy associated with designating such
areas. The commenter stated that recovery plans, which have overlapping
but broader goals than critical habitat designation, are the
appropriate place to consider such lands, especially given that the
areas do not provide immediate habitat for the listed species, and this
approach would reduce controversy and maintain the focus on
collaboration.
Response: We appreciate the suggestion to use recovery plans as a
means to identify unoccupied areas of critical habitat. However, the
ESA requires the Services to designate critical habitat concurrently
with listing or, if not yet determinable, within 1 year from the date
of listing. Recovery plans are developed after a species is listed,
typically involve coordination with multiple partners and stakeholders,
and require a period of public review before being finalized. As a
result, recovery plans are often finalized well after the species is
listed under the ESA. The ESA does not allow us to delay designating
critical habitat until such time as a recovery plan is completed, nor
does it allow the Services to exempt private lands from a critical
habitat designation and instead identify those lands as essential for a
species' conservation in a recovery plan. Moreover, courts have noted
that the recovery plan's requirements are separate and distinct from
critical habitat designation. (See generally N.M. Farm & Livestock
Bureau v. U.S. FWS, 952 F.3d 1216, 1232-33 (10th Cir. 2020) (recovery
plan provision ``is entirely separate from the requirements for the
designation of critical habitat''); Home Builders Ass'n of N. Cal. v.
U.S. FWS, 616 F.3d 983, 989-990 (9th Cir. 2010) (distinguishing
recovery plan and critical habitat designation requirements)). We
decline to adopt regulatory provisions that would blur the distinct
statutory requirements established by Congress for critical habitat
designation and recovery planning.
Comment 67: Several commenters stated they support the proposed
removal of the requirement for unoccupied areas to contain essential
features, because there is no legal basis for such a requirement or
such a requirement is in direct conflict with the ESA.
Response: We appreciate the commenters' support of our proposed
changes.
Comment 68: A number of commenters opposed the proposed removal of
the requirement for unoccupied areas to contain one or more essential
features and stated that this requirement is a logical way to establish
that an area is habitat for the species. Some commenters stated that an
area cannot be habitat for a species if it does not contain at least
one feature necessary for the existence and survival of a species, and
to comply with the Supreme Court's ruling in Weyerhaeuser, an area must
be habitat for a species to be considered critical habitat. Other
commenters stated the
[[Page 24325]]
proposed revisions ignore, downplay, or are inconsistent with the
Weyerhaeuser ruling, and that to ensure consistency with the
Weyerhaeuser ruling, the regulation should be rephrased to indicate
that the unoccupied areas under consideration are habitat or rephrased
to specifically require that the area is presently capable of
supporting one or more life processes of the species. Some commenters
asserted that removal of the essential-feature requirement indicates
the Services will not apply a sufficient scientific rationale when
determining which unoccupied areas are essential for a species'
conservation, or that the Services will designate areas that are not
habitat for the species.
Response: We understand the commenters' concerns and desire for
assurances that critical habitat will be designated in a manner
consistent with the Supreme Court's ruling in Weyerhaeuser. As we have
stated previously, we recognize the importance of the Supreme Court's
ruling in Weyerhaeuser, and we intend to designate critical habitat in
a manner consistent with that ruling (87 FR 37757, June 24, 2022; 88 FR
40764, June 22, 2023). However, we also now recognize that importing
language from the statutory definition of ``occupied'' critical habitat
(regarding essential features) into the regulatory requirements for
defining ``unoccupied'' critical habitat is not the best way to ensure
that unoccupied critical habitat is habitat for the listed species.
Congress defined occupied critical habitat and unoccupied critical
habitat separately, purposely setting different standards for defining
each type of critical habitat and referred to essential features only
in connection with occupied critical habitat (see 16 U.S.C.
1532(5)(A)(i)). We now find that when we revised this regulation in
2019, we confounded the criteria for defining occupied and unoccupied
critical habitat, and thereby eroded the clear statutory distinction
between those two types of areas. In other words, by adding the
requirement for unoccupied areas to contain one or more essential
features in 2019, we made the standards for designating those areas
more similar than what the ESA plainly indicates. The revisions we are
finalizing today will realign the implementing regulation at 50 CFR
424.12(b)(2) with the statutory standards for defining and designating
unoccupied critical habitat. These revisions avoid the potential for
rendering any part of the statutory language surplusage.
In Weyerhaeuser, the Court held that an area is eligible for
designation as critical habitat under the ESA only if it is habitat for
that species. The Weyerhaeuser ruling is sufficiently clear on this
matter and stands on its own; thus, we find there is no need to build
this ruling explicitly into the ESA implementing regulations. The
Weyerhaeuser decision did not address what should or should not qualify
as ``habitat''; thus, it in no way established any requirements
regarding presence of essential features or habitability of the area.
We find that, rather than creating additional regulatory requirements
that confound or go beyond the statutory standards, it is more
appropriate to make determinations regarding whether areas qualify as
habitat for a given species by applying the best available scientific
data, as required by the ESA, and providing clear explanations of those
data in each individual critical habitat rule.
Comment 69: Some commenters requested that we clarify the process
for determining critical habitat by providing a regulatory definition
of the term ``habitat.'' Several commenters stated that the absence of
a clear definition of ``habitat'' would lead to regulatory and legal
uncertainty, would decrease transparency and predictability, would
increase litigation over the definition of ``habitat,'' and could even
potentially delay important clean-energy infrastructure projects or
result in fewer projects pursued. One commenter stated that the
proposed revision of 50 CFR 424.12(b)(2) eliminated the word
``habitat'' and was therefore an attempt to circumvent the Supreme
Court's ruling in Weyerhaeuser. This commenter stated that in the
absence of a regulatory definition of ``habitat,'' the proposed rule
used vague and subjective language, such as ``specific areas outside
the geographical area occupied by the species at the time of listing.''
Response: The proposed revisions to 50 CFR 424.12(b)(2), which we
are finalizing in this rule, are in no way an attempt by the Services
to circumvent or disregard the Supreme Court's ruling that to qualify
as critical habitat an area must first be habitat for the particular
species. The court's ruling did not require that the Services develop a
definition of the term ``habitat,'' and we do not agree that a
definition is necessary to designate critical habitat in a manner
consistent with this ruling (see also our response to Comment 68). We
also do not agree that the language in 50 CFR 424.12(b)(2) is vague or
overly subjective. This language is consistent with the statutory
language in 16 U.S.C. 1532(5)(A)(ii), and the particular phrase cited
by the commenter (i.e., ``specific areas outside the geographical area
occupied by the species at the time of listing'') comes directly from
the statutory definition of ``critical habitat.'' Furthermore, the
phrase ``geographical area occupied by the species'' has already been
defined in the ESA implementing regulations at 50 CFR 424.02.
