The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments refer to a specific portion of the proposed special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (14 CFR) 11.35, the FAA will post all comments received without change to www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about these special conditions.

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to these special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and the indicated comments will not be placed in the public docket of these proposed special conditions. Send submissions containing CBI to the individual listed in the FOR FURTHER INFORMATION CONTACT section above. Comments the FAA receives, which are not specifically designated as CBI, will be placed in the public docket for these proposed special conditions.

On April 10, 2023, Skyryse applied for a supplemental type certificate (STC) for the installation of novel control inputs and a fly-by-wire system in the Model R66 helicopter. The Robinson Model R66 helicopter, currently approved under Type Certificate No. R00015LA, is a single-engine, five passenger helicopter with a maximum takeoff weight of 2,700 pounds.

Under the provisions of 14 CFR 21.101, Skyryse must show that the changes to the Robinson Model R66 helicopter continue to comply with the applicable provisions of the regulations specified in Type Certificate No. R00015LA or with the regulations in effect on the date of the application for the change, except for any earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 27) do not contain adequate or appropriate safety standards for the Robinson Model R66 helicopter because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Robinson Model R66 helicopter must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with title 14, Code of Federal Regulations (14 CFR) § 11.38, and they become part of the type certification basis under § 21.101.

The Robinson Model R66 helicopter will incorporate the following novel or unusual design feature:

A four-axis full authority digital FBW FCS that provides aircraft control through pilot control inputs or coupled autopilot modes in addition to degraded modes.

The Skyryse Robinson Model R66 helicopter is configured with a FBW FCS, which needs to be evaluated for acceptable static stability characteristics.

For conventional rotorcraft having mechanical linkages from the primary cockpit flight controls to the rotor, static longitudinal stability means that a pull displacement or force on the cyclic will result in a reduction of speed relative to the trim speed, and that a push displacement or force will result in a higher speed relative to the trim speed. Acceptable longitudinal stability is necessary for the following reasons:

• Airspeed change cues are provided to the pilot through increased and decreased forces on the controller.

• Short periods of unattended control of the rotorcraft do not result in significant changes in attitude, airspeed, or load factor.

• A predictable pitch response is provided to the pilot.

• An acceptable level of pilot workload, to attain and maintain trim speed and attitude, is provided to the pilot.

• Longitudinal stability provides gust stability.

The pitch control movement of the cyclic for the FBW FCS is an attitude command, which results in a rotor movement to attain the commanded pitch attitude. The flight path commanded by the initial cyclic input will remain stick-free until the pilot gives another command. This control function is applied during “normal” control laws within the approved flight envelope.

Sections 27.171, 27.173, and 27.175 establish the minimum requirements for static longitudinal stability for visual flight rules (VFR), and appendix B of part 27, sections IV and VII, “Airworthiness Criteria for Helicopter Instrument Flight”, provides the airworthiness criteria for helicopter instrument flight. However, these requirements are inadequate for the modified Skyryse Robinson R-66 helicopter because the longitudinal control laws may permit neutral or negative static stability, rather than requiring positive static stability throughout the approved flight envelope. As detailed in § 27.173(b) and considered in Advisory Circular (AC) 27.173(A), “Static Longitudinal Stability”, which is contained within AC 27-1B, “Certification of Normal Category Rotorcraft”, and the positive control force stability requirements in appendix B to part 27, sections IV and VII, the slope of the control position (cyclic) versus the airspeed curve must be positive ( i.e., provide positive static stability) throughout the full range of altitude for which certification is requested with the throttle and collective pitch held constant.

The design of the Skyryse FBW FCS is such that the static stability requirements identified under part 27 and appendix B, section IV, may not be met for all flight conditions.

The proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these proposed special conditions are applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only a certain novel or unusual design feature on the Model R66 of helicopters. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the helicopter.

The authority citation for these special conditions is as follows:

Accordingly, the FAA proposes the following special conditions as part of the type certification basis for Robinson Model R66 helicopters, as modified by Skyryse.

In lieu of the requirements of §§ 27.173(b) and 27.175 for VFR operations, and the airworthiness criteria for helicopter instrument flight requirements in part 27, appendix B, sections IV and VII, the following special conditions apply:

The rotorcraft must be shown to have suitable longitudinal stability in any condition normally encountered in service, including the effects of atmospheric disturbance. The showing of suitable static longitudinal stability must be based primarily on a positive control movement (positive control sense of motion as referenced in AC 27.173A), in addition to rotorcraft handling qualities by assessing pilot workload, cues, and pilot compensation for specific test procedures during the flight test evaluation.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2025-5028; Project Identifier MCAI-2025-00434-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Promita Dey, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 316-946-4106; email: promita.dey@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2025-0065, dated March 27, 2025 (EASA AD 2025-0065) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A320-251N, -252N, -253N, -271N, -272N, and -273N airplanes. The MCAI states a deviation to the manufacturing process was detected during a review of the cold working process in the assembly line. This deviation could adversely affect the fatigue life of the angle fitting connection to side panel skin between FR 35 and FR 36 at stringer 30 on both LH and RH sides. This could lead to crack initiation and propagation which could possibly result in reduced structural integrity of the airplane. The FAA is proposing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2025-5028.

EASA AD 2025-0065 specifies procedures for special detailed inspections of the holes on the angle fitting connection to the side panel skin between FR 35 and FR 36 at stringer 30 on both the LH and RH side for discrepancies (fastener holes not in nominal condition), and applicable corrective actions. Corrective actions include a rototest inspection of the affected holes for cracking, repair, and contacting the manufacturer for additional instructions. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2025-0065 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2025-0065 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2025-0065 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2025-0065 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2025-0065. Material required by EASA AD 2025-0065 for compliance will be available at regulations.gov under Docket No. FAA-2025-5028 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 224 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class D and Class E airspace at the affected airports to support IFR operations.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov as described in the system of records notice (DOT/ALL-14FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

Class D and Class E airspace relevant to this action are published in paragraphs 5000, 6002, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These updates would be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

The FAA is proposing an amendment to 14 CFR part 71 that would modify the Class D, Class E surface area, and Class E airspace extending upward from 700 ft. above the surface at Mansfield, Ohio; and the Class E airspace extending upward from 700 ft. above the surface at Ashland, Ohio, and Bucyrus, Ohio, due to airspace reviews conducted as part of the decommissioning of the Mansfield VOR as part of the VOR MON Program.

For the Mansfield Lahm Regional Airport, Mansfield, OH, Class D airspace, the proposal would: (1) increase the radius from 4.4 miles to 5.4 miles from the airport; (2) update the name of the airport from Mansfield Lahm Municipal Airport to Mansfield Lahm Regional Airport to coincide with the FAA's aeronautical database; and (3) change the outdated term of “Notice to Air Missions” to “Notice to Airmen.”

For the Mansfield Lahm Regional Airport Class E surface area, the proposal would: (1) increase the radius from 4.4 miles to 5.4 miles; and (2) change the outdated term of “Notice to Air Missions” to “Notice to Airmen.”

For the Ashland County Airport, Ashland, OH, Class E airspace extending upward from 700 ft. above the surface, the proposal would: (1) increase the radius from 6.3 miles to 6.9 miles from the airport; and (2) remove the exclusion area as it is not required.

For the University Hospitals Samaritan Medical Center Heliport, Ashland, OH, Class E airspace extending upward from 700 ft. above the surface, the proposal would: (1) increase the radius from 6 miles to 6.7 miles; (2) replace the point in space coordinates with the heliport reference point; and (3) update the name of the heliport from Samaritan Hospital Heliport to University Hospitals Samaritan Medical Center Heliport to coincide with the FAA's aeronautical database.

For the Port Bucyrus/Crawford County Airport, Bucyrus, OH, Class E airspace extending upward from 700 ft. above the surface, the proposal would: (1) increase the radius from 6.3 miles to 6.8 miles; (2) remove the city associated with the airport in the airspace legal description to comply with changes to FAA Order JO 7400.2R, Procedures for Handling Airspace Matters; and (3) update the name of the airport from Port Bucyrus-Crawford County Airport to Port Bucyrus/Crawford County Airport and update the geographic coordinates to coincide with the FAA's aeronautical database.

For the Mansfield Lahm Regional Airport Class E airspace extending upward from 700 ft. above the surface, the proposal would: (1) increase the radius from 6.9 miles to 7.9 miles; (2) amend the extension northeast of the airport to within 2 miles each side of the 047° bearing from the Mansfield Lahm Regional Airport extending from the 7.9-mile (previously 6.9-mile) radius from the airport to 8.9 miles northeast of the airport; (3) remove the Mansfield VORTAC and all associated extensions from the legal description; (4) add an extension within 4 miles each side of the 137° bearing from the Mansfield Lahm RGNL: RWY 32-LOC extending from the 7.9-mile radius from the Mansfield Lahm Regional Airport to 8.9 miles southeast of the airport; (5) add an extension within 4 miles each side of the 136° bearing from the MANNS NDB extending from the 7.9-mile radius of the Mansfield Lahm Regional Airport to 15 miles southeast of the airport; (6) add an extension 4 miles each side of the 137° bearing from the Mansfield Lahm Regional Airport extending from the 7.9-mile radius from the airport to 11.2 miles southeast of the airport; and (7) add an extension within 4 miles each side of the 317° bearing from the Mansfield Lahm Regional Airport extending from the 7.9-mile radius of the airport to 11.6 miles northwest of the airport.

For the Galion Municipal Airport, Galion, OH, Class E airspace extending upward from 700 ft. above the surface contained within the Mansfield, OH, airspace legal description, the proposal would increase the radius from 6.3 miles to 7.9 miles.

For the Shelby Community Airport, Shelby, OH, Class E airspace extending upward from 700 ft. above the surface contained within the Mansfield, OH, airspace legal description, the proposal would increase the radius from 6.3 miles to 7 miles.

And for the Willard Airport, Willard, OH, Class E airspace extending upward from 700 ft. above the surface contained within the Mansfield, OH, airspace legal description, the proposal would increase the radius from 6.3 miles to 6.5 miles.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace at the affected airport to support IFR operations.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov as described in the system of records notice (DOT/ALL-14FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

Class E airspace is published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These updates would be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

The FAA is proposing an amendment to 14 CFR part 71 that would modify the Class E airspace extending upward from 700 ft. above the surface at Beeville, Texas, due to an airspace review conducted as part of the decommissioning of the Three Rivers VOR as part of the VOR MON Program.

For the Beeville Municipal Airport, Beeville, TX, Class E airspace extending upward from 700 ft. above the surface, the proposal would: (1) increase the radius from 6.6 miles to 7.1 miles from the airport; (2) remove the Beeville NDB and associated extension as they are no longer required; and (3) update the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

In a document published in the Federal Register on January 3, 2025, VA proposed to exempt Whole Health well-being services from the copayment requirements for inpatient hospital care and outpatient medical care to further encourage veteran utilization of these services. Whole Health well-being services, which consist of Whole Health education and skill-building programs and complementary and integrative health well-being services, are provided to veterans within the VA Whole Health System of Care.

VA is withdrawing the proposed rule due to ongoing assessments of agency needs, priorities, and objectives. VA appreciates the public comments submitted and continues to consider the best means of addressing some or all of the issues covered in the proposed rule. If, in the future, VA decides it is appropriate to issue regulations on this topic, VA will do so through a new notice of proposed rulemaking, subject to the requirements of the Administrative Procedure Act, 5 U.S.C. 551, et seq.

Douglas A. Collins, Secretary of Veterans Affairs, approved this document on October 1, 2025, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

EPA is proposing to approve, as a revision to the Indiana SIP, the 2008 ozone NAAQS maintenance plan for the Indiana portion of the Cincinnati, Ohio-Kentucky-Indiana area. The Cincinnati area includes Lawrenceburg Township in Dearborn County in Indiana; Butler, Clermont, Clinton, Hamilton, and Warren Counties in Ohio; and parts of Boone, Campbell, and Kenton Counties in Kentucky. The maintenance plan is designed to keep the Cincinnati area in attainment of the 2008 ozone NAAQS through 2037.

Ground-level ozone is formed when nitrogen oxides (NO X ) and volatile organic compounds (VOC) react in the presence of sunlight. These two pollutants are referred to as ozone precursors. Scientific evidence indicates that adverse public health effects occur following exposure to ozone.

On March 12, 2008, under section 109 of the CAA, EPA promulgated a revised primary and secondary 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.075 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. See 40 CFR 50.15 and appendix P to 40 CFR part 50.

Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On May 21, 2012 (77 FR 30088), EPA designated areas for the 2008 ozone NAAQS, including the Cincinnati, Ohio-Kentucky-Indiana area as nonattainment. These designations became effective on July 20, 2012. Under the CAA, States are also required to adopt and submit SIPs to implement, maintain, and enforce the NAAQS in designated nonattainment areas and throughout the State.

When a nonattainment area has three years of complete, certified air quality data that has been determined to attain the 2008 ozone NAAQS, and the area has met other required criteria described in section 107(d)(3)(E) of the CAA, the State can submit to EPA a request to be redesignated to attainment, referred to as a “maintenance area.”  1 One of the criteria for redesignation is to have an approved maintenance plan under section 175A of the CAA. The maintenance plan must demonstrate that the area will continue to maintain the standard for the period extending 10 years after redesignation, and it must contain such additional measures as necessary to ensure maintenance and such contingency provisions as necessary to ensure that violations of the standard will be promptly corrected. At the end of the eighth year after the effective date of the redesignation, the State must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years. See CAA section 175A.

