[Federal Register Volume 91, Number 138 (Tuesday, July 21, 2026)]
[Rules and Regulations]
[Pages 45723-45736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-14633]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2025-0029; FXES11130900000-267-FF09E23000]
RIN 1018-BI74
Endangered and Threatened Wildlife and Plants; Regulations
Pertaining to Endangered and Threatened Wildlife and Plants
AGENCY: U.S. Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS or the Service),
revise our regulations concerning protections of threatened species
under the Endangered Species Act (Act). We are removing the ``blanket
rule'' option for protecting newly listed threatened species pursuant
to section 4(d) of the Act.
DATES: This rule is effective August 20, 2026.
ADDRESSES: Public comments and materials received, as well as
supporting documentation used in the preparation of this final
regulation, are available at https://www.regulations.gov at Docket No.
FWS-HQ-ES-2025-0029.
FOR FURTHER INFORMATION CONTACT: John Tirpak, U.S. Fish and Wildlife
Service, Division of Conservation and Classification; 703-358-2163;
[email protected]. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act of 1973, as amended (hereafter referred
to as the 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 species and threatened species (listed species) depend, to
provide a program for the conservation of listed species, and to
achieve the purposes of certain treaties and conventions (16 U.S.C.
[[Page 45724]]
1531(b)). Moreover, the Act states that it is the policy of Congress
that all Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall use their
authorities to further the purposes of the Act (16 U.S.C. 1531(c)(1)).
This 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(a) 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 of the Interior (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(a) 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 Service promulgated ``blanket rules,'' for threatened species
of wildlife and plants at 50 CFR 17.31(a) and 17.71(a), respectively.
Pursuant to these blanket rules, as soon as a species was listed as
threatened, nearly all the section 9(a) prohibitions that apply to
endangered species would automatically apply to threatened species,
unless we issued an alternative rule for that species (i.e., a species-
specific rule, previously referred to as ``special rules''). 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 rule'') and
removed the ``blanket rule'' option for applying section 9(a)
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 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.). A second case that was identified in the proposed
rule, American Farm Bureau Federation et al. v. U.S. Fish and Wildlife
Serv. et al.; 1:25-cv-00947 (D.D.C.), has since been voluntarily
dismissed. Prior litigation over the 2019 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 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.
In our 2025 proposed rule (90 FR 52587, November 21, 2025) we
referred to two Executive Orders (E.O.s) as the impetus for reviewing
and revising the regulations that pertain to protections for threatened
species under section 4(d). 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
subsequently issued Secretary's Order (S.O.) 3418 on February 3, 2025,
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) (hereafter, ``Loper
Bright'')). While E.O.s 14154 and 14219 initiated our review, our goal
in revising these regulations was to determine how best to craft
protective regulations for threatened species under section 4(d) of the
Act while also considering our experience administering the Act and
policy preferences. Based on our evaluation, and for reasons discussed
in more detail below, we are revising 50 CFR part 17.
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). FWS and NMFS (collectively, the Services) separately administer
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 FWS jurisdiction. This
regulation similarly affects only species under FWS jurisdiction. Since
this rulemaking is solely applicable to the FWS, when we refer to the
Secretary, we mean the Secretary of the Interior.
Regulatory Revisions
We are revising 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 are removing the future use of the ``blanket rule'' option
from 50 CFR 17.31 and 17.71 for threatened species. Removing the future
use of the ``blanket rule'' option from 50 CFR 17.31 and 17.71 is a
superior choice from a policy perspective. This approach ensures that
the Service will thoughtfully consider the protections that are
necessary and advisable for the conservation of each threatened
species. As we noted in the 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
[[Page 45725]]
threatened status of the species'' (84 FR 44753 at 44754, August 27,
2019). This tailored approach may reduce future permitting burdens on
the Service and regulated entities alike and is intended to allow the
Service to better protect threatened species. This approach also brings
the Service in line with the NMFS's longstanding practice of developing
species-specific 4(d) rules rather than using a ``blanket rule'' option
which will provide entities regulated by both the Service and NMFS more
certainty in process.
Removing the future use of the ``blanket rule'' option will 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 after this final rule takes
effect, and those reclassified in the future, we will 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. As is current practice, when we are proposing to protect a
threatened species with a species-specific rule, the public will be
afforded an opportunity to provide public comment on the proposed
regulation.
We are also finalizing 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 includes a necessary
and advisable determination (including consideration of conservation
and economic impacts) and we will seek public comment on that
determination. We include this additional regulatory text, to provide
transparency to the public about our decision-making process and to
address Kansas Natural Resources Coalition, et al. v. USFWS, et al. 780
F.Supp.3d 650 (W.D. Tex. 2025) (hereafter, ``Kansas Natural Resources
Coalition''), 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. In our proposed rule (90 FR
52587, November 21, 2025), we specifically requested comments on
whether we should include any requirement in the regulatory text for
concurrently finalizing species-specific rules for newly listed or
reclassified threatened species and decline to include this requirement
at this time. As is our current practice, we intend to finalize
species-specific rules concurrent with the final listing or
reclassification determination. Between the time that the 2019 rule
went into effect in September 2019, and when the 2024 rule went into
effect on May 6, 2024, we listed or reclassified 46 threatened species
(35 wildlife and 11 plant species) and published interim or final
species-specific 4(d) rules for each of those species. During that
time, there were no newly listed threatened species for which time
elapsed between listing and putting in place protective regulations
because we published either interim or final species-specific rules
concurrently with each final classification action.
These final regulations do not automatically require the
reevaluation of any previous use of Sec. 17.31(a) or Sec. 17.71(a)
for species without species-specific rules. However, we have always had
the discretion to revise protective regulations (e.g., revise existing
species-specific rules or promulgate species-specific rules for species
currently protected under a ``blanket rule'') at any time if it is
necessary and advisable for the conservation of a threatened species.
In addition, we intend to review the current protective regulations for
each threatened species in conjunction with our required status review
pursuant to section 4(c)(2) of the Act. We may find during a status
review that revising protective regulations for the threatened species
is necessary and advisable for the conservation of that species.
Depending upon other listing, delisting, and reclassification
priorities, we will determine when to pursue rulemaking, which would
include public notice and comment, for any changes in protective
regulations.
In this final rule, we summarize and discuss the comments received
in response to the proposed rule (90 FR 52587, November 21, 2025) and
provide additional explanation for our final regulation revisions. In
the event any provision is invalidated or held to be impermissible as a
result of a legal challenge, ``the remainder of the regulation could
function sensibly without the stricken provision'' (Belmont Mun. Light
Dep't v. FERC, 38 F.4th 173, 187 (D.C. Cir. 2022) (quoting MD/DC/DE
Broad. Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001))). Because each
of the provisions stands on its own, the Service views each of the
provisions as operating independently from the other provisions. Thus,
should a reviewing court invalidate any particular provision(s) of this
rulemaking, the remaining provisions would still allow the Service to
promulgate species-specific 4(d) rules. Specifically, these distinct
provisions include: (1) removing the future use of the ``blanket rule''
option for wildlife from 50 CFR 17.31(a); (2) adding the requirement to
make a necessary and advisable determination for each wildlife species-
specific 4(d) rule (50 CFR 17.31(d)); (3) removing the future use of
the ``blanket rule'' option for plants from 50 CFR 17.71(a); and (4)
adding the requirement to make a necessary and advisable determination
for each plant species-specific 4(d) rule (50 CFR 17.71(d)). In the
event that any portion of this final rule is held to be invalid or
impermissible, the Service intends that the remaining aspects of the
regulatory provisions be severable.
In finalizing the specific changes to the regulations in this
document, the Service is establishing prospective standards only. These
regulations will apply to species-specific 4(d) rules finalized after
the effective date of this rule and will not alter the current
protections for any threatened species whether protected by a ``blanket
rule'' or species-specific 4(d) rule. For the effective date of this
rule, see DATES, above. Nothing in these revisions to the regulations
is intended to require that any prior 4(d) rule be revised.
This rule is one of two rules publishing in today's Federal
Register that revise the regulations that administer the Act.
Summary of Comments and Responses
In our November 21, 2025, proposed rule (90 FR 52587), we requested
public comments by December 22, 2025. We received a total of 14,620
submissions representing approximately 343,767 individuals on the
proposed rule by the close of the comment period. Commenters included
individual members of the public, representatives from States, Tribes,
industry organizations, and environmental organizations, among others.
During the public comment period, we received several requests for
public hearings. Public hearings are not required for regulation
revisions of this type, and we elected not to hold public hearings. We
also received several requests for extensions of the public comment
period. However, we elected not to extend the public comment period
beyond the original 30-day public comment period because we found the
30-day comment period provided sufficient time for a thorough review of
the proposed revisions. The Administrative Procedure Act (APA; 5 U.S.C.