Through our prior efforts to codify a regulatory definition of
``habitat'' (85 FR 81411, December 16, 2020), we ultimately found that,
to encompass the diverse array of species' habitat requirements and
simultaneously encompass both occupied and unoccupied critical habitat
as defined under the ESA, the resulting regulatory definition of
``habitat'' had to be generic and broad. The resulting definition we
developed was neither clear nor sufficiently informative to allow for
any conclusions to be reached about whether a particular area would be
considered habitat for a particular species (87 FR 37757, June 24,
2022). We also concluded that, given the complexity and variety of
factual information pertaining to each individual species that the
Services must consider, it is not possible to develop any ``habitat''
definition that would allow for perfect predictability in determining
what areas constitute habitat. The public had ample opportunity to
comment on both the 2020 habitat definition rule and the 2022
rescission rule. We did not reopen our prior decision to rescind the
2020 definition of ``habitat'' with this rulemaking, as we did not
propose a new definition of this term or express a willingness to
accept comments on this issue. We find no basis to conclude that a
regulatory definition of ``habitat'' would reduce regulatory or legal
uncertainty associated with the designation of unoccupied critical
habitat, increase transparency and predictability of designations, or
affect the timing or number of infrastructure projects. Any necessarily
generic definition of this term would also not increase the consistency
and transparency in the Services' approach for designating critical
habitat designations beyond that already achieved through the existing,
governing requirements of the ESA, the implementing regulations, and
applicable court decisions.
Comment 70: Several commenters opposed the proposed removal of the
requirement that unoccupied areas contain one or more physical or
biological features essential to the conservation of the species,
stating the current regulation is consistent with the ESA. Commenters
asserted that the structure of the ESA's section 3
[[Page 24326]]
definition of ``critical habitat'' compels the conclusion that the
prerequisite that areas contain ``physical or biological features''
applies to both occupied and unoccupied areas. The commenters stated
that if the ESA's less demanding standard for designating ``occupied
areas'' requires the presence of ``physical or biological features,''
then the more demanding standard for designating ``unoccupied areas''
must also require the presence of ``physical or biological features.''
Response: As discussed previously, the statutory definition of
``critical habitat'' contains two distinct prongs: one provides the
criteria for determining whether ``occupied'' areas qualify as critical
habitat (16 U.S.C. 1532(5)(A)(i)), and the second provides the
criterion for determining whether ``unoccupied'' areas qualify as
critical habitat (16 U.S.C. 1532(5)(A)(ii)). The second prong of the
definition in section 3(5)(A)(ii) of the ESA (16 U.S.C. 1532(5)(A)(ii))
states that critical habitat includes specific areas outside the
geographical area occupied by the species at the time it is listed
under the ESA that the Secretary determines are essential for the
conservation of the species. In contrast to section 3(5)(A)(i) (16
U.S.C. 1532(5)(A)(i)), this second prong of the critical habitat
definition does not mention physical or biological features, much less
require that the specific areas contain the physical or biological
features essential to the conservation of the species. This two-prong
structure of the definition indicates that Congress intended the two
types of critical habitat to have distinct as opposed to the same
standards. A regulation requiring unoccupied areas to contain essential
features has the effect of making the standards for defining unoccupied
critical habitat more similar to those of occupied critical habitat,
not ``more demanding.'' As a number of courts have indicated, the
higher or more demanding standard for designating unoccupied areas does
not stem from whether essential physical or biological features are
present, but from whether the area itself is essential for the species'
conservation (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)
(``[W]ith unoccupied areas, it is not enough that the area's features
be essential to conservation, the area itself must be essential'')).
Comment 71: Several commenters stated they opposed removal of the
``essential features'' requirement in 50 CFR 424.12(b)(2) because an
area cannot be reasonably construed as ``essential for the conservation
of the species'' if the area is uninhabitable by the species and there
is no reasonable probability that it will become habitable by the
species or that it would have to be substantially altered from its
current condition to meet the habitat needs of the species. One
commenter stated that, in Weyerhaeuser, the Supreme Court explicitly
rejected the lower court's conclusion that ``there is no habitability
requirement in the text of the ESA or the implementing regulations.''
Commenters also asserted that the legislative history of the 1978 ESA
amendments plainly displays Congress's expectation that unoccupied
critical habitat encompasses only those areas currently sustaining or
currently capable of sustaining species. Several commenters expressed
concerns that the proposed revision could or would allow the Services
to designate areas that do not have any essential features and then
require restoration of the area through section 7 of the ESA and
conditioning of Federal permits. One commenter stated that the fact
that an area may become habitat at some point in the future does not
render it habitat at the time of the critical habitat designation.
Several other commenters urged the Services to revise the regulation to
at least require a finding that the area will support the essential
features in the foreseeable future.
Response: We do not agree that importing a portion of the statutory
definition for ``occupied'' critical habitat (i.e., requiring presence
of physical or biological features essential to the conservation of the
species) into the requirements for determining what areas qualify as
``unoccupied'' critical habitat is the appropriate way to resolve the
question of whether an area is habitat for a species. Nor is conflating
the definitions of occupied and unoccupied habitat appropriate to
resolve whether an area is essential for that species' conservation. We
agree that Congress through the statutory text and the Supreme Court in
Weyerhaeuser provide consistent direction that an area must be habitat
for the species in order for it to be designated as critical habitat
under the ESA. (See 16 U.S.C. 1533(a)(3)(A)(i), which states that
``[t]he Secretary shall ``. . . designate any habitat of such species
which is then considered to be critical habitat . . . .'' (emphasis
added); and Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361, 372 (2018)
(``Only the `habitat' of the endangered species is eligible for
designation as critical habitat.'')). In Weyerhaeuser, the Supreme
Court also stated that the statutory definition of ``critical habitat''
is ``no baseline definition of habitat'' and that it ``leaves the
larger category of habitat undefined'' (see Weyerhaeuser Co. v. U.S.
FWS, 139 S. Ct. 361, 372 (2018)). When this case reached the Supreme
Court, whether the unoccupied area at issue in that case could support
the listed species was still in dispute. Neither the Supreme Court nor
the lower court ruled on that aspect of the case. The Supreme Court,
stating that the lower court had ``no occasion to interpret the term
``habitat'' in section 4(a)(3)[(A)](i) [of the ESA] or to assess the
Service's administrative findings'' regarding whether the area in
dispute was habitat, remanded the lower court's ruling with instruction
to ``consider these questions.'' Weyerhaeuser Co., 139 S. Ct. at 369.