EPA has published long-standing guidance for States on developing maintenance plans. 2 The Calcagni Memorandum provides that States may generally demonstrate maintenance by either performing air quality modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). See Calcagni Memorandum at 9.

On February 23, 2016, IDEM submitted a request to EPA to redesignate the Indiana portion of the Cincinnati nonattainment area to attainment for the 2008 ozone NAAQS. This submittal included a plan to maintain the 2008 ozone NAAQS in the Cincinnati area through 2030 as a revision to the Indiana SIP. EPA approved the Cincinnati maintenance plan and the State's request to redesignate the Indiana portion of the area to attainment for the 2008 ozone NAAQS on April 7, 2017 (82 FR 16940).

Under section 175A(b) of the CAA, States must submit a revision to the first maintenance plan eight years after redesignation to provide for maintenance of the NAAQS for 10 additional years following the end of the first 10-year period. IDEM submitted a second maintenance plan on April 1, 2025, and supplemented the submission on October 8, 2025. The second maintenance plan shows attainment of the 2008 ozone NAAQS for Cincinnati through 2037, i.e., through the end of the full 20-year maintenance period for the area.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the maintenance plan must demonstrate continued attainment of the NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment of the NAAQS will continue for an additional 10 years beyond the initial 10-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, as EPA determines necessary, to ensure prompt correction of the future NAAQS violation.

The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five elements: (1) an attainment emission inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan.

On April 1, 2025, IDEM submitted, as a SIP revision, a plan to provide for maintenance of the 2008 ozone standard in the Indiana portion of the Cincinnati area through 2037, more than 20 years after the effective date of the redesignation to attainment. On October 8, 2025, IDEM submitted a supplement to the April 1 SIP revision submittal, revising the emission inventories. As discussed below, EPA proposes to find that IDEM's second maintenance plan includes the necessary components and to approve the maintenance plan as a revision to the Indiana SIP.

The CAA section 175A maintenance plan approved by EPA for the first 10-year period included an attainment inventory for the Cincinnati area that reflected typical summer day VOC and NO X emissions in 2014. In addition, because the area continued to monitor attainment of the 2008 ozone NAAQS in 2016, 2016 is an appropriate year to use for an attainment year inventory. For the Cincinnati attainment inventory, Ohio and Indiana emissions of area, nonroad, and point sources, and Kentucky emissions of area and nonroad sources were based upon the 2016v2 Emissions Modeling Platform provided by EPA. 3 Kentucky point source emissions (electric generating unit (EGU) and non-EGU) were derived from the Kentucky emissions reporting system, provided in tons per year (tpy), and based upon the actual locations of the sources within the partial areas of Kentucky counties in the maintenance area. Kentucky point source emissions were converted to tons per day (tpd) by multiplying by the ratio of average July day emissions to annual emissions for the point sector from the 2016v2 Emissions Modeling Platform. On-road mobile source emissions for the Cincinnati area were developed in conjunction with the Ohio-Kentucky-Indiana Regional Council of Governments and were calculated from emission factors produced by EPA's 2023 Motor Vehicle Emission Simulator (MOVES4)  4 and data extracted from the region's travel demand model. All sectors of Kentucky emissions were multiplied by fractions representing the maintenance portions of the Kentucky counties. On-road mobile source emissions for Indiana were based on the partial maintenance area in Dearborn County, and remaining source sectors were based on the entire county. Attainment inventories for the Cincinnati area are in Tables 1 and 2.

The purposes of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. (the Act)), are to provide a means to conserve the ecosystems upon which listed species depend, develop a program for the conservation of listed species, and achieve the purposes of certain treaties and conventions (16 U.S.C. 1531(b)). Moreover, it is the policy of Congress that the Federal Government will seek to conserve endangered and threatened species and use its authorities to further the purposes of the Act (16 U.S.C. 1531(c)(1)). This proposed rulemaking action pertains to section 4 of the Act. Section 4 of the Act (16 U.S.C. 1533) and the regulations in title 50 of the Code of Federal Regulations (CFR) set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species.

Section 9 of the Act provides a specific list of prohibitions for endangered species that are applicable automatically at the time of listing, but does not provide these same or comparable prohibitions automatically to threatened species. Instead, section 4(d) of the Act requires that whenever a species is listed as a threatened species the Secretary shall issue regulations that are necessary and advisable to provide for the conservation of the species and also may by regulation prohibit with respect to any threatened species any act prohibited under section 9 for an endangered species; these are referred to as “4(d) rules.” Congress delegated to the Secretary the authority to determine what protections each threatened species should receive. Early in the administration of the Act, the U.S. Fish and Wildlife Service (“the Service”) promulgated “blanket rules,” at 50 CFR 17.31 and 17.71, respectively. Pursuant to these blanket rules, as soon as a species was listed as threatened, nearly all the section 9 prohibitions that apply to endangered species would automatically apply to threatened species, unless the Service issued an alternative rule for that species ( i.e., a species-specific rule). In those instances when we issued a species-specific rule for a species, that species-specific 4(d) rule contained the protective regulations for that species. On August 27, 2019, we issued a final rule that revised 50 CFR 17.31 and 17.71 (84 FR 44753; hereafter, “the 2019 4(d) rule”) and removed the “blanket rule” option for applying section 9 prohibitions to species newly listed as threatened after the effective date of those regulatory revisions (September 26, 2019). The “blanket rule” protections continued to apply to threatened species without an associated species-specific rule that were listed prior to September 26, 2019. Under the 2019 4(d) rule, we applied protections to a species newly listed as threatened only through issuance of a species-specific rule setting out the protective regulations that are necessary and advisable for that species. On April 5, 2024, we reinstated the “blanket rule” option at 50 CFR 17.31 and 17.71 for newly listed threatened species and finalized several other revisions to 50 CFR part 17 (89 FR 23919; hereafter, “the 2024 rule”). Those 2024 revised regulations became effective on May 6, 2024.

The 2024 rule is subject to pending litigation in Rocky Mountain Elk Foundation et al. v. U.S. Fish and Wildlife Serv. et al.; 2:25-cv-00029-KLD (D. Mont.) and American Farm Bureau Federation et al. v. U.S. Fish and Wildlife Serv. et al.; 1:25-cv-00947 (D.D.C.). Prior litigation over the 2019 4(d) rule was not resolved on the merits; rather, on November 16, 2022, the United States District Court for the Northern District of California issued orders remanding the 2019 4(d) rule to the Service without vacating it, as the Service had voluntarily asked the Court to do. Soon after, the Service developed the 2024 rule.

Executive Order (E.O.) 14154, “Unleashing American Energy,” issued January 20, 2025, directed all departments and agencies to review agency actions that impose an undue burden on the identification, development, or use of domestic energy resources, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with this national objective. To administer provisions of E.O. 14154, the Secretary of the Interior subsequently issued Secretary's Order (S.O.) 3418, which directed Assistant Secretaries to take steps, as appropriate, to suspend, revise, or rescind multiple actions that had been finalized under the prior Administration. The S.O. specifically referenced taking these steps with respect to the 2024 rule. E.O. 14219, “Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative,” issued February 19, 2025, also directs all departments and agencies to review and rescind unlawful regulations that are “based on anything other than the best reading of the underlying statutory authority.” See also Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

The Secretaries of the Interior and Commerce share responsibilities for administering most of the provisions of the Act. Generally, marine species and some anadromous (sea-run) species are under the jurisdiction of the Secretary of Commerce, and all other species are under the jurisdiction of the Secretary of the Interior. Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of the Service and by the Secretary of Commerce to the Assistant Administrator for the National Marine Fisheries Service (NMFS). The Service and NMFS (jointly “the Services”) separately implementadministration section 4(d) for species within their respective jurisdictions. When we amended our section 4(d) regulations in 2019, and again in 2024, those amendments affected only species under Service jurisdiction. This proposal, if finalized, would similarly affect only species under Service jurisdiction.

We propose revisions to the regulations in 50 CFR part 17, subparts D and G. Section 4(d) of the Act gives the Secretary the authority and discretion to develop and revise regulations for protecting threatened species. We propose removing the “blanket rule” option from 50 CFR 17.31 and 17.71 for threatened species for two reasons. First, the Service has considered that our existing regulations do not match the “single, best meaning” of the statute. Loper Bright, 603 U.S. at 400. The statutory text, structure, and context make clear that Congress intended for the Service to determine what protections are needed for threatened species on a species-by-species basis. While the Service in the past has stated that either approach (using “blanket rules” or requiring promulgation of species-specific rules for every species listed as threatened species) is consistent with a permissible reading of Section 4(d) of the Act, and at least one court  1 has upheld as “reasonable” the “blanket rule” approach under the Chevron doctrine of statutory interpretation, the Loper Bright decision has since overturned the Chevron decision and insisted on only the single “best” reading of an agency's statutory authority.

Second, and separately, we have considered that removing the “blanket rule” option from 50 CFR 17.31 and 17.71 is a superior choice from a policy perspective. As the Service noted in its 2019 Rule, “[w]here we have developed species-specific 4(d) rules, we have seen many benefits, including removing redundant permitting requirements, facilitating implementation of beneficial conservation actions, and making better use of our limited personnel and fiscal resources by focusing prohibitions on the stressors contributing to the threatened status of the species.” 84 FR 44753 at 44754, August 27, 2019. This tailored approach reduces burdens on the Service and regulated entities alike and allows for the Service to better protect threatened species. This approach also brings the Service in line with the Department of Commerce's longstanding practice of developing species-specific 4(d) rules.

Removing the “blanket rule” option would result in no immediate changes to protections for currently listed threatened species that receive “blanket rule” protections. For every species newly listed as a threatened species, and those reclassified in the future, we would comply with section 4(d) of the Act and issue the protective regulations that are necessary and advisable to provide for the conservation of that species. When proposing to protect a threatened species with a species-specific rule, the public would be afforded an opportunity to provide public comment on the proposed regulation.

We also propose new regulatory text at 50 CFR 17.31(d) and 17.71(d) to explain that, going forward, whenever we propose a species-specific 4(d) rule, we will ensure that each rule includea necessary and advisable determination (including consideration of conservation and economic impacts) and will seek public comment on that determination. As contemplated by the statute and reasonably interpreted from existing language, we include this additional regulatory text to help clarify the existing statutory authority and to address Kansas Natural Resources Coalition, et al. v. USFWS, et al. No. 23-CV-00159-DC-RCG, 2025 WL 1367834 (W.D. Tex. Mar. 29, 2025), in which the court interpreted section 4(d) and found that the Service failed to conduct the proper “necessary and advisable” considerations in issuing its 4(d) rule by not evaluating both conservation and economic impacts. We intend to finalize species-specific rules concurrent with the final listing or reclassification determination. Notwithstanding our intention, we have discretion to revise or promulgate species-specific rules at any time after the final listing or reclassification determination. However, we specifically request comments on our stated intention of finalizing species-specific rules concurrent with final listing rules, including whether we should include any requirement in the regulatory text to do so, such as setting a timeframe for concurrently finalizing species-specific rules for newly listed or reclassified threatened species.

If this proposal is finalized, the final regulations would not automatically require the reevaluation of any previous use of § 17.31(a) or § 17.71(a) for species without species-specific rules. But we have discretion to revise or promulgate species-specific rules (including for species currently protected under a “blanket rule”) at any time if it is necessary and advisable for a threatened species.

This proposed rule is one of four proposed rules publishing in today's Federal Register that propose changes to the regulations that implement the Act. Two of these proposed rules are joint between the Services, while two (including this document) are specific to the U.S. Fish and Wildlife Service.

We are seeking comments from all interested parties on the specific revisions we are proposing, as well as on any of our analyses or preliminary conclusions in the “Required Determinations” section of this document. We will consider all relevant information prior to issuing a final rule. Depending on the comments received, we may change the proposed regulations based upon those comments.

You may submit your comments concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES . Comments sent by any other method, or to any other address or individual, may not be considered. 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 hand-delivered comments that we do not receive by, or mailed comments that are not postmarked by, the date specified in DATES .

Comments and materials we receive will be posted and available for public inspection on https://www.regulations.gov . This generally means that we will post any personal information you provide us. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this proposed rule is significant and has reviewed it.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), 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 RFA to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We certify that, if adopted as proposed, this proposed rule would not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

This rulemaking proposes to revise the Service's regulations protecting endangered and threatened species under the Act.

The Service is the only entity that is directly affected by this proposed regulation change at 50 CFR part 17 because we are the only entity that is affected by changes to this section of the Code of Federal Regulations. Since the only potential entities directly affected by this proposed regulation change are not small entities, including any small businesses, small organizations, or small governments, we certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(a) On the basis of information contained above in the Regulatory Flexibility Act section, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this proposed rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A small government agency plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

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

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. This proposed rule would not directly affect private property, nor would it cause a physical or regulatory taking. It would not result in a physical taking because it would not effectively compel a property owner to suffer a physical invasion of property. Further, the proposed rule would not result in a regulatory taking because it would not deny all economically beneficial or productive use of the land or aquatic resources, it would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species), and it would not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with E.O. 13132 (Federalism), we have considered whether this proposed rule would have significant federalism effects and have determined that a federalism summary impact statement is not required. This proposed rule pertains only to the Service's protective regulations for endangered and threatened species promulgated under the Act and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.