551 et seq.) does not specify a minimum number of days for a comment
period, but the comment period must be long enough to afford the public
a meaningful opportunity to comment. In this case, with a 30-day public
comment period, the public had a meaningful opportunity to comment
[[Page 45726]]
on the proposed rule, as demonstrated by the thousands of comments
received.
The primary revisions are to portions of the regulations that were
previously revised in 2019 and 2024. The number of comments received
indicate that members of the public were aware of the proposed rule and
had adequate time to review it. In addition, we provided five
informational sessions for a wide variety of audiences. Over 2,100
attendees participated in these sessions, and we addressed questions
from the participants as part of the sessions. Finally, on our website,
we provided additional information about the regulations, such as
frequently asked questions and a prerecorded presentation on the
proposed revisions.
Most of the submissions were nonsubstantive in nature, expressing
either general opposition to or support for the proposed rule with no
supporting information or analysis. We received several hundred letters
with detailed substantive comments with specific rationales for support
of or opposition to specific portions of the proposed rule. We also
received comments that were outside the scope of the rulemaking (such
as comments to amend language in 50 CFR 17.32 to align with language in
50 CFR 17.22 and require a 30-day notice and comment period for
threatened species permits, comments to suspend rulemaking until
ongoing litigation challenging provisions of the 2019 rule (Ctr. for
Biological Diversity v. Dep't of the Interior, No. 4:24-cv-04651 (N.D.
Cal.)) is concluded, or comments concerning issues that may arise
during implementation for future species-specific 4(d) rules) that we
are not responding to here. We note that, for each future proposed
species-specific 4(d) rule, the Service will provide an opportunity for
public comment. Below, we summarize and respond to the significant,
substantive comments we received.
Removal of Blanket Rules
Comment 1: Multiple commenters supported rescinding ``blanket
rules'' as proposed, arguing that eliminating the application of a
standard set of protections to newly listed threatened species would
improve conservation outcomes by fostering collaboration among
stakeholders, increasing regulatory flexibility, and allowing for more
precise, species-specific management.
Conversely, multiple commenters opposed rescinding the ``blanket
rules,'' citing their precautionary value and efficiency. They detailed
how ``blanket rules'' could be effective at conserving threatened
species and argued that applying protections to threatened species
immediately upon listing reduces extinction risk, addresses unknown
threats, and aligns with the preventative intent of the Act. Commenters
pointed out that we recently stated that there is nothing in the
current regulations that prevents us from using species-specific 4(d)
rules to tailor the regulations to the conservation needs of the
species when needed (89 FR 23919, April 5, 2024). They also warned that
removing ``blanket rules'' could leave threatened species with no or
delayed protections, accelerating declines and undermining conservation
efforts.
Response: Pursuant to section 4(d) of the Act, we are required to
develop protective regulations that are necessary and advisable to
provide for the conservation of threatened species. In addition,
section 4(d) authorizes the Secretary to prohibit with respect to any
threatened species any act prohibited under section 9(a) with respect
to endangered species. Our protective regulations have consistently
been, and will continue to be, based upon the best available scientific
and commercial information.
Although the ``blanket rules'' at 50 CFR 17.31(a) and 17.71(a) have
been applied in an effort to conserve many threatened species, we have
found that implementing species-specific 4(d) rules is a more effective
and efficient use of our personnel and fiscal resources as they focus
protections on the identified stressors contributing to the threatened
status of the species. As noted in our 2024 rule (89 FR 23919 at
23926), species-specific 4(d) rules can incentivize known beneficial
actions for species by removing or reducing regulatory burden
associated with those actions and can also remove or reduce regulatory
burden associated with permitting of otherwise prohibited actions or
forms or amounts of ``take'' considered inconsequential to the
conservation of the species. In turn, this information may assist with
streamlining future section 7 consultations, as we recognize that in
most situations it would be unlikely that additional measures would be
required to further minimize take that is excepted in a 4(d) rule.
Additionally, if project activities could be tailored to avoid forms of
take prohibited by the 4(d) rule, consultation should be more
straightforward and predictable. Furthermore, we anticipate landowners
will be incentivized to take actions that would improve the status of
endangered species with the possibility of downlisting the species and
potentially receiving regulatory relief in the resulting 4(d) rule.
For these reasons, we conclude that while blanket rules may offer
administrative simplicity in some cases, species-specific rules better
align with the Act's mandate to adopt regulations that are ``necessary
and advisable'' for the conservation of threatened species and
ultimately provide a more effective and efficient framework for
achieving conservation outcomes. While promulgating species-specific
4(d) rules for every threatened species may require additional Service
resources at the time of listing, we believe tailored species-specific
protections ultimately provide regulatory time-savings for us and our
conservation partners.
We reiterate our intention to finalize species-specific 4(d) rules
concurrently with final listing or reclassification determinations.
This approach adds efficiency, predictability, and transparency to the
rulemaking process because it correlates the Service's analysis of
threats impacting the species (as discussed in the final listing or
reclassification rule) to our analysis of protective regulations for
the species. As a result, we believe these measures to increase public
awareness, transparency, and predictability will enhance and expedite
conservation, defined in the Act to mean ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to [the Act] are no longer necessary'' (16 U.S.C.
1532(3)).
Comment 2: Several commenters stated that rescinding the ``blanket
rules'' will allow for political interference and industry pressure on
the Service to reduce protections for threatened species to the
detriment of species conservation.
Response: As explained in the preamble to the November 21, 2025,
proposed rule (90 FR 52587), the intent of this regulation is to focus
protections on the stressors contributing to the threatened status of
the species and to facilitate the implementation of beneficial
conservation efforts with the ultimate goal of delisting the species.
This practice of tailoring regulations to individual threatened species
is guided by the Service's extensive history of administering the Act.
Our determination of what protective regulation is necessary and
advisable, as a whole, for the conservation of a given threatened
species has consistently been, and will continue to be, based upon the
best scientific and commercial
[[Page 45727]]
data available to us at the time we promulgate the 4(d) rule.
Comment 3: Some commenters stated that there is a requirement to
conduct National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) analyses when issuing any species-specific 4(d) rules and this
requirement will slow the administrative process and may delay listings
and protection of threatened species.
Response: We disagree that NEPA compliance delays the listing of or
promulgation of protective regulations for threatened species. The
Service intends to promulgate 4(d) rules in conjunction with rules to
list species to efficiently provide regulatory protection to species
that are determined to meet the criteria for listing. As supported by
case law, we are not required to conduct NEPA analysis for species-
specific 4(d) rules that are promulgated concurrent with listing
decisions (Center for Biological Diversity v. U.S.F.W.S., 2005 WL
2000928, slip op. at 12 (N.D. Cal. Aug. 19, 2005)). As a matter of
practice, we do conduct NEPA analyses when we promulgate a species-
specific stand-alone 4(d) rule (i.e., not concurrent with a
classification determination), consistent with case law (In re Polar
Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F.
Supp. 2d 214, 237 (D.D.C. 2011)). Furthermore, when we revise
protections for a threatened species, the existing protections remain
in effect until the revised 4(d) rule is finalized avoiding any gap in
regulatory protection for the species in question.
Comment 4: Commenters asserted that the proposed rule provides no
evidence that the existing ``blanket rules'' create a regulatory
burden, while their removal will likely increase administrative
workload for the Service by requiring species-specific rules for each
threatened species. Many pointed to the Service's substantial workload,
recent staffing reductions, and limited funding, suggesting these
constraints would make timely development of species-specific rules
impractical and exacerbate delays. Others suggested that the proposed
regulation revisions could reduce the administrative and economic
burden for the Service since species-specific 4(d) rules allow the
Service to focus regulatory attention on specific activities that
contribute to the threatened status.
Response: Developing species-specific 4(d) rules is a prudent and
efficient use of our resources because of the benefits gained from
tailoring protections specific to the conservation needs of the
species. From the period after the ``blanket rules'' were put into
place in 2024 to current, we have finalized 5 species-specific rules
and did not apply either of the ``blanket rules'' to any threatened
species. Similar information regarding use of the ``blanket rules'' is
available related to the previous rulemaking that rescinded the
``blanket rules'' (RIN 1018-BC97; 84 FR 44753, August 27, 2019; https://www.regulations.gov/document/FWS-HQ-ES-2018-0007-69539). In general,
the provisions of a 4(d) rule should be closely tied to the species'
needs and primary factors influencing the biological status identified
in the species status assessment report or other analysis of the
species' biological status. Determining which protective regulations
are appropriate for a species requires us to address the stressors
leading to threatened species status. This determination logically
flows from our analyses at the time of listing. In sum, because the
analysis of all factors influencing the species has already been
completed to inform the listing determination, we anticipate the
development of species-specific protective regulations addressing these
same factors concurrently will be more efficient. As discussed in our
2019 rule, we intend to review existing species-specific 4(d) rules
that could be used as a model or applied to the species in question.