As this case was ultimately resolved as a result of revisions by the
FWS to the critical habitat designation, the lower court had no further
cause to address these questions. In other words, even upon remand, the
lower court did not opine on or provide an interpretation of the term
``habitat.'' Therefore, neither this particular case history nor the
statutory definition of ``critical habitat'' establishes requirements
or guidance with respect to the meaning of the term ``habitat.''
Removal of the ``essential feature requirement'' in 50 CFR
424.12(b)(2) will not alter the need for the Services to abide by both
Congress' statutory direction and the Supreme Court's ruling in
Weyerhaeuser to designate areas that are habitat for the listed
species. This revision will also not alter the need for the Services to
make the statutorily required finding that an unoccupied area is
essential for the conservation of the listed species to designate it as
critical habitat. Whether an unoccupied area constitutes habitat and is
essential for the conservation of a species will be case- and fact-
specific and must be based on the best scientific data available for
the listed species. Furthermore, we find it most appropriate and
consistent with the conservation purposes of the ESA to consider areas
as habitat if they fit within any reasonable biological understanding
of ``habitat'' as established by the best available scientific data for
a particular species. We also note that neither Congress nor the
Weyerhaeuser ruling established any prohibition on designating areas as
critical habitat if those areas may
[[Page 24327]]
require some reasonable restoration to become accessible, habitable, or
capable of supporting the species. The Services will not designate
areas that are wholly unsuitable for the given listed species or that
require extreme intervention or modification to support the species,
but it is not necessary or consistent with the conservation purposes of
the ESA to disqualify an area as ``habitat'' simply because it requires
some reasonable alteration or restoration--whether through natural
processes or some reasonable degree of human intervention.
It is implicit but clear, based on the statutory definition of
``critical habitat,'' that the appropriate timeframe for assessing
whether physical or biological features ``are found'' in a specific
area and whether specific areas ``are essential'' for a species'
conservation is the time of designation (16 U.S.C. 1532(5)(A)(i)).
Therefore, we do not find it necessary or appropriate to add any
additional regulatory requirements regarding the timing of when certain
essential features would be present in the area, or when a species may
occupy or use the area. A specific unoccupied area may remain
inaccessible to the listed species (e.g., blocked historical spawning
habitat), or may require some form of natural recovery or reasonable
restoration to support the listed species over the long term (e.g.,
upgrading old culverts), but may still be considered habitat for that
species and may still be considered essential for that species'
conservation if the record supports such conclusions at the time of
designation. The ESA does not require the Services to know when the
species is likely to benefit from a critical habitat designation to
exercise our authority to designate an area as critical habitat.
The Services cannot designate as critical habitat areas that lack
essential physical and biological features and then use the
consultation requirements under section 7(a)(2) of the ESA to require
restoration of the area. Section 7 of the ESA does not grant the
Services that authority. Section 7(a)(2) of the ESA prohibits Federal
actions from reducing critical habitats' capacity to conserve listed
species over time; it does not impose an affirmative requirement to
restore or improve any areas of critical habitat (see 81 FR 7214 at
7224, February 11, 2016 (extending to the adverse-modification analysis
the conclusion in National Wildlife Federation v. National Marine
Fisheries Service, 524 F.3d 917, 930 (9th Cir. 2007), that agency
action can only violate section 7(a)(2) of the Act ``if that agency
action causes some deterioration in the species' pre-action
condition'')). In other words, the requirement for Federal agencies to
ensure their actions are not likely to destroy or adversely modify
critical habitat is a prohibitory standard only.
Comment 72: A commenter stated that removal of the requirement that
unoccupied areas contain essential features will increase the burden on
the Services to demonstrate to stakeholders that an area is habitat and
is essential for the species. Several commenters note that the Services
failed to identify a situation where they have designated an unoccupied
area as critical habitat without an essential conservation feature or
explain how an area can be essential when it lacks features the species
needs.
Response: We do not agree that removal of this regulatory
requirement will increase the burden on the Services to demonstrate
that unoccupied areas are essential for the conservation of the listed
species. With or without this requirement, the Act requires the
Services to explain how the habitat is essential for the species'
recovery. Mere presence of certain habitat features is not sufficient
to demonstrate the features are, or the area itself is, ``essential,''
which is the required test under the ESA. Although several court
rulings on this issue predate the 2019 regulation, they nonetheless
speak to this statutory standard and indicate that, in designating
unoccupied critical habitat, the Services must still explain how the
area is essential for the conservation of the species. Where efforts
have been made to use the presence of ``essential features'' to reach a
conclusion that the area itself is essential to the conservation of the
species, those efforts have failed (see Cape Hatteras Access Pres.
All., 344 F. Supp. 2d at 119 (``[W]ith unoccupied areas, it is not
enough that the area's features be essential to conservation, the area
itself must be essential.''); Ctr. for Biological Diversity v. U.S.
Fish & Wildlife Serv., 67 F.4th 1027, 1044-45 (9th Cir. 2023) (holding
that ``the mere presence of pertinent biological features'' is
insufficient for unoccupied areas to qualify as critical habitat); Otay
Mesa Prop., L.P. v. U.S. Dep't of the Interior, 344 F. Supp. 3d 355,
376 (D.D.C. 2018) (explaining that ``the mere presence of pertinent
biological features'' is insufficient for designating unoccupied
critical habitat and that to do so instead requires a finding that
``the area itself is `essential' to the conservation of the
species'')).
As discussed in previous responses, we find that the 2019
regulation's requirement that unoccupied areas contain one or more
essential features blurred the clear distinction between the two types
of critical habitat defined in section 3 of the ESA (16 U.S.C.
1532(5)(A)) (e.g., see responses to Comment 68, Comment 70, and Comment
71, above). We do not need to point to specific instances of unoccupied
critical habitat that lack essential physical or biological features to
rectify this issue.
Comment 73: Several commenters stated that they support the
proposed removal of the ``reasonable certainty'' standard from Sec.
424.12(b)(2) because it is potentially unlawful. Some commenters stated
that this requirement is unnecessary in light of the ESA's requirement
to determine critical habitat on the basis of the best scientific data
available or otherwise noted that the ESA does not require a finding of
``reasonable certainty.''
Response: We appreciate the commenters' support for our proposed
changes.