This proposed rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988 (Civil Justice Reform). This proposed rule would revise the Service's regulations for protecting species pursuant to the Act.

In accordance with E.O. 13175 (Consultation and Coordination with Indian Tribal Governments) and the Department of the Interior's manual at 512 DM 2, we are considering possible effects of this proposed rule on federally recognized Indian Tribes. The Service has reached a preliminary conclusion that the proposed changes to these regulations do not directly affect specific species or Tribal lands. This proposed rule would revise regulations for protecting threatened species pursuant to the Act. These proposed regulations would 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.

We are considering the possible effects of this proposed rule on federally recognized Indian Tribes. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we administer the provisions of the Act. See Secretary's Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997).

This proposed rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (45 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with permitting and reporting requirements and assigned OMB Control Number 1018-0094 (expires 04/30/2027). 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.

We are analyzing this proposed rule in accordance with the criteria of 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 part 46), and the Department of the Interior Manual (516 DM 1).

We invite the public to comment on the extent to which this proposed rule may have a significant impact on the human environment or fall within one of the categorical exclusions for actions that have no reasonably foreseeable effects on the quality of the human environment that would require further analysis under NEPA. We will complete our analysis, in compliance with NEPA, before finalizing these proposed regulations.

In developing this proposed rule, the FWS is acting in our unique statutory role as administrator of the Act and is engaged in a legal exercise of interpreting the standards of the Act. The FWS's administration of the Act is not in itself subject to the Act's provisions, including section 7(a)(2). The FWS has a historical practice of issuing its general regulations under the ESA without undertaking section 7 consultation. This practice accords with the plain language, structure, and purposes of the ESA, which does not place a consultation obligation on the FWS's administration of the Act. Although the FWS consults on actions through intra-agency consultations where appropriate ( e.g., issuance of section 10 permits and actions under statutory authorities other than the ESA), in those instances the FWS is acting principally as an “action agency” implementing provisions of the Act or other statutes. Here, by contrast, the FWS is acting solely in our role as administrator of the ESA in interpreting the Act's provisions; we are also not implementing the Act to propose or take a specific action. The FWS is carrying out the most fundamental exercise of our role as administrator of the ESA, and the Act cannot reasonably be construed as requiring the FWS to “consult” with ourselves under Section 7(a)(2) in such cases.

E.O. 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 (or any successor order); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. The proposed revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

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. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you believe are unclearly written, identify any sections or sentences that you believe are too long, and identify the sections where you believe lists or tables would be useful.

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

Accordingly, we hereby propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The Endangered Species Act of 1973, as amended (hereafter referred to as Act or ESA; 16 U.S.C. 1531 et seq. ), states that the purposes of the Act are to provide a means to conserve the ecosystems upon which endangered and threatened species (listed species) depend, to develop a program for the conservation of listed species, and to achieve the purposes of certain treaties and conventions (16 U.S.C. 1531(b)). Moreover, the Act states that it is the policy of Congress that the Federal Government shall seek to conserve endangered species and threatened species and shall use its authorities to further the purposes of the Act (16 U.S.C. 1531(c)(1)).

The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing most of the provisions of the Act. Generally, marine and anadromous species are under the jurisdiction of the Secretary of Commerce, and all other species are under the jurisdiction of the Secretary of the Interior. Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of the FWS and by the Secretary of Commerce to the Assistant Administrator for the National Marine Fisheries Service (NMFS) (collectively, the Services). Together, the Services administer the Act via joint regulations in chapter IV of title 50 of the Code of Federal Regulations (CFR). In addition, each of the Services also has regulations specific to its own administration of the Act (located at 50 CFR part 17 for FWS and at 50 CFR parts 222 through 226 for NMFS). Because this rulemaking, if finalized, would only apply to the FWS, the regulations proposed in this rulemaking would not require NMFS to change its processes for consideration of exclusions under section 4(b)(2) of the Act. Since this rulemaking is solely applicable to the FWS, when we refer to the Secretary, we mean the Secretary of the Interior.

The regulations we propose in this rule provide criteria or otherwise clarify the processes by which the FWS will implement various statutory requirements set forth in section 4 of the Act. This proposed rule is intended to provide the public with a clear, transparent explanation of how we are proposing to revise the ESA regulations in 50 CFR part 17 and the opportunity to comment on these proposed revisions. We interpret our authorities under the statutory scheme consistent with the best reading of the Act as a whole. These regulatory guidelines are based on our expertise in evaluating and protecting species, as well as in employing traditional tools of statutory interpretation that the courts have outlined.

One of the tools that the Act provides to conserve species is the designation of critical habitat. The purpose of critical habitat is to identify the areas that are essential to the listed species' conservation. When the Services determine that a species warrants listing, the Act requires the Services to designate critical habitat concurrently with the listing rule to the maximum extent prudent and determinable, or up to 1 year following listing if critical habitat was not initially determinable. Critical habitat is defined in section 3 of the Act as: (1) the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (2) specific areas outside the geographic area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)).

When the FWS concludes that a critical habitat designation is prudent and determinable for species listed under the Act, FWS must follow the statutory and regulatory provisions to designate critical habitat. The Act's language makes clear that biological considerations drive the initial step of identifying critical habitat. Section 4(b)(2) expressly requires designations to be made based on the best scientific data available. Therefore, the process begins by relying on the best scientific data available to identify the species' habitat. Next, the Act's definition of “critical habitat” requires the Secretary to identify those areas of habitat occupied by the species at the time of listing that contain physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection; and the specific areas of unoccupied habitat that are essential to the conservation ( i.e., recovery) of the species.

Section 4(b)(2) also requires that, in designating critical habitat, the Secretary must take into consideration the impacts of specifying any particular area as critical habitat (16 U.S.C. 1533(b)(2)). The second part of section 4(b)(2) then provides the Secretary the authority to exclude any particular area from a critical habitat designation if the benefits of exclusion outweigh the benefits of inclusion for that area, so long as excluding it will not result in the extinction of the species. Our regulations in 50 CFR part 424 set forth relevant definitions (50 CFR 424.02), describe the standards and procedures for identifying critical habitat (50 CFR 424.12) and describe the standards and procedures for exclusions of particular areas of critical habitat (50 CFR 424.19). In addition to our joint regulations, the Services developed the joint Policy Regarding Implementation of Section 4(b)(2) of the ESA that provided direction regarding how we would exercise discretion to exclude areas from critical habitat designations (81 FR 7226, February 11, 2016; hereafter “2016 policy”). On December 18, 2020, we finalized FWS-only regulations that set forth a process for excluding areas of critical habitat under section 4(b)(2) of the Act (85 FR 82376; hereafter, “the 2020 rule”). Then on July 21, 2022, we rescinded those regulations (87 FR 43433). We again are undertaking a revision to the regulations pertaining to exclusions of particular areas of critical habitat under section 4(b)(2) of the ESA.

Executive Order (E.O.) 14154, “Unleashing American Energy,” issued January 20, 2025, directed all departments and agencies to immediately review agency actions that potentially impose an undue burden on the identification, development, or use of domestic energy resources, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with this national objective. To implement provisions of E.O. 14154, the Department of the Interior subsequently issued Secretary's Order (S.O.) 3418, which directed Assistant Secretaries to take steps, as appropriate, to suspend, revise, or rescind multiple actions that had been finalized under the prior Administration. In response to E.O. 14154 and S.O. 3418, we propose to reinstate the 2020 rule. This proposed revision would not require review of, or alter, any designated critical habitat if and when the revision is finalized.

This proposed rule is one of four proposed rules publishing in today's Federal Register that propose changes to the regulations that implement the Act. Two of these proposed rules are joint between the Services, and two (including this document) are specific to the Service.

In 1982, Congress added section 4(b)(2) to the Act, both to require the Secretaries to consider the relevant impacts of designating critical habitat and to provide a means for minimizing negative impacts of designation by excluding, in appropriate circumstances, particular areas from a designation. The first sentence of section 4(b)(2) sets out a mandatory requirement that the Secretaries consider the economic impact, impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. As required by this sentence, FWS always considers those impacts for every designation of critical habitat. The statute does not prescribe how the FWS should take into consideration these impacts. The second sentence of section 4(b)(2) provides the authority for a process by which the Secretaries may exclude an area from critical habitat. The FWS's consideration of impacts under the first sentence of section 4(b)(2) informs the decision whether to engage in the discretionary exclusion analysis under the second sentence of section 4(b)(2). Although the term “homeland security” was not in common usage in 1982, the Services concluded in the 2016 policy that Congress intended that “national security” includes what we now refer to as “homeland security” (see 81 FR 7226, at 7227, February 11, 2016).

Conducting an exclusion analysis under section 4(b)(2) involves balancing or weighing the benefits of excluding a particular area from a critical habitat designation against the benefits of including that area in the designation. The Act provides that if the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exclude the particular area from the designation, unless the Secretary determines that the exclusion will result in the extinction of the species concerned.

As discussed earlier, the 2016 policy provided direction regarding how the Services would exercise this discretion to balance or weigh benefits and use that information to exclude areas from critical habitat designations. We have concluded that adding elements of the 2016 policy back into our regulations would be more effective in guiding agency activities and would provide greater transparency and certainty to the public and stakeholders. The proposed regulations, however, would put into effect some differences in our approach relative to what was outlined in the 2016 policy. These differences from the 2016 policy include an information standard applicable to when FWS undertakes a discretionary weighing analysis, a clarification of how considerations for exclusions will be conducted for Federal lands, and an approach to assigning the weight of the benefits of inclusion or exclusion of any particular areas designated as critical habitat. If this proposed rule is finalized, NMFS will continue to implement the 2016 policy and regulations at 50 CFR 424.19.

This proposed rule provides the framework for the role of the FWS's consideration of the economic impact, impact on national security, and any other relevant impacts under section 4(b)(2) of the Act in identifying any potential exclusions from designations of critical habitat.

Once the Secretary has assessed the relevant impacts of designating particular areas as critical habitat, section 4(b)(2) authorizes the exclusion of any area from the designation if the Secretary determines that the benefits of excluding the area outweigh the benefits of including the area in the critical habitat designation (unless failure to designate the area will result in the extinction of the species) (16 U.S.C. 1533(b)(2)). The FWS refers to this comparative weighing of the impacts of excluding and including particular areas under 4(b)(2) as an “exclusion analysis.”

To undertake an exclusion analysis, we first evaluate whether there are any meaningful impacts from designating any area such that avoiding those impacts may outweigh the benefits of including the area in the designation. If there are no such impacts, there is no need to proceed further with weighing the impacts of designation. If there are any such impacts, we undertake a comparative weighing of those impacts. The ESA does not prescribe any elements of the analysis, such as what weight to assign to each factor or impact in determining the benefits of inclusion and the benefits of exclusion. Therefore, as long as, in completing the exclusion analysis, the FWS has considered all the relevant impacts, as required by the Administrative Procedure Act (APA; 5 U.S.C. 551 et seq. ), the ESA affords the Secretary broad discretion in deciding whether or not to exclude any area for which the benefits of exclusion outweigh the benefits of inclusion.

We propose to reinstate § 17.90(a) as set forth in the 2020 rule and in the proposed regulation promulgation portion of this document. This reinstated section carries over the two sentences in the existing interagency regulation at 50 CFR 424.19(a) without change. It then makes clear that the proposed rule will identify known national security and other relevant impacts of the proposed designation and identify any areas that the Secretary has reason to consider for exclusion and explain why. We also propose to include a non-exhaustive list of categories of potential impacts that the Secretary will identify, when known, at the proposed rule stage. We note that these impacts are the same as those that the Secretary will consider, as appropriate, when conducting the mandatory consideration of any other relevant impacts as expressed in the first sentence of section 4(b)(2) of the Act. Including this list of categories for consideration provides greater transparency and clarity to the public and stakeholders.

The proposed regulations would explain that economic impacts may include, for example, the economy of a particular area, productivity, and creation or elimination of jobs, opportunity costs potentially arising from critical habitat designation (such as those anticipated from reasonable and prudent alternatives that may be identified through a section 7 consultation), and potential benefits from a potential designation such as outdoor recreation or ecosystem services. The proposed regulations would provide categories of “other relevant impacts” that we may consider, including public health and safety, community interests ( e.g., such as a planned school or hospital), and the environment (such as increased risk of wildfire or pest and invasive species management). This list is not an exhaustive list of the types of impacts that may be relevant in a particular case; rather, it provides additional clarity by identifying some additional types of impacts that may be relevant. Our discussion of proposed new paragraph (d), below, describes specific considerations related to Tribes, States, and local governments; national security; conservation plans, agreements, or partnerships; and Federal lands.

Making clear to the public the areas that the Secretary has reason to consider excluding allows the public not only to submit comments on the benefits of exclusion and inclusion in general, but to focus their comments on those benefits as they relate to the specific areas most likely to be considered for exclusion. Codifying and making transparent this existing practice is intended to allow commenters to provide information specific to those areas that the Secretary anticipates considering for exclusion. Additionally, as is current practice, as part of any proposed rulemaking we will continue to seek comment on any additional impacts that may result from including any area in the designation and to make clear that, at any time during the process of designating critical habitat, the Secretary may still consider additional exclusions, including areas that were not identified in the proposed rule.

