[Federal Register Volume 90, Number 73 (Thursday, April 17, 2025)]
[Proposed Rules]
[Pages 16102-16105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-06746]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. FWS-HQ-ES-2025-0034; FXES11110900000-256 FF09E23000;
250411-0064]
RIN 1018-BI38; 0648-BN93
Rescinding the Definition of ``Harm'' Under the Endangered
Species Act
AGENCY: U.S. Fish and Wildlife Service, Interior; National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) (collectively referred to as the
Services or we) are proposing to rescind the regulatory definition of
``harm'' in our Endangered Species Act (ESA or the Act) regulations.
The existing regulatory definition of ``harm,'' which includes habitat
modification, runs contrary to the best meaning of the statutory term
``take.'' We are undertaking this change to adhere to the single, best
meaning of the ESA.
DATES: Comments must be received by May 19, 2025.
ADDRESSES: A plain language summary of this proposed rule is available
at https://www.regulations.gov in Docket No. FWS-HQ-ES-2025-0034. You
may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2025-0034,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading,
[[Page 16103]]
check the Proposed Rule box to locate this document. You may submit a
comment by clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2025-0034, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. Comments must be submitted to https://www.regulations.gov before
11:59 p.m. (Eastern Time) on the date specified in DATES. We will not
consider mailed comments that are not postmarked by the date specified
in DATES.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. We cannot guarantee, however, that we will be able to do so.
Anonymous comments will be considered. Comments and materials we
receive, as well as supporting documentation we used in preparing this
proposed rule, will be available for public inspection on https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gina Shultz, Acting Assistant
Director, Ecological Services, at 703-358-2171 or
[email protected] with a subject line of ``1018-BI38.''
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. For a summary of the proposed rule, please see the
proposed rule summary document in Docket No. FWS-HQ-ES-2025-0034 on
https://www.regulations.gov.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act (ESA) prohibits the ``take'' of
endangered species.\1\ Under the ESA, ``[t]he term `take' means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.'' \2\ This makes
sense in light of the well-established, centuries-old understanding of
``take'' as meaning to kill or capture a wild animal.\3\ Regulations
previously promulgated by FWS expanded the ESA's reach in ways that do
not reflect the best reading of the statute, to prohibit actions that
impair the habitat of protected species: ``Harm in the definition of
`take' in the Act means an act which actually kills or injures
wildlife. Such an act may include significant habitat modification or
degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
breeding, feeding or sheltering.'' \4\ NMFS' definition is materially
identical: ``Harm in the definition of `take' in the Act means an act
which actually kills or injures fish or wildlife. Such an act may
include significant habitat modification or degradation which actually
kills or injures fish or wildlife by significantly impairing essential
behavioral patterns, including, breeding, spawning, rearing, migrating,
feeding or sheltering.'' \5\
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\1\ 16 U.S.C. 1538(a)(1)(B)-(C).
\2\ 16 U.S.C. 1532(19).
\3\ See, e.g., 11 Oxford English Dictionary (1933); Webster's
New International Dictionary of the English Language (2d ed. 1949);
Geer v. Connecticut, 161 U.S. 519, 523 (1896); 2 W. Blackstone,
Commentaries 411 (1766).
\4\ 50 CFR 17.3.
\5\ 50 CFR 222.102.
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In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687 (1995), the Supreme Court upheld FWS' regulation under
Chevron deference.\6\ Justice Scalia dissented, joined by Chief Justice
Rehnquist and Justice Thomas, and would have held that even under
Chevron this interpretation was unsustainable.\7\ As Justice Scalia
observed, ``[i]f `take' were not elsewhere defined in the Act, none
could dispute what it means, for the term is as old as the law itself.