For example, the Service has existing species-specific 4(d) rules for
certain threatened fish species, which are found at 50 CFR 17.44(a),
(c) and (h), that include protective regulations for multiple species.
Where appropriate, the Service adds additional listed species of fish
to the appropriate rule. This approach would be beneficial when there
are species with similar threats or that occur in a similar geographic
area, or species with similar life histories or similar biological
needs. Therefore, in these situations, developing species-specific
regulations will not be as time consuming or burdensome as the
commenters predict because the Service will be able to rely on existing
regulatory language. Similar examples include the Service's existing
species-specific 4(d) rules for Mazama pocket gophers (50 CFR
17.40(a)), crocodilians (50 CFR 17.42(c)), and stoneflies (50 CFR
17.47(c)). Regardless of whether we ultimately add a new species to an
existing regulation in the CFR, we will always conduct individual
analyses for each species and make species-specific necessary and
advisable determinations.
As previously discussed, we also anticipate that while promulgating
species-specific 4(d) rules for every threatened species may require
additional Service resources at the time of listing, tailored species-
specific protections ultimately provide regulatory time-savings for us,
our conservation partners and the regulated community, and lead to
better species conservation. Of the currently listed threatened
species, approximately 48 percent of wildlife species and 6 percent of
plant species are protected with species-specific 4(d) rules.
Comment 5: Several commenters suggested that when using the
``blanket rule'' protections, threatened species were treated the same
as endangered species. Some indicated this resulted in overprotection
and supported removal of ``blanket rules'' to reinstate meaning to the
distinction between endangered species and threatened species, and
others supported the similar treatment and supported maintaining
``blanket rules.'' Some commenters support removing automatic
protections for endangered species as well.
Response: The ``blanket rules'' do not treat threatened species
exactly the same as endangered species. The Act's section 9(a)
prohibitions that apply to an endangered species also apply to a
threatened species protected by a ``blanket rule,'' however, the
``blanket rules'' also include broader exceptions to prohibitions than
those included in our regulations for endangered species. Our
endangered species regulations include a suite of exceptions, which
allow for various entities to conduct otherwise prohibited acts without
a permit under the Act (e.g., any person may take endangered wildlife
in defense of their own life or the lives of others; Federal and State
law enforcement officers may possess, deliver, carry, transport, or
ship any endangered wildlife taken in violation of the Act as necessary
in performing their official duties; certain individuals can take
wildlife to aid, salvage, or dispose of endangered species).
Protections for threatened species under the ``blanket rules'' also
include these standard exceptions; however, because threatened species
are not in danger of extinction but are likely to become so within the
foreseeable future, we provided additional flexibility for managing
threatened species. At 50 CFR 17.31(b) and 17.71(b), the exceptions are
more numerous and broader than those for endangered species. These
include additional exceptions for the FWS to conduct conservation
actions such as habitat restoration that would cause ``take'' that
would otherwise be prohibited under the Act without a permit. These
provisions also include broader exceptions for agents or employees of
State conservation
[[Page 45728]]
agencies operating a conservation program in accordance with section
6(c) of the Act to conduct actions otherwise prohibited without a
permit. Additionally, the general threatened species permitting
provisions promulgated under the authority of section 4(d) at 50 CFR
17.32(a) provide broader issuance criteria and require less process
than endangered species permitting provisions at 50 CFR 17.22(a)
promulgated under the authority of section 10(a)(1)(A) of the Act,
which also require compliance with section 10(c), section 10(d), and 50
CFR 17.22(d).
With regard to the comment about removing automatic protections for
endangered species, section 9(a) of the Act prescribes the prohibitions
for endangered species. We cannot alter these prohibitions through
regulatory revisions.
Comment 6: We received a few comments on topics that were not
specifically addressed in our proposed regulatory amendment but instead
focus on issues that may arise during implementation of this
rulemaking. These included recommendations for future guidance
documents or for consideration when developing individual species-
specific 4(d) rules.
Response: The Service appreciates these comments and suggestions on
developing species-specific 4(d) rules. While that input may inform the
development of future species-specific 4(d) rules, policies, or
guidance, those comments are outside the scope of this rulemaking. To
the extent commenters raised questions about the substance of future
species-specific 4(d) rules that have not been proposed, we urge
commenters to provide this feedback as applicable in the development of
future species-specific 4(d) rules.
Comment 7: Multiple commenters stated that aligning our approach
with NMFS is not a valid argument for rescinding the ``blanket rules.''
Some commenters pointed out that the FWS is responsible for many more
species than NMFS and we may experience delays in crafting species-
specific rules due to the higher administrative burden. Commenters also
asserted that there is no good reason why alignment with NMFS is
necessary or beneficial as the agencies have had different approaches
for decades without issues and this is not mandated by the Act. Some
commenters stated that the NMFS approach does not provide a model of
efficacy to justify FWS alignment, because NMFS does not consistently
promulgate species-specific 4(d) rules for threatened species.
Commenters suggested that NMFS should instead adopt the ``blanket
rule'' if consistency between the agencies is the goal. Other
commenters supported aligning our approach with NMFS and suggested that
NMFS has demonstrated success in implementing species-specific rules
given their higher recovery rates of species than the Service despite
not using the ``blanket rules.''
Response: As noted above, Executive Orders and S.O. 3418 provided
the impetus for our rulemaking; because the ``blanket rule'' was
exclusive to FWS, NMFS did not participate in this rulemaking. Comments
asserting actions NMFS should take are beyond the scope of this
rulemaking. We are removing the potential for default application of
the ``blanket rules'' as our preferred policy approach and recognize
this will align our practice with NMFS for future threatened species
listings.
Comment 8: Some commenters raised concerns regarding the ability of
the Service to implement U.S. treaty obligations for threatened species
that are also listed on the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) Appendices. One of
the commenters raised concerns about complicating permitting and
confusing the regulated community by setting different standards for
different threatened species listed at different times and about
reducing the ability to prohibit and place permitting requirements on
the import of foreign threatened species listed on the CITES
Appendices. The commenter noted that CITES specifically allows
countries to have such so-called ``stricter domestic measures'' beyond
those required by CITES. They believe the conservation of the species
necessitates the added scrutiny provided through administering ESA
import permit requirements for threatened species by the United States,
and they fear that eliminating the ``blanket rules'' for future
threatened species listings will reduce the conservation benefit of the
ESA to CITES implementation. Another commenter expressed concern that
if ESA protections relating to prohibitions on import, export, and
trade under section 9(a) are not applied to threatened species in the
United States by default, the United States would be unable to prohibit
trade contrary to the requirements of CITES.
Response: This rulemaking does not affect the ability of the
Service to implement U.S. treaty obligations for species listed on the
CITES Appendices that are also threatened species under the Act. The
purpose of CITES is to regulate international trade in plants and
animals to ensure such trade is legal and does not threaten the
survival of species in the wild. The ESA, in part, implements CITES and
its Appendices of CITES-listed species into U.S. law (see 16 U.S.C.
1532(4), 1537a, 1538(c), 1540; 50 CFR part 23). Separately, the ESA
also provides Federal protection to species listed as endangered or
threatened pursuant to section 4 of the ESA. As the commenter notes,
Parties to the Convention may enact stricter domestic measures over the
conditions of trade in CITES specimens, making CITES ``a floor, not a
ceiling, for protection'' of CITES species (see Safari Club Int'l v.
Zinke, 878 F.3d 316, 321-322 (D.C. Cir. 2017) (citing CITES Art.
XIV(1), 27 U.S.T. at 1108)). The listing of endangered species and
threatened species and protections afforded thereto by the ESA are an
example of a stricter domestic measure. The listing of a species as
endangered or threatened under the ESA does not depend on whether or
how it is listed under CITES and vice versa (see 16 U.S.C. 1532(6),
1532(20), 1533(a)(1), 1533(d), 1538(a); 50 CFR part 17; 50 CFR part
424). The two legal regimes have separate lists of protected wildlife
(compare 50 CFR 23.91, 23.7, CITES Appendices (available at https://cites.org/eng/app/appendices.php) with 50 CFR 17.11-17.12 (ESA lists),
16 U.S.C. 1533(c)). The two legal regimes have separate listing
processes and species are listed pursuant to separate criteria (compare
CITES Art. II, XV, XVI; CITES Resolution Conf. 9.24 (Rev. CoP17) on
Criteria for amendment of Appendices I and II (available at https://cites.org/eng/res/index.php); 50 CFR 23.89, 23.87 with 16 U.S.C.