Finally, we propose to carry over language from 50 CFR 424.19(b) that explains that the Secretary will consider impacts at a scale that the Secretary determines to be appropriate and that impacts may be qualitatively or quantitatively described.

Section 4(b)(2) of the Act sets out a mandatory requirement that the FWS consider the economic impact, impact on national security, and any other relevant impacts prior to designating an area as part of a critical habitat designation. The Act does not further define “other relevant impacts.”

We propose to reinstate § 17.90(b) as set forth in the 2020 rule and in the proposed regulation promulgation portion of this document. This would carry over the language of the existing interagency regulation at 50 CFR 424.19(b) that already states that the Secretary will consider the probable economic, national security, and other relevant impacts of the designation.

After we consider the relevant impacts, we determine whether to undertake a discretionary exclusion analysis. We propose paragraph (c) to provide clarity and transparency about how the Secretary intends to exercise discretion regarding when undertaking the discretionary exclusion analysis under section 4(b)(2).

We propose to reinstate § 17.90(c) as set forth in the 2020 rule and in the proposed regulation promulgation portion of this document. This would carry over the language of the existing interagency regulation at 50 CFR 424.19(c) but modify the language to describe how the Secretary intends to exercise discretion and articulate clearly the factors that will prompt the Secretary to undertake the discretionary exclusion analysis under section 4(b)(2) of the Act. Including this provision in the regulations will clarify and codify the process and standards underlying exclusion analyses and decisions. Proposed paragraph (c)(1) reiterates that the Secretary has discretion whether to undertake an exclusion analysis under section 4(b)(2) of the Act.

Proposed paragraph (c)(2) describes the two circumstances in which FWS will conduct an exclusion analysis for a particular area: either (1) when a proponent of excluding the area has presented credible information in support of the request, or (2) if such information has not been presented, when the Secretary exercises his or her discretion to evaluate any particular area for potential exclusion.

As part of the public notice-and-comment process, the FWS routinely receives information from the public regarding probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation of critical habitat and the benefits of including or excluding areas that exhibit these impacts. The term “credible information” refers to information that constitutes a reasonably reliable indication regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for a particular area. In evaluating whether a proponent has provided “credible information” in support of a claim that an area should be excluded, we look at two factors—whether the proponent has provided factual information in support of the claimed impacts and whether the claimed impacts may be meaningful for purposes of an exclusion analysis. The information provided by submitters or proponents could address either the benefits of exclusion, or the benefits of inclusion, and we do not expect proponents to conduct a comparison of the impacts relative to the conservation value of the specific area. The “credible information” standard would be relevant only to the question of whether to undertake an analysis. Meeting this standard would not indicate that the area will in fact be excluded from the designation.

The second pathway to an exclusion analysis for a particular area would be if the Secretary decides to exercise his or her discretion to undertake the exclusion analysis. See proposed paragraph (c)(2)(ii) in the proposed regulation promulgation section of this document. In either case, the FWS intends to document the basis for any decision not to undertake an exclusion analysis. An explanation of the decision not to undertake an exclusion analysis for a particular area will be included in the final determination regarding critical habitat for the species.

In Weyerhaeuser Co. v. U.S. FWS, 586 U.S. 9 (2018), the Supreme Court held that decisions not to exclude areas from critical habitat designations are judicially reviewable under the abuse-of-discretion standard. The Court reasoned, although the use of the word “may” in section 4(b)(2) clearly confers discretion, that “does not segregate” the decision not to exclude from the procedures mandated by the Act. Among those mandated procedures, the Court referred specifically to the ESA requirement in section 4(b)(2) to consider relevant impacts and the APA requirement to consider all of the relevant factors. Because a decision not to undertake a discretionary exclusion analysis precludes the Secretary from excluding any areas from the designation, the FWS's current practice is to document the rational basis for such decisions. The proposed regulation simply codifies this practice.

We propose to reinstate paragraph (d) as set forth as set forth in the 2020 rule and in the proposed regulation promulgation section of this document. Proposed paragraph (d) describes how the FWS would undertake an exclusion analysis once the Secretary exercises the discretion to undertake one.

Proposed paragraph (d)(1) describes how the FWS would consider benefits (of including or excluding any particular area) that may be outside the scope of FWS's expertise. The Secretary would give weight to benefits consistent with expert or firsthand information, unless the Secretary has knowledge or material evidence that rebuts that information. Proposed subparagraphs (i)-(iv) in paragraph (d)(1) identify a non-exhaustive list of categories of impacts that may be outside the scope of FWS's expertise. Even though some of the categories on this list refer to “nonbiological impacts,” we recognize that many sources outside of the FWS also have information and expertise regarding biological impacts. The FWS would consider that information or expertise in the weighing of benefits of inclusion or exclusion of particular areas. However, in some instances the Secretary may have knowledge or material evidence that rebuts the information provided by experts or sources with firsthand knowledge. This information could include the FWS's expert judgment about the likely effects of designating critical habitat upon the need to engage in, or likely outcomes of, consultations under section 7 of the Act, or other information available to the agency, such as the information in the economic analysis, as informed by public input. Therefore, if the Secretary has additional knowledge or material evidence that qualifies as the best information available, the Secretary would assign weights to the benefits of inclusion or exclusion consistent with the information from experts, firsthand knowledge, and the best information available that the Secretary may have to rebut that information.

The proposed revisions would not differ from the FWS's current practice in considering the benefits of including or excluding certain areas as critical habitat, except for the current practice in considering Federal lands. Proposed paragraph (d)(1)(iv) addresses Federal lands where there are non-Federal entities that have a permit, lease, contract, or other authorization for use. This provision reverses the 2016 policy position that we generally do not exclude Federal lands from designations of critical habitat (outside of routine consideration of impacts to national security). There is nothing in the Act that states that lands could not be excluded from designation of critical habitat simply because that land is managed by the Federal Government. In some instances, the benefits of excluding Federal lands from a critical habitat designation may outweigh the benefits of including them.

It is noteworthy that Federal land managers will continue to have unique obligations under the Act, and that Congress declared as its policy that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act” (section 2(c)(1)). Further, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure that their actions are not likely to jeopardize the continued existence of listed species (section 7(a)(1)).

With regard to consideration of an exclusion based on economic or other relevant considerations, under the Act, the costs that a critical habitat designation may impose can be divided into two types: (1) the additional administrative or transactional costs associated with the consultation process with a Federal agency pursuant to section 7, (2) the costs to Federal agencies and other affected parties, including applicants for Federal authorizations ( e.g., permits, licenses, leases, contracts) of any project modifications necessary to avoid destruction or adverse modification of critical habitat, and (3) the opportunity cost associated with projects and activities (such as those anticipated from reasonable and prudent alternatives that may be identified through a section 7 consultation).

In contrast to the 2016 policy (see 81 FR 7226, at 7231, February 11, 2016), we now will consider the avoidance of the administrative or transactional costs associated with the consultation process as a benefit of exclusion of a particular area of Federal land. We did acknowledge then, and restate now, that we will also consider the extent to which consultation would produce an outcome that has economic or other impacts, such as by requiring project modifications and additional conservation measures by the Federal agency or other affected parties. While we acknowledge that Federal lands are important areas to the conservation of species habitat, we do not wish to foreclose the potential to exclude areas under Federal ownership.

Proposed paragraph (d)(2) addresses economic impacts or other relevant impacts as identified in proposed paragraph (b). Economic impacts may play an important role in the discretionary 4(b)(2) exclusion analysis under the second sentence of section 4(b)(2). The FWS always considers the probable incremental economic impacts of the designation of critical habitat. When undertaking a discretionary 4(b)(2) exclusion analysis with respect to a particular area, the FWS will continue to weigh the economic benefits of exclusion (and any other benefits of exclusion) against any benefits of inclusion (primarily the conservation value of designating the area). The nature of the probable incremental economic impacts, and not necessarily a particular threshold level, should trigger considerations of exclusions based on probable incremental economic impacts. For example, if an economic or other analysis indicates high probable incremental impacts of designating a particular critical habitat unit of lesser conservation value (relative to other areas potentially included in the designation), the FWS may consider excluding that particular unit. When analyzing whether to exclude any area, the Secretary will weigh such impacts relative to the conservation value of that area.

For benefits of inclusion or exclusion based on impacts that fall within the scope of the FWS's expertise, the Secretary will assign the weight given to those benefits in light of the FWS's expertise. The FWS's expertise includes, but is not limited to, implementation and enforcement of the Act; identification of the biological needs of species; identification of threats to species and their habitats; identification of important or essential components of habitat; species protection measures; and the process and outcomes of interagency consultations under section 7 of the Act.

Proposed paragraphs (d)(3) and (d)(4) address conservation plans, agreements, or partnerships, respectively, those permitted under, and those not permitted under, section 10 of the ESA. These proposed regulations generally follow our practices from the 2016 policy. We frequently exclude specific areas from critical habitat designations based on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when the benefits of exclusion outweigh the benefits of inclusion. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat and may include actions to minimize or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no involvement of the FWS, or in partnership with the FWS. In the case of a habitat conservation plan, safe harbor agreement, candidate conservation agreement with assurances, or conservation benefit agreement, a plan or agreement is developed in partnership with the FWS for the purposes of obtaining a permit under section 10 of the Act to authorize any take of listed species caused incidentally by the activities described in the plan or agreement. We place great value on the partnerships that are developed during the preparation and implementation of conservation plans and agreements.

The benefits of excluding lands with conservation plans or agreements include relieving landowners, communities, and counties of any additional regulatory burdens that might be imposed as a result of the critical habitat designation. A related benefit of exclusion is the unhindered, continued ability to maintain existing partnerships, as well as the opportunity to seek new partnerships with potential plan participants, including States, counties, local jurisdictions, conservation organizations, and private landowners. Together, these entities can implement conservation actions that the FWS would be unable to accomplish without their participation. These partnerships can lead to additional conservation efforts for listed species. This is particularly important because conservation plans or agreements often cover a wide range of species, including listed plant species and species that are not federally listed.

The protections that a conservation plan or agreement provides to habitat can reduce the benefits of including the covered area in the critical habitat designation. However, even in light of such reduction, there may still be significant benefits of critical habitat designation. As such, the FWS will weigh the benefits of inclusion against the benefits of exclusion (usually the maintenance or fostering of partnerships that provide existing conservation benefits or may result in future conservation actions).

If a plan under section 10 of the ESA is still under development when we undertake a discretionary 4(b)(2) exclusion analysis, we will evaluate these draft plans under regulations proposed at paragraph (d)(4).

We propose to reinstate paragraph (e) as set forth in the 2020 rule and in the proposed regulation promulgation portion of this document. Proposed paragraph (e) describes that the Secretary would exercise the broad discretion given under section 4(b)(2) by establishing as a principle that the FWS will exclude areas whenever it determines that the benefits of exclusion outweigh the benefits of inclusion, as long as exclusion will not result in the extinction of the species.

We are seeking comments from all interested parties on the specific revisions we are proposing, as well as on any of our analyses or preliminary conclusions in the Required Determinations section of this document. All relevant information will be considered prior to making a final determination regarding these regulations. Depending on the comments received, we may change the final regulations based upon those comments.

You must submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . Comments sent by any other method, or to any other address or individual, may not be considered. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES . We cannot guarantee that we will be able to consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES . Comments and materials we receive will be posted and available for public inspection on https://www.regulations.gov. This generally means that we will post any personal information you provide us. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is significant and has reviewed it.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13653 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), 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 RFA to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

We certify that, if adopted as proposed, this proposed rule would not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

This rulemaking proposes to revise the Service's regulations designating critical habitat for endangered and threatened species under the Act.

The Service is the only entity that is directly affected by this proposed regulation change at 50 CFR part 17 because changes to this section of the Code of Federal Regulations merely describe how we will designate critical habitat under the ESA. Since the only potential entities directly affected by this proposed regulation change are not small entities, including any small businesses, small organizations, or small governments, we certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) On the basis of information contained above in the Regulatory Flexibility Act section, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act that this proposed rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A small government agency plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

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

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. This proposed rule would not pertain to “taking” of private property interests, nor would it directly affect private property. A takings implication assessment is not required because this proposed rule (1) would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.

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

This proposed rule would not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This proposed rule would clarify factors for designating critical habitat under the ESA.

In accordance with E.O.13175, (“Consultation and Coordination with Indian Tribal Governments”), and the Department of the Interior's manual at 512 DM 2, we considered possible effects of this proposed rule on federally recognized Indian Tribes. This proposed rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. Therefore, we preliminarily conclude that this proposed rule does not have “tribal implications” under section 1(a) of E.O. 13175. Thus, formal government-to-government consultation is not required by E.O. 13175 and related policies of the Department of the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats. See Joint Secretary's Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” June 5, 1997.

This proposed rule does not contain any new collection of information that requires approval by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We are analyzing this proposed rule in accordance with the criteria of 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 part 46), and the Department of the Interior Manual (516 DM 1).

We invite the public to comment on the extent to which these proposed regulations may have a significant impact on the human environment or fall within one of the categorical exclusions for actions that have no reasonably foreseeable effects on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule.