To `take,' when applied to wild animals, means to reduce those animals,
by killing or capturing, to human control.'' \8\ In addition, under the
noscitur a sociis canon, the definition of ``harm,'' like the other
nine verbs in the definition, should be construed to require an
``affirmative act[ ] . . . directed immediately and intentionally
against a particular animal--not [an] act[ ] or omission[ ] that
indirectly and accidentally cause[s] injury to a population of
animals.'' \9\
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\6\ 515 U.S. at 703. Although Sweet Home concerned FWS's
regulation at 50 CFR 17.3, it applies equally to 50 CFR 222.102
given the definitions are substantially the same.
\7\ Id. at 715. The D.C. Circuit also rejected the Secretary's
definition. See Sweet Home Chapter of Communities for a Great Oregon
v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994); id. at 1472 (Sentelle,
J., concurring); but see id. at 1473 (Mikva, C.J., dissenting).
\8\ 515 U.S. at 717.
\9\ Id. at 719-20.
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The Supreme Court, nearly 30 years after Sweet Home, overruled the
Chevron doctrine in Loper Bright Enterprises v. Raimondo, 603 U.S. 369,
400 (2024). Under Loper Bright, ``the question that matters'' is
whether ``the statute authorizes the challenged agency action.'' \10\
In other words, does the agency's regulation match the single, best
meaning of the statute? \11\
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\10\ 603 U.S. at 406 (emphasis added).
\11\ Id. at 400.
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We have concluded that our existing regulations, which still
contain the definition of ``harm'' contested in Sweet Home, do not
match the single, best meaning of the statute. As Justice Scalia's
dissent in Sweet Home explains, the regulations' interpretation of the
statutory language violates the noscitur a sociis canon, did not
properly account for over a thousand years of history, and is
inconsistent with the structure of the ESA. Nor is any replacement
definition needed. The ESA itself defines ``take,'' \12\ and further
elaborating on one subcomponent of that definition--``harm''--is
unnecessary in light of the comprehensive statutory definition.
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\12\ 16 U.S.C. 1532(19).
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We recognize that the Supreme Court held in Loper Bright that its
``prior cases that relied on the Chevron framework . . . are still
subject to statutory stare decisis.'' \13\ But under the then-
prevailing Chevron framework, Sweet Home held only that the existing
regulation is a permissible reading of the ESA, not the only possible
such reading. Our rescission of the regulation definition on the ground
that it does not reflect the best reading of the statutory text thus
would not only effectuate the Executive Branch's obligation to ``take
Care that the Laws be faithfully executed,'' \14\ but would also be
fully consistent with Sweet Home.
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\13\ 603 U.S. at 412.
\14\ U.S. Const. art. II, Sec. 3.
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Accordingly, because our regulations do not accord with the single,
best meaning of the statutory text, we propose to rescind the
regulatory definition of ``harm'' and rest on the statutory definition
of ``take.'' This revision would be prospective only and would not
affect permits that have been granted as of the date the regulation
becomes final.
No Reliance in Unlawful Regulations
In proposing to rescind our regulatory definitions of harm, we are
considering whether there are legitimate reliance interests on the
regulations under reexamination. Dep't of Homeland Sec. v. Regents of
the Univ. of California, 591
[[Page 16104]]
U.S. 1, 30 (2020). However, because it is the President's duty to see
that the laws are faithfully executed, in all but the most unusual
cases, we believe that reliance interests likely will be outweighed by
the constitutional interest in repealing regulations that do not
reflect the best reading of the statute.\15\
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\15\ See Regents, 591 U.S. at 30-32.
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We are aware that there are parties who are likely to provide
comments concerning their reliance interests on environmental and
aesthetic grounds, even as we are aware there are property owners and
regulated entities who are likely to provide comments regarding
interests in not being subject to a regime Congress may never have
authorized. We therefore solicit public comment on reliance interests.
Regulatory Planning and Review--Executive Orders 12866 and 14192
This proposed rule has been determined to be significant for
purposes of Executive Order 12866. This proposed rule, if finalized as
proposed, is expected to be an E.O. 14192 deregulatory action.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
No regulatory flexibility analysis is required if the head of an agency
or an appropriate designee certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Here, if adopted as proposed, this rulemaking may have a significant
economic impact on a substantial number of small entities. The
following discussion explains our rationale.