Comment 74: Multiple commenters opposed the proposed removal of the
``reasonable certainty'' requirement from 50 CFR 424.12(b)(2) because,
in their view, removing that requirement is contrary to the ``more
demanding'' standard Congress established for designating unoccupied
critical habitat, and the Services should be required to make a strong
case for making a determination that the areas are ``essential for
conservation.'' These commenters asserted that, under the proposed
regulation, the Services could base their designation on science that
is not sufficiently certain. Other commenters stated that if the best
available data do not contain the requisite amount of certainty, those
data cannot be relied upon in making regulatory decisions. Several
commenters stated that basing designation of unoccupied areas on the
``best scientific data available'' is not an adequate standard, as the
``best data'' could be poor and speculative. One commenter asserted
that the proposed removal of the ``reasonable certainty'' standard
indicates that the Services could rely on ``quite inconclusive''
information when designating critical habitat.
Response: Removal of the ``reasonable certainty'' standard from the
regulations does not allow the Services to begin to, nor does it
indicate we will, designate areas of unoccupied habitat based on
unreliable or speculative data. The best-available-data standard is
also not an inadequate standard; it is the statutory standard upon
which we are required to base all critical habitat designations (16
U.S.C. 1533(b)(2)). As we discussed in the proposed rule, courts have
held that
[[Page 24328]]
the ESA's ``best scientific data available'' standard 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) (``[T]he 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) (citing cases).
In applying this standard, the Services cannot, and do not, simply rely
on whatever data are available at the time of designation without
independent evaluation; the Services must carefully review and
interpret those data along with any associated assumptions and
uncertainties, and then draw supportable, reasonable conclusions. The
scientific information and basis for a proposed designation are also
subjected to both peer and public review, which affords additional
vetting and opportunity for input before a designation is finalized.
The statutory definition of ``critical habitat'' provides separate,
distinct standards for defining the two types (occupied and unoccupied)
of critical habitat (16 U.S.C. 1532(5)(A)). The ESA does not establish
or imply there must be a greater degree of certainty in the underlying
data supporting the designation of unoccupied areas relative to
occupied areas. In fact, section 4(b)(2) of the ESA makes no
distinction on this matter, and simply states that critical habitat
must be designated ``on the basis of the best scientific data
available'' (16 U.S.C. 1533(b)(2)).
Comment 75: Several commenters opposed the proposed removal from 50
CFR 424.12(b)(2) of the requirement to determine that unoccupied areas
will have a reasonable certainty to contribute to the conservation of
the species. One commenter stated that this provision informs the
determination of whether an area is essential for the species'
conservation, and that this requirement helps ensure that unoccupied
areas deemed ``essential'' will benefit the species. Furthermore, the
commenter stated that the regulation should be revised to provide
relevant factors for determining when an unoccupied area is considered
essential, and that the Services should be required to make a finding
that the species will occupy the area. The commenter stated that if the
species is unlikely to occupy the area, then it cannot contribute to
the species' conservation.
Response: To designate an unoccupied area as critical habitat, the
Services must make a determination that the specific area is
``essential for conservation.'' Whether and how an area is demonstrated
to meet this statutory test will depend on the best available data for
the listed species and what those data indicate in terms of the habitat
and conservation needs of the species. It is possible that, in some
cases, the Services will have data to show or project when the listed
species may move into or reoccupy an unoccupied area of critical
habitat; however, such data are not required to find that the area is
``essential'' for the conservation of that species. Rather, the
Services can consider a variety of relevant factors (e.g., whether the
area was part of the historical range, current condition of the
unoccupied habitat, planned restoration activities) when determining
whether the area is essential for the species' conservation and
assessing the impacts (positive and negative) of designation under
section 4(b)(2) of the ESA.
Regardless of the relevant available data that are used to inform a
critical habitat designation, the ESA does not require the Services to
conduct a forward-looking analysis to forecast or predict when a
species may occur in an area that it did not occupy at the time of
listing. The ESA also does not require the Services to know when the
species is likely to benefit from a critical habitat designation in
order to exercise our authority to designate an area as critical
habitat. As we discussed in response to Comment 71, the statutory
definition of ``critical habitat'' indicates that the appropriate
timeframe for assessing whether a specific area is ``essential'' for a
species' conservation is the time of designation (16 U.S.C.
1532(5)(A)(i)). Therefore, for an unoccupied area to be considered
``essential,'' we need not determine or project when the listed species
may occur in the area or benefit from the critical habitat designation.
A specific unoccupied area may contain excellent habitat for a listed
species but remain inaccessible to the listed species (e.g., blocked
historical spawning habitat) or may require some form of natural
recovery or reasonable restoration to support the listed species over
the long term (e.g., upgrading old culverts); but in both cases, the
areas may still be considered habitat for that species and may still be
considered essential for that species' conservation if the evidence
supports such conclusions at the time of designation.
Comment 76: A commenter stated they support the removal of the
phrase ``there is a reasonable certainty . . . that the area will
contribute to the conservation of the species'' from 50 CFR
424.12(b)(2) because this is an inappropriately low standard. The
commenter stated that merely contributing to conservation is not
equivalent or indicative of being essential or indispensable to
conservation.
Response: We appreciate this commenter's point, and we agree that
``contributing to conservation'' is not an equivalent standard to the
statutory standard of whether an area is ``essential'' or necessary for
a species' conservation.
Comment 77: Some commenters asserted that the proposal to remove
the ``reasonable certainty'' requirement from 50 CFR 424.12(b)(2)
lacked a sufficient explanation. A commenter stated that the
justification that this requirement could potentially conflict with the
best available data requirement was not reasonable. The commenter
stated that because the best-available-data standard has not previously
been interpreted to require a specific level of certainty, there is no
indication that any potential conflict exists. Several commenters
stated they did not agree with the Services' statements in the proposed
rule that imposing a ``reasonable certainty'' standard could result in
some of the best available data being excluded from consideration.
Response: We respectfully disagree with these comments and continue
to find that the ``reasonable certainty'' requirement in the 2019
regulation is not mandated by the language or structure of the Act, and
in the view of the Services, its removal would better fulfill the
Secretaries' obligation to further the conservation purposes of the
Act. The best-available-data standard of the ESA already inherently
contains an obligation for the Services not to base their decisions on
information that is merely potential or speculative. The ``reasonable
certainty'' standard appeared to set a more stringent standard relative
to the statutory standard and thus could potentially result in the
Services excluding data from consideration because they were deemed not
to meet some ambiguously heightened level of certainty. As we also
discussed in response to Comment 74, the ESA does not require that the
supporting data be free from uncertainty (see, e.g., 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)). The ``reasonable certainty'' standard could also
[[Page 24329]]
potentially lead to increased legal challenges to the Services'
designations asserting either that we ignored some of the relevant
available data, or that the underlying data were not sufficiently free
from uncertainty. We find that the rationale and explanation for this
revision is clear and reasonable, and we are finalizing the revision as
proposed.