E.O. 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 (or any successor order); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. The proposed revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

In developing this proposed rule, the FWS is acting in our unique statutory role as administrator of the Act and is engaged in a legal exercise of interpreting the standards of the Act. The FWS's administration of the Act is not in itself subject to the Act's provisions, including section 7(a)(2). The FWS has a historical practice of issuing its general regulations under the ESA without undertaking section 7 consultation. This practice accords with the plain language, structure, and purposes of the ESA, which does not place a consultation obligation on the FWS's administration of the Act. Although the FWS consults on actions through intra-agency consultations where appropriate ( e.g., issuance of section 10 permits and actions under statutory authorities other than the ESA), in those instances the FWS is acting principally as an “action agency” implementing provisions of the Act or other statutes. Here, by contrast, the FWS is acting solely in our role as administrator of the ESA in interpreting the Act's provisions; we are also not implementing the Act to propose or take a specific action. The FWS is carrying out the most fundamental exercise of our role as administrator of the ESA, and the Act cannot reasonably be construed as requiring the FWS to “consult” with ourselves under Section 7(a)(2) in such cases.

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. This means that each rule we publish must:

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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

For the reasons discussed in the preamble, we hereby propose to amend part 17 of chapter I, title 50 of the Code of Federal Regulations as set forth below:

The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing the Endangered Species Act, as amended (hereafter referred to as ESA or the Act; 16 U.S.C. 1531 et seq. ), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated regulations that establish the procedures governing interagency cooperation under section 7 of the Act, which requires Federal agencies, in consultation with and with the assistance of the Secretaries of the Interior and Commerce, to insure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. These joint regulations, which are codified in title 50 of the Code of Federal Regulations (CFR) at part 402 (50 CFR part 402), were revised in 2019 (84 FR 44976, August 27, 2019) and again in 2024 (89 FR 24268, April 5, 2024; hereafter, “the 2019 rule” and “the 2024 rule,” respectively).

States and environmental organizations challenged the 2019 regulations in the Northern District of California, with other States and industry participants intervening to support the regulations ( Ctr. for Biological Diversity v. Haaland, No. 19-cv-5206 (N.D. Cal.) (related to California v. Haaland, 19-cv-6013, and ALDF v. Haaland, No. 19-cv-6812)). The district court remanded the regulations to the Services, and the Services developed the 2024 regulations, affirming some parts of the 2019 rule and revising or rescinding others. The 2024 rule became effective on May 6, 2024.

Like the 2019 rule, portions of the 2024 rule were challenged in several court cases ( National Hydropower Ass'n v. U.S. Fish & Wildlife Service, No. 1:24-cv-02285 (D.D.C.) (challenges to the 2024 revisions to 50 CFR 402.14(i)(1)-(3), allowing the incorporation of offsets into reasonable and prudent measures); Ctr. for Biological Diversity v. Dept. of the Interior, No. 4:24-cv-04651-JST (N.D. Cal.) (substantive and procedural challenges to both the 2019 and 2024 regulations); Am. Farm Bureau Fed'n v. U.S. Fish & Wildlife Service, No. 1:25-cv-00947 (D.D.C.) (challenges to the 2024 rule and request to reinstate the 2019 rule)).

Additionally, months after the 2024 rule went into effect, the Supreme Court issued Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). This case overruled Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), which previously allowed courts to defer to “permissible” agency interpretations of ambiguous statutory language, even where another, more reasonable interpretation existed ( Id. at 843-44 and n.11).

Further, several Executive Orders (E.O.s) were issued following the 2024 rule's promulgation and the Loper Bright decision that direct agencies to reconsider multiple aspects of the regulatory process. First, on January 20, 2025, President Donald Trump signed E.O. 14154, “Unleashing American Energy.” Section 3(b) of that E.O. requires that agency heads begin implementing action plans to suspend, revise, or rescind all agency actions identified as unduly burdensome on the development of domestic energy sources. Second, on January 24, 2025, President Trump issued E.O. 14181, “Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas.” Section 2(e) of that E.O. directed the Secretary of the Interior to “promptly review, revise, or rescind any regulations or procedures specific to implementation of section 1536 of title 16 United States Code, as needed and consistent with applicable law, to conform with the plain meaning of the statute.” The 2024 rule includes regulations specific to the implementation of section 1536 of title 16 of the U.S. Code and is therefore directly implicated by this E.O. Third, on February 19, 2025, the Services were directed to review their regulations for consistency with statutory text through E.O. 14219, “Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative.” The E.O. requires review of various classes of regulations, and section 2(a)(iii) specifically requires review of any “regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition.”

Secretary of the Interior Burgum also issued Secretary's Order (S.O.) 3418 to implement E.O. 14154. Section 4(b) of S.O. 3418 requires FWS to review the 2024 regulations and develop a plan to “suspend, revise, or rescind” the 2024 regulatory revisions, as appropriate.

In compliance with these directives, the Services immediately began coordinating to re-evaluate the 2024 rule. The agencies, as discussed further below, have since identified concerns with the 2024 regulations in light of the intervening Loper Bright Supreme Court decision and various E.O.s and S.O.s, including those noted above.

Consistent with these ongoing regulatory efforts and considerations, the Services in National Hydropower Ass'n v. U.S. Fish & Wildlife Service, No. 1:24-cv-02285 (D.D.C.), filed a motion on April 14, 2025, requesting a voluntary remand without vacatur of the 2024 rule to allow the Services to address the substantial and legitimate concerns that the Services have with the 2024 regulatory revisions that allowed for the incorporation of offsets into reasonable and prudent measures, as described in more detail below. Specifically, the Services noted concerns that certain aspects of the 2024 rule are not considered the “best reading” of the statute. The Services recognized that “offset” does not appear in the statutory text, nor is the term “mitigation” employed in the portion of the statute related to reasonable and prudent measures. See 16 U.S.C. 1536. The Services also wished to reevaluate whether the offset provisions, described in 50 CFR 402.02 and 402.14(i)(1)-(3), are consistent with the regulatory requirement not to impose anything more than “minor changes” to a proposed action through reasonable and prudent measures ( See 50 CFR 402.14(i)(2)).

Thus, in accordance with the various E.O.s and S.O.s and in consideration of recent case law, the Services have reviewed the 2024 rule and evaluated the specific regulatory revisions promulgated through that process. The Services now consider that parts of the 2024 rule are likely inconsistent with the best reading of the ESA. The Services also find that parts of the 2024 rule are likely unnecessary or inadvisable for various reasons, including their lack of clarity for the regulated Federal agencies and applicants engaged in the consultation process.

Regarding the offset provisions specifically, and as noted above, NMFS and FWS recognize that the term “offset” is not used in the statutory text, nor is the term “mitigation” employed in the portion of the statute related to reasonable and prudent measures. See 16 U.S.C. 1536. Therefore, NMFS and FWS propose removing the 2024 rule's offset provisions, consistent with the best reading of the Act.

Based on our considerations described in this preamble, and taking into account Loper Bright and the E.O.s described above, the Services also propose to revise the regulations at 50 CFR part 402 by reinstating certain provisions that were promulgated in 2019, with proposed modifications to the definition of “environmental baseline” in § 402.02 and to provisions addressing the “reasonably certain to occur” standard in § 402.17. These proposed changes are further explained below. We are not, however, proposing to revise the 2024 revisions to § 402.16 (Reinitiation of consultation).

The regulations that the Services propose in this rule reaffirm the processes by which the Services will interpret and implement various statutory requirements set forth in section 7 of the Act, while continuing to provide for the conservation of listed species. This proposed rule is intended to provide the public with a transparent explanation of proposed revisions to the regulations in 50 CFR part 402 and the opportunity to comment on these proposed revisions.

Following a review of the 2024 rule, we propose to revise the regulations at 50 CFR part 402 by replacing all provisions of the regulations promulgated in 2024 with those promulgated or otherwise in existence in 2019, with the exception of § 402.16 (Reinitiation of consultation). In addition, we propose to make additional clarifying edits to the definition of “environmental baseline” in § 402.02 and to provisions addressing the “reasonably certain to occur” standard in § 402.17. Each of the proposed revisions is described below. The specific changes to the regulations proposed herein are intended to be prospective standards only. If finalized, these regulations would apply to section 7(a)(2) consultations finalized after the effective date of the final rule and would not apply retroactively to section 7(a)(2) consultations finalized prior to the effective date of the final rule. Nothing in these proposed revisions to the regulations is intended to require (at such time as the final rule becomes effective) that any previously completed section 7(a)(2) consultations be reevaluated to comply with any subsequent regulatory changes.

This proposed rule is one of four proposed rules publishing in today's Federal Register affecting the regulations for the ESA. Two of these proposed rules, including this one and one on listing species and designating critical habitat at 50 CFR part 424, are joint between the Services, and two proposed rules related to critical habitat exclusions and threatened species protections at 50 CFR part 17 are specific to FWS.

The revisions we are proposing to the definition of “effects of the action” at 50 CFR 402.02 are discussed below under Proposed Reinstatement of Other Provisions.

In 2019, we removed the definition of “environmental baseline” from the definition of “effects of the action” and established it as its own stand-alone definition at 50 CFR 402.02. We also added additional detail to the definition. In the new first sentence, we described environmental baseline as the condition of the listed species or critical habitat in the action area without the consequences caused by the proposed action. In the new third sentence, we stated that the consequences to listed species or designated critical habitat from ongoing agency activities or existing agency facilities that are not within the agency's discretion to modify are part of the environmental baseline. In 2024, we did not make any changes to the first sentence and adopted minor revisions to the third sentence to replace the term “consequences” with the word “impacts,” removed the word “ongoing,” and added the word “Federal” in two locations to emphasize the central question of the Federal agency's discretion over their own activities and facilities in determining what is properly categorized as part of the environmental baseline. As we noted in the June 22, 2023, proposed rule, the Services consider “consequences,” “impacts,” and “effects” to be equivalent terms, and we modified the text to be consistent with the language in the previous sentences of the definition (88 FR 40753 at 40755). Because ongoing agency activities or existing agency facilities that are not within the agency's discretion to modify belong in the environmental baseline and not the proposed action, we revised the text to consistently use the term “impacts” throughout the definition for items that belong in the environmental baseline, while retaining the use of the term “consequences” in the first sentence for effects that are caused by the proposed action and not included in the environmental baseline. Further, we were concerned that the use of the term “ongoing” distracted from the intended focus on Federal agency discretion. These revisions in no way altered the intended meaning or application of the third sentence of the definition of environmental baseline.

We are now proposing revisions to the first and third sentence of environmental baseline. For the first sentence, the Services are proposing clarifying revisions so the sentence would read: “Environmental baseline is evaluated at the time of the proposed action and refers to the current condition of the listed species or its designated critical habitat in the action area as would reasonably be expected to occur without the consequences to the listed species or designated critical habitat caused by the proposed action.” Because defining the environmental baseline can be one of the most challenging aspects of section 7 consultation, the Services are taking this opportunity to provide more detail on the approach to its establishment. The proposed revisions reflect the Services' existing practice. As we noted in the 2019 final rule, environmental baseline should be used to compare the condition of the listed species and the designated critical habitat in the action area with and without the effects of the proposed action, and this comparison is the effects of the action. (84 FR at 44976). The additions of “is evaluated at the time of the proposed action,” the term “current,” and “as they would be reasonably expected to occur” emphasize that the agency looks to the best available scientific information at the time of the consultation to inform its understanding of the condition of the listed species or its designated critical habitat, and to draw the necessary comparison described in the 2019 final rule.

For the third sentence, the Services are proposing to reinstate the 2019 definition of “environmental baseline” which describes “consequences” to listed species as part of “ongoing agency activities.” As we noted in 2023 and reaffirm here, when we refer to an “agency,” “action agency,” or “Federal agency,” it is in reference to the Federal agency that has proposed the action undergoing section 7 consultation. Consistent with § 402.03, the obligation of a Federal agency to consult on a Federal action pursuant to section 7 and the requirements of the part 402 regulations apply to all actions in which there is discretionary Federal involvement or control. Therefore, those components of Federal activities or Federal facilities in which there is no discretionary involvement or control of the Federal agency are not subject to the requirement to consult, and, as a result, the impacts of those nondiscretionary activities and facilities to listed species and critical habitat are not a consequence of a proposed discretionary Federal action (88 FR 40753 at 40755-40756, June 22, 2023). This is supported by the Supreme Court's conclusion in National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 667-71 (U.S. 2007) (“Home Builders”), where the Court held that it was reasonable for the Services to narrow the application of section 7 to a Federal agency's discretionary actions because “[t]he regulation's focus on `discretionary' actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to `insure' that such action will not jeopardize endangered species.” Id. Thus, the final sentence of the definition of “environmental baseline” is applicable only to Federal agency facilities and Federal activities that are not within the Federal agency's discretion to modify.

While the intent in 2024 was to further refine the 2019 definition of “environmental baseline,” upon review, we believe the minor revisions in 2024 were unnecessary as they do not meaningfully clarify or change the definition, and that the prior version is already consistent with longstanding practice. Therefore, the Services find that reverting back to the third sentence in the 2019 definition adheres to the plain meaning in the statute, follows longstanding practice, and does not change our understanding and application of the environmental baseline to the jeopardy and destruction or adverse modification analyses.

The revisions we are proposing to the definition of “reasonable and prudent measures” at 50 CFR 402.02 are discussed below under Proposed Changes to Reasonable and Prudent Measures.

In the 2024 rule, we made amendments to the regulatory provisions relating to the scope of reasonable and prudent measures (RPMs) in an incidental take statement (ITS) and the definition of RPMs to facilitate “offsetting” RPMs, i.e., measures intended to compensate for the impacts of incidental take on listed species.