This proposed rule seeks comment on rescission of the definition of
``harm'' for both NMFS and FWS. In the proposed rule seeking to codify
the redefinition of the FWS regulations defining harm, the Department
of the Interior noted its determination that the rule would not have a
significant economic impact on a substantial number of small entities
under the RFA. See 46 FR 29490 (June 2, 1981). As for NMFS, in the
preamble to the proposed rule that proposed to codify NMFS's then-
current interpretation of ``harm,'' the Assistant General Counsel for
Legislation and Regulation of the Department of Commerce certified that
the proposed rule, if adopted, would not have a significant economic
impact on a substantial number of small entities because ``NMFS is not
implementing a new policy or definition. NFMS [sic] definition of harm
would remain the same whether or not it is codified. . . .'' 63 FR
24148 at 24149-24150 (May 1, 1998).
In response to public comments at that time, NMFS developed a final
regulatory flexibility analysis that analyzed the rule's potential
effects on agriculture, residential or commercial construction, mining,
and municipal water, sewer, and waste management. NMFS concluded that
the analysis ``indicates that this regulation may pose some incremental
cost for some small entities; however it remains uncertain whether
these costs constitute a significant economic impact on a substantial
number of small entities.''
Because this proposed rule would rescind that definition of
``harm'' for both NMFS and FWS, it is expected that incremental costs
on small entities imposed by that prior definition will be relieved,
and this rulemaking, if adopted as proposed, may have a significant
economic impact by reducing burden on a substantial number of small
entities relative to the previous rulemaking. As a result, an initial
regulatory flexibility analysis has been prepared and is provided as
follows.
The reasons for this deregulatory action are set out above, along
with a succinct statement of the objectives and legal basis for the
proposed rule. See 5 U.S.C. 603(b)(1)-(2). An estimate of the
potentially large number of small entities that could be impacted by
this deregulatory action is unknown at this time because the 1981
rulemaking record does not contain that information and because the
proposed rule will impact any small entity complying with the
Endangered Species Act. See 5 U.S.C. 603(b)(3). As part of the public
comment process and for its final regulatory flexibility analysis under
5 U.S.C. 604, the Services will undertake that estimation process in
consultation with the Office of Advocacy. This deregulatory action
would not impose projected reporting, recordkeeping, or other
compliance activities. See 5 U.S.C. 603(b)(4). No other agency actions
duplicate, overlap, or conflict with this deregulatory action. See 5
U.S.C. 603(b)(5). Finally, by eliminating a legally incorrect
definition of ``harm'' under the Endangered Species Act, this proposed
rule, if adopted, would be deregulatory and would benefit small
entities impacted by the Endangered Species Act. The alternative to
this proposed deregulatory action is the status quo, which does not
need to be analyzed. See 5 U.S.C. 603(c).
National Environmental Policy Act
We are analyzing this proposed rule in accordance with the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321 et seq.), the Department
of the Interior regulations on Implementation of the National
Environmental Policy Act (43 CFR 46.10-46.450), the Department of the
Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and
the NOAA Companion Manual (CM), ``Policy and Procedures for Compliance
with the National Environmental Policy Act and Related Authorities''
(effective January 13, 2017).
We are proposing to undertake this revision because we believe it
is compelled by the best reading of the statutory text. As such, we
believe that ``the proposed agency action is a nondiscretionary action
with respect to which such agency does not have authority to take
environmental factors into consideration in determining whether to take
the proposed action'' (42 U.S.C. 4336(a)(4); see Dep't of Transp. v.