Comment 78: Several commenters noted they support the addition of
the last sentence of 50 CFR 424.12(b)(2) indicating that determinations
regarding whether an area is essential for a species' conservation will
be based on the best scientific data available. Several commenters,
however, objected to the inclusion of this phrase, stating that, while
accurate, it is redundant with regulatory text at 50 CFR 424.12(a) and
is also incomplete or misleading because it leaves out the requirement
to consider economic, national security, and other relevant impacts.
Response: We appreciate the comments in support of this revision,
and we do agree with other comments that the added sentence in 50 CFR
424.12(b)(2) is redundant with existing text in the earlier section of
the regulations (50 CFR 424.12(a)). However, we have elected to repeat
this statutory requirement in 50 CFR 424.12(b)(2) because it is helpful
to reiterate and emphasize this important standard, particularly given
the sometimes contested nature of unoccupied critical habitat
designations. Also, comments we received on the proposed rule
expressing concerns that the Services intend to have unfettered
discretion in designating these areas reaffirm that it is helpful to
reiterate in the context of unoccupied critical habitat that decisions
must be made on the basis of the best scientific data available.
We do not find the text of 50 CFR 424.12(b)(2) to be incomplete or
misleading because this section of the regulations is focused on the
identification of areas that meet the definition of ``critical
habitat'' under the ESA. Other sections of the regulations, 50 CFR
424.19 in particular, discuss other requirements of the designation and
rulemaking process, and these regulations addressing critical habitat
continue to apply.
Other General Comments
Comment 79: Several commenters stated that the Services did not
adequately explain the proposed changes and, for that reason, the
proposed regulation is arbitrary and capricious. Some commenters
claimed that the Services' reliance primarily on E.O. 13990,
litigation, and points that were adequately addressed in the 2019
rulemaking for its rationale for the proposed changes is insufficient.
Response: As discussed above in response to comments on specific
proposed revisions, in our June 22, 2023, proposed rule (88 FR 40764),
the Services thoroughly explained the proposed revisions based on our
review of the 2019 regulations in light of the Act, its conservation
purposes, and congressional intent. Following our review of the 2019
regulations, and as discussed more thoroughly in the responses above to
comments on specific provisions, the Services have concluded that
certain provisions of the 2019 regulations were not the best
interpretation of the statutory standards or the best way to further
the conservation purposes of the Act. Our preamble to the 2023 proposed
rule identified where we were changing our positions from the prior
rulemaking, and we have expanded our reasoning for those changes here
in response to comments received. The 2019 rule was prompted by E.O.
13777 (82 FR 12285, March 1, 2017), which has been rescinded, as well
as a settlement agreement related to litigation over the 2016
regulatory changes. We also note that, prior to 2016 there had been no
comprehensive revisions to 50 CFR part 424 since 1984.
Comment 80: One commenter questioned whether the Services have
adequately disclosed what they were not proposing to change in the 2019
regulations and requested the Services provide a publicly available
written analysis of the sections of the regulations that would not be
changed.
Response: Our June 22, 2023, proposed rule (88 FR 40764) thoroughly
explained the revisions and changes that we proposed to the 2019
regulations. There is no requirement for agencies to identify portions
of a rule that they do not propose to change and justify why certain
provisions are being retained. We prepared a supporting document that
displayed the specific, proposed line edits to the existing text in 50
CFR part 424 and made that document publicly available as part of the
rulemaking docket during the public comment period. The Services have
generally made revisions to all of the sections of the regulations that
were revised in 2019: listing, delisting, and criteria for designating
critical habitat. Those few provisions of the 2019 regulations that are
not revised with this final rule remain in place. We refer commenters
to the explanations provided in that rulemaking (83 FR 35193, July 25,
2018; 84 FR 45020, August 27, 2019) for the not-prudent determinations
codified at 50 CFR 424.12(a)(1)(i), (iii), and (iv) (see also our
responses to Comment 48 and Comment 49 in this document), for the
changes to the definition of ``physical or biological features'' at
Sec. 424.02, and for the editorial changes to Sec. 424.11(c).
Comment 81: A commenter requested the Services review all of the
listing decisions and critical habitat determinations made under the
2019 rule. The commenter noted the original Federal court decision to
vacate the entire rule indicates there are substantial issues with the
rule. Consequently, some or all of the species affected by the 2019
rule may not have received the full conservation benefits of the Act
when listing determinations and critical habitat designations were
finalized.
Response: The specific changes to the regulations being finalized
in this rule create prospective standards only. These regulations apply
to classification and critical habitat rules finalized after the
effective date of this rule (see DATES, above) and will not apply
retroactively to classification and critical habitat rules finalized
prior to the effective date of this rule. The Services do not intend to
reevaluate any prior final listing, delisting, or reclassification
determinations or previously completed critical habitat designations on
the basis of this final regulation.
As noted by the commenter, the 2019 regulations have been the
subject of litigation. We described the litigation in our proposed rule
(88 FR 40764-40765, June 22, 2023), and we note that the court's
decision to vacate the 2019 rule was not based on the merits, and that
the 2019 rule was subsequently put back into effect. Due to the
litigation, where there may have been some questions regarding which
version of the regulations was in effect and therefore applicable, each
listing, delisting, reclassification, and critical habit designation
made since the initial Federal court decision has been assessed to
determine whether those listing determinations and critical habitat
designations would be the same under the 50 CFR part 424 regulations as
they existed before 2019, and under the regulations as revised by the
2019 rule. Those assessments concluded that, while the analysis may
have differed, the outcomes would not. Therefore, we conclude that it
is not necessary to reevaluate any prior final listing, delisting, or
reclassification determinations or completed critical habitat
designations.
Comment 82: Some commenters stated the Services should fully
rescind the 2019 regulations, while others said
[[Page 24330]]
the 2019 regulations should not be revised at all.
Response: In response to E.O. 13990 and in light of recent
litigation over the 2019 rule, the Services reviewed the 2019 rule,
evaluated the specific regulatory revisions promulgated through that
process, and, for reasons set forth above in response to comments on
the specific provisions, decided to make revisions to some of the 2019
regulations rather than fully rescinding them.
Comment 83: A commenter stated the Services should substantially
revise or withdraw the June 22, 2023, proposed rule (88 FR 40764)
because it will impede our ability to implement this Administration's
goals for the Infrastructure Investment and Jobs Act (Pub. L. 117-58,
135 Stat. 429) and the Inflation Reduction Act (Pub. L. 117-169, 136
Stat. 1818).