1533(a)-(b); 50 CFR part 424). The prohibitions that attach to CITES
species and ESA species under the ESA are also separate (compare CITES
Arts. II(4), VIII; 16 U.S.C. 1538(c); 50 CFR 23.13 (CITES species
prohibitions) with 16 U.S.C. 1538(a), 1533(d); 50 CFR 17.21, 17.31,
17.61, 17.71 (ESA species prohibitions)). The permitting processes for
CITES species and ESA species under the ESA are also separate (compare
CITES Arts. III-VII; 16 U.S.C. 1537a; 50 CFR part 23 (CITES species
permitting provisions) with 16 U.S.C. 1539(a)-(d), 1533(d); 50 CFR
17.22, 17.32, 17.62, 17.72 (ESA species permitting provisions)). In
short, a species may be listed under either, both, or neither the CITES
Appendices and the ESA lists of endangered and threatened wildlife and
plants.
The commenter is also incorrect that removal of the future use of
the ``blanket rule'' option and use of species-specific 4(d) rules for
future threatened listings would preclude prohibiting the import
[[Page 45729]]
of threatened species. If a species-specific 4(d) rule prohibits
import, then an import permit is required unless the species-specific
4(d) rule provides a separate exception. See Safari Club Int'l v.
Zinke, 878 F.3d 316, 328-29 (D.C. Cir. 2017) (``[s]ection 9(c)(2) in no
way constrains... section 4(d) authority to condition the importation
of threatened Appendix-II species. . .''); see also 71 FR 20168 at
20170-20171, April 19, 2006; 72 FR 48402 at 48404-48405, August 23,
2007. To the extent that the commenter is referring to section 9(c)(2)
of the Act and our implementing regulations at 50 CFR 17.8, which
provides an import exemption for qualifying imports of threatened
species that are CITES Appendix-II wildlife, nothing in this rulemaking
affects the operation of 50 CFR 17.8. As a result, these provisions
continue to provide the limited exception to the Sec. 17.31(a)
prohibition against the importation of threatened wildlife for species
that are currently subject to the provisions of the ``blanket rule''
and that are also included in CITES Appendix II (provided that the
other requirements of 50 CFR 17.8(b) are also met).
Comment 9: One commenter suggested that nearly all zoos are
impacted by ESA regulations including the current ``blanket rules.''
They suggest that under the current rule, zoos holding threatened
species are required to go through burdensome, costly and unreasonably
lengthy permitting processes. They suggest the ``blanket rules'' are
overly burdensome and inefficient and not consistent with the
congressional intent of the ESA to impose the enhancement and other
permitting requirements applicable to species that are listed as
threatened because they do not have a species-specific 4(d) rule.
Response: The commenter suggests that ``blanket rules'' and
species-specific rules include different permit processes or standards
to obtain a permit for an otherwise prohibited act. For both threatened
species protected by ``blanket rules'' and threatened species protected
by species-specific rules, we issue permits pursuant to our general
threatened species permitting regulations at 50 CFR 17.32 (wildlife) or
17.72 (plants) unless we specifically state otherwise in the species-
specific rule (see 50 CFR 17.31(c) and 50 CFR 17.71(c)). The revisions
in this final rule do not change the permitting regulations at 50 CFR
17.32 or 17.72.
State Protections
Comment 10: A commenter requested that we clarify that section 4(d)
rules are not intended to serve as a general compensatory mitigation
authority and that any mitigation requirements under section 4(d) must
be directly tied to conserving the species, not broader landscape
policy goals. The commenter also requested that we indicate that where
States have existing mitigation frameworks already in place, such as
Wyoming, the Service should defer to the State management scheme that
provides a structured mechanism for addressing certain impacts. The
commenter suggested that any future section 4(d) rules should
complement, not duplicate or conflict with, those frameworks.
Response: Species-specific 4(d) rules are one of the tools that
contribute to the conservation of threatened species. Species-specific
4(d) rules do not serve as a general compensatory mitigation authority.
As part of the promulgation of these rules, we must determine that the
rule is necessary and advisable to provide for the conservation of the
species which is informed by the consideration of conservation and
economic impacts as described in 50 CFR 17.31(d) and 50 CFR 17.71(d).
In promulgating species-specific 4(d) rules, we consider existing
conservation efforts and regulatory protections and may incorporate
these actions in our species-specific 4(d) rules as appropriate.
Further, we recognize the authorities given to States in section 6
of the Act to conserve listed species and the partnership with the
Service and States in conserving federally listed species. As stated in
our ``Revised Interagency Cooperative Policy Regarding the Role of
State Agencies in Endangered Species Act Activities'' (81 FR 8663,
February 22, 2016), it is our practice to coordinate and collaborate
with State agencies in developing the scientific foundation upon which
the Service bases determinations for listing actions, including 4(d)
rules that specify the prohibitions necessary and advisable for the
conservation of species listed as threatened. We note that the
preemptive effect of the Act and implementing regulations in part 17
with regard to State laws for endangered species or threatened species
is pursuant to section 6(f) of the Act (see 16 U.S.C. 1535(f); the
Supremacy Clause of the U.S. Constitution; H.J. Justin & Sons, Inc. v.
Deukmejian, 702 F.2d 758, 759-60 (9th Cir. 1983); Man Hing Ivory &
Imports, Inc. v. Deukmejian, 702 F.2d 760 (9th Cir. 1983); Cresenzi
Bird Importers, Inc. v. New York, 658 F. Supp. 1441, 1444-46 (S.D.N.Y.
1987), summarily aff'd, 831 F.2d 410 (2d Cir. 1987)).
Comment 11: One commenter expressed concern that adopting the
practice of promulgating species-specific rules for each new listing
would supersede the existing rule that provides States the authority to
manage threatened species consistent with section 6 of the Act. They
noted that each rule would go through a public process, opening it up
for challenges on a case-by-case basis and suggested that over time,
this practice may erode States' ability to conserve and recover
imperiled species while significantly increasing workload and costs of
implementation. They suggested additional regulation revisions to
ensure that, at a minimum, States' level of management effectiveness
that exists now (e.g., under 50 CFR 17.31) be maintained.
Response: As previously mentioned, we recognize the authorities
given to States in section 6 of the Act to conserve listed species and
the partnership among the Service and the States in conserving
federally listed species. We made revisions to our regulations (50 CFR
17.31(c) and 17.71(c)) in 2024 that clarified that our exceptions at 50
CFR 17.31(b) and 17.71(b) providing State conservation agencies the
authority to ``take'' threatened species when carrying out conservation
programs always apply unless a species-specific 4(d) rule specifically
prohibits that exception (89 FR 23919, April 5, 2024). Therefore, for
all threatened species currently protected by species-specific rules
and any threatened species protected by a species-specific rule in the
future, State agencies with a section 6 cooperative agreement do not
require permits under the Act for take of those threatened species
while operating a conservation program pursuant to the terms of an
approved cooperative agreement unless we specifically state otherwise
in the associated rule.
With regard to the comment about a public process, we are required
to follow APA notice and comment procedures for all 4(d) rules. There
is no change regarding this requirement as a result of this final
rulemaking.
Comment 12: Commenters oppose the removal of the ``blanket rules''
because they suggest it could lead to inconsistent protections of
threatened species across States, increasing extinction risk of
species.
Response: The Act requires that the Service issue protective
regulations under section 4(d) that are necessary and advisable to
provide for the conservation of threatened species. While we may
develop species-specific 4(d) rules with protections that vary across a
species' range, this would be due to varying degrees of threats for the
species and in line with the conservation needs of the species. We
[[Page 45730]]
therefore do not foresee a risk of inconsistencies in threatened
species protections across States, unless the best scientific and
commercial data available indicates that certain protections should be
tailored to a specific geographic area, with rationale provided within
the species-specific 4(d) rulemaking.
Blanket Rule Option
Comment 13: Multiple commenters remarked on whether ``blanket
rules'' are legal under the Act, whether they are the best
interpretation of the Act, and whether they are consistent with
congressional intent. Some commenters suggested that the ``blanket
rules'' are unlawful because the statutory language and legislative
history indicate that Congress intended for the protections for
threatened species to differ from, and be more flexible than, the
protections for endangered species, as well as for the Service to
develop a separate and individualized set of protective regulations for
each threatened species. Commenters also suggested that use of a
``blanket rule'' option is inconsistent with the best reading of the
Act as required by Loper Bright and that the Service may only issue
protective regulations for threatened species--including those
prohibiting take--on a species-by-species basis, and only after
determining that such regulation is ``necessary and advisable for the
conservation'' of that species. Commenters noted that prior to Loper
Bright, and analyzed under the Chevron framework (Chevron, U.S.A., Inc.
v. NRDC, Inc., 467 U.S. 837 (1984)) in which Federal courts defer to
administrative agencies' reasonable interpretations of ambiguous
statutes), at least one court upheld a ``reasonable and permissible''
reading of the ESA to allow for ``blanket rules'' (Sweet Home Chapter
of Communities for a Greater Oregon v. Babbitt, 1 F.3d 1, 8 (D.C. Cir.
1993), modified on other grounds on reh'g, 17 F.3d 1463 (D.C. Cir.