Pub. Citizen, 541 U.S. 752, 766-70 (2004)). In the alternative, we
believe that the proposed regulation changes are within a category of
actions that the Department of the Interior and NOAA have each found
have no significant individual or cumulative effect on the quality of
the human environment and are therefore excluded from the requirement
to prepare an environmental assessment or an environmental impact
statement, specifically, the Department of the Interior categorical
exclusion for ``Policies, directives, regulations, and guidelines: that
are of an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case'' (43
CFR 46.210(i)), and the NOAA categorical exclusion for ``[P]reparation
of policy directives, rules, regulations, and guidelines of an
administrative, financial, legal, technical, or procedural nature, or
for which the environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will be
subject later to the NEPA
[[Page 16105]]
process, either collectively or on a case-by-case basis'' (CM Appendix
E, G7).
In this regard, we note that the two recent proposed and final
rulemakings addressing a regulatory definition of ``habitat'' under the
Endangered Species Act found that these categorical exclusions applied.
See Endangered and Threatened Wildlife and Plants; Regulations for
Listing Endangered and Threatened Species and Designating Critical
Habitat, 87 FR 37757, June 24, 2022; Endangered and Threatened Wildlife
and Plants; Regulations for Listing Endangered and Threatened Species
and Designating Critical Habitat, 86 FR 59353, October 27, 2021;
Endangered and Threatened Wildlife and Plants; Regulations for Listing
Endangered and Threatened Species and Designating Critical Habitat, 85
FR 81411, December 16, 2020); Endangered and Threatened Wildlife and
Plants; Regulations for Listing Endangered and Threatened Species and
Designating Critical Habitat, 85 FR 47333, August 5, 2020).
We are continuing to consider the extent to which our proposed
regulation changes may have a significant effect on the human
environment or fall within one of the categorical exclusions for
actions that have no individual or cumulative significant effect on the
quality of the human environment. We invite the public to comment on
these or any other aspects of the NEPA analyses of these revisions. We
will complete our analysis in accordance with NEPA and applicable
regulations before finalizing this proposed rule.
Endangered Species Act
In developing this proposed rule, the Services are acting in their
unique statutory role as administrators of the Act and are engaged in a
legal exercise of interpreting the standards of the Act. The Services'
promulgation of rules that govern their implementation of the Act is
not an action that is in itself subject to the Act's provisions,
including section 7(a)(2). The Services have a historical practice of
issuing their general implementing regulations under the ESA without
undertaking section 7 consultation. Given the plain language,
structure, and purposes of the ESA, we find that Congress never
intended to place a consultation obligation on the Services'
promulgation of implementing regulations under the Act. In contrast to
actions in which we have acted principally as an ``action agency'' in
implementing the Act to propose or take a specific action (e.g.,
issuance of section 10 permits and actions under statutory authorities
other than the ESA), here the Services are carrying out an action that
is at the very core of their unique statutory role as administrators--
promulgating general implementing regulations or revisions to those
regulations that interpret the terms and standards of the Act.
Authority
We issue this proposed rule under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Reporting and recordkeeping requirements,
Transportation.
Proposed Regulation Promulgation
For the reasons set out in the preamble, we hereby propose to amend
part 17 of chapter I and part 222 of chapter II, title 50 of the Code
of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
Subpart A--Introduction and General Provisions
Sec. 17.3 [Amended]
0
2. Amend Sec. 17.3 by removing the definition for ``Harm''.
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
0
3. The authority citation for part 222 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.
Section 222.403 also issued under 16 U.S.C. 1361 et seq.
Subpart A--Introduction and General Provisions
Sec. 222.102 [Amended]
0
4. Amend Sec. 222.102 by removing the definition for ``Harm''.
Maureen Foster,
Chief of Staff, Exercising the Delegated Authority of the Assistant
Secretary for Fish and Wildlife and Parks, Department of the Interior.
Laura Grimm,
Chief of Staff, Exercising the Delegated Authority of the Under
Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator,
Department of Commerce.
[FR Doc. 2025-06746 Filed 4-16-25; 8:45 am]
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