Response: This rule revises and clarifies the standards for
listing, delisting, reclassification determinations and critical
habitat designations under the ESA. It will not directly affect this
Administration's goals for the Infrastructure Investment and Jobs Act
or the Inflation Reduction Act. The extent to which future species
listings or designations of their critical habitat are affected by or
have an effect on specific projects that stem directly from the
Infrastructure Investment and Jobs Act of 2021 or the Inflation
Reduction Act of 2022 will be assessed on a case-by-case basis through
section 7 consultation as specific projects are planned and
implemented.
Comment 84: Some commenters noted the regulations governing listing
and critical habitat designation have changed frequently in recent
years, creating uncertainty for the regulated public.
Response: The Services acknowledge that there have been several
recent revisions to the listing and critical habitat regulations and
that revisions adopted in 2016 and 2019 were both challenged in
subsequent litigation. However, following a review of the 2019
regulations prompted by E.O. 13990, and in response to the litigation
on the 2019 rule and other ESA regulation revisions finalized in 2019,
the Services determined that it is appropriate and necessary to revise
these regulations so that the Services could best fulfill their duties
under the Act with clear guidance. Moreover, changes to general
implementing regulations related to listing and critical habitat cannot
give any certainty as to a particular outcome of a listing
determination or critical habitat designation due to the fact-specific
nature of such rules. The process for revising regulations is governed
by the APA as interpreted by relevant case law, with which the Services
have complied fully. The explanation for the changes finalized today,
as well as extensive responses to comments, are intended to reduce any
confusion or uncertainty created by these changes.
Comment 85: A commenter stated the proposed rule is overly
technical and that the final rule should contain additional information
making it more understandable for the general public.
Response: We are required by E.O.s 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. We have explained the regulatory changes finalized in this
rule as plainly and simply as possible. The Services received more than
160,000 comments on the proposed rule, indicating the general public
was able to understand its provisions. We do not believe additional
information needs to be provided in this document to make the final
rule more understandable to the general public, but we did try to make
some of the explanations in this final rule clearer.
Comment 86: Some commenters stated the regulation violates the
``major questions doctrine'' because the rule would give the Services
the ability to make decisions based on tenuous scientific information
with indefinite timeframes, unfettered ability to regulate lands
through designations of unoccupied critical habitat, and discretionary
delisting procedures. They stated that these actions may exceed the
scope of the ESA as envisioned by Congress and may violate the major
questions doctrine.
Response: The Services disagree with the commenters'
characterization of the rule and their statement that these regulations
violate the major questions doctrine. The doctrine is a legal principle
articulated by the Supreme Court in West Virginia v. EPA, 142 S. Ct.
2587 (2022), and relied upon in Biden v. Nebraska, 143 S. Ct. 2355
(2023), the latter of which is referenced by the commenter. While clear
parameters to this doctrine are difficult to discern, it generally
involves an inquiry into whether Congress intended to confer on an
agency the authority to address a matter of economic and political
significance. (See generally West Virginia, 142 S. Ct. at 2608; Biden,
143 S. Ct. at 2372-73.) Here, Congress provided the requisite
authority. We recognize that implementation of the ESA is often
contested, as reflected in the numerous public comments on the proposed
rule. Nonetheless, Congress entrusted the Services with the authority
to implement the ESA and develop regulations that interpret the Act in
furtherance of its purposes in a consistent and transparent manner.
This final rule fills in some details to implement express authority
provided to the Services by the Act and does not exceed the scope of
this authority. Moreover, these regulations do not give the Services
the ability to make decisions based on tenuous scientific information
with indefinite timeframes, give the Services the unfettered ability to
regulate land, or make delisting discretionary. This rule revises and
clarifies requirements for NMFS and FWS in classifying species and
designating critical habitat in a manner most consistent with the
language and conservation purposes of the Act.
Comments on Required Determinations
Comment 87: A commenter stated that the Services should pause this
rulemaking to evaluate impacts under E.O. 12866, as our proposal was
identified as a significant rule. They stated the review process for
the proposed rule must comply with the requirements for regulatory
planning, coordination, and review specified in E.O. 12866 and related
directives, including an economic analysis of the proposed rule.
Response: Executive Order 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OMB designated the June 22, 2023, proposed rule (88 FR 40764) as
``significant'' pursuant to E.O. 12866 but did not characterize the
rulemaking as significant under section 3(f)(1) of E.O. 12866.
Therefore, we are not required to conduct an economic analysis of the
rule.
Executive Order 14094 amends E.O. 12866, reaffirms the principles
of E.O. 12866 and E.O. 13563, and states that regulatory analysis
should facilitate 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). E.O. 14094 states that 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
[[Page 24331]]
developed this final rule in a manner consistent with these
requirements.
The revisions we are finalizing to the listing, delisting, and
reclassification regulations as described in this rule are intended to
align more closely with the Act 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. Similarly, the
revisions to the provisions related to the Secretaries' duty to
designate critical habitat are intended to align the regulations with
the Act. These changes provide transparency and clarity, and there are
no identifiable, quantifiable effects from the final 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.
Comment 88: Some commenters stated that we need to conduct an
evaluation of economic impacts under E.O. 12866 and the Regulatory
Flexibility Act. Others stated that because OMB deemed the rule
significant under E.O. 12866, the Services' determination that the rule
would not have a significant effect on small entities was in error.
Several commenters stated that the rule would directly and
significantly affect small entities; as such, the Services should
conduct a regulatory flexibility analysis.
Response: This final rule does not violate E.O. 12866 or the
Regulatory Flexibility Act. 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.
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. We have certified that these regulations will not have a
significant economic impact on a substantial number of small entities
because this rule revises and clarifies requirements for NMFS and FWS
in classifying species and designating critical habitat under the Act
and does not directly affect small entities (see 88 FR 40764 at 40772,
June 22, 2023). Further, regarding the comment that because OMB deemed
the rule significant under E.O. 12866, the rule is also significant
under RFA, we disagree. The criteria for identifying a significant
regulatory action under E.O. 12866 are not the same as the criteria for
identifying a rule that will have a significant economic impact on a
substantial number of small entities pursuant to the RFA. See Required
Determinations, below, for further discussion of E.O. 12866 and the
RFA.
Comment 89: Some commenters stated the Services should prepare an
environmental impact statement or an environmental assessment under
NEPA and stated that a categorical exclusion is not appropriate for
this rule. One commenter requested that, if an environmental assessment
is prepared, it be made available for public comment and that any
categorical exclusion be made available for public inspection.
Response: We have analyzed this 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 National Oceanic and Atmospheric
Administration (NOAA) Administrative Order 216-6A, and the companion
manual, ``Policy and Procedures for Compliance with the National
Environmental Policy Act and Related Authorities,'' which became
effective January 13, 2017. We have concluded a categorical exclusion
is appropriate for this rulemaking. For more-specific information
regarding our conclusions regarding categorical exclusion under NEPA,
see Required Determinations, below. The categorical exclusion memoranda
developed by the Services are available online (see ADDRESSES, above).