1994), rev'd on other grounds, 515 U.S. 687 (1995) (hereafter, ``Sweet
Home'')). However, they suggest this is not necessarily what a court
would determine under Loper Bright.
On the other hand, other commenters viewed the ``blanket rules'' as
lawful (citing to Sweet Home) and consistent with congressional intent.
These commenters pointed out that we previously explained how ``blanket
rules'' further the purposes of the Act by allowing the Service to
protect species quickly without having to develop a new set of
regulations for each species, and that courts have upheld the ``blanket
rules'' (89 FR 23919 at 23924, April 5, 2024).
Further commenters stated that we misconstrued the Supreme Court's
ruling in Loper Bright because there was nothing in the Court's
decision that compels or even supports the decision to revise the
implementing regulations. Further, these commenters stated that
referring to the Court's decision does not sufficiently justify the
Service's change in position or provide a rational basis to rely on for
the revisions to the regulations because it does not change how
agencies interpret statutes or promulgate regulations. These commenters
stated Loper Bright requires courts, when reviewing an agency action,
to determine the ``best reading'' of a statute rather than defer to an
agency's interpretation of ambiguous statutory language (603 U.S. at
400).
Response: As we stated in the preamble to our 2019 rule and 2024
rule, the application of the ``blanket rules'' is legal, consistent
with congressional intent, and consistent with a permissible reading of
section 4(d) of the Act as found by the court in Sweet Home (1 F.3d at
8; (``[W]e find it far from clear that 16 U.S.C. 1533(d) requires the
FWS to extend protections to threatened species on a species-by-species
basis . . . In light of the statute's ambiguity, [50 CFR 17.31(a)] is a
reasonable and permissible construction of the ESA.'').
We recognize that we have reversed our position on the best
approach in administering section 4(d) of the Act several times in
these previous rulemakings. Most recently in our 2025 proposed rule
preamble we referred to Loper Bright to support revision of the
regulations to remove the ``blanket rules.'' We note that 4(d) blanket
rules come in multiple forms. As the subject of this rulemaking, the
revisions to the regulations to remove the ``blanket rules'' in
17.31(a) and 17.71(a) relate to rescinding the blanket application of
section 9(a) prohibitions as a potential default for newly listed
threatened species absent a species-specific 4(d) rule. Other 4(d)
``blanket rules'' relate to the promulgation of exceptions to
prohibitions for threatened species (such as 17.31(b), 17.71(b)) and
permitting provisions (such as 17.32(a), 17.72(a)) that are generally
applicable to threatened species absent a species-specific 4(d) rule.
We consider removing the automatic application of the ``blanket
rule'' option from 50 CFR 17.31(a) and 17.71(a) to be a preferred
choice from a policy perspective. As discussed above, through our
experience promulgating species-specific 4(d) rules, we have seen many
benefits, including incentivizing known beneficial actions for the
species by removing or reducing regulatory burden associated with those
actions and removing or reducing regulatory burden--both on the Service
and regulated entities--associated with permitting of otherwise
prohibited actions or forms or amounts of ``take'' considered
inconsequential to the conservation of the species. Therefore,
considering these past decisions and our experience administering the
Act, we find that revising the regulations to remove the automatic
``blanket rule'' option for future listings is the most appropriate way
for the Service to administer section 4(d) of the Act.
Comment 14: We received multiple comments in opposition to or in
support of including the new provision in 50 CFR 17.31(d) and 17.71(d)
requiring the Service to make a necessary and advisable determination
for all species-specific 4(d) rules going forward. Some commenters
stated that this requirement is unnecessary if the section 4(d) rule
includes only extension of section 9(a) prohibitions and exceptions to
those prohibitions (see In re: Polar Bear Endangered Species Act
Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 (D.D.C.
2011) (citing Sweet Home) and State of Louisiana ex rel. Guste v.
Verity, 853 F.2d 322, 332-33 & n.22 (5th Cir. 1988)). Other commenters
stated a necessary and advisable determination is required for all
section 4(d) rules as a matter of statutory construction; that is, a
regulation prohibiting take is merely an example of the types of
regulations that could be promulgated and the necessary and advisable
finding must apply to those regulations (see Home Depot U.S.A., Inc. v.
Jackson, 587 U.S. 435, 441 (2019)). Some commenters noted Sweet Home
deferred to the Service under the now-overruled Chevron doctrine and
suggest this is not necessarily what a court would determine under
Loper Bright. Further, commenters stated that recent case law supports
the requirement to include a necessary and advisable determination for
all section 4(d) rules (see Kansas Natural Resources Coalition).
Response: Regardless of whether or not we are required to make such
a determination, we have chosen to be as transparent as possible and
explain why, as a whole, each species-specific 4(d) rule is necessary
and advisable to provide for the conservation of threatened species.
This is in line with our past practice and with what we stated was our
intention in our 2024 rule (89 FR 23919 at 23922, April 5, 2024). For
species-specific 4(d) rules, we will continue to include the
[[Page 45731]]
rationale for why the rule as a whole is necessary and advisable to
provide for the conservation of the species that is the subject of the
rule.
Comment 15: We received multiple comments on the new provision in
50 CFR 17.31(d) and 17.71(d) regarding the additional requirement to
consider conservation and economic impacts as part of the required
necessary and advisable determination for all species-specific 4(d)
rules. Some commenters stated that the Service is required to consider
economic costs and benefits of a section 4(d) rule to ensure that it is
in fact necessary and advisable. For example, commenters cited to
Michigan v. Environmental Protection Agency, 576 U.S. 743 (2015)
(hereafter, ``Michigan v. EPA''), which discusses the phrase
``appropriate and necessary,'' where the Supreme Court held that
similar statutory standards require the consideration of all relevant
factors, including economic impacts. They also pointed out that earlier
this year, a district court determined expressly that Michigan v. EPA
applies to section 4(d) of the Act (Kansas Natural Resources Coalition)
and that, both prior to and since Michigan v. EPA was issued, courts
have found that similar types of broad grants of authority to agencies
must include some consideration of economic impacts (e.g., Mexican Gulf
Fishing Co. v. U.S. Dep't of Commerce, 60 F.4th 956, 965 (5th Cir.
2023), hereafter, ``Mexican Gulf Fishing Co.''). Several commenters
suggested the proposed revision means that the Service will have new
discretion regarding whether any protective regulations under section
4(d) are necessary for species proposed for listing and supported the
Service exercising this discretion.
In contrast, many commenters disagreed and stated that the
consideration of economic impacts is unlawful because the Act clearly
articulates where economic impacts should be considered, for example,
in section 4(b)(2) which pertains to critical habitat designations
(``shall designate critical habitat . . . after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact'') and section 4(f)(1) which pertains to
recovery plans (``incorporate in each plan . . . estimates of the time
required and the cost to carry out those measures needed to achieve the
plan's goal and to achieve intermediate steps toward that goal'').
These commenters also stated that the Service's own guidance (U.S. Fish
and Wildlife Service, ``Guidance for Development of Species-Specific
4(d) Rules Under the Endangered Species Act'' (https://www.fws.gov/sites/default/files/documents/guidance-for-4d-rules-under-the-endangered-species-act_0.pdf)) does not include any reference to
economic impacts playing a role in determining what protective
regulations to promulgate. Commenters also state the Service's reliance
on Kansas Natural Resources Coalition (which cited Michigan v. EPA and
Mexican Gulf Fishing Co.) was flawed. These commenters suggested that
those courts ignored the distinction in the purposes of the statutes
relevant in those cited cases from the purpose of the ESA which is to
conserve species, citing TVA v. Hill 437 U.S. 153, at 184 (1978) and
its holding that ``[t]he plain intent of Congress in enacting [the ESA]
was to halt and reverse the trend toward species extinction, whatever
the cost.''
Response: We recognize that section 4(d) of the Act does not refer
to an analysis of economic impacts or estimate of costs in the same way
as sections 4(b)(2) and 4(f). We also acknowledge that we came to a
different conclusion in our 2024 final rule (89 FR 23919 at 23933-
23934, April 5, 2024); however, we are including this requirement in
regulations in response to Kansas Natural Resources Coalition and to
increase transparency in our rulemaking process. In determining what
protective regulation, as a whole, is necessary and advisable to
provide for the conservation of a threatened species, we will consider
both the conservation needs of the species and then consider the
conservation and economic impacts of the 4(d) rule.
Current Threatened Species
Comment 16: Some commenters agreed with, and several commenters
expressed concern about, our intention stated in the proposed rule to
reevaluate current protections for all threatened species currently
protected under ``blanket rules.'' Commenters suggested this was not an
efficient use of Service resources given existing workload and
classification backlog.
Response: As discussed in Regulatory Revisions, above, we intend to
review protective regulations for each threatened species in
conjunction with our required status reviews pursuant to section
4(c)(2) of the Act. We may find that revising protective regulations is
necessary and advisable for the conservation of a given species.