Upon further review and in accordance with the E.O.s and S.O.s described above, we have determined that the 2024 regulation's use of the terms “offset” and “mitigation” is not sufficiently rooted in express statutory language in section 7 of the ESA. After reconsidering the statutory and regulatory text in view of Loper Bright, the Services propose to rescind all changes made in 2024 that created the option for offsetting RPMs. We therefore propose to revert to these provisions as they existed prior to 2024 in 50 CFR part 402, in particular in the regulatory text at § 402.14(i)(1)-(3) and in the definition of RPMs at § 402.02.

In the 2019 and 2024 rules, the Services explained that the regulatory revisions of § 402.17 were intended to provide additional clarity to the interagency consultation process and did not change the various standards and requirements of the statutory or regulatory framework. The 2019 rulemaking, which added § 402.17, and the subsequent 2024 rulemaking, which removed § 402.17, both discussed the meaning and application of this provision and, in 2024, reasons for revoking the provision. Readers are directed to those Federal Register publications (84 FR 44976, August 27, 2019; 89 FR 24268, April 5, 2024) for a full explanation. Our reasons for removal in 2024 included (1) avoiding a need for reference to multiple sections of the regulations for a full definition of “effects of the action”; (2) a potential source of confusion and tension between the phrase “clear and substantial information” and the statutory requirement to use the best scientific and commercial information available; and (3) a stated intent to include the type of guidance encompassed within § 402.17 in a planned revision of the 1998 Consultation Handbook.

However, the Services are now proposing to reinstate § 402.17 to prevent confusion and provide more clarity in the regulatory text. Additionally, the Services are proposing to add a fourth factor to § 402.17(a) for consideration when evaluating whether activities are reasonably certain to occur. In § 402.17(b), the Services are proposing to add two additional factors to consider for determining that a consequence is not caused by the proposed action.

The term “reasonably certain to occur” is found in the regulatory definitions (§ 402.02) of “effects of the action” and “cumulative effects” and is also an important concept for identifying “activities that are caused by the proposed action” within “effects of the action.” We established a separate provision (§ 402.17) in 2019 to provide a non-exclusive list of factors to consider when it is unclear if a consequence or activity is reasonably certain to occur. The proposed text addresses the basis upon which a conclusion of reasonably certain to occur may be reached and is intended to help practitioners avoid inclusion of consequences or activities whose occurrence would be considered remote, but also does not require that the consequence or activity be absolutely certain to occur. While the proposed reinstatement of § 402.17 will again require practitioners to reference two separate sections of the regulations in their consideration of either “effects of the action” or “cumulative effects,” we now believe the previous concern regarding reference to two separate sections was overstated. In particular, the proposed definition of “effects of the action” includes an express reference to § 402.17, making it clear to any reader that this section should be consulted in addition to the definition itself. Similarly, the entire 50 CFR part 402 regulations are intended to work in concert with one another to administer the express statutory language of the ESA. Federal agencies and applicants engaged in the consultation process cannot effectively apply any of the specific sections in isolation but must consult all relevant sections in order to appropriately engage in effective consultation. To the extent there are lingering questions of how one provision of the regulations may fit with another, the Services will continue working with other Federal agencies to minimize the risk of confusion.

When the Services removed § 402.17 in 2024, the supporting discussion in both the 2023 proposed rule and the 2024 final rule noted potential confusion and tension between the phrase “clear and substantial information” and the statutory requirement for the Services and all Federal agencies to use the “best scientific and commercial information available” (16 U.S.C. 1536 (a)(2)). Largely, this confusion and tension stemmed from the appearance that the phrase added a second and potentially higher standard for the information and supporting basis used to determine if a consequence or activity was “reasonably certain to occur.”

Although we are proposing to reinstate § 402.17, it is important to note that there is no actual tension between the use of “best available scientific information” and an expectation that “clear and substantial information” assists in the determination of “reasonably certain to occur.” The key sentence reads “[a] conclusion of reasonably certain to occur must be based on clear and substantial information, using the best scientific and commercial data available.” Thus, as an initial matter, the standard expressly recognizes, consistent with the Act, that we use the best scientific and commercial data available to determine whether a particular consequence is reasonably certain to occur or not. Similarly, the standard does not limit what information and data the Services will consider in making that determination. Given the definition of “effects of the action” requires reasonable certainty that a consequence or activity will occur, relying on “clear and substantial” information is appropriate.

We additionally note as we did in 2019 that the inclusion of § 402.17 would neither raise nor lower the bar on application of the “effects of the action” test. We also reiterate that the proposed reinsertion of § 402.17 as revised is not intended to require a certain numerical amount of data; rather, it is simply to illustrate that the determination of a consequence or activity to be reasonably certain to occur must be rooted in the best scientific and commercial information available, and should not be based on speculation or conjecture. The proposed reinserted section also does not mean the nature of the information would have to support that a consequence or activity is guaranteed to occur. The Services will continue to follow accepted scientific methods and evaluate all lines of best available evidence to arrive at principled scientific determinations, including as to what consequences and activities are or are not reasonably certain to occur. When understood in this manner, it becomes evident there is not a tension in the key sentence guiding the application of the “reasonably certain to occur” standard.

The Services also noted in both the 2023 proposed rule and 2024 final rule (88 FR 40753, June 22, 2023, and 89 FR 24268, April 5, 2024, respectively) that portions of the § 402.17 text from the 2019 rulemaking were unnecessary in regulatory text because we intended to discuss those considerations and other examples, as appropriate, in a revised Consultation Handbook. The Services are still working on a revised Handbook, and absent a specific timeline for completing that work, we have determined that the set of factors originally included in § 402.17(a) and (b) in the 2019 rulemaking should also be reinstated and expanded upon to clarify the regulatory requirements for section 7 practitioners and to avoid confusion due to lack of guidance to Federal agencies and applicants engaged in the consultation process.

Section 402.17(a) includes a non-exclusive list of factors intended to guide determinations as to what activities (either for purposes of “effects of the action” or “cumulative effects”) are reasonably certain to occur. The factors originally included in 2019 in § 402.17(a) that we propose to reinsert focus on considerations such as past experience, existing plans, and remaining requirements related to a potential activity. These considerations are similar to those mentioned in the preamble to the 1986 final rule on interagency cooperation (51 FR 19926 at 19933, June 3, 1986) and in the Services' 1998 Consultation Handbook (Handbook at 4-32). To those three factors, we also propose to add a fourth factor in § 402.17(a)(4): “[t]he amount of State, tribal, territorial, or local administrative discretion remaining to be exercised.” This factor is a relevant consideration because the less administrative discretion that remains relative to an activity, the more likely it is to be considered reasonably certain to occur and, correspondingly, greater remaining discretion suggests greater uncertainty. The factor operates in a manner similar to § 402.17(a)(3), which considers the remaining economic, administrative, and legal requirements related to an activity.

The text at § 402.17(b) similarly describes a non-exclusive list of factors to determine when a consequence may not be reasonably certain to occur for purposes of applying the “effects of the action” definition. The factors originally included in 2019 in § 402.17(b) that we propose to reinsert focus on whether a consequence is remote in time, geographically remote, or may only be reached through a lengthy causal chain. As we noted in 2019, these are relevant considerations that help determine whether a particular consequence may or may not be considered reasonably certain to occur and are consistent with our longstanding practices (84 FR at 44981).

To those three considerations, we are proposing to add two additional provisions that are also relevant in determining whether a consequence is reasonably certain to occur. Section 402.17(b)(4) focuses on whether “the agency has no ability to prevent the consequence due to its limited statutory authority.” Like 402.17(b)(1)-(3), considering the extent of an action agency's authority applies normal principles of proximate causation and helps determine whether a consequence is appropriately attributable to the proposed action. In the 2019 final rule, we noted that our two-part causation test reflected in our definition of “effects of the action” (but-for causation plus reasonably certain to occur) adopts analogous principles to those of proximate causation (84 FR at 44991). While we declined to adopt an express third element in our effects test for the “jurisdiction or control” of the action agency in 2019 (84 FR at 44991), Seven County Infrastructure Coalition vs. Eagle County, Colorado recently confirmed that “a mere `but-for' causal relationship is insufficient to make an agency responsible for a particular effect.” 221 L.Ed.2d.820, 841 (2025) ( citing Department of Transportation v. Public Citizen, 541 U.S. 752, 767 (2004)). The principles of proximate causation articulated in Seven County are trans-substantive and make clear that an agency's action cannot be considered a cause of an environmental effect when the agency has no authority to prevent the effect. As such, it is appropriate to consider the statutory authority of an action agency. Additionally, we are proposing to add § 402.17(b)(5) that examines “[i]f the consequence would occur regardless of whether the proposed action goes forward.” If a consequence will happen irrespective of the proposed action, then it cannot be caused by the proposed action, i.e., it would not be a reasonably certain result of the proposed action. For this reason, we believe it is a useful addition to the non-exclusive list of considerations that action agencies and the Services should examine in determining what consequences of the proposed action are reasonably certain to occur.

One final proposed change to note is that in 2024, the Services removed § 402.17 from the regulations and revised the definition of “effects of the action” at 50 CFR 402.02 to remove the parenthetical reference to that section. Additionally, to retain a complete “effects of the action” definition, the Services moved the phrase “but that are not part of the action” from § 402.17 to the “effects of the action” definition in § 402.02.

Therefore, in coordination with our proposed reinstatement of § 402.17, the Services propose to remove “but that are not part of the action” from the “effects of the action” definition in § 402.02 and add the parenthetical reference to § 402.17 back to the end of that definition. The phrase “but that are not part of the action” is in proposed § 402.17. The proposed definition for “effects of the action” would therefore reinstate the 2019 version, as set forth below under Proposed Regulation Promulgation.

Overall, as provided in our explanation in the 2019 final rule and as discussed in more detail above, the reinsertion and revision of § 402.17 provides helpful guidance consistent with the plain meaning of the statute and agency practice. This proposed change does not revise the scope of the “effects of the action” nor change the application of the “but for” and “reasonably certain to occur” causation test to determine consequences or activities caused by the proposed action.

We seek public comments from all interested parties on the specific revisions we are now proposing to 50 CFR part 402, as well as the regulatory revisions we made in the 2019 and 2024 rules, and any of our analyses or conclusions discussed under Required Determinations, below. All relevant information will be considered prior to making a final determination regarding these regulations.

Based on comments received and on our experience in administering the Act, the final rule may include revisions to any provisions in part 402 that are a logical outgrowth of this proposed rule, consistent with the Administrative Procedure Act (5 U.S.C. subchapter II).

In proposing the above revisions, we also are considering whether there are legitimate reliance interests ( e.g., commercial, economic, environmental, or aesthetic interests) on the regulations under reexamination. Dep't of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 30 (2020). We therefore solicit public comment on reliance interests.

You may submit your comments concerning this proposed rule by one of the methods listed in ADDRESSES . Comments sent by any other method, to any other address or individual, may not be considered. 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 hand-delivered or mailed comments that we do not receive by the date specified in DATES .

Comments and materials we receive will be posted and available for public inspection on https://www.regulations.gov. This generally means that we will post any personal information you provide us. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is significant and has reviewed it.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13653 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), 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 RFA to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

We certify that, if adopted as proposed, this proposed rule would not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

This proposed rule, if made final, would be applied in determining whether a Federal agency has insured, in consultation with the Services, that any action it would authorize, fund, or carry out is not likely to jeopardize listed species or result in the destruction or adverse modification of critical habitat. The proposed rule would serve to confirm the Services' longstanding application of statutory requirements for interagency cooperation pursuant to section 7 of the ESA. Therefore, we certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) On the basis of information contained above in the Regulatory Flexibility Act section, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act that this proposed rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A small government agency plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

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

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. This proposed rule would not pertain to “taking” of private property interests, nor would it directly affect private property. A takings implication assessment is not required because this proposed rule (1) would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.

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

This proposed rule would not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This proposed rule would reaffirm the interagency consultation processes under the ESA.

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 National Oceanic and Atmospheric Administration (NOAA) Administrative Order (NAO) 218-8 (April 2012), we considered possible effects of this proposed rule on federally recognized Tribes. This proposed rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. Therefore, we preliminarily conclude that this proposed rule does not have Tribal implications under section 1(a) of E.O. 13175. Thus, formal government-to-government consultation is not required by E.O. 13175 and related policies of the Departments of Commerce and the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats. See Joint Secretary's Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” June 5, 1997).

This proposed rule does not contain any new collection of information that requires approval by the Office of Management and Budget (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.

We are analyzing this proposed rule in accordance with the criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), the Department of the Interior regulations on Implementation of National Environmental Policy Act (43 CFR part 46.), the Department of the Interior Manual (516 DM 1), the NOAA Administrative Order (NAO) 216-6A, and the NOAA Companion Manual, “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities”, which became effective June 30, 2025.

We invite the public to comment on the extent to which these proposed regulations may have a significant impact on the human environment or fall within one of the categorical exclusions for actions that have no reasonably foreseeable effects on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule.