Comment 90: One commenter stated the Services should have provided
a statement of energy effects under E.O. 13211 and, because of the
adverse energy effects of the rule, should prepare reasonable
alternatives to the action.
Response: Because this final rule is promulgating interpretive
rules that govern the Services' implementation of the ESA, this action
is not expected to affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action, and no
statement of energy effects is required. Furthermore, to the extent
that there may be any energy effects from future critical habitat
determinations, the Services will be required to consider those effects
pursuant to E.O. 13211 in the context of those species-specific
rulemakings.
Comment 91: A few commenters stated that the proposed regulatory
change violates E.O. 13777.
Response: Executive Order 13777 was revoked by President Biden on
January 20, 2021, and is longer in effect. Moreover, by its terms, E.O.
13777 did not create any enforceable rights or benefits against the
United States.
Comment 92: A commenter stated the proposed rule would affect
States and, therefore, disagrees with the Services' conclusion that a
federalism summary impact statement under E.O. 13132 is not required.
Response: As stated below under Required Determinations in
Federalism (E.O. 13132), the Services have determined, in accordance
with E.O. 13132, that this final rule will not have significant
federalism effects and have determined that a federalism summary impact
statement is not required. This final rule pertains only to factors for
listing, delisting, or reclassifying species and designation of
critical habitat under the Act and does 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. Furthermore,
to the extent that there may be any federalism effects from future
critical habitat determinations, the Services will be required to
consider those effects pursuant to E.O. 13132 in the context of those
species-specific rulemakings.
Comment 93: A commenter stated the rule could result in takings and
the Services should reconsider our findings under E.O. 12630.
Response: The Services have concluded, in accordance with E.O.
12630, that this final rule will not have significant takings
implications. As discussed in the June 22, 2023, proposed rule and
below under Required Determinations, this rule does not pertain to
taking of private property interests, nor does it directly affect
private property. A takings implication assessment is not required
because this rule will not effectively compel a property owner to
suffer a physical invasion of property and will not deny
[[Page 24332]]
all economically beneficial or productive use of the land or aquatic
resources. This rule substantially advances a legitimate government
interest (conservation and recovery of endangered species and
threatened species) and does not present a barrier to all reasonable
and expected beneficial use of private property. To the extent that
there may be any takings implications as a result of future critical
habitat determinations, the Services will be required to consider those
implications pursuant to E.O. 12630 in the context of those species-
specific rulemakings.
Comment 94: A commenter stated the Services will violate section
7(a)(2) of the ESA if they do not consult on this final rule. They
stated that if the Services finalize the rule without completing
consultation under section 7(a)(2), they will violate section 7(d) of
the ESA, which prohibits Federal agencies from making any irreversible
or irretrievable commitment of resources with respect to the agency
action once consultation has been initiated.
Response: In finalizing this rule, the Services are acting in their
statutory roles as administrators of the ESA and are engaged in a legal
exercise of interpreting the standards of the ESA. The Services'
promulgation of interpretive rules that govern the implementation of
the ESA is not an action that is in itself subject to the ESA'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 ESA. In contrast to
actions in which we have acted principally as an ``action agency'' in
implementing the ESA 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 or revisions to those
regulations that interpret the terms and standards of the Act.
Comment 95: A commenter stated that the Services have not
adequately consulted with Alaska Native Corporations and that they have
an obligation under E.O. 13175 to consult with Alaska Native
Corporations on the same basis as Tribes. Consistent with this
obligation, the Services should commit to consulting with Alaska Native
Corporations on the designation of critical habitat in Alaska.
Response: In accordance with E.O. 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' the Department of the
Interior's manual at 512 DM 2, 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
rule on federally recognized Indian Tribes. This rule is general in
nature and does not directly affect any specific Tribal lands, treaty
rights, or Tribal trust resources. Therefore, we concluded that this
rule does not have ``Tribal implications'' under section 1(a) of E.O.
13175. However, the Services did conduct several webinars on the
proposed rule specifically targeted to Tribes and Alaska Natives.
A number of recent memoranda and Executive orders describe the
commitment of the U.S. Government to strengthening the relationship
between the Federal Government and Tribal Nations and to advance equity
for Indigenous people, including Native Americans, Alaska Natives,
Native Hawaiians, and Indigenous peoples of the U.S. Territories. These
include the Memorandum on Tribal Consultation and Strengthening Nation-
to-Nation Relationships (86 FR 7491, January 29, 2021); Executive Order
13985: Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (86 FR 7009, January 25, 2021);
Executive Order 14031: Advancing Equity, Justice, and Opportunity for
Asian Americans, Native Hawaiians, and Pacific Islanders (86 FR 29675,
June 3, 2021); and the Memorandum on Indigenous Traditional Ecological
Knowledge and Federal Decision Making (November 15, 2021). The
commitments described in these recent Executive orders and memoranda
include ensuring that Federal agencies conduct regular, meaningful, and
robust consultation with Tribal officials in the development of Federal
research, policies, and decisions, especially decisions that may affect
Tribal Nations and the people they represent. Our obligation to have a
government-to-government relationship with federally recognized Tribes
is paramount and, in addition to Executive orders and policies on the
government-to-government relationship, is covered by Secretaries'
Orders (S.O.) 3206 and 3225. While S.O. 3225 discusses ``Alaska
Natives'' and ``other Native organizations,'' its purpose is to protect
subsistence rights and ways of life, and states that Departments of
Commerce and the Interior will seek to enter into cooperative
agreements for the conservation of specific species, such as marine
mammals and migratory birds, and the co-management of subsistence uses
with these organizations.
In the Consolidated Appropriations Act of 2004 (Pub. L. 108-199,
Div. H, sec. 161), Congress required that the Director of the Office of
Management and Budget (and, subsequently, all Federal agencies) consult
with Alaska Native Corporations on the same basis as Indian Tribes
under Executive Order 13175. Consistent with this obligation, the
Services will consult on Federal decisions that have a substantial,
direct effect on an Alaska Native Corporation. This obligation to
consult does not extend beyond the E.O. 13175 context.
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 determined that this final rule is significant as defined
by Executive Order 12866.
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 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
rule in a manner consistent with these requirements. This 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.''