Depending upon other listing, delisting, and reclassification
priorities, we will determine when to pursue rulemaking, which would
include public notice and comment, for any changes in protective
regulations.
Required Timeframes for Species-Specific Rules
Comment 17: Several commenters recommended that we finalize
regulations to require final species-specific 4(d) rules to be
published concurrently with final listing determinations. Commenters
suggested a variety of alternative timelines (e.g., 30-180 days after
listing or reclassification). They argued that this approach would
provide clarity and certainty for stakeholders, ensure timely
protections for threatened species, and prevent gaps in protection that
could occur between listing or reclassification and the development of
species-specific regulations. Others suggested this practice would ease
the Service's administrative burden by ensuring the Service only has to
receive and respond to one round of public comments and finalize one
rulemaking as opposed to two.
Other commenters argued against including any timeframes in
regulations. They stated that the Act does not require it and it would
only create new opportunities for missed-deadline litigation.
Alternatively, multiple commenters stated that the Act does in fact
require concurrent section 4(d) rules regardless of what is in
regulation. For instance, one commenter reasoned that section 4(d)
directs the agency to issue species-specific 4(d) rules concurrently
with listing because it `` `. . . provides that `[w]henever any species
is listed as a threatened species[,] the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of such species' (16 U.S.C. 1533(d)). `Whenever' means `at
whatever time,' and the term `shall' creates a mandatory duty.'' They
suggest the wording ``. . . as he deems necessary and advisable'' in
section 4(d) of the Act makes it unclear whether the Secretary has
discretion about whether or not to issue regulations, or whether these
are required under the law. Others argued that without a mandatory
timeframe, the Service could promulgate species-specific rules at any
time, which departs from the Act's directive to use all available
resources and authority to conserve threatened species (see 16 U.S.C.
1531(b), (c)(1), 1533(d), 1536(a)(1)). At least one commenter noted
that the requirement to issue a species-specific 4(d) rule concurrently
with the listing of a threatened species is also bolstered by the
legislative history. They specifically reference S. Rep. No. 93-307,
93d Cong., 1st Sess. 8 (1973) which states that section 4(d) ``requires
the Secretary,
[[Page 45732]]
once he has listed a species of fish or wildlife as a threatened
species, to issue regulations to protect that species.''
Response: We decline to include any timeframes in these
regulations. We intend to continue to finalize species-specific 4(d)
rules concurrently with final listing rules. We agree this approach is
the most efficient. As we point out above, during the period from 2019
to 2024 when ``blanket rules'' at 50 CFR 17.31(a) and 17.71(a) were not
available for new threatened species listings and during the time
period after we reinstated the ``blanket rules,'' we consistently
published either interim or final species-specific 4(d) rules
concurrently with final listing rules.
Required Determinations and Other Legal Requirements
Comment 18: Several commenters stated that we did not provide
enough justification or logical rationale for the rescission of the
``blanket rules'' and suggested that we did not comply with the APA.
For example, commenters suggested that we did not provide a
transparent, reasoned explanation for the proposed changes or a
complete and transparent analysis. Some commenters stated that, at a
minimum, the Service has not shown that there are good reasons for the
new policy (see FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009); hereafter, FCC v. Fox). One commenter expressed concern about
the Service's reliance on the APA's ``good cause'' exception
(suggesting that we promulgated the rule without notice and comment and
instead provided an immediate effective date for the rule).
Response: We do not agree with the assertion that we did not
provide enough justification or logical rationale for the rule in
compliance with the APA. We published our proposal, broadly explained
our proposed revisions, explained our rationale for changes, and
explicitly asked for public comment. We have now reviewed the public
comments and in this final rule have provided responses to relevant,
significant comments. We have provided the public with our rationale
and a meaningful opportunity to comment on all aspects of the proposed
rule. Thus, the process that we used to promulgate this rule complied
with the applicable requirements of the APA. The process for revising
regulations is governed by the APA as interpreted by relevant case law,
with which the Service has complied fully.
Contrary to a commenter's assertion, we did not rely upon the APA's
``good cause'' exception and did not publish a rule with an immediate
effective date. We published notice of the proposed rulemaking in the
Federal Register (90 FR 52587, November 21, 2025), we provided an
opportunity for public comment, we considered the relevant matter
presented in those comments, and we have provided a rational
explanation for our action.
In our 2019 4(d) rule (84 FR 44753, August 27, 2019), we explained
that we were ending the ``blanket rule'' option for species newly
listed as threatened species after the effective date of those
regulatory revisions because: It would make our regulatory approach for
threatened species similar to NMFS's approach; either using ``blanket
rules'' or promulgating species-specific rules is a reasonable approach
to implementing the Secretary's discretion afforded under section 4(d)
of the Act; and promulgating species-specific 4(d) rules that are
tailored to the specific species can provide conservation benefits for
threatened species. In our 2024 rule (89 FR 23919, April 5, 2024), we
reinstated the ``blanket rules'' because we found, that ``blanket
rules'' allowed for a more efficient method to protect threatened
species for which we find their protections are appropriate, it is more
straightforward and transparent to have species-specific 4(d) rules in
one place in the CFR and ``blanket rule'' protections described in
another, and the reinstatement of the ``blanket rules'' ensures there
is never a lapse in threatened species protections. We now find--as
explained in our preambles to the November 21, 2025, proposed rule (90
FR 52587) and this final rule--that revising the regulations to remove
the future automatic application of the ``blanket rule'' option is the
preferable choice. This tailored approach ensures that the Service will
thoughtfully consider the protections that are necessary and advisable
for the conservation of each threatened species, which may reduce
future permitting burdens on the Service and regulated entities,
facilitate implementation of beneficial conservation actions,
incentivize conservation efforts from partners, and align our practices
with the NMFS. We have found that implementing species-specific 4(d)
rules make better use of our limited personnel and fiscal resources
than the ``blanket rules'' by focusing protections on the specific
stressors contributing to the threatened status of the species.
This is sufficient explanation under the Supreme Court's decision
in FCC v. Fox (556 U.S. at 515), which concludes ``it suffices that the
new policy is permissible under the statute, that there are good
reasons for it, and that the agency believes it to be better, which the
conscious change of course adequately indicates.''
Comment 19: Multiple commenters argue that E.O.s 14219 and 14154,
and the related S.O. 3418, do not require or support the proposed rule.
Comments assert that the ``blanket rules'' do not place undue burden on
the U.S. energy sector. At least one commenter stated that the Service
needs to explain how the ``blanket rules'' are inconsistent with, or
otherwise presented obstacles to, the policies articulated by E.O.s
14219 and 14154 and the related S.O. 3418.
Response: As explained above, while E.O.s 14154 and 14219 initiated
our review, our goal in revising these regulations was to determine how
best to craft protective regulations for threatened species under
section 4(d) of the Act while also considering our experience
administering the Act. E.O. 14154 (``Unleashing American Energy'')
directed 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. The subsequently issued
S.O. 3418 specifically identified the 2024 regulations as needing such
a review. In addition, E.O. 14219 (``Ensuring Lawful Governance and
Implementing the President's ``Department of Government Efficiency
Deregulatory Initiative''), issued on February 19, 2025, directed
agencies to review and rescind unlawful regulations that are ``based on
anything other than the best reading of the underlying statutory
authority.'' As a consequence of these actions and orders, we initiated
a review of the regulations that had been finalized in 2024.
Comment 20: Commenters stated that the Service failed to comply
with NEPA because we merely solicited public comment on potential
impacts of the regulatory revisions rather than drafting an
environmental impact statement for public input. According to the
commenters, this shifts the burden to the commenters to gather and
review technical environmental and economic information during the 30-
day comment period, prejudicing their ability to comment and protect
their rights and interests. Multiple commenters asserted that a NEPA
analysis was required because the proposed regulatory revisions
constitute a ``major Federal action'' with significant environmental
impacts. Some commenters asserted that
[[Page 45733]]
the Service needs to prepare an environmental assessment or
environmental impact statement pursuant to NEPA for these revisions to
the regulations prior to adoption of the proposed changes, and that
this rulemaking action should not be categorically excluded.
Specifically, they suggest that we need to take a hard look at the
foreseeable impacts of the regulatory changes, along with a reasonable
range of alternatives. Some commenters stated that they do not believe
that the proposed regulation changes are merely administrative or
procedural actions, nor would result in environmental effects that are
``too broad or speculative'' for analysis. Some commenters noted
``extraordinary circumstances'' that preclude a categorical exclusion
such as ``[having] significant impacts on species listed, or proposed
to be listed, on the List of Endangered or Threatened Species or
[having] significant impacts on designated Critical Habitat for these
species'' described at 43 CFR 46.215(g).
