[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

[[Page 24304]]

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]
BILLING CODE 4333-15-P