This rule revises the Services' implementing regulations at 50 CFR
424.11 and 424.12. Specifically, the
[[Page 24333]]
Services are finalizing 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), the
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 rule and responses to public comments
explain in detail why we anticipate that the regulatory changes we are
finalizing 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). 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 finalizing to the listing, delisting, and
reclassification provisions as described above are intended to align
more closely with the Act 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 revised regulation. Similarly, the 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 this 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 certified at the proposed rule
stage that the proposed rule would not have a significant economic
impact on a substantial number of small entities (88 FR 40764 at 40772,
June 22, 2023). Nothing in this final rule changes the basis for that
conclusion, and we received no information that changes the factual
basis of this certification.
This rule revises and clarifies requirements for NMFS and FWS in
classifying species and designating critical habitat under the Act and
does not directly affect small entities. NMFS and FWS are the only
entities that will be directly affected by this rule because we are the
only entities that list species and designate critical habitat under
the ESA. External entities, including any small businesses, small
organizations, or small governments, are not directly regulated by this
rule and thus will not experience any direct economic impacts from this
rule.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) On the basis of information presented under Regulatory
Flexibility Act above, this rule will not ``significantly or uniquely''
affect small governments. We have determined and certify pursuant to
the Unfunded Mandates Reform Act that this final rule will 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 will not be affected
because the final rule will not place additional requirements on any
city, county, or other local municipalities.
(b) This rule will 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 final rule is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This final rule will
impose no obligations on State, local, or Tribal governments.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this rule will not have
significant takings implications. This rule does not pertain to
``taking'' of private property interests, nor will it directly affect
private property. A takings implication assessment is not required
because this final rule (1) will not effectively compel a property
owner to suffer a physical invasion of property and (2) will not deny
all economically beneficial or productive use of the land or aquatic
resources. This rule substantially advances a legitimate government
interest (conservation and recovery of endangered species and
threatened species) and will not present a barrier to all reasonable
and expected beneficial use of private property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this rule will have significant federalism effects and have
determined that a federalism summary impact statement is not required.
This rule pertains only to factors for listing, delisting, or
reclassifying species and designation of critical habitat under the ESA
and will 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.
[[Page 24334]]
Civil Justice Reform (E.O. 12988)
This rule does not unduly burden the judicial system and meets the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988. This rule clarifies factors for listing, delisting, or
reclassifying species and designation of critical habitat under the
ESA.
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 (DOI) manual at 512 DM 2, the Department of Commerce's (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
rule on federally recognized Indian Tribes and Alaska Native
Corporations. We held three informational webinars for federally
recognized Tribes in January 2023, before the June 22, 2023, proposed
rule published, to provide a general overview of, and information on
how to provide input on, a series of rulemakings related to
implementation of the Act that the Services were developing, including
the June 22, 2023, proposed rule to revise our regulations at 50 CFR
part 424 (88 FR 40764). In July 2023, we also held six informational
webinars after the proposed rule published, to provide additional
information to interested parties, including Tribes, regarding the
proposed regulations. More than 500 attendees, including
representatives from federally recognized Tribes and Alaska Native
Corporations, participated in these sessions, and we addressed
questions from the participants as part of the sessions. We received
written comments from Tribal organizations; however, we did not receive
any requests for coordination or government-to-government consultation
from any federally recognized Tribes.
This rule is general in nature and does not directly affect any
specific Tribal lands, treaty rights, or Tribal trust resources.
Therefore, we conclude that this 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
DOI and DOC. This rule revises regulations for protecting endangered
and threatened species pursuant to the Act. These regulations will not
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes.
Although this rule does not have ``tribal implications'' under
section 1(a) of E.O. 13175, we will continue to collaborate with Tribes
and Alaska Native Corporations on issues related to federally listed
species and their habitats and will work with them as we implement the
provisions of the Act. See Joint Secretaries' Order 3206 (``American
Indian Tribal Rights, Federal 2012; Tribal Trust Responsibilities, and
the Endangered Species Act'', June 5, 1997) and Secretaries' Order 3225
(``Endangered Species Act and Subsistence Uses in Alaska (Supplement to
Secretarial Order 3206),'' January 19, 2001).
Paperwork Reduction Act
This final 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 have analyzed this final 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.
On June 3, 2023, NEPA was amended by the Fiscal Responsibility Act
(Pub. L. 118-5). These amendments codified a procedure for determining
the appropriate level of NEPA review. Under these statutory standards,
which generally reflect the same standards previously applicable by
regulation, an environmental impact statement is only required for an
action that has a reasonably foreseeable significant effect on the
quality of the human environment. An environmental assessment is not
required for actions that do not have a reasonably foreseeable
significant effect on the quality of the human environment, or have
effects of unknown significance, if the agency finds, inter alia, that
the action is excluded pursuant to one of the agency's categorical
exclusions.
We have determined that a detailed statement under NEPA is not
required because the rule is covered by a categorical exclusion. We
have also determined that the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 or listed in NOAA's
NEPA companion manual (CM) that would require further analysis under
NEPA.
Under DOI's NEPA procedures, DOI 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 (43 CFR 46.210(i)).
NOAA's NEPA procedures include a similar categorical exclusion for
``preparation of policy directives, rules, regulations, and guidelines
of an administrative, financial, legal, technical, or procedural
nature'' (categorical exclusion G7, at CM appendix E). This rule does
not involve any of the extraordinary circumstances provided in NOAA's
NEPA procedures, and therefore does not require further analysis to
determine whether the action may have significant effects (CM at 4.A).
As a result, we find that the categorical exclusion found at 43 CFR
46.210(i) and in the NOAA CM applies to this regulation, and neither
Service has identified any extraordinary circumstances that would
preclude this categorical exclusion.
Endangered Species Act
In developing this 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
[[Page 24335]]
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 or revisions to those regulations that
interpret the terms and standards of the Act.
Energy Supply, Distribution or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. These revised
regulations are not expected to affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no statement of energy effects is required.
Authority
We issue this final rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 424
Administrative practice and procedure, Endangered and threatened
species.
Regulation Promulgation
For the reasons set out in the preamble, we hereby amend part 424,
subchapter A of chapter IV, title 50 of the Code of Federal
Regulations, as set forth below:
PART 424--LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING
CRITICAL HABITAT
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
0
2. Amend Sec. 424.11 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 foreseeable
future extends as far into the future as the Services can make
reasonably reliable predictions 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) Species will be delisted if the Secretary determines, based on
consideration of the factors and standards set forth in paragraph (c)
of this section, that the best scientific and commercial data available
substantiate that:
(1) The species is extinct;
(2) The species has recovered to the point at which it no longer
meets the definition of an endangered species or a threatened species;
(3) New information that has become available since the original
listing decision shows the listed entity does not meet the definition
of an endangered species or a threatened species; or
(4) New information that has become available since the original
listing decision shows the listed entity does not meet the 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. 2024-06899 Filed 4-2-24; 8:45 am]
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