Commenters stated that NEPA did not permit the Services to consider
each of the ESA rule changes proposed on November 21, 2025,
independently and the Services were instead required to consider these
four regulatory actions, along with the proposed ``harm'' rule (90 FR
16102, April 17, 2025), collectively to avoid improperly segmenting
their actions and obscuring the full environmental consequences of
deregulation.
Response: NEPA establishes procedures for agencies to follow to
determine the level of NEPA review (42 U.S.C. 4336). The Service
elected to invite the public to provide comments on whether the
proposed regulations may have a significant impact on the human
environment, consistent with our past practice in promulgating both the
2019 and 2024 regulations. This approach did not place a burden on
commenters to develop technical analyses, as one commenter suggested,
nor deprive or limit their ability to participate in the comment period
effectively. There is no requirement under NEPA to make any draft
environmental document or categorical exclusion documentation available
to the public for comment. Exceeding the statutory minimum requirements
here and allowing public input on our NEPA compliance does not violate
NEPA.
The Service also voluntarily solicited input from the public on the
extent to which the proposed rule fell within a categorical exclusion.
Per NEPA, agencies must prepare EAs for actions that do not have a
reasonably foreseeable significant effect on the quality of the human
environment (or if the significance of the effect is unknown) unless,
inter alia, the action is excluded under one of the agency's
categorical exclusions (42 U.S.C. 4336(b)(2)). We have complied with
NEPA by determining that the rule is covered by a categorical exclusion
found at 43 CFR 46.210(i). We explain this determination in an
environmental action statement (EAS) that is posted in the docket for
this rule. As explained in the EAS, this rulemaking primarily provides
the framework for protections to threatened species but does not apply
this framework to any species; it is not until we list a species as
threatened and issue a species-specific 4(d) rule that this framework
applies to that species. Because the revisions are intended to clarify,
interpret, and implement portions of the Act concerning procedures for
determining protective regulations for threatened species, we consider
the action to be fundamentally administrative, technical, or procedural
in nature. We determined that none of the extraordinary circumstances
apply to this situation. We appreciate that commenters may have
preferred an environmental document that analyzed a range of
alternatives, but because we have a categorical exclusion that can be
applied to this action, we did not prepare an EA nor was an EIS
required, as set forth above.
As explained more fully in our categorical exclusion document, this
rulemaking clarifies the procedures for protecting threatened species
under section 4(d) of the Act but does not apply these procedures to
any species. As a result, the revisions to our regulations are of an
administrative, technical, legal or procedural nature and none of the
extraordinary circumstances apply (see Required Determinations, below,
and our supporting NEPA documentation at available at https://www.regulations.gov at Docket No. FWS-HQ-ES-2025-0029). To the extent
that some commenters assert that the rules are ineligible for this
categorical exclusion because they are substantive and non-ministerial,
such characteristics are not the focus of the agency's categorical
exclusion.
Lastly, we disagree with comments stating that the Service was
required to consider all four ESA regulatory provisions proposed on
November 21, 2025, as well as the rule to rescind the Services'
definition of ``harm'' under the ESA, in one environmental document to
avoid improperly segmenting their actions. Each of these rules are
separate actions and are not dependent on one another, i.e., any one of
the individual rulemaking actions could proceed without any of the
others and are not an interdependent part of a larger Federal action.
Even within each of the separate, individual rulemaking actions, the
regulatory provisions that are subject to revision can be severable
from other regulatory provisions addressed in the same rulemaking
action. Although each of the four regulations proposed on November 21,
2025, followed a review initiated by E.O.s 14154 and 14219 and S.O.
3418, none of these Executive or Cabinet-level orders are exclusively
directed at the ESA and none of the regulations being finalized rely
directly on these orders for the specific revisions we are now
finalizing in this rule. We also note that two of the rules that the
commenters identified (including this rule) are only applicable to FWS
could not appropriately be evaluated by NMFS in any NEPA document, as
NOAA and the Department of Commerce do not have decision-making
authority over rules that apply only to other agencies. See NOAA
Companion Manual at 34 that defines ``connected action'' in relevant
part as ``a separate Federal action within the authority of NOAA . .
.''.
Comment 21: One commenter stated the proposed rule fails to fulfill
the Alaska Native Claims Settlement Act (43 U.S.C. 1601-1629h).
Response: Our obligation to have a government-to-government
relationship with federally recognized Tribes is paramount and is
covered by S.O. 3206 and 3225. While S.O. 3225 discusses Alaska Natives
and other Native organizations, its purpose is to protect subsistence
rights and ways of life, and states that the Departments of Commerce
and the Interior will seek to enter into cooperative agreements for the
conservation of specific species, such as marine mammals and migratory
birds, and the co-management of subsistence uses with these
organizations.
In the Consolidated Appropriations Act of 2004 (Pub. L. 108-199,
Div. H, sec. 161), Congress required that the Director of the Office of
Management and Budget (and, subsequently, all Federal agencies) consult
with Alaska Native Corporations (ANCs) on the same basis as Indian
Tribes under E.O. 13175. Consistent with this obligation, the Service
will consult on Federal decisions that have a substantial, direct
effect on an ANC. This obligation to consult does not extend beyond the
E.O. 13175 context and does not apply here. We will continue to
collaborate with federally recognized Tribes and ANCs on a government-
to-government basis on issues related to federally listed species and
their habitats and will work with
[[Page 45734]]
them as we administer the provisions of the ESA.
Comment 22: Some commenters suggested additional analyses are
required for our required determinations (for example, Regulatory
Flexibility Act, Federalism, Unfunded Mandates Reform Act, Paperwork
Reduction Act, E.O. 12866, and Statement of Energy Effects). Several
commenters stated that we need to complete intra-Service section 7
consultation on the rulemaking.
Response: Regarding all required determinations for the rulemaking,
the primary change that this final rule makes is to put a regulatory
framework in place for future application. In the future, for each
threatened species, we will apply regulatory protections for that
threatened species that are necessary and advisable by promulgating a
species-specific 4(d) rule for that species. These changes provide
transparency and clarity, and there are no identifiable, quantifiable
effects from this rule. We further explain our rationale and compliance
for each of the identified Required Determinations, below, in the
respective sections below.
Other
Comment 23: One commenter requests that the Service add an
additional subsection to 50 CFR 17.31 and 17.71 that would require
review of take prohibitions of listed threatened species every five
years.
Response: While we decline to add this requirement in regulation,
we intend to review protective regulations for each threatened species
in conjunction with status reviews conducted in accordance with section
4(c)(2) of the Act.
Comment 24: A commenter pointed out that in the preamble in the
proposed rule, the Service clarified that the change in approach will
apply to ``every species newly listed as a threatened species, and
those reclassified in the future,'' but in the proposed amendment to 50
CFR 17.31(a) the Service states that the new text shall apply ``to
threatened species of wildlife that were added to the List of
Endangered and Threatened Wildlife at Sec. 17.11(h) on or prior to
August 20, 2026,'' and does not include the term ``reclassification.''
The commenter noted an identical change to 50 CFR 17.71(a) for
threatened plants. They recommend that we include the term
``reclassified'' in the additions to Sec. 17.31(a) and Sec. 17.71(a).
Response: We decline to revise the regulatory text because it
includes the case of reclassified species, as written. For plant and
animal species listed as threatened species prior to the effective date
of this final rule, protections from the ``blanket rules'' apply unless
the species has a species-specific 4(d) rule. When either an unlisted
species is listed as a threatened species or a species is reclassified
from an endangered species to a threatened species after the effective
date of this final rule, it is considered newly listed as a threatened
species for purposes of this rulemaking because it is added as a
threatened species to one of the lists at Sec. 17.11(h) and Sec.
17.12(h) after the effective date, and this final rule will apply.
Comment 25: One commenter requested that the Service limit
protecting threatened species to only regulations that are consistent
with the U.S. Constitution and requested we make specific commitments
concerning the content of future rulemakings.
Response: We only promulgate regulations that are consistent with
the U.S. Constitution. The specific content of future individual
rulemakings is beyond the scope of this rulemaking.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
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 rule is significant
and has reviewed it. This rule is considered an E.O. 14192 deregulatory
action and we anticipate cost-savings from the future implementation of
the rule; however, cost-savings cannot be projected or quantified.
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 final rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA), 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 certified at the
proposed rule stage that the proposed rule would not have a significant
economic impact on a substantial number of small entities (90 FR 52587,
November 21, 2025). Nothing in this final rule changes the basis for
that conclusion, and we received no information that changes the
factual basis of this certification. The following discussion explains
our rationale.