E.O. 13211(Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 (or any successor order); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. The proposed revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

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 itself is not an action that is subject to the Act's provisions, including section 7(a)(2). The Services have a historical practice of issuing their regulations under the ESA without undertaking section 7 consultation. This practice accords with the plain language, structure, and purposes of the ESA. Nothing in the statue places a consultation obligation on the Services' promulgation of regulations. Although the Services consult on actions through intra-agency consultations where appropriate ( e.g., issuance of section 10 permits and actions under statutory authorities other than the ESA), the Services in those instances are acting principally as an “action agency” implementing provisions of the Act or other statutes. Here, by contrast, the Services are acting solely in their role as administrators of the ESA; we are not also implementing the Act to propose or take a specific action. The Services are carrying out the most fundamental exercise of our roles as administrators of the ESA, and the Act cannot reasonably be construed as requiring the Services to “consult” with themselves under section 7(a)(2) in such cases.

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. This means that each rule we publish must:

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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

For the reasons set out in the preamble, we hereby propose to amend part 402, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:

The revisions read as follows:

The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for administering most of the provisions of the Endangered Species Act, as amended (hereafter referred to as ESA or the Act; 16 U.S.C. 1531 et seq. ), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated regulations that interpret aspects of the listing and critical habitat designation provisions of section 4 of the Act. These joint regulations, which are codified in the Code of Federal Regulations (CFR) at 50 CFR part 424, were revised in 2019 (84 FR 45020, August 27, 2019, effective September 26, 2019) and again most recently in 2024 (89 FR 24300, April 5, 2024; hereafter, “the 2019 rule” and “the 2024 rule,” respectively). The 2024 rule became effective on May 6, 2024.

Portions of the 2024 rule are subject to pending litigation in three different courts. First, the 2024 rule, along with other revisions to the ESA regulations finalized in 2019, are subject to both substantive and procedural challenges in Center for Biological Diversity et al. v. Dep't of Interior et al., 4:24-cv-4651 (N.D. Cal.). In addition, the 2019 and 2024 amendments to 50 CFR 424.12(a)(1) have been challenged in Defenders of Wildlife v. U.S. Fish & Wildlife Service, 25-cv-45 (E.D. Cal.). Lastly, the 2024 rule changes to 50 CFR 424.11(e)(2) and 50 CFR 424.12(b)(2) have been challenged in American Farm Bureau Federation et al. v. U.S. Fish & Wildlife Service et al., 1:25-cv-00947 (D. DC); plaintiffs in that case seek to have the 2019 rule reinstated. Prior litigation over the 2019 rule was not resolved on the merits ( Animal Legal Defense Fund v. Haaland, et al. 4:19-cv-06812-JST (N.D. Cal.); State of California et al. V. Haaland, et al., 4:19-cv-06013-JST (N.D. Cal.); Center for Biological Diversity et al. V. Haaland, et al., 4:19-cv-05206-JST (N.D. Cal.)); rather, on November 16, 2022, the district court issued orders remanding the 2019 regulations to the Services without vacating them, as the Services had voluntarily asked the court to do. Accordingly, the Services developed the 2024 regulations to amend some aspects of the 2019 rule.

Executive Order (E.O.) 14154, “Unleashing American Energy,” issued January 20, 2025, directed all departments and agencies to immediately review agency actions to identify those actions that potentially impose an undue burden on the identification, development, or use of domestic energy resources, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions identified as unduly burdensome that conflict with this national objective. To administer provisions of E.O. 14154, the Secretary of the Interior subsequently issued Secretary's Order (S.O.) 3418, which indicated that FWS would work with NMFS to suspend, revise, or rescind the ESA regulations that had been revised in 2024. E.O. 14219 also directs all departments and agencies to review and rescind unlawful regulations that are “based on anything other than the best reading of the underlying statutory authority.” See also Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In response to these orders, and in light of recent case law and ongoing litigation, the Services have reviewed the 2024 rule and evaluated the specific regulatory revisions promulgated through that process. Now, as discussed below, we propose to revise the regulations at 50 CFR part 424 by replacing the regulations promulgated in 2024 with those promulgated in 2019.

The regulations we propose in this document provide criteria or otherwise clarify the processes by which the Services will interpret various statutory requirements set forth in section 4 of the Act. This proposed rule is intended to provide the public with a clear, transparent explanation of how we are proposing to revise the regulations in 50 CFR part 424 and the opportunity to comment on these proposed revisions.

We interpret our authorities under the statutory scheme consistent with the best reading of the ESA. For example, the meaning of the term “foreseeable future,” which is used in the definition of “threatened species” and thus an innate part of making a listing decision under section 4(a), is not set out in the Act. By contrast, where the Act contains clear direction, regulatory text is less necessary to ensure that we efficiently and effectively apply the statute in our decision-making processes. While the regulations at 50 CFR part 424 are process-oriented regulations, they nonetheless are useful for administering the Act in a consistent manner, and for informing the public about those processes.

Section 2 of the Act states that the purposes of the ESA 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 endangered and threatened species and use their authorities to further the purposes of the Act (16 U.S.C. 1531(c)).

To receive the protections afforded by the Act, a species must first be listed as either an endangered or a threatened species. Whether a species warrants listing under the Act depends upon its risk of extinction. To determine whether listing a species is warranted, the Act requires that the Services conduct a review of the species' status and consider any efforts being made by any State or foreign nation (or subdivision thereof) to protect the species. The Act also requires that determinations of whether a species meets the definition of an endangered or threatened species be based solely on the best scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)).

When the Services determine that a species warrants listing, the Act requires the Services to designate critical habitat concurrently with the listing rule to the maximum extent prudent and determinable, or up to 1 year following listing if critical habitat was not initially determinable. Critical habitat is defined in section 3 of the Act as: (1) the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical and biological features (I) essential to the conservation of the species and (II) which 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)). Thus, and as explained in the 2019 and 2024 rules, the Act lays out two distinct types of areas that may be designated as critical habitat for a given species. For simplicity, throughout this document we will refer to the former type as “occupied” critical habitat and the latter type as “unoccupied” critical habitat.

In passing the Act, Congress viewed habitat loss as a significant factor contributing to species endangerment, and the “present or threatened destruction, modification, or curtailment” of a species' habitat or range is specifically listed in section 4(a)(1) of the Act as the first of the factors that may underlie a determination that a species meets the definition of an endangered species or a 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 protection under the Act is 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)).

Following a review of the specific regulatory revisions made in the 2024 rule, the Services propose to revise the regulatory provisions in 50 CFR part 424 that were promulgated in 2024 and return to the version of these regulations promulgated in 2019. Each of the proposed revisions is described in the sections below. The specific changes to the regulations proposed herein are intended to be prospective standards only. If finalized, these regulations would apply to classification and critical habitat rules finalized after the effective date of the final rule and would not apply retroactively to classification and critical habitat rules finalized prior to the effective date of the final rule. Nothing in these proposed revisions to the regulations is intended to require (at such time as this rule becomes final) that any prior final listing, delisting, or reclassification determinations or previously completed critical habitat designations be reevaluated on the basis of any final regulations.

This proposed rule is one of four proposed rules publishing in today's Federal Register that affect the regulations for the ESA. Two of these proposed rules, including this one, are joint between the Services, and two proposed rules are specific to FWS.

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 after conducting a review of the status of the species.

To be consistent with the plain language of the statute requiring that classification determinations must be made solely on the basis of the best scientific and commercial data available, we are proposing to remove the phrase “without reference to possible economic or other impacts of such determination” from the end of 50 CFR 424.11(b). In 2019, this phrase was removed to more closely align with the statutory language. In 2024, we reinserted this phrase into the regulations. Based on our subsequent review of the 2024 rule, the language of the Act, and recent case law, we have concluded that reverting to the 2019 regulatory text best aligns with the Act.

Section 3(20) of the Act defines a “threatened species” as any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). The term “foreseeable future” is not further described within the Act, and until 2019, it was not further described in the Services' regulations either. The “foreseeable future” concept is a fundamentally important one, as it sets the analytical timeframe over which the Services must apply the best scientific data available when determining whether a species meets the Act's definition of a threatened species. How this term is interpreted and applied dictates whether species are listed and whether they are listed as an endangered species or a threatened species.

In 2019, as part of a larger effort to improve, clarify, and streamline the administration of the Act, we finalized the first regulatory framework for the statutory term “foreseeable future” to explain how the Services will consider and apply this term when making classification decisions under the Act. The foreseeable future regulatory framework that was finalized in 2019 was subsequently revised in the 2024 rule. That revised, and now current, version of the foreseeable future regulation reads as follows:

After re-evaluating the current regulation and the justifications for the 2024 revisions, we propose reverting to the original regulation as finalized in 2019 to align with the best meaning of the Act and our best policy judgment about how to administer the Act. Thus, we propose to remove the current regulatory text in § 424.11(d) and replace it with the version of § 424.11(d) that was promulgated in 2019. (See 84 FR 45020 at 45052, August 27, 2019, and the proposed regulatory text in this document for 50 CFR 424.11(d).)

Both the 2019 and the current interpretations of the “foreseeable future” were based directly on a 2009 memorandum opinion from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M-Opinion”), which provides guidance on addressing the concept of the foreseeable future within the context of determining the status of species under the ESA. The M-Opinion, which the Services 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. In initially developing the 2019 rule, the Services specifically worked to capture the guidance and considerations provided in the M-Opinion in a clear, concise, and understandable regulation.

A comparison between the 2019 and the current regulation describing the “foreseeable future” demonstrates that the text of the two regulations is largely the same but for a rewording of the second sentence of this regulation.

Compare:

Versus:

Returning to “only so far into the future,” from “extends as far into the future,” and to “reasonably determine” from “reasonably reliable predictions” more clearly expresses an interpretation of “foreseeable future” that is bounded by what is foreseeable based on the best scientific and commercial data available. Also, stating that “foreseeable future” requires a determination that “ both the future threats and the species' responses to those threats must be likely” would clarify that these requirements are conjunctive. The language in the 2024 rule, by contrast, is insufficiently clear and risks (mistakenly) encouraging a reading of them as disjunctive.

Thus, after re-evaluating the revisions to the foreseeable future framework made in 2024, we now find it appropriate to revert to the regulation as finalized in 2019.

In 2019, the Services made revisions to § 424.11(e) to better clarify the procedure and standards that the Services apply when making delisting decisions. Prior to 2019, this section of the regulations, which had been unchanged since 1984 (see 49 FR 38900, October 1, 1984; see also 45 FR 13010 at 13022-13023, February 27, 1980), identified three main circumstances in which delisting a species was appropriate: (1) extinction of the species, (2) recovery of the species, and (3) error in the original classification data or their interpretation. Additional text in the regulations elaborated on these three circumstances but used some imprecise and unclear terms. For instance, to be considered extinct, the regulations stated that a “sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct” (49 FR 38900 at 38909, October 1, 1984). What qualified as a “sufficient period of time” thus required additional interpretation. In addition, inclusion of the recovery circumstance in these regulations led to some later interpretations that, in order to delist a species due to its recovery, the criteria established under section 4(f)(1)(B)(ii) of the ESA as part of a species' recovery plan must be met.

In 2019, after accruing significant experience administering these regulations, the Services revised them to better clarify the circumstances in which species should be delisted (see, e.g., Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012)). In making those revisions, the Services explained that some of the text of the regulations in place at that time had, in some instances, been misinterpreted as establishing criteria for delisting (83 FR 35193 at 35196, July 25, 2018). To streamline, simplify, and better align the regulatory text with section 4(a) of the Act, we also removed some of the unnecessary and potentially confusing language that had been in the regulations (See 84 FR 45020 at 45052, August 27, 2019, and the proposed regulatory text in this document for 50 CFR 424.11(e).)

As revised, the 2019 regulations achieved the Services' stated goal of aligning the regulations more closely with the text of the Act by making clear that the standards for delisting a species are the same as the standards for a decision not to list it in the first instance. In other words, they made clear that the parameters for both listing determinations and delisting determinations are the same—and that those parameters are reflected in the factors listed in section 4(a)(1) of the Act, the requirements of section 4(b) of the Act, and the definitions of “endangered species” and “threatened species” in sections 3(6) and 3(20) of the Act.

These regulations were revised again in 2024. After reviewing these regulations in response to E.O. 14154 and S.O. 3418, we now propose to revert to the 2019 regulations in § 424.11(e) that list three circumstances in which it is appropriate to delist a species: (1) the species is extinct, (2) the species does not meet the definition of an endangered species or a threatened species, and (3) the listed entity does not meet the definition of a species. We have considered that the revisions made in 2019 reflect the single, best meaning of the Act. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Fundamentally, the statute must be read to have the same criteria for delisting as for listing, and the regulations cannot artificially constrain the decisionmaker. In addition, as there is no express reference to “recovery” in section 4(c)(2) of the Act, we find that including mention of recovery in these regulations is not necessary, nor is it necessarily helpful. If a species has in fact recovered to the point at which the measures provided pursuant to the Act are no longer necessary, then it would no longer meet the definition of an endangered or threatened species and would warrant delisting. Accordingly, it is more straightforward to simply state that delisting is appropriate when the species no longer meets the definition of an endangered or threatened species. Thus, this proposed revision better aligns the regulations with the statute and better achieves the fundamental objective of clarifying the standards and requirements that apply to delisting decisions.