This rulemaking revises the Service's regulations protecting
threatened species under the ESA. This final rule is fundamentally a
procedural change for the Service that affects only the form of the
Service's decisions with respect to regulations that provide for the
conservation of threatened species. The Service is therefore the only
entity that is directly affected by this regulation change at 50 CFR
part 17. The statute states, ``[w]henever any species is listed as a
threatened species . . ., the Secretary shall issue such regulations as
he deems necessary and advisable to provide for the conservation of
such species.'' This requires the Secretary to make a decision about
what protections to apply to threatened species. Even with the
``blanket rules'' in place, it fell to the Secretary to decide what
protections to put in place for the species. That decision was in the
form of whether to allow the relevant ``blanket rule'' to apply or to
promulgate a species-specific rule. The need for that decision is even
ensconced in the ``blanket rules'' themselves--they expressly
contemplate that the Secretary could choose to promulgate a species-
specific rule that would replace the use of the ``blanket rule.'' With
promulgation of this rule, when species get listed in the future, the
``blanket rules'' will no longer be in place, but the
[[Page 45735]]
Secretary will still be required to make a decision about what
regulations to put in place for that species. The only thing that this
rulemaking will change is that the decision about what regulations to
put in place will now necessarily be in the form of promulgating a
species-specific rule. To the extent any regulations that provide for
the conservation of threatened species affect external entities, those
effects result from the substance of the subsequent rulemaking where
the Service will decide what regulations would provide for the species'
conservation, not from this rulemaking, which affects only the form of
that decision. External entities, including any small businesses, small
organizations, or small governments, are not directly regulated by this
rule and thus will not experience any direct economic impacts from this
rule. Therefore, we certify that this rule will not have a significant
economic effect on a substantial number of small entities.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(a) On the basis of information contained above in the Regulatory
Flexibility Act section, this rule will 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
rule will not impose a cost of $100 million or more in any given year
on local or State governments or private entities. A small government
agency plan is not required. As explained above, small governments will
not be affected because the rule will not place additional requirements
on any city, county, or other local municipalities.
(b) This rule will not produce a Federal mandate on State, local,
or Tribal governments or the private sector of $100 million or greater
in any year; that is, this rule is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This rule will impose
no obligations on State, local, or Tribal governments.
Takings--E.O. 12630
In accordance with E.O. 12630, this rule will not have significant
takings implications. This rule will not directly affect private
property, nor will it cause a physical or regulatory taking. It will
not result in a physical taking because it will not effectively compel
a property owner to suffer a physical invasion of property. Further,
the rule will not result in a regulatory taking because it will not
deny all economically beneficial or productive use of the land or
aquatic resources, it will substantially advance a legitimate
government interest (conservation and recovery of threatened species),
and it will not present a barrier to all reasonable and expected
beneficial use of private property.
Federalism--E.O. 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. This rule pertains only to the Service's protective
regulations for threatened species promulgated under the ESA and will
not have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Civil Justice Reform--E.O. 12988
This rule will 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 rule will revise the Service's regulations for protecting
threatened species pursuant to the ESA.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of (``Government-to-
Government Relations with Native American Tribal Governments''; 59 FR
22951, May 4, 1994), E.O. 13175 (``Consultation and Coordination with
Indian Tribal Governments''), the President's memorandum of November
30, 2022 (``Uniform Standards for Tribal Consultation; 87 FR 74479,
December 5, 2022''), and the Department of the Interior's manual at 512
DM 2, we considered possible effects of this rule on federally
recognized Indian Tribes and Alaska Native Corporations (ANCs). An
informational webinar was held for federally recognized Tribes on
December 3, 2025, and in response to Tribal interest, the Services held
a question-and-answer session for federally recognized Tribes on
December 10, 2025, to provide additional time for Tribal input and
questions. After the opening of the public comment period, we received
comments, requests for coordination, or requests for government-to-
government consultation from multiple Tribes.
The Service has reached a conclusion that the changes to these
regulations do not directly affect specific species or Tribal lands.
This rule revises regulations for protecting threatened species
pursuant to the Act. This rule is general in nature and does not
directly affect any specific Tribal lands, treaty rights, or Tribal
trust resources. Therefore, we conclude that this rule does not have
Tribal implications under section 1(a) of E.O. 13175. Thus, formal
government-to-government consultation is not required by E.O. 13175 and
related policies of the Department of the Interior. These regulations
will not have substantial direct effects on one or more Indian Tribes,
on the relationship between the Federal Government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. We will continue to collaborate
with Tribes and ANCs on issues related to federally listed species and
their habitats and work with them as we administer the provisions of
the Act (see S.O. 3206 (``American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act,'' June 5,
1997)).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This 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.). 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We analyzed this rule pursuant to the National Environmental Policy
Act (NEPA), 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 Handbook of National
Environmental Policy Act Implementing Procedures (516 DM 1). Federal
agencies must prepare an environmental impact statement for a proposed
major Federal action that would have a reasonably foreseeable
significant effect on the quality of the human environment. (42 U.S.C.
4332(c)). We have determined that a detailed statement under NEPA is
not required because the rule is covered by a categorical exclusion,
and we prepared an EAS accordingly. Please see our supporting NEPA
documentation, available at https://www.regulations.gov
[[Page 45736]]
at Docket No. FWS-HQ-ES-2025-0029, for additional details.
We find that the categorical exclusion found at 43 CFR 46.210(i)
applies to these regulation changes. At 43 CFR 46.210(i), the
Department of the Interior has found that the following category of
actions do not individually or cumulatively have a significant effect
on the human environment and are, therefore, categorically excluded
from the requirement for completion of an environmental assessment or
environmental impact statement: Policies, directives, regulations, and
guidelines: that are of an administrative, financial, legal, technical,
or procedural nature; or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case. We have also considered whether any of the extraordinary
circumstances described in 43 CFR 46.215 apply, and we did not identify
any extraordinary circumstances that apply to this rulemaking.
Energy Supply, Distribution or Use--E.O. 13211
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 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.
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
In developing this rule, FWS is acting in our unique statutory role
as administrator of the ESA and is engaged in a legal exercise of
interpreting the standards of the ESA. The FWS's administration of the
ESA is not in itself subject to the ESA'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(a) 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 ESA or other statutes. Here, by
contrast, the FWS is acting solely in our role as administrators of the
ESA; we are also not administering the ESA 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 ESA cannot reasonably
be construed as requiring the FWS to ``consult'' with ourselves under
section 7(a)(2) in such cases.
Authority
We issue this rule under the authority of the Endangered Species
Act, as amended (16 U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
For the reasons discussed in the preamble, we hereby amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
Subpart D--Threatened Wildlife
0
2. Amend Sec. 17.31 by revising paragraph (a) and adding paragraph (d)
to read as follows:
Sec. 17.31 Prohibitions.
(a) Except as provided in Sec. Sec. 17.4 through 17.8, or in a
permit issued pursuant to Sec. 17.32, the provisions of paragraph (b)
of this section and all of the provisions of Sec. 17.21 (for
endangered species of wildlife), except Sec. 17.21(c)(3) and (5),
apply to threatened species of wildlife that were added to the List of
Endangered and Threatened Wildlife at Sec. 17.11(h) on or prior to
August 20, 2026, unless the Secretary has promulgated species-specific
provisions (see paragraph (c) of this section).
* * * * *
(d) Each species-specific rule proposed after August 20, 2026 will
include a necessary and advisable determination (including
consideration of conservation and economic impacts consistent with the
findings and declaration of purposes and policy of the Endangered
Species Act, 16 U.S.C. 1531, based on the best scientific and
commercial data available) and will seek public comment on that
determination.
Subpart G--Threatened Plants
0
3. Amend Sec. 17.71 by revising paragraph (a) and adding paragraph (d)
to read as follows:
Sec. 17.71 Prohibitions.
(a) Except as provided in a permit issued pursuant to Sec. 17.72,
the provisions of paragraph (b) of this section and all of the
provisions of Sec. 17.61, except Sec. 17.61(c)(2) through (4), apply
to threatened species of plants that were added to the List of
Endangered and Threatened Plants at Sec. 17.12(h) on or prior to
August 20, 2026, unless the Secretary has promulgated species-specific
provisions (see paragraph (c) of this section), with the following
exception: Seeds of cultivated specimens of species treated as
threatened are exempt from all the provisions of Sec. 17.61, provided
that a statement that the seeds are of ``cultivated origin''
accompanies the seeds or their container during the course of any
activity otherwise subject to the regulations in this subpart.
* * * * *
(d) Each species-specific rule proposed after August 20, 2026 will
include a necessary and advisable determination (including
consideration of conservation and economic impacts consistent with the
findings and declaration of purposes and policy of the Endangered
Species Act, 16 U.S.C. 1531, based on the best scientific and
commercial data available) and will seek public comment on that
determination.
Kevin Lilly,
Principal Deputy for Fish and Wildlife and Parks, Exercising the
Delegated Authority of the Assistant Secretary for Fish and Wildlife
and Parks, Department of the Interior.
[FR Doc. 2026-14633 Filed 7-20-26; 8:45 am]
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