We propose to revise § 424.12(a)(1), which provides circumstances in which the Services may, but are not required to, find it is not prudent to designate critical habitat. Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate a species' critical habitat concurrently with listing the species. The statute does not define or further clarify the term “not prudent”; this term and its application are instead clarified in § 424.12(a)(1), which identifies circumstances when it may not be prudent to designate critical habitat for a listed species. The first not-prudent circumstance—when the species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species—has been included in the regulations continuously for 40 years and has not been invalidated by the courts ( see Building Industry Ass'n v. Babbitt, 979 F. Supp. 893, 906 (D.D.C. July 25, 1997)).

Other not-prudent circumstances have been added or removed at different times. For example, the additional circumstance in which no areas meet the definition of critical habitat was added to these regulations in 2016 (81 FR 7414, February 11, 2016). This circumstance was retained in both the 2019 and 2024 rules. Another example is the removal in 2024 of the circumstance that had been inserted in 2019 indicating that critical habitat designation may not be prudent when threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from section 7 consultations. Some revisions made in 2024 merely involved reorganization of text; in particular, the 2024 rule moved what had been listed as a fifth circumstance (the “Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available”) into the opening paragraph of this section of the regulations. While the 2024 rule used different phrasing, it captured the same non-exhaustive nature of the list of not-prudent circumstances.

After re-evaluating the 2019 and 2024 revisions to the not-prudent regulations, we find it appropriate to revert to the regulations as finalized in 2019. This proposed revision would entail two changes to the text of 424.12(a)(1): (1) reinserting the specific circumstance into the regulations that had been removed in 2024 ( i.e., “threats to a species' habitat that lead to endangered-species or threatened-species status stem solely from causes that cannot be addressed by management actions identified in a section 7(a)(2) consultation”); and (2) moving the language regarding non-exhaustive circumstances as one of the specific circumstances when a designation of critical habitat may not be prudent (“The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available”), instead of including this phrase in the introductory language at 50 CFR 424.12(a)(1).

The first of these two proposed changes would explicitly identify a circumstance when designation of critical habitat may not be prudent. As we explained during the rulemaking for the revisions in 2019, we have encountered situations in which the threats to a species' habitat that lead to endangered-species or threatened-species status stem solely from causes that cannot be addressed by management actions identified in a section 7(a)(2) consultation. Although listing this circumstance would not make a not-prudent finding mandatory or preclude a critical habitat designation, a not-prudent finding may nevertheless be appropriate in this circumstance (84 FR 45020 at 45042, August 27, 2019). We find it is clearer and more transparent to include this possible situation in the enumerated list of circumstances when designating critical habitat may not be prudent. As stated in the 2019 rule, we reiterate here that a not-prudent determination relying on this provision would need to take into account the specific factual circumstances at issue for the particular species, and that we anticipate not-prudent determinations will continue to be rare.

The second proposed change would not alter the non-exhaustive nature of the list of circumstances when a designation of critical habitat may not be prudent. As this concept was included in both the 2019 and 2024 rules, it does not represent a change in the Services' interpretation or administration of these regulations. However, we find that the text, as framed in the 2019 regulations, more clearly explained that any such determination must be based on the best available data. Thus, we propose to remove the current regulatory text in § 424.12(a)(1) and replace it with the version of § 424.12(a)(1) that was promulgated in 2019. (See 84 FR 45020 at 45053, August 27, 2019, and the proposed regulatory text below in this document for 50 CFR 424.12(a)(1).)

None of these revisions will affect the opportunity for public involvement in, or outcome of, either agency's analyses or decisions regarding critical habitat. Although reverting to the 2019 version of the regulation would increase the regulatory list of circumstances when designation of critical habitat may be not prudent, the changes to the regulations are not intended to increase the occurrence of not-prudent determinations, and as stated previously, the Services anticipate that not prudent determinations will continue to be rare. Rather, these revisions are intended to provide clarity and specificity with respect to the circumstances in which it may not be prudent to designate critical habitat. We emphasize that the circumstances that the regulations identify for when not-prudent findings may be appropriate are not mandatory, and a designation may nevertheless be prudent even if one of the enumerated not-prudent circumstances is present. The Services recognize the value of critical habitat as a conservation tool and, as demonstrated by past practice, expect to designate it in most cases.

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate a species' critical habitat concurrently with listing the species. Section 3(5)(A) of the Act defines the term “critical habitat” as (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.

The regulations governing the designation of unoccupied critical habitat at 50 CFR 424.12(b)(2) have been amended multiple times within recent years, once through a 2016 rule (81 FR 7414, February 11, 2016), then through the 2019 rule (84 FR 45020, August 27, 2019), and then again through the 2024 rule (89 FR 24300, April 5, 2024), which we are now revisiting. In all of these rules, the Services addressed the concept of prioritizing or sequencing how occupied and unoccupied areas should be considered when designating critical habitat.

In the 2019 rule, we revised the criteria for designating unoccupied critical habitat to explicitly require a two-step process that prioritizes the designation of occupied areas over unoccupied areas by adding the following sentence: The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species (84 FR 45020 at 45053, August 27, 2019). This requirement was included in the initial 1984 regulations but was removed from the regulations in 2016, because, at that time, we made a policy determination that it was an unnecessary and unintentionally limiting requirement (81 FR 7414 at 7434, February 11, 2016). The revisions made in 2016 instead allowed for simultaneous consideration of occupied and unoccupied habitat according to the definition of critical habitat in the Act.

In justifying the adoption of new regulations for designating unoccupied areas in 2019, which included a two-step prioritization process, we explained that we were responding to concerns that the Services would inappropriately designate overly expansive areas of unoccupied critical habitat (83 FR 35193 at 35197-35198, July 25, 2018), and that a two-step approach would help further Congress' intent to place greater importance on habitat within the geographical area occupied by the species (84 FR 45020 at 45043, August 27, 2019). In the revisions made in 2024, the two-step process was again removed from the regulations. There was also a new change finalized in 2019 that, in order for an area to be considered “essential,” the Secretary was required to make a determination that there was reasonable certainty both that a particular unoccupied area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

After re-evaluating the revisions to the unoccupied critical habitat regulations made in 2024, we now propose reverting to the regulation as finalized in 2019. (See 84 FR 45020 at 45053, August 27, 2019, and see proposed regulatory text below in this document for 50 CFR 424.12(b)(2).) These proposed revisions would result in again requiring the two-step process of first evaluating occupied areas before considering unoccupied areas for designation. As a practical matter, we have always begun the process of identifying critical habitat by first evaluating occupied areas and then considering whether there may be any unoccupied areas that are essential for the conservation of the species. We find that requiring an express determination that a critical habitat designation limited to occupied areas would be inadequate to conserve the species more appropriately reflects how areas are prioritized biologically— i.e., areas needed for survival of the species within its occupied range must be identified as critical habitat before we can determine what, if any, additional, unoccupied areas are necessary for future expansion of recovering populations.

In addition, this approach furthers Congress's intent to place greater importance on habitat within the geographical area occupied by the species when it originally defined “critical habitat” in 1978. The Conference Report accompanying the amendments specified that Congress was defining “critical habitat” as “specific areas within the geographical area occupied by the species at the time it is listed that is essential to the species conservation and requires special management consideration” (H.R. Rept. No. 95-1804, at 18 (emphasis in the original)). The report went on to state, “In addition, the Secretary may designate critical habitat outside the geographical area occupied by the species at the time it is listed if he determines such areas are essential for the conservation of the species” (emphasis added).

Reverting to the 2019 version of this regulation would also reinstate the requirement that, to designate unoccupied areas as critical habitat, the Secretary must make a determination that there is reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

This proposed change would align the regulations with the best meaning of the Act. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). To begin, the Supreme Court recently held that an area must be habitat before an area can meet the definition of critical habitat. Weyerhaeuser Company v. United States Fish & Wildlife Service, 586 U.S. 9, 19-20 (2018) (interpreting Section 4(a)(3)(A)(i)). To say that an area that is currently uninhabitable for a species at the time of listing is “essential” for the conservation of such species defies logic. And to meet the definition of “critical habitat,” the “specific areas outside the geographical area occupied by the species” must be “ essential for the conservation of the species.” Section 3(5)(A)(ii) (emphasis added). It follows, then, that when determining whether unoccupied areas are “essential,” the Services should determine that “there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more physical or biological features essential to the conservation of the species.” A “reasonable certainty” determination precludes designations of unoccupied land based upon mere potential or speculation; it requires high confidence that the unoccupied areas are essential. This reading accords with the language of other, related provisions in the Act. For example, the use of the present tense—“are essential”—in section 3(5)(A)(ii) indicates that for an unoccupied area to qualify as “critical habitat,” it must currently be essential for the conservation of the species.

Congress has also made clear that it intended for designation of unoccupied areas as critical habitat to meet a higher standard than designating occupied areas and that the Services should be exceedingly circumspect in the designation of critical habitat outside of the presently occupied areas of the species (43 FR 870, January 4, 1978). Courts agree. See, e.g., Home Builders Ass'n v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010). Therefore, including these two express requirements of reasonable certainty—that an area will contribute to the conservation of the species and that the area contains one or more of the physical or biological features essential for the conservation of the species—is a way to demonstrate that designations of unoccupied critical habitat will meet this higher bar and be consistent with the best reading of the Act, congressional intent, and case law. This proposed change would also represent the Services' best policy judgment about how to administer the Act. We also note that any designation of critical habitat must still be based on the best scientific data available and comply with the statutory definition of critical habitat in section 3(5)(A) of the Act.

We are seeking comments from all interested parties on the specific revisions we are now proposing to 50 CFR part 424, as well as the regulatory revisions we made in the 2019 rule and in the 2024 rule, and any of our analyses or conclusions in the Required Determinations section of this document. All relevant information will be considered prior to making a final determination regarding these regulations. Depending on the comments received, we may change the final regulations based upon those comments.

You may submit your comments concerning this proposed rule by one of the methods listed in ADDRESSES . Comments sent by any other method, to any other address or individual, may not be considered. Comments must be submitted to https://www.regulations.gov before 11:59 p.m. (eastern time) on the date specified in DATES . We cannot guarantee that we will have time to consider hand-delivered or mailed comments that we do not receive by the date specified in DATES .

Comments and materials we receive will be posted and available for public inspection on https://www.regulations.gov . This generally means that we will post any personal information you provide us. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is significant and has reviewed it.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

This proposed rule is expected to be an E.O. 14192 deregulatory action.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), 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 RFA to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We certify that, if adopted as proposed, this proposed rule would not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

This proposed rule would revise and clarify requirements for NMFS and FWS in classifying species and designating critical habitat under the Act. The proposed regulations would not expand the reach of species protections or designations of critical habitat. No external entities, including any small businesses, small organizations, or small governments, will experience any direct economic impacts from this proposed rule. Therefore, we certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) On the basis of information contained above in the Regulatory Flexibility Act section, this proposed rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this proposed rule would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A small government agency plan is not required. As explained above, small governments would not be affected because the proposed rule would not place additional requirements on any city, county, or other local municipalities.

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

In accordance with E.O. 12630, this proposed rule would not have significant takings implications. This proposed rule would not pertain to “taking” of private property interests, nor would it directly affect private property. A takings implication assessment is not required because this proposed rule (1) would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier to all reasonable and expected beneficial use of private property.

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

This proposed rule would not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This proposed rule would clarify factors for listing, delisting, or reclassifying species and designation of critical habitat under the ESA.

In accordance with E.O 13175 “Consultation and Coordination with Indian Tribal Governments,” the Department of the Interior's manual at 512 DM 2, and the Department of Commerce (DOC) “Tribal Consultation and Coordination Policy” (May 21, 2013), DOC Departmental Administrative Order (DAO) 218-8, and NOAA Administrative Order (NAO) 218-8 (April 2012), we considered possible effects of this proposed rule on federally recognized Indian Tribes. This proposed rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. Therefore, we preliminarily conclude that this proposed rule does not have “tribal implications” under section 1(a) of E.O. 13175. Thus, formal government-to-government consultation is not required by E.O. 13175 and related policies of the Departments of Commerce and the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats. See Joint Secretary's Order 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” June 5, 1997).

This proposed rule does not contain any new collection of information that requires approval by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We are analyzing this proposed rule in accordance with the criteria of 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 part 46), the Department of the Interior Manual (516 DM 1), the NOAA Administrative Order 216-6A, and the companion manual, “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities,” (June 30, 2025).

We invite the public to comment on the extent to which these proposed regulations may have a significant impact on the human environment or fall within one of the categorical exclusions for actions that have no reasonably foreseeable effects on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule.

E.O. 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare statements of energy effects “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 (or any successor order); and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. The proposed revised regulations are not expected to affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

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' administration of the Act is not in itself subject to the Act's provisions, including section 7(a)(2). The Services have a historical practice of issuing their general regulations under the ESA without undertaking section 7 consultation. This practice accords with the plain language, structure, and purposes of the ESA, which does not place a consultation obligation on the Services' administration of the Act. Although the Services consult on actions through intra-agency consultations where appropriate ( e.g., issuance of section 10 permits and actions under statutory authorities other than the ESA), the Services in those instances are acting principally as an “action agency” carrying out provisions of the Act or other statutes. Here, by contrast, the Services are acting solely in their role as administrators of the ESA; we are also not administering the Act to propose or take a specific action. The Services are carrying out the most fundamental exercise of our role as administrators of the ESA, and the Act cannot reasonably be construed as requiring the Services to “consult” with themselves under section 7(a)(2) in such cases.

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. This means that each rule we publish must:

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

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

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